Appellee claims the eighty acres of land in controversy by virtue of a patent issued to Thos. L. Mixon the 2d day of September, 1862. Appellant claims the land by virtue of a patent issued to Hiram E. Davis for six hundred and forty acres of land on the 5th day of November, 1845.

The real contest was as to whether the land in controversy was or not included in the Davis patent. From the record it appears that the F. Swoap and H. E. Davis, each for six hundred and forty acres, were surveyed at the same time and by the same surveyor. Erath, who made the surveys, testified that he commenced the Swoap survey at the northeast corner of a survey made for John G. McKeen, and that corner is well known and identified. The patent calls thence north 28° west, one thousand nine hundred varas, to a mound in the prairie. From thence S. 62° W. one thousand nine hundred varas, a mound for the northwest corner, etc. The Davis patent calls for its beginning corner eight hundred varas S. 62° W. from the northeast corner of the Swoap; from this Davis corner a live oak bearing south 74 east, sixty-four varas, is called for. The lines of these surveys are shown to be almost entirely in the prairie, *366and no marked lines or trees are called for in either patent. If the Swoap and Davis surveys are made upon the ground according to the calls for course and distance, then the eighty acres in controversy would not be included in the Davis patent either in whole or in part. Erath testifies that he did mark some trees on the lines as run by him, and that the northwest corner of the Swoap, as made by him, is some four hundred or five hundred varas further to the northwest than the point reached by running the course one thousand nine hundred varas, and that the land in controversy is included in the Davis survey as made by him upon the ground. He also says that the marked trees, that is, those marked by him in making the surveys, have been seen by him since, and were upon the lines as he run them originally. The court simply charged the jury, if the land in controversy was included in the Davis patent, then to find for appellant; otherwise to find for appellee.

The evidence was somewhat conflicting, and leading to diverse conclusions as to the true location of the survey with respect to the ground. But the court did not explain to the jury the principles of law which should govern them in the application of the various calls in the patents to the ground. ■ Paragraph second of the charge asked by appellant and refused by the court, while it contains much that ig superfluous, still there is a sufficiency of matter contained in it to fully indicate to the court the omission in the general charge. The latter part of that paragraph is as follows: “If you believe, from the evidence before you, that the Hiram E. Davis was in fact made, and, following the actual survey as it was made by the surveyor, you find the land sued for included in the said survey, then you will find for the defendant.” That charge might be incorrect and inapplicable to some cases; for instance, proof of the actual survey as made might not be admissible to establish a survey which would be in conflict with all the calls in the grant. This, however, is not that character of case. On applying the calls of the Swoap patent to the ground, then, according to Erath’s evidence, the calls for course and distance, and that for the mound in the prairie, do not correspond. Hor do the calls for course and distance correspond with the calls for the beginning corner of the Davis survey. Under such circumstances, if it can be shown to the satisfaction of the jury, by evidence which they may détermine worthy of belief, that the actual survey as made upon the ground is not correctly shown by the calls for distance, then the survey as actually made would control.

The court should have submitted to the jury the rules by which *367they were to be governed in determining the true location of the land.

We conclude that' the court erred in the charge, and the judgment ought to be reversed and the cause remanded.

Beversed and remanded.

[Opinion delivered June 20, 1882.]