### 51

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

HonorableAlton T. Freeman County Attorxmy Gaine8 county Semlnols

a Tssae 6.19-‘42 Gain66 CountyV T8rry Countyat al, 162 8. II. 609, point 2, where the court a@'606 with thir opinion in 6ofw 66 it holds the agr66m6ntb6tW66qth6 OoUlltt66

lch adjoin it to nd re-e,stabllahcomma line athe matter la 'thatia aurvejor, 'presumably at cOSllhW3&3MF, lMd* a Orir- .tba northwestcorner 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 surveywas 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&6tSitioosdth 

### Terry and Yoakum Oorrntiee to re-aonep the line between them 6ountlesand 6dnea County end ropre?#ented to theln

that he,

crot13.d 

### by a mrve~ imtabllshtlrs5:

HonorableAlton 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-ofths lines. E. Harris was oontendlngthat 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 countieswhich took oti 6ome of Gaines County’8 territoryand gave it to the other counties. The surveywas filed in the Land tfi ml since 1956 hae baen reoogulzed, by’the’gd Oi

### ri00. ‘lie

have a diverent Cormala6ioners1 Court now rrooltheone which made these agreements and after investigating the matter the Court now reels that the other court vias mlslntowcrd by the surveyorand other8 on the whole, matter and especiallythe queetion or whether or not the boundary line had been eetabliahed We4 are now contendingthat the boundary line ks entabliahedby the suriey in 1900 and ae reaoanized and used for all DUTDOBMI until 1?55 and that fame should not hare been changed,aeiat a8 Gaines County was aonoerneaupon au agreement pronptedby mielnfonnatlon.

*I MI enoloalnga copy of all the ~proceed-~ lnge had in oonneotionwith 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 establishedline both by surxfep ~reoognl.eed In tb Land Orfioo tar thirty-riveyears and by all the aountieaand the question I am trslng 3 to a tt1e n aaHonorableAlton 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 '6ptthe line beak to where it was In 1935 pridr to the ohange.R

You enolosdda 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 aotlonof 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 oouslderedthe matter ot legally -permanently establlshl Yoakum county, the South I.28 the South Line or of Terry county adjaoentto 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 returnsmade permanently establishIn&said line by agreementas 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 hereafterbe located along the present surveyed sections; .the South.llneaor 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-WesttaA@nt IA line north-southOS 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 Countiesand lands South of mid South lina of said Seotlons shall be essesssd as in Gainas county.
"The Colpmisslonerst or eel6 Couutlashaving jointlysmploysdA. IN Harris, Surveyoror 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 theretoas set out in ml6 proporalhereto attaqhsdand 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 .sxamined ths files or the Osnsral Land :riosand 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, contractto.be sigesd by Mr. Woods end a bond to bs made by .m. In that'letterthe Connissloner said, Tou will ploess ttiiy me when you will start iOr work, so that I pay.knowwhen ,y shall beuin. Do not send either bond or ooiitraot untlltliii irdor thts month, as the law under whioh this emplsylumtand 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, .ted July 2, 1900, rererrl.ngto the progrsasor ths work, asking r oertaln suppliesand 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 CharlesBogan, 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 SurveyorD. F. Woods or a l.ina i%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 rtheastoorner of Gains& County with a limestone,marksd l!$WD

### 515

HonorableAlton 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 proceededrest 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 northwestcorner of Gaines County, saw being the southwestcorner of Yoahrm 0ouuty;In the east line of State of,WewHerioo and tied his corner Into several objects on the ground as well as "a manument establishedby 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 markingmllelr and cornerson t,he

pound was to dig a pit,build a mound, drire a stake ln It and bury a bottle In the mound containinga slip of paper describingthe point, with ths date and his name and titles

on It.
Photostaticcopies of the letters and Woodi*report, obtaluedby us rrom the Land Office, are enclosedherewith.

A copy of the reportmade by A. L. Harris on his survey,filed in t&s Oeneral Land OfficeJune 12, 19S6, has also been examinedby us, but Is not enclosed since you hare a copy.

Before answeringthe sfnfrle general questioncontained in your letter, it Is necessaryto discuss and answer 8011~) other questionswhich arise out of your particularfaot~s+at&n.~ .~ One of the earliestdeofelonsof our Supreme Court, touchingon the aubjeot of the surveyingand establishingof boundary lines between counties,and one which Is quotedFlthout exception In subsequentoasea, is that of Jones 'I. Powers, 66 Tex. 207. There, the Court dlsoussedithe generalAct providing the wanner In whloh the true poeitlon of the line between countiesmight be determined, Acts 1879, Ch. 129, p. 137 (cammels zys or Texas, Vol. 8 p. 1457). This Act remains unchangedtoArticles TheoCourtsaid:

1582-1590,

Revised Clril Statutes of Texas, 1925.

qnder all the laws made for the purpose of furnishinga method by which the lines or a county may be actuallyestabllshsdupon the :@rouud, lt may be held ir the lines have once been deilnitelyfixed upon tha ground by an actual survef made. reportedHoncrableAlton T. Freeman,Page 6

differ-ent

from the oue establishedat some rower is only when It msy appear to the oouuty t&n&. or to the coaalssioner or 

### the general land orrloe,~thatthe boundary,or a part
or the .boundary

or a oounty *is not sufflclently deflalteand 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 accordancedth it cannotbe said to be indeflnlt

to time to county coumlssloners~ oourts to aorreofi what may hate been lneorreotin the establlshuumt 

### or a 

### oountyline 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 oorrsotfytuI$ and marked or not, the statutorydeclarationthe% 'the l%ne so run and marked shall therearter be regarded a8 the true boundary line between the oountiee',.

oufht'tobe given idll erfect and pala as a prohibitionto any further aotion looking to ths establishment

or soae other line.* (Emphasisourss). (At p. 213).
The above lauguagewas quotedwfth approval ,in,y&nt County 7. Baines Couuty, 116 T. 277, 288 S. IF. 805, answerdng oertliiedquesti'ons ud approvingC. 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 urorlslonsof the Reneral statutoryprorisioaabove 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 Countiesalong with a number of other8were created-bydividingYoung and Bexar Temltor~se, Aete Flrteen2hLegfslature,supras theirbouudarieewere : describedtherelu but ~theusual provlsionV (Eunt OoMty t. ialnes County,.eupra) tar aurveyiagand 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 norttiestaorner of BOIY~~B Couuty, and Gaines Qeunty to begin at tM northwestHonorableAlton T. Freeman,Page 7

corner of Dawson County and for the northwestoornar of Gal,nea County to be coincidentwith the southwestcorner of Yea County In the 103rd meridian,and that this was the order and manner of locationused by 1R'ooda.

The Twenty-sixth

Legislatureat its Flrat Called Session, Genera)Laws or Texas, oh. 11, P. 29 (Gammel*aLaws 

### or Texas,Vol. II), passed the **Act** adjustingand settling the controversybetween the permanentschool fund and the State cf Texas growing out 

### 0r ths division

### 0r the public domain, which was approvedFebruary Z3, 1900, to take effect ninety days after adjournment. Section J of ,the **Act** pxvvlded that eertaln tracts in certainnamed couutles, includingGaines and Terry, shouldbe surveyedand sectionized under directionof **the** General Land Ofrice., berore being placed on ths **market** rcr sale. Seotlon 4 authorizedthe Oonrmlaaloner of the Gemral Land Oiiioe tc employ auah surveyorsas he deemed necessary to Rsurvey,seotlonlzeand return field notes into the General Land Orfloe or such lands?and that such surveyors,

### lr not, alreadyunder bond, ahould'makea bond to be approvedby 

### ths Oornmlsaloner

and payable to tha Oovemor of Taxaa, aondltionad
**ror** the raithrulperiormanoeo$ his duties as State **Surveyor.** The Act made an appropriation for this surveying.

In our opinion, It was **by** authirltyof tha Soregoing Legislationthat.,@harlea Rogan, then Commissionerof the General Land Orrloe employed Col. D. 5. Woods in 1900, tc make his awso rar as the facts 

### beroreus show .the line between G%y and Gaines Countleahad never been%urveysd before the Woods survey. -Before

### the OolPmisaloner could properlydescribe the school lands tc bs sold in Oaines and Terry ~ountlea,he had to know which countiesthey were in, which would, of course,necessitatethe 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-nineand a fractionmllea 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.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 Countyweti definite- &eatabllbhed and mnrked on the **ground** “in accordance with ” *by an notualmrvey, made, reportedend approved*,Jonea 0. P&era, supra (quotations are lewuep,eof 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, containsR finding,with referenceto the line in question, “that said boundary litaa has never been detlned,surveyed marked and,duareturns tharaoi 

### made in accordanoe with lava”. &oe we find that woods did 60 survey, ?aark

and eatubllahtha bounaary line, It la our oplnlon that the oourt *s findlag la in error. The order contelnsno rderenoe to the line surveyedby Eooda and iron its faoa, does not show that the oourt purposed 

### to put Its *e&read-line* on the old Xoods line. 

### Tha ordercontains a deaoriptlon 

### ot the -agreed line”, but froze it, we oannot tall whetherMia 1W would oofncldawith the Woods llue or not. It the *a-ad Uaa* does oolnoldcwith the koode line then the oourtamerely 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 boundarylirre.
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 deaorlbase 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 alreadybeen ~e5tabliahadmr This, they he4 n0 authorityto do. Jones 

### Y. Powera, auprai 

### Hunt Co. Y. Ralnaa co.* augra.

lime that their intention was not to re-locatethe Woods line, but to establisha line which had never been eatabllahed. Thi, belnr, the ease,we will pass without anawerlngtha questionof the effect of the agreesnent entered into between the countiesg their purposewas to agree on the location of the llae as Bur-Honorable Alton T. Freman, Page .9

veyed by Woods.

Another and even strongerreason for tim abtie holding is that the line surveyedby Woods and whioh m hold to have been marked and establishedby him on the ground,,yuas 

### *recoepizedby everyone,W,iaoludlng the Commlssloners* Co&s of the counties named and tba Qeneral Land Offloe;whloh bring8 yxmr ease within the provisionsOS AHSole 1606, Revised Civil Statutes or Texas, 1926, a cusatlve statute, whloh w quote In full:

Vhe ootinty

boundariesof the oountles in thle,State as now _reoomleedand established are adopted as the true boundarfesol euoh oounties, and the a _- ~~_._ _.___._ lots,creatlmz

auoh aotmtiee and boundaries are oontlnuedin 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.Gourtin aaylnF 

### tart ,ltwas.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 applloableto suoh a oaae aa la before us. This Artlole Is not limited in Its applioatlonto 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 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 'thedlatrlot o&rt to undertake to ohange (utestabliahed and definitelymarked 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).

AHonorableAlton T. Freeman,Page 10

Che oasc alao holds that the‘jurlsdlotlon of the Dlstrlatcoprt and Couuty Courts Is conourrentunder the Aot of 1899 (supra).

Article IX, Seotlon 1 of the Constitution ot the State of Texas, provides that no territory shallbe detaohed fropl one existing county and attaohed to another exlstlugoounty,rlthout a favorablevote OS a majority of the e?eators in eaoh aouuty. The~factsdo not show that euoh tm eleotlon waa held. The aonstltutlonal

liaitatlon just referred to Is on the Legislature. The Legislaturehas ocauplete oontrol over oounty boundaries, subject o&y to oonmtltutional llmltatlonsupon 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 OalnesCounty aoted not only with&t leglalatlveacthorlty,but ln a xamer wliloh the Leglsmoanot authorizebeoauee 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'sterritoryand gave It to the other oountlesa, to be unaonstltutlonal and void.

We now oome to the question,whloh Iron your letter appears to be troublingyou, namely, whetherbeoause 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 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 (reversedand rendered on other 

### grounds).

In our oplnlon, In vlem of the above elted aaae and the aase of Blaokburnv. 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 blaakbuxnda+, the oourt :
"nnlm natur+ pers.Qns, corporations,

whAther private or muMol~a1, possess only au&powers as are oonferrednpon them by law; and It would see8 a strangedoatrlne to hold that, when they make UOU- .traots in exoeaa of tholr powers, ooapllanoe,by them .wlth

suoh aontractswill, by eetoppel -6 relatlon back, supply the power that was wanting in the first lnstanoe,even though such laok Of parer results iram a mandatoryprovisionof the Constitutlon deolaringthat suoh power shall not exist. It 1s not believed that the dootrlne of estoppel shouldHonorableAlton T. Freeman, Page 11

be carried to suoh an extent." (at p. 82).

It follows that the answer to the broad questionasked **by** you is that the line establishad by State SurveyorD. S, Tioods In 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 importantin a aasa, or this kind, aud the toots quoted from your letter, plus those aaaertalnedby us, are the baals of this opinion. This opinion would not neaesaerlly apply, under a different set of faota. Trusting that this aat~sfaotorlly suawerdyour inquiry,we are

Yours very truly

ATTORRRYURRERAL OFTEXAS

AppROV,Z]‘Aur;

3i, 1939 Asslatant