(dissenting).
The right of Sheridan County to maintain an action for a survey of its eastern boundary is unquestioned, but I am unable to reconcile the law as it appears to me with that announced by the majority opinion this day filed. The question presented is* What is the eastern boundary of Sheridan County? Is it the true location of the 106th meridian west longitude, or is it the survey of such meridian which was caused to be made by Crook County in 1885 in an attempt to locate and mark its western line? The correct solution of this question depends upon whether the legislature created Sheridan County with reference to a located boundary line or with reference solely to the exact position of the meridian. There is no doubt that an examination of the various statutes creating the counties and defining their boundaries disclose that the legislature intended that the dividing line between Johnson, from which the territory embraced in Sheridan County was taken, and Crook County should be the 106o of longitude west from Greenwich. The correctness of the survey of that meridian which was made by Crook County in 1885 is here questioned. That survey was ex parte and in the absence of any legislation on the subject neither of those counties was bound thereby. It is conceded that the legislature is and was vested with exclusive power to create these political subdivisions of the state (then territory) and say where their dividing lines shall be. The legislature is also vested with equal power to change such boundary lines from time to time. It may make provision for the survey of such dividing lines and it may also validate an incorrect survey or adopt a survey which is or has been made without authority of law. Con*461ceding then that Johnson County was not originally bound by such survey the question occurs as to what if any effect subsequent legislation had upon the line so surveyed as a boundary line between Crook and Sheridan Counties and which had been theretofore surveyed by Crook County for the purpose of ascertaining its western boundary. The legislature only gave the data from which the boundary line between Crook and Johnson Counties could be run and located upon the ground. The 106° west longitude was simply data from which such survey could be made by a competent surveyor, and the survey when so made whether made by authority of law or not could be recognized, adopted or ratified by the legislature as the correct location of the dividing line. After Crook County had caused its western boundary survey to be made the act under which this suit is brought was enacted by the legislature. (Chap. 87, S. L-1886.) Such survey had then been in existence for nearly a year and it may be further said that Sheridan County was not created until more than three years after such survey was made. I am unable to concur in the construction placed upon the proviso of the first section of that act by the majority of this court. Generally speaking the act provides a method, for’obtaining the survey and settlement of disputed boundary lines between counties by a proceeding in the district court. It is a statutory proceeding not theretofore provided in this jurisdiction.- The proviso is as follows : ^'Provided, That the provisions of this chapter shall not apply to the county line between Crook and Johnson Counties, until the county surveyor of Johnson County shall have made a survey of this line, when, if the survey made by Crook County and the survey made by Johnson County shall not be made to agree, it will be settled in the same manner as other disputed boundary lines provided by this chapter.” This proviso is a recognition by the legislature of the fact that Crook County had made a survey of its western county line. The legislature had knowledge that such survey had been made and by the proviso the right to *462dispute the correctness of this survey under the provisions of this act was expressly withheld from those counties until Johnson County had surveyed its east county line and such surveys were found to disagree. My view is that whether the survey made by Johnson County disagreed with the one theretofore made by Crook County is immaterial in this case for the reason that neither of those counties so far as the record shows ever sought to make that fact judicially appear by the institution of a suit under the statute, and for another reason hereinafter stated. It was necessary to make that fact appear in any proceeding under the statute between those counties before the court could order a survey .of the county line between them. It is clear that in such a proceeding a petition which failed to allege such fact would be demurrable. Though there may have been a dispute upon the facts by which a right of action accrued, yet the law limited proof of such dispute to proof of a disagreement of such surveys — a disagreement that did not exist then and which could only arise thereafter. I think that the effect of the language of this proviso in withholding the right of these counties to maintain an action for a survey of their, common boundary line until a disagreement was found to exist in the line as surveyed by Crook County and the line as surveyed by Johnson County necessarily means until this showing could be judicially made to appear and was a limitation on the right of either county to question the correctness of the survey theretofore made by Crook County and in that sense was an affirmance by the legislature of the correct location of the 106o west longitude by the Crook County survey and binding on those counties and their inhabitants until an order should be entered approving a new and different survey in a suit under' the statutes by and between those counties. It is and was optional on the part of those counties to abide by the 'Crook County survey or have a resurvey made after the separate surveys were found to disagree, under and in pursuance of the statute, but for the purposes of county government and the admin-' *463istration of justice I think it was the legislative intent by the language of this proviso to bind both counties to that survey until a survey of such boundary was made and approved in a judicial proceeding for that purpose. To my mind it seems incredible that a mere disagreement between the surveys without further proceedings by either county invalidated the Crook County survey. The right to a survey of such boundary line could only be secured by an order of the court and such order was authorized only in case of a disagreement in the surveys theretofore made of that line. There is a wide distinction between an accrued right to bring an action, and the right which may be secured by such action. When a legislature withholds the right to dispute the survey of a boundary 'line it establishes that line as correctly located by such survey regardless of errors in the survey. When the line is established by law upon a contingency it shall be deemed and taken as correct until the happening of such contingency. I insist that an accrued right to maintain an action under this statute does not establish the object sought, viz.: the survey and settlement of a disputed boundary line without the intervention of a decree of court for that purpose. The decree approving a survey theretofore made in pursuance of an order of the court would establish the boundary line regardless of any and all other surveys theretofore made, whether such surveys possessed any validity or whether they were correct or not.
It is true that in the acts of the legislature creating Crook and Johnson Counties it was provided that the dividing line between those counties should be the 106o west longitude, but that act should and must be construed in connection with the proviso above quoted which in effect adopted the survey of the western line of Crook which had theretofore been made by that county, and to be regarded and binding upon those counties, as a correctly located boundary line until a survey was made and the line so run by such survey approved as the boundary line by a decree of court in a *464suit under the provisions of the statute, and until the happening of that event such surveyed line was established and constituted for all legal purposes a correct location of the meridian. Upon the organization of Sheridan County no right was reserved to Johnson County to dispute the correctness of the boundary between Crook and Sheridan Counties. The legislature had power to adopt so much of the surveyed line even though it had theretofore recognized it as subject to dispute between Crook and Johnson as the dividing line between Crook and Sheridan, regardless of whether it was a correct location of the meridian or not.
Our system of government requires that these county lines shall be marked upon the ground in such a way that they shall be visible and susceptible of proof, and if a line is so marked for that purpose and possesses any legal validity it can not be invalidated except by the marking of a line pursuant to an order of the court in a proceeding to establish the true boundary. The western line of Crook County had been surveyed by that county. That survey had been recognized by the legislature and its correctness had not been questioned in any judicial proceeding by that or Johnson County. In the absence of and until such proceeding, in so far as those counties are concerned, it should be deemed and considered for county purposes a correct location of the 106o west longitude and binding upon them and their inhabitants. There may have been error in such survey. The 1060 west longitude may not have been correctly located upon the ground, yet the act in effect declared that such survey was for the purpose of locating that meridian and should be deemed to be correct not alone until its correctness should be ¡properly assailed but until it is displaced by a correctly surveyed line under and in pursuance of a statutory proceeding therefor. It was by virtue of such proviso the' only physical boundary line in existence between Crook and Johnson Counties at the time of the creation of Sheridan County and in the absence of .any judicial proceeding on the part of either of those counties should be deemed *465and regarded as a correct location of the dividing line between those counties at the time and as they then existed. The power of the legislature in such cases is aptly expressed in Trinity County v. Mendocino County, 151 Cal. 279, 90 Pac. 685. In that case the dividing line was the fortieth parallel of north latitude. A survey of this line was made in pursuance of statute and one of the provisions of the act was “that the lines so run out, marked and defined as required by this act are hereby declared to be the true boundary lines of the counties named herein.” It was sought to dispute the correctness of the survey and the court say: “It is conceded that if, after the survey was made, the legislature had enacted a law providing that the line so marked should be the dividing line between the counties, it would, therefore, constitute such boundary, no matter how much it differed from the true line or position of the fortieth parallel, and that, even if such act was passed in ignorance of such mistake or error in the survey, it would make no difference in the survey.” It is true that in that case the survey was originally made under authority of law, but the case is nevertheless in point as showing the power of the legislature in such matters. It is also true that the survey made by Crook County was ex parte and further that there was no statutory provision for the survey of county boundary lines at that time. Had there been a joint survey by those counties neither would have been bound by any error committed in such survey, but the legislature could by enactment have • validated the line run by such survey, notwithstanding errors or mistakes' therein. I can see no difference in principle between the power of the legislature to validate as true, and bind the counties to, an incorrect 'survey of a boundary line purporting to have been made by authority of law and validating as a.' true location of a boundary line an incorrect survey which was made without authority of law. If it can do either it certainly can adopt and confirm as a correct survey a part of such line and leave the remaining portion of such line open to dispute.
*466Has Sheridan County the right to dispute the correct location of the meridian or is it bound by the purported survey of such meridian? If the legislature created the county solely with reference to such meridian it can. If on the other hand it was created with reference to a surveyed line of such meridian it is bound by the line so surveyed. The legislature in the act creating Sheridan County and defining its boundaries says: ‘'Commencing at the northwest corner of Crook County, thence south along the western boundary of Crook County,'’ &c. The word “boundary” has a well defined meaning. Webster defines it as “that which indh cates and fixes a limit or extent, or marks a bound, as of territory,” and “in its original or strictest sense, is a visible object or mark indicating a limit.” The word as used in this section it seems to me should be given its usual and accepted meaning. The act was with reference to the boundary of territory and I think referred to some visible, tangible object-or mark indicating a limit. The language imports more than a descriptive line, and while the meridian originally fixed as the western line of Crook County is not here mentioned, yet the act, it seems to me, had not only reference to the 106° west longitude, but also to the survey which the legislature had recognized for temporary purposes at least as a correct location of that meridian and to remain binding as a surveyed boundary line between Johnson and Crook Counties, and which could not be. invalidated or superseded except by a decree of the court approving a survey ordered by it in pursuance of the statute. I am all the more convinced of the correctness of this view for, as already stated, our system of government requires that these county lines shall be marked upon the ground in such a way that they may be visible and susceptible of proof. The creation of a county precedes its organization. Its creation must be from counties already created or organized. It is the policy of the law that when a county is organized it -shall possess all the powers incident and necessary to maintain its government. The state also is vitally inter*467ested in. this question as it bears upon the matter of the administration of justice. It does not seem reasonable that on -the creation of Sheridan County and when it became organized that the western boundary of Crook County as it had theretofore been surveyed and recognized by the legislature was not the one the legislature had in mind. If it was not, then great difficulty would result' both to the state and the defendant in the prosecution of a criminal case where the venue was made to depend upon the position of a meridian line in the absence of its projection, or of a survey which had been authorized by> law. In my judgment Sheridan County was, therefore, created with reference to a located boundary line, the notes of which survey are accessible by the parties as shown by the agreed statement of facts, and for that reason I am of the opinion that a survey of the boundary line between it and Crook County should be limited to retracing and rebuilding of such located boundary line and not to a re-establishment of the meridian which might be at a new or different place than that fixed by the former survey. If such surveyed boundarjr line was in fact incorrect as claimed by the defendant in error, then Sheridan County having been created with reference to such located line the change of the boundary between that county and Crook County to a line other than the one so located lies with the legislature and not with the courts. For the foregoing reasons I think the order should be reversed and the case remanded for further proceedings in accordance with these views.