State of Arkansas v. State of Tennessee

• Decision Date: 23 April 1940
• Docket Number: No. 9,O,9
• Citation: 310 U.S. 563,84 L.Ed. 1362,60 S.Ct. 1026
• Parties: STATE OF ARKANSAS v. STATE OF TENNESSEE. riginal. Argued on Exceptions to Special Master's Report
• Court: U.S. Supreme Court

310 U.S. 563

60 S.Ct. 1026

84 L.Ed. 1362

STATE OF ARKANSAS

v STATE OF TENNESSEE.

No. 9, Original.

Argued on Exceptions to Special Master's Report April 23, 1940.

Decided June 3, 1940.

Mr. D. Fred Taylor, Jr., of Osceola, Ark., for complainant.

Messrs. Nat Tipton, of Nashville, Tenn., and C. M. Buck, of Blytheville, Ark., for defendant.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

The State of Arkansas brought this suit against the State of Tennessee seeking a decree determining the true boundary between the States at certain points and confirming the jurisdiction and sovereignty of the State of Arkansas over the described territory.

The bill of complaint set forth two counts. The first count presented the contentions of Arkansas as to the boundary in relation to an area known as 'Needham's Island', later as 'Cutoff Island' or 'Moss Island', and to a contiguous formation known as 'Blue Grass Towhead'. This is the only area which remains in controversy, as the parties have agreed by stipulation upon the boundary line to be fixed in relation to the land described in the second count.

Tennessee answered, contesting the claims of Arkansas and asserting by cross-bill its jurisdiction and sovereignty over the territory in question.

The issues were referred to Monte M. Lemann as Special Master. 301 U.S. 666, 57 S.Ct. 920, 81 L.Ed. 1332. The Master has filed a careful and comprehensive report recommending a decree in favor of Tennessee as to the area described in count one, and in accordance with the stipulation as to that described in count two. The case has been heard upon that report and the exceptions filed by Arkansas.

The Master set forth the following facts as agreed upon by the parties:

'Prior to 1821, the land in controversy in this suit was on the west bank of the Mississippi River and the main channel of the river flowed to the east thereof. At the location involved in this suit, the river at that time flowed around a twelve mile bend caused by the extension of a peninsula into the river from the western shore. In 1821 an avulsion took place in the course of the river occasioned by the waters cutting across the neck of this peninsula at a point where it had become only half a mile wide due to caving of the river banks. At the present time the main channel of the Mississippi River flows to the west of the lands in controversy and has so flowed for many years prior to the present. The original channel of the river is now, and has for many years been, filled up so that the island originally created by the avulsion is now, and has for many years been, physically connected to, and a part of, the eastern shore of the river'.

After a review of the evidence upon points in dispute, the Master made a summary of his findings and conclusions as follows:

'(1) The Territory of Arkansas was organized by Act of March 2, 1819, 3 Stat. 493, being carved out of the Territory of Missouri, which was a part of the Louisiana Purchase, and the eastern boundary of the Territory was the middle of the main channel of the Mississippi River.

'(2) In 1819 the lands in controversy were on the west side of the main channel of the river and were part of the Territory of Arkansas.

'(3) The avulsion at Needham's Cutoff occurred in 1821.

'(4) The main channel of the river flowed through the cutoff prior to 1836.

'(5) Arkansas was admitted into the Union on June 15, 1836, 5 Stat. 50, and its eastern boundary was fixed at the middle of the main channel of the Mississippi River.

'(6) On June 15, 1836, when Arkansas was admitted into the Union, the lands in controversy were on the east side of the main channel of the Mississippi River.

'(7) The avulsion did not change the boundary line theretofore existing between Tennessee and the Territory of Arkansas.

'(8) The Act of Congress of June 15, 1836, admitting Arkansas into the Union, did not have the effect of excluding from the boundaries of the State of Arkansas lands which immediately prior to the adoption of the Act were within the Territory of Arkansas.

'(9) Tennessee was admitted into the Union on June 1, 1796, 1 Stat. 491, c. 47. Its western boundary was the middle of the main channel of the Mississippi River. The lands in controversy were in 1796 on the west of the main channel of the river.

'(10) The Act of June 15, 1836, 5 Stat. 50, admitting Arkansas into the Union, did not have the effect of enlarging the boundaries of Tennessee.

'(11) From 1826 to the date of the filing of this suit, Tennessee has continuously exercised dominion and jurisdiction over the lands in controversy.

'(12) Arkandas has acquiesced in Tennessee's exercise of dominion and jurisdiction.

'(13) The lands described in Count One of the complaint are now within the boundaries of Tennessee as a result of prescription. Bluegrass Towhead, which has been formed by gradual processes and is attached to Moss Island, is likewise now within the boundaries of Tennessee'.

The exceptions of Arkansas to the Master's report present for the most part questions of law. Arkansas contends that its true eastern boundary at the place in controversy was determined by the rule of the thalweg, being the middle of the main channel of navigation of the Mississippi River as it existed when the Treaty of Peace between the United States and Great Britain was concluded in 1783, subject to such subsequent changes as occurred through natural and gradual processes. Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638, L.R.A.1918D, 258; Arkansas v. Mississippi, 250 U.S. 39, 39 S.Ct. 422, 63 L.Ed. 832; Arkansas v. Mississippi, 252 U.S. 344, 40 S.Ct. 333, 64 L.Ed. 605. The Master supports that contention with respect to the original boundary of the Territory of Arkansas, and also the contention that the avulsion of 1821 did not change the boundary line theretofore existing between Tennessee and the Territory of Arkansas; and, further, the Master holds that the Act of 1836 admitting Arkansas into the Union did not operate to exclude from its boundaries the lands which immediately before were within the Territory of Arkansas or to enlarge the boundaries of Tennessee.

Despite these conclusions, the Master is of the opinion that the area in question should now be deemed to be within the boundaries of Tennessee by virtue of prescription and the acquiescence on the part of Arkansas in the exercise by Tennessee of dominion and jurisdiction over that area. Upon that question of fact, the Master found that Tennessee had continuously exercised that dominion and jurisdiction from the year 1826 to the time of the bringing of the present suit. In support of this finding, the Master thus summarized the evidence:

'The contemporary evidence shows that as early as 1823 entries of the land were being made under the authority of Tennessee and surveys were made under authority of Tennessee as early as 1824. Witnesses sixty-five, seventy-eight and eighty-four years old testified before me that the inhabitants of the island always voted in Tennessee elections; were taxed by Tennessee, married by Tennessee Justices of the Peace, required to do road work under Tennessee authority, educated upon the island in a school operated by Tennessee. The records of Dyer County, Tennessee, showed that assessments on the lands in controversy for local taxes were made by Tennessee authorities and land taxes paid to Tennessee as far back a 1870, prior to which records are missing. Tennessee Exhibit 42 shows a tax sale by a Tennessee sheriff in 1848 covering lands on the island. The bill of exceptions in the case of Moss v. Gibbs, shows testimony in that case that as far back as 1826 Tennessee assessed the lands on the cutoff island, collected the taxes on them and served process there. The opinion of the Supreme Court of Tennessee in Moss v. Gibbs (1872) 10 Heisk. 283, 57 Tenn. 283, recites these facts as proven therein'.

The Master added that if he was mistaken in thinking it proper to consider the depositions and opinion in Moss v. Gibbs, supra, as affording evidence in this case, 'the testimony taken before me and the other documentary evidence, consisting of certified copies of entries, surveys and patents, is, in my judgment, sufficient to prove Tennessee's long and uninterrupted exercise of dominion and jurisdiction over the lands in controversy'.

The Master was equally explicit in finding that the record showed the acquiescence of Arkansas in this assertion of dominion by Tennessee. On this point his report states:

'There is no showing that Arkansas ever asserted any claim to the land in controversy prior to the institution of this suit. The lands were never surveyed or granted by Arkansas. In 1848 the United States Surveyor of Public Lands in Arkansas wrote to the General Land Office in Washington that he had been called upon to survey the lands on the cutoff island. He received a reply authorizing him to proceed with the survey of the island 'more especially if it is not claimed by the State of Tennessee'. But no survey was ever made. On October 10th, 1935, application was filed with the Commissioner of State Lands of Arkansas for the...