                                                                     51



       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 holdsthe
Honorable Alton T. Freeman        agr66m6ntb6tW66qth6 OoUlltt66
County Attorxmy
Gaine8 county
Semlnolsa Tssae




                                                lch adjoin it to
                                                   nd re-e,stabllah-
                                                   comma line a-




                                    the matter la 'thatia
                                  aurvejor, 'presumably at
                                cOSllhW3&3MF,  lMd* a Orir-
                              .tba northwest corner or
                      y, I beliers, ad rrurve~ad  west to
                      00 State line, desigaatlngin said
                       rth Iins of Gaines and the south
                       y aud Toakum, uhleh survey was Wli-.
                       ed,by .theColati~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&6tSitioosdth Terry
          and Yoakum Oorrntieeto re-aonep the line between
          them 6ountlesand 6dnea County end ropre?#ented
                                by a mrve~ imtabllsh tlrs
          to thelnthat he,crot13.d
                                                              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 neaotiationewith Oalnea
         County to have a rq-eurvey-ofths lines. E.
         Harris was oontendlng that the line had ‘never
         been established The Commie6ionerstCourts 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
         territoryand 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. ‘liehave a diverent Cormala6ioners1 Court
         now rroolthe one which made these agreements
         and after investigatingthe matter the Court
         now reels that the other court viasmlslntowcrd
         by the surveyor and other8 on the whole,matter
         and especiallythe queetion or whether or not
         the boundary line had been eetabliahed We4are
         now contendingthat the boundary line ks en-
         tabliahedby 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 and by
          all the aountiea and the question I am trslng
          3
          to a tt1e n                          aa
Honorable Alton T. Freeman, Page 3


    hold the old line as the true boundem line
    between the oountles. This County la contem-
    plating a suit it neasasary to '6ptthe 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 the South Line or
    Yoakum county, the South I.28 of Terry county
    adjaoent to the North line of Gaines Corrntyaab
    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.adanxtusllyamed    that thensaid l.ineshould 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;.theSouth.llnea or the fol-
    lowing sections 6 and 9 Block a-6 aaros8 seotlon
    34 and alon< the South lines of %!A, 658, 56A, 568,
    37 and Z3SBBlook AX, SeotioAs m, 29, aad. Blook
    O-65, Seotlonrr19 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
                                                                    514



ionorableAlton 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
citingthis opinion, we .sxaminedths files or the Osnsral Land
:riosand thrre found a oarbon oopy of a letter written by
larles Rogan, Comnisslonerotths Generalhnd 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'letterthe Connissloner   said, Tou will ploess
ttiiyme when you will start iOr work, so that I pay.know when
,y shall beuin. Do not send either bond or ooiitraot  untlltliii
 irdor thts month, as the law under whioh this emplsylumt and
 ntract is made does not go Into sfisat until that day.' ~hsm
 Ialso a letter in the iilss written by Woods to th6 Com&slomr,
 .tedJuly 2, 1900, rererrl.ngtothe progrsas or ths work, asking
 r oertaln supplies and help, and for aertain field notes whioh
  nssded in maklnu the survey.
         The riold notes 0rth4 woods surrey are ala o&rile
  the Land orri00 wit&& oertlrlcate0r Charles Bogan, Ootis-
 oner, dated July 3, 1@02, to the stieot that *the iorsgolng
 eld notes are a true and oorrsat'oopyrrom the Held book af
 ate Surveyor D. F. Woods or a l.inai%n by him in 1900 from the
 rthwest corner of Fisher County to ths northwsst oornerof
 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 and marked
on the ground, miles 5, 7, 8, 10, 12, 15, 20, 21, 23, 25, SO,
32, 35, 3SBr40, 42, 45, 46, 47, 49, and the northwest corner
of Gaines County, saw being the southwestcorner 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 establishedby Twlchell, mile 70 north frolasoutheast
corner of New %zloo, a stone SW by 12" by 18" long set in the
ground". Typloal of woods* manner of marking mllelrand
corners on t,hepound 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 titleson 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 answeringthe sfnfrlegeneral question contained
                                                          other
in your letter, it Is necessary to discuss and answer 8011~)
questionswhich arise out of your particularfaot~s+at&n.~
                                                   .~
          One of the earliest deofelons of our Supreme Court,
touching on the aubjeot of the surveyingand establishingof
boundary lines between counties,and one which Is quoted Flthout
exception In subsequent oasea, is that of Jones 'I.Powers, 66
Tex. 207.  There, the Court dlsoussedithegeneral 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
    furnishinga method by which the lines or a county
    may be actually establlshsdupon the :@rouud,lt may
    be held ir the lines have once been deilnitelyfixed
    upon tha ground by an actual survef made. reported
Honcrable Alton T. Freeman, Page 6


     differ-entfrom the oue establishedat some rower
                 is only when It msy appear to the oouuty
                    t&n&.  or to the coaalssioneror the
     general land orrloe,~that the boundary, or a part
     or the .boundaryor 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 establishedIn 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 oountyline on the mound; but seem Intendedto
     RfVea means by which the line or lines w hs mado,
     &ilnUe and ebrtaln. and when so rendered, ia
     aooordanoe.tiththe statute, whether oorrsotfytuI$
     and marked or not, the statutory declarationthe%
     'the l%ne so run and marked shall therearterbe
     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 establishmentor soae other line.*
     (Emphasisourss). (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'onssud 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 dividingYoung and Bexar Temltor~se,
Aete Flrteen2h Legfslature, supras their bouudariee were :
describedtherelu 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 the northwest corner
oi Sowry County',Dawson County to.~beginat 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-sixthLegislature at its Flrat Called
Session, Genera) Laws or Texas, oh. 11, P. 29 (Gammel*aLaws 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 ,theAct pxvvlded that eertaln
tracts in certain named couutles, includingGaines and Terry,
should be surveyed and sectionizedunder 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'makea bond to be approved by ths
Oornmlsalonerand payable to tha Oovemor of Taxaa, aondltionad
ror the raithrul periormanoe o$ his duties as State Surveyor.
The Act made an appropriationfor this surveying.
          In our opinion, It was by authirlty of tha Soregoing
Legislation that.,@harleaRogan, then Commissionerof 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 the OolPmisalonercould 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'spurpose
was tc have looatdd, establishedand 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,nthe 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 aonclusivelyshow that the
line was %arked on the grouitd,m with both natural and artirlolal
                                                                 518


Bonorable   A.1ton f.   Pm: xan, Page   a


objects.  The comer murker and
                            - _ noat
                                 ----oi the lntenuedlate
                                               ._ _      markers
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 and mnrked on the ground “in accordancewith
    ” *by an notual mrvey, made, reported end approved*,Jonea
0. P&era, supra (quotationsare 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 accordanoewith lava”. &oe we find that woods did 60
survey, ?aarkand 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 frozeit, we oannot tall whetherMia 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-aatabilshiugthen“true linea w6a
ooncerned;they smrely agreed to, rrolpthet time on, reco&zo
the *true llnaw rather than a llns which hed bean arrcnaopsly
areoo~gniz:adw68 tha boundary lirre.
            However, you say that auoh la not the oaaa, that t&
line wraoo(mlzedby 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-
tablish” their boux&daryline along a line dtrmm       e-088 that :
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 intentionwas not to re-locate the 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 agreesnententered into between the counties g
their purpose was to agree on the 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 establishedby him on the ground,,yuas
*recoepizedby everyone,W,iaoludlngthe 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 ootintyboundaries of the oountles in
     thle,State as now _reoomleed and established
     are adopted as the true boundarfesol euoh
     oounties, and the alots,creatlmz
                                 _- auoh  aotmtiee
                                      ~~_._
                                          _.___._
     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 ~eonstltutionalltyor 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.Gourtin aaylnF tart ,ltwas.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 applioatlonto a
line or lines run on the ground In aooordanoewith 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 dlsaueslneArtlole 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 (utes-
    tabliahed and definitelymarked boundarJllno between
    oaunties theretofore.reaognized   apd establlshed~as
    the true line, and tbls Is true even thotlgaths~liae
    be tnoorreatly run.* (at p. 3l2'f. {~Rmphaeia  onrs).
                                                                  A
Honorable Alton T. Freeman, Page 10


Che oasc alao holds that the‘jurlsdlotlonof the Dlstrlat coprt
and Couuty Courts Is conourrentunder the Aot of 1899 (supra).
          Article IX, Seotlon 1 of the Constitutionot the State
of Texas, provides that no territory shall be detaohed froplone
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
aonstltutlonalliaitatlon just referred to Is on the Legislature.
The Legislaturehas ocaupleteoontrol over oounty boundaries,
subject o&y to oonmtltutionalllmltatlonsupon that power and
any control a ootmty has over its boundariesmust be given by
the LegLlature. Bunt County v. Ralnea.County,supra. Ob-
vloasly, than, the CommissionersCourt of Oalnes County aoted
not only with&t leglalatlve acthorlty, but ln a xamer wliloh
the 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 unaonstltutlonaland void.
          We now oome to the question,whloh Iron your letter
appears to be troubling you, namely, whether beoause of lta
agreementwith Terry and Yoakua Couutles, Oainee County will be
preoluded from reooverlng Ifs territory, lost to them. @me
the aotlon of the Uozmlssioners*Court vfaswithout any authority
and void, the oouut Is not bound by suah aotlon. Tarrant Go.
v. Rogan (01~. App.5 125 8. W. 592 (reversedand rendered on
other grounds).
          In our oplnlon, In vlem of the above elted aaae and
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; and It would see8
      a strange doatrlne to hold that, when they make UOU-
      .traotsin exoeaa of tholr powers, ooapllanoe,by
      them .wlthsuoh aontracts will, by eetoppel -6 re-
      latlon back, supply the power that was wanting in
      the 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
Honorable Alton T. Freeman,   Page 11


      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 establishadby State Surveyor D. S,
TioodsIn 1900, and rcoogulaedaa 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 neaesaerllyapply, under a different set of faota.
          Trusting that this aat~sfaotorllysuawerd your
inquiry, we are

                            Yours very truly
                        ATTORRRY URRERAL OFTEXAS




                                        Asslatant



     AppROV,Z]‘Aur;
                 3i, 1939
