Humboldt County v. Lander County

56 P. 288, 24 Nev. 461

• Court: Nevada Supreme Court
• Decided: January 5, 1899
• Docket: No. 1551.
• Status: Published

Opinion

By the Court,

Massey, J.:

This action was brought to recover certain taxes assessed against miles of railroad track and right of way belonging to the Central Pacific Railroad Company, which had been paid by the company to the appellant. It is shown by the complaint that the 2-fVo- miles of railroad and track were assessed by the county assessors of both the respondent and appellant for 1895; that the locality of the said property is disputed, the appellant claiming that the same is within its limits, and the respondent claiming said property is wholly within its limits; .that the railroad company, having been assessed in both counties, selected and elected to pay to said Lander county the taxes for that year, and did not pay to Humboldt county the taxes assessed against said property during that year. Demand against Lander county for the amount is alleged to have been made, and said demand refused; and a claim was presented for the same to the board of county commissioners of Lander county within the time limited by law, and disallowed.

The appellant, by way of answer, denied the material averments of the complaint, and set up, as special defense, that the appellant was in open, actual and notorious possession of the railroad track in dispute, and for more than five years previous to the commencement of the action, and previous to the presentment of respondent’s claim, it had been in the possession of said property, exercising control and ownership thereof, levying, assessing and collecting taxes thereon, and for more than five years had so done previous to the time the respondent had asserted any right or claim to tax the property.

The facts were all stipulated, and were, in effect, that Humboldt county, prior to the year 1887, taxed all the territory lying west of the Van Lynip boundary line between these counties; that in the year 1887 the surveyor-general established a monument on the Central Pacific railroad track 2TV5- miles west of the Van Lynip monument on said railroad, and designated the same as marking a boundary line between the counties; that subsequent to and including said year of 1887 the respondent did not assess the 2-i8(/i-0- miles of railroad track between the Van Lynip monument and the monument erected by the surveyor-general, until 1893; that since and including the year 1887 Lander county has assessed and taxed the disputed property, and collected the taxes on the same, up to and including the year of 1896, and has assessed the same for the year .1897; that since and including the year of 1893 the respondent has assessed and taxed the disputed property, up to and including the year 1897, but has never collected the taxes, and has at all times assessed and collected the taxes upon all other property between the Van Lynip and surveyor-general’s monuments; that the Van Lynip line was established in 1870 by the joint survey of the parties, and was acquiesced in up to the year 1887, when the surveyor-general established the monument above referred to; that the said miles of railroad are on the west side of the Van Lynip line, and on the east side of the monument established by the surveyor-general; that the railroad com pany paid the taxes for the year 1895 to the appellant, and not to the respondent, and also the taxes on the disputed property for the years 1887 to 1896, inclusive, to the appellant; and that the claim of the respondent as set forth in the complaint was duly presented to the board of county commissioners of the appellant for allowance on the 17th day of January, 1896, and was rejected and disallowed by said board on the 4th day of May, 1896.

The court, upon these facts, rendered judgment in favor of the respondent; motion for new trial was interposed and overruled, and this appeal is from the judgment and the order denying the appellant’s motion for a new trial.

It will be seen from the stipulation that the boundary line between Humboldt and Lander counties was established under authority of law in 1870 by the joint action of the counties, in which both acquiesced for a number of years; that the line so established was known as the Van Lynip line, and that the 2-1?Ts?>- miles of road in controversy were in Humboldt county, as shown by the lines established by that survey.

In 1887 the legislature passed an act requiring the surveyor-general of the state to make a survey of all railroads in the state which extend from one boundary line to the other, and determine the number of miles of main and side track in each of the counties of the state; to place monuments at all points where such railroad crosses any county line, and mark on the sides of such monuments, facing the respective counties, the name of the county and the number of miles of railroad in such county; the number of miles of main and side track, thus ascertained, shall be filed in the office of the secretary of state, and a copy of the same filed with the county recorder of each of the counties through which said railroad extends. The second section of the act provided that when the survey was completed, and the map of the same was filed, as required in section one, it should be prima facie evidence in all the courts of this state of the facts therein contained. (Stats. 1887, p. 97.)

It appears, as a matter of fact, that the survey made by the surveyor-general under this statute placed the monument 2/05u miles west of the line established by the joint action of the counties in 1870, and, from that time until the present, Lander county has asserted the right to assess that part of the railroad lying between the monuments, although not claiming or exercising the right to assess the other real property lying between the lines made by the same. At the time of the survey made by the surveyor-general, there was no dispute between the counties as to the true boundary line.

They had lawfully adopted and acquiesced in the line as established by the Van Lynip survey, and, so far as it appears from the facts, it marked the true boundary. Neither was the surveyor-general authorized or directed by the act of 1887 to establish new or other lines, and, from the facts as stipulated, his act in erecting a monument at the point indicated was clearly the result of some mistake not made apparent by the record. Nor was the act intended to change in any respect the boundaries of any of the counties as they already existed.

Furthermore, it was not intended that the survey made by him should be regarded or considered as conclusive; otherwise, the effect of the maps and survey would not have been limited to prima facie evidence of the fact recited therein, and, inferentially, authority given to contradict those facts. Neither county regarded and treated the line established by the survey made by the surveyor-general as conclusive, as the stipulated facts show that Humboldt county continued to exercise its right to assess all property other than the 2tVcr miles of railroad within the disputed territory; and Lander county, for some reason, wras satisfied to claim the disputed right to assess the 2x305(r miles-of railroad. It therefore follows that the true boundary line having been established by the joint action of the appellant and respondent in 1870, under authority of law, and acquiesced therein, and the act of 1887 not being an act authorizing the establishment of a new line, or to change the line already established, or to change the boundaries of the counties as they then existed, and the acts to be done by the surveyor-general not being conclusive, or intended to be conclusive, of the facts to be established, within the true scope of the act, and the 2x3<rsil-miles of railroad being, within Humboldt county, they were properly taxable therein under our law.

But it is claimed that the acquieséence of Humboldt county in the exercise of the right of Lander county to assess the property from the years 1887 to 1893, inclusive, estops the respondent from questioning the boundary line fixed and determined by the surveyor-general. The claim is undoubtedly a correct statement of the rule, and should govern in a proper case.

In one of the cases cited by the appellant in support of its claim, in an action to determine a disputed boundary line between counties, it was held that, where the language in an act fixing the boundary line between two counties was so ambiguous as to create a doubt as to where the line was to be established, it would be proper, in solving the doubt, to consider the acts of courts, assessors, collectors of taxes and other officers having duties to perform limited to the respective counties, recognizing and acting upon the assumption for a long time that a given line was the true boundary line. (Edwards County v. White County, 85 Ill. 392.)

As above stated, the act of 1887 did not authorize any change, or change the boundary line between appellant and respondent, and was not passed for that purpose; and the stipulated facts conclusively show that the line established by the surveyor-general, if it can be said he established a line, was not acquiesced in by Humboldt county, as it is shown that its officers continued, from the time of the survey made by the surveyor-general until after the commencement of this action, to exercise authority and jurisdiction in the disputed territory.

The more important contention as to the right of the respondent to maintain this action presents, to some extent, a new question, under our statute, because of the extraordinary provisions found therein, and not found, so far as we have been able to discover, in the statutes of other states. By the provisions of our revenue law, which are generally adopted throughout the union, the situs of property for the purposes of taxation is in the county where the same is situated. (Stats. 1891, p. 146, et seq.; Stats. 1893, p. 44.)

It is further provided that where taxes, levied and assessed as required, become delinquent by non-payment, suit may be instituted to recover the same, and the form of the action and remedy are fully prescribed. (Stats. 1891, p. 150, et seq.)

The right to recover in the action, under the statute, can be defeated by showing that the land is situated in, and has been duly assessed in, another county, and the taxes paid thereon. (Stats. 1895, p. 39.)

The provision of this section of the revenue law would seem to be sufficient to protect the taxpayer against the injustice of double taxation in cases of this character; but our legislature has created a further defense against suits to recover taxes in actions, by incorporating into the revenue law of 1891 the provision of the separate act of 1873, to the effect that when real property is assessed by the county assessors of two counties, on territory claimed by both, the owner of the real estate assessed is authorized to pay said taxes in either county where he may select, and, in case of suit being brought for the non-payment of taxes in the county in which said suit may be brought, the production of a tax receipt for the current year on said property, signed by the proper officer, although in an adjoining county claiming jurisdiction, of a date prior to the commencement of said action, shall entitle said taxpayer to a dismissal of said suit free of cost. (Stats. 1891, sec. 12, p. 140.)

If, as claimed, under this act the payment of the taxes to Lander county by the Central Pacific Railroad Company created no liability on the part, of Lander county to pay the same to the respondent, who was entitled to assess and collect the taxes under the provisions of the revenue law cited, in the absence of statutory provisions expressly creating such liability and authorizing the action, then it can be said that it is within the power of the county and the taxpayer to change the rule of the statute fixing the situs of the property, and the rights and liabilities of the county and taxpayer under other provisions of the same act. In other words, an absolute right to tax and collect the taxes, and a right of action to recover the same when delinquent for nonpayment, given to Humboldt county, can be defeated under the exercise of an assertion of right by collusion. We do not believe that the legislature intended that the provision of the law should be given this effect, and we do believe that, taking all the provisions respecting the right of action to recover taxes, it was intended to relieve the taxpayer from harassment by suits for taxes claimed by more than one1 county, and assessed against the same property, and to leave the counties to settle their rights to the same in an action between themselves. We believe that this is a fair implication from the statute. We fully realize the strength of the argument relating to the limited powers of counties, and the strictness of the rule in the manner of the exercise of those powers; but in other cases where rights have been created regarding taxes, and upon no stronger showing, have rights of action been implied. Thus, where a statute provides for a tax, but is silent as to the method of collection, implication of an intent to give a remedy by suit may be so strong as to be conclusive. (Cooley on Taxation, p. 435, and authori-' ties cited in note.)

Under another rule of the law must the contention of the appellant fall. In the case of Salem v. Marion County, it was held that where there is no privity, statutory or contractual, between a city and a county, where such county had collected money for taxes belonging to the city, an action to recover the same would be sustained upon the principle that an obligation rests upon all persons, natural and artificial, to do justice, independent of any statute, so that, if the county obtain money or property of others without authority of the law, it will be compelled to make restitution. (Salem v. Marion County, 25 Or. 454; Chapman v. County of Douglas, 107 U. S. 357; Pimental v. City of San Francisco, 21 Cal. 362.)

In the case last cited the court used the following language: “The city is not exempted from the common obligation to do justice which binds the individuals. Such obligations rest upon ail persons, whether natural or artificial. If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation.”

While it might be claimed that these taxes were paid to Lander county under authority of law, yet the retention of the same, under the facts stipulated, was without authority of law, for it is shown that she had no right to tax the property in the first instance, and the statute authorizing the payment to her by the Central Pacific Railroad Company conferred no such right; hence it can be truly said that the assessment, collection and retention of the money were without authority of law, as her attempted exercise of the right of assessment and collection was without authority of law.

For these reasons the judgment and order appealed from will be affirmed, and it is so ordered.

Belknap, J.: I concur. Bonnieield, C. J., did not participate, he having been attorney in a case between said counties in which the territory in dispute was involved.