On Motion for Rehearing. On motion for rehearing appellee contends that the record discloses that the boundary line between appellants' and appellee's land was established by survey on the part of the owners of sections 1274 and 1265, followed by the building of a fence thereon, which was recognized as the boundary line for many years, and which thus constituted a boundary line by agreement. The evidence referred to in support of this contention is to the effect that Lofton, the agent for the Llano Live Stock Company, under whom appellant claims, in the year 1903 had a survey made for the east lines of section 16 and other surveys in block J to the north and south of it, and that he soon thereafter built a fence along such line. It seems that section 16, and we assume also the lands to the east of it, was in the pasture of the said Llano Live Stock Company. It does not appear just what, if any, lands were owned by the said Live Stock Company, nor whether said fence was erected as a dividing fence between different pastures of the said company, or as a division fence between the pasture of said company and other persons. Appellee testified that Lofton subsequently gave him permission to tie his fence onto this fence, supposed to have been built on the east line of section 16. The line referred to was evidently run for the east line of section 16, with its full complement of 640 acres. The appellee and those under whom he holds only bought from the state the west three-quarters of section 16, so that in no event could it be said that this fence was supposed to be on the boundary line of appellee's land. There was no pleading of establishment of the boundary line by agreement or estoppel, though this perhaps was not necessary to a raising of the question. Eddie v. Tinnin,7 Tex. Civ. App. 371, 26 S.W. 732. The court submitted no such issue to the jury, and the case does not seem to have been tried as if any such issue was in it, and we do not think that the evidence is sufficient to raise an issue of establishment of the boundary by agreement or acquiescence.
Other propositions presented in the motion for rehearing have already been disposed of by our former opinion. We do not regard our holding as being in conflict with the cases of State v. Post, 106 Tex. 468,169 S.W. 407; Id., 169 S.W. 405; Id., 106 Tex. 500, 171 S.W. 707. Those cases simply held that a resurvey could not be made to embrace land not embraced in the original field notes or location. The field notes of section 1274 do embrace the land in controversy, though it may be also included within the field notes of section 16.
The motion for rehearing is overruled.
HUFF, C.J., not sitting, being absent in Austin, serving on committee of judges.