Pruitt v. Sebastian County Coal & Mining Co.

• Decision Date: 04 July 1949
• Docket Number: No. 4-8773.,4-8773.
• Citation: 222 S.W.2d 50
• Parties: PRUITT v. SEBASTIAN COUNTY COAL & MINING CO.
• Court: Arkansas Supreme Court

Page 50

222 S.W.2d 50

PRUITT v. SEBASTIAN COUNTY COAL & MINING CO.

No. 4-8773.

Supreme Court of Arkansas.

July 4, 1949.

Appeal from Sebastian Chancery Court, Greenwood District; C. M. Wofford, Chancellor.

Suit by Sebastian County Coal & Mining Company against Joe Pruitt to enjoin trespass on land and for damages. From a decree for plaintiff, defendant appeals.

Affirmed.

Bates, Poe & Bates, Waldron, for appellant.

Pryor, Pryor, Dobbs & Barham, Fort Smith, for appellee.

McFADDIN, Justice.

In what was commenced as a simple suit to enjoin a trespass on land and to recover damages, there has been injected the question of the correct boundary line between Scott and Sebastian Counties; and this boundary line question, like Banquo's ghost, "will not down." It turns up at every angle of this litigation.

The appellee, Sebastian County Coal and Mining Company, filed suit in the Sebastian Chancery Court claiming ownership of the following lands alleged to be in Sebastian County, Arkansas, to wit: "The NW¼ NW¼ Sec. 5, Twp. 3 N, R. 32 W; and NE¼ NE¼, Sec. 6, Twp. 3 N., R. 32 W; and the Frl. N½ Sec. 1, Twp. 3 N., R. 33 W."

The complaint alleged that the defendant Joe Pruitt (appellant here) had trespassed on the lands and had cut and removed timber therefrom. The prayer was for injunction and damages. The defendant Pruitt admitted that he had cut and removed the timber from the lands, but claimed by proper pleadings (1) that the lands were in Scott County and therefore the Sebastian Chancery Court was without jurisdiction; and also (2) that he held under a tax title (based on a Scott County forfeiture) which he claimed to be superior to the plaintiff's claim of title.

This was a local action under section 1386, Pope's Digest, which requires such an action to be prosecuted in the county in which the land is situated.¹ Even if they had desired—which they did not— the parties could not by consent have conferred jurisdiction of the subject matter in this case.²; so the jurisdictional and sharply contested issue was whether the lands were in Scott or Sebastian County. The Chancery Court held that they were in Sebastian County, and awarded plaintiff the injunction and damages. The defendant has appealed.

We find that this Court on previous occasions has decided county boundary line issues in suits between individuals. Bittle v. Stuart³ was a suit between private litigants (as distinguished from a quo warranto proceeding or an action between disputing counties); and this Court, in an opinion by Mr. Justice Eakin, determined the validity of a legislative enactment concerning the boundaries and the territory embraced in Clark County. Reynolds v. Holland⁴ was a suit between private litigants; and this Court—again speaking by Mr. Justice Eakin—determined the location of the boundary line between counties. Crawford v. Brown⁵ was a private action to recover land alleged to be in Clark County. The defense was that the land was in Hot Spring County; and this Court, by Mr. Justice Riddick, in deciding the issues, necessarily determined a disputed county boundary question. In Crow v. Roane⁶ this Court, speaking by Mr. Justice McCulloch, settled the boundary line between Miller and Little River Counties, in litigation between individuals. Until the Legislature provides that an adjudication of county boundary lines be determined only in a proceeding in which the interested counties be parties, or in which the State act by quo warranto, the cases heretofore cited are precedent and authority for a county boundary line dispute to be indirectly adjudicated in a suit between individuals.⁷

Each side has presented the case with skill and care. Along with the oral testimony, 50 exhibits were introduced, including more than 20 maps. Before we proceed to consider the question here presented— that is, the boundary line between Scott and Sebastian Counties in ranges 31, 32 and 33 west—we state facts necessary to present the contentions.

1. Scott County was created from parts of Crawford and Polk Counties by Act of the Arkansas Territorial Legislature of November 5, 1833;⁸ and that Act fixed— insofar as is here involved—the north boundary of Scott County to be "the line between Townships 3 and 4 North of the Base Line." In other words, north of Scott County was Crawford County, and the north boundary line of Scott County in Ranges 31, 32 and 33 was the north line of Township Three. The Arkansas Territorial Legislature on October 24, 1835⁹ adopted an Act enlarging the boundaries of Scott County; and the General Assembly of the State of Arkansas on December 16, 1838¹⁰ adopted an Act more particularly defining the line between the Counties of Scott and Crawford. The north line of Scott County, insofar as is here involved, remained as established by these three Acts (November 5, 1833; October 24, 1835 and December 16, 1838) until the creation of Sebastian County.

2. Sebastian County was created from parts of Crawford, Polk and Scott Counties by the Act of the General Assembly of January 6, 1851.¹¹ That Act took a strip of land off of the west side of Scott County about 13 miles east and west, and about 18 miles north and south; and all of such territory so taken in Ranges 31, 32 and 33, was south of the north line of Township Three. The taking of this territory from Scott County by the Act of 1851 is claimed by the appellant to have been unconstitutional; and this will be discussed in topic I.

3. The ordinance of June 1, 1861 of the Arkansas Secession Convention returned to Scott County all of Sebastian County that was south of the Poteau Mountain. Appellee claims that this ordinance definitely established the boundary line between Scott and Sebastian Counties to be the top of the Poteau Mountain; but the appellant claims that the description in this 1861 ordinance was too indefinite to be valid. Discussion of this ordinance is contained in topic II.

4. The afore-mentioned Acts of 1851 and 1861 are apparently the only legislative enactments which attempted to fix the boundary between Scott and Sebastian Counties; but the appellant lists a number of subsequent Acts which he claims constitute recognition of the questioned boundary line to be the north line of Township Three. These various Acts cited by the appellant, as well as his other contentions will be discussed in topics III and IV.

What we are really required to decide is whether the lands described in the complaint in this case are in Sebastian County; but to decide that question we must necessarily decide the larger question as to the boundary line between Scott and Sebastian Counties in Ranges 31, 32 and 33 West. The territory drawn into dispute in this case is all of the land (approximately 3800 acres) that lies south of the north line of Township Three and north of the center ridge line of the Poteau Mountain. Roughly, it is a triangular area beginning on the Arkansas-Oklahoma boundary line, and being approximately two miles wide north and south, and extending easterly and north of the top of the Poteau Mountain range to the point where that mountain range crosses the north line of Township Three. A diagram showing the area is attached to this opinion. It is appellant's contention that the Scott County line extends due east and west along the north line of Township Three, just as stated in the Act of 1833 creating Scott County. It is the appellee's contention that the Scott County line extends along the high point of the Poteau Mountain range, as stated in the Act of 1861. With the contentions

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thus stated, we now consider the topics as previously indicated.

I. The Act of 1851 Creating Sebastian County. Art. IV, section 29 of the Constitution of 1836, in force in 1851, provided: "No county now established by law shall ever be reduced by the establishment of any new county or counties to less than nine hundred square miles, * * *." Appellant says that by the Act of 1851— creating Sebastian County—territory was taken from Scott County to such a great extent that what remained was in fact less than 900 square miles. Here is appellant's language on this point: "Appellant relies on the fact that the Act of 1851, creating Sebastian County, was unconstitutional and, therefore, a nullity, to that part which proposed to take a part of Scott County, a county established at the adoption of the Constitution of 1836, and add the same to Sebastian County, a new county; because, in doing so, the Act would reduce the area of Scott County below the constitutional limit of 900 square miles. Therefore, the boundary line, with reference to Sections 5 and 6 of Township 3 North, Range 32 West, and Section 1 in Township 3 North, Range 33 West, would be the township line between Townships 3 and 4 North as established in the Act of 1833, originally establishing Scott County."

A determination of how many square miles of territory were left in Scott County after the creation of Sebastian County, necessitates a study of the Act of November 5, 1833 (creating Scott County), with the territorial changes made by the Acts of October 24, 1835; December 16, 1838; December 5, 1840; January 2, 1845 and January 6, 1851. Judicially, we know the county boundaries;¹² and it is our conclusion that there remained in Scott County after the creation of Sebastian County in 1851, an area in excess of 972 square miles. This is true, because the Act of October 24, 1835¹³ had enlarged Scott County. This Act was not discussed in any of the briefs on this case. The territory given Scott County by the said Act of October 24, 1835 remained a part of Scott County until Sarber County (now Logan County) was organized by the Act of the General Assembly of March 22, 1871.¹⁴ So, on the fact question, it appears that Scott County did have more than 900 square miles of territory remaining after the Act of January 6, 1851 had created Sebastian County; and therefore Scott...