State v. Chosen Freeholders

The opinion of the court was delivered by Van Syckel, J. A dispute having arisen respecting the boundary line between the counties of Union and Essex, commissioners were appointed, under the act of March 5th, 1798, (Rev., p. 211,) to ascertain and mark the lines of partition. The report of these commissioners proved to be unsatisfactory to the chosen freeholders of Union county, who have caused it to be certified into this court for review. These proceedings are a proper subject matter for review by certiorari. State v. Coleman, 1 Green 98. In the absence of special statutory power, errors of law only are reviewable. The act of 1871 (Pamph. L. 1871, p. 124,) conferred the [397] power to determine disputed questions of fact. Craft v. Smith, 6 Vroom 302. In the Revision (p. 99, § 9,) this act was materially changed, and the power was limited to proceedings “ touching any local or public improvement.” An amendment (passed in 1881, ch. XXVII.,) extends the power to review facts to cases where certiorari is prosecuted “ to review the proceedings of special statutory tribunals.” These commissioners constituted a tribunal specially provided by statute for a particular purpose, and their proceedings are clearly within the operation of the supplement of 1881. The duty of the commissioners, as prescribed by the statute, is “ to cause the partition line between the two counties, so far as included in the order of appointment, to be run, surveyed, marked and ascertained in conformity, as nearly as may be, with the acts of the legislature constituting such counties and prescribing their boundaries.” Rev., p. 212, § 70. Their appointment related to “ so much of the line of partition between the counties as divides the township of Clinton, in Essex, from the township of Union, in Union.” The county of Union was created by act of March 19th, 1857, which defined the line in question thus : “ Thence along the northerly and westerly line of division between the townships of Union and Clinton to the northerly division line of the township of Springfield.” Clinton and Union townships were previous subdivisions of Essex county, the former created out of the township of Newark, by act of February 19th, 1834, the latter created out of the borough of Elizabeth, by act of November 23d, 1808. The borough of Elizabeth existed under a charter of George II., dated February 8th, 1739, and the act defining its boundaries in 1789. The township of Newark received its charter from Queen A nne, April 27th, 1713, but had been previously established under the act dividing the counties of the colony into townships, passed in 1693. Leam. & Spicer 328. [398] The commissioners have attempted to follow the line of the Reid survey of 1713, which purports to have been made under the Queen Anne charter. Conceding that the Reid survey was an accurate location of the line, it is clear, from the history of this controversy, that as soon after that date as 1739 the line was in dispute. Whether the monuments by which Reid marked his line had disappeared, or whether the accuracy of his survey was then questioned, does not appear. It is beyond all doubt that there was then no recognized dividing line between Newark and Elizabeth. At a town meeting held in Elizabeth June 18th, 1739, a committee was appointed to settle the division line. Like action was taken by the people of Newark on the 24th of October, 1739, and again on the 12th of March, 1754. Hatfield’s Elizabeth 319; Col. N. J. Hist. Soc., vol. VI., pp. 134, 140, 141. The Elizabeth charter of 1739 calls for a division line running to Dividend Hill, and the act of November 28th, 1789, (Paterson 94,) defining the boundaries of Elizabeth, recognizes the same natural monument. As early as 1668 there was a conference on Dividend Hill between commissioners from Elizabethtown and Newark, for the purpose of defining the disputed line, and in their certificate they say that it is agreed to begin the line “ from the top of a little round hill named divident hill.” Col. N. J. Hist. Soc., vol. VI, p. 10. In the act of 1693, (Leam. & Spicer 328,) it is provided that “the township of Newark shall include all the land from the mouth of Bound creek, and from thence to Bound Hill.’ The act of 1808 creating the township of .Union describes the line of division as running to Dividend Hill, and the act of 1834 creating the township of Clinton, and bounding it by the township of Union, described in the prior act, is an avowal of a legislative purpose to limit the township of Clinton by the same landmark. When, therefore, the act creating Union county, in 1857, [399] ran the county line between the townships of Union and Clinton, it is manifest that the legislature intended to establish the line as designated in the acts creating those townships, by running it. to Dividend Hill, without any reference to the description in the Queen Anne charter of 1713. If there is any diversity in those lines—which does not with any certainty appear—the later legislative declaration must prevail, it being competent for the legislature to alter the township line at any time. The line as described in the Union township act of 1808 should have been reproduced, if possible. The evidence shows that there is no existing monument which marks with any certainty the location of Dividend Hill, or the line as run by the Reid survey. If no evidence is attainable by which the location of those monuments could be ascertained, what was the duty of the commissioners ? The practical location of a public boundary for a considerable time has been held to establish it, though not in accordance with that called for by the acts creating it. Hanson v. Russell, 8 Foster 111 : Hamilton v. McNeil, 13 Gratt. 389 ; Missouri v. Iowa, 7 How. 660; Kellogg v. Smith, 7 Cush. 375. A fortiori, where the line called for by the legislative acts cannot be traced, the line as practically located will be presumed to be the true one. There is evidence to show that the inhabitants of the two townships and their officers have for fifty years or more recognized a boundary line considerably to the north of that found by the commissioners. Township boundaries determine the place of voting of the inhabitants, the place where and the officers to whom their taxes are to be paid, and the officials on whom the duty of repairing roads rests. The action of public officers in respect to such matters, by being acquiesced in, gives recognition to the boundary line. Winans’ testimony shows that for fifty years he has paid taxes in Union township for land which the commissioners’ [400] line places in Clinton; also, that other land-owners in the same locality have been' assessed and paid their taxes in Union, and that the roads have been worked as the roads of TJnion township. Grumman, a witness who thinks the line fixed by the commissioners is the true one, admits that the line formerly regarded as the township boundary is three or four hundred yards further northward. Shortly after Union county was set off", and prior to 1861, a stone monument was erected by committees of the freeholders of each county, marked “E. C.” and “ U. C.,” to define the county line. This monument is'claimed by the prosecutors to be in the true line; and since 1857, deeds and mortgages have been recorded in Union county as marked by this boundary. If it be conceded that this line has not been so well defined and so fully recognized by the public authorities and by the people as to make it prevail over a line which could be clearly traced from the description in the legislative grants, yet, in the absence of reliable marks to indicate where such a line should be run, the safest guide will be the line practically adopted. A departure from it will unsettle titles and lead to much confusion. The line run by the commissioners is an arbitrary one, fixed without any recognized monuments to attest its accuracy. I think their finding is erroneous, aud should be set aside.