Forty-Third street, and southwest into Avenue Q; thence west on Avenue Q to the western limits of the city; thence southwest to the connection with its track on Galveston Island, west of the city limits. After appellant built this last extension, some time in the latter part of 1890, or early part of 1891, its tracks on Thirty-Seventh street and Avenue T were taken up, and it has not occupied Thirty-Seventh street and Avenue T since. The third rail, making the road both narrow and broad gauge, was laid on appellant's line, on Avenue A, Ninth street, Avenue N, Forty-Third street, and Post Office street, after the passage of this ordinance of 1889. This was done within the year after the passage of the ordinance of 1889, after the filing of its amended charter on the 17th day of July, 1889. West Bay is supposed to be all that part of Galveston Bay west of Pelican Island. Carankaway Reef is in West Bay, about 15 miles from the city of Galveston, and is southwest of Virginia Point 12 or 15 miles. The western terminus of appellant's railroad is at Lafitte's Grove, about 12 miles west of the city limits, and the road has not been extended in that direction since it was acquired by appellant company. Appellant company has never extended and built its road across Galveston Bay. It has never had its charter amended so that it could extend its line across the bay. Appellant's purpose was to cross the bay at Virginia Point whenever it could raise the money, but, owing to the financial condition of the country, it had been unable to do so. Its management offered inducements to the North Galveston, Houston & Kansas City Railway Company to build to Virginia Point, with a view to connecting with its line, and after the consolidation of this road with the La Porte & Houston Railway Company, after the institution of this suit, negotiated for a consolidation with it; and in March or April, 1895, a representative of appellant appeared before the city council of the city of Galveston, and offered, if the appellee would give the appellant the right to extend its tracks on Post Office street to the western limits of the city, that appellant would extend its tracks and build a bridge across Galveston Bay, so as to connect its tracks with those of the Galveston, La Porte & Houston Railway Company within 90 days from that date, and offered to give bond and security in the sum of $10,000, or to deposit with the plaintiff a certified check for $10,000, to be forfeited to it in case defendant failed to extend its tracks and build said bridge. This offer of appellant was refused by appellee. After this refusal certain stockholders of appellant had aided the La Porte & Houston Railway Company to build a bridge across the bay, which at the time of the trial below was nearly completed. The appellant had entered into an agreement with the La Porte Company for business

and track connections, and the two companies had consolidated their rights, privileges, franchises, and property so far as the same could legally be done. This agreement was made after March 10, 1895. After the passage of the ordinance of March 8, 1889, the appellant expended in the purchase of real estate for railroad use, paying damages to owners of abutting property on streets upon which its railroad was constructed, and for constructing its tracks within the city, about $125,000. Appellant has also acquired, by purchase and condemnation, rights of way on Galveston Island, west of the city limits, worth between $5,000 and $10,000. There has been expended by the appellant in the purchase and construction of its present line of railroad $317,000, which is represented by that amount of defendant company's stock, besides a floating indebtedness of about $85,000, of which about $55,000 was loaned to the Galveston, La Porte & Houston Railway Company.

Gresham, Jones & Wheless, for appellant. R. Waverly Smith and Hume & Kleberg, for appellee.

GARRETT, C. J. (after stating the facts). When the assent of a city is required to authorize the construction of a railroad upon its streets, the city authorities have the power to prescribe as conditions of giving their consent such lawful and proper terms as they may deem expedient. 2 Dill. Mun. Corp. § 706; City of Indianola v. Gulf, W. T. & P. Ry. Co., 56 Tex. 594; Mayor, etc., of City of Houston v. Houston B. & M. P. Ry. Co., 84 Tex. 585, 19 S. W. 786; Taylor v. Dunn, 80 Tex. 666, 16 S. W. 732; Railroad Co. v. Leavenworth, Fed. Cas. No. 10,649, and authorities cited in the opinion, and those collated by the reporter. This seems to be the uniform rule. Cases apparently to the contrary are those where the conditions upon which the right to use the street has been acquired have been complied with, as in People v. O'Brien, 111 N. Y. 47, 18 N. E. 692. Whenever the right has been once acquired, it is property, and, although the charter or franchise of the company to own and operate the railroad may be forfeited or taken away, its right to use the street does not revert to the city, but will be administered, as an asset of the defunct company, for the benefit of its creditors and stockholders. When the right has been acquired with a condition subsequent annexed to it, the right will vest at once, subject to forfeiture for a failure to perform the condition. It seems clear to us that the rights granted by the ordinance of March 8, 1889, to the appellant, vested in it at once, subject to forfeiture for the failure of the company to comply with the condition that it should extend and build its road across Galveston Bay within five years from that date. But this condition affected only such rights as were acquired under the ordinance, and not such as

Had the city the power to impose a condition by which the right of the railway company to occupy the streets with the completed part of its tracks could be forfeited? Is the condition imposed void as to the completed part of appellant's road? It is argued in behalf of the appellant that all railroads constructed in this state are public highways, that the right of way is not forfeited with the charter, that the main track of any railroad once constructed and operated cannot be abandoned or removed, and that a forfeiture relates only to the uncompleted portion of the road. Const. 1876, art. 10, § 2; Rev. St. 1895, arts. 4473, 4550, 4558. The constitution does no more than to declare railroads that have been constructed public highways. It does not intervene to protect a railway company in the use of a license or right of way in contravention of law, or to defeat legal rights with respect thereto. While it is true that the license or right of way granted by the ordinance vested at once in the appellant, since it was granted upon a condition subsequent, yet it was not complete, and could not become complete until the condition upon which it depended was complied with. The constitution only deals with the railroad as constructed upon a right of way which it has acquired. If a railroad should be constructed along a street in a city without the assent of the corporation of the city, it could be compelled to remove its tracks. If the assent is given upon the condition that the company would do something which, if it failed to do, would authorize its withdrawal, it does not appear that the case is altered. Article 4473 of the Revised Statutes only declares that the right of way once acquired is not lost by the forfeiture or expiration of the charter. It is the property of the company, and will be disposed of for the benefit of the company, in an extension of the old charter, or in the grant of a new charter to a company acquiring the rights of the old one. It will not revert to the original owners, so as to require a new condemnation. Article 4550 treats of the formation of a new corporation for the purpose of acquiring, owning, maintaining, and operating the road of a sold-out corporation, and provides that such purchasers cannot abandon or remove the main track of any railroad once constructed and operated. Article 4558 relates to the forfeiture of the charter and corporate existence of a company for failure to complete its road within the time required by law, and limits such forfeiture to the unfinished portion of its road. Articles 4473 and 4558 relate to the loss or forfeiture of the franchise of a railroad company to do business as a common carrier, and preserve and protect property rights already acquired, whether in a completed part of the road, or the right of way for the unfinished part, while article 4550 is designed to prevent the new purchasing corporation from abandening or removing the road as already constructed, which the old company could not

do. The constitution and statutes of this state do not embody any rule of law, or furnish any principle of public policy, that denies the power of a city to contract with a railroad company seeking the right of way over its streets for the construction of its road that it may exercise the right if it will extend its railroad within a prescribed time beyond the limits of the city far enough to be of some value to the inhabitants of the city. The right may be sold, and is the subject of contract; and as illustrated by the vain promises, of 14 years' standing, of other companies, when the ordinance was passed, the condition imposed by the city was a prudent exercise of power, for the streets had been occupied, and scarcely anything else done towards building the road. It is reasonable to suppose that it was of but little or no advantage to the city, in return for the use of its streets, to have the railroad extend but little beyond its corporate limits, and to a connection only with railroads already entering the city. The ordinance did not provide that on a failure of the company to comply with the condition the right should cease and determine; hence it was not ipso facto forfeited, but it was necessary to have a forfeiture judicially declared. This is what the city has sought.

But it is contended that the ordinance is still in force, because it bas never been repealed in the manner required by law, and that it was necessary for the city to repeal the ordinance before it could maintain this suit. By the resolution which was passed by the city council, it was declared that the rights acquired by the ordinance had been forfeited, and the city attorney was instructed to bring suit to have them so declared. As has been before stated, the rights granted in the ordinance vested in the company, subject to forfeiture for nonperformance of the condition, and as the provision for forfeiture was not self-executing a suit was necessary; hence any attempt by the city council to repeal the ordinance would have been without force. It did all that it had the power to do, which was to elect to have the rights forfeited, and to direct the bringing of a suit in its name for that purpose. So the case of City of San Antonio v. Micklejohn (Tex. Sup.) 33 S. W. 735, has no application.

Being of the opinion that the city of Galveston had the power to impose the condition, it remains for us to determine whether the forfeiture should be enforced, or, in other words, whether the e are equitable reasons for relief against a forfeiture. It is not a case in which the breach can be compensated for with damages, because there is no way in which they can be estimated. Nothing whatever was done by the appellant towards extending its railroad across the bay. It never sought an amendment of its charter for that purpose, although the charter was amended by it soon after the passage of the ordinance. By the charter, appellant was authorized to

construct a road to Carankaway Reef, in Galveston Bay. When it acquired the road it had already been built to Lafitte's Grove, three miles short of the charter terminus, and no extension was ever made. It did not extend beyond a connection with the Gulf, Colorado & Santa Fé and the Galveston, Houston & Henderson Railways, at Forty-Third street, further than about Forty-Seventh street. There was no intention to cross the bay at Carankaway Reef, and no effort to cross it at Virginia Point. There was eviIdence that the failure to extend the road across the bay was owing to the inability of the company to borrow money, on account of the financial stringency in the money markets of the world. More than a year after the expiration of the five years, and after the institution of this suit, an offer was made to build across the bay, if time was allowed, to a connection with the Houston & La Porte road, and to give security in the sum of $10,000 to secure performance. But the city council refused the offer, and we cannot say that it did so unreasonably. Appellant offered to show that it made the city a proposition to build across the bay about the time the forfeiture was declared, but it conclusively appears that the appellant had never done anything towards the extension of its line of road from a connection with the railroads on Post Office street, and it is admitted that there was no intention to cross at Carankaway Reef. The admission of the evidence could not affect the result. Much of the testimony which was offered and excluded by the court had already been received, in the testimony of another witness; but it all relates to matters which we deem immaterial, because they do not tend to defeat the right of appellee to have the forfeiture adjudicated.

The Galveston, Brazos & Colorado NarrowGauge Railway Company was chartered February 12, 1875. Within the time allowed in its charter it had constructed a narrow-gauge railroad from a point on Ninth street to Avenue N; thence along Avenue N to ThirtySeventh street; thence along Thirty-Seventh street to Avenue T; thence westward on Avenue T to the western limits of the city. This was done before the law was passed requiring the assent of the city to the occupation of its streets by a railroad. That law was passed August 15, 1876 (Gen. Laws 15th Leg. p. 147). Afterwards the city, by its ordinance of March 7, 1877, gave the right to connect with the railroads and wharves on Avenue A, which was exercised. So the right to use the streets of the city, and to maintain and operate a narrow-gauge railroad through the city over the route above stated, was fixed in the Galveston, Brazos & Colorado Narrow-Gauge Railway before the corporate existence of that company ceased, and became the property of the appellant, as its successor. There is some difficulty in the paper chain of title of appellant to the old road, but appellee has not the right to question that. Its suit is to v.37s.w.no.1-3

forfeit the rights conferred by it. Again, there was parol evidence that appellant had succeeded to the rights of the Galveston, Brazos & Colorado Narrow-Gauge Railway Company, as well as the recognition by the city in the ordinance that appellant was its successor. The condition in the ordinance could not affect the rights already acquired by appellant's predecessor, and no forfeiture thereof can be had by the appellee, notwithstanding the fact that the appellant may have taken up its tracks on said streets, and abandoned them. The state alone has the right to a forfeiture on that account. right of the city is to have a forfeiture declared of the privilege of widening the track from a narrow to a standard gauge, and of its license to occupy the streets. We do not decide whether the appellant has lost its franchise in Thirty-Seventh street and Avenue T or not, as we are not called upon to do so on any issue that can be raised in this case.

The

It follows from what we have said that the judgment of the court below should be affirmed, but it should be first reformed so as to show more clearly that the court only undertakes to forfeit the rights granted by the city with respect to Thirty-Seventh street and Avenue T, which was to widen the gauge of the road, and its license to occupy the same; that the right to build from the terminus on Ninth street into Avenue A is not disturbed; and to describe more definitely the third rail laid by the appellant since March 8, 1889; also the extra rail laid in order to widen the road to a standard-gauge road. Thus reformed, the judgment will be affirmed

WYNNE v. ADMIRE et al. (Court of Civil Appeals of Texas. Sept. 17, 1896.)

MORTGAGE-PRIOR LIEN-PLEADING AND PROOFRECORD Notice.

1. In an action to foreclose a chattel mortgage, defendant cannot, under an allegation merely that he has a superior lien under another mortgage pleaded, prove that, though the property described in plaintiff's mortgage was not covered by the description in the alleged superior mortgage, a verbal agreement was made after execution of the latter that such property should be subject to its lien in place of certain property therein described.

2. Registration of a chattel mortgage being no notice of lien on property not therein described, submission to the jury of the question of record notice as to such property is error.

3. That persons were in possession, as part owners, of chattels at the time one took an assignment of a mortgage thereof, was no notice to the assignee of the existence of another mortgage under foreclosure of which such persons subsequently purchased.

Appeal from Brazos county court; V. B. Hudson, Judge.

Action by G. A. Wynne against J. H. Admire and others. From a judgment in favor of certain defendants, plaintiff appeals. Reversed.

J. E. Butler, for appellant. H. H. Boone and Doremus & Henderson, for appellees.

WILLIAMS, J. This case was before us on a former appeal, and our views of the law governing it were expressed in the opinion then given. 4 Tex. Civ. App. 45, 23 S. W. 418. Upon the last trial, the defendants Buchanan & Buchanan again recovered judgment, and the plaintiff, Wynne, again appeals. The conclusion which we have reached will be given without following in detail the assignments of error.

The plaintiff's mortgage covered the Cranston printing press and the Pearl job press. The mortgage to Dawson, under foreclosure of which the Buchanans claim, and which was given before that of plaintiff, did not cover this property, but was upon another press, which had been in the same office, and which had been sold, and the Cranston press and job press purchased in its place. As we said in our former opinion: "If a lien [in favor of the first mortgage] attached to the property subsequently bought, it was by a verbal agreement between the mortgagor and mortgagee." 4 Tex. Civ. App. 49, 23 S. W. 418; Jones, Chat. Mortg. § 154. As the lien under which defendants claim arose wholly through the alleged verbal agreement, by which it was substituted under Dawson's mortgage, in lieu of the property that was sold, these facts should have been pleaded before defendants were allowed to prove them. The pleading of Dawson's written mortgage was not sufficient, as it did not embrace this property. Again, as Wynne was an assignee for value of the note sued on, and secured by the mortgage upon the Cranston press and the job press before its maturity, he was not to be affected by the verbal understanding by which Dawson, as between him and the other parties to it, was entitled to a lien upon it, to secure Cox's notes, unless he had notice of such agreement. Sayles' Civ. St. art. 3190b; Jones, Chat. Mortg., supra.

As Dawson's written mortgage did not cover this property, its registration was no notice of any lien upon it. The charge of the court submitted to the jury the question whether or not Wynne had either actual or record notice of Dawson's right. There was nothing in the case which could have been considered record notice, and the charge should have so instructed. The legal effect of the record was for the court to determine. This error would necessitate a reversal of the case. We are, however, of the opinion that there was no evidence of notice to Wynne. The recitals in the bills of sale which were in evidence had reference only to the written mortgage from Cox to Dawson, and could not constitute notice of a verbal understanding of which those writings contained no intimation. This we held on the former appeal. The fact that, when Wynne bought the note and mortgage, the

Buchanans were in possession, cannot affect the case. They seem to have been in possession as part owners, and were not then holding under Dawson's mortgage. Their purchase under foreclosure of that instrument was made subsequently. The circumstance that Wynne knew that Cox had given to Dawson a mortgage on the other property originally purchased from him was not notice of any verbal agreement creating a lien on property subsequently purchased elsewhere by Cox, Admire, and Buchanan. Admitting that Wynne had full knowledge of Dawson's mortgage on the other property, that does not tend to show notice of the incumbrance on the property in controversy. We have assumed that there was such an agreement with respect to the new presses as Dawson claims, for the purposes of the decision only. That is a disputed fact, which, of course, should be submitted to the jury. For the errors indicated, the judgment is reversed, and the cause remanded. Reversed and remanded.

TEXAS MEXICAN RY. CO. v. KING. (Court of Civil Appeals of Texas. Sept. 17, 1896.)

MASTER AND SERVANT-ACTION FOR INJURIES TO BRAKEMAN-INSTRUCTIONS—EVIDENCE.

1. In an action by a brakeman for personal injuries alleged to have been caused by a defective drawhead in the engine tender, and a defective coupling link, it was error to charge that it was defendant's duty to furnish plaintiff safe and proper links and drawheads, and that there was in law an implied promise to do so, which plaintiff might rely on, since it was necessary for defendant only to exercise ordinary care to furnish safe appliances, and there was no implied promise that it would do more than exercise such care.

2. Evidence that plaintiff, a brakeman, uncoupled certain cars, and made an ineffectual attempt to recouple them, and was injured in a second attempt to recouple them, because of the defective condition of the link and drawhead, should be considered by the jury in determining whether, in exercising ordinary care, plaintiff ought to have discovered the defective condition of said appliances.

3. In an action by a brakeman for personal injuries, it was error to charge that, in taking service with defendant, plaintiff assumed no risks incidental to the service other than risks of such secret defects as could not by defendant be discovered by the use of ordinary diligence, or such as were patent to common observation, or would have been discovered by an ordinarily prudent man in the performance of his duties.

4. An instruction in an action for personal injuries that in order to defeat plaintiff's right to recover, when negligence is shown on defendant's part, plaintiff must have been guilty of negligence which proximately contributed to his injury, that is, such negligence as, without which, he would not have been injured; and that the fact that plaintiff was in some degree negligent would not defeat his recovery, unless, except for his own negligence, he would not have been injured,-was not open to the objection that it raised the question of comparative negligence.

5. Where, in an action by a brakeman for injuries received ir attempting to make a coup