(dissenting).
After carefully considering appellees’ motion for rehearing and our original opinion, the judgment of the trial court should be in all things 'affirmed. In the original opinion, to which I then concurred and to which I now, on this motion for rehearing, enter my dissent, we held that when Oliver Letot filed the suit in 1935 against E. E. Widner, he thereby elected to foreclose his vendor’s lien on the land involved in this suit, and' that such election effectively barred his right to sue for the land itself under his superior title. There was no occasion for such holding, inasmuch as ap-pellees do not contend that Letot ever attempted to recover the land for himself under his superior legal title. Appellees’ contention, which I believe sound, is that the Letot suit was brought to foreclose the express vendor’s lien which he had retained in his deed when he originally sold this land to Widner. Widner, the original ven-dee, had conveyed this entire tract of land to the Forest Lawn Company, which company was to operate thereon the Forest Lawn Cemetery. This Company in turn allegedly conveyed the parks, park reserves, walkways, etc., in the cemetery, not the realty, to appellant Lot Owners Association in 1923. Appellant was not a party to the foreclosure suit bt ought by Letot, and for this reason it contends that such suit did *801not divest it of its interest in the lands in controversy. However, it is fundamental that a subvendee of land does not have to be a party to a foreclosure suit between the vendor and original vendee. This was the holding of our Supreme Court in the early case of Foster v. Powers, 64 Tex. 247, which case has been consistently followed by our courts to the present time. Other cases to the same effect are Hollis v. Smith, 64 Tex. 280; Bradford v. Knowles, 86 Tex. 505, 25 S.W. 1117; Russell & Seisfeld v. Kirkbride, 62 Tex. 455; Cleveland State Bank v. Gardner, 121 Tex. 580, 50 S.W.2d 786; Reed v. Staley, Tex. Civ.App., 139 S.W.2d 851; Williams v. Coleman-Fulton Pasture Co., Tex. Civ.App., 157 S.W.2d 995 (error refused w.o.m.); Revard v. Wood, Tex.Civ.App., 156 S.W.2d 561 (error refused w.o.m.). See also 14 Texas Law Review 94.
The holding in the majority opinion to the effect that the appellant, Lot Owners Association’s title and interest in the land in controversy was not divested by the Oliver Letot foreclosure suit, is contrary to the holdings of the Supreme Court and other courts in Texas above cited. Under these authorities, Letot retained title to the land when he retained the express vendor’s lien, and the title did not pass to Widner, the original vendee, until the purchase money was paid. The purchase money was never paid by Widner; hence he did not acquire title, therefore could have conveyed none to the Forest Lawn Company, nor could the Company have conveyed title to appellant Association. By the foreclosure suit and resultant sale to the third party, the purchaser acquired whatever right the vendor had in the land. I cannot say that the established rule of law should in any way be altered merely because the land involved in this case had been perpetually dedicated as a cemetery.
When Letot foreclosed his express vendor’s lien, and the cemetery property was later conveyed by the trustee to the corporation, organized for the purpose of operating a cemetery, this corporation acquired the legal title to all of the property. Even though the appellant Lot Owners Association was not a party to that suit, its right, title and interest in and to the land involved was thereby divested, and the corporation could have had it so declared by bringing a trespass to try title suit against the appellant. Letot having elected to affirm the contract and foreclose his lien on the property, barred him from seeking to rescind the sale and recover the land for himself, as held in the majority opinion, and the appellees are not contending that Letot could have exercised both of these rights; nor is it contended that Letot sought to rescind the sale and to recover the land. The majority opinion apparently misconstrued the State’s contention in this connection, and seems to interpret the record as showing that Letot attemped to exercise both of these remedies.
The appellee purchased the 4.4 acres of land here involved as a right-of-way from the purchaser at the foreclosure or receiver’s sale. The appellee’s grantor, having acquired all of the title then in the original grantor or the original grantee, the appellant Association’s title and interest was wiped out and divested by the Letot foreclosure suit, hence it did not own any of the land at the time the State acquired the right-of-way in 1938, and it could not now maintain an action for damages as the result of the alleged taking by the State.
Furthermore, the holding of the trial court should be affirmed for the reason that the record conclusively shows that the appellant Association had breached the conditions of the conveyance to it, as set out in the instrument entitled “Rules and Regulations.” Also, under the record, appellant’s grantor, Forest Lawn Company, had exercised its right of re-entry to the land claimed by the appellant, thereby divesting any title which appellant might have had. The majority opinion summarizes the un-controverted evidence to the effect that appellant Association did not see to it that the cemetery corporation set aside a part of the proceeds of sales to the Perpetual Care Fund, and that it did not maintain and keep up the cemetery proper, or the parks, park reserves, walks, .etc.; but, that it was the corporation and its successors that maintained and kept up the cemetery proper, as well as all of the land that is being *802claimed by appellant. Yet, it will be seen, the majority opinion makes the erroneous holding that the evidence did not undis-putedly show that appellant Association had breached these conditions, but merely raised a jury question as to whether they had been breached. There is no evidence that these particular conditions have not been breached, nor that the corporation and its successors have not re-entered the land for the purpose of maintaining it. In my opinion, the record shows, as a matter of law, that the Lot Owners had breached the conditions of the conveyance and the Company had exercised its right of re-entry to the land, thereby divesting any title which appellant Association had. Jeffery v. Graham, 61 Tex. 481; Teague v. Teague, 22 Tex.Civ.App. 443, 54 S.W. 632; Hudson v. Caffey, Tex.Civ.App., 179 S.W.2d 1017 (error refused w.'o.m.) ; Rosek v. Kotzur, Tex.Civ.App., 267 S.W. 759; Gulf, C. & S. F. Ry. Co. v. Dunman, 74 Tex. 265, 11 S.W. 1094. If, however, the appellant Association acquired some character of title to these lands, which I am of the opinion they did not (because of the express vendor's lien retained by Letot as related above), all of such right, title and interest were divested by their failure to perform the conditions and by the Company’s reentry upon the land.
Then, too, I am of the opinion that the State of Texas can acquire title to a right-of-way by prescription, the same as counties. The record here conclusively shows that the State acquired this 4.4 acres for right-of-way purposes more than ten years before appellant instituted this suit, which is a sufficient period of time for the acquisition of title by prescription. I have been unable to find any Texas case holding that the State can acquire title to land by prescription, but the courts are uniform in holding that counties (subdivisions of the State) can acquire title under the doctrine of prescription. Turner v. Live Oak County, Tex.Civ.App., 107 S.W.2d 1103, error dismissed; Black v. Terry County, Tex. Civ.App., 183 S.W.2d 685; Vidaurri v. Martinez, Tex.Civ.App., 260 S.W. 651; Martinez v. Vidaurri, Tex.Com.App., 275 S.W. 999. Thus, if the public can acquire prescriptive right in roads of counties, it would seem consistent that the State or general public could acquire such rights. The Supreme Court of Louisiana has so-held in the case of Ward v. South Coast Corp., 198 La. 433, 3 So.2d 689. Under the record here, the State having had possession of, exercising jurisdiction and control over the 4.4 acres of land for a period in excess of ten years, the State has acquired title to this land by prescription; hence appellant’s claim for damages is barred by limitation.
The record evidence further shows that several members of appellant Association knew, as far back as 1938, that the State Highway Department was constructing a highway across the cemetery proper; yet none of them made any effort to enjoin the State from bringing the road across the property in question. In such event it would not have been necessary for them to obtain legislative permission before seeking such injunctive relief. They not having done so, but having waited until the State had spent a large amount of money on this project before -they sought legislative permission to bring the present action, such delay was unreasonable and constitutes laches on the part of appellant and its members; hence should not be permitted to take advantage of the State at this late date and make it pay twice for the rights it acquired in good faith. The majority opinion holds that laches would not apply in this case, unless it was mandatory for appellant to seek such injunctive relief. In my opinion, that holding is unsound and contrary to equitable principles.
A careful reading of the record here presented conclusively shows that as to all ■elements of damage which appellant sought to recover, it had plead one measure of damages and attempted to prove an entirely different measure of damages. There is a fatal variance between the pleadings and proof as to the value of the 4.4 acres of land acquired by the State for right-of-way purposes, and as to the value of the remaining land which was not taken. Appellant was therefore not entitled to have such issue submitted to the jury and the trial court was correct in granting appel-*803lees’ motion for instructed verdict. The majority opinion in holding that appellant Association was entitled to recover for the damage to its contractual rights because of the acquisition of the 4.4 acres of land by the State, fails to take into consideration the true nature of such contractual rights. The appellant Association does not claim any of the land contained in the cemetery proper, which is property owned by the Forest Lawn Burial Park, Inc., and which is the land subject to being sold for burial purposes. Appellant claims that it is entitled to the income or interest from a part of the proceeds of the sale of lots by Forest Lawn Burial Park, Inc. It is not entitled to the Perpetual Care Fund, as it has been judicially determined by a District Court of Dallas County, Texas, that the Forest Lawn Burial Park, Inc. was entitled to the fund and that the appellant Association was entitled only to the interest from such fund. Too, it could not use the income from this fund as its own, or in any manner that it saw fit, but could only use it for the purpose of upkeep and maintenance of the Association. It was not entitled to receive the amounts or proportionate part of the sales price as set out in the majority opinion. Appellant in seeking to recover for the loss and damage to its contractual rights, necessarily has to rely upon, and prove damage to the Forest Lawn Burial Park’s cemetery business. There was no established business being conducted in 1938, at which time the State acquired the land through the cemetery, upon which to predicate a claim for the loss of business to the cemetery owners, much less on which to predicate such a claim against appellant. The evidence shows that the cemetery company was bankrupt in 1935 and that the cemetery was operated by a receiver from 1935 to 1937. The success of conducting a cemetery business, the number of its lots that would have been sold, and the amount that would have been deposited to the Perpetual Care Fund, depended on the ability of the cemetery owners in conducting such business, which business was completely foreign to and beyond the control of appellant Lot Owners Association. A careful review of the testimony which the majority opinion holds should have been admitted, will readily show that it would be impossible for anyone to testify to any degree of accuracy or certainty as to the number of burial lots that could have been sold had it not been for the construction of the highway through it. It would be pure speculation for anyone to say that the construction of the highway was the reason that the cemetery was not a successful business, or to say whether it was caused by something within the cemetery company itself, or by the owners’ inability to operate it. Such an element of damage as that being sought is too uncertain and speculative to be recoverable in an action of this nature. Future rights, business losses, and profits are not recoverable where the whole of the estate is taken. “Homestead rights, business rights and all other consequential rights incident to possession of physical properties, are not property taken, damaged or destroyed appertaining to condemnation of real estate as a whole. Such rights must be subservient to the public’s right of eminent domain.” Reeves v. City of Dallas, Tex.Civ.App., 195 S.W.2d 575, 584, writ refused.
The appellant Association, by its own neglect and laches in failing to institute this suit, could not toll the statute of limitation for this long period of time. The action of the trial court in granting appel-lees’ motion for instructed verdict was correct ; hence appellees’ motion for rehearing should be granted, the original opinion withdrawn, and the judgment of the trial court affirmed. I respectfully register my dissent.