On Motion for Rehearing.
Appellant is very confident that no vacancy existed between surveys Nos. 399 and 400, and yet it is evident that he has no well-defined theory on the question whether the land patented to Reinhard is a part of survey 399 or whether it is a part of survey 400. We have stated our views in regard to the rules to be followed in locating the surveys on the ground; but appellant, instead of taking up each survey separately and pointing out what he conceives to be the error committed by us in locating such survey, con fuses the issues by attempting to discuss both at once and by overlooking salient features relating to each. It is said that the call in the field notes of 399 to run east, 1,792 varas conflicts with the call for the east line of 399 to be the west line of 400, overlooking the fact that in the field notes of 399 there is no call for the west line of 400, and that the law will not permit us to look to the field notes of No. 400 to create an ambiguity in the. unambiguous field notes of No. 399.
While, as we have held, no calls in the field notes of No. 400 can be read into those of No. 399 to create an ambiguity, we fully recognize the fact that if it can be shown that Bohme actually ran out the corrected survey No. 399 and drove a stake and made a mound, not at a point 1,792 varas east of the beginning corner, but at a point 147 varas further east, then the call for course and distance in the field notes of No. 399 would give way to the actual location of the stake and mound.
While Brauer’s field notes of No. 399 contained a statement that the northeast corner of No. 399 was where he located the northwest comer of No. 400, his letter written at the time shows that he found nothing on the ground to show that the point was the northeast corner of No. 399, vand other testimony *691shows that Bohme made no marks for such comer which could have heen found by Brauer. The court was certainly justified in constructing survey No. 399 hy course and distance, giving it the exact acreage called for. The ease of Moore v. Stewart (Sup.) 7 S. W. 771, relied upon hy appellant, was a fact case, and the evidence can hy no means furnish a criterion hy which to determine whether the judgment in this case is supported by evidence.
Much is said about rules relating to surveys made by the same- surveyor át the same time, which has little or no application to the facts of this case,, for the resurvey of No. 400 determines its boundaries, and it was made by a different surveyor some years after the field notes of No. 399 were corrected. Let us see whether the field notes of No. 400 must be held to include the Reinhard land, or whether the judgment of the court is supported by evidence justifying the location of same so as not to include the Reinhard land. When Brauer made the resurvey of No. 400, had he called to run west from the two noted bearing trees 261 varas to the northeast corner of No. 399, and called for nothing else, there is no doubt that the distance would have given way to the call for the corner; but he did not do so, but marked a corner on the ground and called for the bearing tree in his field notes. In the case of Goldman v. Hadley, 122 S. W. 283, the surveyor, it was claimed, actually marked a line which did not correspond with the line of the survey called for in his field notes; but in his field notes he did not identify the line which was to bound the survey in any other way than by simply designating it as the line of the other survey. Of course, in such a ease the field notes govern, and distance would give way to the call for the line of the other survey regardless of whether he marked trees not called for in his field-notes. This court said: “Had the field notes called for a marked line and other objects, it would have been different.” In this case, Brauer’s field notes called for the line of No. 399, but also called for a marked bearing tree by which the corner was fixed, and it seems clear that the marked corner and distance control the call for the line of the older survey.
The motion is overruled.