Elmore County v. Tallapoosa County

• Decision Date: 11 December 1930
• Docket Number: 5 Div. 76.
• Citation: 222 Ala. 147,131 So. 552
• Parties: ELMORE COUNTY v. TALLAPOOSA COUNTY.
• Court: Alabama Supreme Court

131 So. 552

222 Ala. 147

ELMORE COUNTY v. TALLAPOOSA COUNTY.

5 Div. 76.

Supreme Court of Alabama

December 11, 1930

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Bill in equity by Tallapoosa County against Elmore County, to establish the boundary line between the counties, etc. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed and remanded.

Martin Thompson, Turner & McWhorter, of Birmingham, C. T. Reneau Huddleston & Glover, and Holley, Milner & Holley, all of Wetumpka, Denson & Denson, of Opelika, and Hill, Hill Whiting, Thomas & Rives, of Montgomery, for appellant.

J. Sanford Mullins, of Alexander City, Jacob A. Walker, of Opelika, and Steiner, Crum & Weil, of Montgomery, for appellee.

THOMAS J.

This is the second appeal. Elmore County v. Tallapoosa County (Ala. Sup.) 128 So. 158, 166. In the opinion on the last appeal is the observation that Tallassee Falls Mfg. Co. v. State, 194 Ala. 554, 69 So. 589, a proceeding "between taxing authorities and the manufacturing corporation, is not decisive of the question of jurisdiction," citing as authority therefor Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243, 244; and that acquiescence may be shown under paragraph 11 of the original bill.

The territory in dispute is averred to be:

"*** That originally constituted by the Act of the General Assembly, approved December 18th, 1832, to-wit: the range line dividing ranges 20 and 21, or, (2) the line fixed by the Act approved February 15th, 1866, to-wit: the western bank of the Tallapoosa River. But the respondent claims that the territorial extent and jurisdiction of the Complainant extends in a westerly direction no further than the median line or thread of the stream of the Tallapoosa River. ***

"Complainant alleges that as averred in subsection (1) of paragraph 4 of this bill, all of said dam, power plant and other appurtenances of said Martin Dam are in Tallapoosa County; and that as averred in subsection (2) of paragraph 4 of this bill the West boundary of Tallapoosa County intersects said dam at a point defined and located as follows: Begin at the North-west corner of Section 36, T. 20, N., R. 21, E., in Elmore County, Alabama, and run south 139 feet, thence turning an angle 88 degrees and 50 minutes to the left, taking a course south 88 degrees and 50 minutes East, run 2541 feet. This is the point of intersection of the west boundary of Tallapoosa County with said dam. But Respondent claims that the boundary line between said Counties at said point lies 125 feet, more or less, to the East of the point above defined, that is, at a point of coinciding with the median line or thread of the stream of the Tallapoosa River, and Elmore County is now exercising jurisdiction over and collecting taxes upon all that part of said dam, power plant and appurtenances lying west of the median line or thread of the stream of said Tallapoosa River."

The act creating Elmore county employs this description of the disputed line:

"That from and after the passage of this act, all that portion of Coosa County south of the township line, dividing townships twenty (20) and twenty-one (21); all that portion of Tallapoosa county south of said township line, dividing townships twenty (20) and twenty-one (21), and west of the Tallapoosa river; and all that portion of Montgomery county north of the Tallapoosa river, and all that portion of Autauga county east of the range line, dividing ranges sixteen and seventeen, be and the same are hereby constituted into a new county, to be called the county of Elmore." (Italics supplied.) General Acts 1865-66, p. 484.

The former decision is not decisive of the second appeal in the same case between the same parties if this court is impressed with a contrary view. Louisville & Nashville R. R. Co. v. Western Union Tel. Col., 195 Ala. 124, 126 71 So. 118, Ann. Cas. 1917B, 696; Louisville & Nashville R. R. Co. v. Abernathy, 197 Ala. 512, 534, 73 So. 103.

It is further established by this court that a bill which is wholly without equity may be dismissed by the court ex mero motu. Birmingham Interurban Taxicab Service Corp. v. McLendon, 210 Ala. 525, 528, 98 So. 578; Dailey v. Koepple, 164 Ala. 317, 51 So. 348.

The constitutional question of legal existence of Elmore county may be laid out of the case as settled by the former appeal. Elmore County v. Tallapoosa County (Ala. Sup.) 128 So. 158. The statute creating Elmore county definitely fixed its boundary with contiguous counties of Coosa, Montgomery, and Tallapoosa, and was construed and applied as affecting Elmore, Montgomery, and Tallapoosa counties in a taxing case, Tallassee Falls Mfg. Co. v. State, 13 Ala. App. 623, 68 So. 805; Id., 194 Ala. 554, 69 So. 589; on certiorari to this court, the latter decision reversed the Court of Appeals and was concurred in by all of the justices.

Section 11 of the bill as amended did not aver that there was an ambiguity in the act creating the county that, or such facts as, presented a question of acquiescence, and not one of law and judicial knowledge. That is to say, the averments employed, without more, are in opposition to the fact of which the court takes judicial knowledge-the true line established between these counties. State ex rel. Glenn v. Wilkinson, 220 Ala. 172, 124 So. 211; Vol. 12 Enc. Pleadings & Prac. p. 1; vol. 18, Second Decennial Digest, p. 20; Louisville & Nashville R. R. Co. v. Palmes, 109 U.S. 244, 3 S.Ct. 193, 27 L.Ed. 922, 925. This on the assumption that a fact impossible in law is not admitted by demurrer.

If a boundary line of a county can be determined as a question of law, acquiescence in another line by contiguous counties is immaterial. Acquiescence can be considered only where there is uncertainty because of a conflict in the calls descriptions, or monuments employed in the act fixing the line; as where (1) the monuments employed are equivocal and might be referred to one as well as another, or (2) where the monuments employed in defining the line fixed by law have been removed, disappeared, or effaced by time or the course of nature, or (3) where the lines, calls, or descriptions employed in the act are inconsistent or not susceptible of certain observation and determination. It is in such contingencies that the rule of acquiescence is resorted to and applied from the rule of necessity. The want of better evidence to refresh judicial knowledge of location of such true line warrants the courts, in such cases, in indulging the presumption of law that the line long acquiesced in and recognized as the true line is in fact the line as originally fixed by law. The true line, if determinable, cannot be changed by parol evidence; it is the line originally fixed that is to be located. Pounders v....