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(248 S.W.) Appeal from District Court, Stephens (already filed his findings of fact and concluCounty; W. R. Ely, Judge.

sions of law, and the bill, as so qualified, was Suit by D. B. Evans and others against filed on September 30, 1921. The findings and Susan Smoot and others, in which defend- filed by him appear in the transcript in this

conclusions of the trial judge which were ants Mrs. Birdie 0. Evans and others cross-court, and appellants have filed no motion complained. From a jud nt for cross-com

to strike them out, and in their briefs they plainants, plaintiffs appeal. Affirmed.

have made no specific objection to a considE. W. Bounds, of Fort Worth, and John eration of the same. Appellants insist that W. Hill, of Breckenridge, for appellants. they had the legal right to have the findings

Benson & Dean, of Breckenridge, for ap- and conclusions filed within the 10 days' pepellees.

riod, and that by reason of a denial of that

strict legal right, the judgment of the trial. DUNKLIN, J. D. B. Evans, Lydia Evans, court should be reversed. They do not show a feme sole, W. C. Evans, Tillie Boyd, joined or contend that they have suffered any inby her husband, Walter Boyd, and Josie convenience or injury by reason of the court's Brown, joined by her husband, Jim Brown, failure to comply with that statutory requireinstituted this suit in trespass to try title ment to file such findings within the 10 days' to recover an undivided five-sixth interest period. A full statement of facts, agreed to in lot 3, block 14, in the town of Brecken by counsel for all parties to the suit, is on ridge. Susan Smoot and her heirs and legal file here with the record, and it is well setrepresentatives, the residences of all of whom tled by the decisions of this state that when are alleged to be unknown, and Mrs. Birdie such a statement is filed, the failure of the 0. Evans, the surviving widow of C. N. Ev- court to file his findings of fact and concluans, deceased, and Oma Evans, Joe Rob sions of law, as required by the statutes, is Evans, Margaret Evans, and Charlie Evans not reversible error, in the absence of some (minor), children of C. N. and Birdie 0. showing that appellants have been prejudiced Evans, were all made parties defendants. in fact by such failure on the part of the Judgment was rendered denying plaintiffs a trial judge. Sullivan v. Fant, 51 Tex. Civ. recovery and decreeing title to the property App. 6, 110 S. W. 521; Haywood v. Scarin defendant Mrs. Birdie 0. Evans and her borough (Tex. Civ. App.) 102 S. W. 470; Nachildren, on their cross-action against the tional Bank v. Stout, 61 Tex. 567; Huffman plaintiffs and against Susan Smoot and her Imp. Co. v. Templeton (Tex, App.) 14 S. W. heirs and representatives. From that judg- 1015; Umscheid v. Scholz, 84 Tex. 263, 16 S. ment the plaintiffs have prosecuted this ap- W. 1065. Accordingly, appellants' first aspeal.

signment of error is overruled. Susan Smoot was the owner of the legal

The only claim of title by both plaintiffs title to the property according to the deed and defendants was under the statute of limirecords of Eastland county.

tation. Plaintiffs and all of the defendants [1] By their first assignment of error, ap except Susan Smoot claimed title to the proppellants insist that the judgment should be reversed for the failure of the trial judge to erty under the statute of 10 years' limitation. file findings of fact and conclusions of law Susan Smoot and her unknown heirs were within the period of 10 days from and after represented by counsel appointed by the trial the adjournment of the term of court during judge, and their answers consisted of a genwhich the cause was tried. The record

eral denial and a plea of not guilty. Those shows that court adjourned on July 9, 1921, defendants have not prosecuted any appeal, and there are contained in the record findings although the recovery on the cross-action of of fact and conclusions of law by the trial Mrs. Birdie 0. Evans and her children was judge which were filed on July 27, 1921. Ap- against them as well as against the plaintiffs. pellants' first assignment is based upon their [2] On April 5, 1893, a deed of conveyance bill of exception, which is duly approved by was executed to Mrs. Elvira C. Evans to lot the trial judge, to the failure of the court to 4, block 14, in the town of Breckenridge, in file his findings and conclusions within the consideration of $80 cash and a promissory 10 days' period mentioned. That bill of ex- note for $80 to be paid by Mrs. Elvira C. ception contains the statement that appel- Evans on November 1, 1893. Mrs. Evans was lants, before the adjournment of the term then the wife of J. M. Evans. The deed did and after the rendition of the judgment, re- not stipulate that the conveyance was made quested the presiding judge to prepare find- to Mrs. Evans as her separate property, and ings of fact and conclusions of law, and did in the absence of such stipulation, and in the then and there present to the court certain absence of any other facts tending to show findings of fact and conclusions of law which that the lot was acquired as the separate had already been prepared for the signature property of Mrs. Evans, it became the comof the judge, and which findings and con-munity property of herself and husband. clusions are set out in the bill of exception. Block 14, in which lot 4 was situated, was The bill of exception was approved, with the 300 feet square, and another lot known as explanation by the trial judge that he had lot 3 in the same block adjoined lot 4. After the execution of the deed to lot 4, J. M. Evans, family occupied the other portion; each and his wife took possession of it and oc- family doing their own cooking. A portion cupied it as their home for themselves and of that time they all cooked and ate together. their children. Neither J. M. Evans nor his C. N. Caldwell, who was well acquainted wife ever purchased lot 3, but after they with the entire Evans family and who lived moved upon lot 4 they began to use lot 3 in in Breckenridge in 1896, and was absent connection with lot 4. They had several chil- therefrom in 1898 and 1899 but moved back dren at the time they moved upon lot 4. in 1901, testified that he was well acquainted

By deed dated June 11, 1900, and duly ac- with the property and has kept informed as knowledged by Mrs. Elvira C. Evans on the to its occupants ever since. He testified that same date, and by J. M. Evans on September he, together with C. N. Evans, built a house 29, 1900, for a recited cash consideration of on lot 3 in 1901 or 1902, but according to his $25 paid to the grantors by C. N. Evans and best recollection it was in the year 1902. Acwife, Birdie 0. Evans, J. M. Evans and wife cording to testimony of witnesses who lived in conveyed said lot 4 to C. N. Evans and wife. the town of Breckenridge and who were well C. N. Evans was the son of J. M. Evans and acquainted with the Evans family, and some wife, and he was married to Mrs. Birdie o. of whom had had business dealings with C. N. Evans on November 19, 1899. After their Evans, C. N. Evans was regarded as the head marriage they lived in the same house with of the family after the death of his father. his parents on lot 4, occupying it as their The statement of facts shows that neither home.

J. M. Evans nor his wife ever paid any taxes At the time J. M. Evans purchased lot 4, on either lot 4 or lot 3; that C. N. Evans to wit, April 5, 1893, there was a small house paid taxes on both those lots for the years on the lot into which they moved. Thereafter beginning with 1897 and ending with 1909, they made some additions to the house. Im- such taxes being paid each year as they acmediately after moving on the property, they crued; and that Mrs. Birdie 0. Evans has inclosed lot 3 and lot 4 by two fences, one paid taxes on both lots for each and every placed on the north and one on the south year as the same became due, beginning with of the two lots, and connected those fences the year 1910, and ending with the year 1920. with the fences inclosing a lot on the west Mrs. Birdie O Evans, on the 3d day of May, and a lot on the east of lots 3 and 4. 1917, also paid back taxes on both lots and

J. M. Evans died June 18, 1901, at which procured redemption tax receipts therefor time all of his children had married and left, for the years beginning with 1885 and ending except Lydia, a daughter, and W. C. Evans, with the year 1893. a son. After his death, his widow, Mrs. E. C. Mrs. Birdie 0. Evans continued in open Evans, and her daughter Lydia, who was a l possession of both lots up to about one year dwarf, and W. C. Evans continued to live in before the case was tried, when she sold lot the same house then occupied by C. N. Evans 4 and gave a lease on lot 3, from which lease and wife. W. C. Evans married soon after she has been collecting rents at the rate of the death of his father and left the home, about $250 per month. She testified that she since which time he has lived elsewhere. Mrs. never heard any one of the plaintiffs claim E. O. Evans continued to live in the same any interest in lot 3 until about one year home until her death, which occurred De- before the trial. cember 26, 1908, and C. N. Evans died Feb- The evidence tended strongly to show that ruary 6, 1909. After the death of O. N. C. N. Evans claimed ownership of lot 3 up Evans, Birdie 0. Evans and her children con- to the date of his death, and that his widow tinued to occupy lot 4 as their home, and for has claimed the same as her own ever since more than one year thereafter Lydia Evans, his death. O. N. Evans and wife had four the dwarf sister of C. N. Evans, continued children, and after the death of her husband to live with her. After Lydia left, the home Mrs. Evans was appointed guardian of the was occupied by Birdie 0. Evans and her estate of those children; but aside from their children alone.

occupancy and use of the property, no eviAs soon as J. M. Evans and his wife pur- dence was introduced to show that they ever chased lot 4, they began using lot 3 in con- gave notice to any of the plaintiffs that they nection with lot 4, using it for a garden, and were claiming the property adversely to also had a shed and chicken house thereon. them. After J. M. Evans and wife executed the The principal contention made by appeldeed of conveyance to lot 4, C. N. Evans and lapts here is that the evidence conclusively wife and J. M. Evans and wife all continued shows that the statute of limitation of 10 to use lot 3 until the death of J. M. Evans, years in favor of J. M. Evans began in the which occurred in 1901, and after that time year 1893 when he purchased lot 4, that the Mrs. E. C. Evans also used the garden in con- same continued until the date of his death, nection with the use of it by her son C. N. and that limitation so begun was continued Evans up to the date of her death in 1908. in behalf of his surviving widow until it was A part of that time Mrs. E. C. Evans and complete. It is further insisted that title her daughter Lydia occupied one portion of under the 10 years' statute of limitation havthe residence on lot 4, and her son, and his ing been thus acquired, the property belonged (248 S.W.) to the community estate of J. M. Evans and | years after the death of her husband, Elvira his wife, and at the time of the death of C. Evans, together with an afflicted daughter, Mrs. E. C. Evans passed to all of their chil. occupied and used lot 3 as before, thus vestdren, share and share alike, thus vesting in ing in Mrs. Evans absolute title to lot 3, unplaintiffs an undivided five-sixth interest in der our 10 years' statute of limitation; ann! the property, with the remainder in C. N. that hence upon her death lot 3 descended Evans and his heirs. It is insisted in this to her heirs, share and share alike. And it connection that the title having thus vested is my further opinion that the evidence is in all of the children jointly, neither C. N. wholly insufficient to show that Mrs. Birdie Evans nor his widow or their heirs are in 0. Evans, the surviving wife of C. N. Evans, any position to claim title by limitation deceased, at any time disputed the right of against them, by reason of the fact that Elvira C. Evans to use and occupy lot 3 as they, being joint tenants with the plaintiffs, she had during the life of her husband. The did not bring notice home to plaintiffs that undisputed facts show that she made use of they were claiming title adversely to them. it without hinderance from C. N. Evans or

[3] This being a suit in trespass to try his wife, Birdie 0. Evans. There is no evititle, the burden was upon plaintiffs to es- dence sufficient in my judgment to show that tablish that title by a preponderance of evi- either C. N. Evans or Birdie 0. Evans ocdence, and if they did not discharge that cupied or used lot 3 adversely to Elvira C. burden the judgment cannot be disturbed, Evans prior to her death. The use of lot 3 and the majority have reached the conclu- by Birdie 0. Evans and C, N. Evans seems sion that the assignment now under discuss to have been permissive only. Or, if, in any sion must be overruled.

view of the evidence, it can be said that [4] In the opinion of the majority, the fact Birdie 0. Evans used the land in controversy that lot 3 was used by J. M. Evans in con- adversely to the other heirs of Elvira C. nection with lot 4, and that he sold lot 4 to | Evans, such other heirs had no notice therehis son C. N. Evans, and that nothing was of. At no time do I find in the evidence said between them at the time indicating where Birdie 0. Evans claimed in their presanything to the contrary, was a circum- ence or in the presence of any other the sole stance tending in some measure to show that right to lot 3, or the sole right to its use he intended to relinquish to his son C. N. and occupancy. The only evidence, if it can Evans the same right of possession of lot 3, be so termed, of such an adverse claim, is used in connection with lot 4, which he him- the fact that she paid taxes on lot 3 together self had exercised. And the majority are of with lot 4; but those taxes during all of the opinion further that, to say the least, the those years were very small, and it has been evidence tended as strongly to show adverse expressly held that the payment of taxes is possession in C. N. Evans after the death of not suficient to divest a cotenant of his inhis father as it did to show that the adverse terest. Therefore I am of the opinion that possession which had theretofore begun with the judgment below should be reversed and J. M. Evans was continued by his surviving judgment here rendered for appellants, eswife, up to April 4, 1903, the date when the tablishing their interest, and for partition as 10 years' statute of limitation, once begun in prayed for in their petition. J. M. Evans, would have been complete. And as neither J. M. Evans nor his wife ever acquired title by the 10 years' statute of limi

On Motion for Rehearing. tation, beginning with J. M. Evans at the DUNKLIN, J. The majority was in error time he purchased lot 4, plaintiffs inherited in their opinion on original hearing in statno title from them and are in no position to ing that C. M. Caldwell testified that he, claim that C. N. Evans and his wife did not together with C. M. Evans, built a house on acquire title by limitation as against their lot 3 in 1901 or 1902. The record shows that codefendant, Susan Smoot.

the testimony of that witness was that the Accordingly, the majority are of the opin-house so built was on lot 4, instead of lot 3. ion that all assignments of error must be While the record shows, as stated in our orig. overruled, and the judgment must be af- inal opinion, that all the taxes on lots 3 and firmed; and it is so ordered.

4 were paid by C. N. Evans and wife begin

ning with the year 1897 and ending with the CONNER, C. J. (dissenting). I find myself year 1920, the statement of facts shows that unable to concur in the conclusion of the D. B. Evans testified that he gave his brother majority. As I read the evidence, it is un- $10 “to pay the taxes,” and that at one time disputed that lot 3 in controversy was oc- he furnished his sister-in-law money with cupied, used, and held adversely to all the which to pay the taxes. However, the witworld by J. M. Evans and his wife, Elvira ness does not fix the year in which he made C. Evans, from about April 5, 1893, when lot either of those payments, nor does he state 4 adjoining lot 3 was purchased and deeded whether it was for the purpose of paying to Elvira C. Evans, until the death of J. M. taxes on lot 3 or lot 4, or both, and, as shown Evans, on June 18, 1901, some 8 years, 2 in our original opinion, C. N. Evans died Feb. months, and 13 days; that for more than 2 ruary 6, 1909. The statement of facts fur

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ther shows that Mrs. Birdie 0. Evans quali- I ments, the city authorities, having declared fied as guardian of her minor children in the storm sewers and drains part of a street imyear 1919,

provement and the construction of the sewer With the corrections noted, the motion for to be an improvement incident and essential rehearing is overruled by the majority of the to paving such street, the cost of construct. court.

ing such storm sewer and drains was properly

included as part of local assessment for such CONNER, C. J., dissenting, as upon orig

street improvement. inal hearing.

6. Municipal corporations M417(1)-Charter

provision for general assessment for sewers does not prohibit local assessment for sewers

part of street improvement. TEXAS BITULITHIC CO. V. DALLAS CON.

The provision of Dallas City Charter, art. SOL. ELECTRIC ST. RY. CO. et al.

2, § 4, providing that the board of commis(No. 8762.)

sioners may levy a tax on all taxable property (Court of Civil Appeals of Texas. Dallas.

within the city for the construction and repair Feb. 17, 1923. Rehearing Denied

of public sewers, which tax shall be used exMarch 17, 1923.)

clusively for that purpose, does not probibit

the commissioners from including in a local 1. Municipal corporations Em406(1)-City has assessment for a street improvement the cost

only power to assess as is expressly or im- of storm sewers and drains necessarily inci. pliedly granted in charter.

dent to, and a part of, such improvement, since The city of Dallas has no power to levy such section is merely permissive, and applies a special assessment or other tax, unless the to the building of sewers independent of street power is expressly granted by the terms of its construction. charter or by necessary implication therefrom, and such power is not to be inferred, unless

7. Municipal corporations w 425(3) - Street the implication is so clear as necessarily to

railway liable to assessment for proportion

of cost of storm sewer lying under track. reveal a purpose to grant it.

Under Dallas city charter, empowering the 2. Taxation Cw 2-Power of taxation vests ex- city to assess against street railways the cost clusively in Legislature.

of that part of a street improvement between Power of taxation is vested exclusively in the rails and tracks of such street railway or the Legislature, to be conferred upon munici- within two feet of the outside of said rails palities only to whatever extent may be declar- and tracks, the city had no authority to assess ed by statutes enacted or charters granted. against such railway for any part of a storm 3. Municipal corporations Cm417(1)-Charter,

sewer not under the space comprehended be. authorizing street improvements, impliedly them, and the determination of the city com

tween the rails and two feet on the outside of authorizes construction of storm sewers and missioners in fixing the proportion to be paid drains and assessment therefor.

by the street railway on any other basis creatThough Dallas City Charter, art. 10, § 1, ed no liability therefor, since liability could authorizing street improvements, does not ex. not come into existence and no lien could be pressly provide for the construction of storm created until the construction was actually done, sewers and drains, the construction of such when the proportion of cost could then be dedrains and the power to make assessments

termined. therefor are authorized by the expressions "said term (street improvement] shall also in-8. Constitutional law Ow70(3) — Injustice of clude any other street improvement of a pub- exempting street railway company from fair lic nature and for a public benefit" and "other- assessment for storm sewer by reason of wise improving the same."

charter provision question for Legislature. 4. Municipal corporations eww 412 City has The fact that a storm sewer, constructed

authority to declare what kinds of work con. as part of a street improvement, equally bene. stitute part of local improvement for which fits every part of the street and the inadequacy local assessment can be made.

or injustice of an assessment against a street While the power of a city to levy a special railway for its proportion is no ground for disassessment for local improvements is limited regarding the plain requirement of Dallas city strictly to the purposes provided for by its charter that a street railway is liable for as. charter or by statute, yet it is within the prov- its tracks and within two feet from the out

sessment only for street improvements between ince of the city, not arbitrarily but in the exercise of a sound discretion, to determine side of its rails; the justice of the statutory whether or not a particular kind of work is provision being a matter for legislative deter

mination. part of a local improvement for which the authority to impose a local assessment exists.

Appeal from District Court, Dallas Coun. 5. Municipal corporations Omw 460 Cost of

ty; W. F. Whitehurst, Judge. storm sewers and drains part of street pav. ing, and properly included in local assess- Suit by the City of Dallas against the ment.

Dallas Consolidated Electric Street Railway Under Dallas City Charter, art. 10, § 1, au- Company and others for the benefit of the thorizing local assessments for street improve. I Texas Bitulithic Company, to recover an as

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

CONSOL

) sessment for street improvements, in which city of Dallas for the construction of storm the latter intervened and sought recovery in sewers in connection with improvements of its own name. From a judgment for de- the street is authorized by the provisions of fendant, the intervener appeals. Reversed the charter; and this further question (suband remanded.

ject to its being determined that such auDabney, Goggans & Ritchie, of Dallas, for thority did exist): Did defendant in error

become bound in any event to pay for the appellant.

construction of any portion of storm sewers Templeton, Beall, Williams & Worsham, and A. S. Rollins, all of Dallas, for appellee. which was not constructed between the rails

or within two feet thereof? The appeal is HAMILTON, J. This suit was instituted rested upon the following propositions: by the city of Dallas for the benefit of plain- "The city of Dallas did and does have power tiff in error against the defendant in error to, and was authorized by its charter to, levy and its corporate predecessor, to recover an assessment against street railways occupying assessment levied against defendant in error streets in said city for all of the cost of con

structing storm sewers and drains between the for the construction of a storm sewer on

rails and tracks of any such street railways or Bryan street in the of Dallas. The city within two feet of the outside of said rails of Dallas ordered the improvement of this and tracks. street by paving it with certain material and

"That by failing to appeal from the hearing by installing concrete curbs and gutters, and afforded before the levy of the assessment and by the same order, and through the same of which they had due notice and by failing to proceedings by which the construction of bring any suit to set aside or contest the ascurbs and gutters and paving was required, sessment levied and the determinations of the the construction of storm sewers and drains city made at said hearing, the defendants waivwas also ordered. Defendant in error owned any right to contest the assessment and are ed and operated a line of street railway on estopped to contest it on the ground that the the street, and the tax for the improvements assessment was for a larger proportion or levied and charged against it was alleged to amount of work than was actually between the be for the cost of improving the street be- rails and tracks or within two feet of the out

side thereof. tween the rails and two feet on the outside

"The assessment having been duly and regu-. thereof. Defendant in error paid all of the larly levied and all proceedings with reference tax levied against it for the street improve thereto required 'and provided by law having ment, except that attempted to be fixed been taken, had, done, and performed, and reaagainst it for the construction of storm sonable attorney's fees having been incurred, sewers. This it declined to pay. The suit the intervener was entitled to judgment in was filed, as aforesaid, by the city of Dallas, its own name for the amount assessed with and plaintiff in error, having constructed all interest, attorney's fees, costs, and foreclosure of the improvements for which payment was of lien." demanded, intervened, and sought to recover judgment in its own name, the tax having

There is no express authority granted to heen levied for its benefit. The action was

the city of Dallas by its charter to construct for recovery of the amount of the cost of the storm sewers by the levy of special assessconstruction of the storm sewer and for fore- ments against property along the streets closure of the statutory lien alleged to exist through which such sewers extend, nor to against defendant in error's property as hav- levy the cost of the construction of such

sewers ing been fixed under charter provisions to

against railway lines extending secure the payment of the amount of the de- through the streets, unless the term "street mand. Judgment was rendered in favor of improvement,” as defined in section 1 of defendant in error upon the theory that the article 10 of the charter, is sufficiently ex

pansive in its meaning to embrace storm sewassessment against defendant in error was

ers. All the power reposed in the city to unauthorized by the charter of the city of

levy assessments for street improvements Dallas, and also for the reason that, even if the power to make an assessment resided in the terms of article 10 of the charter.

seems to be given it solely and exclusively by the city of Dallas, yet the greater portion of tion 1 of this article, which, as above stated,

Secthe storm sewer was not constructed between defines street improvements, is in the followthe rails of the street railway nor within a

ing language: distance of two feet on the outside thereof, although the assessment made by the city

"The term 'street improvement,' as embraced commission imposed 56.4 per cent of the in this article, shall include the improvement cost of such construction upon defendant in

of any street

highway

any portion thereof within the city, by filling, There is no statement of facts before this or otherwise improving same, or by the con

grading, raising

paving court, but the findings of fact contained in struction or reconstruction of sidewalks, curbs the record, which findings are undisputed and gutters or repairing the same; and shall and are binding upon us, eliminate from the also include the laying out, opening, narrowing, case every question except the question of straightening or otherwise establishing, definwhether or not the assessment made by the ing and locating any street, avenue, public al.

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