City of Victoria v. Schott
In City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S.W. 681 (Tex. Civ. App.--Galveston 1895, no writ), the plaintiff alleged that gravel had been removed from her land without permission and sought damages. See 29 S.W. at 681.
The defendant answered by claiming title to the land. See id. Thus, the outcome of plaintiff's damages claim depended entirely on the question of title.
The court stated as follows:
"In actions for a debt or damages, in amounts within the jurisdiction of the county courts, the right of recovery may depend upon the title to land. . . . Thus the question of title comes incidentally into the case, and must be decided before the court can render judgment settling the claims in dispute. But in doing so it does not adjudicate or settle the title to the land, nor the right to recover it, but simply determines that the plaintiff is or is not entitled to recover the thing sued for within the jurisdiction." Id.
The court appeared to rely on the idea that it was not adjudicating title for the purpose of awarding the property to one of the litigants, but simply determining a title issue as a sort of predicate to the claims at issue between the parties.
Although a determination of title was essential in reaching the judgment, the court nonetheless held that title was merely incidental to the primary dispute--the action for damages.