[6] Every owner of land is presumed to know its boundaries and to take notice when they are invaded, and when that invasion arises not from the purpose of the adverse party to prostitute the law of limitation to the unworthy end of securing title to his neighbor's land, but arises by reason of depending on the field notes in the muniment of title issued to his grantor, 10-year possession, and use, vests the party so possessing and using with complete legal title. Author

ities supra.

We are of opinion that defendant in error has under the law when applied to the facts the complete legal title, and the Court of Civil Appeals rightly so adjudged, and we therefore recommend that its judgment be affirmed.

PHILLIPS, C. J. We approve the judgment recommended in this case.

HARBIN INDEPENDENT SCHOOL DIST.
et al. v. DENMAN. (No. 168-3173.)
(Commission of Appeals of Texas, Section B.
June 2, 1920.)

1. Schools and school districts 24 (2)-En-
joining assessment of taxes held collateral at-
tack on corporate existence of district.

A suit to enjoin assessment of taxes on

plaintiff's land by defendant school district, on

the ground that the land was in another district and that the incorporation of the former district was void, in that it encroached on the latter district when it included plaintiff's land, was collateral attack upon the corporate existence of the defendant district, and not maintainable by an individual.

HOUSTON OIL CO. OF TEXAS v. PATTER- by appeal to the injunctive power of the court,

SON. (No. 170-3177.)

since the court cannot do indirectly what cannot be done directly by the commissioners'

KITTRELL, J. This is a companion case to that of the same plaintiff in error against Olive Sternenberg & Co., defendant in error, 222 S. W. 534, No. 169. It involves the question of the title to the land in the upper part of the area in conflict between the L. Bouillet 320-acre survey and the F. F. Elliott, a senior league survey, while the case of Houston Oil Co. v. Olive Sternenberg & Co., involved the title to land in the lower, or southeastern part of the Bouillet.

The same counsel represent the respective parties, and, except the title and style of the cases, the briefs are the same, and both cases were appealed upon the same Statement of Facts.

The opinion in the first-named case (No. 169) is treated as applicable in every respect to this case. Therefore we recommend that the judgment of the Court of Civil Appeals in this

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by B. V. Denman against the Harbin Independent School District and others. The Court of Civil Appeals (200 S. W. 176) affirmed a decree for plaintiff, and defendants bring error. Reversed and rendered.

Chandler & Pannill, of Stephenville, for plaintiffs in error.

Hickman & Bateman, of Stephenville, for defendant in error.

Statement of the Case.

KITTRELL, J. On June 2, 1888, an election was held in Cottonwood, Erath county, for the purpose of determining whether or not said village should be incorporated for school purposes only. The election resulted in favor of incorporation, and the result was duly recorded in the records of the commissioners' court on June 20, 1888, together with the lines and boundaries of the district. No map of the district was ever filed in connection with the field notes, and it is clearly inferable that none was ever made.

On July 9, 1888, five trustees were elected for said district and the report of the election duly recorded. The land of defendant in error was included in the boundaries of said district. In December, 1898, the commissioners' court directed the county surveyor to subdivide the county into convenPHILLIPS, C. J. We approve the judgment ient school districts, which was done, and the boundaries of Cottonwood district were set

case be affirmed.

recommended in this case.

(222 S.W.)

forth in the surveyor's report, as were also, joined as defendants, and prayer was made those of the Harbin school district.

for injunction against them from the assessment or collection of taxes by the Harbin district against his land. The district court granted the prayer of the defendant in error, and the Court of Civil Appeals of the Eighth District affirmed that judgment.

Opinion.

Plaintiffs in error by proper assignments present the question of nonuser on the part of the Cottonwood district, and of the vagueness, indefiniteness, and insufficiency of the boundaries of that district; but the view we

In February, 1904, petition was filed in statutory form for an election to determine whether the inhabitants of the Cottonwood district should levy a tax of 20 cents on the $100 for the purpose of supplementing the state and county school funds. The election was held, the tax voted, and the result duly recorded. At a time not shown by any date, the line between the Cottonwood district and the Harbin district was changed, so as to transfer the property of two citizens from the Harbin to the Cottonwood district. On December 2, 1911, by due statutory | take of the preliminary, and as we conceive process, the Harbin district was duly incor- the controlling, question in the case, makes porated by a vote of 40 to 2 for school pur- discussion of these assignments unnecessary. poses only. The metes and bounds of the As we understand the record, it is not aldistrict are set forth in the order reciting leged that the proceedings whereby the Harthe result of the election, which order was bin independent district was incorporated duly recorded, and the boundaries include were not in all things regular, or that it is the land of the defendant in error. On De- not duly performing all the purposes of its cember 11, 1911, the lands of three citizens incorporation, or that it has not received recwere in accordance with the statute trans-ognition at the hands of the law department ferred from the Harbin district to the Oak of the state, or that it has not issued and Grove district, and the boundaries of the sold bonds which are yet outstanding; but Harbin district were changed to conform to the only ground alleged as basis for injuncthe conditions created by such transfer. tive relief is that its organization is not valid, in that it encroaches on the territory already included in another district, viz. Cottonwood district, and includes the land of defendant in error.

So far as a very meager statement of facts reveals, the Cottonwood school district was conducted in a changing and intermittent | way, sometimes as an independent district, and sometimes as a common school district, apparently for the greater part of the time in the latter way. A witness who lived for several years in the district testified that

"The teachers were paid by vouchers to county judge or county superintendent, just like a common school district, and it didn't claim to be an independent district, and didn't operate as such."

The Cottonwood district never issued any bonds, and never succeeded in obtaining recognition by the Attorney General as an independent district. The Harbin district issued bonds, which were approved by the law department of the state government, and the proceeds were used for the purpose of erecting a schoolhouse, and the bonds are still outstanding, and a sinking fund is provided for their redemption at maturity.

Defendant in error brought his action March 6, 1916, to enjoin the collection of the tax of 50 cents on the $100 levied by the Harbin district, on the ground that the Cottonwood independent district had never been dissolved or abolished, and is yet an existing district, and that as affects his lands the Harbin district had no legal existence. He alleged, further, that the Harbin district includes his lands, and taxes have been and will be in future assessed and collected upon their value. The county tax assessor and county tax collector and the members of the board of trustees of the Harbin district were

[1] Conceding all the defendant in error alleges as matters of fact to be true, and that there were irregularities or even illegalities in the incorporation of the Harbin district, which in a direct proceeding might be sufficient to invalidate its corporate existence, and that it is assuming authority and exercising powers with which it has not been legally vested, these are matters which can only be inquired into and determined in a suit brought for that purpose in the name of the state, or by some individual under its authority, who has a special interest which is affected by the existence of the corporation. It cannot be done by an individual suing to enjoin the collection of a tax levied by the authorities of the district. It was so held in Graham v. Greenville, 67 Tex. 62, 2 S. W. 742, and that holding has been consistently adhered to.

That case is cited as authority in the case of City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25. In the last-named case the She recity sued Mrs. Ruckman for taxes. sisted on the ground that the city did not have valid control of its public schools. Her contention was sustained by the trial court, and the Court of Civil Appeals of the Fourth District certified the case to the Supreme Court. It was conceded that neither of two elections held with reference to the city taking control of its public schools was regular, or sufficient to constitute the city a school district, and it was so certified, and the Su

preme Court was asked to answer whether, in view of that fact, taken in connection with the long-continued exercise of the powers of a school district, its legal existence could be inquired into in a suit by the city to recover taxes levied for the years 1894-1895. The Supreme Court answered the question in the negative. It said:

"When the creation of a public corporation, municipal or quasi municipal, is authorized by statute, and a corporation has been organized under color of such authority, its corporate existence cannot be inquired into collateral proceeding."

*

in a

That holding has never been departed from; on the contrary, has been followed at as late a date as the time of the decision of the case of Crabb v. Celeste School District, 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146. In the Ruckman Case the city sued to recover taxes. In the instant case the plaintiff (defendant in error) sued to enjoin the levy and collection of the tax. Had he been sued as was the defendant in the Ruckman Case, and had set up as a defense the same contention he presented affirmatively in the trial court, his answer would have been subject to demurrer, on the ground that it involved a collateral attack on the validity of the corporation..

Mr. Cooley says:

"When the question arises collaterally, the courts will not permit its corporate character to be questioned if it appears to be acting under the color of law, and recognized by the state as such" (a corporation).

In the Ruckman Case, Chief Justice Gaines said:

"The election was irregular, and for that reason might have been set aside in a proper proceeding instituted for that purpose. But, having been acquiesced in by the state and all parties in interest, * it [the city] was

an effective and legal control."

The fact has not been lost sight of that the facts in the cases cited were not identical with those in the case before us, nor were the grounds of defense the same; but, regardless of such differences, the fact remains that a corporation, organized pursuant to the forms of law, and the legal existence of which has been recognized by the superior sovereign, the state, and which is performing all the functions for which it was organized, is attacked, and its right to exist called in question in a collateral way, which cannot be done whatever may be the grounds upon which the attack is based.

Applying the established rules of law to the instant case, we find that defendant in error had lived for about 16 years where he was living at the time he brought his action. The Harbin independent school district was organized in 1911. So far as the record reveals, he made no protest nor offered any objection to the incorporation of his property within its territory, nor did he invoke the process of the law to prevent such action.

We are not able to perceive any distinction in principle between the two situations, because in one he would have been defendant, and in the other he is plaintiff. In either attitude his attack on the corporation would be distinctly collateral. No complaint was made by plaintiff in the court below, nor is any made here, that there has been any such action taken by the commissioners' court as He alleges no inconvenience as regards acwould have justified the exercise of the su- cess to the schools, nor does he impute any pervisory power of the district court which improper purpose or action to the commiswas invoked in the cases of McLaughlin v. sioners' court. He waited until the district Smith, 105 Tex. 330, 148 S. W. 288, Dubose had been òrganized five years, and until v. Woods (Civ. App.) 162 S. W. 3, and Wil- four years after it had issued bonds, before liams v. Woods (Civ. App.) 162 S. W. 1031. he took any action by which the legal exist The sole ground on which he bases his prayer | ence of the district could be tested, and then for injunctive relief is that the Harbin school district has no legal existence; hence has no right to exercise the sovereign power of taxation.

It certainly exists de facto, and has secured recognition at the hands of the state, which the Cottonwood district has never received, and it is performing all its functions as a body corporate, and its right so to do cannot be called in question in the manner attempted by plaintiff in the court below. The duty does not devolve upon us to discuss the reasons for the holding so long prevailing. They are based on sound principle, and supported by high and long-recognized authority. The late Chief Justice Willie said: "If a municipality has been illegally constituted, the state alone can take advantage of

chose a method which was ineffective and unavailable.

[2] If the plaintiff below could succeed in achieving his purpose, he would, by changing the boundaries of the district, reduce the taxable value of the property included in it, after the district has issued bonds which are outstanding obligations. Such change is expressly forbidden by section 50, c. 124, Acts 29th Leg., as amended by chapter 12 of the act of February 18, 1909, and that cannot be done indirectly, by appeal to the injunetive power of the district court, which cannot be done directly by the commissioners' court.

It follows from what we have said that the district court erred in granting defendant in error's prayer for injunction. We recom

(222 S.W.)

court and of the Court of Civil Appeals be re- | tion, a special issue as to whether the duty versed, and judgment be here rendered for rested on the master to place in the excavation plaintiffs in error. material for curbing the wall, and, if so, whether the master failed in that duty, and, if so,

PHILLIPS, C. J. We approve the judg- whether employé in the exercise of ordinary ment recommended in this case.

In employé's action for personal injuries sustained by caving in of wall of excavation, (Commission of Appeals of Texas, Section B. a special issue as to whether the failure of the

MCCLENDON, J. C. E. Winters, the plaintiff, while in the employ of the Texas City Transportation Company, the defendant, as a carpenter foreman, superintending at the time the construction of concrete forms in an excavation at Texas City, received personal

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

injuries, caused by a caving in of a portion [pleadings and supported by the evidence was of one of the sides of the excavation. Plain- whether defendant had negligently failed tiff brought this suit against defendant to recover compensatory damages for said injuries. The Court of Civil Appeals affirmed a judgment of the trial court in favor of plaintiff, rendered upon a verdict upon special issues. 193 S. W. 366.

to furnish plaintiff a safe place to work, and that all other issues were incidental thereto and evidentiary. It will thus be seen that the questions here presented are more or less interrelated, and in order to determine the correctness of the holdings of the Court of Civil Appeals a clear understanding of the issues presented by the pleadings is es

[1] Defendant presents in this court seven assignments of error. The last two of these relate to the action of the trial court in re-sential. fusing to strike out certain testimony as hearsay, and the refusal to permit defendant to introduce certain portions of plaintiff's pleadings. These assignments do not present questions of substantive law, and are not, therefore, within, the jurisdiction of the Supreme Court.

The other five assignments, eliminating duplication, relate to the refusal of three special issues requested by defendant and objection to the first special issue submitted to the jury, which special issues were in substance:

(1) Defendant's refused special issue No. 14, calling for a finding whether the duty to see to the safety of the walls of the excavation rested upon the plaintiff.

(2) Defendant's refused special issue No. 16, calling for a finding whether the duty rested upon defendant to place in the excavation material for curbing the walls; and, if so, whether defendant failed in that duty; and, if so, whether plaintiff by the exercise of ordinary care could have obtained the material.

(3) Defendant's refused special issue No. 13, calling for a finding whether the failure of C. A. Stevens, defendant's engineer, to warn plaintiff of the dangerous condition of the walls was the proximate cause of plaintiff's injury, in the event the jury should find that Stevens knew of such dangerous condition.

(4) The trial court's special issue No. 1 submitted to the jury reading: "Did the defendant exercise reasonable care to furnish plaintiff a safe place to work?"

The Court of Civil Appeals held that defendant's special issues Nos. 14 and 16 were properly refused, because there was no evidence of probative force to support them. With regard to defendant's special issue numbered 13 above, the court held that they were unable to determine whether the requested issue related to contributory negligence of plaintiff or to the proximate cause of his injuries, but that in either event no error was presented, because the case was within the Employers' Liability Act, which abolished the fellow servant defense, and because the court in issue No. 9 properly submitted the issue of proximate cause.

The objection urged to special issue No. 1 was that the whole matter of negligence was condensed into one issue, whereas a number of issues were tendered by the pleadings. This contention was overruled, upon the ground that the only issue presented by the

[2] It may be stated at the outset that, although the general duty of furnishing plaintiff a safe place in which to work rested upon the defendant, yet if, under the terms of plaintiff's employment as a carpenter foreman, he was charged with the duty of seeing that the walls of the excavation were safe for himself and those working under him, recovery cannot be had by him, based upon his own dereliction in the performance of that duty. The pleadings of both parties are very fully set out in the opinion of the Court of Civil Appeals. A careful analysis of them leads to the conclusion that the following issues were clearly presented thereby: First, whether the duty to see to the safety of the walls of the excavation rested upon plaintiff; second, whether defendant negligently failed to furnish plaintiff a safe place to work; third, whether the duty rested upon defendant to furnish plaintiff with material to brace the walls, and it failed in that duty; and, fourth, whether defendant's engineer in charge knew of the dangerous condition of the wall and failed to warn plaintiff thereof. The last three of these issues are raised by plaintiff's pleadings in alleging primary negligence on defendant's part; the first issue is raised by defendant's answer.

[3-5] Considering first special issue No. 1, it is quite evident to our mind that the objection thereto is not well taken. The general rule laid down by the authorities with respect to the submission of special issues is that every issue of fact presented by the pleadings and supported by evidence must be submitted to the jury, where requested by either party. So far the law is mandatory. The particular manner in which the issues are presented is largely discretionary with the trial court. By the expression "issues of fact" is not meant the various controverted specific facts which may enter into the main issues of fact, but only the independent ultimate facts which go to make up plaintiff's cause of action and defendant's ground of defense, If such ultimate issues of fact are fairly presented, the mode of presenting them by the trial court will not be reviewed. Nor will too great a generalization by the trial court be reviewed, even upon timely objection, in the absence of correct special issues tendered by the objecting party, unless there is affirmative error in the issue submitted by the court. This