The Mercedes News (Mercedes, Tex.), Vol. 5, No. 75, Ed. 1 Friday, August 10, 1928 Page: 9 of 12
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THE MERCEDES NEWS FRIDAY, auuu.i
CITATION BY PUBLICATION
THE STATE OF TEXAS,
To the Sheriff or Any Constable of Hidal-
go County—Greeting:
YOU ARE HEREBY COMMANDED To
summon Ed Nelson, by making publication
of this Citation once in each week for four
consecutive weeks previous to the return
day hereof in some newspaper published in
your County, if there be a newspaper pub-
lished therein but if not, then in the nearest
-county where a newspaper is published ; to
appear at the next regular term of the 93rd
District Court of Hidalgo County, Texas,
to be held at the Court House thereof, in
Edinburg, on the First Monday in Septem-
ber, A. D. 1928, same being the Third day
of September, 1928, then and there to an-
swer a petition, filed in said Court on the
1st day of August, A. D. 1928, in a. suit
numbered on the docket of^ said Court No.
6710, wherein American Rio Grande Land
and Irrigation Co. is plaintiff, and Ed Nel-
son, R. A. Rowland, Trustee for the cred-
itors of the Stewart Farm Mortgage Co.,
a defunct corporation, said R. A. Row-
land, sued herein individually and as such
trustee, are Defendants and the cause of ac-
tion being alleged as follows:
STATE OF TEXAS,
COUNTY OF HIDALGO.
In the 93rd District Court of
Hidalgo County, Texas
TO SAID COURT AND THE JUDGE
THEREOF:
Your petitioner, the AMERICAN RIO
GRANDE LAND AND IRRIGATION
COMPANY, as - plaintiff, complaining of
Ed Nelson and R. A. Rowland, Trustee for
the creditors of the Stewart Farm Mort-
gage Company, a defunct corporation, said
R. A. Rowland sued herein individually
and as such trustee, as defendants, alleges:
FIRST
Plaintiff is a corporation duly organized
and existing under the laws of Texas, for
irrigation purposes, having its principal of-
fice in the city of Mercedes, Texas, and
for its president Harry L. Seay, who re-
sides in Dallas, Texas, and for its vice-
president H. B. Seay, who resides in Mer-
cedes, Texas.
The defendant R. A. Rowland resides in
Hidalgo County, Texas, the residence of
the defendant Ed Nelson is unknown to
plaintiff and to plaintiff’s attorney herein.
SECOND
Plaintiff secured its cnarter in 1905, and
in pursuance of its powers thereunder ac-
quired title and ownership of what is
known as the “Mercedes Tract” of about
100,000 acres of land, lying in a contigu-
ous body, mostly in Hidalgo and partly in
Cameron Counties, Texas, out of the Lla-
no Grande Grant, riparian to the Rio
Grande river, and having as incident to the
title thereof a right to the use of the wat-
ers of said river for irrigation thereof.
Said lands are located in the semi-arid
portion of Texas where irrigation is a ne-
cessity for agricultural purposes. Plain-
tiff made proper “filings” in the offices
of the county clerks of said counties and,
later, of the Board of Water Engineers,
and secured and owns appropriation rights
and permit to use and divert the waters of
said river for the irrigation of said lands.
' Plaintiff subdivided said lands, as appears
from plats thereof duly recorded in said
counties, and, beginning in about 1907, con-
structed, and has since and does now own,
maintain, and operate an irrigation sys-
tem by means whereof plaintiff has been
and is engaged in diverting from said riv-
er and supplying and distributing to said
lands water for irrigation and other law-
ful uses; and has made an actual appro-
priation and use of said waters for such
purposes; but plaintiff supplies water only
to such parcels of said land now owned by
its vendees and sub-vendees thereof as
hold under conveyances and written con-
tracts of plaintiff for such water service,
as stated below.
THIRD
Plaintiff has sold and conveyed to a
large number of respective purchasers and
grantees under it, respective subdivision
parcels of said lands, including in its deeds
to them, and in some cases where not con-
tained in the deed then in a separate writ-
ten conveyance and water contract, a
right to be supplied with water for irriga-
tion of the respective parcels of land thus
conveyed, under and by means of said ir-
rigation system, on the terms and condi-
tions therein set forth similar in all ma-
terial respects in all such deeds and con-
tracts, and providing for the payment to
plaintiff from time to time as the same
should accrue, by the grantees and their
sub-vendees of said lands, respectively, of
irrigation rates and charges on such re-
spective parcels of land; and that
the payment thereof to plaintiff
be secured by a lien on such respective
parcels of land expressly reserved and
provided for in such deeds, conveyances,
and water contracts ; and, in substance and
legal effect, that the particular rates and
charges thus payable on such respective
parcels of (and, the amount thereof, and
time and terms of payment thereof, should
be just and reasonable, as fixed from time
to time and for respective periods by law-
ful authority in the manner provided by
law : it being provided in such deeds, con-
veyances, and water contracts, that the
terms and provisions thereof, including the
provisions for the payment of such rates
and charges for a lien on the land in la-
vor of plaintiff to secure the payment
thereof, shall be covenants running with
the title of such respective parcels of land
thus conveyed by plaintiff, and binding on
all such respective grantees and their sub-
vendees and all persons holding title to
said lands under plaintiff.
FOURTH
That defendant herein is the owner,
defendants are the owners, of the follow-
ing described lands, a portion of said “Mer-
cedes Tract” out of said Llano Grande
Grant, being a parcel or parcels or portion
thereof of the subdivision made by plain-
tiff above stated, located under said irri-
gation system of plaintiff, holding title
thereto under plaintiff and under a deed,
conveyance, ar.d water contract, contain-
ing terms and provisions as above alleged
executed by plaintiff of which the defend-
ant or defendants are fully informed, same
being a muniment in the chain of title of
defendant or defendants to said lands, and
which lands are described as follows:
South 20 acres of Farm Tract No. 1106
out of the Adams tract Subdivision in Hi-
dalgo County, Texas.
In the alternative, if it appear upon
trial hereof that any defendant is not the
owner of said lands but only asserts
claim thereto or interest therein or lien
thereon, plaintiff alleges that all such
claims, interest, or liens asserted by any
and all such defendants are unknown to
it as to the exact nature and character
thereof but well known to such defendant
or defendants and that same are infer-
ior and subservient to the rights,
liens and remedies herein assert-
ed by plaintiff; and plaintiff is
entitled to have such defendant or defend-
ants assert his or their claims, interest,
and/or liens herein, and to have its rights,
liens and remedies established as superior
thereto, and its liens asserted herein fore-
closed as against any and all such defend-
ants.
FIFTH
That in respect to the fixing of the spe-
cific rates, the amount thereof, and time
and terms of payment thereof, payable to
plaintiff on said lands under the terms of
said deed, conveyance, and water contract
by defendants, plaintiff, the defendants,
and all owners of land under irrigation
system, are subject to the jurisdiction of
the Board of Water Engineers and its duty
and power to fix rates for said system
from time to time as provided by law.
That on, to-wit, May 23rd, 1922, in a cer-
tain proceeding before said Board insti-
tuted by plaintiff and by F. G. Karle, et
al., the latter acting in behalf of all own-
ers of lands under said system entitled
to be supplied with water for irrigation,
including defendants or their predecessors
in title to the lands herein concerned, the
6aid Board did make, publish, declare, and
place in effect its final order and decree
therein of said date, fixing the specific
rates and charges and amount thereof for
the furnishing of water by said system
and under said contracts and the‘time and
terms of payment thereof: to apply from
April 1, 1922, for the remainder of that
year, and for each succeeding calendar
year until changed or modified in accord-
ance with law ; and which have not been
changed or modified, and have ever since
been and are now in force and effect, and
constitute the lawful rates and charges
inuring to plaintiff for such services, and
payable to plaintiff by defendant or de-
fendants under the terms of said' water
contract, and secured by the lien on said
land therein provided for. That said or-
der of said Board was and is binding upon
plaintiff and the defendant or defendants
herein, in respect to the lands herein con-
cerned and water contract covering same;
and defendant or the defendants have ac-
quiesced therein, and have secured and
received the benefits of plaintiff’s services
and of its irrigation system^ thereunder and
under the terms of said water contract,
and have become and are estopped to dis-
pute or deny the same. That the rates
and charges sued for herein, itemtzed and
described below and in the exhibits at-
tached hereto, are as fixed and determ-
ined by said order of said Board and ap-
ply under said water contract on the lands
herein concerned and above described.
SIXTH
That plaintiff has at all times complied,
and stood ready, willing, and able to com-
ply with its said water contract and the
said order of said Board in respect to the
furnishings of water by its said irriga-
tion system to the lands herein concerned
and above described, and to the defendant
or defendants as the owners of said land;
and there has accrued on said lands and
is now due and payable by the defendant
or defendants herein to plaintiff for the
services of plaintiff and its said irrigation
system, and in default and unpaid, includ-
ing interest calculated in accordance with
the terms of said contract and order up
to April 1st, 1928, including the install-
ment of rates which accrued on said
date, an aggregate amount of, to-wit:
$542.88.
An itemized statement of all such un-
paid rates and charges, showing the na-
ture of each charge or installment of
charges, the date of accrual thereof, the
amount thereof, and the amount of inter-
est accrued thereon, and the aggregate
amount due and unpaid as of date April
1st, 1928, as herein sued for, is attached
hereto marked “Exhibit A” for identifi-
cation, and now referred to and made a
part hereof. That all just and lawful pay-
ments and credits have been allowed there-
on : and the said aggregate amount is now
accrued, due, owing, and unpaid to plain-
tiff by defendants on said above described
lands, under the terms of said deed, con-
veyance, and water contract, and said or-
der of said Board, and plaintiff has and
is entitled to a lien on said land as pro-
vided in said deed, conveyance, and water
contract to secure and enforce the pay-
ment thereof.
SEVENTH
It was and is expressly provided by the
terms of said deed, conveyance, and water
contract, that all indebtedness to plaintiff
for such rates and charges, if not paid
when due, shall bear interest from the
date when due until paid at the rate of
ten per centum per annum, the payment of
such interest being secured in like manner
as the principal amounts of such charges.
In the itemized statement attached such
interest has been included and calculated
up to April 1st, 1928; and plaintiff is
entitled to recover from defendants the
amount due as of said date, together with
interest thereon from said date until paid
at the rate of ten per cent per annum.
EIGHTH
By reason of the premises, the defend-
ant or defendants have become liable and
promised to pay to plaintiff the amount of
said irrigation rates and charges as above
set forth, with interest thereon as above
stated, but have failed to do so to plain-
tiff’s damage in said amount; and plain-
tiff has become and is entitled to recover
the amount thereof, and to have judgment
against defendant and each of the defend-
ants, jointly and severally, thorefor; and
to have the lien provided for in said deed,
conveyance, and water contract, establish-
ed and foreclosed on the above described
lands herein concerned as against the de-
fendants and each of them to secure and
enforce the payment thereof.
WHEREFORE, premises considered, plain-
tiff prays that the defendant or defend-
ants herein be cited according to law to
answer this petition; that upon trial here-
of plaintiff have judgment against
the defendant or defendants, and
each of them jointly and sever-
ally, for the amount of its said rates
and charges, as above alleged, and interest
thereon as above set forth ; and establish-
ing and foreclosing its said lien on said
lands above particularly described as
against the defendants and each of them
to secure and enforce the payment there-
of ; and for an order of sale for said lands
for the payment of said indebtedness ; and
for all such other relief, general and spe-
cial, as it may be entitled.
D. W. GLASSCOCK,
Attorney for Plaintiff.
HEREIN FAIL NOT, But have you be-
fore said Court, on said first day of the
next term thereof, this Writ, with your re-
turn thereon, showing how you have exe-
cuted the same.
WITNESS MY HAND AND OFFICIAL
SEAL At my office in Edinburg, Texas,
this 1st day of August A. D., 1928.
(L.S.) C. L. FORTSON, Clerk,
District Court, Hidalgo County, Texas
A true copy I certify, A. Y. BAKER,
Sheriff of Hidalgo County, Texas, by J. R.
BAILES, Deputy.
CITATION BY PUBLICATION
THE STATE OF TEXAS,
To the Sheriff or Any Constable of Hidal-
go County—Greeting:
YOU ARE HEREBY COMMANDED To
summon E. ,L. Williams, George R. Carter,
J. W. Whilliams, B. H. Adams and M. P.
Lancaster, by making publication of this
Citation once in each week for four consec-
utive weeks previous to the return day here-
of in some newspaper published in your
County, if there be a newspaper published
therein but if not, then in the nearest coun-
ty where a newspaper is published; to ap-
pear at the next regular term of the 93rd
District Court of Hidalgo County, Texas, to
be held at the Court House thereof, in Ed-
inburg, on the First Monday in September
A. D. 1928, same being the Third day of
September, 1928, then and there to answer
petition, filed in said Court on the 1st
day of August A. D. 1928, in a Suit num-
bered on the docket of said Court, No.
6718, wherein American Rio Grande Land
and Irrigation Company, is Plaintiff and
James-Dickinson, Farm Mortgage Company,
II, - -
a. corporation, E. L. Williams, S. C. Bates,
Peoples Oil and Gas Company, an express
Trust, of which Martin Ermel, George R.
Carter, D. L. George, J. W. Whillans, and
C. A. Sehellhamer are Trustees, Martin
Ermel, George R. Carter, D. L. George, J.
W. Whillans, and C. A. Sehellhamer in
their capacity as Trustee of the Peoples
Oil and Gas Company, an express trust;
B. H. Adams; B. H. Adams, M. P. Lan-
caster and Martin Ermel, composing the
firm or co-partnership of Queen City Oil
and Gas Company, each sued herein in-
dividually, and as a member of said firm,
are defendants, and the cause of action
being alleged as follows:
STATE OF TEXAS,
COUNTY OF HIDALGO.
In the 93rd District Court of
Hidalgo County, Texas
TO SAID COURT AND THE JUDGE
THEREOF:
Your petitioner, the AMERICAN RIO
GRANDE LAND AND IRRIGATION
COMPANY, as plaintiff, complaining of
James-Dickinson Farm-Mortgage Company,
a corporation, E. L. Williams, S. C. Bates,
People’s Oil and Gas Company, an ex-
press trust, of which Martin Ermel, George
R. Carter, D. L. George, J. W. Whillans,
and C. A. Sehellhamer are the Trustees,
Martin Ermel, George R. Carter, D. L.
George, J. W. Whillans and C. A. Schell-
hamer in their capacity as trustees of the
People’s Oil and Gas Company, an express
’trust; B. H. Adams: B. H. Adams, M. P.
lands water for irrigation and other law-
ful uses; and has made an actual appro-
priation and use of said waters for such
purposes; but plaintiff supplies water only
to such parcels of said land now owned by
its vendees and sub-vendees thereof as
hold under conveyances and written con-
tracts of plaintiff for such water service,
as stated below.
THIRD
Plaintiff has sold and conveyed to a
large number of respective purchasers and
grantees under it, respective subdivision
parcels of said lands, including in its deeds
to them, and in some cases where not con-
tained in the deed then in a separate writ-
ten conveyance and water contract, a
right to be supplied with water for irriga-
tion of the respective parcels of land thus
conveyed, under and by means of said ir-
rigation system, on the terms and condi-
tions therein set forth similar in all ma-
terial respects in all such deeds and con-
tracts, and providing for the payment to
plaintiff from time to time as the same
should accrue, by the grantees and their
sub-vendees of said lands, respectively, of
irrigation rates and charges on such re-
spective parcels of land; and that
the payment thereof to plaintiff
be secured by a lien on such respective
parcels of land expressly reserved and
provided for in such deeds, conveyances,
and water contracts ; and, in substance and
legal effect, that the particular rates and
charges thus payable on such respective
parcels of (and, the amount thereof, and
time and terms of payment thereof, should
be just and reasonable, as fixed from time
to time and for respective periods by law-
ful authority in the manner provided by
law ; it being provided in such deeds, con-
veyances, and water contracts, that the
terms and provisions thereof, including the
provisions for the payment of such rates
and charges for a lien on the land in la-
vor of plaintiff to secure the payment
thereof, shall be covenants running with
the title of such respective parcels of land
thus conveyed by plaintiff, and binding on
all such respective grantees and their sub-
vendees and all persons holding title to
said lands under plaintiff.
FOURTH
That defendant herein is the owner, or
defendants are the owners, of the follow-
ing described lands, a portion of said “Mer-
cedes Tract” out of said Llano Grande
Grant, being a parcel or parcels or portion
thereof of the subdivision made by plain-
tiff above stated, located under said irri-
gation system of plaintiff, holding title
thereto under plaintiff and udder a deed,
conveyance, and water contract, contain-
ing terms and provisions as above alleged
executed by plaintiff of which the defend-
ant or defendants are fully informed, same
being a muniment in the chain of title of
defendant or defendants to said lands, and
which lands are described as follows:
Lot 12, Block 101, in the Campacaus Ad-
dition Subdivision in Hidalgo County, Texas.
In the alternative, if it appear upon
trial hereof that any defendant is not the
owner of said lands but only asserts _ a
claim thereto or interest therein or lien
thereon, plaintiff alleges that all such
claims, interest, or liens asserted by any
and all such defendants are unknown to
it as to the exact' nature and character
thereof but well known to such defendant
or defendants and that safhe are infer-
ior and subservient to the rights,
liens and remedies herein^ _ assert-
ed by plaintiff; and plaintiff is
entitled to have such defendant or defend-
ants assert his or their claims,_ interest,
and /or liens herein, and to have its rights,
liens and remedies established as superior
thereto, and its liens asserted herein fore-
closed as against any and all such defend-
ants.
FIFTH
That in respect to the fixing of the spe-
cific rates, the amount thereof, and time
and terms of payment thereof, payable to
plaintiff on said lands under the terms of
said deed, conveyance, and water contract
by defendants, plaintiff, the defendants,
and all owners of land under irrigation
system, are subject to the jurisdiction of
the Board of Water Engineers and its duty
and power to fix rates for said system
from time to time as provided by law.
That on, to-wit, May 23rd, 1922, in a cer-
tain proceeding before said Board insti-
tuted by plaintiff and by F. G. Karle, et
al., the latter acting in behalf of all own-
ers of lands under said system entitled
to be supplied with water for irrigation,
including defendants or their predecessors
in title to the lands herein concerned, the
said Board did make, publish, declare, and
place in effect its final order and decree
therein of said date, fixing the specific
rates and charges and amount thereof for
the furnishing of water by said _ system
and under said contracts and the time and
terms of payment thereof ; to apply from
April 1, 1922, for the remainder of that
year, and for each succeeding calendar
year until changed or modified in accord-
ance with law ; and which have not been
changed or modified, and have ever since
been and are now in force and effect, and
constitute the lawful rates and charges
inuring to plaintiff for such services, and
payable to plaintiff by defendant or de-
fendants under the terms of said water
contract, and secured by the lien on said
land therein provided for. That said or-
der of said Board was and is binding upon
plaintiff and the defendant or defendants
herein, in respect to the lands herein con-
cerned and water contract covering same;
and defendant or the defendants have ac-
quiesced therein, and have secured and
received the benefits of plaintiff’s services
and of its irrigation system thereunder and
under the terms of said water contract,
and have become and are estopped to dis-
pute or deny the same. That the rates
and charges sued for herein, itemized and
described below and in the exhibits at-
tached hereto, are as fixed and determ-
ined by said order of said Board and ap-
ply under said water contract on the lands
herein concerned and above described.
Adams; B. H. Adams, x
Lancaster and Martin Ermel composing the
firm or co-partnership of Queen City Oil
and Gas Company, each sued herein indi-
vidually, and as a member of said firm, as
defendant, alleges:
FIRST
Plaintiff is a corporation duly organized
and existing under the laws of Texas, for
irrigation purposes, having its principal of-
fice in the city of Mercedes, Texas, and
for its president Harry L. Seay, _who re-
sides in Dallas, Texas, and for its vice-
president H. B. Seay, who resides in Mer-
cedes, Texas.
The defendant, James Dickinson Farm
Mortgage Company, is a corporation duly
organized and existing under the Laws of
Texas, having its principal office in the
City of Brownsville, Texas, and for its
President, Lee B. James, who resides m
Brownsville,, Texas, upon whom service
may be had ; the residence of the defendants
E. L. Williams, George R. Carter, J. W.
Whillans, B H. Adams and M. P. Lancas-
ter are unknown to plaintiff and to plain-
tiff’s attorney herein; the defendants, S. C.
Bates, D. L. George, C. A. Sehellhamer and
Martin Ermel reside in Hidalgo County,
Texas.
SECOND
Plaintiff secured its cnarter in 1905, and
in pursuance of its powers thereunder ac-
quired title and ownership of what is
known as the “Mercedes Tract” of about
100,000 acres of iand, lying in a contigu-
ous body, mostly in Hidalgo and partly in
Cameron Counties, Texas, out of the Lla-
no Grande Grant, riparian to the Rio
Grande river, and having as incident to the
title thereof a right to the use of the wat-
ers of said river for irrigation thereof.
Said lands are located in the semi-arid
portion of Texas where irrigation is a ne-
cessity for agricultural purposes. Plain-
tiff made proper “filings” in the offices
of the county clerks of said counties and,
later, of the Board of Water Engineers,
and secured and owns appropriation rights
and permit to use and divert the waters of
said river for the irrigation of said lands.
Plaintiff subdivided said lands, as appears
from plats thereof duly recorded in said
counties, and, beginning in about 1907, con-
structed, and has since and does now own,
maintain, and operate an irrigation sys-
tem by means whereof plaintiff has been
and is engaged in diverting from said nv-
er and supplying and distributing to said
SIXTH
That plaintiff has at all times complied,
and stood ready, willing, and able to com-
ply with its said water contract and the
said order of said Board in respect to the
furnishings of water by its said irriga-
tion system to the lands herein concerned
and above described, and to the defendant
or defendants as the owners of said land;
and there has accrued on said lands and
is now due and payable by the defendant
or defendants herein to plaintiff^ for the
services of plaintiff and its said irrigation
system, and in default and unpaid, includ-
ing interest calculated in accordance with
the terms of said contract and order up
to April 1st, 1928, including the install-
ment of rates which accrued on said
date, an aggregate amount of, to-wit:
$258.53.
An itemized statement of all such un-
paid rates and charges, showing the na-
ture of each charge or installment of
charges, the date of accrual thereof, the
amount thereof, and the amount of inter-
est accrued thereon, and the aggregate
amount due and unpaid as of date April
1st. 1928, as herein sued for, is attached
hereto marked “Exhibit A” for identifi-
cation, and now referred to and made a
part hereof. That all just and lawful pay-
ments and credits have been allowed _ there-
on : and the said aggregate amount is now
accrued, due, owing, and unpaid to plain-
tiff by defendants on said above described
lands, under the terms of said deed, con-
veyance, and water contract, and said or-
der of said Board, and plaintiff has and
is entitled to a lien on said land as pro-
vided in said deed, conveyance, and water
contract to secure and enforce the pay-
ment thereof.
SEVENTH
It was and is expressly provided by the
terms of said deed, conveyance, and water
contract, that £.11 indebtedness to plaintiff
for such rates and charges, if not paid
when due, shall bear interest froip the
date when due until paid at the rate of
ten per centum per annum, the payment of
such interest being secured in like manner
as the principal amounts of such charges.
In the itemized statement attached such
interest has been included and calculated
up to April 1st, 1928 : and plaintiff is
entitled to recover from defendants the
amount due as of said date, together with
interest thereon from said date until paid
at the rate of ten per cent per annum.
EIGHTH
By reason of the premises, the defend-
ant or defendants have become liable and
promised to pay to plaintiff the amount of
said irrigation rates and charges as above
set forth, with interest thereon as above
stated, but have failed to do so to plain-
tiff’s damage in said amount; and plain-
tiff has become and is entitled to recover
the amount thereof, and to have judgment
against defendant and each of the defend-
ants, -jointly and severally, therefor; and
to have the lien provided for in said deed,
conveyance, and water contract, establish-
ed and foreclosed on the above described
lands herein concerned as against the de-
fendants and each of them to secure and
enforce the payment thereof.
WHEREFORE, premises considered, plain-
tiff pifeys that the defendant or defend-
ants herein be cited according to law to
answer this petition; that upon trial here-
of plaintiff have judgment against
the defendant or defendants, and
each of them jointly and sever-
ally, for the amount of its said rates
and, charges, as above alleged, and interest
thereon as above set forth; and establish-
ing and foreclosing its said lien on said
lands above particularly described as
against the defendants and each of them
to secure and enforce the payment there-
of ; and for an order of sale for said lands
for the payment of said indebtedness ; and
for all such other relief, general and spe-
cial, as it may be entitled.
D. W. GLASSCOCK,
Attorney for Plaintiff.
HEREIN FAIL NOT, But have you be-
fore said Court, on said first day of the
next term thereof, this Writ, with your
return thereon, showing how you have exe-
cuted the same.
WITNESS MY HAND AND OFFICIAL
SEAL At my office in Edinburg, Texas, this
1st day of August A. D. 1928. .
(L.S.) C. L. FORTSON, Clerk,
District Court, Hidalgo County, Texas.
A true copy I certify, A. Y. BAKER,
Sheriff of Hidalgo County, Texas, by J. R.
BALES, Deputy.
-0-
CITATION BY PUBLICATION
THE STATE OF TEXAS,
To the Sheriff or Any Constable of Hidal-
go County—Greeting:
YOU ARE HEREBY COMMANDED To
summon John Dold by making publication
of this Citation once in each week for four
consecutive weeks previous to the return
day hereof, in some newspaper published
in your County, if there be a newspaper
published therein, but if not, then in the
nearest county where a newspaper is pub-
lished ; to appear at the next regular term
of the 93rd District Court of Hidalgo Coun-
ty, Texas, to be held at the Court House
thereof, in Edinburg, on the First Monday
in September A. D. 1928, same being the
Third day of September, 1928, then and
there to answer a petition, filed in said
Court on the 1st day of August, A. I). 1928,
in a suit numbered on the docket of said
Court, No. 6717, wherein American Rio
Grande Land and Irrigation Company, is
Plaintiff, and A. B. Watson, and John
Dold,’ are Oefendants, and the cause of
action being alleged as follows:
STATE OF TEXAS,
COUNTY OF HIDALGO.
In the 93rd District Court of
Hidalgo County, Texas
TO SAID COURT AND THE JUDGE
THEREOF:
Your petitioner, the AMERICAN RIO
GRANDE LAND AND IRRIGATION
COMPANY, as plaintiff, complaining of
A. B. Watson and John Dold, as defend-
ant alleges:
FIRST
Plaintiff is a corporation duly organized
and existing under the laws of Texas, for
irrigation purposes, having its principal of-
fice in the city of Mercedes, Texas, and
for its president Harry L. Seay, who re-
sides in Dallas, Texas, and for its vice-
president H. B. Seay, who resides in Mer-
cedes, Texas.
The defendant A. B. Watson resides in
Hidalgo County, Texas; the residence of
the defendant, John Dold is unknown to
plaintiff and to plaintiff’s attorney herein.
SECOND
Plaintiff secured its cnarter in 1905, and
in pursuance of its powers thereunder ac-
quired title and ownership of what is
known as the “Mercedes Tract” of about
100,000 acres of land, lying in a contigu-
ous body, mostly in Hidalgo and partly in
Cameron Counties, Texas, out of the Lla-
no Grande Grant, riparian to the Rio
Grande river, and having as incident to the
title thereof a right to the use of the wat-
ers of said river for irrigation thereof.
Said lands are located in the semi-arid
portion of Texas where irrigation is a ne-
cessity for agricultural purposes. Plain-
tiff made proper “filings” in the offices
of the county clerks of said counties and,
later, of the Board of Water Engineers,
and secured and owns appropriation rights
and permit to use and divert the waters of
said river for the irrigation of said lands.
Plaintiff subdivided said lands, as appears
from plats thereof duly recorded in said
counties, and, beginning in about 1907, con-
structed, and has since and does now own,
maintain, and operate an irrigation sys-
tem by means whereof plaintiff has been
and is engaged in diverting from said riv-
er and supplying and distributing to said
lands water for irrigation and other law-
ful uses; and has made an actual appro-
priation and use of 'said waters for such
purposes ; but plaintiff supplies water only
to such parcels of said land now owned by
its vendees and sub-vendees thereof as
hold under conveyances and written con-
tracts of plaintiff for such water service,
as stated below.
THIRD ’
Plaintiff has sold and conveyed to a
large number of respective purchasers and
grantees under it, respective subdivision
parcels of said lands, including in its deeds
to them, and in some cases where not con-
tained in the deed then in a separate writ-
ten conveyance and water contract, a
right to be supplied with wa.ter for irriga-
tion of the respective parcels of land thus
conveyed, under and by means of said ir-
rigation system, on the terms and condi-
tions therein set forth similar in all ma-
terial respects in all such deeds and con-
tracts, and providing for the payment to
plaintiff from time to time as the same
should accrue, by the grantees and their
sub-vendees of said lands, respectively, of
irrigation rates and charges on such re-
spective parcels of land; and that
the payment thereof to plaintiff
be secured by a lien on such respective
parcels of land expressly reserved and
provided for . in such deeds, conveyances,
and water contracts; and, in substance and
legal effect, that the particular rates and
charges thus payable on such respective
parcels of land, the amount thereof, and
time and terms of payment thereof, should
be just and reasonable, as fixed from time
to time and for respective periods by law-
ful authority in the manner provided by
law: it being provided in such deeds, con-
veyances, and water contracts, that the
terms and provisions thereof, including the
provisions for the payment of such rates
and charges for a lien on the land in ta-
vor of plaintiff to secure the payment
thereof, shall be covenants running with
the title of such respective parcels of land
thus conveyed by plaintiff, and binding on
all such respective grantees and their sub-
vendees and all persons holding title to
said lands under plaintiff.
FOURTH
That defendant herein is the owner, or
defendants are the owners, of the follow-
ing described lands, a portion of said “Mer-
cedes Tract” out of said Llano Grande ;
Grant, being a parcel or parcels or portion
thereof of the subdivision made by plain-
tiff above stated, located under said irri-
gation system of plaintiff, holding title ^
thereto under plaintiff and under a deed,
conveyance, and water contract, contain- j
ing terms and provisions as above alleged j
executed by plaintiff of which the defend- j
ant or defendants are fully informed, same
being a muniment in the chain of title of
defendant or defendants to said lands, and
which lands are described as follows:
Lot 8, containing 5.74 acres out of the
Grosshouser Subdivision iiy Hidalgo County,
Texas.
In the alternative, if it appear upon
trial hereof that any defendant is not the
owner of said lands but only asserts ^ a
claim thereto or interest therein or lien
thereon, plaintiff alleges that all such
claims, interest, or liens asserted by any
and all such defendants are unknown to
It as to the exact nature and character
thereof but well known to such defendant
or defendants and that same are infer-
ior and subservient to the rights,
liens and remedies herein assert-
ed by plaintiff; and plaintiff is
entitled to have such defendant or defend-
ants assert his or their claims, interest,
and/or liens herein, and to have its rights,
liens and remedies established as superior
thereto, and its liens asserted herein fore-
closed as against any and all such defend-
ants.
FIFTH
IThat in respect to the fixing of the spe-
cific rates, the amount thereof, and time
and terms of payment thereof, payable to
plaintiff on said lands under the terms of
said deed, conveyance, and water contract
by defendants, plaintiff, the defendants,
and all owners of land under irrigation
system, are subject to the jurisdiction of
the Board of Water Engineers and its duty
and power to fix rates for said system
from time to time as provided by law.
That on, to-wit, May 23rd, 1922, in a cer-
tain proceeding before said Board insti-
tuted by plaintiff and by F. G. Karle, et
al., the latter acting in behalf of all own-
ers of lands under said system entitled
to be supplied with water for irrigation,
including defendants or their predecessors
in title to, the lands herein concerned, the
said Board did make, publish, declare, and
place in effect its final order and decree
therein of said date, fixing the specific
rates and charges and amount thereof for
the furnishing of water by said system
and under said contracts and the time and
terms of payment thereof; to apply from
April 1, 1922, for the remainder of that
year, and for each succeeding calendar
year until changed or modified in accord-
ance with law; and which have not been
changed or modified, and have ever since
been and are now in force and effect, and
constitute the lawful rates and charges
inuring to plaintiff for such services, and
payable to plaintiff by defendant or de-
fendants under the terms of said water
contract, and secured by the lien on said
land therein provided for. That said or-
der of said Board was and is binding upon
plaintiff and the defendant or defendants
herein, in respect to the lands herein con-
cerned and water contract covering same;
and defendant or the defendants have ac-
quiesced therein, and have secured and
received the benefits of plaintiff’s services
and of its irrigation system thereunder and
under the terms of said water contract,
and have become and are estopped to dis-
pute or deny the same. That the rates
and charges sued for herein, itemized and
described below and in the exhibits at-
tached hereto, are as fixed and determ-
ined by said order of said Board and ap-
ply under said water contract on the lands
herein concerned and above described.
SIXTH
That plaintiff has at all times complied,
and stood ready, willing, and able to com-
ply with its said water contract and the
said order of said Board in respect to the
furnishings of water by its said irriga-
tion system to the lands herein concerned
and above described, and to the defendant
or defendants as the owners of said land ;
and there has accrued on said lands and
is now due and payable by the defendant
or defendants herein to plaintiff for the
services oi plaintiff and its said irrigation
system, and in default and unpaid, includ-
ing interest calculated in accordance with
the terms of said contract and order up
to April 1st, 1928, including the install-
ment of rates which accrued on said
date, an aggregate amount of, to-wit:
$232.68.
An itemized statement of all such ur.
paid rates and charges, showing the na-
ture of each charge or installment of
charges, the date of accrual thereof, the
amount thereof, and the amount of inter-
est accrued thereon, and the aggregate
amount due and unpaid as of date April
1st, 1928, as herein sued for, is attached
hereto marked “Exhibit A” for identifi-
cation, and now referred to and made a
part hereof. That all just and lawful pay-
ments and credits have been allowed there-
on : and the said aggregate amount is new
accrued, due, owing, and unpaid to plain-
tiff by defendants on said above described
lands, under the terms of said deed, con-
veyance, and water contract, and said or-
der of said Board, and plaintiff has and
is entitled to a lien on said land as pro-
vided in said deed, conveyance, and water
contract to secure and enforce the pay-
ment thereof.
SEVENTH
It was and is expressly provided by the
terms of said deed, conveyance, and water
contract, that all indebtedness to plaintiff
for such rates and charges, if not paid
when due, shall bear interest from the
date when due until paid at the rate of
ten per centum per annum, the payment of
such interest being secured in like manner
as the principal amounts of such charges.
In the itemized statement attached such
interest has been included and calculated
up to April 1st, 1928; and plaintiff is
entitled to recover from defendants the
amount due as of said date, together with
interest thereon from said date until paid
at the rate of ten per cent per annum.
EIGHTH
By reason of the premises, the defend-
ant or defendants have become liable and
promised to pay to plaintiff the amount of
said irrigation rates and charges as above
set forth, with interest thereon as above
stated, but have failed to do so to plain-
tiff’s damage in said amount; and plain-
tiff has become and is entitled to recover
the amount thereof, and to have judgment
against defendant and each of the defend-
ants, jointly and severally, therefor; and
to have the lien provided for in said deed,
conveyance, and water contract, establish-
ed and foreclosed on the above described
lands herein concerned as against the de-
fendants and each of them to secure and
enforce the payment thereof.
'WHEREFORE, premises considered, plain
tiff prays that the defendant or defend-
ants herein be cited according to law to
answer this petition; that upon trial here-
of plaintiff have judgment against
the defendant or defendants, and
each of them jointly and sever-
ally, for the amount of its said rates
and charges, as above alleged, and interest
thereon as above set forth; and establish-
ing and foreclosing its said lien on said
lands above particularly described as
against the defendants and each of them
to secure and enforce the payment there-
of ; and for an order of sale for said lands
for the payment of said indebtedness ; and
for all such other relief, general and spe-
cial, a3 it may be entitled.
D. W. GLASSCOCK,
Attorney for Plaintiff.
HEREIN FAIL NOT, But have you be-
fore said Court, on said first day of the
next term thereof, this Writ, with your re-
turn thereon, showing how you have exe-
cuted the same.
WITNESS MY HAND AND OFFICIAL
SEAL At my office in Edinburg, Texas, this
1st day of August A. D. 1928. (L.S.)
C. L. FORTSON, Clerk,
District Court, Hidalgo County, Texas.
A true copy I certify, A. Y. BAKER,
Sheriff of Hidalgo County, Texas, by J.
R BALES, Deputy.
-0-
CITATION BY PUBLICATION
THE STATE OF TEXAS,
To the Sheriff or Any Constable of Hi-
dalgo County—Greeting:
YOU ARE HEREBY COMMANDED To
summon J. E. Norman, R. E. Ewing, J.
W. Young, Mary Young, McMurry Lum-
ber Company, by making publication of
this Citation once in each week for four
consecutive weeks previous to the return day
hereof in some newspaper published in
your County, if there be a newspaper pub-
lished therein but if not, then in the near-
est county where a newspaper is published;
to appear at the next regular term of the
93rd District Court of Hidalgo County,
Texas, to be held at the Court House there-
of, in Edinburg, on the First Monday in
September A. D. 1928, same being the
Third day of September, 1928, then and
there to answer a petition, filed in said
Court on the 1st day of August A. D. 1928,
in a suit numbered on the docket of said
Court, No. 6716 wherein American Rio
Grande Land and Irrigation Company, is
Plaintiff, and J. E. Norman, R. E. Ewing,
N. P. Barton, Trustee, sued herein indi-
vidually and as such trustee, Hidalgo Coun-
ty Bank, a corporation, J. W. Young, Mary
Young, McMurry Lumber Company, a cor-
poration, are Defendants, and the cause of
action being alleged as follows:
Plaintiff has sold and conveyed to _
large number of respective purchasers and
grantees under it, respective subdivision
parcels of said lands, including in its deeds
to them, and in some cases where not con-
tained in the deed then in a separate writ-
ten conveyance and water contract, *
right to be supplied with water for irriga-
tion of the respective parcels of land thus
conveyed, under and by means of said ir-
rigation system, on the terms and condi-
tions therein set forth similar in all ma-
terial respects in all such deeds and con-
tracts, and providing for the payment to
plaintiff trom time to time as the same
should accrue, by the grantees and their
sub-vendees of said lands, respectively, of
irrigation rates and charges on such re-
spective parcels of land; and that
the payment thereof to plaintiff
be secured by a lien on such respective
parcels of land expressly reserved and
provided for in such deeds, conveyances,
and water contracts; and, in substance and
legal effect, that the particular rates and
charges tnus payable on such respective
parcels of land, the amount thereof, and
time and terms of payment thereof, should
be just and reasonable, as fixed from time
to time and for respective periods by law-
ful authority in the manner provided by
law: it being provided in such deeds, con-
veyances, and water contracts, that the
terms and provisions thereof, including the
provisions for the payment of such rater,
and charges for a lien on the land in la-
vor of plaintiff to secure the payment
thereof, shall be covenants running with
the title of such respective parcels of land
thus conveyed by plaintiff, and binding «n
all such respective grantees and their sub-
vendees and all persons holding title to
said lands under plaintiff.
FOURTH
That defendant herein is the owner, or
defendants are the owners, of the follow-
ing described lands, a portion of said ‘"Mer-
cedes Tract” out of said Llano Grande
Grant, being a parcel or parcels or portion
thereof of the subdivision made by plain-
tiff above 3tatad, located under sa'd irri-
gation system of plaintiff, holding title
thereto under plaintiff and under a deed,
conveyance, and water contract, contain-
ing terms and provisions as above alleged
executed by plaintiff of which the defend-
ant or defendants are fully informed, same
being a muniment in the chain of title of
defendant or defendants to said lands, and
which lands are described as follows:
Lot No. 13 in Block No. 44, containing
40 acres more or less, and out of the Cap-
isallo District Subdivision in Hidalgo Coun-
ty, Texas.
In the alternative, if it appear upon
trial hereof that any defendant is not the
owner of said lands but only asserts ^ a
claim thereto or interest therein or lien
thereon, plaintiff alleges that all such
claims, interest, or liens asserted by any
and all such defendants are unknown to
it as to the exact nature and character
thereof but well known to such defendant
or defendants and that same are infer-
ior and subservient to the rights,
liens and remedies herein assert-
ed by plaintiff; and plaintiff ia
entitled to have, such defendant or defend-
ants assert his < r their claims, interest,
and/or liens herein, and to have its rights,
liens and remedies established as superior
thereto, and its liens asserted herein fore-
closed as against any and all such defend-
ants.
FIFTH
That in respect to the fixing of the spe-
cific rates, the amount thereof, and time
and terms of payment thereof, payable to
plaintiff on said lands under the terms of
said deed, conveyance, and water contract
by defendants, plaintiff, the defendants,
and all owners of land under irrigation
system, are subject- to the jurisdiction of
the Board of Water Engineers and its duty
and power to fix rates for said system
from time to time as provided by law.
That on, to-wit, May 23rd, 1922, in a cer-
tain proceeding before said Board insti-
tuted by plaintiff and by F. G. Karle, et
al., the latter acting in behalf of all own-
ers of lands under said system entitled
to be supplied with water for irrigation,
including defendants or their predecessors
in title to the lands herein concerned, the
said Board did make, publish, declare, and
place in effect its final order and decree
therein of said date, fixing the specific
rates and charges and amount thereof for
the furnishing of water by said system
and under said contracts and the time and
terms of payment thereof; to apply from
April 1, 1922, for the remainder of that
year, and for each succeeding calendar
year until changed or modified in accord-
ance with law ; and which have not been
changed or modified, and have ever since
been and are now in force and effect, and
constitute the lawful rates and charges
inuring to plaintiff for such services, and
payable to plaintiff by defendant or de-
fendants under the terms of said water
contract, and secured by the lien on said
land therein provided for. That said or-
der of said Board was and is binding upon
plaintiff and the defendant or defendants
herein, in respect to the lands herein con-
cerned and water contract covering same;
and defendant or the defendants have ac-
quiesced therein, and have secured and
received the benefits of plaintiff’s services
and of its irrigation system thereunder and
under the terms of said water contract,
and have become and are estopped to dis-
pute or deny the same. That the rates
and charges sued for herein, itemized and
described below and in the exhibits at-
tached hereto, are as fixed and determ-
ined by said order of said Board and ap-
ply under said water contract on the lands
herein concerned and above described.
HEREIN FAIL NOT, But have you be-
fore said Court, on said first day of the
next term thereof this Writ, with your re-
turn thereon, showing how you have exe-
cuted the same.
WITNESS MY HAND AND OFFICIAL
SEAL At my office in Edinburg, Texas,
this 1st day of August A. D. 1928.
(L.S.) C. L. FORTSON, Clerk,
District Court, Hidalgo County, Texas.
A true copy I certify, A. Y. BAKER,
Sheriff of Hidalgo County, Texas, by J.
R. BALES, Deputy.
STATE OF TEXAS,
COUNTY OF HIDALGO.
In the 93rd District Court of
Hidalgo County, Texas
TO SAID COURT AND THE JUDGE
THEREOF:
Your petitioner, the AMERICAN RIO
GRANDE LAND AND IRRIGATION
COMPANY, as plaintiff, complaining of
J. E. Norman, R. E. Ewing, N. P. Bar-
ton, Trustee, sued herein individually and
as such trustee, Hidalgo County Bank, a
corporation, J. W. Young, Mary Young, Mc-
Murry Lumber Company, a corporation, as
defendant, alleges:
FIRST
Plaintiff is a corporation duly organized
and existing under the laws of Texas, for
irrigation purposes, having its principal of-
fice in the city of Mercedes, Texas, and
for its president Harry L. Seay, who re-
sides in Dallas, Texas, and for its vice-
president H. B. Seay, who resides in Mer-
cedes, Texas.
The defendant N. P. Barton, Trustee, re-
sides in Hidalgo County, Texas; the de-
fendant Hidalgo County Brink is a corpo-
ration organized under the laws of Texas,
having its principal office in Mercedes,
Texas, and for its Vice President, N. P.
Barton, who resides in Mercedes, Texas,
upon whom service may be had, the
residence of the defendants J. E. Norman,
R .E. Ewing, J. W. Young, Mary Young
and McMurry Lumber Company is un-
known to Plaintiff and to Plaintiff’s at-
torney herein.
SECOND
Plaintiff secured its cnarter in 1905, and
in pursuance of its powers thereander ac-
quired title and ownership of what is
known as the “Mercedes Tract of about
100,000 acres of land, lying in a contigu-
ous body, mostly in Hidalgo and partly in
Cameron Counties, Texas, out of the Lla-
no Grande Grant, riparian to the Rio
Grande river, and having as incident to the
title thereof a right to the use of the wat-
ers of said river for irrigation thereof.
Said lands are located in the semi-arid
portion of Texas where irrigation is a ne-
cessity for agricultural purposes. Plain-
tiff made proper “filings” in the offices
of the county clerks of said counties and,
later, of the Board of Water Engineers,
and secured and owns appropriation rights
and permit to use and divert the waters of
said river for the irrigation of said lands.
Plaintiff subdivided said lands, as appears
from plats thereof duly recorded in said
counties, and, beginning in about 1907, con-
structed, and has since and does now own,
maintain, and operate an irrigation sys-
tem by means whereof plaintiff has been
and is engaged in diverting from said riv-
er and supplying and distributing to said
lands water for irrigation and other law-
ful uses; and has made an actual appro-
priation and use of said waters for such
purposes ; but plaintiff supplies water only
to such parcels of said land now owned by
its vendees and sub-vendees thereof as
hold under conveyances and written con-
tracts of plaintiff for such water service,
as stated below.
SIXTH
That plaintiff has at all times complied,
and stood ready, willing, and able to com-
ply with its said water contract and the
said order of said Board in respect to the
furnishings of water by its said irriga-
tion system to the lands herein concerned
and above described, and to the defendant
or defendants as the owners of said land;
and there has accrued on said lands and
is now due and payable by the defendant
or defendants herein to plaintiff for the
services of plaintiff and its said irrigation
system, and in default and unpaid, includ-
ing interest calculated in accordance with
the terms of said contract and order up
to April 1st, 1028, including the install-
ment of rates which accrued on said
date, an aggregate amount of, to-wit:
$260.52.
An itemized statement of all such un-
paid rates and charges, showing the na-
ture of each charge or installment of
charges, the date of accrual thereof, the
amount thereof, and the amount of inter-
est accrued thereon, and the aggregate
amount due and unpaid as of date April
1st, 1928, as herein sued for, is attached
hereto marked “Exhibit A” for identifi-
cation, and now referred to and made a
part hereof. That all just and lawful pay-
ments and credits have been allowed there-
on : and the said aggregate amount is now
accrued, due, owing, and unpaid to Plain*
tiff by defendants on said above described
lands, under the terms of said deed, con-
veyance, and water contract, and said or-
der of said Board, and plaintiff has and
is entitled to a lien on said land as pro-
vided in said deed, conveyance, and water
contract to secure and enforce the pay-
ment thereof.
SEVENTH
ft was and is expressly provided by the
terms of said deed, conveyance, and water
contract, that all indebtedness to plaintiff
for „such rates and charges, if net paid
when due, shall bear interest from the
date when due until paid at the rate of
ten per centum per annum, the payment of
such interest being secured in like manner
as the principal amounts of such charges.
In the itemized statement attached such
interest has been included and calculated
up to April 1st, 1928; and plaintiff is
entitled to recover from defendants the
amount due as of said date, together with
interest thereon from said date until paid
at the rate of ten per cent per annum.
* EIGHTH
By reason of the premises, the defend-
ant or defendants have become liable and
promised to pay to plaintiff the amount of
said irrigation rates and charges as above
set forth, with interest thereon as above
stated, but have failed to do so to plain-
tiff’s damage in said amount; and plain-
tiff has become and is entitled to recover
the amount thereof, and to have judgment
against defendant arid each of the defend-
ants, jointly and severally, therefor; and
to have the lien provided for in said deed,
conveyance, and water contract, establish-
ed and foreclosed on the above descubed
lands herein concerned as against the de-
fendants and each of them to secure and
enforce the payment thereof.
WHEREFORE, premises considered, plain-
tiff prays that the defendant or defend-
ants herein be cited according to lav/ to
answer this petition; that upon trial here-
of plaintiff have judgment against
the defendant or defendants, and
each of them jointly and _ sever-
ally, for the amount of its said rates
and charges, as above alleged, and interest
thereon as above set forth; and establish-
ing and foreclosing its said lien oh said
lands above particularly described as
against the defendants and each of them
to secure and enforce the payment there-
of; and for an order of sale for said lands
for the payment of said indebtedness; and
for all such other relief, general and spe-
cial, as it may be entitled.
D. W. GLASSCOCK,
Attorney for Plaintiff.
CITATION BY" PUBLICATION
THE STATE OF TEXAS,
To the Sheriff or Any Constable of Hidal-
go County—Greeting:
YOU ARE HEREBY COMMANDED To
summon Helen B. McNair, John G. McNair,
by making publication of this Citation once
in each week for four consecutive weeks
previous to the return day hereof in some
newspaper published in your County, if
there be a newspaper published therein,
but if not, then in the nearest county
where a newspaper is published; to appear
at the next regular term of the 93rd Dis-
trict Court of Hidalgo County, Texas, to be
held at the Court House thereof, in Edin-
burg, on the First Monday in September,
A. D. 1928, same being th,e Third day of
September, 1928, then and there to answer
a petition, filed in said Court on the 1st
day of August A. D. 1928, in a suit num-
bered on the docket of said Court, No. 6719,
wherein American Rio Grande Land and Ir-
rigation Company, is Plaintiff and W. R.
Montgomery, Trustee, sued herein individ-
ually and as such trustee, Helen B. Mc-
Nair, John G. McNair, are Defendants, and
the cause of action being alleged as fol-
lows :
STATE OF TEXAS,
COUNTY OF HIDALGO.
In the 93rd District Court of
Hidalgo County, Texas
TO SAID COURT AND THE JUDGE
THEREOF:
Your petitioner, the AMERICAN RIO
GRANDE LAND AND IRRIGATION
COMPANY, as plaintiff, complaining of
W. R. Montgomery, Trustee, sued herein
individually and as such trustee; Helen B.
McNair, John G. McNair, as defendants,
alleges:
FIRST
Plaintiff is a corporation duly organized
and existing under the laws of Texas, for
irrigation purposes, having its principal of-
fice in the city of Mercedes, Texas, and
for its president Harry L. Seay, who re-
sides in Dallas, Texas, and for its vice-
president H. B. Seay, who resides in Mer-
cedes, Texas.
The defendant W. R. Montgomery, Trus-
tee, resides in Hidalgo County, Texas, the
residence of the defendants Helen B. Me-
Nair and John G. McNair is unknown to
this plaintiff and to plaintiff’s attorney
herein.
SECOND
Plaintiff secured its cnarter in 1905, and
in pursuance of its powers thereunder ac-
quired title and ownership of what is
known as the “Mercedes Tract” of about
100,000 acres of land, lying in a contigu-
ous body, mostly in Hidalgo and partly in
Cameron Counties, Texas, out of the Lla-
no Grande Grant, riparian to the Rio
Grande river, and having as incident to the
title thereof a right to the use of the wat-
ers of said river for irrigation thereof.
Said lands are located in the semi-arid
portion of Texas where irrigation is a ne-
cessity for agricultural purposes. Plain-
tiff made proper “filings” in the offices
of the county clerks of said counties and,
later, of the Board of Water Engineers,
and secured and owns appropriation rights
and permit to use and divert the waters of
said river for the irrigation of said lands.
Plaintiff subdivided said lands, as appears
from plats thereof duly recorded in said
counties, and, beginning in about 1907, con-
structed, and has since and does now own,
maintain, and operate an irrigation sys-
tem by means whereof plaintiff has been
and is engaged in diverting from said riv-
er and supplying and distributing to said
lands water for irrigation and other law-
ful uses; and has made an actual appro-
priation and use of said waters for such
purposes ; but plaintiff supplies water only
to such parcels of said land now owned by
its vendees and sub-vendees thereof as
hold under conveyances and written con-
tracts of plaintiff for such water service,
as stated below.
THIRD
Plaintiff has sold and conveyed t© a
large number of respective purchasers and
grantees under it, respective subdivision
parcels of said lands, including in its deeds
to them, and in some cases where not con-
tained in the deed then in a separate writ-
ten conveyance and water contract, a
right to be supplied with water for irriga-
tion of the respective parcels of land thus
conveyed, under and by means of said ir-
rigation system, on the terms and condi-
tions therein set forth similar in all ma-
terial respects in all such deeds and con-
tracts, and providing for the payment to
plaintiff from time to time as the same
should accrue, by the grantees and their
sub-vendees of said lands, respectively, of
irrigation rates and charges on such re-
spective parcels of land ; and _ that
the payment thereof to plaintiff
be secured by a lien on such respective
parcels of land expressly reserved and
provided for in such deeds, conveyances,
and water contracts; and, in substance and
legal effect, that the particular rates and
charges thus payable on such respective
parcels of land, the amount thereof, and
time and terms of payment thereof, should
be just and reasonable, as fixed from time
to time and for respective periods by law-
ful authority in the manner provided by
law; it being provided in such deeds, con-
veyances. and water contracts, that the
terms and provisions thereof, including the
provisions for the payment of such rates
and charges for a lien on the land in la-
vor of plaintiff to secure the payment
thereof, shall be covenants running with
the title of such respective parcels of land
thus conveyed by plaintiff, and binding on
all such respective grantees and their sub-
vendees and all persons holding title to
said lands under plaintiff.
herein, in respect to the lands herein con-
cerned and water contract covering same;
and defendant or the defendants have ac-
quiesced therein, and have secured and
received the benefits of plaintiff’s services
and of its irrigation system thereunder and j
under the terms of said water contract,
and have become and are estopped to dis- I
pute or deny the same. That the rates j
and charges sued for herein, itemized and i
described below and in the exhibits at- j
tached hereto, are as fixed and determ- j
ined by said order of said Board and ap- |
ply under said water contract on the lands j
herein concerned and above described.
SIXTH
That plaintiff has at all times complied, !
and stood ready, willing, and able to com- |
ply with its said water contract and the
said order of said Board in respect to the |
furnishings of water by its said irriga- ;
tion system to the lands herein concerned i
and above described, and to the defendant j
or defendants as the owners of said land; !
and there has accrued on said lands and j
is now due and payable by the defendant j
or defendants herein to plaintiff for the ;
services of plaintiff and its said irrigation j
system, and in default and unpaid, includ- ;
ing interest calculated in accordance with I
the terms of said contract and order up
to April 1st, 1928, including the install-
ment of rates which accrued on said
date, an aggregate amount of, to-wit:
$1,667.39.
An itemized statement of all such un-
paid rates and charges, showing the na-
ture of each charge or installment of
charges, the date of accrual thereof, the
amount thereof, and the amount of inter-
est accrued thereon, and the aggregate
amount due and unpaid as of date April
1st, 1928, as herein sued for, is attached
hereto marked “Exhibit A” for identifi-
cation, and now referred to and made a
part hereof. That all just and lawful pay-
ments and credits have been allowed there-
on : and the said aggregate amount is now
accrued, due, owing, and unpaid to plain-
tiff by defendants on said above described
lands, under the terms of said deed, con-
veyance, and water contract, and said or-
der of said Board, and plaintiff has and
is entitled to a lien on said land as pro-
vided in said deed, conveyance, and water
contract to secure and enforce the pay-
ment thereof.
SEVENTH
It was and is expressly provided by the
terms of said deed, conveyance, and water
contract, that all indebtedness to plaintiff
for such rates and charges, if not paid
when due, shall bear interest from the
date when due until paid at the rate of
ten per centum per annum, the payment of
such interest being secured in like manner
as the principal amounts of such charges.
In the itemized statement attached such
interest has been included and calculated
up to April 1st, 1928; and plaintiff is
entitled to recover from defendants the
amount due as of said date, together with
interest thereon from said date until paid
at the rate of ten per cent per annum.
EIGHTH
By reason of the premises, the defend-
ant or defendants have become liable and
promised to pay to plaintiff the amount of
said irrigation rates and charges as above
set forth, with interest thereon as above
stated, but have failed to do so to plain-
tiff’s damage in said amount; and plain-
tiff has become and is entitled to recover
the amount thereof, and to have judgment
against defendant and each of the defend-
ants, jointly and severally, therefor; and
to have the lien provided for in said deed,
conveyance, and water contract, establish-
ed and foreclosed on the above described
lands herein concerned as against the de-
fendants and each of them to secure and
enforce the payment thereof.
WHEREFORE, premises considered, plain-
tiff prays that the defendant or defend-
ants herein be cited according to law to
answer this petition; that upon trial here-
of plaintiff have judgment against
the defendant or defendants, and
each of them jointly and _ sever-
ally, for the amount of its said rates
and charges, as above alleged, and interest
thereon as above set forth; and establish-
ing and foreclosing its said lien on said
lands above particularly described as
against the defendants and each of them
to secure and enforce the payment there-
of ; and for an order of sale for said lands
for the payment of said indebtedness; and
for all such other relief, general and spe-
cial, as it may be entitled.
FOURTH
That defendant herein is the owner, or
defendants are the owners, of the follow-
ing described lands, a portion of said “Mer-
cedes Tract” out- of said Llano Grande
Grant, being a parcel or parcels or portion
thereof of the subdivision made by plain-
tiff above stated, located under said irri-
gation system of plaintiff, holding title
thereto under plaintiff and under a deed,
conveyance, and water contract, contain-
ing terms and provisions as above alleged
executed by plaintiff of which the defend-
ant or defendants are fully informed,_ same
being a muniment in the chain of title of
defendant or defendants to said lands, and
which lands are described as follows:
Lot No. 12, containing 40 acres, more
or less, and Lot No. 13 containing ^40
acres, more or less, both in Block No. 32,
out of the Capisallo District Subdivision in
Hidalgo County, Texas.
In the alternative, if it appear upon
trial hereof that any defendant is not the
owner of said lands but only asserts _ a
claim thereto or interest therein or lien
thereon, plaintiff alleges that all such
claims, interest, or liens asserted by any
and all such defendants are unknown to
it as to the exact nature and character
thereof but well known to such defendant
or defendants and that same are infer-
ior and subservient to the rights,
liens and remedies herein assert-
ed by plaintiff; and plaintiff is
entitled to have such defendant or defend-
ants assert his or their claims,_ interest,
and/or liens herein, and to have its rights,
liens and remedies established as superior
thereto, and its liens asserted herein fore-
closed as against any and all such defend-
ants.
FIFTH
That in respect to the fixing of the spe-
cific rates, the amount thereof, and time
and terms of payment thereof, payable to
plaintiff on said lands under the terms of
said deed, conveyance, and water contract
by defendants, plaintiff, the defendants,
and all owners of land under irrigation
system, are subject to the jurisdiction of
the Board of Water Engineers and its duty
and power to fix rates for said system
from time to time as provided by law.
That on, to-wit, May 23rd,_ 1922, in a cer-
tain proceeding before said Board insti-
tuted by plaintiff and by F. G. Karle, et
al., the latter acting in behalf of all own-
ers of lands under said system entitled
to be supplied with water for irrigation,
including defendants or their predecessors
in title to the lands herein concerned, the
said Board did make, publish, declare, and
place in effect its final order and decree
therein of said date, fixing the specific
rates and charges and amount thereof for
the furnishing of water by said_ system
and under said contracts and the time and
terms of payment thereof; to apply from
April 1, 1922, for the remainder of that
year, and for each succeeding calendar
year until changed or modified in accord-
ance with law ; and which have not been
changed or modified, and have ever since
been and are now in force and effect, and
constitute the lawful rates and charges
inuring to plaintiff for such services, and
payable to plaintiff by defendant or de-
fendants under the terms of said water
contract, and secured by the lien on said
land therein provided for. _ That said or-
der of said Board was and is binding upon
plaintiff and the defendant 9F defendants
D. W. GLASSCOCK,
Attorney for Plaintiff.
HEREIN FAIL NOT, But have you be-
fore said Court, on said first day of the
next term thereof, this Writ, with your re-
turn thereon, showing how you have exe-
cuted the same.
WITNESS MY HAND AND OFFICIAL
SEAL At my office in Edinburg, Texas,
this 1st day of August A. D. 1928.
(L.S.) C. L. FORTSON, Clerk,
District Court, Hidalgo County, Texas.
A true copy I certify, A. Y. BAKER,
Sheriff of Hidalgo County, Texas, by J.
R BALES, Deputy.
-0-
CITATION BY PUBLICATION
THE STATE OF TEXAS,
To the Sheriff or Any Constable of Hi-
dalgo County—Greeting:
YOU ARE HEREBY COMMANDED To
summon J. A. Nelson, by making publi-
cation of this Citation once in each week
for four consecutive weeks previous to the
return day hereof in some newspaper pub-
lished in your County, if there be a news-
paper published therein but if not, then in
the nearest county where a newspaper is
published; to appear at the next regular
term of the 93rd District Court of Hidal-
go County, Texas, to be held at the Court
House thereof, in Edinburg, on the First
Monday in September A. D. 1928, same
being the Third day of September, 1928,
then and there to answer a petition, filed
in said Court on the 1st day of August
A D 1928, in a suit numbered on the
docket of said Court, No. 6713, wherein
American Rio Grande Land and Irrigation
Company, is Plaintiff and J. A. Nelson,
C. W. Gound and G. E. Fosbroke are
Defendants, and the cause of action be-
ing alleged as follows:
STATE OF TEXAS,
COUNTY OF HIDALGO.
In the 93rd District Court of
Hidalgo County, Texas
TO SAID COURT AND THE JUDGE
THEREOF:
Your petitioner, the AMERICAN RIO
GRANDE LAND AND IRRIGATION
COMPANY, as plaintiff, complaining of
J. A. Nelson, C. W. Gound and C. E.
Fosbroke, as defendants, alleges:
FIRST
Plaintiff is a corporation duly organized
and existing under the laws of Texas, for
irrigation purposes, having its principal of-
fice in the city of Mercedes, Texas, and
for its president Harry L. Seay, who re-
sides in Dallas, Texas, and for its vice-
president H. B. Seay, who resides in Mer-
cedes, Texas.
The defendant G. E. Fosbroke is a non-
resident of Texas and resides at No. 334
Endicott Building, St. Paul, Minn., the
defendant C. W. Gound resides in Hidalgo
County, Texas, the residence of the de-
fendant J. A. Nelson is unknown to this
plaintiff and to plaintiff’s attorney here-
in.
SECOND
Plaintiff secured its cnarter in 1905, and
m pursuance of its powers thereunder ac-
quired title and ownership of what is
known as the “Mercedes Tract” of about
100,000 acres of land, lying in a contigu-
ous body, mostly in Hidalgo and partly in
Cameron Counties, Texas, out of the Lla-
no Grande Grant, riparian to the Rio
Grande river, and having as incident to the
title thereof a right to the use of the wat-
ers of said river for irrigation thereof.
Said lands are located in the semi-arid
portion of Texas where irrigation is a ne-
cessity for agricultural purposes. Plain-
tiff made proper “filings” in the offices
of the county clerks of said counties and,
later, of the Board of Water Engineers,
and secured and owns appropriation rights
and permit to use and divert the waters of
said river for the irrigation of said lands.
Plaintiff subdivided said lands, as appears
from plats thereof duly recorded in said
counties, and, beginning in about 1907, con-
structed, and has since and does now own,
maintain, and operate an irrigation sys-
tem by means whereof plaintiff has been
and is engaged in diverting from said riv-
er and supplying and distributing to said
lands water for irrigation and other law-
ful uses; and has made an actual appro-
priation and use of said waters for such
purposes; but plaintiff supplies water only
to such parcels of said land now owned by
its vendees and sub-vendees thereof as
hold under conveyances and written con-
tracts of plaintiff for such water service,
as stated below.
THIRD
Plaintiff has sold and conveyed to a
large number of respective purchasers _ and
grantees under it, respective subdivision
parcels of said lands, including in its deeds
to them, and in some cases where not con-
tained in the deed then in a separate writ-
ten conveyance and water contract, a
right to be supplied with water for irriga-
tion of the respective parcels of land thus
conveyed, under and by means of said ifc
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The Mercedes News (Mercedes, Tex.), Vol. 5, No. 75, Ed. 1 Friday, August 10, 1928, newspaper, August 10, 1928; Mercedes, Texas. (https://texashistory.unt.edu/ark:/67531/metapth651680/m1/9/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting Dr. Hector P. Garcia Memorial Library.