Certificate.
"This is a boundary suit instituted by appellees against appellants involving the correct location on the ground of the Holbrook, Moore, San Geronimo and B. & C. No. 1, a group of adjoining surveys in Jefferson County, Texas, owned by appellees, originally surveyed by James Ingalls, County Surveyor, on March 14, and 15, 1881. They were four of a large block of surveys made at that time from a large body of land lying west of the Gahagan League and its adjoining surveys and east of the northwest corner of the McGaffey League, the Russell and Howard surveys, and a series of T. & N. O. surveys running north from the Howard. Of the surveys in controversy, the Holbrook and Moore lie between the Burrell survey on the east and the northwest corner of the McGaffey League and the Russell and Howard on the west. The Holbrook and Moore called for these as adjoining surveys. These two surveys also call for the north line of the McGaffey League. Because of the admitted location on the ground of the southwest corner of the Gahagan and of the McGaffey Labor, which lies immediately west of the Gahagan League and on the north boundary line of the McGaffey League and of the Burrell, which lies immediately west of the McGaffey Labor and on the north line of the McGaffey League, there is an excess of 1054 varas in the south boundary lines of the Holbrook and Moore if they be permitted to occupy all the land between the Burrell on the east and the northwest corner of the McGaffey League and the Russell and the Howard on the west, creating a large excess in the acreage of these two surveys. Because of this condition, it was the theory of appellants that the call of the Moore for the northwest corner of the McGaffey League and the Russell and Howard surveys was a mistake. Appellants conceded to the Holbrook and Moore surveys all the land that the calls for distance of their field
notes would give them. This theory was submitted to the General Land Office, which on the showing made by appellants recognized an error in the call of the Moore for the northwest corner of the McGaffey League and the Russell and Howard, and patented to appellants all the land lying between the Moore on the east, giving it and the Holbrook their calls for course and distance and their full acreage, and the northwest corner of the McGaffey League and the Russell and Howard on the west. Appellees contended that this land was a part of the four surveys for which they sued. The San Geronimo Survey lies immediately north of the Moore and B. & C. No. 1 immediately west of the San Geronimo. On the issue thus suggested, the trial court submitted to the jury Issue No. 1, as follows, which the jury answered in the affirmative:
"`Did James Ingalls, in making the survey of the E. L. Moore and other connecting surveys go to the northwest corner of the John McGaffey League, as called for in his field notes of the Moore Survey, or did he not?
"`Answer "yes" or "no."'
"This, in fact, was the controlling issue in the case. On the jury's affirmative answer to this question, appellees were, as a matter of law, entitled to a judgment for the land in controversy, regardless of how the jury might have answered the other twelve questions submitted to them, and had the jury answered Question No. 1 in the negative, appellants would, in like manner, have been entitled to a judgment. The evidence on this issue was sharply conflicting and was sufficient to support a finding either way. Questions 2 and 3 were as follows, answered as indicated:
"`Special Issue No. Two (2) Do you find from a preponderance of the evidence that the Southeast corner of the John McGaffey Labor was located upon the ground prior to 1881 at the cedar stake as identified by the witnesses introduced before you?
"`Answer "yes" or "no."'
"The jury answered this issue: `Yes.'
"`Special Issue No. Three (3) Do you find from the evidence that the Southwest corner of the Dennis Gahagan survey was located upon the ground prior to 1881 at the cedar stake as identified by the witnesses introduced before you?
"`Answer "yes" or "no."'
"The jury answered this issue: `Yes.' These issues were uncontroverted and could have been answered in no other way. Questions 4 and 5 were as follows, answered as indicated:
"`Special Issue No. Four (4) If you have answered Question Number Two in the affirmative then you will answer this question:
"`Did the surveyor, James Ingalls, know of the location of the cedar stake as now located upon the ground, as identified by the witnesses, as the southeast corner of the John McGaffey Labor on or prior to March the 3rd, 1881?
"`Answer this question "yes" or "no."'
"The jury answered this issue: `No.'
"`Special Issue No. Five (5) If you have answered question Number Three in the affirmative then you will answer the following question:
"`Did the surveyor, James Ingalls, know of the location of the cedar stake as now located upon the ground, and identified by the witnesses, as the southwest corner of the Dennis Gahagan survey, on or prior to March the 3rd, 1881?
"`Answer "yes" or "no."'
"The jury answered this issue: `No.' The answers to these questions were wholly without support and against all the evidence in the record, and if the judgment in the least rested upon the jury's answers to these questions they would, under appellants' assignments of error, have to be set aside. Questions 6 to 13 were as follows, answered as indicated:
"`Special Issue No. Six (6) When James Ingalls surveyed and located upon the ground the San Geronimo Irrigation Company survey, at what distance did he locate the west line of said survey from the northeast corner of the Glenn Survey as located on the ground with reference to the said cedar stake?
"`Answer this question by stating the distance.'
"The jury answered this issue: `5779 varas.'
"`Special Issue No. Seven (7) When James Ingalls surveyed and located the Holbrook Survey upon the ground at what distance did he locate the west line of said survey from the southeast corner of the Burrell Survey as now located on the ground with reference to the said cedar stake?
"`Answer by stating the distance.'
"The jury answered this issue: `2995 vrs.'
"`Special Issue No. Eight (8) When James Ingalls surveyed and located upon the ground the E. L. Moore survey at what distance did he locate the east line of said survey from the southeast corner of the Burrell Survey as now located on the ground with reference to the said cedar stake?
"`Answer by stating the distance.'
"The jury answered this issue: `2995 vrs.'
"`Special Issue No. Nine (9) When James Ingalls surveyed and located upon the ground the Pedro De la Garza survey, at what distance did he locate the west line of said survey from the southwest corner of the N. Coleman Survey?
"`Answer by stating the distance.'
"The jury answered this issue: `3095 vrs.'
"`Special Issue No. Ten (10) When James Ingalls surveyed and located upon the ground the Pedro De la Garza Survey at what distance did he locate the west line of said survey from the west line of the Dennis Gahagan
survey as now located on the ground with reference to the said cedar stake?
"`Answer by stating the distance.'
"The jury answered this issue: `5511 vrs.'
"`Special Issue No. Eleven (11) When James Ingalls made his survey on March the 3rd, 1881, beginning on the south side of Taylor's Bayou and run a line due south 18,150 varas at what distance did he locate this line west from the west line of the Dennis Gahagan survey as now located on the ground with reference to the cedar stake?
"`Answer by stating the distance.'
"The jury answered this issue: `5511 vrs.'
"`Special Issue No. Twelve (12). When James Ingalls made his survey on March the 3rd, 1881, beginning on the south side of Taylor's Bayou and ran a line due south 18,150 varas, at what distance did he locate said line west from the west line of the Isaacs survey as now located on the ground with reference to the said cedar stake?
"`Answer by stating the distance.'
"The jury answered this issue: `4663 vrs.'
"`Special Issue No. Thirteen (13). When James Ingalls made his survey on March the 3rd, 1881, beginning on the south side of Taylor's Bayou and ran a line due south 18,150 varas at what distance did he locate said line west from the southwest corner of the N. Coleman survey as now located on the ground with reference to the west line of the Dennis Gahagan Survey, located as to the said cedar stake?
"`Answer by stating the distance.'
"The jury answered this issue: `3095 vrs.' These questions arose on the following facts:
"Preliminary to making the surveys in controversy Ingalls began far to the north in the Howard and ran a trial line south presumably to determine the boundaries of the vacant land above referred to. In making his report to the Land Office of this work he accompanied it with a map showing the distance his line was supposed to be from the surveys on the east adjoining...
