Findlay v. State

238 S.W. 956, 1921 Tex. App. LEXIS 1341

• Court: Court of Appeals of Texas
• Decided: December 9, 1921
• Docket: No. 6386. [fn*]
• Status: Published

Opinions

•Nature and Besult of the Suit.

JENKINS, J.

The state of Texas brought suit? No. 36183, in the district court against George Findlay, Francis C. Farwell, and Hobart C. Chatfield-Taylor, to recover an alleged excess in a great number of surveys in a number of counties in the Panhandle of Texas, which were patented to Abner Taylor, in payment for the building of the present state eapitol. The allegation in this regard is that by mutual mistake excesses were included in said surveys aggregating 55,116 acres, and that the state is the owner of. an undivided interest in the entire tract to the extent of said excess, and entitled to possession of same; that Taylor and his assignees have conveyed a large portion of said land, but that the said Findlay, Far-well, and Chatfield-Taylor still hold the legal title to about 600,000 acres of same as trustees, out of which the state seeks to have the portion to which it is entitled set apart to it. Numerous issues of law are raised by the pleadings. The state also brought two separate suits against some of the appellants herein, to recover alleged vacancies between certain of the eapitol league surveys. All of those suits were consolidated, and tried before the court without a jury, with the result that judgment was rendered for the state, both upon the issue of title involved in the first suit and upon the issue of boundary involved in the other suits. All of the defendants have appealed.

We think it will avoid confusion, if we treat the issue of title involved in the partition suit and that of boundary in the other suits separately.

The court filed its findings of fact, which we think, for the most part at least, are sustained by the evidence. They cover 5 pages, which are not unduly long, in view of the fact that the statement of facts, besides the numerous maps, covers 1,194 pages. However, with the view of stating them in their logical order, we make, as to the partition suit, the following

Findings of Fact.

(1) The Constitution of 1876 contained the following clause:

“Three millions acres of the public domain are hereby appropriated and set apart for the purpose of erecting a new state eapitol and other necessary public buildings at the seat of government, said lands to be sold under the direction of the Legislature; and the Legislature shall pass suitable laws to carry this section into effect.” Art. 16, sec. 57.

(2) In obedience to this command of the Constitution, the Legislature, on February 20, 1879 (Gammel’s Laws, vol. 8, pp. 1309, 1310), passed an act which set apart for the purpose of erecting the eapitol all of the vacant land in a number of counties in the Panhandle of Texas; created a board to have the same surveyed into league surveys to the amount of 3,050,000 acres, not to include in such surveys any land not fit for agriculture or grazing purposes, after which the remaining lands in said counties should cease to be subject to the reservation created by the act. The 50,000 acres were to be sold, one half of the proceeds to go to the school fund, and the other half to the payment of expenses in surveying the land.

(3) On April 18, 1879 (Gammel’s Laws, vol. 8, pp. 1412, 1414), the Legislature passed an act creating a board of commissioners, to let the contract to build the eapitol, to the bidder who would agree to build the same “for the smallest amount of the said public domain so set aside” for building the eapitol, and appropriating the 3,000,000 acres to be surveyed, or so much thereof as might be necessary to that purpose.

(4) On June 28, 1879, the Capitol Commissioners made a contract with J. T. Munson to survey in league surveys 3,050,000 acres of land in said reservation.

(5) On January 28,1881, the Commissioner appointed to supervise the surveying, reported that the same had been completed, showing in detail what lands had been surveyed, and that the field notes had been returned to the Land Office.

(6) The Commissioners advertised for -bids for building the eapitol. On December 31, 1881, Mattheas Schnell submitted a proposition “to build the New Capitol Building, according to plans and specifications, for 3,000,-000 acres of land, as designated in your notice to contractors, dated July 1, 1881.” This bid was accepted by the Commissioners, January 10, 1882.

(7) The contract provided that the contractor should receive title to the lands as the work progressed, beginning with league No. 1, and taken in numerical order.

(8) On January 31, 1882, Schnell assigned three-fourths of his contract to O. B. Par-well, John Y. Par well, Abner Taylor, and A. C. Babcock, and on May 9th the remainder of said contract was assigned to said parties by Schnell. On June 30, 1882, Babcock and the Parwells assigned their interest in the contract to Abner Taylor.

(9) The state accepted Taylor as the contractor instead of Schnell, and the Parwells and Babcock signed his bond as sureties, for the faithful performance of said contract.

(10) On April 16, 1888, the Capitol Board adopted a resolution to the effect that, whereas, the Commissioner of the Band Office had reported that errors had been discovered in the survey of the capitol reserve lands,'and that by agreement with the contractor a partial resurvey had been made by W. S. Mabry, from which it appeared that about 16,000 acres of said survey were in New Mexico, and that excess in some of the league surveys had been discovered sufficient to make up for the land lost by reason of the conflict with New Mexico, therefore the corrected field notes as made by Mabry were adopted; that the excess discovered in some of the leagues had been taken out, and the said leagues had been reduced to their proper size, and the excess from, same placed in new league surveys, numbered 333%, 345%, and 357%, to be awarded to the contractor in lieu of the lands in New Mexico; and that the supplemental contract of January 11, 1887, with reference to this matter, was ratified.

(11) Certificates were issued to the contractor from time to time, as the work progressed, showing that he had earned, and was entitled to have patented the number of acres mentioned in such certificates, beginning with Survey No. 1. Prior to June 1, 1885, such certificates had been issued, aggregating 199,260 acres. Other certificates were issued from time to time amounting in the aggregate to 3,000,000 acres. Patents were issued to Taylor for this amount of land.

(12) On August 25, 1888, the Capitol Commissioners certified that the capitol had been completed according to contract.

(13) Ón or about June 1, 1885, Abner Taylor contracted to convey all of the lands earned and to be earned by him under his contract to the Capitol Freehold Land & Investment Company, Limited, then in process of organization in Great Britain, in consideration of stocks and debentures of said company.

(14) In compliance with said contract, Taylor, joined by C. B. and J. V. FarwéU, conveyed said lands to trustees, who were authorized to sell any or all of said lands to pay the debentures issued by said company, and thereafter to convey the remainder to said company. Prior to this Babcock had conveyed his interest to the Parwells.

(15) Said original trustees conveyed portions of said land to various parties, and, after paying off said debentures, conveyed the remainder of said lands to the said company, hereinafter referred to as the Capitol Company.

(16) The Capitol Company sold to various parties portions of said land, and, on June 4, 1915, conveyed the remainder thereof to George Findlay, Francis C. Farwell, and Hobart C. Chatfield-Taylor, appellants, in trust for the purpose of selling said lands and liquidating the affairs of said corporation, then in process of dissolution, and which has been dissolved as provided by the laws of Great Britain. But said trustees arei still in. possession of the unsold portion of said, lands, amounting to about 600,000 acres, being the land described in Schedule X of appellees’ petition.

(17) There is an excess in the lands patented to Taylor of 55,089 acres, arising from the fact that many of said surveys, as found to exist upon the ground, contain excesses. These excesses are not confined to any one survey, or to any one county, but exist with tolerable uniformity throughout all of the surveys. •

(18) It was the purpose of the state to convey, and of the contractor to receive, full 3,000,000 acres of land for constructing the state capitol, and no more. Both the state and the contractor believed, when the patents were issued, that such patents conveyed the number of acres called for therein, and no more. That said patents do in fact contain more land than is shown upon their faces, arising from a mutual mistake on the part of both parties to the contract.

(19) The state, by bringing this suit, and by the allegations in its petition, has elected to ratify the sales of the portions of said lands which have been sold, as set forth in the foregoing findings of fact, and to claim its undivided interest in the lands now held by the trustees, Findlay et al.

(20) The lands now in the possession of the trustees are more than sufficient to satisfy the claim of the state to the excess, if any, to which it is entitled, and are sueeptible of an equitable partition being made of the same between the state and said trustees.

Opinion.

It is the contention of appellee that, by reason of the constitutional provision set out in our findings of fact, the Legislature was without power to grant more than 3,-000,060 acres of land for the purpose of building tlie state capitol. We need not decide this issue, inasmuch as, whatever po-wer the Legislature may have had in the premises, it never in fact granted, or authorized the granting of, more than that amount of land for that purpose, unless the patentee, by reason of the sale being in gross, is entitled to the subsequently discovered excess in the surveys.

[1] It is the contention of the appellants that, even if the officers authorized by the Legislature to contract for the building of the capitol had no power to knowingly grant more than 3,000,000 acres, yet, if the sale was in gross of an entire tract, supposed to contain only 3,000,000 acres, there being no fraud in the transaction, the grantee and his assigns are entitled to the excess. We are not called upon to determine this point, for the reason that the same is not raised by the facts herein. As found by the trial court and by this court, the sale was not in gross, but was a sale by the acre. Our reasons for so finding are briefly these:

(1) The Constitution set aside for the purpose of building a new capitol 3,000,000 acres of land and no more. Though this may not have been a limitation on the power of the! Legislature, it was, at least, an expression of opinion on the part of the framers of the Constitution, and of the people who adopted it, that this was a sufficient amount for that purpose, and we would expect that the Legislature would attempt to secure the building'of the capitol for'an amount of land not exceeding 3,000,000 acres.

(2) This the Legislature did by temporarily reserving from location all of the public lands in certain counties until 3,000,000 acres thereof, and no more, could be surveyed,' to be used in the erection of a new capitol building.

(3) This Commission appointed by the Legislature to carry into effect the provision of the Constitution referred to, contracted for a survey of 3,000,000 acres, and no more, for this purpose; the 50,000 additional acres being for another purpose. .

(4) The field notes returned to and filed in- the Land Office showed that the surveys aggregated only 3,050,000 acres; the 50,000 acres to be used in paying for making the survey.

(5) The bids advertised for were for the smallest quantity of the 3,000,000 aeres for which the bidder would erect the capitol; or for the least number of acres for which he would erect certain specified portions of same.

(6) Schnell’s bid was that he would complete the building for 8,000,000 acres. We attach no importance to the fact that his ■bid was to erect the building for “three million acres of land as designated in the notice to contractors.” This merely served ' to indicate the location of the land, as distinguished from any 3,000,000 acres that the state might choose to give him.

(7) That this is a correct interpretation of Sehnell’s bid is shown by the fact that the contract made with him, in pursuance thereof, as construed by our Supreme Court, in Taylor v. Robinson, 72 Tex. 368, 10 S. W. 245, was not the sale of any land to Schnell, but only gave' him the right to earn a specified number of acres, from time to time, as the work progressed. Had Schnell only partially completed the building, he would have been entitled to a certain number of acres out of the 3,000,000 acres surveyed, beginning with survey No. 1 and continuing in their consecutive order.

(8) Subsequent to Taylor becoming the assignee of the contract with Schnell, it was discovered by a survey made by Mabry that there were certain errors in Munson’s survey, namely, that there was a conflict with New Mexico, to the extent of about 16,000 acres, and that there were excesses in 88 leagues, aggregating 3 leagues. The effect of the action of the parties by reason of these facts was that Taylor demanded that the shortage by reason of such conflict be made good, to which the state assented; and the state demanded the discovered excess, to which Taylor assented. Consequently the field notes of the excessive leagues were corrected, reducing them to their proper quantities; and out of the excess thereof were created three new league^ with numbers not included in the originai contract, wfliich Taylor received in satisfaction, pro tanto of his loss occasioned by such conflict. If Taylor had construed the contract as a sale in gross, he certainly would not have consented that his loss by reason of the^conflict with New Mexico should be compensated by granting him land that was already his, or would be his when he completed his contract.

[2] The supplemental contract occasioned by the discovery of the conflict and the excess, after granting Taylor the three new leagues, contained this clause:

“It is, however, distinctly .understood by and between the parties hereto that this contract does not convey any land in excess of the three million acres agreed to be conveyed in the original contract for building the new capitol.”

The practical construction given to a contract by the parties thereto may be looked to in case of doubt to ascertain its meaning. Railway Co. v. Johnson, 74 Tex. 263, 11 S. W. 1113. Such construction is entitled to great weight as against a party who has thus construed the contract against his interest. Railway Co. v. Adams, 87 Tex. 131, 26 S. W. 1040. If we were in doubt as to whether the sale was in gross or by the acre, the action of Taylor as above set out would be sufficient to cause .us to resolve the doubt against appellants.

[3] The tendency of modern decisions is to' construe sales of lands to be by tbe acre. Suc-b, in fact, they generally are.

[4] Tbe ground upon wbicb equity refuses relief as to quantity, where tbe sale is in gross, is that each party tabes tbe hazard in reference thereto. “His [tbe purchaser’s] hazard of a loss is the consideration he pays for the excess. If that consideration, he wanting, he must rely on his express contract, if he would claim an excess.” O'Connell v. Dube, 29 Tex. 314, 94 Am. Dee. 282. The conduct of the parties, as hereinabove set out, shows that neither party intended to tabe any hazard as to quantity.

[5] It is the contention of appellants that, even though the contract should be construed to be a sale by the acre, the acreage was to be ascertained in the usual manner, that is to say, by a survey, and that, inasmuch as the land had been surveyed When the contract was made, there being no fraud in the transaction, and as the excess is small in comparison with the total acreage, it should be held that it was the intention of the parties to the contract that acreage was to be determined by the amounts shown in the surveys theretofore made.

The parties did not so construe the contract. On the contrary, by agreement, 88 of said surveys were resurveyed by Mabry, and their field notes were amended so as to include just 1 league each, and the excess found in said leagues was conceded to belong to the state.

[6] It is well settled that where) a material excess has, by mutual mistabe, been included in a grant, equity will give relief by decreeing that the purchaser must pay for the excess, or the seller will be entitled to partition, if the land be susceptible of equitable partition. Smith v. Fly, 24 Tex. 349-350, 76 Am. Dec. 109; O’Connell v. Duke, 29 Tex. 312-313, 94 Am. Dec. 282; Daughtrey v. Knolle, 44 Tex. 455-456; Moore v. Hazelwood, 67 Tex. 626, 4 S. W. 215; Willoughby v. Long, 96 Tex. 199, 71 S. W. 545.

The trial court found that the land described in appellee’s petition was susceptible of equitable partition; that the excess occurred by mutual mistabe. The evidence sustains these findings. But the question ■ still remains: Is the excess material? We thinb so. Equity .will grant relief, even where the sale is in gross, if the excess is large. Cox v. Burton (Tex. Com. App.) 212 S. W. 654. A much less excess will afford ground for relief where the sale is by the acre.

[7] It is true that the excess in the instant case is only 1.? per cent, over the 3,000,000 acres intended to be granted, but it is nevertheless 55,089 acres, and we do not thinb so great an excess can be regarded as immaterial, whatever be the number of acres intended to be granted. When it was discovered that by reason of the conflict with New Mexico there was a shortage of 16,000 acres, Taylor did not consider this immaterial, although it was only about one-half of 1 per cent, of the 3,000,000 acres he was to receive under his contract. On the contrary, he demanded that this deficiency be made good. The state, the other party to the contract, recognized the justness of this demand, and complied with the same.

“It has long since been settled, that the relative'extent [italics ours] of the surplus or deficit cannot furnish, per se, an infallible criterion in each case for its determination, but that each case must be considered with reference not only to that, but its other peculiar circumstances.” O’Connell v. Duke, supra, 29 Tex. 310, 311, 94 Am. Dec. 282.

There is another circumstance which we thinb is entitled to some weight in determining what was the intention of the parties. In this connection, it should be remembered that the Capitol Commissioners who represented the state was composed of the Governor, the Attorney General, the Comptroller, the Treasurer, and the Commissioner of the Land Office ; that they had no authority in the premises, except that which was. conferred upon them by the Legislature; and that the Legislature had limited them to the use of 3,000,-OOO acres of land in procuring the erection of the capítol. It is not to be presumed that these honorable gentlemen did not bnow the limitation of their authority, or that they knowingly exceeded the same. Did they contemplate that the surveys as made might contain an excess of more than 55,000 acres, and, if so, that the contractor should have the same? One of the tests, as stated in O’Connell v. Duke, supra, 29 Tex. at page 311; 94 Am. Dec. 282, is: Would “such ex-' cess, if known, * * * have materially influenced the” parties? As private individuals they might have been willing to “throw in” such excess, in a deal of this magnitude, should a subsequent survey reveal the existence of the same, but we cannot conceive that they contemplated any such possible unauthorized disposition of the public domain.

It is further contended by appellants that, even though the state be the owner of the excess, if any, it is not entitled to recover the entire amount thereof from the appellants. The facts bearing upon this issue are briefly stated in our thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, nineteenth, and twentieth findings of fact, supra.

[8] The state contends, and, as we thinb, with much force, that Taylor and the Far-wells were, in fact, the Capitol Company. Whether or not this be so, the Capitol Company, by virtue of its contract with Taylor, became the equitable owner of all of the land theretofore, or thereafter earned by Taylor Under his contract with the state. The original trustees sold portions of this land, and with the proceeds paid off the company’s debts, evidenced by its debentures, and thereafter the said trustees conveyed the legal title to the remainder thereof to the Capitol Company. The Capitol Company sold portions of the land conveyed to it, and on the 14th day of June, 1915, deeded the unsold portion thereof to the appellants, in trust, for the purposes of winding up the affairs of the company, then in process of liquidation, and which has since been dissolved. The appellants paid nothing for the land. They have no beneficial interest therein. They hold the legal title for the purpose of distributing the proceeds of the land among the stockholders of the former corporation, the Capitol Company. That the deed to them constitutes a common-law trust does not alter the essential facts as here stated. Such being the case, the present trustees, appellants herein, are, for the purposes of this suit, the Capitol Company, and have in their possession more than enough land to satisfy the demands of the state, namely, nearly 600,000 acres. The state, by bringing this suit and by its pleadings herein, having ratified the sales previously made, is entitled to have the excess set apart to it in a partition of the land now in the hands of the appellants. It was not necessary to make the purchasers of other portions of the 3,000,000 acres parties to this suit. Campbell v. Campbell (Tex. Civ. App.) 145 S. W. 638; Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206; Byrn v. Kleas, 15 Tex. Civ. App. 205, 39 S. W. 980; Hanrick v. Gurley, 93 Tex. 459, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; Peak v. Swindle, 68 Tex. 242, 4 S. W. 478; Moonshine Co. v. Dunman, 51 Tex. Civ. App. 159, 111 S. W. 161; Broom v. Pearson (Tex. Civ. App.) 180 S. W. 895.

[9] We think it immaterial that there has been a substantial change in the stockholders of the Capitol Company since it was first organized. The corporation, • and not its stockholders, was the owner of the land, and, disregarding mere matters of form as equity does, the corporation, in the person of the present trustees, the appellants herein, is still the owner of the land which the trial court decreed should be partitioned in this suit.

Appellants’ fifteenth assignment of error is:

“The district court erred in decreeing a partition of the land in Schedule X, without first fixing the price or value of the lands covered by the contract for the building of the State Capitol, as contemplated in said contract, and giving the owners of the land described in Schedule X. an opportunity to prevent a partition of same by paying to the state the price or value of the excess thus fixed by decree of court.”

A sufficient reply to this is the appellants did not offer to pay for the excess, or indicate in their pleadings a willingness to do so. No money valuation was fixed upon the land when the contract was made with Schnell, and the evidence does not show with any degree of certainty its value at that time. In Ladd v. Pleasants, 39 Tex. 416, the court said:

“If he wanted this land [the excess] equity would require him to have tendered the money at the price paid, or at least at a fair value, for the remainder of the land.”

[10] As to the contention that a portion of the land had been sold to Lee & Scott prior to the sale to the original trustees, the answer is that the record does not show that these lands were not conveyed to the Capitol Company. They were patented to Taylor. The agreed statement of facts states that, as the leagues were patented to Taylor, he conveyed them to the original trustees. The transaction between Taylor and Lee & Scott was an exchange of lands. For aught that appears to the contrary, Taylor may have reacquired these lands from the Capitol Company for the purpose <pf making this exchange, and the Capitol Company may have been the beneficiary of such transaction. At least the fact that Taylor conveyed these lands to Lee & Scott in 1888 is not sufficient to overcome the express agreement of the parties that all of the leagues were conveyed by Taylor to the trustees of the company as the same were patented. For aught that appears to the contrary, *Lee & Scott may have obtained a deed to these lands from the Capitol Company, and for the purpose of strengthening their record title obtained a deed from Taylor, the patentee, also.

[11] Appellants assign error as to the admission of the Wiley field book, for the reason that the same is hearsay, it having been shown that .Wiley was one of the surveyors who was working for Munson, and that he made the entries in his field book only by the hearsay testimony of his wife, which was objected to by appellants. The trial court in its qualification of the bill of exceptions on these matters states that he did not consider the hearsay declarations of Wiley’s wife as to that matter, but that he admitted the field book upon other evidence relating thereto. We think that it appears from the record that such other evidence clearly warranted the court in admitting this field book in evidence. The length of this opinion precludes a discussion of such evidence.

[12] We overrule appellants’ contention that the report of Mabry was hearsay, and therefore inadmissible. Mabry made his survey as the agent of both parties. He was county surveyor of Oldham county. His report was filed in the Land Office, and was an archive thereof. His original report, as well as a certified copy thereof was read in evidence: R. S. art. 3694; Denton v. English (Tex. Civ. App.) 171 S. W. 250.

Finding no error of record, the judgment of the trial court, in so far as it relates to the partition of the lands described in Exhibit X of appellee’s petition, is affirmed.

Findings of Fact in No. 36184 (District Court No.).

(1) The evidence does not show that surveys Nos. 221, 222, 223, and 224, south of the alleged vacancy, and surveys Nos. 225, 226, 227 and 228 on the north, thereof, were made by the same surveyor.

(2) If they were, such surveyor did not run out on the ground and connect the south corners and lines of the surveys to the north with the north lines and corners of the surveys to the south.

(3).The surveys south of the alleged vacancy were run out from connections with prior surveys to the south, and the surveys north thereof were run from prior surveys to the north.

44) The northeast and northwest corners of Nos. 221, the northwest and the southwest corners of 222, the southeast and southwest corners of 223, and the northeast and northwest corners of 217 are found and identified on the ground by the objects called for in their field notes, and are as indicated by the circles on the following map;

(o) The south corners and lines of 225, 226, 227, and 228 call to be identical with the north lines and corners of 221, 222, 223, and 224.

(6) None of the south corners or lines of the surveys north of the alleged vacancy have been found or identified on the ground.

(7) The beginning corner of No. 225 is at the southeast corner of No. 61, in block B-58, a prior survey. The northwest corner of No. 225, the northeast corner of 226, the northwest and northeast corners of 227, and ■ the beginning corner of No. 228, at the southwest corner of No. 1, in block 44, a prior survey, and the southeast corner of No. 228 are found and identified on the ground as indicated by the circles on the foregoing map.

(8) If the surveys to the north be run from their known corners, according to the courses and distances called for .in their field notes, the corresponding corners in the surveys to the south will not be reached, but the surveys to the north, when thus run out, will be located as shown on said map.

(9) The calls in the surveys to the north for the lines and corners of the surveys to the south are supposititious calls, and were made upon a mistaken belief as to the location of such corners.

The trial court found that a vacancy existed as alleged by the state and as shown by the map in our statement of facts. Appellants’ attack upon this judgment is based upon the assumption that the surveys to the north and those to the south of the alleged vacancy were made by the same surveyor, at about the same time, and upon the presumption that such surveyor actually ran these surveys upon the ground, and connected them as called for in his field notes.

[13] The presumption of an actual survey is based upon the presumption that public officers always do their duty. This, like all rebuttable presumptions, obtains in the absence of evidence to the contrary, and not against such evidence. _ That a survey was not made upon .the ground may be shown by circumstances. We think the circumstances in the instant case are sufficient to overcome the presumption of an actual survey of the south lines of the leagues north of the alleged vacancy, except the -south line of survey No. 228, which is identified by objects called for in its field notes, and found upon, the ground.

It is not questioned by either party hereto that both the northern lines of the southern tier of surveys and the north lines of the northern tier of surveys were actually surveyed on the ground, and that they are located by their corners, found and identified as indicated by the map in our statement of facts. The northwest corner of 225 being found and identified, and no objects being called for at its northeast corner, this corner is established by running east the course and distance called for. This corner, which is also the northwest corner of 226, should be treated as an established corner.

Upon the assumption of an actual survey of 225, by the same surveyor who ran out 223 and 224, the natural thing for him to have done, in order to have connected 225 with his previous work, would have been to begin 225 at the northeast corner of 224, or the northwest corner of 223. Instead of doing so, 225 is tied to northern surveys previously made, by calling to begin at the southeast corner of No. 61, which is found and identified on the ground. The calls from this beginning corner are thence south and east, no objects being called for; the call being “to a point.” As the method employed throughout the 738 capítol league surveys to identify corners actually made was to make mounds and dig pits, the surveys being upon a treeless plain, the absence of calls for such mounds and pits is, to say the least, some evidence that such lines were not run.

The second call is east 3,285 varas to a point 1,359 varas south of the northwest corner of 223. Neither 223 nor 224 is otherwise mentioned in these field notes. To reach this point the line must be extended 586 varas, which is a glaring mistake to make in measuring a line intended to be 3,-285 varas.

The next call is north to a point for the northeast corner of 225. If, the surveyor ran this line from a point on the west line of 223, he conflicted with No. 226 to the extent of 586 varas, or 519 acres.

The presumption that a surveyor, making two surveys at the same time for the same person, and calling for them to adjoin each other, would not place them on the ground so as to conflict with each other, is so strong that it would take absolutely conclusive evi-. dence that he did so to establish such fact.

Assuming that he made a corner on the west line of No. 223 as called for in his field notes, to run the next line to the corner which he made for the northeast corner of 225 and the northwest corner of 226, instead of running north as called for in his field notes, he must have run about N. 16° W. In this event he would still be in conflict with 226 to the extent of about 250 acres.

Survey No. 228 does not call for 221. It is •evident by its call for the northeast corner of 227 at the proper course and distance that the south lines of 227 and 226 were intended to be a projection west of the south line of 228, which is found and identified by the objects called for in its field notes, and is thus located as shown by the map herein.

No. 227 calls to begin at the northeast corner of 226, and to run thence north 5,009 varas to its northeast corner, found and identified. If the surveyor ran from the northeast corner of 226 tp the northeast corner of 227, instead of running north, he ran about N. T6° W. The same is true as to the connecting lines between the other known corners on the north line of the northern tier and the known corners on the northern lines of the. southern tier. This could have happened only by his misreading the face of his compass 16 degrees, not as to one run only; but as to all of the runs necessary to be made in a line 5,000 varas long, and not as to one line only, but as to three such lines. Such mistakes are unthinkable.

If survey No. 227 was so run upon the ground, it conflicted with 228, made by the same surveyor at the same time for the same party. To so hold we would have to disregard the calls for distance, course, quantity, and configuration. The same is true as to the other surveys to the north.

[14,15] From the foregoing facts, we think but one deduction can reasonably be drawn, and that is that the surveyor who made surveys Nos. 225, 226, and 227 did not run their southern lines, but that he called for the corners of Nos. 221, 222, and 223, and the west line of 223 upon an erroneous supposition as to the location of such line and corners. A supposititious call, made upon an erroneous belief as to the location of the object called for, will not prevail over a call for course and distance, whether the survey was actually made upon the ground, or the same was an office survey. Railway Co. v. Thompson, 65 Tex. 192; Adams v. Crenshaw, 74 Tex. 111, 11 S. W. 1083; Holland v. Thompson, 12 Tex. Civ. App. 471, 35 S. W. 19; Sellman v. Sellman (Tex. Civ. App.) 73 S. W. 48; Lafferty v. Stevenson (Tex. Civ. App.) 135 S. W. 218-220.

[16] The foregoing proposition may be substantially stated thus: A call in field notes inserted by mistake will be rejected, and the survey will' be constructed as though such mistaken call had not been inserted. State v. Sulflow, 60 Tex. Civ. App. 615, 128 S. W. 654. Or, as applicable to the facts of the instant case, we might deduce from the decision in Huff v. Crawford, 89 Tex. 216-220, 34 S. W. 606, this statement: The surveyor who made surveys Nos. 225, 226, and 227 did not, by mistake, locate the southern corners of such surveys at places different from where he intended to locate them. 1-Ie intended to and did locate them at the northern corners of the surveys to the south, as he supposed them, to be located on the ground. His mistake was as to their true locality.

[17] We think it highly probable that the surveys to the south of the vacancy and those to the north were made by different surveyors. It is true that the contract for surveying the capitol leagues was let to J. T. Munson, but it does not follow from this that he did all of the work in the field in surveying these more than 700 leagues, or that in fact he did any of it. The Commissioner who represented the state in making these surveys stated in his report that there were two surveyors, who worked from 5% to 30 miles apart.

Believing as we do that the trial court did not err in its finding of facts, nor in its application of the law to the. same, we affirm the judgment herein.

Findings of Fact (District Court No. 36185).

The map on opposite page will aid in understanding this case:

The alleged vacancy lies north of surveys Nos. 336, 337, 338, and 339, and south of 274, 275, and 276. The corners marked with a circle are found and identified, and their location is not in dispute herein. The trial court found, in substance, as follows:

(1) Surveys Nos. 337, 338, 339, 340, 372, and 373 were made by J. T. Munson, or by some one working for him, as were also the original surveys Nos. 274, 275, 276, 333, 336, and 335.

(2) It was found that Munson’s surveys of Nos. 274, 275, 276, 333, and 335 were in conflict with prior surveys. For the purpose of taking these surveys out of such conflict and of reducing the excess in such surveys, they were, by agreement of the contractor and the state, resurveyed by W. S. Mabry, and the patents were issued on Mabry’s survey, and accepted by' the contractor.

(3) Mabry corrected the field notes of 336 and 335, and put in the new surveys Nos. 333% and 345%.

(4) No object is called for in the field notes of either Munson’s or Mabry’s survey at the northeast corner of 273, nor at either of the south corners of 274, 275, nor at the southwest corner of 276. Both Munson and Ma-bry call for the southeast corner of 276 to be at the southwest corner of 333, and for the monument found and identified at that comer. In connecting the field notes of 333 so as to take it out of conflict with prior surveys to the west,. Mabry did not change the southwest corner of the northwest corner thereof as made by Munson, both of which corners are found and identified by objects called for in the field notes of 333.

(5) No objects are called for at the northeast corner of 339, nor at either of the northern corners of 338, 337, and 336, nor at the southeast corner of 336.

(6) None of the corners mentioned in the next two preceding paragraphs hereof were made upon the ground, except the southwest corner of 333, and none of the lines connecting these corners were run upon the ground by either Munson or Mabry.

(7) Mabry’s field notes of 276 call for it to begin at the southwest corner of 333, and to run thence with the lines of the prior survey on the north and west nntil a point is reached on the south line of No. 100. The calls from thence are south 4,273 varas to a point on the north line of 337; thence east 5,956 varas to the northeast corner of 336; thence south 2,000 varas to a point; thence east 1,948 varas; thence north 2,000 varas to a point in the south line of 333; thence west 1,168 varas to the beginning.

His field notes- of 275 call to begin at the southwest corner of No. 100, and running thence with prior surveys to a point on the south line of survey 89; thence south 2,272 to a point on the north line of 338; thence east 5,507 varas to a point in the north line of 337; thence north 4,273 varas to a point in the south line of No. 100; thence west 794 varas to .the beginning.

His field notes for 274 call to begin at a point the northeast corner of 275, which is on the west line of No. 99; thence north, west, and south with prior surveys to a point on the south line of No. 89; thence south 3,302 varas-to a ’point the southeast corner of 273; thence east 2,643 varas, crossing Trujillo and Mujares creeks, to a stake in the west line of No. 93; thence with the prior surveys to the beginning.

(8) No object is called for in the field notes of 333% nor 345%, except at the southwest corner of 333%, which is found and identified on the ground, by the northwest corner of No. 103, a prior survey. No. 345% calls to begin at this corner.

(9) The calls in the field notes of 274, 275, and 276 were made by both Munson and Mabry, upon the erroneous conjecture .that the southeast corner of 272, which is also the northeast corner of 340 and the northwest corner of 339, was due west of the southwest CQyner of 333, or, what amounts to the same thing, that the southwest corner of 333 was due east of the southeast corner of 272. Mabry intended that surveys Nos. 274,

275, and 276 should have their southern corners on a line projected west from the south.west corner of 333, which he erroneously supposed would be on the north lines of surveys Nos. 336, 337, 338, and 339.

(10) A line projected west from the southwest corner of 333 will not be the same as a line projected east from the southeast corner of 273, but will be 741 varas north of such line.

(11) If surveys Nos. 276, 275, and 274 he constructed according to their calls for prior surveys and to the south the distance called for their infield notes, disregarding the calls for the league surveys on the south, No. 276, by reason of some excesses in the prior surveys, has an excess of 68 acres; No. 275, for the same reason, has an excess of 125 acres; and No. 274 has the quantity called for in its patents.

(12) The north lines of surveys Nos. 339, 338, 337, and- 336 are corréctiy constructed by projecting said line from the identified northwest corner of 339 east parallel with the south lines of these surveys, and intersecting this line by lines from the southern corners of such surveys. Said lines so established will be as shown on the foregoing map. Survey No. 333% is as shown on said map.

These findings are sustained by the evidence.

There is no dispute as to the location of the north lines of surveys Nos. 274, 275, and 276. There is no reasonable ground for dispute as to the north lines of surveys Nos. 339, 338, 337, and 336. It is not made to appear that anything is found on the ground by which these lines can be located, except the northwest corner of 339, and southwest corner of 339, the southeast corner of 338, and the southwest corner of 337. This being the case, the north lines of said surveys must be located by running course distance as called for in their field notes from these .known corners. When thus run out, they are located as indicated on the map in our findings of fact, supra. The points marked with a circle on this map indicate corners found and identified by objects called for in the field notes.

All of the capitol league surveys appearing on said map were originally made by Mun-son, or by some one working for him, except Nos. 336% and 345%. These are new surveys put in by Mabry, 'composed of excess found in Munson’s surveys.

Some of the Munson surveys having been found to be in conflict with prior surveys, and also to contain excesses, by agreement of parties, Mabry corrected the field notes of a number of such surveys, including 274, 275, 276, 333, and 336. He did not, however, change the original corners of 333 as made by Munson.

[18] Munson’s surveys having been abandoned, and Mabry’s surveys substituted therefor, and the patents issued on Mabry’s surveys having been accepted by Taylor, it' is immaterial what lands were embraced in Munson’s surveys 274, 275, 276, and 336. The inquiry here is what is the true location of the lines and comers of these surveys as made by Mabry. Montgomery County v. Angier, 32 Tex. Civ. App. 451, 74 S. W. 958, 959; Sullivan v. State, 41 Tex. Civ. App. 89, 95 S. W. 648; Forbes v. Withers, 71 Tex. 306, 9 S. W. 154.

[19] Except upon one theory to be hereafter discussed, we do not think that there can be any reasonable- ground for dispute as to the proper location of the south lines of 276, 275, and 274; and that such location is on a line running west from the southeast corner of 333 to a point in the east line of 273, as indicated by the map herein. If we are correct in this, it follows that the land, if any, between the line projecting east from the northwest corner of 339, and the line projecting west from the southeast corner of 333, is vacant land. They are not the same, as by the undisputed .evidence the northwest corner of 339 is nearly 1,000 varas farther south than the southwest corner of 333.

Our reasons for locating the south boundaries of surveys Nos. 274, 275, and 276 on a line projected west from 333 are briefly these:

Mabry first surveyed 276. He began at the southeast corner of 333. He ran north to the south line of 107. He then ran west and north with the prior surveys shown on the map until he reached the east line of survey 100, which he was able to locate by reason of its connection found in that block of prior surveys. He then ran west to a point on the south line of No. 100. His call is thence south 4,273 varas. By balancing his north-ings and southings, we find that if he made no mistake in ■ measuring this line, if he did measure it, he arrived at a point due west of where he began. His next calls are east 5,956 varas; thence south 2,000 varas; thence east 1,948 varas; thence north 2,000 varas to the south line of 333; and thence west 1,168 varas, to the place of beginning. If he made no mistake in measuring these lines, his last call north 2,000 varas brought him to the- south line of 333, and his last run closed the survey at the point where he began.

Did he make a mistake in running south from No. 100 of 741 varas? If so, in order to reach the south line of 333 and run thence west to his beginning corner, he must have made exactly the same mistake in measuring the last line running north 2,000 varas. In other words, this line served as a check against his line running south from No. 100, and would have revealed any error that he may have made in measuring that line, unless he made the same mistake in running north to the south line of 333. Such a supposition is altogether improbable.

But, argue the appellants, Mabry’s line running south from No. 100 calls to run to the north line of 337. True, but he did not reach this line unless he made a mistake of 741 varas in measuring south from No. 100. He could not have known whether, or not he had reached the north line of 337 unless he had known where such line was. It being an unmarked prairie line, he could not have known where it wás unless he had gone to the identified northwest corner of 339 and run the north lines of 339, 338, and 337 according to their calls. Appellants’ theory is that he did this. Grant it for the sake of argument. Having run out the north lines of these leagues, by means of stakes set thereon, he was able to know when he reached the same by running south from No. 100. He ran from the south line of 100 south to the north line of 337 as found by him on the ground, but in doing so he made a mistake of 741 varas in his measurement. This is appellants’ theory.

But let us pursue this theory to its legitimate conclusion. By so doing, we will see that the assumed mistake in measuring south from No. 100 to the ascertained north boundary of 337 is not reasonable.

Having ascertained the location of the north line of 337, and actually ran to it, though mistaken in the distance, his field notes say that he ran east to the northeast corner of 336, the location of which was ascertainable by continuing the north line of 337 the distance called for in its field notes. This would have brought him to the northeast corner of 336, as shown by the map herein. Continuing the calls in his field notes, he next ran south 2,000 varas; thence east 1,978 varas; thence north 2,000 varas to the south line of 333; and thence west 1,168 varas to the beginning, which it will be remembered was the identified southwest corner of 333. Now, if we are to presume that Mabry ascertained the location of the north line of 337 by running east from the ascertained northeast corner of 339, a distance of 1,500 varas, we ought to presume that he ascertained the south line of 333 by running the same from its ascertained southwest corner a distance of only 1,168 varas. If he did so, in running north to this line he did not reach the same by 741 varas, unless he made exactly the same mistake in measuring north the line calling for. the south line of 333 that he had made in measuring south from the south line of No. 100 to 'the north line of 337, a supposition entirely unreasonable. Running the line north 2,000 varas for the south line of 333 would have served as a check on his measurement south from No. 100, and thereby he would have' discovered the mistake, if any he had made, in running south from No. 100 to the north boundary line of 337. Had he discovered such mistake, he would have seen that he had included in No. 276, as thus made by him, an excess of about 800 acres. As one of the objects of Mabry’s surveys was to take the excess out of Munson’s surveys, we ought not to presume that he would knowingly include 800 acres excess in 276. Having discovered his mistake in measuring south from No. 100 to the north boundary of 337, he doubtless would have corrected the same by calling for that line to be its correct distance; that is, the distance which he supposed he had measured, plus the additional 741 varas discovered in running north to the south line 333, and changed the calls from the point reached by him on the north line of 337 to a point on said line farther east, so as to make 276 embrace only one leágue of land.

We have said that presumably Mabry ascertained the location of the south line of 333 by running it out from its northwest corner, the location of which we know that he knew, for the reason that he began 276 at that point. But this assumption is not necessary, for the reason that in running his closing line west 1,168 varas he would have found that, instead of arriving at the place of beginning, he had arrived at a point 741 varas south of his beginning corner.

To our minds these facts show quite conclusively that Mabry did not ascertain the location of the north line of 337, but that he called for the same upon the erroneous conjecture that he had reached the same by running south from No. 100 the distance called for in his field notes, and that he actually ran that distance, and thus established the southwest corner of 276, if he. actually surveyed the south line of 276.

Again, ■ Mabry began 275 at the northwest corner of 276 on the south line of No. 100. The southeast comer of 275 is the southwest corner of 276. He called to run 275 with the prior surveys to a point on the south line of No. 89, and thence south 2,272 varas to a point on the north line of 338. .This point, if he made no mistake in measuring south from 89, was due west from the southeast corner of 333. To have run the next call east the distance called for and to have arrived at the southwest comer of 276 as made by him on the north line of 337, as contended by appellants, he must have made exactly the same mistake of 741 varas in measuring tlie west line of 275 that he made in measuring the west line of 276, if he actually placed that corner on the north line of 337. He must have made exactly the same mistake in running the west line of 274. That is to say, his last run south on 274 according to the distance called for would place him due west from the southeast corner of 338, but if he ran to the southeast corner of 273 on the north line of 339 as called for in his field notes, he again made a mistake of 741 varas in measuring his last line south. It is not conceivable that such mistakes could have been made in running four lines, each of which, if correctly measured, would have shown the mistake in the measurement of the others.

If surveys 276, 275, and 274 be extended to the north lines of 239, 238, 237, and 236, these three surveys will contain an excess of 2,669 acres. But if, on the other hand, we locate them by beginning at the southwest comer of 333, run with the lines of the prior surveys, and run the calls south the distance called for, all of the southern corners of 276, 275, and 274 will be due west of the southwest corner of 333, and, with some slight excesses, occasioned by some of the lines of the prior surveys being slightly in excess of the distances called for in their field notes, these surveys will contain one league each.

We think it probable that Mabry’s mistake in supposing that the north lines of the southern tier of surveys was a line running west from the southwest corner of 333 arose from the fact that Munson had so mapped them. He might well have supposed that this was the true location of such line, but that is not' true, as is shown by the northwest corner of 339 being found 940 varas to south of such line.

If it be said there is no vacancy, for the reason that Munson ran the north lines of 339, 338, 337, and 336 east from the northeast corner of 339, and ran 374, 375, and 376 to these lines, as is shown by his calling for these surveys to adjoin each other, the answer is: Munson’s surveys of 374, 375, and 376 were abandoned, and Mabry did not so run their lines.-

The contention that, because Mabry’s field notes of 276, 275, and 274 call to run to the north lines of 337, 338, and 339, his call for distance must be disregarded and such lines must be extended to the lines of the surveys called for, even though the same are on unmarked prairie lines, is based upon what appellants insist was decided in Maddox v. Fenner, 79 Tex. 279, erroneously reported in 15 S. W. 239, as Maddox v. Turner, namely, that a call for an unmarked prairie line which may be accurately ascertained will, as a matter of law, prevail over a call for course and distance. No such proposition was announced in that case, and could not have been without overruling many well-considered cases to the contrary. Whether or not' such a call will prevail over course and distance depends upon all of the facts in evidence in the particular case. That the court, in Maddox-Eenner, did not intend to announce any general rule on the subject is evidenced by the following exeerpt from the opinion in that case: “Probably no general rule on the subject can be safely announced.”

In that case the court based its finding that the call for distance in the third line should be disregarded upon the following facts: The Stevens’ survey was entirely surrounded by prior surveys, and purported to cover all of the vacancy between such surveys. It was only by running out the Stevens survey that the conflict was discovered between the call for distance in the third line and its call for the Hassey survey (Deen, assignee). If the third line was extended to the Hassey corner, all the other calls would be found to be correct. The field notes of the Stevens’ survey showed the corner of the’ Hassey, and the corners of the other surveys were fixed by mounds and by posts and mounds. If these marks existed at the time the surveyor located the Stevens, they were visible objects, and it is not probable that he was mistaken when he said that he ran to them. As all of the surveys were probably made about the same time, it is likely that these objects were in existence when the' Stevens’ survey was made. That they were not found when the suit was brought is not strange, as the Stevens’ survey was made in 1846, and the suit was brought in 1891. When an object of a perishable nature is called for in. field notes, and cannot be found after the lapse of considerable time, the presumption is that it existed when the survey was made and has since perished. Stafford v. King, 30 Tex. 269, 94 Am. Dec. 304.

If the surveyor in locating the Stevens’ survey had run only the distance called for his third line, he would not have found any of the mounds and posts which he says he found at the corners of the Hassey, the Sharp, and the Skidmore surveys, for he would not have been in the vicinity of such corners.

120] There is an expression in the Maddox-Fenner Case which has created an erroneous impression, and that is, under the limitations therein stated the court said:

“We see no good reason why the survey line [called for] should not be given the dignity of an ‘artificial object.’ ”

Under some circumstances, there is no reason why it should not; in others, there is. But before discussing this point, we call attention to the fact that a call for “an artificial object,” or' even for a natural object, will not necessarily control a call for course and distance. Stafford v. King, 30 Tex. 272, 94 Am. Dec. 304; Robinson v. Doss, 53 Tex. 506; Hubert v. Bartlett’s Heirs, 9 Tex. 104; Booth v. Upshur, 26 Tex. 70; Booth v. Strippleman, 26 Tex. 441; Browning's Adm’x v. Atkinson, 37 Tex. 659 ; 4 R. C. L. 105.

Why will a call for an “artificial object” prevail, as a general rule, over a call for distance? Because an artificial object is visible, and when a surveyor says that he ran to such object he was probably not mistaken, and if such object can be found, and identified, it indicates the point to which the surveyor arrived, though the distance called for may not reach such point. However, in any given case, consideration of all of the facts and circumstances may show that the call for distance is the more reliable call.

[21] An unmarked prairie line is not, in the general acceptation of the term, a visible object, and therefore, in common parlance, is not an object at all. But, if a surveyor runs such line from its ascertained corner, the place where he locates the same on the ground does become visible to him, and therefore it may be said, not only to have “the dignity of an artificial call,” but to be to him actually an artificial object, as that term is used in reference to the law of boundary.

[22] Whether or not it ought to be presumed that a surveyor ran out an unmarked prairie line called for in his field notes, and thus ascertained its location upon the ground will depend upon the proximity of marked corners or lines from which such line could have been run. If they were near by and could have been ascertained with certainty, it is reasonable to presume that he ran out such prairie line. If it would have been difficult to have found them, or if they were at a considerable distance, such presumption would be very weak, to say the least of it.

It will be seen that if the surveyor in the Maddox-Fenner Case found the mounds and posts which located the corners of the adjacent surveys, there would have been no occasion for him to have run from other known corners of such surveys or of adjacent surveys in order to ascertain the lines of the surveys called for in his field notes.

[23] We are cited to cases in which it is said that the intention of the surveyor or of the grantor must be given effect. From this it is argued that, as Mabry’s field notes and the patents issued on the same call for the south line of the north leagues to extend to the north lines of the south tier óf surveys, it was the manifest intention of the surveyor and of the state not to leave a vacancy between such surveys. But it gets us nowhere to say simply that the intention of the surveyor or grantor must prevail. There must be added: As appears upon the face of the field notes or grant read in the light of all the circumstances of the particular case. Blackwell v. Coleman County, 94 Tex. 216, 59 S. W. 530. In every case in the books where the field notes call to begin at a known point and to run a given course and distance to the line of a prior survey, and thence with the line of such survey, it was the intention of the surveyor not to leave a vacancy between such surveys. But it is equally manifest that he intended to run the exact distance called for in .his field notes. If, upon applying these calls to the ground, there is shown to be a conflict in them, there is manifested two intentions. To give effect to one destroys the other. In such case, the prevailing intention will be determined by ascertaining the same under the rules relating to boundary. Such intention will be indicated, not by what the surveyor intended to do and thought he had done, but by what, in fact, he did do. In other words, where did he actually locate the lines and corners .of the survey made by him? and not simply where did he intend to locate the same with reference to some other survey? This is to be done by ascertaining as best we can, which of the contradictory calls was inserted by mistake, and by rejecting such mistaken call.

Applying the rules of law with reference to boundary, which rules are based upon reason and experience, we have concluded that the calls in the field notes of the northern tier of surveys for the lines of the southern tier were made upon the mistaken conjecture of Mabry as to the location of the lines so called, and should be rejected. As thus construed, the lines of 276, 275, and 274 will be located upon the ground where Mabry placed them by running the courses stated in his field notes, and also where he supposed the north lines of 237, 238, and 239 to be located.

For the purpose of avoiding confusion, we have referred to the north lines of surveys Nos. 339, 338, 337, and 336 as being located by running due east from the northwest corner of 339. As a matter of fact this line as found by the trial court runs N. 89° 19’ E. or 71 minutes north of east. We have referred to south lines of 274, 275, and 276 as if they constituted an unbroken line. This is not true. As will be seen by reference to the map, the south line of No. 92 breaks the continuity. However, these facts do not affect our conclusions, nor the reasons upon which they are based:

For the reasons stated, the judgment of the trial court herein is affirmed.

Affirmed.

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