Sims v. Milwaukee Land Co.

• Decision Date: 04 November 1911
• Parties: ROBERT C. SIMS, Appellant, v. MILWAUKEE LAND CO., a Corporation, Respondent
• Court: Idaho Supreme Court

119 P. 37

20 Idaho 513

ROBERT C. SIMS, Appellant, v. MILWAUKEE LAND CO., a Corporation, Respondent

Supreme Court of Idaho

November 4, 1911

FERRIES-LICENSE-RECORD OF BOARD OF COMMISSIONERS-SUFFICIENCY OF PROOF.

(Syllabus by the court.)

1. Where application is made for a ferry license and a license is authorized and granted by the board of county commissioners, it will be presumed that the board performed their duties as required by law and that such license was issued according to law and is valid upon its face, and in the absence of evidence to the contrary is prima facie sufficient to show the right of the party to whom the license was issued to construct and operate such ferry.

2. Where the board of county commissioners, upon an application for a ferry license, takes all the steps required by statute but mislay or lose the papers and documents filed by the applicant and such papers and documents cannot be produced and the board has failed to make a record of such proceedings, then and in such case it is proper for the applicant to show by oral testimony what the board in fact did do, and the board's entire proceedings. This would in no way contradict the record of the board, and was the only way to prove the acts of the board, and was the best evidence obtainable for the purpose of proving such matter.

3. The statutes of this state require certain proceedings to be taken by the applicant and the board of county commissioners in granting a ferry license, and if the statutory proceedings are taken and the board issues a license, such license will be held valid notwithstanding the fact that the complete proceedings of the board were not made a matter of record on the minute-book.

4. Under the provisions of secs. 1911 and 1912, Rev. Codes, the board of county commissioners are required to keep a minute-book in which must be recorded all orders and decisions made by them and the daily proceedings had at all regular and special meetings, but the statute does not make this requirement a jurisdictional matter; in other words, the statute does not make the recording upon the minute-books a prerequisite to the validity of the acts and proceedings of the board; while the statute does direct that such matters be recorded, yet the proceedings are not invalid by reason of the failure to so record such matters.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action to recover damages for injury to and interference with a ferry across the St. Joe river. Judgment for respondent, and plaintiff appeals. Judgment reversed.

Judgment reversed, and a new trial ordered. Costs awarded to the appellant.

McFarland & McFarland, for Appellant.

"Commissioners' proceedings are supposed to be regular." (Goddard v Stockman, 74 Ind. 400; Loesnitz v. Seelinger, 127 Ind. 422, 25 N.E. 1037, 26 N.E. 887; State v. Crawford, 39 Wis. 596.)

The license should have been admitted without appellant's being required to prove any of the proceedings of the board, had or taken, prior to the issuance of the license, because it is presumed that an officer does his duty and that his proceedings are correct. (20 Cent. Dig., tit. "Evidence," par. 500; Bryson v. Johnson Co., 100 Mo. 76, 13 S.W. 239; In re Tecumsah Townsite Case, 3 Neb. 267.)

"Official acts of public officers are presumed to have been rightfully done. Hence, acts done, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the former acts." (16 Cyc. 1076, par. e; Colo. Fuel & Iron Co. v. State Board etc., 14 Colo. App. 84, 60 P. 367; Spaulding v. Howard, 121 Cal. 194, 53 P. 563; Guy v. Washburn, 23 Cal. 111; Valley Tp. v. King Mfg. Co., 4 Kan. App. 622, 45 P. 660.)

Parol testimony of the contents of a lost ordinance and other lost records may be received. (Grace v. City of Bonham, 26 Tex. Civ. App. 161, 63 S.W. 158; Ex parte Canto, 21 Tex. App. 61, 57 Am. Rep. 609, 17 S.W. 155; Gulf Ry. Co. v. Calvert, 11 Tex. Civ. App. 297, 32 S.W. 246; In re Will of Warfield, 22 Cal. 51, 83 Am. Rep. 49; 20 Cent. Dig., tit. "Evidence," secs. 583-587; Trumble v. Williams, 18 Neb. 144, 24 N.W. 716; Wells v. Jackson, 47 N.H. 235, 90 Am. Dec. 575; Jackson v. Crawfords, 12 Wend. (N. Y.) 536; Hare v. Hollomon, 94 N.C. 14; Isley v. Boon, 109 N.C. 555, 13 S.E. 795; Drake v. Kinsell, 38 Mich. 232; Seaboard Nat. Bank v. Ackerman (Cal. App.), 116 P. 91.)

J. L. McClear, and F. M. Dudley, for Respondent.

As the board of county commissioners is a board of inferior jurisdiction, there is no presumption of law in its favor, and its jurisdiction must be established, and the record of its proceedings establishing the ferry must recite the facts giving the board such jurisdiction. (19 Cyc. 496; Givens v. Ferguson's Heirs, 6 T. B. Mon. (Ky.) 186; Rees v. Lawless, 1 Bibb (Ky.), 493.)

"County boards are bodies with special and limited jurisdiction, and all facts necessary to give jurisdiction must affirmatively appear upon the records of their proceedings; otherwise the presumption is against their jurisdiction." (11 Cyc. 397, 398.)

The validity of their proceedings must appear from their records and can be shown in no other way. (Conger v. Commissioners, 4 Idaho 740, 5 Idaho 347, 48 P. 1064; Miller v. Smith, 7 Idaho 204, 61 P. 824; Gilbert v. Canyon County, 14 Idaho 429, 94 P. 1027; Finch v. Tehama County, 29 Cal. 454; State v. Wahoe County, 5 Nev. 319; State v. Ormsby County, 6 Nev. 97; McKinney v. Commissioners (Ala.), 52 So. 756; Godchaux v. Carpenter, 9 Nev. 418, 14 P. 140; Brooks v. Morgan (Ind.), 76 N.E. 333; Riley v. Pettis County, 96 Mo. 318, 9 S.W. 906; Polly v. Hopkins, 74 Tex. 145, 11 S.W. 1084.)

The action of a county board must be shown by its record, and oral testimony is inadmissible to establish necessary facts not recited. (Dennison v. St. Louis County, 33 Mo. 168; Medlin v. Platte County, 8 Mo. 235, 40 Am. Dec. 135; Kozee v. Commonwealth (Ky.), 129 S.W. 327; Seass v. Monroe, 146 Ill.App. 56.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an action brought by Robert C. Sims against the Milwaukee Land Co., a corporation, for damages aggregating the sum of $ 1,615, alleged to have been sustained by the plaintiff by the wrongful, unlawful, wilful and malicious acts and interference by the defendant with a certain ferry constructed and operated by the plaintiff across the St. Joe river, under a ferry license granted to him by the board of commissioners of Kootenai county, on the 21st of November 1907. The answer puts in issue the allegations of the complaint, and in addition the defendant tendered an affirmative defense, and alleged that prior to July 1, 1907, certain lands were conveyed to Albert L. Flewelling by the owners, and that said Flewelling between the times of the conveyance of said lands to him and prior to July 1, 1907, and the 9th day of December, 1907, was entitled to the possession and in the possession of said property, and that on the 9th day of December, 1907, said Flewelling conveyed said property to the defendant, who has since remained and now is the owner thereof; that prior to December 9, 1907, the defendant had purchased and there had been conveyed to it and it was seised in fee simple various other parcels of land extending along the left bank of the St. Joe river, abutting immediately upon said river, both above and below the parcels of land purchased from Flewelling; that in the year 1907, Flewelling erected at a point a short distance below the property owned by him a mill, and in December of 1907 conveyed all the said lands and mill to the defendant, and thereafter the defendant erected another mill on said property, and ever since the erection of said mill said Flewelling and the defendant have maintained and operated said mills and engaged in the manufacture of lumber; and for the purpose of operating said mills, which were for the most part supplied with timber cut upon lands tributary to the St. Joe river, it became necessary for the said Flewelling and for the said defendant to drive a line of piling in said river, and near to the left bank thereof, extending from a point above the head of navigation of said river and far above the property owned by Flewelling and to a point below the sawmill, and to connect the same with boom sticks to hold the logs until they were manufactured; and that since said piling was driven and the boom sticks attached, the same have been maintained so far as required and necessary by the defendant, and are so maintained to the left of the trend of the channel of said river in such manner as not to interfere with the use of said stream for the purposes of navigation. That sometime in the winter of 1907 and 1908, and the spring of 1908, the plaintiff began to transport people in rowboats from a point on the right bank of said St. Joe river to a point on the left bank thereof, situated in or near lot 8 in sec. 20, and upon land belonging to the defendant, at which point the plaintiff would land such passengers; and would cause his said boats to be attached to pilings driven into the bed of said stream upon the lands of said defendant, and make a landing upon the lands of the defendant, and continuously used the same, and thereby committed constant and continuous trespass upon the lands of the defendant, against its will and consent and without right or authority; and to better enable the plaintiff to transport passengers over and across the stream and to enable the plaintiff to transport teams over and across the same and to land them upon the defendant's said lands, the plaintiff, without right or authority so to do and against the will and without the consent of the defendant, attached a cable...