At a former day of this term the judgment of the trial court was affirmed as to all of the appellants, after considering the assignments of error presented by the Hills and Wooley, but declining to consider those filed by the pre-emption appellants, because no brief was on file presenting them. Both classes of appellants now present separate motions for rehearing.
The motion of appellants Hills and Wooley will be overruled, for the reasons set forth in the original opinion filed herein. In that opinion attention was called to the fact that no complaint was made by the Hills upon the ground that their coappellant Wooley was not also made primarily liable with them for the costs of the lower court. This objection should not only be presented by proper assignments in this court, but should also have been called to the atteution of the court below, and proper efforts there made to have the alleged error corrected. See authorities cited in Sulphur Springs Mount Pleasant Railway Company v. St. Louis, Arkansas Texas Railway Company, 2 Texas Civil Appeals, 657.
The pre-emption appellants present us with two motions, both filed *Page 319 since the decision of this cause by us. In these motions we are asked to consider the assignments filed by these appellants, upon the ground that briefs were in fact filed by them while this cause was pending in our Supreme Court, and that they were not advised of their loss until after the submission of the case in this court. It does appear, however, that they were so advised something over two weeks before its decision, and that no effort was made to supply the loss, other than writing a personal letter by their attorney to the Chief Justice of this court, enclosing a copy of his brief, which was promptly answered, requesting that any motions that he might desire to make should be filed with the clerk. As a matter of fact, the decision of the cause was postponed for the two weeks above indicated, after the receipt of this letter, to enable the proper motions to be filed and called to our attention.
Under these circumstances the motion should be refused, and would be, were it not that since the announcement of our decision the lost briefs have been found by our clerk in the papers of another cause represented by the same counsel, where they had evidently been filed by the clerk of our Supreme Court, as the costs for filing same appear to have been taxed by him therein. Under these circumstances, in justice to these appellants, we have carefully considered all of their assignments, but have arrived at the conclusion that the judgment of the court below must nevertheless stand affirmed.
The only issue between appellee and these appellants is as to whether or not the land claimed by the latter is within the boundaries of the Green B. Cook survey, they claiming under locations subsequent to it. The field notes of the Cook survey, as contained in the patent thereto, are as follows: "Beginning at a stake on the west bank of the Double Mountain Fork of the Brazos River, 1010 varas north 20 west from the northeast corner of survey number 2 of Buffalo Bayou, Brazos Colorado Railway Company scrip number 107; thence down said stream with its meanders to a stake, from which Louisa Peak bears north 24 west; thence north 41 west 700 varas; thence north 20 west 180 varas to the junction of said stream with the Main or Salt Fork of the Brazos; thence up the south bank of said Main or Salt Fork with its meanders to a stake on the river bluff, from which Louisa Peak bears north 18 1/4 west; thence south 1229 varas, a stake; thence west 702 varas, a stake; thence south 1900 varas, a stake; thence east 1367 varas, a stake in the west boundary line of survey number 17 of Buffalo Bayou, Brazos Colorado Railway Company scrip; thence north 702 varas with west boundary line of said number 17, to its northwest corner; thence east 1900 varas, with the north boundary line of same, to its northeast corner; thence north with the west boundary line of survey number 1,950 varas to its northwest corner; thence east 3455 varas, with the north boundary line of same, to the place of beginning." *Page 320
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 321
The foregoing sketch will give an approximate idea of the location of these different surveys, as contended for by the appellants and appellee respectively. The outside lines represent the Cook survey as claimed by appellee and established by the judgment. This includes the small pre-emption surveys marked on the map. The dotted line commencing at the point on the river from which Louisa Peak bears north 18 1/4 west, and running thence with the calls of the patent until the north line of number 17 is reached, and from thence to the beginning, as in the other case, represents the Cook survey as claimed by appellants, and, as will be seen by reference to the sketch, will not include the land claimed by them.
It is apparent that all of the calls in this patent can not be literally observed. There is no difficulty in locating the beginning point, as called for in the patent, nor in following the meanders of the river until we reach the point from which Louisa Peak is called to be north 18 1/4 degrees west; and we agree with the surveyors, that the field notes of the Cook survey, as taken from the surveyor's records, show the meanders of these rivers to have been done by actual work upon the ground. If, however, we start from this point and run south 1229 varas; thence west 702 varas, a stake; thence south 1900 varas, as called for in the patent, we strike the north line of number 17 near its centre, before the full distance is reached, instead of a point 1367 varas west and 702 varas south of its northwest corner, as called for by the field notes of the Cook survey; and if we stop at this point on the north line of number 17, and proceed from thence to the beginning corner, the calls for the point 1367 varas west of number 17, and for the point 702 varas south of its northwest corner on its west boundary line, and for its northwest corner, must be entirely ignored; and the survey as thus located would fall something near 1300 acres short of the amount called for by its patent.
We believe, in ascertaining the boundaries of surveys, where all of the calls made by the surveyor can not be strictly observed, as few should be disregarded as can be consistently done; and that in this instance the proper way to locate the survey is to commence at the beginning corner and run in both directions, following the calls in the patent as long as it can be done, and then close the gap in the manner which seems to be most consistent with all the calls. By doing this, the only change that will be necessary will be to add about 150 varas to the line called to run south from the river 1229 varas, and to change the call from this point on the river for Louisa Peak from north 18 1/4 west to north 10 1/4 west, which would have the effect to add about 2300 varas to the river line. The amount of land that would thus be included in the survey, we understand, would about correspond with the amount called for in the patent. We think it quite probable that the surveyors who testified in the case were right in their conclusion, that the only work done on the ground in making the *Page 322 original survey was the meandering of the river; but it is quite evident that the surveyor, in making his calculations to include the amount of land desired, estimated the distance it would be necessary for him to go west of the surveys on the south, and therefore called for their corners and lines, and the fact that he made a mistake as to the stopping point on the river should not have the effect to annul all these calls, when the result will be to create such a decided shortage in the amount of land intended to be granted by the patent. Had the surveyor gone entirely around the survey, his footsteps should be followed, notwithstanding the deficiency in quantity; but when he stops on the line and undertakes to give directions as to the route to be taken from that point to the place of starting, without himself visiting the designated places, these directions should be followed in such way as to best locate the grant according to the calls thus made. Robinson v. Doss, 53 Tex. 496.
The judgment rendered by the court below locates the survey in this way, and we find no error therein.
The motions of all of the appellants for a rehearing will therefore be refused.
Motion overruled.