Every municipal corporation must have definite boundaries, and these may be fixed by the legislature when enacting the charter and they may be subsequently changed by the same body[i].
In its exercise of incorporating municipalities the legislature has plenary power[ii]. The legislature having this constitutional power, the exercise of it is wholly within its discretion and it can in no way be controlled by the courts[iii].
In McGraw v. Merryman, 133 Md. 247 (Md. 1918), the court held that whether the incorporation power was wisely or unwisely bestowed or the mode in which it has been exercised is just or unjust, and burdensome upon the citizen, are questions with which the courts have no right to determine but are within the exclusive control of the Legislature.
However, in a matter such as the incorporation of a municipal area, strict adherence to the express terms of the statute is necessary[iv]. Further, the needs of the municipality and the benefits to the property and residents thereon are the sole justification for inclusion of land within municipal limits[v].
The territory to be incorporated into a single municipal corporation should be contiguous[vi]. To be contiguous, the tracts of land in the territory must touch or adjoin one another in a reasonably substantial physical sense[vii].
Generally, the courts disfavor finding one territory to be contiguous to another territory when the only link between the two is a narrow corridor[viii]. However, contiguity is not destroyed by water or marshlands which separate parcels of highland[ix].
Two municipal corporations cannot have co-existent control over the same territory and contemporaneously exercise essentially the same governmental powers in it[x]. Thus, there cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdictions, and privileges[xi]. However, the legislature has power to authorize the formation of two municipal corporations in the same territory at the same time for different purposes[xii].
The legislature has the right to authorize the formation of quasi-municipal districts with the power to tax for their special purposes, which might embrace or include cities and towns within their boundaries[xiii].
The doctrine of acquiescence applies when fixing the boundaries of municipal corporations[xiv]. However, the doctrine will not be applied where the boundary at issue has been clearly fixed by the legislature.
In Town of Riverhead v. Town of Brookhaven, 273 A.D.2d 459 (N.Y. App. Div. 2d Dep’t 2000), the court held that the doctrine of acquiescence is applicable where, by custom, usage, and the passage of time, disputed territory has been assumed by all interested persons to be beyond the boundaries of one entity of local government and within those of another, and, where property owners or adjacent units of local government have relied, to their detriment, upon the inaction and passivity of a municipal corporation to which knowledge of the original boundaries at the time of incorporation may be imputed.
Where there is ambiguity in the description of the boundary of a municipality, prevailing usage or custom or contemporaneous construction of such description may be resorted to in determining the boundary, but neither usage and custom nor contemporaneous construction will prevail over a plainly designated boundary line[xv].
When a municipal corporation is bounded by a tidal navigable watercourse, its territorial limits extend only to the low water mark[xvi]. When it is bounded by a fresh water unnavigable watercourse, its territorial limits extend to the middle of the stream.
However, in the case of a navigable but non-tidal water-course, there is a conflict of authority[xvii]. In some states, the private title of a riparian owner extends to the center of all non-tidal watercourses, whether navigable or not, and in such states it is held that municipal boundaries also extend to the center of the stream. In a state in which the title of a riparian proprietor upon navigable watercourses extends only to a low water mark, if one of the boundaries of a municipal corporation, as designated by statute, is a navigable stream, such boundary does not extend beyond the low water mark.
[i] Malone v. Williams, 118 Tenn. 390, 411-412 (Tenn. 1907).
[ii] Carrithers v. Shelbyville, 126 Ky. 769 (Ky. 1907).
[iii] McGraw v. Merryman, 133 Md. 247 (Md. 1918).
[iv] Griffin v. City of Robards, 990 S.W.2d 634 (Ky. 1999).
[v] McKeon v. Council Bluffs, 206 Iowa 556, 560 (Iowa 1928).
[vi] Griffin v. City of Robards, 990 S.W.2d 634 (Ky. 1999).
[vii] In re Proposed Incorporation of Volo, 229 Ill. App. 3d 321 (Ill. App. Ct. 2d Dist. 1992).
[viii] Griffin v. City of Robards, 990 S.W.2d 634 (Ky. 1999).
[ix] Glaze v. Grooms, 324 S.C. 249, 253 (S.C. 1996).
[x] Galena Park v. Houston, 133 S.W.2d 162 (Tex. Civ. App. 1939).
[xi] Homewood v. Wofford, 232 Ala. 634, 635 (Ala. 1936).
[xii] Wagener v. Smith, 221 S.C. 438 (S.C. 1952).
[xiii] Aurora v. Aurora Sanitation Dist., 112 Colo. 406 (Colo. 1944).
[xiv] La Porto v. Philmont, 39 N.Y.2d 7 (N.Y. 1976).
[xv] Stephens City v. Zea, 204 Va. 88 (Va. 1963).
[xvi] Covington v. State Tax Com., 231 Ky. 606 (Ky. 1929).