Hollenbeck v. Sykes

Mr. Justice Elliott delivered the opinion of the court. The assignments of error, though few in number, are very broad, and, hence, the more difficult to determine; they are to the effect, that the finding of the district court is against the evidence, that the decree of the court is contrary to law, and attempts to establish a boundary line between the counties of Chaffee and Park different from that established by the .legislative acts of the territory and state of Colorado. The evidence thus challenged is very voluminous; though counsel agree that much of it is “ utterly immaterial to the [319] issue.” The record as transmitted to this court is accompanied by a large number of maps, surveys, profiles and photographs intended to represent the topography of the country in the region of the disputed boundary. The printed briefs and arguments of counsel do not aid much in separating the material from the immaterial testimony, or in explaining the several conflicting exhibits. Not having had the assistance of oral arguments as we requested, the review of the case has been proceeded with under many disadvantages. The principal controversy arises out of the peculiar phraseology of the act of the territorial legislature defining county boundaries, approved Nov. 1, 1891, Session Laws, p. 52. Section 30 of that act proceeds to give the boundaries of Park county as follows: “ (1) Commencing at a point where the second correction line south intersects the Platte river; (2) thence south to the third correction line south; (3) thence west to the summit of the snowy range, east of the Arkansas river; (4) thence in a northerly direction along the divide between the Arkansas and Platte rivers,” etc. There is no controversy about the point of beginning nor about the location of the third correction line south. The difficulties are encountered in the third and fourth calls as above given. At what point does the third correction line south extending westward from the southeast corner of Park county intersect “ the summit of the Snowy range east of the Arkansas .river ? ” And, from such point of intersection, what is meant by “ a northerly direction along the divide between the Arkansas and Platte rivers ? ” From a casual observation of the map of Colorado, calls 3 and 4 of section 30 would indicate that the southern part of Park county was in the valley of the Platte river; and that by going directly west from the southeast corner of said county, the valley of Arkansas would not be reached until “ the summit of the Snowy range east of the Arkansas river ” should be passed. The last two calls of section 32 of said act indicate the same thing. This may have been the understanding of the territorial legislature when they passed said [320] act thirty years ago. The country was then comparatively uninhabited by white settlers; no special survey had been made; nor had accurate maps been published. But it is now well known that the entire southern border of Park county lying, immediately north of said third correction line is in the valley of the Arkansas river, and that the Mosquito Spur of the continental divide — that is, “the Snowy range east of the Arkansas river ” ceases — as a “ snowy range,” several miles to the north of said third correction line. It appears that south from Buffalo Peaks the Mosquito spur is not properly a snowy range, or a range covered by perpetual snow; thence in its southward course it is somewhat broken up or flattened out and diverges into subordinate ranges forming divides between the tributaries to tbe Arkansas river. Strictly speaking, the third correction line south in its westward extension from the southeast corner of Park county, does not intersect any “ divide between the Arkansas and Platte rivers; ” nor does it reach the summit of any snowy range east of the Arkansas river ; but it does cross “ divides ” between certain tributaries of the Arkansas river; and the summit of some one of these divides was undoubtedly intended by tire third call, “ the summit of the Snowy range, east of the Arkansas river.” In behalf of Chaffee county, it is claimed that the summit of the range running in a southeasterly direction from the head-waters of Trout creek towards Black mountain, is tiie object thus indicated and intended by said third call. This range leaves Agate creek, a tributary of the Platte, to the north, and forms a divide between Badger creek on the southwest and Current creek on the southeast, both tributaries of the Arkansas. In behalf of Park county, it is claimed that the object indicated and intended by said third call, is the summit of a range, now called the Park range; that the Park range is a continuation of the Snowy range, east of the Arkansas river, that it runs nearly due south from its connection with the Snowy range, that it forms a divide between Trout creek, [321] a tributary of the Arkansas, and Agate creek, a tributary of the Platte, and farther on crosses the third correction line south, and constitutes a divide between Trout creek and Badger creek, both tributaries of the Arkansas. The extracts from Hayden’s U. S. Geological and Geographical Survey of Colorado, read in evidence by consent, describe the “ Park range ” of mountains in a way tending to confirm in substance the claim thus made in behalf of Park county. It is evident that the summit of the range thus claimed by Park county better satisfies the fourth call of section 30, since its direction is more northerly from the point of intersection with the third correction line south. If the summit of the range claimed by Chaffee county be taken, the direction is more rvesterly than northerly until the point of divergence between these rival ranges is reached near the head-waters of Trout creek. If it were certain what specific range or summit was intended or referred to bj' the third call, the general phrase “northerly direction” would not be controlling; for, as Avas said in Grand County v. Larimer County, 9 Colo. 280, “Monuments control courses, and a specific course will control a general course.” But, as we have seen in this case, the specific range intended by the third call of section 30 is uncertain; the summit of such range Avhich is the. monument in this case, is, therefore, uncertain ; and for the purpose of ascertaining or identifying such monument, the general course or direction of the range, as indicated by the statute, may be taken into consideration in connection with other facts and circumstances. These views are not inconsistent with the following cases cited by counsel. Shultz v. Young, 3 Ired. 385; White v. Gay, 9 N. H. 126. There is some conflict in the testimony of the witnesses; but the trial court Avhich could best determine the preponderance of the evidence, decided the issue in favor of Park county. Its decision was to the effect, that the Mosquito spur of the Snowy range — the Park range — is a distinct and continuous range or chain of mountains next and im [322] mediately east of the Arkansas river, extending from the Snowy range at and between the sources of the Arkansas and Platte rivers southward beyond said third correction line; that the summit of this range is the natural boundary between Chaffee and Park counties, and that; lands of the plaintiff described in its complaint are located in Park county. No sufficient reason appears for disturbing the finding of the trial court; its judgment is accordingly affirmed. Affirm&d.