Judd v. State (25 Tex. Civ. App. 418, 1901)

RAINEY, Chief Justice.

This is a quo warranto proceeding to oust the appellant as mayor of the towns of Pottsboro, for the alleged reason -that said town was never legally incorporated, as the limits sought to be incorporated include agricultural and pastoral land. Judgment below •ousted appellant, from which this appeal is prosecuted.

The sketch on page 419 will illustrate more clearly the facts hereinafter stated, about which there is no controversy.

In 1885, upon a petition signed by the requisite number of citizens, the county judge of Grayson ordered an election to determine whether :or not the town of Pottsboro should be incorporated so as to include the boundaries to all the territory embraced in the outer lines of said sketch, which will .be referred to hereafter as territory “A.” The election was ordered and held within said town, and resulted in favor of incorporating. The judge then entered an order in the minutes of the commissioners Court, purporting to incorporate the territory indicated on the sketch' bv the lines marked “B” and which will hereafter be designated as territory “B”

After this action of the county judge was entered on the minutes of the Commissioners Court, the town of Pottsboro exercised all the functions of a town or village, and was recognized as such up to November 18, 1893. On that date a petition was filed in the Commissioners Court of Grayson County. Texas, asking that the said corporation lines of the town of Pottsboro be corrected and changed so that the boundaries of said corporation should embrace only the territory marked on the sketch at the corners by the letter “C,” which will be hereafter referred to as territory “C.”

The Commissioners Court acted on this petition on the same date, making an order that the field notes read so as to describe-territory “C.” After this action on the part of the Commissioners Court, the town of

Pottsboro exercised' jurisdiction only over territory “Q” and over no other part of the various territories herein described.

The territory herein referred to as territory “A” included on the east a 160-acre tract of land, which was fenced, which then was and at all time since has been uninhabited, and which at all times herein mentioned was used as a cow pasture, and was known as the D. E. Bryant pasture. Territory “A” also included a second 160-acre tract, known as the W. M. Thompson survey, the south 70 acres of which was a fenced cow pasture, was and is wholly uninhabited, but since 1885, 30 acres have been put into cultivation. Of the other 90 acres of the W. M. Thompson survey, the northern portion was not inhabited, and 13 acres has since been put into cultivation. Territory “A” further included two 40-acre farms, which were known respectively as the Bryant farm and the Potts farm. On the Bryant farm lived a tenant and his family who were engaged in cultivating this tract of land, and other land west of it. On the Potts farm Mr. Potts lived. There also resided on this tract a tenant who was employed in cultivating this and other land west of it.

Territory “B” includes the 160-acre tract known as the D. E. Bryant pasture, and the east 66 acres of the W. M. Thompson survey. This, of course, includes part of the 70-acre pasture, and part of the 90-acre tract, on which was situated the collection of houses known as the town of Pottsboro. Judge Bryant and Mr. Potts (whose wives were the owners of the agricultural and pastoral land herein described) both opposed the incorporation of the town of Pottsboro and worked against it. Mr. Potts and his wife resided on the 40 acres of land adjoining the town of Pottsboro. Judge Bryant and his wife resided in Sherman, Texas. In 1885 the town of Pottsboro contained 204 inhabitants, and at the time of the trial of this case about 400. In April, 1900, there was an election held in the town of Pottsboro for mayor, and the .appellant was elected to fill said position. If said corporation is held to be valid, then no question is -raised as to his right to hold and exercise the functions of said office.

The original petition presented to the county judge in 1885 is lost, and parol evidence of its contents was admitted over the objections of' appellee. The contention of appellee is, that the order of the county judge, entered on the minutes of the Commissioners Court, which shows, the boundaries to be as shown on the map as territory “B,” is conclusive-in the absence of the original petition, and that the contents of said petition can not be shown by parol evidence. Our Supreme Court has held that the order of the county judge was not conclusive as to boundaries, but that the boundaries set forth in the petition to be incorporated controlled. Ewing v. State, 81 Texas, 172; Furrh v. State, 6 Texas Civ. App., 221. We see no reason why the admission of proof of the contents of the petition by parol, it being lost, should be an exception to the-general rule which permits the contents