NEBRASKA v. IOWA

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Argument of Howard H. Moldenhauer

Chief Justice Warren E. Burger: We'll hear arguments next in 17 original, Nebraska against Iowa.

Mr. Moldenhauer.

Mr. Howard H. Moldenhauer: Mr. Chief Justice and may it please the Court.

This case involves Nebraska's contention that the State of Iowa has violated the Iowa-Nebraska Boundary Compact of 1943.

In order to properly evaluate the contentions of the State of Nebraska, we feel it's essential at first we have to examine into the situation as it existed in 1943 and in prior years.

The case of Nebraska versus Iowa decided in 1892 determined the originally the boundaries between the two States was the center of the main channel of the Missouri River.

And the boundary moved with changes of the channel, when these changes were gradual and imperceptible but when they were sudden or by avulsion, then the boundary remained in the bed of the abandoned channel.

These principles applied at that time, both to State and private boundaries.

There's no dispute down through the years and Missouri River was very notorious for all of its periodic flooding and many natural changes.

And it was common knowledge that at many times that it changed its course and had had physically dissevered lands from one State and left them on the opposite side of the river and this created all kinds of problems in determining a jurisdiction, titles, which schools children should go to, and taxation.

And the legislative history of both States is replete with recognition of these problems and the legislatures had boundary commissions from 1901 through 1943.

Commencing at about 1934, on top of this already confused situation along the river, the U.S. Army Corps of Engineers set out to create a new and stabilized channel for the Missouri River.

This channel was supposed to be 700 feet wide and was prepared on the drawing boards.

And then the Corps of Engineers said the construction dikes and revetments set about to place the river in that channel.

And commencing in 1938, they also dug canals to physically place the river in the channel.

These canals consisted in many cases initially of a ditch, dug on dry land and then, they opened or pulled the plug at the top and allowed the water to go through when it scoured out through that dry land the new channel.

At that time, the Corps, when it moved the river, moved it around islands, around barren areas, and through bank area.

And it created or further confusion in so far as boundary problems were concerned, but the Corps, when it channelized the river, paid no attention to the boundary, it was not concerned with this, it was concerned in confining the river and stopping the flooding and improving navigation.

By 1943, the Corps had dredged canals of at least 11 locations and Nebraska feels that the evidence shows at least 15 places, but that really is not important, there were several canals, which they have dug.

And in 1943, South of Omaha, the river was 99% in its design channel to the Nebraska border, and North of Omaha, it was approximately 78% in the design channel.

But, this river worked by the Corps had further compounded many the title problems which existed.

In 1943, then the states, under the assumption that the river was finally stabilized, entered into a Compact to settle their boundary, and at that time we think the facts are very significant, because at that time, each state and the Master so found, recognized that the shifts of the channel in the past had been so numerous and intricate that for practically all land adjacent to the river, there were no conclusive determination of either State or private boundaries was considered passable.

They both recognized that in many places the boundary line was not located in Missouri River.

And that these places had not been determined and were almost impossible of determination.

And if a compromised couldn't be worked out and if they have to make a determination, where the boundary had been fixed on dry land, it would be an extremely complicated and an expensive process.

At this time and prior to this time, the State of Iowa was making no claim to abandon river beds or islands arising in the bed of the Missouri River and under any common law claim of sovereign ownership.

In 1932, they have purchased some land in an abandon river bed, in a well-known avulsion of the Lake Manawa, just south of Council Bluffs, Iowa.

And they were not claiming islands which existed south of Omaha, where the river had been entirely in the design channel, since at least about 1938.

There were abandoned channels in oxbows all up and down the Missouri River, on both sides of Missouri River.

And Iowa had made no claim to these abandoned channels on oxbows on either side.

There was a case in 1938 and the Nebraska District Court, which was eventually, decided by the United States Court of Appeals for the Eight Circuit called U.S. v. Flower, where the Court found an avulsion in Nebraska land on the Iowa side of the river.

And Iowa was a party to that case at one time in the District Court, and then the Court allowed her to withdraw, she did, but she never came in and claim that abandoned channel.

The Iowa Code, during all of these period required that the Secretary of State was a State Land Office and would maintain in separate track books the areas of lands which the State may now own or may hereafter own, so that there would be a separate record of the lands in state ownership.

Iowa had no record of any State-owned lands along the Missouri River or lands which she used to claim at a future date.

The Iowa Coast, since 1923 had provided that the Conversation Commission would mark its boundaries, in cases, where the jurisdiction or the boundaries of its jurisdiction is privately owned property.

And then in 1931 or 1932, they added with the Commission deemed at feasible, but they had not marked boundaries along the river where the Commission Property supposedly commenced and where the landowners' property limits were terminated.

Again, the Master found and we think properly the States didn't know where the boundary was located and they didn't care.

And neither States thought it was necessary in order to settle their problems to identify or pinpoint, where the boundary was at any particular location.

There were lands taxed in Nebraska, which were on the Iowa side or the left bank side of the river, as you look down the stream.

There were some lands on the right bank, or Nebraska side, which were recognizably in Iowa.

Nebraskans were in possession and claiming many of these lands and lands on the Nebraska side.

Iowans were in possession in claiming and some of those possessions came from some claim of a record title, others might have been commenced just with open notorious adverse possession which was possible under Nebraska law.

The two States entered into the Compact in 1943 to settle all these chaos and confusion and as the Master found to accomplish the general purpose of settling and laying the risk, the boundary and jurisdictional problems which existed between the States.

And he found they intended to settle all of their problems arising from the indefinite nature of this boundary and from the work by the Corps in channelizing the boundary.

Now, following the Compact and before we go into the terms of Compact, we think this is also significant.

Parties in possession on the left bank or Iowa side, continued to exercise ownership without disturbance from the State of Iowa.

In many instances the land was placed on the tax rules of the State of Iowa.

Some plant land was placed in the government farm program.

It was clear, some of it was improved.

In 1946, owners of one of the areas about which a great deal of evidence was introduced, Nottleman Island or Bouvet (ph) Island brought a lawsuit against the county officials to have it placed on the tax rules.

Their attorney Mr. Whitney Gilliland who was presently with the Civil Aeronautics Board had notified the Attorney's General Office of the problem.

They have discussed it and the Court found that they claimed the land through Nebraska titles and an issue of ownership, ordered Mills County out with places on the tax rules and it was taxed thereafter --

Unknown Speaker: Mr. Moldenhauer, I supposed this Compact means that this particular litigation is not a boundary dispute?

Mr. Howard H. Moldenhauer: That's correct Your Honor, this litigation is based upon the Compact itself and because Nebraska was a contracting party to the Compact.

Unknown Speaker: So, it's rather unusual as compared with --

Mr. Howard H. Moldenhauer: We think that it's highly unusual and there's very little precedent directly in point, involving this situation.

We think the facts here, Your Honor are very unique and this case really hinges on the facts as they exist.

Unknown Speaker: So, this is in essence is a suit to enforce a Compact?

Mr. Howard H. Moldenhauer: It is Your Honor, specifically.

Unknown Speaker: Was that approved by Congress?

Mr. Howard H. Moldenhauer: That's correct Your Honor, and I want to get into the terms of the Compact, after I get a little bit of this --

Unknown Speaker: And, that I take it, requires a construction of Compact, does it?

Mr. Howard H. Moldenhauer: Yes sir, Your Honor.

The construction or interpretation it really involves the same thing.

It's a question of what does the Compact mean and what effect did it have?

If we had not entered in the Compact, we would not be here.

Unknown Speaker: But, nothing that you're requesting involves a dispute as to where the Iowa-Nebraska boundary is now, under the constitution.

Mr. Howard H. Moldenhauer: Your Honor that is not the basis for this suit.

It will come up that there may be a lot of uncertainty, but it is a part of the Compact, we're not claiming it though, as the basis for our appearance in this Court.

Unknown Speaker: As a matter of fact, the lands about which this controversy swirls are conceded all to be in Iowa, are they not?

Mr. Howard H. Moldenhauer: Your Honor, they are conceded to be in Iowa now because of the Compact and because the Compact placed them there.

And we think this is a very critical point.

In any event, there were other instances after the Compact, where Iowa either disclaimed land in an abandoned channel and they did so in 1956 in the lawsuit.

In Winnebago Bend where they disclaimed land and in 1959 in California Bend where the Court dug another cutoff and Iowa appeared in the lawsuit and did not assert a title, or was not successful in asserting title to abandon channel, which existed.

Unknown Speaker: One last question, the State of Nebraska is here really as it has been suggested attempting to enforce the Compact?

Mr. Howard H. Moldenhauer: Yes sir, Your Honor.

Unknown Speaker: Are you also here as parens patriae?

Mr. Howard H. Moldenhauer: If so, it's just an incidental effect because this involves our 190-mile boundary.

And we do contend that Iowa's conduct, which I will describe in a minute, puts in question and uncertainty all of the 190-mile boundary and really impedes development of the riverfront.

But we are here because of the Compact and what we agreed to.

Unknown Speaker: If in fact, Iowa had breached the provision of the Compact, does Nebraska have a right to rescission?

Have a remedy of rescission?

Mr. Howard H. Moldenhauer: Yes, we thought about that.

I've never seen any cases, where State was successful in rescinding a Compact approved by Congress and if that happened we would have a far greater mess than we have got now.

And, I don't know where we'd end up and we didn't think that as a State, we can ask for rescission.

Unknown Speaker: Well, then I gather your position is that the remedy, if there's been a breached by Iowa must be specific performance.

Mr. Howard H. Moldenhauer: It must be Your Honor, in the form of injunctive relief.

Unknown Speaker: And whoever might obtain it in whatever Court, I take it, is conceded that Federal Law is to govern.

As long as there's a remedy and if the Compact is enforceable by somebody, the construction of Compact is a matter of [Voice Overlap]?

Mr. Howard H. Moldenhauer: Yes, sir.

Your Honor, we feel it's only enforceable in this Court because it's an original action between the two States.

And we don't think Iowa can make her own determination, as to what her commitment is.

Unknown Speaker: But presumably in Iowa, a landholder could claim under the Compact, could he not if Iowa is seeking the quiet title to his land, and he claims the Compact [Voice Overlap]?

Mr. Howard H. Moldenhauer: Oh!

Yes sir, it's not based on his citizenship.

It is based upon what Iowa agreed to and what she agreed to recognize.

Unknown Speaker: He could be a third party beneficiary of the Compact.

Mr. Howard H. Moldenhauer: Yes, sir.

They definitely could be a third party beneficiary.

We do think that the facts in the case are pretty clearly shown though that he cannot effectively defend himself or protect himself, because this river moved across three or four miles.

He didn't have a chain of title, like I have in my house, where I have had one piece of property for 60 years.

It could have been accretion at one time to this section, or this section, or this section, or the section, as the river moved over.

As it went back, they could re-establish the sections, they could call accretion of this section, and the river could be drawn over here, it could have be three or four sections described as accretion to this one.

Or they could be placed on his tax lawsuits.

It's a tremendously complicated process.

Unknown Speaker: You're right on the Compact, he can raise that same point in his own litigation and say that Iowa has not right to go back behind 1943.

Mr. Howard H. Moldenhauer: He can raise it.

Yes, Your Honor.

The problem is that they have not effectively been able to raise it in the past.

There's an Iowa decision, which said for instance in Dartmouth College case, the Compact had no effect upon private titles.

But we think we can show it did have an effect upon private titles.

In 1961, Iowa came out with a Missouri River planning report and I believe the Master forward copies to this Court, which was a first document where they publicly announced a policy of claiming lands on the river.

And there is an evidence how they selected these areas.

They made no investigation of any Nebraska titles.

They didn't talk to the landowners.

They assumed anybody in possession was a trespasser.

If somebody raised the Nebraska title, they automatically called it a spurious and fictitious title.

And all of a sudden, all these farmers, who have these lands since 1963 or farming it found they were under attack by the State of Iowa.

They couldn't borrow on their land, which in partly the operation tremendously difficult and they couldn't understand the situation they've been placed in.

Now, going back to the Compact, which was a compromise.

First, it was an agreement between the two States and Iowa bound herself in this Compact.

The first section, established the boundary and it established it in the middle of this main channel, as it appear on the Corps of Engineer maps.

This made the boundary a fixed line.

It changed the boundary between the States from a movable boundary, in every case to a fix line on the geographic center.

Now, in most instances, that navigable channel, where the river was still the boundary had followed the outside of the bends and it cross back and forth as it flowed down the river.

So that what Compact did was change the location of that boundary, and it changed it to a fix line, so it changed the State's right.

One of the issues is did this change the private riparian owner's right. and we don't think that by changing our state line, we change the line of the private owners, because we think that their lines should have stayed the same.

We didn't take away their right, which was a vested property right.

Unknown Speaker: You mean [Voice Overlap]

Mr. Howard H. Moldenhauer: Pardon me?

Unknown Speaker: You'd have a just compensation above, I take it.

Mr. Howard H. Moldenhauer: Absolutely, but there's been no provision for compensation under anything while it's done.

She's done it supposedly under her common law and this is the basis for planning report, that in Iowa, the common law provides that the State own the beds of navigable rivers.

In Nebraska, the principle is always been that the State has a public easement for navigation, but riparian owner owns it and this includes accretion to the bed of that river.

But, Section 1 changed the situation all along the boundaries.

So, land in its very strict technical sense was transferred back and forth, all along that river.

Then, in Section 2 of course they recognize the lands on each side were ceded and they really operated language in Sections 3 and 4.

In Section 3, they said basically titles, mortgages, and other liens good in Nebraska, shall be good in Iowa, as to lands Nebraska shall cede to Iowa any pending suits could be prosecuted final judgment.

Iowa says, oh yes, you've got to prove it was good in Nebraska, before we have to recognize the title. Our contention is Iowa, you agreed in the context, where you were making no claims.

You agreed in a context, where you recognized the uncertain situations.

You agreed in a context, where you didn't want to find the boundary, you wanted to avoid it.

In a Compact should be construed as the Master read it, to cover all lands in the situation, which existed along the river in 1943, because that's what they were referring to.

Unknown Speaker: But Iowa was promised referred to ceded land.

Mr. Howard H. Moldenhauer: It says, as to lands shall be good in Iowa, as to any lands in Nebraska may cede to Iowa, as to any lands Nebraska --

Unknown Speaker: And, under ceded lands, do you think are those that Nebraska would have recognized before 1943?

Mr. Howard H. Moldenhauer: Yes sir, without the necessity of determining where the boundary actually was.

Unknown Speaker: Without the necessity of proving whether Nebraska was right or not in recognizing --

Mr. Howard H. Moldenhauer: Right Your Honor, because everybody recognize the confused situation and the difficulty of determining where the actual boundary was.

Unknown Speaker: You're saying if a party for instance had a proper chain of title in the Nebraska law and presented that to the Iowa Courts, Iowa should recognize it?

Mr. Howard H. Moldenhauer: Yes sir, Your Honor.

Recognizing again, that that proper chain of title may consist of some possessory rights or a very difficult, what some people may call it paper title, that because you don't have a paper title.

Unknown Speaker: I understand.

Mr. Howard H. Moldenhauer: So, we don't feel that Iowa can conduct herself, because she agreed that they're good.

But then she come and attacked them and we say this is binding on her courts, on her legislative and executive branches.

So she can't say we are going to go and determine our courts, because our courts are also bound by what are commitment was.

That is one basic proposition.

Now, there was also -- you see Section 3, we feel was language of recognition of a situation in private titles, then the States added Section 4, which said that taxes for the current year can be levied on lands ceded to the other State and for one year.

And that any rights under those taxes, accrued or accruing would be asserted in five years or be forever barred in the States would stop taxing across the river.

So, 4, we feel was a limitation on what the States can do, 3 was a recognition of private rights and the States look that this and said now we solved their problem, we have no more problems, we're through.

And we think that this Compact has to be construed liberally to effectuate the intention for which it was adopted and that was to settle all the problems.

We agree with the Master's finding that in any action by landowner or by Iowa along the river that the landowner should not have to prove where the boundary was beforehand.

If he raises some Nebraska title, Iowa should have to recognize it.

The evidence is clear that Iowa didn't even inquire.

And, when the titles were raised, she has said they're spurious and fictitious.

We go a little further and contend that Iowa shouldn't be able to raise all these problems that we ought to be placed in a situation we were in 1943 and for at least 15 years or after, before Iowa starting asserting these claims.

And if that means that Iowa has to recognize the Nebraska owners title to the bed, and Iowa has easement for public navigation, as Nebraska has or it's all the public has, she hasn't been deprived with anything.

There were areas, where the river was entirely in Nebraska, at the time of the Compact.

And in those areas, many of which the States did not want to determine.

Our contention is that the entire bed was in Nebraska.

And when Iowa said titles good Nebraska, shall be good in Iowa.

She is recognizing the title to the bed, she didn't accept it.

Iowa position now is we own the entire bed because it's in Iowa.

Another issue, which has come up was originally decided by the United States Court of Appeals for the Eighth Circuit, I think it was in November of 1960, in which another situation, where there's no question about the facts occurred.

The river was in the design channel, it moved out into Iowa, land build up behind it, and the Corps of Engineers placed it back in the design channel.

This case involved between $12,000.00 and $13,000.00 of damages condemnation by the Corps of engineers for placing the river back into the design channel or the boundary.

The Court of Appeals for the Eight Circuit said the land is in Iowa.

Iowa owns the bed.

Therefore, Iowa owns it and the Nebraska riparian owner was deprived of his ownership.

Iowa has used that principle in order to make her claims to all lands, north of Omaha.

And our position is this, that when we intended to settle this thing, we didn't change the private property owner's boundary, it should have stayed the same, because we couldn't divest them of their property rights without due process of law and without compensation.

Had it not been for the Compact, when that river moved into Iowa, the Nebraska riparian owners' rights, which extended to the thalweg or thread of the stream moved with it, because that's a private property boundary matter.

And it moved over and when the Court put it back without washing away the intervening islands, it was an avulsion, which left that private property boundary remaining over into Iowa and the Nebraska riparian owner should have had preserve to him his right to his accretions.

If it is read otherwise, then we say that Nebraska riparian owner has been deprived of his property without due process of law.

It's very easy to say, the lands in Iowa, therefore Iowa applies, and therefore Iowa owns it.

But the fact is what did the parties agreed to and we say Iowa law is what the Compact provides.

Requiring Iowa to recognize private rights and we say that you have to look and cede.

You'd have to say in the Tyson case, but for the Compact, the boundary would have been clear over into Iowa.

The States avoided the necessity of worrying about that as between themselves but they shouldn't be able to deprive the riparian owner of his rights, because of that, of their agreement.

Unknown Speaker: Mr. Moldenhauer, Nebraska as a proprietor of land isn't involved in this dispute at all?

Mr. Howard H. Moldenhauer: No sir, Your Honor.

We are here because we didn't just agree to a new boundary.

If we had Section 1 and said here's the boundary and stopped, it might be a different situation, but we said no, we have 3 and 4 here, where Iowa have to engage in certain conduct to assure us that we're getting what we bargained for and we agreed to the same thing for you.

Iowa has to rely on Section 1 to show the lands in Iowa, that's the only way she can do it.

And she does rely in Section, so she's relying in part upon that Compact to establish jurisdiction.

Then, she says, jurisdiction establishes our title, because we're in Iowa and we own the bed.

Unknown Speaker: But the basis for the bringing of your suit is here is the original jurisdiction of this Court.

Isn't it there's nothing added to that jurisdiction by the provision for interstate compacts?

So far is jurisdiction is concerned.

Mr. Howard H. Moldenhauer: Well, the jurisdiction is because we entered into the Compact, pursuant to authority of the Constitution.

And this is action regarding that Compact and when the States came into the union, they gave up their right to solve their problems in the other way.

And, when we do it by Compact, this is the proper place to tell us what that Compact means and what conduct is proper pursuant to it.

Unknown Speaker: Would you say then that this Court had original jurisdiction, should exercise original jurisdiction of every single claim that might be made under an interstate compact?

Mr. Howard H. Moldenhauer: I think essentially as between the States, yes.

Because I think if they can't, we're involved into specific one, but if they can't, there no place else where they can go to solve their problems.

And, if they can't enforce their problems somewhere, there's no incentive to enter into Compacts at all.

And this Court has often suggested Courts try to settle their problems, by entering into a Compact.

This is what we did, we think it settled our problems, we think that the Court should tell the State of Iowa and everyone that this is how it settled it and this is what you can do pursuant to it.

Unknown Speaker: But do the jurisdiction of this Court rest on the fact that the parties are two sovereign states?

Not on the fact that there's a controversy about a Compact.

Mr. Howard H. Moldenhauer: Oh no!

It rests on the fact that the parties are two sovereign states and they entered into agreement pursuant to the Constitution --

Unknown Speaker: But whether or not they have, we would have exclusive and original jurisdiction of this lawsuit, because it is a lawsuit between two states, whether the substance of the lawsuit goes out of an Interstate Compact, or goes out of common law --

Mr. Howard H. Moldenhauer: Essentially correct Your Honor, but it has to be a controversy.

Unknown Speaker: It has to be a controversy.

Mr. Howard H. Moldenhauer: That's correct.

Unknown Speaker: It has to be a case of controversy and you say it's a case of controversy because your contractual right for which you gave in consideration are at issue?

Mr. Howard H. Moldenhauer: That's correct, Your Honor, that's correct.

Unknown Speaker: Mr. Moldenhauer, how do you distinguish this case from the old Dakota, North Carolina bond case where in effect, the South Dakota gave consideration for the North Carolina bond, sued on them and this Court declined to exercise jurisdiction, because it said North Carolina that South Dakota is basically suing on behalf of its residence, even though it would have had the nominal title to the bond.

Mr. Howard H. Moldenhauer: Your Honor, that may be that the nominal title may be the distinction.

In this case it involved our boundary which has also been a matter of state interest and when the nations were or states were admitted in the union, controversy as to boundary and agreements as to boundary were in existence in traditional and historical.

Unknown Speaker: But, there's no dispute here as to the boundary, between Nebraska islands?

Mr. Howard H. Moldenhauer: No, because we agreed to where it was, but we didn't just say --

Unknown Speaker: It might very well be, if you can't get what you bargained for.

Mr. Howard H. Moldenhauer: That's right, if we can't get what we bargained for, although Nebraska would never --

Unknown Speaker: You'll be up here with the original boundary line suit.

Mr. Howard H. Moldenhauer: Well, I know Nebraska would never bear arms.

I don't about the farmers here.[Laughter Attempt]

Unknown Speaker: But is there any real dispute as to the present boundary between the State of Nebraska and the State of Iowa under this Compact?

Mr. Howard H. Moldenhauer: There's a real question of where it is, because the documents they used in defining it that were so general that they didn't have a sufficient data to allow a surveyor laid on the ground.

That is not why we're here.

That's another aid in construction Your Honor that they used a very general agreement to generally settle, because they didn't lay it on the ground.

They use maps that are, like road maps, almost.

Unknown Speaker: Did we argue these matters before?

Mr. Howard H. Moldenhauer: We argued everything Your Honor, because --

Unknown Speaker: When you argued this one, there was a case of controversy?

Mr. Howard H. Moldenhauer: Yes sir and we had a two-hour argument and we --

Unknown Speaker: That was back in 1965?

Mr. Howard H. Moldenhauer: 1965 and we went through the whole thing --

Unknown Speaker: And we granted you the file?

Mr. Howard H. Moldenhauer: And you granted [Voice Overlap]

Unknown Speaker: So, we'll cross the bridge, when [Voice Overlap]

Mr. Howard H. Moldenhauer: In fact Your Honor at that time I made the comment, and I'll never forget it that this is Mr. Justice Brennan said, "Isn't true that this is an action to enforce a Compact?"

I said, "Yes Your Honor, maybe you ought to say that and sit down."

And he looked at me and said, "Maybe you ought it."

But, we had to give you the full picture, because we did not want them mislead this Court.

And I don't think we did mislead them, we feel that it is necessary to settle this, because there are approximately 47 miles at the present time, where the river is not located in the boundary.

It's moved out north of Omaha and unless we find out what we agreed to in 1943, it's almost going to prevent at another agreement, which is necessary.

And the present situation we feel impedes the development of lands along the Missouri River and it really results in the government of men and not of laws along the Missouri River.

Your Honor, I wish to reserve the remainder of my time.

Chief Justice Warren E. Burger: Thank you Mr. Moldenhauer.

Mr. Murray, you may proceed.

Argument of Michael Murray

Mr. Michael Murray: Mr. Chief Justice and may it please the Court.

I want to rearrange the order of my remarks a bit due to the line of questions, which the questions which the Court has just been asking Mr. Moldenhauer.

It is Iowa's position that this is not a proper case for this Court to exercise its original jurisdiction.

Chief Justice Warren E. Burger: You'll tell us, I assume very early, why that bridge wasn't crossed in 1965?

Mr. Michael Murray: It's our understanding, Your Honor that whether or not a permission is given to file a complaint is dealt with usually in a sort of a pro forma manner and that if there is any reason why the complaints should be permitted to be filed, this Court will permit it.

But that it still remains for the complainant to prove his case.

And we feel that this Court as any other court should examine its jurisdiction at all stages.

Chief Justice Warren E. Burger: Well, of course the jurisdiction is open at all times to attack Mr. Murray, but not having been here in 1965, I don't have the benefit of the arguments that were made that from what was said this case was not perfunctorily treated, full arguments were had and a great deal of time was devoted to it.

Mr. Michael Murray: Well, we still feel, may it please the Court that Nebraska had the burden of proving facts, whereby she was entitled to an exercise of the Court's original jurisdiction.

And, we feel that now she has had her opportunity to prove those facts and we feel that she failed.

Chief Justice Warren E. Burger: Well, of course you go right ahead and make your argument to demonstrate that Mr. Murray.

Mr. Michael Murray: [Laughter Attempt] There are three basic things that we feel Nebraska failed to prove was that Iowa violated the Compact.

Basically, we feel that she failed to prove that, because the proof is, that what we have done is engage in litigation in a Court of competent jurisdiction concerning the ownership of several of these areas.

We didn't send out the National Guard or the Corp of Game Wardens, or the Highway Patrol to move these people off these islands or off these abandoned channels.

All we did was engage his litigation in this litigation, sometimes as plaintiff, sometimes as a defendant, sometimes as an intervenor.

In the Iowa Courts, of course, because these areas, which the State claims to own are all in Iowa and we simply don't feel that, that was violation of the Compact.

Secondly, we feel that they haven't proved that judicial controversy between these two states.

They fail to prove that because Nebraska has no real and present interest in this matter.

Some of our citizens do, some citizens of Iowa do.

Some non-residents of both States do, but Nebraska has no interest.

She doesn't claim to own any of these areas, which Iowa now claims to own.

That was established by interrogatories and answers into interrogatories.

Early in the pretrial phases of the case.

It is for these reasons for the reason that she failed in her proof that we feel that this Court should not exercise its powers of original jurisdiction in this case.

Unknown Speaker: I just assume for the moment that if it were admitted and perfectly clear that Iowa was breaching the contract, you would still make the same argument here as far as disability was concerned?

Mr. Michael Murray: Yes, sir.

Unknown Speaker: That Nebraska, since it has no proprietary interest, stands to gain no dollars in the sense, has no judiciable interest in enforcing the terms of the Compact, which is entered into as Iowa.

And, has not brought herself within the rules of parens patriae?

Mr. Michael Murray: Yes.

Unknown Speaker: That just a fact that it contracted with Iowa is not enough?

Mr. Michael Murray: That's right.

Unknown Speaker: That a contracting party doesn't automatically have standing to enforce the Compact, even though it gave consideration?

Mr. Michael Murray: That's right.

And, I can't cite you to a case for it.

As far as I know, this is the first case Mr. Moldenhauer said it's a peculiar case.

This is the first case that ever came before the Court, where this sort of a situation exist.

And I don't believe, as far as I know at least, there isn't any prior case on the point.

It's perfectly true that the State of Iowa does assert in this case, and in these cases in State Court, where we think the issues should be decided, that we do own the bed of the Missouri river, in so far as that bed is in Iowa.

And we do assert that we own certain islands, not all islands, but certain islands, which have formed over that bed.

Specifically, the islands which have formed in Iowa over that bed.

If they've formed in Nebraska, we agreed that we do not own them.

Also, we claim to own certain abandoned channels of the river in Iowa, but not all of them.

And the reason for this is that it is the law of Iowa that the State doesn't remain the owner of all abandoned channels.

I think a fair statement of the law of Iowa is that we only own abandoned channels, which are abandoned by an avulsion.

And wherever an abandon channel was abandoned by the process of accretion, by the process of land forming to the shore from a private riparian owner, then the private riparian owner owns that land, as accretion to his riparian shore.

The Iowa rules, I think our best summarized in the case of Holman versus Hodges in 1901, by the Iowa Supreme Court Justice Ladd, which is cited in our brief and the reasons for them are fully discussed in that opinion.

This has been the law of Iowa, consistently since 1856, ten years after we were admitted to statehood.

The Court in Iowa has never deviated and there are a number of cases at least since 1943, where the Iowa Court has said that this is still the law of Iowa.

Iowa owns the bed, Iowa owns accretions to the bed, Iowa owns abandoned channels, which were abandoned by avulsion.

Now Nebraska claims in this case that we signed a way our right to claim ownership of anything along the Missouri River, by operation of that common law, when we entered into the 1943 Boundary Compact.

This is the equivalent of saying that the 1943 Boundary Compact repealed the law, repealed the common law of Iowa, in so far as it would apply to the Missouri River.

We deny that, that happened as a result of the Compact.

And the first reason I would mention for our denial is that the Compact simply doesn't say that.

And it doesn't say anything like that and in a sense it said just the opposite of that.

When Nebraska proposes that the Compact repealed the Iowa common law along the river, she recognizes her responsibility to oppose something to fill the void, which would then be left.

She proposes then that Nebraska Common Law should take over and apply on both sides of the river.

Now that's diametrically opposed to what the Compact said, because Section 2 says that the State of Nebraska, hereby siege to the State of Iowa and relinquish its jurisdiction over all lands not only in Nebraska, but lying easterly of said boundary.

And there was a reciprocal session in the Iowa enactment of the Compact.

By this language we think Nebraska said to Iowa, nevermore will our sovereignty or our jurisdiction, or our land title laws extend east of the boundary and into Iowa.

Contrary to what Nebraska --

Unknown Speaker: Mr. Murray, the consequence of your approach is then that the bed of the river in those parts ceded would actually vested in the State of Iowa.

Mr. Michael Murray: Yes, sir.

Unknown Speaker: Whereas before it had been owned by a Nebraska riparian owner subject to --

Mr. Michael Murray: We don't really agree that it was owned by the Nebraska riparian owner.

We deny that the Nebraska riparian owner had any vested title to it under Nebraska law?

Chief Justice Warren E. Burger: Where was the [Voice Overlap]

Mr. Michael Murray: Prior to the Compact.

Chief Justice Warren E. Burger: Then, where would you say title was in that position?

It was Iowa's land was it?

It wasn't Iowa?

Mr. Michael Murray: Oh!

No.

No.

Chief Justice Warren E. Burger: It didn't belong to the State of Nebraska did it?

Mr. Michael Murray: No.

What I'm saying is as far as we were concerned at least, it was a property of the Nebraska owner, but what I'm saying is that he had no vested title to it.

Actually --

Chief Justice Warren E. Burger: Would you enlarge on that a little bit, because I don't know what kind of title a farmer has if it isn't a vested title in the context that we're talking about.

[Voice Overlap] subject to the hazards of the moving of the river, just because it happens to be located near the bank of a river?

Is that the conformity?

Mr. Michael Murray: I didn't quite understand that question.

Chief Justice Warren E. Burger: Well, I'm trying to get what kind of a title you think the farmer has to this land if it isn't a vested title.

Mr. Michael Murray: Nebraska made her election to become one of those states, wherein the beds of her navigable rivers are privately owned.

In the 1906 case of Kinkead versus Turgeon does say that Nebraska riparian owner owns to the thread of the stream.

The only trouble with Kinkead is that it didn't involve ownership of any bed of any navigable river.

Kinkead involved accretions, which had arisen and were inexistence at the time of the case.

Therefore, we say that when the Nebraska Court said in Nebraska our landowners shall own the thread of the stream that that was dictum, because the case didn't involve ownership of the bed of the stream.

Unknown Speaker: But, if you're trying to find out what Nebraska law is, the next best thing to a holding of the Supreme Court of Nebraska will be dicta to Supreme Court of Nebraska, wouldn't it?

Mr. Michael Murray: That's right.

Now, we think that -- let me say one more thing, first of all we have cited all the Nebraska cases in our exceptions to the Special Master's report, which could possibly be construed as creating a vested right in the landowner to the bed of the stream.

And there is no case in Nebraska, which involves the bed of a navigable stream.

Every case in which any remark has been made about this is our law, private ownership to the thread has involved either accretions in being or it has involved the Platte River, which is a non-navigable stream.

So, we say that all the statements that Nebraska Court has ever made about it are in the nature of dicta.

And, we agree that dicta, perhaps creates the law of Nebraska, but it doesn't create vested rights, which the Nebraska unicameral couldn't change and it's our position in this case that when the Nebraska unicameral ceded to Iowa everything east of the new boundary then it was she it was the unicameral that was changing the law that would be equitable to those areas.

And, they were saying hereafter, the law of Iowa shall apply to them.

Nebraska said that the unicameral couldn't do that, because these landowners had vested rights in the bed of the river.

We say no, they had no vested rights, and therefore, the Supreme Court of Nebraska could have changed their common law concerning ownership of their riverbeds they never have, but they could have.

And legislature possessed the power to change the Nebraska law and in so far as it's applicable to lands east of the boundary, that's precisely what the unicameral did.

The Special Master agreed with us on this proposition and at page 193 of his report, he sets out his proposed rule for determining ownership of lands, which have formed since the Compact, since 1943.

And by the way to give you some idea of what's involved here; Iowa now claims to own approximately 30 areas, up and down the river, between Sioux City and the Missouri State line.

Approximately, eight of these areas were in existence at the time the Compact was entered into.

And the remaining 22 areas have come into existence, since the Compact.

Mr. Moldenhauer mentioned that one case has gone as far as the Eight Circuit concerning the ownership of one of these tracks of land.

A track of land which is now involved here and included in the 30 areas, which Iowa claims to own.

And this case was entitled in Circuit Court, Tyson versus Iowa, decided in 1960.

Mr. Moldenhauer has very roughly, but correctly related the facts of Tyson after 1943, the river escaped from the designed channel, which was west of the area, the area being in Iowa.

It escaped by washing away its left bank and stabilizing structures and ultimately the left bank moved approximately a mile and a half into Iowa.

In the meantime, the right bank or Nebraska bank remained stationary.

When the river acquired a width of a mile and a half, of course it became shallow and an island arose on the Iowa side of the boundary but west of the thalweg of the river.

In other words, on the Nebraska side of the thalweg, but on the Iowa side of the boundary.

Both the District Court, Judge Hickland (ph) and the Circuit Court held that the island belong to Iowa because it had arisen over and has an accretion to the State own bed of the river.

Now, Nebraska recognizes in this case that if they are to have their construction of the Compact, and if they are going to have their way, the Tyson decision must be overruled or at least disavowed.

The Special Master considered that proposition very carefully and concluded that the Tyson case was right.

The law of the Tyson case is valid and that it should not be overruled and disavowed, it's about that simple.

And the law which comes out of the Tyson case, as far as we're concerned is about this, that Tyson's right to accrete by Nebraska law was limited to the state boundary.

And he could not before the Compact and cannot since the Compact accrete by Nebraska law into Iowa.

Secondly, if Tyson were to accrete into Iowa, he could only do so, under Iowa law.

Now, there is a possibility that a Nebraska landowner could accrete into Iowa under Iowa law, because Iowa recognizes that the private riparian owner becomes the owner of accretions which formed to his high bank.

The thing that Iowa law denies is that a private riparian owner of either state can accrete under the water.

Now, Nebraska lets the man accrete under the water, because his boundary, by Nebraska law is the thalweg.

And wherever the thalweg goes, there goes his boundary, but not by Iowa law.

It inheres in the Tyson decision that the Common Law of Iowa, which has been in effect since 1856 is still in effect in inheres in Tyson that it wasn't repealed by the Compact and it inheres in the decision that Iowa didn't sign a way her rights to claim ownership of lands, river beds, and so forth by its operation.

Actually, the Tyson case simply follows a long line of cases by this Court of which Arkansas versus Tennessee is an example.

There've been several Arkansas-Tennessee cases and the one I refer to is 246 U.S. 158.

The Special Master quotes from that decision at page 188 of his report.

So, the law that came out of Tyson isn't anything new.

It's the same law that this Court has been applying for years.

Also, I might mention that in order for Nebraska to have her way about this case, the case of State of Iowa versus Raymond by the Iowa Supreme Court in 1963 would have to be overruled and disavowed.

Unknown Speaker: Was the Compact pleaded in that case?

Mr. Michael Murray: No, but it inheres in the case that the Iowa Common Law is the Iowa Common Law.

Unknown Speaker: Well, indded do you think that if Nebraska's right on the construction of Compact, let's assume the Special Master is right on his construction and your exception is overruled, would the provision of the Compact be a defense in a suit like the case you just mentioned?

Mr. Michael Murray: No, I don't so.

Unknown Speaker: You don't.

Mr. Michael Murray: I am not sure I understand the question, Your Honor, but I --

Unknown Speaker: Well, you don't think the individual landowners have any rights to claim under the Compact?

Mr. Michael Murray: Oh!

Sure they do.

I am sorry if I --

Unknown Speaker: Well, let's assume that the Master is right on his construction of the Compact.

Mr. Michael Murray: Yes.

Unknown Speaker: That would Iowa lose its suits against these individual landowners?

Mr. Michael Murray: No, just some of them.

Now, actually --

Unknown Speaker: Has the Compact ever been raised in any of these Iowa suits in Court?

Have Compact rights have ever been asserted by private landowners?

Mr. Michael Murray: Tyson's secondary position, I would say, in the Tyson case was that a Compact didn't affect his rights.

So, in a manner of speaking he was raising a Compact, but it was in a negative manner.

Unknown Speaker: Should the Compact be available to them?

Mr. Michael Murray: It's available to everybody that has an interest in those river lands and the ownership of them.

Unknown Speaker: Well, if the Special Master is right in his construction of the Compact, if you were the lawyer for Tyson, wouldn't you plead it?

Mr. Michael Murray: Yes.

But I've got beat, because Tyson never did have any rights to accrete into Iowa and the Compact doesn't create that right in him either.

Unknown Speaker: Yes well the Master held that.

Mr. Michael Murray: Yes.

Unknown Speaker: (Inaudible).

Mr. Michael Murray: And that's the part of the Master's report, which we do not accept to.

Unknown Speaker: But Nebraska does?

Mr. Michael Murray: Nebraska accepts to that.

My time is almost up and I haven't gotten even to our exception, which is to the Special Master's proposed rule for determination of ownership of the areas, which had formed prior to 1943 and which were in existence at that time.

We feel the Master is wrong about that rule, because he --

Chief Justice Warren E. Burger: We'll extend you about three more minutes and enlarge your friend's time accordingly.

We've taken up a good deal of your time, so you proceed for another three minutes.

Mr. Michael Murray: Thank you, Your Honor.

The effect of the Special Master's rule for pre 1943 areas is to destroy utterly the law which we've always known as the law of boundaries or as the law of accretion.

And he supplants another law in place of it.

In to the (Inaudible) under the Special Master's proposed rule for the pre 1943 areas goes, the presumption in favor of accretion and against avulsion.

Under the Special Master's rule, Iowa would be deprived of the benefit of that presumption, which this Court recognizes and as far as I know, every Court that ever had an opportunity recognizes.

He destroys the presumption in favor of the permanency of boundaries, which this Court utilized in the former case of Nebraska versus Iowa and where this Court said in substance, what is more natural when people are dividing lands to use a river as a boundary.

Unknown Speaker: What's the same thing as the presumption in favor of accretion isn't it?

Mr. Michael Murray: Practically the same, the result is the same, yes.

What happens under the Special Master's rule to the proposition that a state suing another state for violation of anything must clear, must prove her case, by clear and convincing evidence, it's gone.

And what happens to the rule?

That any presumption must overcome by clear and convincing evidence.

Now, the Special Master's rule simply wipes out all those things, which we have thought for years, where the law of accretion, the law of boundaries and puts the thing entirely on one basis as to the areas prior to 1943.

And that basis is was very title in Nebraska to it as of 1943.

My time is up.

I thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Murray, Mr. Moldenhauer I will give you seven minutes if you think you need it.

Rebuttal of Howard H. Moldenhauer

Mr. Howard H. Moldenhauer: May it please the Court.

One thing that we think it's important to analyze is a fact, which Iowa apparently is overlooked and that is that when they entered into Compact, they changed the laws along the river to a fix boundary.

Now, all the five previous riparian laws were based upon the fact that when a person is subject to having his property taken away by moving one of the river, he is subject to having it added to, as the river goes the other way.

And that is the rationale for all of those arguments, there isn't going to be any decision, which said you can accrete across the state line, usually where you have a movable boundary, because a movable boundary is the same for the state as it is for the private riparian owners.

But now we've changed the situation, we entered into a Compact with a fix line and I think that requires an analysis then of, is the rationale still there?

Iowa cites all these early common law cases and said this has always been the common law and we don't dispute that.

And in those situations there were presumptions, we can't dispute that, but we can't say we sat down in 1943 and superimposed the new situation by contract.

And this changed everything required by examination.

Iowa likes to use the presumption that the river moved gradually into its location and would argue from that, that therefore in 1943 the river was the boundary.

But the Master's findings negate that fact and the facts and all the mass of evidence in this case negates that fact.

And if the presumption was that there was a boundary, we didn't need a boundary Compact.

We recognize it wasn't the boundary and the Master so specifically found.

Iowa utilized the presumptions in this manner and she did so in the Schemmel case, which started trial in 1964.

And then trial has been postponed until the decision in this case.

But she offered evidence with two witnesses in the Schemmel case and rested.

And then I think we've quoted it in the briefs somewhere, counsel stated originally that, initially, they are going to rely on the presumption of gradual movement of the river into its present location.

So anything on the eastern or left bank side would be in Iowa.

At the same time, in interrogatories in this case, Iowa admitted that she knew that a canal was dug in Nebraska in 1938, in that location and yet she's relying on the presumptions.

And the evidence in this case, in the Schemmel case shows a canal a mile long placing the river in the designed channel, along with other movements by dikes and revetments in the Schemmel area, but Iowa, by being able to utilize the presumption puts a tremendous burden on the landowner of coming back in and having to establish how the river got there in the past.

This means old documents, old witnesses, evidence is gone, it has been lost and destroyed and the Corps of engineers itself was not a record-keeping body.

And many of its records were thrown away.

So it puts the landowner if he got to rebut that presumption in an extremely difficult position and extremely expensive position.

A tremendous amount of time and effort has been spent in getting evidence in this case; very few farmers could afford that type of litigation or defense of that type of litigation.

We say when Iowa said in Compact that titles will be good.

Again, we have to determine which ones, but when she says they're good, that doesn't mean that we said we're going to put you now landowner over at Iowa, although she admits they're good she can attack your title at any time and put that tremendous burden upon you to rebut all the presumptions and come in establish that you've got a good title.

We don't think that we send our citizens over there to give them a forum, which changes the jurisdiction, and from the change in jurisdiction, a change of ownership followed.

When Iowa said titles good in Nebraska, will be good in Iowa, we say it had to apply to the bed also in both sides because there were many places where both sides of that bed were in Nebraska.

She didn't say we're going to accept that title and take the title of the bed.

So, by saying Iowa law applies, Iowa law is I owns the bed; it's negating completely Iowa's agreement that the title to that part, good in Nebraska would be good in Iowa.

Let me conclude them by saying that Nebraska is here as contracting party with a right to enforce the Compact.

Iowa apparently only wants to enforce Section 1 of the Compact, but we say that if only Section 1 is valid, then we have lost the complete consideration for the remainder of our bargain.

We feel that the Compact should be read in the manner in which it was intended in 1943 and were that great object can be seen, it should be effectuated and that was to settle and later rest in all of these problems, which existed along the Missouri River.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.