known and described on the city maps as lot No. 9 in range No. 2 and district No. 1,' containing 151⁄2 acres of land, more or less, purchased from the city of San Antonio, April 10, 1855, by John A. Rogers, and situated in the old San Antonio tract, but outside of the present city limits." For chain of title, see Bexar County Records, Book 0, No. 2, pages 491 and 492; Book P, No. 2, pages 433 and 434; and Book No. 1, on page 8. It recites that H. B. Adams and E. D. L. Wickes had paid into the city treasury the balance of purchase money and interest due the city to that date. The deed is dated June 10, 1870, and filed for registration in the office of the county clerk of Bexar county on the 28th day of June, 1870. It also conveys three other lots. (2) A deed from William H. Cleveland to H. B. Adams and E. D. L. Wicks, dated the 15th day of June, 1870, whereby said Cleveland conveyed in fee simple to Adams and Wicks all his interest in the aforesaid lot No. 9 by the same description contained in the deed from the city of San Antonio, above referred to; this deed being duly recorded in Book V, No. 2, page 401, Bexar County Records. (3) A deed of conveyance in fee simple from Wesley D. Cotton to William H. Cleveland, duly recorded in Book S, No. 1, page 8, dated September 29, 1859, conveying same lot, No. 9. This deed recites that the land was originally sold by the corporation of the city of San Antonio to John A. Rogers, and by the said Rogers to John Latchem, and by said Latchem to Wesley D. Cotton, and by said Cotton to W. H. Cleveland, and that the deed from Latchem to Cotton was dated January 26, 1858, and recorded in Book P, No. 2, pages 433 and 434, and it stipulated that W. H. Cleveland should assume the balance of the purchase money and interest due the city of San Antonio. (4) A fee-simple deed, duly acknowledged and recorded, from John A. Rogers to John Latchem, dated March 20, 1857, recorded in Book O, pages 490 and 492, Bexar County Records, conveying the aforesaid lot No. 9 by the same description, and reciting that Rogers had purchased said land from the city of San Antonio on April 10, 1855, and that Latchem assumed the payment to the city of San Antonio.

Eleventh. The chain of title under which appellees claim the land consists (1) of a deed from the city of San Antonio to Charles Wenzel, dated November 9, 1852, conveying property as follows: Lot 9, range No. 2, in district No. 1 of the plan of the city lands made and surveyed by Francis Giraud, city engineer, and lying and being in the county of Bexar, and within the limits of the corporation of said city, and fully described, as will appear by reference to the records of the city of San Antonio, containing 125 acres, more or less. This deed recites that Wenzel became such purchaser at a sale made on November 8, 1852; that it retains

a vendor's lien for four-fifths of the purchase money, and the payment of 20 per cent. thereof. (2) A deed from Charles Wenzel to William Wegner and wife, dated August 8, 1854, conveying property described as follows: A tract of land containing 37% acres, adjoining on the west with the land of Charles Wenzel; on the south, adjoining Page branch; said tract running back to Seguin creek. For more particular description, reference is made to deed from the city of San Antonio to Charles Wenzel, as recorded in the records. (3) A deed from William Wagner and wife to Frederick William Urbhan, dated February 9, 1855, describing the land conveyed as follows: A portion of lot No. 9, range No. 2, district No. 1, and bounded on the north by Seguin street or road; east by a portion of said lot containing 371⁄2 acres, and belonging to C. Salzmann; south by Railroad reserve; and on the west by a portion of said lot contain. ing 50 acres outside the Two-League tract, the property of Charles Wenzel. (3) A deed of trust from Charles Wenzel and wife to Ferdinand Urbahn, trustee for the benefit of Frederick William Urbhan, to secure him in the performance of a contract, which was dated February 9, 1855, whereby Wenzel and wife conveyed that portion of lot No. 9, range 2, district No. 1, which is bounded west by that portion of lot No. 9, range No. 2, district No. 1, which lies inside or west of the eastern Two-League boundary lines; on the north by a street known as Seguin road or street; on the east by the property of Frederick Urbhan; south by the Railroad reserve,-containing 50 acres of land and no more. (4) The last will and testament, duly probated, of Frederick William Urbhan, be queathing and devising all his property to Benjamin Ernest Urbhan. An inventory of the testator contained the following item: A portion of lot 9, range 2, district 1, bounded on the north by Seguin street or road; on the east by a portion of said lot containing 371⁄2 acres, belonging to Salzman; on the south by Railroad reserve; on the west by a portion of said lot containing 50 acres outside the Two-League tract, the property of Charles Wenzel. The portion contains 37% acres, and is the same land that was conveyed to Frederick William Urbhan, February 9, 1844, by William Wagner and wife. (5) A duly recorded and acknowledged fee simple deed of conveyance from Charles Wenzel and wife to Ferdinand Urbhan, dated July 5, 1856, describing land conveyed as follows: "50 50/100 acres of the land in the town tract of the city of San Antonio, Bexar county, Texas, being 50 50/100 acres, to be taken from the western portion of lot No. 9, range 2, district 1, 37% acres, the eastern part having been sold and owned by Nic Woller, and the portion of said Woller and the portion now conveyed being divided by 37% acres heretofore sold to and now owned by William Urbahn, the land herein con

veyed being bounded as follows: North by Seguin road; south by railroad reserve; west by lot 6, range 3, district 1; east by the portion heretofore sold to William Urbahn. It is the mutual understanding by the parties hereto that Ferdinand Urbahn is to discharge the indebtedness to the city of San Antonio, being $188.00, with interest." (6) Final deed from the city of San Antonio to Ferdinand Urbahn in consideration of payment of balance of purchase money and interest, dated April 10, 1863, releases and conveys 50 acres, the western portion of lot No. 9, range 2, district 1, which lot 9 was bid off by Charles Wenzel at a public sale of lands on November 9, 1852, who conveyed his interest in the 50 acres to said Ferdinand Urbahn, July 5, 1856. (7) A deed from Ferdinand Urbahn and wife to William Urbahn, dated September 13, 1865, conveying 50% acres taken from the western part of lot No. 9, range 2, district 1, of the plat of said city lands made by F. Giraud, city engineer, within the limits of the corporation of said city. Said land so conveyed is bounded as follows: On the north by Seguin road; south by Railroad reserve; west by lot 6, range 3, district 1; and on the east by that portion heretofore sold to William Urbahn by Charles Wenzel and wife, and is a por tion of the lot sold by Charles Wenzel by the city of San Antonio, November 9, 1852. William Urbahn was the same person as Frederick William Urbahn, who, in his will, left all his preperty to Benjamin Ernest Urbahn. (8) A final deed from the city of San Antonio to Nic Woller, dated October 17, 1862, recorded January 10th, conveying 371⁄2 acres, the eastern part of lot 9, range 2, district 1, which lot was bid off by Charles Wenzel at a public sale of lands of said city. November 9, 1852, who conveyed said 371⁄2 acres to C. Salzman, who conveyed to Woller July 8, 1855. (9) A deed conveying two acres dated December 31, 1872, from Benjamin Ernest Urbahn, conveying to Theodora Mertz and Gel. Fernandez, which contains the following description and recitals: "One of which is situated in the town tract of the city of Sau Antonio, taken from the western part of lot 9, range 2, district 1, of the plan of said city lands made by F. Giraud, city engineer, within the limits of the corporation of said city. Said land is bounded north by Seguin road; south by Railroad reserve; west by lot 6, range 3, district 1; east by that portion heretofore sold Wm. Urbahn by Charles Wenzel and wife, and is a portion of the lot sold by the city of San Antonio to Charles Wenzel, Nov. 9, 1852, who, with his wife, sold this portion to Ferdinand Urbahn, who, in compliance with the original conditions of sale, received title to the lands hereby conveyed, from the city of San Antonio, on April the 10th, 1863, and on September 13, 1865, sold to William Urbahn and Ernest Urbahn the portion sold containing 50 acres of land. The other

tract being a portion of lot No. 9, range 2, district 1, and bounded as follows: Bounded on north by Seguin road; on east by a por tion of said lot containing 371⁄2 acres, belonging to Selzmann; south by Railroad reserve; west by portion of said lot containing 50 acres outside the Two-League grant, the property of Charles Wenzel, it being the same land conveyed to William Wagner by Charles Wenzel, by deed dated August Sth. 1854, and on February the 9th, 1855, sold by said Wagner and wife to Frederick Ur bahn, who is identical with Frederick Wil liam Urbahn. This conveyance is made in compliance with an agreement dated December 22nd, 1871, made between me and the said Theodore Mertz and Gil. Hernan dez." Recorded in Book X, 1, page 222 (10) A deed of conveyance from Theodora Mertz to Peter Shiner, conveying all the interest in the lands acquired by the grantor under the foregoing described deed from Benjamin Ernest Urbahn to Theodora Merta and Gil. Fernandez, dated July 25, 1875, to Peter Shiner, all his one-half interest in the land purchased by Theodora Mertz and Gil. Fernandez from Benjamin Ernest Urbahn by the deed aforesaid, dated December 31, 1872. (11) A deed dated April 11, 1881, from Peter Shiner to Nic Woller (reserving vendor's lien) conveying land as follows. "Being the southwestern part of lot 9, range 2, district 1, containing 30 acres, more or less. bounded on the north by the imbankment of G., H. & S. A. R. R.; south by that part of the R. R. reserve which the city of San Antonio lately sold to J. H. Kampmann; on the east by the property of the vendor, being the eastern part of said lot No. 9; and on the west by the east line of the Old TwoLeague tract. The land herein conveyed is the lower part of 87% acres sold to me by Theodora Mertz and Gil. Fernandez on July 25, and December 6, 1873, to whom it was sold by B. Ernest Urbahn on December 31, 1872." (11) A deed dated February 26, 1884, from Emma Shiner, surviving wife and administratrix of the estate of Peter Shiner, deceased, to Nic Woller, conveying a tract of land lying and being in the city of San Antonio, it being a part of lot 9, range 2 district No. 1, containing 434 acres, more or less, sold her husband, Peter Shiner, in July and December, 1873, by Gil. Fernandez and Theodora Mertz, to whom it was conveyed by Benjamin Urbahn on December 1, 1872; reference being made to Book X, 1. page 146, and volume 12, page 212. (12) A deed from Carl Salzman and wife to Nicoles Woller, dated February 8, 1855, recorded July 19, 1855. conveying 371⁄2 acres of land in San Antonio, Texas, part of lot 9, range 3, district 1, of the survey of said city, being the same portion of land sold by Charles Wenzel to Salzman by deed bearing date in 1854. (13) A deed of conveyance from Anton Rips and Mary Rips, his wife, to Nic Woller, dated January 28, 1800, and

city, and the amounts realized therefrom, and the deeds and releases executed by the city. In connection with lot 9, range 2, district 1, said book shows:

duly recorded, conveying out lot No. 9, range No. 2, district No. 1, in San Antonio, containing 125 acres more or less, bounded north by Seguin street; east by line of the city grant and property of Kampmann; south by a part of the Railroad reserve; and west by the east line of lot No. 6, range 2, district 1. (14) A deed from Nic Woller and his wife, Therisa, to Sam Johnson, dated January 28, 1890, and duly recorded, conveying the whole of the aforesaid lot No. 9 by the same description as the last pre ceding deed, and also calling for the east line of lot No. 6, range No. 2, district No. 1, as being the west line of lot No. 9, said deed reciting also that it was the intention of the vendors to convey all of lot No. 9, except the right of way of the Galveston, Houston & San Antonio Railroad Company. (15) The appellees Dignowity and Sullivan hold under deeds from Johnson.

April 10, 1863. June 16, 1870.

H. B. Adams & E. D. L. Wickes, deed V. % p. 401. deed reads 15-50/100 acres. Balance purchase money paid June 15, 1870.

Fifteenth. On December 31, 1889, Woller and Theresa, his wife, made a deed to Sam Johnson, which was duly recorded, conveying, subject to vendor's lien "our entire place or ranch containing 120 acres about 3 miles N. E. of Alamo plaza of San Antonio, Tex, out of the original city lot No. 9, range 2. district 1, known as the 'Old Woller Homestead,' bounded north by Seguin street; east by property of Kampmann and Sandmeyer; on south by Old Railroad reserve; and west by property of Adams & Wicks, excepting right of way of G., H. & S. A. Ry. Co. and wagon road." Their deed, January 28, 1890, referred to in subdivision 14 of our eleventh conclusion of fact, was made in lieu of this deed at the instance of appellees, Nic Woller not knowing the difference in the two deeds. Woller lived on the land from the time he purchased it up to the time he sold it to Johnson. He knew where the east line of the Old Two-League grant is; had it fenced to that line, which he regarded as the dividing line between his property and that of Adams & Wicks, and never claimed west of it.

Thirteenth. In the Land Book, containing official records of sales of 1852 of city of San Antonio, kept in the city clerk's office, there appears the following entry: "Lot No. 9, range 2, district 1, 140 acres sold to Charles Wenzel $235.00,"--the figures "125" being written on the line, and the figures "140" above the "125," a line being drawn through "125." The figures "140" are written in different ink from that with which the figures "125" were written.

Conclusions of Law.

It is contended by the appellants that the evidence shows that the authority granted by the city council of San Antonio, under which the deed was made to Charles Wenzel, dated November 9, 1852, and under which appellees claim title to the land in controversy, did not extend to any lands of the city inside the limits of the Two-League grant; and as the 15% acres in controversy is that part of lot 9, range 2, district 1, inside the Two-League grant, the deed to Wenzel is without authority to support it, so far as the land in controversy is concerned, and passed no title thereto from the city, and that, therefore, the judgment of the lower court is not supported by the evidence. It is a principle of well-established law that a deed made in behalf of a corporation, and not authorized by some act or resolution of the corporation, or its governing body, and not afterwards ratified by the corporation, is not the act of the corporation, nor binding upon it. Dill. Mun. Corp. (4th Ed.) 581. It is equally well settled that a conveyance of real estate. regular on its face, and under the corporate seal, executed by a municipal corporation having the power to dispose of its property, will be presumed to have been executed in pursuance of that

Fourteenth. The following copy of entries contained in an official book of land sales found in and forming a part of the archives of the city clerk of the city of San Antonio, which book was a compilation of land sales made by the city; the compilation having been made under the direction of the council in 1878, and adopted by the council, and has since been kept by the city as an official record of land sales, and all entries as to sales of land by the city made since 1878 having been in said book. It appears from the book that an account purports to have bren made therein of each block sold by the

power, and that it is not necessary for the grantor, or party claiming under it, to produce the special resolution or ordinance euthorizing its execution. Municipal corporations also possess the incidental or implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained by charter or statute. Dill. Mun. Corp. (4th Ed.) § 575. These principles are conceded by appellants and appellees in their briefs.

The burden was on the appellants to prove that the deed of the city to Charles Wenzel was executed without authority, for it is conceded by their counsel that the instru ment is sufficient to comprehend the whole of let No. 9, which includes the land in controversy, and that if they failed in this proof they were not entitled to recover, though the authority to make the conveyance may not have been expressly shown by the appellees. It is clear that the cause which moved the city of San Antonio to subdivide and sell her lands was to effect a settlement with Thomas J. Devine, and that in order to make such settlement it was not necessary, or originally intended, that any part of the TwoLeague grant should be sold. In making this settlement, according to the terms of the contract, it was necessary to have the lands recovered under the contract surveyed and subdivided into lots. This was done by the city engineer under the direction and approval of the council, and in doing so he surveyed and subdivided into lots a part of the Two-League grant, and returned his map of the survey, showing such subdivisions, to the city council. The survey and proof thereof were approved by the council, and sales were ordered made in accordance with it, and the deed made to Wenzel in 1852 expressly refers to the map for the purpose of identifying the property purchased by him.

Before the sale contemplated was made, a duly-authorized committee of the council prepared an advertisement, which presumably specified the property originally intended to be sold, which was adopted by the council, and ordered published in various newspapers. There was included in the report of the committee accompanying the form of advertisement a recommendation, which seems to have been adopted, that would authorize the sale of "any other lots that purchasers might require during the progress of the sale." In order for appellants to establish that there was no authority for the sale of the property in question, they should have proved that lot No. 9, range No. 2, district No. 1, was not specified and enumerated in the advertisement of the sale authorized and adopted by the council. This they failed to do. As the lot was sold to Wenzel at the time the sale was ordered to be made, it is fair to presume, in the absence of the advertisement, that it was mentioned therein, and that authority was thereby given by the city to make the sale.

In some of the mesne conveyances froin Wenzel to appellees the land is so described as not to include that in controversy, but this misdescription was corrected by subsequent deeds, and all of them which are essential to appellees' title embrace the land in controversy. Under the deeds set out in our conclusions of fact, it is apparent that appellees acquired all the land that was conveyed by the city to Wenzel. The deed of July 15, 1856, from Wenzel, conveyed to Ferdinand Urbahn 50 acres of land, "to be taken from the western portion of lot 9, range 2, district No. 1," saying: "The land herein conveyed being bounded west by lot No. 6, range 2, district No. 1; east by that portion sold Wm. Urbahn." On April 10, 1863, the city of San Antonio, Ly final deed, conveyed the same 50 acres to Ferdinand Urbahn, describing it as "50 acres off western portion of lot 9, range No. 2, district No. 1, which lot was bid off by Charles Wenzel at public sale on Nov. 9, 1852, who conveyed his interest in said 50 acres to Ferdinand Urbahn." This establishes the recognition by the city of the sale to Wenzel, and fully confirms, adopts, and ratifies the deed it made to him in 1852. This 50 acres includes the very land in controversy, and, as appellees hold under a regular chain of title from Urbahn down to themselves, we think the judgment of the district court in their favor is correct, and it is affirmed.

JAMES, C. J., having been of counsel, did not sit in this case.

MORRIS v. COLEMAN COUNTY. (Court of Civil Appeals of Texas. Nov. 28, 1894.)

CONDEMNATION PROCEEDINGS

RIGHT OF WAY FOR HIGHWAY-INSTRUCTIONS-MEASURE OF DAMAGES-SETTING OFF BENEFITS.

1. Where, in assessing damages for land taken for a highway under Sayles' Civ. St. arts. 4371, 4372, the question of the cost of fences rendered necessary by the highway is submitted to the jury, it is proper to refuse to receive evidence of the amount paid by the owner for fences built by him.

2. An instruction to first find the value of the land taken and "then estimate damages to the balance of the land, if any, and the benefits accruing by the road, and assess the damages, if any, accordingly," is sufficient to inform the jury that they must find the value of the land taken regardless of benefits.

3. It was proper to charge that the jury should consider the irregular tracts into which the remaining land was cut if they believe its value would be affected thereby.

4. Where a landowner appeals to the county court from the award of damages by the commissioners' court for land taken for a highway, and he commissioners fail to de, o sit the amount of such damages with the county treasurer, as provided by Sayles' Civ. St. art. 4372. the damages should be estimated on the value of the land at the time of the trial in the county court, but improvements placed on the land after the order of condemnation should not be considered.

Appeal from Coleman county court; H. A. Orr, Judge.

Proceeding by Coleman county to condemn lands of J. P. Morris for a highway. From

the order of the commissioners' court fixing damages the landowner appealed, and the case was tried in the county court. From the judgment there rendered he appeals. Reversed.

This suit originated in a proceeding to condemn the right of way for a first-class public road through the inclosed lands of the appellant, J. P. Morris, in Coleman county. The jury of view reported to the commissioners' court their award of damages for the injury to the several tracts of land owned by appellant through which the road passed, amounting to the sum of $704.83, which was adopted by the commissioners' court, from which award the appellant appealed to the county court of the county, where the court, upon trial and verdict, rendered judgment for appellant for $654.10. from which judgment he appealed to this court.

One item in the claim of appellant for damages is: "To damages for cost of building five miles of fence on both sides of said road through all the said tracts of land, at $150 per mile, $750." To this item the court below sustained an exception, urged by the county, that the damage recoverable was only incidental damages for reduced value of the land not measured by the cost of building the fence. This ruling of the court is assigned as error.

Sims & Snodgrass and J. P. Ledbetter. for appellant. R. W. Brown and Randolph & Webb, for appellee.

COLLARD, J. (after stating the facts). 1. The constitution of the state provides that "no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." Const. art. 1, § 17. In cases where the county is allowed to take land for a public road the statute provides that the owner may present to the jury of view a statement in writing of the damages claimed by him, if any, incidental to the opening of such road, "and thereupon the jury shall proceed to assess the damages, returning their assessment and the claimant's statement with their report to the commissioners' court." Sayles' Civ. St. art. 4371. The commissioners' court is then required to act on the report, to consider the assessment of damages by the jury, and the statement of the claimant, "and allow to such owner just damages and adequate compensation for the land taken." Id. art. 4372. When the damages allowed by the court are paid or secured by deposit with the county treasurer, the court may proceed to have the road opened. If the owner is not satisfied with

the assessment by the commissioners' court. he may appeal as in cases of appeal from the justice court. Id. Evidently it was the intention of the constitution and the law to allow the owner of land taken for .public use adequate compensation for the land actually taken and damages to the residue. The injury done to the owner is the matter to be considered,-the depreciation in value of his land not taken as well as the value of that taken. In estimating the damages to the land not taken, but contiguous thereto, whatever should become necessary for him to do in order to use and enjoy his land in his own way should be taken into the account. For this purpose the reasonable cost and expense made necessary by the opening of the road through his land would be damages to the land. What should so become necessary, and the reasonable expense in providing for it, would be questions for the jury. The owner could not arbitrarily determine this matter for himself, and make unnecessary improvements, and have the same included as damages. So we think the item in the account for cost of five miles of fence, as a distinct item of damages, was properly stricken out. The question is, what additional burden was put upon the land affecting its value by opening the road? Railway Co. v. McCloskey, 110 Pa. St. 445, 1 Atl. 555. The question is not, what expense was incurred by the owner? The necessity of building fences to restore the land to the practical uses the owner intended it for, and the damage so caused, is the issue; not the cost of certain fences built. The general inquiry of damages would admit evidence of reasonable cost of fences made essential to the proper use and enjoyment of the land by the owner. Elliott, Roads & S. p. 206, and authorities in note 3; Railway Co. v. Fuller, 63 Tex. 467; Railway Co. v. Harris, 73 Tex. 375, 11 S. W. 405; Railway Co. v. Hall, 78 Tex. 172, 15 S. W. 1us; Colusa Co. v. Hudson, 85 Cal. 633, 24 Pac. 791; Railway Co. v. Waldron, 11 Minn. 515 (Gil. 392); Bland v. Hixenbaugh, 39 Iowa, 532; Hagaman v. Moore. 84 Ind. 496; Railway Co. v. Anderson, 39 Ark. 167. The inquiry should be confined to what was necessary to be done so that plaintiff could enjoy his land. The court below admitted testimony of the cost of the fences built, whether they were required to be built under the circumstances, whether the expense of building was reasonable, and the jury must have considered the same in estimating the damages. We think, however, that the cost of building the fences that were actually built by the owner was not the issue, but the reasonable cost of sufficient fences to enable the owner to enjoy his land in uses to which it was adapted, and to which he had applied it, was the issue.

2. The court overruled special exceptions of appellant to that part of the answer of the county which set up as an offset to the