(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 Company title. Title had been placed for convenience in the Varner Oil Company. It was holding for the benefit of the Hogg heirs, either individually or in their capacity as sole stockholders and directors of this corporation, and they, the Hoggs, were holding possession for the benefit of the Varner Oil Company. We think the evidence admits no other construction, and this period should not have been deducted from the jury's consideration under the five years' statute. Thomson v. Wiseman, 98 Tex. 173, 82 S. W. 503; Kirby v. Hayden, 44 Tex. Civ. App. 210, 99 S. W. 746; Burnham v. Hardy Oil Co. (Tex. Civ. App.) 147 S. W. 333, 108 Tex. 555, 195 S. W. 1145; Settegast v. Floyd (Tex. Civ. App.) 214 S. W. 686.

[25] During the period of limitation submitted to the jury, the Hogg heirs executed a mineral lease, by which the surface and the minerals were severed, and it is contended that this broke the running of the statute. The expression is used in many cases in this state to the effect that, after severance of the mineral and surface estate, the possession of one will not ripen into a limitation title to the other. Wallace v. Hoyt (Tex. Civ. App.) 225 S. W. 425; Henderson v. Chesley (Tex. Civ. App.) 229 S. W. 573; Lyles v. Dodge (Tex. Civ. App.) 228 S. W. 316; Luse v. Parmer (Tex. Civ. App.) 221 S. W. 1031. While the language is broad, it will be found that the decisions are confined to cases arising between the severor or his privies and the severee or his privies. The reason for this rule is apparent and twofold. When one severs by mineral lease, for example, his lessee may thereafter attribute any surface possession to the rightful ownership of the person severing; and likewise, where the true owner severs by mineral lease, he would naturally ascribe any drilling operations taking place on the land to the rights which he himself had created in his grant of severance. In other words, possession of either is referable to those acts of the other

Can it be said that the McFarlands and plaintiffs could have attributed the mineral operations of Hogg's lessee to this severance, which was not executed by them or for their benefit, but by strangers to their title and in hostility to them, and thereby defeat the ripening of a possessory title against themselves? Before the lease which severed was made, if their position is correct, the Hoggs were, as to them, mere trespassers. The Hoggs' possession was hostile, visible, and notorious in its use of the surface; notice to the world that they claimed the fee to this land. When they severed, in addition to the use of the surface, their lessee commenced active exploration for oil. apply to such facts the rule contended for by plaintiffs and cross-defendants, we say that the possession of the Hoggs was less open, less notorious, and less hostile before the severance, and would have matured the fee title to both minerals and surface; and yet, after severance, their possession, by reason of the added effort of their lessee becoming more open, more notorious, and more hostile, would not ripen title to either estate. state the matter is to answer the contention.

If we

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[26] The case is one of first impression in this state, but on reason and authorities from other states we hold that the doctrine of Wallace v. Hoyt, supra, Henderson v. Chesley, supra, and others, applies only in cases arising between the parties to the severance or those in privity with them. It would have application, for instance, to a contest between the Hogg heirs and their grantee, Hamman, or the Texas Company because of its privity with Hamman; neither could acquire the other's estate by possession and claim. But a severance by one in possession, who has not yet matured a title, does not abandon, limit, or qualify his possession for the purpose of ripening a title against the true owner out of possession; and that, as against such disseized owner, the continued possession of a trespasser after severance, as before, is adverse, and that such possession continued by either the trespasser or the third person to whom he severs will mature a title by limitation to the entire tract as against such disseized owner. Black Warrior Co. v. West, 170 Ala. 346, 54 So. 201; Moore v. Empire Co., 181 Ala. 344, 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. 805; Va. Coal Co. v. Neither plaintiffs nor the cross-defendants Hylton, 115 Va. 418, 79 S. E. 337, Ann. Cas.

party in privity as being under the granted or retained estate; and cannot be that open, adverse, hostile possession of which the other owner must take notice. Moreover, as in the case at bar, the severance is usually accomplished by leases or grants with covenants which operate as estoppels by deed upon both severor and severee.

4. Courts 247 (7)-Decision relating to elec-sults of elections properly and fairly conducted. tion contests held not in conflict with decisions of other courts.

BLAIR, J. This appeal is from a contested election proceeding under title 49, chapter 8, of the Revised Statutes, and arose in the following manner: On August 8, 1924, there was held in the city of Austin, Tex., a special election to determine whether or not 22 amendments to the existing charter of said city should be adopted; some of which repealed parts of the existing charter, while others amended it. The city council declared all the amendments carried. Appellants, N. A. Ladd and L. Rast, resident citizens of the city of Austin, served the mayor and each of the commission composing the city council with their notice and statement of grounds of contest, and later filed the statement of grounds of contest so served in the district court as the basis for this proceeding. The statement of the grounds of the contest as amended attacks the legality of the 22 amendments voted upon, the legality of the election, and the correctness of the results of the election as declared. We will not attempt to detail the facts pleaded, but adopt appellants' statement of the issues raised thereby:

each proposition had failed to receive as many affirmative votes as negative votes, and the result was illegally and wrongfully declared. The contention of appellants here is that under the evidence they were entitled to have the result of the election declared from the lawful returns, and that these showed that all of the propositions had failed, at least that proposition 2 had failed, and that its failure rendered ineffective all the amendments."

The reply. of the contestees, W. D. Yett, Mayor, and C. N. Avery, Harry Nolen, Harry Haynes, and George Searight, who compose the city council of the city of Austin, was a general demurrer, which the court overruled, and a general denial. Harry Nolen, one of the contestees, filed a plea to the jurisdiction of the court; whereupon contestants moved to dismiss their suit against him as a contestee, which motion was sustained by the court. Nolen was later granted leave to file his plea of intervention, making himself a party contestee, which plea consisted of a general demurrer and several special exceptions, all of which were overruled, and a general denial.

The trial judge, before whom the cause was tried without a jury, filed, among others, the following findings of fact and conclusions of law:

"(1) I find as a fact that at the special election 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. Vernon's Sayles' Statutes, arts. 1096a. 1096b.

tion omitted here, but each amendment is shown to have received more affirmative than negative votes).

tin, there were cast for and against each of said amendments or propositions the number of "(2) That the city council is without power votes set opposite the propositions respectiveunder the statute except through a charterly, as shown in the following table: (Tabulacommission to submit propositions of repeal. Its power to submit propositions is limited to submitting ‘amendments,' and this does not include repealing propositions. “(3) That the city council was without pow-held according to law. er to submit, as was done, propositions containing more than one subject, so combined that the voter had no privilege of voting for some subjects and against other subjects, contrary to the statute declaring each proposition shall contain but one subject.

"(4) That the proposed amendments are invalid and illegal because they do not make reference to the public act of the Legislature (being the Act of 1909 of the Thirty-first Legislature), which it is the purpose of these propositions to amend.

"(5) That propositions 8, 9, 11, 12, 13, and 17 are invalid and illegal, because they propose to amend parts of the public acts of the Legislature of Texas by striking out and changing language of certain sections without re-enacting such sections contrary to article 3, § 36, of the Constitution.

"(2) I find that said election was regularly

"(3) I find therefore that each of the 22 propositions or amendments submitted to a vote of the people at said election received in its favor a majority of the votes cast at said election, in that each proposition received more votes in its favor than were cast against it."

"(6) I conclude, as a matter of law, that the election so held was a valid election, and that each of the proposed amendments to the city charter of the city of Austin was duly adopted, and that the said city charter of the city of Austin, as it existed prior thereto, has been duly and legally amended as provided in each of said 22 amendments."

[1, 2] With the submission of the case we also took under submission a motion by con

"(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 were not counted, and each and all of said propositions failed to be approved by a majority of such qualified voters, each receiving less than 2,479 votes and less than 2,470 votes. "(7) That the lawful returns showed that

Harry Nolen, filed herein, urging also in this connection their propositions Nos. 1 and 2 that the court erred in granting him leave to intervene over their objection. The motion is without merit, and is overruled. Appellants showed no injury whatever occasioned by the

of the jurisdiction of the district court to hear and determine election contests. It has been the policy of this court not to certify questions to the Supreme Court, unless some special reason exists for such action. In adopting this policy we feel that we are only carrying out the purposes of the law creating the court. This case arose and came to us in the regular course of procedure, and, although the questions submitted are important, our decision will not deprive the appellants of the right to have them passed upon by the Supreme Court, if that court sees proper to assume jurisdiction of the case. If the jurisdiction of this court is final by reason of the provisions of the statute in such matters, then, of course, we are only performing the duties for which it was created. This course, in the event the Supreme Court does not assume jurisdiction, will expedite the final disposition of the case rather than delay it, since the time required to certify will be eliminated in the event the Supreme Court does not assume jurisdiction; and, if it does, only the time necessary for us to dispose of the case after submission is involved.

intervention of Nolen. In fact, they practi- | Courts of Civil Appeals concerning the extent cally admit that no injury occurred by reason of his intervention, since every question decided could have been, and was, disposed of upon pleadings of contestants and contestees. They argue, however, that, if the trial court in this instance can permit Nolen to intervene, there is no marked stopping place for such interventions, and many others might be permitted to intervene. This argument is not tenable when applied to the particular intervener. He was a member of the city council that declared the results of the election being contested. Article 3078, Revised Statutes, provides that defendant to an election contest, among others, shall be "the officer who declared the official result of said election, or one of them." So under this statute Nolen was at least a proper party to the suit filed, which appellants recognized, for they served him with notice and a statement of the grounds of contest, and made him a party to the proceedings filed in the district court. Being a proper party to the suit, he filed, as he had a right to do, a plea to the jurisdiction of the court; whereupon contestants moved to dismiss him from the suit, which motion was granted, and he was accordingly dismissed. It thus appears that the only reason for dismissing Nolen from the suit was the fact that he contested appellants' cause of action, which, we submit, is not a valid reason. Having been brought into the suit as a proper party thereto by contestants, he would be entitled to defend his action as an official who declared the result of the election being contested. Of course, no error is predicated here because of his dismissal, for the trial court permitted him to thereafter intervene. There is nothing in the election contest statutes which prohibits one of the officials who declared the results of a contested election from defending his acts in so doing independently of any defense or defenses that may be urged by other officials who acted with him in declaring the election results. Neither do the statutes prohibit one who is a proper | party to an election contest from intervening where he has not been made a party thereto, and urging any defense to the validity or invalidity of the election results as declared. It is also well settled that in this state an election contest is not a civil suit, and that the trial judge has a wide discretion in the conduct of the proceedings, and we think that in the exercise of this discretionary power he may permit an intervener, who is by statute at least a proper contestee, to intervene and make such defense as the statutes may authorize in purely election contests.

[3] Along with the submission of the case we also took under submission appellants' motion to certify such of the questions here raised as we saw fit to the Supreme Court. The grounds for the motion are: The importance of the questions involved; and that

[4] Appellants assert that the opinions in McCall v. Lewis, 263 S. W. 325, and Bassel v. Shanklin, 183 S. W. 105, by this court, and Turner v. Allen, 254 S. W. 630, by the Beaumont court, on the one hand, are in conflict with the opinions in Kidd v. Truett, 28 Tex. Civ. App. 618, 68 S. W. 310, by the Dallas court, and Scarbrough v. Eubank, 52 S. W. 569, and Oxford v. Frank, 30 Tex. Civ. App. 343, 70 S. W. 426, by the Fort Worth court, on the other hand, as to the matters over which district courts may assume jurisdiction in election contests. We cannot agree with appellants' contention that any conflict exists in these cases. In the recent case of McCall v. Lewis, supra, this court reached the conclusion that the statutes relating to election contests did not authorize a contest on the ground that the law under which the election was held was void, or that it did not authorize such an election as was held, but that it could be contested only for some statutory reason, showing that it was not properly or fairly conducted, or that illegal votes were cast, or for some other matter impeaching the fairness of the result declared. In announcing this rule of law we followed the case of Bassel v. Shanklin, supra. We also took the view there that, since the Supreme Court had held in the case of Odell v. Wharton, 87 Tex. 173, 27 S. W. 123, that the 1891 amendment to the Constitution, conferring general jurisdiction on district courts to try election contests, was not self-executing, and further, that election contests were not civil suits, that district courts had jurisdiction in election contests of only such matters as the enabling act to the constitutional amendments authorized. The en

(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 words, it was our view that, if the Constitution did not authorize an election to be contested under the general power conferred on district courts by the 1891 constitutional amendment for any grounds that might be raised, and if an election contest did not constitute a civil suit, thereby fixing the grounds of contest, then the authority to contest an election must be confined to the specific grounds provided in the statutes relating to that subject.

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 votes from the poll