89 Tenn. 259 | Tenn. | 1890
By an Act passed February 27, 1889, the line between Roane and Anderson Counties was so changed as to detach from Roane about 355 acres, upon which is located much of the new town of Oliver Springs. Roane County having an area of less than 500 square miles, filed this bill to restrain Anderson County from exercising the functions of local government over the territory thus annexed, upon the ground that the change of line operated to further reduce the area of the county, and that under the Constitution of the State this could not be done. Anderson County concedes that' the area of Roane cannot, under the
By cross-bill it insists that along a part of the line between the -counties there has been a strip claimed by both, and by the cross-bill it seeks to ascertain the true boundary between, the counties, not only within the territory embraced in the Act of 1889, but the true line from Walden’s Ridge to the double spring, and that this true line be declared the present line between the counties.
Roane County, both in the original bill and in the answer to the cross-bill, denies any doubt as to the true line, and insists that, the line between them runs from a point on Walden’s Ridge east of the eastern of two gaps in the ridge, then south 19° east to the double springs. She insists that this is the ancient and constitutional line at the point in dispute, and that from time beyond which the memory of man runs not to the contrary, it has been recognized as the line, and that it has exercised control and jurisdiction up to this line, and that the territory placed in Anderson by the Act of 1889 lies west of this true line, thus reducing its area. Whether this line, thus claimed to have been the ancient and legal line, was in
Both these counties were created by the Act of 1801. This Act describes the western line of Auderson at the point .in dispute as 'follows: Beginning at a point in the northern boundary of the State, “thence south 45° west to a point from whence south 45° east will strike Walden’s Kidge one quarter of a mile above the gap of the Indian Eork of Poplar Creek, thence to the double springs on the east fork of said creek.”
The very next section establishes Koane County, and the call for its eastern line is as follows: Beginning at the north-east corner of Anderson County, “thence along said line north 45° west to the north-west oorner thereof.” • The call here quoted, calling for course north 45° west, must be subordinated to the direction to run “with the Une” of Anderson. Anderson' had not been surveyed, and its western line, as will be seen by the recitation already made, did not at the point in dispute run north 45° west. To run the eastern line of Koane according to this call for course would not follow the line of Anderson, and would leave a strip between the. comities belonging to -neither county. It follows that we can only locate the eastern line of Koane by first locating the western line of Anderson.
We turn from the Act of 1801 to a vast mass of hearsay evidence as to where this line near the gap is said to have been located. Here again there is much confusion. Many witnesses testify to declarations made by old settlers near the gap, now deceased, who declared the line to begin on a walnut in the western gap', and to run thence to the double springs. Equally as many testify to declarations, in many cases from the same residents, that the corner was upon the ridge and east of the eastern of the two gaps. The greater weight attaches to the latter class of witnesses. We reach this conclusion for two reasons: (1) Because a line beginning in the western of the two gaps would entirely ignore the call in the enabling Act, which located the call one-quarter of a mile “above” the gap. Any construction that might be adopted would not begin the line to the double springs in either of the gaps. (2) Among the witnesses who testify to declarations of de
The means of information possessed by the witnesses who speak of their own understanding of the location of this line is favorable to the contention of Roane County. In support 'of this hearsay and opinion evidence, there remains the very powerful fact that notwithstanding there has been among the residents of this locality some difference of opinion as to where the true legal line was, the county of Roane has at all times, up to the passage of the Act of 1889, claimed and exercised governmental jurisdiction up to the line beginning east of the eastern gap. "Whatever claims have been advanced favorable to the contention of Anderson, by either the county or its officers, have been sporadic and ineffective.
Steadily and persistently the jurisdiction of Roane over the disputed territory has been asserted and exercised. In this the county of Anderson has, with some discontent at times, acquiesced. The. legal claim of the county has never been asserted, and for half a century it has accepted the line as claimed by Roaire to be the true legal line. In a case decided at September Term, 1888, between
Having recovered territory by an Act of legislation, it is, as to such territory, seeking no affirmative relief. Laches would not operate to bar a defense to a suit seeking to recover territory annexed by an Act of legislative power. So that, if Anderson County can show that the territory annexed by this Act was anciently within its domain, and has been unlawfully and without authority of law claimed and controlled by Roane, the defense will be effective, for laches has not operated to defeat the legal right, but had deprived it of legal remedy.
The evidential value of long acquiescence in a particular line as the true line is not lost because it does' not amount to an estoppel, or because it is inoperative as laches.
The fact 'that Roane County has persistently exercised jurisdiction oyer this territory, and that Anderson County has submitted without an appeal to the Courts of the country, becomes a very weighty fact as evidence of the true line.
"We therefore conclude that upon the whole proof the weight of evidence is that the line between Roane and Anderson begins at the point on Walden’s Ridge fixed by the decree of the Chancellor as east of the eastern gap, and that it runs thence by a line south 19° east to the double springs. It follows that the Act of 1889 operates to detach from Roane County territory which was at the time within the boundary of that county. The Act is- void and unconstitutional, inasmuch as the area of the county was less than 500 square miles. Marion County v. Grundy County, 5 Sneed, 490.
We- have not deemed it necessary to discuss the effect of the line run by commissioners from the two counties in 1887. The survey was not accepted by Roane County. If it had been, it would not have been valid, as it would have
Affirm the decree.