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presuming that governor was acting upon a request from a grand jury from one of two counties when he ordered a survey to fix the boundary between the two, even though there was no evidence that he received such a request, as such a request was required by law
Summary of this case from Smith v. Northside Hosp., Inc.Opinion
15006.
NOVEMBER 21, 1944.
REHEARING DENIED DECEMBER 4, 1944.
Petition for injunction. Before Judge Townsend. Dade superior court. August 15, 1944.
J. N. Hunter and R. Noel Steed, for plaintiff.
Wright Fullbright, for defendant.
An order of the Governor of this State appointing a surveyor to make a survey and plat of a disputed county line will be presumed, until the contrary appears, to have been made in full compliance with the act of 1887 (Ga. L. 1887, p. 106), and such survey and plat, when filed and recorded in the office of the Secretary of State without protest or exceptions, are final and conclusive as to the boundary line, which thus established remains as the true line until lawfully changed by another official survey ordered by the Governor and can not be impeached by a private survey.
On application of the above principles of law in a suit to enjoin a county and its tax officials from levying an execution for taxes on the land of the petitioner, where a survey and plat made under an order of the Governor, reciting that it is made in pursuance of the act of 1887, supra, shows the land of the petitioner to be wholly in an adjoining county, the court erred in denying the injunction, although there was in evidence a subsequent plat and survey and testimony of engineers and surveyors privately engaged, showing the land to be in the county sought to be enjoined.
No. 15006. NOVEMBER 21, 1944. REHEARING DENIED DECEMBER 4, 1944.
Bernard Fine filed an equitable petition against Dade County, G. C. Tatum, and W. F. Morrison, sheriff and tax commissioner, respectively, of said county, alleging as follows: The petitioner is the owner of described land lying in Walker County, Georgia, and returns for taxation thereon have been made by him and his predecessors in title under the name of "Stardust" for more than seven years past. All taxes assessed against the property under said returns for State, county, and school-district purposes have been fully paid to the tax collector of Walker County, Georgia. Dade County has issued against the petitioner a tax execution for taxes assessed against the property by the tax commissioner of Dade County, and it has been levied by the sheriff of said county. Dade County and the said tax commissioner are without right or authority to issue the execution against the petitioner's property, it not being subject to taxation in Dade County because it actually lies within Walker County, Georgia, and all taxes due Walker County and the State of Georgia and all school taxes have been paid to the tax collector of Walker County, Georgia. The petitioner is without any adequate remedy at law, and unless a court of equity intervenes in his behalf he will suffer irreparable loss and injury. He prayed that process issue and that the defendants be temporarily and permanently enjoined from advertising or selling the property levied on under said execution or from further proceeding therewith, and that the court by proper judgment declare that the said execution is void and of no effect and decree the cancellation thereof.
A temporary restraining order was granted. The defendants filed an answer denying that the property was in Walker County, Georgia, and that the issuance of the execution was not authorized and that the property was not subject to taxation by Dade County. They also denied that the petitioner was without adequate remedy at law and would suffer irreparable loss and injury unless the court intervened in his behalf.
The parties entered into a written stipulation of facts as follows: "First. That by general reputation and understanding for a period of forty years or more the line between Dade County and Walker County has laid [sic] to the westerly side of the lands described in the first paragraph of the petition in the above stated case, and that, under such reputation and understanding as to the location of said line, said lands described in said first paragraph of the petition would lie in Walker County, Georgia, and the line between said counties would be along the easterly side of the Lookout Mountain Scenic Highway, as shown by the plat attacked to the affidavit of A. A. Simonton, a distance of 707 feet from the westerly brow of Lookout Mountain, which is reputed to be the county line as shown by the Branner survey, but that no person can be found who will testify as to the actual location of said line by measurements or survey other than A. A. Simonton and Kieffer Lindsey, whose affidavit will be submitted to the court as evidence in the above-stated case. Second. That there has been found in the office of the Secretary of State of Georgia a plat known as the Branner plat, a copy of which is hereto attached to this stipulation of facts, marked Exhibit `A,' and made a part hereof, together with the field notes of said Branner survey, a copy of which field notes is hereto attached, marked Exhibit `B,' and made a part hereof. Third. That the records of the executive department of the State of Georgia show that no action was ever taken with respect to said Branner survey other than the order of the Governor of the State of Georgia, his Excellency W. J. Northern, dated September 24, 1892, a certified copy of which is hereto attached, marked Exhibit `C,' and made a part of this stipulation. Fourth. That no other records are of file in either of the executive archives of the State of Georgia or in the office of the Secretary of State of the State of Georgia touching the location of the line between Walker County and Dade County. Fifth. That the conveyances of the land described in the first paragraph of the petition have heretofore been made to the predecessors in title of plaintiff describing said land as lying in Walker County, Georgia. Sixth. That the plat of the McFarland subdivision, which is recorded in Walker County, but is not recorded in Dade County, does not purport to show the county line between Dade County and Walker County, but states that the land subdivided and the subdivision in its entirety lies in Dade County and Walker County. Seventh. It is further agreed that either plaintiff or defendants may submit affidavits or oral testimony in addition to but not in conflict with any facts stipulated herein or admitted in the petition or the answer." Exhibit "A" referred to in the stipulation consists of a copy of a plat and Exhibit "B" consists of field notes as to the line surveyed by J. A. Branner in October 1892, as being between Dade County and Walker County. Exhibit "C" is a certified copy of an executive order of September 24, 1892, as follows: "Ordered: That J. A. Branner, county surveyor of the County of Chattooga, be and he is hereby appointed to survey, mark out, and define the boundary line in dispute between the counties of Dade and Walker in this State, under authority of an act of the General Assembly entitled, An act to settle and [define?] the county lines in this State, etc., approved October 20, 1887."
The petitioner introduced in evidence his sworn petition, and the defendants introduced in evidence an affidavit by Kieffer Lindsey as follows: "That on August 6, 1944, he, in company with A. A. Simonton and other persons, made measurements on Lookout Mountain, in the State of Georgia, to determine the location of the lands described in paragraph first of the petition in said case. That said measurements were made across said mountain and approximately at right angles to the longitudinal axis thereof, said measurements being made from brow to brow of said mountain. That at the points determined by affiant to be the brow of the mountain there could be no question as to the same being the brow of the mountain as there, at the definite tops of well-defined palisades, the plateau breaks sharply toward the two several valleys, and it was from such breaking point upon the west side of the mountain that the measurements were made to a like breaking point upon the east side of the mountain. That in conformity with said measurements the plat attached to the affidavit of A. A. Simonton, showing the distances of such measurements and their location with respect to the aforesaid lot of land as described in paragraph first of the petition in this case, was prepared by A. A. Simonton, and that said measurements are correct and said plat shows the relative location of said tract of land to the east and west brows of said mountain and correctly shows the distance between the brows of said mountain. That said lot, according to the measurements, lies westerly of the middle of the top of the Lookout Mountain a distance of 2167 feet west of the middle of the top of the Lookout Mountain, said middle point being shown correctly by said plat as ascertained by said measurements, a copy of said plat referred to in this affidavit being attached to the affidavit of A. A. Simonton, dated this day, marked Exhibit `A,' and made a part of said affidavit, the measurements and courses shown thereon being correct. This affidavit is made by affiant to be used upon the hearing of the above-stated case." The defendants also introduced in evidence an affidavit of A. A. Simonton, containing similar averments to those in the affidavit of Kieffer Lindsey, and further deposing that "he endeavored to trace the Branner survey and to locate the same, but was unable to do so or to find any marks indicating where said survey had been made upon top of Lookout Mountain marking the line of said survey, and that the county dividing line as shown thereon between Walker County and Dade County does not lie at any point, with respect to the land described in paragraph first of the petition, near the middle on top of Lookout Mountain. This affidavit is made by affiant to be used upon the hearing of the above-stated case."
The court rendered judgment denying the injunction sought and dissolving the temporary restraining order theretofore granted, and made the following findings of law and facts: "First. That the language contained in the act of the General Assembly of Georgia, approved December 25, 1837 (Acts 1837, page 65), creating Dade County and defining the boundary of said county as between Dade County and Walker County, providing that said line is `to run as near as possible on the middle on the top of the Lookout Mountain,' is construed to be the center of the top of the mountain as measured from brow to brow of said mountain. Second. That the brow of the mountain means the point at which the plateau breaks first sharply towards the valley and does not mean either the escarpment upon the side of the mountain nor the tops of hills upon the top of the plateau of said mountain. Third. That the boundary line between said counties is to be determined by measurement from brow to brow and the line would be the center of such measurement. Fourth. That the plat made by C. E. [J. A.] Branner, surveyor of Chattooga County, under the order of his Excellency, Governor W. J. Northern, is without legal effect as establishing said line, for the reason that it does not appear that said survey was made in accordance with the statute providing for the Governor to determine, by survey, the location of the line between counties where such line may be in dispute, and that, therefore, such survey of Branner and his field notes are without probative value and the same can not be considered as public records of the State. Fifth. That general reputation and understanding as to the location of said line must, as a matter of law, yield to an actual survey and measurement." The judgment further recited: "The court, therefore, under these findings of law, as above stated, and its construction of the act of 1837, creating Dade County, finds that there is no dispute or issue of fact in this case as to the location of the line as established by the measurements made by A. A. Simonton and Kieffer Lindsey, C. E., as shown by the plat attached to the affidavit of A. A. Simonton and referred to in the affidavit of Kieffer Lindsey, and that therefore the court is compelled to find in this case that the true line between Walker and Dade Counties is at the location shown by said plat, as established by actual measurement, and that, therefore, the plaintiff is not entitled to the injunction sought and that the lands described in paragraph first of the petition lie wholly in Dade County."
The petitioner excepted to the judgment, in that the findings in the first and third paragraphs of the judgment are contrary to law for the reason that the act of 1837, supra, requires a construction that the line between the two counties should be run from the point of beginning provided in the act in a general course without reference to the actual measurements from brow to brow of said mountain; that the finding in the fourth paragraph of the judgment is contrary to law, for the reason that it appears that the Branner plat and field notes came from the office of the Secretary of State of the State of Georgia, and are, therefore, binding as fixing the boundary line between the counties and can not be impeached, and that the line so established is the line between the counties; that the finding in the fifth paragraph of the judgment is contrary to law for the reason that general reputation and understanding as to the location of the line and the survey of Branner and Lindsey create an issue of fact to be determined by the court.
By an act of 1837 (Ga. L. 1837, p. 65), provision was made for creating Dade County out of that part of Walker County lying west of Lookout Mountain, it being enacted that "from and immediately after the passage of this act, the inferior court of the county of Walker shall be authorized and required to cause to be ran [sic] and plainly marked a line as hereinafter designated, beginning at lot one, in the ninth district of the fourth section, originally Cherokee now Walker County, thence a southwest direction for its general course, so as to run as near as possible on the middle of the top of the Lookout Mountain until it strikes the line of the State of Alabama, at or near lot No. one hundred and forty-five (145) in the eighteenth (18) district of the fourth section, and all that portion of said county lying west of and northwest of the aforesaid line shall constitute a new county, to be called Dade." This court will take judicial cognizance of the fact that Walker and Dade Counties now exist as adjoining counties in this State, Walker County being east of Dade County.
According to a plat of survey made by A. A. Simonton and Kieffer Lindsey in August, 1944, the "middle of the top of the Lookout Mountain" has been located as being along the general course of a line which is equidistant from the eastern and western brows of a plateau on the top of the mountain. According to this plat, the line is 3432 feet from the eastern brow of the plateau and a similar distance from the western brow. The eastern boundary of the petitioner's land is 2167 feet west of the line between the counties as surveyed by Simonton and Lindsey. The western boundary of his land lies along the eastern side of Lookout Mountain Scenic Highway, a distance of 707 feet from the western brow of the plateau, and hence, if that survey be correct and of probative value, the petitioner's land lies wholly in Dade County.
By the stipulation of facts between the parties, it is agreed: By general reputation and understanding for a period of forty years or more the line between Walker and Dade Counties has lain to the westerly side of the petitioner's land, and hence, under such reputation and understanding, his land would lie wholly in Walker County, the line between the counties being along the easterly side of Lookout Mountain Scenic Highway, which highway is shown on the Simonton plat hereinbefore referred to, and which line is shown by a Branner survey hereinafter referred to as being the line between the counties. Other than Simonton and Lindsey, no person can be found who will testify as to the actual location of the line by measurement or survey. There has been found in the office of the Secretary of State a plat with field notes made by one Branner; this survey, according to copy of an executive order under date of September 23, 1892, having been made by appointment and direction of the Governor. If this survey is correct, the land of the petitioner lies wholly in Walker County.
The trial judge reached the following conclusions: General reputation and understanding must yield to an actual survey and measurement. The plat and field notes of Branner are without legal effect as establishing the line, for the reason that it does not appear that the survey was made in accordance with the statute, and they can not be considered as public records. The middle of the top of Lookout Mountain and the boundary line between the two counties is to be determined by measurement from brow to brow, the line being the center of such measurement, and brow meaning the point at which the plateau breaks first sharply towards the valley and not meaning either the escarpment upon the side of the mountain or the tops of hills upon the top of the plateau of the mountain. Therefore, the trial judge ruled that the only proof as to the line was the survey and testimony of Simonton and Lindsey, showing the true line as being 2167 feet east of the eastern boundary of the petitioner's land, thus placing his property wholly within Dade County, and accordingly holding that a denial of the injunction was demanded as a matter of law.
The act of 1887 (Ga. L. 1887, p. 106), making provision for settlement of a disputed county line is codified as sections 23-401 to 23-408, inclusive. Section 23-401 provides: "Whenever the boundary line between two or more counties shall be in dispute, and the grand jury of either county shall present that the same requires to be marked out and defined, it shall be the duty of the clerk of the superior court in the county where such presentments were made to certify such presentments to the Governor, and the Governor shall appoint some suitable and competent surveyor who shall not reside in either county, to survey, mark out, and define the boundary line in dispute, and return such survey with plat to the Secretary of State's office to be recorded in a book to be kept for that purpose." Section 23-402 provides for notice to be given by the surveyor to the proper county authorities of the time and place of the intended survey. Section 23-403 provides that he shall furnish the proper county authorities with a copy of the survey and plat. Section 23-404 provides: "The survey with plat, made and returned to the Secretary of State, shall be filed, but not recorded for the space of 30 days from the date of its reception in his office, and the entry of filing made thereon, for the purpose of allowing the authorities of either county dissatisfied therewith to file a protest or exceptions thereto within that time." Section 23-405 provides: "In case such protest or exceptions is filed in the Secretary of State's office within the 30 days, it shall be the duty of the Secretary of State to give 10 days' written notice through the mail to the ordinaries or chairmen of the board of county commissioners of the respective counties, of the time when he will hear the same at his office, and upon hearing the contest he shall determine from the law and evidence the true boundary line in dispute between the respective counties." Section 23-406 provides: "Upon such decision being made by the Secretary of State, or in case no protest or exceptions are filed within the 30 days aforesaid, he shall cause the survey and plat to be recorded in a book to be kept for that purpose, whereupon the same shall be final and conclusive as to the boundary line in dispute."
There is no affirmative evidence that, in ordering the Branner survey in 1892, the Governor acted upon a request from a grand jury of either of the counties. It is settled law, however, that a public officer is presumed, until the contrary appears, to have properly performed his official duties and not to have exceeded his authority. Grannis v. Irvin, 39 Ga. 22; Bedgood v. McLain, 94 Ga. 283 (2) ( 21 S.E. 529); Greer v. Fergerson, 104 Ga. 552 ( 30 S.E. 943); Durrence v. Northern Nat. Bank, 117 Ga. 385, 388 ( 43 S.E. 726); Connolly v. Atlantic Contracting Co., 120 Ga. 213 (2) ( 47 S.E. 575); Davis v. Baldwin, 185 Ga. 40, 41 (1) ( 193 S.E. 892); Hogg v. Rome, 189 Ga. 298, 302 ( 6 S.E.2d 48). "The presumption that every public officer has performed his duty in the manner prescribed by law applies in the instance of the governor of a State, to the extent that the court will resolve all doubts in his favor in order to support the validity of his acts. The presumption that every public officer does his duty is especially strong in the case of the governor, the chief executive officer of an independent State." 20 Am. Jur. 180, § 173. Under the statute relating to the fixing of a line between counties in case of a dispute it would be the duty of the Governor, before making an appointment and ordering a survey, to see that he had before him a request from the grand jury of one of the counties. In ordering the Branner survey in 1892, he will be presumed, under the above authorities, to have acted upon a request from a grand jury either of Dade or of Walker County. The Branner survey and plat are shown to have been filed in the office of the Secretary of State as required by the Code, § 23-404. No other record is in that office touching the location of the line between the two counties. Nothing to the contrary appearing, it will also be presumed that the Secretary of State complied with the provisions of § 23-405, and that no protest was filed with him requiring notice to the proper authorities as to a hearing on the correctness of the survey. No protest having been filed, it was his duty under § 23-406, to cause the plat and survey to be properly recorded, whereupon the same became "final and conclusive as to the boundary line in dispute." Having thus been established by law, the line shown by such survey and plat must remain as the true line until another change shall be lawfully made. Kennedy v. Howard, 183 Ga. 410, 414 ( 188 S.E. 673). The survey made by Simonton and Lindsey in 1944 is not shown to have been an official governmental survey, and, therefore, is not of probative value to contradict or impeach the Branner survey which was made under order of the Governor and presumably in full compliance with the statute. The evidence demanded a finding as a matter of law that the true dividing line is that shown by the Branner survey and plat, and that the land of the petitioner lies wholly in Walker County rather than in Dade County. Accordingly, the trial judge erred in ruling that the only evidence to be considered was that of the Simonton and Lindsey survey and testimony, and that a finding was demanded as a matter of law that the land of the petitioner was wholly in Dade County, and in refusing to grant the injunction.
It might be added that whether or not the middle of the top of Lookout Mountain should be ascertained by locating a line equidistant from the east and west brows of the plateau on the top of the mountain is a question not necessary to be here decided. Whether or not the line as run by Branner was so determined by him or by other considerations, the line has nevertheless been fixed as the true line and without any apparent protest from either county at the time of the survey. This conclusiveness is not altered by the fact that Simonton testified by affidavit that he was unable to trace the Branner survey and by it determine the line between the counties. If in fact it is obscure, the line must be made clear and definite by an official governmental survey under order of the Governor in accordance with the act of 1887, supra, and not by the evidence of engineers or surveyors privately engaged.
Judgment reversed. All the Justices concur.
ON MOTION FOR REHEARING.
In the opinion of this court it was stated, with citations of authorities, that it will be presumed, until the contrary appears, that a public officer has properly performed his official duties and not to have exceeded his authority, and that, hence, the Secretary of State complied with the provisions of the statute here involved. The defendants in error filed a motion for rehearing insisting that such ruling "is inconsistent with the authorities and decisions of this court in the cases cited in the brief of counsel for defendants in error before this court of Volume 15 R. C. L., page 881, sec. 359, Tucker v. Harris, 13 Ga. 1, Patten v. Miller, 190 Ga. 123-138, Davis v. Melton, 51 Ga. App. 685, at page 691; and that the court necessarily has overlooked or misconstrued said decisions and judgments in arriving at its judgment in the portion of its opinion above quoted. The two lines of decisions are not and can not be harmonized except by recognizing that those cited by the court refer to ministerial acts, and those cited in our brief apply to judicial or quasi-judicial acts. Movants insist and contend that the decisions cited by the court, in support of the above-quoted portion of its opinion, do not sustain the decision in a case of this character for the reason that the act of 1887 (Acts of 1887, page 106, Code, § 23-401-408, inclusive) constitute the Secretary of the State as a court of limited jurisdiction to determine the disputed line and creates him a court of limited jurisdiction for this purpose; and, therefore, the authorities above cited holding that all facts that are essential to give jurisdiction to a court of limited jurisdiction must be a part of the record, as the cases cited in our original brief and referred to above hold and apply rather than those cited by the court." The authorities relied upon were not overlooked by this court, though not referred to in its decision. However, they have no application here, since the Secretary of State does not under the statute act judicially but acts only politically. Early County v. Baker County, 137 Ga. 126 ( 72 S.E. 905); Smith v. Baker County, 142 Ga. 168 ( 82 S.E. 557); Caverly v. Stovall, 143 Ga. 705 ( 85 S.E. 844). As was said in the Early County case: "Counties have no territorial rights as against the State, and the statutory plan was not to settle a private dispute between the counties, but to afford means to the State in the delineation of the boundaries between its political subdivisions. If the decision of the Secretary of State is to have the ordinary force and effect of a judgment rendered in a judicial proceeding, then territorial rights would become vested, and the legislature could not make a change so as to disturb or alter the divisional line as adjudged by the Secretary of State. Whereas all the authorities concur, that, unless the constitution of a State otherwise prescribes, the legislature has the power to diminish or enlarge the area of a county, or change its boundary lines, whenever the public convenience or necessity requires."