(dissenting).
I respectfully dissent.
In this vacancy suit, the land involved, located in Pecos County, is a tract, 3412 *402varas long, North and South, by 510 varas, West to East.
Petitioner, Frost, claims that the strip of land adjoins the East line of Sections 49 and SO, Block OW, and lies West of Block 143. The respondents contend that the land claimed as a vacancy adjoins Block 143, therefore, no vacancy.
Frost does not agree with the Court of Civil Appeals that “the parties are in agreement that there are no material and controlling facts which are in dispute; that the determination of the appeal is based solely on the application of law to such undisputed facts.” However, the State of Texas, an appellee along with Frost, stated in its brief in the Court of Civil Appeals that there was “very little dispute as to the facts, perhaps none as to any essential facts.” Frost did not disagree with this statement.
Frost now contends in his original application for writ of error that this is “clearly a case in which reasonable minds might differ as to the ultimate fact issues, fact issues impliedly found by the Trial Court and supported by the evidence, and implied findings which the * * * Court of Civil Appeals erroneously set aside and for which it substituted its own findings.”
Frost claims that the fact issues arose from an ambiguity in the field notes for Sections 49 and SO, Block OW. Frost further contends that “The ambiguity in the corrected field notes of Sections 49 and 50 created by the conflict between their calls for distance and adjoinder is a latent ambiguity which is not apparent until an attempt is made to locate them on the ground.” (Emphasis added.) This, in turn, according to Frost, creates two questions of fact: (a) Whether Williams called for the West line of Block 143 under a mistaken belief or supposition as to the places on the ground where such senior line was located, and (b) if question (a) is answered in the affirmative, whether the construction of Sections 49 and SO by their corrected calls for course and distances or by the calls for adjoinder would best give effect to the intentions of the parties as expressed in the instruments pertaining to the two sections, considered in the light of the facts and circumstances surrounding such instruments. Frost says these two fact questions were resolved by the trial Judge in favor of Petitioner’s contention that the course and distance calls control. This Court, in effect, has agreed.
Frost claims the Court of Civil Appeals’ decision conflicts with the cases of Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792 (1933), and Humble Oil & Refining Company v. State, 104 S.W.2d 174, (Tex.Civ.App.1936, writ ref’d). Later in this opinion, I will attempt to show why the holdings in these cases are not controlling. Frost points out that in each case, the Junior Surveyor’s call for adjoiner with an unmarked senior line was the result of his mistaken belief as to the location on the ground of the line he called to adjoin. In each case the course and distance calls gave the patentee the area to which the patentee was entitled, and in each case the patentee accepted the patent under the corrected notes. Upon this basis, Frost argues that since there is no factual difference between this case and Turner and Humble, the ultimate result in our case is controlled by these two cases.
Frost, in his brief filed in this Court on November 21, 1967, attempts to simplify the problem. He reduces the points from twelve to two major contentions, which are to the effect that there is evidence in the record to sustain the findings and judgment of the District Court that a vacancy existed, as claimed by him, and that the Court of Civil Appeals erred in holding that Surveys 49 and SO, Block OW, were to be located by giving effect to the adjoinder calls in the description of those surveys, rather than the calls for course and distance.
In this latter brief, Frost candidly agrees that, “The vacancy does not exist if the calls for adjoinder between the East line of *403those surveys and the West line of senior Block 143 to the East are honored.”
The Court has declined to honor the adjoinder calls embraced in the description of Surveys 49 and 50, Block OW. To the contrary, the Court, although recognizing the general rule that calls for adjoinder will ordinarily prevail over calls for distance, chooses to invoke an exception to this rule. The exception is stated, as follows: “When it appears that the call for adjoinder was made through mistake, it may be disregarded and the matter is set at large with the Court left free to construct the survey in such manner as will best give effect to the intention of the parties as determined from the entire description when read in the light of surrounding circumstances.” (Emphasis added.) After stating the exception which controls its decision that a vacancy exists, the Court proceeds to designate several mistakes claimed to have been made by the Senior Surveyor, Durrell, which caused Williams to be mistaken as to the location of the West lines of Blocks 142 and 143, thus leading to Williams’ mistaken calls for adjoinder with such blocks — the corrected field notes of Surveys 49 and 50. These so-called “mistakes” will be discussed in more detail later in this opinion. The Court concludes that it would be unreasonable to hold that Williams was not mistaken as to the location of the West lines of Blocks 142 and 143 in view of the fact that he “shortened his North and South lines 284 varas instead of extending them more than 200 varas as would have been necessary to accomplish the adjoinder he obviously intended.”
The purpose of this dissent is to show that the general rule that calls for adjoinder in the description of Surveys 49 and 50 should be controlling under the facts of this case. In order to accomplish my purposes, it is not necessary to disprove the position of Frost that the facts are so similar to those in Turner, supra, and Humble, supra, that the Court has no alternative but to hold that a vacancy exists. In order to quickly focus attention to the view of the dissent, sketches of the area involved are inserted in this dissenting opinion. The principal sketch is a copy of the one annexed to respondents’ reply brief filed in this Court on December 11, 1967, and referred to herein as Sketch No. 1. This sketch will be used chiefly in connection with resolving the question of whether or not a vacancy exists East of Surveys 49 and 50, or to be, perhaps, more accurate, the sketch will be helpful in resolving the question of whether adjoinder calls in the field notes of Surveys 49 and 50 are to be disregarded in favor of calls for course and distance.
*404Sketch No. 1
*405This case was tried to the Court without a jury. No findings of facts nor conclusions of law were either requested of the Trial Court or filed by that Court. Furthermore, the judgment contains no findings supporting its conclusion that the tract of land involved here is a vacancy. The position taken in this dissent is that the calls for adjoinder in the description are more certain and are of greater dignity than the calls for courses and distances, and because of this fact, there is no evidence showing that a mistake which would justify abandoning the general rule was made. A proper construction of the field notes leads but to one conclusion which should be that Surveys 49 and 50, Block OW, are to be located by their respective adjoinder calls for the senior surveys to the East. The complete, corrected field notes by Williams of Surveys 49 and 50 are set out in the Court’s opinion. However, it is sufficient for the purposes of this dissent to, at this juncture, state the adjoinder calls, which are as follows:
Survey 49:
“THENCE East 2116 varas to stake and mound in West line of Survey 13, Block 143, Texas & St. Louis R R Co. Surveys — for Southeast corner of this survey—
“THENCE North at 734(4 varas passing the Northwest corner of said Survey No. 13, Block 143 — 1706 varas to stake and mound in West line of Survey No. 18, Block 143, for Northeast corner of this survey — .”
and from the field notes of Survey 50, the adjoinder calls are:
“THENCE East 2116 varas to stake and mound in West line of Survey 18, Block 143, and at Northeast corner of Survey No. 49 of this block for Southeast corner of this survey—
“THENCE North at 928(4 varas passing Northwest corner Survey 18 and Southwest corner Survey 19, Block 143-1706 varas to stake and mound in West line of said Survey 19, Block 143 — for Northeast corner this survey — ”
Necessarily, this dissent must present in some detail the controlling facts which afford the basis of disagreement with the findings of fact contained in the Court’s opinion.
It is my position that the West lines of the senior Surveys 142 and 143 were capable of definite ascertainment, at all times, and that Williams, the surveyor of the East tier of Block OW at the time of preparation of the corrected field notes, knew with reasonable certainty the location on the ground of the West lines of the senior Durrell Surveys.
The Court bases its decision in part upon its finding that Durrell incorrectly assumed that the West lines of Blocks 142 and 143 “were in the same Meridian as the West lines of Blocks 115 and 106”, and its further findings that “Durrell was mistaken as to the location of Surveys 242, 254, 255 and 541, which were senior to his work. The calls for courses, distances and adjoinder in his field notes of Surveys 2 and 3, Block 203, and Survey 1, Block 203(4, show that he (Durrell) thought the relative location of Block 146 on the one hand and Surveys 242, 254, 255 and 541 on the other hand was as indicated on Plat No. 2.” (Court’s opinion, p. 390.) “If effect were given to his calls for course and distance, Survey 3, Block 203, and Survey 1, Block 203(4, would overlap Surveys 242 and 255 as shown by the dotted lines on Plat No. 3.” (Court’s Opinion, pps. 390, 391.)
There is the additional fact finding by this Court to the effect that Williams’ field notes of his Survey No. 1, the key survey of the series of surveys he made on the ground, “show how Williams was misled by Durrell’s theoretical but mistaken field-note relationship between Survey 255 and Survey 1, Block 203(4-” The Court refers to Survey No. 1 as being the key survey made by Williams. Apparently the Court is of the belief that the Durrell mistake, in the location of some of his senior surveys rendered the true West line of senior surveys lying East of Block OW forever unascertainable, and, therefore, it *406is perfectly proper to invoke the above mentioned exception to the general rule.
I cannot agree with the Court’s conclusion that this record presents a disputed factual situation such as to afford the basis for a discretionary fact finding by any court. The facts are, in the main, undisputed. There is no dispute, for example, as to the identity of objects on the ground and the correct measurement between objects. The record clearly demonstrates that Williams, the original surveyor of Block OW, was never at any time lost, but, to the contrary, knew where the West line of Block 143 was when he called for that line six times in his corrected field notes of Sections 49 and SO. The record is fairly clear as to where Williams surveyed on the ground and where he did not survey. He did not survey the North seven plus miles of his West line of Block OW. In preparing his original field notes, Williams was never on the East line of Block OW. In this connection, it should be recognized (in my opinion it has been recognized by all parties) that the West line of Block 143 is to be constructed off the original monuments set by Durrell. It is undisputed as to the location of these monuments. Draper’s map, introduced by Frost indicates there is no dispute as to the distance between the West line of Williams’ Sections 49 and 50 and the West line of senior Block 143. If the West line of Block 143 is on the ground as shown on the Draper (Frost’s surveyor) Map, then the distances involved are 2,634 varas at the North line of Section 50; 2,626.4 varas at the common line of 50 and 49; and 2,618.6 varas at the South line of Section 49. Other undisputed facts are: Williams did not survey East and measure the distance to the Durrell senior monuments. Had he done so, Williams would have ascertained the location on the ground of Block 143. This, because the senior Durrell blocks were shown and known to be monumented on the ground. As reflected on Sketch No. 1, Durrell’s senior monumented surveys have their West line based at a point in the North line of Section 255, and all call to run on a course of North. Williams’ junior surveys (East TIER of Block OW) have their East line based at the same point in the North line of Survey 255, and they all call to run on a course of North. Attention is also called to the fact that at the common point in the North line of Survey 255 and at eleven additional points going North up the common line the junior survey calls to adjoin the senior survey. As heretofore stated, six of these twelve adjoinder calls appear in the field notes of Sections 49 and 50.
For a better understanding of the acts of Williams in locating the beginning point of his key Survey No. 1 and his subsequent actions in the preparation of his corrected field notes after discovering that Durrell had been mistaken as to the relationship between his senior blocks and Surveys 254 and 255, I now explain in more detail in Sketch No. 1. The senior surveys to both Durrell and Williams are the areas shaded with dots on the sketch. Survey 255, one of these senior surveys, is of signal importance in view of the fact that Williams’ Block OW, and his connection to the senior Durrell surveys, commenced at or in the area of Survey 255. Next, the unshaded surveys East of the line shaded tier (Williams) of surveys are Durrell’s senior surveys. These surveys were field noted and on the ground when Williams made his adjoiner calls for them in 1884 and 1885. Of further importance are the circles and squares on this sketch. The circles in the Durrell surveys represent stone monuments called for in the Durrell field notes. The squares represent seven (7) earth mounds called for in Durrell’s field notes. Some of these field notes have bearing calls and certain identifying descriptions. Some of Durrell’s section corners were merely described calls for a stake and mound. These are unshaded on Sketch No. 1. Noted on this sketch is the extreme Eastern tier of sections of Block OW surveyed by Williams. These sections are the ones shaded with lines. The circles shown on the lines and corners of the line-shaded tier of sections or surveys indicate stone mounds called for in the corrected field notes by Williams. It is *407important to take note of the arrows indicated on this sketch in determining whether or not the adjoinder calls shall prevail over the calls for course and distance. The arrows indicate the approximate location for adjoinder calls for Durrell senior surveys called for in the Williams corrected field notes. It should be noted here that the unshaded sections West of the line-shaded tier of sections are other sections in the junior Block OW and are not of any importance in solving our question.
Surveyor Cool will be referred to later in this opinion; however, at this particular juncture, it is well to mention that Sketch No. 1 shows Surveys 204 at the Southeast and 255 at the South end of the line-shaded tier. These surveys are platted in their actual ground relation to each other as found by Surveyor Cool. The importance of Surveys 204 and 255 will be shown later.
Other facts of importance are these: Williams’ corrected field notes were filed in the General Land Office on September 15, 1885. On the same day Williams filed a larger and more detailed sketch of the area. This sketch shows Sections 49 and 50 as adjoining Block 143. Not only that, this large sketch, which was introduced in evidence as Frost’s Exhibit D, shows the remaining sections to the South of Section 49 as being at that time in conflict with Durrell’s Blocks 143, 142 and 203½. Also, the respondent introduced in evidence the General Land Office Map of Pecos County which was in use in 1885. This map, onto which Williams’ original and corrected field notes were platted by the General Land Office, shows Sections 49 and 50 adjoining Block 143. With all of these facts before it, the State, acting through the General Land Office, in seven patent proceedings has recognized Williams’ adjoinder calls for Block 143. These adjoinder calls appear (1) in Section 56 immediately North of 49 and 50; (2) in Sections 16 and 14 immediately South of Sections 49 and 50; and (3) in the East half of the Southwest quarter of Section 50. As hereinafter more fully discussed, Williams found that Dur-rell’s senior Block 203½ was in conflict with senior Survey 255. Williams, by his corrected field notes, relieved the conflict. This, it seems to me, is an important part of the conclusive evidence that Williams’ junior Block OW and the senior Block 203,Y2 adjoin. The corrected field notes confirm the belief that Durrell, Williams and subsequent surveyors to Durrell, recognized that most all, if not all of the senior surveys involved were excessive. My review of this record justifies the conclusion that the fact that excessive acreage existed caused the surveyors to not actually seek the true West line of the senior surveys. It is my opinion that Williams wanted to be certain that no vacancy existed after completion of his work. Therefore, it should be kept in mind that the problem here is not in attempting to follow the footsteps of Durrell and Williams and locating their footsteps on the ground as these two surveyors put them. This is not the problem for the simple reason that the record shows that two surveyors named Draper and Cool have accomplished this very thing. The fact that Durrell was mistaken as to the relationship between his senior Block 255 and 254, SA & MG RR Co. Survey, does not mean that Durrell’s senior surveys did not have a certain or ascertainable location.
Durrell spent considerable time on the ground in 1881. The result of his work on the ground is shown in the platted field notes on the attached working sketch. These field notes show the William Howard Survey with 4 monuments; the Nance Survey and Barnett Survey with 6 monuments; the William Glass Heirs No. 8 with 3 monuments; Block 142, 3 rock mounds, 3 earth mounds with bearings or other identifying features and 8 other earth mounds; Block 106, 4 rock mounds and 3 earth mounds with marked stones, and 8 other earth mounds; Block 114, 3 rock mounds and 3 earth mounds; and Block 115, 2 stone mounds and 1 earth mound.
At this point, it is well to state that Dur-rell’s Blocks 203 and 203J4 were office survey field notes by him on March 15, *4081883, and October 18, 1883, respectively. Although these were apparently office surveys, they represent the work of Durrell calling for adjoinder with the above senior work which had been so recently monu-mented on the ground. Petitioner’s witness, Surveyor Draper, testified that Durrell’s locations were ascertainable. I have examined the statement of facts. I find that Draper testified (p. 119-122) in regard to the Durrell and Williams work as it pertained to surveys 49 and 50. Draper says that Williams’ work up to the North from Section 29 was paper work, or a paper survey, but that Williams was on the ground at and up to the Northeast corner of 29. Unquestionably, the work to the North was an office survey. Draper testified that the same thing was true as far as the West line of Durrell’s Block 143 was concerned. “Durrell was on the ground over here to the East in Section 15, 143. * * * ” Draper did not find Durrell on the ground at any point Northwest of 15. Durrell did put in Sections 15, 14, 13, 16, 17 and 18. So, there was an office survey by Williams North of Section 29, and an office survey by Durrell West of 15.
Draper says that Williams’ office survey called to adjoin Durrell’s West line, but that Williams, in projecting from his point on the ground in Section 29, did not project due North. Draper did not change Williams’ direction or course, he merely changed Williams’ called bearing. Draper was then asked the following question: “Changed his called bearing, all right, then you come on up here and project on your map at a point in the Southwest quarter of Section 50, and the Northwest quarter of Section 50, and then Williams did his work that could have been located on the ground from his actual ground located down on 29, couldn’t it?” Draper answered: “Yes, sir.” Thus, according to Draper, Cool and all of the other surveyors, “it was something that could have been ascertainable with accuracy, even at that time.” Draper agreed that in 1885, when Williams was doing his work, he could have definitely ascertained Durrell’s West line. This record shows that, in fact, Durrell’s West line of Block 143, was not located on the ground just East of 50 and 49, in 1885 (when Williams was preparing his corrected field notes), but Williams could have then, just as Draper, definitely ascertained the West boundary of Block 143.
A surveyor by the name of W. T. Hope resurveyed the lines in question in 1908. Hope testified to finding several of the Durrell monuments. He found the stone mounds at the Southeast corner of Survey 1, Block 142; and two miles North he found a stone mound; at 4,316 varas he found the stone mound at the Northwest corner of Survey 1, W. P. Howard; at the Southeast corner of Survey 15, he found the large stone mound marked “W”, at the Northeast of Survey 15, the stone mound marked “VX”; and he located the Northwest corner of Survey 3 by its bearing to Monument Springs and the Northwest corner of Survey 16 by its bearing to Barilla Mountain. The work of Hope constituted, in effect, a relocation of all of the stone mounds called for by Durrell on his East line and North line of Block 142 and Block 143, and the relocation of one of the earth mounds at the Northwest corner of Section 16.
There is in the record, also, two plats filed in the General Land Office by A. N. Lea. The one filed on August 29, 1929, designated herein as Sketch No. 2, indicates that Surveyor Lea found and accepted Durrell’s monuments at the Northeast and Southeast of Survey 15 in Block 143; the Southeast of Survey 1, Southwest of Survey 2, in Block 142; and the Southeast of 8, Southeast of 5, and Southeast of 2 in Block 115. The plat filed in the Land Office in December, 1913, indicates that Lea found, and accepted as original corners by Durrell, stone mounds at Northeast 27, Southwest 20, Northwest 26, Southwest 21, Southeast, Northeast and Northwest of 3, in Block 146. This also gave Lea two corners in the South line of Block 114. This plat also shows that Lea found a stone mound which he accepted as an original monument at the Northwest of 1 in Block 114 which had not been shown on Durrell’s original field *409notes. These Lea plats are important for the reason that they indicate that Lea established that the Durrell monuments have been found and recognized through the years. The location of the Durrell monuments indicate an excess over called distance between Durrell monuments. Also these plats indicate that Durrell’s monuments on the ground bore slightly East of their called North course. All of the evidence conclusively show that Williams was entitled to treat the Durrell senior surveys as having a certain or ascertainable location.
*410
The ■ fact that Durrell made the mistake now to be discussed fades into the realm of immateriality in view of the conclusiveness of the ascertainable location of the West boundary line of the Durrell senior surveys to the East of Block OW. At this point attention should be directed to senior surveys of Durrell and Williams. Particular *411attention is drawn to Surveys 254, 255 and 204 outlined in pink upon the above plat. Williams filed his original field notes sometime in April, 1885. Durrell’s field notes, describing the numerous monuments mentioned above, were on file in the surveyor’s office in Fort Stockton. Both Durrell and Williams worked out of Fort Stockton. Durrell’s field notes were also on file in the General Land Office. Durrell and Williams, according to a report filed by Williams, had worked together on what is designated in the records as a “connecting run” which had commenced at the Northeast corner of Section 254 (from which Section 255 is built) in March, 1884. This, to me, is evidence that Williams knew the blocks he called to adjoin were on the ground and worthy of the ad joinder calls which were called for in his field notes prepared in 1884 and 1885. Sometime between April, 1885, the date Williams filed his original field notes for Sections 49, 50 and 56, and July, 1885, when he reported making the connecting run, Williams discovered that Durrell had been mistaken as to the relationship between Durrell’s senior blocks and Surveys 254 and 255. Durrell’s surveying began at 204 (Fort Stockton). Williams made his connecting run from this same survey. C. H. Comley, the original surveyor of Surveys 254 and 255, called in his field notes for the Northeast corner of Survey 254 to be located 12,150 varas West of the Northwest corner of Survey 204. Actually it was the Southeast corner of Section 254 which was 12,150 varas West of the Northwest corner of Survey 204. This is definitely shown on a plat accompanying the field notes. These field notes were on file in Pecos County. However, the field notes of Survey 254 on file in the General Land Office had been corrected to show that the Southeast corner of 254 rather than the Northeast corner was 12,150 varas West of the Northwest corner of Survey 204. Evidently Durrell had accepted the field notes on file in Pecos County and had treated Survey 254 as building South from the reference point, whereas it should have built North. The lines of Surveys 254 and 255 were not called to run due North but run North 4° East. Consequently, the result of Durrell’s error was that Surveys 254 and 255 were located further North and further East than Dur-rell had supposed, and instead of Durrell’s Blocks 203 and 203½ being North of Survey 255, they were, in fact, in conflict with Survey 255. Williams’ corrected field notes eliminated conflicts with senior surveys in a manner now to be shown. After reading the evidence, I have concluded that Respondent’s brief accurately states the work of Williams in 1885, hence, the statement contained in the brief is followed. It is stated that after discovery of Durrell’s error, Williams’ recorded report shows that he made a connecting run in July, 1885, to determine the ground relationship between Senior Survey 254 in the West and Senior Surveys 204 and 150 in the East. By his report, he commenced at “a pile of rocks at the Southeast corner of Survey No. 254” with bearing calls to an old adobe stage stand in a large cottonwood at Fra-zer’s ranch, then ran Southwesterly and West tying in various corners monumented by him in his survey of the Southern part of his Block OW (not the part involved in this lawsuit), and then ran East to tie in the Southeast corner of Survey 150 at Fort Stockton — which is in the same meridian with the West line of Survey 204 and also the East line of Durrell’s Block 146 and 114. His sketch of the entire area involved in this lawsuit shows the course of this run by a dotted or broken line and shows the monuments called for by him as small circles. The sketch also shows that Durrell had, indeed, been mistaken in regard to his relationship to Senior Surveys 254 and 255 and that his Blocks 203 and 203½ were, to an extent, in conflict therewith— and that Durrell’s West line of Block 203Y2 was intersecting the North line of Block 255 further West than previous field-note calculations had indicated.
By the information contained in his connecting run Williams could see that he had placed his East line of Block OW in conflict *412with Durrell’s senior Block 203(4- Both Surveyor Draper and Cool, who testified in this case, explained the method by which Williams obviously determined the extent to which his East line of Block OW had been placed in conflict with Durrell’s Senior Survey at the point of intersection in the North line of Survey 255. Petitioner introduced in evidence a sketch and explanation prepared by Surveyor Draper, which sufficiently demonstrated the method by which Williams had made his calculation after determining the ground distance from Survey 254 to Survey 204. The ground distance determined by Williams was 11,962.1 varas. By calculation the Northwest corner of Survey 255 (from which Williams originally had gone East 316 varas to commence his East line of Block OW) would be located 963.8 varas further West. This made the Northwest corner of Survey 255 to be a total of 12,925.9 varas West of the West line of Survey 204 at Fort Stockton.
It appears that Williams’ next computed Durrell’s field note position for the West line of Block 203(4. This was simply the addition of 11,400 varas (field note width-Block 146), plus 992 varas (field note width of Survey 2, Block 203), plus 500 varas (field note width of Block 203(4), giving him a total Westing of 12,892. Williams evidently then subtracted this 12,892 vara total field note distance from his ground distance and calculated distance of 12,925.9 varas, and obtained a remainder of 33.9 varas. Stated simply, this exercise showed that Durrell’s West line of Block 203(4 was located 34 varas East of the Northwest corner of 255. In his original field notes of Survey 1, Block OW, Williams had called to go East (South 86° East) from the Northwest corner of Survey 255 before turning North with his East line of Block OW, and this indicates that he was in conflict with the Senior Survey by 282 varas — the difference between his 316 varas and the 34 varas obtained by the foregoing calculations. As is later seen, Williams corrects his distances by this 282 varas to get out of conflict with the Senior Survey.
This gets me back to Williams’ location of Survey 1, Block OW, designated by the Court as the key survey. The Court apparently believes that Williams was misled by Durrell’s mistake hereinabove discussed when he, Williams, was locating this so-called key survey and that ás a result, thereof, a vacancy exists several miles North of Survey 1. This is far from being a valid assumption. I repeat that Williams was not lost when he eliminated the 282 vara conflict. He simply discovered when he made the “connecting run” in 1885 that he had placed his East line of Block OW in conflict with Durrell’s senior Block 203(4. The record in this case shows by uncon-tradicted testimony that the West line of Block 203(4 and the East line of Block OW intersect the North line of Survey 255 at a common point. These lines proceed thence on calls for a “North” course. Of course, there is a variance in distance, but, a mistake in distance does not mean that Williams did not know that Durrell’s blocks were on the ground to the East of him. Williams had no intention to do otherwise than to be certain that the East line of Block OW adjoin the senior Durrell surveys to the East. Having recognized and determined that originally his East line of Survey No. 1, at the point in the North line of 255, was in conflict with Survey 203(4, how did he make certain to insure adjoinder? The answer is simple. The Southeast corner of his Survey No. 1 was first tied on the ground to Senior Survey 255. Then, instead of surveying North around the Northwest corner of Survey 255 and then surveying and setting his monuments North along the line of Senior Block 203, he went West approximately a mile and ran his ground line which he intended to adjoin. To have done otherwise, he could not have made use of the adjoinder calls as he did. To have run his ground survey along his East line it was likely that any miscalculation or mismeasurement would cause his monumented line to not be located precisely on the senior line, where he desired it to be. Williams knew that if he moved the one mile West, made his *413ground run and set his measurements, and then called for adjoinder with the senior line on the East, he was assured of accomplishing the intended adjoinder. Perhaps, in closing this discussion of the facts, it would be well to point out that Frost’s surveyor, Draper, at no time. went to the South end of Block OW. He went nowhere near the North line of Survey 255. Therefore, he was not in a position to disprove, in behalf of Frost, that Block OW and senior Block 203½ had a common point at the North line of Survey 255. Whereas, respondent’s witness, Cool, actually went to the Southeast corner of Survey 254. From there, Cool determined the ground distance between Survey 254 and the Northwest corner of Survey 204. The testimony shows that Cool performed his measurements by triangulation, the most accurate measurement available to surveyors, according to the surveyors who testified. Cool testified that, where Williams recorded 11,962 varas between the Southeast corner of Survey 254 and the Northwest corner of 204, he found, by triangulation, 12,017 varas, which is a difference of 55 varas. This means that Williams had a 55 vara excess between the two points. Breaking this down further, it means that over the distance of 6 miles between Survey 254 and Survey 204 there is an excess of 9 varas to the mile. Cool further testified that there was an excess in Durrell’s work; he [Cool] found Durrell’s Southwest corner and that he found enough excess to “take out” of Williams’ excess all but 15 varas of the 55 vara excess. The result of Cool’s work, by triangulation showed about a 5 vara difference between Cool’s measurements and the measurements made by Williams. In effect, Frost is asking this Court to disregard adjoinder calls merely because of a 5 vara discrepancy in recited distances. To so hold would disrupt settled titles to land, especially in West Texas. The vacancy hunter would be in the saddle again. As heretofore stated, excess acreage will be found in all of the surveys involved in this very case. We have here only a mistake as to the distance necessary to reach the senior survey called for in the adjoinder. This cannot and does not show a mistaken adjoinder. If Frost prevails in this case, then it will naturally follow that the area South of Blocks 49 and 50 which has been severed out of this case will be held to be vacant lands.
As held in Stanolind Oil and Gas Company v. State, 129 Tex. 547, 101 S.W.2d 801 (1937), the evidence in this case requires that the general rule that calls for adjoinder should be given controlling effect over calls for course and distance.
The rule governing a situation where an inconsistency exists, as it does here, between the distance recited in the field notes and the actual location of objects called for was well stated by this Court in the case of Cross v. Wilkinson, 111 Tex. 311, 234 S.W. 68 (1921) wherein it was held:
“ * * * an inconsistency being shown between the calls for distance and the calls for the adjacent lines on the application of the calls to the land itself, no other extrinsic facts being shown, the calls for distance would yield to the calls for the adjacent lines.”
and
“The lines were returned by means of field notes and the accompanying sketch. The field notes and the sketch were explicit in making the east lines of the railroad surveys of the west lines of the school land surveys. Under settled rules of construction, the calls in the field notes and sketch for adjacent lines were entitled to prevail over the variant calls for distance only. Maddox v. Fenner, 79 Tex. [279] 291, 15 S.W. 237; Davis v. Baylor, 19 S.W. 524.”
Where the adjoinder call is ascertainable, as here, such calls have the same dignity or rank as a call for a natural or artificial object. It is well settled, as said in Kirby Lumber Company v. Gibbs Brothers & Company, 14 S.W.2d 1013 (Tex.Comm.App. *4141929, jdgmt. adopted), that “[a] call for adjoinder is like a call for a natural or artificial object, and any conflicting call for course, distance or acreage, and the like, must yield.” Couch v. Tex. & Pac. Ry. Co., 99 Tex. 464, 90 S.W. 860 (1906); Titterington v. Trees, 78 Tex. 567, 14 S.W. 692 (1890); Boon v. Hunter, 62 Tex. 582 (1884); Ruth v. Carter-Kelly Lumber Co., 286 S.W. 322 (Tex.Civ.App.1926, no writ); Chapman v. Hamblet, 100 Me. 454, 62 A. 215 (1905); Percival v. Chase, 182 Mass. 371, 65 N.E. 800 (1903) ; Curtis v. Francis, 63 Mass. 427, 438; Whitaker v. Cover, 140 N.C. 280, 52 S.E. 579, 581 (1905); Fincannon v. Sudderth, 140 N.C. 246, 52 S.E. 579 (1905); Airey v. Kunkle, 7 Pa. Super. 112; Miller v. Holt, 47 W.Va. 7, 34 S.E. 956 (1899). The more recent case of Arrot v. Smith, 225 S.W.2d 639 (Tex.Civ.App.1949, no writ) in citing Kirby, supra, made the same holding. These cases are those where unmarked lines were called for. Another case dealing with unmarked lines where the ascertainability of such lines is derived from some source other than the lines themselves is the case of Gulf Production Co. et al. v. Camp, 32 S.W.2d 881 (Tex.Civ.App.1930), affirmed by this Court in Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773 (1933). In that case the court held that it was “well settled in this state that in a proper case an unmarked line will be given dignity of an ‘artificial object’ and a call for connection therewith will prevail over a variant distance call. The leading case to this effect is Maddox Bros. & Anderson v. Fenner, 79 Tex. 279, 15 S.W. 237. The field notes of the southern tier of sections in Block 25 and 24 call for adjoinder with the north line of the University blocks.” The same rule is concisely stated in Phillips Petroleum Company v. State, 63 S.W.2d 737, (Tex.Civ.App.1933, writ ref’d). There the Court said: “And, where an established line of a senior survey is called for, or a line of a senior survey which may be definitely ascertained and located from other established corners of the same or adjacent established surveys, such calls should be given the dignity of an artificial object and control calls for course and distance.” (Emphasis added.) This case stands for the proposition that a line called for is considered to be an ascertainable line if its location can be determined from other corners in the survey or system of surveys involved. In the present case the West line of Block 143 is not shown to have been monumented on the ground by any artificial monument set by Durrell. However, it can definitely be ascertained by surveying it from the other monuments which were found, as heretofore pointed out, in Durrell’s Blocks 142 and 143. Both surveyors testified that this location was ascertainable, just as they also agreed that the Northern sections of Block OW are ascertainable by the projecting of Williams’ lines on Northerly from his monuments. In so agreeing, these surveyors recognize the principle of the “system of surveys.” See Brooks v. Slaughter, 218 S.W. 632, (Tex.Civ.App.1920, no writ) ; Standefer v. Vaughan, 219 S.W. 484 (Tex.Civ.App.1943, writ ref’d. W.O.M.).
As heretofore noted, Frost relies upon Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792 (1933). In that case there were two adjoinder calls. One of these adjoinder calls was upheld by the Court and the other was not. Turner, as well as the cases of State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228 (1936), and Humble Oil & Refining Company v. State, 104 S.W.2d 174 (Tex.Civ.App.1936, writ ref’d.), actually fall within a well recognized exception to the adjoinder rule. The facts in these cases must be examined to determine whether or not our case falls within the exception. Our case does not, in any manner, come within the exception. A careful reading of these cases shows they are distinguishable. In Turner, for example, this Court in considering the peculiar facts of that case, adhered to the principle of boundary law: “that a suppositions call, made upon an erroneous belief as to the location of an object, will not prevail over a call for course and distance, whether the survey was actually made upon the ground or was an *415office survey.” If the facts in our case are properly followed it should be clear that the Williams’ adjoinder calls were nut merely conjectural as in Turner. In Turner, the Court said: “As to the surveys in Block 178 for which Durrell called to adjoin on the south, his own testimony in this case, * * * demonstrated that he did not know their true positions, but called for them merely by conjecture.” Sullivan is clearly distinguishable. Under the peculiar facts in that case the Court held that the exception was available. In Sullivan, the Court said:
“Our decision is not in conflict with Camp v. Gulf Production Company, 122 Tex. 383, 61 S.W.2d 773, because in that case, as disclosed by the record, the opinion of the Court of Civil Appeals (32 S.W.2d 881) and the opinion of the Supreme Court, there was no evidence of mistake except in excess, in distance, of 175.2 varas in approximately five miles, about 35 varas per mile. Such inconsiderable excess is not of itself evidence that the surveyor was mistaken in the location of the adjoinder for which he called, but, when there is no other evidence of mistake, it is usually, as it was in Camp v. Gulf Production Company, taken to mean that the mistake was in the measurement or in the calculation of the distance.”
Our case involves an excess as a result of divergence of Williams’ and Durrell’s lines as they run North 19+ miles, approximately 26 varas to the mile. In my opinion, Judge Smedley, the writer of the opinion in the Sullivan case, would have held in the present case that the facts are not even suggestive of a mistake in location of the adjoinder for which Williams was calling.
The judgment of the Court of Civil Appeals should be affirmed.
GRIFFIN and HAMILTON, JJ., join in this dissent.ON MOTION FOR REHEARING