State of North Carolina v. State of Tennessee

• Decision Date: 09 November 1914
• Docket Number: No. 4,O,4
• Citation: 235 U.S. 1,59 L.Ed. 97,35 S.Ct. 8
• Parties: STATE OF NORTH CAROLINA, Complainant, v. STATE OF TENNESSEE. riginal
• Court: U.S. Supreme Court

235 U.S. 1

35 S.Ct. 8

59 L.Ed. 97

STATE OF NORTH CAROLINA, Complainant,

v STATE OF TENNESSEE.

No. 4, Original.

Argued October 15, 16, 1914.

Decided November 9, 1914.

Mr. Thomas W. Bickett, Attorney General of North Carolina, and Messrs. F. A. Sondley, Theodore F. Davidson, and C. B. Matthews for complainant.

Messrs. Charles T. Cates, Jr., and Mr. Frank M. Thompson, Attorney General of Tennessee, and Messrs. T. E. H. McCroskey and Samuel G. Shields for defendant.

Messrs. John Franklin Shields and William A. Stone for the Babcock Lumber & Land Company, as amicus curioe.

Messrs. W. D. Spears and L. N. Spears for Theodore A. Cobb et al.-

Mr. Justice McKenna delivered the opinion of the court:

Suit in equity instituted by the state of North Carolina, as complainant, against the state of Tennessee, as defendant, for the purpose of having settled and determined the true location of part of the boundary line between the two states.

The pleadings consist of the original bill as amended, answer to the same, cross bill, and replication. Their allegations need not be detailed. They accurately present the controversy between the parties and the relief prayed by each of them.

The controversy concerns only a part of the line between the two states called, respectively, the Slick Rock and Tellico basins or territories. The contentions of the states are exhibited in general outline by the map on the opposite page.

It is alleged by North Carolina 'that dispute and controversy have arisen as to the true location of the state line between the extreme height of the mountain northeasterly of Tennessee river and the main ridge thereof southwesterly of the river,' and she 'has always believed and acted upon the belief, and alleges the fact to be, that the line between these points descends from the extreme height of the mountain northeast of the river to the river, crosses the river to a point in the southwest bank thereof just west of the mouth of the stream known as Slick Rock creek, follows the creek a short distance to a ridge leading up to the main ridge, follows said ridge up to the summit known as Big Fodderstack mountain, and follows the main ridge thence to the junction of the Big Fodderstack and Hangover leads, and thence follows the main ridge of Unaka mountain southwesterly.'

Tennessee denies that the line described by North Carolina is the true boundary line, alleges that North Carolina, at the time of filing her original bill, 'had not definitely determined how much of said boundary line she would dispute,' alleges an extension of 'the limits of the disputed zone,' that complainant does not allege that the boundary as run and marked by the commissioners in 1821 (their appointment and action will be referred to hereafter) follows other than the extreme height of the mountain, which is agreeably to the cession act of 1789 (given hereafter), and expresses a willingness that the line should be so marked and established in the

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orders of this court, and denies that it can be established agreeably to the cession act in any other place than along the extreme height of the mountain from the Tennessee river.

Further, Tennessee 'denies that there is any uncertainty in regard to that part of the boundary line northeast of the river, and avers that said boundary line northeast of the river runs, and was so marked by the commissioners in 1821, down the crest of the main ridge of the mountain, which gradually lowers as it approaches the river, and on said line near to or on the bank of said river, about a half a mile above the mouth of Slick Rock creek, a pine or hemlock tree was marked as a 'fore and aft tree,' which said tree is still standing, and is recognized as a 'fore and aft' boundary line tree bearing the marks placed thereon by the commissioners in 1821, and described in the North Carolina confirmatory act and the report of said commissioners, hereafter shown.' And avers 'that said boundary line as described in said cession act of 1789, and run by said commissioners in 1821, crossed directly over the Tennessee river from said 'fore and aft tree' to the crest of the main ridge of the mountain, which is known as the Hangover ridge or lead, and which runs from the Stratton Bald northeasterly to the river, lowering somewhat as it approaches the river, where it ends or terminates in a bluff practically opposite said marked 'fore and aft tree,' thence along the crest of said Hangover ridge or lead to said Stratton Bald and the junction of Hangover with Fodderstack, the Fodderstack ridge, however, being several hundred feet lower than said main or Hangover ridge.'

To these contentions the proof is directed, the record of which is voluminous. Besides other evidence, it is replete with the disputes of experts and of opposing deductions from their testimony. These, however, have their determination if not their reconciliation in certain dom- inating elements upon which our judgment may be rested.

The territory constituting the state of Tennessee was ceded to the United States by North Carolina in 1789. In the act of cession the boundary line was, as described, from the French Broad river westerly as follows: 'Thence along the highest ridge of the said mountain [Iron mountain] to the place where it is called Great Iron mountain or Smoky mountain; thence along the extreme height of said mountain to the place where it is called Unicoi or Unaka mountain, between the Indian towns of Cowee and Old Chota; thence along the main ridge of such mountain to the southern boundary of this state.' A deed was made by North Carolina, in pursuance of the act of cession, in 1790, which followed the same description, as did also the act of Congress accepting the cession; also the Constitution of the state of Tennessee.

In the year 1796 North Carolina passed an act appointing commissioners to settle the boundary line between the state and the state of Tennessee. The latter state also appointed commissioners with similar authority. In pursuance of the authority the commissioners appointed by the states settled the line from the east to a point on the Great Iron or Smoky mountain west of the Pigeon river, marked by a stone set up on the north side of the Cataloochee Turnpike road, about due north from the present town of Waynesville, in Heywood county, North Carolina, and about 6 miles east of the point where the Tennessee river passes through the mountain range, leaving the line to the southern boundary of the states unmarked.

Subsequently each of the states (North Carolina in 1819, Tennessee in 1820) passed acts appointing commissioners, to meet with commissioners appointed by the other, 'and with them to settle, run, and mark the boundary line between' the states 'agreeably to the true in- tent and meaning' of the cession act. In the act of North Carolina it was provided that 'this state will at all times hereafter ratify and confirm all and whatsoever the said commissioners, or the majority of those of each state, shall do, in and touching the premises, and the same shall be binding on this state;' and Tennessee enacted 'that whatsoever the said commissioners, or those appointed by each state, shall do in and touching the premises, shall be binding on this state.'

Three commissioners were appointed by each state, who met and proceeded to the execution of their duties, and made report thereon to the respective states as follows:

'Having met at the town of New Port in the State of Tennessee on the 16th day of July A. D. 1821, to settle, run and mark the dividing line between the two States, from the termination of the line run by McDowell, Vance and Matthews in the year of our Lord 1799, to the Southern Boundary of the said States, Respectfully Report, That we proceeded to ascertain, run and mark the said dividing line as designated in the 11th article called the Declaration of Rights, of the Constitution of the State of Tennessee, and in the Act of General Assembly of the State of North Carolina; entitled 'An act for the purpose of ceding to the United States of America certain Western lands' therein described, passed in 1789:—Which said dividing line as run by us, Begins at a stone set upon the north side of the Catalochee Turnpike road, and marked on the West Side of Ten. 1821; and the East side N. C. 1821, running thence a southwesterly course to the Bald Rock on the summit of the Great Iron or Smoky Mountain and continuing southwestwardly on the extreme height thereof to where it strikes Tennessee River about seven miles above the old Indian Town of Tellassee, crossing Porters gap at the distance of twenty two miles from the beginning; passing Meig's boundary line at thirty one and a half miles:—the Equonettly path at fifty three miles; and crossing Tennessee River at the distance of sixty five miles from the beginning. From Tennessee River to the main ridge and along the extreme height of the same to the place where it is called the Unicoy or Unaka Mountain, striking the old trading path leading from the Valley Towns to the Overhill towns, near the head of the West fork of Tellico River, and at the distance of ninety three miles from the beginning. Thence along the extreme height of the Unicoy or Unaka mountain to the southwest end thereof at the Unicoy or Unaka Turnpike road, where a corner stone is set up marked Ten. on the West side and N. C. on the East side; and where a Hickory tree is also marked on the South side Ten. 101 m. and on the North side N. C. 101 m. being one hundred and one miles from our beginning. From thence a due course South two miles and two hundred and fifty two poles to a Spruce Pine on the North Bank of Highwassee River, below the mouth of Cane Creek; thence up the said river the same course about one mile, and crossing the same to a Maple marked W. D. and R. A. on the South bank of the River; Thence continuing the...