tracts in terms bound it to perform such a service for appellants. Its undertaking by the terms of the contracts was confined to the transportation of the cattle from Ft. Worth to Kansas City, and a delivery of same to the consignee at the latter place; and this undertaking was subject to a limitation specified in the contracts as follows: "It is further stipulated and agreed between the parties hereto that in case the live stock mentioned herein is to be transported over the roads of any other railroad company, then said party of the first part (the Texas & Pacific Railway Company) shall be released from liability of every kind after said stock shall have left its road, and the party of the second part (the consignor) hereby so expressly stipulates and agrees, it being distinctly understood that the liability of the Texas & Pacific Railway Company in respect to said stock and under this contract is limited to its own line of railway and will cease and its part of this contract be fully performed upon delivery to its next connecting carrier of the stock mentioned herein and receipted for hereby. The understanding of both parties hereto being that the party of the first part shall not be held or deemed liable for anything in connection with said stock beyond its own line of road, excepting to protect the through rate of freight named herein." It is plain, therefore, that a duty on the part of the Texas & Pacific Railway Company to communicate appellants' instructions to the Kansas City Southern Railway Company cannot be referred to any express stipulation in the contracts. It seems to be contended that such a duty arose from a custom, claimed to have been established by the testimony, whereby the initial carrier when requested to do so caused such shipments to be diverted while enroute, after they had passed from its custody to the custody of a connecting carrier.

before the request was made," indicates, we think, that he did not recognize as existing a custom imposing a duty on the company he represented to have the shipments diverted after they left its line of railway. To our minds the testimony in the record relied upon to show the existence of such a custom is indefinite, and for that reason not entirely satisfactory. As opposing it, we think the testimony of the witness Fenby, to which we have called attention, was sufficient to raise an issue as to its existence, even if appellants were in a position to claim anything on account of the custom, if it existed. If, therefore, the custom asserted had been pleaded, we could not say that the verdict and judgment were wrong because all the testimony, or even a clear preponderance thereof, showed that the Texas & Pacific Railway Company failed to discharge a duty it owed appellants.

[3] It is further insisted that, the shipments having been made from a point in this state to a point in another state, as the initial carrier the Texas & Pacific Railway Company was liable for all the damages appellants sustained by force of section 20 of the "Act to Regulate Commerce" (Act Feb. 4, 1887, c. 104, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), as amended by Act June 29, 1906, c. 3591, § 7 (34 U. S. Statutes at Large, p. 595 [U. S. Comp. St. Supp. 1909, p. 1166]). The particular portion of said section relied upon as supporting this contention is as follows: "That any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or [2] That such a custom existed and that lines such property may pass, and no conthe contracts were executed by the parties tract, receipt, rule or regulation shall exempt with reference to it was not alleged in appel- such common carrier, railroad or transporlants' petition. The rule seems to be that tation company from the liability hereby before such a custom can be treated as enter- imposed." We do not think the statute has ing into and forming a part of a contract be- any application to the question presented tween parties it must be pleaded. Anderson here. The liability it imposes on the initial v. Rogge, 28 S. W. 106; Norwood v. Ins. Co., carrier for conduct of the connecting carrier 13 Tex. Civ. App. 475, 35 S. W. 717; Gano is referable entirely to acts and omissions v. Palo Pinto Co., 71 Tex. 103, 8 S. W. 634; which render the latter liable as a common Johnson v. Buchanan, 116 S. W. 875; 22 carrier. Had the connecting carrier in this Ency. Plead. & Prac. 406. But had such a case refused, on proper demand made of it custom been pleaded, we do not understand to do so, to divert the shipments, it may be its existence to have been established by un- that such refusal would have been a violation controverted testimony, as appellants assume of its duty as a common carrier (4 Elliott it was. The testimony of the witness Fenby, on Railroads, §§ 1431, 1440, 1536; 2 Hutch. auditor of the Texas & Pacific Railway Com- Car. §§ 660, 661; 5 A. & E. Enc. Law, pp. pany, through whom, according to the cus- 214, 215; Ryan v. Ry. Co., 90 Minn. 12, 95 tom contended for, diversions of such ship- N. W. 758), and that the Texas & Pacific ments were made, that the diversion in this Railway Company as the initial carrier, by instance failed so far as the Texas & Pacific force of the statute, would have been liable Railway Company was concerned, "because to appellants for damages suffered by them

against interference by the city with the construction of a track on a new location, which would accomplish the whole purpose of the suit without a trial upon the merits, is properly refused.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 307; Dec. Dig. § 137.*1 2. INJUNCTION (§ 152*) - APPLICATION FOR

TEMPORARY INJUNCTION

DETERMINATION.

On an application for temporary injunc tion against interference by a city with the construction of a railroad track on a new location, where the city is confined on the hearing to a denial under oath of the allegations of the petition, and to such affidavits, rebutting the case as made by the petition and supporting affidavits, as could be procured by voluntary ac tion of the witnesses, the cause will not be de cided on the merits, though there is little dispute as to the main facts, the city being entitled to have its rights determined on a full trial, where it can have compulsory process for its witnesses, with the right of cross-examination.

effect of the finding of the jury was to deter- [ practicable to rebuild, a temporary injunction mine that the connecting carrier had not been guilty of a failure to perform its duty with reference to the shipments. The liability, if any, of the Texas & Pacific Railway Company, therefore, cannot be referred to its responsibility under the statute for conduct of its connecting carrier, but must be referred to its own conduct, without reference to the statute. In other words, if liable at all, it was not because of a default of a connecting carrier, but because of its own default in failing to communicate the instructions to divert to its connecting carrier. A duty to do this did not by law rest upon it as a common carrier. Therefore, if it became its duty, it must have been because it contracted with appellants as their agent to cause the diversion to be made by the connecting carrier. As stated before, the contract was not so written, and appellants are not in a position to claim such to have been its effect by force of the custom asserted to have existed. If such an undertaking was not a part of those contracts, a promise subsequently made by the Texas & Pacific Railway Company to communicate appellants' wishes with reference to the shipments to the carrier in possession of same would be a gratuitous under-porary injunction, plaintiff appeals. taking, and for that reason could not be made the basis of the recovery sought by appellants.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 337; Dec. Dig. § 152.*]

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by the Galveston & Western Railway Company against the City of Galveston. From an interlocutory order refusing a temfirmed.

Af

Walter Gresham and T. D. Gresham, for appellant. M. E. Kleberg and I. Lovenberg, Jr., for appellee.

[4] So far as the complaint made on this appeal refers to the finding of the jury in favor of the Kansas City Southern Railway REESE, J. This is an appeal from an inCompany, we think it also should be over- terlocutory order of the district court of ruled. Whether that company was guilty of Galveston county refusing a temporary innegligence, when it ascertained that the cat- junction, upon petition of the Galveston & tle could not be delivered in Kansas City, Western Railway Company, enjoining the in failing to notify appellants of the fact and city of Galveston from interfering with the obtain from them instructions as to the plaintiff in laying its track along a relocacourse to be pursued, or not, and whether it tion of its line across certain streets and alwas guilty of negligence in failing to divert leys of the city, connecting its line on Avethe shipments to East St. Louis earlier than nue N with its line on Ninth street, in said it did so divert them, or not, were contro- city. Upon filing the petition, the applicaverted questions in the case. Had the jury tion for a temporary injunction was set found such failures on its part to have been down for a hearing, and notice given to denegligence, the finding would have been sup- fendant. Defendant filed its answer, under ported by testimony in the record. Their oath, and the application was heard on petifinding to the contrary also is supported by tion, answer, and supporting and controverttestimony in the record. In this conditioning affidavits. The district court refused to of the record the finding of the jury should grant the temporary injunction, and from not be set aside.

The judgment is affirmed.

GALVESTON & W. RY. CO. v. CITY OF

GALVESTON.

(Court of Civil Appeals of Texas. Galveston. May 9, 1911.)

1. INJUNCTION (§ 137*)-TEMPORARY INJUNCTION-GROUND FOR DENIAL.

Where a railroad has not for five or six years used a portion of its track which the erection of a sea wall by a city renders it im

this order plaintiff prosecutes this appeal under the provisions of the act of 1907 (chapter 107), as amended by the Act Ex. Sess. of 1909, c. 34, authorizing appeals in such

cases.

The following facts deduced from the allegations of the petition and answer, and the statements of the accompanying affidavits, are sufficient to explain the questions arising on this appeal, prefacing them with the following sketch, showing the old, and proposed new, location of appellant's tracks on Avenue N and Ninth street, and the connec tion between the two.

ME

>

Thirty-Seventh street, and from Thirty-Seventh street into Avenue T, upon any degree of curvature not less than three degrees which said railway company may determine upon, with the right to come into Avenue A and connect with any and all railroads now, or that may hereafter be, constructed on that street, with the further right to curve into and construct, maintain, own and operate its railroad on Post Office Street or on Church street, from Forty-Third street westwardly to the western limits of the city. The said railway company shall construct their railway over Church or Post Office streets, as in this section granted, within one year from date hereof, otherwise the right to build on said streets shall be forfeited.

The Galveston & Western Railway Company was incorporated in 1887, and by its charter was authorized to construct, own, and operate a railroad, commencing at a point on Galveston Bay, in the city of Galveston, thence through the streets and public highways of the city to a point in the county of Galveston at or near Coronkaway Reefs, lying to the west of the city. The company acquired by purchase the properties of the Galveston, Brazos & Colorado Narrow Gauge Railway Company, which previously owned and operated a line of narrow gauge railway, beginning on Ninth street near Avenue A and running thence on Ninth street to a point near its intersection with Avenue N, and curving thence into Avenue N, as shown by the sketch, being the line marked "old location," and running westwardly along Avenue N to Thirty-Sixth street. This being the situation on March 8, 1889, the city council of Galveston passed an ordinance, sections 1, 2, 3, and 8 of which are as follows: "Be it ordained by the city council of the thence along any street west of Fortieth city of Galveston:

"Section 1. That the rights of way heretofore granted in the city of Galveston to the Galveston, Brazos & Colorado Narrow Gauge Railway Company and to the Texas, Mexican Railway Company on Ninth street from Avenue A to Avenue N; thence along Avenue N to Thirty-Seventh street; thence along Thirty-Seventh street to Avenue T; thence westwardly along Avenue T to Fifty-Fifth street; with the right to curve south and west at any point west of Fiftieth street, be and the same are hereby confirmed. The right to construct, maintain, own and operate a railroad with either broad or narrow gauge tracks, or both, and with such side tracks, turnouts and switches as may be necessary, be and the same are hereby granted to the Galveston & Western Railway Company, as the successor of said railway companies, over and along the above mentioned streets, and on Avenue N, west from ThirtySixth street, with the right to curve northwardly from Avenue N at any point west of Fortieth street into Forty-Third street or at any street west of and parallel to FortyThird street that said railway company may select and occupy; thence northwardly down the street selected, with the right to connect with the tracks of the Galveston, Houston & Henderson Railway Company, and the Gulf, Colorado & Sante Fé Railway Company at any point west of Forty-Third street. That the said railway company shall construct, operate and maintain its railway on the streets over which the right of way is hereby confirmed and granted within one year from the date hereof, otherwise the rights herein granted shall be forfeited.

"Sec. 2. The right is hereby granted to said railway company to curve from Ninth

"Sec. 3. There is also hereby granted to said Galveston & Western Railway Company the right to construct, own, operate and maintain a railroad over and along Ave. nue N from Thirty-Seventh street to the western limits of the city, with the right to curve southwardly from Avenue N into and

street; thence westwardly into and thence along any avenue to the western limits of the city with the right also to curve southwardly from the avenue selected into and thence along any street west of Forty-Third street; thence to a connection with its present line."

"Sec. 8. That in the event said railway company shall proceed to construct, maintain and operate a railroad over the right of way herein granted, then any other railway company desiring to participate in the ownership and operation of same may do so by paying an equal pro rata of the cost of said railroad over said right of way, and in case said railway companies cannot agree upon the cost of said railroad or upon the terms satisfactory among themselves, then the same shall be determined by a board of arbitrators, consisting of one arbitrator to be appointed by the city of Galveston, and one arbitrator to be appointed by the railway company or companies owning or operating the same; and in case of disagreement of said arbitrators, they shall appoint an umpire to decide the matter; and should the said railway company or companies refuse to appoint an arbitrator when applied to, then in that case, the city council shall proceed to determine the matter as herein before provided. It is the object of this section to make a general railroad over the right of way herein granted, to the end that all railway companies that may now or hereafter terminate in Galveston, so desiring, may ac quire equal rights in the ownership and operation of said railroad."

On July 17, 1889, the charter of the company was amended. By the terms of the amended charter, appellant was authorized to construct and operate a railroad "com

on Avenue A, thence into and along Ninth | forcibly removed, whereupon this suit was street to Avenue N, thence along Avenue N instituted to enjoin the city, its officers and to 43rd street * with the right to agents, from interfering with the work aforecurve into and from any and all streets and said. avenues at any point it may select