TEXAS v. LOUISIANA

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Argument of Samuel D. Mcdaniel

Chief Justice Warren E. Burger: Mr. McDaniel, you may proceed whenever you’re ready.

Mr. Samuel D. Mcdaniel: Thank you Your Honor.

Mr. Chief Justice, may it please the Court.

Former governor and senator, Daniel asked me to express to you his regrets that he could not appear and argue this case.

He has been appointed to the Supreme Court of Texas and our Canons of judicial ethics prevent him from appearing in that, but he did handled the case before the Special Master.

The maps which are behind me, one you have an individual map which I have had furnished to the Court, the large map is furnished by Mr. Stockwell, the counsel of Louisiana.

I apologize to the Court that only three of the copies which should be in Justice Marshall, the Chief Justice and Justice Blackmun’s hand, so that all of you can see for reference purposes.

I have all the colored copies that the geological survey offers here in Washington had of the map, the others are reproductions made here.

I will refer to that map some in the later part of my argument.

It’s a duplication of Texas exhibit A47.

As I understand the procedure that is to be followed in this case, there will be no rebuttal, even if I wanted to save time for it.

So, I asked the Court to please ask any questions that you may have, concerning any arguments that Mr. Stockwell has raised in his brief in order that I may have the opportunity to respond to them and I also, unless the Court have some question about it, we will pass over the question of the jurisdiction of course and also the question of whether or not the United States is a necessary party.

Justice William J. Brennan: Where did the idea come from?

You wouldn’t have rebuttal, if you want to say a few minutes.

Mr. Samuel D. Mcdaniel: That was the arrangement that we were told by the clerk, Your Honor.

Chief Justice Warren E. Burger: Meaning the arguments here today?

Mr. Samuel D. Mcdaniel: Yes.

Chief Justice Warren E. Burger: Now, there is some misunderstanding, you arrange your argument as you wish and if you wish to save five minutes for rebuttal, that’s the conventional pattern.

Mr. Samuel D. Mcdaniel: Alright.

Thank you, Your Honor.

I am glad to have the --

Chief Justice Warren E. Burger: I don’t mean to limit you to five minutes.

Mr. Samuel D. Mcdaniel: No, I understand, thank you.

Chief Justice Warren E. Burger: We expect really to make your argument in chief in your --

Mr. Samuel D. Mcdaniel: Yes, I will do that.

Let me commend Judge Wentall, the Special Master, not only because I believe in by far --

Justice William J. Brennan: (Inaudible) got of your 30 minutes.

Mr. Samuel D. Mcdaniel: Yes, I understand.

Let me command Judge for his report which in the great part I speak and support of.

We have one exception that we took two years report.

Really it did, is more of quibble than an exception almost under the facts of the case, I should cover that last in my argument.

I particularly command Judge Wentall and command your use the appendix of the evidence which he has put in the report which is in great detail, discussing the various individual exhibits that he considers to support his findings.

This is a boundary case as you know and it’s over the Texas, Louisiana boundary, blow the 32nd degree of North Latitude which is the boundary in the Sabine River.

Justice Potter Stewart: (Inaudible) you have no rebuttal is that you are the equivalent of the not of the appellant of the petitioner here, but basically of the respondent, aren't you.

You were the plaintiff below, your master did what you wanted him to do with one minor exception.

Mr. Samuel D. Mcdaniel: With one minor exception.

Justice Potter Stewart: And so, this case is reverse from its ordinary posture, the ordinary posture of an appellate case before our Court?

Mr. Samuel D. Mcdaniel: That is correct.

Justice Harry A. Blackmun: (Inaudible) What was the significance of the 32 degree point?

Mr. Samuel D. Mcdaniel: The 32nd degree of North Latitude is the point at which the Sabine River ceases to be the boundary between Texas and Louisiana.

Justice Harry A. Blackmun: Okay.

Mr. Samuel D. Mcdaniel: I’ll discuss the specific language of the boundary in a moment and its significance to the case.

Texas claims by grant from the United States made by act of Congress on July the 5th 1848 and also claims title by prescription and equity assets.

Now, it should be pointed out here I think, because this does bear on the point of whether or not the United States should conceivably be a party in this lawsuit.

The area which is involved in this lawsuit was never a part of the Republic of Texas and is not a part of Texas' historic claim.

We claim purely as a grantee of the United States.

Louisiana claims by theory of agency or osmosis or something to have had prior title in 1848 as a result of the treaty of 1819 with Spain, settling the territory of boundaries of the United States and Spain.

This treaty makes no mention whatsoever of Louisiana.

To Texas, the basic question in the lawsuit is as between the United States and Louisiana on July 5th 1848 who had title to the western half of the Sabine River including Sabine Lake and Sabine Pass.

Justice Potter Stewart: The question is who had title as between the United States and the State of Louisiana, isn’t it?

Mr. Samuel D. Mcdaniel: Yes, Your Honor.

Justice Potter Stewart: There are no other possibilities?

Mr. Samuel D. Mcdaniel: That’s correct, at least certain on it so far is the lawsuit shows, the record in the case shows.

Justice Potter Stewart: As far as either one of them will be on either of this?

Mr. Samuel D. Mcdaniel: That's correct, we contend that Congress never granted the area in dispute to Louisiana and the Louisiana steering of the case in addition to be being wrong because the instruments just don’t grant it to Louisiana, is constitutionally wrong because Article 4 Section 3 gives the Congress the exclusive power to dispose as the territory of the United States and the first senate to the constitution defines the Congress is consisting of the senate and a house of representatives.

And the treaty which acquired property for the United States is an executive action right across by the senate and it cannot dispose the property to one of the states of the union.

The history of the thing starts with the 1803 purchase of Louisiana at a time, when the Westward claim of the Louisiana Purchase was completely unsettled.

Jefferson and many other prominent people thought that the claim extended clear to the Rio Grande.

In 1811, the Congress authorized the formation of the state of Louisiana from the Orleans territory.

Part of the language, the part of the description relative to the case is in the Special Master's report on page 41.

What I’m reading is from the statutes at large, which has a little more in it than the Master quoted.

It reads that the inhabitants of all that part of the territory, are country ceded under the name of Louisiana and then it talks about the session from France.

Contained within the following limits, that is to say beginning at the mouth of the river Sabine, thence by land to be drawn along the middle of said river, including all islands to the 32nd degree of latitude.

The Louisiana constitution of 1812 is in virtually identical language except that it inserts the word if between all and islands and the 1812 act of admission by the Congress, it I believe in precisely the same language, the if is not in yet.

Now, the 1812 act admitting Louisiana as a state is also pertinent it seems to us in another regard because Section 3 of that Act reads this way, that the sub-state, speaking of Louisiana, together with the residue of that portion of country which was comprehended within the territory of Orleans, as constituted by the Act entitling an act directing Louisiana into two territories and providing contemporary governments.

There shall be one district and be called the Louisiana District and that should the established in the said district, a District Court who consist of one judge.

And in the 1850 publication of the statute at large which is the ones, we have down in Texas, there is one of these little marginal squabs here that says, the inhabitance of Louisiana within directed limits, to be authorized to form a constitution and state.

We contend that the Congress of course knew exactly what they were doing and were acting within what was the normal procedure of directing state boundary in the middle of the stream, when they defined Louisiana's eastern boundary up to the 32nd degree of the latitude here as being in the middle of the Sabine River.

It becomes a lawsuit on a controversy because of the 1819 treaty with Spain.

When that treaty was executed after a considerable period of negotiation, the treaty called for the boundary between the two countries to be the western bank of the Sabine, starting at the westward mouth of the Sabine and then up to the western bank.

This treaty was ratified by Mexico in 1828 by the Republic of Texas.

In 1838, the boundary was actually surveyed in 1840-41 by the joint commission of the Republic of Texas and the United States and was marked on the ground.

And that was the extent of Texas' historic claim.

In 1845 of course, we had the annexation of Texas into the Union or its President Polk referred to it in his inaugural address, the reannexation of Texas into the Union.

Now, we don't think that there's anything at all out of the ordinary about the fact that the people who were leaders in this country in the other part of the last century, fully expected that there will be more states organized to the westward of Louisiana, certainly President Jackson and others never ceased their efforts, to get Texas and ultimately they did.

The next act of significance in this controversy is important enough, that if the court will indulge me, I will read it to you, it's on page 42 of the Special Master’s report, it's a resolution not by some pretty functionary of the government of Louisiana, but a solemn declaration of the Louisiana legislature passed in 1848.

It reads as follows.

“Whereas the constitution and the laws in the state of Louisiana nor those of any other state or territory extend over the waters of the Sabine River in the middle of said stream to the western bank thereof.

And it is of importance to the citizens living contiguous thereto and to the people in general that the jurisdiction of some state should be extended over said territory in order that crimes and offenses committed thereon should be punished and wrongs and damages inflicted should be redressed in a speedy and convenient manner.

Therefore, be it resolved by the senate house of representatives of the State of Louisiana in General Assembly convened, first that the constitution and the jurisdiction of the State of Louisiana shall be extended over part of the United States embraced in the following limits (Whenever the consent of the Congress of the United States can be procured there too), there is between the middle of the Sabine River and the western bank to begin at the mouth of said river, where it enters into the Gulf of Mexico and thence to continue along to the said western bank to the place where it intersects the 32nd degree of North Latitude, it being the boundary line between the said State of Louisiana and the State of Texas.”

Counsel of Louisiana argued that this is an assertion of Louisiana’s boundary to the west bank.

We argue the exact contrary that it is an admission by the Louisiana legislature that they did not own the west bank and petitioned to Congress to allow and to extend their boundaries, two only.

Texas passed a similar resolution in the same month of 1848 and sent it to Congress.

Congress denied Louisiana’s petition and granted Texas' petition and on July 05, 1848, passed the Act consenting to Texas to extend her boundary over the eastern half of the Sabine River.

I would like to read out particular language because it is relevant to an argument that I make a little further on.

“Be it enacted and so forth that the Congress consent to the legislature of the State of Texas to extend her eastern boundaries, so as to include within her limits one-half of Sabine Pass, one-half of Sabine Lake and also one-half of the Sabine river from its mouth as far north is a 32nd degree of north latitude.

Now, the Congress apparently realized full well, that Louisiana did not own this area and that the United States did because on page 43 of the master’s report is quoted the report of the Senate Committee own this bill and then the last paragraph appearing on the page says, Mr. Butler asked for the immediate consideration of the bill and briefly explained it's character.

The boundary of the United States it was known embraced the Sabine River and Lake to its western shore.

The boundary of the State of Louisiana extended to the middle of the Sabine.

So that the half of the river and lake to the western shore belonged to the United States and was not included in the State of Louisiana.

Therefore, the boundary of the state and that of the United States was not identical.

The bill before the Senate gives the half of the river beyond the boundary of the State of Louisiana to the State of Texas for the purpose of enabling the later to extend her criminal jurisdiction to the Louisiana boundary.

Louisiana has also argued that all the bill does is allow Texas to extend its criminal jurisdiction, but of course it does more, it allows them to extend their boundary, that is the way they are allowing them to extend their criminal jurisdiction.

And then it concludes Mr. Johnson of Louisiana and Mr. Downs on behalf of the state of Louisiana expressed the acquiescence in the arrangement, which of course were their two senators at that time.

Contrary to the statement in the master’s report on page 9 which I think is in inadvertence, the statement of the second question is the doctrine of acquiescence in prescription applied to the plans of either state and if so, what is his application to the facts of this case.

Louisiana has never pled nor claimed title by acquiescence in prescription in this lawsuit and we contend that on the law, Texas is entitled to judgment confirming her title in the western half of the Sabine River.

Turning to --

Justice Byron R. White: How about -- you are going to talk about the islands then?

Mr. Samuel D. Mcdaniel: I am going to talk about them little later, I will be happy to answer any specific question you had at this time --

Justice Byron R. White: Well, I have the -- i's only claim to the islands by prescription?

Mr. Samuel D. Mcdaniel: Texas claims that the ones in the western half by prescription.

Louisiana does not claim any islands by prescription.

They claim as --

Justice Byron R. White: They claim it as by grant, by the original instrument.

Mr. Samuel D. Mcdaniel: Yes, that is their claim for the islands.

Justice Byron R. White: But not any of them by prescription?

Mr. Samuel D. Mcdaniel: That’s correct, only Texas makes that claim.

Justice Harry A. Blackmun: Are there any islands that straddle the mid-line anywhere?

Mr. Samuel D. Mcdaniel: Yes.

I suppose in a broad sense they are and we concede that a line drawn along the middle of the river when it intersects the line would have to go in the western channel, so that it would leave that island on Louisiana’s side.

But we do not concede that an island completely on the western side of the river over and the western half of the river would be Louisiana’s island.

Justice William H. Rehnquist: Even if it was formed at the time of the 1812?

Mr. Samuel D. Mcdaniel: That’s correct.

Even if they were in existence in 1812.

As a fact, the matter and this is the reason I have said that our exception was more equable.

There are few if any islands presently in the river that was there in 1812. There were very few islands in the river at all.

Now, even most of the ones that are shown on some of these maps are not there.

We feel confident that the ones we are interested in at least we could prove title to that via prescription because Texas had used them and may do so for many years.

Justice Harry A. Blackmun: Incidentally, I take it there has never been any question of the right of Texas or Louisiana for that matter to free access?

Mr. Samuel D. Mcdaniel: No, the treaty admitting Louisiana -- I mean the statute admitting Louisiana into the union in 1812 provides for free ride of navigation to the citizens of the State of Louisiana and all other states and the treaty of 1819 with Spain, if that is of any benefit to Texas and there are some questions where it would be in this context or not and it also provides for a free navigation of the Sabine, even though the boundary is placed by that treaty on the west bank.

The special master on the issue of prescription and acquiescence has detailed a great deal of evidence and even what he details is not all of it.

What I am going to briefly summarize is not all of what he details either.

On maps that he discusses are supported with his finding in favor of Texas.

He discusses 12 mouths by Texas, 18 by the federal government and 31 by Louisiana all which recognized the mid boundary.

This is a typical map.

You'll notice down here in the center of the bottom that says the sale by the US geological survey, at Denver and Washington and the State of Louisiana Department of Public Works, bad moves.

This is their map, the federal government’s map, it is not Texas' map.

Justice William H. Rehnquist: Do you know something about how a map like that was prepared and who actually made a decision as to where this line should go?

You know there may have been a survey hired a couple of years ago that wasn't vested with any decisional authority on the part of --

Mr. Samuel D. Mcdaniel: Well, we don't say that is conclusive, Your Honor, we just say that it's notice to them in their own instrument, but there is a claim here that in the middle of the Sabine River that has existed for many, many years and they have done nothing about it.

Justice William H. Rehnquist: You don't treat it as an admission against interest on their part?

Mr. Samuel D. Mcdaniel: Well, I do not think that when you are talking about acquiescence and prescription, you’re talking about the same thing as an admission against interest in the normal sense.

Justice William H. Rehnquist: You treat it as an evidence of advocacy --

Mr. Samuel D. Mcdaniel: No, no, no, what I am saying is I agree with you that whoever drew the map could not make an admission against interest, they would be binding against the state of Louisiana, it's only an evidential fact.

As to leases, there are 32 Texas sand and gravel and shore leases that go to the middle of the river.

The Master refers to a whole list of Texas oil and gas leases and some pipeline easement.

There are 32 Louisiana mineral leases to the middle of the river and five Louisiana pipeline leads us to the middle of the river.

Both states have closed parts of their respective half of Sabine Lake to Ouster dredging because of pollution.

The Federal rivers and harbors appropriations made to Texas over the years for use in the Sabine have been numerous which the Special Master found to be a Federal recognition of Texas' title.

The period 1852 to 1913 there were 61 such appropriations and the period 1914 to 1969 there were 40 such appropriations.

Texas has participated with the State of Louisiana in erection of eight bridges across the Sabine River which were built to and maintained to and policed to the middle by both States.

Taxes are assessed by both States on pipelines and railroad bridges across the Sabine River on the basis of the division line in the middle of the river and this arrangement has been worked out particularly by Kansas City Southern Railway Company which owned more than one of the bridges across the river with the officials of both States.

Police jurisdiction; both states through their highway patrols and their wildlife officers, patrol to the middle line.

On the map, you will note a long sliver land right off the Port Arthur.

This is Pleasure Island which you probably recall from the Special Master's report, it's an area of 3000 acres which has been reclaimed from the western half of the Sabine River.

That reclamation work started in 1911 and Louisiana has never made one peep about Texas doing it.

Pleasure Island contains a grass course, it contains a Pleasure Pier in Marina, it contains the Reserved Army and marine training station and it contains a part of amusement area, in addition to just having land out there.

It also is reached by a very high span bridge under which large freighters and tankers can sail with sufficient clarity.

Port Arthur is the 12 port in the United States towards seaport in terms of tonnage and Beaumont, which also uses this channel which is right up the Neches river here out of Lake Sabine is the eighth largest port in the United States.

Together, I believe their combine tonnage makes them the fourth largest port behind New York, New Orleans and Houston.

The evidence of prescription as voluminous as it is, in all of these little acts is not merely as strong as four things which I will now detail to Court which seem to me to be very strong on this point.

First of course is the solemn declaration of the Louisiana Legislature which we read a few moments ago, expressly admitting that they do not own the western half of the Sabine River.

That was followed by another legislative act which the Master's report mentions on Page 106 in the form of an appropriation by the Louisiana Legislature in 1857, a $15,000 for improvement of the navigation of the Sabine River condition upon Texas making a like appropriation for a like purpose.

In 1901 we have a judgment of the Supreme Court of Louisiana which has been affirmed three or four times since, holding that Louisiana did not owned the western half of the Sabine River and could not exercise criminal jurisdiction therein.

The facts of the case are somewhat amusing and are pertinent I think.

The De Soto, a Parish Louisiana in Shelby County of Texas both border on the river.

Apparently gambling was illegal in Shelby County of Texas and the retail sale of alcoholic beverages was against the law in the De Soto Parish, Louisiana.

So Mr. Burton hit up on the solution of anchoring his gambling establishment in Louisiana’s half of the River and his whiskey establishment in the western half of the river and rigging up a system of pulley ropes between them so that you could step on a dingy and just pull yourself down the rope over to the bar if you wanted to and get a drink and then come back to the gambling establishment.

The Louisiana officials prosecuted in for selling alcoholic beverages at retail in De Soto Parish, without a license and the Louisiana Supreme Court said that although this was manifestly an attempt to subvert the law, nevertheless Louisiana could not extend its jurisdiction over Texas territory by the means of a rope.

And next time he got caught a year later, he miscalculated the mid-river and they put him in jail.

In 1938, we have several releases, these are discussed on Page 68 to 69 of the master’s report, signed by the Governor of Louisiana which not only call for the middle of The Sabine River, but call for the boundary as set by the Act of Congress of July 5, 1848.

Also in 1938 we have an opinion issued by the Louisiana Attorney General’s office, advising a man in Monroe, Louisiana is to Igoe, I believe it is, this is at Page 69 and 70 of special master’s report, that the Louisiana boundary was set by act of Congress of April 6, 1812, that is the act of admission to find him in the middle of the road and the Texas boundary by act of Congress of July 5, 1848.

The man had written in and apparently he had gotten a lease which purported to give him all of the river bottom and he wanted to know whether he got all or half and the Louisiana Attorney General said he got only half.

So we have the declaration by all of three of the Department’s of Government in Louisiana.

The legislature in 1848, the Supreme Court at 1901 and subsequently and the Governor and the Attorney General in 1938 all clearly recognizing that Texas owned the western half of the Sabine River.

In our answer to all that Louisiana alleges that three parishes purported to extend that boundary to the west bank.

I would point out to this that all three of those attempts were before the Act of Congress of July 12, 1848 and from the date of the act of Congress on July 12, 1848 until the inception of the controversy with the beginning of oil and gas activity in the area about 1940-41, there was a no question of title.

The special master refers to the desirability of having settled these cases years ago and quotes of the first Justice Harlan's comment to that effect in United States versus Texas in 1895-96, the simple truth is that 100 years ago there was certainly no controversy about this plan.

Louisiana also argues that Thalweg should be applied, we say that it is not applicable in this case for four reasons.

Number one, there is no reason for it where navigational rights are not at issue and we cite Georgia versus South Carolina for that proposition.

Secondly, we say that the prescription and acquiescence establish a line to the geographic center of the Sabine River and that prescription and acquiescence would overcome the Thalweg doctrine in any event.

Thirdly, and this is not mentioned by the master, there is considerable evidence in the record that there is no Thalweg in Sabine lake.

The map show a reasonable uniform depth throughout the lake, there is even one in the record made in 1777 that has uniform soundings throughout the lake.

And fourthly, and the master emphasized this, the act of Congress of July 5th, 1848 indicated that it was the view of Congress that Texas was together at one half, one half, one half not merely to the middle of the river.

As to the allowance --

Justice Potter Stewart: Is this a river that shifts the way that Mississippi river has or used to?

Mr. Samuel D. Mcdaniel: It shifts to some extent, but not merely enact like the Mississippi Your Honor.

Justice Potter Stewart: Would there be any difficulty in -- I am thinking about contrasting the the Thgalweg with the geographical center at the river which should be the easiest advice of practical matter.

Mr. Samuel D. Mcdaniel: As a practical matter the geographic center would be far easier to apply.

In Sabine lake for example you would have to go out there and I suppose take specific soundings all through the lake to try to find a channel through it, which we don't believe would be found.

Justice Potter Stewart: You say it is at least arguable that it is almost equal depths through most of it?

Mr. Samuel D. Mcdaniel: Yes, on the island question, we think that the special master only was interpreting the phrase including all islands to refer to the whole river rather than the area of the river defined by the call for a line to be drawn along the middle of the said river.

Justice William J. Brennan: (Inaudible) on this map?

Mr. Samuel D. Mcdaniel: On this map, Your Honor --

Chief Justice Warren E. Burger: Just by name --

Mr. Samuel D. Mcdaniel: Alright, the Sabine Island after which we recognize is in Louisiana.

Justice William J. Brennan: Right.

Mr. Samuel D. Mcdaniel: The islands coming to the west there, western middle pass Sydney Island those are spoil banks and they are not islands.

(Inaudible) island is not an island at all, it's an area cut off by the inter coastal canal of the mainland.

The little area there that is called Doom's island.

There is some controversy as to whether or not it was in the Sabine in 1812 or not, it is not there now, so it probably doesn't make too much difference unless the Court should decide that Louisiana’s line is entitled to be swung to the west of furtherest Island then it might become pertinent.

Justice William J. Brennan: What did you about the Sydney island, I am sorry Mr. Samuel I did not even catch you.

This happened in the island, Sydney island?

Mr. Samuel D. Mcdaniel: Sydney island is spoil bank Your Honor.

Justice William J. Brennan: Oh, I see.

Mr. Samuel D. Mcdaniel: You see the intercoastal canal run drive there behind, it's spoil, the inter coastal canal.

In fact one of the reasons that the island controversy is not too significant to the the lawsuit is because with the possible exception of Dooms Island we do not believe there are any island there that were there in 1812.

The all – oh my time has expired I am sorry.

Justice William H. Rehnquist: (Inaudible) that shipping that comes into Port Aurthur and Beaumont, I take it uses the port Aurthur canal rather than coming into Sabine lake, is that right?

Mr. Samuel D. Mcdaniel: That's correct Your Honor.

The channel here is shown to be 12 feet deep which is the normal channel of the inter coastal canal.

In fact I feel sorry that I don't think there would be any dispute about this, the ship channel which comes out of Port Aurthur and then goes going out to the Neches to Belmont is considerably deeper that that because it uses this full size tankers and freighters all the time and they draw more than 12 feet, but they do use that area and not Sabine lake.

Justice Harry A. Blackmun: Are there any island that's up river to the 32 degree from this map?

Mr. Samuel D. Mcdaniel: There is only one that I know of in a place called the Marrows and that was decided by the Department of the Interior I believe in 1910 to belong to Louisiana, that it should be measured from the Western Channel --

Justice William J. Brennan: I don't understand why is Texas objecting to that provision of the masters to employ this in New Orleans, do you any idea about that?

Mr. Samuel D. Mcdaniel: Well I would say it is more of a quibble really than an exception about the thing.

The only thing that scares also a little about the islands is that the the Court should determine as Louisiana contends that the boundary should come over here if they can prove say the Dooms island existed in 1812, and fix the boundary on the West side of Dooms Islands because Dooms island actually is the little beyond Island in the mouth of the Neches River.

Thank you Your Honor.

Justice Potter Stewart: What if any, does this controversy have to do with the boundary between Louisiana and Texas seaward of the coast up to the three leagues for Texas and three miles for Louisiana?

Mr. Samuel D. Mcdaniel: It has nothing whatsoever to do.

Justice Potter Stewart: It certainly has something to do with the starting point, doesn't it?

Mr. Samuel D. Mcdaniel: Well that gets us back to whether or not the United States has an interest in it or not and my answer to that is this Your Honor, it does have an interest in the starting point, yes as to the boundary between Louisiana and Texas.

Justice Potter Stewart: Right.

Mr. Samuel D. Mcdaniel: Where there is the mouth of the Sabine on the west bank.

Justice Potter Stewart: Whether it's the middle of the mouth of the west bank.

Mr. Samuel D. Mcdaniel: That is correct.

Justice Potter Stewart: Right.

Mr. Samuel D. Mcdaniel: This does not affect the United States, I do think because as to the United States the three league limit only comes as far as our historic boundary.

Justice Potter Stewart: Right.

Mr. Samuel D. Mcdaniel: The Congress does consider ports to extend it here anymore than they have consented ports to extend it up here in North to the 32 degree latitude, so we have no controversy.

Justice Potter Stewart: But as between you -- as between Texas and Louisiana, that boundary that's seaward of the shoreline is affected by this controversy?

Mr. Samuel D. Mcdaniel: It is affected and most states have stipulated that that issue is to be excluded from this lawsuit.

Justice Potter Stewart: Alright.

Mr. Samuel D. Mcdaniel: Now it will determine it obviously but this lawsuit will not determine, what tangent that line should take, whether it should be perpendicular from the coast or whether it should follow some other line.

Thank you sir.

Chief Justice Warren E. Burger: Mr. Stockwell.

Argument of Oliver P. Stockwell

Mr. Oliver P. Stockwell: Mr. Chief Justice, may it please the Court.

I think that it is very important from Louisiana's standpoint to have the Court appreciate the early history of this particular area as Mr. McDaniel has mentioned when Louisiana was purchased from France in 1803 there was a dispute over what its western boundary was going to be.

So, in 1804 they created the territory of Orleans which extended to the 33rd degree north latitude which is the north boundary of Louisiana.

So, in 1806 and I think this is very important, neither of the special masters of Texas have really covered this issue, in 1806, the United States and Spain, entered into an agreement creating what was known as a neutral zone.

Now, this neutral zone extended from the Mermentau River up to the Red river.

Now the Red River is part of the Mississippi watershed.

The big issue was Louisiana was only to cover the Louisiana watershed and the Louisiana watershed fell somewhere between Lake Chapala and the Mermentau.

So, Spain had brought troops into this area and the United States had brought troops in there and they were getting ready to have a confrontation.

So they entered into this agreement in 1806 and provided that neither the United States nor Spain would occupy this area.

They would assert no jurisdiction over it and it really became a no man’s land.

And when Louisiana was admitted as a State in 1812 it was admitted subject to this outstanding agreement.

Louisiana could not take possession of this area of land.

They could not go in there and could force any laws at all.

And of course this wasn't settled until the Trivia of 1890.

In other words Spain and the United States negotiated a treaty and settled the western boundary of the Louisiana purchase and also the Florida parish.

Of course the boundary one could find this to Louisiana, it went on up to the Red River and out to the Pacific.

But when they settled that boundary they settled it on the west bank of the Sabine up to the 32nd degree north latitude and then north to the 33rd which is the north west corner of Louisiana.

So, no patent were issued at this area by the United States.

When Louisiana was admitted as a State the Federal government retained all un-appropriated lands.

Now Texas when it was admitted as a state retained these lands.

So, all of the titles to Louisiana lands emanate from the Federal government except now in the streams.

So during this period there were no titles issued in here at all.

Justice Potter Stewart: [Inaudible] state of the Sabine?

Mr. Oliver P. Stockwell: Yes, in my brief—

Justice Potter Stewart: I read that story about Mr. Merrel --

Mr. Oliver P. Stockwell: It's liberty of putting a chapter out of this book of Maroo (ph) who was a freebooter in this particular area.

As a matter of fact I live in Lake Charles which is in this particular area.

It is about 70 miles from the Sabine across to the Mermentau.

So, you can see that it was quite a question when Louisiana was admitted into the Union up till they settled this dispute in 1890 and finally they did not issue patents till about 1824.

They started issuing some patents and even when they surveyed this line in 1840-41, Mr. Overton who was representing the United States pointed out the law in this area.

And so even when Texas was admitted as a state in 1845 they still had this problem.

Now Texas did have a settlements along the Sabine on the West bank but Louisiana have no settlements.

All this was marsh land and it is marsh to date and way up to river its marsh.

The only settlement was along the western bank and I think that's important because as the Court will note in my Appendix I mentioned a letter from Secretary of State of the Republic of Texas to the representative of United States concerning an interpretation of the word use in the treaty of 1890.

Now, both the special master and Texas have avoided a discussion of this particular phrase which I think is the main issue in the case.

Now the representative of the Republic of Texas said the word use meant to the jurisdiction over this water.

You see in the treaty both the inhabitants of Texas and the inhabitants of Louisiana had equal use and navigation of the water which gave them a use throughout the whole river and this use would not limit it to navigation, that was something separate and Texas in this letter which is in the appendix defines what they consider this used to be.

They had ports here and ships were coming in and smuggling and they wanted to have the right to go out and exercise jurisdiction to stop the smuggling which they said they had a right to do.

Now this discussion was going on, this was just prior to 1845 when Texas was admitted.

So it wasn’t unusual for Louisiana in 1848 to say that there was some question as to whether or not they had full jurisdiction over the Sabine even though they own -- their boundary was on the west bank because the constitution said commencing at the mouth of the Sabine bends along the middle to the 33rd degree north latitude and in north to the 33rd.

So, in this resolution as it is read by Mr. McDaniel accurately, they said that they were talking about extending jurisdiction.

Here were both Louisiana and Texas that had equal jurisdiction over this body of water by virtue of the use and so it was a question of either Louisiana having a full jurisdiction or like Congress decided to do, they gave half of the jurisdiction to Texas so that they could enforce the criminal laws.

Now even Texas, I think it is really important because Texas talks about the fact that Louisiana being able to acquire this territory without a specific act of Congress.

In one of Texas briefs, it is a brief, plaintiffs reply brief before the Special Master on page six, they admit that -- in other words, they say Louisiana obtained title to the unsold federal land adjacent to the Texas-Houston land boundary line by grants from the United States Government under the Swamp and Overflow Lands Act after its jurisdiction over the area had been recognized and acquiesced in by the United States Government’s resurvey of such land as a waste land in 1846.

Now what happened was that before Texas was admitted into the union and before they made this joint survey, the United States had gone in and surveyed a lot of this land and they had surveyed as part of the land that they considered Louisiana that extended west of this line.

So when they made this survey in 1841, they had to readjust these townships and some of the people that had purchased land from the United States Government in Louisiana received a indemnity for it and so they -- that meant that Louisiana had to give up some land out of this area and the lines were readjusted as Texas admits in 1846 to conform to this boundary agreement in 1890.

Now, Texas, in bringing this suit, they limited it to this water boundary, but Louisiana feel that they only way the Court can appreciate this boundary dispute is that it must consider the total boundary of Louisiana.

Texas knew that Louisiana’s boundaries from the 33rd to 32nd degree north latitude would have to be recognized as the treaty boundary.

Now they are saying that we are not entitled to the treaty boundary from the 32nd degree to the Gulf of Mexico by virtue of the language in the Constitution of 1812 of Louisiana which is the same constitution which covered the northern boundary in which they admit we are entitled to.

So we say that when the Court considered this case in the light of the historical facts that this Act, if they would allow this resolution, show that Louisiana considered that this was their west boundary.

They are only asking to give them the jurisdiction and the Congress gave the jurisdiction to Texas.

Now, if it is intended by this Act that they transfer this title to Texas, then under this Court’s case of Mississippi versus Louisiana, Congress could not deprive Louisiana of title to its land.

So, we say that that's one of the reasons why you find all of these maps and things with this line now.

In other words, there have been no question about the question of jurisdiction of fishing, hunting and various other activities on these navigable bodies of water because the citizens of both states had equal rights unless you considered that the jurisdiction was going to be exercised in limited areas by either one of them.

Now, this particular body of water here is not -- as a recent -- as a matter of fact, this was brought about by compact between Texas and Louisiana in 1954, creating the Toledo Bend Dam.

In this compact, it was specifically stated that this would not attempt to settle a boundary.

In other words, Texas knows that there has been a real dispute over this boundary for many years and they have not been misled.

As a matter of fact, Governor Jones in 1941 wrote a letter to the Governor of Texas stating that Louisiana owned to the west bank of the Sabine under the treaty of 1890.

As a matter of fact, Mr. Gouge, who was then Land Commission of Texas, he claimed that Texas owned 150 foot strip from this point on the Sabine, 32nd to the 33rd.

In other words, at that time, they were trying to claim that they owned over to Louisiana’s boundary under what they said the wording of the Constitution.

Now they admit that Louisiana owns it.

So it all goes to show that Texas really has never had any claim, had any doubt that Louisiana has its plan.

Now they thought that they would bring in a picture like this that shows the, all this field here.

Well actually all this field was done by the Corps of Engineers in digging these channels and this was not done by Texas.

The fact that Texas has used some of them and of course the United States has a navigational easement over this whole body of water.

So we say that Louisiana by virtue of the fact that it—

Justice Thurgood Marshall: (Inaudible)

Mr. Oliver P. Stockwell: The put all the people who built it on this field, Your Honor.

Justice Thurgood Marshall: But the United States Government did not build.

Mr. Oliver P. Stockwell: No, no I am not trying to see it.

I was trying to say the field was built by the Corps of Engineers.

Now they have built on that but most of that was built after 1941 when they were put on orders by Governor Jones that Louisiana claimed of the west bank.

So we --

Unknown Speaker: Is that answer to Mr. Justice?

Mr. Oliver P. Stockwell: I was saying that --

Justice William J. Brennan: Now this answers to Justice Marshall.

Mr. Oliver P. Stockwell: Yes it answers Justice Marshall.

Justice William J. Brennan: Yes.

Mr. Oliver P. Stockwell: He asked me who built on this -- the Pleasure pier and all these wharfs of this island I say that Port Aurthur did

The shield was made by the Federal Government but most of this work was done after Texas had been put on notice by the Governor of Louisiana in 1941.

In other words, it wasn't done what they put on notice that Louisiana was claiming.

Justice William J. Brennan: In other words, your position is that the fact that Louisiana tried to do nothing about that has no relevance at all to the question of time?

Rebuttal of Samuel D. Mcdaniel

Mr. Samuel D. Mcdaniel: Well, we are saying, Mr. Justice that actually as far as I can understand, as far as the records show, if I wasn't in this in the beginning so I certainly wouldn’t having a first knowledge it?

The World War took place in ’41 which we all know about that and then soon after that, Texas and Louisiana got involved in the title and litigation and from all the information we have, as a matter of fact, when I argued the matter before Judge Van Pelt, I mentioned that fact that it was not disputed, that there was kind of a gentleman’s understanding that neither side would do anything pending the settlement of this title and litigation.

But Texas settled and had immediately file a suit and we say that there has been no evidence to refute it although in their brief they say -- they now deny that but --

Justice William J. Brennan: But this is an argument that Texas cannot make out, anything out of the fact that Pleasure Island was built on this field, (Voice overlap)

Mr. Samuel D. Mcdaniel: That is exactly what -- that is exactly what we are Your Honor because of the fact that we had put them on notice and decided not to do anything pending this title end.

As a matter of fact, in filing this very suit, Texas asked us not to bring in the title ends issue on it which like Justice Stewart said, we are going to have to settle someday, where the line is going to start and what direction it is going to take into the gulf.

Justice Thurgood Marshall: You are not trying to convince me that Texas made this contribution to Louisiana this pier?

Mr. Samuel D. Mcdaniel: No sir, I am not trying to do that.

Justice Thurgood Marshall: I mean it is a big state, but I did not know they were that generous.

Mr. Samuel D. Mcdaniel: Well I do not think they intend to make this but of course Mr. Justice Marshall, actually many things are built on fields in navigable streams without affecting the title to the subsoil.

In other words viewing in this -- if the Federal Corps of Engineers give Port Aurthur a right to put these works after that.

That doesn't mean they would have title to the subsoil on which these field are been made and that is one of the arguments that we are making in here.

Justice Thurgood Marshall: Who had the title to the bridges over the Sabine River?

Mr. Samuel D. Mcdaniel: Well we take to position, Justice Marshall that it was – in the interest of both parties, this was a navigable stream.

Both parties wanted to have commerce across it.

Now, the testimony would show that these bridges were loaned to one point into river, they were in half and half all the way across.

In other words --

Justice Thurgood Marshall: Is that same for the police jurisdiction half and half all the way across?

Mr. Samuel D. Mcdaniel: No sir but we, some of our people testified they did arrest all the way across, I would say that most haven’t recognized the division line, I mean to be perfectly candid with the Court.

Justice Thurgood Marshall: The division line was in the middle?

Mr. Samuel D. Mcdaniel: Well it was along somewhere in there, they were thinking about it from their jurisdiction but I think as far as the bridges were concerned, they were built maybe on a 50-50 basis and they owned the whole bridge together and I think you would see from the testimony there were not any line picked out in any part of the river.

Justice William H. Rehnquist: Mr. Stockwell, as I understand the common law anyway if you were to occupy a property which I claim and possess it, a mere letter from me to you saying I claim it is mine which did not change your possession would not stop the prescriptive period for money.

I would have to commence a lawsuit to evict you from the property rather than simply send you a letter.

Wouldn’t you agree at least generally that that same (Voice Overlap).

Mr. Samuel D. Mcdaniel: I would agree generally with that premise, Your Honor but I feel if the parties mutually understand, that they have got another matter to settle and they are not going to litigate over it, then I think that is another matter.

Justice William H. Rehnquist: No I would agree with that but so far as Governor Jones' letter is concerned, it seems to me that if Texas was exercising possession prior to that and continue to exercise it afterwards, I do not see that the letter would be terribly relevant?

Mr. Samuel D. Mcdaniel: Well I think it would have it then because states really act a little different than the individuals.

I mean I think that it is harder to get them to get into lawsuits with each other, in particular for any state.

I mean I think that is a matter that certainly, I do not think if you would -- but we say that beyond that, that they agree that they would not litigate this pending this title end litigation which is evidently in this very case because we are not litigating the part that extends into the gulf.

Now Your Honor we fell that the question of --

Justice Byron R. White: The description does not run against the sovereign state?

Mr. Samuel D. Mcdaniel: Well we do not make that as a reference to one state, one state to another state.

Now we would make it as the individuals.

Justice Byron R. White: But you think the same -- you are saying the ordinary rule would apply between states?

Mr. Samuel D. Mcdaniel: Well I think this Court has said that it could acquire title by acquiescence and prescription, I mean settle the boundaries.

So I want to accept what this Court said on it, that as far as between the states that you would not, in other words, we could not say prescription would run against Louisiana in favor of Texas or vice versa.

So I would think if it is an individual, there would be a different problem.

Justice Byron R. White: Yes.

Mr. Samuel D. Mcdaniel: Now, as a matter of fact, Texas had this very same problem in one of that, in the Mexican boundary.

In the case of Fergosa (ph), they had a treaty in 1905 in which they settled some Bancos as they call it which is made by the Rio Grande River.

Now part of these Bancos were taken from Mexico and given to United States in part to Mexico.

Now the question came up in this case as whether or not a party acquired a title to one of these Bancos by limitation.

And the only way he could acquire that title was if Texas got title to this Banco by virtue of the treaty and not by virtue of some acts that was passed in 1823 -- 1923 and the Court held that when the United States and Mexico settle this boundary, that those lands merely became part of Texas and it didn’t need any further action.

They said Texas had given up some land and they acquired some land and that is the same thing as Louisiana has done here.

The question (Inaudible) we say that (Inaudible) Louisiana is in this position, this is an alternative plea, if the Court feel that we are not entitled to it.

This Court is held into the case of the State of Louisiana versus Mississippi that the Thalweg applied to the east boundary of Louisiana in the Pearl River and extending all down into the gulf interpreting the same language and the constitution that is involved in this case, the middle of the Sabine, the middle of the Pearl and the question they both have arrived at navigation and of course we feel that certainly, this Court, in making other cases dealing with navigable streams where you have equal rights of navigation have always held that the Thalweg applied.

Now the case of Georgia versus North Carolina is kind of an unusual case and we do not believe that that was more or less, the parties more or less admitted themselves in that kind of a position but we feel that the majority of the jurisprudence in particular interpret their own constitution.

This Court has held but the Thalweg rule would apply if you feel that we are not entitled to the west bank boundary.

Now as far as Orleans, I want to make a quick reference to that.

Justice William J. Brennan: Any idea what difference that does make?

Mr. Samuel D. Mcdaniel: Well it made quite a little—

Justice William J. Brennan: Unless it's in the middle of the river?

Mr. Samuel D. Mcdaniel: Well Your Honor it makes a good deal of difference as to how they come out of the Sabine, at the Sabine Pass.

As a matter of fact, you can see they have done a lot of channel work in here.

Now the question is what do we entitle to the middle of the river.

Are we entitled in 1848?

See it was about four part Orleans up here and the channel came out, in other words when they made the survey in 1840-1841, they made it on the west bank of the furtherest island so we say that it would make a lot of difference in coming out of here.

Now in that survey, they also found what they called Doom’s Island right of the Neches.

That was in the survey and referred to it.

They made -- in other words they made notes of all of the surveys so they referred to that.

Now if you follow the case of South Carolina and Georgia, then the Court, if the language of that case would be accepted, would take the channel west of these islands, that is what they did in that case.

Unknown Speaker: (Inaudible)

Mr. Samuel D. Mcdaniel: That is right.

So -- and then they all hound up the river by the two.

As a matter of fact, it is kind of unusual, Your Honors because Texas, in their motion for judgment and memorandum with respect to the motion, on page nine, they admitted this, they say that Congress permitted Louisiana to include within its state boundary all of the eastern half of the Sabine including all islands within the stream.

So we say that they only changed their position later in this case.

As a matter of fact, we have a letter from Mr. Gouge that urged the same thing.

In other words, he urged that they were entitled to the west half, exclusion of all the islands.

So, Texas in its own brief, and they already stated in this case, they admitted Louisiana was entitled to all of the islands in the Sabine.

So we say this is important to be considered by the Court to consider in this case.

I certainly thank you gentlemen.

Yes sir?

Justice Harry A. Blackmun: (Inaudible) the Sabine Pass pointed that the top of the map and down at the bottom of the map it says Sabine Pass, is it also Sabine Pass up above?

Mr. Samuel D. Mcdaniel: No sir that is the Sabine River.

The Sabine River, you see the Sabine River --

Justice Harry A. Blackmun: So the pass is at the lower --

Mr. Samuel D. Mcdaniel: The pass is down here, you see they did not show all of this -- one of the things that is unusual.

Yet they are trying to make these lines on this map but now out in the gulf they wanted to take another line.

They do not want the same lines on the maps out in the gulf.

So I mean it's kind of a map, [Attempt to Laughter] excuse me.

That's why you see it's all handed out like that over here.

Thank you.

Chief Justice Warren E. Burger: Mr. Stockwell, thank you gentlemen.

The case is submitted.