On Motion for Rehearing
The appellee, Mountain States Telephone and Telegraph Company, has filed its Motion for Rehearing in this cause, and we believe it necessary to clarify certain points of our original opinion.
Appellee urges, in a thorough brief, that our finding of “no trespass” on the part of Vowell Construction Company is error. It is true, and this court recognizes, that the Telephone Company acquired certain property rights in Mauer Drive due to the franchise granted it by the City of El Paso and the installation of the underground conduit and cables in said street. A violation of those acquired property rights must be shown, as required by law, before a recovery for the damages can be made. Appellee, in its first trial amendment abandons completely its pleadings of negligence. We have held, in our original opinion, that there was no breach of contract. The telephone company did not plead, prove, or submit issues as to willful or intentional trespass by Vowell Construction Company, and it is fundamental that recovery, if at all, must be upon the cause of action alleged. Gammage v. Alexander, 14 Tex. 414; Brewton v. Butler, Tex.Civ.App., 12 S.W.2d 228; Michels v. Crouch, Tex.Civ.App., 122 S.W.2d 211.
In view of appellee’s action (abandoning its allegations of negligence), it was its burden to plead and prove a willful or intentional trespass by Vowell, and to request that those issues be submitted to the jury. This was not done. Consequently, the judgment of the trial court is without support of jury findings on issues of willful or intentional trespass, there being no pleadings to support such issues, the judgment rendered by the trial court cannot stand.
Appellee raises the question of trespass because of breach of contract by Vowell. In our original opinion we held there to be no breach of contract.
Appellee also raises the point that the Ysleta Independent School District did not have the right to regulate the use of Mauer Drive; and with this we fully concur. But, by the authority granted it by the City of El Paso, the School District did have the right to contract with Vowell as it did; and, as noted by appellee, this point at any rate, was non-essential to the case.
Believing our original opinion to be correct, the motion for rehearing is overruled.