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less she is a Sister of Charity; that there is no capital stock, and no stockholders in said corporation, and no profits or dividends have ever accrued or can accrue to any person from or by reason of said corporation; that defendant, as to all property and moneys in or to which it has or may acquire title or interest, holds and will hold same only in trust for the charitable use and purposes for which it is organized; that at all times since the organization of said corporation, said defendant, in compliance with its charter power and obligations, has received into said hospital the sick and afflicted of all nations, and has administered to, nursed, and cared for such sick and afflicted, without profit; that if any such sick or afflicted who are received in said hospital are able and willing to pay for such care and nursing, the same is received, and the money so received is by defendant applied to the paying for the care and nursing of such sick and afflicted received in said hospital as are poor and unable to pay for their care and nursing; that it was organized and exists for charity, and is a public charity corporation, and that it administers to the sick and afflicted poor of all nationalities without any regard to any consideration of class or of social or religious associations, and receives, nurses, cares for, and maintains the said helpless and afflicted poor in vast numbers, without any compensation whatever; that the members of said defendant corporation devote their time and labor to the care and nursing of the sick and afflicted without receiving any compensation therefor; that neither the said defendant corporation nor any member of said corporation receives any profits for the care and nursing of said sick and afflicted, and that all the property owned by said defendant, and all money received from patients who are able and willing to pay for the care and nursing, is used entirely for said charitable purpose of caring for the sick and afflicted in accordance with the provisions of the charter of said defendant. Defendant states that the work of ironing clothes by means of said mangle was a part of the work necessary to be done and being done for the purpose of taking proper care of said patients in defendant's hospital, and was part of the work of washing the hospital linens for the use of patients under defendant's care; that said institute, Hotel Dieu, obtains its property, subsistence, and maintenance from donations, bequests, contributions, and payments aforesaid, by patients able and willing to financially aid said charity in return for hospital accommodations furnished to them, without any profit possible of attainment to the members of said corporation, whose services are given thereto as a gratuity; that all funds and property held or holdable by said corporation are, for the sole object and purpose of said public charity, a special trust assumed by it under the Constitution and laws of Texas; that it does not and cannot own funds or property subject to execution for damages herein sued for; and that judgment against it for the alleged wrongs set up by plaintiff would be nugatory and to no pur

pose.

ridge v. Cartrett, 75 Tex. 628, 13 S. W. 8; Ry. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681; Campbell v. Walker, 22 S. W. 823; Erwin v. Hayden, 43 S. W. 610. Had a special exception been urged to the sufficiency of the petition in this respect, it would have been well taken, as the causal connection should be directly averred and not left to inference or deduction; but, in the absence of such an exception, the petition here considered is regarded as sufficient.

[2] Furthermore, a defective petition may be aided and cured by averments in the answer and for this purpose both may be considered in passing upon a general demurrer. Lyon v. Logan, 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511; Peoples v. Brockman (on rehearing) 153 S. W. 907; Gaston v. Wright, 83 Tex. 282, 18 S. W. 576; Hill v. George, 5 Tex. 87; Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293; Weathered v. Golden, 34 S. W. 761; Hennessy v. Clough, 40 S. W. 157; Gould on Pleading, § 192.

Defendant in its answer specially averred: "That if said Ramona Armendariz sustained personal injuries pleaded and charged in the petition of plaintiff, the proximate cause of defendant nor of its agents or representatives, said injuries, if any, was the negligence, not of or of any one whose negligence is in law chargeof said Ramona Armendariz, her coemployés on able against defendant, but of fellow servants the occasion charged, for whose negligence defendant is not in law responsible, and of whose negligence plaintiff, Ramona Armendariz, assumed the risk."

By the answer the question is thus sharply raised whether defendant's negligence was the proximate cause of the injury. Conceding, therefore, the insufficiency of the petition in this respect, the defect was thus aided and cured by the answer. Conner, 32 Tex. Civ. App. 277, 74 S. W. 83; Fitzhugh v. Gaston v. Wright, supra; Boettler v. Tendick, 73 Tex. 488, 11 S. W. 497, 5 L. R. A. 270; Melton v. Beasley, 56 Tex. Civ. App. 537, 121 S. W. 575; Ry. Co. v. Miller, 128 S. W. 1165.

[3, 4] The trial court properly sustained the exception to that portion of the answer first above quoted. This question was fully considered and passed upon by the San Antonio Court of Civil Appeals upon the former appeal of this case. Armendarez v. Hotel Dieu, 145 S. W. 1030. It was there held that a corporation of a charitable nature, such as appellant, is liable in damages to an employé for personal injury sustained through negligence chargeable to it, and that its property is not exempt from execution to enforce payment of such demand. See, also, St. Paul's Sanitarium v. Williamson, 164 S. W. 36, by the Dallas Court of Civil Appeals, which is practically to the same effect. And since such a corporation is held subject to the ordinary rules of liability between master and servant, it would seem to necessarily follow that the doctrine of respondeat superior applies in its full vigor; but, however

[1] A number of assignments are predicated upon the proposition that the petition is insufficient and subject to general demurrer because it is not averred that the injury complained of was proximately caused by the negligence alleged. Upon general demurrer every reasonable intendment arising upon the pleading excepted to must be indulged in favor of its sufficiency. Applying this rule, the causal connection between the alleged negligence and injury is sufficiently shown by reasonable inference and deduction from

where the negligence relied upon is a failure
to instruct and warn. In any case in which,
for any reason, the master owes his servant
the duty of explaining and giving instruc-
tions regarding dangers to which his work
normally exposes him, that duty is not dis-
charged by delegating its performance to an
agent. Such duty rests primarily and abso-
lutely upon the master, and is nondelegable.
4 Labatt on Master & Servant (2d Ed.)
1508; 17 Am. & Eng. Ann. Cases (note) p.
491; Industrial Lbr. Co. v. Bivens, 47 Tex.
Civ. App. 396, 105 S. W. 831. Therefore,
since appellant's duty to instruct and warn
was a nondelegable duty which it owed the
appellee, the doctrine of respondeat superiority
has no application one way or the other.

The fifth, sixth, and seventh assignments, together with the third proposition under the ninth, relate to the sufficiency of the evidence. They, and the tenth, being all regarded as without merit, are overruled.

Affirmed.

that an injunction shall be issued where the Under Rev. St. 1911, art. 4643, providing applicant is entitled to the relief demanded, and the relief requires the restraint of some act prejudicial to the applicant, an applicant is entitled to an injunction, regardless of his remedy at law; the amendment of 1909, which added a provision, authorizing the issuance of injunctions to prevent irreparable injury to real propgerty, irrespective of any legal remedy, not changing the previous rule.

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3. EMINENT DOMAIN (8 47*)—CONSTRUCTION OF TELEPHONE LINE-EFFECT.

5. INJUNCTION (§ 16*)-ISSUANCE-ADEQUATE REMEDY AT LAW.

1. TELEGRAPHS AND TELEPHONES ($ 10*)-7. RIGHT TO CONSTRUCT LINE-STATUTES.

Rev. St. 1911, arts. 1231, 1235, relating to the use of streets and roads by telegraph companies, applies only to companies organized to construct and maintain telegraph or telephone

lines.

Where the fee of a county road as well as that of the right of way of a railroad company remains in the landowner, the erection of a telephone line on either is an appropriation of his property which cannot be justified, except in case of condemnation by a public service telegraph or telephone company.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.*] 4. TELEGRAPHS AND TELEPHONES (§§ 10, 11*) -CONSTRUCTION-EASEMENTS.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 15; Dec. Dig. § 16.*] 6. INJUNCTION (§ 49*)-ISSUANCE "IRREPA

RABLE INJURY."

As a landowner would be put to a multiplicof suits to recover damages at law, and as defendants might in time acquire an easement, an injunction restraining defendants from erecting a telephone line over plaintiff's property should be issued, under Rev. St. 1911, art. 4643, providing for the issuance of injunctions in case irreparable injury to real estate is threatened, irrespective of any remedy at law, for by the term "irreparable injury" it is not meant that the injury must be beyond the possibility of repair by money compensation, but that it must be of such a nature that no fair and reasonable redress may be had in a court of law, and to refuse an injunction will work a denial of justice.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 102; Dec. Dig. § 49.*

For other definitions, see Words and Phrases, vol. 4, pp. 3772-3774.]

INJUNCTION (§ 12*)-ISSUANCE.

An injunction will not be issued to prevent an act already committed.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]

8. INJUNCTION (§ 118*)-ISSUANCE-PETITION -SUFFICIENCY.

A petition merely alleging that plaintiff did not consent to defendants' erection of a tele

phone line over plaintiff's land does not sufficiently negative plaintiff's acquiescence therein to warrant an injunction to restrain the use of such a line.

Cent. Dig. §§ 225-242; Dec. Dig. § 118.*]
[Ed. Note.-For other cases, see Injunction,

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by the Acme Cement Plaster Company against the American Cement Plaster Company and others. From an order denying a writ of injunction, plaintiff appeals. Reversed and remanded.

Decker & Clarke, of Quanah, for appellant. Huff, Martin & Bullington, of Wichita Falls, and S. D. Bishop, of Lawrence, for appellees.

Neither a county which has an easement in a public road, nor a railroad company which has an easement in a right of way over plaintiff's land can authorize the establishment of a private telephone line over such ways, as easements granted for public purposes cannot be used for private purposes.

HUFF, C. J. This is an appeal from the order of the district judge refusing to grant the prayer for writ of injunction, because the petition presented to him did not disclose such an equity as would justify him in granting the writ prayed for. The appellant, the Acme Cement Plaster Company, complained of the American Cement Plaster Company and C. H. Newby, alleging substantially that the appellant was a corporation

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 6, 7; Dec. Dig. §§ 10, 11.*]

duly chartered under the laws of Illinois, | state that it is their intention to place the
and doing business in Texas, and that the remainder of the telephones on and along
appellee American Cement Plaster Company the public roads on the west side of sec-
is a corporation chartered under the laws tion 208; that some of the holes now ex-
of the state of Kansas, for the purpose, and cavated for the telephone line are on and in
with powers, to mine, manufacture, and sell the Quanah & Childress public road aforesaid,
gypsum and its products, and doing business and some are on the other lands of plaintiff ;
in Texas, and was not chartered for the that defendants will continue to operate and
purpose, nor had it the power or authority, construct said telephone lines, unless re-
to construct and maintain magnetic tele- strained, and the plaintiff has no adequate
graph lines, and that C. H. Newby was the remedy at law. Appellant's prayer was for
agent and manager of the company in Harde- a writ of injunction restraining appellees'
man county, Texas. It is alleged that on agent and employés from further using and
the 1st day of January, 1910, and at all maintaining the telephone lines now in op-
times since then, appellant was and is the eration above described, and from erecting
owner of the fee in and to all those parts and maintaining the telephone lines above
of sections 208 and 209, Block H. W. & N. set out as under construction, and from fur-
W. Ry. Co. Surveys in Hardeman county, ther going upon and over and across plain-
Tex., lying north of the Ft. Worth & Denver tiff's land, other than along the public roads,
City Railway Company's right of way, and and from further digging holes and pits in
that on all of said days and dates it was the public roads across said land or upon
lawfully seised and possessed of said land, other parts of said lands, and from further
holding the same in fee simple, with the operating a telephone over and across the
exception: (a) That there is a public road public roads on said lands, and from fur-
meandering across said lands in a westerly ther operating a telephone over the remain-
direction, from the town of Quanah, known der of said lands above described, etc.
as the Quanah & Childress road, same being
about 60 feet in width; (b) a public road
extending in a northerly direction from in-
tersection with the last-named road along
the west side of section 208, occupying a
strip of about 20 feet off of said section;
that Hardeman county owns an easement
over said land used as a public road for
road purposes, but that the fee thereto is

now and has been on all the dates afore

Appellant's first assignment is substantially that the court erred in refusing the writ of injunction prayed for, because the petition showed that appellees were naked trespassers upon appellant's land, doing an unlawful act over the protest and objection of appellant in constructing a telephone line over the lands held and possessed by appellant in fee ed are: (1) That an injunction will lie to prosimple. The propositions thereunder presenttect the owner's possession of real property from a forcible trespass. (2) That it appears from the allegation that appellees are not corporations organized and chartered for the purpose of constructing and maintaining a magnetic telegraph line, and had no right as such to construct over the public roads of which appellant has the fee. (3) That the restraining order should have been granted, restraining the operation over the railway right of way, the fee to which was owned by appellant, as well as to the abutting lands.

said in the plaintiff; (c) that the Acme Tap Railroad Company is the owner of an easement over and across said section 208 in a northerly direction from a connection with the Ft. Worth & Denver City Railway Company, the said right of way being 100 feet in width, but that the fee of said right of way is vested in the appellant; that on or about January 1, 1911, the appellees, without the consent of appellant, erected their telephone line over and across plaintiff's said land owned and held in fee, and over and along the right of way of the Acme Tap Railway Company and since said time has been using said line for the purpose of transmitting messages from Quanah to the plaster mill of appellees, and that about JanJary 1, 1914, appellant notified appellees to remove said telephone line from appellant's land; that about February 10, 1914, appellees, over the objection and protest of appellant, began digging holes in and along and across and over appellant's land above described, and said that it is their intention to place telephone poles in said holes and wires on said poles, and use said telephone line for their use and benefit; that at this time the holes have been dug over and across sections 208 and 209, about 54 feet north of the north boundary line of the Ft.

[1-3] The allegations show that the appellees are not such corporations as are given the right of eminent domain or the right to construct and maintain telephone lines over the public highways. Under articles 1231 and 1235, R. S., this court held, in Roaring Springs Townsite Co. v. Paducah Telephone Co., 164 S. W. 50, "The statute gives the privilege only to corporations created for the purpose of constructing and maintaining telephone lines," and, if not such a corporation, it should be treated as a trespasser in attempting to construct its line, and the owner of land would be entitled to an injunction. The allegations in the petition show that the line, as constructed and used, and the proposed extension is for the private use of appellees. Land cannot be taken for private purposes in any case, and can be taken for public

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Railway Co., 104 Tex. 8, 133 S. W. 247, 36 L.
R. A. (N. S.) 662, Ann. Cas. 1913E, 870.

therefor. Barrett v. Metcalf, 12 Tex. Civ. App. 247, 33 S. W. 758; Borden v. Trespalacious, Rice, etc., 98 Tex. 494, 86 S. W. 11-14, 107 Am. St. Rep. 640; Kyle v. Ry. Co., 3 Willson, Civ. Cas. Ct. App. § 436, which case quotes Cooley on Const. Lim. (4th Ed.) 660. "The lands of an individual cannot be taken for public use without compensation; much less can they be wrested from one man and given to another, neither directly nor indirectly by such clogs, restrictions, and burthens upon his right of the recovery as to in a great measure destroy the value of the property itself." Hearn v. Camp, 18 Tex. 549.

Whether the statute giving to telephone companies the right to construct on or over the public roads can do so without compensating the owner of the fee is a much-mooted question by the various courts, and whether it is an additional burden on the land has occasioned diverse holdings. For suggestions by this court on this point, see Roaring Springs v. Paducah, etc., supra; also, for conflict between holdings, see McCann v. Johnson Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171, 2 Ann. Cas. 156; Bronson v. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A. 426, 2 Ann. Cas. 639.

Is the erection of a telephone line on the right of way of the railway company and on the public roads a taking of the land from the owner of the fee? Our Supreme Court has answered this question:

"It should require only a proper regard for plain physical facts to bring the mind to the conclusion that the location of a railroad, like that of defendant, upon land in which the public have only the easement of a highway and another has the fee is the taking of that part of the land occupied by the track, at the very least, and hence a taking of the property of the owner of the fee. No one disputes that this is the legal effect of such an appropriation of land not burdened with such an easement, for, by the constitution and use of the railroad, the land is actually occupied, and necessarily, to a greater or less extent, the owner is excluded from that complete and exclusive use and control to which his ownership entitles him. Is it otherwise, except in degree, when, instead of only one, there are two interests in the soil to be considered, the public easement and the fee? Is not the land appropriated and used in that case in the same way and for the same purposes as in the other? In both instances the railroad company actually occupies and uses the soil itself in the assertion of a right of way in and over it. Is there a taking in one instance, and not in the other? To make so fundamental a

distinction is to deny to the visible facts their

*

*

necessary consequence.
The fee in
the land is not as valuable to him as if it were
not burdened with the street, but nevertheless
it is property which cannot be taken without
compensation first made or secured. If the
easement of the street should come to an end,
the fee would remain burdened only by the ease-
ment of the railroad right of way, and this
lays bare the fact that the private property in
the street is diminished to the extent of such right
of way. In such situation the entire estate is
divided into two interests, the easement of the
public and the fee of the private owner, and the
construction and use of a railroad over it is as
much the taking of the corporeal property as if

It is further held in that case that the fee burdened with an easement is "property" which cannot be taken without compensation therefor, and such threatened appropriation is enough to sustain the application for injunction. It follows therefore, when appellees, for their own personal benefit, entered upon the right of way and the roadway and sought to erect thereon their telephone lines, they took and attempted to appropriate the property of appellant to their own use. This the law does not sanction.

[4] The county and the railway company could use the easement for the purposes for which it was granted them-that is, for public use-but could not farm it out to private individuals for their private ends or use. It was not therefore necessary for appellant to negative the consent of the county or the railroad company.

[5, 6] It is urged by the appellees herein that no irreparable injury is shown, or that appellant did not allege and show that it had no adequate remedy at law. As seen from what we have said above, the action of the appellees is a threatened trespass on the land of appellant. Our Supreme Court, in construing article 4643, R. S., which provides that a party is entitled to the right of injunction "where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant," held that this provision modifies the common-law doctrine denying the equitable remedy of injunction where there exists an adequate remedy at law. S. W. Telegraph & Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994. This article was amended in 1909 (Acts [1st Extra Sess.] 1909, c. 34), adding to subdivision 3 thereof additional matter, which now reads that the applicant is entitled to the writ in all cases where he "may show himself entitled thereto under the principles of equity or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law."

Clearly appellant had the right to prevent the threatened trespass on his real estate. Was the threatened trespass an irreparable

injury? This is the serious question in this
case. The pleadings of appellant on this
point are very meager. However, we have
concluded, when the entire pleading is tak-
en together, that an irreparable injury is
shown within the meaning of that term as
defined and explained by the courts.
"By
irreparable injury is not meant that the in-
jury is beyond the possibility of repair by
money compensation, but must be of such
nature that no fair and reasonable redress
may be had in a court of law, and that to

In

justice." High on Injunctions, § 22. junctions to prevent trespass will be granted "when, owing to the peculiar character of the property in question, the trespass complained of cannot be adequately compensated in damages and the remedy at law is plainly inadequate." A trespass of a continuing nature whose constant recurrence renders the remedy at law inadequate, unless by multiplicity of suits, will be enjoined; so where from the nature of the case it is impossible to estimate the actual damages (Id. §§ 697, 700, 701) or a trespass which, if continued, will ripen into an easement, may be enjoined.

property in its enjoyment, whether that en-
joyment be one of sentiment or a pecuniary
one. An individual will not be permitted
to deprive him of it, and the public cannot
do so without adequate compensation first
paid.

[7, 8] The allegation in this case shows that January 1, 1911, without appellant's consent, appellees constructed their telephone on the right of way of the railroad, and continuously used it until February, 1914, when appellant notified them to remove it. Appellant, in its petition, asks that the use of this wire over the right of way be enjoined. When an act sought to be enjoined has already been committed, equity will not interfere, since the writ would be a useless thing. High on Injunctions, § 23; Kerr v. Riddle, 31 S. W. 328. The petition is not sufficient in this case to warrant the restraint of the use of the line already constructed on the right of way, since acquiescence in its use is not negatived. While it is alleged that the construction was without appellant's consent, it may nevertheless have acquiesced therein and in appellees' use thereof. This part of the prayer will be refused, but we think the appellees should be restrained from further erecting poles for its lines by digging holes and placing poles therein, and stringing their wire on such poles, whether the poles be placed in the public road or on any other portion of appellant's lands.

When an injunction is granted upon the ground that the trespass may ripen into an easement, the question of damage is immaterial. The relief will be allowed, although the act complained of results in no actual or substantial present injury to the complainant. Id. §§ 702, 702a, 715. Our Supreme Court held that a threatened trespass upon the fee, where there was an easement, was grounds for injunction. McCannon Lumber Co. v. Trinity Railway Co., 104 Tex. 8, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870, supra. If this was an action to prevent damages to abutting property, perhaps it would then be necessary to allege such facts as would constitute a nuisance or the like. Certainly a party has the right to restrain a threatened invasion on his premises, and the wrongful appropriation of his property. Damages may be inconsequential at the time, but, by repeating the act or continuing it, may establish a right in or to the property. | By the allegations in the petition, it is shown that appellees are threatening to erect permanent structures on appellant's property, by means of which a passage over appellant's land is established, and, if permitted to continue, would ripen by prescription into an easement over appellant's land. To measure the damages would be practically impossible, and, in order to secure compensation, would require a multiplicity of suits. Townsend

(No. 610.)

v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. ACME CEMENT PLASTER CO. v. KEYS.
A. 409, 86 Am. St. Rep. 441; Field v. Bar-
ling, 149 Ill. 556, 37 N. E. 850, 24 L. R. A.
409, 41 Am. St. Rep. 311. "If the use be con- (Court of Civil Appeals of Texas.
tinued it may' in time ripen into a title by
May 9, 1914.)
prescription, and we are of the opinion that 1. INJUNCTION (§ 118*)-PETITION-SERVICE
the plaintiff is entitled to an injunction OF PROCESS.
against such continual trespass.
a
She
ought not to be compelled to sell her land in
this way." Cobb v. Massachusetts Chemical
Co., 179 Mass. 423, 60 N. E. 790; Railway Co.
v. Miller, 98 Tex. 270, 83 S. W. 182; Barbee
v. Shannon, 1 Ind. T. 199, 40 S. W. 584. To
require the appellant to accept damages in
this case would be to require it to sell its
land to a private individual when the in-
terest of the public is not to be subserved.
Whether the damages are much or little,
equity will nevertheless protect the owner of

The case will be reversed, with direction
to the judge of the district court to grant a
temporary writ of injunction as prayed for,
limited as above set out in this opinion, and
that he order the clerk of the district court
of Hardeman county to file the petition,
issue citation, and a writ of injunction, upon
appellant executing a bond, conditioned as
required by law, in the amount which shall
be fixed by the district judge.
Reversed and remanded.

Amarillo.

Where a petition in a suit to enjoin treswho was not alleged to be a corporation, was passes alleged that the residence of defendant, unknown, but that he had agents and employés residing in the county upon whom process might be served, and the agents and employés were refused because of the failure of the petition not made parties, an injunction was properly to show parties and facts over which the court could exercise jurisdiction, since defendant could not be brought into court by the service of process on his agents, nor enjoined by service

on them.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]

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