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(273 S.W.) and the Varner Oil Company reconveyed on McFarland et al. have severed, nor are they July 27, 1910. The facts show unmistakably parties or privies to any severance of estates, a privity between the Hoggs and the Varner The Hogg heirs, in possession under deeds Oil Company. The possession of the Hoggs and acts of ownership evincing their hostile during this period can be attributed to noth-claim to the whole fee, have severed, not in ing else.

It would be, absurd to say that favor of plaintiffs or the McFarlands, but to they, the stockholders and officers of the one who, like themselves, is a stranger to Varner Oil Company, were in possession of plaintiffs' and McFarland's title. said land in hostility to the Varner Oil Can it be said that the McFarlands and Company title. Title had been placed for plaintiffs could have attributed the mineral convenience in the Varner Oil Company. It operations of Hogg's lessee to this severance, was holding for the benefit of the Hogg heirs, which was not executed by them or for either individually or in their capacity as their benefit, but by strangers to their title sole stockholders and directors of this corpo- and in hostility to them, and thereby deration, and they, the Hoggs, were holding feat the ripening of a possessory title against possession for the benefit of the Varner Oil themselves? Before the lease which severed Company. We think the evidence admits no was made, if their position is correct, the other construction, and this period should not Hoggs were, as to them, mere trespassers. have been deducted from the jury's consid. The Hoggs' possession was hostile, visible, eration under the five years' statute, Thom- and notorious in its use of the surface; noson v. Wiseman, 98 Tex. 173, 82 S. W. 503 ; | tice to the world that they claimed the fee Kirby v. Hayden, 44 Tex. Civ. App. 210, 99 to this land. When they severed, in addition S. W. 746; Burnham v. Hardy Oil Co. (Tex. to the use of the surface, their lessée comCiv. App.) 147 S. W. 333, 108 Tex, 555, 195 menced active exploration for oil.

If we S. W. 1145; Settegast v. Floyd (Tex. Civ. apply to such facts the rule contended for by App.) 214 S. W. 686.

plaintiffs and cross-defendants, we say that [25] During the period of limitation sub- the possession of the Hoggs was less open, mitted to the jury, the Hogg heirs executed less notorious, and less hostile before the a mineral lease, by which the surface and severance, and would have matured the fee the minerals were severed, and it is con- title to both minerals and surface; and yet, tended that this broke the running of the after severance, their possession, by reason statute. The expression is used in many of the added effort of their lessee becoming cases in this state to the effect that, after more open, more notorious, and more hostile, severance of the mineral and surface estate, would not ripen title to either estate, Το the possession of one will not ripen into a state the matter is to answer the contention. limitation title to the other. Wallace v. Hoyt [26] The case is one of first impression in (Tex. Civ. App.) 225 S. W. 425; Henderson this state, but on reason and authorities v. Chesley (Tex. Civ. App.) 229 S. W. 573; from other states we hold that the doctrine Lyles v. Dodge (Tex. Civ. App.) 228 S. W. of Wallace v. Hoyt, supra, Henderson v. 316; Luse v. Parmer (Tex. Civ. App.) 221 S. Chesley, supra, and others, applies only in W. 1031. While the language is broad, it cases arising between the parties to the sevwill be found that the decisions are contined erance or those in privity with them. to cases arising between the severor or his would have application, for instance, to a privies and the severee or his privies. The contest between the Hogg heirs and their reason for this rule is apparent and two grantee, Hamman, or the Texas Company befold. When one severs by mineral lease, for cause of its privity with Hamman; neither example, his lessee may thereafter attribute could acquire the other's estate by possession any surface possession to the rightful own- and claim. But a severance by one in posership of the person severing; and likewise, session, who has not yet matured a title, where the true owner severs by mineral lease, does not abandon, limit, or qualify his poshe would naturally ascribe any drilling oper- session for the purpose of ripening a title ations taking place on the land to the rights against the true owner out of possession; which he himself had created in his grant of and that, as against such disseized owner, severance. In other words, possession of the continued possession of a trespasser after either is referable to those acts of the other party in privity as being under the grant- severance, as before, is adverse, and that ed or retained estate; and cannot be that such possession continued by either the tresopen, adverse, hostile possession of which the passer or the third person to whom he severs other owner must take notice. Moreover, as

will mature a title by limitation to the enin the case at bar, the severance is usually tire tract as against such disseized owner. accomplished by leases or grants with cove- Black Warrior Co. v. West, 170 Ala, 346, 54 nants which operate as estoppels by deed So. 201; Moore v. Empire Co., 181 Ala. 344, upon both severor and severee.

61 So. 940; Moore v. Ensign, 131 Ga. 421, But there is a wide distinction between 62 S. E. 229; Virginia Coal Co. v. Richmond, this class of cases and the case at bar. 128 Va, 258, 104 S. E. S05; Va. Coal Co. v. Neither plaintiffs nor the cross-defendants Hylton, 115 Va, 418, 79 S. E. 337, Ann. Cas,

It

1915A, 741; Gathright v. Begley, 200 Ky. of Civil Appeals' and of Supreme Court relating 808, 255 S. W. 837.

to contests of local option elections under VerHolding thus, we find it unnecessary to de- non's Sayles' App. Civ. St. 1914, art. 5728, or cide whether the grantee of the mineral es

to elections contesting removal of county seats. tate may tack his possession of the minerals 5. Elections w298(1) - What matters not onto the previous possession of his grantor. considered in contest stated. We express the opinion that this could be Whether propositions as to amendment of done. If, upon vertical severance, as by a charter, submitted without initiation by charsale of a part of the fee of the tract, the ter commission, were void, whether city coun. grantee may tack his possession to that of cil was authorized on its own initiative to subhis grantor had before sale, we see no rea- ter, whether single propositions illegally sub

mit proposition to repeal vital parts of charson why this cannot be done where there is mitted more than one subject, whether proposia horizontal severance, separating the sur- tions were void because not identifying statute face from the minerals. The necessary priv- to be repealed or amended, or whether certain ity would exist in each instance.

propositions violated Const. art. 3, § 36, in unThe contentions of cross-defendant Under- dertaking to revive and amend portions of wood are ruled by the holding in Underwood statute without re-enacting and publishing it at v. Hogg (Tex. Civ. App.) 261 S. W. 556 (writ length, could not be considered in election conof error refused). Under that case a verdict test, under Rev. St. arts. 3046-3078. was properly directed against him.

6. Elections 298(1)-Construction of stat. All assignments and cross-assignments not ute requiring amendment of city charter to specifically discussed are overruled, and, be

be adopted by majority of votes cast at eleclieving a correct judgment was rendered, an

tion may properly be determined in contest. affirmance is ordered.

Question whether Vernon's Sayles' Ann.

Civ. St. 1914, art. 1096b, requiring amendment Affirmed.

to city charters to be approved by “majority of the qualified voters, voting at said election,” forbids amendment on vote of less than majority of votes cast at such election, though

amendment receives more than majority of LADD et al. v. YETT, Mayor, et al.

votes cast on such amendment, may properly be (No. 6941.)

determined in election contest under Rev. St. (Court of Civil Appeals of Texas. Austin.

arts. 3046-3078. May 13, 1925.)

7. Municipal corporations 46—Statute re1. Elections

quiring amendments to city charter to be +269—Election contest is not

approved by majority of voters "voting at civil suit, and trial judge has wide discretion

said election" construed. in conducting proceedings. Election contest is not civil suit, and trial

Vernon's Sayles' Ann. Civ. St. 1914, art. judge has wide discretion in conducting pro- to be approved by majority of qualified voters

1096b, requiring amendments to city charters ceedings.

"voting at said election," in view of its other 2. Elections On 279—Trial judge may permit provisions, requires that each proposed amend

intervention in election contest by member of ment be considered separately, and result as city council who is at least proper contestee. to each determined from votes cast for or

Trial judge, in exercise of his discretion, against it, irrespective of total number of votes might permit intervention in election contest that may be cast at election. under Rev. St. arts. 3046_3078, by member of

[Ed. Note. For other definitions, see Words city council, who, under article 3078, was at and Phrases, First and Second Series, Voting.) least proper contestee to make such defense as

8. Statutes em 181(2)-Construction leading to statutes authorize, and who was originally made

absurd results and invalidity not applied, if party to proceedings, but was dismissed from

possible to be avoided. suit on his plea to court's jurisdiction.

Construction of statute leading to absurd 3. Courts Cm 247(5)—Questions not certified results and invalidity will not be applied, if its to Supreme Court, in absence of special rea- language is susceptible of another interpretason therefor.

tion which will preserve all of the law intact. Questions will not be certified to Supreme 9. Elections w298(3)–Policy of law to upCourt, unless some special reason therefor ex

hold declared results of elections properly ists other than importance of questions in

and fairly conducted. volved.

It is policy of law to uphold declared re4. Courts em 247(7)—Decision relating to elec- sults of elections properly and fairly conducted.

tion contests held not in conflict with deci. sions of other courts.

Appeal from District Court, Travis CounDecision that Rev. St. arts. 3046–3078, does ty; George Calhoun, Judge. not authorize election contests on ground that law under which election was held is void, but

Election contest by N. A. Ladd and others only for some statutory reason, showing that against W. D. Yett, Mayor, and others. it was not properly or fairly conducted, held Judgment for defendants, and plaintiffs appot in conflict with decisions of other Courts peal. Affirmed.

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

(273 $.W.) Cofer & Cofer, of Austin, for appellants. each proposition had failed to receive as many

Paul D. Page, Jr., and J. Harris Gardner, affirmative votes as negative votes, and the D. K. Woodward, Jr., and White, Wilcox, result was illegally and wrongfully declared. Graves & Taylor, all of Austin, for appellee the evidence they were entitled to have the

The contention of appellants here is that under Nolen.

result of the election declared from the lawful

returns, and that these showed that all of the BLAIR, J. This appeal is from a contested propositions had failed,' at least that proposielection proceeding under title 49, chapter 8, tion 2 had failed, and that its failure rendered of the Revised Statutes, and arose in the fol. ineffective all the amendments." lowing manner: On August 8, 1924, there was held in the city of Austin, Tex., a spe The reply. of the contestees, W. D. Yett, cial election to determine whether or not 22 Mayor, and C. N. Avery, Harry Nolen, Harry amendments to the existing charter of said Haynes, and George Searight, who compose city should be adopted; some of which re- the city council of the city of Austin, was a pealed parts of the existing charter, while general demurrer, which the court overruled, others amended it. The city council declared and a general denial. Harry Nolen, one of all the amendments carried. Appellants, N. the contestees, filed a plea to the jurisdiction A. Ladd and L. Rast, resident citizens of the of the court; whereupon contestants moved city of Austin, served the mayor and each of to dismiss their suit against him as a conthe commission composing the city council | testee, which motion was sustained by the with their notice and statement of grounds court. Nolen was later granted leave to file of contest, and later fled the statement of his plea of intervention, making himself a grounds of contest so served in the district party contestee, which plea consisted of a court as the basis for this proceeding. The general demurrer and several special excepstatement of the grounds of the contest as tions, all of which were overruled, and a genamended attacks the legality of the 22 eral denial. amendments voted upon, the legality of the The trial judge, before whom the cause was election, and the correctness of the results tried without a jury, filed, among others, the of the election as declared. We will not at- following findings of fact and conclusions of tempt to detail the facts pleaded, but adopt | law: appellants' statement of the issues raised “(1) I find as a fact that at the special electhereby:

tion held in the city of Austin on the 9th day

of August, A. D. 1924, wherein there was sub"(1) That the city council was without au- mitted to a vote of the people by the city counthority to submit such amendments, because cil of the city of Austin 22 proposed amendthey had not been framed by a charter commis-ments to the city charter of the city of Aussion as expressly provided by statute. Ver- tin, there were cast for and against each of non's Sayles' Statutes, arts. 1096a, 1096b. said amendments or propositions the number of

“(2) Tbat the city council is without power votes set opposite the propositions respectiveunder the statute except through a charter | ly, as shown in the following table: (Tabulacommission to submit propositions of repeal. tion omitted here, but each amendment is shown Its power to submit propositions is limited to to have received more affirmative than degasubmitting 'amendments,' and this does not in- tive votes). clude repealing propositions.

(2) I find that said election was regularly “(3) That the city council was without pow- held according to law. er to submit, as was done, propositions con "(3) I find therefore that each of the 22 taining more than one subject, so combined propositions or amendments submitted to a that the voter had no privilege of voting for vote of the people at said election received in some subjects and against other subjects, con- | its favor a majority of the votes cast at said trary to the statute declaring each proposi- election, in that each proposition received tion shall contain but one subject.

more votes in its favor than were cast against "(4) That the proposed amendments are in- it.” valid and illegal because they do not make “(6) I conclude, as a matter of law, that the reference to the public act of the Legislature election so held was a valid election, and that (being the Act of 1909 of the Thirty-first Leg- each of the proposed amendments to the city islature), which it is the purpose of these prop-charter of the city of Austin was duly adopted, ositions to amend.

and that the said city charter of the city of "(5) That propositiorts 8, 9, 11, 12, 13, and Austin, as it existed prior thereto, has been 17 are invalid and illegal,' because they pro- duly and legally amended as provided in each pose to amend parts of the public acts of the of said 22 amendments." Legislature of Texas by striking out and changing language of certain sections without

[1, 2] With the submission of the case we re-enacting such sections contrary to article also took under submission a motion by con3, § 36, of the Constitution.

(6) That there were a total of 4,956 quali- testants to strike out the brief of intervener, fied voters voting at said election of which 17 Harry Nolen, filed herein, urging also in this were not counted, and each and all of said connection their propositions Nos. 1 and 2 propositions failed to be approved by a ma

that the court erred in granting him leave to jority of such qualified voters, each receiving intervene over their objection. The motion is less than 2,479 votes and less than 2,470 votes. without merit, and is overruled. Appellants

"(7) That the lawful returns showed that showed no injury whatever occasioned by the

intervention of Nolen. In fact, they practi- , Courts of Civil Appeals concerning the extent cally admit that no injury occurred by rea- of the jurisdiction of the district court to son of his intervention, since every question hear and determine election contests. It has decided could have been, and was, disposed of been the policy of this court not to certify upon pleadings of contestants and contestees. questions to the Supreme Court, unless some They argue, however, that, if the trial court special reason exists for such action. In in this instance can permit Nolen to inter- adopting this policy we feel that we are only vene, there is no marked stopping place for carrying out the purposes of the law creatsuch interventions, and many others might be ing the court. This case arose and came to permitted to intervene. This argument is not us in the regular course of procedure, and, altenable when applied to the particular inter- though the questions submitted are imporvener. He was a member of the city council tant, our decision will not deprive the appelthat declared the results of the election be- lants of the right to have them passed upon ing contested. Article 3078, Revised Stat- by the Supreme Court, if that court sees proputes, provides that defendant to an election er to assume jurisdiction of the case. If the contest, among others, shall be "the officer jurisdiction of this court is final by reason of who declared the official result of said elec- the provisions of the statute in such mattion, or one of them.” So under this statute ters, then, of course, we are only performNolen was at least a proper party to the suit ing the duties for which it was created. This filed, which appellants recognized, for they course, in the event the Supreme Court does served him with notice and a statement of the not assume jurisdiction, will expedite the grounds of contest, and made him a party to final disposition of the case rather than dethe proceedings filed in the district court. lay it, since the time required to certify will Being a proper party to the suit, he .filed, as be eliminated in the event the Supreme Court he had a right to do, a plea to the jurisdic- does not assume jurisdiction; and, if it does, tion of the court; whereupon contestants only the time necessary for us to dispose of moved to dismiss him from the suit, which the case after submission is involved. motion was granted, and he was accordingly [4] Appellants assert that the opinions in dismissed. It thus appears that the only rea- McCall v. Lewis, 263 S. W. 325, and Bassel son for dismissing Nolen from the suit was V. Shanklin, 183 S. W. 105, by this court, and the fact that he contested appellants' cause Turner v. Allen, 254 S. W. 630, by the Beauof action, which, we submit, is not a valid rea- mont court, on the one hand, are in conflict son. Having been brought into the suit as a with the opinions in Kidd v. Truett, 28 Tex. proper party thereto by contestants, he would Civ. App. 618, 68 S. W. 310, by the Dallas be entitled to defend his action as an official court, and Scarbrough v. Eubank, 52 S. W. who declared the result of the election being 569, and Oxford v. Frank, 30 Tex. Civ. App. contested. Of course, no error is predicated 343, 70 S. W. 426, by the Fort Worth court, here because of his dismissal, for the trial on the other hand, as to the matters over court permitted him to thereafter intervene. which district courts may assume jurisdicThere is nothing in the election contest stat- tion in election contests. We cannot agree utes which prohibits one of the officials who with appellants' contention that any conflict declared the results of a contested election exists in these cases. In the recent case of from defending his acts in so doing independ-McCall v. Lewis, supra, this court reached ently of any defense or defenses that may be the conclusion that the statutes relating to urged by other officials who acted with him election contests did not authorize a contest in declaring the election results. Neither on the ground that the law under which the do the statutes prohibit one who is a proper election was held was void, or that it did not party to an election contest from intervening authorize such an election as was held, but where he has not been made a party thereto, that it could be contested only for some statand urging any defense to the validity or in- utory reason, showing that it was not propervalidity of the election results as declared. ly or fairly conducted, or that illegal votes It is also well settled that in this state an were cast, or for some other matter impeachelection contest is not a civil suit, and that ing the fairness of the result declared. In the trial judge has a wide discretion in the announcing this rule of law we followed the conduct of the proceedings, and we think that case of Bassel v. Shænklin, supra. We also in the exercise of this discretionary power took the view there that, since the Supreme he may permit an intervener, who is by stat-Court had held in the case of Odell v. Wharute at least a proper contestee, to intervene ton, 87 Tex. 173, 27 S. W. 123, that the and make such defense as the statutes may 1891 amendment to the Constitution, conferauthorize in purely election contests.

ring general jurisdiction on district courts [3] Along with the submission of the case to try election contests, was not self-exewe also took under submission appellants' cuting, and further, that election contests motion to certify such of the questions here were not civil suits, that district courts raised as we saw fit to the Supreme Court. had jurisdiction in election contests of only The grounds for the motion are: The impor- such matters as the enabling act to the contance of the questions involved; and that stitutional amendments authorized. The enthere is a conflict of decisions among the abling act to the 1891 constitutional amend

(273 S.W.) ment is title 49, chapter 8, Revised Statutes, / required by the general election laws of the under the provisions of which appellants state." have instituted this proceeding. In other

The only other mention of grounds for an words, it was our view that, if the Constitu- election contest in this enabling act is article tion did not authorize an election to be con- 3078a, Vernon's Sayles' Ann. Civ. St. 1914, tested under the general power conferred on

which relates to the manner of contesting district courts by the 1891 constitutional elections on proposed amendments to the Conamendment for any grounds that might be

stitution, and it reads in part: raised, and if an election contest did not constitute a civil suit, thereby fixing the grounds

“The court shall permit contestants to amend of contest, then the authority to contest an

their petition, include therein allegations chargelection must be confined to the specific terms as to the court may seem just, and like

ing fraud, irregularity or mistakes, upon such grounds provided in the statutes relating to wise the contestees shall have the right both to that subject.

contest the charges made by the contestant and The following authorities hold that an elec- to make 'counter charges, but the court shall tion contest is a special proceeding author- bring the parties to issue with all possible dis'ized by the statute, and courts are limited in patch.” their investigation to such subjects as are

The Court of Civil Appeals at Beaumont, in specified in the statutes. Wright v. Fawcett, 42 Tex. 206; Rogers v. Johns, 42 Tex. 340: the recent case of Turner v. Allen, supra, conBassel v. Shanklin (Tex. Civ. App.) 183 S. w. strued these statutes as limiting the jurisdic105; Canales v. Mullen (Tex. Civ. App.) 185 tion of the district court in election contests

to an inquiry into matters happening on the S. W. 420; Norman v. Thompson, 96 Tex. 250, 72 S. W. 62; Kilgore v. Jackson, 55 Tex. day of the election. We quote the following

from that opinion : Civ. App. 99, 118 S. W. 819; McCall v. Lewis (Tex. Civ. App.) 263 S. W. 325; Turner v.

“In an election contest in the district court, Allen (Tex. Civ. App.) 254 S. W. 630; Odell under the statutory provisions of this state,

the authority and jurisdiction of the court is v. Wharton, 87 Tex. 173, 27 S. W. 123.

limited and confined in the inquiry to matters Since the statutes are the only authority happening on the day of election, and pertainfor an election contest, we look to them for ing strictly to the election, such as the casting the specific reasons or grounds of contest. and counting of the ballots, and the actions and Article 3077, Revised Statutes, provides : conduct of the officers holding the election. The "If the contest be for the validity of an elec- l the result of the inquiry touching such matters

contestant must succeed or fail according to tion held for any other purpose than the eleconly. Articles 3062 and 3063, Revised Stattion of an officer or officers, in any county or part of a county or precinct of a county, or S. W. 420; Cofield v. Britton (Tex. Civ. App.)

utes; Canales v. Mullin (Tex. Civ. App.) 185 in any incorporated city, town or village, any resident of such county, precinct, city, town

109 S. W. 493; Bassel v. Shanklin (Tex. Civ. or village or any number of such residents, App.) 183 S. W. 105; Norman v. Thompson, 96 may contest such election in the district court Tex. 250, 72 S. W. 63; Lowery v. Briggs (Tex. of such county in the same manner and under 55 Tex. Civ. App. 99, 118'S. W. 819, 823.”

Civ. App.) 73 S. W. 1062; Kilgore v. Jackson, the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office."

The cases cited by appellants as being in “Art. 3062. Fraudulent Votes Not to be conflict with these three above decisions do Counted. If, upon the trial of any contested elec- not present a conflict. In the case of Scartion case, any vote or votes be found to be il brough v. Eubank, the contested election was legal or fraudulent, the court trying the same shall subtract such vote or yotes from the poli a county seat removal election, and it was of the candidate who received the same, and there held by the Court of Civil Appeals that after a full and fair investigation of the evi- | in a proceeding to contest county seat redence shall decide to which of the contesting moval elections the sufficiency of the petition parties the office belongs."

on which the election was ordered might be "Art. 3063. Election to be Declared Void, determined. This was the sole question inWhen.-Should it appear on the trial of any volved in that case, and was later certified contest provided for in article 3054 that it is impossible to ascertain the true result of the to the Supreme Court, where that holding election as to the office about which the con

was reversed, and the Supreme Court held test is made, either from the returns of the that the validity of an election for the reelection or from any evidence within reach, or moval of a county seat cannot be contested from the returns considered in connection with upon the ground that the county judge had other evidence, or should it appear from the no authority to order the election, because evidence that such a number of legal voters the applicants for the election who were not were, by the officers or managers of the elec; disqualified were less than the number re tion, denied the privilege of voting as, had they been allowed to vote, would have ma

quired by the statute. The Supreme Court's terially changed the result, the court shall ad

answer to the certified question is reported in judge such election void, and direct the proper 93 Tex. 106, 53 S. W. 573, and expressly preofficers to order another election to fill said termits a discussion of the general question office; which election shall be ordered and held of what matters may be inquired into in a and returns thereof made in all respects as purely election contest proceeding. We think

273 S.W.-64

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