Action in trespass to try title by Cornelia G. Goodrich and others, hereinafter referred to as plaintiffs, against the West Lumber Company, hereinafter called defendant, and others, for the recovery of four leagues of land in Polk County, granted to A. Viesca by the Government of Coahuila and Texas in 1833, and for the value of timber cut by defendant on a portion of the grant, alleged to contain 2027 acres, more or less.
Upon the trial, plaintiffs dismissed as to one and settled with other defendants, leaving the West Lumber Company the sole defendant. . . .
Defendant, in addition to general denial and plea of not guilty, pleaded the statutes of limitations of three, five, and ten years.
The case was tried to a jury and submitted on a general charge. Included in the general charge, was the issue as to the amount of timber, if any, cut by the defendant, and the fair and reasonable market value thereof. The jury returned a verdict in favor of defendant, and judgment was entered accordingly. On appeal, the Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment in favor of plaintiffs for the land, and, in addition, for the sum of $30,936.00, the value of the timber cut and removed from the land. On motion for rehearing, the Court modified its original judgment, entering judgment in favor of plaintiffs for a less quantity of land and for $25,483.50, with interest thereon at the rate of six per cent. per annum from December 5, 1911. 182 S.W. 341.
A motion by plaintiffs to dismiss the application for writ of error, on the ground that the Supreme Court was without jurisdiction, the case being one of boundary, was considered and overruled; and the Committee of Judges granted the writ. Thereafter plaintiffs filed a motion to dismiss the writ on the same ground urging that the case of Schiele v. Kimball,194 S.W. 944, decided by the Supreme Court subsequent to the granting of the writ, was decisive against jurisdiction. No action was taken upon this motion, other than the entry of an order that it be considered with the case.
Under Articles 1591, R.S. 1911, judgments of the Courts of Civil Appeals are made final and conclusive, and no writ of error is allowed thereto from the Supreme Court, in all "cases of boundary".
"Cases", as used in the above referred to article, is synonymous with "suits", "actions", or "causes". A case is a state of facts involving a question, or questions, for judicial inquiry and determination. It may, consistently with the rules of pleading, embrace several distinct controversies or causes of action, and the several controversies or causes of action so involved will constitute the case. *Page 17
This suit involves a determination of the true boundaries of the Viesca grant, and the recovery of damages for trespass in cutting and removing timber from land which plaintiffs assert is a part of the Viesca grant. There are two separate and distinct causes of action, properly joined in one suit. It is true, that in order to a recovery for the alleged trespass, it was necessary that plaintiffs establish the boundaries of the grant as contended for by them. But the establishment of the boundaries favorable to plaintiffs would not determine the cause of action in trespass; there would remain the inquiry whether timber had been cut or removed; and, if so, the quantity and its value. Further, the defenses asserted to one cause of action may be wholly inapplicable to the other.
Plaintiffs could have filed a suit having for its purpose the establishment of the boundaries of the grant, and seeking no recovery for a trespass upon the land. Whatever the form of action, if this was in fact the controversy, the dominating question of the entire case, it would determine its character as a "case of boundary". Schiele v. Kimball, 194 S.W. 944.
On the other hand, plaintiffs could have brought an action solely for the recovery of damages in trespass. They could not recover in such action, without first establishing that the land claimed to have been trespassed upon was a part of the Viesca grant owned by them, but the fact that the location of the boundaries of the grant was involved, would not have made it a "case of boundary".
Herein these two separate and distinct causes of action, upon which separate and distinct suits could have been brought, are united and together constitute the case. The causes of action are separable, but the case is one. The test of jurisdiction is the character of the case. If all the issues converge in the establishment of boundaries, so that the right of the whole case depends thereon, and but for the question of boundary there would be no case, the case is one of boundary and the Supreme Court without jurisdiction. Schley v. Blum, 82 Tex. 551,22 S.W. 667; Cox v. Finks, 91 Tex. 318,43 S.W. 1; Wright v. Bell, 94 Tex. 577, 63 S.W. 623.
The statute does not make judgments of courts of civil appeals conclusive on all questions of, or controversy concerning, boundary; but gives finality to such judgments only in "cases of boundary". As stated by the Supreme Court in Steward v. Coleman County, 95 Tex. 445, 67 S.W. 1016: "Cases which are not wholly cases of boundary may involve as necessary to their decision the location of boundaries, and this does not thwart the jurisdiction of this court to determine every question of law arising in them. This distinction arises from the fact that the jurisdiction is withheld in cases of boundary and is not denied over questions of boundary arising in cases of a different kind." *Page 18
We conclude that the case is not one of boundary, and that the jurisdiction of the Supreme Court extends to the case in its entirety. The motion to dismiss the writ of error should therefore be overruled.