The facts are sufficiently stated in the opinion. *Page 249 Action in equity to establish the boundary line between plaintiff and defendant. The complaint sets out, by reference to fixed points and monuments, what the plaintiff claims to be the true line, as established by the joint action of the two counties, and as afterwards recognized and fixed by the legislature; that subsequently, under the act of March 2, 1887 (Stats. 1887, p. 97), directing the surveyor-general to make a survey of the railroads in this state, and to place monuments at the points where any railroad crosses a county line, that officer placed a monument at a point on the Central Pacific railroad two and seven-twentieths miles west of where the true boundary crossed that road, and that thereby a contention has arisen between said counties as to where the true line is, and that each claims Jurisdiction over the territory lying between those two points and extending the entire length of the boundary between them; that the defendant claims jurisdiction over the tract, and during the years 1892 and 1893 has assessed the property situated therein for the purpose of taxing the same, has collected the taxes thereon, and claims the right so to do.
The defendant demurred, upon the grounds that the court had no jurisdiction, and for want of facts sufficient to constitute a cause of action. The demurrer was overruled, and a decree entered fixing the boundary in accordance with the allegations of the complaint. The correctness of the ruling upon the demurrer is the only point necessary to be noticed to dispose of this appeal.
In many of the states the legislatures have provided specially for ascertaining and fixing the boundaries of counties where they are in controversy. They have sometimes conferred jurisdiction in such cases upon the courts, but that has not been done in this state. We have several statutes bearing upon the matter (Gen. Stats., sec. 1854; Stats. 1862, p. 93; Stats. 1866, p. 130), but none of them give any power to the courts to settle the controversy. In the absence of a statute to that effect, we have been cited to no precedent sustaining such an action upon the part of one political organization *Page 257 against another, and, after a somewhat diligent search, we have been able to find none, except that of Edwards Co. v. White Co., 85 Ill. 390, where the point does not seem to have been raised or considered. Lyon Co. v.Washoe Co., 8 Nev. 177, was dismissed in this court for want of proper service of the notice of appeal, and an examination of the record shows that the question of jurisdiction was not raised nor passed upon even by the lower court. Under these circumstances, we have been compelled to resort to the principles established in such actions between private owners, feeling that they are at least analogous, and that, if the action could not be maintained between individuals, no sufficient reason has been suggested why it should be between counties.
In cases where boundaries have become lost, confused, obliterated, or obscure, courts of equity, by granting commissions to ascertain the lost boundary, have exercised jurisdiction from very early times. Its origin is uncertain. It is sometimes supposed to have been derived from two ancient writs, long since abolished (3 Pom. Eq. Jur., sec. 1384); at others, it is claimed as coming under the head of accident (Tyler, Bound. 266); and, again, that consent is the ground upon which it was first exercised (Speer v.Crawter, 2 Mer. 410, 417).
Whatever it may have been, it is certain that at the present day the mere existence of a disputed boundary, even though lost or confused, is insufficient to give a court of equity jurisdiction. In addition, there must be some equitable circumstance shown, which has arisen from the conduct, situation, or relations of the parties; such as that the boundary has become confused through the fraud of the defendant, or that the duty of preserving it rests upon him, or that it will avoid a multiplicity of suits. In Speer v. Crawter, supra, Sir William Grant, M. R., stated the law as follows: "But on what principle can a court of equity interfere between two independent proprietors, and force one of them to have his rights tried and determined in any other than the ordinary legal mode in which questions of property are to be decided? In some cases, certainly, the court has granted commissions or directed issues on no other apparent ground than that the boundaries of manors were in controversy. In Wake v. Conyers, 2 Cox, 360, however, *Page 258 Lord Northington held that it was in the case of manors that the exercise of the jurisdiction, which, he says, 'had been assumed of late,' was peculiarly objectionable. He refused either to grant a commission or to direct an issue. So did Lord Thurlow in the case of two parishes (St. Luke's v. St. Leonard's, 2 Anstr. 386, 395.) In the same case of Wake v. Conyers, Lord Northington says that, in his apprehension, this court has simply no jurisdiction to settle the boundaries even of land, unless some equity is superinduced by act of parties. I concur in that opinion, and think that the circumstance of a confusion of boundaries furnishes per se no ground for the interposition of the court."
The authorities to the same effect are numerous and practically unanimous. See Love v. Morrill,19 Or. 546, and authorities therein cited; King v.Brigham, 23 Or. 262, and authorities therein cited;Ashurst v. McKenzie, 9 So. 262;Wilson v. Hart, 98 Mo. 618;Doggett v. Hart, 5 Fla. 232;Bressler v. Pitts, 58 Mich. 348;Wetherbee v. Dunn, 36 Cal. 251; Norris'Appeal, 64 Pa. St. 279; Tillmes v. Marsh, 67 Pa. St. 510.
It must be taken as settled that a court of equity does not have jurisdiction of a question of boundary simply because it is in dispute; and passing by the proposition that the complaint here shows no lost or confused boundary, but, on the contrary, that the boundary is well defined and marked, we pass to a consideration of the question whether any other fact is shown that brings it within the rule. We think there is not. In addition to the fact of a dispute, the complaint simply alleges that the defendant is claiming jurisdiction over the disputed tract, is collecting taxes upon the property situated therein, and claims the right to continue so to do. All this does not confer equity jurisdiction. It certainly would not even if the county owned the property illegally taxed (Cooley, Taxn. 760); and much less should it do so where the most that can be said is that the defendant is illegally collecting money for taxes from some of the taxpayers in the plaintiff county. It is not shown that Humboldt county has not been paid all the taxes upon that property due to it, nor that it ever has lost, or ever will lose, a dollar by defendant's wrongful action, although we do not mean to intimate by that that the court would have jurisdiction were that fact shown. *Page 259
It is argued, however, that a court of equity should have jurisdiction because the settlement of the boundary is of great importance to both counties and to all living or owning property in the disputed tract; that it is highly important that it should be known to which county it belongs, because the right to prosecute crime, to serve process therein, the exercise of the elective franchise, and many other rights for and against people and property therein, all depend upon that fact. All this may be freely admitted, but, aside from the fact that none of them are grounds of equitable jurisdiction, it is, perhaps, one of the greatest objections to this action, as it seems to us, that it settles none of these questions. We know of no principle upon which it can be claimed that the decree entered in this action determines the situation of the boundary as against any one not a party. It would not even he admissible for or against either party to a criminal proceeding, to an action to recover delinquent taxes, or in an election contest; nor would it prevent the assessor of Lander county from assessing property therein. The law fixes the boundary. All that a court could possibly do would be to determine the fact of where it is so fixed, and as upon this would often depend very important rights of others, of which they could not be deprived without their day in court, judgment upon the point can conclude no one not a party to the action.
It is unnecessary to determine how far, if at all, manors and parishes in England are public corporations, so as to make the decisions there concerning their lost or confused boundaries in point in this action; but they are, at least, somewhat analogous, and as will be seen from the citation from Speer v. Crawter, supra, it is in such cases that the exercise of jurisdiction by a court of equity is pronounced particularly pernicious.
After a careful consideration of the points presented on this appeal, we are satisfied that the court erred in overruling the defendant's demurrer. It is therefore ordered that the judgment of the district court be reversed, and the demurrer to the complaint sustained. *Page 260