On Motion for Rehearing.
Appellees, in their motion for rehearing, contend (1) that as appellants caused resurveys to be made of Survey No. 100 (Luckett) and Survey No. 204 (French) and accepted patents thereon, they are bound by the north boundary lines of Surveys Nos. 203 and 204 established thereby under the rule announced in Dikes v. Miller, 24 Tex. 417; Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767, and similar cases; (2) that upon authority of Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792, and State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, calls to the Luckett should be rejected in construing the field notes of Surveys Nos. 199, 200, 201 and 202, and controlling effect given to calls for course and distance; and (3) finally, that when the rules above suggested are applied, there exists a vacancy which is occupied in whole or in part by the W. S. Rogers Survey No. 1.
As stated in the original opinion, the map prepared by French indicates that the north boundary line of Surveys Nos. 203 and 204 is also the south boundary line of Surveys Nos. 201 and 202. The French field notes of the surveys involved also show that it was the surveyor’s intention to establish a common boundary line between Surveys Nos. 201 and 202 on the north and Surveys Nos. 203 and 204 on the south. As pointed out in the footnote to the original opinion, the field notes of Survey No. 203 place the northeast corner thereof in the south boundary line of Survey No. 202. This clearly demonstrates French’s intention to establish a common boundary line between Surveys Nos. 202 and 203.
In the French field notes for Survey No. 201, the call establishing the South boundary line of said survey is west 1,663 varas from the S. E. corner.
The original field notes of Survey No. 204 call for the northern boundary thereof to run west (French’s call for course reversed) 1900 varas from Point F-4.
French’s field notes of Survey No. 205 begin at Point F-3, run north to F-4, the northeast corner of Survey No. 204, “thence West 154 varas to S. E. Cor. of Sur. No. 201.” The southeast corner of Survey No. 201, according to the field notes, therefore lies due west of Point F-4, and therefore calls for a west course from either F-4 or the southeast corner of Survey No. 201, are calls for an identical line, French’s field notes therefore indicate his intention to establish a common boundary line between 201 on the North and 204 on the South.
In 1937, Survey No. 100 (a Luckett survey, not involved in this suit) was patented upon field notes of a re-survey made by Hayes Dix, a son of J. J. Dix, who located the Dix surveys mentioned in the original opinion. In 1939 another survey of Luc-kett No. 100 was made and a corrected patent issued. In 1937, a patent to Survey No. 204 was issued, based upon a re-survey thereof made by Hayes Dix the preceding year. Appellees contend that by accepting patents upon the field notes of these re-surveys, the north line of Survey No. 203 (which was patented upon the original French field notes) was fixed as a line *887Tunning from the northeast corner of Survey No. 100, as established by the 1937 patent (or in the alternative by the 1939 •corrected patent which was issued subsequent to the date of the Rogers lease) to the northwest corner of Survey No. 204 as established by Hayes Dix in 1936. We doubt if the rule of Miller v. Yates, supra, has application to Survey No. 203, which was patented upon the original French field notes, but if the re-surveys of adjacent sections can be regarded as fixing the ■ north boundary line of Survey No. 203, then the same situation would be presented as to Surveys Nos. 202 and 203, as exists with reference to Surveys Nos. 201 and 204, because of Hayes Dix’ 1936 re-survey of No. 204.
In making this re-survey (of No. 204) Hayes Dix began at Point F-4, ran south 0° 06' E. to point F-3. He then honored French’s call to the Luckett (northeast corner of Survey 96, French’s beginning point). Dix’ course here is S. 83° 57½' west. French’s course was due west. Dix then went North 0° 20' W. 1,938.2 varas to a point which he describes as the north-cast corner of Survey No. 203, in the south line of Survey No. 202, for the northwest corner of Survey No. 204. The next call is “thence North 77° 10½' E (French’s course call being due east) with the South line of Survey 202 and 201, 1977.8 varas to the place of beginning.” It is apparent that Hayes Dix honored French’s calls to the Luckett over the calls for course and distance.
Appellees would construct the north French surveys (199, 200, 201 and 202) by honoring course and distance over calls to the Luckett, thus creating a vacancy.
We adhere to the holding expressed in our original opinion that the French surveys in the area here involved constitute one block or system of surveys. We are also of the opinion that the issuance and acceptance of patents upon the re-surveys above mentioned must be regarded as immaterial in arriving at a proper disposition of this case. We are here concerned with interior and not external lines of a system or block of surveys.
In Gulf Oil Corporation v. Outlaw, ISO S.W.2d 777, the Supreme Court of this State had under consideration a case which in certain particulars is similar to that presented here. In the Outlaw case the vacancy involved was allegedly located within the outside boundaries of a block or system of surveys. An attempt was made not to recover an excess, but “to tear apart surveys shown upon the official plat of the surveyor to adjoin each other and to establish a vacancy between such surveys.” It also appeared that both Sections Nos. 22 and 27 (the supposed vacancy lay between these two sections) were owned by Clarence Scharbauer, one of the parties to the suit.
We quote from Judge German’s opinion, which was adopted by the Supreme Court:
“The land in controversy is the long narrow strip indicated by letters ABC and D [upon the map shown in the opinion]. It is the contention of the State and defendant Outlaw that it was, prior to the resurvey, a part of Section 22; that as the surveyor in making the resurvey actually stopped at the point A, then ran to the point D, this became the south boundary line of the survey, leaving the narrow strip vacant land; that as Buchanan [Schar-bauer’s predecessor in title] accepted a patent based upon this resurvey, under the rule announced in Holmes v. Yates, 122 Tex. 428, 61 S.W.2d 771, and Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767, he could not claim title to said strip.
“The Court of Civil Appeals reversed and remanded the case, holding that the evidence was sufficient to raise an issue of fact that the iron pipe found at point A was placed there by Wadsworth in resurveying Section 22, thus fixing with certainty his footsteps, and that if a jury so found, the strip of land in controversy would be shown to be a part of the public domain, subject to the Outlaw permit.
“Iron stakes, such as were called for by Wadsworth, were found at several different places. While there may be an inference that Wadsworth placed the iron pipe at point A, yet me have concluded that as a matter of law there were common corners and a common line between Section 22 and Section 27, and the only controversy (if any) which could exist is as to the true location of said corners and line.” (Italics ours.)
Further in the opinion, it is said:
“ * * * It is our opinion that the plain interpretation of the field notes made by the surveyor leads to the inevitable conclusion that these surveys were all tied together, and that Section 22 and Section 27 have common corners and a common line. *888It thus appeared on the map which Wads-worth made. It is not necessary to resort to rules of construction, as the field notes speak for themselves. It seems to us unquestionable that if any doubt whatever arises it is as to the location of tMs common line. The evidence might possibly raise an issue of fact in that regard, but we believe it immaterial even if it does.” (Italics ours.)
We conclude therefore that at most the acceptance of patents by appellants based upon the re-surveys mentioned, simply fixed and determined the common boundary line between Surveys Nos. 201 and 202 on the north and Surveys Nos. 203 and 204 on the south. It did not operate to tear the surveys apart and establish a vacancy between them. As appellants are the owners of all of the surveys here involved, the true location of the boundary lines between, them is immaterial, as is the question of the correctness of the theory employed by-Hayes Dix in constructing Survey No. 204 from the original field notes prepared by-French.
After careful consideration, we are of the opinion that our original disposition of this appeal was correct, and appellants’ motion for rehearing is accordingly overruled.