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[6] Every owner of land is presumed to know its boundaries and to take notice when HARBIN INDEPENDENT SCHOOL DIST. they are invaded, and when that invasion et al. v. DENMAN. (No. 168–3173.) arises not from the purpose of the adverse (Commission of Appeals of Texas, Section B. party to prostitute the law of limitation to

June 2, 1920.) the unworthy end of securing title to his neighbor's land, but arises by reason of de- l, Schools and school districts 24(2)-Enpending on the field notes in the muniment

joining assessment of taxes held collateral at. of title issued to his grantor, 10-year posses

tack on corporate existence of district. sion, and use, vests the party so possessing

A suit to enjoin assessment of taxes on and using with complete legal title. Author- the ground that the land was in another district

plaintiff's land by defendant school district, on ities supra.

and that the incorporation of the former disWe are of opinion that defendant in error trict was void, in that it encroached on the lathas under the law when applied to the facts ter district when it included plaintiff's land, was the complete legal title, and the Court of collateral attack upon the corporate existence Civil Appeals rightly so adjudged, and we of the defendant district, and not maintainable therefore recommend that its judgment be by an individual. affirmed.

2. Schools and school districts 32-Bound.

aries may not be changed indirectly by injuncPHILLIPS, C. J. We approve the judg- tion after issuance of bonds. ment recommended in this case,

The boundaries of a school district may not be changed, so as to reduce the taxable value of the property included in it after the district has issued bonds which are outstanding obligations, under Acts 29th Leg. (1905) c. 124, $ 50,

as amended by Acts 31st Leg. (1909) c. 12, 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 can

not be done directly by the commissioners' (Commission of Appeals of Texas, Section B. court. June 9, 1920.)

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

Supreme Judicial District. Suit by M. L. Patterson against the Houston

Suit by B. V. Denman against the Harbin Oil Company of Texas. A judgment for plain- Independent School District and others. tiff was affirmed by the Court of Civil Appeals The Court of Civil Appeals (200 S. W. 176) (199 S. W. 1140), and the defendant brings er- affirmed a decree for plaintiff, and defend

Judgment of Court of Civil Appeals af- ants bring error. Reversed and rendered. firmed.

Chandler '& Pannill, of Stephenville, for H. 0. Head, of Sherman, and Kennerly, Wil: plaintiffs in error. liams, Lee & Hill and Fred L. Williams, all of

Hickman & Bateman, of Stephenville, for Houston, for plaintiff in error. D. F. Singleton, of Kountze, for defendant in defendant in error.

Statement of the Case. KITTRELL, J. This is a companion case to KITTRELL, J. On June 2, 1888, an electhat of the same plaintiff in error against Olive tion was held in Cottonwood, Erath county, Sternenberg & Co., defendant in error, 222 S. for the purpose of determining whether or W. 534, No. 169. It involves the question of the title to the land in the upper part of the not said village should be incorporated for area in conflict between the L. Bouillet 320-acre school purposes only. The election resulted survey and the F. F. Elliott, a senior league favor of incorporation, and the result was survey, while the case of Houston Oil Co. v. duly recorded in the records of the commisOlive Sternenberg & Co., involved the title to sioners' court on June 20, 1888, together with land in the lower, or southeastern part of the the lines and boundaries of the district. No Bouillet.

map of the district was ever filed in connecThe same counsel represent the respective parties, and, except the title and style of the tion with the field notes, and it is clearly incases, the briefs are the same, and both cases ferable that none was ever made. were appealed upon the same Statement of On July 9, 1888, five trustees were elected Facts.

for said district and the report of the elecThe opinion in the first-named case (No. 169) tion duly recorded. The land of defendant is treated as applicable in every respect to in error was included in the boundaries of this case. Therefore we recommend that the judgment of the Court of Civil Appeals in this said district. In December, 1898, the com

missioners' court directed the county surcase be affirmed.

veyor to subdivide the county into convenPHILLIPS, C. J. We approve the judgment ient school districts, which was done, and the recommended in this case.

| boundaries of Cottonwood district were set

ror.

error.

(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 assessIn February, 1904, petition was filed in ment or collection of taxes by the Harbin statutory form for an election to determine district against his land. The district court whether the inhabitants of the Cottonwood granted the prayer of the defendant in error, district should levy a tax of 20 cents on the and the Court of Civil Appeals of the Eighth $100 for the purpose of supplementing the District affirmed that judgment. state and county school funds. The election was held, the tax voted, and the result duly

Opinion. recorded. At a time not shown by any date, Plaintiffs in error by proper assignments the line between the Cottonwood district and present the question of nonuser on the part the Harbin district was changed, so as to of the Cottonwood district, and of the vague transfer the property of two citizens from ness, indefiniteness, and insufficiency of the the Harbin to the Cottonwood district. boundaries of that district; but the view we

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

So far as a very meager statement of facts valid, in that it encroaches on the territory reveals, the Cottonwood school district was already included in another district, viz. conducted in a changing and intermittent Cottonwood district, and includes the land of way, sometimes as an independent district, defendant in error. and sometimes as a common school district,

[1] Conceding all the defendant in error alapparently for the greater part of the time in leges as matters of fact to be true, and that the latter way. A witness who lived for there were irregularities or even illegalities several years in the district testified that,

in the incorporation of the Harbin district, "The teachers were paid by vouchers to coun

which in a direct proceeding might be sufty judge or county superintendent, just like a ficient to invalidate its corporate existence, common school district, and it didn't claim to and that it is assuming authority and exerbe an independent district, and didn't operate cising powers with which it has not been as such."

legally vested, these are matters which can

only be inquired into and determined in a The Cottonwood district never issued any suit brought for that purpose in the name of bonds, and never succeeded in obtaining rec- the state, or by some individual under its ognition by the Attorney General as an inde- authority, who has a special interest which pendent district. The Harbin district issued is affected by the existence of the corpora. bonds, which were approved by the law de- tion. It cannot be done by an individual partment of the state government, and the suing to enjoin the collection of a tax levied proceeds were used for the purpose of erect- by the authorities of the district. It was so ing a schoolhouse, and the bonds are still héld in Graham v. Greenville, 67 Tex, 62, 2 outstanding, and a sinking fund is provided S. W. 742, and that holding has been confor their redemption at maturity.

sistently adhered to. Defendant in error brought his action That case is cited as authority in the case March 6, 1916, to enjoin the collection of the of City of El Paso v. Ruckman, 92 Tex. 86, tax of 50 cents on the $100 levied by the | 46 S. W. 25. In the last-named case the Harbin district, on the ground that the Cot-city sued Mrs. Ruckman for taxes.

She retonwood independent district had never been sisted on the ground that the city did not dissolved or abolished, and is yet an exist- have valid control of its public schools. Her ing district, and that as affects his lands the contention was sustained by the trial court, Harbin district had no legal existence. He and the Court of Civil Appeals of the Fourth alleged, further, that the Harbin district in- District certified the case to the Supreme cludes his lands, and taxes have been and Court. It was conceded that neither of two will be in future assessed and collected up- elections held with reference to the city takon their value. The county tax assessor and ing control of its public schools was regular, county tax collector and the members of the or sufficient to constitute the city a school board of trustees of the Harbin district were district, and it was so certified, and the Su

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preme Court was asked to answer whether, Mr. Cooley says: in view of that fact, taken in connection with

"When the question arises collaterally, the the long-continued exercise of the powers of courts will not permit its corporate character a school district, its legal existence could be to be questioned if it appears to be acting under inquired into in a suit by the city to recover the color of law, and recognized by the state taxes levied for the years 1894–1895. The as such” (a corporation). Supreme Court answered the question in the

In the Ruckman Case, Chief Justice negative. It said:

Gaines said: "When the creation of a public corporation, municipal or quasi municipal, is authorized by “The election was irregular, and for that statute, and a corporation has been organized reason might have been set aside in a proper under color of such authority, its corporate ex- proceeding instituted for that purpose. But, istence cannot be inquired into

* in a having been acquiesced in by the state and all collateral proceeding."

parties in interest, * * it (the city) was

an effective and legal control.” That holding has never been departed from; on the contrary, has been followed at The fact has not been lost sight of that as late a date as the time of the decision the facts in the cases cited were not identi. of the case of Crabb v. Celeste School Dis- cal with those in the case before us, nor were trict, 105 Tex. 194, 146 S. W. 528, 39 L. R. A. the grounds of defense the same; but, regard. (N. S.) 601, Ann. Cas. 1915B, 1146. In the less of such differences, the fact remains Ruckman Case the city sued to recover taxes. that a corporation, organized pursuant to In the instant case the plaintiff (defendant the forms of law, and the legal existence of in error) sued to enjoin the levy and collec- which has been recognized by the superior tion of the tax. Had he been sued as was sovereign, the state, and which is performing the defendant in the Ruckman Case, and had all the functions for which it was organized, set up as a defense the same contention he is attacked, and its right to exist called in presented affirmatively in the trial court, his question in a collateral way, which cannot answer would have been subject to demur- be done whatever may be the grounds upon rer, on the ground that it involved a collat- which the attack is based. eral attack on the validity of the corpora- Applying the established rules of law to tion.

the instant case, we find that defendant in We are not able to perceive any distinction error had lived for about 16 years where he in principle between the two situations, be was living at the time he brought his action. cause in one he would have been defendant, The Harbin independent school district was and in the other he is plaintiff. In either organized in 1911. So far as the record reattitude his attack on the corporation would veals, he made no protest nor offered any obbe distinctly collateral. No complaint was jection to the incorporation of his property made by plaintiff in the court below, nor is within its territory, nor did he invoke the any made here, that there has been any such process of the law to prevent such action. 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 existThe sole ground on which he bases his prayer ence of the district could be tested, and then for injunctive relief is that the Harbin chose a method which was ineffective and school district has no legal existence; hence unavailable. has no right to exercise the sovereign power [2] If the plaintiff below could succeed in of taxation.

achieving his purpose, he would, by changing It certainly exists de facto, and has se the boundaries of the district, reduce the taxcured recognition at the hands of the state, able value of the property included in it, aft. which the Cottonwood district has never re- er the district has issued bonds which are ceived, and it is performing all its functions outstanding obligations. Such change is exas a body corporate, and its right so to do pressly forbidden by section 50, c. 124, Acts cannot be called in question in the manner at- 29th Leg., as amended by chapter 12 of the tempted by plaintiff in the court below. act of February 18, 1909, and that cannot The duty does not devolve upon us to discuss be done indirectly, by appeal to the injuncthe reasons for the holding so long prevail- tive power of the district court, which can. ing. They are based on sound principle, and not be done directly by the commissioners' supported by high and long-recognized au- court. thority. The late Chief Justice Willie said: It follows from what we have said that

"If a municipality has been illegally consti- | the district court erred in granting defendant tuted, the state alone can take advantage of 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, wheth

er 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.

care could have obtained the material, was
improperly refused, where sustained by evi-
dence.
7. Trial @ww.350(6)—Special issue as to wheth-

er failure to warn was proximate cause of inTEXAS CITY TRANSP. CO. V. WINTERS.

jury held improperly refused. (No. 145–3083.)

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 June 9, 1920.)

master's engineer to warn plaintiff of the dan1. Appeal and error en 1082(1)-Assignments serous condition of the wall was the proximate not presenting questions of substantive law where sustained by evidence.

cause of the injury held improperly refused, not within jurisdiction of Supreme Court.

Assignments of error, not presenting ques. 8. Appeal and error m1062 (2)–Refusal of tions of substantive law, are not within the special issue as to safe place to work held jurisdiction of the Supreme Court, on writ of

harmless error. error to Court of Civil Appeals.

In employé's action for personal injuries 2. Master and servant Cw103(2)-Injuries to cavation, refusal of a special issue as to wheth

sustained by the caving in of a wall of an exservant charged with duty of making working er duty of placing in the excavation material for place safe not actionable.

curbing the wall rested on defendant, and If under the terms of the employment the whether he failed therein, and whether the employé was charged with the duty of seeing employé by his exercise of ordinary care could that the walls of an excavation are safe for bave obtained material, held harmless error. himself and those working under him, recovery cannot be had by him for injuries based on his 9. Appeal and error cm 1062(2)-Refusal of dereliction in performance of that duty.

special issue as to failure to warn as proxi.

mate cause held harmless error. 3. Trial 350(2)-Rule with respect to sub

In employé's action for personal injury susmission of special “issues of fact” stated.

tained by the caving in of a wall of excavation, Every issue of fact presented by the plead- refusal of a special issue as to whether the ings and supported by evidence must be sub- failure of defendant's engineer to warn plainmitted to the jury, where requested by either tiff of dangerous conditions was the proximate party; "issues of fact” meaning, not the various cause of the injury held harmless error. controverted specific facts which may enter into the main issues of fact, but only the in- 10. Master and servant Om286(3)-Evidence dependent ultimate facts which go to make up

held to raise issue as to employé's duty to plaintiff's cause of action and defendant's

make place of work safe. ground of defense.

In a foreman's action for injury by caving [Ed. Note.-For other definitions, see Words in of a wall in an excavation, evidence held to and Phrases, First and Second Series, Issue of raise the issue as to whether the duty to see Fact.]

to the safety of the wall rested on plaintiff. 4. Appeal and error 974(1) Trial

Error to Court of Civil Appeals of First 352(1)-Mode of presentation of ultimate is

Supreme Judicial District. sues of fact to jury will not be reviewed.

If ultimate issues of fact are fairly pre- Action by C. E. Winters against the Texas sented to the jury, the mode of presenting City Transportation Company. Judgment them by the trial court is discretionary and will for plaintiff was affirmed (193 S. W. 366), and not be reviewed.

defendant brings error. Reversed and re5. Appeal and error 218(2) When too manded, as recommended by the Commission

great generalization in submission of special of Appeals. issues will not be reviewed stated.

W. T. Armstrong, of Galveston, and EuToo great a generalization by the trial court in submitting ultimate issues of fact to the gene A. Wilson, of Brownwood, for plaintiff

in error. jury will not be reviewed, even upon timely objection, in the absence of correct special issues

Frank S. Anderson and Aubrey Fuller, tendered by the objecting party, unless there is both of Galveston, for defendant in error. affirmative error in the issues submitted by the court.

MCCLENDON, J. C. E. Winters, the plain6. Trial 350(6)—Special issue as to duty tiff, while in the employ of the Texas City of placing material for curbing walls in exca- Transportation Company, the defendant, as vation held improperly refused.

a carpenter foreman, superintending at the In an employé's action for injuries sus- time the construction of concrete forms in an tained by the caving in of a side of an excava- excavation at Texas City, received personal

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

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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 to furnish plaintiff a safe place to work, and recover compensatory damages for said in that all other issues were incidental therejuries. The Court of Civil Appeals affirmed to and evidentiary. It will thus be seen that a judgment of the trial court in favor of the questions here presented are more or less plaintiff, rendered upon a verdict upon spe- interrelated, and in order to determine the cial issues. 193 S. W. 366.

correctness of the holdings of the Court of [1] Defendant presents in this court seven Civil Appeals a clear understanding of the assignments of error. The last two of these issues presented by the pleadings is esrelate to the action of the trial court in re- sential. fusing to strike out certain testimony as [2] It may be stated at the outset that, alhearsay, and the refusal to permit defendant though the general duty of furnishing plainto introduce certain portions of plaintiff's tiff a safe place in which to work rested upon pleadings. These assignments do not present the defendant, yet if, under the terms of questions of substantive law, and are not, plaintiff's employment as a carpenter foretherefore, within the jurisdiction of the man, he was charged with the duty of seeing Supreme Court.

that the walls of the excavation were safe for The other five assignments, eliminating himself and those working under him, recorduplication, relate to the refusal of three ery cannot be had by him, based upon his own special issues requested by defendant and dereliction in the performance of that duty. objection to the first special issue submitted The pleadings of both parties are very fully to the jury, which special issues were in sub set out in the opinion of the Court of Civil stance:

Appeals. A careful analysis of them leads (1) Defendant's refused special issue No. 14, to the conclusion that the following iscalling for a finding whether the duty to see sues were clearly presented thereby: First, to the safety of the walls of the excavation whether the duty to see to the safety of the rested upon the plaintiff.

walls of the excavation rested upon plain(2) Defendant's refused special issue No. 16, tiff ; second, whether defendant negligently calling for a finding whether the duty rested failed to furnish plaintiff a safe place to upon defendant to place in the excavation ma-work; third, whether the duty rested upon terial for curbing the walls; and, if so, whether defendant to furnish plaintiff with material defendant failed in that duty; and, if so, whether plaintiff by the exercise of ordinary care

to brace the walls, and it failed in that duty; could have obtained the material.

and, fourth, whether defendant's engineer (3) Defendant's refused special issue No. 13, in charge knew of the dangerous condition calling for a finding whether the failure of c. of the wall and failed to warn plaintiff thereA. Stevens, defendant's engineer, to warn plain- of. The last three of these issues are raised tiff of the dangerous condition of the walls was by plaintiff's pleadings in alleging primary the proximate cause of plaintiff's injury, in negligence on defendant's part; the first isthe event the jury should find that Stevens sue is raised by defendant's answer. knew of such dangerous condition.

(3-5] Considering first special issue No. 1, (4) The trial court's special issue No. 1 submitted to the jury reading: "Did the de- it is quite evident to our mind that the obfendant exercise reasonable care to furnish jection thereto is not well taken. The genplaintiff a safe place to work ?"

eral rule laid down by the authorities with

respect to the submission of special issues The Court of Civil Appeals held that de- is that every issue of fact presented by the fendant's special issues Nos. 14 and 16 were pleadings and supported by evidence must properly refused, because there was no evi- be submitted to the jury, where requested dence of probative force to support them. by either party. So far the law is mandaWith regard to defendant's special issue tory. The particular manner in which the numbered 13 above, the court held that they issues are presented is largely discretionary were unable to determine whether the re- with the trial court. By the expression “is. quested issue related to contributory negli- sues of fact" is not meant the various congence of plaintiff or to the proximate cause troverted specific facts which may enter of his injuries, but that in either event no into the main issues of fact, but only the error was presented, because the case was independent ultimate facts which go to within the Employers' Liability Act, which make up plaintiff's cause of action and deabolished the fellow servant defense, and be fendant's ground of defense, If such ulticause the court in issue No. 9 properly sub-mate issues of fact are fairly presented, the mitted the issue of proximate cause.

mode of presenting them by the trial court The objection urged to special issue No. 1 will not be reviewed. Nor will too great a was that the whole matter of negligence was generalization by the trial court be reviewed, condensed into one issue, whereas a number even upon timely objection, in the absence of of issues were tendered by the pleadings. correct special issues tendered by the obThis contention was overruled, upon the jecting party, unless there is affirmative er

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