Plaintiff's petition contained three counts, each expressly alternative to the others. The verdict of the jury clearly identifies the first count as being that upon which recovery was awarded to plaintiff. The other counts therefore become unimportant except to aid in the interpretation of the first count. The third count may be disregarded as without any bearing, even on the question of construction. The second count, I think, is important in determining the nature of the cause or causes of action attempted to be alleged in the first count, and, if more than one, in identifying that upon which the judgment must depend for support. The theory upon which recovery was sought in the second count was that plaintiff, the landowner, constructed a tank on his own land, and by agreement, in consideration of the aid given him by defendant in doing so, the latter was given the right to a particular limited use of the water for a specified purpose. Under the allegations of this count clearly the water belonged to plaintiff, and, in order to show a cause of action for conversion, he only had to allege that the water had been diverted to a use different from that which, under the agreement, the defendant had the right to use it. Such cause of action was sufficiently pleaded, and the right of recovery thereon was wholly unaffected by the former decision of this court.
However, the judgment under attack is based upon allegations of one or more causes of action expressly alternative to, and therefore different from, that alleged in the second count. Allegations in the second count can therefore afford no support whatever to the judgment.
What was that other and different theory of plaintiff's right to recover judgment attempted to be stated in the first, count, and upon which, if any at all, the judgment must be supported? The allegations are so inconsistent, some with others, as to make the question difficult to answer. One thing certain is that a contract it alleged which is an entirely different agreement from that alleged in the second count. The alleged provisions of the agreement, omitting for the present the allegations in the nature of conclusions as to its legal effect, are, in the language of the petition, as follows: "* * * Plaintiff and defendant made and entered into an agreement for the completion of a large tank situated on said premises, (i. e. the Collins homestead) which had been previously begun and left unfinished by the owners of said land, whereby plaintiff was to furnish certain amount of labor and the defendant the remainder to complete said tank, in consideration therefor, the plaintiff would and should have the right to use water free for his own use in his occupancy of said premises, and for irrigation purposes of land adjacent to said tank, and that the defendant should and would have the right to use water from said tank for its use in drilling and operating oil and gas wells on its leases contiguous thereto, the same being known as the Knox lease, but for no other purpose; that said tank was completed by plaintiff and defendant, and designated by them as a partnership tank, with the understanding and express agreement that plaintiff and defendant would have an equal interest or right in the use of the waters impounded in said tank for the respective and exclusive use, to-wit: the plaintiff the right to use water for domestic and irrigation purposes, and the defendant the right to use water for drilling and operating oil wells on the leases contiguous thereto, but for no other purpose."
By the contract as thus alleged, the parties fixed with reasonable certainty their respective rights to use the water from the tank, and provided as between each other the limitations upon such rights of user. Under this contract the only limitation on the rights of the plaintiff to use all of the water in the tank for domestic and irrigation purposes was the equal right of defendant to use water in drilling and operating oil and gas wells on the Knox lease. Conversely, the only limitation on the right of the defendant to use all of the water, if necessary, in drilling and operating oil and gas wells on the Knox lease, was the equal right of plaintiff to use water for domestic and irrigation purposes aforesaid. So long as neither party used more than one-half of the water for authorized purposes, the limitation on the *Page 106 respective rights of user as a practical proposition was unimportant. If, however, plaintiff, for his authorized purposes, needed more than one-half the water, and defendant, for its authorized purposes at the same time, needed more than one-half the water, the equality of their respective rights would result in limiting the right of each to one-half of the water.
Upon this interpretation of the alleged agreement I am, I think, in accord with the majority opinion. But, if this be the correct construction of the contract alleged, then it is wholly unimportant that, in specifying the uses which plaintiff could make of the water, it was not stipulated that it was to be "for no other purpose"; while, in defining the uses which defendant was to make of the water, it was stipulated that it was to be "for no other purpose." The equality of their rights imposed that same restriction on each party, whether expressed or not. It was wholly immaterial that it was expressed as to the defendant and not expressed as to the plaintiff. Under the express terms of the contract plaintiff could no more have used the water for purposes other than domestic and irrigation purposes, so as thereby to interfere with the defendant's equal right of user, than the defendant could have used the water for purposes other than drilling and operating oil and gas wells on the Knox lease, so as to interfere with plaintiff's equal right of user. By pleading and proving the facts to show that any use of the water by either party for any purpose other than those specified would result in injury to the right of the complainant to make his or its authorized uses of the water would have enabled either party to prohibit the other from so using any of the water.
But, to my mind, it is clear, and in this again I am in accord with the majority opinion, as I understand it, that plaintiff, by the judgment in question has not been awarded a recovery to compensate him for any injury suffered as a consequence of a deprivation of, or interference with his right to use water for domestic or irrigation purposes. It is obviously true, as said in the majority opinion, that: "The jury, in answer to the issue, found that the defendant's use of the water prevented the plaintiff from irrigating his land in 1929, but no issues were submittedto the jury for the purpose of ascertaining the damages, if any, byreason of that fact." (Italics mine.) The majority correctly, I think, have regarded the finding immaterial and that the judgment was in no way dependent upon it for support. In other words, if plaintiff had a cause of action, or attempted to allege one, for any interference with his contract right to use the water, which manifestly he may have had, and which some of his averments indicate he did attempt to allege, it is certain that such was not the cause of action upon which he recovered judgment.
This brings us to a consideration of the important question: Upon what theory of plaintiff's rights and violation thereof by defendant does the judgment rest? Briefly stated, it is that plaintiff was sole owner of the water and the utmost extent of defendant's rights in reference to it was to use water for drilling and operating oil and gas wells on the Knox lease; that defendant, by the sale of the water, thereby converted it. Incidentally, it results that plaintiff, having a right of election, by claiming the proceeds of the sale, thereby condoned and ratified the conversion. This, as I see it, is identically the theory, in its essential nature, upon which recovery was sought in the second count of the pleading, which, as already said, was abandoned.
Since unquestionably the judgment must find its support, if at all, upon the allegations in the first count, let us examine same carefully to find the averments of fact, if any, to show that, as against the defendant, plaintiff was the sole owner of the water.
The inquiry should be made in the light of certain legal principles. One of the requirements of a pleading is consistency. This requirement is no restriction on the right to plead inconsistent grounds of recovery or of defense. Inconsistent facts must be pleaded in the alternative or in separate counts. "The rule requiring consistency, however, does apply to the different allegations in the same count. These must be harmonious and stand together." Townes' Texas Pleading, p. 425. See Hillebrant et al. v. Booth, 7 Tex. 501; Steinback v. City of Galveston (Tex.Civ.App.)41 S.W. 822; Barry et al. v. Screwmen's Benev. Ass'n, 67 Tex. 250,3 S.W. 261; Kynerd v. Security Nat. Bank et al. (Tex.Civ.App.)207 S.W. 133; Rowe v. Horton et al., 65 Tex. 89.
If, by application of rules of construction, apparently contradictory allegations can be reconciled, it should be done. In so ascertaining, the true meaning of the allegations, however, the further rule must not be lost sight of that specific allegations in a pleading, when ambiguous, are to be construed most strongly against the pleader. Wall v. Royal Ind. Co. (Tex.Civ.App.) 209 S.W. 319; W. U. Tel. Co. v. Henry, 87 Tex. 165,27 S.W. 63; Webb County v. Board of Trustees, 95 Tex. 131, 65 S.W. 878; Snipes et al. v. Bomar Cotton Oil Co., 106 Tex. 181, 161 S.W. 1; Meador v. Rudolph (Tex.Civ.App.) 218 S.W. 520; Celli v. Sanderson (Tex.Civ.App.)207 S.W. 179; Gillis et al. v. Rosenheimer et al., 64 Tex. 243; Ft. Worth v. First Baptist Church (Tex.Civ.App.) 268 S.W. 1016; Baker v. Galbreath (Tex.Civ.App.) 211 S.W. 626; S. A. Fire Fighters v. Bell (Tex.Civ.App.)223 S.W. 506; Broussard v. *Page 107 Mayumi (Tex.Civ.App.) 144 S.W. 320, 321; Hill v. Allison, 51 Tex. 390; Mueller v. Simon (Tex.Civ.App.) 183 S.W. 63.
By so construing specific allegations, every reasonable intendment arising upon the pleading must be in favor of its sufficiency as against a general demurrer. Rule 17, 142 S.W. xviii. And so also, I think, as against a contention that the pleading is insufficient to support the judgment.
The contract alleged, and which the jury found to have been made, while it would have been very material had the judgment awarded a recovery for some wrong done in violation of plaintiff's rights under the contract, is, in considering the basis of the judgment actually rendered, only important as evidence to show that, if defendant had any right to sell the water, such right was not one given to it by the terms of the contract itself. The contract did not deal with ownership of the water as any part of its subject-matter. So far as the rights of the parties were created by, and dependent upon, the contract, it was wholly immaterial whether the water was owned solely by the plaintiff or by the defendant, or by them jointly as tenants in common. Whoever owned the water, such rights of ownership were subject to the equal rights of user of both parties as provided in the contract. If the defendant required all of the water and plaintiff none, then by the contract defendant had the right to use all of it for the authorized purposes, even though the ownership of the water may have been exclusively in either party or in both of them jointly. The ownership of the water was simply burdened with the contract, which, as said before, did not, at least expressly, deal with the subject of ownership. This is true, unless the plaintiff is to be understood as having attempted to allege that it was one of the provisions of the contract that the surplus water (i. e., the part not used by either plaintiff or defendant for the authorized purposes) was "to remain in said tank for the benefit of the freehold estate." There was, in substance, such an allegation, but I think clearly it should be construed, not as an allegation that such was one of the stipulations of the contract, but merely the statement of a conclusion of the pleader as to the legal effect of the contract. This construction is required for several reasons. In the first place, it is not directly alleged that the contract contained such provision. In other words, on its face it appears to be the statement of the legal effect of the provisions alleged. Again, it is significant that the jury were not asked to find the existence of a contract containing such a provision, an indispensable requisite if any judgment was to be based upon such contract. An examination of the statement of facts discloses that there was not a scintilla of evidence by either party that the agreement included any such stipulation. There exists no one of at least two essentials to support the judgment on such a theory; namely, no evidence, no verdict. So, if the validity of the judgment is dependent upon the fact that plaintiff was owner of the surplus water only because the contract in effect so provided, then the judgment is fundamentally erroneous because there is no verdict to support it.
But I take it that it is not even contended that plaintiff's exclusive ownership of the water was by virtue of the contract, but on the contrary that it exists independently of the contract. The majority opinion recognizes this, and holds, as I understand it, that such exclusive ownership in plaintiff arises solely as an inference, or implication, from the fact that the water was impounded on plaintiff's land.
I cannot concur in the view that such exclusive ownership in plaintiff is either a necessary or reasonable inference from the fact alone that the water was impounded on plaintiff's land. Surface or flood water, thus artificially impounded, is I think to be considered as personal property. Plaintiff so treats it in suing for the proceeds of the sale thereof rather than for damages for injury to the freehold. We so regarded it in the former opinion in holding that, it being capable of measurement in kind, and plaintiff being a tenant in common with defendant, could not recover in the absence of a showing that defendant had sold more than its share of the water.
As already said, I do agree that, if plaintiff, by his individual effort had impounded the water, thus reducing it to his possession, he would be the owner. If defendant was merely his "hired hand," assisting him to do so, the water would nevertheless have belonged to plaintiff. But plaintiff in his pleadings, which alone must constitute the support of his judgment, alleged, not that he, but that he and the defendant, by their joint and combined effort, impounded the water; that a part of the agreement under which this joint enterprise was carried out was that the tank was to be called a "partnership tank." Had the defendant, with the knowledge and consent of plaintiff, but without any other agreement, alone constructed the dam and sold water, plaintiff would have had no cause of action for the proceeds of sale, at least without allegations and proof of facts to rebut the presumption of an implied license. Suppose defendant, with simple consent of plaintiff, had installed a fish trap on plaintiff's land and caught and sold fish. Could plaintiff, without revoking the license, recover the proceeds of such sale or any part thereof, without showing some other title or right than the fact that the trap was on his land? I do not think so. The cases, it seems to me, are governed by the same principle. Plaintiff pleaded sufficient facts to rebut any *Page 108 presumption of his exclusive ownership of the water. There are allegations in the pleading which necessarily imply, as to the surplus water, which alone is involved, that the defendant had a "share" therein. For example: "Plaintiff has made repeated demand upon defendant for an accounting to him of his interest in the money collected by defendant, but defendant has refused and still refuses to pay plaintiff, to plaintiff's damage in the sum of one-half of the total proceeds. * * * That defendant used more than his share of said water." That defendant "took from said tank more than his just share of said water. * * * Thatplaintiff and defendant were tenants in common in their respective rightsto the use of said water; that said water in said tank, less the amountnecessary for the respective uses of plaintiff and defendant (note: thus identifying water which was surplus water, and therefore not necessary to the preservation of the respective rights of user provided in the contract) was not capable of partition or division in kind * * * and plaintiff is entitled to his share of the proceeds of the sale of saidwater (i. e. surplus water) received by his co-tenant or joint owner in the right to use said water for said limited purposes, which plaintiff alleges to be not less than one-half of the sum of $3,000.00." Plaintiff prayed under this count "for an accounting for his part or interest in theamount collected by defendant from the sale of water from said tank." (Italics ours.)
To me the conclusion is irresistible that plaintiff assumed that, by simply alleging that the water was not capable of partition or division in kind, he thereby changed a law question into a fact question, and avoided the effect of the former decision of this court. Allegations that plaintiff and defendant were tenants in common in the use of the surplus water cannot be controlled and their effect avoided by tacking on the meaningless clause, "in the right to use said water for said limited purposes." By the alleged provisions of the contract plaintiff was not and could not be a tenant in common with defendant in the water which the contract gave the defendant the exclusive right to use on the Knox lease. Neither was the defendant, nor could he be, a tenant in common with plaintiff as to the water used by plaintiff for domestic and irrigation purposes. Such an idea involves a manifest contradiction of terms. The only subject-matter to which such allegations can be applied is the surplus water, the proceeds of the sale of which plaintiff recovered by the judgment in question.
The record affirmatively discloses that the most material issues necessary to be established in plaintiff's favor, in order to justify the judgment, were not submitted to or found by the jury. One such issue was that of plaintiff's exclusive ownership of the water which was sold. If there was any evidence whatever that plaintiff was such exclusive owner, it was certainly not conclusive of the fact. No other issue was submitted or found that was not just as consistent with defendant's ownership of the water as of plaintiff's, or of their joint ownership as tenants in common. The issue therefore cannot be supported by any presumption that it was found in plaintiff's favor.
In my opinion, essentially the same case is presented as upon the former appeal. The only difference is that by amendment plaintiff struck out some of his express allegations that the parties were tenants in common in the ownership of the water, and left or added allegations which, if they do not also affirmatively show such fact, nevertheless do so by reasonable inference. There was therefore no basis in the pleading for the judgment, nor was there in the evidence.
It is therefore my opinion that the judgment of the trial court should be reversed, and the cause again remanded.