Appeal from District Court, County; W. R. Ely, Judge. (248 S.W.) Stephens already filed his findings of fact and conclusions of law, and the bill, as so qualified, was filed on September 30, 1921. The findings and filed by him appear in the transcript in this conclusions of the trial judge which were Suit by D. B. Evans and others against Susan Smoot and others, in which defend ants Mrs. Birdie O. Evans and others crosscomplained. From a judgment for cross-complainants, plaintiffs appeal. Affirmed. E. W. Bounds, of Fort Worth, and John W. Hill, of Breckenridge, for appellants. Benson & Dean, of Breckenridge, for appellees. DUNKLIN, J. D. B. Evans, Lydia Evans, a feme sole, W. C. Evans, Tillie Boyd, joined by her husband, Walter Boyd, and Josie Brown, joined by her husband, Jim Brown, instituted this suit in trespass to try title to recover an undivided five-sixth interest in lot 3, block 14, in the town of Breckenridge. Susan Smoot and her heirs and legal representatives, the residences of all of whom are alleged to be unknown, and Mrs. Birdie O. Evans, the surviving widow of C. N. Evans, deceased, and Oma Evans, Joe Rob Evans, Margaret Evans, and Charlie Evans (minor), children of C. N. and Birdie O. Evans, were all made parties defendants. Judgment was rendered denying plaintiffs a recovery and decreeing title to the property in defendant Mrs. Birdie O. Evans and her children, on their cross-action against the plaintiffs and against Susan Smoot and her heirs and representatives. From that judgment the plaintiffs have prosecuted this appeal. Susan Smoot was the owner of the legal title to the property according to the deed records of Eastland county. [1] By their first assignment of error, ap pellants insist that the judgment should be reversed for the failure of the trial judge to file findings of fact and conclusions of law within the period of 10 days from and after the adjournment of the term of court during which the cause was tried. The record shows that court adjourned on July 9, 1921, and there are contained in the record findings of fact and conclusions of law by the trial judge which were filed on July 27, 1921. Appellants' first assignment is based upon their bill of exception, which is duly approved by the trial judge, to the failure of the court to file his findings and conclusions within the 10 days' period mentioned. That bill of exception contains the statement that appellants, before the adjournment of the term and after the rendition of the judgment, requested the presiding judge to prepare findings of fact and conclusions of law, and did then and there present to the court certain findings of fact and conclusions of law which had already been prepared for the signature of the judge, and which findings and conclusions are set out in the bill of exception. The bill of exception was approved, with the explanation by the trial judge that he had court, and appellants have filed no motion to strike them out, and in their briefs they have made no specific objection to a consideration of the same. Appellants insist that they had the legal right to have the findings and conclusions filed within the 10 days' period, and that by reason of a denial of that strict legal right, the judgment of the trial, court should be reversed. They do not show or contend that they have suffered any inconvenience or injury by reason of the court's failure to comply with that statutory requirement to file such findings within the 10 days' period. A full statement of facts, agreed to by counsel for all parties to the suit, is on file here with the record, and it is well settled by the decisions of this state that when such a statement is filed, the failure of the court to file his findings of fact and conclusions of law, as required by the statutes, is not reversible error, in the absence of some showing that appellants have been prejudiced in fact by such failure on the part of the trial judge. Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 521; Haywood v. Scarborough (Tex. Civ. App.) 102 S. W. 470; National Bank v. Stout, 61 Tex. 567; Huffman Imp. Co. v. Templeton (Tex. App.) 14 S. W. 1015; Umscheid v. Scholz, 84 Tex. 265, 16 S. W. 1065. Accordingly, appellants' first assignment of error is overruled. The only claim of title by both plaintiffs and defendants was under the statute of limitation. Plaintiffs and all of the defendants except Susan Smoot claimed title to the property under the statute of 10 years' limitation. Susan Smoot and her unknown heirs were represented by counsel appointed by the trial judge, and their answers consisted of a general denial and a plea of not guilty. Those defendants have not prosecuted any appeal, although the recovery on the cross-action of Mrs. Birdie O. Evans and her children was against them as well as against the plaintiffs. [2] On April 5, 1893, a deed of conveyance was executed to Mrs. Elvira C. Evans to lot 4, block 14, in the town of Breckenridge, in consideration of $80 cash and a promissory note for $80 to be paid by Mrs. Elvira C. Evans on November 1, 1893. Mrs. Evans was then the wife of J. M. Evans. The deed did not stipulate that the conveyance was made to Mrs. Evans as her separate property, and in the absence of such stipulation, and in the absence of any other facts tending to show that the lot was acquired as the separate property of Mrs. Evans, it became the community property of herself and husband. Block 14, in which lot 4 was situated, was 300 feet square, and another lot known as lot 3 in the same block adjoined lot 4. After 1 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 occupied it as their home for themselves and their children. Neither J. M. Evans nor his wife ever purchased lot 3, but after they moved upon lot 4 they began to use lot 3 in connection with lot 4. They had several children at the time they moved upon lot 4. By deed dated June 11, 1900, and duly acknowledged by Mrs. Elvira C. Evans on the same date, and by J. M. Evans on September 29, 1900, for a recited cash consideration of $25 paid to the grantors by C. N. Evans and wife, Birdie O. Evans, J. M. Evans and wife conveyed said lot 4 to C. N. Evans and wife. C. N. Evans was the son of J. M. Evans and wife, and he was married to Mrs. Birdie O. Evans on November 19, 1899. After their marriage they lived in the same house with his parents on lot 4, occupying it as their home. At the time J. M. Evans purchased lot 4, to wit, April 5, 1893, there was a small house on the lot into which they moved. Thereafter they made some additions to the house. Immediately after moving on the property, they inclosed lot 3 and lot 4 by two fences, one placed on the north and one on the south of the two lots, and connected those fences with the fences inclosing a lot on the west and a lot on the east of lots 3 and 4. J. M. Evans died June 18, 1901, at which time all of his children had married and left, except Lydia, a daughter, and W. C. Evans, a son. After his death, his widow, Mrs. E. C. Evans, and her daughter Lydia, who was a dwarf, and W. C. Evans continued to live in the same house then occupied by C. N. Evans and wife. W. C. Evans married soon after the death of his father and left the home, since which time he has lived elsewhere. Mrs. E. C. Evans continued to live in the same home until her death, which occurred December 26, 1908, and C. N. Evans died February 6, 1909. After the death of C. N. Evans, Birdie O. Evans and her children continued to occupy lot 4 as their home, and for more than one year thereafter Lydia Evans, the dwarf sister of C. N. Evans, continued to live with her. After Lydia left, the home was occupied by Birdie O. Evans and her children alone. As soon as J. M. Evans and his wife purchased lot 4, they began using lot 3 in connection with lot 4, using it for a garden, and also had a shed and chicken house thereon. After J. M. Evans and wife executed the deed of conveyance to lot 4, C. N. Evans and wife and J. M. Evans and wife all continued to use lot 3 until the death of J. M. Evans, which occurred in 1901, and after that time Mrs. E. C. Evans also used the garden in connection with the use of it by her son C. N. Evans up to the date of her death in 1908. A part of that time Mrs. E. C. Evans and her daughter Lydia occupied one portion of the residence on lot 4, and her son, and his family doing their own cooking. A portion of that time they all cooked and ate together. C. N. Caldwell, who was well acquainted with the entire Evans family and who lived in Breckenridge in 1896, and was absent therefrom in 1898 and 1899 but moved back in 1901, testified that he was well acquainted with the property and has kept informed as to its occupants ever since. He testified that he, together with C. N. Evans, built a house on lot 3 in 1901 or 1902, but according to his best recollection it was in the year 1902. According to testimony of witnesses who lived in the town of Breckenridge and who were well acquainted with the Evans family, and some of whom had had business dealings with C. N. Evans, C. N. Evans was regarded as the head of the family after the death of his father. The statement of facts shows that neither J. M. Evans nor his wife ever paid any taxes on either lot 4 or lot 3; that C. N. Evans paid taxes on both those lots for the years beginning with 1897 and ending with 1909, such taxes being paid each year as they accrued; and that Mrs. Birdie O. Evans has paid taxes on both lots for each and every year as the same became due, beginning with the year 1910, and ending with the year 1920. Mrs. Birdie O Evans, on the 3d day of May, 1917, also paid back taxes on both lots and procured redemption tax receipts therefor for the years beginning with 1885 and ending with the year 1893. Mrs. Birdie O. Evans continued in open possession of both lots up to about one year before the case was tried, when she sold lot 4 and gave a lease on lot 3, from which lease she has been collecting rents at the rate of about $250 per month. She testified that she never heard any one of the plaintiff's claim any interest in lot 3 until about one year before the trial. The evidence tended strongly to show that C. N. Evans claimed ownership of lot 3 up to the date of his death, and that his widow has claimed the same as her own ever since his death. C. N. Evans and wife had four children, and after the death of her husband Mrs. Evans was appointed guardian of the estate of those children; but aside from their occupancy and use of the property, no evidence was introduced to show that they ever gave notice to any of the plaintiffs that they were claiming the property adversely to them. The principal contention made by appellants here is that the evidence conclusively shows that the statute of limitation of 10 years in favor of J. M. Evans began in the year 1893 when he purchased lot 4, that the same continued until the date of his death, and that limitation so begun was continued in behalf of his surviving widow until it was complete. It is further insisted that title under the 10 years' statute of limitation having 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; and 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 O. 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 O. 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 O. 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 O. Evans and C. N. Evans seems sion that the assignment now under discus- to have been permissive only. Or, if, in any sion must be overruled. view of the evidence, it can be said that Birdie O. Evans used the land in controversy adversely to the other heirs of Elvira C. Evans, such other heirs had no notice thereof. At no time do I find in the evidence where Birdie O. Evans claimed in their presence or in the presence of any other the sole right to lot 3, or the sole right to its use and occupancy. The only evidence, if it can be so termed, of such an adverse claim, is the fact that she paid taxes on lot 3 together with lot 4; but those taxes during all of those years were very small, and it has been expressly held that the payment of taxes is not sufficient to divest a cotenant of his interest. Therefore I am of the opinion that the judgment below should be reversed and judgment here rendered for appellants, establishing their interest, and for partition as prayed for in their petition. [4] In the opinion of the majority, the fact that lot 3 was used by J. M. Evans in connection with lot 4, and that he sold lot 4 to his son C. N. Evans, and that nothing was said between them at the time indicating anything to the contrary, was a circumstance tending in some measure to show that he intended to relinquish to his son C. N. Evans the same right of possession of lot 3, used in connection with lot 4, which he himself had exercised. And the majority are of the opinion further that, to say the least, the evidence tended as strongly to show adverse possession in C. N. Evans after the death of his father as it did to show that the adverse possession which had theretofore begun with J. M. Evans was continued by his surviving wife, up to April 4, 1903, the date when the 10 years' statute of limitation, once begun in 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 limitation, beginning with J. M. Evans at the time he purchased lot 4, plaintiffs inherited no title from them and are in no position to claim that C. N. Evans and his wife did not acquire title by limitation as against their codefendant, Susan Smoot. Accordingly, the majority are of the opinion that all assignments of error must be overruled, and the judgment must be affirmed; and it is so ordered. CONNER, C. J. (dissenting). I find myself unable to concur in the conclusion of the majority. As I read the evidence, it is undisputed that lot 3 in controversy was occupied, used, and held adversely to all the world by J. M. Evans and his wife, Elvira C. Evans, from about April 5, 1893, when lot 4 adjoining lot 3 was purchased and deeded to Elvira C. Evans, until the death of J. M. Evans, on June 18, 1901, some 8 years, 2 months, and 13 days; that for more than 2 On Motion for Rehearing. DUNKLIN, J. The majority was in error in their opinion on original hearing in stating that C. M. Caldwell testified that he, together with C. M. Evans, built a house on lot 3 in 1901 or 1902. The record shows that the testimony of that witness was that the house so built was on lot 4, instead of lot 3. While the record shows, as stated in our original opinion, that all the taxes on lots 3 and 4 were paid by C. N. Evans and wife beginning with the year 1897 and ending with the year 1920, the statement of facts shows that D. B. Evans testified that he gave his brother $10 "to pay the taxes," and that at one time he furnished his sister-in-law money with which to pay the taxes. However, the witness does not fix the year in which he made either of those payments, nor does he state whether it was for the purpose of paying taxes on lot 3 or lot 4, or both, and, as shown in our original opinion, C. N. Evans died February 6, 1909. The statement of facts fur ther shows that Mrs. Birdie O. Evans quali- [ments, the city authorities, having declared fied as guardian of her minor children in the year 1919. With the corrections noted, the motion for rehearing is overruled by the majority of the court. CONNER, C. J., dissenting, as upon original hearing. TEXAS BITULITHIC CO. v. DALLAS CON- Dallas. (Court of Civil Appeals of Texas. Feb. 17, 1923. Rehearing Denied March 17, 1923.) 1. Municipal corporations 406(1)-City has only power to assess as is expressly or impliedly granted in charter. The city of Dallas has no power to levy a special assessment or other tax, unless the power is expressly granted by the terms of its charter or by necessary implication therefrom, and such power is not to be inferred, unless the implication is so clear as necessarily to reveal a purpose to grant it. 2. Taxation storm sewers and drains part of a street improvement and the construction of the sewer to be an improvement incident and essential to paving such street, the cost of constructing such storm sewer and drains was properly included as part of local assessment for such street improvement. 6. Municipal corporations 417(1)-Charter provision for general assessment for sewers does not prohibit local assessment for sewers part of street improvement. The provision of Dallas City Charter, art. 2, 4, providing that the board of commissioners may levy a tax on all taxable property within the city for the construction and repair of public sewers, which tax shall be used exclusively for that purpose, does not prohibit the commissioners from including in a local assessment for a street improvement the cost of storm sewers and drains necessarily incident to, and a part of, such improvement, since such section is merely permissive, and applies to the building of sewers independent of street construction. 7. Municipal corporations 425 (3) — Street railway liable to assessment for proportion of cost of storm sewer lying under track. Under Dallas city charter, empowering the 2-Power of taxation vests ex- city to assess against street railways the cost clusively in Legislature. Power of taxation is vested exclusively in the Legislature, to be conferred upon municipalities only to whatever extent may be declared by statutes enacted or charters granted. 3. Municipal corporations ~417(1)—Charter, authorizing street improvements, impliedly authorizes construction of storm sewers and drains and assessment therefor. Though Dallas City Charter, art. 10, § 1, authorizing street improvements, does not expressly provide for the construction of storm sewers and drains, the construction of such drains and the power to make assessments therefor are authorized by the expressions "said term [street improvement] shall also include any other street improvement of a public nature and for a public benefit" and "otherwise improving the same." 4. Municipal corporations 412 City has authority to declare what kinds of work constitute part of local improvement for which local assessment can be made. of that part of a street improvement between the rails and tracks of such street railway or within two feet of the outside of said rails and tracks, the city had no authority to assess against such railway for any part of a storm sewer not under the space comprehended between the rails and two feet on the outside of them, and the determination of the city commissioners in fixing the proportion to be paid by the street railway on any other basis created no liability therefor, since liability could not come into existence and no lien could be created until the construction was actually done, when the proportion of cost could then be de termined. 8. Constitutional law 70 (3) — Injustice of exempting street railway company from fair assessment for storm sewer by reason of charter provision question for Legislature. side of its rails; the justice of the statutory provision being a matter for legislative deter The fact that a storm sewer, constructed as part of a street improvement, equally benefits every part of the street and the inadequacy 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 ascharter or by statute, yet it is within the prov-its tracks and within two feet from the outsessment only for street improvements between ince of the city, not arbitrarily but in the exercise of a sound discretion, to determine whether or not a particular kind of work is part of a local improvement for which the authority to impose a local assessment exists. 5. Municipal corporations 460-Cost of storm sewers and drains part of street paving, 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-Texas Bitulithic Company, to recover an as mination. Appeal from District Court, Dallas County; W. F. Whitehurst, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) sessment for street improvements, in which | city of Dallas for the construction of storm the latter intervened and sought recovery in its own name. From a judgment for defendant, the intervener appeals. Reversed and remanded. Dabney, Goggans & Ritchie, of Dallas, for appellant. Templeton, Beall, Williams & Worsham, and A. S. Rollins, all of Dallas, for appellee. sewers in connection with improvements of the street is authorized by the provisions of the charter; and this further question (subject to its being determined that such authority did exist): Did defendant in error become bound in any event to pay for the construction of any portion of storm sewers which was not constructed between the rails or within two feet thereof? The appeal is rested upon the following propositions: "The city of Dallas did and does have power to, and was authorized by its charter to, levy assessment against street railways occupying streets in said city for all of the cost of constructing storm sewers and drains between the within two feet of the outside of said rails rails and tracks of any such street railways or and tracks. HAMILTON, J. This suit was instituted by the city of Dallas for the benefit of plaintiff in error against the defendant in error and its corporate predecessor, to recover an assessment levied against defendant in error for the construction of a storm sewer on Bryan street in the city of Dallas. The city of Dallas ordered the improvement of this 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 the street, and the tax for the improvements levied and charged against it was alleged to be for the cost of improving the street be estopped to contest it on the ground that the assessment was for a larger proportion or amount of work than was actually between the rails and tracks or within two feet of the out side thereof. "The assessment having been duly and regularly levied and all proceedings with reference thereto required and provided by law having been taken, had, done, and performed, and reasonable attorney's fees having been incurred, the intervener was entitled to judgment in its own name for the amount assessed with interest, attorney's fees, costs, and foreclosure of lien." tween the rails and two feet on the outside thereof. Defendant in error paid all of the tax levied against it for the street improve ment, except that attempted to be fixed against it for the construction of storm sewers. This it declined to pay. The sult was filed, as aforesaid, by the city of Dallas, and plaintiff in error, having constructed all of the improvements for which payment was demanded, intervened, and sought to recover judgment in its own name, the tax having There is no express authority granted to the city of Dallas by its charter to construct heen levied for its benefit. The action was 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 ing been fixed under charter provisions to secure the payment of the amount of the demand. Judgment was rendered in favor of defendant in error upon the theory that the assessment against defendant in error was unauthorized by the charter of the city of Dallas, and also for the reason that, even if the power to make an assessment resided in the city of Dallas, yet the greater portion of the storm sewer was not constructed between the rails of the street railway nor within a distance of two feet on the outside thereof, although the assessment made by the city commission imposed 56.4 per cent. of the cost of such construction upon defendant in error. sewers ers. against railway lines extending through the streets, unless the term "street improvement," as defined in section 1 of article 10 of the charter, is sufficiently expansive in its meaning to embrace storm sewAll the power reposed in the city to levy assessments for street improvements seems to be given it solely and exclusively by the terms of article 10 of the charter. Section 1 of this article, which, as above stated, defines street improvements, is in the following language: or * "The term 'street improvement,' as embraced in this article, shall include the improvement of any street * highway any portion thereof within the city, by filling, grading, raising * paving * There is no statement of facts before this or otherwise improving same, or by the concourt, 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 |