This is a continuation of the posts below under the title "Northern Boundary of Georgia--Again."

          Once boundaries, whether of private property, states, or anything else, are fixed on the ground, the courts generally will not allow them to be “revised” or “corrected.” The reason is obvious.  If such were allowed, it would create continuing havoc since there could never be any stability as to boundaries and there would be endless controversy over the locations of boundaries.  Suppose we move the northern boundary of Georgia to some location that a modern surveyor asserts is the 35th parallel.  People who have been registered voters in one state would find themselves the residents of another state, people who have been going to school in one state would find they have to go to school in another state, people who have been paying local and state taxes in one state would have to begin paying in another state, people who hold political offices would find they are no longer residents of the state in which they were elected and that they have been holding office illegally, people who have been convicted of crimes under one jurisdiction would be under another jurisdiction which may have different laws, infrastructure paid for by the taxpayers of one state would be in another state, planning commission and zoning regulations would be upset, county property tax records would have to be thoroughly revised, land grants that were issued by a state would be found to be outside its borders and therefore illegal which would throw land titles in confusion, and one could go on.

          Furthermore, why should one surveyor’s assertion as to the location of a boundary defined on paper be accepted over any other surveyor’s assertion?  Multiple surveys in attempts to locate, for example, the 35th parallel, would yield different results.  One group would assert one surveyor’s findings are correct, another group would assert another surveyor’s findings are correct, and a third group would assert still another surveyor’s findings are correct, with no real way to resolve the impasse.  In contrast, one can hardly argue with a location defined by monuments and marks on the ground.

          The boundary between Georgia and Alabama, and the boundary between Georgia and Florida, are fixed.  After they were surveyed and marked on the ground, though perhaps not in strict accord with the paper descriptions, each of these respective states, and Congress, ratified the surveyed and marked lines as the official state boundaries.  Congress is generally required to ratify state boundaries because such boundaries define congressional districts, the jurisdiction of the federal courts, and other federal matters.

          The northern boundary of Georgia was surveyed and marked on the ground during 1818-19.  Most of the work was done jointly by commissioners and surveyors appointed by Georgia and Tennessee.  This line was expressly ratified by North Carolina and Tennessee.  It has not been ratified by Georgia other than by acquiescence.  This marked line is, of course, somewhat south of the 35th parallel for most of its length.  Georgia, as well as the adjoining states, have repeatedly performed practically every act with regard to this marked line that fixes state boundaries by acquiescence.  I did a brief and perhaps incomplete check and found fifteen separate resolutions passed by the Georgia legislature between 1878 and 2019 providing for the creation of commissions of various sorts to “correct” the northern boundary of Georgia.  Notice that the first of these resolutions was passed more than half a century after the northern boundary of Georgia was marked on the ground.  The subsequent legislative history of the resolutions is that in every case except the one currently pending, it was quickly “discovered” that the state boundary cannot be moved, and the matter was dropped.  The current resolution has not been fully “acted” on, but, no doubt, will end with the same inglorious results.  The fact that so many “attempts” have been instigated by Georgia to move the boundary, only to be promptly abandoned, is good confirmation that the line cannot be moved.

          Since Georgia’s northern boundary as surveyed and marked is not going anywhere, the best thing that can be done is to put an end to the chatter and attendant expenses by simply ratifying that line.  The Georgia code, as currently written, inaccurately defines parts of the boundaries between Georgia and South Carolina and Georgia and Florida.  I will not get into that here, but, along with ratifying the surveyed and marked northern boundary, the wording in the code for these other boundaries needs to be corrected.  (As an example, the definition of the state boundaries in the code puts certain islands in the Savannah River near Chatham County, where I live, in Georgia.  Chatham County carries these islands on its tax rolls.  The islands are in South Carolina.   They are owned by the Georgia Department of Transportation or the Jasper Port Authority and are not taxable in Georgia regardless.  I don’t know if they are taxed in South Carolina).

          Regarding county boundaries, anyone who reads the procedure set forth in the Georgia code for settling county boundaries (Georgia Laws, 1886-87, volume 2, pages 106-07; Official Code of Georgia Annotated §§ 36-3-20 to 36-3-27) can readily see that little thought was given in crafting the law and it is carelessly drawn.  There are problems with the law throughout, but the four main ones are that it takes only a grand jury presentment by one county to set the process in motion; it has, as an underlying assumption, that it is a simple matter for any competent surveyor to go on the ground and readily locate county boundaries based on the acts of the General Assembly that define the boundaries; it implies that the surveyor is to simply put a line on the ground without necessarily giving much forethought or study to the matter; and it provides for an appeal to the secretary of state, as if that is the most efficient and expeditious way to address and cure any deficiencies of the surveyor’s determination.

          Grand juries generally consist of people who do not well understand what they are addressing and are unwilling to spend the time necessary to gain understanding.  The result is they tend to be flippant about matters.  It should take much more than a mere grand jury presentment to set the county boundary process in motion.

          Most county boundaries are defined by acts of the General Assembly that were passed more than one-hundred years ago; and many county boundaries are defined by acts that were passed more than two-hundred years ago.  The acts often call for such things as roads, road intersections, river fords and landings, ferries, bridges, mills, and even person’s houses or stores--features that either no longer exist and their locations cannot be established, or they are unidentifiable--as defining the boundaries.  In most cases, determining the locations of the boundaries is a perplexing affair and cannot be done satisfactorily except by the counties involved mutually agreeing to something.  This factor is pretty much ignored by the procedure set forth in the code.

          When the present law regarding the settlement of county boundaries was enacted in 1887, the state was still granting public domain.  The office of surveyor general had been abolished a few years before and the functions of that office had been assigned to the secretary of state.  The secretary of state, thus, was in charge of the state land records and land granting.  The law that was enacted assumed the secretary of state was in a position to understand county boundary issues and therefore the logical entity for an appeal of a determination of a county boundary by the surveyor.  Such, of course, was and is not necessarily the case.

          The worst aspect of appeals to the secretary of state is it brings politics into play, as demonstrated by the inaction of successive secretaries of state regarding the Macon-Bibb/Monroe situation.  The Monroe County grand jury presentment that began the present process was made in 2005.  Governor Perdue appointed Terry Scarborough to survey the boundary, as provided by the code.  Perdue and Scarborough, by the way, are from the same county.  By the time the appeal came before Secretary of State Karen Handel, she was running for governor.  She initially avoided making a decision by tossing the issue to an administrative law judge, and the matter was held up there until after she left office.  In an appeal of the decision of the administrative law judge, the Georgia Supreme Court ruled the procedure illegal.  Handel’s successor, Brian Kemp, rejected Scarborough’s survey and held some hearings, but put off making a determination of the boundary until after he left office in November 2018.  (To be fair, it must be conceded that various aspects of the issue have been in litigation or under appeal almost continuously since Handel passed the matter to the administrative law judge, and up to the present.  It may be argued that the secretaries of state cannot properly render a decision until the court suits are settled.  Given the circumstances, however, there was no real reason for the courts to get involved in the preliminaries at all, save for politics).

          The political problem for the secretary of state is that no matter what he or she decides, it is going to make a good many voters mad, and that has consequences at the polls.  Terry Scarborough’s survey favored Monroe County and Secretary of State Kemp rejected it.  In the Republican primary for governor in 2018, Kemp received the majority of the votes in every county except two--one of which was Monroe County.

          A writ of mandamus can be filed to compel a public official to act on a matter that they are legally obligated to act on but that they otherwise fail to do.  The dilemma here is Macon-Bibb County and Monroe County are the only entities that could have an interest in such an action.  If either does so unilaterally, they will make the secretary of state mad so that he or she will be swayed to rule in favor of the other county.  (I note that Monroe County filed a writ of mandamus to compel Kemp to accept the Scarborough survey, but the Georgia Supreme Court rejected the motion, holding that while the secretary of state can be compelled to make a decision, he or she cannot be compelled to make a particular decision).

          The present secretary of state--Brad Raffensperger--says he will decide the issue when the appeals of Terry Scarborough’s contempt citation associated with the matter are settled.  Raffensperger’s communications director, Tess Hammock, is from Monroe County.  I don’t know if that will affect his thinking.

          According to this editorial:

http://www.northwestgeorgianews.com/rome/opinion/editorials/guest-editorial-it-s-time-to-settle-border-war/article_908f7a84-cbf5-11e6-b9b9-1b88bb9a8aa2.html

as of 2014 the controversy had cost Monroe County $2.5 million and Macon-Bibb County $650,000.  There has been much additional cost since--much of it to the taxpayers at large in that they have had to pay for the hearings by secretary state and the court proceedings. 

          The entire present law for settling disputed county boundaries needs to be scrapped and replaced by something that is workable.  The surveyor should be chosen under some method that does not involve elected politicians; or the surveyor should be chosen by the mutual action and consent of the county commissioners of the counties involved.  There should be standards about how the surveyor is to go about his or her work, standards as to how the line is to be marked, and standards for the resulting plat.  Maybe the legislation can provide that the State Board of Registration for Engineers and Surveyors sets standards for county boundary surveys.  Specific provision should be made for mediation and arbitration.  The appeal should go to a court, not the secretary of state.

          Surveyors appointed to survey county boundaries can largely make up for the deficiencies in the current law dealing with county boundaries by following the basic procedures one would employ in settling doubtful boundaries between private landowners.  Once appointed, the surveyor should enter into a written contract with the counties he or she is doing the work for.  The contract should specify, among other things, exactly what he or she is to do; it should provide for input from other specialists hired by the counties and/or by the surveyor; it should set survey and other standards; it should provide that after the research is completed and a reconnaissance survey made, the final resolution of the location of the boundary will be determined by an amicable agreement between the county commissioners of the counties affected, or by mediation, arbitration, or an appeal to the secretary of state; and the contract should specify how the surveyor is to be paid.  The provision for the appeal to the secretary of state is in the same law that provides for the appointment of the surveyor.  The surveyor is therefore clearly on notice under the present law that he or she may be required to give depositions or testimony, and should be readily willing to do so.  The final, permanent monuments should not be placed until everything is resolved.  This overall approach may provide a more or less smooth operation and settlement under the law as it is currently written.  It has done so in every other county boundary settlement made in the past 30 or 40 years and maybe longer, and the boundaries were settled with no major problems or any court action.

          There is a lot of press coverage that can be found online about the Macon-Bibb/Monroe boundary.  Much of this coverage is inaccurate because the reporters who write the stories have made little attempt to understand the issues and evidence.

          Here are the two Georgia Supreme Court decisions dealing with aspects of the matter:

Bibb County v. Monroe County, 294 Ga. 730, 755 S.E.2d 760 (2014)

https://cite.case.law/ga/294/730/

Kemp v. Monroe County, 298 Ga. 67, 779 S.E.2d 330 (2015)

https://cite.case.law/ga/298/67/

          Terry Scarborough has been repeatedly subpoenaed to give depositions and testify about the survey he performed.  He has failed to show up for all of them, save one or two which he attended on the condition that he be allowed to give a lecture and not be cross-examined, or that he be cross-examined by the secretary of state only.  Secretary of State Kemp cited Terry for contempt for failing to appear at the most recent hearing on August 9-10, 2017, and Terry was so held by the Fayette County Superior Court.  Here is the decision of the appeal of that case: 

Scarborough v. Kemp, 819 S.E.2d 710 (Ga. Ct. App. 2018)

https://efast.gaappeals.us/download?filingId=722d1830-6578-4add-b804-5700ef98c5a9

and

https://efast.gaappeals.us/download?filingId=4c4eb9d1-032c-4b3d-9086-91591f2c2487

          Terry is currently attempting to get the Court of Appeals decision overturned by a writ of certiorari to the state Supreme Court:

Scarborough v. Kemp (Ga. Sup. Ct. 2018-19)

https://scweb.gasupreme.org:8088/results_one_record.php?caseNumber=S19C0448

The court is unlikely to grant the motion.

Governor Kemp vetoed House Resolution 51 which would have created a commission to study the possibility of moving the northern boundary of Georgia.  Go to  https://static.votesmart.org/static/vetotext/67531.pdf and scroll down to near the bottom.  I suppose Kemp has had his fill of boundary issues as a result of dealing with the Macon-Bibb/Monroe situation.

          Regarding Charles’s specific question, the state attorney general’s office will research and write unofficial legal opinions posed to it by state, county, and municipal officials and agencies regarding their functions and duties.  These are offered as advice only and the AG will not go to court to attempt to enforce the opinions.  You might have the county commissioners submit your question to the AG for an unofficial opinion.  If the resulting opinion is that something improper is being done, it might be an inducement for the persons or counties involved to desist.  Otherwise, the remedy is probably a court action that the county will have to file.

          Because of the politics of the situation, described in my post of July 24, 2019, above, the secretary of state is probably not going to make a final decision as he is obligated under the law to do.  To resolve the location of the boundary, one county or the other, or the two counties in conjunction with one another, might file a direct suit in court and get a judicial resolution of the location of the boundary.  If a public official or administrative agency fails to perform a function that he, she, or it, is obligated by law to do (in this case, the secretary of state), a court can substitute itself for that official or agency and render a binding decision.

          Obviously, something that desperately needs to be done is scrap the current law for settling county boundaries and substitute a whole new law that is workable.  The new law should recognize the real-life problems about locating county boundaries and set forth procedures that address those problems, and it should, as much as possible, remove the politics that are so ingrained in the present law.  You and the county attorney, with input from other attorneys and surveyors, might draft such a new law, and have a provision that it is retroactive for any counties that are currently attempting to settle their boundaries under the existing law, and see if you can get that enacted by the legislature.  If this happens, begin a new action under it to settle the Macon-Bibb/Monroe county boundary.

          In 2013 we had an extensive discussion in the Samsog Message Forum about the Macon-Bibb/Monroe situation.  That discussion has since been taken down, but I retained a copy of it.  I pointed out that, though there are not many cases on the matter, other jurisdictions have held county boundaries can be fixed by acquiescence (There are no Georgia cases on the matter).  Based on limited research, I cited the following:

Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243 (1927)

Elmore County v. Tallapoosa County, 222 Ala. 147, 131 So. 552 (1930)

Edwards County v. White County, 85 Ill. 390 (1877)

Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 15 S.W.2d 834 (1929)

State v. Clary, 100 Neb. 324, 160 N.W. 107 (1916)

Courter v. Borough of Lincoln Park, 101 N.J. Eq. 572, 138 A. 99 (1927)

Roane County v. Anderson County, 89 Tenn. 259, 14 S.W. 1079 (1890)

Hunt County v. Rains County, 116 Tex. 277, 288 S.W. 805 (1926)

Travis County v. Williamson County, 4 S.W.2d 610 (Tex. Civ. App., 1928), error dismissed, 15 S.W.2d 577 (Tex. Comm. App., 1929)

Cook v. Reuter, 115 Wash. 384, 197 P. 53 (1921).

          In each of the above cases, a finding was made that county boundaries can or had been established by acquiescence.  I found no case holding that county boundaries cannot be established by acquiescence.

          To the extent that Macon-Bibb or Monroe disagree with any of the boundary locations that have been proposed, they should avoid doing anything to show acquiescence, and take steps to show their disapproval.  Macon-Bibb has emphatically documented its lack of acquiescence in Terry Scarborough’s line by filing its objections to the line determined by Terry which resulted in the secretary of state’s order dated August 23, 2011 (copy attached), by filing the suit that resulted in Bibb County v. Monroe County, 294 Ga. 730, 755 S.E.2d 760 (2014), and by having expert witnesses testify at the August 9-10, 2017 hearing before the secretary of state.  The county commissioners can take the additional step of passing resolutions that they do not approve of one or other of the proposed lines.  But then there are immediate and critical issues like which county are real and personal property in the disputed area to be taxed, which county are people who live in the disputed area to vote in, which county are children who live in the disputed area to go to school in, what are the limits of police and court jurisdiction, etc.?  If, for these matters, both counties acquiesce in what is initially considered to be an informal line, it may ultimately be taken as acquiescence sufficient to fix the boundary.  To avoid this from happening, maybe the official documentation generated by the counties for such matters should carry the notice that the location of the county boundary is in dispute and/or that they do not recognize certain given lines.  For boundary establishment by acquiescence to apply, BOTH counties have to acquiesce in a particular line.

          Attached are copies of Terry Scarborough’s plat of his survey, and the secretary of state’s order that that survey be set aside and not recorded.  The exhibits that go with these documents are too numerous to reproduce here.  Despite the secretary of state rejecting the line and prohibiting Terry’s survey from being recorded, and subsequently holding hearings in which Macon-Bibb and Monroe offered evidence, the secretary of state and his successor have refused to decree a final determination of the location of the boundary.

          I will explain two items in the secretary of state’s “Final Determination.”  Page 9, paragraphs 3-4, state:

Scarborough “began to notice that chiseled holes and tool marks [in boulders on the edge of the Ocmulgee River] were evident on the upstream side of what began to be imagined as the ‘slip’ or ferry landing....  According to the Survey, timbers were positioned in the chiseled holes and a pulley system was used to direct the ferry across the river...  In addition to noticing the chiseled holes that Scarborough imagined to be a ferry landing, Scarborough discovered discarded railroad materials and metallic objects secured to rocks in the river....  The metallic objects included “wrought iron bolts, studs, rods etc. that featured bolts and hooked grapnels that obviously were used to provide stable anchorage.”

          The act of 1822 that defined the line stated it was to begin at Waller's or Torrentine's ferry on the Ocmulgee River.  The above passage refers to evidence that Terry took to establish the location of the ferry.  At the hearing on August 9-10, 2017, the expert witnesses for Macon-Bibb demonstrated that what Terry identified as “chiseled holes and tool marks” in which “timbers were positioned” for “a pulley system ... used to direct the ferry across the river” were actually a fairly common natural formation that occurs in granite.  They did this by documenting, with photographs and geological literature, similar features in granite boulders up to several miles upstream and downstream from the point in question, and in granite outcroppings in other parts of the state well away from waterways.

          The Macon-Bibb expert witnesses also demonstrated that in the late 1800s there was a railroad along the edge of the river that had nothing to do with a ferry operation and that all the iron work embedded in the boulders and strewn about the area was railroad related and not ferry related.

          Page 13, last paragraph, states:

Scarborough located the corner of the 12th and 13th Land District at a point 0.8 feet North and 46 feet West of the location currently relied on by the counties.

          This refers to the terminal point of the far end of the line.  There is an iron pin on the ground that has been generally recognized by Macon-Bibb, Monroe, and Crawford counties as their common corner, as well as recognized by surveyors generally as the common north corner of the 12th and 13th Land Districts, for many years.  The documentation I have seen about this pin indicates it plausibly marks the common corner of the three counties as defined by the 1822 act.  Terry’s selection of a previously unmonumented point 0.8 foot north of and 46 feet west of this pin therefore affects the boundary of Crawford County.  The Georgia code sections on settling county boundaries provide that the surveyor shall give the counties affected ten days’ notice of the time and place for commencing the survey, and the surveyor shall furnish each of the counties with a copy of the survey at the same time the survey is returned to the secretary of state.  One of the reasons the secretary of state set aside Terry’s survey was Terry failed to provide ten days’ notice of the time and place for commencing the survey to Crawford County, and he failed to furnish Crawford County with a copy of the survey within the required time frame after completing it.  After reading hundreds of pages of documentation generated by Terry and Macon-Bibb and Monroe counties, I am unable to find any explanation as to why Terry rejected the iron pin that has been recognized by the three counties as their common corner, in favor of an unmonumented point whose location is based on a mathematical formulation.

          My post of July 24, 2019, above, notes that Terry was convicted of contempt for failing, while under subpoena, to appear at the hearing before the secretary of state on August 9-10, 2017; and that Terry subsequently filed for certiorari to get the Court of Appeals decision upholding his contempt conviction overturned.  As expected, the motion was denied.

          Surveyors who are requested to survey county boundaries will find it useful to make a trip to the Georgia Archives in Morrow and study the files for past county boundary settlements made under the procedure set forth in Official Code of Georgia Annotated §§ 36-3-20 to 36-3-27.  As always, when requested to perform surveys, surveyors should bear in mind what the survey is to be used for.  The last time I looked at the county boundary files in the Georgia Archives was more than thirty years ago.  Of the ones on file then, Roger Cordes’s 1978 survey of the Newton-Rockdale boundary impressed me the most.  Among its many useful attributes, the plat is drawn on a low-altitude, very sharp, mylar aerial photograph that shows the ground features for a few hundred feet on each side of the line, and the plat is several feet long.  Anyone familiar with the area on the ground can look at Roger’s plat and, for any feature along the boundary, determine, visually, where the feature is relative to the boundary.  This makes it very easy for the tax assessors to determine which lands are within their respective counties for taxation, which county people should vote in, which county children should go to school in, and the limits of police and court jurisdictions.