Old River Rice Irr. Co. v. Stubbs

• Decision Date: 14 April 1911
• Citation: 137 S.W. 154
• Court: Texas Court of Appeals
• Parties: OLD RIVER RICE IRR. CO. v. STUBBS.<SMALL><SUP>†</SUP></SMALL>

137 S.W. 154

OLD RIVER RICE IRR. CO. v. STUBBS.^†

Court of Civil Appeals of Texas.

April 14, 1911.

Rehearing Denied May 4, 1911.

Appeal from District Court, Chambers County; L. B. Hightower, Judge.

Action by the Old River Rice Irrigation Company against F. H. Stubbs. From a judgment for defendant, plaintiff appeals. Reformed and affirmed.

Davis & Marshall, Lane, Wolters & Storey, and Wm. A. Vinson, for appellant. Dougherty, Conley & Gordon, for appellee.

PLEASANTS, C. J.

This suit was brought by appellant against appellee to recover the sum of $3,400 alleged to be due as water rent for the year 1909 on a crop of rice grown by appellee on his farm of 425 acres adjoining appellant's irrigating canal in Chambers county. It is alleged in the petition that appellant furnished water for said rice crop at the special instance and request of appellee, and that the reasonable charge for said water was the sum of $8 per acre, for which amount, aggregating the said sum of $3,400, judgment is prayed. In addition to a general demurrer and general denial, the defendant's answer contains the following special plea: "And, specially answering herein, this defendant would respectfully show to the court that plaintiff is a corporation duly incorporated and doing business under and by virtue of the laws of the state of Texas, with its principal office in Chambers county, Tex., and that on or about the 10th day of November, 1903, he and plaintiff entered into a written contract, by the terms of which and in consideration of the covenants therein contained, to wit, that he, the said defendant, would deed to the said plaintiff a strip of land 40 feet wide over his 427.7 acres, a part of the Charles Tilton survey, situated on the west side of Old river about 5 miles above its junction with Trinity river, in Chambers county, Tex.; that it, the said plaintiff, would furnish him his equal pro rata of water for irrigating his rice crops during the farming seasons, he paying the reasonable water rent therefor; that, acting under and by virtue of said contract, he did in fact deed to the said company for its canal purposes the land hereinabove described, which said company took possession of said land, and on or about the year 1903 constructed its canal over and across said land, and since said time has been using and operating the said canal for the purpose of irrigating rice crops raised and grown on the adjacent lands to its said canal; that on or about the time that plaintiff and defendant entered into said contract, and before any water was furnished thereunder, it was understood and agreed by and between plaintiff and defendant that "a reasonable water rent" as provided for in said contract should be construed to mean one-fifth part of the said rice crop raised each successive year; that beginning with the rice season of 1906, and continuing through every crop season thereafter, this defendant has grown and raised a rice crop on his said lands hereinabove described and adjacent to said canal; that during the seasons of 1906, 1907, and 1908 the said plaintiff company watered and irrigated his said rice crop for one-fifth of the crop grown on his said land, which said rent, plaintiff alleges, is a reasonable water rent under the terms of said contract, and was the rent theretofore agreed upon by and between said plaintiff and defendant." Defendant also alleged that he had tendered to the plaintiff one-fifth of his crop for the year 1909, which tender was by the plaintiff refused. He also, by way of cross-action, prayed for the recovery of the sum of $1,163.90 damages by reason of the alleged failure of the plaintiff to furnish him an adequate supply of water to water his Japan rice for the year 1909. To the answer of defendant plaintiff interposed several special exceptions, and answered thereto by general denial and by special plea that defendant had received his pro rata of water for the year 1909, but that, owing to an invasion of salt water in the latter part of the season, the quantity of fresh water at plaintiff's disposal was greatly lessened, and that such occurrence was a matter over which it had no control.

On the trial of the case by the court without a jury, judgment was rendered that defendant should pay, and the plaintiff should receive, one-fifth of the rice crop grown upon defendant's land, as rental for the water furnished him by the plaintiff, and that defendant should recover from the plaintiff the sum of $857.11 damages on account of the failure of the plaintiff to furnish an adequate supply of water for watering defendant's Japan rice crop for the year 1909.

At the request of appellant, the trial judge filed the following findings of fact and conclusions of law:

"The court finds:

"That the plaintiff is a quasi public corporation, duly incorporated under and by virtue of the laws of the state of Texas, and is engaged in the business of furnishing water to the public for the purpose of irrigation, and that it maintains a canal in Chambers county, Tex., and through the following described lands of the defendant, F. H. Stubbs, to wit, 427.7 acres out of the Charles Tilton survey, situated on the west side of Old river about five miles above its junction with Trinity river, in Chambers county, Tex., and that said canal is also adjacent to 80 acres of land out of the Charles Rector survey in said county, belonging to said defendant."

That on or about the 10th day of November, A. D. 1903, the plaintiff and defendant entered into a written contract, by the terms of which and in consideration of the covenants therein contained, which said agreement and covenants are expressed in a deed from defendant to plaintiff for a right of way 40 feet wide for its canal over 427.7 acres of land belonging to said defendant, said land being situated in Chambers county, Tex., and a part of the Charles Tilton survey, on the west side of Old river and about five miles above its junction with Trinity river in said county, and said agreement and covenants being as follows, to wit: That in consideration of such right of way "it is agreed on the part of said canal company to furnish the said Stubbs his equal pro rata of water for irrigating his rice crop during the farming season, he paying the reasonable water rent therefor. A completion of said canal over said land, together with the other stipulations herein stated, shall be considered an adequate consideration for the right of way over said lands herein conveyed." That the defendant company took possession of said right of way and constructed its canal thereon and across said land, and since said time has been using and operating the said canal for the purpose of irrigating rice crops raised and grown on the land reached and watered by said canal.

That although the said contract above set forth in section No. 2 hereof is in the singular —that is, that the company would furnish defendant his equal pro rata of water for the farming "season"—the same was a mutual mistake, and that plaintiff and said defendant agreed and understood that the said contract was an obligation to furnish water to said defendant for all farming seasons, and that said contract has been so interpreted by the parties and that said canal company did as a matter of fact, as soon as the canal was constructed and completed to defendant's land, about the year 1905, and for every crop season since that time, to wit, for the years 1906, 1907, 1908, and 1909, furnish him water thereunder.

That before any water was furnished under said contract to defendant said plaintiff and defendant fixed, determined, and construed a "reasonable water rent" as provided for in said contract as one-fifth of the rice crop grown by defendant upon the land irrigated by said canal company for each season, and that this fact is established by the undisputed evidence.

That during the crop season of 1909 defendant planted 250 acres of his said land in Honduras rice and 175 acres in Japan rice, and that the same came up to a good stand and was cultivated in a good and workman-like manner. That demand was made by defendant upon plaintiff company for his pro rata of water, as and when said crop needed and required same, and that plaintiff company complied therewith and furnished sufficient water for watering his Honduras rice, and that he raised 3,017 sacks of Honduras rice on said 250 acres, but that the defendant company failed, refused, and neglected to give defendant his equal pro rata for the second watering of his 175 acres of Japan rice, and that it did not give him any water at all on 30 acres of his said Japan rice, and that, had said plaintiff exercised ordinary care in the matter of the distribution of said water to said 175 acres of said defendant, the said defendant would have received a...