State ex rel. Reed v. Garden County

• Decision Date: 01 February 1919
• Docket Number: 19387
• Citation: 170 N.W. 835,103 Neb. 142
• Parties: STATE, EX REL. WILLIS E. REED, ATTORNEY GENERAL, RELATOR, v. GARDEN COUNTY ET AL., RESPONDENTS
• Court: Nebraska Supreme Court

170 N.W. 835

103 Neb. 142

STATE, EX REL. WILLIS E. REED, ATTORNEY GENERAL, RELATOR, v. GARDEN COUNTY ET AL., RESPONDENTS

No. 19387

Supreme Court of Nebraska

February 1, 1919

Original application for writ of ouster. Writ allowed.

WRIT ALLOWED.

Willis E. Reed, Attorney General, George W. Ayres, A. D. Fetterman W. H. Thompson and D. F. Osgood, for relator.

H. J Curtis and F. A. Dutton, contra.

OPINION

ROSE J.

This is an original action in the nature of quo warranto brought in the supreme court by the state of Nebraska, on the relation of the attorney general, to oust Garden county and its officers from exercising jurisdiction over a strip of land about 18 miles long and about three miles wide running north and south in townships 21, 22, and 23 north, range 41 west of the sixth principal meridian; it being alleged that the territory in controversy is in Grant county. Respondents in their answer deny the allegations on which relator bases his prayer for the writ. To the answer relator demurred. In an opinion overruling the demurrer there is a statement of the case. State v. Garden County, 99 Neb. 807, 157 N.W. 1009. Hon. William Mitchell was appointed referee to take the testimony and to report his findings of fact and conclusions of law. Upon a full hearing, after taking testimony at great length on both sides, the referee found the issues in favor of relator. Defendants excepted, and the case is presented on the exceptions. The controversy between Grant county and Garden county is described by the referee in his report as follows:

"The question involved is whether the territory three miles west from the east side of range 41, in townships 21, 22, and 23 west of the 6th P. M., is in Grant or Garden county, Nebraska. It is contended by Grant county that the 25th degree of longitude west from Washington is the west line of Grant county. Garden county contends that the west line of Grant county is the range line between ranges 40 and 41 in said townships. Just where the 25th degree of longitude was located on the earth's surface no one seemed to know prior to 1912. Grant county claimed that it was at or near the west line of the aforesaid disputed territory. In 1912, at the request of Grant county, E. C. Simmons, deputy state surveyor, established by survey the aforesaid degree of longitude approximately three quarters of a mile east of the west line of said disputed territory, and Grant county, admitting the correctness of said survey, has since claimed the line established by said survey as the 25th degree of longitude as and for the west line of said county.

"Grant county claims said disputed territory because it contends that it has long exercised jurisdiction and authority over same, and also because it is east of the 25th degree of longitude found and established by the Simmons survey. Garden county claims said disputed territory, without regard to where said 25th degree of longitude is located, because it contends that it and Deuel county have long exercised jurisdiction and authority over same. Garden county was formed in 1910 from a part of Deuel county.

"Where the 25th degree of longitude west from Washington is located and whether or not the different acts defining the boundaries of Grant county, passed by the legislature of Nebraska, are unconstitutional are not the vital questions in issue. The moving consideration for the decision in this case necessarily involves the question of jurisdiction over the territory in question.

"Each county contends that it has always exercised exclusive jurisdiction over said disputed territory. This case, in my opinion, should be decided solely in favor of the county whose...