Appeal from District Court, Presidio County; Jos. Jones, Judge.
Suit by T. J. Cartwright against A. B. Main and wife. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
C. E. Mead and H. H. Kilpatrick, both of Marfa, for appellants. Belcher & Sutton, of Marfa, C. C. Belcher, of Del Rio, C. R. Sutton, of Marfa, J. A. Stephens, of Benjamin, and Ocie Speer, of Ft. Worth, for appellee.
HIGGINS, J.
Appellee, Cartwright, brought this suit in the ordinary form of trespass to try title, the premises sued for being described as follows:
"Survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company grant in Presidio county, Texas, and described by metes and bounds as follows: `Beginning at the N. W. corner of survey No. 528 said block; thence N. 1,900 vrs. to stake and mound; thence E. 1,900 vrs. to stake and mound; thence S. 1,900 vrs. to stake and mound; thence W. 1,900 vrs. to place of beginning."
Defendants, Main and wife answered by general denial and plea of not guilty. The case was tried before the court upon agreed facts. The trial court adopted the agreed statement as his findings of fact, and the appeal is submitted for review upon such findings. Such findings are as follows:
"(1) It is agreed: That the plaintiff is the owner of survey No. 529, block No. 8, Galveston, Harrisburg & San Antonio Railway Company, grant located in Presidio county, Tex. That said survey was located for the said Galveston, Harrisburg & San Antonio Railway Company on July 7, 1875, by L. E. Edwards, deputy surveyor of El Paso district, and approved by A. H. French, surveyor of the El Paso district. That said survey, as originally located on the ground by said surveyor and described by the original field notes as follows: `Situated in El Paso district, on the waters of Alameto Ck. a tributary of Rio Grande river about ____ miles from Ft. Davis and known as survey No. 529, in block 8; beginning at the N. W. Cor. survey 528; thence N. 1,900 vrs. to st. and m., thence E. 1,900 vrs. to st. and m., thence S. 1,900 vrs. to st. and m.; thence W. 1,900 vrs. to st. and m.' That said section No. 529 was recovered from the Galveston, Harrisburg & San Antonio Railway Company by the state of Texas in the cause of the state of Texas v. Galveston, Harrisburg & San Antonio Railway Company in the district court of Val Verde county, Tex., which said judgment was affirmed by the Supreme Court of Tex., June 27, 1891. That said section of land was afterwards placed on the market as state public school lands, and sold to V. A. Haffard August 28, A. D. 1909, as 640 acres, and the plaintiff became the owner by a regular chain of transfer, and is now the owner of same.
"(2) That the defendants, A. B. Main and wife, Mrs. L. Main, are the owners of survey No. 9, in block 347, T. C. Ry. Co. grant situated in Presidio county, Tex. That said survey No. 9 was located for the T. C. Ry. Co., by S. A. Thompson, deputy surveyor of Presidio county, Tex., on June 6, 1882, and by the original field notes of said survey was located and described as follows: `Beginning at a stake and mound one mile south of the S. W. corner of survey No. 7, in this block for the N. W. corner of this survey; thence south 1,900 vrs. built a rock mound 3 ft. high long rock marked A. in center of mound, at the N. W. corner of survey No. 529 in Block 8, Galveston, Harrisburg & San Antonio Railway Company, for the S. W. corner of this survey, from whence a clump of oaks brs. S. 48½° E. and a double oak brs. 38½° E. about 220 vrs.; thence E. 1,900 vrs. to a rock mound for the S. E. corner of this survey; thence north 1,900 vrs. to a rock mound composed of 4 large rocks for the N. E. corner of this survey, from which the west end of a ledge of rock in valley, brs. N. 9 E. and an oak 15" in dia. brs. S. 48¾ E. 800 vrs.; thence west 1,900 vrs. to the place of beginning.' That the defendants are the owners of said survey No. 9.
"(3) That there is a conflict of 826 varas between block No. 8 Galveston, Harrisburg & San Antonio Railway Company and block 347 Texas Central Railway Company grants.
"(4) That section No. 10, block 347, Texas Central Railway Company grant which was surveyed for the public free school fund by virtue of certificate for survey No. 9, contains 640 acres, and that for the purpose of correcting survey No. 9, so as to make it contain 640 acres, the Commissioner of the General Land Office of the state of Texas requested a resurvey of survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company, which corrected survey was made in September, 1907, and said field notes filed for record March 1908, and approved April 1, 1908, by Commissioner of the General Land Office for 361.2 acres. That by said corrected field notes said survey No. 529 is described as: `Beginning at the N. W. corner of survey No. 528; thence north 1,074 vrs.; thence east 1,900 vrs.; thence west 1,900 vrs. to the place of beginning.' That said corrected field notes are recognized by the Commissioner of the General Land Office as the correct field notes for said survey No. 529. That the distance from the S. W. corner of survey No. 7, in block 347, Texas Central Railway Company to the northwest corner of survey No. 529, block No. 8, Galveston, Harrisburg & San Antonio Railway Company, is 1,074 varas, and that the distance from the northeast corner of said survey No. 529 to the northeast corner of said survey No. 9 is 1,074 vrs.
"(5) That said survey No. 9, in block 347, Texas Central Railway Company, as patented by the state of Texas, to the grantors of the defendants herein on March 1, 1884, as being 1,900 varas square and containing 640 acres.
"(6) It is further agreed by the parties hereto that the only question involved in this suit is a question of boundary."
Upon the findings, the court made the following conclusions of law:
"1. The question in the case is, Was it lawful to so correct the field notes of the original Galveston, Harrisburg & San Antonio Railway Company, survey No. 529, block 8, it being land belonging to the general school fund so as to reduce its quantity, and give it less than was called for by its original field notes, and thereby take from it the land in controversy and give it to an individual survey? There are several statutes which have a bearing upon this question. Article 5385 provides that: `In all cases where said land, or any portion thereof, has been surveyed into tracts of 640 acres, more or less, and field notes thereof returned and filed in the General Land Office, the same is hereby declared a sufficient designation of said land; and the Commissioner of the General Land Office shall dispose of the same by the survey and block numbers contained in said field notes.' This article taken in connection with the act of February 3, 1883, which, in effect, declares that all locations of public land surveyed for the benefit of the public free schools are valid, whether the certificates by which they were located were "void" or voidable, valid or invalid. And the Act of March 22, 1889, which, in effect declares that all lands embraced within the surveys located by virtue of the certificates of the class by virtue of which the survey in question was located are withdrawn from the mass of the public domain, and the subsequent provisions of the statute declare that all excess of said surveys shall belong to the public free school fund, and providing how those surveys that belong to individuals may be corrected so as to ascertain this excess, clearly forbids the Commissioners of the General Land Office from making any correction on the said survey which would reduce the area or quantity of the land called for. Especially is this true where it is attempted, as in this case, to reduce survey 529 in order to give a junior individual survey made by virtue of entirely different certificates its full complement of land. Frisbie v. Smith, 13 Tex. Civ. App. 384, 35 S. W. 336.
"(2) In so far as survey No. 9, block 347, Texas Central Railway Company, claimed by the defendants to overlap survey No. 529, block 8, Galveston, Harrisburg & San Antonio Railway Company, belonging to the plaintiff, the same is void under the provisions of section 2, art. 14, of the Constitution of the state which provides `that all genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented, only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records or in the General Land Office.'
"(3) Since it is agreed that survey No. 529 claimed by the plaintiff was located on the ground by the surveyor, and was awarded to the plaintiff for 640 acres, and the defendants' survey No. 9 calls to connect on to the northwest corner of plaintiff's survey No. 529, and to conform with its lines as actually placed on the ground, I hold as a matter of law that the call for plaintiff's corners and lines are superior to the calls for course and distance, and therefore that its lines cannot be extended so as to lap over plaintiff's survey 529 as contended for in this case.
"(4) It is my opinion under the agreed facts that plaintiff is entitled to recover the land embraced in the original field notes of survey 529, Galveston, Harrisburg & San Antonio Railway Company, block No. 8, and judgment is accordingly entered."
The judgment recites that the court was of the opinion that plaintiff was entitled to recover the lands sued for, and entered judgment accordingly, describing the land as follows:
"Beginning at the N. W. corner of survey No. 528 said block; thence N. 1,900 vrs. to stake and mound; thence E. 1,900 vrs. to stake and mound; thence S....
