as a cemetery for use by the public for cemetery purposes and to be known as the Southside Cemetery; that he had platted said land into burial lots and blocks, streets, and passways and that said plat had been duly filed for record in the deed records of Tarrant county. Plaintiff further alleged that after filing said plat he proceeded to improve said property for cemetery purposes, and that bodies of deceased persons had been interred in some of the lots shown in said plat, one of which bodies was buried on the particular strip of land sought to be condemned in a lot which plaintiff had conveyed by regular deed of conveyance. It was further alleged that to use the strip of land sought to be condemned for the purposes alleged in the petition for condemnation will entirely destroy and render useless all the property so dedicated for cemetery purposes. He further alleged, in substance, that by reason of such prior dedication of the property as a cemetery it was not subject to condemnation, and for that additional reason the county court had no jurisdiction of the proposed condemnation proceedings. Article 6504 is as follows: "If any railroad corporation shall at any time be unable to agree with the owner for the purchase of any real estate, or the material thereon, required for the purposes of its incorporation or the transaction of its business for its depots, station buildings, machine and repair shops, for the construction of reservoirs for the water supply, or for the right of way, or for new right of way for change or relocation of roadbed to shorten the line, or any part thereof or to reduce its grades, or any of them, which is hereby authorized and permitted, or for any other lawful purpose connected with or necessary to the building, operating, or running its road, such corporation may acquire such property in the manner provided in this chapter; provided, that the limitation in width prescribed in article 6484, shall not apply to real estate, or any interest therein, required for the purposes herein mentioned, other than right of way, and that real estate, or any interest therein, to be acquired for such other purposes or any of them need not adjoin or abut on the right of way; provided, further, that no change of the line through any city or town, or which will result in the abandonment of any station or depot, shall be made, except upon written order of the railroad commission of Texas, authorizing such change; and provided, further, that no railroad corporation shall have the right under this act to condemn any land for the purposes mentioned in this article situated more than two miles from the right of way of such railroad corporation." sy "shall be tried and determined as in other civil causes in said court." By article 6530 it is provided that after the commissioners have assessed the damages, and before the rendition of a final judgment by the county court, the plaintiff in the condemnation suit shall have the right to take possession of the property sought to be condemned by depositing in court the amount of damages assessed by the commissioners and by giving bond in a like amount to secure any additional damages that may be finally adjudged against such plaintiff. Subdivision 3 of that article is as follows: "Should it be determined on final decision of the case that the right to condemn the property surrender possession thereof, if he has taken in question does not exist, the plaintiff shall possession pending litigation, and the court shall so adjudge and order a writ of possession for the property in favor of the defendant, and the court may also inquire what damages, if any, have been suffered by the defendant by reason of the temporary possession of the plaintiff, and order the same paid out of the award or other where the award paid the defendant or appromoney deposited; provided, that in any case priated by him exceeds the value of the property as determined by the final judgment, the court shall adjudge the excess to be returned to the plaintiff. If the cause should be appealed from the decision of the county court, the appeal shall be governed by the same law as in other cases; except the judgment of the county court shall not be suspended thereby. The rules herein before laid down for governing railroad corporations shall likewise apply to all persons and corporations having the right of eminent domain." dedication. the As noted already the strip in controversy is a part of the land described in the plat of Appellant contends that proof shows further and conclusively that there had been no failure of himself and the railway company to agree on the amount of his damages. He insists that the proof also shows, as alleged in his petition, that, unless restrained from so doing, the railway company will, as authorized by article 6530, take possession of the strip of land desired as soon as the commissioners shall have made the assessment of damages, and will immediately proceed to subject it to the uses desired, and that the work that will be done and the improvements that will be constructed to accomplish such purposes will result in irreparable injury to the plaintiff, the public, and owners of other lots in the tract dedicated for cemetery purposes, for which adequate compensation cannot be awarded. He insists that an injunction will be necessary to prevent such irreparable injury by restraining, in advance, the statutory proceedings which, if followed, will lead to the infliction of such an injury. Other articles of chapter 8, title 115, of our Statutes, contain provisions for the assessment by the commissioners of damages caused by the condemnation proposed, for a return to the county court of a report of such assessment, and articles 6527 to 6530, inclusive, prescribe the proceedings to be fol- [2] It is insisted that, as the county court lowed by the county court for the rendition has no jurisdiction of the condemnation proof a final judgment of condemnation, in- ceedings for each of the two reasons alleged cluding the determination of any opposition and noted above, the proposed condemnation, by the owner of the land to the decision of if effected, will be null and void, and hence the commissioners, and article 6527 contains the district court has jurisdiction to enjoin C. & S. F. Ry. v. F. W. & R. G. Ry., 86 Tex. 537, 26 S. W. 54, to support the proposition that the enforcement of a judgment of condemnation of land which is absolutely void may be enjoined by the district court. The same can be said of any other character of judgment. A judgment of the county court condemning property for uses by the railway company has no such special features as would distinguish it from other judgments, so far as that question may be involved. It is well settled that allegations of jurisdictional facts relating to the subject-matter of the suit, contained in a petition, of themselves, confer jurisdiction to determine the controversy presented, and that such jurisdiction will be retained by the court until the defendant alleges and proves that those allegations were made for the fraudulent purpose of conferring jurisdiction. Hoffman v. C. B. & L. Ass'n, 85 Tex. 409, 22 S. W. 154, [3] As the application filed by the railroad company in the county court contained allegations of all facts necessary to confer upon the county court jurisdiction to determine the issues involved in the proposed condemnation, the filing of the application immediately fixed jurisdiction. Furthermore, the good faith of those allegations was not attacked by Ellis, either by pleading or by proof. [4] Appellant's contention that the proposed proceedings in the county court will be void for lack of jurisdictional facts, and that the district court had the right to determine in advance of the county court those jurisdictional issues, is predicated upon the assumption that the court of equity can restrain the exercise of a clear unconditional right to condemnation proceedings in another court expressly conferred by statutes the constitutionality of which is not even challenged, and we think it too clear for argument that a court of equity has no such power. As the county court acquired jurisdiction to determine the controversy, and as it had exclusive original jurisdiction to try and determine it, that court's jurisdiction so to do could not be ousted by the district court. Furthermore, the proof introduced was ample to support a finding that prior to the institution of condemnation proceedings the railway company, through its representative, had attempted to reach an agreement with Ellis as to the damages he would sustain by reason of the condemnation proposed, but that the parties had been unable to reach an agreement upon that issue. [5, 6] The proof showed also that only two lots shown on the plat of dedication had been conveyed, both of which were donated to H. F. Spellman, an undertaker, who had buried two bodies therein, apparently of indigents; that those lots were conveyed at appellant's instance for the purpose of starting the use of the platted land for cemetery purposes; that appellant himself had select ed the two lots to be so used, one of which was within the boundaries of the proposed railway right of way and the other in close proximity thereto; that such selections were made after the railway company had made a preliminary survey of the right of way and had marked the same within stakes; and that the entire ground platted and dedicated by appellant for a cemetery, with the exception of those two lots, is still owned by him individually, and not by a cemetery corporation. If under such a showing it can be said that the property sought to be condemned is not subject to condemnation it must be presumed that the county court will so decide. It cannot be presumed that its decision will be incorrect. In any event, appellant's remedy for an erroneous decision by that court will be by appeal to a higher court in which is vested the power to correct the error. [7] If after the commissioners have made their report of damages assessed by them, and before the rendition of a judgment by the county court of the issues involved in the condemnation proceedings, the railway company takes possession of the strip of land in controversy and subjects it to the uses proposed, as it will have the right to do under the terms and conditions prescribed in article 6530, and if it shall be finally adjudged that the right to condemn the property does not exist, and the railway company is required to surrender possession of the property so taken and to pay damages for such temporary taking, according to the provisions of subdivision 3 of that article, yet we are unable to perceive any reasonable basis for the contention that appellant cannot be adequately compensated in damages for such temporary possession and use of the right of way by the railway company; since in estimating such damages injury, not only to the right of way, but also to the property adjacent thereto, can properly be considered. Articles 6518 to 6530, inclusive. It is quite apparent that appellant's entire interest in the property dedicated is a mere financial interest in the profits he expects to realize from the sale of proposed burial lots, and he shows no legal right to complain of any irreparable injury of which the public or the relatives of the two persons buried might possibly complain, if indeed they could have a valid claim for equitable relief in the nature of that sought by appellant. He is the grantor, and not in any sense a grantee in the proposed dedication. With the exception of the two lots in which the bodies of the two indigents were buried, appellant owns all the lots platted, and is suing in his own right and not for the use and benefit of the public or as its lawful representative. No cemetery corporation to take over the property has been chartered, and it is not owned by any such a corporation. [8] Appellant cites C., B. & Q. Ry. v. C., Ft. M. & D. M. Ry., 91 Iowa, 16, 58 N. W. DER JUDGMENT. Plaintiff owning as claimed a fifth interest in rice, the other four-fifths being owned by defendant, and all of it being sold by their consent, and four-fifths of the proceeds paid to defendant, the other fifth passed into the registry of the court was properly adjudged to plaintiff. 3. APPEAL AND ERROR 1064(3)-HARMLESS ERROR-ORAL CHARGE. Giving an oral peremptory instruction, instead of a written charge, was harmless, the evidence requiring the judgment rendered, and all complaints being reviewed as fully as though there had been a written charge. 918, M. P. T. Ry. v. Field, 76 Ark. 239, 88 | ed, as distinguished from having a lien or claim S. W. 897, and other decisions in support for water furnished, though B. does not segreof his contention that, as the railway com- gate C.'s share, but puts all the crop in a warehouse in his own name. pany will have the right to take charge of 2. DEPOSITS IN COURT 1-DISPOSITION UNand subject to its uses the proposed right of way as soon as the damages have been assessed by the commissioners and before the county court can determine the issues the county court can determine the issues whether or not the railway company has the right to condemn the property, an injunction will lie at all events to restrain such taking of possession until that issue is so determined. While as noted above it was alleged in effect that the railway company, if not restrained by a writ of injunction, will take possession of and improve the proposed right of way as soon as the commissioners shall have assessed the damages, and that by reason thereof plaintiff will suffer irreparable injury to his property, and while the peti- Action by the Colorado Canal Company tion contains a prayer for general relief, yet against the Union Warehouse & Elevator the principal purpose of the suit was to en- Company, W. L. Blair being substituted as join the entire proceedings, including any defendant. From an adverse judgment, deassessment of damages by the commissioners, fendant Blair appeals. Affirmed. and there was no prayer in the alternative for restraint of possession by the railway company in the event the commissioners were not enjoined from assessing the damages. In any event, a necessary predicate to such alternative relief would be showing that the commissioners will be unable to assess damages that will be adequate compensation for the injury to plaintiff's property by the proposed condemnation, and he has pointed out no such proof. On the contrary, to say the least, the facts were amply sufficient to support a finding by the trial court adverse to that contention. For the reasons indicated the judgment of the trial court is affirmed. The foregoing is filed as a substitute for our original opinion in the case likewise affirming the judgment of the trial court, but which is withdrawn; the foregoing being filed to meet some criticisms of expressions used in the former opinion which were not necessary to the main conclusion reached and which we have taken this method to Appeal from District Court, Matagorda County; Sam'l J. Styles, Judge. Krause & Wilson, of Bay City, for appellee. LANE, J. This suit was originally instituted by the appellee Colorado Canal Company, hereinafter called the Canal Company, against the Union Warehouse & Elevator Company, hereinafter called Warehouse Company, to recover $820.10 alleged to be its onefifth interest in the proceeds of a crop of rice which one W. L. Blair had placed in possession of said Warehouse Company for storage and sale for the joint account of the Canal Company and Blair. W. L. Blair was thereafter made a party defendant by the Warehouse Company, with averment that both Blair and the Canal Company had authorized it to sell said rice, and that as both parties were claiming the one-fifth of said proceeds in controversy, it was holding the same as a stakeholder only, subject to the orders of the court. The Canal Company, among other things, eliminate. And the motion for rehearing is alleged: That W. L. Blair in anticipation of overruled. BLAIR v. COLORADO CANAL CO. et al. (No. 7510.) (Court of Civil Appeals of Texas. Galveston. March 14, 1918.) the planting of rice on 240 acres of land lying contiguous to its canal, during the year 1912, did on the 2d day of May, 1912, enter into a written contract with it, whereby Blair was to plant to rice said 240 acres of land before the 1st day of June of that year, and obtain a sufficient stand to warrant the watering of same. That he would properly cultivate all of said land and harvest and thresh all rice grown thereon. That by said. Under the contract of B., owner of land, contract the Canal Company agreed that it and C., a water company, whereby B. is to would use its best efforts to furnish to Blair plant and cultivate a rice crop, and C. is to furnish the water to irrigate it, and after it is sufficient water from its canal, which, tomatured B. is to harvest and sack it, and a gether with the natural rainfall, would be fifth of it, as soon as sacked, is to be the ab- sufficient to irrigate said rice crop of Blair. solute property of C. and is to be delivered That said contract contained the following by B. to a public warehouse, C. is the owner That said contract contained the following of a fifth interest in the rice threshed and sack-clauses: 1. WATERS AND WATER COURSES 254-SUPPLY OF WATER FOR IRRIGATION-INTEREST IN CROP-CONTRACT. "Both parties understanding and considering | ney's fee of $100, and costs of court incurred the uncertainty and hazard of furnishing water by it. It also prayed to have Blair made a for irrigation, it is specifically agreed that in the event of lightning, strikes, storms, fire, flood, ac- party defendant, so that all parties claiming cidents to machinery or canals, lack of water oc- an interest in the said $820.10 would be becasioned by low water or divergence of current fore the court, to the end that their rights in or by overflow of the Colorado river, which might be litigated and determined. may cause hindrance or partial or complete suspension of operations, such hindrance or suspension shall constitute no breach of contract and first party shall not be liable to second party for any damages thereby occasioned." "The second party agrees to pay to the first party one-fifth of all the rice grown on the above-described land or such other land as he may cultivate under this contract, and to deliver the same to the first party at some public warehouse in Bay City, Texas, without cost of any kind whatsoever to the first party. The rice hereby agreed to be delivered to the first party is to be one-fifth in quality and quantity of the rice so grown; that is to say, every fifth sack of rice as it is taken from the separator and sacked shall be marked for the said first party and delivered to it as above set out. The one-fifth part of the rice so grown shall become the property of the said first party as soon as grown, threshed and sacked, and the said first party shall have the right to ownership in the same from such date." "Any person, storage or milling company, is hereby instructed to give to first party any information it may call for relative to any rice purchased from or held for account of second party." W. L. Blair being made a party defendant to the suit, in his several answers admitted the execution of the contract as alleged by the Canal Company; admitted that he had grown, harvested, and stored in the warehouse of the Warehouse Company 1,221 sacks of rice; that said rice was grown upon said 240 acres of land watered, or partially watered, by the Canal Company. He further answered as follows: "This defendant would further show to the court that by virtue of the failure and refusal of the plaintiff to comply with the terms of this said contract he declined to pay the one-fifth of the rice raised upon the said lands as water rent, covered by the terms of the said contract, and so notified said Colorado Canal Company by giving personal notice to its president, J. F Holt, as well as to its general manager, Weston Mayfield, and further refused to deliver the onefifth of the said rice crop as provided in the terms of said contract to any public warehouse in Bay City, Matagorda county, Tex., as the property of, or for the use and benefit of, the said plaintiff Colorado Canal Company, as un on the contrary, this defendant stored each and every sack of rice raised by him upon the said land for the rice reason of 1912 with the Union Warehouse & Elevator Company at Bay City, Matagorda county, Tex., in his own name and said Union Warehouse & Elevator Company at to his own personal account, and informed the the time he placed the said rice therein that he refused to recognize any right, title, or interest in the said rice crop or the rices placed in the said warehouse in the Colorado Canal Company, and that the said Union Warehouse & Elevator Company_received the said rice as the prop erty of W. L. Blair, and that warehouse re ceipts were issued to him accordingly. But that thereafter said rices were sold, and the said Warehouse Company paid to this defendant four-fifths of the proceeds thereof, less wareone-fifth under the pretext of protection against house charges and commissions, and retained loss on account of the pretended claim of the plaintiff the Colorado Canal Company to a onefifth interest therein, to wit, $820.10. It is further alleged that said Canal Com-der the contract provided and specified. But, pany furnished said water to irrigate the rice crop of Blair, as it had contracted to do, and that Blair had grown, harvested, and stored in the warehouse of said Warehouse Company 1,221 sacks of rice as he had agreed to do by the terms of said contract, which said rice was owned four-fifths by Blair and one-fifth by the Canal Company under the terms of said contract; that by the agreement of both Blair and the Canal Company the Warehouse Company sold said rice, and of the proceeds of such sale the Warehouse Company, after deducting storage charges and commission for making such sale, paid to Blair four-fifths thereof, and deposited the other one-fifth thereof, to wit, the $820.10 now in controversy, in bank to await a settlement of the dispute between Blair and the Canal Company; that the said Blair had no interest whatever in said $820.10, but that the same was the property of the Canal Company, for which it sues. The Warehouse Company answered, admitting that W. L. Blair had stored 1,221 sacks of rice in its warehouse for storage and sale; that it had sold said rice by the consent of both Blair and the Canal Company for its full market value of $4,194.80; that after deducting its charges for storage and sale it had paid four-fifths of the remainder to W. L. Blair and the other onefifth of such remainder was held by it until the court should determine to whom the same belonged. The Warehouse Company further avers that it has been forced into this suit, in which it has no interest except as an innocent stakeholder, and prays for an attor203 S.W.-12 "This defendant would further show to the court that, as herein before stated, no segregation from the general crop of rice raised by him was ever made, and he has never at any time parted with the title thereto, but, on the con trary, says that he is entitled to retain the pro ceeds of said rice, to wit, $820.10, in compensation and partly to compensate this defendant the part of the plaintiff, Colorado Canal Comfor his loss by virtue of breach of contract on pany." He further averred that the Canal Com pany had failed to properly water his rice crop as it had contracted to do, and that by reason of such failure he had suffered damages in the sum of $2,569.90, and concluded with the following prayer: "Wherefore this defendant prays that the plaintiff Colorado Canal Company take nothing by its suit against the Union Warehouse & Elevator Company, or as against this defendant. and that this defendant, W. L. Blair, recover of and from the plaintiff Colorado Canal Company the said sum of $820.10, together with all costs in this behalf had and expended, for general relief, and for all such other and further relief to which he may be entitled, in law or in equity," etc. The Canal Company, as a defense to Blair's cross-bill, denied all the allegations of Blair with reference thereto, and especially pleaded that if it had to any extent failed to furnish all water necessary to fully and sufficiently water Blair's rice crop, the same was, because of an unprecedented drouth, resulting in the drying up of the waters of the Colorado river from which its water supply for its canal was obtained, and that under such condition it was relieved from liability for damage occasioned by its failure to supply such water by the terms of its contract with Blair. The trial court by proper decree allowed the Warehouse Company an attorney's fee of $82 out of the $820.10 in controversy which it held in its possession as stakeholder, and upon order of the court the balance of said sum, to wit, $738.10, was deposited by the Warehouse Company in the registry of the court, and thereupon the Warehouse Company was dismissed from the suit. No complaint being made on appeal of this order, we shall not further mention said Warehouse Company in this opin ion. A jury was selected and sworn to try the issues between the Canal Company and W. L. Blair. After plaintiff Canal Company had introduced its evidence and rested its case, appellant Blair filed the following motion: "Now comes the defendant W. L. Blair, without waiving his right to offer his testimony, and moves the court to instruct the jury to find that the plaintiff take nothing in this cause of action, and that the defendant W. L. Blair recover from the plaintiff the $820.10, the subject-matter of this suit and now on deposit with this court, deposited by the defendant Union Warehouse & Elevator Company, for the following good and sufficient reasons, to wit: "(1) This is not a suit by plaintiff for the recovery of an indebtedness against the defendant Blair or for the foreclosure of any contract or statutory lien against any rices or other property to secure the payment of such indebtedness due the plaintiff by defendant Blair, but, on the contrary, is a suit against the defendant Union Warehouse & Elevator Company for conversion of $820.10, the property of plaintiff, stating that said aforesaid mentioned sum was the amount of rent due by the defendant W. L. Blair to plaintiff as water rental for the year 1912, and alleging that said sum of money was and is the property of plaintiff. "(2) Because the undisputed evidence in this case shows (and that being the evidence of the plaintiff) that the plaintiff had a contract with the defendant W. L. Blair to furnish water for the irrigation of a certain 240 acres of land, described in said contract of writing to be grown to rice during the year 1912, retaining by the terms of said contract a first mortgage lien in addition to the statutory lien to secure the payment of its rents, and said contract further providing that the defendant W. L. Blair was to pay to the plaintiff as water rental one-fifth of all the rice grown on said land, and further providing that said one-fifth was to be equal in is to say, every fifth sack of rice as it was taken from the separator and sacked should be marked for the said first party, and should be delivered to said first party at some public warehouse in Bay City, Tex., without cost to the plaintiff. The evidence further shows that there was no segregation of the one-fifth part of said crop so claimed by the plaintiff, nor was any part thereof ever marked or branded for the plaintiff, and the evidence further shows that the rices were placed in the warehouse of the Union Warhouse & Elevator Company to the account of the said W. L. Blair, and that the same there so remained until it was sold, and when said rices were sold by the Union Warehouse & Elevator Company, or this defendant, W. L. Blair, that the same were sold to the account of the said W. L. Blair, and the proceeds thereof paid to sions of sale, and the $820.10, the subject-mathim, except the warehouse charges and commister of this suit, the same being one-fifth of the proceeds of the sale of the said rice, was held by the said defendant Warehouse Company for its own protection, declining to recognize the title in either the plaintiff, or the defendant W. L. Blair until their controversy could be adjusted. "This defendant would further show to the court that he here now abandons his cross-action against the plaintiff, Colorado Canal Company, for damages, and only asks for the recovery of the $820.10 as hereinabove set out. "Wherefore, this defendant W. L. Blair prays the court that the jury be instructed to find that the plaintiff take nothing by his cause of action, and that he do have and recover of and from the said plaintiff, Colorado Canal Company, the said sum of $820.10, together with all costs in this behalf had and expended, and in duty bound will thus ever pray." The court permitted Blair to abandon his damages was stricken out, but overruled his cross-action, and his plea setting up such motion for an instructed verdict. The court instructed a verdict in favor of the Canal Company against Blair for the said sum of $738.10 paid by the Warehouse Company into the registry of the court. The jury rendered a verdict in accordance with said instructions. In the judgment rendered upon the verdict of the jury we find the following re citals: "It is therefore considered by the court, so ordered, adjudged, and decreed, that so much of said motion of said defendant W. L. Blair, wherein he requests of the court an instruction to the jury that they find that plaintiff take nothing, and that he, the said defendant W. L. Blair, recover of the said plaintiff the said sum of $820.10, on deposit in the registry of this court, be, and the same is hereby overruled, to which action of the court the said defendant W. L. Blair then and there excepted, and thereon duly reserved his bill of exception. "And thereupon the said defendant W. L. Blair, through his counsel, orally requested the court to permit him to file a trial amendment in this cause, which request_the_court_granted, and then the said defendant W. L. Blair, on the 9th day of January, A. D. 1917, filed in said cause what is denominated his trial amendment, and the court, after having heard same read by said defendant, refused to permit same to be filed, and ordered same stricken from the cause upon the ground that said trial amendment averred upon the same cause of action as was contained in his answer, which he, the said defendant W. L. Blair had abandoned in open court, and which had been theretofore in the |