dissenting.
I respectfully dissent.
This suit, although brought in the form of a trespass to try title action, involves only the location of the correct boundary line between petitioner Harold L. Hunt and respondent Dan Heaton. Since this was a boundary dispute, Hunt’s failure to timely file the requested abstract of title did not foreclose his right to establish proper boundary. Therefore, the court of appeals erred in affirming the instructed verdict granted against Hunt by the trial court at the close of his evidence.
It is established that boundary disputes may be tried by a statutory action of trespass to try title. Plumb v. Stuessy, 617 S.W.2d 667 (Tex.1981); Standolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767 (1939); Schiele v. Kimball, 113 Tex. 1, 194 S.W. 944 (1917). In such an action the plaintiff is not required to establish superi- or title to the property in question in the manner required in a formal trespass to try title action. Plumb v. Stuessy, supra 617 S.W.2d at 669; Rocha v. Campos, 574 S.W.2d 233, 235 (Tex.Civ.App.—Corpus Christi 1978, no writ); see Poth v. Roosth, 146 Tex. 7, 202 S.W.2d 442 (1947); Brown v. Eubank, 378 S.W.2d 707 (Tex.Civ.App.— Tyler 1964, writ ref’d n.r.e.).
The crucial question in this case is the nature of Hunt’s suit. The proper test for determining whether the case is one of boundary is as follows: If there would have been no case but for the question of boundary, then the case is necessarily a boundary case even though it might incidentally involve a question of title. Plumb v. Stuessy, supra.
All the parties involved have continually treated this case as a boundary dispute. At the outset of the trial, counsel for Hunt stated:
In any event, Your Honor, the dispute, the issue here is precisely where the boundary line between Mr. Heaton’s property and Mr. Hunt’s property lies. And that has become disputed through the years which some ancient surveys of the property and some documents which really don’t reflect the precise location of a railroad right of way. Mr. Heaton claims the railroad right of way, Mr. Hunt claims the property immediately adjacent to the north thereof. And that is the sole issue in the Plaintiff’s view which is before the Court here today....
Heaton’s attorney replied in part as follows:
As counsel said, this is a boundary question. And it involves a right of way of the old Santa Fe spur east of 149 into the town of Montgomery just east of where the depot was.
The testimony of both Hunt and Heaton demonstrates the dispute was over the location of the boundary between Hunt’s property and the abandoned railroad right-of-way owned by Heaton. Hunt testified that his southern boundary line was pointed out to him by F.G. Huffman who had surveyed the property. Heaton testified that after he bought the abandoned railroad right-of-way, the Hunts complained when he started to clean it up. At this time, a dispute arose over the boundary which resulted in this court action.
Heaton did not dispute that Hunt is the owner of the property north of Heaton’s property. Heaton testified in part:
Q. And do you dispute today that Mr. Hunt is the owner of the property north of yours?
A. I do not.
Q. Alright. And the question that we’re really here to determine today is not whether Mr. Hunt owns any *681property but really what property he owns; isn’t that correct?
A. Well, I understand that it’s the north boundary of the railroad track, railroad right of way.
Q. That we’re trying to locate here?
A. Right.
Q. That’s right. Okay. So you don’t have any dispute of Mr. Hunt owning property there, do you?
A. North of that.
Q. Right. But whether or not we can find out what that property line is really what we’re here to do today, isn’t it?
A. The north boundary of the railroad right of way.
The record clearly demonstrates that this case involves only a dispute over the proper boundary line and the parties have acknowledged the case as a boundary dispute. Therefore, Hunt was not required to establish his superior title to the property in question in the manner required by a formal trespass to try title action. Plumb v. Stuessy, supra. Consequently, his failure to timely file his abstract is not fatal to his suit to establish the correct boundary line.
The trial court erred in granting the instructed verdict for Heaton at the close of Hunt’s case. This error would require a reversal of the judgment and a remand of the cause for a new trial. In any event, the abstract was filed by Hunt some thirty-nine days before the trial. Since Hunt’s title was not in dispute, the delay in filing the abstract could not have prejudiced Heaton in any manner. Any error in not timely filing the abstract was therefore harmless. Rule 434, Rule 504, Tex.R.Civ.Pro. McGraw v. City of Dallas, 420 S.W.2d 793 (Tex.Civ.App.—Dallas 1967, writ ref’d n.r.e.).
I would reverse the judgments of the lower courts and remand the cause to the trial court for trial on the merits.
SPEARS, J., joins in this dissent.