When the boundary lines of any county in this state are so indefinite that a portion of territory, by reason of such indefinite description, is claimed by two counties, and such fact appears by petition of the board of county commissioners of either county to the state engineer, it is the duty of such state engineer, in connection with the county surveyor of each of such counties, to run out and establish such lines as nearly as may be in accordance with such defective description, fix and define such boundary line by monuments in accordance with rules issued by the state board of licensure for architects, professional engineers, and professional land surveyors, and to furnish the board of county commissioners of each of said counties with a description of such line as soon thereafter as may be practical, deposit such survey as a land survey plat in each county, and file a Colorado land survey monument record on each monument found or set, as specified in section 38-53-104. When such line is established it shall be the boundary line between said counties, unless one of said counties, within six months from the day of filing the description of said line by the state engineer with the board of county commissioners of such county, commences an action in a court of competent jurisdiction in this state to determine and settle such disputed line, and prosecute the same with due diligence until its final determination, or has settled such disputed line, within said six months, by arbitration. If the county surveyor of either of such counties shall not appear or assist the state engineer in making such survey after due notice so to do, it shall in no manner affect or invalidate such survey, or the boundary lines as they may be fixed by such state engineer.
Source: L. 1887: p. 238, § 1. R.S. 08: § 1162. C.L. § 8646. CSA: C. 44, § 89. CRS 53: § 34-2-10. C.R.S. 1963: § 34-2-10. L. 2017: Entire section amended, (HB 17-1017), ch. 15, p. 44, § 4, effective August 9.
ANNOTATION
An actual survey and marking of the line upon the ground is intended by this section, and an attempt by the state engineer and county surveyors to fix a disputed county boundary line without going upon the ground and making an actual survey, was unauthorized and their proceedings were without any force or effect whatever. Bd. of Comm'rs v. Bd. of Comm'rs, 25 Colo. 95, 53 P. 383 (1898), reversing 9 Colo. App. 368, 48 P. 675 (1897).
This section is mandatory upon the state engineer when he has received the petition. Commissioners of Routt County v. Commissioners of Grand County, 4 Colo. App. 306, 35 P. 1061 (1894).
Equitable not special action to correct errors of engineer. It was held where the state engineer having, under this section, established the boundary between contiguous counties, a proceeding instituted by one of them, under the statute, to correct alleged errors of the state engineer, is an equitable action, and not a special proceeding. Bd. of Comm'rs v. Bd. of Comm'rs, 58 Colo. 67, 143 P. 841 (1914).
Proper venue in county where property located. An action to judicially define and settle a boundary line, as fixed by the general assembly, involves an interest in real property, is for the determination of a form of an interest or right in real property, and affects property, and should be tried in the county where the property is situated. People v. District Court, 66 Colo. 40, 179 P. 875 (1919).
Survey without effect if action brought within six months. If within six months of the filing of the report of the state engineer upon his survey of a county boundary, an action is brought, pursuant to this section, to determine such boundary, such survey is without effect for any purpose. People v. District Court, 66 Colo. 40, 179 P. 875 (1919).
And district court of county from which, by survey, territory is taken, has jurisdiction of an action to establish the boundary under this section. People v. District Court, 66 Colo. 40, 179 P. 875 (1919).
Jurisdiction must be affirmatively pled. The complaint in an action under this section to determine and settle a disputed boundary line between counties, after one has been run out and established by the state engineer, must contain affirmative and positive allegations showing the proceedings to have been such as to confer jurisdiction. Commissioners of Routt County v. Commissioners of Grand County, 4 Colo. App. 306, 35 P. 1061 (1894).
As must statute of limitations. In order to confer jurisdiction in an action under the section to determine and settle a disputed boundary line between counties, after one has been run out and established by the state engineer, the complaint must affirmatively show that it was commenced within six months after the filing of the description of the boundary line by the state engineer. Commissioners of Routt County v. Commissioners of Grand County, 4 Colo. App. 306, 35 P. 1061 (1894).
Action under this section and estoppel separate causes. A complaint setting forth (1) the establishment of a county line by the state engineer, and that the plaintiff county is dissatisfied therewith, (2) the long recognition by both counties and the inhabitants and officials thereof, of the particular line for which the plaintiff contends, contains two separate causes of action, one the action authorized by this section and the other an attempt to set up an estoppel. Bd. of Comm'rs v. Bd. of Comm'rs, 58 Colo. 67, 143 P. 841 (1914).
Court renders judgment on evidence. In an action between counties under this section to establish a boundary line, the court has jurisdiction to render judgment upon the evidence, and is not limited to a determination of the accuracy of the line run by the state engineer. Bd. of Comm'rs v. Bd. of Comm'rs, 2 Colo. App. 412, 31 P. 183 (1892).
This section broadly confers upon a court of competent jurisdiction the power to determine and settle the disputed line, and it must be held that the jurisdiction conferred is ample enough to enable the court, on the testimony before it, to determine what the line is, and where it should be run. Bd. of Comm'rs v. Bd. of Comm'rs, 2 Colo. App. 412, 31 P. 183 (1892).