
    BROWNSVILLE & MATAMOROS MUNICIPAL BRIDGE CO. v. GATEWAY BRIDGE CO. et al.
    (No. 7902.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1928.
    Rehearing Denied Peb. 22, 1928.
    1. Evidence ⅞=>10(2, 5) — Location of Brownsville, Tex., and Matamoros, Mexico, and navigability of International Rio Grande river, is judicially known.
    Judicial notice will be taken of location of Brownsville, Tex., and Matamoros, Mexico, and of the navigability of the International Rio Grande river.
    2. Bridges <&wkey;>l5 — Suit to restrain use of particular location for international bridge held not to invblve construction of federal statutes (33 USCA § 401).
    Suit to enjoin construction of bridge across Rio Grande river held not to involve construction of ,U- S. Comp. St. § 9971 (33 USCA § 401), or of any other federal statute, where each party attempted to comply with acts of Congress on the subject, and question of right to use particular location for bridge merely involved issue of priority.
    3. Bridges &wkey;>!5 — -One claiming superior right to construct bridge at particular location by injunction had burden to establish right.
    One bringing injunction suit to establish superior right to construct bridge across Rio Grande river at particular location had burden to show that its right or equities to use of location for that purpose was prior to right of defendant.
    4. Bridges <&wkey;l5 — City’s grant to bridge company of right to use street could not be set aside by subsequent location of bridge site.
    Right of bridge company in street, granted by city for purpose of erecting bridge, could not be usurped or set aside by subsequent location of bridge site in permit given another company.
    5. Bridges t&wkey;I5 — After bridge company designated exact site for bridge within permit from state, state could not thereafter grant exclusive right to site to third party.
    Where state had granted permit to build bridge across Rio Grande river between two cities, it could not thereafter grant to another party exclusive right to site designated and used by prior grantee, who was in actual possession and engaged in construction of bridge at that location. ' •
    6. Bridges <&wkey;I5 — Company which first secured permit from state, city, federal government, and Mexican government to build internation-
    ' al bridge, and entered upon construction at particular location, had prior right to such location over one subsequently securing permit to that site.
    Corporation which secured permit from state and federal government for location of bridge across Rio Grande river at particular site, but lacked franchise from city of Brownsville or republic of Mexico, held not entitled to establish superior claim to such site, where another bridge company, which had previously secured permit for construction of bridge from state, city, federal government, and Mexican government, was in actual possession of site and engaged in construction of bridge there.
    7. Bridges <s&wkey;l5 — Rights of bridge company in particular site chosen under permits to build bridge across Rio Grande river held vested.
    Right of bridge company under grant of street from city of Brownsville and of permit to erect bridge across Rio Grande river from state, federal government, and republic of Mexico, was vested right, which could not be set aside, disturbed, or postponed, after its designation of site and commencement of construction of bridge.
    8. Injunction <&wkey;>l —< Injunctions should be granted with caution and only where clearly necessary.
    Broad powers of courts of equity to issue injunctions should be exercised with great caution, and only when reasons and necessity therefor are clearly established.
    Appeal from District Oourt, Cameron County; A. M. Kent, Judge.
    Suit by the Brownsville & Matamoros Municipal Bridge Company against the Gateway Bridge Company and others. Judgment for defendants, and plaintiff appeals. ■
    Affirmed.
    Templeton, Brooks, Napier & Brown and O. M. Robards, all of San Antonio, for appellant.
    Graham & Graham and R. E. Green, all of Brownsville, for appellees.
   COBBS, J.

This suit was brought by way of injunction by the appellant against appellee to establish its alleged superior claim, right, and title to occupy and construct its bridge over and across tbe Rio Grande river, between Brownsville, Tex., and Matamoros, in tbe republic of Mexico. Upon tbe bearing of tbe application it was 'denied. Appellees sought no affirmative relief, and tbe issue was upon appellant’s contention, denied by appellee, that tbe appellants bad tbe superior right to occupy tbe designated and contested place in question. Tbe Rio Grande river is a large stream or body of water constituting tbe boundary or international line between tbe two republics. Judicial knowledge will be taken as to tbe location of tbe two cities and tbe navigability of tbe International Rio Grande river.

It is not necessary bere to set out any more of the pleadings of tbe parties or tbe issues, since their pertinence will be disclosed in tbis opinion.

It is apparent that practically tbe same issues and tbe same parties in interest are bere now that were before tbe court in tbe case of Malott v. City of Brownsville (Tex. Civ. App.) 292 S. W. 606, decided February 16, 1927, (No. 7677).

In tbe cited case Malott was tbe real adverse party. He now appears in tbis case as one of tbe real organizers and tbe owner of a large share of stock in appellant’s corporation. So it may be said tbe same real issues, tbe same real questions, and same parties, to a certain extent, are involved in both cases. Our Supreme Court granted a writ of error in that case, which was. affirmed by tbe Commission of Appeals and approved by the Supreme Court. 298 S. W. 541.; 300 S. W. 29. So we shall treat that case as correctly disposed of by this court, in so far as applicable bere. Appellee has established a prior right to construct tbe bridge in question unless there was invalidity in tbe proceedings such as to postpone bis prior title.

In tbe very beginning we will refer to tbe recent holdings- of our Supreme Court upholding the' state’s title to land in tbe bed of navigable streams. See State et al. v. Grubstake Inv. Association et al., 297 S. W. 202; State v. Black Bros, et al., 116 Tex. 615, 297 S. W. 213.

We do not agree with appellant in tbe statement “that tbis case involves any construction of section 9971 of tbe Compiled Statutes of tbe United States (33 USCA § 401),” nor of any federal statute, nor do we or will we construe any federal statute, because there is no necessity for it in this case. There is no conflict of any statutes involved, because each party has attempted to comply with tbe acts of Congress on tbe subject. It is a question that involves tbe priority of rights, first in time first in right. Using a common or trite expression that conveys tbe same meaning, “tbe finder is tbe keeper.”

We make this illustration because it is apparent from .the record introduced on tbe trial that appellee bad tbe prior right to construct tbe bridge in question, and appellant, upon whom tbe burden rests to show prior right or equities, has wholly failed to do so. While it may be admitted, for tbe sake of argument, that appellant has tbe right to construct its bridge across tbe river, but it bad no exclusive or superior right to construct its bridge at tbe point in controversy and thereby postpone appellee’s right, because at that particular point of crossing tbe possession and right had been' secured by appellee.

On May 26, 1926, tbe appellee Gateway Bridge Company filed its articles of incorporation, for the erection and maintenance of a bridge across the Rio Grande river, with the secretary of state, and was on May 27, 1926, granted a permit to do business in tbe state of Texas, for the purpose and to tbe extent as follows:

“To construct and maintain a bridge from the city of Brownsville, Cameron county, Tex., across the Rio Grande river to Matamoros, state of Tamaupilas, United States of Mexico, and to collect such tolls for passage over the same as may be lawfully charged, together with such further powers and privileges as are conferred on foreign corporations by the laws of the state of Texas, for a period of ten years. * * *

On- June 29, 1926, after appellee bad secured its permit to build tbe bridge, the appellant filed with tbe secretary of state its articles of incorporation for the purpose of building its bridge, stating tbe particular place, and was granted tbe state’s permit. Appellee was granted a prior permit to build the bridge across tbe Rio Grande river to Matamoros, Mexico, and bad obtained tbe consent of Congress and tbe republic of Mexico to build such bridge, on the exact location appellant seeks to oust appellee from in order to itself construct its own bridge there.

Laying out of sight appellant’s claims, which were obtained subsequent to tbe rights of appellee, long after tbe time that appellee was incorporated, and hence before appellant’s very existence, it cannot postpone ap-pellee’s prior rights. We understand that appellant claims it has exclusive rights to the bridge site in controversy, primarily by virtue of federal statutes and laws; -but appellant contends that the federal government's powers over tbe stream in question are merely permissive, and that it does not possess tbe power or authority to grant such rights as set up by appellees. But it must be conceded, as claimed by appellees, that tbe permission from tbe federal government is necessary to entitle it to construct a bridge across tbe Rio Grande river into Mexico-; and it is also necessary to secure tbe consent of tbe republic of Mexico. Tbe undisputed proof shows that, not only did appellee acquire its charter rights and privileges from the state of Texas and tbe city of Brownsville, but also it acquired similar rights and privileges ⅝ from the federal government of the United States and hlexico, with the approval by the chief of engineers and the Secretary of War, of the location, plans, and specifications of the bridge in question.

It is. true, both parties have franchise rights from Texas and our federal government to construct an international bridge across the river. Appellee has the consent of Mexico to do so, but appellant' has shown no such permission from Mexico, if such exists at all. Plere the grant to appellee covered any p'oint from Brownsville to Mata-moros, and the point in question is within the franchise, permit, or grant, which was designated and given to appellee by the city of Brownsville, while appellant’s charter limits its crossing “from the intersection of Eourteenth street and Levee street, in the city of Brownsville, Cameron county, Tex., to a point of the Mexican bank, * * * said Fourteenth street and Levee street being public roads or streets of the county of Cameron and of the city of Brownsville.”

Not only had appellee secured its right to build this bridge, but had located upon the very point in question, first having secured the state’s permit, the city of Brownsville’s consent, and the consent or permit of the federal government and authorities, and the Mexican government, too, leaving nothing else for it to do. But it is not shown that appellant secured any permission or franchise from either Brownsville or the republic of Mexico to construct its bridge. Appellee had the prior right to the street named, granted it by the city of Brownsville (G. C. Ry. Co. v. G. C. S. Ry. Co., 63 Tex. 529), and this right or grant could not be usurped and set aside by the subsequent location.

The state of Texas had already granted .appellees a permit to build their bridge from Brownsville to Matamoros, and appel-lees had already designated the particular site, to the knowledge of appellant, or at least its incorporators, before appellant was incorporated, and appellees were in actual possession of said site and engaged in the construction of their bridge when appellant brought this suit; and, the state having granted to appellees the right to build their bridge from Brownsville to Matamoros, and appellees having designated the exact site therefor, which site was within the permit from the state, the state could not thereafter grant to appellant an exclusive right to this same site, and whatever rights appellant did obtain were certainly subject to the rights already granted by the state to appel-lees.

This suit was one in equity, praying for equitable relief, in which C. F. Malott owns 98 of the 100 shares of stock in appellant’s corporation, who has failed, as we have stat- • ed before, in his efforts to obtain an injunction in said cause No. 7677, of this court; concerning the very same identical bridge site, and, failing, immediately organized this corporation and seeks in this suit to obtain an injunction for the very same relief denied 'him, although appellees had obtained all necessary and prior rights to build the bridge at the identical site. Appellees had the location, plans made, and specifications approved by the 'proper authorities, and are in a position to -do the work. No equities are plead or shown why the rights of appellees, “first in order of time,” should be canceled or postponed in favor of another.

The appellant has failed to show any reason or equitable ground for an injunction; in fact, has not shown that it complied with all the laws precedent, which was required of it in order to secure the permission of the federal government of Mexico to construct a bridge across one of her navigable streams, as itxwas to procure the consent of our authorities, state and federal.

In the case of Eagle Pass & Piedras Negras Bridge Co. v. Texas-Coahuila Bridge Co. (Tex. Civ. App.) 279 S. W. 937, opinion by our Chief Justice Fly, it was said:

“When it seeks an injunction as against ap-pellee, the burden rests upon it to present such equities as will entitle it to the writ, and consequently it was held to show that it had obtained from the national government the exclusive right to construct a bridge across tli'e Rio Grande [River] and that such exclusive privilege had been assailed by appellee. If it had not obtained a legal franchise to construct and operate a temporary bridge across the river, it could not succeed in its desire for a writ of injunction on the ground that appellee had constructed and intended to operate a temporary bridge across the river without having obtained a franchise entitling it to do so.' In order to establish its right to an injunction against one alleged to be invading a franchise right, the plaintiff, must show, not only a grant from the proper authority, but also the fulfillment of all obligations imposed upon it by the act granting the franchise as conditions. There must not only be a franchise but an exclusive one shown. ⅜ * * Its legality must be judged in the light of its own acts and not those of any former corporation. * * ⅜ Congress has declared that no bridge can lawfully be constructed over any navigable stream in the United States without the consent of Congress, nor until the plans for the same have been submitted to and approved by the chief of engineers, and the Secretary of War.”

Appellee has shown a compliance with the law and. the fulfillment of all obligations imposed' thereby. Its rights thereby became vested, and cannot be set aside, disturbed, or postponed to appellant’s claims.' The broad powers of courts of equity to issue injunctions should be exercised always with great caution and only when the reasons and necessity are clearly established. 32 Corpus Juris, p. 33, § 12, page 35, § 15, page 347, § 579.

We have looked in vain, and fail to find shewn or established any reason to grant the relief sought. •

Finding no error shown in the rulings of the trial court as urged by the assignments and propositions, they are each overruled, and the judgment of the trial court is affirmed. 
      
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