The fact that Justice A. G. BROOKE is disqualified in this case makes it more regrettable to the author hereof that he is unable to agree with the majority of the court, as constituted for the determination of this case.
Upon an examination of the statement of facts in this case, the first thing that appears is an agreement between the parties to the cause of action, as follows:
"It is agreed by and between the parties to this cause as follows:
"(1) If the land in controversy is on the Nathaniel H. Cochran league survey in Newton county, Tex., or on the W. C. Armstrong survey in Newton county, Tex., or partly on both that it belongs to plaintiff in the above-styled and numbered cause, and that in such case the *Page 755 plaintiff is entitled to recover of all of the parties to this suit the land in controversy, or that if any part of the land in controversy is on the Nathaniel H. Cochran league or on the W. C. Armstrong survey, that the plaintiff herein is entitled to recover such part.
"(2) That if the land in controversy is on the Richard Sims league survey in Newton county, Tex., the defendants herein shall have judgment for such part of the land in controversy as is on said Richard Sims league, and that as to such land plaintiff herein shall take nothing, and that if any part of the land in controversy is on the Richard Sims survey, as to such part plaintiff is not entitled to recover, and that defendant shall have judgment for such part of the land in controversy as is on the Richard Sims league.
"(3) If, under the foregoing, plaintiff herein is entitled to recover any part of the land in controversy, he shall have judgment for such damages, if any, as he may be able to show by the evidence, same to be awarded against the defendant or defendants, if any, causing same, as shown by the evidence.
"(4) If it should be found that there is any conflict between the said Cochran and Armstrong surveys and the Sims survey, either or both, affecting the land in controversy, the right to the part of the land in controversy in conflict, if any, shall be determined by the principles of law applicable to the priority of said surveys, subject to the foregoing terms of this agreement."
In the latter part of the first paragraph of the majority opinion, my Brethren use the following language:
"The matters at issue in this cause can and should be classified as follows:
"First. The location of the boundary line between the W. C. Armstrong survey and the Richard Sims league.
"Second. The boundary line between the south part of the N. H. Cochran survey and the said Richard Sims league, the appellee owning the Armstrong and Cochran surveys and the appellants that portion of the Sims survey not in conflict with the Armstrong and Cochran surveys."
It is the opinion of the writer that the law would determine the rights of the parties under the rule of major and minor, or older and younger, surveys, regardless of the statement quoted above in the majority opinion; but, it being couched in the language that it is, he has deemed it not unwise to copy in this opinion the agreement of the parties to this suit, showing by the terms of the agreement that the older survey will take precedence over the junior survey, and that in any conflict as to the boundaries of the Armstrong survey and the Richard Sims league, and the Cochran survey and the Richard Sims league, the Richard Sims league, being the older, would have precedence over the other two surveys.
In boundary suits, the writer hereof understands that there are three controlling principles that should govern in fixing boundaries in dispute, and they take precedence in the order herein stated: First, calls for natural objects; second, calls for artificial objects; and third, calls for course and distance. So, if the evidence of this case shows natural objects on the ground, such as witness trees, creeks, mounds, sloughs, etc., identified by the field notes of the original patent still on the lines and at the corners, as called for in the original patent, artificial objects and course and distance, of necessity, must give way to such natural objects marking the footsteps of the surveyor who made the original field notes. If such natural objects cannot be found upon the lines and at the corners, as called for by the original field notes, and artificial objects, such as stakes and artificial mounds, are found on the lines and at the corners as called for by the field notes of the original patent, then these would govern, and the survey would be so constructed. But if neither natural objects nor artificial objects can be found, so marking such lines and corners, then, as a principle of law, the third principle would be the guide by which to determine where the land actually lay; that is to say, having a known corner, the survey would be constructed by course and distance, as designated in the original field notes in the patent.
In the case under consideration, there is no question about the northeast corner of the Richard Sims league; all parties agree as to the location of this corner, and agree that the original witness trees at this corner are still standing. It is also agreed, by every witness who testified in this case, that a well-marked line of proper course and distance from the northeast corner of the Richard Sims league, in accordance with the calls in the original patent for the north boundary line of the Richard Sims survey, is on the ground now, out to Cow creek, a distance from said corner of about 840 varas. There seems to be no contention as to the proper south line of the Richard Sims league, except as to its length, and as to where its southeast corner is, and as to where its southwest corner is, one surveyor placing the southeast corner about 368 varas further east than the other, and the same surveyor placing the southwest corner about 408 varas east of the corner as established by the other surveyor.
It will not be out of place to state here that, after a careful reading of all of the evidence in this case, the writer is of the opinion that the appellant has advantage of, at least, two of the controlling and directory principles of law governing the fixing of the boundary lines of disputed surveys, to wit, natural objects, and course and distance.
The majority opinion quotes the entire 41 findings of fact, as filed by the trial court, as a basis for the facts governing the opinion of affirmance in this case. The findings of fact, as filed by the trial court, are so drastically called in question by appellant's counsel, both in his original brief and more especially in the motion for rehearing in this cause, it is deemed not only not unwise to here quote from the statements of facts adduced upon the trial of the cause, but necessary and proper to do so.
*Page 756In the third finding of fact, the trial court says:
"I find that the plat introduced in evidence by the defendants made by the witness R. W. Priest correctly shows the work done by him on the ground, and shows the relative position of the west boundary line of the Sims, and I find that at the corner treated by the witnesses for plaintiff as the southwest corner of the Richard Sims (the true southwest corner of the Richard Sims being the beginning corner of said Sims), there is now standing, at the proper course and distance, a magnolia tree, a block from which was cut out and introduced in evidence in this case and showed, judging the diameter from the block, to have been about 12 or 14 inches in diameter. Said block itself appears to have been cut out to a depth of about one-third of the diameter of said tree, and said block itself showed about 50 rings, and showed to be old enough for the original bearing tree; but no marks were shown to have been upon it."
A diligent search and consideration of the statement of facts filed failed to show the introduction in evidence of any such block from any such tree. There is much testimony about cutting a block from such a tree, some of the witnesses testifying that the tree was cut down and a block taken from it; some of them testifying that a small chip was cut out of the tree, so as to cut out certain marks or letters on the tree, and upon the line as run by Mr. McMahon from what he designated as the southwest corner of the Richard Sims league (the magnolia tree from which the block seems to have been taken, considered by him to be a marking tree for that corner, although he admitted that it was a small tree for such corner, and that it had no marks on it that he recollected), northwardly from said corner, a number of blocks were cut out of trees along that line to test the age of that line, and it shows by all of the witnesses that that line could not have been run more than 50 years ago. Again, there is testimony as to blocks cut out of trees on the east boundary line, as traversed by Priest, which shows that line to have been run 70 to 72 years ago. These facts seem to be undisputed in the record, but no witness testified as to such block having been cut out of a magnolia tree at the southwest corner, as claimed by the McMahon survey, about one-third of the diameter of the tree, and that the block showed about 50 rings, and showed to be old enough for the original bearing tree, nor is any such block made a part of this record, nor does the statement of facts show that such block was introduced in evidence. On this point, Mr. McMahon, one of appellee's surveyors, testified:
"At the southwest corner of the Sims and northwest corner of the Linville, the magnolia as called for in the original field notes of the Linville and of the Sims is standing. I found a magnolia there marked that fit the course and distance for that tree, and the distance called for in the Sims in going north 80 east on the south boundary called for creek at 100 varas, and I found that distance hits the creek all right, as called for in the original field notes. My recollection is that there were some letters on the magnolia. This don't show, but it strikes me there were some letters on the tree. I am not sure what they were. My field book would show, I suppose. From that point I ran a trial line north 10 west. * * * The Sims calls to run north 10 west from that point to a point opposite the southeast corner of the Cochran, N. H. Cochran. I found that the calls north 10 west wouldn't trace the line found on the ground. I ran to the right of the line, to the east. When I ran north 10 west from this point it brought me out east of this point. So, I checked on that and took the course that that would trace it, which is north 12 degrees 45 minutes west. * * * This line is a marked line, hacked and blazed, and there is some corners along on this line, the divisions, the Lewis on this side and the Sims on this side. It seems to be an old line. I remember finding different ages in marks along the line. It was run more than one time. I found after I got to the southeast corner of the Cochran, in order to trace the old line on the ground, I have to change that course from north 12 degrees 45 minutes west to north 10 degrees 50 minutes west, to trace the line on the ground. * * * We found marks on the west line. We cut into several trees along there. The way to tell the age of a mark is by cutting into the tree. * * * It is regarded by surveyors as an absolutely certain way. I don't remember what we agreed upon about how old the line was, but we chopped into some timber, and Mr. Priest counted the rings, and so did I. I counted on more than one tree. We found one tree, a beech tree that we took to be 50 years old. I don't remember that it was the oldest. Probably it was as old as any we cut out. Mr. Priest didn't show me a single mark which would show the line to be 72 years old. I didn't consider one tree; I didn't place a great deal of importance on that being a marked line. This survey of the Sims was about in about 1834. That line, that is as old a line as there is in the woods anywhere."
On cross-examination, Mr. McMahon testified as to the magnolia tree that he claimed to be the southwest corner of the Sims league, as follows:
"I don't remember any discussion with Mr. Priest about that magnolia tree. I didn't admit that it couldn't have been the tree called for by the field notes, while it is possible that it could have been another tree that stood near there. It wasn't my opinion that it couldn't have been the tree called for. I have always thought that was the corner, that tree. That it was the tree called for in the original patent. The correctness of my work is not necessarily based on that being the tree called for in the patent. I carried Mr. Priest down there because he wanted to go down there. I don't know whether I could ascertain the age of a tree or not, I have never had any experience along that line. We cut out those letters that was on the tree is my recollection. I never bothered the marks until Mr. Priest was there with me. We didn't determine anything by chopping it out. It didn't prove a thing. We just took a small chip out about the width of the letters. My recollection is these letters must have been M. B. It strikes me it was; I am not sure that it wasn't the initials of the Sims. I wouldn't undertake to say how old they were. According to my opinion, that was the original bearing tree called for in the field notes. I wouldn't say straight out if it hadn't been at the distance called for. If it was the tree called for in the field notes it didn't grow much. I said it wasn't more than 12 or 14 inches in diameter. It was a small tree, though. I don't know how much a magnolia would grow in 70 years."
(The testimony quoted above will be found on pages 2 to 16 of the statement of facts.)
Again, on page 61 of the statement of *Page 757 facts, Mr. McMahon, testifying on cross-examination, said:
"On the west line we chopped out some trees. Mr. Priest was chopping this out and showing me, and I wanted to know. I had no experience in counting rings at that time. I came back to accommodate the Boynton Lumber Company. They asked me to. We didn't discover anything on that line over 50 years old."
It will be observed by the testimony of appellees' surveyor, as quoted above, that while he first stated that he found the original tree marking the southwest corner of the Sims, yet, finally tested, his testimony is that It was not marked as the field notes called for it to be marked; that it did not prove any-thing, and, again, that the line he ran from that point northwardly to find the northwest corner of the Sims league was not run in accordance with the field notes, and the line he found did not fit the field notes of the Sims league, and, instead of being a straight, continuous line between the southwest corner of the Sims and the northwest corner of the Sims, that it was a broken line running from his supposed southwest corner north 12 degrees 45 minutes west, instead of north 10 degrees west, as called for in the original field notes, and he runs on such angle, making a corner that is not called for in the original field notes, on what he claims to be the west boundary line of the Sims league, and from that corner he runs north 10 degrees 50 minutes west, In order to trace the line he claims to be the original west boundary line of the Sims league to what he claims to be the northwest corner of the Sims league. It is to be noted that the magnolia tree he claims to be a marker of the southwest corner of the Sims league is only 12 or 14 inches in diameter at this time, and 70 odd years ago the original field notes called for a magnolia tree 10 inches in diameter. The original field notes call for the magnolia tree marked as a witness tree. There is no testimony or contention in the statement of facts that the magnolia tree McMahon claims for the southwest corner of the Sims has any such marking. It is certain, therefore, that the magnolia tree he claims cannot be the tree mentioned by the original surveyor of the Sims league. Again he says the test they made for testing the age of the west boundary line, as he claims it to be, showed that line to be not more than 50 years old. If that line is not more that 50 years old, it cannot be the line run by the original surveyor of the Sims league in June, 1835, and therefore McMahon, according to his own testimony, did not trace the footsteps of the surveyor who originally surveyed the Sims league, but, on the contrary, he traced another and a different line, run at least 20 years after the Sims league was surveyed, and therefore, by his own testimony as to corner, course, and distance, and age of the line, he proves conclusively that the line he claims as the west boundary line of the Sims league is not the line as established by the surveyor in 1835. It is to be noted also, that the evidence is silent as to the witness trees on this west line, out of which they cut chips to test the age, being trees mentioned in the original field notes.
R. W. Priest, appellant's surveyor, on page 39 of the statement of facts, testified:
"We traced the south line through, and my 5,000 varas carried me across as shown on that plat to within 25 varas of a large magnolia tree, standing 2 1/2 or 3 feet in diameter at the corner I established as the southwest corner of the Sims. That would be 25 varas over the distance. It is an old scarred tree. I couldn't detect any marks on it. It is a very large tree, one of those old fellows. There seemed to be some scars on it; whether they were blazes or scars I couldn't tell you. Fitting that tree as a bearing tree, I found two or three blazes going north 10 west from there. I traced that line up, and there is a red oak across the west line of the survey. I ran up there to that tree, which would put me about the same as that gum tree I described awhile ago, being marked on the west line 20 varas west of me. (The testimony as to the gum tree will be found on page 37 of the statement of facts.) That is about in line with the magnolia. When I ran south to this fence from the southwest corner of the north half, I was about 20 varas east of this gum tree that I found with the marks on it. I did not cut into those trees. The blazes on those trees were very old. We cut out blocks along the line claimed by plaintiffs as the west boundary line. I counted 45 or 46, and he could get 50. We had a laugh over it, and I told him we wanted a line 25 years older than that. That was the west boundary line as claimed by plaintiffs. When we started off the first call we came across was the magnolia on the bank of the creek. Mr. McMahon was with me, and he told me the magnolia tree was standing there, and there was an old marked line from there going out north. We went there, and at the crossing of the creek, he says that corner is right over in there, pointing north from the way we were going, and when we got out there somewhere I says, `Mr. McMahon, where is that tree, I want the magnolia.' He says, `There it is,' and pointed to a tree 10 or 12 inches in diameter. I said: `You don't think that tree is 75 years old, that small magnolia tree, thrifty looking tree? You are too good a surveyor to tell an old man like me that tree is 75 years old.' He said: `I always had my doubts about that magnolia tree. I will show you the old line all right.' So we ran right up the line, right up the creek. I said, `It is very strange that they would put the corner right on the bank of the creek and run down the creek both ways without calling for that creek anywhere.' We cut out the first old tree we came to, and made our count, and then we cut out two more of them and counted them, and he said the line, he didn't think, would exceed 50 years old. I said we would agree that it was 50 years old. The line didn't run with the compass, and when we got to this corner between the Cochran and the survey south of the Cochran line, he changed his veniere plate to follow it up to the corner. It ran at a different angle, showing that it was not a straight continuous line from one corner to the other, that should be one continuous line. Running south from what I established as the southwest corner of the Sims, I found one blaze about like this up there. I didn't cut it out, and don't know how old it was. In running the Linville they start at a point south 80 degrees west from the creek. If you were 8 or 10 varas south of the original line as run by them, you would cross the creek may be 500 varas from where I establish as the *Page 758 southwest corner, and if you were 8 or 10 varas north of that, you would cross the creek in the neighborhood of 100 varas. The corner where Mr. McMahon showed me is now in the creek. * * * The Linville doesn't begin at the southwest corner of the Sims. That is about the sixth or seventh corner of the Linville. The Linville northwest corner is the beginning corner of the Sims, the Sims being a junior survey. * * * The magnolia tree standing on the bank of Cow creek on the line established by Mr. McMahon is a thrifty looking magnolia, and looked like about 10 or 12 inches in diameter, not over that. I don't think it was 75 years old. The magnolia I use as a beginning corner could have been there then. That tree is apparently old enough to have been the original tree called for. * * The location of that tree would justify my belief that it is the original tree called for. I had only 25 varas excess to get to it. That is a very small excess in a 5,000 vara line. The blazed trees both north and south of the magnolia tree found by me show to be on a line with that."
Priest's testimony is unequivocal. His work is in accordance with the field notes, as called for in the original patent. The other surveyors admit that their work is not in accordance with the original field notes. Priest finds evidence by natural objects, the gum tree and the red oak tree, for the establishment of his west line, added to his correct work as to course and distance. McMahon and the other surveyors testifying find what they claim to be evidence of natural objects marking the west line, but, when tested by rules governing surveyors as to age of lines, prove conclusively that their west line cannot be the original west line.
The Sims league, as shown by the patent, is a parallelogram 5,000 varas length on each side. Hence the south boundary line of the Sims is 5,000 varas long. The Linville league, by its field notes, has seven corners and the north boundary line of the Linville league is the south boundary line of the Sims league, so far as it extends, but the north boundary line of the Linville league is only 4,860 varas long, as shown by the field notes and testimony of the witnesses. It, therefore, is a mathematical impossibility for the north boundary line of the Linville league to be the entire south boundary line of the Sims league, because the Sims south boundary line is 5,000 varas long. Suffice it to say here that the witnesses finally agree as to the southeast corner of the Sims league on the Linville northeast corner. As we read the testimony, they also agree as to Priest having found the original east boundary line of the Sims league from the agreed northeast corner of the Sims league to the southeast corner of same. This being so, there is virtually an agreed southeast corner, and, this being true, it follows that the south boundary line of the Sims league must pass beyond 4,860 varas, the approximate point of appellee's southwest corner of the Sims league. If McMahon had found a corner tree for the southwest corner of the Sims, where he claims that corner to be, and then found a line which, under test, showed to be a line old enough for the original west line of the Sims, some credence might be given to his claim, but when he admits that the corner, as placed by him, is 140 varas east of where the corner should be by a correct measurement, and, again, when he admits that the line he claims to be the west line is at least 20 years too young for the original line, and yet again, when he admits that the west line, as claimed by him, is a broken line, putting an extra corner in the Sims league not called for in its field notes, and run by a different variation (each end of his broken line) from any variation called for in the original patent for the west boundary line of the Sims, it occurs to the writer that he admits that the line he claims is not the line as run by the original surveyor; and, again, when he crosses Cow creek six times in tracing this line, without a single call for Cow creek, it occurs to the writer that he fails upon the establishment of his line from every legal standpoint, natural objects, artificial objects, and course and distance.
On the other hand, Priest says that he ran the proper course and the proper distance to find the southwest corner of the Sims league, and 25 varas beyond the place where he should have found the Sims southwest corner at the end of 5,000 varas, he found a magnolia tree 2 1/2 to 3 feet in diameter, marked and scarred, an old tree, but he could not say that it had axe marks as a witness tree, but that it was a tree old enough to have been there, and to have been the tree mentioned in the original field notes, and, again, going north 10 degrees west, as the original field notes called for the west line to go, he found some blazes, very old, and especially does he testify as to an old gum and a red oak marked and standing about 20 varas west from the line he ran as the west boundary line, and that these trees were on line with the magnolia tree he spoke of as being 25 varas from the point he measured to, as the south boundary line of the Sims.
A witness by the name of Singleterry, who had lived in the section of this line since 1880, said that he was with Mr. Woods (the surveyor who made the map forming a part of the majority opinion in this case), when he surveyed the west line of the north half of the Sims league, and that the line run by him and Woods was about where Priest established the west boundary line of the Sims; that they did not find the southwest corner because there was an old field there; said that they did trace the west line, and that Woods said it was the correct line, and that that line Woods said was the correct line was about a quarter of a mile west of where McMahon claims the west line to be.
J. K. Wilson, plaintiff's witness, page 91, statement of facts, testified:
"We went to the northwest corner of the, Priest line. We found some stump holes. It didn't seem to satisfy them, the best I recollect. There was signs from this old corner *Page 759 down there to where that corner was, and we just followed the surveyor with the chain. They were new marks. I suppose Pope tried to identify that corner; he wasn't satisfied. I heard him complain about it. In running the old one, he said, `this fits up all right.'"
Priest says, page 47, statement of facts:
"At my northwest corner I found only a stake and stump hole."
On page 34 he says:
"I have made a thorough survey of this league (the Sims league). I made this map. It is a correct map of outside boundaries. It exactly shows the work done by me on the ground. (Here the map was offered in evidence, from which the plat or map hereinafter mentioned is made, and the one here attached as a part of this opinion is an exact reproduction of the original map introduced, only on a smaller scale, furnished for me through the kindness of Mr. George White, county surveyor of Jefferson county, Tex.) When I first went down there, I went from the northwest corner, and there is an old gentleman by the name of Lewis, Mr. Martin Lewis, who showed me the place where the two black lines cross here, as being the northwest corner of the league. That is the corner established by me. There is a stake there, and he showed me an old stump hole, where he said the tree was destroyed. Some one else informed me there was another corner, which is the corner claimed by plaintiff."
Thus we have testimony of different witnesses substantiating the correct placing of the northwest corner of the Sims league by Mr. Priest.
There is no question as to the northeast corner of the Sims league. All parties agree also as to the correctness of the line from the northeast corner of the Sims league westward to Cow creek, the line being reasonably marked up to Cow creek. The Priest north boundary line of the Sims is a continuous line running the proper course and the approximate distance to where he contends the northwest corner of the Sims league to be. The McMahon line is not a continuous line from the northeast corner, but at Cow creek there is an offset of 80 varas, a direct disputation of the original field notes. The northwest correr, as established by McMahon, is short of distance, and by his own admissions, at least 20 years too young for the original survey, and cannot be reached by running the course called for in the original patent from the agreed northeast corner, but, on the contrary, would be out of line. It is true the trial court found, as a matter of fact, that there was a post oak tree at the northwest corner, as established by McMahon, but the undisputed evidence shows that post oak tree about 5 or 6 inches in diameter, and McMahon himself says he wouldn't say that was the original corner tree, and the trial court claims only that it could be made to fit very well. Old citizens, witnesses for both the plaintiff and defendant, testify as to the stump hole at the Priest northwest corner, and one of them, who originally showed Priest the northwest corner some 16 years ago, told Priest that where the stump hole was was the original witness tree of that corner.
A careful perusal of the testimony in the case shows conclusively, appellee's witnesses themselves finally so admitting, that the line run by Priest as the east boundary line of the Sims is the original east boundary line called for in the field notes of the Sims survey. Priest testifies unequivocally as to the marking of this line by different kinds of natural objects, and that he cut blocks out of the marked trees on this line, and that they showed the line to be 70 to 72 years old. He also found the corner, according to his testimony, which is practically admitted by appellee's witnesses, called for in the original field notes of the Sims league as the southeast corner of the Sims league. The testimony on this line is exhaustive, but we deem it unnecessary to quote it directly.
The plat filed herewith, a copy of the original Priest map on a smaller scale, and made a part of this opinion, shows all of the different lines testified about by the witnesses both for the plaintiff and the defendant, and shows clearly the incongruities and patent errors of the lines claimed to be the boundary lines by appellees, as well as the lines claimed by the surveyor, Priest, to be the correct lines of the Sims league.
There is a maze of testimony in the statement of facts as to the surveys which have nothing to do with the fixing of the boundary lines of the Richard Sims league, and is not necessary to be discussed, and as we view the case, many of the findings of fact of the trial court are absolutely superfluous, being based upon such testimony, for:
"It is only in the absence of other means of identification that known calls in other surveys can be appealed to, to locate a tract of land, as the true course of a survey, or line, or corner, should be determined by finding the lines and corners actually made on the ground by the surveyor." Lafferty v. Stevenson, 135 S.W. 216; Taft v. Ward,58 Tex. Civ. App. 259, 124 S.W. 437.
Again:
"There is no rule by which junior surveys can control or even have any effect upon the location of a senior survey." Ewell v. Hauser, 140 Ky. 459,131 S.W. 186.
And again:
"A survey takes its position on the ground according to its own field notes, uncontrolled by the calls in the field notes of junior adjoining surveys." Williams v. McLeroy, 135 S.W. 251.
Appellant in his motion for rehearing also cites Anderson v. Stamps,19 Tex. 460; Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S.W. 1094; State v. Sulfiow, 60 Tex. Civ. App. 615, 128 S.W. 652; Ramseaur v. Ball,59 Tex. Civ. App. 285, 125 S.W. 590; Polk County v. Stevens, 143 S.W. 206.
The syllabi quoted by appellant's counsel from these authorities we believe are correct propositions of law. We have not read all of the cases, nor have we proved the citations, except as to those quoted from; but the writer hereof believes that two of the *Page 760 three controlling principles in fixing the boundaries of a survey of land under the laws of Texas have been met by the appellants in this case, to wit: First, by natural objects; and second, from a known agreed corner, by course and distance. He thinks, also, that there is sufficient agreed testimony on the one hand and undisputed testimony on the other to show conclusively, by a great preponderance of the testimony, that the Richard Sims league was located upon the face of the earth by the original surveyor substantially as the surveyor Priest located it, and, such being true, the appellants should have recovered in this case, and therefore it is his further opinion that the judgment of the trial court should be reversed, and judgment should have been rendered in this court in favor of the appellants.