(concurring).
After having considered appellees’ motions and amended motions for rehearing and the briefs in support of and opposing such motions, and after a further review of the record and all briefs submitted prior to the rendition of the original majority opinion, I have concluded that I was in error in joining in the reversal of this cause. I am now convinced that the trial court did not reversibly err in granting the instructed verdict and in rendering judgment for appellees. I concur in Judge Nye’s opinion, and join with him in granting ap-pellees’ amended motions for rehearing and affirming the judgment of the trial court.
The briefs of appellant present one hundred thirty three points of error divided into groups directed to the alleged A vacancy, B vacancy, C vacancy, alternate A vacancy, and evidentiary matters. I do not consider it necessary to discuss particu*749lar points. Applying appropriate principles of law to the facts, as was done in Judge Nye’s opinion, I agree with his conclusions that none of said points of error and the statements and arguments of appellant thereunder reflect reversible error. Since the primary issue involves the correctness of the directed verdict, and therefore requires consideration from the viewpoint most favorable to appellant of all the evidence of probative value, whether actually admitted or proffered and erroneously excluded, my conclusions are drawn from a consideration of all the evidence, admitted or excluded, which is reviewed and discussed in the briefs on file. It therefore becomes unnecessary to pass upon the points alleging reversible error in the exclusion of evidence proffered by appellant but not admitted by the'trial court.
Appellant in order to be successful must locate on the ground an area which is un-surveyed and not in conflict with titled lands, meaning lands covered by prior surveys and grants. If an area is included within a previous survey or grant, it cannot be vacant. Art. 5421c, V.A.T.S.; Atlantic Refining Co. v. Noel, Tex.Sup. Ct., 443 S.W.2d 35, 38. The vacancy must be established as of the time of the grants, and no act, agreement, agreed line, occupation line, map, drawing, sketch or anything done by the owners, claimants, surveyors, or representatives of the State can change the original location of the grant lines to any degree. Proctor v. Markham, Tex.Civ.App., 271 S.W.2d 685, wr. ref. n. r. e.; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259, op. adopted; Humble Oil & Refining Co. v. State, Tex.Civ.App., 162 S.W.2d 119, wr. ref.; Tippett v. Woolley, Tex.Civ.App., 230 S.W. 2d 283, wr. ref. n. r. e.; 9 Tex.Jur.2d p. 591, Boundaries, § 53. The statement that various Land Office maps support the existence of a vacancy is mere speculation. These maps may show some excess, but in this case they are not probative evidence of the existence of the claimed vacancy in 1834 after the Vairin and Fernet grants had been made. See quote in and near the end of the opinion of Judge Nye, Humble Oil & Refining Co. v. State, supra, where an instructed verdict was affirmed.
Evidence of actions of officials, parties, surveyors or others taken subsequent to the grants would not be evidence of where the original survey lines were as against un-impeached recitals in the grants calling for adjoinder and as against the presumed regularity of official acts. In this connection, the earliest maps of the area, the 1841 map, P. Ex. 18-19, and the Atlas A Page 1 map, P. Ex. 17, show no excess and no vacancy in the Vairin area. The excess was put in later maps. And, as stated in Judge Nye’s opinion, there was no evidence that in attempting to place the lower boundary line of the Vairin so as to establish the “A” vacancy, appellant’s claimed line was following in the footsteps of the original surveyor.
Although appellant takes the position that the Traviesa northwest line is firmly established, and is the southeast line of “A” vacancy, he bases his contention that the call in the Vairin for adjoinder with that line should be given no significance in part on his proposition that the said line is an “unmarked prairie line”. In Maddox v. Turner, 79 Tex. 279, 15 S.W. 237, the Court said:
“When unmarked lines of adjacent surveys are called for, and when, from the other calls of such adjacent surveys, the position of such unmarked lines can be ascertained with accuracy, and when, in the absence of all evidence as to how the survey was actually made, there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason why the survey line should not be given the dignity of an ‘artificial object,’ and prevail over course and distance. * * * ”
See, also, Gulf Production Co. v. Camp, Tex.Civ.App., 32 S.W.2d 881, aff’d 122 Tex. 383, 61 S.W.2d 773; Wolf v. Scott, *750Tex.Civ.App., 253 S.W. 905, n. w. h.; Matador Land & Cattle Co., Limited v. Cassidy-Southwestern Commission Co., Tex.Cix.App., 207 S.W. 430, n. w. h.
Appellant’s essential position with reference to his alleged A vacancy was that the call in the Vairin that it should bound on the southeast by the league of Dona Josefa Traviesa was made through mistake, and should now be held to be entirely void and of no effect. C. M. Frost et al. v. Socony Mobil Oil Co., Inc., et al., Tex.Sup., 433 S.W.2d 387. As discussed in Judge Nye’s opinion, with which discussion I am in accord, appellant in order to establish his alleged mistake relies on called distances as necessarily coming down from the grants above the Vairin-Fernet (Tracts Nos. 3 and 4 as stated in the grant), and particularly from the lower line of the McDonough (Tract No. 9) as said line was established by the courts in 1887 (Fagan v. Stoner, 67 Tex. 286, 3 S.W. 44). There is no evidence of probative value in the record that in order to establish the lower line of the Vairin (Tract No. 3) as it was granted in 1834, one should start from above and measure downward. This is explained in the majority opinion, and I see no need to expand on the subject here.
I agree with the discussion in that opinion that the evidence was not legally sufficient to raise any fact jury issue of the existence of any of the vacancies claimed by appellant. Appellees’ amended motions for rehearing should be and are granted, and the judgment of the trial court should be and is affirmed.