delivered the opinion of the Court.
This action in trespass to try title was filed by petitioners, Reserve Petroleum Company and Gulf Coast Western Oil Company, for the recovery of an undivided one-half interest in the oil, gas and to other minerals in the west one-half of Section 70, Block A4, Abstract 1304, E. M. Harp Survey, Certificate 725, T. T. Ry. Co. in Hale County. The district court rendered judgment in favor of petitioners for an undivided one-half interest in all minerals in the south 120 acres of the west one-half of the section, and adjudged that they take nothing as to the minerals in the north 200 acres of the west one-half of the section. On appeal by petitioners the Court of Civil Appeals affirmed the trial court’s judgment as to the 200 acres but, sustaining a cross assignment by respondents, rendered judgment that petitioners take nothing as to the 120 acres.
The petition for writ of error presents two points, both of which relate to the 120 acre tract. The first of these attacks the conclusion of the Court of Civil Appeals that the description of the land contained in two deeds under which petitioners claim is fatally defective. These deeds thus describe the land: “The following described land situated in Hale County, State of Texas, to wit: West 1/2 of Section #7, Block A4, Abstract #1304, E. M. Harp Survey, containing 320 acres more or less.” The only difference between the description of the land for which petitioners sue and that above quoted from the two deeds is that the number of the section as set out in the petition is “70”, and the number of the section appearing in the two deeds is “7”.
It is clearly shown by the entire record that the number of the section as given in
The case is one for the application of the rule that the part of a description that is false will be disregarded or rejected as surplusage and the deed will be sustained as valid if, after the rejection of what is false, the remaining words of the description are sufficient to identify the land with certainty. Arambula v. Sullivan,
Article 5252 of the Revised Civil Statutes, Article 5253 prior to its repeal in 1945, and Article 5254 before and after its amendment in 1945, make it the duty of the Commissioner of the General Land Office to compile and constantly correct an abstract of patented, titled and surveyed lands, and to cause copies of supplemental abstract to be printed and bound for distribution among those officers of the state and counties whose duties re quire their' use. By Article 7194 the Commissioner of the General Land Office is required to furnish to the assessors of taxes a correct abstract of all surveys of land and the number "of acres therein in their respective counties, and to send each year an additional • list of new surveys.- Article 7195 makes it the duty of the commissioners court of each county to furnish to it tax assessor abstract books, with specified printed headings and forms, containing blanks for abstract numbers, certificate numbers, names to whom certificates were issued and other descriptive data ; and Article 7196 provides that the blanks are to be filled by the assessors “with the abstract number”, name of party to whom certificate was issued, number of acres, etc.
The courts will take judicial notice of the construction placed upon these statutes by the Commissioner of the - General Land Office and of his long continued practice in the performance of his official duties under them. Short v. Carter & Bro.,
That construction and long continued and uniform practice on the part of the Commissiner of the General Land Office are as follows: Each survey in every county, as it passes or has passed into private ownership, is given an abstract number by the Commissioner of the General Land Office,
no two surveys in any one comity being given the same number.
Abstract books showing these numbers for the surveys are compiled and copies of the -books are sent to the Comptroller and to the tax assessors of the counties. The books are supplemented from time to time as portions of surveys are segregated or pass into other ownership, but the abstract number that was. originally given to a survey remains as the abstract number of the
Documentary evidence in the record in this case, from the General Land Office, the office of the Comptroller and the office of the tax assessor of Hale County, shows that this same practice was followed with respect to Section 70, Block A4, E. M. Harp Survey in Hale County. The section was set apart to the public school fund. It was sold to E. M. Harp in 1898. The survey was given abstract number 1304, and, according to the practice of the General Land Office, that abstract number was never given to any other survey in Hale County. It is shown by the file wrapper in the General Land Office for Section 70 and by pages of the abstract" books in evidence, that the first part of Section 70 segregated from the survey was the northeast one-fourth. The abstract books from the Land Office for 1925 to 1926 give 1304 as the abstract number for the west one-half and the. southeast one-fourth of Section 70, that being the first change, and having been made because the northeast one-fourth" had been segregated from the survey. The abstract books in evidence further show that the north part of the west half of Section 70, 200 acres, was segregated from the survey and patented in 1936, and. that abstract number 2504 was given to that tract, leaving 1304 as the abstract number of the south 120 acres of the west half and the southeast one-fourth of the section; that the south 120 acres of the west one-half was segregated and patented on April 15, 1939, and abstract number 2509 given to that tract; and that thereafter 1304 continued to be the abstract number of "the southeast one-fourth of the section, which was patented October 23, 1942.
The endorsements on the file wrapper in the General Land Office, made to contain the filed papers for Section 70, reflect the same facts as those evidenced by the abstract books with respect to the segregations, or “splits” from the section. This wrapper, first made for the whole of the section and bearing the endorsement of “abstract 1304” continued in use for the part of the survey remaining after the various “splits” until finally it became the wrapper for the southeast one-fourth of the section. Always the abstract number 1304 remained unchanged.
Abstract number 1304, therefore, in so far as the section number is concerned, always has reference in the abstract books, the records of the General Land Office, to Section 70, and not to any other section. The words “Abstract #1304” appearing in the mineral deeds afford the means or data for certain identification of the land, for they point to existing public records where abstract number 1304 is always given to Section 70 of a part of that section, and is never applied to any other section or any part of any other section. With the false part of the description in the deeds, the number of the section, disregarded, the description that remains clearly evidences the intention of the grantors to convey the west one-half of a section of land in Block A4 in Hale County, which is an E. M. Harp Survey and has 1304 as its abstract number. The only section in Hale County that has that abstract number, or ever had it, is Section 70, for which petitioners sue.
• The sufficiency and certainty of the aid given to the description by the abstract number 1304 are further and particularly evidenced- by the record in this, that the two mineral deeds were executed in 1931
We cannot sustain the second point in the application for writ of error. It makes the contention that since the respondents undertook by contract and by the two mineral deeds to convey to petitioners’ predecessors an undivided one-half interest in the minerals in the 320 acre tract of land, petitioners’ predecessors and petitioners “became entitled to a total of 160 acres of oil, gas and minerals” and that when respondent defeated petitioners’ recovery of any interest in the north 200 acres of the one-half section, on the ground that the land was homestead and the deeds were not acknowledged, petitioners thereupon became entitled to recover “all of the 120 acres of minerals in the south 120 acres of land”.
Petitioners have cited no authorities, and we have found none, that sustain this contention. Moreover, neither the pleadings nor the proof would support a judgment in petitioners’- favor for all of the minerals in the south 120 acres of the one-half section. The petition alleges a formal action in trespass to try title for the recovery of an undivided one-half interest in the minerals in the west one-half of the section. It does not allege that the plaintiffs have either a contract or a deed for 160 acres of mineral rights out of the 120 acre tract. It alleges no facts which would entitle the plaintiffs to all the minerals in the south 120 acres. Petitioners’ suit for an interest in the north 200 acres failed because the land was homestead, and since petitioners had sued only for a one-half interest in the minerals in the entire 320 acres, they could recover only an undivided one-half interest in the minerals in the remaining 120 acres.
The deeds under which petitioners claim recite that they convey an undivided one-half interest in the minerals in the 320 acre tract. They do not purport to convey 160 mineral acres out of the tract. By the terms of the contract for the sale or pooling of mineral rights, which respondents executed at the time the deeds were signed, respondents agreed to convey to petitioners’ predecessors in title ah undivided one-eighth interest and an undivided three-eighths interest in the minerals in the 320 acre tract. This was not an agreement to convey either 160 or 120 mineral acres out of the tract.
The judgment of the Court of Civil Appeals is reversed and the judgment of the district court is affirmed. Costs in the Court of Civil Appeals are taxed against petitioners and costs in this Court are taxed against respondents.
Opinion delivered February 8, 1950.
Associate Justice Griffin disqualified and not sitting.
No rehearing filed.