In my opinion, the record discloses the necessity for remanding the cause for a retrial solely for the purpose of fixing the boundaries to a tract of laud to contain 100 acres only, with the San Jacinto river as the fixed northern boundary thereof, the other boundaries to be located upon the ground by course and distance calls, to conform as near as is practicable to the field notes the deeds of June 29, 1868, and November 4, 1869, which are fully set forth in the original opinion.
I have arrived at the above opinion by assuming (because of the jury's verdict) that prior to her deed of May 18, 1858, to Adelard Bourgeois, Sarah Goodman sold or had contracted to sell the 100 acres to be selected to J. B. Woodyard and Eliza Morgan, which sale or contract of sale was known to Bourgeois at the time he purchased from Sarah Goodman, and that Woodyard and Morgan exercised the privilege and made the selection of the 100 acres. Each of the deeds of June 29, 1868, whereby J B. Woodyard conveyed his interest by metes and bounds to the 100 acres to John and Mary E. Thornton, and the deed of November 4, 1869, whereby E. J. Hogan (formerly Eliza Morgan) conveyed her interest by metes and bounds to Mrs. E. J. Humble, refer to the Sarah Goodman deed of April 11, 1860, and the three deeds, when construed together, show an intent and purpose to sell, select, and locate only 100 acres. By making the selection and location, the Woodyard and Morgan tract became segregated from the Bourgeois tract. This segregation was brought about by a selection, and not by a partition. The record fails to disclose any issue of estoppel, whereby the Woodyard-Morgan tract is entitled to more than 100 acres of land. Under this state of the record then, the appellee should be allowed to recover only 100 acres of land, and no more. By the field notes and the evidence, it is quite clear that the 100 acres selected were located upon the San Jacinto river, the river forming the north boundary line. By the evidence, it is further shown that the east line of the Joseph Dunman 279 1/2-acre tract, as called for in the field notes, is a well-marked line, found upon the ground, and recognized by both parties. By virtue of this affirmative showing, the location of the river, and of the east line of the Dunman tract, the location upon the ground of the Woodyard and Morgan 100 acres can be accurately fixed, and the boundary lines thereof accurately established, by resorting to the course and distance calls. The northeast corner of the Woodyard-Morgan 100-acre tract would be at a point on the south bank of the San Jacinto river 571 varas east of the northern extension of the recognized east line of the Joseph Dunman 279 1/2-acre tract, and the northwest corner would be at a point on the south bank of the San Jacinto river 220 varas west of the northern extension of the east line of the said Dunman tract, and the remaining boundary lines of the tract are as readily established, keeping in mind the necessity of establishing the extreme southern boundary of said tract, so as to embrace within the boundaries of the Woodyard-Morgan tract *Page 1050 100 acres of land, and no more. It is also apparent from the field notes in the deeds of June 29, 1868, and November 4, 1869, that the location of the tract as above indicated is in accordance with the purpose and intention as expressed in said deeds, and that the true location thereof would be more accurately determined by following course and distance calls than by resorting to any other means. It may be well to here state that the evidence shows that one of the bearing trees called for in the field notes for the northeast corner of the Woodyard-Morgan tract was found upon the ground at a point which corresponds for all practical purposes with the location of said corner by course and distance calls, as above indicated.
It follows, then, that the authorities cited in the opinion on rehearing are inapplicable to the instant case. Such authorities could be applicable only in the event of a retrial, and where the pleadings and proof would show appellee's right to recover for more than 100 acres. Even in that contingency, I seriously doubt the applicability of Maddox v. Fenner, 79 Tex. 279, 15 S.W. 237, and similar cases cited, because the evidence in this case affirmatively shows that the artificial objects called for in the south line of the John Brown Jones survey are not to be found upon the ground, and without them such a line would necessarily be an uncertain line, save and except there be proof to establish the original location of this line with the footsteps of the surveyor who made the original survey. The south line of the Dunman 279 1/2-acre tract corresponds with the south line of the John Brown Jones, which, for the like reason, would also be uncertain, and, for the same reason, the location of the north line of the Dunman 279 1/2-acre tract would necessarily be uncertain. The field notes of the John Brown Jones survey do not call for any adjoining survey, and any reputed, recognized line between the John Brown Jones survey and any adjoining survey, unless it was shown to be a line as originally surveyed for the location of that tract — in other words, shown to be the actual footsteps of the surveyor originally locating the south line of the John Brown Jones — would not be material evidence in establishing the line between Hermann and Thomas, or to establish the north line of the Dunman tract. Before appellant should be bound by any line recognized or acquiesced in by him, such line must first be shown to be the boundary line between the lands as belonging to him and the appellees. His recognition of some line as the south boundary line of the John Brown Jones is not material for any purpose in determining the boundary between him and appellees. This principle of law is well established, and is expressly decided in the case of Bohny v. Petty, 81 Tex. 527, 17 S.W. 80. My attention has been called to no case which holds to the contrary. If, upon retrial, however, the evidence is sufficient to establish the north line of the Dunman 279 1/2-acre tract by finding upon the ground the footsteps of the original surveyor, who made the survey of the selection of the 100 acres for Woodyard and Morgan, and it be found that such line was at a point farther south than 230 varas from the northwest corner as located, then it would necessarily follow that the extreme south line of the tract should be located so as to embrace within boundaries of the Woodyard and Morgan tract 100 acres only. The extreme southern boundary line, however, in either event, to be located upon the ground at a point so as to embrace within the boundaries of the Woodyard and Morgan tract 100 acres only.
For the reasons herein Indicated, I concur in the opinion that this case should be reversed and remanded for retrial.
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