58 Colo. 67 | Colo. | 1914
delivered the opinion of the court:
This action was instituted under the provisions of Section 1162, R. S. 1908. The complaint discloses that upon the petition of Ouray County the state engineer, as authorized by this section, proceeded in the manner therein described to establish the boundary line between San Juan and Ouray counties, and in due time furnished the hoard of county commissioners of each of said counties with the description thereof. San Juan county being dissatisfied with the line as thus fixed instituted this action in the district court of San Juan county for the purpose of having the court determine and settle this disputed line between these counties. The complaint alleges that the boundary lin.e as located by the state engineer is erroneous in that it does not pass through the junction of Mineral creek and the main branch of the Uncompahgre river, but is located some distance south of said junction, causing a loss of territory to San Juan county. The statute defining the boundary in dispute' reads:
“Commencing at a point on the boundary line between the counties of Hinsdale and San Juan, due east of the junction of Mineral creek and the main branch of the Uncompahgre river; thence due west through said junction to the summit of the divide between Red Mountain Valley and Poughkeepsie Gulch.” General Laws 1877, page 207.
It will thus be observed that the contention is not as to any ambiguity in the language of the statute, but as to where the junction of Mineral Creek and the main branch of the Uncompahgre river is.
This motion was supported by affidavits. Counter affidavits were filed resisting it. The motion was denied. This is the first assignment of error urged. This case does not come within the class enumerated in Section 173 of the code entitled to be tried by a jury. This position is not seriously disputed but it is contended that it is a special proceeding unknown to the common law and in no proper sense, of the term an action. We cannot agree with this position. Section 1162, supra, provides that if either county is dissatisfied with the line as thus fixed by the state engineer, it may commence an action in a court of competent jurisdiction in this state to determine and settle such disputed line. It will thus be observed that no special proceeding is provided, nor any' method set forth for reviewing the action of the state engineer, but the act provides that his action shall be final unless a suit is'brought within a certain time in a court of competent jurisdiction to have the line determined and its location settled. There is no method of procedure prescribed to be followed; no special tribunal is created, and no jurisdiction attempted to be conferred beyond that already possessed by the courts, but to the contrary it provides that a suit may be instituted in a court of competent jurisdiction to settle the question. In Rhode Island v. Massachusetts, 12 Peters, at 734, 9 L. Ed. 1233, it was stated:
“No court acts differently in deciding on boundary between States, than on lines between separate tracts of land. If there is uncertainty where the line is, if there is a confusion of boundaries by the nature of interlock-'*70 ing grants, the obliteration of marks, the intermixing of possession under different proprietors, the effects of accident, fraud, or time, or other kindred causes, it is a case appropriate to equity. ’ ’
This rule* appears to have been recognized and followed by that court ever since. Rhode Island v. Massachusetts, 14 Peters, 251, 10 L. Ed. 423; United States v. Texas, 143 U. S. 621, 36 L. Ed. 285.
In the case last cited the question was again gone over and it was held that the suit by the United States against Texas to determine the boundary line between that state and other territory of the United States was in equity. Upon this question after citing many cases, the court said “It is scarcely necessary for the court to examine this question anew.” It is the character of the action and not the nature of the issue which determines whether it must be tried by a jury or by the court. Danielson et al. v. Gude, 11 Colo. 87, 17 Pac. 283. The case at bar being one where a jury is not provided by Section 173 of the Code and the action being equitable in its character, the court committed no error in denying the motion.
In paragraph 11 of its complaint the plaintiff alleges that for many years the officers of both San Juan and Ouray counties, and the. citizens and residents of these counties did recognize, treat and acquiesce in said boundary line as being established at a certain place (in the complaint described), and that both of said counties did assess, levy and collect taxes on property in recognition of, and acquiescence in, said line, and worked and improved the roads and public trails, and held and conducted elections, in recognition of, and acquiescence in, said boundary line as being at a certain place, and that in recognition of, and acquiescence in, and dependence upon, said line as so recognized by said two counties the
“Counsel say that for some time before the attempted boundary adjustment, Saguache county had exercised dominion over the territory, in dispute, arid had claimed, and successfully asserted, the right to collect taxes in that territory. It does not appear that the claim was ever the subject of adjudication, or that the right which counsel say was ‘successfully asserted’ was asserted in the courts. If Saguache county exercised such authority, it simply assumed it, acting on its own construction'of the statute; and in so far as it exercised dominion over territory which did not belong to it, its assertion of its alleged right was usurpation. Saguache county is not a county by prescription. It was created by statute. Outside of statute it has no existence, and all its territorial rights are derived from statute. It has, and can have, no territory except what the statute gives it.”
To the same effect in principle is Grand County v. Larimer County, 9 Colo. 268, 11 Pac. 193, which holds that a boundary line cannot be determined by the action of county officers, but by the law itself properly interpreted.
Upon the overruling of these motions, the defendant by answer put in issue all matters of fact pertaining to this boundary line, also the recognition and acquiescence, facts, etc., alleged pertaining to it. The evidence is quite voluminous and conflicting upon all of these questions. It is claimed by the plaintiff in error that it is wholly insufficient to support the finding upon any theory con
“If the decree is supported by the evidence,-under a proper conception of the law, it should not be disturbed, though the reviewing tribunal might have, if passing upon the matter in the first instance, reached a different conclusion.”
Many authorities are cited in support of this statement. On the other hand, if it appears that the trial court has received incompetent evidence under a misconception of the law, the judgment should be reversed, unless this court can say that upon the evidence as a whole, regardless of such facts, the verdict should be as it is. Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 Am. St. 258.
As heretofore stated the evidence is conflicting upon the main point at issue, to-wit., as to where the junction of Mineral creek and the main branch of the Uncompahgre river is. A finding sustaining the contention of either party might be said to he supported by competent evidence; for which reason, including the matters hereinbefore referred to, we do not think it would be proper for us at this time to attempt to make an effort to ascertain upon which side of the .controversy the preponderance of the evidence is; that is the province of a trial court. It is a matter of importance to both counties; property of considerable value for the purpose of taxation is involved, and in disposing of the contention counsel upon both sides should make every effort to prevent any necessity for its future consideration by this court. The leading counsel for the defendant in error, having been elevated to the bench of the district which includes the county in which the action was tried, is relieved from the unpleasant'duty of presiding in the matter. Upon account of these counties being in separate judicial districts, we suggest, as a question of propriety, that it
For the reasons stated the judgment is reversed and the cause remanded for further proceedings in harmony with the views herein expressed.
Reversed.
Chief Justice Musser and Mr. Justice Gabbert concur.