Frost v. Socony Mobil Oil Company

433 S.W.2d 387

• Court: Texas Supreme Court
• Decided: October 23, 1968
• Docket: A-11758
• Status: Published

Opinions

WALKER, Justice.

This is a vacancy case involving land in Pecos County. The tract in question is a rectangle alleged to lie between the east lines of junior Surveys 49 and SO, Block OW, and the west lines of senior Surveys 13, 18 and 19, Block 143. Its north and south lines are 518 and 502 varas in length, respectively, and its east and west lines are some 3400 varas in length. The tract contains 304.51 acres, and the controlling question is whether adjoinder calls in the field notes of Surveys 49 and 50 are to be disregarded in favor of calls for course and distance.

The suit was instituted by C. M. Frost, petitioner, after his vacancy application was denied by the Commissioner of the General Land Office. Socony Mobil Oil Company, Inc., et al, respondents, who own Surveys 49 and 50, were named as defendants. The Attorney General intervened in behalf of the State as required by Section 6(j) of Article 5421c, Vernon’s Ann.Tex.Civ.Stat. After a trial before the court without a jury, judgment was rendered in favor of petitioner decreeing the existence of the vacancy. The Court of Civil Appeals reversed and rendered judgment that the land in question is not vacant, unsurveyed, public land belonging to the State. 407 S.W.2d 248. The State is also a petitioner here and has adopted the application for writ of error filed by C. M. Frost. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The field notes of junior Block OW were prepared by O. W. Williams. We began with the stiuation as it existed at the time he did his work. The field notes of senior Blocks 106, 114, 115, 142, 143, 146, 203 and 203½ were prepared by L. W. Durrell. Their locations with respect to each other and with respect to certain surveys senior to Durrell are shown on Plat No. 1 below:

The surveys shown on Plat No. 1 that are senior to Durrell’s work are the Peter Gallagher, where the town of Fort Stockton is located, and Surveys 242, 254, 255 and 541 near the southwest corner of the plat. In so far as relevant here, Durrell’s field notes of Block 146 call for tiers of six sections running from east to west, with each section 1900 varas square and the east line of the block fixed as an extension of the west line of the Peter Gallagher Survey. Permanent monuments were set at some of the section corners as shown on the plat, but the west line of the block was not monumented. This line as well as most of Durrell’s other lines were located by office work only.

Blocks 114, 106, 115, 142 and 143 were located by Durrell in substantially the same manner. He marked certain survey corners on the east side and near the center of each block with stone mounds, which are described and called for in his field notes. These monuments and those in Block 146 are still there. The only work done on the ground in locating the six blocks, however, was in the east portion of the blocks where the stone monuments were set. No work was done on the ground within the west two tiers of any of the blocks, and Durrell’s location of these sections was by projection or office work only.

Two years after Durrell did his work in the six blocks mentioned above, he prepared the field notes for Block 203. This was an office survey built on the unmarked office-surveyed west line of Block 146. Survey 3, Block 203, was given an east-west width of 992 varas. Shortly thereafter Durrell prepared field notes, also by office survey, for Block 203½, consisting of Surveys 1 and 2. The west line of Survey 1 was located by office calls 500 varas west of the west line of Survey 3, Block 203. The field notes of Survey 2, Block 203½, are quoted in the margin.¹ It will be noted that the northwest corner of this survey apparently was intended to be 500 varas west of the west line of Block 142, and its lines are called to run thence south to the northwest corner of Survey 1, and thence east 500 varas to the place of beginning.

Durrell made two mistakes that are material here. In the first place, he incorrectly assumed that the west lines of Blocks 142 and 143 were in the same meridian as the west lines of Blocks 115 and 106. The ground position of the west lines of Blocks 142 and 143 is about 100 varas east of the extended west lines of Blocks 115 and 106. There is a problem then, not presented for decision here, as to how Survey 2, Block 203½, should be placed on the ground. The significant fact from the standpoint of the present controversy is that the extended west line of Survey 1, Block 203½, is some 600 varas west of the west lines of Blocks 142 and 143 rather than 500 varas as Durrell supposed. In the second place, Durrell was mistaken as to the location of Surveys 242, 254, 255 and 541, which were senior to his work. The calls for courses, distances and adjoinder in his field notes of Surveys 2 and 3, Block 203, and Survey 1, Block 203½, show that he thought the relative location of Block 146 on the one hand and Surveys 242, 254, 255and 541 on the other was as indicated on Plat No. 2 below. The ground position of Surveys 242, 254, 255 and 541 is several hundred varas north and a short distance east of where Durrell thought they were when he wrote his field notes for Blocks 203 and 203½. If effect were given to his calls for course and distance, Survey 3, Block 203, and Survey 1, Block 203½, would overlap Surveys 242 and 255 as shown by the dotted lines on Plat No. 3.

This was the situation when Williams prepared his first set of field notes for Block OW in 1884 and 1885. Block OW lies west of and was called to adjoin the west lines of Blocks 203⅝⅛, 142 and 143. The first work done by Williams in Block OW was in the east tier, which is some 19 miles long and consists of 14 surveys numbered from south to north as follows: 1,2,3, 5,6, 7,8,10,12,14,16,49,50 and 56. The original field notes for the south 11 surveys in the east tier are dated December 15 and 20, 1884. They call for only three monuments, the rock mounds placed by Williams at the northwest, southwest, and lower southeast corners of his Survey 1. The original field notes for Surveys 49, 50 and 56 were done on April 23, 1885. Prior to that date Williams had prepared field notes for a number of surveys in the adjoining tier to the west. The field notes of the latter surveys show that by the time they were written, Williams had monumented the west line of the east tier of Block OW with a substantial number of monuments extending from the southwest corner of Survey 1 to a point just south of the northwest corner of Survey 10. Williams was never on the ground north of his Survey 10, however, and he made no attempt to locate any of Durrell’s monuments.

The course and distance locations of the east tier of Block OW with respect to Blocks 203⅝£, 142 and 143 according to Williams’ original and corrected field note's are shown on Plats Nos. 4 and 5 below, respectively, with adjoinder calls indicated by arrows:

The following are Williams’ original field notes of his key Survey No. 1:

“Beginning at a stake and mound at the N.W.cor. of Survey No. 255 * * * ; thence S. 86 E. 316 varas along the north line of said Survey to the S.E.cor. of Survey No. 1 * * * ; thence North at 457 vs. pass’g S.W.cor.Sur. 1, Block 203)4, 3219 vs. to a point in the west line of said Sur. No. 1; thence west 1900 varas to a stake and large stone mound for N.W.cor. of this Survey; thence south 3890 varas to a stake and mound of small stones in the north line of Sur. 541 for S.W.cor. of this Survey; thence South 86 East 1530 vs. to 2 large stones * * * at N.E.cor. of said Sur. No. 541; thence N. 4 E. 788 varas to the place of beginning.”

A comparison of these field notes with Plat No. 2 will show how Williams was misled by Durrell’s theoretical but mistaken field-note relationship between Survey 255 and Survey 1, Block 203)4. This is also borne out by the sketch Williams placed at the top of the original field notes for his Survey 1. Durrell had called for the most westerly southwest corner of Survey 2, Block 203, to be in the north line of Survey 255, 528.4 varas from its northeast corner. The north line of Survey 255 was called to be 1344 varas in length, and the called width of Block 203)4 was 500 varas. By subtracting 1028.4 (528.4 plus 500) from 1344, Williams concluded that a point in the north line of Survey 255, 316 varas from its northwest corner would be due south of the southwest corner of Survey 1, Block 203)4.

The upper southeast corner of Survey 1, Block OW, was in the north line of Survey 255, but was located by a call for distance only, 316 varas from the northwest corner of Survey 255. This is the southern terminus of the east line of Block OW according to the original field notes. From that point the line ran north, with a passing call for the southwest corner of Survey 1, Block 2031/2, at 457 varas, a total distance of 3219 varas “to a point in the west line of said Survey No. 1.” The passing call was an impossibility, because the field-note location of the southwest corner of Durrell’s Survey 1, Block 203)4, was not north of the north line of Survey 255 but a considerable distance south of it.

The original field notes of Survey 2, Block OW, called to begin at the northeast corner of Survey 1, Block OW, and for adjoinder with the west line of Block 203)4. Every survey to the north was constructed in the same manner, i.e., by beginning at the northeast corner of the survey to the south and calling for adjoinder with the west line of Block 203½, until Williams reached, in his office work on Survey 14, what he thought was the north end of Block 203)4. At that point he turned east and called for a distance of 500 varas and for adjoinder with the west line of Block 142. He did this because Durrell’s field notes called for Block 203)4 to be 500 varas wide at the north end for it to adjoin the west line of Block 142. Surveys 16, 49, 50 and 56 were each built on the northeast corner of the survey to the south and called to adjoin Durrell’s Blocks 142 and 143.

At the time Williams wrote his original field notes, Durrell’s lines which he called to adjoin were not marked on the ground. The west line of Block 203)4 when properly located by reference to Durrell’s monuments, was less than 316 varas from the northwest corner of Survey 255. This is conceded by all parties. The east tier of Block OW, if placed on the ground in accordance with the original field-note call of 316 varas from the northwest corner of Survey 255, conflicted with senior Block 203)4 at the south end. As a result of divergence between Durrell and Williams which will be explained later, this course and distance conflict feathered out at a point in the east line of Survey 6, Block OW. From that point north, if effect were given to calls for course and distance, there was a constantly widening vacancy between Block OW and Blocks 203)4, 142 and 143.

In July, 1885, shortly after completing his original field notes for Block OW, Williams measured the distance on the ground between the southeast corner of Survey 254 (immediately south of Survey 255) and the northwest corner of the Peter Gallagher Survey at Fort Stockton. On the basis of the information thus obtained, he concluded, (1) that Survey 1, Block 203(4, was not north of but was in conflict with Survey 255; and (2) that the aggregate of the field-note distances called for by Durrell in Blocks 146, 203 and 203(4 would place the intersection of the west line of Block 203(4 with the north line of Survey 255 at a point 34 varas from the northwest corner of Survey 255; and (3) that there was a 282-vara conflict between the east tier of Block OW, when located by calls for course and distance in his original field notes, and the west line of Blocks 203(4, 142 and 143.

On the basis of his calculations and without locating Durrell’s monuments, Williams corrected the field notes of every survey in the east tier by moving the east line either 282 or 284 varas to the west. He first corrected his field notes for Surveys 49, 50 and 56 at the north end, and in each instance reduced the east-west calls by 284 varas. The corrected field notes call for 2116 varas from the west line to the east line instead of the original 2400 varas. In the surveys to the south, which he later corrected, the east-west calls were reduced by 282 varas. For example, the north line of Survey 1, Block OW, was called to be 1618 varas in the corrected field notes instead of the original 1900 varas.

The north-south calls were also changed in every survey except Surveys 1, 7 and 8. Surveys 49 and 50 had been surveyed by virtue of Certificate No. 96 for 640 acres issued to Texas Trunk Railroad Company by the Commissioner of the General Land Office. In his corrected field notes of Survey 49 Williams increased the south-north distance from 1504 to 1706 varas, thus compensating for the reduction in the east-west dimension and giving the railroad approximately the 640 acres to which it was entitled. The identical change was made in the dimensions of twin Survey 50 for the School Fund. Survey 49 was patented and Survey 50 was awarded on Williams’ corrected field notes as follows:

SURVEY 49

“Beginning at a stk & md at N.W. cor of Sur. No., 16 of this Block * * *; thence East 2116 varas to stk & md in West line of Survey No. 13, Block 143, * * * for S.E. cor of this Survey; thence North at 734(4 varas pass’g the N.W. cor. of said Survey No. 13, Block 143, 1706 varas to stk & md in West line of Survey No. 18, Block 143 for N.E. cor. of this Survey; thence West 2116 varas to stk & md in East line of Survey No. 51 of this Block * * *; thence South, at 413 vs. pass N.E. cor. Sur. No. 47 of this Block, 1706 varas to the place of beginning.”

SURVEY 50

“Beginning at a stk & md for N.W. cor. of Sur. 49 of this Block * * *; thence East 2116 vs. to stk & md in West line of Sur. 18, Bl. 143 & at N.E. cor. Sur. No. 49 of this Block * * *; thence North at 928(4 vs. pass’g N.W. cor. Sur. 18 & S.W. cor. Sur. 19, Bl. 143, 1706 vs. to stk & md in the West line of said Survey No. 19, Bl. 143 * * *; thence West 2116 varas to stk & md for N.W. cor. of this Survey; thence South at 219 vs. pass’g N.E. cor. Sur. No. 51 of this Block 1706 varas to the place of beginning.”

The corrected field notes call for the monuments Williams had placed along the south portion of the west line of his east tier, and each survey north of Survey 1 was called to begin at the northwest corner of the survey to the south. The east tier was thus tied to its monumented west line. As indicated by Plat No. 4 above, the east line of the corrected east tier, if located by calls for course and distance does not reach the west lines of Blocks 203(4, 142 or 143 at any point. The discrepancy amounts to 518 varas at the north line of Survey 50 and 502 varas at the south line of Survey 49.

The south 320 acres of Survey 1, Block 203½, was patented in 1914 on field notes prepared in 1911 by A. N. Lea, County Surveyor of Pecos County. According to these field notes, the survey was given a width of 600 rather than 500 varas and its west line was located at the southeast corner of Survey 1, Block OW, identified as a stake 34 varas South 86 East from the northwest corner of Survey 255. Other surveys and a number of patents covering different parts of Block 203½ have attempted to hold the east line of Block OW to its called distance 1618 varas from Williams’ monumented west line and to place in Block 203½ the gap left by Williams’ calls for course and distance. The patent to the south part of the north portion of Survey 1, Block 203)4, calls for the east lines of Surveys 2 and 3, Block OW, to be 1618 varas east of and parallel with their west lines, and shows Block 203)4 to be 691.6 varas wide. The patent to the north 295 acres of the south 320 acres of Survey 2, Block 203)4, calls for the east line of Block OW to be 790 varas west of the west line of Block 115. On the other hand, Surveys 56, 16 and the north part of Survey 14, Block OW, have been patented on field notes prepared after Williams did his work and which call for an east-west distance of more than 2600 varas and for adjoinder with Block 143.

Williams’ adjoinder calls have thus been honored by the State in several instances and disregarded in others. Lea, who mapped the entire area, showed the gap left by the calls for distance in the field notes of Block OW but did not report a vacancy to the General Land Office. It also appears that Sections 49 and 50 are fenced and occupied in an adjoinder position, and the owners of the two sections have placed improvements on the tract now in controversy.

We recognize the general rule that calls for adjoinder will ordinarily prevail over calls for distance. See Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801; 129 Tex. 547, 104 S.W.2d 1; Cross v. Wilkinson, 111 Tex. 311, 234 S.W. 68. This is so even where the call is for adjoinder with the unmarked but ascertainable lines of an adjacent survey. See Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773; Maddox v. Turner, 79 Tex. 279, 15 S.W. 237; Phillips Petroleum Co. v. State, Tex.Civ.App. 63 S.W.2d 737 (wr. ref.). There is, however, an important exception to the general rule, and petitioners insist that the present case is governed by the exception. When it appears that the call for adjoinder was made through mistake, it may be disregarded and the matter is set at large with the court left free to construct the survey in such manner as will best give effect to the intention of the parties as determined from the entire description when read in the light of the surrounding circumstances. Stanolind Oil & Gas Co. v. State, supra; Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792; Boon v. Hunter, 62 Tex. 582; State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228.

Respondents are correct in saying that a mistaken or conjectural adjoinder call is not necessarily shown by mere variances in distance. Camp v. Gulf Production Co., supra. As pointed out in State v. Sullivan, supra, an “inconsiderable excess is not of itself evidence that the surveyor was mistaken in the location of the ad-joinder for which he called, but, when there is no other evidence of mistake, is usually * * * taken to mean that the mistake was in the measurement or in the calculation of the distance.” See also Giles v. Kretzmeier, Tex.Civ.App., 239 S.W.2d 706 (wr. ref. n. r. e.). In this instance variances in distance are not the only evidence of mistake.

Both Durrell and Williams are now dead. Durrell, when he called to run north, is shown by his monuments to have run North 13' East and in some instances North 18' East, whereas Williams is shown by his monuments to have run North 15' West. Respondents’ witness Cool determined by triangulation that the ground distance between the southeast corner of Survey 254 and the northwest corner of the Peter Gallagher Survey was 12,017 varas. Williams had concluded from his measurements that this distance was 11,962 varas. Cool also testified that he found an excess of 40 varas between the northwest corner of the Peter Gallagher Survey and Durrell’s monument at the southwest corner of Survey 20, Block 146. Lea’s 1913 map mentioned below shows an excess of 10.1 varas between the monuments he found at the southeast and southwest corners of Section 41, Block f46. Respondents say that this excess offsets all of Williams’ excess except about 5 varas. They then argue that the discrepancy of from 502 to 518 varas in the distances called for the east-west dimensions of Surveys 49 and 50 is due entirely to an error of perhaps 5 varas at the upper southeast corner of Survey 1, Block OW, plus the mechanical errors of Williams and Durrell in their departures from true north.

The record shows that Lea did considerable surveying in the area. Lea also is dead, but he filed with the General Land Office a number of maps showing the results of his work. A map filed in 1913 shows that he located a number of Durrell’s monuments in Block 146 and found an excess of 63.7 varas between the southwest corner of Section 21 and the northwest corner of the Gallagher Survey. The map also shows that he gave Sections 15 and 16 each an east-west excess of 10.1 varas, but we do not attempt to determine whether there is any legal basis for his doing this.

Another map filed by Lea in 1929 shows that he located Williams’ monuments on the west line of the east tier of Block OW. It further appears from such map that Lea ran several lines of connection, including one 3302.4 varas in length from the monument at the northwest corner of Survey 1, Block OW, to the west line of Block 146. This exceeds by 192 varas the aggregate of: (1)the 1618 varas called by Williams, and (2) Durrell’s field-note distance of 1492 varas across Blocks 203 and 203½. Although the facts have not been fully developed concerning the ground location of the west line of Block 203½ where it intersects the north line of Survey 255, it is our opinion that the trial court could reasonably conclude from the present record that the course and distance location of the upper southeast corner of Survey 1, Block OW, is 100 or more varas west of the west line of Block 203½.

Respondents are also incorrect in saying that the discrepancy between the actual and called distances from the west lines of Surveys 49 and 50 to the west line of Block 146 is due almost entirely to the mechanical errors of the two surveyors in departing from their called courses. If this were true, we would have an entirely different case. A constant aggregate departure of 30 minutes would cause a divergence of approximately 16½ varas to the mile or a total of some 313 varas over the distance of about 19 miles from the southwest corner of Survey 1 to the northeast corner of Survey 50. When the evidence is considered in the light most favorable to petitioners, it appears that the gap with which we are now concerned was caused by three factors: (1) the west line of Block 203½ is a substantial distance east of where Williams thought it was when he wrote his corrected field notes; (2) the mechanical errors of the two surveyors in departing from their called courses; and (3) the fact that the west lines of Blocks 142 and 143 are some 100 varas east of the extended west lines of Blocks 115 and 106. In any event the evidence is conclusive that Williams was mistaken as to the location of the west lines of Blocks 142 and 143, and that his calls for adjoinder with such blocks in the corrected field notes of Surveys 49 and 50 were made through mistake. This is the only reasonable conclusion when he shortened his north and south lines 284 varas instead of extending them more than 200 varas as would have been necessary to accomplish the adjoinder he obviously intended.

The question to be decided then is the manner in which the two surveys should be constructed so as to best carry out the intention of the parties. Petitioners rely primarily on Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792; Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149; and Humble Oil & Refining Co. v. State, Tex.Civ.App., 104 S.W.2d 174 (wr. ref.). We agree with respondents that Wheeler is not helpful, because the line of the junior survey there in question was monumented on the ground. The closest of the three cases on the facts is Humble, where the State claimed as vacant a gap left by the course and distance calls in the corrected field notes of a junior survey.

A certificate for 640 acres was issued to the International & Great Northern Railroad Company, and was located in Harris County and surveyed by Gillespie. The original field notes called for a section 1900 varas square adjoining the G. Lamb Survey on the south and the Hooper and Goodrich Surveys on the north. These field notes were rejected by the Land Commissioner, and Gillespie then prepared corrected field notes in which the north-south distances were changed from 1900 varas to 1595 varas. The corrected field notes continued to call to begin at the northwest corner of the Lamb Survey and for adjoinder with the Hooper and Goodrich Surveys. Patent was issued on the basis of the corrected field notes for 537 acres, and the remaining 103 acres of the certificate was floated and located in another county.

It was contended there, as here, that since there was no uncertainty as to the location of the south lines of the Hooper and Goodrich Surveys on the ground, the calls for adjoinder with such lines should control the calls for course and distance. The argument was rejected and the ad-joinder calls were disregarded. In holding that the survey should be constructed on the basis of the calls for course and distance, the court said:

“It is true that there is now no uncertainty as to the location of the south lines of the Hooper and Goodrich Surveys, but the evidence fully supports the finding of the court that the south lines of these surveys were open unmarked prairie lines, and that the southwest and southeast corners of both of said surveys were never marked, except by stake and mounds in the prairie, which cannot now be found and identified; and that all were indefinite and uncertain, both on the ground and in the records of the Land Office when the survey and corrected field notes of the International & Great Northern survey were made by Gillespie in 1877-78. But even if the location of the south lines of the southwest and southeast corners of the Hooper and Goodrich were marked on the ground, or could have been located under some applicable rule at the time the International & Great Northern survey was made, still the adjoinder rule of boundary has no application to the instant case, because the adjoinder rule has no application where the facts conclusively show that the surveyor through mistake or conjecture called for the adjoinder, and in such cases the call for adjoinder does not control the call for course and distance, even though the line or corner called for was marked * * *.

“ * * * This demonstrates that Gillespie did not know where the south lines of said Hooper and Goodrich were when he made his survey of the International & Great Northern survey and returned his corrected field notes in 1878 ; and manifestly a call for a survey line, whether marked or unmarked, will not control a call for course and distance, where it clearly appears that the surveyor did not know where the line was. * * * Manifestly, the surveyor and the parties to the grant had a purpose in view when the distances of the east and west lines of the International & Great Northern survey were shortened 305.8 varas, and the acreage reduced from 640 to 536 and a fraction, and that such purpose was to rebuild the International & Great Northern survey so as to not supposedly conflict with the south lines or portion of the Hooper and Goodrich surveys. Manifestly the parties did not intend to cover exactly the same land by the original as by the corrected field notes. If that were true, then there would have been no necessity for the corrected field notes, which shortened the east and west lines and reduced the acreage. Keyser v. Meusback, 77 Tex. 64, 13 S.W. 967. So, when all of the above-mentioned facts and matters are construed or considered together, the course and distance calls of the east and west lines of the corrected field notes of the International & Great Northern survey, which coincide with quantity and configuration of the survey as patented, more clearly and certainly reflect the intention of the parties to the grant than does the call for the south open prairie lines of the Hooper and Goodrich surveys.”

There were a number of boundary problems in Turner, but the one that is of particular interest here concerned the location of the west line of the Yates Survey, which was surveyed and patented on an application covering all of the vacancy between the east line of Block. 194 and the west line of a block of railroad surveys fronting on the Pecos River. The field notes were prepared by R. S. Dod and called to go west an insufficient distance to reach the east line of Block 194 but had a substantial number of adjoinder calls for Block 194. Turner applied for a vacancy between the west line of the Yates Survey and the east line of Block 194. It was his contention that the Yates Survey should be constructed in accordance with the calls for course and distance, while those who owned the Yates Survey took the position that the calls for adjoinder with senior Block 194 should control.

Block 194 had been put in by L. W. Durrell in 1883 as an office survey. The field notes of his western tier called to begin at the northeast corner of Block Z, which had been surveyed on the ground, and for adjoinder with the corners and east lines of the east tier of sections in Block Z. The remainder of Block 194 was then platted in from west to east, and the southern tier of sections was called to adjoin the unmarked and unsurveyed line of Block 178.

Durrell had previously put in Block 178 as an office survey, calling for its southernmost sections to adjoin Blocks C-3 and C-4. This was the situation when Yates applied for all of the vacancy between Block 194 on the west and the railroad surveys on the east. Dod at first located the east line of Block 194 on the basis of the accumulated field-note calls from west to east. After filing his initial report, however, he was instructed by the Commissioner of the General Land Office to bring into Block 194 any east-west excess found in Blocks C — 3 and C-4. Dod found an excess of 301 varas between the southeast corner of Block Z and an unmarked mound which he accepted as the southwest corner of Survey 6, Block C-3. He brought this excess into Block 194 as instructed, and accordingly concluded that the east line of Block 194 was 301 varas east of where he had previously located it. The field notes for the Yates Survey were then prepared, calling for east-west distances conforming to the east line of Block 194 if placed in the ground position last mentioned but also calling for adjoinder with such line.

Before reaching the question with which we are primarily concerned, the Court disposed of several other problems. It held that the north-south excess in Block Z as shown by original monuments on the ground should be prorated between the several tiers of Block Z and then carried eastward into Block 194. This latter conclusion appears to be entirely sound when Durrell had called for adjoinder as he did and there was nothing to suggest a mistake on his part except the excess distance in Block Z. It was also held that the east line of Block 194 should be located in accordance with the accumulated calls for course and distance, and without regard to any excess in Blocks C-3 and C-4. Since this was where Dod had located such line in the first instance, the Court concluded that his ad-joinder calls in the field notes of the Yates Survey should be disregarded and the survey constructed on the basis of the calls for course and distance. It reasoned that:

“The field notes and sketch of the Yates survey prepared by the surveyor show clearly where he placed the west line of the survey. When we look to his declarations in his reports of progress, it becomes more clear than ever the exact position at which this line was placed. Not only does the position at which he placed it not admit of any doubt, but these reports show the reason which caused him to so place it. Furthermore, the field notes calls for course and distance in the Yates survey place the west line of this survey in the exact position at which Dod located the east line of block 194 under instructions of the land commissioner. The computation of acreage upon these field notes calls shows there to be 2,486 acres, the exact amount applied for and purchased by Yates. Thus, it is clear that, when Dod called for the east lines of surveys 33, 32, 31 and 30 in block 194, he was calling for those lines as he had erroneously fixed them. Under this construction, which is certainly what the surveyor actually did, all the calls in the Yates patent are harmonized, and, as stated by Associate Justice Greenwood in the case of Wilson v. Giraud, 111 Tex. 253, 231 S.W. 1074: ‘The latter construction is reasonable, and, since it harmonizes all the terms of the patent, it must be adopted under the general rule for the interpretation of written instruments.’ ”

Respondents cite Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773, and Phillips Petroleum Co. v. State, Tex.Civ. App., 63 S.W.2d 737 (wr. ref.). As we pointed out in State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, there was no evidence of mistake in Camp except an inconsiderable excess of some 35 varas to the mile. The excess was more substantial in Phillips but constituted the only circumstance tending to show mistaken or conjectural adjoinder calls, and it appeared that the junior surveyor there had located a number of corners of surveys in the block he called to adjoin.

Respondents also say that Humble and Turner are to be distinguished on the facts. They point out that in Humble a call for the northwest corner of the Senechal Survey which appeared in the original field notes was deleted from the corrected field notes. The junior surveyor in Turner was on the ground and was shown by his monuments to have first located the east line of Block 194 where this Court eventually decided it should be located. He then rejected that location and wrote his field notes to call for adjoinder with the line in an entirely different position. Here Williams’ corrected field notes of Surveys 49 and 50 are based on office surveys. In the case of Surveys 49 and 50, he did not survey on the ground to some point which he mistakenly supposed was the west line of Block 143; he did not find anything that he erroneously believed was the west line of the senior block. Since he was surveying by projection, he simply calculated the distances which he thought would be necessary to reach the line he wished to adjoin.

In our opinion these factual differences do not constitute a sound basis of distinction. Williams was no less mistaken as to the ground location of the line he called to adjoin than were Dod and Gillespie. Instead of moving his east line to the east as would have been necessary to effect an adjoinder, he reconstructed the twin surveys by decreasing the east-west distances and increasing the north-south distances. A 202-vara strip that had originally been included in Survey 50 was taken into Survey 49, and a 404-vara strip originally included in Survey 56 was added to Survey 50. Our problem cannot be solved then by saying, as was done in Phillips, that if Williams had known the correct distance between his west line and that of Block 146, he would have called for it. It is equally clear that if he had known the facts concerning such distance, he would have decreased his north-south dimensions instead of increasing them.

After correction of his field notes for Surveys 49 and 50, the called dimensions of each rectangle substantially satisfied the 640-acre certificate of the railroad. We are convinced that neither the surveyor, the State nor the railroad intended that the rectangle constituting Survey 49 should have dimensions of 1706 varas by over 2600 varas and an area of 785 acres. While there is ample evidence that Williams intended for his Block OW to adjoin Block 146, this is generally true in any case where an ambiguity arises from inconsistencies in calls for distance and mistaken or conjectural calls for adjoinder. In this instance, moreover, it is plain that Williams was attempting to effect adjoinder with a line he thought was approximately 2116 varas, and certainly less than 2400 varas, from his west line.

Paraphrasing the language of the court in Humble, the surveyor and the parties had a purpose in view when the distances of the north and south lines were shortened and the distances of the east and west lines lengthened so as to embrace approximately the 640 acres to which the railroad was entitled. That purpose was to rebuild the surveys so as to eliminate a supposed conflict with the west portion of Block 143. Manifestly the parties did not intend for the corrected field notes to extend as far east as, or to cover more acreage than, the original field notes. The rectangles described in the corrected field notes contain almost exactly the same number of square varas as those described in the original field notes. When all of the facts and circumstances are considered, it is our opinion that the course and distance calls more clearly and certainly reflect the intention of the parties than do the mistaken calls for the unmarked line which Williams did not even attempt to locate on the ground.

Although respondents argue to the contrary, our decision in this case does not necessarily mean that there is a vacancy 19 miles long extending from the upper southeast corner of Survey 1, to the northeast corner of Survey 56. We have already pointed out that there is a question as to how Survey 2, Block 20314, is to be placed on the ground. When this question is resolved and the facts concerning the ground location of the southwest corner of Survey 1, Block 203)4, have been developed, it may appear that any gap between the east line of Block OW, when located by calls for course and distance, and the west line of Block 203½ is due, as contended by respondents, to a minor error at the upper southeast corner of Survey 1, Block OW, plus the divergence of the lines of the two surveyors. Any case involving those facts will be decided when it arises. It should also be observed that we are not here called upon to decide and do not consider or attempt to decide the effect of the resurveys and patents of Surveys 14, 16 and 56, Block OW, and of the land in Block 203j4. We do hold that there is a vacancy between the east lines of Surveys 49 and 50, Block OW, when properly located on the ground in accordance with Williams’ calls for course and distance, and the west line of Block 143.

The judgment of the Court of Civil Appeals is accordingly reversed, and that of the trial court is affirmed.

Dissenting opinion by SMITH, J., in which GRIFFIN and HAMILTON, JJ., join.

1 . Beginning at a stake and mound at the North East corner of Survey No. 1, Block 203½, * * *; thence North 670.3 varas to the North West corner of Survey No. X Block No. 115 * * *; Thence East 1782.7 varas to * * * the South West corner of Survey No. 5, Block 203; thence North 667½ varas to a stake and mound; thence West 1782.7 varas to the South West corner of Survey No. 6, Block 142 * * *; thence North 10722.3 varas to a stake and mound for the North East corner of this Survey; thence West 500 varas to a stake and mound for the North West corner of this Survey; thence South 12060.1 varas to a stake and mound at the North West corner of Survey No. 1 this block for the South West corner of this Survey; thence East 500 varas to the place of beginning.