W. Y. McFarland v. John W. Hall's Heirs, 17 Tex. 676

Wheeler, J. The principal question upon this appeal is, whether the decree of the 12th of October, 1854, was final and conclusive of the matters therein adjudicated. It certainly-determined all the issues of fact raised by the pleadings ; it distinctly ascertained and adjudicated the rights of the parties ;-and settled definitively their respective interests in the subject matter of the suit. It put an end to all matter in litigation in the case. After it was rendered, nothing remained but to carry'it into effect, or execute the judgment of the Court.

This would seem to bring it within the legal definition of a final judgment. It is not perceived that there is, in this respect, any substantial distinction to be taken, between the present case and the case of Cannon v. Hemphill, (7 Tex. R. 184,) where the decree was held by this Court a final decree.

It was there said, “ In the decree under consideration, “ the respective shares of the parties in the land were decreed ; “ the costs were ordered to be paid ; and Commissioners1 were “ appointed to divide the land, in conformity with the decree. “ Although, as matter of convenience, it might be expedient to “ hold that appeals from such decrees should not be permitted “ until action is had upon the report of the Commissioners, yet “ the merits of the case are certainly determined by the decree, “ and the rights of the parties concluded ; nor should such decree be controlled or revised, unless upon appeal or writ “ of error.

The only question that could properly arise, “ on the report of the Commissioners, would be, as to the con- “ formity of the division with the rules settled by the decree, “and such as would arise upon the acts of the Commission- “ ers.” (Id. 196-7.) There is one consideration adverted to in the Opinion, which is peculiar to our law of procedure, that is, that the trial of the issues of fact may be by jury.

And where, as in this case, a jury is waived, and the Court is substituted for the jury in deciding upon the issues of fact, the decision has the same conclusive effect assigned to it, as the verdict of a jury. It would scarcely seem compatible with this mode of trial, that, a decree rendered upon a verdict, in a case of equitable cognizance, should have a less conclusive effect than a judgment in a case of legal cognizance.

The verdict is equally conclusive of the facts in either case ; the decree, or judgment, is but the legal consequence of the establishment of the fact 5 and it should make no difference, it would seem, in respect to the finality and conclusive effect of either, that their manner of execution may be different. That the costs were not adjudged in this case can make no difference. Costs may be awarded either by an interlocutory or final judgment.

The judgment is not the less final, as respects the rights of the parties, which it adjudicates, because the disposition of the costs was reserved until after the report of the Commissioners. As the decree disposed of the issues, and settled, definitively, the rights of the parties, it was not subject to revision, in the sáme Court, at a subsequent Term, unless for causes which would authorize a new trial or review. (Merle v. Andrews, 4 Tex.

R. 200.) If the appellees had shown sufficient matter, in opposition to the decree, to entitle them to have it set aside after the Term, and to a review, or new trial, upon the merits, the form of the proceeding would not be material. While the parties were before the Court, for any purpose, anew original petition or proceeding was unnecessary. The party might state their grounds for a new trial or review in the mode here pursued, as well as by a new independent proceeding. But there manifestly are no sufficient grounds disclosed to entitle the party to have the judgment of a former Term set aside or reviewed.

The decree conformed to the allegations of the parties. The petition averred that a portion of the town tract was not surveyed, or laid out into streets, &c., and the decree ascertained and decides that the particular strip of land, in question, was not so surveyed and laid off, and adjudges it subject to the partition sought by the petition. The appellees, in their answer.set up no exclusive right in this strip of land. They made no objection to the decree, by which it was adjudged to be partitioned. They do not show any error, or mistake in the rendition of the decree.

It was the only decree which the Court could legally render, upon the case, which they, by their pleadings, had submitted to the Court for adjudication. The only ground really presented for setting it aside, is, that the appellees did not ask of the Court as favorable a decree as, upon the facts within their knowledge, outside of the record, they might have asked. If this would be a sufficient ground to reopen the judgment of a former Term, there would never be an end of litigation.

The decree makes no disposition of the ferry ; but no disposition was sought to be made of it; it remains the exclusive property of the appellees. The ferry does not necessarily include the proprietorship of the lands adjacent to its landings. It is a franchise, which, in general, has its termini at the water’s edge. (15 Pick, 254 ; Bouv. L. Dic. tit.

Ferry.) But the decree does dispose of the land now claimed by the appellees ; to which they did not then assert any exclusive claim ; but which claim, if they intended to assert it, they should have asserted when the right and title of the parties were the question before the Court for adjudication. If the Court had erroneously decided against their claim of right, the decree would not be the less final and conclusive, until reversed on error ; or set aside in a proceeding for that purpose. To maintain such a proceeding some sufficient legal cause must be shown.

There is none disclosed by the record ; and we are therefore of opinion that the Court erred in its judgment, setting aside the decree, and retrying the case anew upon new issues, after the Term, instead of confining its action to the report of the Commissioners, and matters arising therefrom ; for which the judgment must be reversed and the cause remanded. Reversed and remanded.