cannot be found upon the ground, we are of opinion, as matter of law, that that survey must be located by running the course and distance called for in its field notes, beginning the survey 5,000 varas south of the northwest corner of the Travis county survey. It is quite evident that the verdict of the jury was arrived at in this manner; and therefore, as between appellant Upshur county and the appellees, the judgment will be affirmed.

As to the appellant Travis county, we are still of the opinion that it was error to give the charge heretofore held erroneous. In deciding the case before, this court did not overlook any portion of the instructions given to the jury, and was aware of the fact that the court had instructed them to ascertain and follow the footsteps of the surveyor, and had stated that all other instructions were to be understood as subordinate to that cardinal rule. But in this case the appellees are contending that the surveyor who located the Travis county school land did not run all the lines, and, if that be true, to merely follow the footsteps of the surveyor, and do nothing else, would not determine the controversy in this case. Following the footsteps of the original surveyor is quite a satisfactory method of determining questions of boundary when the surveyor ran all the lines; but when some, and not all, of the lines were run, it becomes necessary for the jury to determine the location of the lines that were not run, as well as those that may be ascertained by following the footsteps of the surveyor. The testimony shows that at the time of the making of the Travis county survey, and other surveys made at the same time, the north line of the Colony surveys was a marked and established line, and it was called for by Hudson in two of the other surveys. Therefore, as Hudson called for that line in the field notes of the Travis county survey, and as the bearing trees called for at the southwest corner cannot be found upon the ground, whether or not the call for the Colony line was made by mistake was, in our opinion, a question of fact to be decided by the jury, and not a question of law to be determined by the court, as was done by the charge held to be erroneous.

At the request of the plaintiffs, the court instructed tue jury, in substance, that if Hudson, the surveyor, ran the west line of the Travis county survey, and did not actually run on the ground the south line, and called for a point in the Colony line for the southeast corner of the Travis county survey by mistake, then course and distance would prevail, and the mistaken call should be disregarded. We think this is as far as the court should have gone upon that subject, yet the charge held to be erroneous instructed the jury, in effect, that if the north and west lines of the survey were actually run on the ground, and the south and east lines were not so run, and the location of the northwest

corner could be ascertained, then the call for the Colony line was to be treated as a mistake. The motion for rehearing is accompanied by a strong argument tending to show that that call was a mistake; but we do not believe, conceding as true the hypothesis stated in the charge, that it should be so held, as matter of law.

It is contended in the motion for rehearing and to certify to the Supreme Court that our decision in this case is in conflict with Booth v. Upshur, 26 Tex. 64, Williams v. Winslow, 84 Tex. 371, 19 S. W. 513, Sloan v. King, 77 S. W. 48, 8 Tex. Ct. Rep. 464, and several other Texas cases. We have examined the cases referred to, and do not understand any of them to hold that it is proper to give a charge similar to the one held to be erroneous in this case. We are also familiar with the rule, and have examined the cases cited to sustain it, to the effect that in passing upon objections to instructions the entire charge should be considered. Under this rule counsel for appellees contend that the instruction under consideration should not be held ground for reversal, because the court told the jury that all other instructions were to be considered as subordinate to the cardinal rule which required the footsteps of the surveyor to be followed. But this instruction goes further than the rule referred to, and tells the jury that, if none but the north and west lines were actually run on the ground, then, after following the footsteps of the surveyor in accordance with the rule referred to, they must go further, and treat another call for an object then in existence and now found upon the ground as a mistake. As before stated, this was determining as matter of law a question which, in our opinion, was one of fact to be decided by the jury. It had already been submitted to the jury as a question of fact in another requested instruction, but the charge under consideration treated it as a question of law, and was in conflict with the other instruction.

As between appellees and appellant Upshur county, the motion for rehearing will be granted, and the judgment of the district court affirmed. As between appellees and appellant Travis county, the motion for rehearing will be overruled, and the judgment of the district court will stand reversed.

Motion granted in part, and in part overruled.

STOCK

LAWS-VALIDITY

OF

2. ANIMALS ELECTION. Under Acts 26th Leg. p. 220, c. 128. § 3, providing that, if a petition for a stock-law election be from freeholders of a subdivision of any county, such subdivision shall be properly described and the boundaries thereof designated, an election ordered on a petition merely designating the number of the precinct is void.

Appeal from Hunt County Court; F. M. Newton, Judge.

Action by R. L. Tolbert against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

See 101 S. W. 206.

T. S. Miller and W. C. Jones, for appellant. C. E. Mead, for appellee.

TALBOT, J. Appellee's mule was struck and killed by one of appellant's locomotives on the night of October 13, 1904, and this suit was brought to recover its value. From a verdict and judgment in favor of appellee for the sum of $175, this appeal is prosecuted.

Appellant's railroad runs through Hunt county, and appellee's mule was struck and killed in Precinct No. 1 of said county. Prior to the killing of the mule appellant had fenced its right of way, but a panel of what is called a "wing fence," made of plank, leading from the wire fence on the edge of the right of way to a cattle guard placed in the roadbed, had been burned, through which the mule passed on to the track. It is conceded by appellee that, if appellant was not required to maintain and keep in repair its right of way fence in the precinct where appellee's mule was killed, he is not entitled to recover. Appellant does not, on this appeal, as we understand it, controvert the claim of appellee that its said fence was out of repair, that it caused the death of the mule in question, and that the mule was of the value found by the jury. Appellant's contention was, and is, that the stock law prohibiting the running at large of horses, mules, etc., was legally in force in said precinct at the time appellee's mule was killed, and that, unless appellant's servants operating the engine causing its death were guilty of negligence, appellant is not liable. In support of this contention appellant, in the court below, as is shown by its bills of exception, introduced in evidence a petition signed by the requisite number of freeholders and qualified voters of said precinct, which was filed August 17, 1900, praying the commissioner's court of Hunt county, Tex., to order an election to determine whether or not horses, mules, jacks, jennets, and cattle should be permitted to run at large in said Precinct No. 1 of said county; also the order of said commissioner's court ordering said election, the county judge's written order therefor, together with the tabulation of the votes polled at said election, showing a majority of 64 votes for the stock law and the

proclamation of the county judge declaring such result. After the introduction of this evidence, all of it, upon motion of appellee's counsel, was withdrawn by the court and excluded from the consideration of the jury, because the boundaries of the justice precinct in which the election had been ordered to be held were not designated and particularly described in the petition asking for said election and in orders made thereon, and because notice of the election was not legally shown; the court holding that the county judge's certificate showing such notice was inadmissible for that purpose.

The court's action in withdrawing and excluding this evidence is assigned as error, and the questions arise: Could the validity of the election be inquired into in this suit? If so, was the stock law legally in force in said precinct at the time appellee's mule was killed? We have reached the conclusion that the first of these questions should be answered in the affirmative and the latter in the negative. The petition prayed for an election to be held in a subdivision of the county, namely, a justice precinct, and the statute expressly provides that, "if the petition be from the freeholders of a subdivision of any county such subdivision shall be particularly described and the boundaries thereof designated." Acts 26th Leg. p. 220, c. 128, § 3. No such description was given In the petition under consideration. On the contrary, the precinct in which the election was sought to be held was only described or designated by its number, and no attempt whatever at a further description appears. It is believed that a petition for a stock-law election to be held in a subdivision of a county under the statute referred to, particularly describing such subdivision, and designating the boundaries thereof, is a jurisdictional prerequisite to the ordering of such election, and that an election ordered and held without such petition is a nullity. As said by our Court of Criminal Appeals in Donaldson v. State, 15 Tex. App. 25, the local option law, "being for a particular locality only, it is a quasi local or special law, and depends for its validity upon its adoption in conformity with the law permitting its adoption." And in a number of other cases it was held, in effect, by that court prior to the act of 1887, in passing upon local option statutes, that such laws must be strictly construed and every requisite of the statute, as to the petition, order of election, and other proceedings in reference thereto, must be complied with, or the election would be void. Prather v. State, 12 Tex. App. 401; Akin v. State, 14 Tex. App. 142; Ex parte Kramer, 19 Tex. App. 125. In the last case cited, it is said: "Applicant claims his discharge from cus-. tody upon the ground of the alleged illegality of the election at which the local option law was declared to have been adopted in Young county. We think there is no question but that he may attack the validity of the elec

tion by means of this proceeding. If the election was not conducted in accordance with the requirements of the law, it is void, and not merely voidable, and all proceedings had under and by virtue of such void election are absolutely void and may be questioned, not only directly, but collaterally." The act of 1887 permitted the commissioner's court to order an election to determine whether or not the sale of intoxicating liquors should be prohibited, either upon the petition of a certain number of citizens or without such petltion, and under that act the court held that it would not go behind the order of the commissioner's court to inquire into the validity of the petition, because the power was conferred upon that court by said act to order an election without it. Ezzell v. State, 29 Tex. App. 521, 16 S. W. 782; Dillard v. State, 31 Tex. Cr. R. 470, 20 S. W. 1106. There is no statute in this state authorizing the commissioner's court to order a stocklaw election without the presentation of the required petition, and hence the decisions of the Court of Criminal Appeals rendered since the passage of the act of 1887, to which we have referred, do not change the rule of construction, applicable, as we think, to this and similar cases announced by that court prior to that act. Furthermore, in the recent case of Cox v. State (Tex. Cr. App.) 88 S. W. 812, the Court of Criminal Appeals of this state decided that an election ordered and held on a petition for a justice precinct under the very statute we are considering, which failed to give the boundaries of said precinct, but referred to it only by number, as the one in question here does, was void. Judge Brooks, in delivering the opinion of the court, said: "We note that the petition merely gives the number of the justice precinct in which the stock-law election is to be held. The statute says it must give the boundaries. We are not at liberty to disregard the plain provisions of the statute; yet we see no reason for giving the boundaries of a precinct when the number is given, but the statute says it is necessary." See, also, Ex parte Kimbrell (Tex. Cr. App.) 83 S. W. 382. We see no good reason to depart in this case from the practice of our appellate courts to follow the construction placed by our Court of Criminal Appeals on statutes having a criminal penalty. Indeed, the construction given by that court to the statute involved in this suit is entirely in accord with the views of this court, and determines the questions presented adversely to appellant. The cases of Nichols v. State, 40 S. W. 268, 37 Tex. Cr. R. 546, and Speagle v. State, 31 S. W. 171, 34 Tex. Cr. R. 465, cited by appellant, are not in point.

Nor are we prepared to say that the case of Railway Co. v. Kropp (Tex. Civ. App.) 91 S. W. 819, decided by the Court of Appeals of the Fourth District, seemingly relied upon by appellant, is in conflict with the views entertained by this court, and of the

Court of Criminal Appeals, as expressed in the decisions of that court, to which we have referred. The nature of the defects in the proceedings leading up to the declaration of the result of the election involved in that suit does not appear in the report of the case; and, while there are expressions in the opinion conveying the idea that the court at San Antonio entertained the views that the validity of the election could not be questioned, except in a contest under article 1804 of the Revised Statutes of 1895, yet we think the defect shown must not have been such an irregularity as rendered the election void. We do not understand that court to hold that a stock-law election absolutely void cannot be attacked in a proceeding like this. If the election was absolutely void, it was as though no election had ever been held, and, although the result had been legally proclaimed and the stock law was being enforced, it did not dispense with the duty devolving upon the railway company to fence its road in order to exempt itself from liability for stock killed, unless negligence on its part is shown, and warrant the assumption that stock embraced in the proclamation would not be at large in the precinct in which the election had been held. In the case of Houston & Texas Central Railroad Co. v. J. A. Thompson (decided by this court at its present term) 97 S. W. 106, it was held that a mere irregularity in the proceedings putting the stock law in force, in that the petition called for an election to determine whether or not horses, mules, jacks, jennets, and cattle, and also hogs, sheep, and goats, shall be permitted to run at large, when there are separate statutes providing for such an election applicable to the different classes of animals named in said petition, would not render the election void, and would not be inquired into in a suit of this character; but the fact is emphasized in the opinion that there was nothing in the record showing the election to be void.

The conclusion reached upon the question discussed renders it unnecessary for us to determine whether or not the publication of the order of the election and posting of the proclamation declaring the result thereof can be legally shown by the certificate of the county judge, taken from the minutes of the commissioner's court.

We think the judgment of the court below in this case should be affirmed, and it is so ordered.

Affirmed.

On Rehearing.

Upon the filing of appellant's motion for a rehearing in this case, we certified the questions involved to the Supreme Court for decision. That court, in an opinion by Associate Justice Williams, delivered April 10, 1907, and reported in 101 S. W. 206, 18 Tex. Ct. Rep. 94, upheld the ruling of this court, to the effect that the stock-law election held in

CHATTEL MORTGAGES-OPERATION SUFFICIENCY OF DESCRIPTION.

April 27,

CROPS

Where a landlord releases his lien upon half a certain crop to a mortgagor for a good consideration, and agrees that the mortgage shall be a lien superior to his own, he is not such a stranger to the transaction as to permit him to take advantage of an insufficient description of the crop in the mortgage, which is good as between the parties.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 104.]

Appeal from Hill County Court; N. J. Smith, Judge.

Action by H. R. Masterson against J. M. Gaulding and others. From a judgment for plaintiff, Gaulding appeals. Affirmed.

W. E. Spell, for appellant. Smithdeal, for appellee.

Morrow &

TALBOT, J. This suit was instituted by appellee to recover of the tenants of appellant, J. H. and C. B. McClung, something over $300 due for supplies furnished by appellee to said tenants to enable them to make a crop during the year 1902, and also the value of certain cotton converted by appellant upon which appellee held a chattel mortgage to secure the payment of said indebtedness. We affirmed the judgment of the court below at a former day of the present term without a written opinion, and appellant has filed a motion for a rehearing.

The property is described in the mortgage as "entire cotton-corn crop," and it is insisted that such description is so indefinite and uncertain that no lien was created by said mortgage upon the cotton converted by appellant, notwithstanding said cotton was raised by the tenants during the year 1902 upon the rented premises. That such a mortgage would be good as between the parties is not denied, but the insistence stated proceeds upon the theory that it was void as to third parties and that appellant falls within that class. If we should admit that appellant was a stranger or third party to the transaction in question, then we think the mortgage, because of the insufficient description of the property to identify it, would be void as to him, and its admission in evidence error for which the judgment should be reversed. But we are of the opinion that appellant was no such stranger or third party. It was shown without dispute that, before appellee would agree to furnish appellant's said tenants the supplies for which he sued, he called upon appellant and required him to release in writing his landlord's lien on one-half of the cot

ton to be raised by them during the year 1902 on land rented from appellant. This instrument, which was dated and signed by appellant, recites that: "Whereas, J. H. and C. B. McClung desire to procure groceries from W. R. Masterson during the year 1902 for their families; and whereas, J. M. Gaulding has agreed for a valuable consideration that he will release his landlord's lien on one-half of the cotton grown and raised by J. H. and C. B. McClung during the year 1902, on the land rented by them from said Gaulding, in favor of said Masterson, provided that said Masterson furnish groceries to the said J. H. and C. B. McClung during said year 1902: Now, therefore, in consideration of the premises, I, J. M. Gaulding, landlord of the said J. H. and C. B. McClung as aforesaid, release my landlord's lien on every other bale of cotton grown and raised by the said McClungs on my place during the year 1902 in favor of said Masterson, and hereby agree and acknowledge that the mortgage executed by J. H. and C. B. McClung to W. R. Masterson on the crop of cotton grown by said McClungs on land rented from me shall constitute a superior lien to my landlord's lien on every other bale of cotton gathered or picked." Appellant's tenants having executed the mortgage under consideration to appellee, and he having, with actual knowledge of said mortgage and of the location of the land upon which the crop therein mentioned was to be grown, and having further released his landlord's lien on that part of said crop, shown to have been converted by him, he was estopped to deny the validity of said mortgage on the ground that the mortgaged property was insufficiently described therein. He occupied a no more favorable position in this respect than the actual parties to the mortgage, and the principle of law which would preclude such parties from taking advantage of the imperfect and insufficient description of the property mortgaged would apply to him.

Appellant's motion for a rehearing is therefore overruled, and the judgment of the court below will stand affirmed. Affirmed.

CANTELOU v. TRINITY & B. V. RY. CO.* (Court of Civil Appeals of Texas. April 6, 1907. On Rehearing, May 4, 1907.)

1. RAILROADS-INJURIES FROM CONSTRUCTION

-ACTION-PLEADING-ANSWER-ISSUES.

Where plaintiff alleged that, prior to the building of defendant's railroad, there was an open and unobstructed street to his property, which had been closed by the building of the nial, and specifically denied closing the street, railroad, and defendant pleaded a general dean issue was raised as to whether plaintiff's property was accessible by public highway before the railroad was built.

2. APPEAL-BRIEF-PRESENTMENT OF ASSIGN.

MENTS.

Under Court of Civil Appeals Rules 29 to 36 (67 S. W. xv, xvi), specifying how briefs shall Writ of error denied by Supreme Court.

be arranged, an assignment of error cannot be considered, where no proposition is submitted under it, and the assignments are not submitted as propositions.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 300.]

3. TRIAL-CONFLICTING ISSUES-PROVINCE OF JURY.

Where there was conflicting evidence as to the issue whether the value of plaintiff's property had been depreciated by the building of a railroad and the closing of a street leading to it, it was the special province of the jury to settle the conflict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 342.]

On Rehearing.

4. RAILROADS CONSTRUCTION INJURIESELEMENTS OF DAMAGE-PERSONAL ANNOYANCE.

Plaintiff was not entitled to recover for annoyance and discomfort caused by coal dust, noise, vapors, etc., produced by a steam shovel and blacksmith shop across the street used in constructing a railroad, in the absence of a showing that the shovel and blacksmith shop were improperly constructed or operated.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 351, 352, 720, 721.] 5. APPEAL-REVIEW - HARMLESS

STRUCTION.

ERROR-IN

Where, in an action for damages caused in constructing a railroad, plaintiff was not entitled under the proof to recover for annoyance caused by noise, smoke, etc., he cannot complain that the court erred in instructing that, if the jury could not tell how much of the noise, smoke, etc., came from defendant's railroad, and how much from another, they should find for defendant, etc.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4220. 4227.]

Error from District Court, Hill County; Sam R. Scott, Judge.

Action by J. V. Cantelou against the Trinity & Brazos Valley Railway Company. From a judgment for defendant, plaintiff brings error. Affirmed.

J. S. Bounds and A. P. McKinnon, for plaintiff in error. Morrow & Smithdeal, for defendant in error.

BOOKHOUT, J. This suit was brought in the district court of Hill county, Tex., by J. V. Cantelou, plaintiff in error, against the Trinity & Brazos Valley Railway Company, defendant in error, to recover damages in constructing its railroad in close proximity with his premises on which is situated his home. It was alleged that plaintiff's premises fronted west almost 900 feet on a 60-foot street, and that the road of the defendant in error is constructed almost up to the west line of said street, along nearly the entire length of his premises; that by building said road in the manner it is his said premises have been greatly depreciated in value; and that he sustained other damages by the operation of a steam shovel, blacksmith shop, and from noxious vapors and coal dust during the construction of said road. The total damage was alleged to be $2,500. The cause was tried before a jury, and they returned a verdict in favor of

plaintiff for the sum of $1. Motion for new trial was overruled, to which ruling plaintiff excepted, and prosecutes a writ of error to this court.

Error is assigned to the action of the trial court in giving, at defendant's request, a special charge, reading as follows: "The plaintiff alleges that his premises were accessible by public highway before the defendant's road was built. If you believe from the evidence that plaintiff's premises were not accessible by any public highway, you cannot find in plaintiff's favor for any injury resulting from obstructing the road to his house, on the ground the evidence shows without dispute that there was a public highway from his house to town for a period from 1891 up to the time of the building of the railway." It is contended that there is no pleading on the part of defendant putting in issue that the streets from plaintiff's residence to the business part of Hillsboro were not opened according to law. The plaintiff in error alleged in his petition that, prior to the building of defendant in error's railroad, there was an open and unobstructed street to his property, which had been closed up by the building of the railroad. The defendant pleaded a general denial, and specially denied closing the street. These pleadings raised the issue as to whether plaintiff's property was accessible by public highway before defendant built its railroad. There was a conflict in the evidence as to whether there was any street open to plaintiff's property before the railroad was built, and whether his property was accessible by any street or highway. In this condition of the pleadings and evidence, there was no error in giving the charge.

The fourth and fifth assignments of error are grouped and presented together. The fourth complains of the giving of a special charge, requested by defendant, and the fifth complains of the court's action in refusing a special charge requested by plaintiff. There is no proposition presented under these assignments; nor are the assignments submitted as propositions, and, if they were, they would be subject to the criticism that they raise different propositions. These assignments cannot be considered. Railway v. Dunn (Tex. Civ. App.) 78 S. W. 1080.

There was no error in overruling the plaintiff's motion for new trial, based on the ground that the verdict is contrary to the evidence. The evidence shows that, in the building of defendant's railway, the agents and employés of the defendant operated a steam shovel and blacksmith shop immediately in front of his premises for a period of three months; that the steam shovel was run both day and night, and during said time plaintiff and his family were greatly annoyed and suffered great inconvenience and discomfort, and they were unable to sleep. That the dust, noise, and coal cinders arising from the operation of said steam shovel