State of Arkansas v. State of Tennessee

• Decision Date: 05 October 1925
• Docket Number: O,No. 2,2
• Citation: 269 U.S. 152,46 S.Ct. 31,70 L.Ed. 206
• Parties: STATE OF ARKANSAS v. STATE OF TENNESSEE. riginal. Argued on Exceptions to Commissioners' Report
• Court: U.S. Supreme Court

269 U.S. 152

46 S.Ct. 31

70 L.Ed. 206

STATE OF ARKANSAS

v STATE OF TENNESSEE.

No. 2, Original.

Argued on Exceptions to Commissioners' Report. Oct. 5, 1925.

Decided Nov. 16, 1925.

Mr. Caruthers Ewing, of Memphis, Tenn., for complainant.

Messrs. Guston T. Fitzhugh, of Memphis, Tenn., Charles T. Cates, Jr., of Knoxville, Tenn., and Albert W. Biggs, of Memphis, Tenn., for defendant.

Mr. Justice BUTLER delivered the opinion of the Court.

The commissioners, who were named by the decree entered June 10, 1918 (247 U. S. 461, 38 S. Ct. 557, 62 L. Ed. 1213), and directed to run, locate, and designate the boundary line between the states along the portion of the Mississippi river that was left dry as a result of the avulsion in 1876, filed their report May 24, 1921. They correctly understood, and counsel for the parties agreed with them, that the directions contained in the decree applied to the two branches of the river as it formerly flowed-the Devil's Elbow around Centennial Island and Island 37, and also the old river bed between Brandywine Island and the Tennessee shore. They found and recommended a line indicated by courses and distances set out in, and shown on a map attached to, their report. The defendant filed numerous exceptions which need not be quoted at length. The substance of its contentions is sufficiently indicated below.

Defendant asserts that the commissioners established the boundary line before its witnesses were heard and before cross-examination of any witness for the plaintiff. But the record does not support the contention. In July, 1918, the commissioners examined the territory involved. In October, 1919, they took a survey party to the place to commence work. In 1920, they completed their surveys including the line, then only provisional, which later was recommended in their report. The making of these surveys in advance of hearing the testimony was an appropriate step in the investigation. While the field work was in progress the commissioners spent most of the time in the field, assisting, and examining the topography and comparing the evidence. Facts disclosed by the survey and so gathered well might be deemed to be useful to enable the commissioners the better to understand and determine the value of other evidence. The report states that the commissioners spared no effort to secure maps and evidence indicating the course of the channel from the earliest record down to the time of the investigation. And that statement seems well supported. There is nothing to justify the suggestion that the commissioners established the line without considering the evidence.

Defendant insists that the middle of the main navigable channel as it existed before the avulsion could not be located with reasonable certainty, and that the commissioners should have so reported (decree, par. 5). It maintains that the recommended boundary, except that portion between Island 37 and Arkansas, is based entirely on a reconnoissance made by Maj. Charles R. Suter, Corps of Engineers, United States Army, in 1874, and insists that the Suter line is not established by the evidence. Objection is also made to the location of the channel on the east side of Island 39, and to certain other parts of the commissioners' line.

The boundary line to be located is the middle of the main channel of the river as it existed in 1783 subject to subsequent changes occurring through natural and gradual processes. In 1823, the location of the river was substantially as indicated on a map, referred to in the record as Humphrey's map, and there has been no map or survey, which tied the channel to any fixed monument, showing the location of the river as of any later date. The evidence shows that such channels are liable to change substantially from time to time. And the parties stipulated that from 1823 to 1876 the river and land lines had been altered as shown in the opinion of the Supreme Court of Tennessee in the case of State v. Pulp Co., 119 Tenn. 47, 59, 104 S. W. 437. The Humphrey map is on page 60 and the Suter map on page 62 of the opinion (104 S. W. 439, 440). The changes found to have taken place in this period need not be specified. There is nothing to indicate that the 1823 map is useful as a guide to the boundary line as established by the interlocutory decree. The reconnoissance of 1874 was made pursuant to an Act of Congress a...