MISSISSIPPI v. ARKANSAS

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Argument of Mitchell E. Ward

Chief Justice Warren E. Burger: We’ll hear arguments now in Number 48 Original, State of Mississippi against the State of Arkansas.

Mr. Ward you may proceed whenever you’re ready.

Mr. Mitchell E. Ward: Mr. Chief Justice and may it please the Court.

The State of Mississippi has filed this original action asking the Court to make a judicial determination of a disputed boundary line between the two states.

The uncertainty of the boundary line is due to the fact that it is located in an abandoned Bend of the Mississippi River but formerly was a boundary but which is now been cut-off by the action of the U.S. Engineers in making a neck cut-off in 1935.

When the two states were admitted to the union, the Acts admitting the union made the Mississippi River the common boundary.

In the area in question, the river loop westward and southward and then eastward around a long neck of land which was located in Mississippi known as Carter Point, Mississippi and this map have depicted in the Arkansas-Mississippi Refuge Quadrangle was attached to the Special Master’s Report, the Honorable Clifford O'Sullivan.

Justice Potter Stewart: Which is at -- which map is it?

Which --

Mr. Mitchell E. Ward: That’s the map like this.

Justice Potter Stewart: Appendix A?

Mr. Mitchell E. Ward: That’s right, appendix A, yes.

Justice Potter Stewart: Appendix A, thank you.

Mr. Mitchell E. Ward: The black line on this map shows the location of the river when it was surveyed by the Surveyor General of the United States.

It is the contention of Mississippi that from about 1823 to 1830, the time of the original G.L.O. surveys that the river migrated slowly and imperceptibly caving in to the Arkansas bank and adding accretions to Carter Point, Mississippi until such time as it moved approximately 2,000 feet to the west, in the location in 1935.

In the year 1935, the United States Engineers made a cut-off across the neck of Carter Point which is shown on this exhibit, appendix A, thus, diverting the flow of the river from its old channel around the Carter Point and creating a new channel within a matter of some three months, all navigation left the over -- old channel and adopted the new channel through Tarpley Point.

Unknown Speaker: Mr. Ward, I take it the only argument here is over Luna Bar, is that right?

Mr. Mitchell E. Ward: Yes, that area around Luna Bar.

Luna Bar actually created the problem.

Unknown Speaker: Is this a very valuable piece?

Mr. Mitchell E. Ward: Yes, sir.

Unknown Speaker: Appellant exercised here on a --

Mr. Mitchell E. Ward: Its -- by now it has probably close to thousand acres of land.

All of this land shown in Spanish Moss Bend has filled in.

There have been numerous problems in the enforcement of criminal law.

The State of Mississippi arresting residents of the State of Arkansas on this Bar where the intended confusion about which state has criminal jurisdiction.

It is the contention of the State of Arkansas that this gradual migration did not occur but that in the year 1872, the river, Mississippi River suddenly jumped, caved into the Arkansas bank, went over bank, scout out a completely new channel behind the mainland of Arkansas bank and then re-entered the Mississippi channel at a lower area there thus, creating a island which they is Luna Island and not Luna Bar.

The Special Chancellor, I mean the Special Master resolved this conflict in favor of Mississippi and we are here today on exceptions to his report.

We’re not sure just what the position of the Supreme Court is at this time about the weight to be given or the finality to be given to the finding of a Special Master.

We do note that in Rule 9 (2) of the Supreme Court rules at -- they say that where applicable, the Federal Civil Rules will be given effect and in Rule 53 of the Civil Rules, it is provided that the finding -- factual findings of a Master will not be disturbed unless clearly erroneous.

Actually, we are in agreement with Mississippi and Arkansas in agreement with the basic law which is the law of the thalweg and we’re really here arguing a point of fact as to whether the finding of the -- the report of the Master should be approved on that finding.

We both agree that the law is that if the river migrates slowly and imperceptibly and the thalweg continues to cave in to a bank, that that -- where that thalweg is the boundary line between states that that changes -- does not change the state boundary but the boundary follows the deepest line of navigation of sailing line or thalweg used interchangeably and it remains the state line wherever it might be.

We agree on that.

We further agree that if the river suddenly abandons its old bed and carves out a new bed by -- in a very short period of time by an avulsive action that this freezes the state line and the line of navigation, the sailing channel where it was located prior to the avulsion after that reach of the river has ceased to be a flowing stream.

So --

Justice Potter Stewart: Mr. Ward, am I correct in assuming that there really isn’t any argument on the law at all between the two states.

Mr. Mitchell E. Ward: No, sir.

Justice Potter Stewart: It’s just the application of --

Mr. Mitchell E. Ward: The application of the law.

There's one other point of law which, I think, we are in agreement on and that is this that in the brief below, Arkansas conceded that Mississippi had made a prima facie case and that the burden of proof rested upon them to establish the 1872 avulsion.

This was quoted.

I did not argue it in my brief because it was quoted by Justice -- by the Special Master and was not controverted by Arkansas.

That is the law anyway as I understand it to be because an avulsion is an extraordinary thing and not the ordinary thing that would happen.

Fortunately, we were able to find numerous maps and charts, direction for navigation, reports to Congress involving this sector of the river over some approximately 200 of them.

So we have a rarely com -- a fairly complete historical picture of this.

From the time that Mississippi and Arkansas were admitted to the union, there are numbers of maps particularly the all western palette which was -- gave directions to navigators and which included maps of this sector of the river which stated that the sailing vessels when they go through Spanish Moss Bend should go over and hold hard against the bed -- against the bank of the Mississippi River thus fixing the sailing line against the concave, hard bank of the Arkansas River from 1820 up until 1860.

There's not -- the largest years in gap in this period of time was only nine years, so we have a graphic depiction of the fact that from 1820 to 1860, there seems to be no question but what the sailing line, the thalweg, the channel of navigation was hard against the Arkansas bank.

Also, during that time, there was no evidence of a detached bar as we call it, a piont bar, an island as Arkansas call it.

There was no evidence of any detached land mass appearing of Carter Point.

The maps all, however, did show that attached to Carter Point there was building and continued to build a sandbar, accretion formation.

And in 1863, and we now move into the war years, a law, it's 1863 on the Mississippi River which was drawn up for the purpose of showing this very thing, islands, sandbags, further fortifications and land -- and mines that had been placed out -- was printed and this 1863 map goes into great detail showing a very decided sandbar formation attached to the distal end of Carter Point, Mississippi with no land mass formation out in the river.

Following the end of the Civil War and doing the efforts to reconstruct the South, the United States sent a -- General Humphreys down to make a -- an inspection and report, particularly on the condition of the levees along the Mississippi River.

The levee being as you know an earth and bank mud that is thrown up at that time parallel within quite close to the bank line for the purpose of trying to contain the Mississippi waters when it was in (Voice Overlap).

This report that Mr. -- that General Humphreys made in 1866 to Congress and a subsequent report that he made to Congress in 1869 reported that the bank was caving badly in this Bend that the levees had fallen into a state of disrepair and that breaks were evident in the levees in several places, all in this Spanish Moss Bend area.

Then in 1872, the State of Arkansas also became concerned with this and they appointed a surveyor named Douglas, to make surveys of the existing levees and to make recommendations for new levees to take the place of the gaps into old levees.

This is a first historical proof of the existence of this land mass known as Luna Bar in a situation where it has become detached from Carter Point.

Mr. Douglas surveyed a -- in great detail the Arkansas bank there.

He showed farms.

He showed forests.

He showed sloughs.

He showed the levees in place and levees which had been breached.

Luna Bar, he did not designate its sect but in the river over against the Mississippi shore, he showed and I -- a formation detached from the shore utterly devoid of any sculptural symbolization which would indicate, we have no report of Mr. Douglas, but it was slightly indicate by leaving it blank that he did not consider it a part of Arkansas.

The most important thing about Douglas’ survey however, is the fact that he locates with great detail the then existing levee system with its breaks which coincide exactly to the reports that General Humphreys made through Congress in 1866 and 1869.

And the engineering witnesses introduced by -- the engineering witness and it was only engineering witness introduced by Mississippi was able to overlay subsequent surveys right up to the present time and you can see that all the levee’s prior to 1860 in place, you can walk them both sides considered they’re there.

You can walk them along the bank, on the Arkansas side.

There is no levee formation or whatsoever on Luna Bar which is some 2,000 the crest of it is some 2,000 feet to the east.

Justice Potter Stewart: Mr. Ward, in respect to that last statement, does your opposition agree with you on that.

Wasn’t there some testimony somewhere that there is evidence of an old levee on Luna Bar?

Mr. Mitchell E. Ward: No, sir.

I think not.

There was some testimony of an old house site on Luna Bar.

Unknown Speaker: Or an old cistern was --

Mr. Mitchell E. Ward: Cistern, that’s right and then the witness Putnam (ph) said, he thought he saw a chimney.

On his second visit back, he could not locate the chimney.

No one was able to locate any habitation on Luna Bar.

The witness, Dr. Durham, even went so far as to get a metal detector and go -- they assumed that there were houses there because there were chinaberry trees.

In that part of the country, they do plant chinaberry trees around house sites so they saw some chinaberry trees also brought in by birds.

But they did --

Unknown Speaker: Is there any habitation there now?

Mr. Mitchell E. Ward: Sorry.

Unknown Speaker: Is there habitation there now?

Mr. Mitchell E. Ward: No, sir.

Unknown Speaker: But you’re still arresting people on Luna Bar for something?

Mr. Mitchell E. Ward: Mississippi is arresting people on Luna Bar.

Unknown Speaker: What -- for what -- on what kind of charges?

Mr. Mitchell E. Ward: By game violation.

There has not been one -- this really started the series of suits was a -- Mississippi making these arrests.

And I think that’s really what precipitated the litigation.

Unknown Speaker: The litigation.

Mr. Mitchell E. Ward: Litigation and we thought it well to bring it to -- in a proper way.

Unknown Speaker: Well, these are hunters?

Mr. Mitchell E. Ward: Hunters, yes.

One was a hunter from Missouri, came down with an Arkansas license and was arrested and tried in Mississippi and another one, I believe had in Arkansas license and was also arrested.

Justice Potter Stewart: So is that -- those episodes that motivated this litigation to get the (Inaudible).

Mr. Mitchell E. Ward: Started the litigation then in the lower courts.

One suit was filed in the District Court at Greenville.

Another suit was filed in the Chancery Court of Arkansas and we were getting litigation all over the place and Mississippi decided they wanted to bring it here then have some definite adjudication of where the line was.

Justice Potter Stewart: Are these geese or ducks or --?

Mr. Mitchell E. Ward: Deer mostly -- there is very good goose and duck but mainly deer and the turkey.

Justice Potter Stewart: And who’s the owner of the property in litigation?

Mr. Mitchell E. Ward: Carter Point is owned by a lumber company, Anderson-Tully Company, the Arkansas bank well, right north of Carter Point is owned by Chicago Mill and Lumber Company which do not involve in this suit the land owners to the west of various one, Dr. Wells is now dead, Mrs. Smith, Arkansas Land & Cattle Company and then they have further owners, further other owners further downstream that have not yet become involved in any of the litigation.

Justice William H. Rehnquist: When this dispute is to the historical movement of the river, unsettled private titles as well as the boundaries between the states.

Mr. Mitchell E. Ward: Yes sir.

On that Duke versus Deffrey (ph), they recognized that private litigants can settle their titles one by one if they finally get an unappealable decree but it is difficult crossing state lines to get personal surveys on land owners and to make a decree which you feel confidence in.

Also that does not resolve the question of taxes.

There’s the question of criminal jurisdiction and recently there has been a good bid of all activity in Washington County which is immediately adjacent to that, has always been a good bid.

In Arkansas, I’m not quite sure about this particular county.

But in any rate, the Douglas 1872 survey was the first historical evidence of this situation being there.

Also in 1872, Louisiana since they were getting the water when the water flowed through the breached levees in Arkansas, they flowed downstream and came in to what is known as the tinsel bottom and Louisiana also sent, a Captain Richardson (ph) up to make an investigation and report and he made a report in 1872 to the Louisiana Levee Commissioner reiterating the same situation found in Humphreys’ reports.

In addition to the breaks that he found and shown on Douglas’ Report, he found an additional break of 200 feet in the levee.

The important thing about all of these reports, it seems to me is this, one, no mention was ever made of an avulsion taking place in 1872 whereby the river jumped into Arkansas and caved through the land and came back out.

The geological witnesses, Dr. Kolb, from Mississippi, Dr. -- Mr. Spillers (ph) and Doctor Durham from Louisiana all conceded that in there experience as geologist and all of the geological literature there had never been any mention or ever has any history of any such phenomenon taking place as Arkansas claims to have happened here.

In fact Dr. Kolb said, I had to coin the phrase and he called it an outside avulsion and said, I never heard of it, I just made it up.

Mr. Spillers made one, he said it’s -- I call it reoccupying an old channel.

He admitted that there was no such accepted phrase in geologic literature and he said he had to coin the phrase too.

So, with all of these weighed down in this particular narrow sector of the river it is -- it seems to be incredible that if this phenomenon took place, it has never happened before and it never happened since -- but they were concerned with the integrity of the levees when they were concerned with trying to protect the backland of Arkansas from flooding that they would've swept this remarkable situation under the road.

Unknown Speaker: Mr. Ward, there was a testimony by a forester with respect to the existence of three rather mature trees, one, a red mulberry tree, I think and the other, a black walnut tree and as I remember the species of the third tree was not identified which Arkansas says tends to support their theory.

Where were those, it wasn’t clear to me, where those trees -- where the forester testified he found those trees or tree stumps and what the --

Mr. Mitchell E. Ward: Significance of them?

Unknown Speaker: -- significance of them would be?

Mr. Mitchell E. Ward: Mississippi takes a position that those of stumps of trees that had had been severed from their bowl in years past and had floated in over some flood in preceding years.

And substantiation of that position which we think is a valid one.

The two, the -- if the Court please, one of the old mulberry tree was found on the lower end of Luna Bar, the other two trees were found about the center, west center portion of Luna Bar.

The remarkable thing about it was that they -- that these witnesses pinpointed and they are on the exhibits.

They pinpointed the location of these tree stumps which they said -- they thought were stumps of trees in place.

Unknown Speaker: And they testified, they were deeply rooted there, they were -- didn’t they?

Mr. Mitchell E. Ward: One of them, yes, one of them was rooted, one was -- been over and was not real, one had the moss on the roots, it couldn’t have been Putnam -- that Mr. Putnam before said it was rooted.

Then I call his attention, the fact that there was moss on the roots.

Then he said, well, that -- it wouldn’t have moss on the roots.

But the complete refutation of that in our opinion is this that the witness, Smith, the all -- all of these maps were blown up to a common scale, one foot equal 20,000 feet, one to 20,000.

It’s possible by getting your benchmarks, your levees and so on and lining them up to overlay and -- transparent overlay is made of all these exhibits.

To put one exhibit transparency over the other and locate various geographical points, the mulberry stump and the other two stumps which they said were of ancient age, in 1894 the soil was in and one place was 10 feet lower and another 15 feet lower and another place 20 feet lower.

So between 1894 and 1970, when Mr. Putnam went on to Luna Bar there had been a filling so that the elevation had been increased from 1894 as laymen, I’d say fill, it had been filled in.

The elevation had been increased as much as 20 feet, 15 feet, 10 feet, so these stumps were -- they would've hanging in the air if they had been there in 1894.

In the meantime, the river had come in and deposited and these stumps had obviously floated in, a phenomenon that’s accepted up and down the river.

It floated in on some subsequent rise and had attached there.

While you have raised the question of forest, we find with exception to these dead trees, which we didn’t find, we never could locate, and they found them.

Unknown Speaker: If in fact, trees of that age had grown in that spot then your theory would be erroneous, wouldn’t it?

Mr. Mitchell E. Ward: No, sir.

Because it would've been impossible because they grew in an area which by subsequent maps the 1882 survey, Mississippi River Commission, we call the MRC Survey, the 1894 survey, they show subsequent shows -- survey show that this area was in the bed of the river, (Voice Overlap).

Unknown Speaker: Well, as I see it, but --

Mr. Mitchell E. Ward: Otherwise, we would have to disregard those facts.

Unknown Speaker: Well, yes.

But my question was if those trees had in fact grown where they were found of that age then all of your evidence is wrong, isn’t it?

Mr. Mitchell E. Ward: No, sir.

No, sir.

I wouldn’t agree to that because --

Justice Potter Stewart: It can only -- in other words, they could've been on the bottom of the river or the trees wouldn’t have grown there.

You assert -- assume with me if you will, contrary to what you strenuously represented to be the facts that the trees in fact did grow in those spots for 84 years, a hundred years, whatever it was year old trees and had they grown there, then your theory as to the historic facts would be mistaken wouldn’t it?

Mr. Mitchell E. Ward: I would have to say yes, I would have to assume first that the river -- that the land was at that elevation.

Justice Potter Stewart: Right.

Mr. Mitchell E. Ward: And that all of these subsequent maps were all wrong.

Justice Potter Stewart: That’s right.

Mr. Mitchell E. Ward: And that was a part -- yes, the Judge O’Sullivan made that all of the witnesses for Arkansas found fault with these ancient maps wherever they did not agree with that theory.

And that was a way they wash the maps out because he said it doesn’t agree with our theory.

Out there, it’d been that the -- why stand there theory being that the group but I can’t get over the fact that there are moss on one of the roots there which would be evidence if they --

Justice Potter Stewart: Alright.

I just wanted to be sure I understood the significance of the evidence, so is your answer yes that if the trees had grown there, your theory would be mistake?

And all the maps would be mistaken and all the evidence and all the other evidence upon which you relied?

Mr. Mitchell E. Ward: Yes and all the maps and all the way to the Mississippi River Commission.

Justice Potter Stewart: Right.

Mr. Mitchell E. Ward: And all of that reports to Congress and so forth.

Justice Potter Stewart: Right.

I just want to be sure I've understood the significance.

Mr. Mitchell E. Ward: Yes, sir.

In 1882, and this would bear on the question that has just been asked, in 1882 the Mississippi River Commission made the first -- the definitive control survey of the Mississippi Valley, this was done with great care.

It was done on -- tied in with trigonometry, it was tied in with longitude and latitude and they got the elevations and my time is running short, I do want to save a minute but those surveys showed this was just a dry sandbar with no vegetation on it.

Chief Justice Warren E. Burger: Mr. Drew.

Argument of William H. Drew

Mr. William H. Drew: Mr. Chief Justice, may it please the Court.

The State of Arkansas will agree with the State of Mississippi on the law.

Apparently, there is no contest of the law involved.

It will be merely a fact -- factual situation that if Luna Bar or Luna Island is the product of an accretion then of course the evidence is that the river and the thalweg was west of it.

If it however did not imperceptibly move, then the theory of the State of Mississippi and it being in the State Mississippi would be incorrect.

To go a little further, the State of Arkansas conceded that in its inception that the State of Mississippi raised a prima facie presumption that the river did migrate, it did not concede that the river did in fact migrate across.

By the testimony of Mr. Kolb -- Dr. Kolb and the witnesses for the State of Mississippi, we conceded that they raised the prima facie presumption that under normal circumstances and accepted principles there is a westward migration of the river and had been way of this type, however, in the accepted situation, we do not necessarily agree it occurred at that time, in fact we think the evidence is quite contrary.

We agree that there are many recorded maps and one particular map of -- was -- the defendant’s exhibit number 8 which was a map of the -- I meant, ownership map of Washington County, Mississippi in 1871.

This map does not bear out the contention of the State of Mississippi in any way.

Appendix -- the map of 1863, Lloyd’s map, and I believe it’s the 9th exhibit in Judge O’Sullivan’s report.

There is an accretion to the northern side of Carter Point but this is not the location of Luna Bar or Luna Island, it is to the north and completely distant by two to three miles.

The -- had the rift in 1971 all of the maps and we commenced with the Government Land Office Survey of 1823 on the Arkansas bank, 1830 on the Mississippi bank.

From those points on there is no divided channel in Spanish Moss Bend.

This goes through the Humphreys and map 1861 which was the general reconnaissance map used by General Grant in the conquest of Vicksburg.

There is no divided channel all the way through in 1871 based upon the maps from the Library of Congress and the Senate and the other maps and also the defendant’s exhibit number 8 of Washington County.

In 1872, there is a divided channel apparently based upon the maps of Mr. E. A. Douglas who was apparently commissioned to show the breaches in the levee and to get congressional assistance in this area.

Immediately, west of Luna Bar, there is about a mile or so of levee that are breached, the report of Mr. -- of General Humphreys is that this levee was breached there but the waters were not going to the tinsel bottoms but were passing back to the main channel of the river.

Mr. Smith, in behalf of the State of Mississippi, deduced that the caving in the bank above Columbia was in Spanish Moss Bend.

The history of pre-Columbia was the first county seat of Chicot County.

It did in fact washed into the river and caved away and the county seat was subsequently was afterward removed.

Columbia no longer exists even in any way because it all went into the river and its some several miles south of there.

Be that as it may, in 1872, the map of Mr. Douglas, if we will take the -- and assume that the projectile like, the little marking over there is the Mississippi bank or is Luna Bar would be its first appearance.

However in 1873, there isn’t any question as to the appearance of Luna Bar or Luna Island.

Major Sutter (ph), commissioned by Congress made a quick reconnaissance of the river.

He was making this reconnaissance due to the vast flood damage and to make a report to Congress for assistance therein.

Major Sutter in his map of reconnaissance which would be defendant’s exhibit number 12 clearly set forth a bar in the river, he clearly wrote legend, Spanish Moss Bend in the eastward channel and shows the thalweg of the river in the western channel.

And going through his entire report he meticulously has put the legend of the name of the Bend even when crowded for space where it apparently originally was.

Unknown Speaker: Mr. Drew when you refer to this various defendant’s exhibits, those are Arkansas exhibits and they're not attached to the Master’s reports?

Mr. William H. Drew: No sir, they are not.

Unknown Speaker: But they are here in the file, I take it.

Mr. William H. Drew: Yes, Your Honor.

Unknown Speaker: Alright.

Mr. William H. Drew: Yes, sir.

So we know that the island came into existence in 1872.

The first hydrographic survey of the river took place in 1879-82, the actual geological survey -- of the surveying and it all took place in ‘71.

The map and it’s -- whatever they’ll show in their own continued on through ‘82.

And at that point, it shows a divided channel.

The Court’s attention is called to the testimony of Dr. Kolb and Mr. Smith and particularly so, sir with reference to the elevations of the island, Mr. Gar (ph) had made a survey line across the island which crosses the north side and is clearly in an accretion area, reference line A to B, C and I believe it goes to D on up to Carter Point.

All of the elevations alluded to by Dr. Kolb and Mr. Smith were based upon the elevations of that reference line and not to the highest recorded elevations of the island itself.

If the Court please, the Court to locate exhibit number -- I believe its appendix A to the Master’s report will note that the original survey lines of 1823 on the Arkansas bank, 1830, the Mississippi bank are shown therein with heavy pencil.

At the distal south, distal end is the island itself, the accretions being the portion to the north.

The reference line crossed over on to the northern portion of the island and not through the higher area.

Based upon the physical maps and what the -- it thoroughly show, there was no accretion to the distal end of Carter Point, exhibit D-A -- 8, ownership of Washington County completely shows Carter point in its original position.

The other exhibits that are made about that time also can reach that same conclusion and therefore we know that the island did come into existence in the year 1872 based upon Mr. Douglas’ map followed by Major Sutter’s.

The -- thereafter there is a divided channel at old time but every Mississippi River Commissions Survey from 1880, the first all the way through to the present time, there is a divided channel around the island.

The State of Arkansas employed Dr. Kolb, excuse me --

Justice Potter Stewart: Since 19 -- although you said a divided channel has existed right up to the present time.

Mr. William H. Drew: Yes, sir.

Justice Potter Stewart: The actual navigable river is down through the Tarpley Cut-off has been since 1935 --

Mr. William H. Drew: Mr. Justice Stewart, the river eastward of that point approximately five miles, there was a channel, a dredge through Carter Point, but navigation did adopt.

However, the river is still active in Carter Point and I mean, in Spanish Moss Bend and has always been I think the testimony will be that only a very small portion of the island was that at one turn during the suit and other times it had both across those channels but there is still a major stream going through (Voice Overlap)

Justice Potter Stewart: They are still flowing on both sides?

Mr. William H. Drew: It still flows, yes, sir.

The State of Arkansas does --

Justice Potter Stewart: Although the navigation is down through the --

Mr. William H. Drew: Yes, sir.

Justice Potter Stewart: -- Tarpley-Cut-off and then since 1938 the --

Mr. William H. Drew: (Voice Overlap) concedes that the navigation is in Tarpley Cut-off.

Justice Potter Stewart: And the levee had been cut-off below it since 1938?

Mr. William H. Drew: And the levee had been cut-off.

However it does not concede that the river is inactive in that area at all.

So it is very active.

Justice Byron R. White: So when is the --

Mr. William H. Drew: Yes, Mr. White --

Justice Byron R. White: Is the river boundary then -- is the river boundary then or that the boundary between the two states now fixed or not?

Mr. William H. Drew: Sir, the boundary between the two --

Justice Byron R. White: If it’s still an active river, supposedly it isn’t --

Mr. William H. Drew: I would see it is not fixed and except for the avulsion that would've taken place in 1872 fixing the channel in the eastern channel in 1872 (Voice Overlap).

Justice Byron R. White: (Voice Overlap) fixed since 70 -- 1872?

Mr. William H. Drew: Yes, sir.

Justice Byron R. White: But if you're wrong, it isn’t fixed yet?

Mr. William H. Drew: That’s correct sir.

Yes, sir.

Dr. Durham and Mr. Spillers made an extensive geological investigation of the island itself.

The strata of the soil, the leveling -- its level across the same strata run uniformly throughout its length that is inconsistent with a -- an accretion such would have bending waves or layers of soil therein as it accreted and moved outward.

Both Dr. Durham and Mr. Spillers also made investigation as to the pre-existing channels that lie westward even of Luna Island itself.

The present channel of the western channel, they made an extensive study therein and found the low lying cypress stumps that grew in place that are lying in the bottom of that bed and also are lying east of the western migration of the river itself.

The evidence, the physical evidence there concludes that there is or was a low-lying area in there.

However, had the river migrated westward as contended by the State of Mississippi, these cypress stumps that are lying east of this westward migration that by ring count or over 250 years old would have been erased?

The State of Mississippi says, “Well, they could have floated in and landed there.”

With the given description of with all just floating the roots are up when you saw them off, they flop up, they don’t sink downward.

However, there was a testimony by experienced foresters; these trees were trees that grew in place their needs, their root systems and all are there.

This is in the western channel and not on the island itself.

On the island itself, in the higher elevation which will be in that south central part on exhibit, appendix A, the high elevation that is recorded much higher than is shown by the State of Mississippi, there are tree stumps of antiquity there or ancient that were located by Mr. Putnam, who is now deceased and Mr. Campson (ph) both experienced foresters, both testified these stumps are from the trees that grew in that spot, they examined them.

The carbon dating of that stump, by Dr. Iddings (ph) which was the tree had been dead -- at the time of its death was 550 years plus or minus 180.

As I understand the carbon dating, the longer the half-life is computed the smaller the figure.

The time element involved and having established a tree of antiquity much greater than the hundred-year period that would be involved herein.

It was not run any longer.

This particular tree was the red mulberry stump, sir that was 84 years old by ring count at the time of its death.

Even without the carbon dating, we know that from the surveys thereafter the 1882 survey the -- the tree mass was there gone and this tree if growing there had been dead at least by that time which was prior to the clever man’s survey.

The other two of those trees: one, a red mulberry and the other a black walnut.

The black walnut was flagged and left in place by Mr. Thompson.

The ring count they are on was 112 years old.

There was no attempt to carbon date yet.

It also had been dead longer than the period of time involved and was of age there.

The other was the red mulberry with 112 years old or some back at the, exactly, I do not recall.

Had the river moved imperceptibly westward as contended by the presumption raised by the State of Mississippi, these stumps could not have existed.

Further, we have the testimony of Mr. Richard Proctor, who is an elderly man that I have known all of my life since I was born and raised between two miles of this part.

Mr. Proctor testified and if you’ll notice his testimony in came it as not solicited but a voluntary thing, that on this island, he was asked a question and he remembered going upon the island and going into a cistern and taking a mink.

We further have the testimony of Dr. -- I’m sorry his name escapes me.

The gentleman with his jury topics who could see Mr. -- Judge O’Sullivan could not however he continued, he found evidence of human habitation in the aerial photographs of the 1930.

Justice Potter Stewart: What kind of a vegetation and in particularly trees are on the -- around the Luna Bar to that?

Mr. William H. Drew: At this time sir?

Justice Potter Stewart: Yes.

Mr. William H. Drew: At this time sir, on the highest elevation on the very top it is a field.

There are approximately 800 acres of land adjacent on the accreted areas that have saw timber and willows that our foresters valued at $500 an acre greater at the stump, there are other species of trees, hardwood that this is quite valuable land.

Justice Potter Stewart: Any red mulberries or white walnut?

Mr. William H. Drew: Yes, sir.

Justice Potter Stewart: There is the evidence they’ve talked in the brief.

Mr. William H. Drew: In the --

Justice Potter Stewart: And the papers here about --

Mr. William H. Drew: The only --

Justice Potter Stewart: -- primary growth and secondary growth and the climax growths.

Mr. William H. Drew: Yes, Mr. Justice Stewart.

Justice Potter Stewart: -- which are unfamiliar terms for me.

Mr. William H. Drew: The --

Justice Potter Stewart: But I don’t (Voice Overlap) --

Mr. William H. Drew: The climax series of trees are all on the higher elevation surrounding the field. On the lower elevation sir, they are only trees of the primary species.

Justice Potter Stewart: But on the --

Mr. William H. Drew: Higher elevations, trees --

Justice Potter Stewart: On a higher elevated plain are there red mulberries and (Voice Overlap)

Mr. William H. Drew: There are only trees of the secondary and primary species on the highest elevation, sir.

And this is one of the things that when the foresters called the Court’s attention to.

The -- not the tree itself and the present living tree and its age but the complete variety of trees that are now growing there is inconsistent with trees with newly formed lands as contended by the State of Mississippi.

The Mississippi River Commission itself in the historical study for the Tarpley Cut-off made a survey, a historical study which is defendant’s exhibit number 32 wherein the State of Mississi -- the Mississippi River Commission itself made the historical study and a map showing the accretions and whatnot from 1880 to date.

There -- historical study also does not support the presumption of the State of Mississippi.

Further, Dr. Fisk in the geological investigation of a Mississippi River alluvial valley and its ancient courses from Cape Girardeau, Missouri to Downing, Missouri, which was defendant’s exhibit number 30, completely supports the contention of the State of Arkansas, completely supports Dr. Durham and Mr. Spillers.

It completely negates the presumption of the State of Mississippi.

In its geological investigation, Dr. Fisk shows the area of the island we were just discussing with the secondary and the primary trees they’re on as ancient course number 10.

In the hierarchy of the years on the ancient courses, they fixed them by centuries, tenth century, eleventh, and twelfth up to the present time, however, they go back to antiquity.

Dr. Fisk also shows that the higher elevation from which the red mulberry, the walnut and all this others were taken as well as the tight forestation as to be in channel number 10 or in existence more than several hundred of years.

We have the defendant’s exhibit number 39 which is a county map of Chicot County prepared by Mr. W. A. Miller (ph), who at that time was the County surveyor who shows clearly the Luna Island Bar area as being it in the State of Mississippi.

It’s the contention of the State of Arkansas that the report by Honorable Judge -- Mr. Judge O’Sullivan is erroneous in that it adopts the depth or the elevation theory of the State of Mississippi on a reference line was aren’t regard to the true elevation of the island from where the physical facts of antiquity were discovered.

Secondly, the map area does not support the contentions in anyway and in fact negates it.

We believe that the State of Arkansas has completely negated the presumption raised by Dr. Kolb or by Mr. Smith with physical factual evidence that makes the fact that this would be a part of Mississippi in impossibility.

We thank you very much sir.

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

Mr. Ward, do you have anything further?

Rebuttal of Mitchell E. Ward

Mr. Mitchell E. Ward: I have -- I can’t agree with everything that Mr. Drew has said.

For instance the exhibit by the Master here shows that old the channel completely clogged off and filled with sand which the Court had before it.

The question of forest here, it is not trees that control, it is the question of the forest, the type of the forest.

The testimony here is that this was an alluvial forest and that the growth of trees, there is an alluvial forest of the primary species, they’re still there, 40 years old.

Chief Justice Warren E. Burger: Thank you very much gentlemen.

Case is submitted.