Lyon County v. Storey County, No. 1896

No. 1896 | Nev. | Jul 15, 1911

By the Court,

Norcross J.

(after stating the facts as above):

The only controversy in this ca'se grows out of the fact that in the early 60’s there were two places known as "Reed’s Station” on the Carson River, distant about 27 miles from each other. It is the contention of counsel for Lyon County that the Reed’s Station referred to in section 5 of the act of 1861, supra, was a'Reed’s Station located on the Carson River about eight miles easterly from Dayton, and shown to be situated in section 34, township 17 N, range 22 E. The Reed’s Station claimed by counsel for Storey County to be the one intended by the act of 1861, supra, is situated in section 25, township 19 N, range 26 E. A number of witnesses upon the part of Lyon County testified regarding the location of a Reed’s Station on the Carson River, about eight miles east of Dayton, existing in 1861, andprior and subsequent thereto, andit is admitted by counsel for Storey County that there was such a Reed’s Station there at that time. Counsel for Storey County offered the testimony of a witness, Wm. H. Hodges, who testified to having been at a Reed’s Station, about forty miles east of Virginia City on the Carson River in 1861, and other witnesses testified to having been at such station from 1862 to 1864.

Counsel for Lyon County, in rebuttal, offered the testimony of Mrs. L. D. Huntsman, who testified that she lived at Cottonwood Station from 1861 to 1868, and that the Reed who established the Reed’s Station, claimed by Storey County, did not come there until about the year 1864 or 1865. Cottonwood Station is shown, upon a map filed as an exhibit upon the part of Storey County, to be about a mile to the east of the Reed’s Station claimed by Storey County. A certified copy of the township plat of township 19 N, range 26 E, made in 1868, shows a Reed’s Station near the Carson River in the northwest quarter of section 25 of the township. Without regard to whether as a matter of fact there was a Reed’s Station at the point claimed by Storey County as early as 1861, we think the lower court was warranted in reaching the conclusion that the Reed’s Station about eight miles east of the town of Dayton was the Reed’s Station intended by the territorial legislature and mentioned in section 5 of the act of 1861, supra. By a reference to any government map, it will appear that the Reed’s Station claimed by Storey County to be the one designated in the act of 1861 is located about six or eight miles south of the town of Hazen in Churchill County; and, if this be true, the legislature has been laboring under a misapprehension for many years, for, if the contention of Storey County is correct, not only the land claimed by Lyon County, but a portion of Churchill County within its recognized boundaries, would also be within the confines of Storey County.

On April 9,1904, the clerk of the board of county commissioners of Storey County, under the seal of the county, directed a letter to the clerk of the board of county commissioners of Lyon County, as follows: "At a meeting of the board of county commissioners of Storey County, Nevada, held this day to consider the necessity of surveying the boundary line between Storey and Lyon County, it was moved and adopted by the said board that the deputy county surveyor, W. T. Moran, be appointed to make the survey for Storey County and to meet the surveyor of Lyon County at Reed’s Station, on Monday, the 25th day of April, 1904, or at such other date, after April 25, 1904, as shall be agreeable to the commissioners of Lyon County, Nevada, and at that date to commence the survey of the boundary line between Storey and Lyon County.” It appears from the record that upon the 25th day of April, 1904, Thomas P. Mack, county surveyor of Lyon County, and W. T. Moran, deputy county surveyor of Storey County, met at Reed’s Station upon the Carson River, eight miles below Dayton, in pursuance of directions of the respective boards of county commissioners of the two counties, for the purpose of making a joint survey of the eastern boundary line of Storey County. They proceeded to locate a point one mile below Reed’s Station as claimed by Lyon County, and thereafter proceeded to locate a point three miles due north thereof. Before this point was definitely located Mr. Moran and his assistants returned to Storey County.

Upon the following day Mr. Mack and his assistants located a point three miles due north of a point on Carson River, one mile east of the said Reed’s Station. At this point Mr. Mack made a search in the vicinity for an old corner monument, and found the same about one-half mile north of a little east of where he had determined the point to be, three miles from the Carson River. This latter monument consisted of a pile of stones four feet across the base and about two and one-half feet high, with a round post therein, pared off on three sides of the top. The northwest, side of this post was marked "Storey”; the southwest side "Lyon.” This old monument being so far from the point where Mr. Mack had located the true corner to be, he ran another line for the purpose of verification, and finally located a point as the true southeast corner of Storey County, and marked the same accordingly. From this corner monument he ran a line north twenty-seven degrees forty-five minutes east to a point on the old immigrant road leading from the sink of the Humboldt to the lower crossing of the Truckee River, 717 feet east of said crossing, where he erected a monument, marking the same with the word "Lyon” on the east side, "Storey” on the west, and "Washoe” on the north. Mr. Mack prepared a map of this survey, which, together with the copies of his field notes, was filed with the authorities of Lyon County and copies thereof were introduced in evidence in this case.

It is not seriously contended that this survey is incorrect, provided the assumed starting point was in accordance with the provisions of the statute of 1861 — in other words, whether the Reed’s Station assumed as the initial point for the commencement of the survey was the Reed’s Station mentioned in the statute. We think this survey ought to be considered binding, unless the surveyors erred in making the survey with reference to the Reed’s Station on the Carson River below Dayton. This survey appears to have been' made in accordance with the provisions of an act entitled " An act authorizing the survey and establishment of boundaries between the several counties in this state, ” approved February 26, 1866 (Stats. 1866, p. 130).

It is contended by counsel for appellant that this statute can have no effect, because by the provisions of section 1 thereof such surveys are required to be " commenced within six months after the passage of this act. ” Provisions of this kind are often construed to be only directory, and we think they should be so construed in this case, especially in view of the provisions of section 7 of the act, which provides that such surveys may be made when a county line "is now, or may hereafter be, in dispute. ” Counsel for Lyon County offered in evidence the report of the survey made by George Hunt, county surveyor of Storey County, of date February 17,1869, made to the board of county commissioners of Storey County. This report began as follows: "Having at your request established the boundary lines between the counties of Storey and Lyon and Storey and Washoe, I have the following to report. ” This report shows that County Surveyor Hunt began his survey at what he accepted as the southeast corner stake of Storey County, being a point stated in his report "as established by John Astrom and John Day, in survey for the county of Lyon, said stake being marked ' Storey County’ and ' Lyon County. ’ ” From this point he ran a line due north to the Truckee River. A line run due north from a point one mile below Reed’s Station, eight miles below Dayton, would, of necessity, intersect the Truckee River. This, as will hereafter appear, was doubtless due to the fact that at the time the act of 1861 was adopted there had been but few, if any, accurate surveys made of the territory, and it was not known with any degree of accuracy the exact direction and distances of points from each other. The statute of 1861 gave a due north course for the east side lines of Storey County, and. this was the course followed by Hunt in his survey.

As natural monuments control directions, conceding that the Reed’s Station nearest to Dayton was the one mentioned in the act of 1861, a line running from a point three miles north of and one mile below Reed’s Station would necessarily have to be run in a northeasterly direction to intersect the old immigrant road east of the lower crossing of the Truckee River. The record also discloses that in 1869 there was a dispute or litigation pending between the counties of Washoe, Storey, and Lyon regarding a common corner near the town of Wadsworth, which town is located approximately at the lower crossing of the Truckee River. The county surveyor of Storey County at that time put in a claim against Lyon County for services rendered in locating this point. The Reed’s Station now claimed by counsel for Storey County to be the one mentioned in the act of 1861, supra, was certainly not regarded by the authorities of Storey County as an initial point in 1869, when this controversy occurred; for, while a line run due north from a point one mile east of this other Reed’s Station would strike the old immigrant road, it would be many miles east'of the town of Wadsworth. It is clear from the testimony that no claim was ever made, prior to this action, that the Reed’s Station now claimed by Storey County to be the one mentioned in the act of 1861 was the one so designated. No map that has ever been prepared, so far as we are aware, was ever made with reference to this latter Reed’s Station, and as we have before stated this Reed’s Station is now shown to be within the boundaries of Churchill County as those boundaries are now established by act of the legislature.

Counsel for Storey County contends that what is known as De Groot’s map of the Territory of Nevada, prepared in 1862 and published in 1863, and referred to in the territorial acts of 1864, supra, supports his contention that the Reed’s Station located on the Carson River, near the 119th meridian, is the proper Reed’s Station to be considered. We are unable to see that this De Groot’s map supports the contention of counsel for Storey County. It is evident, upon a comparison of this map with later maps issued by the United States land office, that the same is very inaccurate. Herewith (see page 263) is a tracing of that portion of De Groot’s map of the Territory of Nevada lying between the 119th and 120th meridians, and the 39th and 40th degrees of north latitude. Upon this tracing we have indicated by the dotted line the correct location of the Carson River as it appears upon the latest government maps, and by dots and figures is indicated the correct location of several places shown upon the De Groot map and including the correct locations of the two Reed’s Stations.

The De Groot map shows places, rivers, and county boundaries to be off from their true location, distances varying from four to twenty miles. This is due doubtless to the fact that the De Groot map was made years before government surveys had definitely located points and distances. Making due allowances for the errors in the De Groot map, and it will appear that the southeast corner of Storey County as shown by that map is not far off from a point three miles north of a point on the Carson River about nine miles below Dayton (one mile below Reed’s Station). If the other Reed’s Station is considered, and allowance is made for the error in the map, the

southeast corner of Storey County would appear to be about twenty miles distant. Whatever force the De Groot map has, we think it tends to support the contentions of counsel for Lyon County rather than for Storey County.

The judgment is affirmed.