delivered the opinion of the Court.
The nature of this suit is accurately reflected in the following statement appearing in the opinion of the Court of Civil Appeals (339 S.W. 2d 272, 273) :
“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 capactities. 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 parties will be referred to here as plaintiffs and defendants. The State of Texas went out of the case on its plea of sovereign immunity and our reference to “defendants” will not include the State.
The defendants appealed from the judgment of the trial court and, having superseded the judgment, have continued to operate the ferry boats over the land in controversy.
*551Defendants presented six points of error in their brief in the Court of Civil Appeals. The first point asserts that the suit against the members and employees of the State Highway Commission is a suit against the State and that the defendants’ plea to the jurisdiction based on sovereign immunity should have been sustained. The second and third points assert that the judgment awarding plaintiffs title to and possession of the land in controversy is erroneous because plaintiffs’ title is subject to rights of the public to use the land and is burdened with a servitude in favor of the public for right of access between the streets of the City of Galveston and the channel of Galveston Bay. The fourth point asserts the United States is a necessary and indispensable party to the suit. The fifth point complains of the admission in evidence of certain letters, exhibits and pleadings, and the sixth point complains of excessiveness of the supersedeas bond required by the trial court.
On original submission the Court of Civil Appeals sustained the first point of error, reversed the judgment of the trial court, dissolved the injunction and dismissed the suit. On rehearing a majority of the court held that legislative consent was not prerequisite to maintenance of the suit against the defendants, and, upon the basis of that holding, affirmed the judgment of the trial court without considering or passing on the other points of error. 339 S.W. 2d 272. The defendants have before this court essentially the same questions presented by their points of error in the Court of Civil Appeals. We granted writ of error primarily to review the question raised by the first point.
Is legislative consent to sue the state prerequisite to maintenance of suit against the defendants? On the record before us, we hold it is not.
The land in controversy lies between the U. S. Government jetty, constructed on Galveston Island, and the channel of Galveston Bay. It is submerged land. Defendants do not question plaintiffs’ title to the land. That they do not do so is understandable. Through a regular chain of conveyances plaintiffs hold the title adjudged by this court in City of Galveston vs. Menard, 23 Tex. 349, to be good in Menard. What the defendants do contend, as is apparent from their second and third points of error, is that plaintiffs’ title is a qualified title, subject to certain rights of the public and burdened with a servitude in favor of the public. They assert rights of use and occupancy only as state *552officials and employees, acting for and on behalf of the. state, and claim no right of use and occupancy as individuals.
When suit for recovery of title to and possession of land, filed without legislative consent, is 'not against the state itself, but is against individuals only, the mere assertion by pleading that the defendants claim title or right of possession as officials of the state and on behalf of the state, will not bar prosecution of the suit. We did not hold otherwise in Griffin vs. Hawn, 341 S.W. 2d 151. We did hold in that case that a plea to the jurisdiction based on sovereign immunity was not available to the individual defendants in the absence of pleadings asserting title to the land in controversy to be in the state. On the record before us in that case we were required to go no further. The record in this case requires that we go further, and we do so without reluctance.
One who takes possession of another’s land without legal right is no less a trespasser because he is a state official or employee, and the owner should not be required to obtain legislative consent to institute a suit to oust him simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting for and on behalf of the state. Well reasoned and authoritative decisions of the Supreme Court of the United States and of the courts of this state support the view that a plea of sovereign immunity by officials of the sovereign will not be sustained in a suit by the owner of land having the right of possession when the sovereign has neither title nor right of possession. United States vs. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171; Stanley vs. Schwalby, 85 Tex. 348, 19 S.W. 264, reversed, 147 U. S. 5081; Whatley vs. Patten, Tex. Civ. App., 31 S.W. 60, writ refused; Imperial Sugar Co. vs. Cabell, Tex. Civ. App., 179 S.W. 83, no writ history. The rationale of the rule is that in such cases possession is not m fact held for the sovereign but it wrongfully held.
When in this state the sovereign is made a party defendant to a suit for land, without legislative consent, its plea to the jurisdiction of the court based on sovereign immunity should be sustained in limine. But the cited cases clearly recognize that when officials of the state are the only defendants, or the only remaining defendants, and they file a plea to the jurisdiction *553based on sovereign immunity, it is the duty of the court to hear evidence on the issue of title and right of possession and to delay action on the plea until the evidence is in. If the plaintiff fails to establish his title and right of possession, a take nothing judgment should be entered against him as in other trespass to try title cases. If the evidence establishes superior title and right of possession in the sovereign, the officials are rightfully m possession of the sovereign’s land as agents of the sovereign and their plea to the jurisdiction based on sovereign immunity should be sustained. If, on the other hand, the evidence establishes superior title and right of possession in the plaintiff, possession by officials of the sovereign is wrongful and the plaintiff is entitled to relief. In that event the plea to the jurisdiction based on sovereign immunity should be overruled and appropriate relief should be awarded against those in possession. That those wrongfully claiming title or the right of possession are sued in their official capacities as well as individually cannot alter the rule. To hold otherwise would exalt form over substance. If the claim is only for and on behalf of the sovereign, it cannot be material whether the “official” nature of the claim is asserted in the plaintiffs’ petition or in the defendants’ answer. The judgment against the individuals, predicated as it is upon an incidental determination that title and right of possession is in the plaintiff, is not binding on the sovereign.
United States Supreme Court decisions in this field were reviewed at length by both Chief Justice Vinson, writing for the court, and Justice Frankfurter, dissenting, in Larson vs. Domestic and Foreign Commerce Corp., 337 U.S. 682, 93 L.Ed. 1628. While they were in disagreement as to whether the rule as we have stated it applies also in cases involving disputes as to contractual rights to personal property, both affirmed its applicability in cases in which an unconstitutional taking or damaging of property without due process and without just compensation is asserted. Walsh vs. University of Texas, Tex. Civ. App., 169 S.W. 2d 993, writ refused, is cited by defendants for a different conclusion. That decision seems to be distinguishable only on the ground that the defendants were not sued as individuals. We doubt that that is a sound basis of distinction. The decision is out of harmony with the long line of prior decisions by our courts and by the Supreme Court of the United States and may no longer be regarded as authoritative.
Wé are thus confronted with the necessity of determining whether the plaintiffs’ admitted title is servient to the uses being *554made of the land by the defendants. Defendants have dredged out the soil in the area between the jetty and the channel of the bay and have placed pilings in the area to provide a channel and landing for their ferry boats, thus completely appropriating the area to their own use to the exclusion of the plaintiffs and the uses to which they may wish to put it. The principal reason given by the defendants for their appropriation and use of the land is that plaintiffs’ title is subject to the right of the public to use the premises for navigation and other reasonable purposes. Defendants urge that the original grant to Menard did not, and could not, convey these public rights to an individual. This question was long since foreclosed against defendants’ position by the decision of this court in City of Galveston vs. Menard, 23 Tex. 349.
Plaintiffs’ title had its inception in a grant by the Republic of Texas to Michael B. Menard. It would serve no useful purpose to review at length either the circumstances surrounding the grant or the opinion of this court in the Menard case. The grant admittedly included the submerged land in controversy here. By an Act of the Congress of the Republic of Texas on December 9, 1836, all of the right, title, claim and interest which the Republic had in one league and one labor of land, lying and situate on, and including the East end of Galveston Island, was relinquished to and vested in Michael B. Menard, and the President of the Republic was directed to quitclaim the land to Menard upon payment of the sum of $50,000. A fifteen acre tract and a suitable block of lots for the erection of a customs house were reserved from the grant. The reserved tracts are not involved in this suit.
Pursuant to the Act of Congress, President Houston, on January 25, 1838, patented to Menard land described by metes and bounds as surveyed by R. C. Trimble and William Lindsey. The northern boundary of the grant ran “eastwardly with the Channel of the Harbor in the Bay of Galveston and with the general course of said [Galveston] Island at the distance of at least one hundred and fifty varas from the shore.”
The City of Galveston was incorporated by an Act of the Congress of the Republic of Texas, approved February 5, 1840. 2 Gammel’s Laws of Texas 440.
In 1851, the Legislature of the State of Texas passed an Act, approved December 8, 1851, (3 Gammel’s Laws of Texas 1043) *555granting certain powers to the City of Galveston. Section 1 of the Act granted the City the power of opening the streets running north and south on the bay side of the City to the channel and to erect wharves at the end of the streets. Section 3 granted to the City power “to fill such portions of the flat covered by water, between ordinary low tide water mark, and the channel on the Bay side.” Section 4 provided that nothing in the third and fourth sections should be “construed to affect any legal title to wharf privileges held by persons in said City.”
Another Act of the Legislature, passed and approved February 16, 1852 (3 Gammers Laws of Texas 1229) and expressly designed as supplementary to the Act of December 8, 1851, declares that nothing in the first Act “shall be so construed as to alter or impair any of the rights heretofore conveyed to ‘Michael B. Menard, his heirs and assigns.’ ”
The grant to Menard and the other congressional and legislature Acts listed above were before the court when City of Galveston vs. Menard was decided. The power and intent of the Republic to grant the submerged area included in the patent to Menard in derogation of public rights of navigation, etc., was fully considered. The court confirmed the existence of both power and intent and recognized the absolute right of Menard and his grantees to fill up and use the submerged areas, subject only to the right of the City to open streets across the land to the channel and to build and operate wharves at the end of the streets. Defendants cite Illinois Central Railroad Co. vs. Illinois, 146 U.S. 387 and Darling vs. City of Newport News, 249 U.S. 540 as reaching results contrary to the result reached by this court in the Menard case. We need not review the cited cases, for we regard our own decision as controlling. Valuable property rights have been acquired and vast sums of money expended on the basis of our decision upholding the validity of the grant and delineating the respective rights of the patentee and his grantees on the one hand and of the public as represented by the City of Galveston on the other. Plaintiffs do not seek by this suit to interfere with the passage of light craft over their land, and there is no indication that they will interfere with that type of public use while the land is covered with water. What they do seek is to prevent the defendants from confiscating their property, without just compensation, and appropriating it to a use inconsistent with their rights.
The record discloses that in 1888 the United States obtained *556a fifty foot easement, roughly along the shore of the east end of Galveston Island, from plaintiffs’ predecessors in title, and erected a jetty over the easement running in a Northeasterly direction at the point in controversy. The streets of the City running north and south are numbered streets. First to Sixth Streets lie east of the County sea wall and as surveyed on the ground have a northern terminus at Avenue A, a considerable distance south of the jetty right-of-way. If Second Street were opened on its direct northern course it would intersect the jetty.
Defendants began the ferry operations in 1943. On March 3, 1944 the City of Galveston adopted two resolutions presented by the State Highway Department. The resolutions, considered together, recited that the State Highway Department desired to expend certain funds within the corporate limits of the City constructing “State Highway No. 87 from Seawall Boulevard to New Galveston Ferry Landing through the City of Galveston over Second Street and new location”, and agreed that the State Highway Department might maintain the improvements, that no encroachments on the right-of-way would be permitted, and that the speed limit thereon would not be fixed at less than 30 miles per hour. Pursuant to that authority the State Highway Department purchased from plaintiffs’ predecessor in title the necessary right-of-way to build the highway. The highway ties to the north end of Second Street at Avenue A from which point it curves to the east, crossing and passing beyond any future direct extension of First Street, thence curving back in a slightly northwesterly direction to its intersection with the United States jetty easement. The tract in controversy, although of much greater width than the streets of the City of Galveston, lies on the north side of the jetty directly opposite the terminus of the highway.
A map of a section of the east end of Galveston Island showing City streets, State Highway No. 87, the U. S. jetty right-of-way and the area in controversy is attached.
The court recognized in the Menard case, as indicated above, that the grant to Menard was subject to the right of the City of Galveston to open streets running north and south across the plaintiffs’ land to the channel of Galveston Bay. Defendants assert that their appropriation of the land in controversy is an exercise of that right. Plaintiffs suggest several reasons why the appropriation of their land cannot be justified on the basis *558of the authority of the City to construct and open streets to the channel of the bay. We need to consider but one.
*557
*558The construction of the highway from the terminus of Second Street at Avenue A to the jetty easement is not, and on the face of the record before us does not purport to be, City action extending Second Street to the channel of the bay. The resolutions of the City Council do not authorize an extension of Second Street; they only authorized the State Highway Department to construct a state highway within the City’s corporate limits. Whether under the decision in City of Galveston vs. Menard the City could have constructed an extension of a street outside of the original corporate limits, or departing from the original course of the streets as surveyed, and thereby have established a right to use submerged land in constructing the ferry channel and landing are matters we find unnecessary to decide.
We conclude that plaintiffs’ title to the land in controversy is not servient to the public rights which the defendants assert.
The United States of America is not a necessary party to the suit. The plaintiffs seek only to recover the title to and possession of their land from the defendants and to enjoin their use of the land. Neither the adjudication of title and right of possession to plaintiffs, nor the injunction, interfere in any way with the rights and powers of the government of the United States.
The exhibits, letters and pleadings admitted in evidence over defendants’ objection are immaterial to a proper decision of the case.
The record before us indicates that the trial judge did not abuse his discretion in fixing the amount of the supersedeas bond at $7,500.00 Moreover, the defendants having made bond in that sum have no sound basis for complaint.
This • disposes of all the questions of law in the case. The defendants suggest that dire consequences will follow an affirmance of the judgments below and the termination of the operation of the ferry boats. ' If those consequences ensue, responsibility rests with the State of Texas. The State was made a party to the plaintiffs’ suit. While it had a legal right to file its plea of sovereign immunity, it was not required to do so. Under the express provisions of Article 3269, Vernon’s Annotated Texas Statutes, the State, by remaining in the suit as a party de*559fendant, could have challenged the plaintiffs’ title and, alternatively, could have sought condemnation of the plaintiffs’ property. Had it done so, operation of the ferry could not have been enjoined. City of Houston vs. Adams, 154 Tex. 448, 279 S.W. 2d 308. The defendants remaining in the case could not assert the rights and remedies provided by Art. 3269. Only the State itself could assert them. If interruption of public travel and public inconvenience follow this decision it cannot be attributed to evil purposes of the plaintiffs; it can only flow from the reluctance of the State to litigate its right to appropriate and use the property and its failure to condemn by cross-bill and to pay just compensation for the property.
The judgments of the Court of Civil Appeals and trial court are affirmed.
For a full history of this litigation, see also U.S. vs. Schwalby, 8 Tex. Civ. App., 679, 29 S.W. 90; 87 Tex. 604, 30 S.W. 435; Stanley vs. Schwalby, 162 U.S. 255.