On Motion for Rehearing.
Where a court is trying a case without a jury, and grants a defendant’s motion for a verdict urged at the conclusion of plaintiff’s evidence, such action is the legal equivalent of granting a motion for an instructed verdict, where the trial is before court and jury. It has been more than fifty years since our Supreme Court held that a demurrer to evidence had become practically obsolete in our practice. Texas & P. R. Co. v. Murphy, 46 Tex. 356, 367, 26 Am.Rep. 272. The risk to a defendant, if he were wrong in demurring to the evidence, was that he would have judgment rendered against him. See Harwood v. Blythe, 32 Tex. 800, 801. And there was never any purpose in urging a demurrer to evidence where the trial was before the court without a jury. For where the court is exercising both his judicial functions and the functions of the jury, the defendant was, without urging a demurrer to plaintiff’s evidence, entitled to the judgment of the judge on the evidence. We are convinced we erred in our original judgment in rendering judgment for appellant upon reversing the trial court’s- judgment, instead of remanding the cause for a new trial. When an appellate court finds that it erroneously rendered judgment upon reversal of the trial court, it is the duty of the court to set aside such rendition, and remand the cause, even upon its own motion. See Waldo v. Galveston, H. & S. A. R. Co., Tex.Com.App., 50 S.W.2d 274.
As stated in our original opinion, it is apparent that appellant had a cause of action. Appellees merely contend that he mistook the appropriate form of action. Abolishment of common law forms of action was intended to prevent miscarriages of justice where a litigant with a good cause of action mistook the appropriate form of action. It is well known that trespass to try title is the only formal action known to our civil law, and the statute states substantially what the form shall be. Rains v. Wheeler, 76 Tex. 390, 393, 13 S.W. 324. And, while the general policy of our law is that no litigant shall lose his cause of action because of the form in which he brings it, yet, if he proves up a good cause of action, but mistakenly chooses trespass to try title as the form in which to bring it, he still must lose. But certainly if a litigant proves up a good cause of action, and his proof shows that his cause of action is one which is enforcible in trespass to try title, he has done all that is required of him. Here appellant proved that he was in prior possession of the land for which he sued, and using such land for purposes for which the Legislature could have granted same. Under settled law, the presumption thereupon arose that the grant to him or his predecessor in interest had been made. We can see no reason why the owner of land granted by the Legislature should be subjected to any greater burden, when he makes use of trespass to try title to recover his land, than the owner of land held under an executive grant. To so hold would make titles granted by the Legislature less secure than those granted by the executive-branch of government.
It will be noted that in the second lease, in addition to the property involved in this suit, there was an additional property included, the property located “where the main highway crosses”. This was, as appears from the evidence, the packing house. While the packing house property is not involved in this suit, it is embraced in the description of property in the second lease, and by eliminating it from the property described in the second lease, there is left only the property involved in this suit. This, if it were necessary, shows that the parties were not limiting the word “property” to include only personal property.
Whether appellant had exclusive possession of the property for many years is a fact question, and we withdraw any statement in the original opinion having the effect of indicating that he might have prescribed under the statute of limitations. However, a wharf such as this one is like a store or warehouse which is used by the public, as invitees and licensees, to resort to and do business with the owner. Appellant’s right to prevail was not sustained upon the theory that he had prescribed under the statute of limitations, but upon his proof of prior possession.
We stated in the original opinion that the facts proven by appellant showed that he had a cause of action upon which he could have recovered had he brought forcible entry and detainer. We desire to amend that statement by merely stating that facts proven showed appellant had a cause of ac*241tion upon which he could have recovered. We do not hold that forcible entry and de-tainer was not appropriate, nor that it was.
Upon the court’s own motion the order heretofore entered herein indicating that the rehearing was granted upon appellee’s motion is reformed to show that the rehearing was granted upon the court’s own motion, and as so reformed, the order reversing the judgment, and remanding the cause is continued in effect, and the motion of appellant for rehearing is refused. Our former opinion on rehearing is withdrawn.