Appellant's motion for rehearing is overruled, but at its request additional conclusions of fact are filed, as follows:
The field notes of each of the 1873 surveys, called corrected field notes, describe a certificate of the Houston Texas Central Railway Company, and state that the land therein described is located and surveyed by virtue of said certificate. The surveys of 1873 were made by meandering the river upon the ground and writing out field notes to correspond therewith, the other lines not being run. If the survey of 1873 was an abandonment of that of 1872 as to the certificates described in the former, and is the one that was validated by the Act of 1881, then it is true, that at the time of appellant's location in 1888 all of the land in controversy was vacant unappropriated public *Page 318 domain. In 1881, after the validating act took effect, patents on four of the surveys made in 1873 were issued to the Houston Texas Central Railway Company, based thereon. If the railway company is bound by the description contained in these patents, and the cancellation thereof made as stated in the opinion was unauthorized and illegal, then the land upon which is located appellant's W.G. Hunt 629 81-100 acres certificate, M. Caro 101 1/2 acres certificate, S. Habermacher 101 56-100 acres certificates, S. Habermacher 229 acres certificate, and Matilda Johnson 409 95-100 acres certificate, was at the time of such location vacant and unappropriated public domain. The Houston Texas Central Railway Company certificates are dated July, 1872, and the only locations, surveys, and returns thereof were made on land in Hardeman County in 1872 and 1873, by the surveyor of the Jack land district, who was without authority to act.
That part of appellant's request which asks us to strike from our original conclusions the statement, that "in 1888 appellant discovered the mistake that had been made by Corwin in 1873," is refused. That finding is believed to be fully sustained by the attendant circumstances, as well as by the following quotation from the statement of facts, page 27 of the transcript: "It was proven that the maps of the General Land Office of Hardeman County did not show any vacancy between the surveys of the Houston Texas Central Railway Company block `A,' Hardeman County, as made in 1872 and as made in 1873. * * * It was proven that the Houston Texas Central Railway Company did not know of the error in the work of 1873 until the plaintiff's locations were made in 1888, and that plaintiff did (not) know about it until shortly prior to the date of his locations, but the exact manner in which the error occurred was not discovered until Dennis Corwin resurveyed a portion of the land a short time ago, and which was after plaintiff's locations were made."
Overruled.