POST v. STATE, 171 S.W. 707

PHILLIPS, J. The suit was a controversy between the state and the plaintiff in error, Post, over certain lands held by the latter, claimed by the state to be vacant and sought by it to be recovered. The trial resulted in a judgment .in Post’s favor. On the appeal the honorable Court of Civil Appeals affirmed this judgment on the original hearing; but on motion for rehearing reversed it, and rendered judgment for the state for all of the land. 169 S. W. 401.

With the state contending that the land was not included in the several surveys owned by Post as determined by their original field notes, a principal question in .the case was whether a resurvey of Post’s lands by the state- surveyor under the act of 1887 (articles 5347, 5348, and 5349, R. S. 1911) which, according to its corrected field notes, placed the land in dispute within the lines of the original patents, was binding upon the state.

After the Court of Civil Appeals’ decision on rehearing, it certified that question to this court, to which answer was made that the resurvey was not effectual to give Post any land which the original surveys did not, according to their field notes, include. 169 S. W. 407. The case is now here on Post’s petition for writ of error, to which the state has filed an answer. Adhering to our ruling on the certified question, the Court of Civil Appeals correctly decided that the resurvey was not binding upon the state; but it was without authority to render the judgment.

While the trial court rested its judgment upon a holding that the state was concluded by the resurvey, it found, as a fact, that a part .of the land in suit — not defining the amount — is embraced within the original field notes of the surveys. If it is, the state is not entitled to recover that part of the land. The Court of Civil Appeals found differently from the trial court upon this question, and upon such finding rendered the judgment. The province of determining questions of fact is in the trial court. The Court of Civil Appeals has the power to set aside its finding and remand the cause for a new trial.

Where the evidence is without conflict, it may render judgment. But where there is any conflict in the evidence upon a material issue, it has no authority to substitute its findings of fact for those of the trial court. Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69. There is evidence in the record, whether correct or not, which supports the trial court’s finding of fact that the original field notes of the surveys include a part of the land in controversy. The case should, therefore, have been only remanded.

The judgments of the district court and the Court of Civil Appeals are reversed, and the case is remanded for the settlement of this issue. HAWKINS, J., being disqualified, did not participate in the decision.