West v. Probst

• Decision Date: 07 February 1923
• Docket Number: (No. 6872.)
• Citation: 251 S.W. 289
• Parties: WEST et al. v. PROBST et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

251 S.W. 289

WEST et al. v. PROBST et al.^*

(No. 6872.)

Court of Civil Appeals of Texas. San Antonio.

February 7, 1923.

On Motion for Rehearing of Both Parties, February 28, 1923.

Further Rehearing Denied March 28, 1923.

Appeal from District Court, Live Oak County; M. A. Childers, Judge.

Suit for injunction by Joe Probst and others against George W. West and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Dougherty & Dougherty and Beasley & Beasley, all of Beeville, and Denman, Franklin & McGown, of San Antonio, for appellants.

L. D. Stroud, of Beeville, and Gordon Gibson, of Fort Worth, for appellees.

COBBS, J.

This suit was brought by Joe Probst and other appellees, on behalf of themselves and all other property owners in the town of George West similarly situated, against George W. West, the George West Water & Light Company, and the George West Sewer Company, to establish and enforce the alleged rights of plaintiffs in the water and sewer systems built in the unincorporated town of George West by said West individually. A receiver was appointed by the trial court upon application of appellees to take charge of and operate the system. The trial was had before the court without a jury, and the court made and filed findings of fact and conclusions of law. The judgment, among other things, was as follows:

"It is therefore ordered, adjudged, and decreed by the court that the plaintiffs, Joe Probst, I. J. Dowd, Ben S. Brown, and M. G Bartlett, each individually in respect to his said several lots in the town of George West, do have and recover of and from the defendant George W. West and of and from the George West Water & Light Company, a corporation, and the George West Sewer Company, a corporation, the right of easement attached to their said several lots as a dominant estate to take and have and use water from said above-described water and sewer plant for domestic and general purposes at the rate of charge hereinbefore fixed, not exceeding $2.75, and 50 cents for each 1,000 gallons in excess of the minimum for 2,000 gallons, so long as said water and sewer systems are operated by the defendant George W. West or by the said defendant corporations or their assigns or agents, and that the receiver hereinbefore appointed, J. R. Secrest, or any successor to him, as such, shall deliver and surrender to the said defendants said entire water and sewer systems upon demand by said defendants at any time within 20 days from the adjournment of this term of the court, but that until such demand and surrender the said J. R. Secrest, as receiver, shall continue to operate said water and sewer plant systems, care for and control the same, subject to the orders of this court, and to collect and receive said water and sewerage rates hereinabove specified, and the said receiver shall have authority to deny to plaintiffs or any other consumer such water supply and service unless said water rate is paid or tendered for all water used for each and every month and before the tenth day after the first day of each and every month such service is given, and the said receiver is hereby authorized and directed, when so acting, to collect from each and every consumer from and after his appointment, heretofore made, for all arrears due at the rate of $2.75 per month and said rate in excess, and to that end he may demand the same and bring and prosecute any suit necessary therefor, and said receivership is now continued in force under the terms herein specified, pending the appeal herein, if any shall be given on such appeal, as required by law, to suspend the judgment of this court, but, if such supersedeas bond shall not be given, and in the event such property shall not be surrendered to the defendant George W. West and the defendant corporations under the terms hereinbefore recited, then such receiver shall report to the next regular term and each succeeding term of this court all of his actions taken in the premises, all receipts and disbursements, expenses, and the status and condition of the property at that time, to the end that he may be finally discharged.

"It is further ordered, adjudged, and decreed by the court that upon the termination of the receivership, as herein specified, or in the event of either of said defendants executing an appeal and supersedeas bond and demanding possession of said property, that should said defendant George W. West and two defendant corporations, or some one of said defendants, fail or refuse to operate said plant for the supply of water and sewerage service to the consumers in the town of George West, then and in that event the plaintiffs, Joe Probst, I. J. Dowd, and Ben S. Brown, and M. G. Bartlett, may peaceably enter upon the said servient estate, take possession thereof, and operate the same for their own use and benefit, and for all other consumers of water in said town of George West, by such means as they may devise and at their own expense, and take over, use, and care for said property only in such manner as to retain the uses of their said easements at the specified rate, and it is further ordered, adjudged, and decreed that, should the named plaintiffs operate said plant, the same shall be so operated for the benefit of all consumers of water and sewerage service in the town of George West at a uniform rate and in accordance with the regulations hereinbefore pronounced regarding said service, and that they may so continue to so operate, use, and enjoy the same until such time as that the defendants, George W. West, the George West Water & Light Company, and the George West Sewer Company, or some one of them, shall, by action brought in a court of competent jurisdiction, establish their ability and right to take over, control, and operate said plant.

"It is further ordered, adjudged, and decreed by the court that the defendants, George W. West, the George West Water & Light Company, and the George West Sewer Company, each a corporation, be, and the same are hereby, perpetually restrained and forever enjoined from removing, injuring, or in any manner impairing the said uses of said property, and that they, said defendants, and each of them, shall be, and are hereby, restrained from removing and taking away from its present location any of the parts of said water and sewerage plant or anything or things necessary and heretofore used in supply to the consumers of the town of George West.

"It is further ordered, adjudged, and decreed by the court that, in the event all or either of the defendants George W. West, George West Water & Light Company, and the George West Sewer Company, corporations, shall undertake to control and operate said plants, and so long as they shall do so as hereinbefore provided, they and each of them are hereby enjoined from shutting off or denying water supply and sewerage to any consumer, including the four named plaintiffs, when such consumer shall pay the rate herein established.

"It is further ordered, adjudged, and decreed that the plaintiffs shall have all necessary writs and processes to enforce this judgment, and that plaintiffs shall have, and do hereby have and recover, all costs incurred in the prosecution of this suit of and from the defendants, George W. West, George West Water & Light Company, and the George West Sewer Company, the last two named corporations."

It is not necessary to describe the pleadings of the parties, offensive or defensive, as they are quite sufficient to clearly present the theories of either party.

The first contention made by appellant is that the court erred in adjudging to plaintiffs an easement in their respective lots to take and use water from their respective systems because there is no evidence to support such a judgment. The material provisions of the deed substantially provided, among other things: (a) Within 12 months the grantee shall erect improvements in value not less than the purchase price; (b) shall connect the improvements, including all baths, closets sinks, etc., with the sewer system in said town within 30 days after said improvements are occupied; (c) and after the sewer mains are laid in a street or alley in the rear or front of the lot the grantee shall not establish or allow any privy, vault, or other outhouse on said property; (d) and thereafter shall not dig, erect, or allow on the land any cesspool, cistern, or other thing in which water may collect to be taken or used. From these conditions in the deed, in connection with other verbal and written declarations, contemporaneously made, inducing the sale and purchase of the land, it is claimed: (1) An implied grant, arising from necessity; (2) an express grant according to the terms of the uniform deed read in the light of actual conditions existing at the time of its execution; and (3) because of the representation of West acted upon by plaintiffs to their detriment in making the purchase West is estopped to deny that the easements were in fact appurtenant to the lots purchased.

It is further contended the provisions for forfeiture in the event of violation of any of the above conditions grant a negative easement to each owner of any lot to have the conditions faithfully carried out and performed with reference to each lot, with the right to bring suit to enforce performance granting the corresponding right of forfeiture "only in the grantor or his heirs."

From a careful examination of all the authorities presented by both parties it is clear to us that there arises from the covenants in the deed and the declarations of the grantor, verbal and written, in connection with the deed, an easement for the benefit of those who hold conveyances to secure the benefits, at least by implied grant, arising from necessity as long as the system exists. "It is admitted that on or about the time West placed the lots in town site on the market he had prepared and printed in large numbers a map or plat of said...