In the former disposition of this case we considered the statement of facts, and now believe, as we did then, that the findings of fact are warranted by the evidence.
The facts show that the land in controversy lies between the Porter survey and the Herder survey, and it is contended by appellants that no vacancy existed between these surveys at the time appellee applied to purchase it from the State. The Porter was surveyed May 24, 1838, and the Herder was surveyed many years afterwards. The latter survey does not call for the Porter. Where the appellant claims these lines should intersect it is a prairie country. No object is found on the ground identifying the lines between these two surveys, nor is there any common call for the same objects or corners set out in the field notes of these surveys on the dividing lines between the two.
There is evidence showing that the surveyor, in locating the Herder, intended to go to the line of the Porter, and that he thought it was there when he made the call in the Herder for course and distance.
With this construction of the facts, we agreed in our former disposition of this case with the trial court, for the following reasons:
1. The lines of each survey between the two should be constructed by running course and distance from other established corners of each survey. 26 Tex. 359, 436;67 Tex. 286; 68 Tex. 201, 271.
This does not militate against the rule laid down in Maddox Bros. v. Fenner, 79 Tex. 279, for in that case the surveys were made to connect, because there was a call in one survey for the line of the other, and it was there held that this call would control course and distance. In this case there is no such call.
2. A survey must be tested and ascertained by the calls contained in its field notes, and the line of another survey not called for, although the surveyor in locating the land intended to go there, will not control a call actually made by the field notes, and about which there is no ambiguity. The actual calls of the field notes, if susceptible of ascertainment by any well-known process of discovery known to the art of surveying in proving boundaries, will not yield to an object that is not called for, although it may be ascertained. Anderson v. Stamps,19 Tex. 464; Robertson, v. Mosson, 26 Tex. 253 [26 Tex. 253]; Schaeffer v. Berry, 62 Tex. 714 [62 Tex. 714]; Reast v. Donald, 84 Tex. 649.
The motion for rehearing is overruled.
Motion overruled. *Page 625