Fine v. Dade County

• Decision Date: 21 November 1944
• Docket Number: 15006.
• Citation: 32 S.E.2d 246,198 Ga. 655
• Parties: FINE v. DADE COUNTY et al.
• Court: Georgia Supreme Court

32 S.E.2d 246

198 Ga. 655

FINE v. DADE COUNTY et al.

No. 15006.

Supreme Court of Georgia

November 21, 1944

Rehearing Denied Dec. 4, 1944.

Syllabus by the Court.

1. An order of the Governor of this State appointing a surveyor to make a survey and plat of a disputed county line will be presumed, until the contrary appears, to have been made in full compliance with the act of 1887, Ga.L.1887, p. 106, and such survey and plat, when filed and recorded in the office of the Secretary of State without protest or exceptions, are final and conclusive as to the boundary line, which thus established remains as the true line until lawfully changed by another official survey ordered by the Governor and can not be impeached by a private survey.

(a) On application of the above principles of law in a suit to enjoin a county and its tax officials from levying an execution for taxes on the land of the petitioner, where a survey and plat made under an order of the Governor, reciting that it is made in pursuance of the act of 1887, supra, shows the land of the petitioner to be wholly in an adjoining county, the court erred in denying the injunction, although there was in evidence a subsequent plat and survey and testimony of engineers and surveyors privately engaged showing the land to be in the county sought to be enjoined.

Bernard Fine filed an equitable petition against Dade County, G. C Tatum, and W. F. Morrison, sheriff and tax commissioner respectively, of said county, alleging as follows: The petitioner is the owner of described land lying in Walker County, Georgia, and returns for taxation thereon have been made by him and his predecessors in title under the name of 'Stardust' for more than seven years past. All taxes assessed against the property under said returns for State, county and school district purposes have been fully paid to the tax collector of Walker County, Georgia. Dade County has issued against the petitioner a tax execution for taxes assessed against the property by the tax commissioner of Dade County, and it has been levied by the sheriff of said county. Dade County and the said tax commissioner are without right or authority to issue the execution against the petitioner's property, it not being subject to taxation in Dade County because it actually lies within Walker County, Georgia, and all taxes due Walker County and the State of Georgia and all school taxes have been paid to the tax collector of Walker County, Georgia. The petitioner is without any adequate remedy at law and unless a court of equity intervenes in his behalf he will suffer irreparable loss and injury. He prayer that process issue and that the defendants be temporarily and permanently enjoined from advertising or selling the property levied on under said execution or from further proceeding therewith, and that the court by proper judgment declare that the said execution is void and of no effect and decree the cancellation thereof.

A temporary restraining order was granted. The defendants filed an answer denying that the property was in Walker County, Georgia, and that the issuance of the execution was not authorized and that the property was not subject to taxation by Dade County. They also denied that the petitioner was without adequate remedy at law and would suffer irreparable loss and injury unless the court intervened in his behalf.

The parties entered into a written stipulation of facts as follows: 'First. That by general reputation and understanding for a period of forty years or more the line between Dade County and Walker County has laid [sic] to the westerly side of the lands described in the first paragraph of the petition in the above stated case and that, under such reputation and understanding as to the location of said line, said lands described in the first paragraph of the petition would lie in Walker County, Georgia, and the line between said counties would be along the easterly side of the Lookout Mountain Scenic Highway, as shown by the plat attached to the affidavit of A. A. Simonton, a distance of 707 feet from the westerly brow of Lookout Mountain, which is reputed to be the county line as shown by the Branner survey, but that no person can be found who will testify as to the actual location of said line by measurements or survey other than A. A. Simonton and Kieffer Lindsey, whose affidavit will be submitted to the court as evidence in the above stated case. Second. That there has been found in the office of the secretary of State of Georgia a plat known as the Branner plat, a copy of which is hereto attached to this stipulation of facts, marked exhibit 'A,' and made a part hereof, together with the field notes of said Branner survey, a copy of which field notes is hereto attached, marked exhibit 'B,' and made a part hereof. Third, That the records of the executive department of the State of Georgia show that no action was ever taken with respect to said Branner survey other than the order of the Governor of the State of Georgia, his Excellency W. J. Northern, dated September 24, 1892, a certified copy of which is hereto attached, marked exhibit 'C' and made a part of this stipulation. Fourth. That no other records are of file in either of the executive archives of the State of Georgia or in the office of the secretary of State of the State of Georgia touching the location of the line between Walker County and Dade County. Fifth. That the conveyances of the land described in the first paragraph of the petition have heretofore been made to the predecessors in title of plaintiff describing said land as lying in Walker County, Georgia. Sixth. That the plat of the McFarland subdivision, which is recorded in Walker County but is not recorded in Dade County, does not purport to show the county line between Dade County and Walker County, but states that the land subdivided and the subdivision in its entirety lies in Dade County and Walker County. Seventh. It is further agreed that either plaintiff or defendants may submit affidavits or oral testimony in addition to but not in conflict with any facts stipulated herein or admitted in the petition or the answer.' Exhibit 'A' referred to in the stipulation consists of a copy of a plat and exhibit 'B' consists of field notes as to the line surveyed by J. A. Branner in October, 1892, as being between Dade County and Walker County. Exhibit 'C' is a certified copy of an executive order of September 24, 1892, as follows: 'Ordered: That J. A. Branner, county surveyor of the County of Chattooga, be and he is hereby appointed to survey, mark out and define the boundary line in dispute between the counties of Dade and Walker in this State, under authority of an act of the General Assembly entitled 'An act to settle and [define?] the county lines in this State, &c. approved October 20, 1887.'

The petitioner introduced in evidence his sworn petition, and the defendants introduced in evidence an affidavit by Kieffer Lindsey as follows: 'That on August 6, 1944, he, in company with A. A. Simonton and other persons, made measurements on Lookout Mountain, in the State of Georgia, to determine the location of the lands described in paragraph first of the petition in said case. That said measurements were made across said mountain and approximately at right angles to the longitudinal axis thereof, said measurements being made from brow to brow of said mountain. That at the points determined by affiant to be the brow of the mountain there could be no question as to the same being the brow of the mountain as there, at the definite tops of well defined palisades, the plateau breaks sharply toward the two several valleys, and it was from such breaking point upon the west side of the mountain that the measurements were made to a like breaking point upon the east side of the mountain. That in conformity with said measurements the plat attached to the affidavit of A. A. Simonton, showing the distances of such measurements and their location with respect to the aforesaid lot of land as described in paragraph first of the petition in this case, was prepared by A. A. Simonton, and that said measurements are correct and said plat shows the relative location of said tract of land to the east and west brows of said mountain and correctly shows the distance between the brows of said mountain. That said lot, according to the measurements, lies westerly of the middle of the top of the Lookout Mountain a distance of 2167 feet west of the middle of the top of Lookout Mountain, said middle point being shown correctly by said plat as ascertained by said measurements, a copy of said plat referred to in this affidavit being attached to the affidavit of A. A. Simonton, dated this day, marked exhibit 'A,' and made a part of said affidavit, the measurements and courses shown thereon being correct. This affidavit is made by affiant to be used upon the hearing of the above stated case.' The defendants also introduced in evidence an affidavit of A. A. Simonton, containing similar averments to those in the affidavit of Kieffer Lindsey, and further deposing that 'he endeavored to trace the Branner survey and to locate the same, but was unable to do so or to find any marks indicating where said survey had been made upon top of Lookout Mountain marking the line of said survey, and that the county dividing line as shown thereon between Walker County and Dade County does not lie at any point, with respect to the land described in paragraph first of the petition, near the middle on top of Lookout Mountain. This affidavit is made by affiant to be used upon the hearing of the above stated case.'

The court rendered judgment denying the injunction sought and dissolving the temporary restraining order theretofore granted, and made...