HENRY, Associate Justice.
— This suit was brought by the appellees against the appellants Sanborn & Glidden and the Houston
&
Texas Central Railway Company, to try title to thirty-nine surveys of land situated in Potter County and ten surveys situated in Oldham County, each survey containing 640 acres.
The defendants pleaded not guilty, and the defendants Glidden & Sanborn pleaded against the plaintiffs a claim for permanent and valuable improvements, and also prayed judgment against the railway company, which was their vendor, upon its covenant of warranty of title, if plaintiffs should recover. They also caused the receivers of the railway company and the trustees in certain mortgages executed by it upon the lands in controversy to be made parties defendant, and sought to establish against them a prior lien for the purchase money paid by them for the land. The cause was tried without a jury, and the following conclusions of fact were filed by the judge:
“I find that on the 26th day of June, 1874, one John W. Maddox made a written contract with the Houston & Texas Central Bailway Company to locate for it a large number of land certificates in 640-acre surveys, said surveys to be in a block on the Canadian Biver, in the Panhandle of Texas; that under said contract Maddox had a deputy surveyor of that land district to make out in his (Maddox’s) office at Sherman the field notes of such surveys in squares, two deep, showing the Canadian Biver to run through this block. Bone of these surveys were made on the ground as required by law, but the field notes were attempted to be made by said Maddox and said deputy surveyor outside of the land district, from a very imperfect and incorrect meandering of the river made by said deputy while doing some other work for said Maddox a short time before. The railway company refused to receive this work, on the ground that the Canadian was a navigable stream, and required Maddox to make out field notes recognizing it as such by fronting only one-half of the square thereon. This new work was also done by said Maddox and the deputy surveyor in their office outside of the land district. These new field notes were made by having section Bo. 1 to commence its northeast corner at a known object planted as a corner of a previous location, and each subsequent section called to commence at the northwest corner of the preceding number until 109 was reached, which calls to commence at 800 varas north of the southwest corner of 108, and each section subsequent to 109 calls to commence at the northwest corner of the preceding number. All of the surveys call for the Canadian Biver as their north boundary line, and purport to give the meanderings thereof, and give the south line of each to be 950 varas, and the length of the east and west lines to correspond with this and the meanderings given of the north line on the river, so as to contain 640 acres.
“The course of the east, south, and west lines of all the surveys is the same, viz., east and west and north and south. Taking these field notes to be correct, they would represent a block of surveys of 640 acres each, fronting one-half of the square (950 varas) on the south side of the Canadian Biver, commencing at Bo. 1 and running west to Bo. 158, and each survey fastened to the west line of the preceding one.
“The field notes of the surveys thus made out were certified by the deputy surveyor in compliance with the law, recorded in the survey- or’s office, and filed in the General Land Office; and the railway company then paid said Maddox for said work $24 per section, that being the contract price.
“At the time said work was received and paid for by it, the railway company had notice that it was office work, and had not been done on the ground in compliance with the law.
“At the time when said Maddox made said contract with the railway company the plaintiffs were dormant partners therein, and aided
him in making out the field notes as above set forth, and afterward by suit in the District Court they recovered of Maddox their part of the money paid him by the railway company; and they had full notice of how the field notes had been made and of the imperfect meanderings of the river upon which the same were based.
“The surveys from 1 to 108 inclusive can be located without any great variation from the field notes returned by Maddox as above, although in no case except section Ho. 1 would such field notes be strictly correct, and in a great number of surveys the meanderings of the river and length of the east and west lines would have to be radically changed; but when 109 is reached, then owing to a sudden bend in the river to the south, and in some cases a little southeast of south, it is impossible to connect this section with section Ho. 108 without placing it in and on the opposite side of the river, and it is impossible to locate 109 so -as to make the river its north line, without dropping from two and one-half to three miles south of the south line of 108, where the river again turns to the west, and there make a new beginning with nothing to locate it by, and all surveys west of this would be dependent upon this new beginning point. The land in controversy in this suit commences at 120 as it would be thus located, and runs west with the surveys as they would be located by the Maddox field notes calling for 109 as above set forth.
“Ho steps were taken by the railway company to in any way correct the Maddox field notes until the year 1884, and after the filing of this suit, when it had an accurate survey made on the ground of all the sections, and located 109 at the bend of the river two and one-half to three miles south of 108, as above set forth, and each of the succeeding sections were commenced at the northwest corner of the preceding one, as called for in the original field notes; and these corrected field notes were certified by the proper surveyor and returned to the General Land Office, where they are now filed. This was, however, only a short time and as soon as it could be done after said company learned of the defect in the original field notes.
“Prior, however, to this attempt at correction by the railway company, to-wit, in-, 1882, Gunter
&
Munson made application and had surveyed on the ground the land described in the petition, and within the time required by law returned the field notes to the General Land Office, paid the purchase price, and did everything to entitle them to said land under an act of the Legislature, entitled ‘An Act to provide for the sale of a portion of the unappropriated public lands of the State of Texas, and the investment of the proceeds of such sale,’ approved July 14, 1879, and the amendment thereto, approved the 11th day of March, 1881, unless the defendants who own the interest of the Houston & Texas Central Railway have a superior right thereto by reason of the several surveys above set forth.”
The judge filed the following conclusions of law:
“I conclude, that the northeast corner of section ¡No. 1 being the only point called for in the railway company’s original location that can be identified on the ground, this block of surveys must be located by running west from this point and tying each succeeding survey to the one preceding it, and that the only way to do this is to cross the river at 109 and locate the succeeding sections from three to five miles north of the river, and as thus located no part of the land in controversy will be included.
“I conclude, that if it were possible to locate on the ground any point called for in the field notes of 109, so as to give it the river for its north line, it would be necessary to locate it from such point; but it being impossible to do this, as shown by the findings of fact, the remainder of this block must be located as above set forth.
“I conclude, that if the corrected field notes and surveys made by the railway are corrections, and not relocations and appropriations of new lands, that such corrections would have priority over the locations made by the plaintiff, and would entitle the defendants to a judgment.
“But I conclude, that such surveys were such relocations and appropriations of new lands as could not be made after the acts of the Legislature withdrawing the same from location, and such as could not have been made without withdrawing the certificates and proceeding as in the first instance, and that therefore the land in controversy depends upon the rights of the parties under the Gunter & Munson locations.”
Appellants assign errors as follows:
1. “The court erred in not sustaining the general demurrer and special exception contained in said company’s first amended original answer, and adopted by Glidden & Sanborn, because the law under which plaintiffs claim is in contravention of section 4, article 14, of the Constitution of the State of Texas.”
The section here referred to relates exclusively to the sale of land certificates at the Land Office, and does not, we think, affect the validity of the law through which plaintiffs derive their title. The argument of appellants refers to and quotes section 2 of the same article. That section relates alone to the location of land certificates, and contains no reference with regard to such sales as were made to Gunter
&
Munson. Unless the lands in controversy had been previously lawfully appropriated by the surveys made for the railway company, we see no reason for questioning the correctness of the conclusion that Gunter
&
Munson acquired them by their purchase.
2. “The court erred in his first special finding in the several matters pointed out in defendants’ first joint bill of exceptions, said finding not being supported by the evidence, but variant from it, as fully appears in the statement of facts.”
The bill of exceptions here referred to calls in question the correctness of the findings of fact, to the effect that the surveys- for the railway were not made upon the ground, but that the field notes were attempted to be made by the surveyor outside of the land district, “from a very imperfect and incorrect meandering of the river, made by said deputy while doing some other work for said Maddox a short time before.”
Upon this subject F. M. Maddox, the deputy who made and certified the railway company’s surveys, testified as follows: “In 1873 and 1874 I was a deputy surveyor of Jack Land District. During that time I was doing some work for J. W. Maddox 'in locating certificates for the Houston <& Texas Central Railway Company, under a contract that he had with it. These locations were made on the Canadian River, and are what is known as the Houston & Texas Central Railway block Ho. 42. After this work was completed Maddox had me to do some work west of this, so that if he should be able to get other certificates to locate for said company he would be able to make out the field notes without coming- again upon the ground. This work consisted' in running a line along the high land along the north.side of the river west of block 42, and at what we considered proper intervals, making projections from this line into the river and measuring the distance. We also marked some trees along this work, and made bearings therefrom.
“We did not do any work on the south side of the river (where the land in controversy lies), nor did we attempt to make an accurate meandering of the river on the north side, our object being to make such a general survey of the river as would enable us from this work to make out field notes that would appropriate the land on both sides without coming again upon the ground. At the time this work was done the hostile Indians were very bad, especially on the south side of the river, and it would have been impossible to have done any work on that side with anything short of several hundred men, and we had to do the work on the north side in such haste that it was not practicable to be more accurate than we were. In making this work I was assisted by J. W. Maddox, and W. B. Munson, one of the plaintiffs. Said Munson did a considerable part of the work in making the projections to the river as above set forth.
“After we returned to Sherman from doing this work, J. W. Maddox made arrangements to locate a large number of certificates for the Houston
&
Texas Central Railway Company on this land, and in our office at Sherman we made out the field notes for two blocks of surveys in 640-acre tracts of square form, and covering the land two miles on each sirle of the river, as it would be according to our work as above made. Some of these surveys would have the river running through them, and some of them would corner in the river. In other words,
these field notes did not treat the river as a navigable stream. These field notes were regularly certified by me as deputy surveyor, but were not acceptable to the Houston & Texas Central Railway Company; and not long after this I was furnished with some calculations which I understood were made by-Hutchins, a clerk in the Land Office, from the work that I had done on the ground as aforesaid, and was instructed by J. W. Maddox and plaintiffs from these calculations to make out new field notes recognizing the river as a navigable stream by fronting-only one-half of the square thereon. This I did in my office at Sherman without going on the ground, and certified the field notes thus made, and returned them to the General Land Office; and this work represents what is known on the map as the Houston & Texas Central Railway Company’s blocks 46 and 47 — 46 lying on the south side and 47 on the north side of the river. It is not necessary to meander both sides of a river to construct blocks of surveys on both sides. If one side is correctly meandered, this will sufficiently give the meanderings of the other side. In the second set of field notes made out as aforesaid and returned to ■ the Land Office, it was the aim and intention to have block 47 cover and appropriate the land on the north side of the river, and block 46 to cover and appropriate that on the south side.”
There was other evidence to the same effect. The rule is to sustain the findings of the court when there is in the record evidence tending to support them. We think the evidence amply sustains the one now in question.
Other assignments of error object to the court’s conclusions of law and the judgment rendered in pursuance thereof, to the effect, that the railway’s block of surveys “must be located by running west from the northeast corner of section Ho. 1 and tying each succeeding survey to the one preceding it, and that the only way to do this is to cross the river at 109 and locate the succeeding sections from three to five miles north of the river;” and that “the corrected field notes and surveys made by the railway is such a relocation and appropriation of new land as could not be made after the acts of the Legislature withdrawing the same from location, and such as could not have been made without withdrawing the certificates and proceeding as in the first instance.”
Upon the contrary, it is contended that “the true way of locating said surveys is to place them as they were intended by the surveyor to be placed, to-wit, on the south side of the Canadian River, and fronting it as a navigable stream, each survey in succession taking consecutive half-mile frontage; and that sufficient evidence was offered in the field notes, and in the maps as well, to thus locate them, and they could and should have been thus located, though iu so doing it be necessary to place survey 109 so that it woxild not again adjoin survey 108;” and also, that “said survey 109, by changing its conformation
but still following out the intention of the surveyor, and having the proper river frontage and regarding it as a navigable stream, could be so located, for if said survey did cross the river it would be only by cutting through it. Its south line would lie south of the river, likewise a good portion of the east line and its west line, and if any survey would be invalidated it would only be survey 109, and it would furnish and indicate a good and sufficient beginning corner for survey 110 and the balance of said surveys, and the field notes and maps as well would show how these surveys should be located, and they would place them as claimed by defendants; and that the evidence shows and the law holds that the first survey of the land placed the land south of the Canadian River and adjoining it. And the field notes as returned by Maddox were sufficient to identify the land on the ground and placed it there. And if in any particular said field notes failed to fully describe and mark out the specific land claimed by defendants, yet they were an equitable appropriation of the same as to all persons taking with notice of defendants’ claim and rights; and defendants prior to the issue of patents would have a right to correct any mistake in the field notes, so as to definitely describe the lands intended to be appropriated, and the second survey by the Houston
&
Texas Central Railway Company was such correction.”
Actual surveys by which lands granted by the State shall be specifically described and distinguished have always been contemplated and prescribed by our laws. It is true, that under the laws in force when the surveys now in controversy were made for the railway company it was not always regarded as indispensable, however desirable, that the lines of the survey should be actually run and measured on the ground. As was said by this court in the case of Thomson v. Railway, 68 Texas, 397, “the appropriation of the copies of the certificates to the lands described in the field notes certified by the county surveyor legally appropriated the land, even though the correctness of the field notes may have been ascertained by the work formerly done by the deputy or in some other manner than by an actual survey made before or after the copies of certificates issued.”
In this case, not only was no actual survey of the land pretended to be made, but no description of it, accurate or otherwise, was ever acquired in any way. Instead of a survey, an excuse why none was ever made is offered. Danger from hostile Indians, so imminent as to prevent a survey, furnishes a better excuse for the failure of the agent to serve his principal than it does for giving away the public domain without a compliance with the laws of the State. The fact that the danger was so formidable as to prevent the mass of scripholders from making the necessary surveys furnishes no good reason why the particular scrip-holder should acquire the land without a survey.
It was undoubtedly the intention of the surveyor to make the surveys join by locating each succeeding survey upon the preceding one. The river was called for, because it was believed that the surveys when so located upon each other would be also situated upon it. If the river had not existed or been mentioned, the other calls would have sufficiently identified the land. The river was called for in connection with the other calls only because its true position was unknown. It was called for because it was erroneously believed that it would form the northern margin of the surveys when they were located one upon the other according to course and distance. Either the calls for the river or the calls for the connection of the surveys on each other must give way.
Without a complete survey, the surveyor had acquired sufficient information to correctly locate the surveys upon each other by course and distance; but he had not acquired knowledge of the true position of the river, nor did he have information in any way by which he could correctly locate them upon the river. To make the calls for the river control, under such circumstances, would demand not only the disregard of statutes requiring surveys, but also that the known shall yield to the unknown. It would be as easy to say that all the land lying on the principal rivers in the State, if not the whole public domain, could have been as well taken up by going to their sources and establishing monuments there and then simply calling for surveys projecting from them.
While it must be admitted that when surveys are actually made or ascertained, calls for a river will usually prevail over calls for another survey, or for course and distance, the rule is not inflexible. As said by this court in the case of Eobinson v. Doss, 53 Texas, 506: “There are many cases where the course and distance will control natural marks or boundaries, as where it is apparent on the face of the grant that these were inserted by mistake, or were laid down by conjecture, and without regard to rule; and so of a variety of cases which maybe supposed to exist. In the abstract, all other things being equal, a river prevails over a marked line, and a marked line over course and distance. Still, the lowest grade, to-wit, course and distance, is made to prevail over the highest grade, to-wit, rivers, creeks, etc., when, upon applying the calls of the grant to the land, the surrounding and connected circumstances adduced in proof to explain the discrepancy show that course and distance is the most certain and reliable evidence of the true locality of the grant.”
We think the court correctly concluded, that the second surveys made for the railway, being of entirely different land, could not be treated as mere corrections of the original surveys. Railway v. Thompson, 65 Texas, 186.
It is contended, that “the court erred in his fifth special finding, in holding that Gunter & Munson could in any event recover against the
Houston
&
Texas Central Railway Company and Glidden
&
Sanborn, for Gunter
&
Munson had occupied such a fiduciary relation to such company in procuring the surveys, and been so paid by the company in procuring them, that they were precluded from asserting against said company the vacancy of the land, and were precluded from acquiring from the State title in hostility to the title of said company and its vendees. If they acquired any right, such right would be in trust for the company; and said company having done what was required of it by law, or if in any particular1 having left it undone, having done this through the agency of Gunter & Munson, and having paid Gunter
&
Munson, said company would not be compelled in equity to refund Gunter & Munson any sums by the latter expended with full knowledge of the company’s rights and in direct contravention of the company’s interest.”
The contract between Maddox and the railway company under which the surveys were made reads as follows:
“State of Texas, County of Harris.
— Memorandum of an agreement entered into by John W. Maddox, party of the first part, and Robert M. Elgin, land agent of the Houston
&
Texas Central Railway Company, for said company, party of the second part, witnesseth: That the party of the first part is to locate, survey, and return to the General Land Office the remaining 250 land certificates named in a contract heretofore entered into by the same parties, and fifty additional certificates, making 300 certificates, at the rate of $24 silver coin per certificate; the payments for which are to be made as follows: $1200 on the 1st of November next, in case the field notes are returned by that time, and the remainder in two equal installments of $3000, payable on the 1st of March and October, 1874..
“This 26th June, 1874. [Signed] ■ “ Jno. W. Maddox.
“Robt. M. Elgin,
“Land Agent H. &. T. C. Ry. Co.”
Robert M. Elgin testified, among other things, that he objected to the field notes first returned by Maddox, because the surveys crossed the river instead of fronting one-half the square thereon as the law required surveys on navigable streams to be made; and that he afterward returned field notes to the General Land Office representing blocks 46 and 47, the surveys fronting one-half of the square on the Canadian River.
He further testified: “I gave no instructions as to how the change was to be made. I did not know that he was not going on the ground again to meander the river, but did not expect him to do so, as I supposed he had sufficient data to do the work, obtained from making the surveys on the ground and having meandered the river, which was
shown me on his plat. I paid him $25 per section for the first 500 sections, and $24 per section for the balance. I would not have paid him that for an office survey. I could have made that myself. I only knew John W. Maddox in the transaction. I did not know that Mr. Munson was interested in the contract; from circumstances, I suspected that he was. I knew nothing of the error in the surveys until after Gunter & Munson had filed on the land. The first I knew about it Mr. Munson had been to Austin to see the Commissioner of the General Land Office about his surveys, and he came on to see me in Houston and proposed a compromise. The exact terms I do not remember, but it involved the abandonment of our surveys, and we were to get as much land out of his location, which covered the company and State school sections.”
Munson, one of the plaintiffs, testified as follows: “I went to Houston to see Major Elgin, and.informed him of the error in block 46, and told him that I did not believe that his field notes would hold the land, and that the State had put the land on the market for sale at 50 cents per acre, and some one would take it up and buy it. I proposed for the road to give up its claim and I would buy it under this law, and if he would pay half the money to buy the land and half the expense I would secure the land for the railway. I desired to do this, as I had been connected with the matter. Elgin declined this, and I then offered if he would lend me half the money to pay for the land, at 50 cents per acre, I would save the land for him; but he refused, and I then, for Gunter
&
Munson, had it filed upon, surveyed, and returned, under the 50-cent act.”
We are unable to concur with appellants in their claim that Gunter & Munson were estopped from purchasing the lands for themselves, or that in equity they should be treated as holding them for the benefit of the railway company. When they purchased them they did not hold any agency for the railway company or have any confidential relation toward it. While they were the partners of Maddox when the surveys were made, it was Maddox and not them who was trusted by the railway company. Being pecuniarily interested in the enterprise, they were no doubt jointly liable with Maddox for such damages, if any, as were caused by the negligent discharge of their duties.
The finding of the court, that the railway company had notice that the surveys were “office work and had not been done on the ground,” has, to say the least, some evidence to support it without anything to contradict it. The cause of the trouble was, that the field notes returned were the result of “office work” instead of an accurate survey of the river. The result of the mistake was to keep the title to the lands in the State, with the right to sell them to any purchaser it could find, not excluding Gunter
&
Munson. It does not become necessary for
us to hold that the railway company had no recourse upon Gunter & Munson if it had been pursued in a proper time and manner. But from all the facts of the case we do not think that they can be held to hold the title purchased by them from the State in trust for the railway company or its vendees, or to be estopped from asserting it against them.
In the year 1882 the Houston & Texas Central Railway Company sold to appellants Glidden
&
Sanborn eighteen sections of the land in controversy, and conveyed the same to them by its deed containing a covenant of general warranty of the title thereto. Previous to said conveyance the railway company had conveyed all of its lands, including the above, to trustees to secure its bonded indebtedness.
Glidden
&
Sanborn paid part of the purchase money in cash and executed their notes for the balance, part of which had been paid when the final judgment in this cause was rendered, and the remainder of them was still outstanding. They pleaded the warranty against their codefendant the railway company, and against Gunter
&
Munson a claim for improvements made in good faith.
The deeds of trust executed by the railway company were still outstanding when this suit was commenced, and suits were then pending-in the United States Circuit Court for the Eastern District of Texas for their foreclosure, in which suits receivers had been appointed, who, under the orders of said court, had taken possession of the lands in controversy and were holding them subject to the orders and disposition of that court.
The defendants Glidden
&
Sanborn procured from the judge of the United States Circuit Court the following order, upon their petition to make the receivers parties to this suit, to-wit:
“Order. — The prayer of the above petition is granted, with the understanding and proviso that in no event shall possession or control of the receivers of the Houston & Texas Central Railway property be affected or disturbed by any judgment rendered in the above mentioned case. [Signed] “Dow Pardee, Circuit Judge.
“January 14, 1887.”
Subsequently said defendants filed an amended answer in this cause, in which they made the receivers and the aforesaid trustees defendants; and upon a statement of the transactions of all parties with regard to the properties of the railway company, charged that they had equitable claims upon the properties in the hands of the receivers superior to the claims secured by the deeds of trust. They prayed for a judgment against the railway company, the trustees, and the receivers, for the recovery, with interest, of the purchase money paid, and for the surrender and cancellation of their unpaid notes, and against the plaintiffs for the value of their improvements made upon the land.
The judgment of the court was in favor of Gunter & Munson for the land, and against them, in the statutory form, for the value of permanent improvements in favor of Glidden & Sanborn. The judgment also contained the following clause:
“It is further adjudged and decreed by the court, that the defendants J. F. Glidden and H. B. Sanborn do have and recover of the Houston & Texas Central Bailway Company and of the receivers, Charles Dillingham, James Bintoul, and H. S. Easton, as receivers of the properties of the Houston & Texas Central Bailway Company, and to be satisfied from any of said railway’s property in their hands and embraced under the mortgage of July, 1866, or the proceeds thereof, and of James Bintoul and 2sT. S. Easton, as trustees in the mortgage of July, 1866, as above shown, and to be satisfied from any property subject to said mortgage, or the proceeds thereof, before the same or any part thereof is paid to the cestuis que trust under the mortgage of July.. 1866, the sum of $14,628.96, with interest from this date until paid, at the rate of 8 per cent per annum. And it is adjudged by the court,, that said sum is a superior lien to the lien of said mortgage, and is first to be satisfied out of the said properties or the proceeds thereof in the hands of said receivers.”
■ The judgment awards Glidden & Sanborn execution against the trustees and receivers for the amount recovered on the warranty and for their costs of suit, “to be satisfied out of any property subject to said mortgage or any proceeds thereof, and before the same is paid to said trustees or to the cestuis que trust under said mortgage of July, 1866. But the equitable control of said properties by the Hnited States Circuit Court for the Eastern District of Texas shall not thereby be disturbed.”
The judgment in favor of Glidden
&
Sanborn against the Houston
&
Texas Central Bailway Company, upon its warranty, and against Gunter & Munson for the value of improvements, was warranted by the pleadings and evidence, and there does not appear to us to be any valid objection to it in either particular. The view that we take of the judgment, in so much as it affects the receivers and trustees, renders it unnecessary and improper for us to consider any question with regard to the validity or priority of liens claimed by Glidden & Sanborn. Those questions belong to the cause pending in the Hnited States Circuit Court, which has also, through its receivers, the custody of the property now in controversy, and which is subject to its own independent control through its own final judgment.
If the necessary parties were before this court, which we by no means intend to imply, no judgment that we could render would control or in the slightest degree affect the final decision of those issues.
Without any power to enforce it in the least particular, the judgment of the District Court with regard to the disposition by the trus
tees and receivers of the property under their control can not amount to anything more than a mere expression of its opinion or advice to the United States Circuit Court with regard to the proper exercise of its own jurisdiction. The courts of this State are not organized or held for such purposes, and they will not undertake the exercise of such functions.
If there shall be found to be any fund in. its control subject to appropriation upon the judgment in favor of Glidden & Sanborn, the United States Circuit Court will doubtless, upon an application made to it for that purpose, so direct upon the judgment here rendered against the railway company.
The judgment will be reversed in so far as it relates to the trustees and receivers, and the cause as to them dismissed. The judgment will be in all other respects affirmed.
Affirmed.
Delivered June 26, 1891.
Chief Justice Stayton dissenting.
A motion for rehearing was refused.