duties to the public, which the law places upon it. If that time has arrived, the railroad company may be allowed to show this by an appropriate plea, supported by competent evidence." ness is required to be, constantly changing, and there was nothing in the contract of December 6, 1890, having to do, referring to, or covering additional trains which have been put on since that time, and which in all the time to come will be put on. Under the issue submitted to the jury and which was supported by the evidence it was "(f) Because the enforcement of such a decree, found by them that it was not necessary for or such a portion of this decree, involving, as it does, supervision of a situation constantly the appellant to move the division headquar-changing, is contrary to the usages and practice ters from the city of Ennis in order to serve the interest of the public; hence we hold against appellant on that issue. Appellant cites in support of its contention Railway Co. v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385, and practically relies upon that opinion for its support. Mr. Justice Brewer, who was a learned and a strong member of the Supreme Court of the United States, dissented from the majority rendering the opinion, and the case has been criticized and modified by other courts of high degree. Our Supreme Court has held to a different view from the principle announced by that case, and, as we are in accord with our courts, we will not follow the Marshall Case. [3, 4] Appellant's third assignment of error is: "The court erred in that part of this judgment in which the defendant was 'perpetually enjoined and restrained from ceasing to keep or maintain and from removing or causing to be removed from the city of Ennis' the following: '(e) The division terminus for all its trains operating into, through, or out of the city of Ennis, in Ellis county, Tex., and also the locomotives, cars, equipment, trainmen, conductors, brakemen, crews, and other employés which are used or are to be used and officials as are necessary in such division terminus operations or on trains so reconstituted at Ennis, Tex., traffic of an extraordinary or unusual nature and employés whose employments and runs are from Ennis to points north or from points north to Ennis being excepted' "(a) Because of the reasons already given. "(b) Because, even if the contract upon which the plaintiffs rely was held to be perpetual, and it was held that this contract was binding upon the defendant, it nowhere contains any obligation requiring the defendant to maintain any character of train schedules or system or plan of running or changing crews or engines or fixing the end of the runs of its trainmen, and there is nothing in the contract which would prevent or prohibit the defendant from changing the run of its trains or of its train crews whenever and in whatever way it pleases. "(c) Because the contract referred to did not bind or purport to bind the receiver or this defendant to keep (1) the 'trainmen, conductors, brakemen, crews, and other employés,' or (2) 'the locomotives, cars and equipment' referred to in this portion of the decree, at Ennis, and the injunction upon this defendant thus to do is entirely outside of and beyond the scope of the obligation mentioned. "(d) The portion of the judgment quoted is indefinite and uncertain, and for a decree operating for all time to come is altogether wanting in that definiteness and certainty which is required, and is in this respect unreasonably burdensome and oppressive on the defendant, and is so indefinite and uncertain as to practically transfer the operation, direction, and control of the defendant's property at this point from its officers to the court. "(e) Because the number and character and of the courts, and especially so where, as this decree purports to do, the order is to be perpet ual in its extent. "(g) Because it covers trains belonging not only to what was formerly the middle division, but to all parts of the defendant's property, provided only that they would pass through Ennis, as to which there is nothing in the contract. "(h) There are no pleadings to support such a finding or decree. "(i) There is no evidence to support the decree in this respect." Several propositions are submitted under this assignment, which are, in substance: (1) If the contract sued on was held to be perpetual, it does not obligate the maintaining of "any character of train schedules or system or plan of running or changing crews or engines, or fixing the end of the runs of its trainmen," etc.; (2) nor does it obligate the "defendant to keep the trainmen, conductors, brakemen, crews, and employés, or locomotives, cars, equipment, or the officials as are necessary in such division terminus operations or on trains so reconstituted at Ennis"; (3) that the judgment is "indefinite and uncertain, and for a decree operating for all time to come is altogether wanting in the definiteness and certainty required, both as to what is meant by 'division terminus,'" and as to the equipment and employés, etc.; (4) there was nothing in the contract as to the number, character, and the run of trains, the nature of business required to be constantly changing, etc.; (5) the enforcement of such a decree, involving, as it does, supervision in the last analysis by the court of a situation intensely complicated and constantly changing, is contrary to usages and practice; (6) it covers trains belonging not only to what was formerly the middle division, but to all parts of the defendant's property, provided only that they pass through Ennis; (7) that the keeping and maintaining of said "division headquarters" for 23 years at Ennis was a sufficient compliance with the contract; (8) "the judgment in the particulars here complained of is supported neither by the contract nor by the finding of the jury." The first part of the judgment properly construes the contract, and then particularizes how it is to be observed, and it is not erroneous. Under the contract the railway company was to maintain its division headquarters at Ennis, and under the evidence it was shown that by such a provision, quoting from the testimony of Cecil Faris, is meant: "The meaning of that term is clearly the head of the division, 'where the superintendent's office and roundhouses and division terminal are, dispatcher's office and lay-over for crews, where were included in the necessary maintaining the crews change ordinarily; also the repair of headquarters at Ennis, and the court shops for the cars and engines, sometimes, the The middle division of roadmaster and the roundhouse." If I were going properly so held. to define the term 'division headquarters,' I the Houston & Texas Central Railroad Comwould say it includes the superintendent's office pany mentioned in the contract and referred and his assistants, the dispatcher's office and to in the judgment was fixed by the autheir necessary forces or clerks necessary to handle the division, the roundhouses and repair thorities of the road to run from the tract shops. It would also include the conductors, of land on which the machine shops are lobrakemen, firemen, and engineers that would cated about a mile just north of Ennis and stop there at the division terminal. My defini- extending south to Hearne, Tex., and Ennis tion of the 'division headquarters' sometimes means all of the conductors, all of the firemen, has ever since that time remained the divibrakemen, engineers, all of the superintendent's sion arrangement from Hearne to Ennis and forces, dispatcher's forces, all of the employés from Ennis to points north and west, and of the roundhouses, employés of the machine with slight modification Ennis has been the shops, and the roadmaster, and ordinarily takes in the section foreman. A division terminal is administrative point for handling train movewhere the crews lay over." ments through the system from Hearne north to Denison, and northwest to Ft. Worth. In construing the contract the court properly construed the middle division, and the judgment properly protects the railroad company's interest in this language, the requirements of the system north of Ennis, "in case the railroad shall desire to set up divisional administration of them at some point north of Ennis." Construing the judgment as a whole, it is only intended to compel the railroad company to enforce the contract according to its legal effect, that is, that the railroad company should continue as it had done, to keep and maintain its division headquarters at Ennis in a reasonable and consistent manner, and the particularization of judgment was placed therein to guard against the violation thereof, and, as contended by appellees' counsel: "It is apparent that the paragraph of the judgment complained of does not undertake to fix the character of appellant's train schedules nor its system or plan of running or changing crews or engines, nor the length of train runs, etc., as asserted in appellant's first proposition. It simply undertakes substantially to preserve only the division terminus operations and all of the equipment and employés that are referred to in it, viz. those only which are necessary in such division terminus operations,' or on trains which make Ennis their division point for being reconstituted, and that even those admonitions are expressly limited so as to exclude therefrom traffic, equipment, and employés which might preferably be handled at points north of Ennis, this exception being provided in order that the decree might not be thought to cover more than the former middle division." The enjoining appellant from discontinuing its division terminus operations is not indefinite or uncertain, and it can conform to it substantially by proper effort; nor is it so intensely complicated as to require the supervision of the courts, if the railroad company makes a bona fide effort to comply with the terms of the contract. There being no time fixed in the contract for its termination, it was not error in the court to construe it to run perpetually; the evidence showing that the public intérest demanded no change. [5] There is no error in the terms that "enjoining and restraining the railroad company perpetually from ceasing to keep or maintain and from removing or causing to be removed from the city of Ennis the superintendent and assistant superintendent of trains and chief dispatchers with their officers and office forces described in the judgment." By the terms of the contract the railroad company was to "establish and maintain division headquarters at Ennis," and according to the evidence such employés [6] By their ninth assignment appellants complain that: "The court erred in that part of its judgment in which it ordered that this defendant, its successors and assigns, do now and continuously hereafter keep and maintain in the city of Ennis, in Ellis county, * in perpetuity, its division and headquarters, machine shops, roundhouses for that portion of its railway system which composed the former middle division of said railroad company, all comprising and including the departments, facilities, employés, organization, etc., of said portion of its railway system as follows:' [the giving six paragraphs, lettered respectively (a), (b), (c), (d), (e), and (f), which lettered paragraphs are identical with paragraphs of said decree of the same letters copied berein] "(a) Because of the reasons for refusing to grant a specific performance of the contract already given. "(b) Becuase the language here quoted is vague, indefinite, and uncertain, and is not of that definiteness and certainty which is required of a decree in the nature of one of specific performance, and all the more deficient in this respect in such a decree which purports to continue for all time to come. "(c) Because each of the lettered paragraphs is erroneous for the reasons stated with respect to each respectively heretofore given herein, and defendant prays leave to refer to said reasons in this connection." Under this assignment three propositions, as follows, were submitted: First. "If it were a proper construction of the contract that the receiver agreed to establish the division headquarters, machine shops, and roundhouse at Ennis, and never move them therefrom, such a contract embracing what was found by the court below to be embraced therein, would, except as to the machine shops and roundhouse, an exception as to which has been specially made by statute, be incapable of being ordered to be specifically performed, because not capable of present performance, and requiring the constant supervision of the court." Second. "If it were a proper construction of the contract that the receiver agreed to estab and roundhouse at Ennis, and never move them lish the division headquarters, machine shops, therefrom, such a contract embracing what was found by the court below to be embraced therein, | In Schmidtz v. Railway Co., supra, on the would, except as to the machine shops and question of specific performance the court roundhouse, an exception as to which has been specially made by statute, be incapable of being ordered to be specifically performed, because appellees have an adequate remedy at law." say: "It seems clear to us that there is no adequate relief for the bondholders to be had, except by a specific enforcement of the contract; Third. "If it were a proper construction of hence the important question to be considered the contract that the receiver agreed to estab-is the power of the court to enforce specifically lish the division headquarters and machine the contract, and whether the same, in equity, shops and roundhouse at Ennis, and never move should be enforced. As before said, there is them therefrom, the contract, as construed by some authority cited which sustains the contenthe court below, is too indefinite and uncertain tion of appellee that courts of equity cannot or to be made the basis of a decree for specific per- ought not to specifically enforce a contract formance." requiring skill and long or continuous supervision of the court, but it is insisted by appellant contentions that such contracts can and ought that the weight of recent decisions sustains its to be enforced, and he cites several decisions in support of this contention, among which is," etc. (citing and discussing numerous important cases). ance. Under the circumstances of this case we are of the opinion that the lower court properly rendered a decree of specific performIn this state our courts have jurisdiction of both law and equity, and if there is no remedy at law for its enforcement, we are of opinion that a remedy existed in equity for specific performance of the contract. Tyler v. Railway Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911; Railway Co. v. Anderson County, 150 S. W. 239; Railway Co. v. Anderson County, 106 Tex. 60, 156 S. W. 499; Railway Co. v. Anderson County, 174 S. W. 305; Mosel v. Railway Co., 177 S. W. 1048; Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. 243, 34 L. Ed. 843; Railway Co. v. D. & R. G. Railway Co., 143 U. S. 596, 12 Sup. Ct. 479, 36 L. Ed. 277; Telegraph Co. v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 36 L. Ed. 776; Union Pacific Co. v. Railway Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265; Schmidtz v. Railway Co., 101 Ky. 441, 41 S. W. 1015; Railway Co. v. Franklin, 96 Va. 693, 32 S. E. 485, 44 L. R. A. 297. In Tyler v. Railway Co., supra, we have a case in line with the instant one. Mr. Justice Brown in that case, in speaking for the court, says: "It seems to us that the weight of modern authorities sustains the contention of appellant, and a court of equity can enforce specific perIt is pretty well known history of the country formance of the contract under consideration. that many railroads, and for long terms, have been operated under the direct supervision and control of courts of equity. It does not seem execution of the contract under consideration. to us that it would be difficult to enforce specific The court may enforce its orders by attachment or rule according to equity practice, or, if deemed best, it might place the road in the hands of a receiver." Appellants' tenth assignment of error and the proposition thereunder are: favor of the defendant because the plaintiffs, for "The court erred in not entering judgment in reasons above pointed out, were not entitled to a judgment of specific performance with respect to the facilities referred to in the petition, other entitled to a decree of specific performance with than the shops and roundhouse, and were not respect to these, for the same reasons, and for the further reason that the contract upon which road company but that of the receiver of such the plaintiffs rely is not the contract of a railcompany, and the statute upon which the plaintiffs rely is not applicable." Proposition: "In the absence of such a statute as article 6423, specific performance of a contract with respect to the location of machine shops and roundhouses should not be decreed, and specific performance of that part of the contract upon which the plaintiffs rely should not be decreed, because it is not the contract of a railroad company, but of a receiver, and is not covered by the article referred to." "The St. Louis Southwestern Railway Company of Texas contends that the courts should not undertake to enforce the specific performance of the contract made in this case, because it would involve the oversight and control of the road by the court, for which purpose the road is not properly equipped. There is no difficulty in enforcing the specific performance of this contract; the judgment of this court perpetuating the writ of injunction heretofore issued in this cause will have the effect to prevent the removal by the St. Louis Southwestern Railway Company of Texas of its general offices and its machine shops and roundhouses for its main line from the city of Tyler, and we apprehend that no compulsory process of the court the federal court to one Olcott. Prior to will be required to secure the maintenance and operation of the general office, machine shops, and roundhouses as thus located; nor will there be necessity for the oversight and supervision of any judicial or executive officer of the state in the operation thereof. "It is claimed that the enforcement of such contracts as that sought to be enforced in this case would be against the public policy of the state. On the contrary, to enforce the statute of the state, as will be done in this case, will be to enforce the public policy of the state, as declared by the Legislature in the enactment of article 4367. There is no public policy nor public interest to which courts may give precedence over a valid statute enacted by the legisla [7] The contract sued on, as heretofore shown, was made by Dillingham, receiver of the Houston & Texas Central Railway Company, with the city of Ennis on December 6, 1890. The said road was sold by order of that time, in 1888, the court had decreed said road delivered to him, and after the sale, at the solicitation of Olcott, two of the receivers were discharged, and Dillingham retained and kept possession of the property, and so remained in possession, controlling, managing, and operating same, until his discharge in December, 1893. In the meantime, after the road was bought in and ordered delivered to Olcott, he procured three orders from the court for delays, postponing from time to time the delivery, which continued eral court on December 24, 1890, decreed in, tractual or resulting from torts, or otherwise, passing on the motion to delay in delivering incurred by the receiver or receivers appointed the property to Olcott, among other things, as the same may be fixed and determined by by this court in the above-entitled cause, and as follows: "It is further ordered that such property nevertheless shall be delivered and received by said Olcott, or his assigns, subject to and charged with the obligations and liabilities contractual or resulting from torts or otherwise incurred by the receiver or receivers appointed by this court in the above-entitled cause and as the same may be fixed and determined by this court, and also subject to the right which this court reserves to charge upon the property or any part thereof." Olcott and his associates formed a corporation for the purpose of taking over said Houston & Texas Central Railway Company under their purchase, and it was chartered under the name of Houston & Texas Railroad Company, under which name the defendant railroad company has been operating ever since. Olcott having purchased the property under an order of the court and allowing it to remain in the hands of Dillingham and be operated and handled for Olcott's convenience and advantage, Dillingham became his agent, and the appellant Railroad Company is liable for the contracts made by the receiver in relation to the appellant road. Bath v. Railway Co., 17 Tex. Civ. App. 697, 44 S. W. 595; Railway Co. v. Crawford, 88 Tex. 277, 31 S. W. 176, 28 L. R. A. 761, 53 Am. St. Rep. 752; Railway Co. v. Strycharski, 168 U. S. 706, 18 Sup. Ct. 943, 42 L. Ed. 1213. [8] It is assigned as error, and the proposition submitted thereunder, that: "The court erred in not sustaining the plea of the defendant to the jurisdiction of the court as the same appears in the second amended original answer of the defendant, and in other pleadings of the defendant, the undisputed evidence showing that the allegations made in said plea are true." Proposition: "Appellant had the right to have the question of its liability, if any, growing out of the contract of the receiver dated December 6, 1890, determined by, and only by, the United States District Court for the Southern District of Texas, as the successor of the United States Circuit Court for the Eastern District of Texas, and the plea to the jurisdiction of the district court of Ellis county should have been sustained." Appellant's plea to the jurisdiction of the district court of Ellis county, which tried this case, contends that jurisdiction was held by the United States Circuit Court for the Eastern District of Texas in consolidated cause No. 198, styled Nelson S. Easton v. James Rintoul, Trustee, et al., in which Dillingham was one of the receivers. It makes various statements of different orders made by said United States court, and that said court retains jurisdiction to adjudicate all suits in relation to controversies over contracts made by the receivers of that court. One order made by the United States court was as follows: "It is further ordered that such property nevertheless shall be delivered to, and received by, said Olcott or his assigns, subject to, and charged with, the obligations and liabilities, con this court." Various other orders were made in rela tion to claims affecting receivers in said suit. On March 21, 1900, in order for final and complete settlement, after notice was given by said court, it made provision with reference to reserved jurisdiction as follows: "And all controversies in this cause having been finally determined, the same is hereby clos ed, and no further petitions, motions, or other applications shall be filed in this cause, except and to the purchaser, Frederick P. Olcott, folupon due notice to the complainants, defendants, lowed by order of the court granted after such notice." Said order also provided: "Charles Dillingham shall be and without further order stand finally relieved and discharged as receiver herein, and thereupon, and without further order, his bond or bonds as receiver herein shall be canceled, and he and his sureties upon such bonds shall be and thereupon become finally and forever discharged of and from all further, obligation or liability on such bond or bonds." No further action was taken in said cause until after this suit was brought in Ellis county, when appellants, on June 7, 1915, filed a "supplemental bill" in the said United States court, making appellees defendants and seeking an injunction to prevent appellees from prosecuting this suit in Ellis county. This plea was disposed of by the said United States court at a hearing on June 28, 1915, by denying the injunction for want of jurisdiction. [9] The appellees in this suit were never parties to the receivership suit in the United States court, and that court having, in 1900, finally closed said suit, and having theretofore, in 1893, discharged the receiver, and all matters pertaining thereto before the court having been disposed of, the court, by way of precaution, retained jurisdiction to adjudicate any claim that might affect the action of the receiver. No such matter for over 20 years affecting the receiver arose, nor does the controversy herein involve him, but said controversy involves only the appellants and appellees and the district court of Ellis county had jurisdiction to adjudicate it. Further, the railroad company is estopped from making any claim of exclusive jurisdiction in the United States court by an act of the state Legislature enacted in 1889, from which it obtained its charter, and waived its right to make such a plea. Chapter 24, p. 19. [10] Again, appellants, if entitled to the exclusive right of being sued in the federal court, waived such right by not presenting such plea in time. The record shows that: "Appellant's plea to the jurisdiction of the state court setting up its claim that the federal courts had exclusive jurisdiction over it was submitted to the court and determined June 11, 1915. No facts are shown to have been then presented to the court, and no bill of exception was preserved. The remainder of the case was thereupon continued without prejudice to appellant's plea of privilege and plea of misjoinder. Plaintiff's second amended original petition, omitting all particular reference to the order of December 24, 1890, was filed June 14, 1915. Cause was continued for the November term, 1915, by order dated November 11, 1915, by agreement of parties, with the same reservation of rights as contained in the order of June 11, 1915. Plaintiff's third amended original petition was filed January 10, 1916. The cause was tried upon this petition. Appellant's sec ond amended original answer was filed January 10, 1916. The cause was tried upon this answer. In it appellant again asserted its plea of federal jurisdiction, its plea of privilege, its pleas of misjoinder, and its answers to the merits. At the trial of the cause, on January 25, 1916, appellant filed motion, praying the court to sustain its plea asserting exclusive federal jurisdiction, as contained in its second amended original answer, filed herein on January 10, 1916.' It bears notation as follows: 'Motion presented in due time and same overruled, to which defendant excepts. F. L. Hawkins, Judge.' No bill of exceptions on this point was preserved. The final judgment, referring to said plea to the jurisdiction, recited that the same and each and all of them, including the plea to the jurisdiction and the plea of privilege, should be and are overruled, to which the said defendants each except.' See Revised Statutes, arts. 1902, 1909, 1910; Rule 7, District and County Courts; Townes' Texas Pleadings (2d Ed.) pp. 517529; Railway Co. v. Harlan, 62 S. W. 971. [11] Appellant complains that: "The court erred in refusing to sustain the plea of privilege of the defendant, as the same appears in the second amended original answer, and the other pleadings of the defendant: (1) Because the pleadings of the plaintiff and the undisputed evidence show said action to be a suit for injunction, and not a suit for specific performance; (2) because the individual defendants herein, who are residents of Ellis county, are neither necessary nor proper parties to this suit, and are not such parties as would draw the venue of this suit to the county of their residence, and thereby deprive the defendant of its privilege to be sued in Harris county, Tex., the county of its residence; (3) because the undisputed evidence shows that the individual defendants were fraudulently made parties defendant herein for the purpose of fixing the venue of this suit in Ellis county." The purpose of this suit is to enforce the contract sued on, and the writ of injunction is but an ancillary proceeding, and, as contended by appellant, the injunctive venue statute (article 4653) does not necessarily control, but jurisdiction was given under article 1830. Railway Co. v. Anderson County, 150 S. W. 239; Tyler v. Railway Co., 99 Tex. 491, 91 S. W 1, 13 Ann. Cas. 911. of which do we believe of such gravity as to require a reversal of the case. We consider the evidence sufficient to support the judgment of the lower court, and it is affirmed. Affirmed. MASSINGILL v. MOODY et al. (Court of Civil Appeals of Texas. Feb. 21, 1918.) 1, BOUNDARIES 47 (1)-ESTOPPEL. (No. 307.) Beaumont. Where plaintiff's ancestor in title owned ing the land surveyed, or after pointing out the two tracts, and conveyed one by deed, after havlines, plaintiff would be bound thereby. 2. TRESPASS TO TRY TITLE ~45(1)-INSTRUCTIONS CONFORMITY WITH EVIDENCE. In trespass to try title by one who took by inheritance from his mother and gift from his father, instruction that he could not recover unless his father could was not erroneous as instructing to find for defendant because the father was making no claim. 3. APPEAL AND ERROR 232(2)—OBJECTIONS IN LOWER COURT-EVIDENCE-PLATS. In trespass to try title, where defendant offered a deed which referred to a plat, and the plat, as an integral part of the deed, which was received without objection, error could not be predicated on admission of the plat, as being a written instrument not proven up by competent evidence. 4. EVIDENCE EDGE. 474(1)-OPINIONS-KNOWL In trespass to try title, where one claimant testified that he had previously seen a certain map, and that a road shown thereon had been pointed out to him, his statement that the map looked all right to him was admissible as upon sufficient qualification. 5. TRESPASS TO TRY TITLE ~59-EVIDENCEADMISSIBILITY. In trespass to try title, there was no error in admitting defendants' testimony as to what they were told as to title on the issue of their good faith in making improvements. 6. EVIDENCE EDGE. 474(15)-OPINIONS-KNOWL In trespass to try title, there was no prejudicial error in permitting witnesses to testify as to the appearance of cuts and marks on trees, and the age thereof; such being matters of common knowledge. 7. APPEAL AND ERROR 634 PERFECTING RECORD. Where the files were lost, and appellant made no attempt to substitute records under Vernon's Sayles' Ann. Civ. St. 1914, arts. 2157error, he was not entitled to remand for new 2163, and his bills and assignments showed no trial "to permit intelligent consideration by the Court of Civil Appeals.' Appeal from District Court, Angelina County; L. D. Guinn, Judge. Action by G. W. Massingill against E. Moody and others. Judgment for defend The individual defendants resided in Ellis county, and the evidence showing Costello to be a proper party, and the other individuals having been dismissed, it renders the ques-ants, and plaintiff appeals. Affirmed. tion of being fraudulently made parties un- Wright & Jordan, of Lufkin, for appellant. important, as jurisdiction was properly at I. D. Fairchild, of Lufkin, for appellees. tached in that county. Quite a number of assignments of error have been presented that we have not discussed, but all have been considered, none BROOKE, J. Appellant instituted this suit against appellees as an ordinary suit of trespass to try title, and for damages, and |