Tarrant County v. Denton County

• Decision Date: 01 August 2002
• Docket Number: No. 2-00-358-CV.,2-00-358-CV.
• Citation: 87 S.W.3d 159
• Parties: TARRANT COUNTY, Appellant, v. DENTON COUNTY, Appellee.
• Court: Texas Court of Appeals

87 S.W.3d 159

TARRANT COUNTY, Appellant, v. DENTON COUNTY, Appellee.

No. 2-00-358-CV.

Court of Appeals of Texas, Fort Worth.

August 1, 2002.

COPYRIGHT MATERIAL OMITTED

Cantey & Hanger, L.L.P., S.G., Johndroe, III, C. Matthew Terrell, Scott A. Fredricks, Fort Worth, Texas, Michael D. Moore, Weatherford, Texas, for Appellant.

Thompson, Coe, Cousins & Irons, L.L.P., William N. Radford, Rider Scott, Wade C. Crosnoe, Ross Cunningham, Dallas, Texas, Allison, Bass & Associates, L.L.P., Robert T. "Bob" Bass, Austin, Texas, Whitaker, Chalk, Swindle & Sawyer, L.L.P., John Allen Chalk, Sr., Brent Shellhorse, Fort Worth, Texas, for Appellee.

Panel A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

OPINION ON REHEARING

TERRY LIVINGSTON, Justice.

We deny Denton County's motion for rehearing. We withdraw our prior opinion and judgment of May 30, 2002 and substitute the following in their place solely to clarify our discussion of one of the conclusions of law.

In 1997 Tarrant County filed suit against Denton County under chapter 72 of the Texas Local Government Code to establish their common boundary line. Denton County counterclaimed seeking a declaratory judgment that the common boundary line had already been established under prior law. The case was tried in Parker County, Texas in 1999 to the bench. The trial court found that the counties' mutual boundary had been established under prior law, as Denton County had claimed. This appeal followed. We reverse.

Historical Summary

Before statehood, the Republic of Texas was divided into several large land districts. When Texas became a state in the Union in 1845, the Texas Legislature began dividing the land districts into counties. The three land districts relevant to this dispute are Fannin, Nacogdoches, and Robertson. A copy of an exhibit showing these land districts is attached to this opinion as Appendix 1. The northern boundaries of the Robertson and Nacogdoches Land Districts were common with the southern boundary of the Fannin Land District. Dallas and Denton Counties were created during the first legislative session in 1846.¹ The legislature created Tarrant County in 1849.²

The Act creating Dallas and Denton Counties declared that Dallas County was to be created out of the Robertson and Nacogdoches Land Districts and Denton County was to be created out of the Fannin Land District.³ Dallas County was described as beginning on the southern Fannin boundary line at a point starting three miles east of the eastern boundary of the Peters' Colony Grant and then south thirty miles, then west thirty miles and then north thirty miles to the Fannin line and then to run east on that line back to its northeastern corner beginning point.⁴ Denton County, which was to be contained within the Fannin Land District, started at the southwest corner of Collin County, running west for thirty miles, then north for thirty miles, and then east thirty miles, then south back to the beginning.⁵

When Tarrant County was created on December 20, 1849, it was statutorily described as beginning at Dallas County's southwest corner, then north with the Dallas County line to the northwest corner of Dallas County, then due west for thirty miles and then due south thirty miles, then east back to the beginning.⁶ From this we can generally conclude that each of the three counties was to contain 900 square miles with Denton County located within the Fannin Land District, Tarrant County within the Robertson Land District, and Dallas County within the Nacogdoches and Robertson Land Districts. A drawing attached as Appendix 2 is representative of the legislative scheme. The statute creating Tarrant County also dictates that Tarrant County's northeast and southeast corners are to bear with Dallas County's northwest and southwest corners if Dallas County's corners were later determined to be incorrect.⁷

On December 1, 1849, the legislature passed an Act Providing for Running and Establishing Correctly, the Line Between Nacogdoches and Fannin Land Districts.⁸ This statute directed the Commissioner of the General Land Office (GLO) to appoint a surveyor to run, mark, and fully establish the line separating the Nacogdoches and Fannin Land Districts, in accordance with the Act Better Defining the Boundaries of the County of Fannin passed by the Republic of Texas on November 28, 1839.⁹

In accordance with the December 1, 1849 Act, the GLO appointed surveyor William D. Orr to survey the Nacogdoches/Fannin line where they were common.¹⁰ Orr surveyed this line in 1850 and his survey is shown on a map at the GLO. No field notes remain to the Orr map even though there are indications in the GLO files that such notes did exist at some time. According to Tarrant County's witness, Dr. Gary Jeffress, Orr began his survey at the mouth of Bois d'Arc Creek on the Red River to comply with the 1839 statute.¹¹ He located the southeast corner of the Fannin Land District, which was the starting point for the common boundary between the Nacogdoches and Fannin Land Districts in compliance with the 1839 statute. He went west for sixty miles to the Elm Fork of the Trinity River. The Elm Fork of the Trinity River was the western boundary of the Nacogdoches Land District where it met the Robertson Land District, from which Tarrant County was created. At the Elm Fork, Orr projected his line as a continuing straight line to the west, marking the southern line of the Fannin Land District. Tarrant County contends this established the Nacogdoches/Fannin line but Denton County claims Orr's line is incorrect because his eastwest line drifts northward and because Orr's completed map was not signed or sealed.

A few months after Orr completed his survey for the GLO, Dallas County retained Warren A. Ferris to survey its boundaries, in accordance with the 1846 statute providing for the surveying of county lines.¹² This statute set forth the method for the individual counties to survey and establish their county lines.¹³ This Act directed the county court of a county to appoint a surveyor to survey its boundaries if the boundaries were not "sufficiently special and well ascertained."¹⁴ Ferris conducted his survey of Dallas County in July 1850. Tarrant County contends Ferris erroneously surveyed Dallas County because he did not follow the dictates of the statute creating Dallas County. That statute, passed in 1846, defined Dallas County as beginning three miles east of the Peters' Colony grant on the southern Fannin County line, then south thirty miles, then west thirty miles, then north thirty miles to the Fannin County line, and then east with said line to the beginning.¹⁵

Ferris concluded that Orr's survey line was incorrect because his line drifted north of the west line directed by the 1839 Act Better Defining the Boundaries of the County of Fannin. While Denton County admits that Ferris knew Orr's survey line was wrong, it contends Ferris was obligated to honor a line established by a prior survey. Thus, Ferris used Orr's Fannin line to start his resurvey of Dallas County. He identified a "statutory" call on the Orr-Fannin Land District line, proceeded east three miles to the position on the line specified in the Act creating Dallas County, as the point of beginning, and thus set the northeast corner for Dallas County on the Orr-Fannin line. He then ran thirty miles south, thirty miles west and thirty miles north. Ferris's western Dallas County boundary, which goes north for thirty miles, stopped without making an adjoinder with Dallas County's northern boundary, i.e., the southern Fannin Land District line.¹⁶ Instead, he stopped about one-half of a mile south of that line because the 1846 Act Creating Dallas County specified the western boundary should be thirty miles in length. This is where Ferris set Dallas County's northwest corner, instead of making the adjoinder with the Orr-Fannin line. He then turned east and when he reached the Elm Fork of the Trinity River, the mutual boundary between the Robertson and Nacogdoches Land Districts, he turned north to intersect the end point of Orr's previously surveyed and marked line, approximately one-half mile north of the Elm Fork. This created a jog in Dallas County's boundary with Denton County and left Dallas with a six-sided county. Tarrant County argues this is the critical defect in the Ferris line because the Act Creating Dallas County made the call for adjoinder so that Dallas's western boundary would adjoin the southern Fannin line.¹⁷ Ferris filed his field notes with the GLO.

In 1851 the residents of Denton County petitioned the legislature to pass a statute to better define its borders. They asked the legislature to make Denton County's south line to be on the Dallas County line as run by Ferris instead of Orr because the extension of the Orr line would leave Denton County with less than 900 square miles. In January 1852 the legislature rejected Denton County's request and instead enacted a statute to better define Denton County's boundaries that required Denton County's southwest corner to be at a point due west of Dallas County's northwest corner, as now established by law.¹⁸ Specifically, the 1852 statute clarifying Denton County's boundaries required its boundary to start at Collin County's southwest corner, Collin County's southwest corner having already been established. The line was to then run north with Collin County's western boundary to the corner of Grayson County, then west along Grayson's line and then south "to a point due west of the north-west corner of Dallas County, as now established by law," and then east again to the Dallas County northwest corner.¹⁹ Tarrant County contends this statute, which failed to adopt the Ferris line that Denton County's residents proposed, and instead adopted the line "now established by law," compels a conclusion mandating Denton County's southeast corner to be on a line due west of Dallas County's northwest corner, then east to ...