The State ex rel. Burton v. Montgomery

• Decision Date: 15 February 1927
• Docket Number: 26904
• Citation: 291 S.W. 472,316 Mo. 658
• Parties: The State ex rel. Oath Burton v. J. E. Montgomery, Judge of Circuit Court, and J. C. Collett, Prosecuting Attorney, of Chariton County; Chariton County, Intervener
• Court: Missouri Supreme Court

291 S.W. 472

316 Mo. 658

The State ex rel. Oath Burton v. J. E. Montgomery, Judge of Circuit Court, and J. C. Collett, Prosecuting Attorney, of Chariton County; Chariton County, Intervener

No. 26904

Supreme Court of Missouri

February 15, 1927

Preliminary writ discharged.

Roy B McKittrick and Grover, Tipton & Graves for relator.

(1) The middle of the main channel of the Missouri River as it existed on November 30, 1875, is the boundary between Saline and Chariton counties. 1 Wagner's Statutes 1872, 368 375; Mo. Constitution, Art. 9, secs. 1, 3, 4; Northstine v. Feldmann, 250 S.W. 593; State ex rel. Steele v Baker, 129 Mo. 486; Alluvial Realty Co. v. Himmel, 229 S.W. 762; 15 C. J. 396, 10. (2) Where the boundary line between nations, states, counties, or individuals is marked by a stream and the location of the stream is altered by erosion and accretion, it continues to be the boundary line; but where the alteration occurs as the result of an avulsion no change is made, but the limits of national, state, county and private estates and jurisdiction remain as before. Oklahoma v. Texas, 260 U.S. 636; Arkansas v. Tennessee, 246 U.S. 173; Missouri v. Nebraska, 196 U.S. 34; Nebraska v. Iowa, 143 U.S. 360; Jeffries v. East Omaha Land Co., 134 U.S. 189; New Orleans v. United States, 10 Pet. 717; Vogelsmeier v. Prendergast, 137 Mo. 288; Rees v. McDaniel, 115 Mo. 151; Cooley v. Golden, 117 Mo. 49; Naylor v. Cox, 114 Mo. 232; McCormack v. Miller, 239 Mo. 468. (3) The agreed facts show that on November 30, 1875, the main channel of the Missouri River was north of where the alleged assault occurred and after the avulsion in June, 1879, when the river cut through, the peninsula was south of that place and has remained in practically the same position since that time. Intervener pleads estoppel or laches through the action of officers and others of Chariton County and the non-action of Saline County and its officers except the conveyance by Saline County in March and April, 1925, as fixing the extent and jurisdiction of said counties. (a) The facts alleged by intervener as an estoppel in pais and the facts admitted in the agreed facts are not sufficient to constitute an estoppel in pais. 21 C. J. 1249; Blodgett v. Perry, 97 Mo. 272; Doe Run Lead Co. v. Maynard, 283 Mo. 677; Acton v. Dooley, 74 Mo. 67. (b) This is a legal action. The estoppel pleaded is an estoppel against a county and is based upon laches, and laches does not lie as a defense to a legal action. Mullins v. Kansas City, 268 Mo. 460; Hayes v. Schall, 229 Mo. 124; Chilton v. Nickey, 261 Mo. 243; Willis v. Robinson, 237 S.W. 1036; Kellog v. Moore, 271 Mo. 193. (c) Assuming the allegations of the proper elements of estoppel and that laches would lie in a legal action, even then the actions of the officers of Saline or Chariton counties, the parties claiming title to this land or their privies, or any other parties, have no effect on the fixed extent of these counties, as they were fixed by the action of the Legislature and by the Constitution, and can only be changed in the manner provided by law. Northstine v. Feldmann, 250 S.W. 592; Senter v. Lumber Co., 255 Mo. 605; Bartlett v. Kauder, 97 Mo. 361; St. Louis v. Gorman, 29 Mo. 599; State v. Keane, 84 Mo.App. 130; Steckel v. Vancil, 92 Kan. 593; Brace v. State, 95 P. 282; Russell v. C. M. Robinson Co., 153 Ala. 333; Crane v. Reeder, 25 Mich. 320; State v. Portsmouth Bank, 106 Ind. 458.

John D. Taylor for intervener.

(1) Unless the lack of jurisdiction is apparent on the face of the proceeding it is a general rule that a writ of prohibition will not be issued to an inferior court unless the attention of the court, whose proceedings it is sought to arrest, has been called to the lack of jurisdiction on which the application for prohibition is based. State ex rel. v. Scarritt, 128 Mo. 337; State ex rel. v. Gill, 137 Mo. 681; State ex rel. v. McQuillan, 256 Mo. 693, 260 Mo. 176, 262 Mo. 268; State ex rel. v. Huck, 296 Mo. 374; State ex rel. v. Shane, 297 Mo. 369. (2) Relator has an adequate remedy at law. If upon the trial of the cause it should appear from the evidence that the offense was not committed in Chariton County, as alleged in the information, it becomes the duty of the trial judge to suspend further proceedings in the cause. It must be presumed that courts will follow the law. Moreover, the question of venue is one of the issues to be set up in the information, and sustained by the evidence. In the event of conviction he has a remedy by appeal. 32 Cyc. 620 (11); R. S. 1919, secs. 3722, 3729 to 3732; State ex rel. v. Stobie, 194 Mo. 14, 51; State ex rel. v. Henson, 217 S.W. 19. (3) Chariton County has been exercising jurisdiction over the territory, the scene of the alleged offense, for more than forty-seven years. During all of that time the southern boundary line, the line between the County of Saline and the County of Chariton, has been recognized by said counties and by the State of Missouri as the center of the main channel of the Missouri River as it now is. The territorial jurisdiction of Chariton County as determined by its boundary line fixed by the Legislature prior to 1875, and recognized by the Constitution, is the center of the main channel of the Missouri River. The right of the county to continue the exercise of its jurisdiction over this territory can only be challenged by the State in a proper proceeding. An individual cannot question the organization or the territorial extent of a county in a collateral attack, as is the case at bar. State v. Fuller, 96 Mo. 165; State ex inf. McAllister v. Drain. Dist., 290 Mo. 62; Fredericktown v. Fox, 84 Mo. 65; Flynn v. City of Neosho, 114 Mo. 573; School District v. Hodgin, 180 Mo. 70; Black v. Early, 208 Mo. 281 l. c. 303; State ex rel. v. Sheetz, 279 Mo. 429.

F. C. Sasse, M. J. Lilly and Lamb & Lamb, amici curiae.

(1) The matters and facts set forth in the stipulation filed herein constitute a defense and answer complete and sufficient to the petition of relator. By these facts Saline County and relator in her name are estopped to claim or assert jurisdiction over this territory. The preliminary rule in prohibition should be quashed. Cases involving the same principle, but not boundary lines: State ex rel. v. Town of Westport, 116 Mo. 587; Stamper v. Roberts, 90 Mo. 683; Kircher v. Evans, 247 S.W. 251; Iowa ex rel. v. City of Des Moines, 31 L. R. A. 186; Simpson v. Stoddard Co., 173 Mo. 462; Troll v. City of St. Louis, 257 Mo. 660; Mullins v. Kansas City, 268 Mo. 460. Cases involving boundary lines: Rhode Island v. Massachusetts, 4 How. (U.S.) 590; Indiana v. Kentucky, 136 U.S. 479; Virginia v. Tennessee, 148 U.S. 501; Louisiana v. Mississippi, 202 U.S. 1; Edwards Co. v. White Co., 85 Ill. 390; Roane Co. v. Anderson Co., 89 Tenn. 259; Maryland v. Virginia, 217 U.S. 134; New Mexico v. Colorado, 267 U.S. 30. (2) When the channel of the Missouri River changed its course by reason of the avulsion in June, 1879, the boundary line between Saline and Chariton counties changed with the river and the boundary line then and ever since has been the middle of the main channel of the river. If the above statement be not the law of this State and be contrary to the recognized rule on the subject, then this court ought at this time establish such a ruling applicable to inland counties of the State where the boundaries between them are marked by running streams. Secs. 9301, 9390, 9407. R. S. 1919.

Atwood, J. All concur, except Graves, J., who dissents; Gantt, J., not sitting.

OPINION

ATWOOD

This is an original proceeding in which relator, charged by information in the Circuit Court of Chariton County with assault with intent to kill, asks us to prohibit respondents J. E. Montgomery and J. C. Collett, who are the Circuit Judge and the Prosecuting Attorney, respectively, of said county, from further entertaining and prosecuting said charge, on the ground that the alleged crime was not committed in Chariton County, and said Circuit Court of Chariton County is, therefore, without jurisdiction.

Relator's amended petition describes with particularity the land on which the alleged crime was committed with reference to course of the main channel of the Missouri River both before and after June, 1879, when the stream is alleged to have "perceptibly and abruptly changed its course" between the counties of Saline and Chariton; alleges that the boundary between the counties of Chariton and Saline was fixed as the main channel of the Missouri River by the statute of 1865; and further alleges that after said change said land, although formerly south of the main channel of the Missouri River, was and is now north of said main channel, and not within the boundary of Chariton County. Said petition further alleges that unless prohibited from so doing said circuit court will proceed with the trial of said cause, and that relator has no adequate remedy at law because said prosecution in Chariton County will not bar a similar prosecution for the same alleged offense in Saline County. Attached to the petition is a certified copy of said information, and of the Chariton County Circuit Court records showing the filing date of said information and the pendency thereof in said Circuit Court of Chariton County, at Keytesville, Missouri.

Respondents waived issuance and service of process and consented to the issuance of the preliminary rule, and on application to this court Chariton County was permitted to intervene. Application for permission to intervene was filed by a number of alleged landowners, which application was denied, but their attorneys were given permission to file briefs as amici curiae.

Respondents' return, after admitting the formal allegations of relator's petition, alleges that...