Russell v. C. N. Robinson & Co. , 153 Ala. 327 ( 1907 )

DOWDELL, J.

— Whether the island known as ^‘Burkett’s” or “Brown’s” Island, in the Tennessee river, between the counties of Lawrence and Limestone, is a part of the former or latter county, is the pivotal question in this case. The question is presented by the' defendant’s plea in abatement addressed, to the jurisdiction of the circuit court, on which issue was taken and á veridiet was returned in favor of the plaintiff. The t'errh torial act of February 9, 1818 (Toulmin’s Dig. Laws Ala. p. 87, tit. 10, c. 15) provides as follows:

“Section 1. Be it enacted by the Legislative Council and House of Representatives of the Alabama Territory, in General Assembly convened, that the islands in the Tennessee river, within the lines actually run in the surveys already made, shall be deemed and taken to constitute a part of the respective counties established by law within said survey, and shall belong to such counties respectively, to the shore or river boundary of which they may be most near.

“Sec. 2. And be it further enacted, that the middle of said river Tennessee, wheresoever there are no islands, shall be deemed and taken to be the boundary line between the several counties established on its banks; anything in the law to the contrary notwithstanding.”

No statute since this enactment has been brought to our attention in any wise affecting the question before us, and hence it must be determined under the provisions of the territorial act. Counties are political subdivisions of the state, created for public convenience in the administration of government. Their territorial limits are fixed by the Legislature, and outside of constitutional provisions whatever of jurisdiction and powers they possess are derived from the same source. They have no power or authority to alter or change their territorial limits or boundary lines. This is a right reserved to the Legislature of the state, and to be exercised in the way prescribed in the Constitution. In fixing the status of the islands in the Tennessee river in reference to the jurisdiction of the respective counties along its banks, there can in reason exist no doubt but that it was the legislative intent to fix a permanent status. The inquiry, therefore, necessarily is: To which of the counties of Lawrence and Limestone, on opposite banks of the Tennessee river, was the island in question, under the provisions of the territorial act of February 9, 1818, “most near” at the time of its passage? The question is one of fact, dependent on evidence, and for determination by the jury, and not one of which the court can take judicial knowledge. As was said in Tidwell v. State, 70 Ala. 33: “The boundary lines of counties are but seldom marked by natural objects, or artificial monuments, discernible by the naked eye. Often they are referred to the lines of the government surveys of the public lands, and sometimes to places designated by names, which change or become obsolete. There is no provision of law requiring any survey and marking of' the boundaries, and a record of it as evidence of the fact. The boundary is, of consequence, subject to parol evidence; and, if its location is matter of dispute, generally it must be left to a jury to say where is its true location.” — Doe ex dem. Miller v. Cullum, 4 Ala. 576.

In the case before us there is no record memorial of the measurement of distances from the island to the respective shores of the two counties at the time of the enactment of the statute, and after so great a length of time the presumption naturally obtains that all witnesses then living are now dead. In the absence of direct evidence of measurements and the ascertainment of distances showing to the shore of which county the island was “most near” at the date of the act in question, a fact upon which the jurisdiction of' the rightful county for governmental purposes attached, it would seem that no higher and better evidence could be offered than that of the assumptive and continuous exercise of jurisdiction over the territory by one county for many years, extending back beyond the memory of living Avitnesse, and which jurisdiction was acquiesced in by the citizens of both counties to a comparatively' recent time. Again quoting from the case of Tidwell v. State, supra: “The territorial boundaries of public municipal jurisdictions; when they groAV to be ancient, are unmarked by artificial monuments, and, Avhen there is not of them higher evidence, may be proved by general reputation. — Morgan v. Mayor, 49 Ala. 349; 1 Phil. Ev. (C. & H. Notes) pp. 218, 219, note 87. Long, continuous, uninterrupted user, when lines and boundaries depend upon statutory references to 'physical - ob jects which, are'not well defined, is'a practical .interpretation, of the statute courts must ádojit or involve the ■ citizens relying- upon it in ' embarrassments and'.uncertainties,' not. only as to rights of property,.-but -as do- personal 'rights.” — Dillon on Mum Cor. §..125, note 1. The recordation of ancient deeds and conveyances of land situate indhe disputed: territo-r ¡py'ima particular: county, and ancient' records of tax assessments' shewing that the property was assessed for taxes for a particular county,' and like facts tending tb show assumption and.exercise of jurisdiction and'acquiescence! therein by the. citizen, aré relevant and competent'facts in evidence.." - • !"

■:; In this case- the evidence without dispute show's' that the county of Lawrence from a time'beyond the rhemory of living witnesses down to the year 1895, wThen the dispute between the two'counties arose, exercised exclusive control and-jurisdiction over the island, which was acquiesced-in by-the citizen's of both counties, as well as those resident upon the island. In 1895, when the dispute arose, actual measurements wmre then made, which showed-that the island at the time of such measurement was nearer the Limestone 'county shore than the Lawrence county shore. But it was also shown in evidence that since-1875,; and- prior to 1895', the United States ■government- had ’¡for 'navigation • purposes constructed dams and--widened :ther channel ■ of - the Tennessee river betAveen the island and the Lawrence county shore; the effect of which was to widen the river and materially change the shore line of LaAvrence county. These .facts Were all properly submitted to the. jury >

The defendant sought to introduce in evidence what Avas claimed to be the record of an arbitration and aAvard betAveen the tAvo counties, had in 1896, settling the dispute over the island territory. Pretermitting the question as to Avhether the county is authorized under the laAV to submit to arbitration and aAvard the question of territorial limits and boundaries, it is sufficient to say that that Avhich was offered in' evidence as an arbitration and aAvard Avas irregular in many respects, and therefore void. Indeed, there Avas no aAvard, except Avhat Avas sought to be shoAvn by parol. The evidence offered of the assumption and exercise of jurisdiction by Limestone county over the island since 1895 Avás based solely upon pretended rights resulting from the alleged arbitration proceedings. There Avas no pretense that prior to this time there had ever been any assumption and exercise of jurisdiction by the county of- Limestone. On this state of facts,, this evidence. AAras properly excluded^, on the objection of the plaintiff. ’

The defendant sought to justify the alleged trespass .on the ground that he seized the property as tax collector of Limestone county for taxes past due on assessment by the plaintiff to that county. ' Conceding this to be so, he was not authorized by the law to go into, another county and in person to execute his process.— Stephenson v. Wright, 111 Ala. 579, 20 South. 622. The jury having found issue'in favor of the plaintiff as to ¿he island being within the jurisdiction of LaA\rrence county and forming a part of that county, the defendant failed to support'a material averment of his pleas, namely, that the seizure of plaintiff’s property by Mm as tax collector was done in Limestone county.

We are unable to see that the court in its rulings committed any error prejudicial to the right of the defendant, and the judgment will he affirmed.

Affirmed.

Tyson, O. J., and Simpson and Denson, JJ., concur.