Imperial Irr. Co. v. Jayne

• Decision Date: 23 June 1911
• Citation: 138 S.W. 575
• Parties: IMPERIAL IRR. CO. v. JAYNE.
• Court: Texas Supreme Court

138 S.W. 575

IMPERIAL IRR. CO. v. JAYNE.

Supreme Court of Texas.

June 23, 1911.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Joe Jayne against the Imperial Irrigation Company and others. There was a judgment of the Court of Civil Appeals (127 S. W. 1137) reversing a judgment for defendants and rendering a judgment for plaintiff, and defendant named brings error. Judgment of Court of Civil Appeals reversed, and judgment of District Court affirmed.

O. W. Williams, Turney & Burgess, and Denman Franklin & McGown, for plaintiff in error. A. M. Blackmon and W. C. Jackson, for defendant in error.

DIBRELL, J.

This suit was brought by Joe Jayne, as plaintiff, against the Imperial Irrigation Company, A. D. Jamison, and Ross Allison, as defendants, to recover section No. 2 of block No. 9, Houston & Great Northern Railway survey, in Pecos county, Tex., consisting of 591.15 acres, and for damages in the sum of $10,000, alleged to have resulted from the construction of a dam or embankment on the land sued for. There was a prayer for an injunction to restrain defendants from maintaining upon plaintiff's land the dams, embankments, locks, gates, canals, and flumes placed thereon by defendants, and to prevent them from flooding or covering with water his land.

The defendant, Imperial Irrigation Company, answered by general denial, plea of not guilty, and by special plea, in substance, that it was organized and incorporated under and by virtue of the laws of Texas on July 18, 1908, with authority and power to build, construct, and use canals, reservoirs, reservoir sites, dams, dam sites, flumes, and ditches for irrigation and other purposes in the county of Pecos and other counties in the state of Texas, and to appropriate for such purpose the unappropriated waters of the Pecos river and other streams, and the storm and rain waters of the Santa Rosa, Santa Lucia, and other ravines, depressions, and watersheds in said county of Pecos for such purposes, and to an easement of a right of way one hundred feet in width for all canals, flumes, ditches, dam sites, etc., across, through, and over all public and free school lands of the state of Texas, and also an easement in, on, over, and through the public free school lands, of so much thereof as may be declared on and appropriated by said company for the use of dam sites and storage reservoir sites, whether the same be intended to be used for storage of water derived from streams and living water sources, or to be used for the impounding of storm and rainwater, and to acquire by purchase or otherwise the rights and interests of other parties in and to same. The Imperial Irrigation Company, further pleading, specially alleged that intending and desiring to avail itself of the powers and privileges conferred on it by law and for the purpose of constructing canals, dams, flumes, ditches, and reservoirs in Pecos county for irrigation, and other purposes, did on the 1st day of August, 1908, duly file its sworn statement of appropriation in writing and accompanied with maps as required by law in the office of the county clerk of Pecos county, Tex., and on September 12, 1908, filed in the office of the Commissioner of the General Land Office of the state of Texas at Austin a copy of said appropriation, and began in good faith on August 1, 1908, the construction of the canals, flumes, ditches, dams, and reservoirs provided for and described in said appropriation. This appropriation embraced those portions of the land in controversy in this suit hereinafter set out. This defendant further alleged that long before it made the appropriation on August 1, 1908, one D. Zimmerman on January 31, 1908, made and declared his appropriation in the manner required by law of the waters and lands including the canals, dam sites, reservoir sites, and any and all other waters and land involved in this suit, which declaration was properly filed in the office of the county clerk of Pecos county and in the office of the Commissioner of the General Land Office, and by the terms of such declaration the said D. Zimmerman acquired all of the waters and lands, the canals, dam sites, and reservoir sites involved in this suit, and now claim by the Imperial Irrigation Company, and, immediately after making such declaration and appropriation, entered into the possession of the said lands and waters, and began at once in good faith to construct the canals, ditches, dams, and reservoir sites as required by law until July 28, 1908, at which time for a valuable consideration the said Zimmerman sold, transferred, and conveyed to the Imperial Irrigation Company said lands and waters, canals, dam sites, and reservoir sites. By reason of its purchase from Zimmerman of the land in controversy, the water, and other rights acquired by him under his said declaration, and by reason of its subsequent declaration and appropriation, as heretofore set out, it acquired a portion of the land involved in this suit, amounting to 404.43 acres, embraced in its dam site and reservoir site and .4 acres of section 2, block No. 9, Houston & Great Northern Railway Company survey of the section sued for. Said two tracts of land were set forth with minute description and field notes. The Imperial Irrigation Company made all the allegations requisite to bring itself within the full benefits of the irrigation act of March 9, 1895 (Acts 24th Leg. c. 21), and, in addition to the foregoing pleas, improvements in good faith were suggested and an appropriate plea for the value of such improvements was made.

The cause was tried by the court without a jury and judgment rendered for the plaintiff, giving him possession of section 2 of block No. 9, Houston & Great Northern Railway Company survey in Pecos county, consisting of 591.15 acres of land subject to a perpetual easement for a reservoir and dam site in connection therewith of 404.43 acres and a perpetual easement for an irrigation canal and right of way on a part of said section of .4 acres of land. The remainder of the section of land was set aside to the plaintiff with a writ of restitution, and the perpetual easement awarded the Imperial Irrigation Company was fully protected by the court's judgment. The defendants Ross Allison and A. D. Jamison were properly disposed of; they claiming no interest in the subject-matter of the suit.

In order that a clear understanding of the issues involved in this controversy may be had, we set forth the material findings of fact made by the trial court as follows:

"(1) On June 4, 1909, section No. 2 of block 9, Houston & Great Northern Railway Company in Pecos county, Tex., was public school land, and on the market for sale as such, having been duly surveyed, appraised, classified, and advertised for sale.

"(2) On June 30, 1909, the said tract of land was duly awarded to plaintiff, Joe Jayne, by the Commissioner of the General Land Office under his application to purchase the same theretofore duly and legally made and having complied with all the requirements of the law.

"(3) On August 1, 1909, the said Joe Jayne went into possession of and became an actual settler on said tract of land, being the land described in plaintiff's petition herein, and on August 11, 1909, made and filed in the General Land Office his affidavit of settlement as required by law, and has continuously since said date occupied and made his home upon said land.

"(4) The defendant Imperial Irrigation Company is a corporation duly organized under the laws of Texas by charter filed in the office of the Secretary of State on July 6, 1908, for the following purposes, to wit: The purpose for which it is formed is that set forth in article 3125, Sayles' Texas Civil Statutes 1897, namely: `The purpose of constructing, maintaining and operating canals, ditches, flumes, feeders, laterals, reservoirs, dams, lakes and wells, and of conducting and transferring water to all persons entitled to the same, for irrigation, mining, milling, to cities and towns for waterworks and for stock raising and of building storage reservoirs, for the collection and storage of water for the purposes aforesaid and to do all things and exercise all powers allowed by law for carrying out the purpose.'

"(5) The said charter expressly authorized the said defendant corporation to conduct its business and operations in Pecos county, Tex., where also its principal office is located.

"(6) The defendant Imperial Irrigation Company is in possession of that portion of said survey No. 2 aforesaid as admitted and as described in their answer herein by metes and bounds, claiming an easement thereon for a storage reservoir and canals in connection with their irrigation project, basing their rights to said easements on the following facts only, to wit: (a) An appropriation made by D. Zimmerman as evidenced by affidavit and map filed for record with the county clerk of Pecos county, Tex., on January 31, 1908. (b) A written assignment of all of the rights of the said D. Zimmerman under and by virtue of the aforesaid appropriation made to the said Imperial Irrigation Company of date July 28, 1908, and filed for record in the county clerk's office of Pecos county on August 17, 1908. (c) An appropriation made by said Imperial Irrigation Company as evidenced by affidavit and maps filed for record with the county clerk of Pecos county, Tex., on August 1, 1908. (d) That since said appropriations the work of construction has been prosecuted diligently and continuously by the respective parties.

"(7) On the question as to whether or not that portion of plaintiff's survey 2 in use by defendant, Imperial Irrigation Company, in connection with its Imperial storage reservoir, is indispensable to said reservoir, I find as follows: (a) It would be possible to construct a dam in such manner as to eliminate all of said survey 2 from said reservoir, but to do so is impracticable for the following...