On Appellee’s Motion for Rehearing
In its motion for rehearing, appellee calls our attention to the fact that by trial amendment it pleaded the four year statute of limitation as a bar to the right of appellant to any recovery herein. It insists that the grant to it, as evidenced by the deed from the Levee District dated January 29, 1929, was made upon a condition subsequent rather than a condition precedent, that the four year statute of limitation applies to an action to terminate a grant made upon a condition subsequent and that the right of appellant’s predecessor in title to terminate the grant arose, if at all, in 1930 when a part of the premises was first used for street purposes.
We seriously .doubt whether any statute of limitation was available or could have become available at any time to the County of Dallas or to appellee as a defense against the enforcement of any right which might have accrued to the Levee District under the facts of this case because each was a public corporation and each was exercising governmental functions in the acquisition of any right, title or interest which they ’or either of them might have had in or to any part of the land here in controversy. S3 C.J.S., Limitations of Actions, § 17(b) and (d), p. 949; Gulf Bitulithic Co. v. Nueces County, Tex.Civ.App., 297 S.W. 747; Nueces County et al. v. Nueces County Drainage District No. 2, Tex.Civ.App., 5 S.W.2d 620 (er. ref.); Jackson v. Nacogdoches County, Tex.Civ.App., 188 S.W.2d 237.
Furthermore, even though limitation was available to appellee as a defense against the cause of action asserted by appellant and even though the grant from the Levee District to appellee as evidenced by deed dated January 29, 1929 was made upon •a condition subsequent rather than a condition precedent, we do not think the four year statute of limitation as embraced in Art. 5529 of Vernon’s Tex.Civ.Stats. is applicable to this suit. The dominant purpose of the suit was to- recover the title and possession of the land sued for, the termination of the grant evidenced by the deed dated January 29, 1929 being incidental only to the ultimate right of appellant to recover that for which he sued. Moreover, the violation of the condition upon which the grant was made did not automatically terminate the agreement but merely gave rise to the exercise of the reserved right of the Levee District to terminate at its election. We find no evidence that the Levee District knew the condition upon which the grant was made had been breached or that it ever attempted to exercise its right to terminate the agreement because of such breach. Until the Levee District or its assignee knew or in the exercise of ordinary care and diligence should have known that the condition had been breached, limitation would not begin to run against either to terminate the agreement ■by an exercise of the right of re-entry upon the premises.
Appellee also- asserts in its motion for rehearing that this cause is being remanded so that appellant may introduce evidence to show the specific property which he may be entitled to recover upon a retrial of the case. We did not intend to indicate that purpose by anything that was said in the original opinion. On the contrary, it was our intention in remanding the cause for *698another trial to afford to appellee an opportunity to show by competent evidence the specific portion of the entire tract in controversy which might have been occupied and used for street purposes for a sufficient length of time and under such circumstances as to vest in the public a prescriptive right to the continued use of the same for street purposes, in order that appellee might thereby establish an affirmative defense against the right of appellant to recover presently the possession of a part of the entire tract of land which we think he showed he now owns in fee simple.
After due consideration of appellee’s motion for rehearing, we have concluded that it should be overruled.