I cannot agree with my Associates in holding that appellee's motion for a rehearing should be refused, and in compliance with the statute shall briefly state the grounds of my dissent from the conclusions reached by the majority of the court. I was not present when my Associates originally decided this case, and was therefore not prepared to record my dissent when the decision was first announced, but an investigation of the record on motion for rehearing has convinced me that there is an issue of fact in the case, and therefore we are not authorized to reverse and render the judgment of the trial court.
The land owned by appellant is 575 acres on the Ashbel Smith and William Ritchie surveys. These surveys were located by J. J. Gillespie, county surveyor of Harris county, on December 23, 1874. The original field notes and patent describe the Ashbel Smith survey as follows:
"Beginning at a stake on the north line of B. Barrow's one-fourth league survey 1,500 varas from Cedar bayou in prairie; thence N. 9 1/2° W. 1,600 varas with the west line of the Wm. Bloodgood league to a stake in prairie, the southeast corner of George Ellis league; thence S. 80 1/2° W. with the south line of George Ellis league 1,471 varas to a stake in prairie; thence S. 9 1/2° E. 1,600 varas to a stake in said Barrow's north line; thence N. 80 1/2° E. 1,471 varas with Barrow's line to the beginning, containing 417 acres of land."
The field notes of the William Ritchie are as follows:
"Beginning at a stake in the north line of Benjamin Barrow's one-fourth league survey, being 2,971 varas from Cedar bayou; thence N. 9 1/2° W. along the western boundary of Ashbel Smith's survey 1,600 varas, to a stake in prairie in the south line of George Ellis league; thence S. 80 1/2° W. along said south line of Ellis league 1,256 varas, to a stake in said line in prairie; thence S. 9 1/2° E. 1,600 varas to a stake in H. F. Gillett's north line 227 varas from Barrow's northwest corner and the northeast corner of said Gillett's survey; thence N. 80 1/2° E. along said Gillett's and Barrow's north lines to place of beginning, 1,256 varas, containing 356 acres."
In September, 1886, J. J. Gillespie, the same surveyor who located the Ashbel Smith and Wm. Ritchie surveys, located for the state of Texas, by virtue of Confederate script No. 1563, in the name of Martha Mings, a survey of 640 acres, the field notes of which are as follows:
"Beginning at the most southerly southeast corner of land grant in name of Geo. Ellis, stake corner in prairie; thence N. 9 1/2° W. 3,400 varas to corner in prairie, in inner southeast corner of said Ellis; thence N. 80 1/2° E. 550 varas to corner in prairie on northwest corner of Wm. Bloodgood's league survey; thence S. 9 1/27° E. 4,093 varas, the northeast corner of survey in name of A. Smith on Bloodgood's west line; thence S. 80 1/2° W. 2,512 varas, to corner in prairie, Wm. Ritchie's north line; thence N. 9 1/2° W. 693 varas, to corner in prairie, south line of said Geo. Ellis; thence N. 80 1/2° E. 1,962 varas to the beginning."
Appellee made application for the purchase of the Mings survey on November 8, 1907, and on November 21, 1907, the application was approved and the land sold him by the *Page 119 Commissioner of the Land Office in accordance with the statute regulating the sale of public lands Appellant has title to 575 acres of land off of the north ends of the Smith and Ritchie surveys. This 575 acres is described as follows in the deed under which appellant acquired title:
"Beginning 7 varas from the northeast corner of the Ashbel Smith survey, patent No 288, vol. 29, on the west side of the county road, on the south line of the George Ellis league; thence S. 9 1/2° E. 1,193 varas along the west side of said road, to the northeast corner of 400 acres conveyed by Ruby to Porter; thence S. 80 1/2° W. 2,770 varas to said Porter's northwest corner on the west line of the said Ritchie survey; thence N. 9 1/2° W. 1,193 varas to the northwest corner of the said Ritchie survey on the south line of the George Ellis league; thence N. 80 1/2° E. 2,770 varas to the place of beginning."
It is apparent from the field notes of appellant's land that his boundaries conflict with the Mings survey owned by appellee, if the north line of the Smith and Ritchie surveys, as actually located on the ground, are identical with the south line of the George Ellis survey, as the calls in the field notes of the Smith and Ritchie before set out indicate. The true location of the Smith and Ritchie surveys depends upon the true location of the north line of the Benjamin Barrow survey. The field notes of this survey are as follows:
"Beginning at a stake on the west bank of Cedar Bayou and on the south line of a league of land granted to William Bloodgood, from which a pine 10 inches in diameter bears N. 70° E. distant 8.5 varas, and an elm 8 inches diameter bears S. 60° E. distant 4 varas; thence with said Bloodgood's line S. 80° 30' W. 4,000 varas, stake and mound in prairie for northwest corner; thence S. 9° 30' E. 1,490 varas, set stake and raised mound in prairie for southwest corner; thence N. 80° 30' E. 4,230 varas, to the bank of said Cedar bayou, corners on three small pin oaks, from which another pin oak 8 inches diameter bears S. 35° W. distant 5.5 varas, and a pine 30 inches diameter bears N. 11° W. distant 10.4 varas; thence up said Cedar bayou with its meanders to the place of beginning."
If the north line of the Barrow was located as called for in the field notes of the survey — that is, if it began on the west bank of Cedar bayou on the south line of the Wm. Bloodgood survey, and ran thence with said line S. 80° 30' W., the distance called for — there is no ambiguity in the field notes of the Smith and Ritchie surveys, because the lines of the Bloodgood survey and the George Ellis survey can be definitely located on the ground by course and distance from the established and known northwest corner of the Bloodgood, and the course and distance called for in the Smith and Ritchie field notes would make their north line and the south line of the Ellis survey identical, and the Mings survey, so far as it conflicts with the Smith and Ritchie, would be void.
If, however, the Barrow survey was not actually located along the south line of the Bloodgood, but 702 varas south of said line, the field notes of the Smith and Ritchie are ambiguous when applied to the ground, and it was a question for the jury to determine from all the evidence where the lines of said surveys were actually placed by the surveyor who made the original location.
There is no testimony that any marked line can be found extending from the southwest corner of the Bloodgood survey, the course and distance called for in the Barrow field notes for the north line of the Barrow survey, nor any testimony that the marked trees called for at beginning corner of the Barrow on the west bank of Cedar bayou in the south line of the Bloodgood survey can now be found, or ever existed, and there are no marks of any kind called for or shown to exist in the south line of the Bloodgood survey west of Cedar bayou, nor in the west line of said survey south of the George Ellis survey. Two witnesses placed the north line of the Barrow 702 varas south of the south line of the Bloodgood. The existence of this marked line beginning on the west bank of Cedar bayou 702 varas south of the Bloodgood south line, and extending the course and distance called for the north line of the Barrow, is established by the undisputed evidence. Upon the issue of whether this marked line was the north line of the Barrow as it was originally located, the witness Sjolander testified:
"I am acquainted with the boundaries and lines of a survey of land down there known as the Benjamin Barrow quarter league survey. I came to Cedar bayou, it will be 41 years to-morrow, the 6th of June, 1871. My home has been there ever since, but I may have been off for maybe six months, something like that, but I call that my home. I live maybe 700 or 800 or 1,000 yards, something like that, from the Benjamin Barrow north boundary line. I never measured it; I have lived in that vicinity about 41 years.
"The north line of the Benjamin Barrow survey was fenced by Roseman, Milam Bro. It was in the latter part of the '70's — '78 or '79, something like that-that the fence was constructed there. Before those fences were constructed I had seen and knew and was familiar with the north boundary line of this Barrow survey. I cut wood on both sides of the line, and we always tried to avoid cutting down line trees. I knew Mr. J. J. Gillespie, a surveyor, many years ago. The north line of the Benjamin Barrow survey was always considered to start at a little gully down on the bayou, right opposite the Armstrong survey in Chambers county; there is where they always got their line down there, and I remember when Mr. Gillespie was there survying that he run across certain lines there to get that line, and when he struck this place, always considered that was the line. There were some elm trees, as near as I can *Page 120 remember, on the bank of the gully, right on the bank of the gully almost, that had surveying marks on it; if I remember right, it was cuts and a cross on this little elm, and further out, through the timber, there was small pine trees, some scattering oaks, and you could see the hacks along there, and that is what we were guided by in wood chopping.
"I know Mr. P. G. Omohundro. I have seen him in that vicinity; saw him there a couple of months ago, doing some surveying down there. I did not point out to him any marks or lines of any surveys of land; I found him on the line of the Benjamin Barrow tract, lower end of it, on the north line; this line upon which Omohundro was at the time I saw him is the north line of the Benjamin Barrow survey about which I have been testifying. It was the line I spoke of as having been marked through the timber there, and known by reputation in that neighborhood as the north line of the Benjamin Barrow, where the fence is placed today. I spoke about Mr. J. J Gillespie being out there doing some surveying, and that I left him on the bayou; Mr. Omohundro was virtually in the same place that Mr. Gillespie was at the time I saw Mr. Gillespie."
Mr. Omohundro testified:
"I went to that point (the northwest corner of the Armstrong survey), and picked up my work at that point on the bank of Cedar bayou, on the west side of it, on the line which, produced west, would be a prolongation of the Armstrong, and I measured that distance and ran that line which has the correct bearing as given in the Benjamin Barrow notes, S. 80 1/2° W.; all these latter surveys ran at that, apparently. Mr. Sjolander was with me at the time, and I asked him if he recognized that as the Barrow line, and he said he knew it, and measurements as made from there are as shown on this map here as the north line of the Benjamin Barrow."
In addition to this, it was shown that many years ago the then owner of the Ritchie survey sold a tract of land out of the southern portion of said survey which was described as beginning on the north line of the Barrow, and that the purchaser of said tract in fencing it recognized the line described by the witnesses Sjolander and Omohundro as the north line of the Barrow.
I do not think it can be held that this evidence does not raise an issue of fact as to the actual location of the Barrow north line at a place other than along the south line of the Bloodgood. The testimony as to the identify of the marked line before mentioned as the north line of the Barrow may be weakened by the fact that the fence placed on said line in 1878 or 1879 was erected by parties who at that time owned only the south half of the Barrow survey. This fact, it may be conceded, tends to show that this marked line was a division line between the north and south halves of the survey, but it does not conclusively show that Sjolander was mistaken in his statement that this line was known and recognized as the north line of the survey. Especially is this true when there is no evidence of any other line recognized in the community or claimed by the owners of the Barrow to be the north line of said survey. If the Barrow north line is located as claimed by appellee, there is abundant, if not conclusive, evidence to sustain the finding of the jury that Gillespie, in locating the Smith and Ritchie surveys, did not extend the lines of said surveys further than 1,600 varas north of said Barrow line, and the stake which he calls for at the northeast corner of the Smith was not, as he stated in his field notes, the southeast corner of the George Ellis survey. Gillespie has been dead a number of years, but the field notes of the Mings survey, which, as we have before stated, was located by him 12 years after he had located the Smith and Ritchie, are entitled to as much consideration as the testimony of the living witness, and, according to these field notes, his statement in the field notes of the Smith, that its northeast corner was the southeast corner of the Ellis, was a mistake. It cannot be presumed that after, by actual survey of the land, he located the Smith and Ritchie north lines along the south line of the Ellis, he would locate the Mings survey upon the same ground on which he located the former surveys. The south line of the Ellis is not a marked line, and, knowing as he did the distance from the Bloodgood southwest corner to the southeast corner of the Ellis, if he started on the north line of the Barrow as fixed by appellee's witnesses 1,500 varas west from Cedar bayou, which, according to the calls in the field notes of the Barrow and the Bloodgood, he supposed was the southwest corner of the Bloodgood, his mistaken calls in the field notes of the Smith for the west line of the Bloodgood and the southeast corner of the Smith are readily accounted for, neither of said lines being marked.
I think the majority of the court have misinterpreted and misapplied the well-established rule in regard to the admission of parol evidence to contradict the calls of the field notes of surveys of land.
It is manifest that the evidence as to the actual location of the lines in question was not fully developed upon the former trial, and, while the judgment of the trial court might be affirmed, I think it should be reversed, and the cause remanded for a new trial. *Page 121