
    (Court of Common Pleas, Butler county.)
    THE COMMISSIONERS OF WARREN COUNTY, OHIO v. THE COMMISSIONES OF BUTLER COUNTY, OHIO.
    First; — In construing an old statute, where a question has arisen as to its meaning, the meaning publicly given by cotemporary and long public and official usage, will be presumed to be the true one, even though the language used has etymologically and naturally a different meaning.
    Long established public regulations ought not to be disturbed by logical criticisms of the law upon which they are based.
    Second: In defining the boundary line of Waren county, the legislature used, in section 1, O. L., 9, the following language:
    “All that part of the county of Hamilton included within the following bounds,namely : Beginning at the north-east corner of the county'of Clermont, running thence west with the line of said county to the Little Miami; thence up the same with the meanders thereof to the norih boundary of the first tier of sections in the second entire range of townships in the Miami purchase; thence west to the north-east corner of section 7. .in the third township of the aforesaid range; thence north to the Great Miami; thence up the same to the middle of the fifth range of townships; thence east to the Ross county line; thence with the same south to the place of beginning :”
    Held that the course “thence north to the Great Miami” was intended to follow and fix the west boundary line of Warren county on the originally surveyed section line, - although not running a true north course ; and was not intended as a new line to be run straight or due north.
   FISHER J.

This is an action to establish the boundary line between the counties of Warren and Butler, as provided for in chapter one, title 7, of the revised statutes of Ohio.

The petition, in substance, recites that the boundary line between the counties of Warren and Butler in said state, has been in dispute between said counties for a long time-; that it appeared to the comm issioners of Warren county about the 23d day of January, 1893, and prior to that time, that said boundary line was not sufficiently ascertained ; That about the 24th day of May, 1894,said commissioners issued their order to the surveyor of Warren county, requiring him to ascertain and survey the boundary line between Warren and Butler counties. Then follows the averment of notice to the commissioners of Butler county, as required by law, the meeting of the respective boards of commissioners in joint session, the disagreement of said boards as to the manner said boundary line should be ascertained, the meeting of the respective county surveyors at the time and place designated on the disputed line, the disagreement of said surveyors as to the manner of ascertaining and running the same, and the refusal of the surveyors of Butler county to take any part in running said line; the survey of the line by the surveyor of Warren county and his return to the commissioners of Warren county of his proceedings; the averment that the commissioners of Warren county, by means of survey made by their engineer and surveyor, had ascertained the true boundary line between said counties to be: “Commencing at the north-east corner of section 7, in township 3, of the • second entire range of townships in the Miami purchase, and running thence north on a straight line to a stone at the north west corner of section number 6 in the second township and fourth range of townships at the south bank of the Great Miami river” ; the refusal of the commissioners and other officers of Butler county to recognize said line so ascertined as the true boundary line and asking the line ascertained as the true boundary line by the commissioners of Warren county, be, by the court, decreed the true boundary line between said counties.

The answer of the commissioners of Butler county in substance, denies the allegations of the petition, avers that the true line is sufficiently ascertained and was never in dispute until about the 24th day of May, 1894; that the true line is as follows: Beginning at the north-east corner of section 7, thence north on the section lines to the Great Miami river; that said line has always been recognized by both counties as the true line between said counties since the 24th day of March, 1803.

The answer further sets up, by way of second defense, adverse possession in Butler county, to said line, for a period of more than ninety years.

The reply denies all the affirmative matter-set out in the answer.

The court is of the opinion that the evidence clearly shows that all the preliminary steps prescribed by the statute, necessary to entitle the plaintiff to commence this, action, were taken ; that the proper notices were given; that the plat and survey made by the surveyor of Warren county under such notice, was made in accordance with the notice; that the surveyor of Butler county was present at the time and refused to take part in making such survey; that the commissioners and officers of Butler county had full knowledge of all the steps and proceedings and the purpose of the commissioners of Warren county of determining the boundary line between said counties.

This leaves the question: Is the line dividing Butler and Warren counties sufficiently ascertained?

In passing I may say in reference to the-second defense that I know of no court holding that the statute of limitations will run against a law, and if the law declaring this line is as the plaintiffs claim it is, mere lapse of time would be no bar to the action. But while laches and acquiescence are no bar, acquiescence is evidentiary of the meaning of the law.

The above diagram shows the lines as con tended for by the respective boards.

“a” represents the lineas claimed by the commissioners of Butler county and is the section line commencing at the north-east corner of section 7, town 3, of the second entire range in Hamilton county. This line strikes the south line of section 1, town 2, range 4, in Warren county, and which point is also the north-east corner of section 12, town 3, range 3, Butler county. It runs thence west about fifty-three rods on the south side of section 1, in Warren county, and the north line of section 12, in Butler county, to the south east corner of section 7, town 2, range4, Butler county; thence north on the section lne to the Great Miami river.

“b” represents the line as claimed by Warren county, and is a north or straight line from the “north-est corner of section 7, town 3, 2d entire range of Hamilton county, to the Great Miami river,” and if the true line, would add quite a valuable tract of territory to her tax duplicate. Both lines begin and terminate at the same points.

By the act of March 24, 1803, volume 1, page 9, Ohio laws, providing for the organization of Warren, Butler, Montgomery,, and Greene counties, the boundaries of Warren county were fixed in section one of said act. as follows:

“All that part of the county of Hamilton included within the following bounds: namely, Beginning at the north-east corner of the county of Clermont, running thence west with the line of said county to the Little Miami; thence up the same with the meanders thereof to the north boundary of the first tier of sections in the second entire range of townships in the Miami purchase ; thence west to the north-east corner of section 7, in the 3d township of the aforesaid range; thence north to the Great Miami; thence up the same to the middle of the fifth range of townships; thence east to the Ross county line ; thence with the same south to the place of beginning. ”

It is claimed by the plaintiffs that the course commencing at the north-east corner of section 7, in township 3, of the 2d entire range, “Thence north to the Great Miami,” is a straight line, or due north, and having been so by the legislature declared to be by clear terms, a due north course, or straight line, the section line which does not run a due north course and is not a straight line, is not and can not be the true boundary line between the two counties. There is no evidence that this line was ever run by any surveyor for the purpose of establishing the line between the counties, up to the time of the survey made by the surveyor of Warren county, as set forth in the petition in this case.

Many authorities are cited by counsel for the plaintiff, and it may be said to be the general rule of law that where a line has not actually been laid out, but the course and the beginning point alone is given, and if that course is .“north” it means “due north”, or a straight line as near as it'may be run ; but in giving construction to an old statute such a fixed rule must give way to other conditions and considerations.

The condition of things at the time the law was passed, the surroundings and cir cumstances calling for the law, the manner in which it was received and interpreted by those who were affected by the law, are weighty,evidentiary facts in determining the meaning and intention of the legislature as expressed by the law.

Warren and Butler counties were erected in part out of the Miami or Syrnmes purchase. This purchase, as changed by congress at the suggestion of Judge Syrnmes, included the land between the two Miamis bounded on the south by the Ohio river, to a parallel of latitude on the north extending from one Miami to the other, so as to con tain about a million acres. The contract required the purchasers to survey the land into ranges, township and sections at their own expense. This, Judge Syrnmes proceeded to carry out, but the plan adopted for making the survey was better calculated for ecomony than for accuracy. Judge Syrnmes instructed his surveyors in running his base line, which is the southern boundary of what is known as the second fractional range, to plant stones at the termination of each mile. Then to run the meridians from each mile stake, and at the end of each mile to plant stakes for the corners of sections for the distance of eighteen miles. This brought them to the southern boundary of the third entire range, called the “Military Range.” Then to run six miles, the width of the township, without setting stakes, and at the ¿nd of the sixth mile to plant corners for the commencement of the fourth range. The east and west lines were never run, but the purchasers were loft to connect and complete the survey of sections. The result of this plan was, that no two sections could be found in the entire survey, of the same shape and contents. Some were too wide, others too narrow, and no two have the corresponding corners on the same east and west line. This survey as made was returned to the treasury department under the authority of congress as the contract required, thus unalterably fixing the corners of the sections. And the courts have held that although Judge Syrnmes was directed to run his base line east and west and his meridians north and south, and his survey purported that they were so run, the corners and lines as fixed by the survey could not be changed, although the lines and corners did not correspond with the courses given. In other words, that the old corners as fixed by the original survey, must govern.

The third entire range, or military range, was surveyed by Col. Ludlow under the supervision of Gen. Dayton. The lines as fixed by Col. Ludlow interfered with the stakes originally planted on the meridians above and below the range, by Syrnmes’ surveyors. The section corners as fixed by Col. Ludlow’s survey of the third range, were held to be, by the supreme court, the proper corners, on the ground of the original authority given to Gen. Dayton to survey and run the boundaries of his range. The fourth range was surveyed by the government surveyors, and the section corners established by them did not co-incide with the section corners fixed by either Judge Syrnmes or Col. Ludlow. So where Syrnmes’ section line strikes the southern boundary line of the fourth range, which is also the south line of section one in Warren county, it is about fifty-three rods east of the government section line dividing section 1 and section 7 of Butler county, thus making^ a jog in the line as it appears upon the diagram.

The section corners and section lines, as fixed by these several surveys, determine unchangeably the boundaries of the sections, although the lines are not run due north and south, or due east and west, as required by the act authorizing and directing the surveys.

Some of the discrepancy may be accounted for through the daily variation of the needle. Dr. McFarland in his address before the Ohio Society of Surveyors and Civil Engineers, 18th annual report, page 88, says:

“The daily variation changes from day to day and from month to month through • out the year. The average for January is not the average for July. It varies every month in the year, every day in the month, and every hour in the day. The variations in Ohio may reach fifteen minutes in a single day; wherefore a line run by the same men with the same instruments, with the same care, and with equal correctness at eight o’clock in the morning and two o’clock in the afternoon, will differ eleven or twelve feet at the end of the first mile.”

But tbs' greatest error, no doubt, grew out of the difficulty in making the survey, and the imperfection of the instruments used, and want of care.

However they may be accounted for, it was certainly the condiion of things that existed at the time the legislature undertook to fix the boundary lines of these several counties in 1803. They recognize the existence of the lines and corners as fixed by these surveys by following them in defining the county boundary lines.

Up to 1825,seventy-three counties in Ohio had been.established. Since that time fifteen others have been laid out. In the acts establishing the boundaries of the counties prior to 1825, it is shown that with but few exceptions (and these exceptions relate to lines that had never theretofore been run) the section lines and the north and south lines all go together as meaning one and the same course. In the acts establishing the fifteen other counties, one hundred and fifty-one boundary lines are section, township, and range lines. The others are natural boundary lines, the Lake Shore and Maumee River. These one hundred and fifty-one boundary lines are called “north,” “south,” “east” or “west,” according to the position and direction of the section, township or range lines, and yet none of them run the true course. _

Dr. McFarland in speaking of the boundary lines of Perry and Hocking counties, in his address above cited, says:

“In every instance, the words, north, south, east, and west, are made to coincide with the section lipe3 by the very words of the statute, or by necessary implication. Yet, every one of the lines of the above counties, Perry and Hocking, varies from three to four degrees from the true meridian, or a perpendicular thereto. In establishing the boundaries of Fairfield county by the act of December 9, 1800, Ohio laws volume 5, page 146, due west, as used in the act, is fixed on a surveyed line, the north boundary line of the Ohio Company’s Purchase; but this line is four degrees out of the true. ”

The act of February 12, 1820, erected the counties of Van Wert,- Mercer, Putman, Allen, Hancock Hardin, Crawford, Marion, Seneca, Sandusky, Wood, Henry, Paul-ding, and Williams, Ohio laws, volume 20, page 90, and every line of every county of the whole fourteen follows township lines, except where state lines are brought in on the north.

It will be interesting in this connection to examine the act defining the boundary lines of Carroll county and Jefferson county, under the act of December 25, 1832. There, the words, north, south, east, and west, and due east, follow fixed, old surveyed Unes which vary from the true course. So throughout every county in the state.

In examining the first section of the act organizing Warren county it will be observed that the beginning line runs west along the Clermont county line until it strikes the Little Miami; thence it goes up the Little Miami with the meanders thereof, until it strikes a fixed surveyed line, to-wit, the north boundary of the first tier of sections in the second entire range of township in the Miami Purchase. It then runs west to the north-east corner of section 7, in the third township of the same range. While it does not say, “West on the section line, ” yet, the boundary line runs on the “north boundary of the first tier of sections,” although the line does not run due west.

The course, “thence east to the Ross county line,” has been understood to mean, by uninterrupted acquiescence since the passage of the act, by the counties interested, to be the middle line through the whole entire fifth range.

The description off the south boundary line of Montgomery county fixes definitely the north boundary line of Warren to be the middle line of the fifth range, no difference how far this line may differ from the true east; the west end of the boundary line of Warren being fixed by statute in so many words at the middle of range five on the east bank of the Great Miami.

The south boundary line of Montgomery is declared to be the north boundary line of Warren, and the south boundary line of Montgomery runs east to the east line of section 16,, in the 3d township,, and 5th range.

Owing to the fact that the township lines and the section lines on the opposite side of the Great Miami did not tally, the words defining the south line of Butler county, “Begining at the south-west corner of the county of Warren and running thence west to the state line, ” were uncertain and indefinite and caused confusion along the line between Butler and Hamilton counties; the people on the west side of the river being uncertain in which county they lived. In less than five years from the date of the act erecting the counties, a supplementary act was passed defining more particularly the line of separation. This act was passed January 20, 1808, and plainly defines the line and follows the section, township,, and range line. No such steps were ever taken in regard to the line in question 1

It therefore appears pretty clearly that in settling definitely the north fine of Warren county and the south line of Butler, the words, east, and west, are fixed on the courses süown by the section lines, in so many words, and yet, these'section lines in some places deviate more than ten degrees from the true east or west, and in all places six degrees or more.

In describing the line between Warren and Butler and between Montgomery and Greene,the word, “north,” is used in both cases, and is used in immediate connection withrhe word, “ west, ”m the case of Warren county, towit: “Thence west to the northeast corner of section 7, ” and in case of Montgomery county it is used m connection with the word east, and both these courses, west and east, are shown directly by the words of the statute to mean the direction as shown by the section lines.

Wherever the line is definitely fixed by the legislature, the line goes from one fixed corner to another fixed corner of a section, township, or range, but the course is north and south, east and west, no line being named, simply the corners of the sections.

This is the way the legislature, whenever called upon to define more accurately the boundary lines, has interpreted the words, “north,” “south,” “east, ” and “west.” Shall the court interpreting the word, “north,” in this statute, employ any other or different method of interpretation?

It also appears from the evidence, that ever since the passage of the act in 1803, the public has recognized, acquiesced in and treated the section lines as the boundary lines between the counties. While there have been some differences of opinion among the residents of the locality as to the true boundary line, yet, the commissioners of both counties have, up to the time of the bringing of this suit,recognized the originally surveyed section linos as the county boundary line. They have established roads upon such boundary line, erected bridges, and have met in joint session in relation thereto. All the public practice has recognized it as the line dividing the two counties,

Endlich on Interpretation of Statutes, says in section 357, “It is said that the best exposition of a statute or any other document is, that which it has received from cotemporary authority. Where this has been given by enactment or judicial decision, it is of course, to be accepted as conclusive. But further, the meaning publicly given by cotemporary or long professional usage, is presumed to be the true one, even when the language has etimnlogically or popularly a different meaning. Those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendants, with the circumstances to which it had relation as well as with the sense then attached to the legislative expression,, and the long acquiescence of the legislature in the interpretation put upon its enactment by notorious practice, may perhaps be regarded as some sanction and approval of it. It gives the sense of the community of the terms made use of by the legislature. If there is ambiguity in the language, the understanding and application of it, when the statute first comes into operation sanctioned by long acquiescence on the part of the legislature and judicial tribunals,, is the strongest evidence that it has been rightly explained in practice.”

Lord Campbell in the case of Gorman v. Bp. of Exeter, 15 Q. B., 73, says: “Were the language obscure instead of being clear, we should not be justified in differing from the construction put upon it by cotemporaneous and long continued usage. There would be no safety of property or liberty if it could be successfully contended that all lawyers and statesmen have been mistaken as to the true meaning of an old act of parliment”. The surroundings and history of the passage of a statute, the cotemporaneous interpretation placed upon it, and its progress, may bo looked at in analogy to the rule as to wills and contracts.

Fosdick v. Perrysburgh, 14 Ohio St., 472. And an interpretation under which property rights have been acquired from a change of which infinite mischief would result, will be upheld if possible, altough the interpretation originated in error.

22 Cal., 51; 4 Daly, N. Y., 149; 5 Har. &

Md., 303; Ludlow v. Johnson, 3 O, 533. Dutoit v. Doyle, 16 Ohio St. 400; Chestnut v. Shane, 16 Ohio, 599; State v. Hueston, 44 Ohio St., 1; Allen v. Little, 5 O., 65—71; State v. Peck,, 25 Ohio St., 26—28.

Id the case of Roan county v. Anderson county, 98 Tenn., 259. the court say : “In an act establishing a new county, describing the boundary as beginning at the northeast corner of another county ; thence along said line fifty-five degrees west to the west corner thereof, the call for courses is subordinate to the direction to run with the line of the other county. And although laches will not operate to bar a defense to a suit seeking to recover territory annexed to a county by legislative act, yet it becomes of great weight in determining the truth of the claim asserted as to the true boundary line between the counties, the evidential value of long acquiescence in a particular line as the true line, not being lost,because it does not amount to an estoppel, or is inoperative as laches.”

In the case of Becker et al., v. Sterling, et al., 36 Pa. St., 423, the court, in discussing the question of county lines, says: “It is quite manifest that the meaning of law fixing the line was long in doubt, and we can not say that the court was bound to give it an interpretation derived from its language alone, and without any reference to the actual public interpretation which it had received during three quarters of a century. We cannot say, under the evidence, that the court put an erroneous interpretation upon it. Long established public regulations ought not to be absorbed by logical or philological criticisms, of original principles. The county line ought to be recognized as being where is was generally understood to be, and not where it should now be placed, if we had now to apply the law for the first time. We can best ascertain where the true line was by looking to the public practice relative to it, in connection with the levying of taxes, electing jurors, serving appearances by the sheriff and constables, elections, and official surveys, and such like matters.

Other cases to the same point may be referred to, Virginia v. Tennessee, 148 U. 5., 503; Eureka Co., v. Lander,, 24 Pacific, 871; 87 Cal., 287; 25 Pacific, 292; 16 P. S., 512.

After fully examining the condition of things at the time of the passage of the act organizing these counties, and examining all the acts relative to attaching and detaching territory, I am inclined to think that the fair interpretation to be placed upon the intent of the legislature in the use of the words, “north,” “south,” “east,” and “west,” was to use them in relation to fixed lines, and that in the present instance the legislature did not use the word, “north” in a manner different from the way it had been disposing of the words, east and west, north and south, k other acts. I find no act of the legislature in which any stress is placed on straight lines for county boundaries. Nor do I find any act which divides quarter sections, as the construction claimed for by plaintiffs would do,placing part in one and part in another county, where expression is given. And such deviation can only be inferred in cases like this.

I am of the opinion that the interpretation placed upon the course, “thence north to the Great Miami River,” by the public at the time of the passage of the act,, is the true interpretation, and that the boundary line was intended to be upon the section line regardless of whether it was straight or crooked, ordue “north”, or “east of north” These section lines having been definitely and accurately fixed by the government survey, and all the corners of the sections having been marked, the court is of the opinion that the boundary line is sufficiently ascertaind.

Wm. McDonald, State Attorney and Brown, Brandon & Burr, for Plaintiffs.

C. J. Smith, State Attorney, and Alx. F. Hume, for defendants.

Under the view taken by the court, the plaintiffs’ petition will be dismissed at their costs.  