On Rehearing.
Appellant has filed a motion for rehearing herein, supported by a very able argument, that justly merits our further notice. It is earnestly insisted that, notwithstanding the defects in the proof of title pointed out in our original opinion, the fact that the land (min-erais) in controversy was not included m the mortgage of the Waco & Northwestern Division, and therefore was not excepted in the deed from Dillingham,, special master commissioner, to Olcott, is shown with requisite certainty because the land in controversy was acquired by the Houston & Texas Central Railway Company by virtue of script issued April 16, 1868, and the said Houston & Texas Central Railway Company did not acquire title to .the Waco & Northwestern Division and the lands granted to said Waco & Northwestern Railroad Company until May, 1873, and since the said mortgage on the Waco & Northwestern Division was executed on June 16, 1873, and only included properties purchased by the Houston & Texas Central Railway Company in connection with the acquisition of the Waco & Northwestern Railroad, the lands covered by such mortgage could not include the land in controversy.
The proposition is sound, and if the several instruments disclosed all the facts recited, we think our holding that there was a failure to prove title in this particular respect would be erroneous. We find nothing in the record, however, to show that the script issued April 16, 1868, under which the land in controversy was located, surveyed, and patented, was issued to the Houston & Texas Central Railway Company. For aught the record discloses, the script may have been issued to the Waco & Northwestern Railroad Company.
While the record, by reference to the act providing for the merger of the Waco & Northwestern Railroad Company with the Houston & Texas Central Railway Company, shows the date to have been May 24, 1873, there is nothing to show the date when the Waco & Northwestern Railroad Company acquired the script or other evidence of right to the 10,240 acres of land per mile of completed road, 6,000 acres per mile of which was covered by said mortgage. For all the record discloses, the issuance of this script may have antedated April 16,1868. For these reasons we are compelled to overrule appellant’s contention on this point.
It is also contended that appellees having specially pleaded their title, which failed of proof, as determined on a former appeal of the case, they are not in position to claim the benefit of any uncertainty as to whether the land (mineral interests) in controversy was or was not shown to be included in the documentary proof of appellants’ title. In support of this contention, two propositions are urged: One, that under such circumstances the prior possession of appellant is sufficient to support judgment in its favor; and, the other, that in such case proof of an outstanding title is not available as a defense. The answer is that the possession that under such circumstances may be sufficient to support a recovery means, we think, an actual possession, which the record does *794not show. That kind of possession would not be shown by title papers only.
The other point is not applicable. True, appellees could not defend against prima fa-cie proof of ownership by showing an outstanding title other than as specially pleaded. But this principle in no manner relieves the plaintiff of making prima facie proof of his own title. The very authorities quoted from by . appellant in its brief show this to be the case. Appellant, in its argument, underscores the statement:
“It is a well settled principle of law that in such cases as this the only burden placed upon the plaintiffs is to show such title as will enable them to recover, if not defeated by the special defenses pleaded.”
But we have held that appellant here failed to prove any title whatever, which answers completely this argument.
We are asked to reverse the case for a new trial, even though we determine we were not in error as to the matters discussed in our original opinion. We are impressed with the reasons urged, but we know of no precedent that would warrant us in fully approving the action of the trial court, but at the same time reversing and remanding the case. We doubt if such a course is within the legitimate discretion of this court.
The motion for rehearing is accordingly overruled.