I concur in the result and the main opinion with the single exception of its acceptance of the rule of Hicks v. Drew,117 Cal. 305, [49 P. 189], as the settled law of this state. This rule, to which I strongly except, is that subdivision 2 of section 338 of the Code of Civil Procedure, when it provide a period of limitation of three years for "An action for trespass upon real property," refers only to what were strictly actions for trespass at the common law and excludes actions for invasions of rights in real property for which at common law the remedy was not trespass but trespass on the case. The construction so put upon the section has the remarkable result that although one of the primary purposes of our reformed procedure was to do away with the refined and frequently illusory distinctions of the common law between forms of action, and although the fundamental theory of our law is that it is one of substantive rights for whose breach there is in all cases but one form of action, while the common law was essentially a law of remedies and forms of action were all-important, yet the distinctions of the common law between forms of action are imported into our law and still maintained. This is done, furthermore, not in connection with the form of the particular action, but in a purely incidental connection, that of the period of limitation. No reason whatever can be assigned why such distinctions should be preserved. They are an anachronism in our law, alien to its fundamental theory. They make the rights of the parties to turn, as in this case, not upon the merits, but upon refined and subtle distinctions, whose perpetuation makes the rights of the parties in many cases, as here, difficult of ascertainment without any necessity for such difficulty. I believe that upon this pointHicks v. Drew should be overruled *Page 523 and the code section construed to mean that by trespass is meant any wrong to or invasion of rights in real property. Such is the usual meaning of the word "trespass," and such the meaning which has been given to it when used in similar statutes elsewhere. (Cahn v. Bonnett, 62 Tex. 674; Bear v.Marx, 63 Tex. 298; Kelly v. Moore, 51 Ala. 364.) A reading, also, of this particular provision in connection with the other code provisions concerning the period of limitations indicates that this was the sense in which the word was used.
I would not take the view that Hicks v. Drew should be overruled if its overruling would have the effect of cutting off any existing right of action. But the only effect of overruling it would be to extend, not to limit, the time within which certain actions may be brought. This being the case, I think it should be overruled in the interest of the administration of justice by as plain and simple rules as possible.