On Motions for Rehearing.
Both appellee and appellant have filed motions for rehearing herein. We shall first dispose of the motion of appellee.
Appellee has briefed one ground of his motion; that is, that we were in error in the original opinion in holding that the evidence, including the maps in*837troduced and the field notes contained in the surrounding and adjacent surveys established the vacancy in question as a matter of fact. Our holding that the east to- west call of the Evans’ patent to west line of George Berry’s survey being only 48 varas and the call in the Hollingsworth survey, its north line, gave this distance as 282 varas, demonstrated that the position of the west line of the Berry’s survey was unknown to the surveyor making the Evans’ survey, and the call for that ad-joinder was a mistake, was perhaps erroneous. The maps and field notes contained in the patent are perhaps in and of themselves insufficient to establish the vacancy claimed. This discrepancy may have been an element influencing the Land Commissioner in his decision on the Mealy Johnson application that there was in fact, a vacancy. Its influence on the Commissioner’s action may have been small or great. In reality the extent of its influence, if any, is only conjectural.
It is our opinion the field notes contained in the various patents and maps introduced are, as we have stated, insufficient in and of themselves to establish the vacancy. We think the converse of the proposition is likewise true: In and of themselves they are insufficient to establish that the vacancy does not exist. In fact, the evidence above mentioned considered alone does not raise the issue.
The approval of the Mealy Johnson field notes prima facie established the vacancy. Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259. The field notes in the Mealy Johnson patent and in the survey made for plaintiff are practically the same. The evidence failed to overcome this prima facie showing. Our holding is not based upon the fact that defendant holds under the Mealy Johnson patent. Defendant claims under title emanating from Mealy Johnson prior to the patent. Mealy Johnson’s subsequently acquired rights may have vested in the defendant by virtue of the warranty clause in the lease and the judgment in the case of Byrne v. Meco Production Company, but no adoption of this survey is shown by the defendant further than to introduce same in evidence.
Our construction of the opinion in Weatherly v. Jackson, supra, is that where the Land Commissioner approves the field notes and awards the land to the applicant as school land the presumption is that the facts existed that made the action lawful. The fact necessary here to justify the action was that prior to the application and award the land was unappropriated, un-surveyed public school land. It is true that this presumption is but prima facie and subject to rebuttal. Under the evidence here we do not believe this presumption has been overcome.
Appellant in his motion for rehearing vigorously assails the holding that he was not a discoverer of the area in question within the meaning of Section 8 of Article 5421c, Vernon’s Ann.Civ.St., Acts 1931, c. 271, § 8. Landry v. Robison, supra, discussed in the original opinion, is cited as authority establishing that the award to Mealy Johnson was utterly void. Further, that under that case the first Dellis survey and the approval thereof by the Land Commissioner and classification of the land as public school land were likewise insufficient to constitute this land a surveyed area within the meaning of Article 5421c, Acts 1931, c. 271. It is, however, contended by the appellant, as we understand his position, that the action on the Mealy Johnson application and the survey in connection therewith were sufficient to establish the vacancy claimed by plaintiff. To our minds the distinguishing feature of Landry v. Robison is that there the survey showed on its face it was made in defiance of existing law. At the time of the survey neither the surface nor the mineral thereunder was subject to sale. The survey lines crossed the bed of a navigable stream. In this case the area involved was subject to sale, if a mineral lease be considered a sale. It was unquestionably public school land.
If this area was unsurveyed public school land it was discovered to the State through the Mealy Johnson field notes which were approved by the Land Commissioner. It was shown on the record and official map as public school land thereafter ; the Land Commissioner had dealt with it as school land; Dellis,- the licensed State surveyor, was in a certain measure an agent of the State when he made the Mealy Johnson survey. We cannot believe that the Polk Spring application constituted a discovery within the meaning of Section 8 of Article 5421c, Acts 1931, c. 271, § 8, as same has been construed by the Supreme Court. In our opinion a discovery within the meaning of said Section 8 means something more than the discovery of a defective title to a tract of surveyed land, the title to which has at least been attempted to be conveyed by the State. Suppose the *838State had instituted suit prior to plaintiff’s application and recovered this land for the school fund. Could then plaintiff make an application to lease the land as undiscovered school land and obtain a preference right to lease same? The answer to the question is too obvious for discussion. The opinion on rehearing in Caples v. Cole, discussed in the original opinion, was handed down April IS, 1937. The motion for rehearing in Humble Oil & Refining Co. et al. v. State, supra, was denied April 14, 1937, writ refused June 23, 1937. The two cases both appear in 104 S.W. Second Series. Appellant’s application for survey was filed on the Sth day of July, 1937. The situation mentioned in our question might have, but did not, arise.
Short v. W. T. Carter & Bro., Tex.Sup., 126 S.W.2d 953, and Stanolind Oil & Gas Co. v. State, Tex.Civ.App., 114 S.W.2d 699, are unquestionably authority on the point in question that in order there be a discovery and a discoverer that the area need not be shown on the official Land Office map as unsurveyed school land. We do not construe them as authority for the proposition that there may be a discovery of land shown on the official map as surveyed school land and which the' State has at least attempted to sell.
Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 177, was decided on subdivision 4 of Article 5329, Vernon’s Ann.Civ.St. As to the question as to whether the land was surveyed or unsurveyed school land, it says: “Therefore, for the purposes of this opinion, it is immaterial whether the land involved here is classed as surveyed or un-surveyed school land.”
The motions of appellee and appellant for rehearing are overruled and likewise appellant’s motion to certify.