Hudson v. Cuero Land & Emigration Co.

• Decision Date: 01 January 1877
• Citation: 47 Tex. 56
• Parties: R. B. HUDSON ET AL. v. CUERO LAND AND EMIGRATION COMPANY.
• Court: Texas Supreme Court

47 Tex. 56

R. B. HUDSON ET AL.

v.CUERO LAND AND EMIGRATION COMPANY.

Supreme Court of Texas.

1877.

APPEAL from De Witt. Tried below before the Hon. D. D. Claiborne.

Previous to the 25th of December, 1871, it was agreed be tween Gustave Schleicher, Fletcher S. Stockdale, and Charles M. Terrill, that they would unite and form the company or corporation afterwards formed and called the ““Cuero Land and Immigration Company,” having its domicile and principal place of business in De Witt county. Under this agreement, Schleicher, acting for himself and his two associates, purchased from the administrator of J. O. Wheeler's estate the league of land on which the town of Cuero was afterwards built, to wit, the Valdez y Gonzales league, fronting upon the Guadalupe river, opposite the town of Clinton, and including the ferry-landing at that point, on the east bank of the river. He also purchased from Kelso and wife thirty-three acres on the west or Clinton side of the river, and including the ferry-landing on that side. One of the purposes of the contemplated company was to operate the ferry at this point; and for the purpose of securing for the company, as owners of both banks, the exclusive right of ferriage at that point, Schleicher gave $900 for the said thirty-three acres, which, he supposed, would not sell for more than $50 to $100, if they did not include the ferry-landing. Schleicher also purchased several other tracts of land for the use and benefit of the contemplated company.

On the 25th of December, 1871, a charter, prepared under the provisions of the act of the Legislature, entitled “An act concerning private corporations,” approved December 2, 1871, was signed and acknowledged by said Gustave Schleicher, Fletcher S. Stockdale, and Charles M. Terrill, and on the 7th of January, 1872, it was filed in the office of the Secretary of State. By this charter the contemplated company was formed, under the name of the “Cuero Land and Immigration Company.”

On the 10th of February, 1872, Schleicher conveyed all these lands to the said company.

One of the purposes for which the company was formed, as set forth in its charter, was the “construction and maintenance of a bridge across the Guadalupe river, in De Witt county, near the town of Clinton;” another was “to establish and maintain a ferry across the Guadalupe river, near Clinton, in De Witt county.” At this point a ferry had been kept up and operated for many years, by J. O. Wheeler, who owned the league aforesaid, which included the ferry-landing on the east side of the river, and who rented the landing on the west side. After Wheeler's death, his administrator leased the landing, boat, tackle, &c., to sundry persons, and for the years 1869 and 1870 he leased them to the appellant, Hudson, and one Gay. In the beginning of the year 1871, he sold the boat, tackle, &c., to said Hudson, and gave him the right to use the landing on the east bank till the end of that year. In April of that year, the administrator sold the league of land to Schleicher, as aforesaid, but reserved for Hudson the right to use the ferry-landing on the east bank till the end of the year 1871.

Hudson operated the ferry during the year 1871. At the end of that year, he obtained from the County Court of De Witt county a license for a ferry at that point, for the year 1872, without showing that he was the owner or lessee of either bank, or that he had any license from the owners. In the same way he obtained license for the year 1873. These licenses seem to have been granted without opposition, or any question being raised in regard to them. At this time, (in 1872 and beginning of 1873,) the members of the Cuero Land and Immigration Company had become associated with some others in a bridge company, and were engaged in building, about two miles above the ferry-site, the bridge across the Guadalupe that was contemplated by the charter of the first-named company; and it is probable that for this reason they made no opposition to the grant of license to Hudson, but were willing that he might use the banks on their land until they should be ready to establish the ferry there themselves, for it appears that they had built a ferry-boat, and were using it in the construction of the bridge, and intended, upon the completion of the bridge, to drop this boat down to the ferry-site and operate the ferry themselves.

May 7, 1873, Hudson, Hamilton, and Boston, obtained from the Texas Legislature a special act or charter, empowering them to “erect a pontoon bridge over the Guadalupe river at the town of Clinton, in DeWitt county,” with the right to charge specified tolls--the right to continue fifteen years, with a provision in the act that no other “person or corporation shall construct a bridge within one mile above or below, during the continuance of this charter.” Hamilton and Boston, respectively, transferred their right or interest under the act to Brown and Grafton. In the summer of 1873, Hudson and his associates began to prepare to place their proposed pontoon in the river at the ferry-site, where Hudson was operating the ferry; and at the July Term, 1873, of the De Witt County Court, they applied for an order of court authorizing them to place a pontoon bridge in the river, at the point where the ferry was kept by Hudson, and to fasten the ends of the bridge in the two public highways leading from the ferry.

The Cuero Land and Immigration Company now moved in opposition. As owners of both banks of the river at the ferry-site, they proposed to apply for ferry-license for themselves; but understanding, informally, that the County Court was of opinion that license could not be granted to a corporation, but only to an individual, they made a conveyance of the land, on both banks of the river, to Quincy Davidson, who was associated with them as a member of the bridge company. Previous to this, it had been agreed, by the directors of both companies, that the ferry should be run in the interest of the bridge company, and this conveyance to Davidson was to enable him, as the holder of the Land and Immigration Company's right to the banks on both sides, to obtain the license for the ferry, and to operate it for the benefit of the bridge company. When the application of Hudson and his associates was made, Davidson immediately filed his protest against the order applied for by Hudson and his associates. He represented that he was the owner of both banks of the river; that he was prepared to transport all persons and vehicles across the river at that point upon a ferry-boat; that, if the public interest required it, he would establish a bridge of boats, to be used at low water, and have a ferry-boat in readiness for use whenever the drift wood and high water made it dangerous or unsafe to keep up a floating bridge; and he protested against the proposed order as an invasion of his rights.

At the same term, (July, 1873,) Davidson made formal application to the County Court for license to establish and maintain a ferry at the point in question, representing that he was the owner of the land on both banks, and that he was ready to give bond, and to bind himself to transport “all persons traveling in ambulances, carriages, buggies, on horseback or on foot, who reside in De Witt county, at half the rates that may be fixed by the court, provided such rates are not lower than those now imposed on other ferrymen in De Witt county.”

Hudson et al. filed a counter protest, and insisted on the authority granted by act of May 7, 1873.

The County Court rejected Davidson's application. After the adjournment of the court, to wit, July 30, 1873, Davidson applied to the presiding justice of the court for temporary ferry-license to run till next term of the court; which application was refused. At its August Term, 1873, the County Court made an order, to the effect that Hudson and his associates be authorized to place their pontoon bridge in the river at the site of the ferry which Hudson had been operating, and to fasten the ends thereof in the public road on each side of the river.

The court having refused license to Davidson, and the object of the conveyance to him having failed, he reconveyed or released the land to the Cuero Land and Immigration Company, August 15, 1873. The same day, this company applied to the presiding justice of the County Court for temporary license to operate a ferry at a point immediately above the ferry operated by Hudson, representing that they were the owners of both banks, and were fully prepared, with a good boat, &c., to maintain a ferry. This application was refused. About the same time, they filed an application to the September Term of the County Court for regular license, showing the same grounds for their application. This application was also refused. Previous to this, however, (to wit, August 11, 1873,) the company had given notice to Hudson and his associates that they owned the land on both sides of the river at Clinton, and forbade the construction of a pontoon bridge there, and forbade the using of any part of their land for such purpose.

Hudson and his associates having constructed their pontoon, and placed it in the river at the site of the ferry, fastening the ends in the public road--that is, upon the ferrylandings, at each side--on the 18th of August, 1873, the Cuero Land and Immigration Company instituted this suit. The petition alleges all the foregoing facts, so far as they are material, and that Hudson and his associates were using their pontoon, to the great damage of plaintiffs, and prayed for injunction against Hudson and his associates; for mandamus to the presiding justice of the County Court for a temporary license; and further prayed that, upon final hearing, their rights, as riparian proprietors, to establish and maintain a ferry at that point, might be established, and that a peremptory mandamus might be issued, commanding the County Court...