other calls been for the cardinal points of [8. APPEAL AND ERROR (§ 1064*)-HARMLESS the compass alone, we would not feel authorized to change such other calls upon a mere presumption that the surveyor in compliance with a directory statute intended to make the surveys square.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 300-316; Dec. Dig. § 95.*] 7. PARTITION (§ 95*)-DECREE-CONSTRUCTION. Where a plat, made part of the report of commissioners in partition and of the decree, covered all the land intended to be partitioned, tiff Rosenthal, and lot 3 in block 1, owned but the field notes in the report did not do so, the question was as to the intent of the commissioners in their report and the court's in

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

and recovery by all for the benefit of each, likewise without issue between them. Plaintiffs prayed for the title and possession of said 90-foot strip, and for their damages for the oil taken out by defendants without right, and for recovery of their royalties on the oil taken out under said lease to defendant, and for costs and general relief.

The answer of the defendant Sun Company, so far as necessary to notice, set up, in connection with the plea of not guilty and general denial, as follows: (1) That plaintiffs' action was barred by two years' limi

and lot 7 in block 2, owned by Brack Hargrave, and lot 2 in block 2, owned by Urilder, Nobles, and Wilson Hargrave, but that if mistaken in the averment that said lots were in said 90-foot strip, nevertheless plaintiffs were the owners in fee simple of the 90-foot strip, and of said subdivisional lots, both of which were a part of said Hargrave tract. Plaintiffs further alleged that plaintiffs (except Edgar W. Hargrave and William Sporn, as to the lot 6 in block 1) had pooled their interests in said Hargrave tract for oil purposes, and had executed to the plaintiff Morris Rosenthal an oil lease thereof, with pow-tation for oil taken out prior to July 28, er to sublease, reserving a tenth of the oil 1911, the date of the filing of the plaintiffs' as royalty; and that said Rosenthal, in the second amended original petition, upon which exercise of his power of subleasing, executed the trial was had. (2) That the lease to it to defendant Sun Company on January 23, from Morris Rosenthal was delivered and ac1908, an oil lease on said lots 1, 3, 4, 5, and cepted as alleged by plaintiffs, but that the 7 in block 1, and said lots 1, 2, and 7 in 90-foot strip was cut off of and across the block 2 of said Hargraves subdivision, re- south end of a tract of 39% acres allotted serving one-sixth of the oil product as roy- to J. D. Bourgeois in said Hermann-Payne alty. It was alleged that E. W. Hargrave partition suit, and that it had an oil lease and William Sporn, as to said lot 6 in block thereon from the owners, W. H. Bailey, J. 1, executed an oil lease thereof to Oran R. West, Geo. L. Glass and Eugene W. West, with power to sublease and assign, Booth, to whom it had paid the royalties, reserving an eighth part of the oil as roy-both before and since the instant suit, and alty, and that afterwards Oran West assign- they were impleaded for recovery over by ed and sublet the same to W. S. Farish, re- cross-action, if it was cast. (3) That whethserving a sixth royalty of the oil produced, er the true division line placed the 90-foot and that subsequently, on January 20, 1910, strip in the J. D. Bourgeois or in the Harsaid Farish duly assigned all his rights to grave tract, the respective owners had the oil that had been or might thereafter agreed upon a boundary line between said be produced or taken from said lot 6 in tracts, so as to place said 90-foot strip in block 1, under such lease, to plaintiff Morris the J. D. Bourgeois. (4) That plaintiffs were Rosenthal. Plaintiffs further alleged that estopped to claim the 90-foot strip to be a the defendant the Sun Company, aided and part of the Hargrave tract, for the reason assisted by its codefendants, had extracted that they, or those under whom they claim, from said 90-foot strip, and from the north had by said Ehrhardt plot of the Hargrave, 90 feet of said subdivisional lot 6 in block and deeds and releases adopting and recog1, to wit, 240,000 barrels of oil, of the rea- nizing it, or by pointing out the line on sonable market value of $192,000, all of the ground, or by other acts or statements, which it had wrongfully appropriated and represented the dividing line to be where converted to its own use, and had also ex-it, the Sun Company, claims it to be, that is, tracted from the north 90 feet of said lots so as to put the strip in question in the J. 1, 3, 4, 5, and 7 in block 1, and said lots 1, D. Bourgeois tract, south of the wells in 2, and 7 in block 2, of said Hargrave subdi- dispute, and that on the faith of such reprevision, to wit, 210,000 barrels of oil, of the sentations it had been reasonably misled reasonable and market value of 80 cents into changing its position for the worse at per barrel, for one-sixth of which it became great outlay, by drilling wells and paying and was accountable to plaintiff Morris Ros-over royalties to claimants of the J. D. enthal, for the use of himself and coplain- Bourgeois tract. tiffs, but that it had wrongfully appropriated and converted same to its sole and exclusive use and benefit, including plaintiffs' one-sixth royalty, of the reasonable and market value of $28,000, for which it has refused to ac-bella West, and his minor children, Emmett, count to plaintiffs, notwithstanding due demand, basing its refusal upon the adverse claim that the wells from which such oils were produced are not on said lots covered by said lease to it. Plaintiffs further alleged that under their pooling agreement they had apportioned and assigned among themselves their interest in the recovery, so that the recovery by any would be for the benefit of all, without issue between them,

The impleaded defendant, J. R. West, died pending the suit, and on petition by plaintiffs, his heirs and representatives were brought in, to wit, his administratrix, Isa

James R., and Sam West, and Edna Wilson, an adopted daughter.

The impleaded cross-defendants, including the heirs and representatives of J. R. West, deceased, the minors, by their regularly appointed guardian ad litem, S. H. Brashear, duly answered practically to the same effect as the defendant the Sun Company.

The plaintiffs, under leave of the court, filed a supplemental petition in reply, in which

they, after interposing a general denial to the south of the wells in question, and on that averments of the answers, alleged:

decree to the children of Mary Hargrave., thence north 439.7 varas to the northwest The said partition suit (Hermann-Payne) | corner of said 150-acre tract; thence east 464 by which the court allotted to the parties varas; thence north 193 varas; thence west thereto parts of the James Strange and J. B. 673 varas to the place of beginning. Jones surveys and the J. Dunman labor is the common source of title. The three surveys are bounded on the north by the San Jacinto river; the J. Dunman labor lies west of the James Strange and east of the part of the Strange there partitioned. Out of that survey is a tract of 432 acres, extending the surveys full length to the river on the north, and known as the Wilson 432-acre tract. The decree of partition reads:

* * * We attach field

notes and metes and bounds of each part allotted to each party in said cause, also a map showing a plat of all said lands, and the parts set apart to each.

"Field notes of 23.07 acres made for the heirs of M. Boudreau out of the Strange survey, south of and adjoining 108.614 acres made for M. Bourgeois: Beginning at said Bourgeois' southwest corner; thence south 191 varas to corner; thence east 673 varas to corner; thence north 191 varas to M. Boudgrois southeast corner; thence west 673 varas to the place of beginning.

"Field notes of a survey of 39.304 acres out of the Strange and Dunman labor surveys made for (Mary Steele et al.) south of and adjoining a survey of 39.304 acres made for Mary Hargrave et al.: Beginning at southeast corner; thence south 567.2 varas to W. T. Payne's northeast corner; thence west 391.2 varas along said Payne's north line to corner; thence north 567.2 varas; thence east 391.2 varas to the place of beginning.

"Field notes of a survey of 151.91 acres of land made for W. T. Payne out of the J. Strange, J. B. Jones surveys, and the J. Dunman labor: Beginning at a stake at the tram on the west line of the J. Dunman 150-acre survey 1,110 varas north of its southwest corner and 255 varas north and 209 varas east of the J. Dunman labor southeast corner; thence east 1,266 varas to the west line of the Holmes 50-acre tract; thence south 682 varas; thence east 1,266 varas to stake;

thence north 682 varas to the place of be

ginning."

J. W. Gillespie testified as follows of the way the field notes and map adopted were arrived at: "J. J. Gillespie was my father. "Field notes of a survey of 108.614 acres I assisted him in making the surveys. We of land made for M. Bourgeois off the north went upon the ground; first we run the east end of the Strange survey: Beginning at the northeast corner of the J. Dunman labor on of the Wilson, and then the east line of the line of the Strange, which was the east line the south bank of the San Jacinto river, the balance of the Strange which was the west same being the northwest corner of this sur-line of the Wilson 480 acres. We extended it vey; thence south 751.5 varas to corner; then from the south line of the Strange to thence west 673 varas to corner on the west the river, the north line of the Strange. I 'ine of the Wilson 483-acre tract; thence could not tell now just exactly what we took north 269.3 varas to the San Jacinto river; up next after we run that line. The only thence up said river with its meanders to the one of the tracts in the report of the complace of beginning. missioners that we surveyed and actually located on the ground was the Payne; and in fixing this northeast corner of the Payne we began by measuring 1,110 varas from the southwest corner of the Dunman 150 as pointed out to us by an old settler by the name of Joe Dunman. I saw that the northeast corner was 1,110 varas north of the southeast corner of the Dunman 150 and 255 varas north and 209 varas east of the southeast corner Dunman labor. We then tied to these two surveys. We then surveyed the Payne tract and fixed the four corners. (Note from this description it appears there are two 'east' calls and no 'west.') I began at the northeast corner of the Strange and ran down 5,645 varas to southeast corner. I meandered some of the San Jacinto river, meandered across the Wilson tract, but just how much I do not now remember. I knew or thought I knew where the southwest corner of the Dunman labor was, and from that I located the intervening surveys between the Payne tract and the San Jacinto river. The call was 2,727 varas from the Dunman corner to the river, and I knew that the north line of the Payne was 255 varas north

"Field notes of a survey of 39.304 acres made for J. D. Bourgeois out of the Strange survey, south of and adjoining the 23.07 acres made for the heirs of M. Boudreau: Beginning at the southwest corner of a survey of 23.07 acres made for Boudreau; thence south 329.6 varas; thence east 673 varas; thence north 329.6 varas; thence west 673 varas to the place of beginning.

"Field notes of a survey of 39.304 acres of land made for the children of Mary Hargrave out of the Strange survey, south of and adjoining the J. D. Bourgeois 39.304 acres: Beginning at the southwest corner of J. D. Bourgeois 39.304-acre tract; thence south 632.7 varas; thence east 209 varas to the west line of the Dunman 150 acres;

of the south line of the Dunman, so had the ambiguity, extrinsic evidence cannot be redifference to work on in reaching the river sorted to to show that the survey occupied from the Payne. In making the field notes some other position. Warren v. Sapp, 97 S. I think we began both ways, i. e., at the W. 125; Johnson v. Archibald, 78 Tex. 96, 14 river and going south to the Payne, and at S. W. 266, 22 Am. St. Rep. 27. the Payne and north to the river. The notes [2] It is admitted that if the land be platwill show the way it was done, and they ted to the south, beginning with what plainwill show the way they were made. There tiffs claim was a fixed northeast corner of are not any of those blazed trees there now the M. Bourgeois 108-acre tract, the 90-foot that are called for in the patent for corners strip would be where appellants claim it to of either the Strange or Dunman. It's hard be; if it should be platted to the north, with to tell what is understood by a call for the the Payne north line as a base, the 90-foot bank of the river. In this case we intended strip would be where appellees claim it to that corner to be 2,727 varas north of the be. The question under the above assignsouth line of the Dunman labor. I did not ment then is: Was there any inconsistency intend to start at any point different from or ambiguity, such as under the law would the northeast corner of the Dunman and the require the cause to be submitted to the northeast corner of the Strange, which I jury? The partition was the act of the court was ordered by the court to survey. The through the commission appointed. It is unPayne tract cuts off a portion of the south disputed that the map and field notes when of the Dunman labor, 255 varas north and sought to be applied to the land as it actualsouth. If you subtract that from the 2,727 ly measures out would not fit it. There was varas, you will have 2,472 left of the east nothing said in the report about marked line of the Dunman labor; add 567.2 varas lines, but simply described the several subfor the Steele, 632.7 varas for the Mary Har- divisions by metes and bounds after naming grave, 329.6 varas for the J. D. Bourgeois, a beginning corner, to wit, the Dunman the 191 varas for the M. Boudreau, and the northeast corner, without locating it by any 751.5 varas for the M. Bourgeois; they exact-natural or artificial object except to say "on ly correspond with the land I had left after the bank of the San Jacinto river." The I fixed the Payne. I intended to slice that land between the Payne and the river by a line running east and west and give those distances to each tract, just as I would a cake. If I take the Payne tract as a basis and give the Steele tract the distance shown in my plat and field notes and likewise the other surveys named to the river north, then the 90-foot strip will not be on the Hargrave. The northeast corner is a good high bankclay-and has not varied for many years. I went to that corner when I made the partition. I know the 90-foot strip. If you take the measurements on the east side from this high bank corner, and give each tract its quantity called for on the map and in the field notes filed, the 90-foot strip will be on the Hargrave tract; and then if you run on around and north up the east line of the Dunman and the west line of the tracts in controversy, and give each tract its west line measurement according to the field notes of the partition decree, you would stop about 350 to 400 feet south of the water in the river."

Appellants' first assignment of error raises the point that as a matter of law the court should have instructed a verdict for the plaintiffs, first, because "the undisputed evidence showed that by properly locating the M. Bourgeois, by its calls in the HermannPayne partition suit, and tying thereto in their order by course and distance the Boudreau, the J. D. Bourgeois, and the Hargrave tracts, as required to be done, the 90-foot strip would be in the Hargrave tract."

[1] Of course, if the calls in the partition decree, supported by the map which is ex

field notes would indicate that the several subdivisions as reported by the commission began at the M. Bourgeois 108-acre tract on the river and each in their order tacked to it, but the surveyor who was on the ground and who made the field notes testified, without objection, that he did not survey any of the subdivisions but did run some of the lines of adjoining surveys as above noted; that he first located the Payne tract, and then calculated the distance between that and the Dunman corner, and in making the field notes intended to cut the space up between the Payne north to the river like he would a cake, giving so many varas north and south to the Steele, the Hargrave, the Bourgeois, the Boudreau, and the M. Bourgeois. The calculations and field notes were made in the office, all based upon the Payne tract.

The evidence further shows that the field notes without the plat (the plat or map was a part of the decree of the court and expressly mentioned therein as a part [Lyon v. Waggoner, 37 Tex. Civ. App. 205, 83 S. W. 46]) will not cover the ground intended to be partitioned by the court-a 90-foot strip unassigned-and if we measure from named corners either the northwest or northeast corner of the M. Bourgeois 108 on the river and then give each subdivision its number of varas south until we take up the space called for, there is left a 90-foot strip north of the Steele, or else its calls for distance must give way and the Steele tract take to the Payne, thus giving it more land than was intended it should have and the tract of 108 acres on the river less. On the other hand,