We conclude that Dod, in his resurvey under instructions of the Land Commissioner, properly prorated the excess by giving to the back line of each of these river surveys a length of 993 varas instead of 950 varas. Welder v. Carroll, 29 Tex. 517; Sellers v. Reed, 46 Tex. 377; Ware v. McQuinn, 7 Texas Civ. App. 107[ 7 Tex. Civ. App. 107], 26 S.W. 126; Knippa v. Umlang, 27 S.W. 915; Austin v. Espuela Land, etc., Co., 107 S.W. 1138; Johnson v. Knippa, 127 S.W. 905; Stahlman v. Riordan, 227 S.W. 726; Standifer v. Vaughan, 219 S.W. 484; Pandem Oil Co. v. Goodrich, 29 S.W.2d 877; Turner v. Smith, supra. 2 The next question for decision is whether Runnels County School Land Survey No. 3 should be constructed by adjoinder to the river surveys for which the field notes of its patent call.
— A deed which conveys an undivided one-half of a tract or survey of land will convey to the grantee one-half of any excess in quantity there might be in such tract or survey, and the grantee in such a deed gets one-half of the tract or survey, whether the number of acres be more or less than what was supposed by the grantor and grantee to be in the tract or survey. Jordan v. Young, 56 S.W. 762; Hunter v. Morse, 49 Tex. 219; Welder v. Carroll, 29 Tex. 317; Sellers v. Reed, 46 Tex. 377 [ 46 Tex. 377]; Ware v. McQuinn, 7 Texas Civ. App. 107[ 7 Tex. Civ. App. 107]. John E. Lynn and J.W. Conger, for defendants in error, cited, on construction of deed. — Lipscomb v. Underwood, 7 Texas Civ. App. 297[ 7 Tex. Civ. App. 297]; Troy v. Ellis, 60 Tex. 630 [ 60 Tex. 630]; McKinzie v. Stafford, 8 Texas Civ. App. 121[ 8 Tex. Civ. App. 121]; Peirson v. Sanger, 51 S.W. 869; Morris v. Hunt, 51 Tex. 614; Cook v. Oliver, 83 Tex. 561; Harkness v. Divine, 73 Tex. 629 [ 73 Tex. 629]; Bullock v. Smith, 72 Tex. 548; McDonough v. Jefferson Co., 79 Tex. 539; Kingston v. Pickens, 46 Tex. 101; Coker v. Roberts, 71 Tex. 602; Pierson v. Sanger, 93 Tex. 160; Kent v. Cecil, 25 S.W. 715; Martindale Conv., sec. 204; Tiedman Real Prop., sec. 812; Newton v. Emerson, 66 Tex. 145; Harriman Land Co. v. Hilton, 120 S.W. 165; Lanfer v. Powell, 30 Texas Civ. App. 604[ 30 Tex. Civ. App. 604]; Roundtree v. Thompson, 30 Texas Civ. App. 595[ 30 Tex. Civ. App. 595]; Ellis v. LeBorr, 30 Texas Civ. App. 449[ 30 Tex. Civ. App. 449].
When the marked or unmarked corner of lines of adjacent surveys is called for in the field notes of a survey, and such corner or lines so called for can be located and determined by the calls in said adjacent surveys, then such corner or lines of adjacent surveys will prevail over course and distance, and such marked or unmarked corner or lines should be the basis upon which to construct the survey. Maddox v. Fenner, 79 Tex. 279; Ware v. McQuinn, 7 Texas Civ. App. 109[ 7 Tex. Civ. App. 109]; Ratliff v. Burleson, 7 Texas Civ. App. 624[ 7 Tex. Civ. App. 624]; Langermann v. Nichols, 32 S.W. Rep., 124. If a survey calls for the corners and lines of another survey, a party who asserts that there was a mistake in so calling has the burden to show by a preponderance of evidence that the call for such corner and lines was in fact a mistake.
Moreland v. Page, 2 Iowa 139; Newcomb v. Lewis, 31 Iowa 488; McAlpine v. Reicheneker, 27 Kan. 257; Miller v. Topeka Land Co., 44 Kan. 354. 24 P. 420; Quinnin v. Reimers, 46 Mich. 605, 10 N.W. 35; Brooks v. Stanley, 66 Neb. 826, 92 N.W. 1013; Jones v. Kimble, 19 Wis. 429. In this connection see the following Texas cases: Welder v. Carroll, 29 Tex. 317; Sellers v. Reed, 46 Tex. 377; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S.W. 126; Knippa v. Umlang, 27 S.W. 915; Austin v. Espuela Land, etc., Co., 107 S.W. 1138; Johnson v. Knippa, 127 S.W. 905. It is true there are limitations upon and exceptions to this rule, as shown in a note upon the subject in Ann.Cas. 1912A, p. 1273, but they have no application here.
The principle announced in the charge was applied in the case of Gerald v. Freeman, 68 Tex. 201, 4 S.W. 256, and other cases, in which the facts called for it, but it has since become well established that it cannot be laid down as an absolute rule, and limitations thereof have been found necessary. See Maddox Bros. v. Fenner, 79 Tex. 279, 15 S.W. 237; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S.W. 126; Hermann v. Thomas, 168 S.W. 1048, and cases cited therein. In fact, it is merely a rule of evidence which in some cases is viewed as the best guide in determining what was actually included in the survey.
And appellant apparently contends that the course and distance called for giving out without finding the bearing trees or the unmarked line of Upshur county at that point, then as Polk county was school land, that under article 4269, R.S. 1895, that line must be prolonged to suit unmarked line wherever found, and apparently overlooked the fact that this unmarked open line must be ascertained with accuracy before it can be accorded the dignity of an artificial object that will prevail over course and distance. Maddox v. Fenner, 79 Tex. 279, 15 S.W. 237; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S.W. 126. As stated hereinbefore, it is elementary that the line of a grant must be established by calls in its own field notes and that if there is no conflict in the calls found in the field notes of a survey, there is no reason for construction, and the calls must speak for themselves.
Under such circumstances the rule that the call for a marked line of an older survey will prevail over distance has no force or effect. Booth v. Upshur, 26 Tex. 64; Freeman v. Mahoney, 57 Tex. 626; Boon v. Hunter, 62 Tex. 582; Fagan v. Stoner, 67 Tex. 286, 3 S.W. 44; Duff v. Moore, 68 Tex. 270, 4 S.W. 530; Gerald v. Freeman, 68 Tex. 201, 4 S.W. 256; Gregg v. Hill, 82 Tex. 405, 17 S.W. 838; Reast v. Donald, 84 Tex. 648, 19 S.W. 795; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S.W. 126; Bennett v. Latham, 18 Tex. Civ. App. 103, 45 S.W. 934; Holdsworth v. Gates, 50 Tex. Civ. App. 347, 110 S.W. 537. In the cited case of Booth v. Upshur there was a call for the line of a certain grant, and, in discussing the question, the court, through Judge O. M. Roberts, said: "There is no law fixing the effect of any call found in a grant, or giving one more weight or importance than another.
Construction against party claiming under uncertain surveys should prevail: Phillips v. Ayres, 45 Tex. 607; Schaeffer v. Berry, 62 Tex. 714. Where calls are taken from field notes of an actual survey, call for distance will control call for an unmarked line where the circumstances tend to show the latter was a mistake: Gerald v. Freeman, 68 Tex. 201; McCown v. Hill, 26 Tex. 361 [ 26 Tex. 361]; Ware v. McQuinn, 26 S.W. 126; Robertson v. Doss, 53 Tex. 506; Jones v. Leith, 32 Tex. 330 [ 32 Tex. 330]; Clark v. Hill, 67 Tex. 152; Burnett v. Burris, 39 Tex. 504. Where calls are evidently the result of mistake, same will be disregarded, and effect given to those which are certain and found on the ground: Boon v. Hunter, 62 Tex. 588; Robertson v. Mooney, 21 S.W. Rep., 143; Jones v. Andrews, 62 Tex. 660; Lilly v. Blum, 70 Tex. 711; Koeniger v. Niles, 67 Tex. 123.
Where two adjoining surveys are virtually one act, by same surveyor, and such surveys call for each other, but their dividing line is open and unidentified in fact, any excess of acres which may exist in such surveys should be divided and apportioned between owners of each in proportion to the number of acres called for in each survey. Ware v. McQuinn, 7 Texas Civ. App. 110[ 7 Tex. Civ. App. 110]; Knippa v. Umlang, 27 S.W. Rep., 916. The rightful owner of land is the owner of improvements placed thereon without his consent, and while the owner of the land might, in an action of trespass to try title, be required to pay for such improvements if placed thereon in good faith, such owner of the land would not be liable for exemplary damages for conversion of such improvements.