On Motion for Kehearing.
In appellants’ motion for rehearing, they assail our statement that the river was a navigable stream. The statement in the opinion is susceptible of the criticism offered by appellants. We really meant to say that the uncontroverted facts show that the surveys were made under the statute prescribing the manner of locating surveys upon navigable streams, the field notes and facts showing that the surveyor found the stream 1,000 varas wide, at least at one point. The field notes of each river survey call to front on the river one-half of its square, while the other surveys in the block call to be 1,900 varas square. Articles 5338 and 5339, Revised Civil Statutes, which has been the law since 1837, require surveys on streams so far as they retain an average width of 30 feet, which are defined to be navigable, to front one-half of the square on the stream, and that such stream shall not be crossed by the lines of any survey, while all other surveys shall be made in a square. We only called attention to this statute as evidence, not that the stream was actually proven to be navigable, but that the surveyor so treated it, that in his calls he fronted the river surveys one-half the square, while the other surveys were made in a square, and as evidence that it was not his intention to locate all the river surveys across the river, which would be the case if appellants’ contention prevailed. Appellants insist that we are applying the rules where a survey is actually made upon the ground to an office survey. We are informed that we should follow the “pen” and not the “footsteps” of the survey- or in order to get his intention. We must admit that the appellants’ lecture has been instructive, but really that is what we thought we had done in the opinion, and regret .we have been unable to make ourselves understood. The same “pen” that wrote the call for distance also wrote that the survey must commence on the south bank where the line running south crossed the river. In following the same mark, we found it wrote that the north line of 26 .surveys should be bounded by the south bank of the river. We also found that each survey fronted half the square on the south bank of the river and that all the other surveys south of this tier in the same block were made in a square. We may be in error, but we are convinced that the intention of the surveyor was to locate these blocks south of the river. Spiller, also, in his testimony, said survey No. 1 of J. Pointevant was located, south of the river in a low, sandy flat, showing' the point he intended to begin this block was south of the river. He had seen this point previously. That he crossed the river near this point is evidenced by the fact that he- ran down Powell’s fork and that he called that this block rest in part upon that stream. To our mind it is conclusive that the surveyor intended to locate the survey south of the river. The argument of appellant that he testified that he did not meander the south bank of the river may be ingenious, but we do not think sound in the light of Spiller’s evidence to the effect that he meandered the north bank of Red river and platted in the south bank to conform to the north bank. The facts in this case do not bring it within the statement quoted by appellants from Sanborn v. Gunter, 84 Tex. 273, 17 S. W. 117:
“It will be as easy to say that all the land lying on the principal rivers in the state, if not the whole public domain, could have been as well taken up by going to their sources and establishing monuments there and then simply calling for surveys projecting from them.”
The facts in this case do not establish any such conduct on the part of the surveyor *1020Spiller. I-Ie not only picked out the place where the block should begin, but he meandered the north bank of the river and thereby ascertained the south bank. He actually ascertained and knew the course of the river, if his testimony is worth anything. He did not conjecture its course as did Maddox in the Sanborn Case, but he ran its course on the north bank. The trouble in this case is not caused by an abrupt bend in the river, as in the Sanborn Case, after leaving the starting point, but the trouble in this case is his call from a given point south for the south bank of the river is too short for his beginning corner. Appellants would disregard every other call in the field notes indicating Spiller’s intention and let one isolated call for distance control the whole location. It is so evident that this call for distance was occasioned by a miscalculation that it would be doing violence to every other known call, and in our opinion is absolutely against all the other evidence.
The appellants are very much distressed over losing their land and the great injustice done them. The record in this case is conclusive that the appellees in good faith have established and erected their homes on the land in dispute, and for years have improved and occupied it. One or the other must lose and it occurs to us from the facts in this case that the trial court has correctly located these lands, if not, certainly the equities are as strong in favor of appellees as they are in favor of appellants. The motion will be overruled.