7 S.W.2d 648 | Tex. App. | 1925
Lead Opinion
In the light of the pleadings and the evidence it becomes necessary to determine first whether or not the boundary line between the two counties has once been surveyed and established on the ground under authority of law so as legally to settle that question. For it is expressly provided by article 1385 of the Statutes, on which the right to bring this action is based, as follows:
(1) "If it shall be found in any such cause that the boundary line in question has been heretofore established under the law then in force, the same shall be declared to be the true line, and shall be resurveyed and established as such." * * *
(2) "And if, in the trial of any such cause, it shall be found that the boundary line between the counties involved has never been established and marked, or, if marked, has become indefinite and undefined, said court shall have power to re-establish the same and order it marked."
And it is the firmly settled rule that a court has no power to direct another survey to be made and thereby establish another county boundary line different from the one established at some former period, when a county, line has been once run, marked upon the ground, and established "in accordance with law." Jones v. Powers,
The county of Rains was created in 1870. At that time provision for organization of a new county and for surveying and marking the lines on the ground in the first instance was usually made in the act of the Legislature creating the county. In such acts provision was made for running the lines defined in the act by commissioners, who were empowered to employ a competent surveyor to do the work. And under the general statutory law in force it was only in case the method of surveying on the ground by the commissioners was such as not to place the line or lines on the ground, in the first instance, in a position "sufficiently special and well ascertained," that the county or counties interested could resort to the general statutory method of having the true line run out again and marked anew on the ground by joint surveys made by surveyors respectively representing the counties. Article 1057, P. D. Further, as provided in that article, if the particular act did not provide for commissioners to do so, then the joint survey made by surveyors was the initial step for tracing and marking the lines on the ground in the first instance, and that method was to be final. In this case the act creating Rains county did make provision *652 for its organization, and for ascertaining, surveying, and marking the boundaries on the ground. By the act five commissioners named therein were expressly given "full powers to organize said county, to employ a competent surveyor to run the lines of said county, and, as early as practicable, to ascertain the center of said county," etc., "and to divide the county into five precincts," etc. The running out of the ground of "the lines of said county" and the partitioning of the territory into precincts are necessary steps in the process of organization of a new county. And "the lines of said county" inclosed the particular territory set apart to the new county out of the territory of the original counties. The proceedings of the commissioners in establishing the boundaries would not be wholly ex parte on the part of the new county of Rains. In so executing the command of the Legislature the commissioners named in the act became and were the agents of the Legislature, and not of the new county or any of the original counties. The consent neither of Hunt county nor of any of the original counties was necessary in order for the commissioners to run out and mark on the ground "the lines of said county" defined by the act, as directed by the Legislature. Hence the acts of the commissioners, being under authority of law, in legal effect would be binding equally on all the counties affected as well as on the public generally, unless in running out the boundaries defined in the act they failed to place the lines on the ground in a position "sufficiently special and well ascertained."
That the commissioners named in the act did in fact cause "the lines of said county" to be designated, surveyed, and marked on the ground in pursuance of the act of the Legislature is not a debatable question in the record. It is affirmatively shown, and there is no evidence to the contrary, that the commissioners employed Perry Taylor, a competent surveyor, to run the lines, and that he, with the assistance of all the commissioners and others, surveyed and ran out the lines as provided and directed by the act, and actually marked and established upon the ground the localities of the lines. This was done in the month of June, 1870, after the act took effect on June 9, 1870. The testimony was by witnesses competent to testify thereto, living in the locality, personally acquainted with the surveyor and the commissioners, having knowledge of what they were doing at the time, seeing them in the process of surveying, and acquainted with the marking made on the ground. One of the witnesses actually accompanied the surveyor and the commissioners, saw the lines run and the corners marked and established, knew the land surveys the lines passed through, and personally knew the owners and occupants of most of the land surveys and the known objects reached. As testified, the line actually run and established on the ground by the surveyor and commissioners, as pertains to the line in controversy, began at a point in the Wm. P. Buzan, which survey was then and is now existing. A stake was driven into the ground at this point, at between 50 and 100 feet north of a ravine, and a large white elm tree located near the stake, bearing "a little east of south," was marked on the side next to the stake "R. C." This is the northwest corner of Rains county as claimed. From this point the line was run on the ground in a southwesterly direction across the east end of the Henry Riley survey then existing, and through the east end of the Marshall Crawford survey, through the Samuel Hooker survey, through the James T. Hooker survey, through the Robert Harris survey, through the W. D. Winston survey, across the Hooker creek, and passing by what was then known as the Hooker schoolhouse on the W. D. Winston survey, through the James T. Hooker survey to Hooker's Mill, located on the east bank of Sabine river.
The evidence, though, concerning the running out of the lines by the commissioners, is entirely oral. A map or plat of the lines so run and marked does not affirmatively appear to have been returned by the surveyor or the commissioners. If they ever made and returned one it was destroyed at the time the courthouse of Rains county and all the county records were destroyed by fire in 1879. It does affirmatively appear that no map or plat directly made by such surveyor or commissioners was ever filed in the general land office. However, the fact of not making and returning for record a map or plat, if they did not do so, would not make invalid the acts of the commissioners, since the act appointing them and the statutory provisions in force did not require nor enjoin upon them the duty to do so. Therefore if it be true, as found by the jury, that the boundary was run out and marked on the ground in 1870, as alleged by appellee, then this was done in accordance with the law then in force.
Did the surveyor in 1870 place the line on the ground in a position "sufficiently special and well ascertained" and exactly in the localities alleged by Rains county? The jury, on the evidence, determined the issue as to localities in favor of Rains county. This finding of the jury, sufficiently supported by the evidence, would fix the northwest corner of Rains county, as marked by the commissioners, at a point in the Wm. P. Buzan survey, thence east to the west end of the McMillan line, and continuing east with that line to the northeast corner of Rains county. The McMillan line as run on the ground in 1863 is conclusively, without doubt, shown in the record. The McMillan "west end" is conclusively shown to be on the east line of Hunt county and at the southwest corner of Hopkins county. The post oak called for at this point by the McMillan survey is there now, and identified by those competent to testify *653 thereto. It is described as a "post oak marked S.W. and bears N. 88 E. 395.5 varas," meaning from the west end of the McMillan line and the southwest corner of Hopkins county. The "Wm. P. Buzan survey" then existing, and now, was identified and located by those competent to know. Also the "Hooker mill" on the east branch of Sabine river is clearly located on the ground. The precise point or place of the call, "west four miles into Hunt county," is fixed in the Wm. P. Buzan survey. When that point is once fixed on the ground the next call is easily determined, since it must be found by running "thence in a southwestern direction to Hooker's mill on the east branch of Sabine river." All these markings are definite and known objects, existing and located on the ground by the evidence beyond doubt. In fact, there is no dispute about the true location of these objects and their locality. As held:
"When a county line has been once run, marked upon the ground and established in accordance with law, it cannot be said to be indefinite. It may be incorrect, but nevertheless well defined. None of the statutes seem intended to give power from time to time to county commissioners' courts to correct what may have been incorrect in the establishment of a county line on the ground; but seem intended to give a means by which the line or lines may be made definite and certain, and when so rendered, in accordance with the statute, whether correctly run and marked or not, the statutory declaration that `the line so run and marked shall thereafter be regarded as the true boundary line between the counties,' ought to be given full effect and held as a prohibition to any further action looking to the establishment of some other line." Jones v. Powers,
But by taking the point established in the "Wm. P. Buzan survey" as marked by the commissioners as the west end of the third call, and as the northwest corner of Rains county, it may be seen that it measures on the ground "into Hunt county" more than "four miles west" of the west end of the McMillan line or the southwest corner of Hopkins county, and to which corner a part of the east line of Hunt county ties. It is at least, according to the evidence, 4.94 miles distant. The call was purely for course and distance, and the line as run was clearly incorrect in point of distance. The line is extended nearly a mile beyond the call designated in the act. It evidently was not contemplated, in the original location of the lines on the ground by the commissioners, to make a survey above the statutory limit. They had no discretionary power to arbitrarily extend the length of a line fixed by the act, but were authorized to designate, survey, and mark the boundary line as defined in the act, in substantial, although not precise, compliance therewith. The extension of the line was evidently, occasioned, as must be assumed, by a mere mistake of measurement on the ground. Therefore, does legal objection exist to the maintenance of the present suit to relocate the boundary defined by the act upon the ground that the original marking of the line was in substantial extension above the real call? It is evident that the question must turn upon whether or not article 1400, Rev. Stat., is applicable to the case.
Article 1400, enacted in 1895 as article 822, reads as follows:
"The county boundaries of the counties in this state as now recognized and established are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force."
As held, the article is in general terms and applies generally to official location of boundaries, and is not limited to the line or lines established on the ground in accordance with the statute providing, in specified cases, for joint surveys made by surveyors respectively representing the counties. Hale County v. Lubbock County (Tex.Civ.App.)
Such conditions do not appear here. Hence, was the line as established "recognized?" No proceedings leading to a relocation of the line were had by the commissioners' court of either of the counties from the time it was established at a point in the Buzan survey in 1870 to a time just before the institution of this suit in 1923. This is a significant fact of passive recognition. And the evidence affirmatively shows that the commissioners' court of each of the counties officially acted in reference to the line in establishing precincts, voting precincts, and laying out roads. Each county, though separately, exercised jurisdiction up to the limits of the line. Votes cast by the residents along that line were returned to and counted by the officers. Jurors were selected with reference to the line. Taxes were rendered and assessed with reference to the line, and the commissioners' court approved the tax rolls. Deeds to land were registered and schools were located with reference to the line. All this *654 evidence was sufficient to show a recognition of the line by the commissioners' courts of the two counties, and by the officers charged with duties respecting boundaries, for many years both prior to and since 1895, and to authorize the verdict of the jury. And, too, the map of Rains county originally made in the general land office in 1873 by the commissioner of the state, and that has been in use in that office from that date to the present, shows the northwest corner of Rains county to begin in the Wm. P. Buzan survey; thence east to the southwest corner of Hopkins county, and on to the northeast corner of Rains county. The abstract of land titles authorized by law and published by the general land office shows portions of the surveys through which the line passes in Rains county, and the other portions of these surveys in Hunt county. This would go to show that the line as proven to be run by the commissioners had been also recognized by the general land office for many years as the boundary line between the two counties. The mere fact that there was some confusion with respect to whether parts of certain surveys were in one county or the other, or whether the line runs by certain farms or localities, would not affect the operation of the article. Hence it would appear that the facts of this case come within the terms of the article; and its terms should be held conclusive of the appeal, unless, further, as urged, the Constitution does not admit of its application to the special facts, for to so apply it would effect a deduction of territory from one existing county and add it to another existing county.
The present constitutional provision claimed to be applicable is section 1, subd. 3, of article 9, reading:
"Section 1. The Legislature shall have power to create counties for the convenience of the people, subject to the following provisions:
"Third. No part of any existing county shall be detached from it and attached to another existing county until the proposition for such change shall have been submitted, in such manner as may be provided by law, to a vote of the electors of both counties, and shall have received a majority of those voting on the question in each."
This present provision appears in the Constitution adopted in the year 1876, and was not in the Constitution of 1869 in force at the time of the creation of Rains county in 1870.
Whether or not the article in question if applied to this case falls within the prohibition of the particular provision of the Constitution depends upon the character of the relief it provides. It does not evidence the intention of the Legislature by amendatory act to rebound existing counties by detaching territory from the one county and attaching it to another. The manifest intention of the Legislature was the legalization of boundaries formerly established on the ground, to indicate where the statutory lines should be run, and which were thereafter "recognized" or treated as the boundaries, even though such boundaries be subsequently discovered to be incorrect or not the true boundary lines. The effect is merely a continuation of the boundaries "recognized and established" at the time of the origin of the counties and survey made on the ground as a method of defining the boundaries. As previously construed and applied to the cases, the article is "a validating or curative act merely." Hale County v. Lubbock County (Tex.Civ.App.)
As stated in the case of Stephens County v. Palo Pinto County, supra:
"It was the purpose of the `act,' to quiet all controversies over county boundary lines where, at the time the Act took effect, such lines were established (that is definitely marked and known) and recognized, irrespective of the accuracy of such surveys. It is a wholesome statute, and should be liberally construed and enforced."
The very object of curative or confirmatory acts is to give effect to the intention of parties to enable them to carry into effect that which they have designed and attempted, but which failed of its expected legal consequences only by reason of some statutory disability or some irregularity in their action. The rule in regard to curative statutes is that if that which is legalized is within the authority of the Legislature to cure or modify by a previous statute if enacted, it may do so by a subsequent one. 2 Lewis Statu.Con. p. 1229; Cooley on Con. Lim. p. 531. But of course the Legislature cannot validate an act that it is forbidden by the Constitution to authorize in the first instance. Hutcheson v. Storrie,
"Counties in their relation toward the state may be viewed in a twofold aspect: One, which *655 pertains to their political rights and privileges; the other, to their rights of property. Over the former, the Legislature as the representative of state sovereignty can exercise absolute power unless restricted by the organic law. * * * Hence the political rights and privileges delegated to counties are not within the constitutional prohibitions against retroactive laws and those which impair vested rights."
The Legislature has "full power over the subject" of county boundaries, subject only to constitutional limitations upon that power. Trinity County v. Polk County,
A narrow application of the article, not plainly required by its terms and intention, would not be in the public interest. In sound policy a county line that has been located and acquiesced in for many years, as here, should not be changed unless expressly required by law to be done, even though such line was not the correct one in the first instance. For interminable confusion would result from the change of conditions of such long standing. Road and school bond issues would be affected, as well as individual privileges and status in respect to the line.
We have considered all the assignments of error, and conclude that they should be overruled.
The judgment is affirmed.
Dissenting Opinion
The affirmance of the judgment in this case is based mainly upon the validating act of 1895 referred to in the opinion of Justice LEVY. It is, however, apparently conceded that in the original survey of Rains county the west boundary line was not correctly run according to the field notes contained in the act creating that county. The northwest corner was established approximately one mile west of where that corner should have been under the terms of the act. In other words, instead of running the north line of Rains county four miles into Hunt county, the surveyor ran it nearly five miles and there located the northwest corner of Rains county. He then ran south, or in a southerly direction, to the place called for in the act as the southwest corner of Rains county. The testimony was probably sufficient to warrant a finding that this original line remained unchanged and was recognized by the officials of both counties as the true west boundary line of Rains county for many years and up to the time of the passage of the validating act of 1895. In 1870, when Rains county was created, the Legislature had the power to establish the west boundary line as marked by the surveyor on the ground. Under the Constitution then in force the Legislature also had the authority to change the boundary lines of existing counties without the consent of the qualified voters of either county affected. But in the adoption of the Constitution of 1876 the following restriction was imposed:
"No part of any existing county shall be detached from it and attached to another existing county until the proposition for such change shall have been submitted, in such manner as may be provided by law, to a vote of the electors of both counties, and shall have received a majority of those voting on the question in each." See article 9, § 1, Constitution of the state of Texas.
At the time that provision became effective the wedge-shaped strip of territory which had been erroneously included by the surveyor within the limits of Rains county was either legally a part of Rains county or a part of Hunt county. Both of those were "existing counties" at that time, and this disputed strip was bound to be in one or the other. If it was then a part of Rains county it became such, not by virtue of the law creating that county, because the law did not include that territory, but by the act of the surveyor in running the line and the subsequent recognition of that line by the county officials. If the survey and its recognition were alone legally sufficient to establish the boundary line at that place, then the act of 1895 was not required to make legal that which was already legally established, and in so far as this controversy is concerned that act would be merely declaratory of a fact which was already legally established. On the other hand, if the disputed strip was never before legally a part of Hunt county, although actually claimed by Rains county, when the validating act was passed, then the act of 1895 did not affect the situation, because the Legislature had no authority to change the boundary line without the consent. *656 of the voters of both Hunt and Rains county. A line between two adjoining counties cannot be changed without "detaching" territory from one and "attaching" it to the other; and such "detaching" and "attaching" could not at that time be done without the consent of the voters of both counties affected. Hence if the validating act of 1895 is needed to make the erroneous original survey the true boundary line between Rains and Hunt counties, the appellee is relying upon a law which the Legislature had no power to pass.
The exercise of that power at that time is justified in the opinion of the majority by calling that act a curative one designed to have a retroactive effect. The argument is made that if in 1879, when Rains county was created, the Legislature had the power to place the line where the surveyor ran it on the ground, the Legislature could in 1895 validate what had previously been done without legal authority. In support of that proposition reference is made to cases and textwriters which say, in effect, that in the absence of intervening property rights the Legislature may do retroactively what it had the power to do in the first instance. As a general proposition that is correct, but it cannot be applied to the facts of this case. Had there been no change in the organic law of the state restricting the power of the Legislature to alter county boundaries, undoubtedly the Legislature could have validated an illegal survey. But between the time Rains county was created and the passage of the act of 1895 the power of the Legislature had been restricted, and the authority to alter the lines of existing counties was made conditional upon the assent of the people of those counties. It will be found that in every case where the proposition relied on by the majority is approved in the authorities cited there had been no change in the legislative authority between the date of the original act and the time when the retroactive or curative statute was passed. The Legislature could not, under the guise of validating a former survey, establish a boundary line at a place where it could not be located without the consent of the people affected. The Legislature can never do indirectly that which it has no authority to do directly.
It is shown by the record that Hunt county is seeking to establish the true boundary according to the field notes of the act of 1870. That, in my judgment, should be the established boundary between the two counties, and for that reason I think the judgment of the trial court should be reversed and judgment here rendered in accordance with the prayer of Hunt county.
Addendum
A majority of the court is of the opinion that the motion should be overruled, but a final ruling thereon is withheld until the question in issue can be certified to the Supreme Court. It is accordingly ordered that the proper certificate be made to the Supreme Court in compliance with the motion of appellee.
