51 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Alton T. Freeman 

County Attorxmy 

Gaine8 county 

Semlnols a Tssae 

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 

agr66m6nt b6tW66qth6 OoUlltt66 

lch adjoin it to 

nd re-e,stabllahcomma line athe matter la 'that ia 

aurvejor, 'presumably at 

cOSllhW3&3MF, lMd* a Orir- 

.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 @enice, 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 
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 Oiri00. ‘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 entabliahed by the suriey in 1900 and ae reaoanized 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 contemplating 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 purported 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 retarns 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 permanently 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 present surveyed sections; .the South.llnea or the following 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 
514 

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 YoakumTarry 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, 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&& oertlrlcate 0r Charles Bogan, Ootisoner, dated July 3, 1@02, to the stieot that *the iorsgolng 

eld notes are a true and oorrsat'oopy rrom the 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 and 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 manument 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, 66 

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 toArticles 

TheoCourt said: 

1582-1590, Revised Clril Statutes of Texas, 1925. 

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 the lines have once been deilnitely fixed 

upon tha ground by an actual survef made. reported 
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'onsud 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 dismissed); 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 and 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 the northwest corner 

oi Sowry County', Dawson County to.~begin at the norttiest aorner 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 controversy 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 awso 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 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. Thererore, 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 
518 

Bonorable A.1 ton 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 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 *emtablish” their boux&dary line 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 intention was 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 agreesnent entered 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 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, Revised 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 

oounties, and the a lots,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 ~eonstltutionallty or ths Soregoing statute, whloh may have arisen as a result of tim ~dlssentlng aplnloo In Huut v. Rslnes county, (a. a. A.), eupra. or 

the languses of the Supreme.Gourt in aaylnF tart ,lt was.Vonstltutfonel 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 before 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 establiahed 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 
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. Obvloasly, than, the Commissioners Court 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 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 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- 

.traots in exoeaa of tholr powers, ooapllanoe,by 

them .wlth suoh aontracts will, by eetoppel -6 relatlon back, supply the power that was wanting in 

the first lnstanoe, even though such laok Of parer 

results iram a mandatory provision of the Constitutlon 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 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 aaaertalned 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 

AppROV,Z]‘Aur; 3i, 1939 

Asslatant