Plaintiffs, alleging fee simple ownership of land adjacent to the south jetty right of way and Galveston Ship Channel, brought this action in trespass to try title against the State of Texas, the State Highway Commission and its members, the State Highway Engineer and District Engineer, the Galveston ferry manager and several ferry boat captains of the State Highway Department, all as individuals and in their official capacities. In the alternative, they alleged defendants constructed a ferry landing and dredged a channel over the property for operation of a ferry and sought to enjoin the asserted trespass. The trial court dismissed the State as a party on its plea to the jurisdiction.
The remaining defendants presented similar pleas to the jurisdiction, asserting they acted in official capacities as agents or employees of the State, pleading sovereign immunity and that legislative consent to suit had not been granted. These pleas were overruled. They filed a not guilty plea; alleged in abatement that the land in controversy lay within a navigable harbor of a port of entry, and the Federal Government was an indispensable party; that contractual rights had intervened; that the public had acquired an easement over the submerged land. The land involved is within the boundaries of the Menard patent considered in City of Galveston v. Menard, 23 Tex. 349. Plaintiffs and defendants presented motions for summary judgment. The motion of defendants was overruled; that of plaintiffs was sustained. Judgment for title and possession was rendered for plaintiffs, and defendants were enjoined from operating ferry boats over, or from going on the land.
The determinative question in this case is whether this is a suit against the State without its consent. If it is, the court was without jurisdiction.
There is language in Whatley v. Patten, 1895, 10 Tex.Civ.App. 77, 31 S.W. 60, writ, ref., and in Imperial Sugar Co. v. Cabell, Tex.Civ.App.1915, 179 S.W. 83, no writ hist., which supports the contention that this is not a suit against the sovereign and is maintainable without legislative consent. Refusal of the application in the Whatley case in 1895 merely meant the Supreme Court approved the result. It did not necessarily mean the reasoning was approved. It is to be noted that in that case the State voluntarily intervened to assert title, thereby taking the present question out of the case. That suit was against defendant solely as an individual, although the record established he held possession only in an official capacity. The Cabell case was likewise against defendants solely as individuals. Both cases bottomed the decision on United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (a 5-4 decision) and the Texas decision in Stanley v. Schwalby, 1892, 85 Tex. 349, 19 S.W. 264. Subsequent to the Whatley decision and United States v. Lee, the Supreme Court of the United States in Stanley v. Schwalby, 1896, 162 U.S. 25, 16 S.Ct. 754, 40 L.Ed. 960, in which only individual defendants were sued in a Texas trespass to try title action (although they disclaimed, alleging they were possessed as officers of the United States), pointed out that in United States v. Lee the defendants were sued for possession only; and that a Texas trespass to try title action involved title as well as possession. The Lee case was distinguished by showing the judgment there “was simply a judgment that the plaintiffs recover against the individual defendants the possession of the lands * * * that the United States could not be sued directly * * * as a defendant except by virtue of an express act of congress, and that the United States would not be bound or concluded by the judgment.” The court then *274held that the trespass to try title suit in Texas “was directly against the United States and against their property, and not merely against their officers.” The judgment directed the Texas courts to dismiss as against the United States, and render judgment for the individual defendants. Comments by the Texas Supreme Court on Imperial Sugar Co. v. Cabell, and United States v. Lee are contained in W. D. Haden Co. v. Dodgen, Tex.Sup., 308 S.W.2d 838. The fact that the distinction in Stanley v. Schwalby was not made by Whatley v. Patten or by Imperial Sugar Co. v. Cabell is discussed in 160 A.L.R. 339.
We think the rule applicable here is that announced in Walsh v. University of Texas, Tex.Civ.App. 1942, 169 S.W.2d 993, writ ref., a trespass to try title action in which the University of Texas and its Board of Regents were defendants. The named defendants were not sued as individuals. The court held:
“If the plaintiffs recover the title they pray to recover the recovery is against the State. Likewise the damages which plaintiffs seek to recover are not damages against the parties named as defendants but against the State * * * Since the property of the University of Texas is the property of the State, a judgment' against any party other than the State would be an empty, useless thing * * * Of course, no officer of the State can commit a wrong in the name of the State and avoid personal liability, neither can a party recover a judgment affecting the rights, title and property of the State in a suit brought against its officers and in which it is not properly made a party * * *. In our opinion * * * the suit is one against the State and all the relief sought is against the State without an allegation and showing of consent and, therefore, the court without jurisdiction to hear it.”
No relief is sought against defendants as individuals other than that prayed for against them in their official capacities. We believe this is such a suit against the State as is not maintainable without consent. The judgment of the trial court is reversed and judgment is here rendered that the injunction be dissolved and that the action be dismissed for want of jurisdiction.