Board of County Commissioners of Crook County v. Board of County Commissioners of Sheridan County

• Decision Date: 29 March 1909
• Citation: 100 P. 659,17 Wyo. 424
• Parties: BOARD OF COUNTY COMMISSIONERS OF CROOK COUNTY v. BOARD OF COUNTY COMMISSIONERS OF SHERIDAN COUNTY
• Court: Wyoming Supreme Court

100 P. 659

17 Wyo. 424

BOARD OF COUNTY COMMISSIONERS OF CROOK COUNTY v. BOARD OF COUNTY COMMISSIONERS OF SHERIDAN COUNTY

Supreme Court of Wyoming

March 29, 1909

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

A dispute having arisen concerning the location of the boundary line between Sheridan and Crook Counties, the former county applied to the district court pursuant to the statute to have the line definitely settled by a survey to be made by a competent surveyor appointed by the court for that purpose. The facts are stated in the opinion. From a judgment granting the application of Sheridan County for a survey of the line as it was defined by law, Crook County prosecuted error.

Affirmed.

M. L Gordon, County Attorney of Crook County, for plaintiff in error.

The Hanson survey of the west boundary line of Crook County became the true boundary of said county from the time that it was made in 1885. There being no law prescribing how county boundary lines should be surveyed and no method by which one county could require another to join with it in a survey of a common boundary it was necessary for Crook County to make the survey to determine the limits of the jurisdiction of its courts and public officers, as well as the place for registration of title deeds, &c. The survey was, therefore within the authority of Crook County. By the exception of the line between Crook and Johnson Counties in the act of 1886 (Laws 1886, Ch. 7, Sec. 1; R. S. 1887, Sec. 670) the legislature qualifiedly recognized the Hanson survey temporarily at least as the boundary line, and expressly protected it until Johnson County should survey the line and take official action thereon. Although the deputy county surveyor of Johnson County thereafter surveyed a line, and reported it to disagree with the Hanson survey, the Johnson County board never took any action in the matter but tacitly accepted the Hanson survey and acted upon it as marking the boundary between the two counties; this non-action probably resulted from the fact that the two surveys having started from the same initial point, the variation between the two magnetic needles used was no greater than was to be expected. From the moment that the act of 1886 was enacted the Hanson line became the legal boundary line for all purposes. There has been no official action by which a different line has been legally established; and it was, therefore, a legal boundary line at the time Sheridan County was created. (Board v. Head, 3 Dana (Ky.) 489.)

The legislature, in describing the boundaries of Sheridan County must have had in mind the Hanson line and regarded it as an established line, for, otherwise they would not have specifically designated as the starting point the northwest corner of Crook County and as the east boundary the west boundary line of Crook County. Then by stating that the new county was to be composed of all that portion of the "present County of Johnson" lying north of a designated line, the legislature emphasized that they meant a county, viz.: Johnson County, as it then existed, with its boundaries marked on the ground. There was no other known, recognized or contemplated northwest corner, or west boundary line of Crook County than the corner and line established by the Hanson survey, and no steps had been taken to ascertain any other. Sheridan County, therefore, has no right to complain of the Hanson line, since the act creating it adopted that line as its eastern boundary. Although the proviso of the act of 1886 is omitted from the revision of 1899, it was operative when Sheridan County was created, and its omission from the revision cannot be held to have repealed it.

We contend, therefore, that the Hanson survey of 1885 became the lawfully established boundary line between Johnson and Crook Counties, and, therefore, between Sheridan and Crook Counties. (Eureka Co. v. Lander Co., (Nev.) 26 P. 63.) The 106th meridian never was the eastern boundary line of Sheridan County. It is only by implication that said meridian can be regarded as the boundary, and upon the assumption that the Hanson line was established upon said meridian.

Crook County since 1885 having exercised dominion over all the territory within the boundaries marked by said survey those boundaries should be regarded as the true boundaries. (Edwards Co. v. White Co., 85 Ill. 390.) Although the monuments on the survey seem to have been lost for a time, three of the monuments have since been discovered, and it cannot be said that the location of the line is in doubt. The present proceeding is purely statutory; there can be no dispute concerning the line in question since the line of the Hanson survey is the true line and a resurvey of it is unnecessary. Should either county refuse, however, a joint survey of the Hanson line then a proceeding under the statute might be proper. But Sheridan County has no right to have a different line surveyed and marked as the boundary. The reasonable interpretation of the statute is that the court may order a resurvey of the disputed boundary line, but not to establish a new line, that is to say not to correct an old survey but to find its location; not to determine where an old line ought to be but to discover where it is actually marked upon the ground by actual survey. (Jones v. Powers, 65 Tex. 207.) Considering the difficulty of locating the meridian, and the fact that three pairs of counties will each be affected by any change along the line in question, there would be a prospect of continual dispute as to which portion of the line is on the meridian, if the meridian instead of the Hanson survey is to be regarded as the true line. Surely it was not the legislative intention by the act of 1886 to create a possibility of endless confusion. (Edwards County v. White County, supra; Hecker v. Sterling, 36 Pa. St. 423.) The constitution declares that the several counties of the territory as they exist at the time of the admission of the state are to be the counties of the state. Under this provision Crook County became one of the declared counties of the state, and, its boundaries having been surveyed and marked, it became such county with said surveyed boundaries, and the constitution must have referred to the county with its boundaries so marked; and it follows that the boundaries of Crook County cannot now be changed except by a constitutional amendment.

Charles A. Kutcher, County Attorney of Sheridan County, for the defendant in error.

The only material question in controversy is whether the survey of the west boundary line of Crook County in 1885 which was made solely at the instance of Crook County amounted to a legal establishment of said line so as to be conclusive upon complaining county. The 106th meridian was originally designated as the western boundary of Crook County. The act creating Sheridan County made its eastern boundary to coincide with the western boundary of Crook County. Crook County's western boundary was never changed from the meridian designated by law unless it was changed by the so-called Hanson survey of 1885. That survey was purely ex parte. The proviso in the act of 1886 did not amount to a recognition of the Crook County survey as an established line. If it was so intended the legislature would have declared it an established line by appropriate language so as to make further surveys and disputes unnecessary. The proviso, however, was omitted from the revision of 1899, and was, therefore, repealed by virtue of Section 2713 of that revision. Moreover, the line had been surveyed by the deputy surveyor of Johnson County and his survey disagreed with the Hanson survey; and thereupon the line in question was clearly brought within the provisions of the act. Again, the proviso relied upon refers only to Johnson and Crook counties and could have had no bearing upon that part of the line that became Sheridan County's eastern boundary after its creation and organization. Sheridan County certainly is not required to wait until Johnson County should make a survey if she has not made one. Sheridan County became a separate and distinct body in 1888, and was not bound at any time by the exception contained in the proviso.

Had the Hanson survey been authorized and made under such circumstances as to have amounted to a legal establishment of the division line between Crook and Johnson Counties, then, even if it was not upon the meridian it would have constituted the authenticated line, but it was never authorized, has never been participated in, nor ratified by either Johnson or Sheridan Counties. It is not, therefore, an authenticated survey. The constitutional declaration as to existing counties clearly did not authenticate any county boundary survey, but if boundaries were referred to at all they would be those defined by law.

The argument that the location of the Hanson line is not in doubt and, therefore, the boundary line is not in dispute begs the whole question by assuming that the Hanson survey is authentic and conclusive, which is the very proposition here in issue. We are not seeking to correct an old survey or establish a new line, but to have the true line definitely and conclusively established. We concede the rule that where a county boundary line has once been legally and authentically established, even though erroneous, it cannot be subsequently changed without consent so as to affect vested rights. But the case at bar does not come within that rule, because no legal and authentic survey of the line in question has ever been made. The cases cited in the brief of plaintiff in error are not applicable to the facts here. The point urged that other counties might be interested in parts of the line surveyed by Crook County...