
    No. 2062.
    J. W. R. Moore and wife v. J. B. Reiley.
    1. Survey.—A surveyor, intending to include all the unappropriated land embraced between surrounding surveys, platted his survey in his office, without going on the ground, and called in his field notes for the older contiguous surveys as its boundaries. He was mistaken as to the true location of the older surveys, and thus the office surveys, though they would include no more land than was intended, would not be changed in their configuration, if bounded by the older surveys as they were established on the ground.
    2. Same—Since there was no material excess of land over the amount called ‘for, by permitting the junior survey to appropriate all the land surrounded by lands patented and called for in the field notes, the lines of the older surveys must constitute the boundary of the junior survey calling for them.
    Appeal from Limestone. Tried below before the Hon. L. D. r Bradley.
    This suit was brought by Reiley in the form of trespass to try title, the only question involved being one of boundary. The 'plaintiff described his three surveys as bounded on the west by the eastern line of the Rutledge survey, which was made in 1889. The true location of the eastern line of the Rutledge was i the vital question in the case. The east line of the Rutledge was not marked, nor were its terminal points clearly identified. Plaintiff’s surveys were made in 1868. The Polk and the Rutledge were made by the same surveyor, on the same day; and the Polk called for a corner in the Rutledge line, which seems to have been identified, and the north line of the Polk could be identified on the ground. Oliver, a surveyor, gave it as his opinion that no corner of the Polk had been found. The three surveys of the plaintiff were sections number eighteen and nineteen and the Plummer survey. The three junior surveys claimed 'by plaintiff were made without actually going on the ground, 'being merely platted in an office survey, the intention of the surveyor being to include all the unappropriated land included 'between surrounding surveys. The plaintiff’s survey in the name of Plummer was identified by the calls, on the ground, except the call for the Rutledge,
    
      The appellant assigned as error the finding of the court, to the effect that the east line of the Rutledge survey determined the location and position of the west line of the land claimed by plaintiff in his petition.
    The case was tried by the judge, a jury being waived. Judgment for the plaintiff, fixing the east boundary of the Rutledge, and locating the west boundary of plaintiff’s land on the east line of the Rutledge. He established, from evidence deemed satisfactory, the west line of the Rutledge, and then extended its north and east lines on the course, and for the distance called for, and thus established its east line. The judge filed his conclusions of fact and law, not necessary to give.
    In view of the principles announced in the opinion, it could serve no useful purpose to detail the testimony, which, at great-length, treats of courses, distances, and calls for a number of surrounding surveys, and of stumps and hypothetical conditions, which, unless the full testimony could be given, would only lead to confusion.
    
      L. J. Farrar, for appellant:
    On his proposition that the court erred in determining and holding that the east line of the Richard Rutledge survey determined the location and position of the west line of the land claimed by plaintiff in his petition, and recovered by him in the judgment rendered in this cause, cited Fordtran v. Ellis, 58 Texas, 245; Oliver v. Mahoney, 61 Texas, 610; Boon v. Hunter, 62 Texas, 582; Jones v. Andrews, 62 Texas, 652; Schaeffer v. Berry, 62 Texas, 705; Hawkins v. Nye, 59 Texas, 97; Morrill v. Bartlett, 58 Texas, 644, 655; Freeman v. Mahoney, 57 Texas, 621; Castleman v. Ponton, 51 Texas, 84; McCown v. Hill, 26 Texas, 359; Booth v. Strippleman, 26 Texas, 436; Booth v. Upshur, 26 Texas, 64; Robertson v. Mosson, 25 Texas, 248; Bass v. Mitchell, 22 Texas, 285; Mitchell v. Burdett, 22 Texas, 633; Hubert v. Bartlett, 9 Texas, 97; Carson v. Burnett, 30 American Decisions, 152 and note.
    
      Barrow & Kincaid, for appellee,
    contended that the position of a survey may be established from adjoining surveys where it is a part of a block of surveys, and no corner is found, cited Jones v. Burgett, 46 Texas, 285.
    On their proposition that, when it is clearly shown that no actual survey was made, the rules applicable to the determination of boundaries of actual surveys do not apply. In such case, all matters of description must be looked to, and they must be considered in connection with the matters to which the parties looked when the patent was issued, and that the grant must conform to the evident intention of the parties, they cited Boon v. Hunter, 62 Texas, 582; Booth v. Upshur, 26 Texas, 64.
    Opinion delivered April 21, 1887.
   Collard, Commissioner of Appeals.

It was the evident intention of the officers representing the State to include in the locations all the land between the Hanks and Ashmore on the east and the Rutledge on the west; and we are of, the opinion that the surveys should be so established. It is true, a marked line and clearly identified corners prevail over an open and indefinite line (Oliver v. Mahoney, 61 Texas, 612; Fordtran v. Ellis, 58 Id., 245), and especially is this the case where the line waactually run and corners were made, and the footsteps of the surveyor can be followed. (61 Texas, 612.)

In the case of sections eighteen and nineteen no actual survey was made, the surveyors, assuming that the lines, corners and distances of old surveys were correct, adopted them with the intention to include all the vacant land between the boundaries of surrounding surveys; they plotted the vacant lands into surveys without going upon the ground, calling for older surveys and placing the Rutledge further west than they thought it was at the time. It does not appear that more land was embraced in the field notes than they intended, or that the configuration of the land was changed—one of the south lines of section nineteen being longer and one shorter than they thought it was; under such circumstances the abutting survey called for would be the correct boundary. (Boon v. Hunter, 62 Texas, 582; Id., 660.)

The Plummer was surveyed in a vacancy surrounded by adjacent surveys; calling for them as well as the Rutledge it should extend to such abutting surveys when there is no material^ excess shown. The defendant can not complain, his own line being the open line, to have it fixed, and by such means to identify the junior survey.

We find no error in the judgment and report it for affirmance.

Affirmed.  