vember, 1917. The nature of the suit and the facts upon which relator asks for a writ of mandamus are stated in the application as follows: “(a) The Matagorda Canal Company averred: That it was the owner of water rights by statutory appropriation which authorized it to take water from the Colorado river for the purpose of irrigating 4,000 acres of land. That its pumping plant was situated on a tributary of the Colorado river on the east side thereof, and its canals extended to lands east of the river. That its right to use the waters of the Colorado river for irrigation was based upon a statutory filing made in December, 1900. "(b) That the defendant Markham Irrigation Company was a junior appropriator, and that it, and other defendants named, had constructed an irrigation system on the west side of the river, and above the plaintiff, with canals, intakes, and pumping plants, and that it had so constructed its canals and intakes as to enable it to divert the entire flow of the Colorado river in seasons of dry weather. That it had stopped up natural water courses and drains by which the water would return to the Colorado river from certain lakes and ponds and sloughs on the west side of the river. That through this system of intakes, connections, and canals, the defendants were controlling the entire flow of the river and diverting it through their canals to the irrigation of lands west of the river, so that the plaintiff was unable to procure a sufficient volume of water to enable it to carry on its business as an irrigation system. "(c) That because of this wrongful diversion the plaintiff had suffered damages in the sum of $26,000 during the years of 1915, 1916, and 1917. That at the time of the filing of this suit the plaintiff was unable to make arrangements with tenants for furnishing water for the rice crop during the year 1918, since the control of the river by the defendants rendered it impossible for the plaintiff to furnish water to its tenants during the continuation of the conditions complained of. "(d) That the plaintiff's plant and canal system, together with its water rights, was worth approximately $75,000. That it would be compelled to allow its plant to remain idle as long as the defendants were permitted to continue controlling and diverting the flow of the river as aforesaid. That its only source of revenue was from the sale of water to tenants on its canal. That the wrongful acts of the defendants would not only deprive the plaintiff of revenue, but would cause its property to waste and deteriorate and become worthless; and, in addition to the specific damages sought for prior years, the plaintiff prayed for damages to the extent of the value of its plant, $75,000, or for injunction, and such other relief as would prevent the defendants from continuing their wrongful appropriation and diversion of the waters of the river." The defendants answered, filing pleas in abatement and urging that the suit should be referred to the board of water engineers for determination, under the provisions of the irrigation statute passed by the Thirty-Fifth Legislature in 1917. At the December term of court, the case was called, and the plaintiff announced ready for trial. The defendants, however, procured a continuance on account of the absence of one of their counsel. The case was again called for trial at the June term of the district court of Matagorda county, and on July 1st the plaintiff announced ready for trial, and the defendant Mark- · ham Irrigation Company presented certain pleas in abatement which were heard by the court; and thereupon the court rendered the following order: "On this day coming on to be considered the pleas in abatement, motions, and exceptions filed by the Markham Irrigation Company, and the other defendants, and evidence having been offered on the pleas in abatement of the pendency of the same controversy before the board of water engineers of the state of Texas, and the court having considered the same, it is ordered and considered by the court: "(1) That the pleas in abatement of the Markham Irrigation Company and of the other defendants, of the pendency of the proceeding before the board of water engineers, would be overruled; the court finding that this is not an action of the character defined by the statute, to which the board of water engineers is given exclusive jurisdiction, or over which, under the circumstances of this cause, said board has ex-. clusive jurisdiction, and this court finds that the pendency of the proceeding shown to be pending before the board of water engineers is not sufficient to oust this court of jurisdiction, nor does the pendency of this proceeding before the board of water engineers constitute any ground for the abatement of plaintiff's suit; to which the said defendants except. "(2) That the motion of the defendant Markham Irrigation Company, and the other defendants, to transfer this controversy, as to the water rights, to the said board of engineers, would be overruled, to which said defendants except. "(3) That the other pleas in abatement and the exceptions filed by the defendants would not be passed upon by the court at this time, but would be continued by the court without prejudice. "(4) That it appearing from an examination of the plaintiff's and intervener's petitions, and the answers of the defendants, that the injunc tion and damages claimed in said petitions would depend upon the ascertainment and determination of the water rights of the respective parties to this suit, and it appearing to the court that an adjudication and determination of these waters is now pending before the board of water engineers of the state of Texas, and that all parties to this suit were parties to and participating in said proceeding before the board of water engineers of the state of Texas, therefore this court, on its own motion, will continue this case until said board of water engineers has decided and determined the water rights of the parties to this suit in the proceeding now pending before that board; and said judgment has become final; that this is done by this court as a matter of expediency and in order to have the benefit of the decision of said board of water engineers on that question, and also in order to have the benefit of the evidence tak left without water and unable to fulfill any contracts that it might make with its tenants and water users. That it very frequently hap pens that the dry season of the year is that season just before the maturing of the rice in June, July, and August, and it becomes absolutely im en in that proceeding, and in order to make a more intelligent and accurate decision of the water rights involved in this suit; that this court would not at this time determine whether the ruling of said board of water engineers of the state of Texas would be conclusive or not, the court retaining that question for considera-perative to have a supply of water at this criti tion and determination later. "To which rulings of the court the plaintiff and intervener then and there excepted, urging as their grounds of exception the following, to wit: cal time in order to mature and save the rice crop. Neither the plaintiff company nor water users along its canal could afford to take the great hazard necessary, including the expense and labor that will be incurred, in planting the rice crop and bringing it to that stage when it would have to have water immediately or be de stroyed, under the uncertain conditions prevailing and with the absolute knowledge that if there was a scarcity of water the defendants would divert and use the entire flow of the river for their purposes. Therefore the plaintiff's canal and pumping plant have remained idle during the year 1918, and will continue to remain idle until this controversy is determined and the defendants have been restrained from diverting and using the water in the river as averred in plaintiff's petition. "IV. That the enforced disuse of the plaintiff's pumping plant and canal system works irreparable injury, in this: "Its pumping plant consists of valuable machinery which will rust and deteriorate during continued and forced idleness. That any plant equipped with complicated machinery of the character used in a pumping system will de teriorate rapidly from disuse. That its canal will deteriorate more rapidly if not used. That it bas had valuable tenants upon its canal system who will seek other employment and not make contracts with it again, and they will be permanently driven away from its canal by the continued and forced disuse of the canal system. "I. That this suit was instituted in the district court of Matagorda county in November, 1917, for the purpose of recovering the damages that have heretofore been sustained by the plaintiff, Matagorda Canal Company, on account of the diversion of water and other wrongs, injuries, and trespasses fully set out in the plaintiff's first amended original petition filed herein on January 21, 1918. The suit was instituted with the hope that it could be tried and relief granted at the December term of this court and before the rice crop for the year 1918 would be planted, and counsel for the plaintiff appeared in this court on the 21st day of January, 1918, and announced ready for trial and urged upon the court the importance of having a trial and disposition of the controversy at that time. The defendants moved to continue the case upon the ground that one of their counsel was unable to attend court, and the court granted a continuance upon this ground. "II. At that time the plaintiff urged upon the court that the controversies involved in this suit were continually recurring from year to year; that the Matagorda Canal Company was the oldest appropriator of water from the Colorado river in Matagorda county; that, notwithstanding this fact, a condition of affairs had been brought about which rendered it impossible for the plaintiff to plant its crop for the year 1918; that it had no assurance that it would get water to furnish the tenants along its canal on account of the conditions then main-board of water engineers will pass on the mattained by the defendants on the west side of the river, and fully explained in the plaintiff's pleadings; that, if the plaintiff went forward and contracted with the tenants and a crop was planted, it would probably become necessary at the height of the crop season to apply for injunction and other restraining orders to prevent the defendants from diverting water which it would be absolutely necessary for the plaintiffs to have in order to furnish their tenants water to mature any rice crop that might be planted along and upon the canal. Notwithstanding these representations to the court showing the great importance of trying this case in January, 1918, it was continued because of the illness of one of defendant's counsel. "III. The Matagorda Canal Company has not planted any crop during the year 1918, nor has it contracted with tenants contiguous to its canal to furnish water. Because of the conditions prevailing and fully described in plaintiff's amended original petition, it cannot with safety agree and promise to furnish water through its canal for the very good reason that at a dry season, or at a time when there is a scarcity of water, all the water in the river can and will be diverted to the west side of the river by the defendants, and the plaintiff, though enjoying as a matter of law superior water rights, will be "V. That the alleged controversy between the board of water engineers is of no importance in determining the questions involved in this suit. That it is indefinite and uncertain when the ters before it. That after long delays they may make a finding under the statute, but this finding will not be binding upon this court, nor conclusive of any of the issues involved in this litigation, and that, if an appeal should be made from the finding of the board of water engineers passing upon any controversies between the parties to this litigation, such appeal would be brought to this court and could not be consolidated with the present case. That this case, under the court's order, will remain on the docket until a final judgment has been entered in the hearing before the board of water engi neers, and in any appeal that may be taken from the findings of that board. That, in the ordinary course of litigation of this character, a hearing before the board of water engineers and final judgment by that board would not likely be had for several months. That an ap peal to the district court by either party from a finding by the board might not be heard for a year thereafterwards. That a further appeal from this court to the Court of Appeals and the Supreme Court might delay a final judgment, and the proceedings now pending before the board of water engineers, for a period of from anywhere from five to seven years, during which time the present case remains on the docket, and the plaintiff's prayer for damages already sustained remains untried, its property of the cause agreeably to the usages and deteriorates, its canals fill up, its tenants and principles of law. water users scatter. These things would amount to a practical destruction of the plaintiff's properties; although it is the first water user in Matagorda county, the defendants will be permitted to maintain a status unlawfully taken, from which it appears from their pleadings they are raising crops worth from $500,000 to $1,000,000 this year. "VI. That the plaintiff has a perfect right to have a speedy determination of this case upon the issues tendered by its pleadings, agreeable to the principles and usages of law. That it works grave injustice and irreparable injury to delay it pending a final judgment in the hearing of the matters before the board of water engineers. "Wherefore, plaintiff excepts to the action of the court in entering the above order, and here now tenders its bill of exceptions for approval. "Sixty days after adjournment being allowed to either party in which to file bills of excep tions. The application is properly verified by the affidavits of the president and the attorney for the relator company. We are not called upon by this application to construe the irrigation statutes of this state, nor to determine what weight or conclusiveness should be given by the courts in a suit of this character to the finding of the board of water engineers upon the respective rights of the claimants to the use of the water of the Colorado river. The trial court has not passed upon these questions, but, in his order continuing the cause, expressly reserves them for determination upon the trial of the cause. [1, 2] The only question for our decision is whether the action of the court in continuing the cause for the purpose of obtaining the findings of the board of water engineers amounts to a refusal by the court to proceed with the trial of the case agreeably to the usages and principles of law. Unless we so find, this court is without power or authority to issue the writ of mandamus. Vernon's Sayles' Civil Statutes, art. 1595; Halliburton v. Martin, 28 Tex. Civ. App. 127, 66 S. W. 675. The discretion of a trial judge in the method of the control and disposition of the docket of his court is large, and unless the continuance of a cause by the judge upon his own motion is, under the circumstances, so unreasonable as to be a clear abuse of his discretion, such continuance cannot be regarded as a refusal to proceed with the trial the application above set out show such [3] We do not think the facts disclosed in abuse of discretion by the trial judge as Would justify this court in holding that by his order continuing the case he had refused to proceed with its trial agreeably to the principles and usages of law. The order recites that it is made as a matter of expediency, and to obtain the benefit of the findings of the board of water engineers upon the respective rights of the parties to the appropriation of the water of the Colorado river. These findings might be of material assistance to the court in determining some of the questions presented in the case, and this is especially so as to the issue of whether relator is entitled to the injunction which the answer of the respondent shows is one of the purposes of the relator's suit. It does not appear how long the case will be con- After a careful consideration of the application, we have reached the conclusion that it should not be granted, and it has been so ordered. A landlord who, after ousting a tenant from the premises for nonpayment of rent, takes possession of the tenant's personal effects found on the leased premises, and excludes the guilty of conversion. tenant from access thereto temporarily, ir 3. TROVER AND CONVERSION 22-RIGHT OF ACTION-REFUSAL OF TENDER AS DEFENSE. the premises has taken possession of the lesWhere a lessor upon ousting lessee from see's personal property, the lessee did not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes being made between the time he closed his office in the afternoon and the time he returned to it the following morning. When Henderson returned on the following morning he attempted to enter the room, but was unable to do so for the reason that the key he carried would not unlock the door on account of the change in the lock. When Taylor changed the lock. he took Henderson's sign from the hall opposite the door and placed it in the room. By reason of the exclusion of Henderson from the office he was excluded also from access to and pos session of his library, sign, office furniture, safe, account books, stationery, and overcoat, which were in the office. Later, and during the same day, Taylor tendered to Henderson his overcoat, which was accepted. The evi dence shows further that thereafter Beggs offered Henderson permission to take from the room all his personal effects, which offer was declined, and later notified him that all his personal effects found in the office at the time of the ouster had been stored at his expense and subject to his order, but Henderson again declined to receive any of the articles. Henderson instituted this suit against Beggs to recover the value of the remainder of said personal effects which were in his office at the time he was so ousted of pos session, upon the theory and upon allegations that Beggs had wrongfully converted it to his own use. He also sued for damages to his business as a practicing attorney by reason of the ouster of possession of his office and personal belongings contained therein, which was alleged to be wrongful. Upon Appeal from District Court, Tarrant Coun- the trial the trial judge instructed a verdict ty; Ben M. Terrell, Judge. Action by A. A. Henderson against George Beggs, Jr., for conversion. From a judgment for defendant on an instructed verdict, plaintiff appeals. Reversed and remanded. James C. Scott and Stanley Boykin, both of Ft. Worth, for appellant. L. M. Levy and W. L. Evans, both of Ft. Worth, for appellee. DUNKLIN, J. George Beggs, Jr., as agent for the owner of a building in Ft. Worth, rented an office therein to A. A. Henderson, a practicing attorney, who occupied it as his law office from November 7, 1914, until February 26, 1915, when he was ousted by Beggs, acting through one Taylor, his authorized agent and representative. The reason for such ouster was that Henderson was in arrears with his rent payments in the sum of $8. Taylor had the combination in the lock to the door of the office changed, and the door locked, during Henderson's absence and without his knowledge or consent; such change in favor of the defendant, and from a judgment predicated upon a verdict returned in compliance with that instruction, plaintiff has appealed. Among other defenses, defendant specially pleaded the written lease under which plaintiff held possession of the room, and claimed justification of the acts complained of by virtue of the following stipulation in the lease: "If said rent, or any part thereof, shall remain unpaid for two days after it shall become due on the first day of any term of one month; derlet said leased premises, or any part thereor if said lessee shall assign this lease, or unof, or if said lessee's interest therein shall be sold under execution or other legal process, without the written consent of said lessor, his heirs or assigns first had, it shall be lawful for said lessor, or his agents, heirs or assigns, without notice or demand, into said premises to re-enter, and the same to have again, repossess, and enjoy as in his former estate; and thereupon this lease, and everything therein contained on the said lessor's behalf to be done and performed, shall cease, determine and be utterly void." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] By reason of that stipulation in the lease, and the default in payment of rent noted above, defendant incurred no liability for the ouster of plaintiff from his office room. Singer Sewing Mach. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, 60 L. R. A. 143, 97 Am. St. Rep. 901; Brunson v. Dawson St. Bk., 175 S. W. 438. [2] But the same cannot be said of the act of the defendant in taking possession of the personal effects belonging to plaintiff situated in the office, and excluding plaintiff of access thereto and possession thereof temporarily, as such acts amounted in law to a conversion, which is defined by Mr. Cooley in his work on Torts (2d Ed.) p. 524, as follows: "Any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion." [3] Plaintiff owned the right of possession and access to such personal property at any and all times, and the act of the defendant in locking up such property in the room and denying plaintiff access thereto, except by the consent and with the permission of the defendant, certainly was a wrongful exertion of dominion over the property inconsistent with plaintiff's right of dominion. The stipulation in the lease of the right of the defendant to re-enter the room did not purport to give the right to take possession of plaintiff's library, furniture, and other personal property therein situated. The plaintiff had the legal right to treat such acts of the defendant as a conversion of such personal property, and to sue for damages therefor and also to refuse the tender of the property to him after the conversion was complete, without in any manner abridging his right to recover damages for the conversion. See Crawford v. Thomason, 53 Tex. Civ. App. 761, 117 S. W. 181, and authorities there cited, in which case a writ of error was denied by the Supreme Court (118 S. W. xv). That exception was sustained by the trial court. But, notwithstanding that ruling, the defendant made no objection to the testimony introduced by the plaintiff, fully proving that the acts complained of, alleged to be a conversion, were in fact committed by Taylor as the agent of Beggs; in other words, the defendant did not object to such testimony, or move to exclude it upon the ground that it was at variance with the allegations contained in the original petition, and that the allegations contained in the trial amendment constituted a new cause of action, which was barred by the statute of limitation. Appellant has presented no assignment of error to the action of the court in sustaining the special exception to his trial amendment, but he has assigned error to the action of the court in peremptorily instructing the jury to return a verdict in favor of the defendant. Apparently, it was the defendant's purpose in urging his special exception to the trial amendment to present the contention that such an amendment presented a new cause of action which was barred by the statute of limitation, and that the court sustained the exception upon that theory. That ruling of the court was erroneous. [4] It is a well-settled rule of decisions of the appellate courts of this state that a petition which, as against a general demurrer, is insufficient to state a cause of action is sufficient to stop the running of the statute of limitation, provided the defects therein are afterwards cured by an amended pleading, even though such amended pleading is filed after the period of limitation prescribed by the statute has expired. See Killibrew v. Stockdale, 51 Tex. 529, and many other authorities cited in McCamant v. McCamant, No. 8856, 203 S. W. 118, by this court, not yet officially published. [5] We can see no valid reason why that rule of decisions should not be held applicable in the present instance. [6] Furthermore, the variance between the In plaintiff's original petition it was al-proof that Beggs committed the acts comleged that the wrongs complained of for which damages were claimed were committed by Beggs, but during the trial of the case plaintiff filed a trial amendment, in which it was alleged that those acts were committed by one Taylor, an employé and agent of Beggs, acting within the scope of the authority given to him by Beggs, and that Beggs was legally responsible to plaintiff therefor. To that trial amendment the defendant filed a special exception reading: "This defendant specially excepts to said trial amendment for the reason that it appears that the matters complained of in plaintiff's said second trial amendment occurred more than two years prior to the filing of said trial amendment, and the same is therefore barred by the statute of limitations." plained of through his agent, Taylor, and the allegations in the petition that he committed those acts himself was not such a fatal variance that it could not be waived by the failure of the defendant to object thereto, since his liability therefor was the same in either instance, and we are of the opinion that it was waived by such failure to urge such objection. See Nimmo v. O'Keefe, No. 8885, 204 S. W. 883, by this court, not yet officially published. [7] If appellant had assigned error here to the action of the court in sustaining the defendant's special exception to the trial amendment, the error would have been held harmless, in view of the fact that the only purpose of the trial amendment was to serve as a basis for proof of the allegations there |