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vember, 1917. The nature of the suit and the At the December term of court, the case facts upon which relator asks for a writ of was called, and the plaintiff announced mandamus are stated in the application as ready for trial. The defendants, however, follows:

procured a continuance on account of the ab“(a) The Matagorda Canal Company averred: sence of one of their counsel. That it was the owner of water rights by statu

The case was again called for trial at the tory appropriation which authorized it to take June term of the district court of Matagorda water from the Colorado river for the purpose county, and on July 1st the plaintiff announcof irrigating 4,000 acres of land. That its ed ready for trial, and the defendant Mark- · pumping plant was situated on a tributary of ham Irrigation Company presented certain the Colorado river on the east side thereof, and pleas in abatement which were heard by the its canals extended to lands east of the river. court; and thereupon the court rendered the That its right to use the waters of the Colorado river for irrigation was based upon a statutory

following order: filing made in December, 1900.

"On this day coming on to be considered the "(b) That the defendant Markham Irrigation pleas in abatement, motions, and exceptions filed Company was a junior appropriator, and that by the Markham Irrigation Company, and the it, and other defendants named, had constructed other defendants, and evidence having been ofan irrigation system on the west side of the fered on the pleas in abatement of the pendency river, and above the plaintiff, with canals, in- of the same controversy before the board of watakes, and pumping plants, and that it had so ter engineers of the state of Texas, and the constructed its canals and intakes as to enable court having considered the same, it is ordered it to divert the entire flow of the Colorado river and considered by the court: in seasons of dry weather. That it had stopped "(1) That the pleas in abatement of the Markup natural water courses and drains by which ham Irrigation Company and of the other dethe water would return to the Colorado river fendants, of the pendency of the proceeding befrom certain lakes and ponds and sloughs on the fore the board of water engineers, would be west side of the river. That through this sys- overruled; the court finding that this is not an tem of intakes, connections, and canals, the action of the character defined by the statute, defendants were controlling the entire flow of to which the board of water engineers is given the river and diverting it through their canals exclusive jurisdiction, or over which, under the to the irrigation of lands west of the river, so circumstances of this cause, said board has exthat the plaintiff was unable to procure a suffi- clusive jurisdiction, and this court finds that cient volume of water to enable it to carry on the pendency of the proceeding shown to be its business as an irrigation system.

pending before the board of water engineers is "(c) That because of this wrongful diversion not sufficient to oust this court of jurisdiction, the plaintiff had suffered damages in the sum of nor does the pendency of this proceeding before $26,000 during the years of 1915, 1916, and the board of water engineers constitute any 1917. That at the time of the filing of this ground for the abatement of plaintiff's suit; suit the plaintiff was unable to make arrange- to which the said defendants except. ments with tenants for furnishing water for “(2) That the motion of the defendant Markthe rice crop during the year 1918, since the ham Irrigation Company, and the other defendcontrol of the river by the defendants rendered ants, to transfer this controversy, as to the wait impossible for the plaintiff to furnish water ter rights, to the said board of engineers, would to its tenants during the continuation of the be overruled, to which said defendants except. conditions complained of.

(3) That the other pleas in abatement and "(d) That the plaintiff's plant and canal sys- the exceptions filed by the defendants would not tem, together with its water rights, was worth be passed upon by the court at this time, but approximately $75,000. That it would be com would be continued by the court without prejupelled to allow its plant to remain idle as long dice. as the defendants were permitted to continue "(4) That it appearing from an examination controlling and diverting the flow of the river of the plaintiff's and intervener's petitions, and as aforesaid. That its only source of revenue the answers of the defendants, that the injuncwas from the sale of water to tenants on its tion and damages claimed in said petitions canal. That the wrongful acts of the defend- would depend upon the ascertainment and deants would not only deprive the plaintiff of termination of the water rights of the respective revenue, but would cause its property to waste parties to this suit, and it appearing to the and deteriorate and become worthless; and, in court that an adjudication and determination of addition to the specific damages sought for prior these waters is now pending before the board of years, the plaintiff prayed for damages to the water engineers of the state of Texas, and that extent of the value of its plant, $75,000, or for all parties to this suit were parties to and parinjunction, and such other relief as would pre- ticipating in said proceeding before the board of vent the defendants from continuing their water engineers of the state of Texas, therewrongful appropriation and diversion of the fore this court, on its own motion, will continue waters of the river.”

this case until said board of water engineers

has decided and determined the water rights of The defendants answered, filing pleas in the parties to this suit in the proceeding now abatement and urging that the suit should be pending before that board; and said judgment referred to the board of water engineers for has become final; that this is done by this

court as a matter of expediency and in order determination, under the provisions of the to have the benefit of the decision of said board irrigation statute passed by the Thirty-Fifth of water engineers on that question, and also Legislature in 1917.

in order to have the benefit of the evidence tak

en in that proceeding, and in order to make a left without water and unable to fulfill any more intelligent and accurate decision of the contracts that it might make with its tenants water rights involved in this suit; that this and water users. That it very frequently hapcourt would not at this time determine whether pens that the dry season of the year is that seathe ruling of said board of water engineers of son just before the maturing of the rice in June, the state of Texas would be conclusive or not, July, and August, and it becomes absolutely imthe court retaining that question for considera-perative to have a supply of water at this critition and determination later.

cal time in order to mature and save the rice "To which rulings of the court the plaintiff crop. Neither the plaintiff company nor water • and intervener then and there excepted, urg- users along its canal could afford to take the

ing as their grounds of exception the following, great hazard necessary, including the expense to wit:

and labor that will be incurred, in planting the "I. That this suit was instituted in the dis- rice crop and bringing it to that stage when it trict court of Matagorda county in November, would have to have water immediately or be de1917, for the purpose of recovering the damages stroyed, under the uncertain conditions prethat have heretofore been sustained by the vailing and with the absolute knowledge that plaintiff, Matagorda Canal Company, on ac- if there was a scarcity of water the defendants count of the diversion of water and other would divert and use the entire flow of the river wrongs, injuries, and trespasses fully set out for their purposes. Therefore the plaintiff's in the plaintiff's first amended original petition canal and pumping plant have remained idle filed herein on January 21, 1918. The suit was during the year 1918, and will continue to reinstituted with the hope that it could be tried main idle until this controversy is determined and relief granted at the December term of this and the defendants have been restrained from court and before the rice crop for the year 1918 diverting and using the water in the river as would be planted, and counsel for the plaintiff averred in plaintiff's petition. appeared in this court on the 21st day of Janu- "IV. That the enforced disuse of the plainary, 1918, and announced ready for trial and tiff's pumping plant and canal system works urged upon the court the importance of having irreparable injury, in this: a trial and disposition of the controversy at "Its pumping plant consists of valuable mathat time. The defendants moved to continue chinery which will rust and deteriorate during the case upon the ground' that one of their continued and forced idleness. That any plant counsel was unable to attend court, and the equipped with complicated machinery of the court granted a continuance upon this ground. character used in a pumping system will de

II. At that time the plaintiff urged upon the teriorate rapidly from disuse. That its canal court that the controversies involved in this will deteriorate more rapidly if not used. That suit were continually recurring from year to it bas had valuable tenants upon its canal sysyear; that the Matagorda Canal Company was tem who will seek other employment and not the oldest appropriator of water from the Colo- make contracts with it again, and they will be rado river in Matagorda county ; that, notwith- permanently driven away from its canal by the standing this fact, a condition of affairs had continued and forced disuse of the canal system. been brought about which rendered it impossi- “V. That the alleged controversy between the ble for the plaintiff to plant its crop for the board of water engineers is of no importance in year 1918; that it had no assurance that it determining the questions involved in this suit. would get water to furnish the tenants along its That it is indefinite and uncertain when the 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 ters before it. That after long delays they river, and fully explained in the plaintiff's may make a finding under the statute, but this pleadings; that, if the plaintiff went forward finding will not be binding upon this court, nor and contracted with the tenants and a crop was conclusive of any of the issues involved in this planted, it would probably become necessary at litigation, and that, if an appeal should be made the height of the crop season to apply for in- from the finding of the board of water engineers junction and other restraining orders to pre- passing upon any controversies between the parvent the defendants from diverting water which ties to this litigation, such appeal would be it would be absolutely necessary for the plain- brought to this court and could not be consolitiffs to have in order to furnish their tenants dated with the present case. That this case, water to mature any rice crop that might be under the court's order, will remain on the planted along and upon the canal. Notwith-docket until a final judgment has been entered standing these representations to the court in the hearing before the board of water engi. showing the great importance of trying this neers, and in any appeal that may be taken case in January, 1918, it was continued because from the findings of that board. That, in the of the illness of one of defendant's counsel. ordinary course of litigation of this character,

“III. The Matagorda Canal Company has not a hearing before the board of water engineers planted any crop during the year 1918, nor has and final judgment by that board would not it contracted with tenants contiguous to its ca- likely be had for several months. That an ap. nal to furnish water. Because of the conditions peal to the district court by either party from prevailing and fully described in plaintiff's a finding by the board might not be heard for a amended original petition, it cannot with safety year thereafterwards. That a further appeal agree and promise to furnish water through its from this court to the Court Appeals and canal for the very good reason that at a dry the Supreme Court might delay a final judg. season, or at a time when there is a scarcity of ment, and the proceedings now pending before water, all the water in the river can and will the board of water engineers, for a period of be diverted to the west side of the river by the from anywhere from five to seven years, during defendants, and the plaintiff, though enjoying as which time the present case remains on the a matter of law superior water rights, will be docket, and the plaintiff's prayer for damages

users

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 scatter. These things would

[3] We do not think the facts disclosed in amount to a practical destruction of the plain the application above set out show such tiff's properties; although it is the first water abuse of discretion by the trial judge as user in Matagorda county, the defendants will be permitted to maintain a status unlawfully tak- would justify this court in holding that by en, from which it appears from their pleadings his order continuing the case he had refused they are raising crops worth from $500,000 to to proceed with its trial agreeably to the $1,000,000 this year.

principles and usages of law. The order re"VI. That the plaintiff has a perfect right to cites that it is made as a matter of expedihave a speedy determination of this case upon ency, and to obtain the benefit of the findings the issues tendered by its pleadings, agreeable of the board of water engineers upon the reto the principles and usages of law. That it spective rights of the parties to the approworks grave injustice and irreparable injury to delay it pending a final judgment in the hear- priation of the water of the Colorado river. ing of the matters before the board of water These findings might be of material assistengineers.

ance to the court in determining some of the "Wherefore, plaintiff excepts to the action of questions presented in the case, and this is the court in entering the above order, and here especially so as to the issue of whether relanow tenders its bill of exceptions for approval. tor is entitled to the injunction which the

"Sixty days after adjournment being allowed answer of the respondent shows is one of to either party in which to file bills of excep the purposes of the relator's suit. It does tions. "Approved.

Styles, Judge.

not appear how long the case will be con"Wherefore, premises considered, the relator tinued awaiting the findings of the water prays that this court grant a writ of mandamus board, and we cannot presume that the conto compel said judge of the district court to tinuance will cause such unreasonable delay proceed to trial and judgment in said cause of as will amount to a denial of relator's right Matagorda Canal Company v. Markham Irriga- to a trial of his cause; nor can we presume tion Company et al., agreeably to the principles that, if the water board delays its findings and usages of law."

in the matter for an unreasonable length of

time, the court will not proceed with the trial The application is properly verified by without such findings. the affidavits of the president and the attor

After a careful consideration of the appliney for the relator company.

cation, we have reached the conclusion that We are not called upon by this application it should not be granted, and it has been so to construe the irrigation statutes of this ordered. 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

HENDERSON v. BEGGS. (No. 8887.) rights of the claimants to the use of the water of the Colorado river. The trial court (Court of Civil Appeals of Texas. Ft. Worth. has not passed upon these questions, but, in June 8. 1918. Rehearing Denied his order continuing the cause, expressly re

Oct. 19, 1918.) serves them for determination upon the trial

REof the cause.

1. LANDLORD AND TENANT Cam 277(44)

COVERY OF PREMISES–LIABILITY OF LESSOR. [1,2] The only question for our decision is whether the action of the court in continuing re-entry without notice or demand, if any part

Where a lease of office rooms provides for the cause for the purpose of obtaining the of the rent remained unpaid for two days after findings of the board of water engineers it is due, a lessor on default in payment of rent amounts to a refusal by the court to pro- for more than two days incurs no liability by ceed with the trial of the case agreeably to ousting lessee from the premises. the usages and principles of law. Unless we 2. TROVER AND CONVERSION Cm7 CONVERso find, this court is without power or au

BY LESSOR ACCESS TO PERSONAL thority to issue the writ of mandamus. Ver- PROPERTY. non's Sayles' Civil Statutes, art. 1595; Halli- A landlord who, after ousting a tenant from burton v. Martin, 28 Tex. Civ. App. 127, 66 the premises for nonpayment of rent, takes 8. W. 675. The discretion of a trial judge in possession of the tenant's personal effects the method of the control and disposition of found on the leased premises, and excludes the

tenant from access thereto temporarily, ir the docket of his court is large, and unless guilty of conversion. the continuance of a cause by the judge upon 3. TROVER AND CONVERSION 22—RIGHT OF his own motion is, under the circumstances,

ACTION-REFUSAL OF TENDER AS DEFENSE. so unreasonable as to be a clear abuse of his

Where a lessor upon ousting lessee from discretion, such continuance cannot be re

the premises has taken possession of the lesgarded as a refusal to proceed with the trial see's personal property, the lessee did not

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SION

OF

an

abridge his rights to recover for conversion by being made between the time he closed his refusing a tender of the property after the con- office in the afternoon and the time he reversion was complete.

turned to it the following morning. When 4. LIMITATION OF ACTIONS O127(2) — Com Henderson returned on the following mornMENCEMENT

SUIT AMENDMENT OF ing he attempted to enter the room, but was PLEADINGS.

unable to do so for the reason that the key A petition which as against a general de- he carried would not unlock the door on acmurrer is insufficient to state a cause of action count of the change in the lock. When Tay. is sufficient to stop the running of limitations lor changed the lock, he took Henderson's if the defects therein are afterward cured by sign from the hall opposite the door and an amended pleading, even though such plead- placed it in the room. By reason of the ing is filed after limitations have run.

exclusion of Henderson from the office he 5. LIMITATION OF ACTIONS 127(8) COM was excluded also from access to and pos.

MENCEMENT OF SUIT-AMENDMENT OF PLEAD- session of his library, sign, office furniture, INGS.

safe, account books, stationery, and overcoat, In an action by a former lessee against his which were in the office. Later, and during lessor for conversion of personal property al- the same day, Taylor tendered to Henderson leged to have been committed by sor amendment to the complaint that the acts were

his overcoat, which was accepted. The evicommitted by lessor's agent was not barred by dence shows further that thereafter Beggs limitations, although the statutory period had offered Henderson permission to take from elapsed at time of amendment.

the room all his personal effects, which offer

was declined, and later notified him that all 6. PLEADING C430(2)–VARIANCE-WAIVERFAILURE TO OBJECT.

his personal effects found in the office at In a former lessee's action against his land- the time of the ouster had been stored at lord for conversion alleged to have been com- his expense and subject to his order, but mitted by the lessor, evidence that the conver- Henderson again declined to receive any of sion was committed by the lessor's agent did the articles. not constitute such a variance that it could not Henderson instituted this suit against be waived by defendant's failure to object. Beggs to recover the value of the remainder 7. APPEAL AND ERROR Om1041(4)-Review-of said personal effects which were in his HARMLESS ERROR.

office at the time he was so ousted of posWhere the one object of a trial amendment session, upon the theory and upon allegations in a conversion suit was to serve as a basis for that Beggs had wrongfully converted it to proof of its allegations that the conversion was his own use. He also sued for damages to committed by lessor's agent, error in sustaining his business as a practicing attorney by an exception to such amendment held harmless, reason of the ouster of possession of his ofwhere proof under the amendment was admitted without objection.

fice and personal belongings contained there

in, 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.

in favor of the defendant, and from a judg

ment predicated upon a verdict returned in Action by A. A. Henderson against George compliance with that instruction, plaintiff Beggs, Jr., for conversion. From a judgment has appealed. for defendant on an instructed verdict, plain

Among other defenses, defendant specially tiff appeals. Reversed and remanded.

pleaded the written lease under which plainJames C. Scott and Stanley Boykin, both tiff held possession of the room, and claimed of Ft. Worth, for appellant.

justification of the acts complained of by L. M. Levy and W. L. Evans, both of Ft. virtue of the following stipulation in the Worth, for appellee.

lease:

"If said rent, or any part thereof, shall reDUNKLIN, J. George Beggs, Jr., as agent main unpaid for two days after it shall become for the owner of a building in Ft. Worth, due on the first day of any term of one month; rented an office therein to A. A. Henderson, or if said lessee shall assign this lease, or uia practicing attorney, who occupied it as his of, or if said lessee's interest therein shall be

derlet said leased premises, or any part there. law office from November 7, 1914, until Feb- sold under execution or other legal process, ruary 26, 1915, when he was ousted by Beggs, without the written consent of said lessor, bis acting through one Taylor, his authorized heirs or assigns first had, it shall be lawful agent and representative. The reason for for said lessor, or his agents, heirs or assigns, such ouster was that Henderson was in ar- without notice or demand, into said premises rears with his rent payments in the sum of $8. to re-enter, and the same to have again, reTaylor had the combination in the lock to possess, and enjoy as in his former estate; the door of the office changed, and the door in contained on the said lessor's behalf to be

and thereupon this lease, and everything there. locked, during Henderson's absence and with done and performed, shall cease, determine and out his knowledge or consent; such change be utterly void.”

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1] By reason of that stipulation in the That exception was sustained by the trial lease, and the default in payment of rent court. But, notwithstanding that ruling, the noted above, defendant incurred no liability defendant made no objection to the testifor the ouster of plaintiff from his office mony introduced by the plaintiff, fully provroom. Singer Sewing Mach. Co. v. Rios, 96 ing that the acts complained of, alleged to Tex. 174, 71 S. W. 275, 60 L. R. A. 143, 97 be a conversion, were in fact committed by Am. St. Rep. 901; Brunson v. Dawson St. Taylor as the agent of Beggs; in other Bk., 175 S. W. 438.

words, the defendant did not object to such [2] But the same cannot be said of the testimony, or move to exclude it upon the act of the defendant in taking possession of ground that it was at variance with the althe personal effects belonging to plaintiff legations contained in the original petition, situated in the office, and excluding plain and that the allegations contained in the tiff of access thereto and possession thereof trial amendment constituted a new cause of temporarily, as such acts amounted in law action, which was barred by the statute of to a conversion, which is defined by Mr. limitation. Appellant has presented no asCooley in his work on Torts (2d Ed.) p. 524, signment of error to the action of the court as follows:

in sustaining the special exception to his "Any distinct act of dominion wrongfully ex

trial amendment, but he has assigned error erted over one's property in denial of his right, to the action of the court in peremptorily or inconsistent with it, is a conversion." instructing the jury to return a verdict in

favor of the defendant. Apparently, it was [3] Plaintiff owned the right of possession the defendant's purpose in urging his speand access to such personal property at any cial exception to the trial amendment to and all times, and the act of the defend- present the contention that such an amendant in locking up such property in the room ment presented a new cause of action which and denying plaintiff access thereto, except was barred by the statute of limitation, and by the consent and with the permission of that the court sustained the exception upon the defendant, certainly was a wrongful ex- that theory. That ruling of the court was ertion of dominion over the property incon- erroneous. sistent with plaintiff's right of dominion. [4] It is a well-settled rule of decisions of The stipulation in the lease of the right of the appellate courts of this state that a the defendant to re-enter the room did not petition which, as against a general demurpurport to give the right to take possession rer, is insufficient to state a cause of action of plaintiff's library, furniture, and other is sufficient to stop the running of the statpersonal property therein situated. The ute of limitation, provided the defects thereplaintiff had the legal right to treat such in are afterwards cured by an amended acts of the defendant as a conversion of such pleading, even though such amended pleadpersonal property, and to sue for damages ing is filed after the period of limitation pretherefor and also to refuse the tender of the scribed by the statute has expired. See Killiproperty to him after the conversion was brew v. Stockdale, 51 Tex. 529, and many complete, without in any manner abridging other authorities cited in McCamant v. Mchis right to recover damages for the conver- Camant, No. 8856, 203 S. W. 118, by this sion. See Crawford v. Thomason, 53 Tex. court, not yet officially published. Civ. App. 761, 117 S. W. 181, and author- [5] We can see no valid reason why that ities there cited, in which case a writ of rule of decisions should not be held applicaerror was denied by the Supreme Court (118 ble in the present instance. S. W. xv).

[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 plained of through his agent, Taylor, and the which damages were claimed were committed allegations in the petition that he committed by Beggs, but during the trial of the case those acts himself was not such a fatal variplaintiff filed a trial amendment, in which it ance that it could not be waived by the failwas alleged that those acts were committed ure of the defendant to object thereto, since by one Taylor, an employé and agent of his liability therefor was the same in either Beggs, acting within the scope of the au- instance, and we are of the opinion that it thority given to him by Beggs, and that was waived by such failure to urge such obBeggs was legally responsible to plaintiff jection. See Nimmo v. O'Keefe, No. 8885, 204 therefor. To that trial amendment the de- S. W. 883, by this court, not yet officially fendant filed a special exception reading:

published. "This defendant specially excepts to said trial the action of the court in sustaining the de

[7] If appellant had assigned error here to amendment for the reason that it appears that fendant's special exception to the trial the matters complained of in plaintiff's said second trial amendment occurred more than amendment, the error would have been held two years prior to the filing of said trial amend- harmless, in view of the fact that the only ment, and the same is therefore barred by the purpose of the trial amendment was to serve statute of limitations."

as a basis for proof of the allegations there

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