Ullman Bros. v. State

• Decision Date: 07 May 1918
• Docket Number: 7 Div. 496
• Parties: ULLMAN BROS. v. STATE.
• Court: Alabama Court of Appeals

79 So. 625

16 Ala.App. 526

ULLMAN BROS. v. STATE.

7 Div. 496

Court of Appeals of Alabama

May 7, 1918

Rehearing Denied May 28, 1918

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Proceedings by the State against Ullman Bros. to sell land for taxes. A decree of sale was entered in the probate court, and on appeal a like decree was rendered, from which defendants appeal. Affirmed.

Knox Acker, Dixon & Sterne, of Anniston, for appellants.

F. Loyd Tate, Atty. Gen., Hugh White, of Gadsden, and Hugh Reed, of Center, for the State.

BROWN P.J.

Lands belonging to appellants located in section 20, township 12 range 8 east of the basis meridian in Alabama, were assessed for taxes by the tax collector of Cherokee county for the year 1914, and, on default being made in the payment of the taxes so assessed, the lands were condemned and ordered sold by appropriate proceedings, in the probate court of that county, and on appeal from that decree to the circuit court of Cherokee county, on trial by the court without the intervention of a jury, a like decree was rendered, and from that decree this appeal is prosecuted.

Appellants' contention in the court below and here is that these lands are situated in the county of Calhoun, and were not liable to assessment for taxes in the county of Cherokee. This presents a question of fact which the appellants contend must be determined from evidentiary facts within the judicial knowledge of the court, and without the aid of extrinsic evidence, and that therefore the trial court committed error in allowing appellee to offer proof showing that the boundary line dividing the counties of Cherokee and Calhoun had been recognized for nigh onto three-quarters of a century as being located south of the land in question, by the officials of the government, federal, state, and county, as well as the people residing along said boundary line, and that the territory in dispute had been recognized and treated as a part of the county of Cherokee, and that the county of Calhoun had made no effort to exercise authority in this territory until the year 1914. Appellant's contention is based upon the provisions of the acts of the Legislature creating the two counties and the government survey of fractional township 12, ranges 6 and 7 east of the basis meridian, showing the location of the mouth of Wills creek where it empties into the Coosa river. The first of these acts was passed in the year 1832, and provides:

"That all that tract of country, bounded as follows, to wit: Beginning at a point on the east bank of the Coosa river opposite the mouth of Wills creek, thence due east to the line dividing the state of Alabama from Georgia; thence along said line to the line between townships 16 and 17; thence due west along said line to the east bank of the Coosa river; thence up said river to the beginning; shall constitute one separate and distinct county, to be called and known by the name of Benton" (now Calhoun, the name being changed to Calhoun by act approved January 29, 1858 [Acts 1857-58, p. 318]).

And the other, passed in 1836, entitled "An act to divide the county of St. Clair," and providing:

"That all that tract of country, bounded as follows viz. beginning at a point on the east side of the Coosa river opposite to the mouth of Wills creek, thence due east with the north line of Benton county, to the line dividing the state of Alabama from the state of Georgia; thence along said line in a northwestern direction to a ridge dividing the waters of Big Wills creek from the waters of Little river and Yellow creek, in a southwestern direction to a ford on Big Wills creek to the beginning, shall constitute one separate and distinct county, to be called and known by the name of Cherokee." Acts 1835-36, p. 170.

It appears from the survey above referred to and the field notes that the waters of Wills creek touch the Coosa river near the southern line of section 15, township 12, range 6, and this point is described by the field notes as "where Wills creek runs into Coosa river and out again," and finally empties into the river in the northeast quarter of section 22, township 12, range 6, a short distance south of the section line between sections 15 and 22. We have no hesitancy in declaring that the point where Wills creek finally enters into Coosa river is the mouth of that stream referred to in the acts above quoted.

Appellants' contention, then, is that starting from a point on the Coosa river opposite the mouth of Wills creek, as above indicated, the boundary line between the counties of Cherokee and Calhoun runs a due east course to the Georgia line, and passes immediately north of section 20, township 12, range 9 east. If there was nothing else in this case, it may be that this contention could be sustained; but we find that at the time of the passage of the act creating the county of Benton, which was subsequently changed to Calhoun, the territory embraced in that county immediately south of the line dividing the Cherokee and Creek Indians had not been surveyed, and the territory belonging to the Cherokee Indians had not been ceded to the federal government. And at the time of the passage of the act defining the boundaries of Cherokee county, the territory lying north of the Indian boundary line, including that embraced in Cherokee county, had not been surveyed; the survey of this territory being made in the year 1839. Therefore the only established line existing in this territory at the time of the passage of those acts was the Indian boundary line, between the tribes of the Cherokee and Creek Indians. We find that by act approved December 30, 1834, the Legislature provided:

"That all that section of the country east of the Coosa river, commencing at the mouth of Wills creek, and running up said river to Childress' ferry, and from thence following the Georgia road from the said ferry to the Georgia line, be, and the same is hereby attached to Benton county, and the said Coosa river on one side and the Georgia road on the other, are hereby made and established as the county boundaries of the said counties." Acts 1834-35, p. 5.

And we note from the government surveys and field notes that the Georgia road was recognized as an established landmark and referred to in these surveys. By an act entitled "An act to attach a part of Benton county to Talladega county, and for other purposes," approved December 23, 1836, it is provided:

"That the county line of Benton and Talladega, shall commence at a point on the Coosa river, where the sixteenth and fifteenth townships intersect said river, thence east to a road leading from Driver's ferry to David Conner's, thence with said road to Benton and Talladega county line, which shall constitute a part of Talladega county, that the county line of Benton and Cherokee shall commence at a point on the Coosa river, four miles north of the mouth of Wills creek, thence east to the Georgia line; which shall constitute and be a part of Benton county." Acts 1836, p. 118.

By act approved January 27, 1843, entitled "An act to repeal in part an act entitled an act to attach a part of Benton county to Talladega county, and for other purposes, approved December 23, 1836," it is provided:

"That so much of the above-recited act as relates to the county of Cherokee, be and the same is hereby repealed.

"And be it further enacted, that all officers, both civil and military, residing within the limits of the territory contemplated by this act, to be reattached to the county of Cherokee, be and they are hereby authorized to continue to discharge the duties of their several offices for and during the time for which they were severally elected, and that all suits heretofore commenced in the circuit and county courts of Benton county against persons residing in the said territory, shall be transferred to the circuit court of the county of Cherokee, in the same manner that cases are transferred on a change of venue, any law to the contrary notwithstanding: Provided, the citizens residing in said territory shall not be compelled to pay any tax to build a court house and jail, in the said county of Cherokee." Acts 1843, p. 157.

And by act entitled "An act to alter and amend the boundary line between the counties of Benton and Cherokee," approved January 27, 1845, it is provided:

"That from and after the passage of this act, that the foot of the mountain which runs half a mile west of Arthur F. Alexander's house, in Cherokee county, be, and the same is hereby declared the boundary or dividing line between the counties of Benton and Cherokee.

"And be it further enacted, that all that region of country up to the line aforesaid, in which Resse P. Davis, Benjamin Wheeler, Floyd Wheeler, Arthur F. Alexander, Martin Wheeler, W.E. Williams and C.C. Arrington, at present reside, and is hereby declared to belong to, and form a portion of the territory of Benton county: Provided, however, that not more than two miles shall be taken from Cherokee county by the change of the line aforesaid." Acts 1844-45, p. 58.

And by act approved February 14, 1854, entitled "An act to fix the boundary line between the counties of Cherokee and Benton," it is provided:

"That from and after the passage of this act, the boundary line between the southeast corner of Cherokee county and the northeast of Benton county shall commence a half a mile west of A.T. Alexander's old place, and thence run due west to the Georgia line." Acts 1853-54, p. 218.

And by act approved February 1, 1856, entitled "An act to amend 'an act' to fix the boundary line between the counties of Cherokee and Benton," it is provided:

"That the word 'west,' where it last occurs in the first section of said act approved Feb.

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