ARKANSAS v. TENNESSEE
Argument of Don Langston
Chief Justice Warren E. Burger: 33, brought from the original jurisdiction of the Court, the State of Arkansas against the State of Tennessee.
Proceed whenever you're ready Mr. Langston but we'll wait until you have your papers all assembled.
Mr. Don Langston: May it please the Court.
Chief Justice Warren E. Burger: Mr. Langston.
Mr. Don Langston: This is an original action brought by the State of Arkansas against the State of Tennessee under constitutional provision for original actions boundary disputes between states.
The case reaches here on a motion, or leave to file a complaint, statement and support of the complaint, statement and support of the motion and complaint filed by the State of Arkansas against the State of Tennessee.
The Court accepted the case and appointed a Senior District Judge from the State of Minnesota, the Hon.
Gunnar Nordbye to set as a Special Master in this case, a hearing was held in Memphis, Tennessee in August and September of 1968.
The Master entered its report finding against the interest of the State of Arkansas and the case now comes before this Court on exceptions filed by the State of Arkansas to that report and our brief in support thereof.
As a preliminary statement concerning this case, when this case came to the attention of the State of Arkansas, we hired a special counsel, George Cracraft of Helena who is a specialist in this type of field concerning river boundaries.
In Arkansas, there are a few specialist in this and we felt that he was specially qualified to handle this case.
However, after the case was tried and it was briefed to the Master, Mr. Cracraft was elected as a Chancery Judge in 1968 and began his term in August of 1969.
We felt that Mr. Cracraft would handle this case for us here before this Court but we discovered a constitutional provision in Arkansas, which is Article 7 Section 25, which prohibit our judges to practice in lo and behold state and federal courts.
The area -- to move on, the area in controversy between the States of Arkansas and Tennessee comprised some 5,000 acres and lies physically on the west bank or the Arkansas side of the main channel, and according to all the evidence that was introduced before the Master, it has been there for at least -- as long as any witness who was presented could recall.
When the matter came to the attention of the State of Arkansas upon the complain of its citizens who lived in Crittenden County adjacent to this area and who had sensed the memory of any particular witness, these citizens had been in possession and control of it to the full extent of which the land was capable of possession.
These people had at various times and places who made the crops, engaged in husbandry of other sorts of raising cattle, hogs and horses on the property, and at from time to time severed, cut and removed valuable timber from the land assessing this land and paying severance taxes to the State of Arkansas and --
Justice Potter Stewart: Are there any residents or any residential buildings on the properties on that area?
Mr. Don Langston: No Your Honor.
There had been some but they have long since been removed.
Justice Hugo L. Black: What is its value?
Mr. Don Langston: Close to half million dollars, I believe Your Honor.
Justice Hugo L. Black: I mean, what -- its valuable quality, what are its valuable qualities?
Mr. Don Langston: It can be farmed with row crops and it has very much timber on it Your Honor.
Justice Hugo L. Black: What kind of timber?
Mr. Don Langston: Just hardwood timber and things of that nature that will grow and low type areas of the Alluvial Valley of the Mississippi River.
Justice Hugo L. Black: Anyone been farming it?
Mr. Don Langston: Parts of it are being farmed as crops.
It has been used for crops and so it remains in that type of thing.
Justice Hugo L. Black: How far from the Arkansas side of the river?
Mr. Don Langston: It's attached to the Arkansas side of the river.
Justice Hugo L. Black: That is to it?
Mr. Don Langston: Yes sir, Your Honor.
Justice Hugo L. Black: You should file it.
Mr. Don Langston: There is a marked area along there, but the area of photograph, which is located in the back of the State of Tennessee is free which is on A 11 Appendix A 6 will show that it is -- this is a 1929 map and the attachment to the State of Arkansas is even more now than it was in that particular time.
The only --
Chief Justice Warren E. Burger: Sometimes it's been separated from the mainland and sometimes the sandbar builds up and it's connected, is that it?
Mr. Don Langston: There are trees and vegetation and things that do connect it to the State of Arkansas, which have been filled in by sediment and it is attached to the State of Arkansas.
The portion how watery -- would some of -- would be separated from the state of it.
From the State of Arkansas, we contend that it is attached to our -- physically to our state.
Justice John M. Harlan: And what's the assignment here?
Mr. Don Langston: Close to five --
Justice John M. Harlan: Close to what?
Mr. Don Langston: 5,000 acres.
Chief Justice Warren E. Burger: Does this record show anywhere the likely or probable tax that either of the states would --
Mr. Don Langston: I don't believe with that Your Honor.
Chief Justice Warren E. Burger: But if there's somebody -- if somebody has been paying taxes on it to some state of --
Mr. Don Langston: They have been -- we contended that they had been paid in State of Arkansas Your Honor, and that the private citizens had conveyed consistent with the State of Arkansas and that no one from the State of Tennessee had ever been on it and that our people had been on it, had farmed it, paid taxes on it, conveyed it in accordance of the law –-
Chief Justice Warren E. Burger: When you say our people, I'm not sure just what you mean.
Mr. Don Langston: State of Arkansas citizens Your Honor.
Chief Justice Warren E. Burger: Or people without there weren't Arkansas citizens, maybe if they -- do they live on -- are there any -- was there residence there?
Mr. Don Langston: There was at one time citizens --
Chief Justice Warren E. Burger: I can't get that out of the record.
Mr. Don Langston: There worked one time I think a man by the name of Paget who lived out there, but most of all, it was mostly people who had adjoining lands on Arkansas that extended their lands on that into this particular area.
Justice Hugo L. Black: What did the Master find?
Mr. Don Langston: On the part of the acquiescence of our people being out there and he found against the State of Arkansas, we also placed evidence in the record that we built -- that the Crittenden County, Arkansas built roads and our Game and Fish Commission patrol the area for game laws and that our officers -- police officers police the area.
As early as 1933, according to the record in this case, some litigation was conducted with regard to this land in the Courts of Tennessee and various claims were made by the citizens of Tennessee to the lands from that date.
However, the record we think clearly reflects that no claimant of the State of Tennessee has ever put foot on this ground and not tilt or cut and remove any timber from the land.
We believe that if counsel for Tennessee would be completely candid with the Court, they would admit such claims of citizens of Tennessee have ever made the property to the date of this hearing have been paper claims only and that the only actual physical occupation of the area has been accomplished by citizens of the State of Arkansas.
We believe that the record is also silent to anything that the State of Tennessee as a sovereign has ever done to improve either the value or the use of this area.
So, for this background in mind, the officials of Crittenden County, the County Judge, Tax Assessor and other officials over in Crittenden County prevailed on the Attorney General and prevailed upon the Governor of Arkansas to request the Attorney General to bring this suit in the name of the State of Arkansas to determine who owned this property.
On the whole case, the Master found the fact of acquiescence which is our -- the citizens of Arkansas being on the land, he found this in favor of the State of Tennessee.
And as we understand the function of the Master who was appointed by this Court, these findings are not to be set aside lightly or if there's any basis in evidence at all, this Court will sustain them.
We cannot seriously urge that in this -- these exceptions to this Court to set aside those findings.
And the State of Arkansas Second, form a position, is that even though we haven't acquired the ownership of all this area by the acquiescence power, the exercise complaint dominion and control over it for a long period of time, that certainly a smaller portion of the area, then that claim by the State of Tennessee was actually part of its domain originally.
The exception which we do urge is not a factual one but is one of law and the position of the State of Arkansas in these exceptions is that even if the basic facts as found by the Master are true, he applied the incorrect rule of law to the facts in the local state line.
That brings us to the first argued point in our brief, which is that the Master erred in concluding that the boundary continued to move as long as the abandoned channel float during high water.
In this argument on Page 8 of our written brief, the rule is adopted by the Master, which he felt was controlling and I think both sides agree, which is based on a decision in Arkansas versus Tennessee to the effect that though the main channel is a movable one and the channel of navigation in a navigable stream, that after an avulsion and as a result of an avulsion, the change in boundary is not affected.
The case rules as stated on Page 8, the effect of an avulsion is not complete until it stagnates and ceases to run and as long as the channel remains a running stream, the boundary marked by it may be moved by an erosion.
But we contend that when stagnation occurs, the process then is at an end.
We quote from that case, the boundary then becomes fixed in the middle of the channel, as this Court has defined it and the gradual filling up of the bad that ensues is not to be treated as accretion to the shores but as an ultimate effect of the avulsion.
Now the Master in his report while he did recognize this rule and quoted it in his report, has very clearly, erroneously applied the rule in the same manner that Tennessee's principal witness, Mr. Rodgers misapplied it in the quoted testimony on Page 9 of our article.
Mr. Rodgers states that his entire report as to the location of the land between the two states and the matter is based upon the application of the rule that we -- that I just recited.
When the water stagnates at ordinary high water and when it ceases to run at ordinary high water, instead of the low water.
He also admitted in the same quoted testimony that he did not know and made no attempt to establish a line along that area where the water stagnated at low water.
Justice Hugo L. Black: And that to decide in favor of Tennessee is that -- ?
Mr. Don Langston: Yes sir, Your Honor.
Justice Hugo L. Black: What were his grounds?
Mr. Don Langston: We feel that he followed the Tennessee witness Rodgers testimony to the letter in finding this, we feel that in the old abandoned channel that the Master never did find when the water stagnated at low -- at low water which we claim that this Court has said he must do.
He did contend that he followed that rule but he couldn't held because he followed the testimony of Rodgers who never did set the time that the water first stagnated and the land became fixed.
Mr. Rodgers kept saying that every time high water would come in, it would erode a way and move the boundary and he kept accreting into the Arkansas shore and the Master adopted -- the Master adopted Mr. Rodgers' testimony that the boundary keeps moving every -- and the old, abandoned channel keeps moving every time the high water comes in and there's some more erosion.
Justice Hugo L. Black: If this is correct in that, was his judgment correct?
Mr. Don Langston: Yes Your Honor, if he's correct in saying that if he is correct in saying that the boundary does not become fixed when the water first stagnates and doesn't move, then the State of Arkansas doesn't have a case, but if the rule is that the water first time it stagnates which we contend it did in about 1917, or 1918, then his report is erroneous.
Chief Justice Warren E. Burger: On their theory, it could never change, is that correct?
Mr. Don Langston: That's correct Your Honor.
Chief Justice Warren E. Burger: Of course even if the river [Voice Overlap]
Mr. Don Langston: Unless the river came back cut all the way passed the old dead thalweg.
Justice Byron R. White: Well, after the avulsion there was a new channel, different location.
Mr. Don Langston: That's correct.
Justice Byron R. White: Which was the main channel of the river, and the old channel was still -- had some water in it.
Mr. Don Langston: That's correct.
Justice Byron R. White: Do you think that one of the -- when that new channel was activated and the old one became stagnant, as soon as it became stagnant, you should consider that it was a dead thalweg.
Mr. Don Langston: Right.
Justice Byron R. White: And, that should stabilize the boundary at that point.
Mr. Don Langston: That's correct Your Honor.
Justice Byron R. White: And the special Master found that it didn't although the new soil bed was active, the new channel active.
There was also he thought an old channel that was active and still effective to changes the boundary of the river.
Mr. Don Langston: And high water.
Justice Byron R. White: And high water.
Mr. Don Langston: That's correct.
Justice Byron R. White: And as long as the old channel is all dead and had some water in it, high water, that water could –- if it washed away into the shore of Arkansas the boundary of the state could change.
Mr. Don Langston: That's correct Your Honor.
I believe that's the Master's contention and then it's our contention and once the water is stagnating, the dead thalweg became the fixed boundary.
Justice Byron R. White: Well what's you're saying is that as soon as the water stagnates, then you could really do know there's been an avulsion, that there is a new channel active.
Mr. Don Langston: That's correct Your Honor.
Justice Potter Stewart: If you prevail on that point, that's the end of the case?
Mr. Don Langston: Tennessee would have an enclave that in accordance with our engineer's exhibit, would have an enclave in the State of Arkansas.
Justice Potter Stewart: Could we decide that here?
Would that have to be back to the master?
Mr. Don Langston: I'm sorry Your Honor.
Justice Potter Stewart: Would we decide that here?
Would that have to be back to the master?
Mr. Don Langston: We talked about this, I'm not sure what -- that this Court could enter judgment on it or whether it would have to be sent back for additional -- for a commissioner or someone to set that Your Honor.
We've discussed that and in my notes here, I have either this Court should do it or send it back.
Justice Potter Stewart: It doesn't have to be some kind of -- some kind of a premise you prevail, I'm not suggesting that you will but it wouldn't have to be some kind of engineering survey to do that?
Mr. Don Langston: Our engineer Mr. Smith did plan out the property by geodetic positions on one of our exhibits Your Honor.
Justice Byron R. White: I suppose your evidence did show what your claim was, -- namely that at certain time that the old channel was dead and at that moment, the boundary line was fixed.
Mr. Don Langston: That's correct.
Justice Byron R. White: And the Master I take it thought that that old channel didn't really die until what, 1950 or --
Mr. Don Langston: Well, it couldn't be until after 1955.
Justice Byron R. White: Well, until after 1955, although from 1915 or 16 or 17, some kind of --
Mr. Don Langston: A couple of years after 1915 or 16.
Justice Byron R. White: Although from back from 1916, the main channel has been used for navigation and what not has been the new channel.
Mr. Don Langston: That's correct.
That -- that's exactly our position that he should have found that -- that he should have found that the old channel died and -- it's our position that Mr. Rodgers also admitted in the same quoted testimony that he did not know and made no attempt to establish a line along the area where the water stagnated at low water.
The Master in adopting the Rodgers' report completely erred in fixing the state line in exactly the same place Rodgers did, he has applied the same rule, that is that the line becomes fixed only if the water does not run through the old channel at ordinary high water stages.
This is the ruling that even though if might stagnate and not run and even sustain vegistation at low water time.
When the water is high the water comes up to again to ordinary high water, the land again becomes fluid and it moves with the scarring effect of high water flow.
That's more along the line of what Mr. Justice White was asking.
We insist here that this cannot be what this Court intended in its prior decisions or that it intended for these old avulsions or could all should remain in dispute and flew it for many years.
The only other witness who testified to these matters was Alston Smith whose qualifications were set forth in the transcript to the record on pages 40 to 47 who has testified in many matters involving state lines over a hundred in number.
I think he has participated in some 16 of these cutoffs such as this and whose opinion has been accepted by this Court on at least two recent occasions which I referred to in our brief.
It was a testimony of our witness, the State of Arkansas witness that his training and experience indicated clearly that in a cutoff of this kind, stagnation would occur immediately and within two or three years.
There are no maps or data available as to when stagnation occurred but his experience in these cutoffs and call upon his training being with the Mississippi River Commission for 35 years and charge navigation enraging that stagnation would occur within two years from 1915 to 16 when the cutoff became complete.
In quotations from the record set forth on page 12 of our argument Mr. Smith indicates that within a couple of years the land would stagnate and become sedimented and that low water would have no flow.
The State of Tennessee has criticized or has taken the state of Arkansas to task in its brief concerning that we say that Alston Smith gave the only competent testimony in this case.
We don't except -- what we mean by competent evidence is that Rogers base his entire report on a -- an improper premise, that what makes his testimony incompetent that he didn't found when the water first stagnated but that he said that ground remain fluid when water flowed through that ordinary high water.
That's the reason why we contend that he is testimony concerning -- that is incompetent because he based it on the false premise.
As for our second argument --
Justice Potter Stewart: On an improper legal premise.
Do you think the test should be when the channel stagnates at low water and your opponents think that that should be when the channel stagnates at high water?
Mr. Don Langston: Now, the State of Tennessee says if the Master never did find that but I think from your conclusions -- from the conclusions that from that you've got to say that and that he did by not saying if he did say that because the map that he attaches to his report follows the line by Rogers and that was Rogers' testimony and they couldn't -- there couldn't be any other way he abridged it.
Justice Byron R. White: Which is that map, is it attached to it or --
Mr. Don Langston: The exceptions.
Justice Byron R. White: The exceptions.
Mr. Don Langston: Excuse me it's attached to the Master's report, I'm sorry.
Justice Byron R. White: You must have determine that one way or the other either at low water or high water and he had to pick the time at which that boundary line became fixed, didn't it?
Mr. Don Langston: That's our position Your Honor.
Justice Byron R. White: Was there any dispute that there were stagnation at low water long before the time that the master pick?
Mr. Don Langston: Roger said he didn't know, our witness said it occurred in two years after 1915, 16 and Roger's only testimony was --
Justice Byron R. White: What was the testimony then that the Master based his report on?
Mr. Don Langston: It was on Rogers' testimony.
Justice Byron R. White: What did Roger say?
Mr. Don Langston: He said that he had seen a foot of water there even after 1955.
So that means that he never did actually.
In other words, I think the master's report is still going to allow this land to move if it -- an ordinary high water if it moves into the State of Arkansas.
It's still fluid under master's conclusion.
Justice Byron R. White: Do you think the master would let it move if it was only flood water?
If it's a flood water?
Mr. Don Langston: That's the only conclusion you can come to you Your Honor.
Justice Byron R. White: If it is just routine retain high water and flood water?
Mr. Don Langston: There is difference, yes Your Honor.
We feel that he would let the line move at ordinary high water and also that the flood water would also be involved too.
So we think that he has never fixed actually -- of course -- he has fixed it but still under his theory it still fluid.
Justice Byron R. White: Well is there any doubt in the evidence, in Roger's evidence that -- or any other evidence that stagnation at low water occurred long before 1955?
Mr. Don Langston: Roger said he didn't know.
That's quoted in our brief Your Honor.
Justice Byron R. White: I know but when he says, he saw a foot of water there as late as -- after 1955, foot of water, when?
Mr. Don Langston: At ordinary high water.
So he is saying that the water never has stagnated.
Justice Byron R. White: Well at high water, what about at low water?
Mr. Don Langston: He never says that's the reason when we say his testimony is incompetent.
Justice Byron R. White: Well a foot of water or high water is much of a channel is it?
Mr. Don Langston: That's right Your Honor.
Justice Byron R. White: But it's affected it to --
Mr. Don Langston: If it would be -- If it calls some incretion it would still be making the boundary fluid.
Chief Justice Warren E. Burger: Now does this record show at what depth in that part of it, the water would cease to be moving water and becomes stagnant?
Mr. Don Langston: I believe the state of Tennessee says at 3.1 on the Memphis gauge, it was our contention that it would be at zero at Memphis gauge, that it would stagnant but we will accept the State of Tennessee's contention.
Chief Justice Warren E. Burger: Well, I should think that would consider the difference as they said three feet plus was the minimum, the evidence says that this crucial point there was one foot of water which as Justice White suggested doesn't sound like much of a channel.
Mr. Don Langston: That it would be enough probably to call some accretions.
Chief Justice Warren E. Burger: Does the evidence show that it could do that at a one foot depth?
Mr. Don Langston: I don't think there's any testimony on that Your Honor.
I don't recall.
Chief Justice Warren E. Burger: Well, this whole process comes from the water carrying silt in suspension, doesn't it?
Mr. Don Langston: That's correct.
Chief Justice Warren E. Burger: And you say the record does not show any expert testimony whether it will carry it and the substantial silt at a one foot channel?
Mr. Don Langston: Really, Your Honor, I just don't remember on that point Your Honor.
The next point that we attempt to make in our new exemptions is really based on our first contention that if the Court does not hold from State of Arkansas on his first contention then the second contention is also out.
That second contention is that the master erred in extending the Tennessee lands laterally down the stream so as to deny Arkansas access to navigable channel.
The 2845 of the State of Arkansas is attempting to develop here, is that state lines are supposed to be permanent and supposed to be fixed and suppose to be known and that this Court didn't intend for them remain fluid and movable after one of these avulsions indefinitely.
We are saying that this Court wants after an avulsion they want to -- it wants the state line to be set and not be moving and be fluid in depth.
That when this Court indicated that it was to become fixed at stagnation, it meant as soon as stagnation but here we are dealing with an exception to the rule rather than the rule and these exceptions should not be permitted to overwrite the rule itself.
We think the whole idea is to fix the boundary and to get it fixed as soon as possible, well at the same time preserve whatever rights either party might have and might have lost as a result of the avulsion.
It is not a cure all but simply something to preserve as near as possible the rights of either party.
On this point we simply take the position that the Master's finding of fact kept the old channel open too long, should have sedimented in Smith's scar, as our witness Smith did it.
Within a few years there after it was low water time and movement that it made after that period would have no effect on the boundary because the boundary became fixed.
We emphasize that when the stagnation occurred, the old thalweg no longer existed, it was dead.
The new channel of the river was then the live thalweg and above and below its point of intersection was a dead thalweg, the live thalweg became movable.
We also have emphasize the point that this Court should not permit the dead thalweg which is not alive, which has no life to override and control the live point.
This is all tied in with our argument which is beginning on page 14 of our brief.
The cases seem to hold very clearly that you can extend these formations upstream and downstream so far as to cut off access and navigation.
This is historical and has always run through our law as the right of access that seems to give rise to this root.
We don't want this Court to cut -- to allow the State of Tennessee to cut off the State of Arkansas access to the river for some two miles upstream and four miles downstream from the dead thalweg.
Chief Justice Warren E. Burger: What's the -- I could not get very clearly in mind the significance of access for court facilities, docs, words?
Mr. Don Langston: Your Honor of course the Federal Government has pretty much taken over navigation on these rivers but we feel that the only answer I can give you is we thought this out when we were studying this case that it's sort of historical and the access to the river is a right of property and should not be dealt with lively and it should --
Chief Justice Warren E. Burger: Are you talking -- then you did not necessarily mean the state's access but the private owner's access, is that it?
Mr. Don Langston: Well, we think the old state has access there too Your Honor.
We don't have any plans to develop a report or anything if it would answer your question.
Chief Justice Warren E. Burger: Well the only access the state would have if it's privately owned would be by right of eminent domain, wouldn't it?
Mr. Don Langston: Well the state of Arkansas owns to the bed of the stream Your Honor and it could --
Chief Justice Warren E. Burger: You've indicated that people have been farming this over the period of years on that private owners cert of title, at least I so understood you.
Mr. Don Langston: In Arkansas Your Honor, the private owners own only to the high water mark and the state of Arkansas owns from the high watermark to the bed of the stream.
Justice John M. Harlan: Did you make this argument and of course(Inaudible)
Mr. Don Langston: What argument is that Your Honor?
Justice John M. Harlan: When you're making this --
Mr. Don Langston: Yes.
Justice John M. Harlan: You did?
Mr. Don Langston: Yes Your Honor, that was the gist of cross of examination of witness Rogers that's set forth in our brief is that he never did to fix the time when they – well are you talking about the access?
Justice John M. Harlan: I'm talking about your access on here.
Mr. Don Langston: Yes Your Honor we said that the land should not be extended down stream from the dead thalweg or up stream from it.
We did make this argument.
Justice Potter Stewart: Does he deal with your contention in its report?
Mr. Don Langston: Yes, he gives it to the State of Tennessee.
Justice Potter Stewart: Well, I knew that.
I knew the result but does he talk about your argument and does he deal it?
Mr. Don Langston: Yes sir, I don't believe, I don't know what they did or not but he gives it to the state of Tennessee on leisure of Rogers testimony.
I'm advised by the social counsel that he did not.
Justice Potter Stewart: I didn't think of it.
Justice John M. Harlan: Part of my question was whether this is a point that emerged since the Master -- a legal point.
Mr. Don Langston: I really don't know Your Honor.
I think that we did advance it but may be not as vehemently as we have here.
I believe that would be better for my position.
Justice Potter Stewart: I wonder if I understood, perhaps I misunderstood something you said earlier.
Did you say if you lose out on the first point, you also lose on the second?
Mr. Don Langston: I believe it would Your Honor because the thalweg would have been moving each time and under the Master's theory, it would been moving downstream and upstream.
The Master found that the old thalweg did not die, that it is still fluid and moves in ordinary high water, that's our contention.
So every time there's an erosion or something, that moves the what we call the dead thalweg so to prevail on your point that is prevailed under the your second point, you must prevail on the first.
We say that the thalweg cutoff here and on this downstream is our and all the upstream is our but I ask the --
Justice Byron R. White: I would think that the Master could be right on the first point and you could still win on the second point.
If you have got a sound legal position that you were entitled to maintain your same river frontage that you had at the moment the avulsion occurred and that future accretions to (Inaudible) that's fragmented of (Inaudible) those accretions downstream, can't belong Tennessee because they must belong to Arkansas so the Arkansas can maintain this river frontage.
Is that independent for you?
I thought it was in your brief.
Mr. Don Langston: We sort of had it tied in with our first point but I do see what you're talking about I believe and maybe it's not tied in as much with the second point as in with the first point as I thought it was.
We were mostly relying on the Brootes (ph) case on this particular argument but we will take that land anyway we can get it.[Laughter]
If the Court has no further questions then --
Chief Justice Warren E. Burger: Very well, thank you.
Argument of Heard H. Sutton
Mr. Heard H. Sutton: Mr. Chief Justice, Mr. Associate Justice, the state of Tennessee urges that you overrule the exceptions of the State of Arkansas that you approve and confirm the report of the Master and in a decree in this Court as he recommends.
The case that we have before you involves the mighty Mississippi River and you are going to now, I believe change your positions and become engineers and judicial engineers are the final say and we hope to present to you now and picture so that you can determine that position.
Chief Justice Warren E. Burger: Will you draw that isle up a little bit nearer to -- and still leave room for yourself of course but --
Mr. Heard H. Sutton: Now, Your Honor this --
Chief Justice Warren E. Burger: Just for a moment, can you see?
Mr. Heard H. Sutton: Can you see Mr. Justice?
Justice Byron R. White: I think you're going to have to speak with the microphone –-
Mr. Heard H. Sutton: These drawings are in the exhibits.
We simply made copies of them because they will present to you in the sort of a pictorial way what we would like to tell you this afternoon.
Chief Justice Warren E. Burger: Now, will you get us oriented with the where North is, is North in the conventional top of the map position here?
Mr. Heard H. Sutton: Your Honor ordinarily the top of the map is North and --
Chief Justice Warren E. Burger: It doesn't look like now, does it?
Mr. Heard H. Sutton: It will be so on all of these drawings and there are only about three drawings where that rule is not used.
In other words most all of the maps that you see in this case, the top is north.
Chief Justice Warren E. Burger: Would you alert us when you are dealing with any exception?
Mr. Heard H. Sutton: Yes sir.
This case began of the history of it when Arkansas was admitted to the union in 1836.
At that time, the United States Government made a survey of the Arkansas land as it came up to the river bank and this would be the line of Arkansas in 1836.
Chief Justice Warren E. Burger: The outer side of the blue the mark --
Mr. Heard H. Sutton: Yes blue is the water, the white is Arkansas and this pink color is the Tennessee lands on which titles were traced to these accretions.
Justice Potter Stewart: Is that map reproduced in any of the --
Mr. Heard H. Sutton: No sir, not in the brief but there is a report by Mr. Rogers, it's Tennessee's exhibit 10 and in that report he places these maps in a reduced form so that you have the complete set up in there.
Justice Potter Stewart: That would be in the original record I suppose to --
Mr. Heard H. Sutton: That would be in original record.
Justice Potter Stewart: But not in anything that's been submitted to us?
Mr. Heard H. Sutton: No sir.
Now what I would like to do is to kind to take these by steps.
In 1825 the State of Tennessee was also surveyed by the General Land Office of the United States and that is the land that they established.
So that by those two original land surveys in that period of time, you can get the general position of the Mississippi river at the time Arkansas was admitted to the union.
Now, both states agree that at this time that the state line between Arkansas and Tennessee was in what is known as the thalweg or the valley way, the deepest part of the river where the boat run as it goes downstream.
Now you have the next one we have here was the survey by the Mississippi River Commission in the year 1877.
At that time the white again is Arkansas, the blue is the Mississippi River and the orange color is the added lands known as accretions, now what this Court has described the addition as accretions.
Now, may we stop a moment and explain about the erosion and accretion that is occurring at this time.
Chief Justice Warren E. Burger: Before you go on, does the orange colored area represents or tell us what portion of the total area in dispute is represented by the orange colored area here?
Mr. Heard H. Sutton: Well, the orange colored area is the land added by accretions to the original Tennessee lands holding because the rivers moving this way.
Chief Justice Warren E. Burger: Was that -- is the orange part all of the land that is in dispute?
Mr. Heard H. Sutton: None at this time.
It will show up later, yes sir and it will be colored orange so that you will be able to distinguish it.
What I wanted to explain is that the Mississippi River originally in ancient times flowed straight south upon the great lakes to the gulf, as it did certain things occurred in the bed of the river you would have a rise, you would have hard place so you would have a low over something that would impede that flow and that would force the water either to one side of the other and as it did it would scar the bank.
And as it scar the bank then of course the water would move along with it and as time progressed it would develop what is known as a bin in the river and around this bin, the best way to understand this it is more like the river with wheel.
This is the rim of the wheel and this is the hook.
The water flowing around the river with wheel is moving faster than the water around the hook and the movement of the erosion and the accretions that upon by the movement of that swift water occurs around this out of rim and that is where the fast water cuts the bank and chase the water in suspension downstream until it is slow and that is why accretions from on the inner side because the water is flowing slow.
So let us proceed this was a survey by the United States engineers at that time they were known as the Mississippi River Commission and it's a survey so that we know that in 1877, this is the way the river in this area look.
The next time we were able to find a survey or map was in the year 1904.
In 1877 to 1904, here again we show the original Tennessee land and now the additional forming of the accretions to the Tennessee shore and the Mississippi river is again cutting further into the State of Arkansas and washing away its lands.
Now, I have drawn a red line here to indicate where this Arkansas shore was in 1877, so you can see how far between those two years the Mississippi River actually eroded as the world we use into Arkansas.
Chief Justice Warren E. Burger: As of the date of that map.
Mr. Heard H. Sutton: Yes sir.
Chief Justice Warren E. Burger: To which you now addressing yourself though just for purposes of clarification, where do you say that boundary between these two states.
Mr. Heard H. Sutton: It is still in the thalweg.
Chief Justice Warren E. Burger: The center of the channel.
Mr. Heard H. Sutton: Of the channel of the river as it goes around that beam.
Justice Byron R. White: The distance traveled may not be the center?
Mr. Heard H. Sutton: It may not be the center but --
Justice Byron R. White: (Inaudible)
Mr. Heard H. Sutton: Your Honor, there are -- it was a case from this Court that it remains in the thalweg which is generally the deepest part of the river not always but it's where the boats go.
Justice Byron R. White: That rank has been very well kept like that because of the Arkansas.
Mr. Heard H. Sutton: According to measurements now on these maps in 1904 and the later one 1912, the engineers actually measured the depth of the water that's colored blue here and by examining those maps carefully you can see how deep the water is and those measurements mostly in most cases would be like one foot here, two feet, five feet, ten feet, thirty feet, fifty feet and within ten feet of the bank it would be 30 feet deep on the out of rim of the wheel.
In other words, the water there is just what they call a bluff bank, it would be very sharply dropped right down to a very deep depth and the boats actually run in close to the shore as they go around this band.
The next year and this is the question that Your Honor asked is the year 1912, 1915.
That was a survey again by the United States engineers in which they surveyed this whole area and this is the drawing that matches exactly the map made by the United States engineers.
In this case you will see that the river has moved considerably at again in Arkansas and that there is the beginning of the avulsion that we speak up that occurred in 1930.
Now, according to this question about the river stagnating at low water or high water which will get to in a few minutes.
At this time the river was at 11 feet and at 11 feet this depth through here was on seven or eight feet so that if we follow this low water or zero water, then at that time we had no channel through here we had no avulsion because at zero water this was all dry land from right here to right here.
Justice Potter Stewart: What do you mean zero water?
Mr. Heard H. Sutton: I won't explain that in detail later -- I might as well do it now.
The engineers designate the elevation of the land including the river by feet or numbers.
For instance, it is 279 feet on this shore from sea level at the gulf of Mexico.
In other words the land rises a total of 279 feet.
All right, at these locations for the sake of navigation they tell the pilots of the boats, how deep the river is.
They have established an arbitrary zero as they call it at some 200 and say 60 feet above the gulf level.
And that zero, that's the lowest point to which the river will ordinarily go doing its ups and downs doing the sea --
Justice Potter Stewart: That's low water?
Mr. Heard H. Sutton: No sir, low water is 3.2 feet above zero.
Now, the point is that that's an arbitrary figure for the purpose of these men on the river to know whether the river is shallow or whether it has got a lot of water because as it gets shallow, every time they come into a crossing in the river, it will be five or six feet deep or maybe eight feet deep and they have got to be very careful in getting across or they are on the ground.
The water round --
Justice Potter Stewart: That low water you say is 3.2 deep, where at the Matthews Gate?
Mr. Heard H. Sutton: At Matthews.
Now, that is established at that place you can go all up and down the river and they will have different heights and gages like the gage at Helena Arkansas is different from the one at Cairo, Illinois is different but only 14 or 15 miles from this point is a gage at Memphis that they have established for that area.
The 3.2 feet is what they call ordinary low water, that's when the water sinks to in the dry season.
Justice Potter Stewart: But that does not mean that up here when a 3.2 feet at the Memphis case if there is 3.2 feet of water up what we are talking about.
Mr. Heard H. Sutton: It will only give you a comparison.
Justice Potter Stewart: It's just as that is the point of low water and that's writing in the --
Mr. Heard H. Sutton: That's right, you will know.
Now, to understand this low and high water, the point that the State of Arkansas has confused here is they speak of high water and they do not distinguish between ordinary high water and high water.
Ordinary high water that was spoken of by Mr. Rogers is 18 feet on this Memphis gauge, that is know is mid bank stages.
There the river is just up good above this low stage.
The high water or flood water is around 40 feet on the Memphis gauge.
Justice Potter Stewart: Isn't there a difference between high water and flood water?
Mr. Heard H. Sutton: The flood waters as we speak of are when they get above that figure.
In other words the, 40 feet would be the measurement at the top of the bank and above that the water will flow over into the low lands.
Now, it's still confined within the Lewis until it gets above 50 and 55 feet but it is over its own banks at 40 feet.
Now, to this point in time, this is 1912 and 1950 the State of Arkansas has conceded and agreed with Tennessee that these accretions moved over into this position and that the Arkansas shore was eroded to that position, that the approximate state line is shown by this black line.
Now, they have a map that they have in here which they have placed the state line on it and we have one where we placed the state line but for most cases in accord, there might be some variation a little bit about where there was -- the depth was shown in two places and one will take one side one on the other.
But this would be the state line in 1912 as the -- just before the avulsion occurred.
Now, Your Honors when this case first began in 1968, the State of Arkansas said there was no avulsion.
That's what they plead in the case.
There was no avulsion.
They said that the river migrated and migration is by erosion and accretion.
The road on one side and accretions formed on the other.
They said that the river migrated up to this position in 1912.
Then they say that it reversed itself and migrated back down so that today, where it has migrated is the same river we had here and there was no avulsion, and that's the state when of their expert witness, when they plead.
Chief Justice Warren E. Burger: It would help me with the topic counsel if could see comparison again that the one you showed –
Mr. Heard H. Sutton: Well I was going down, yes sir.
Chief Justice Warren E. Burger: A flash, you just turn it up for a moment so we can make comparison.
Mr. Heard H. Sutton: This is as it is today.
Now, we have attached here to a copy of the aerial photograph which is the exhibit.
There was a picture from an airplane mean all this land and we took that picture laid it over here so that you could see just how they compare.
Chief Justice Warren E. Burger: Where is the river?
Mr. Heard H. Sutton: The river is at this point.
Chief Justice Warren E. Burger: Which – taking the island which is on the former picture, the last to previous exhibit, identify that on the second one for me at least that would help.
Mr. Heard H. Sutton: That would be this area.
Now, I have one of these maps set here but it's not the total to show the comparison but the reason we want to do that was for this area here.
Justice Byron R. White: You better go ahead now.
Mr. Heard H. Sutton: Yes, Your Honor, we will go through from begin and the end.
Justice Byron R. White: I'm sorry, I beg your attention, what is the overlay?
Mr. Heard H. Sutton: The over lay is also a copy of the aerial photograph of 1965.
In the few minutes I'll explain why it's here.
What I'm trying to get at that when they first began this case the State of Arkansas said there was no avulsion that the river migrated up to the position it is here, then it migrated back down, that is by erosion and accretion and that no avulsion ever occurred and that the river did not stagnate and this is by Mr. Smith, their own witness says, “No, it didn't stagnate it moves out and it moved back.”
Until they got in to the trial of the case before the Master and either I think it was the second day that they were there.
They change their position and they said, “Yes, we admit now that it did there was avulsion, that this channel did fall and that the river did not migrate back out as we claim.”
See, they first said that it migrated up this way and then came back east to where it is today.
In the middle of appearing before the Master, they admitted that this avulsion occurred and said that the river instead of migrating back to where it is today migrated on further westward.
They positioned by like that where it stagnated at low water and that's the argument of Arkansas but on that point there are witness on whom they're relying made this statement that is in the record, that the stage of the river has nothing to do with its stagnation.
That's his own testimony in this case.
He says that whether the river is at low water or high water or whatever stage it is, it has nothing to do with its stagnation.
Mr. Roger says that it is possible for the river to be moved by erosion and accretions when it gets up to about ordinary high water because that's the line he says where the vegetation ceases, says it possible.
Now, he didn't say that that's when it stagnates nor did the Master say that's when it stagnates.
The Master's statements to me is one that this Court could follow with and never have to worry about to be an outline.
Justice Byron R. White: What statement it is?
Mr. Heard H. Sutton: Your Honor, on page seven of the Master's report in the second paragraph.
Let see it's line 20 -- beginning at line 23, that would be about 2/3 of the way down and the master says this, “And when the water becomes stagnant and erosion and accretion no longer occur, the boundary becomes fixed in the middle of the old channel.”
Justice Byron R. White: So he's really saying if the erosion and accretion occur lays that high water or at extra ordinary high water, he is saying that as long as that could happen, the boundary could change.
Mr. Heard H. Sutton: He says that if erosion and accretion occur.
Justice Byron R. White: No matter whether it's an high water or low water anything?
Mr. Heard H. Sutton: That's right, you say that just like Mr. Smith said it is not the stage of the river that causes this.
If the riverbed moves then you have and it move by erosion and accretion, then it is not stagnated but when the bed does not move which is the same thing that the master has said as long as erosion and accretion doesn't occur.
Justice Byron R. White: Well, I suppose if this channel like that lake channel, that old with the old channel that north and west they weren't -- I suppose to be absolutely dry six months of the year or nine months of the year and that at very high water, there could be water running through which would erode the banks.
Mr. Heard H. Sutton: Your Honor that would depend on -- merely to think it is possible, yes and as a matter of fact the low is that.
Justice Byron R. White: And under the Master's rule, the state line would change then?
Mr. Heard H. Sutton: Yes sir, if it erodes, this court has said itself that so long as the old channel can be moved by erosion and accretion.
Justice Byron R. White: Even though it's no longer an active channel or for navigation or for anything else.
Mr. Heard H. Sutton: That's the point Your Honor, if there is enough water in there to cause it to erode, it is an active channel.
It could not be otherwise.
Justice Byron R. White: I know it is but just a little sort of a -- it's not really the arm -- it's just the sort of inactive arm with the Mississippi River?
Mr. Heard H. Sutton: Yes sir.
Now Your Honor, like the --
Justice Byron R. White: Although that inactive arm is sufficient to -- is still effective to change the boundary?
Mr. Heard H. Sutton: I don't think so, no sir.
It has not moved since 1929.
Justice Byron R. White: I know but if there was a lot of -- and certainly there was a large flood and water went through that channel, it would and it eroded, the boundary would change.
Mr. Heard H. Sutton: Your Honor, there had been two very high and extremely bad floods.
The one of 1937 is the one that caused Congress to reenact the flood control bill and that case of 1937 and 1947 neither of which had any effect on this situation here.
It is not the fact, the height of the water.
It's a question of whether it again becomes an active channel.
Chief Justice Warren E. Burger: As you're active in what sense, active in the sense -- object you have used?
Mr. Heard H. Sutton: That you have erosion and accretion there.
Chief Justice Warren E. Burger: Used for navigation or just capable of being used for navigation?
Mr. Heard H. Sutton: Well, Your Honor let me answer that in this fashion.
In 1932 a river board, a 125 feet long and 15 feet wide went through this channel here but only doing the stage of the river when the water was above 20 feet is what the man said it was about 20 feet, a little above mid stage.
He went through down a boat because he went through for a purpose, but the river boats would not have gone through there at all because even though water was flowing in there at that time, it was not an active channel, and there was no way for the regular boats to go in there.
You see, if it's an active channel, it will scar out its bed and move its bed some -- if it moves its bed, and that is the only time that it would affect a state line as when it becomes active.
Justice Byron R. White: I suppose you would agree that if there are these various stages of the river which I take it everyone agrees, there are that channel could be stagnant in the sense that there would be no erosion or accretion at the lowest stages of the river.
And yet at other times of the year at higher water, there would be a lot more water falling through that old channel and it would might that it knows on those occasions erode.
And the Master would say “as long as that is so there will be boundary changes.”
Mr. Heard H. Sutton: No sir Your Honor, let me explain there and let's take this particular situation as an example.
In 1929, this channel had already closed.
Now, there is a peculiar phenomenon that goes on when a channel is abandoned and this you will find in the reports of both Mr. Smith --
Justice Byron R. White: You mean the channel was closed to navigation?
Mr. Heard H. Sutton: The channel closes itself.
Justice Byron R. White: But it wasn't physically closed?
Mr. Heard H. Sutton: Yes sir, that's what I wanted to explain.
You will find it in both of these reports.
When this new channel becomes active, as you see it goes by this place here, what it tends to leave settlement right there and the front end or the head of it is they call 6155 and at almost any stage except real high water, you will not have sufficient flow, it will be some but not sufficient flow to affect anything.
That's what Mr. Rogers was explaining that he saw in 1955 at 18-feet on the gauge a foot of water flowing through that.
You could walk across it and it certainly didn't affect any thing.
Justice Byron R. White: When do you think stagnation occurred and erosion stopped?
Mr. Heard H. Sutton: We have a map to back us up Your Honor.
Here's the map of 1912 and the next map that we will show you is 1929, both survey maps.
And on this 1929 map, it shows right here how much it eroded between 1912 and 1929.
You got a picture of it.
Justice Byron R. White: Well, we got to look at it?
Mr. Heard H. Sutton: Yes sir.
We might -- well I wanted to get one other thing before I go forward to that is to give you a general picture.
All of this that we are arguing about, about when did it stagnate and what was the stage of the river involves this point right here.
You have the agreed state line at 1912, 1950.
Here is where the State of Tennessee claimed it went by 1929.
It made little red line.
So that we say the river moved just that far and just this part, that's all.
This has never moved but just this little part.
So when we talk about stagnation and Arkansas says that the Master held it wrong and that we used the wrong theory, he is talking only about this little piece right here but by the same token, he says that it moved over to here.
He just lined on which way did it go.
It did move for short while after that and wound up because you have a aerial photograph in 1929, and that is in your -- the reply brief of the State of Tennessee showing an aerial photograph of 1929 and there it is, that's the picture of it, of the river as it was, that's the abandoned channel 6423.
So we are not theorizing.
We are going by a record.
Justice Byron R. White: You think in 1929, the river was stagnant.
Mr. Heard H. Sutton: Yes sir and it has --
Justice Byron R. White: I mean that old channel was stagnant?
Mr. Heard H. Sutton: Yes it has not moved since that time at all.
You have all the pictures here that show, that is the reason that I had this situation here.
I put the map as it is today.
This is the one that the Master has as appendix 1 to his report.
We simply enlarged it and laid it over the 1912 map here for you to see.
And here's where the master says that the state line would be.
Chief Justice Warren E. Burger: But now when you have that overlay where is the main channel of the river?
Mr. Heard H. Sutton: Right here Your Honor.
Chief Justice Warren E. Burger: The boats used that?
Mr. Heard H. Sutton: That is the avulsive or our new channel, just as their old channel --
Chief Justice Warren E. Burger: Approximately what's the width of that channel, it's of course, it looks very narrow on this map.
Mr. Heard H. Sutton: Are you talking about as it is today?
Chief Justice Warren E. Burger: As it is today.
Mr. Heard H. Sutton: Do you mean the main river?
Chief Justice Warren E. Burger: Main river, yes.
The main river --
Mr. Heard H. Sutton: Here it is today.
Chief Justice Warren E. Burger: Yeah and what is the distance across the center?
Mr. Heard H. Sutton: Well, it varies and at this point it's --
Chief Justice Warren E. Burger: And to take the center of your map, I'm trying to get the relationship.
Mr. Heard H. Sutton: Right here, this is about a mile and a half.
Here it's about three-quarters of a mile.
But what I'm trying to get is from 1912 -- I remember at 1912, we are in accord as to the condition thing.
From 1912 to 1965, the only movement of the state line has been this area right here.
This area right here, that's all.
We will explain this later.
But as to the stagnation that the State of Arkansas has raised with you, the only question concerning that stagnation is where they stagnated here or stagnated here.
All of us agree that it is stagnated.
Justice Byron R. White: You mean from 1912.
Mr. Heard H. Sutton: To 1929.
Justice Byron R. White: 1929.
Mr. Heard H. Sutton: There was a movement of the old channel.
Justice Byron R. White: Yeah but take on the lower part of the map there.
Now the state line is that dark line?
Mr. Heard H. Sutton: It's the dark line.
Justice Byron R. White: Everybody agrees that was 1912?
Mr. Heard H. Sutton: Yes sir.
Justice Byron R. White: And since that time until 1929 or even until the day that that line has moved no farther west, is that right?
Mr. Heard H. Sutton: The red line that moved to there in 1929 which we will show you by how it moved and show you the maps that shows the movement of it, but that is all.
Now, the State of Arkansas does not argue about this movement here.
They say the stagnation, they argued only about this point right here and they want to move it to what they call 6720.
Justice Byron R. White: You mean they still agree that in the lower part of that channel, it was still active and not to be considered an active channel for purpose of moving the state line.
Mr. Heard H. Sutton: Yes, they get on to a theory that we will explain later on concerning that.
What I wanted --
Unknown Speaker: Is that to be below the intersection of the avulsion in the old channel?
Mr. Heard H. Sutton: That would be these two points right here.
Justice Byron R. White: But I mean this red line and that's quite below, isn't it?
Mr. Heard H. Sutton: The red line over here is where the state line moved from here to here.
Justice Byron R. White: But that's below the intersection or the avulsion.
Mr. Heard H. Sutton: As it was at that time.
Justice Byron R. White: How about to the west end of the island itself?
Mr. Heard H. Sutton: To here?
Justice Byron R. White: Yeah I know right that -- the state line there --
Mr. Heard H. Sutton: It's all the same as it was in 1912.
Justice Byron R. White: So you must agree then that that channel -- if the lower part of it, would you agree that the lower part of the channel, when do you say that the channel became stagnant in the area running by the island?
Mr. Heard H. Sutton: It became stagnated between 1916 and 1925.
Justice Byron R. White: 1916 to 1925.
Mr. Heard H. Sutton: 1929, excuse me.
Justice Byron R. White: Well if the lower part of the channel became stagnant, how could the upper part of the channel has been active?
Mr. Heard H. Sutton: This occurred long before.
See all of this movement occurred prior to 1929.
Since 1929, there has been no movement.
Between 1913 which is this map right here and the next survey which is 1929, there was a movement of the abandoned channel to this light degree.
Neither one of them move very much but the map show that they did move.
Now, we are arguing against a man that was on the ground, he had an instrument and he was looking through it and he was measuring and he says “now that's where the river went to”.
Now the presumption of the law is between these two periods of time where you do not have any actual evidence, the presumption of law of this in the state courts is that that movement was affected by erosion and accretion.
Now, we have two maps to show our position.
Mr. Smith does not have any maps to show how he arrived its missed car and he did not use these other maps.
He did not use the map of 1929, he did not use the map of 1980, he did not use the Arkansas map itself of 1921 which supports this position right here.
So I'm saying that Mr. Smith arrived at his opinion by his -- only by his experience as he says, but in using his experience he did not refer to maps that were available to him at that time.
Now, before I leave this map, I wanted to sort to say this --
Justice Byron R. White: Well Mr. Sutton, was the cross examination of Mr. Smith based on what you just said?
Mr. Heard H. Sutton: Yes sir, we crossed examined it.
Justice Byron R. White: And he conceded that he had not referred to the maps.
Mr. Heard H. Sutton: Your Honor, Mr. Smith never conceded anything and we had considerable difficulty getting him to answer question and that's why you will find the record is some 1300 pages and the master have to comment on that more than once.
He made this statement in the course of his discussions that he first said that there was no avulsion here.
That was his statement that the river moved up into this place and then has moved back.
And then says, “well I just couldn't get over that out and so I had to admit there was an avulsion there, but I'm not sure today”.
Now this is their expert witness and the Arkansas testimony.
“I am not sure today 1965, but that my first theory was the better one.”
That's the testimony of the man who is an expert witness.
He doesn't know whether there is an avulsion or migration and so testified in this case, so that we are faced with testimony of a man who says now that the river stagnated that is 7140.
When he first said it didn't stagnate at all.
So I can understand why the master did not accept his theory.
Now, let me say this, the master didn't accept Mr. Roger's theory about the ordinary high water, he just said when it ceases to flow or have erosion and accretion and then it stagnated.
And he says this river stagnated.
Justice Byron R. White: Well I don't know much difference it would make in this case but if the Master were wrong about saying that as long as there is accretion or erosion at any stage of the river through the old channel.
That's what you said a moment ago.
As long as there are erosion or accretion in that old channel, the boundary changes.
If he is wrong in that, it may not make much difference in this case but if he's wrong in that, well that's perhaps is the issue, one of the issues here.
Mr. Heard H. Sutton: You Honor, he didn't say at any stage.
He said that the water becomes stagnant, that's his first statement, and erosion and accretion no longer occur the boundary becomes --
Justice Byron R. White: Well I asked you awhile ago if that statement would cover a situation where erosion and accretion take place at some times of the year but not others.
It takes place at high water or at ordinary high water, it takes by 80 feet to take place, but at the ordinary low water it doesn't.
I would suppose that the statement of the Master would include that kind of erosion.
Mr. Heard H. Sutton: I don't think that that's what he meant to buy.
I don't think that's what he said.
He said here that the river did become fixed, that the river ultimately became fixed and stagnated and the abandoned channel as the result of avulsion of 1913-15 is now clearly visible and impressed on the earth's surface.
This question of the stage of the river is a false question.
Every technical man who had been here says the stage of the river doesn't have anything to do with it that it's whether the bed of the river can be moved.
Justice Byron R. White: I agree with that.
Mr. Heard H. Sutton: Alright.
In this case, the upper end of this channel had closed out so that there was no water in the upper end at all.
So we have no active channel even though water may flow in there when the river is up.
But let me say this --
Justice Byron R. White: And even though erosion occurs when it does.
Mr. Heard H. Sutton: How much erosion could occur?
You don't have the volume of water nor the velocity of water where the up end is closed in.
That is simply the fact that you have water flowing over the top of that, I think they call it river dam into this lower bed.
You have water flowing in there but you don't have anything that is active and you don't have any current in there that would create erosion and that has been the case here from sometime prior to 1929.
Prior to 1929 when it did finally move up there and stopped, it has remained in that same position, since 1929 there has been no change in the old abandoned channel.
Before I go further, I would say this that in trying to describe what's going on -- from now on, I would like to use the face of a clock and saying that the beginning point of this (Inaudible) would be at 3 o'clock on the face of a clock.
That the top of it would be at 12 o'clock, would be where the channel begins and gets enclosed to the Arkansas shore and remains there on round, and it goes on round from 12, 11, 10, 9, 8, 7 and 6 which is the bottom of the area in dispute.
Now, Your Honor, State of Arkansas has made a statement and furnished you in their brief.
The area that they claim is from which they measure there's two miles downstream and three miles upstream and so on.
That is incorrect.
What they have done in 1913, there was a flood which started this avulsion across here and the purpose there was a man who went out and made a free-hand sketch on an old map showing this channel cut through here do not have water at the same time, he made a general triangular area which he said was the remaining land of Tennessee that was cut off.
That was during the flood water which was 54 feet at that time and this was the amount of land, all of this pink area, was the amount of land that was visible above those flood waters in 1913.
The State of Arkansas has taken the extreme North part of that 1913 high water.
I remember this that this land at that moment in 1913 was much larger and this picture shows as the river comes up, it covers more of the edge of the shore.
So naturally you don't have as much land sticking out of the water but when the river went back down all of this land appeared again.
But the State of Arkansas takes the land of the river in 1925.
I remember this is 1930, they draw across this 1925 land and color that and say that's all the land that Tennessee had in this case.
That is incorrect.
In 1913, the land was there like it shows in 1912 except that this area has become enlarged but they have taken a free-hand sketch, they try to use that as a survey, and they try to tell us that was the land that we had in 1925 because in 1925 the new channel, this is the new channel in 1925, had eroded away the bottom part of those Tennessee accretions up to this line.
Now of course, at the same time, this river is moving up, these accretions are filling in here and they just forget all about the fact that their accretions here and say that this original piece of land.
In other words, it's two miles downstream and is two miles over this way, is from that little piece of land that he took off from a flood map in 1930, then he used the 1925 map to try to limit the boundaries of it.
Now, in 1925, the new river -- the new channel only now, remember the abandoned channel is showing here as stagnated.
It's still -- it's in this position and shows on the 1929 map.
But in 1925, the new channel did come up and rolled away so that the lower part became reactivated that is the lower part.
Now there you have the difference between what we have described as a channel of the river where water comes up in it and high water and it is subject to movement.
Well, it's only if it becomes active as a channel and here it did become active.
Now, what happened because of that active point?
The river coming around here actually eat just a little bit more over in Arkansas, just a little bit.
Now, it's their position and this is the point that when the river became active to this point and then reversed itself and started back down which I will show you later, that the state line left the active channel, it left out at a 90-degree angle to this shoreline of the new channel that it left and went out across like that.
Now, this Court has said that the state line remains in the old channel unless it's moved.
Justice Byron R. White: Yes but the old channel suddenly became part of the new channel.
Mr. Heard H. Sutton: That's right sir.
Justice Byron R. White: It's part of the bid.
So in 19 -- that's 25 is it?
Mr. Heard H. Sutton: Yes sir.
Justice Byron R. White: Where was the state line between Arkansas and Tennessee?
Mr. Heard H. Sutton: It's admitted by the State of Arkansas and we have attested an exhibit to our reply brief in which they show that the state line came out and still falling right along down here.
Now they also on the exhibit --
Justice Byron R. White: Even though the river had come back and joined with the old abandoned channel to some extent, the state line still remained in the old place.
Mr. Heard H. Sutton: It went just a little further in Arkansas because the active channel was eroding away.
In other words, the two combined channels, they went south and this point remained up against the bank.
Now, the reason for that, let's go back to our original picture, and you have the rim of a wheel and around the rim of that wheel, the deepest part was enclosed to the bank.
And the channel remained there, although it became active, that's in 1925.
Now, the next period of time at which there is a survey, I remember there were maps between 1913 and 1929 but they were not full survey maps.
There was a map in 1917, 18 and there was another map in 1921, and we have this partial survey of 1925.
The next full one was in 1929 at which time -- now here is this 1925 line and the river has -- the new channel only has reversed itself and started back south building accretions.
And here is the aerial photograph showing that and here are the accretions, as I was just saying you can see it that was built, but you see that this channel has not moved, it is still there.
These accretions build only to this part that is in Tennessee and that the water remained between the Tennessee lands and the Arkansas lands at all times.
Now, as the land build down, it simply separated the new channel from the old but because it always remained up against that bank.
Between 1925 and 1929, it eroded this bank just very slightly.
After 1929, nothing has moved.
In other words, the position of the old abandoned channel has been the same from 1929 today even though it was active for a time between 1915 and 1925.
Justice Hugo L. Black: Who owned that at that time?
Mr. Heard H. Sutton: At that time, it was still in the State of Tennessee.
Only the Tennessee lands were activated, I mean eroded or added to.
Now, the point that I'm trying to get at, only the new channel moved during that time.
The old channel never moved.
It became active but it stayed right where it was.
The new channel is the one the moved up and down and this Court has held very plainly that irrespective of the movement of the new channel, the state line remains in the old channel unless the old channel moves by erosion and accretion.
Justice Hugo L. Black: My I ask you if the record shows that any private owner ever claimed them responsible.
Mr. Heard H. Sutton: There is record of the Tennessee land owner claiming it and he traces his deeds and titles from the US Patent in 1828.
Justice Potter Stewart: That was before Arkansas was a State?
Mr. Heard H. Sutton: Yes sir.
Justice Hugo L. Black: Is there any -- later than that, is there any evidence of any private owner has claimed?
Mr. Heard H. Sutton: As I say he traces his title down to the present owner.
There is one man that owns his land in Tennessee and he has his deeds from the present time this suit began clear on back to the patents that were originally issued.
In other words, he can trace this title clear on back.
Chief Justice Warren E. Burger: How much of the area approximately?
Mr. Heard H. Sutton: Well, the entire area is -- let me say this.
Chief Justice Warren E. Burger: No, how much does he claim?
Mr. Heard H. Sutton: He claims all of it.
But now, I have to explain something to the Court here.
As you notice in 1929, how big that area has gotten?
Well, in 1967 a great deal of that has been cut off, so that now it's back up.
I might say this that this case goes long enough we won't have a land left, the river may go back if it washed all the way.
But the area has increased and decreased during the last 15 to 20 years.
It originally started out as 1400 acres and the highest it got to is the State of Arkansas claims is 5000.
We don't think it's quite that much, we think now it's about 3900 or 4000 acres, and that would only be developed by a survey.
But it has increased and decreased because this new channel keeps flopping back and forth, and the United States engineers of this day trying of what they call stabilize that new channel.
They are down now putting in dikes and they're putting in revetments and all other thing trying to stop this river from eating away which it shows right here today, it was beginning to eat back of this way again.
In other words this new channel just keeps going up and down like that.
The old channel has remained silent, ever since and, of course, Your Honor says, could it ever be changed.
If that river ever gotten this notion it won't go back to that place back it would.
And I'd say this, engineers are fine people but when the river gets mad at you it just goes on --
Chief Justice Warren E. Burger: But then you might be back here in 30 to 40 years down.
Mr. Heard H. Sutton: Well, it maybe this and it go back up there and start accreting to Arkansas and nail on it but it doesn't look like if the engineers are doing a wonderful job of stabilizing this cut that has been established here later.
I wanted to get --
Justice Hugo L. Black: I would judge as much as you say that neither state would suffer irreparable loss however we decided the case.
Mr. Heard H. Sutton: Well Judge Black, this case originally started in 1949 in the State of Tennessee in which the title to the Tennessee owner was put in question.
They said that this title did not include this land.
That case went to the Supreme Court of Tennessee and it was held by that Court that he did have the title to this land.
Then he turned around and filed a suit against --
Justice Hugo L. Black: And against here in the Court to show what is the value or the market value?
Mr. Heard H. Sutton: At that time Your Honor the value was $15,000.00 and you heard my opponent here today says worth a half million, I wish it was.
I wish it was --
Justice Hugo L. Black: And he never sold them?
Mr. Heard H. Sutton: No sir, it's held pending all of these.
Justice Hugo L. Black: And any part of it ever been sold or is it?
Mr. Heard H. Sutton: No sir.
Justice Hugo L. Black: Or is it passed on down just to the same owner?
Mr. Heard H. Sutton: Well in 1954, the Tennessee owner filed a suit against the Arkansas owners who were over that claiming the land, and that case went to the Tennessee Supreme Court on the question of jurisdiction, a plea and abatement as to whether it was in Arkansas and Tennessee.
Then it came back to the state courts and was tried on the question of acquiescence and that went back to the Supreme Court where it is now.
So it's been in litigation since 1949 and is still the -- all that litigation is pending now while the question of whether it's an Arkansas or Tennessee is settled.
So as far as ownership, it's been tied up.
Justice Hugo L. Black: When does the Arkansas owner claim his title started?
Mr. Heard H. Sutton: They took this from what they call a tax title.
Justice Hugo L. Black: And Arkansas --
Mr. Heard H. Sutton: Arkansas --
Justice Hugo L. Black: Taxes?
Mr. Heard H. Sutton: That the taxes on paid that goes to the state, the state can sell it to you.
Chief Justice Warren E. Burger: We'll pause now for lunch counsel.
You may proceed Mr. Sutton.
Mr. Heard H. Sutton: Thank you Your Honor.
Chief Justice Warren E. Burger: You've got about eight minutes left.
Rebuttal of Don Langston
Mr. Don Langston: Yes sir, I will have to hurry.
Your Honor before I get away from this early period of time, in our brief I have put a very small picture here of a 1921 map.
This is at appendix A 5.
Chief Justice Warren E. Burger: This is in your reply brief or your main brief?
Mr. Don Langston: The reply brief.
Unknown Speaker: 8957.
Rebuttal of Heard H. Sutton
Mr. Heard H. Sutton: Yes sir, this is State of Tennessee is the last one, the thick.
Justice Hugo L. Black: How wide did the river there place where this --
Mr. Heard H. Sutton: It's about one mile at its average width at the crossing and crossing is where it goes from one circle to another and sometimes it gets much wider.
Justice Hugo L. Black: How far is it from the Tennessee side?
Mr. Heard H. Sutton: About one mile.
Justice Hugo L. Black: How far is from Arkansas side?
Mr. Heard H. Sutton: The width of the river.
Justice Hugo L. Black: How far is the island?
Mr. Heard H. Sutton: The island is now the only thing separating it from the Arkansas shore is this old abandoned channel which --
Justice Hugo L. Black: How wide is that?
Mr. Heard H. Sutton: That is about 50 feet wide on the average.
Justice Hugo L. Black: It's about a mile over to Tennessee?
Mr. Heard H. Sutton: Yes sir.
The reason I wanted to point at this map, this is a map that was prepared by the official county engineer or credit in the county Arkansas.
On this -- this is for the year 1921.
Chief Justice Warren E. Burger: Is this appendix A 3?
Mr. Heard H. Sutton: Yes sir.
The purpose of putting this map in here this island or this piece of land that belongs to Tennessee is drawn in this particular map by the man from Arkansas and he shows the old abandoned channel in between it and the Arkansas shore.
Now, that is in 1921 and there's other times, when the state of Arkansas says there were no maps.
They did not present this map to the Court.
They did not use it in any of their deliberations at all.
They had to come out by the State of Tennessee.
Because of the limited time I would like to proceed on rather swiftly with the presentation of the picture from these maps.
After 1929, the next official map that had survey on it was 1937.
And as you can see, some of the low channel, the active channel or the avulsion channel had again cut back here a little bit but it had put a little tail than here but if you will notice that that land adds only to Tennessee.
It does not touch Arkansas at any place.
It was never formed in any part of Arkansas nor on this side of the old gateway channel that has again become inactive as the new channel moved away from it.
The next year on which there was a survey was 1949 and this one you will notice that the land here has increased in size greatly because the avulsion channel has moved south and washed away a great deal of the original Tennessee land, put it here.
Now, that's where it gets to that approximately four or five thousand acres.
But again in the next period of time which is 1965 and the survey in 1967, you will notice at a great deal of that has again been washed away by the new channel and this is a situation as it is today.
Now, the only change for this land between 1929 which was right, here is the addition of this little piece right there.
Always with the river between it and the Arkansas shore, at all times this land had remained there and had never moved and never come out.
This land simply added on to the Tennessee shore.
Now, that's what he's talking about tailing down the river.
Well, of course at this time, here is the river and the new channel is the thing it is moved.
Now, the point of law is that irrespective of the movement of the new channel.
The state line remains in that old channel unless it becomes active again.
Now, I would like to wind this up by making some statements, first about the claim of prescription.
There is no evidence in this case that Tennessee ever acquiesced in the State of Arkansas claim of sovereignty over this particular land.
Note that the Master found to that no evidence that they ever acquiesced and as far as prescription is concerned, they can of course obtain the control of this land if Tennessee acquiesced in their control to the land.
The record is replete here with law suits from 1932.
In 1932, there was a suit in the Federal District Court at Memphis to determine, if this is part of the same area of land, right here was either in Tennessee or Arkansas and it was so held that was in Tennessee in 1932.
That was a suit between first in Arkansas and one in Tennessee.
Then we have the series of suits beginning in 1949 coming clear to date, all in the Tennessee Courts where citizens of Tennessee are recognized by the Courts of Tennessee as being the owners of that land.
Remember this question --
Justice Hugo L. Black: How many miles from the coast of Tennessee over to the island?
Mr. Heard H. Sutton: How many miles from the --
Justice Hugo L. Black: Did you say it was one mile?
Mr. Heard H. Sutton: About one mile, yes sir.
Now, I was measuring in this --
Justice Hugo L. Black: Is there any evidence that any farmer ever went that mile to do farming?
Mr. Heard H. Sutton: Your honor, there are --
Justice Hugo L. Black: Is there of Tennessee?
Mr. Heard H. Sutton: Yes, they've farmed it in 1932.
Now, I must say this about this land.
It is overflown land.
Now, by that it is not protected by (Inaudible).
It is not good generally for farming except in little small spots and there is a spot here and one here where somebody add at different time.
Justice Hugo L. Black: How does a farmer get over that from Tennessee?
Mr. Heard H. Sutton: He would have to cross the river.
Justice Hugo L. Black: How?
Mr. Heard H. Sutton: They used a boat.
Justice Hugo L. Black: A boat?
Mr. Heard H. Sutton: This was a negro man that went over there and farmed for a while and I think the high water came along and wiped them out --
Justice Hugo L. Black: Just an ordinary boat was there?
Mr. Heard H. Sutton: Yes sir and those days they used the horse and mule but now water clear up something about --
Justice Hugo L. Black: They can use a mule not to get across the river?[Laughter]
Mr. Heard H. Sutton: I got it over there but they had -- they supposed to have a mule and farmed over there in 1932.
Justice Hugo L. Black: Where was the mule?
Mr. Heard H. Sutton: I don't know where they kept but he stayed over on that side of the river.
Justice Hugo L. Black: Over to the –-
Mr. Heard H. Sutton: Over in this area up here Your Honor.
Justice Hugo L. Black: Mile away from Tennessee?
Mr. Heard H. Sutton: Yes sir.
Now, one part I want to get at no one has ever lived on this land.
There has been a statement by my counsel or opposing counsel from Arkansas that Mr. Paget once lived there, he did not.
Chief Justice Warren E. Burger: I hope you haven't given your case the way with that answer to Justice Black, your position must be that mule was in Tennessee.
Mr. Heard H. Sutton: Oh yes, he was.
Chief Justice Warren E. Burger: Not a mile away from Tennessee?
Mr. Heard H. Sutton: Oh no, this mile from here to here is what I'm talking about and that's all Tennessee.
Justice Hugo L. Black: But you say that's Tennessee but how far --
Mr. Heard H. Sutton: From this side of the river?
Justice Hugo L. Black: Yes.
Mr. Heard H. Sutton: Well, it's just the width of the river because they lived on this side.
Justice Hugo L. Black: A mile?
Mr. Heard H. Sutton: It would be that mile across the river to this land.
Yes but they're always in Tennessee.
Justice Hugo L. Black: Is there any evidence in the record that this man owned a mule?
Mr. Heard H. Sutton: No sir, I don't –-
Justice Hugo L. Black: Kept owning a mule on the island mile away?
Mr. Heard H. Sutton: I don't believe so Your Honor.
Justice Hugo L. Black: That would have been a pretty hard farmer, wouldn't they?
Mr. Heard H. Sutton: If that's why he abandoned it that it was and that the farming that has been spasmodic all the time.
Chief Justice Warren E. Burger: I think your time is up counsel except you may have.
Mr. Heard H. Sutton: Thank you.
Chief Justice Warren E. Burger: If there's a question pending you can respond to it.
Mr. Heard H. Sutton: Your Honor before I leave, if it's permissible with the opposing counsel, l would like to leave this for the Courts.
Chief Justice Warren E. Burger: Well, we will treat them as visual aids to the Court.
Mr. Heard H. Sutton: I'll just let it informed.
Chief Justice Warren E. Burger: Consider them to the extent they're consistent with matters and evidence.
Rebuttal of Don Langston
Mr. Don Langston: Thank you Your Honor.
I suppose that the man from Tennessee probably got the mule over there for crossing the Memphis Arkansas bridge and came to Arkansas in Crittenden County and came down to the property from there.
Justice Hugo L. Black: Well, was there a bridge from Arkansas to the island?
Mr. Don Langston: This would have been the Memphis Arkansas bridge up the river.
Justice Hugo L. Black: But was there any bridge from Arkansas where you say Arkansas added any bridge permitting to the island, the 50 feet?
Mr. Don Langston: No, Your Honor it's a -- we can't claim it was passable by just own foot that the channel -- most the -- a lot of channel --
Justice Hugo L. Black: Passable on what, on land?
Mr. Don Langston: Yes, Your Honor, the channel dried up.
The course of the channel dried up and trees and sediment field in there where you can cross it by foot or anyway, by vehicle, wagon or anything.
I think that the exhibit --
Justice Hugo L. Black: Was there any house owner?
Mr. Don Langston: At one time there was a house owner Your Honor I think in that.
Justice Hugo L. Black: What kind of house?
Mr. Don Langston: Pretty primitive, if I remember.
Justice Hugo L. Black: Does the evidence show?
Mr. Don Langston: It is in the record Your Honor.
I think that this 1929 map in which appendix A 6 to their brief shows that there's at back of course 1929 I don't know what state of the river this was but there is sediment in this from the old channel.
Some along in here and some have been here.
So you can cross from Arkansas on this by foot or by vehicle.
Justice Hugo L. Black: Safely with the mule?
Mr. Don Langston: You can go by mule and wagon.
The State of Tennessee in their brief and in their argument here has taken Arkansas to task because of its pleadings in this particular case.
When we did draft our pleadings, we did allege that there was no avulsion.
This was based on testimony and this was based on what we felt was the case but whenever our engineer got in to it, we found out that we could not take the position that there had not been some sort of an avulsion here.
They say that Smith, our expert changed his testimony, I think that I can explain to the Court why his testimony was changed.
Whenever he first started testifying concerning this in private litigation, he took the position that there had been no avulsion and the reason why he did this was that at that time alone in this particular area had not become definite or crystallized and was not certain.
Smith took the position around 15 years ago that this -- what they call a middle bar or mud bar that became this part would -- did not have any vegetation on it and that low water was the only time that it came up as sand and mud, he took the position and the law was not clear that that changes on each side of that particular thing would not be an avulsion or would not move the thalweg or the river but a case from the Eighth Circuit Court of Appeals which was certiorari was denied up here and which is 211 Uhlhorn versus US Gypsum Company 366 F.2d. 211 certiorari denied here 385 US 1026 said that yes whenever the avultive part was you could see it at low water that changes on each side of that would result in an avulsion, that is the reason why his testimony was changed from the time we plead and at the time of the trial.
And we do not think that his position is inconsistent, he was just instructed to take this case into consideration by our attorneys -- by the state's attorneys whenever he formed his report and he had to follow the Yula Horn decision and saying yes there was an avulsion but he did say that he wasn't sure that there really was but he was going to give the State of Tennessee the benefit of the doubt and say, “Yes there was a small avulsion still remain there due to the master's and Pilot's report of the middle bar or a mud bar.
Justice Hugo L. Black: How much tax does Arkansas get out of this profit?
Mr. Don Langston: Your Honor, I do not know.
Justice Hugo L. Black: Is it getting any?
Mr. Don Langston: I think severance taxes maybe all for timber and few things like that but I don't think that taxes would be very much.
But it has so list as the record reflects has sold these lands for taxes over there in Arkansas.
That's how the Arkansas -- the land has sold in Arkansas.
Justice Hugo L. Black: That Island?
Mr. Don Langston: Yes, it has sold tax that has been forfeited for taxes and it forfeits to the state and then the state to its land Commissioner gives tax deeds so it has derived some revenue from it.
Justice Hugo L. Black: How much should you pay for it?
Mr. Don Langston: I don't know Your Honor.
I'm advised that someone asked that there was -- how much forming land there was on, there's approximately 500 acres that can be farmed there now.
Chief Justice Warren E. Burger: Out of 5,000?
Mr. Don Langston: Out of 5,000 most of this timber land.
Justice Hugo L. Black: But a farmer keep his home and just place the mules tooled and everything over in Arkansas and farmer won't let out?
Mr. Don Langston: Yes, Your Honor.
That's what they're doing.
Justice Hugo L. Black: That's what they are doing?
Mr. Don Langston: That's what our citizens are doing.
Justice Hugo L. Black: Well, is there any evidence in the record that the farmers are doing that?
Mr. Don Langston: Yes, Your Honor.
Justice Hugo L. Black: There is?
Mr. Don Langston: We have formed that all along our citizens have.
Justice Hugo L. Black: And that's in the record?
Mr. Don Langston: Yes, Your Honor.
Chief Justice Warren E. Burger: Well, I suppose it's not uncommon on land boundaries for the farmers to have the farm –they have got couple of hundred acres in one state and spill over into the next state.
Nothing unique about that is there?
Mr. Don Langston: I wouldn't think so, of course here the river would make it too feasible but you could own some on both sides.
I think Mr. Sutton in his -- when he was being questioned by Mr. Justice White clearly shows the Arkansas position is the one that should be accepted by this Court.
The prior case of Arkansas versus Tennessee says that when the strange stagnates and ceases to flow and it smells bad and that's when the land is set that any accretions or any erosion or accretion is a natural result of that avulsion.
Mr. Sutton wants these accretions and erosions to keep moving this line even though it's not the channel anymore.
He wants that the case of Tennessee versus Arkansas says that these erosions and accretions are -- and sedimentations is a natural result of the dying of the old thalweg.
That's why this Court has to decide when and where the old thalweg died because if it keeps eroding and keeps accreting, it's really not dead and it keeps moving and its fluid which is what this Court does in its prior decision seems to say it does want to do, it wants to have the old dead thalweg inactive and then let the new one control the lands.
Justice Byron R. White: Well I gather that Tennessee concedes that the old channel died some years ago and it is now dead, the boundary won't change anymore.
Mr. Don Langston: He still says it's a -- he says -- but the accretions that attached to it and the erosions that are attached to it will move the state line if he says -- his position is that it has done it though --
Justice Byron R. White: Well, not up to the north and west relief into that territory and it doesn't seem to me that even if you have some difference about what to test or to be when the old channel dies if you both agree that that state line in 1912 was where that maps showed it was?
Mr. Don Langston: We don't agree where it was Your Honor.
Justice Byron R. White: In 1912?
Mr. Don Langston: That's right.
He claim -- the State of Tennessee claims that these accretions and erosions have moved -- we claim it's in, what they term is Smith scar.
Justice Byron R. White: Well if the state line is where he says that was in 1912 to the north and the west, Cow Island or that segment of Cow Island, the state line is where he said it was all the accretions and where on the Tennessee side of that line.
Mr. Don Langston: That's not our position Your Honor.
Our position is that the accretions built down from the Arkansas shore and attached to this evolved there.
Justice Byron R. White: Yeah, well that's your second point?
Mr. Don Langston: Yes Your Honor.
Justice Byron R. White: That's your second?
Mr. Don Langston: That's correct.
Justice Byron R. White: Isn't it?
Mr. Don Langston: Yes.
Justice Byron R. White: Not your first one?
Mr. Don Langston: That's correct.
Justice Byron R. White: Well how about the first one?
Mr. Don Langston: We claim that the thalweg died at around 1918 in that particular point and it could not move any further.
Justice Byron R. White: Well, let's assume you're right on that, what's the consequence of that?
Mr. Don Langston: Any movement of it would --
Justice Byron R. White: Well, there wouldn't be anymore movement in your position?
Mr. Don Langston: That's correct.
Justice Byron R. White: And I didn't know that he indicates that the west and the north of that island that he doesn't claim that the state line changed any --
Mr. Don Langston: Your Honor it's our position that this evolved area keep eroding away and got to where Smith scar was whenever the thalweg died.
The important thing here, we think the Court to decide is when and where this thalweg died set the boundary line there in a definite place and a portion of these lands and accordance there with.
We either ask the Court to reverse the fact that reversed the conclusions of the Master and inner findings and inconsistency with our position or to send that matter back for further proceedings.
Justice Hugo L. Black: Is there anything in the record that shows why Arkansas filed this suit?
Mr. Don Langston: Your Honor, we filed this lawsuit on the basis of request from officials of Crittenden County who were prevailed upon by the private citizens who were involved there.
Justice Hugo L. Black: Is that shown in the record?
Mr. Don Langston: I think it is Your Honor and the county officials prevailed upon the Governor to request the Attorney General to file the lawsuit.
It originates from these private persons who were involved in litigation Tennessee the private Arkansas persons who claim the land.
Chief Justice Warren E. Burger: Mr. Langston I was about to ask you a question which has nothing to do with the merits of the case but perhaps you could answer if you know.
Is there any jurisdictional constitutional reason why your states, State of Arkansas could not agree with another state, State of Tennessee for example, by legislative action to submit this kind of dispute to a joint commission established by the two states, would you be legally permitted to do or maybe a large legal question that if you know I'm interested in your answer.
Mr. Don Langston: We have took the position that the Tennessee litigation which decided the issue in favor of the Tennessee people would preclude our Arkansas residents of filing anything in the State Court of Arkansas.
Chief Justice Warren E. Burger: I didn't mean in Courts, I mean the joint commissions established by two -- the legislatures of two contending states with an agreement just submitted to final and binding arbitration instead of bringing it under the constitutional provisions here.
Mr. Don Langston: Your Honor, I don't know but since we've been losing this case we're probably happy to do that.
Justice Potter Stewart: That be perhaps a compact that would have to be approved by counsel, any such interstate agreement.
Not that there would probably be any problem for getting congressional proof.
Mr. Don Langston: I suppose it would Your Honor, I really don't know.
Chief Justice Warren E. Burger: This has been done on the -- by state water commission but that's in New York, New Jersey but that perhaps have little different area.
As a matter of fact, I think some interest to us, you might be able to do it less expensively elsewhere than here.
Thank you very much for your submission Mr. Langston, thank you Mr. Sutton.
The case is submitted.