County of Eureka v. County of Lander , 21 Nev. 144 ( 1891 )

By the Court,

Belknap, C. J.:

Mr. YYenban, the owner of real estate lying- near the boundary line of Eureka and Lander counties, and assessed by each county as within its jurisdiction, paid his taxes to- Lander county, under the law authorizing a taxpayer to pay either county. (Gen. Stat. Sec. 1205.) The county of Eureka, claiming that the assessed property is within its boundaries, brought this action to recover back the amount of money paid.

The statute creating the county of Eureka describes the boundary line between Eureka and Lander counties as follows: “ Beginning at a point on the north boundary line of Lander county, equi-distant between the northeast and northwest corners of said Lander county; thence running due south from said initial point to the south boundary line of said Lander county." Eureka county was required to establish this line at its own expense. (Stat. 1873, p 1Q7.) The line was accordingly established by Mr. Edwards, the county surveyor of Eureka county. His survey placed the disputed territory in Lander county.

At the time of the passage of the law creating Eureka county1 the north line of Lander county and its northeast and northwest corners had been established. As the position of the northwest corner is the principal matter of contention upon this appeal, the manner in which it was established may be stated. The statute creating Lander county designates the fortieth meridian as its western boundary. (Stat. 1862, p. 53.) The meridian1 is also the eastern boundary of Humboldt county. In the year 1870 the position of this boundary line was established by a joint survey of the county surveyors of the respective counties, made at the instance of the county commissioners, in pursuance of a statute requiring the establishment of boundary lines between counties by their surveyors whenever the positions of such lines are disputed by reason of the settlement of persons or ownership of property thereon. (Stat. 1866, p. 130.) Subsequently the northwest corner of Lander county was established by the county surveyors of Humboldt and Lander coun ties. The point was accepted by the county surveyor of Elko county, and the south boundary line of that county, which is the north line of Lander county, commences at this corner.

•This line and corner were established in order that certainty could be attained in questions touching the territorial extent of the jurisdiction of courts, of the right of taxation, and other matters of a public nature; and, having been established for the information and guidance of public officers and private citizens, their position was matter of public knowledge. When the legislature created the county of Eureka from the territory embraced within Lander county, and referred to the line and corners mentioned, it must be presumed to have acted with knowledge of these public facts. There was in fact no other north line or northwest corner of Lander county, nor was provision made for tli.e ascertainment of any other. The position of the line and corner was matter of interest to the counties of Elko, Humboldt and Lander, as well as Eureka, and, if the legislature hud intended any other, provision would probably have been made for a joint survey by the counties interested. But at this time no one had questioned the correctness of their position. •

Another act, framed at the same session, illustrates the understanding of the members of the legislature upon this subject. The act is entitled “ An act to define and establish the boundary line between Humboldt and Lander counties,” (Stat. 1873, p. 189,) and describes the portion of the line under consideration as follows:' “ Beginning at the northwest corner of Lander county, and running due south on the present line between Humboldt and Lander counties to a point due north of Battle Mountain station. * * *” The “ present line ” here mentioned was that made by the joint survey of 1870, because down to the time of the passage of this law no other line had been run, and the “northwest corner” could have been no other than that made by the intersection of the southerly boundary line of Elko county with the Humboldt-Lander line in the year 1871.

In the year 1887 it was discovered that the Humboldt-Lander line as fixed by the joint survey of 1870, was not at the fortieth meridian, but was one and a half miles east of it; and it results that if the north line of Lander county were extended westward so as to intersect the meridian, and the equi-distant point mentioned by the statute taken upon such extended line, the disputed territory would fall in Eureka.cotmty. But’ the error in the survey was not known until long after the enactment of the law creating Eureka county, and has no bearing upon the-question of the intention of the legislature. The intention must be ascertained from the facts existing at the time of the. passage of the law, and not from facts arising afterwards. At the time the law was framed the impression was that the position of the line and corner had been correctly ascertained, and they were, therefore, adopted by the legislature as fixed objects, from which the Eureka line could be established.

The judgment of the district court in favor of Eureka county is reversed, and the cause remanded.