The opinion
HIGGINS, Justice
(dissenting).
My views are in accord with those of the trial judge, who accepted as correct the Lovell survey in fixing the boundary of Lot 3 of Section 32, Township 13 S., Range 18 E., S. Eastern District. It is conceded that Roman was issued a patent for 88.25 acres only and the State was paid for the land on an acreage basis. Under the majority holding, the defendant will obtain about 50 additional acres ■of land without paying any sum whatsoever therefor. Certainly, it was not the intention of the parties that the patentee would receive this additional land without giving any consideration for it. Since the majority opinion is predicated upon the intentions of the parties, it is difficult to understand how it could be said that the patentee would receive gratis more than one-half of the total acreage which was sold to him.
The description of the land in tne. patent is as follows: “Lot No. 3 of Sec. 32 Township 13 S. Range 18 E. 88.25 (acres) S. Eastern District”. Clearly, as appears from the above description, this is not a sale per aversionem or by metes and bounds and, therefore, the defendant cannot be held to have acquired the additional 50 acres on that theory.
For these reasons, I respectfully dissent.