Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
6.19-‘42 Gain66 County V T8rry County at al, 162 8. II. 609, point 2, where the court a@'606 with thir opinion in 6ofw 66 it holds the
Honorable Alton T. Freeman agr66m6nt b6tW66qth6 OoUlltt66 County Attorxmy Gaine8 county Semlnols a Tssae
lch adjoin it to nd re-e,stabllah- comma line a- the matter la 'that ia aurvejor, 'presumably at lMd* a Orir- cOSllhW3&3MF, .tba northwest corner or y, I beliers, ad rrurve~ad west to 00 State line, desigaatlng in said rth Iins of Gaines and the south y aud Toakum, uhleh survey was Wli-. ed,by .the Colati~eioner of the @en- ice, and e&id line ua8 the reoognfzed liae b&keen the ebws-qwtioned aomtles Lubb&?k, Texasi en&ad a6&6tSitioos dth Terry and Yoakum Oorrntiee to re-aonep the line between them 6ountles and 6dnea County end ropre?#ented to theln that he, crot13.d by a mrve~ imtabllsh tlrs *2 5: Honorable Alton T. Freeman,. Page 2
fact th6t their south line6 were too far north and that they should hare some ot the Gaines . Terry and Yoakum County and tered neaotiatione with Oalnea County to have a rq-eurvey-of ths lines. E. Harris was oontendlng that the line had ‘never been established The Commie6ionerst Courts of all three count&e then met and hired Mr. Earrla to survey the line and agreed upon the line to be suneyed and adopted a new line between the counties which took oti 6ome of Gaines County’8 territory and gave it to the other counties. The survey was filed in the Land tfi ml since 1956 hae baen reoogulzed, by’the’gd Oi- ri00. ‘lie have a diverent Cormala6ioners1 Court now rroolthe one which made these agreements and after investigating the matter the Court now reels that the other court vias mlslntowcrd by the surveyor and other8 on the whole, matter and especially the queetion or whether or not the boundary line had been eetabliahed We4 are now contending that the boundary line ks en- tabliahed by the suriey in 1900 and ae reaoa- nized and used for all DUTDOBMI until 1?55 and that fame should not hare been changed ,ae iat a8 Gaines County was aonoernea upon au agreement pronpted by mielnfonnatlon.
*I MI enoloalng a copy of all the ~proceed-~ lnge had in oonneotion with the eurrey and change or the boundary line in 1935 whloh are do with oounty boundary linee.
*I am of th6 opinion that ii Oalnea Counb~ had not entered into the agreement of 1935 for a eurvey and ohange or the line we oould hare held the line to where it wae because it was a well established line both by surxfep ~reoognl.eed In tb Land Orfioo tar thirty-rive years by all the aountiea and the question I am trslng 3 to a tt1e n aa *3 Honorable Alton T. Freeman, Page 3
hold old line as the true boundem line between the oountles. This County la contem- plating a suit it neasasary to '6pt the line beak to where it was In 1935 pridr to the ohange.R
You enolosdd a aopy of an. order of the Comafssloners' Court of Caine8 County paeaed on Haroh 5, 1955, rblch pur- ported to ratify and ooniirm the joint verbal aotlon of the Corcrnlesionsrsl Conrta of Celnes, Terry end Yoakum Counties, by whloh they "agreed on the following aa a true borudary line betueen said eountleP. Also enolosed, was 89 order of your Comaisslonera* Court, whloh we quote in part: *On this the 7th day or Yaroh, A. D. 1935, aomo on to be oousldered the matter ot legally -permanently establlshl Yoakum county, the South I.28 the South Line or of Terry county adjaoent to the North line of Gaines Corrnty aab t&e North line of Gaines County, Texas. aad It appears to the court that said boundari line has never been defined. surveJed. marked and due re- tarns tbemol made in aaaordanoe with lsw, and that the Cotmty and CaPaisaloners* Court or Gaines County, Terry Comxty, imd Yoaktm County harln6 met jointly IA Bramiield, Texas, on thls date a.ad anxtuslly amed that then said l.ine should be aurveyed, marked and due returns made permanent- ly establishIn& said line by agreement as folla6: "That ths South line of Yoakum Ootmty anb the Horth line of GalAes Cotmty, aAd the South line of Terry bounty adja6eAt to said North 1iAe Or GaiA8s County shall hereafter be located along the pre- sent surveyed sections; .the South.llnea or fol- lowing sections 6 and 9 Block a-6 aaros8 seotlon 34 and alon< the South lines of %!A, 658, 56A, 568, 37 and Z3SB Blook AX, SeotioAs m, 29, aad. Blook O-65, Seotlonrr 19 and 20 la Blook G-94, Seations 19 and 20 Blook C-35, Seotlone 10 aAd 20 Blook C-32, Seations 19 and 20 In Blook C-91, the ?il! oorner or Celnes County to be set in safd East-West taA@nt IA line north-south OS the bliy 0orAsr of Dawson *4 ionorable Alton T. Freeman, Page 4
County as marksd by W. R. Standeter, about 1912, that all lands Worth of the said South llns of said Siotions shall hereafter be assessed in Yoakum- Tarry Counties and lands South of mid South lina of said Seotlons shall be essesssd as in Gainas county.
"The Colpmisslonerst or eel6 Couutlas having jointly smploysd A. IN Harris, Surveyor or Lubbook, Texas, to mark and make hia returns as abore sot out; wheretore, this Court appoints said Barr18 to so mark and make his returns thereto as set out in ml6 proporal hereto attaqhsd and made a part hersor.
"W. 0. Gibbs, County, Judgr, Gaines Countr, T~DBs.* In order to hare more or tb reots barors wbsrors citing this opinion, we .sxamined ths files or the Osnsral Land :rios and thrre found a oarbon oopy of a letter written by larles Rogan, Comnissloner otths General hnd Offloo to 001.
, 8. woods, dated Yay 19, 1900, whloh nrerred to snolosurss, contract to.be sigesd by Mr. Woods end a bond to bs made by .m. In that'letter the Connissloner said, Tou will ploess ttiiy me when you will start iOr work, so that I pay.know when ,y shall beuin. Do not send either bond or ooiitraot untlltliii ird or thts month, as the law under whioh this emplsylumt and ntract is made does not go Into sfisat until that day.' ~hsm I also a letter in the iilss written by Woods to th6 Com&slomr, .ted July 2, 1900, rererrl.ngto the progrsas or ths work, asking r oertaln supplies and help, for aertain field notes whioh in maklnu the survey.
nssded
The riold notes 0rth4 woods surrey are ala o&rile the Land orri00 wit&& oertlrlcate 0r Charles Bogan, Ootis- oner, dated July 3, 1@02, to the stieot that *the iorsgolng eld notes are a true and oorrsat'oopy rrom Held book af ate Surveyor D. F. Woods or a l.ina i%n by him in 1900 from the rthwest corner of Fisher County to ths northwsst oorner of in88 County on the line of Wew~llexloo. Said fisld book mw OA lo in this office;?
Aooording to woobet tisld notes, he set aAa marksd'ths rtheast oorner of Gains& County with a limestone, marksd l!$WD
515 Honorable Alton T. Freeman, Page 5
County on east side and HE0 County on west side and tied s-e lntc three railroad survey corners, as well as other objects in the vIoIn1t.y. From that point, he proceeded rest marked on the ground, miles 5, 7, 8, 10, 12, 15, 20, 21, 23, 25, SO, 32, 35, 3SBr 40, 42, 45, 46, 47, 49, and the northwest corner of Gaines County, saw being the southwest corner of Yoahrm 0ouuty;In the east line of State of,Wew Herioo and tied his corner Into several objects on the ground as well as "a man- ument established by Twlchell, mile 70 north frola southeast corner of New %zloo, a stone SW by 12" by 18" long set in the ground". Typloal of woods* manner of marking mllelr and corners on t,he pound was to dig a pit, build a mound, drire a stake ln It and bury a bottle In the mound containing a slip of paper describing the point, with ths date and his name and titles on It.
Photostatic copies of the letters and Woodi*report, obtalued by us rrom the Land Office, are enclosed herewith.
A copy of the report made by A. L. Harris on his
survey, filed in t&s Oeneral Land Office June 12, 19S6, has also been examined by us, but Is not enclosed since you hare a copy.
Before answering the sfnfrle general question contained in your letter, it Is necessary to discuss and answer 8011~) other questions which arise out of your particular faot~s+at&n.~ .~
One of the earliest deofelons of our Supreme Court, touching on the aubjeot of the surveying and establishing of boundary lines between counties, and one which Is quoted Flthout exception In subsequent oasea, is that of Jones 'I. Powers, Tex. 207. There, the Court dlsoussedithe general Act providing the wanner In whloh the true poeitlon of the line between counties might be determined, Acts 1879, Ch. 129, p. 137 (cammels zys or Texas, Vol. 8 p. 1457). This Act remains unchanged to-
Articles 1582-1590, Revised Clril Statutes of Texas, 1925.
TheoCourt said:
qnder all the laws made for the purpose of furnishing a method by which the lines or a county may be actually establlshsd upon the :@rouud, lt may be held ir lines have once been deilnitely fixed upon tha ground by an actual survef made. reported *6 Honcrable Alton T. Freeman, Page 6
differ-ent from the oue established at some rower is only when It msy appear to the oouuty t&n&. or to the coaalssioner or the general land orrloe,~that the boundary, or a part or the .boundary or a oounty *is not sufflclently deflalte and well deil.ued* that action to make it definite is authorlsed.
"When a couuty llue has been onoe run, marked uuon.the around and established In accordance dth it cannot be said to be indeflnlt to time to county coumlssloners~ oourts to aorreofi what may hate been lneorreot in the establlshuumt or a oounty line on the mound; but seem Intended to RfVe a means by which the line or lines w hs mado, &ilnUe and ebrtaln. and when so rendered, ia aooordanoe.tith the statute, whether oorrsotfy tuI$ and marked or not, the statutory declaration the% 'the l%ne so run and marked shall therearter be regarded a8 the true boundary line between the oountiee',. oufht'to be given idll erfect and pala as a prohibition to any further aotion looking to ths establishment or soae other line.* (Emphasis ourss). (At p. 213).
The above lauguage was quoted wfth approval ,in,y&nt County 7. Baines Couuty, 116 T. 277, 288 S. IF. 805, answerdng oertliied questi'ons sud approving C. C. A. opinion reparted ia 7 S. w. 12) 64s.
St is well settled that such a survey, in oz4er ti, be leaal or lawrul. need not neaeesaril~ be made socordi toth urorlslons of the Reneral statutory prorisioa above r%erred &: &oh titatutory au&rrity is net elolimlre. Hale COtUltf 7. - Lubbock Couuty, 194 5. W. 670 at p. 682 (writ of error dis- missed); Jones 'I. PoweM, supra; Hunt County T. Bafnes Oouuty, supra.
Oalnes, Terry and Yoakum Counties along with a number of other8 were created -by dividing Young Bexar Temltor~se, Aete Flrteen2h Legfslature, supras their bouudariee were : described therelu but ~the usual provlsionV (Eunt OoMty t. ialnes County,.eupra) tar aurveyiag and marking their llne8 QD the ground were omltted. St le well to note here, thatthe Act provided for Scurry Qounty to begia at the uorthweet corner or Fisher county, Borden couuty to begin at northwest corner oi Sowry County', Dawson County to.~begin at the norttiest aor- ner of BOIY~~B Couuty, and Gaines Qeunty to begin at tM northwest
Honorable Alton T. Freeman, Page 7
corner of Dawson County and for the northwest oornar of Gal,nea County to be coincident with the southwest corner of Yea County In the 103rd meridian, and that this was the order and manner of location used by 1R'ooda.
The Twenty-sixth Legislature at its Flrat Called
Session, Genera) Laws or Texas, oh. 11, P. 29 (Gammel*a Laws or Texas, Vol. II), passed the Act adjusting and settling the con- troversy between the permanent school fund and the State cf Texas growing out 0r ths division 0r the public domain, which was approved February Z3, 1900, to take effect ninety days after adjournment. Section J of ,the Act pxvvlded that eertaln tracts in certain named couutles, including Gaines and Terry, should be surveyed and sectionized under direction of the General Land Ofrice., berore being placed on ths market rcr sale. Seotlon 4 authorized the Oonrmlaaloner of the Gemral Land Oiiioe tc employ auah surveyors as he deemed necessary to Rsurvey, seotlonlze and return field notes into the General Land Orfloe or such lands?and that such surveyors, lr not, already under bond, ahould'make a bond to be approved by ths Oornmlsaloner and payable to tha Oovemor of Taxaa, aondltionad ror the raithrul periormanoe o$ his duties as State Surveyor. The Act made an appropriation for this surveying.
In our opinion, It was by authirlty of tha Soregoing Legislation that.,@harlea Rogan , then Commissioner of the General Land Orrloe employed Col. D. 5. Woods in 1900, tc make his aw-
so rar as the facts berore us show .the line between G%y and Gaines Countlea had never been%urveysd before the Woods survey. -Before OolPmisaloner could properly describe the school lands tc bs sold in Oaines and Terry ~ountlea, he had to know which counties they were in, which would, of course, necessitate the location of their conEon line. There- rore, it Is oar furthar opinion that the Uommissioner's purpose was tc have looatdd, established and marked on the prormd, the north line of Mines County and the couth llne or Terry County, a oommon line, in order to carry out the mandates of said Act, with reference to the sale and lease of school lands In those counties.
As stated above, the Woods field notes r8turBed to
and on file j,n the Land Office, show that he a?mkad tmnty-oaa or ths rorty-nine and a fraction mllea or the north &lne of Gaines County1 The Woods flald notes aonclusively show that the line was %arked on the grouitd,m with both natural and artirlolal *8 Bonorable A.1 ton f. Pm: xan, Page a The comer murker and noat oi the lntenuedlate markers objects. - _ ---- ._ _
meet the re~ulremntn or Artlole 1563, aupre, whlcn wa? then 10 8rre0t. Therefore, it la cur opinion thut the north line of Caine8 County and the south line of Terry County weti definite- &eatabllbhed mnrked on the ground “in accordance with ” *by an notual mrvey, made, reported end approved*, Jonea 0. P&era, supra (quotations are lewuep,e of olted cssa), and that the Eooba line, wherever It 18, la the true boundary line between Geines, Terry end Yoekum Counties.
The brder passed by the Comiaslcnera~ Court of Gaines County, ldnrch &, A. Il. 19S, contains R finding, with reference to the line in question, “that said boundary litaa has never been detlned, surveyed marked and,dua returns tharaoi made in accordanoe with lava”. &oe we find that woods did 60 survey, ?aark and eatubllah tha bounaary line, It la our oplnlon that the oourt *s findlag la in error. The order contelns no rderenoe to the line surveyed by Eooda and iron its faoa, does not show that the oourt purposed to put Its *e&read -line* on the old Xoods line. Tha order contains a deaoriptlon ot the -agreed line”, but froze it, we oannot tall whether Mia 1W would oofnclda with the Woods llue or not. It the *a-ad Uaa* does oolnoldc with the koode line then the oourta merely did a uaeleaa thing insofar as re-aatabilshiug then “true linea w6a ooncerned; they smrely agreed to, rrolp thet time on, reco&zo the *true llnaw rather than a llns which hed bean arrcnaopsly areoo~gniz:adw 68 tha boundary lirre.
However, you say that auoh la not the oaaa, that t& line wraoo(mlzed by everyoaa * la the Woods line and that the Comralaslonera~ Court order deaorlbas e line which Ziea south of the ~ooda line. xi tbla be trua, the court@ 8oUght t0 *em- e-088 that : tablish” their boux&dary line along a line dtrmm which hcd already been ~e5tabliahadmr This, they he4 n0 authority to do. Jones Y. Powera, auprai Hunt Co. Y. Ralnaa co. * augra.
lime that their intention was not to re-locate Woods line, but to establish a line which had never been eatabllahed. Thi, belnr, the ease, we will pass without anawerlng tha question of the effect of the agreesnent entered into between the counties g their purpose was to agree on location of the llae as Bur-
Honorable Alton T. Freman, Page .9
veyed by Woods.
Another and even stronger reason for tim abtie
holding is that the line surveyed by Woods and whioh m hold to have been marked and established by him on the ground,,yuas *recoepized by everyone,W,iaoludlng the Commlssloners* Co&s of the counties named and tba Qeneral Land Offloe; whloh bring8 yxmr ease within the provisions OS AHSole 1606, Re- vised Civil Statutes or Texas, 1926, a cusatlve statute, whloh w quote In full:
Vhe ootinty boundaries of the oountles in thle,State as now _reoomleed and established are adopted as the true boundarfes ol euoh lots,creatlmz auoh aotmtiee oounties, and the a _- ~~_._ _.___._ and boundaries are oontlnued in force.* (Emphasis ours).
If the Woods line and the *reoognlzed ,lS.ne" are not one and the same end do not coincide, then there right.be 8-8 doubt as ta t&e appliaablllty of this ertlalq; we ure baefng aar apfa’ion on your statement that they are ths mm.
Any doubt as to the ~eonstltutionallty or ths Sore- going statute, whloh may have arisen as a result of tim ~dls- sentlng aplnloo In Huut v. Rslnes county, (a. a. A.), eupra. or the languses of the Supreme.Gourt in aaylnF tart ,lt was.Von- stltutfonel as applied to the ease at bar' has been removed. Lynn County v. Garta County, (Corn. App. 58 S. W; (2) 24. There are numerom oases alted ln the Lynn County oaW, all oiwhloh hold that Article 1606 Is applloable to suoh a oaae aa la be- fore us. This Artlole Is not limited in Its applioatlon to a line or lines run on the ground In aooordanoe with Articles 1582-1590, supra, Hale County v* Lubbook County (a, 0. A.) 194 S. W. 648 (writ of error dismissed); Runt Co. v. Ralnes 00, supra .
Iu dlsaueslne Artlole 1606, supra, in Peae8 County V. Brerster County, 250 5. W. 510 (writ of error dlsmlssed) the court said:
7Jztder this ertlole It would be ialproper for 'the dlatrlot o&rt to undertake to ohange (ut es- tabliahed and definitely marked boundarJllno between oaunties theretofore.reaognized apd establlshed~as the true line, and tbls Is true even thotlga ths~liae be tnoorreatly run.* (at p. 3l2'f. {~Rmphaeia onrs). A *10 Honorable Alton T. Freeman, Page 10
Che oasc alao holds that the‘jurlsdlotlon of the Dlstrlat coprt and Couuty Courts Is conourrent under the Aot of 1899 (supra).
Article IX, Seotlon 1 of the Constitution ot the State of Texas, provides that no territory shall be detaohed fropl one existing county and attaohed to another exlstlug oounty, rlthout a favorable vote OS a majority of the e?eators in eaoh aouuty. The~facts do not show that euoh tm eleotlon waa held. The aonstltutlonal liaitatlon just referred to Is on the Legislature. The Legislature has ocauplete oontrol over oounty boundaries, subject o&y to oonmtltutional llmltatlons upon that power and any control a ootmty has over its boundaries must be given by the LegLlature. Bunt County v. Ralnea.County, supra. Ob- vloasly, than, the Commissioners Court of Oalnes County aoted not only with&t leglalatlve acthorlty, but ln a xamer wliloh Leglsmoanot authorize beoauee of gal& llmltatlon. For this further~reason, ws hold the aot of the Commlsslonera Courts bf Cal$es, Terry and Yoaktm, whioh *took off seme or Gaines County's territory and gave It to the other oountlesa, to be unaonstltutlonal and void.
We now oome to the question, whloh Iron your letter
appears to be troubling you, namely, whether beoause of lta agreement with Terry and Yoakua Couutles, Oainee County will be preoluded from reooverlng Ifs territory, lost to them. @me the aotlon of the Uozmlssioners* Court vfas without any authority and void, the oouut Is not bound by suah aotlon. Tarrant Go. v. Rogan (01~. App. 5 125 8. W. 592 (reversed and rendered on other grounds). In vlem of the above elted aaae and
In our oplnlon, the aase of Blaokburn v. Delta County, 109 S. 111, 80 (wit of error refused), Gaines County la not estopped to deny ths ;t;;dlty of the 1955 survey. In the blaakbuxn da+, the oourt
:
"nnlm natur+ pers.Qns, corporations, whAther private or muMol~a1, possess only au&powers as are oonferred npon them by law; It would see8 a strange doatrlne to hold that, when they make UOU- .traots in exoeaa of tholr powers, ooapllanoe,by them .wlth suoh aontracts will, by eetoppel -6 re- latlon back, supply the power that was wanting in first lnstanoe, even though such laok Of parer results iram a mandatory provision of the Constitu- tlon deolaring that suoh power shall not exist. It 1s not believed that the dootrlne of estoppel should *11 Honorable Alton T. Freeman, Page
be carried to suoh an extent." (at p. 82).
It follows that the answer to the broad question asked by you is that the line establishad by State Surveyor D. S, Tioods In 1900, and rcoogulaed aa suoh slnae that time, la the true boundary line and that Gaanes County oan "hold its north line* to same.
The faota ars moat important in a aasa, or this
kind, aud the toots quoted from your letter, plus those aa- aertalned by us, are the baals of this opinion. This opinion would not neaesaerlly apply, under a different set of faota.
Trusting that this aat~sfaotorlly suawerd your
inquiry, we are
Yours very truly ATTORRRY URRERAL OFTEXAS Asslatant AppROV,Z]‘Aur; 3i, 1939