(dissenting).
C. M. Frost filed this suit pursuant to Article 5421c, claiming and asserting the existence of a vacancy in Pecos County, within five (5) miles of a well producing oil or gas in paying quantities. This statute defines “vacancy” as meaning “an area of unsurveyed school land not in conflict on the ground with lands previously titled, awarded, or sold, which has not been listed on the records of the land office as school lands and which on the date of filing was neither subject to an earlier subsisting application to purchase or lease by a discoverer or claimant nor involved in pending litigation brought by the State to recover the same.”
The judgment of the trial court recites that Frost pleaded a vacancy existed and the judgment contains a description of such lands. However, the judgment recites that Frost limited his proof of vacancy under his application to the tract of land involved in this appeal to the rectangular tract of land alleged to lie between the east lines of Junior Surveys 49 and 50 Block OW, and the west lines of Senior Surveys 13, 18 and 19, Block 143. The trial court’s judgment recites that Frost discovered the vacancy, but that certain good faith claimants have the preferential right to purchase all of the contracted area, except a specific tract described in paragraph 11 of the judgment for which the trial court found that there was no good faith claimant.
Significantly, all of the good faith claimants have joined Lowe and Mobil in urging the Court to grant a motion for rehearing, declare no vacancy, and affirm the judgment of the Court of Civil Appeals. These good faith claimants agree that no vacancy exists.
*416Furthermore, these good faith claimants are aware of Paragraph 121 of the trial court judgment which recites that Frost incurred expenses, exclusive of filing fees, in the sum of $2,543.40, and that the good faith claimants should lose all preferential rights if they failed, for a period of ninety (90) days after final determination of the existence of a vacancy to pay certain shares of the expenses incurred by Frost. I cannot believe that the attorneys for the good faith claimants would join in the motion for rehearing just to avoid paying a portion of Frost’s expenses. Their prime reason, it seems to me, is because their knowledge of the record convinces them that the Court has failed to properly evaluate the controlling evidence in this case. If the Court persists in ignoring the “system-of-surveys” rule and continues to hold as it has done that there is a vacancy at the north end of Williams’ “system-of-surveys” (the end involved in this suit), then it will be bound to hold in the severed case and other vacancy cases pending involving the 19+ miles strip claimed that such strip is vacant. The fact that this 19 miles strip is narrower at the south end where Williams began his system of surveys than at the point between his Junior Surveys 49 and 50 and the Senior Durrell surveys immediately to the east of surveys 49 and 50 is not controlling. My point is that surveys 49 and 50 must be considered as a part of the same system of surveys, and as Lowe argues, these surveys “cannot be located independent or isolated from the rest of the same system of surveys.” I respectfully submit that this Court is in error in saying that Frost or any other vacancy hunter will not be able to use the present decision as absolute authority for holding upon final trial that a vacancy [very narrow] exists from a point beginning in the west line of Survey 255 at the southeast corner of Survey 1 by Williams to the northeast corner of Survey 50, which is considerably wider. As I view this record, the Court must either honor the adjoinder calls all the way from south to north or not at all. I chose the former action because of the undisputed controlling facts in this case. The adjoinder calls should not be broken at any point — at Block 203½, or at any point. The Court failed to recognize basic boundary law when it suggests as it does in its decision that so far as Williams’ Junior Surveys are concerned facts have not been developed as to how Survey 2, Block 2031/2 was placed on the ground. Block OW, of which Surveys 49 and 50 are a part, surveyed by Williams is a system of surveys, each tied to the other by Williams. Block 203½ is also a system of surveys by Dur-rell. Durrell’s work was senior to Williams system of surveys. Although Block 203½ consists of only Surveys 1 and 2, and although Surveys 1 and 2 were field-noted by Durrell on the same day and Survey 2 calls to have its southeast and southwest corners common with the northeast and northwest corners of Survey 1, and its east and west lines of Survey 1, thus definitely locating Survey 2, Block 203½, yet, the Court seems to think it is possible, with additional evidence as to the location of *417Survey 2, Block 203½, to not break apart Surveys 1 and 2 of Block 203½.
The burden rested upon Frost to plead and prove a vacancy. He has failed in his proof. Frost has tied himself to the evidence which shows a system of surveys by Williams which conclusively shows only a variance in distance from his beginning point at the south. The mistakes by Williams and Durrell were mistakes in distance calculation only. The effect of what the Court has done is to break the ad-joinder calls at places although the entire east line of Block OW (by Williams) was done by office survey — calculation of distance and not measurement on the ground. Williams was never on the east line of his Block OW, however, his 1885 corrected field notes call for the east line to be one continuing line from south to north. The Court has reached the wrong conclusion regarding the mistake of Durrell as to the location of Surveys 242, 254, 255 and 541, which were senior to Durrell’s above mentioned surveys. Durrell’s mistake, based on Comley’s error, was a mistake as to distance only. It is undisputed that Dur-rell did make a mistake in relying on prior surveyor Comley’s connection between Survey 254 and Survey 204. As pointed out in the original dissent, Williams discovered this mistake when he ran his connection between the two groups of senior surveys to both Durrell and Williams. This was in July, 1885. Due to Durrell’s mistake in relying upon Comley’s work, and not because Williams did not know the location of Durrell’s west line, Williams began his original work at a point which Comley’s field notes locate the northeast corner of Survey 204 (Fort Stockton) when actually it was the southeast corner of Survey 254 which was 12,150 varas west of the northwest corner of Survey 204. This is the crucial point in this case for the reason that when Williams ran his July, 1885 connection from the vicinity of Survey 255 over to the surveys in the vicinity of Fort Stockton, he discovered by his own ground measurement that Block OW conflicted with Durrell’s senior work to the east. Regardless of the extent of the conflict, the undisputed evidence shows that Williams’ original work created a conflict which he realized should be eliminated. What did Williams do to eliminate the conflict which he knew existed in 1885 ? If Williams had not known where the Durrell west lines were located he would not have become aware of a conflict. This awareness was not limited to the south end of the Durrell senior surveys but extended the entire distance north of the senior system of surveys. It is undisputed that both the senior surveyor, Durrell, and junior surveyor, Williams, called for their respective north-south lines to run true north. A proper evaluation of the controlling facts leads to the conclusion that the conflict existed from the south end all the way north through Sections 49 and 50 in Block OW. The conflict was not merely a field-note conflict. The conflict was definitely ascertained as the result of Williams’ groundwork in July, 1885. While Durrell and Williams called for their respective north-south lines to run true north, actually they did not. Years later, it was definitely ascertained by resurveys that Durrell was approximately 54° east of true north and Williams was approximately {4° west of due north. This caused a gradual and continuous widening between Williams’ and Durrell’s lines the farther north they went. Now what line by Williams do I have reference to? It is the line Williams ran after getting straightened out in July, 1885. Here are the undisputed facts which show that Williams was never misled by any mistakes of Durrell. The evidence shows that Williams moved west to remove the conflict. He knew where the Durrell west lines were. He was never lost. Instead of running his ground lines North along the east line of Block OW, Williams tied his southeast corner of his Survey No. 1 on the ground to the Senior Survey 255. Then Williams ran west approximately one mile and ran his ground line north to a point at the northwest corner of Survey 10, Block OW. *418I should point out that Williams did not actually run this west line of his eastern tier of sections on the ground in a true north course. Williams ran a course of 15 minutes west of north for a distance of 12 miles and stopped. Perhaps this distance was 14 miles, but, in any event, Williams never actually surveyed Surveys 49 and 50 on the ground. Williams’ field notes of Surveys 49 and 50 were and are the result of an office survey. In other words the surveying done by Williams north of the 12 or 14 miles from his south-most beginning point, or north of the Survey 29, Block OW was by projection only. Therefore, as to the work by projection all lines necessarily ran as called for. Williams was obtaining his distances by calculation only when seeking to reach the west line of Block 143. Definitely, he did not actually survey over to the west line of Block 143 (located by Durrell through a system of surveys) on either of the six instances when he called to go to the west line of Block 143. The intention of Williams was to eliminate any possibility of his work, either by actual surveying or office calculation, creating a vacancy. This record is replete with evidence showing Williams’ intent to adjoin the west line of the senior surveys to the east, particularly Survey 143 which is located to the east of Surveys 49 and 50. Williams’ field notes contain 20 adjoinder calls for Durrell’s Senior Blocks 203½, 142 and 143. A variance between the distance calls in the field notes and the measured distance on the ground simply does not establish a vacancy. This variance does not defeat the intention of Williams to accomplish an adjoinder.
This record conclusively shows that the Court has no alternative but to give priority to the adjoinder calls in this case. The surveys made by Durrell and Williams, part ground and part projection, were made more than 80 years ago. Williams’ intention in calling to adjoin the definitely ascertainable west line of Block 143 is reflected in his work. It is clear to me, at least, that his every effort was to remove any doubt about the location of Surveys 49 and 50. This intention was accomplished and never questioned until Frost entered the picture after the discovery of valuable minerals within five (5) miles of Survey 49, 50 and 143. The good faith claimants in this suit have never believed that a vacancy exists. Much of the area involved has been under fence for many years. If there was ever a case where the calls for adjoinder should govern over the calls for distance it is this one.
It would unduly lengthen this opinion to discuss the authorities supporting the respondent’s position. These cases were cited in the original dissent. Perhaps I should explain the nature of the severance referred to above. The State Commissioner of the General Land Office, represented by the Attorney General of Texas, filed a trial amendment asserting title in the State of Texas to two (2) tracts of land in Pecos County, Texas. As to these tracts, the trial court recites in its final judgment that the issues presented in the trial amendment were severed to be finally determined in a separate trial. I would grant the motions for rehearing and hold no vacancy.
. That plaintiff’s expenses incurred in determining the existence of said vacancy, exclusive of filing fees, amount to Two Thousand Five Hundred Forty-three Dollars and Forty Cents ($2,543.40), that the good faith claimant named in paragraph 9 above should lose all preference rights in respect to the portion of the vacancy described in said paragraph if he fails, for a period of ninety (90) days after final judicial determination of the ⅛ existence of said vacancy, to pay to plaintiff the sum of Six Hundred Thirty-Five Dollars and Eighty-five Cents ($635.85), being a fair, proper and proportionate part of plaintiff’s said expenses, and that the good faith claimants named in paragraph 10 above should lose all preference rights in respect to the portion of the vacancy specified in said paragraph if they fail, for a period of ninety (90) days after the final judicial determination of the existence of said vacancy, to pay back to plaintiff the sum of One Thousand Two Hundred Seventy-one Dollars and Seventy Cents ($1,271.-70), being a fair, proper and proportionate part of plaintiff’s said expenses.