Odneal v. City of Sherman

• Citation: 14 S.W. 31
• Parties: ODNEAL <I>et ux.</I> v. CITY OF SHERMAN <I>et al.</I>
• Decision Date: 06 May 1890
• Court: Supreme Court of Texas

14 S.W. 31

ODNEAL et ux. v. CITY OF SHERMAN et al.

Supreme Court of Texas.

May 6, 1890.

Commissioners' decision. Appeal from district court, Grayson county.

Hare, Edmundson & Hare, for appellants.

HOBBY, J.

Appellants, who are husband and wife, sought to enjoin the city of Sherman, incorporated under the general incorporation act, and W. C. Connor and others, who had contracted to furnish said city a system of water-works, from boring a large number of wells upon a certain strip of land, 50 feet wide and about 1,000 feet long, which appellants had conveyed off their homestead to the said city a few days before "for street purposes, and none other," the deed expressly stipulating that the same rights, and no higher, should pass to the city than would have been acquired had the city procured the condemnation of said strip for street purposes alone; the consideration paid being $550. Appellants alleged in their petition that, believing that the city of Sherman had no use for this property as a street, and that the city council desired it only for the purpose of turning the same over to the water-works contractors, they had refused to deed the same to the city except upon payment of a large sum, amounting to some thousands of dollars; that subsequently they were informed by the mayor of said city, and by at least one of the aldermen thereof, that, as a matter of fact, it was untrue that the said city had bound itself to permit the contractors to sink wells upon the said strip, and, believing such representations to be true, the deed was executed upon receipt of the said sum of $550; that said deed would not have been executed had complainants known, what has since been ascertained to be true, that the city's only object for acquiring said land was to deliver the same to the water-works contractors to be used for water purposes as contradistinguished from street purposes; that if, as a matter of law, the execution of said deed has conferred upon the city the right to use said land for water purposes, they prayed that said deed be canceled or reformed, because they charge that they were induced to execute the said deed by the fraudulent representations of the city's officers that the said city had not agreed with or promised to give the water-works contractor permission to sink wells upon said lands, when as a matter of fact it had been fully understood all the while between the said contractor and the mayor and city council of said city that such right would be guarantied to said contractors so soon as the city should acquire an interest in said lands by condemnation or otherwise; that they were led by the fraudulent representations, and the concealment of their true intentions on the part of the said officers, to believe that the said officers had made no promise to the said contractor, and would attempt to confer no rights upon him, but would leave all future controversy over the right to use said lands for the purpose of sinking wells thereon to be settled by complainants and the contractor without any interference on the part of the city; that immediately after the execution of said deed the water-works contractor, with the full knowledge, approval, and consent of the city, began to sink a large number of wells upon the said strip of land, and is making preparations to attach to said wells the powerful water-works machinery, which will exhaust not only the water underlying said strip, but the water under ...