concurring.
I concur in the judgment entered. My difference with the majority lies in our approach to the problem.
The ultimate problem, as in all cases involving the interpretation of deeds, is one of ascertaining the intention of the parties to the Hodge-Miller deed. Smith v. Allison, 157 Texas 220, 301 S.W. 2d 608; Garrett v. Dils Co., 157 Texas 92, 299 S.W. 2d 904; 19 Texas Jur. 2d, 391, 455, Deeds, Secs. 107, 145. The preliminary problem is one of evidence and may be stated thusly: What rules of evidence should be used in ascertaining the intention of the parties to the deed?
As I understand their opinion, the majority approve the rule quoted from the opinion of the Supreme Court of the United States in County of St. Clair v. Lovingston, 90 U.S. 46, 64, as follows:
“It may be considered a canon in American jurispurudence, that where the calls in a conveyance of land, are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise.”
That is a novel rule in the jurisprudence of this state and I seriously question the wisdom of our approving it. Although announced in the Lovingston case in 1874, the rule has never been approved by the courts of this or any other state and it has not been cited with approval by any federal court since 1904. I doubt that we can live with the rule.
The effect of the Livingston rule is to create a presumption that any line, marked out by the descriptive calls in a deed, beginning and ending in or on the bank of a stream, is intended by the parties to be a meander line, and, in the absence of evidence of a contrary intent, it will be run as such. Whether the evidence of a contrary intent must be found in the deed or may be extrinsic is not stated. In this case the only evidence of intent considered by the majority is found in the deed. In the Lovingston case only extraneous facts were mentioned by the court as evidence of in*617tent. What evidence may be considered by the court, a question unanswered in the majority opinion, is but one of many troublesome and vexing problems which approval of the Lovingston rule will bring. An analysis of the distinctions made by the majority between the two cases will disclose some of them.
The majority note only two points of distinction. These distinctions are based entirely on the number, arrangement and wording of the calls in the two deeds. Aside from the fact that the rule as announced in Lovingston recognizes no qualification based on the number or sequence of the calls which precede or form the the line beginning and ending in or on the bank of a stream— that is, whether the critical line precedes or follows another which expressly meanders the stream — and expressly recognizes that it will apply when the line runs from one “corner” to another “corner” in or on a stream, the distinctions noted by the majority are less than convincing. To illustrate: Suppose the field notes in the deed in the Lovingston case were exactly the same but the critical line cut off 50 acres in the bend of a river or stream, would we then look only to the face of the deed, as the majority do in this case, and say that because of the number, arrangement and wording of the calls the line should be run as a meander line and the deed should be held to convey the 50 acres ? I doubt it. Or suppose the field notes in the Hodge-Miller deed were exactly the same but the critical line cut off one-tenth of an acre instead of six acres, would we then say that the number, arrangement and wording of the calls established as a matter of law that the parties intended the critical line to be a boundary rather than a meander line and thus exclude the one-tenth of an acre from the conveyance? I doubt it. If we would not make those holdings, the distinctions made in the majority opinion are immaterial distinctions and will surely haunt us in future cases.
I would reject the rule of the Lovingston case and would continue to adhere to the rules long followed by the courts of this state in the interpretation of deeds. Those rules are settled and familiar and, on the whole, present fewer problems. When the descriptive calls in a deed are clear, admit of no ambiguity, and clearly identify the land conveyed, the lines of the property conveyed should be run precisely according to the descriptive calls unless a latent ambiguity develops when they are run on the ground. Richey v. Miller, 142 Texas 274, 177 S.W. 2d 255, 257; McKee v. Stewart, 139 Texas 260, 162 S.W. 2d 948, 950; 19 Texas Jur. 2d 455-457, Deeds, Sec. 145. If an ambiguity develops when the lines are run on the ground, recourse may be had to any competent and relevant evidence to ascertain the intention of the *618parties and resolve the ambiguity. 19 Texas Jur. 2d 487-495, Deeds, Sec’s. 165-169; Texas Law of Evidence by McCormick and Ray, Vol. 2, Sec. 1687.
The field notes in the Hodge-Miller deed are clear and unambiguous. The land they describe is clearly identifiable. Respondents do not claim that a latent ambiguity develops when the field notes are put on the ground. Neither do they contend that the six acres were impliedly conveyed under the strip and gore doctrine. The judgment entered is therefore a correct judgment and I concur in it.
Opinion delivered January 25,1961.
Rehearing overruled March 8, 1961.