State ex rel. Halligan v. Clary

• Decision Date: 17 November 1916
• Docket Number: 19045
• Citation: 160 N.W. 107,100 Neb. 324
• Parties: STATE, EX REL. P. R. HALLIGAN, COUNTY ATTORNEY, APPELLANT, v. M. P. CLARY ET AL., APPELLEES
• Court: Nebraska Supreme Court

160 N.W. 107

100 Neb. 324

STATE, EX REL. P. R. HALLIGAN, COUNTY ATTORNEY, APPELLANT, v. M. P. CLARY ET AL., APPELLEES

No. 19045

Supreme Court of Nebraska

November 17, 1916

APPEAL from the district court for Garden county: RALPH W. HOBART JUDGE. Affirmed.

AFFIRMED.

Wilcox & Halligan and P. R. Halligan, for appellant.

H. J Curtis, F. E. Williams and R. F. Williams, contra.

BARNES J. SEDGWICK, J., not participating.

OPINION

BARNES, J.

This is an appeal from the judgment of the district court for Garden county in a proceeding in quo warranto by which the county attorney of Arthur county sought to have the state oust the officers of Garden county from exercising jurisdiction over a strip of land lying between the twenty-fifth degree of longitude west from Washington and the range line between ranges 40 and 41 west of the sixth P. M., which the legislature of 1895 (Laws 1895, ch. 23) defined as the west line of Arthur county, said strip of land being about 3 miles in width and 24 miles long. The trial court found for the defendants and dismissed the proceeding. The plaintiff has brought the case to this court for review.

Appellant contends that the district court erred in the holding that the boundary line between Garden county and Arthur county was the range line between ranges 40 and 41 west of the sixth P M. This contention is based largely on the proposition that the legislative act of 1895 defining the boundaries of Arthur county is unconstitutional. The fact that the act of 1895 was a void act may be conceded; but, notwithstanding that fact, it appears that in 1887 the legislature passed an act creating Arthur county and defining its boundaries. At that time Arthur county was unorganized territory, and was attached to McPherson county for election, judicial and revenue purposes. On the 16th day of August, 1913, Arthur county was duly organized under the provisions of an act passed by the legislature of that year. The record shows that in 1888 Deuel county was created out of the east part of Cheyenne county, and the twenty-fifth degree of longitude west from Washington was defined as the east boundary line of Cheyenne county. It further appears that at that time the twenty-fifth degree of longitude west from Washington had not been surveyed, marked out, or established upon the ground, but the range line between 40 and 41 was thought to be such meridian line. Garden county was formed out of the east part of Deuel county, and, at the time Arthur county was created and its boundary defined, the twenty-fifth degree of longitude west from Washington was an unknown and imaginary line. No attempt was made by anyone to have it surveyed, determined and marked upon the ground until about the year 1912, when the county of McPherson, to which Arthur county had been attached for revenue, judicial and election purposes, caused the survey to be made and marked by monuments, which survey established the location of the twenty-fifth degree of longitude west from Washington. At the time McPherson county had the twenty-fifth degree surveyed and marked, it claimed to embrace within its own boundaries the entire county of Arthur as a part and parcel of itself, and the monuments placed to indicate the exact location of that line upon the face of the earth were marked on the west side of the unorganized territory attached to McPherson county. This survey was made at the instance of McPherson county, and that county furnished the monuments. That was the first step by the state, or any one, to establish and mark the twenty-fifth degree of longitude upon the face of the earth, and was taken in April, 1912, 17 years after the passage of the act of 1895, and 24 years after Arthur county was created by the legislature and its boundaries defined. Before this line was surveyed and marked, no person traveling westward through Arthur county could tell where that county ceased and Cheyenne, Deuel and Garden counties, in their succession, began, and, while that knowledge was wanting, the legislature, in 1895, sought to remedy the difficulty by redefining and fixing the west line of Arthur county as the line between ranges 40 and 41 west of the sixth P. M., and, whether the act was legal or not, it was sensible and practical, and a recognition by one of the coordinate branches of the state government of that line as the west boundary line of Arthur county and the east boundary line of Deuel county. After the passage of the act of 1895 the state recognized the range line as the west line of Arthur county and the east boundary of Cheyenne, Deuel and Garden counties. This is evidenced by the fact that the department of public lands and buildings caused the state school lands within the strip to be surveyed, and caused the commissioners of Deuel county to appraise those lands for rental purposes. On August 9, 1899, section 36, in township 17, range 41, was leased, and this lease was transferred to L. F. Fairchilds on November 16, 1908, according to the transcript of...