The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-05-25
THE HIGHER COURTS.
SUPREME COURT.
The supreme court handed dowr

the following opinions May IS:
McGhee Irrigation company vs..
Hudson ct al The McGhee Irriga-
ton company, corporation, began
condemnation proceedings to obtain
land necessary for the construction of
a dam across the Concho river and
the opening of a ditch, all to be used
for irrigation purposes. Before the
proceedings were contaminated
they entered upon the land and be.
gan work ,whereupon Hudson institut-
ed Injunction proceedings. A tenn
porary injunction was granted follow
ed upon hearing the case by a per-
petual injunction. Hudson claimed
that the act of the legislature
under which the company was acting
was void because it failed to DIES.
ignate the "arid portion of the state.n
There is nothing in the answer or in
the agreed statement of facts that
shows that the land was in the arid
portion of the stale. The opinion Of
the court OF civil appeals that the act
is not void because it fails to desig-
nate the arid portion of the state is
copcurred in as is that which holds
that the court has not judicial knowl-
edge of the arid POI ton of the state,
but that in cases OF condemnation
undor this act proof must DO made,
that the particular territory is within
the arid portion OF the state, and that
"by reason of the insufficient rain
fall irrigation is necessary for
agricultural purposes. There was
neither proof nor averment of that
fact by either party. This was suffi.
Gent TO entitle parties to temporary
INDUCTION restraining the defendant
from using the land prior to such
time as it might acquire the right
through condemnation but there is no
case shown in which q perpetual in
junction should be granted. Plain
tiffs were seeking affirmative relief
and the burden was upon them to
show case justifying a perpetual in.
junction. The granting of the per-
petual INDUCTION was error, fundamen.
tai in character, and for this reason
the judgment OF the district court will
be reversed and the cause remanded.
Opinion by Stayton, G. J.
Heirs of Shelby Corzine and Will
Jams ct al. Writ Of error from second
supreme judicial district. The action
is one of trespass to try title, brought
by Williams and others against Har.
die and others. Elizabeth White and
others INTERVIEWED, claiming the land
AS heirs of Shelby Corzine and Sarah
Corzine. The trial court awarded
half the land to plaintiffs and half to
the intervenors. On appeal the court
of civil appeals reversed the iudg-
ment and rendered judgment for the
plaintiffs for all the land The land
was patented to Shelby Corzine, his
heirs and assigns by virtue of GER
tificate issued to Nancy Ussery, and
it was found that the certificate be-
longod originally to the COM
munity estate of Shelby Corzine
and his wife, and that iptervenors
W. re their heirs. The defendants in
error claim under Vinian, to whom
Sarah Corzine executed q purported
transfer of the certificate. This trans
fer recited that it was made by virtue
of power vested in her as administI at |
rix ip order to fulfill the contract of
Shelby COrZine, deceased. 1t was
Gated June, 1855. Shelby Corzine
died in 1889, and Sarah Corzine was
appointed administrators soon after.
Between 1910 and 1850 commissioners
were appointed to make partition of
the estate. Their report was adopted.
No order was found on the minutes of
the county court authorizing the trans.
fer of the certificate, nor was there
any order closing the administration.
1t was shown that none of the probate !
minutes had been destroyed. There
was testimony that the administration
closed prior to the year 1856. Upon
this state OF facts the court of civil APP
peals held in effect that Sarah ColZiGe |
as surviving wife had the power to |
transfer the certificate i'm discharge of
her husbands written obligation, ard
that after thirty years it should be |
presumed that the bond for title re-
cited in the transfer did exist. In this |
view we do not concur. The survivor
in community may sell the common
estate for the purp Sc OF paying the
debts against it and it would reem
that the same could be done in case of
an outstanding title bond. But this
power does not necessarily contiI ne
throughout the lifetime of the sur
vivor. When either the husban or
wife dies intestate an undivided
half of the common estate descends
to his or her heirs, subject only
to the payment of debts and it would |
seem that there must be some period |
of time, after which, in the absence of
proof to the contrary it would be pre-
sumed that the debts had been paid. |
This sale was made Is years after the
husbands death and after the ad-
ministration had been closed. The
presumption ofauthority by reason OF
lap OF time is certainly met by The
presumption that she had fully ad.
minlstered the estate. We conclude
that she was without power to convey
her husbands interest in the certif.
cate. This brings us to the second
question, did the purported transfer of
Sarah COrzine have the effect of con-
veying Der interest in the certificate
Tne instrument is a deed She at.
tempts TO cuuvAy as administration
when il j. shown she had no such
power. If it has effect it must be in