On Motion for Rehearing. Appellant insists that in the opinion heretofore rendered in this case we misconstrued the agreement of the parties to this suit, as set out in said opinion. If said agreement does not mean that appellee has title to the land in controversy, it is difficult to tell what it does mean; but as the trial court, having the parties to said agreement before it, tried this cause on the issue of boundary without objection from the parties to the suit, we will concede that we have been mistaken as to the meaning of said agreement and will consider the merits of the case as shown by the evidence.
One of appellant's assignments is that the judgment is a nullity, inasmuch as this was a suit to establish the south boundary line of survey No. 173, and the judgment does not establish said line. This was not a suit to establish the south boundary line of survey No. 173, but a suit to recover lot No. 20, in block 78, Ft. Concho addition to the city of San Angelo, which lot is accurately described in plaintiff's petition by objects upon the ground, the identification of which was not and could not be called in question. The judgment follows the description given in the petition, and is that the plaintiff recover of the defendant the land thus described. The executive officer of the court would have no trouble in executing a writ of possession describing the land as described in the judgment. It is true that, if plaintiff (appellee) was entitled to recover, it was because of its ownership of a portion of survey No. 173, and therefore, to make out its case, it was necessary for it to show, not necessarily where the south boundary line of said survey was actually located on the ground, but that it was far enough north to include said lot No. 20. This issue was, in effect, submitted to the jury by the learned trial court in its charge, which instructed the jury to find for plaintiff if the land described in plaintiff's petition was within the boundaries of survey No. 173, otherwise to find for the defendant. Bank v. Webb, 128 S.W. 428, 429.
Appellant's remaining assignments of error relate to the refusal of the trial court to give special charges requested by him. Some of these charges were properly refused, because there was no evidence upon which they could be based; but it is a sufficient answer to all of said assignments of error to say that no other verdict could legally have been found under the evidence in this case than that which was found by the jury.
The field notes of survey No. 173 are as follows: "Beginning at a stake on the west bank of Main Concho for the lower or S.E. corner of No. 174 for the south corner of this survey (calling for two pecan bearing trees). Thence north at 850 varas crossing branch, 1,190 vrs., recrossing said branch, 1,630 vrs., recrossing again, at 2,990 vrs. a stake (calling for two mesquite bearing trees). Thence west 800 vrs. a stake (calling for two mesquite bearing trees). Thence north 370 vrs. to a rock mound made on the south bank of North Fork of Concho river for the N.W. corner of this survey, from which a pecan 8 in. dia. brs N. 51 W. 31 vrs. Thence down same with the bank of the North Concho and its meanders to its mouth. Thence up the W. bank of the Main Concho and its meanders to the beginning."
The field notes of 174 were corrected before it was patented; but neither the corrected field notes of this survey nor the field notes of subsequent surveys Nos. 680, 680 1/2, nor 681, afford any light as to the true location of the boundary line between 173 and 174 as originally located, which is the material inquiry in this suit. The original field notes of 174 are as follows: "Beginning at the S.W. corner of sur. No. 173 (calling for two pecan bearing trees). Thence north 2,990 vrs. to stake. Thence east 950 vrs. to stake. Thence south 4,610 vrs. to stake (calling for two pecan hearing trees). Thence down the river with its meanders to the beginning."
The following map will aid in properly understanding the matter in controversy:
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
No evidence was offered as to the location of the southwest corner of 174. The bearing trees called for at the southeast corner of 174 and the southwest corner of 173 cannot now be found; but there does not appear to be any controversy as to the location of said corner. Three surveyors testified on the trial of this cause as having run from said corner. The undisputed testimony is that the mesquites called for in the field notes of 173 cannot be found, and no one testified that he had ever seen either of maid trees, or the stakes called for, nor was any effort made to establish either of the inner corners *Page 1177 of 173 or the northwest corner of 174 by reputation. The surveyors Garden and Farr testified as to finding a pecan stump on the north bank of Main Concho, which will fit the calls for the upper corner of 173, but that, if said corner be thus located, the east line of said survey run out course and distance will be 485 varas, instead of 370, as called for in the field notes.
The construction of survey 173 most favorable to appellant would be to begin at the upper corner of said survey as established by said pecan tree, and, reversing the calls, run thence south 370 varas, and thence west 800 varas for the second corner of 173 called for in the field notes, and put the excess of 115 varas in the west line of 173, thus making it 3,105 varas, instead of 2,990, as called for in its field notes.
Farr testified that to adopt the pecan bearing tree on the south bank of the North Concho river as the one called for in the field notes, and run south 370 varas, and thence west 800 varas, would place all of lot 20, block 78, in survey 173 by 32 feet. According to Garden's measurements, the north line of 173 as thus located would include said lot No. 20 by 36 feet. No testimony was given by any one to the contrary. Appellant proved by the surveyor Goodfeller that to begin at the water's edge, instead of on the bank where the call for said pecan, if it be the bearing tree called for, would place the upper corner of 173, and run thence south 370 varas and east 800 varas, would not include the land fenced by appellee, and this corresponds with Garden's and Farr's testimony, for this would be to place the south line of 173 further north 42 feet. But no reason appears why said line should be run to the water's edge. Such is not the usual manner in which surveys in this state bordering on streams are made. The call is for a stake on bank of river, and to measure back the course and distance from said pecan stump would put the corner on the second bank. There are three banks of the river at this point. The evidence shows that there is no other pecan tree anywhere in that vicinity, and no indication that any other was ever there.
Nothing appears in the evidence to indicate that the true lines of survey 173 can be more accurately retraced by beginning at the upper corner of said survey and, reversing the calls, run south 370 varas, thence east 800 varas, and thence south to the Main Concho river, rather than to begin at the corner on the Main Concho as called for in the field notes, and run thence north 2,990 varas, thence west 800 varas, and thence north to the North Concho river. To thus run survey No. 173 would include said lot No. 20 by 130 varas, or 470 feet. The testimony as to this is undisputed. It might be allowable, under the rules for determining boundary lines, to divide the excess of 115 varas from the Main Concho to the North Concho between the first and third lines of survey 173. If this excess was divided equally between said lines, survey 173 would include said lot 20 by 141.7 feet according to Farr, and by 145.7 feet according to Garden. If the excess was prorated according to the length of said lines, survey 173 would include lot 20 by 67 feet according to Farr, and by 71 feet according to Garden's measurement. So that, by any rule for the ascertainment of boundaries, the undisputed evidence shows that appellee was entitled to recover.
If survey 173 1/2 be treated as a contemporaneous survey made by the same surveyor who made surveys 173 and 174, which fact does not appear from the record, the result would still be the same; and no other conclusion could be reached than that the land in controversy is included in survey No. 173.
For the reasons above stated, the motion for rehearing is overruled.
E. T. Jett, for the motion.