Houston v. Thomas

• Decision Date: 05 August 1991
• Docket Number: No. 90-1031,90-1031
• Citation: 937 F.2d 247
• Parties: Julia Donelson HOUSTON, et al., Plaintiffs-Appellees, v. Ruth M. THOMAS, et al., Defendants, State of Louisiana and Lake Providence Port Commission, Intervening Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 247

937 F.2d 247

Julia Donelson HOUSTON, et al., Plaintiffs-Appellees, v. Ruth M. THOMAS, et al., Defendants State of Louisiana and Lake Providence Port Commission Intervening Defendants-Appellants.

No. 90-1031.

United States Court of Appeals Fifth Circuit.

Aug. 5, 1991.

Gary L. Keyser, Asst. Atty. Gen., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for intervening defendants-appellants.

Robert R. Bailess, Wheeless, Beanland, Shappley & Bailess, Vicksburg, Miss., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ and DUHE, Circuit Judges. ¹

DUHE, Circuit Judge:

In a boundary dispute as treacherous as old man river itself, the appellants challenge the district court's conclusion that accretions to the west bank of the Mississippi River are within the territorial boundaries of Mississippi. Finding that the district court erred in its initial placement of the boundary thalweg between Louisiana and Mississippi, we reverse and render judgment for the appellants.

Meandering Through the Courts: The Proceedings Upstream

At issue in phase one of this bifurcated case was the sovereign ownership of a mass of accretions lying along the west bank of the Mississippi river near Lake Providence, Louisiana. ² The action was originally instituted by Mississippi citizens in federal district court as a suit to quiet title against Louisianians asserting ownership of the accreted lands. One year later, the State of Louisiana and the Lake Providence Port Commission intervened, praying that the accreted portion be adjudged Louisiana property. The intervenors filed a petition in the United States Supreme Court, requesting that the court exercise its original jurisdiction in this dispute between states. Inexplicably, the High Court declined the invitation.

The case proceeded to trial on the question of state boundary only, where the district judge waded through the testimony of experts and would-be landowners, as well as maps, surveys, and charts dating back to the late nineteenth century. The court ruled that the interstate boundary, frozen by an avulsive shift in the river, placed the disputed lands within Mississippi. Alternatively, the court found that Mississippi had exercised sovereign authority over the accretions, and that Louisiana had acquiesced in Mississippi's assertion of ownership. From that judgment, Louisiana takes this appeal.

Wading In: Two Tales of One River

We begin our voyage down the river with a review of the factual bases for each party's ownership claim. Their tales are so divergent that each will be separately recounted.

Louisiana contends that at the time the land grant patent was issued to Stephen Blackwell in 1881, a land mass identified on the General Land Office survey as "Island Number 94," or "Stack Island," was subject to the divided flow of the Mississippi River. Although relatively narrow, the channel flowing to the east of the island comprised the main navigable thread, or thalweg, of the river. ³ Accordingly, since federal common law fixes the interstate boundary at the thalweg, Louisiana argues that the island was incorrectly attributed to Mississippi on the 1881 survey plat.

Louisiana notes that a sudden and perceptible (avulsive) change in the main course of the river occurred in 1882, when dikes constructed by the Mississippi River Commission induced a change in the flow pattern, diverting river traffic into the west channel. Because that change was avulsive, however, the boundary remained legally fixed in the east channel. Flooding enlarged the east channel in 1912, filling the west channel impassibly with silt, and restoring the east channel to dominance. Meanwhile, Stack Island was gradually eroding away, and its fragments were accreting downstream on the west bank of the river near Lake Providence. Eventually, Louisiana suggests it was replaced by a new island formed in approximately the same location. Louisiana further claims that at all relevant times, it exercised sovereign authority over the disputed portion.

In contrast, Mississippi argues that in 1881, shoreline surveys and government lights indicated that the thalweg of the river was located to the west of Stack Island. Because the middle of the west channel formed the interstate boundary, the thalweg, Stack Island was properly attributed to Mississippi in the land grant survey. Mississippi acknowledges that the east channel gradually enlarged in the early 1900's, and the west channel was abandoned by navigation when it filled with silt and alluvium. However, because it characterizes that gradual shift as "avulsive" in nature, it suggests the interstate boundary remained fixed in the west channel.

Though it concedes the island has undergone substantial changes due to the processes of erosion and accretion, it maintains that the "original" Stack Island never eroded away. Finally, Mississippi maintains that it has consistently claimed, taxed, and exercised dominion over the accreted portion.

Navigating a Legal Course: The Rules of the River

Under the "Rule of the Thalweg," when a navigable river flows between states, the middle thread of the main channel of the river constitutes the interstate boundary. Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55 (1893). In early cases, courts defined the "main channel" as the deepest and most navigable branch of a waterway. However, in Louisiana v. Mississippi, 466 U.S. 96, 104 S.Ct. 1645, 80 L.Ed.2d 74 (1984), noting that the descriptions "deepest" and "most navigable" are frequently not synonymous, the Court refined the rule. Accordingly, current law dictates that the channel used as the "ordinary course of traffic on the river" is the river's thalweg. Id. at 101, 104 S.Ct. at 1648.

At least one exception to the Rule of the Thalweg is recognized: where an avulsive shift in the course of the river occurs, the boundary remains frozen in the former thalweg. Thus, "where a stream, which is the boundary, for any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary...." Nebraska v. Iowa, 143 U.S. 359, 361, 12 S.Ct. 396, 397, 36 L.Ed. 186 (1892).

Although "true" avulsive action is typically described as sudden and perceptible, our court has modified that characterization, opting to apply the avulsion exception where a change in the identity of the thalweg was slow and gradual. In Hogue v. Stricker Land & Timber Co., 69 F.2d 167 (5th Cir.), cert. denied, 293 U.S. 591, 55 S.Ct. 106, 79 L.Ed. 686 (1934), the ownership of Glasscock Island, a land mass in the Mississippi River, was the subject of a dispute between a Mississippi resident and a Louisiana corporation. The evidence revealed that although the east channel was once the thalweg, the west channel had gradually become dominant through the natural, dynamic forces of the river. While not contesting the original designation of the east channel as the thalweg, the Mississippi plaintiff argued that absent a sudden, perceptible shift in the river's course, the interstate boundary should follow the main channel of the river as it shifted westward.

Our court relying on Missouri v. Kentucky, 11 Wall. 395, 20 L.Ed. 116 (1870), disagreed. Though noting that "strictly speaking there was no avulsion," Id. at 168, it concluded:

... where the main channel changes from one side of an island to the other, it seems that the same rules as to boundary govern as are applied in cases of avulsion.... The old channel remains the boundary in the case of an island as well as in that of an avulsion.

Id. Thus, in the case of an island, even a gradual change in the orientation of the thalweg effects no change in the boundary, or in the sovereign ownership of the island.

Distilling these legal principles, we apply a two-step analysis in resolving this factual dispute. First, we determine which channel constituted the boundary thalweg in 1881. Second, we consider whether, under the Hogue exception, that boundary remained fixed notwithstanding a shift in the identity of the original thalweg. We conduct this inquiry against the backdrop of the clearly erroneous standard, giving due regard to the trial judge's assessments of the witnesses' credibility. See Fed. Rule of Civ. Pro. 52(a).

Step One: Looking Back to 1881

The appellants submit that the district court clearly erred in concluding that the boundary thalweg lay west of Stack Island in 1881, the year the land was patented to Stephen Blackwell. We agree.

In reaching its conclusion, the district court relied primarily on the interpretation given by Austin Smith, Mississippi's only expert witness, of information contained in an 1881 shoreline survey. The district court considered the surveyor's notation of a "good deep channel" to the west of the island, and Smith's testimony that depth was the determinative factor, as persuasive evidence of the dominance of that channel. It also noted the presence of a government navigation light on the west bank of the river near the island, concluding that light served to guide river traffic from the head of Stack Island down the west channel. Without elaboration, the court pronounced an 1881 survey accompanying a Mississippi River Commission (MRC) study inconclusive, and declined to consider it in formulating its findings. Although we acknowledge that the district court's findings are entitled to deference, after our review of the evidence, we are "left with the clear impression that an error has been made." Stauffer Chemical Co. v. Brunson, 380 F.2d 174, 181 (5th Cir.1967).

We recognize that it is not within the province of the reviewing court to second-guess the district court's assessment of Smith's credibility as a witness. However, it is apparent that Smith disregarded the only conclusive pieces of evidence in formulating his opinion. The first such piece of evidence is the hydrographic survey completed in...