GEORGIA v. SOUTH CAROLINA
Argument of Patricia T. Barmeyer
Chief Justice Rehnquist: We'll hear argument next in Number 74, Original, the State of Georgia v. the State of South Carolina.
Ms. Barmeyer, you may proceed.
Mr. Barmeyer: Mr. Chief Justice, and may it please the Court:
This original action was initiated by Georgia in 1977 in order to resolve disputes concerning the boundary between Georgia and South Carolina in the lower Savannah River, the mouth of the river and the lateral seaward boundary.
Both Georgia and South Carolina have filed exceptions to the reports of the Special Master.
In order to outline the exceptions, I'd like to ask the Court to turn to Appendix B to Georgia's brief and exceptions.
Appendix B is a map of the relevant area.
Unknown Speaker: What color is it?
Mr. Barmeyer: They are all beige.
Unknown Speaker: They are all beige.
Okay, Appendix B where?
Mr. Barmeyer: Appendix B to Georgia's exceptions and brief [inaudible].
Unknown Speaker: That's the 1855 shoreline on chart?
Mr. Barmeyer: That is correct, Your Honor.
This is a modern-day map which is shown in gray, and superimposed on the modern-day, 1983 map, is--
Unknown Speaker: Appendix which?
Mr. Barmeyer: --Appendix B.
Unknown Speaker: Is this exception to the brief of South Carolina?
Mr. Barmeyer: Exceptions and brief of the State of Georgia.
Unknown Speaker: And it's in the back?
And it's B as in boy?
Mr. Barmeyer: B as in boy, and it folds out.
Unknown Speaker: Or in baker or one of those things?
Mr. Barmeyer: Barmeyer.
Unknown Speaker: Is this it?
Mr. Barmeyer: Yes, sir.
Yes, Your Honor, that is it.
This map is a modern-day map which is shown in the lighter color gray.
Superimposed on the gray, in black, is an outline of the 1955 shoreline.
The Special Master found that the 1955 map was the earliest authoritative map of the area, and it was on the 1855 map that he drew the recommended boundary line.
On this map the Savannah River flows from upstream, which is at the left, to the Atlantic Ocean, which is on the right.
The State of South Carolina is at the top of the map.
The State of Georgia is at the bottom of the map.
The city of Savannah is on the left.
The Special Master's recommended boundary line is shown in yellow, and Georgia's exceptions are shown in red.
Unknown Speaker: I know this much already: you're in big trouble.
Mr. Barmeyer: I'm trying to be sure we're all together at the outset.
Unknown Speaker: I think we're with you.
It may take more than that.
Mr. Barmeyer: Before I go to the specific areas in dispute, I'd like to remind the Court of the controlling document here, which is the Treaty of Beaufort in 1787, which was entered into by Georgia and South Carolina.
Unknown Speaker: Is the whole... is the entire treaty anywhere in your briefs?
Mr. Barmeyer: Yes, sir.
It is Appendix A, actually Articles 1 and Articles 2 are Appendix A to Georgia's brief and exceptions.
Unknown Speaker: But that's not the entire treaty.
Is the entire treaty anywhere in the briefs?
Mr. Barmeyer: It is in evidence, Your Honor, and those exhibits have been sent to the Court.
By the treaty, the boundary between Georgia and South Carolina is the most northern branch or stream of the river, expressly reserving all islands in the river to Georgia.
This Court had occasion to consider the Treaty of Beaufort in the case of Georgia v. South Carolina in 1922, and the Court further explicated that boundary and determined that the boundary is the geographic middle of the boundary stream, irrespective of the navigation channel or thalweg of the river.
The Court reaffirmed that all islands in the Savannah River are in Georgia.
The Court also stated in 1922 that the boundary stream may be narrow and shallow and insignificant, as compared to the main body of the river, but that doesn't matter if it is the northernmost branch or stream of the river.
Now, first I would like to direct your attention to the Barnwell Island area.
It is about two miles downstream from the city of Savannah, and on this map it is directly north of the inset map, which is simply a slightly larger view of the Barnwell Island area.
The Barnwell Islands were islands of marsh in the Savannah River and were in Georgia by the terms of the Treaty of Beaufort in 1787.
By the evulsive actions of the Corps of Engineers, they became attached to the South Carolina shore.
With the continued improvement and dredging for navigation purposes, improvement of the river and the deposit of dredged material on these marshy islands, they have--
Unknown Speaker: That's a curious way of putting that, evulsive actions of the Corps of Engineers.
I didn't know they were engaged in evulsion.
Mr. Barmeyer: --Well, Your Honor, they have evulsed up and down the Savannah River.
They have blocked the boundary stream by the creation of dams which blocked off the northernmost branch or stream of the river, and that--
Unknown Speaker: And you claim that is the evulsion?
Mr. Barmeyer: --That is right, Your Honor.
And the Special Master agreed with that.
Unknown Speaker: Because it is a sudden change rather than a gradual one that comes from accretion.
Mr. Barmeyer: That is right, Your Honor.
That is correct.
Unknown Speaker: Excuse me, you don't claim the... the evulsion is just the creation of a barrier to the flow.
It's the dredging and depositing it on the shore, isn't it?
I mean, would just building a jetty out into the flow constitute evulsion?
Wouldn't that jetty simply create not evulsion but accretion further downstream?
If accretion should happen because of the jetty, that wouldn't be called evulsion, would it?
Mr. Barmeyer: That is right, Your Honor.
The distinction, we believe, between evulsion, which we had in this case, and accretion is accretion is the deposit of material by the gradual action... by the water dropping sediment.
Unknown Speaker: Even if that water has been diverted by a jetty or some action by the Corps of Engineers.
Mr. Barmeyer: That is correct.
Unknown Speaker: It would still be accretion.
Mr. Barmeyer: That is correct.
Unknown Speaker: In this case what we had was the Corps of Engineers dredging material from the river bottom and placing it blocking the... this boundary stream.
With Barnwell Island, the issue is prescription and acquiescence.
South Carolina contends that actions which are primarily transactions by and among members of one family and isolated and intermittent actions by local county officials have operated to change the boundary between Georgia and South Carolina and to put Barnwell Island in South Carolina, in the face of South Carolina's continued reiteration of the Treaty provisions that all islands are in Georgia, and in spite of actions by the United States and actions by the State of Georgia on maps and other official actions showing Barnwell Island in Georgia.
Moving downstream to the next areas in dispute, there are two areas of made land on the north shore of the Savannah River which South Carolina has excepted... where South Carolina has excepted to the Master's recommended line.
They are not labeled here, since this went with Georgia's exceptions, but there are two places.
One just to the left or upstream of Jones Island, where the boundary line crosses on to the northern bank, and then another area downstream of Jones Island, which is called Horseshoe Shoal, although, again, it is not labeled here.
Where on the map, from left to right, where is Jones Island?
Is it... oh, I see it.
It is roughly in the middle from left to right, isn't it?
Mr. Barmeyer: Roughly in the middle.
It is a triangular island.
Both upstream and downstream there are these two areas of made land.
South... the Special Master concluded that the change in the bound... in the Savannah River, was by evulsive actions by the Corps of Engineers, and as a result the boundary did not move.
South Carolina has excepted to that recommendation.
The next area I would like to direct your attention to is Oyster Bed Island, which is at the point where the yellow line and the red line diverge.
Oyster Bed Island was not in existence in 1787.
It emerged gradually and naturally from the bed of the Savannah River in the late 19th century.
It is now attached to South Carolina by more dumping of dredged material by the Corps of Engineers.
The Special... Georgia contends that it is in Georgia, either because all islands are in Georgia, even if they formed after the Treaty of Beaufort, so long as they formed naturally, or, in the alternative, that Oyster Bed Island must be in Georgia because it is south of the geographic middle between the islands that were in existence in 1787, which is Cockspur Island, Georgia, just to the south, and Turtle Island, Georgia... Turtle Island, South Carolina.
The Special Master was following a geographic middle in this... his yellow line, until he got to the point at the southern tip of Turtle Island, when he, rather inexplicably we contend, jumped from a geographic middle boundary to delineation of a boundary in the navigation stream... navigation channel of the river.
Unknown Speaker: Did he give any explanation at all for his change?
Mr. Barmeyer: His conclusion was that the decision in 1922 that the thalweg did not apply, he concluded that that did not control in the mouth of the river area.
And he concluded that the framers must have had the navigation channel in mind when they drew the treaty.
Unknown Speaker: Well, if Oyster Bed Island hadn't come into being, this line probably wouldn't have jigged the way it did.
Mr. Barmeyer: I think that is correct, Your Honor.
Unknown Speaker: Well, but he had to choose which side of the island to go on, didn't he?
Mr. Barmeyer: That is right.
Unknown Speaker: And which side to... he did go halfway between Oyster Bed Island and some other place, didn't he?
Mr. Barmeyer: Between Oyster Bed Island and Cockspur Island?
Unknown Speaker: Yeah.
Mr. Barmeyer: Roughly, he did, Your Honor.
Unknown Speaker: Well, why shouldn't he do that rather than go on the north side of Oyster... Oyster Bed Island?
Mr. Barmeyer: Well, his, his conclusion was that the geography in 1855 was what was controlling.
And using that theory and using his theory that he was going to follow the 1922 decision so long as there were islands in the river, I think he necessarily should have continued that geographic middle, at least until he passed Cockspur Island, Georgia, which everybody concedes is an island in the Savannah River and in Georgia.
If he had only continued that a little bit further to the eastern end of Cockspur Island then, although we would have disagreed with it, he could then have made a dog leg to the navigation channel of the river, and Oyster Bed Island would have been in Georgia rather than in South Carolina.
Unknown Speaker: Ms. Barmeyer, is it... is it true that he would have, would not have done this if Oyster Island didn't exist?
I am under the impression he would have done it anyway.
I thought that he was regarding the shoal that is north of Oyster Bed Island as the substitute for a headland in defining the mouth of the river, and that the reason he went into the navigation channel at that point is simply effectively he was saying that is where the river ends.
Mr. Barmeyer: That's further east, Your Honor--
Unknown Speaker: And he would have done that whether the island was there or not.
Mr. Barmeyer: --In that area, that's the mouth of the river.
But that's further east.
If I could get you to follow his line a little further east, you see Tybee Island, Georgia.
He found that the mouth of the river was just north of Tybee Island, and he referred to a large prominent shoal opposite Tybee Island, and did, I believe, more or less substitute that shoal for headland.
But that decision really had nothing to do with the Oyster Bed Island area.
Georgia contends that he should have stayed in the geographic middle throughout the boundary waters, that he should have determined the line based on the nearest point in Georgia and the nearest point in South Carolina until he reached the seaward limit of the internal waters of Georgia.
Unknown Speaker: And what is that limit, in your view?
Mr. Barmeyer: I would direct your attention, Justice Stevens, to this oblique line that goes from Hilton Head Island--
Unknown Speaker: I know, you think the mouth of the river is Hilton Head at the north and Tybee Island at the south.
Mr. Barmeyer: --That is right.
That is certainly the closest point in... South Carolina and the closest point in Georgia.
Unknown Speaker: Do the parties agree that the Tybee Island is... is the point from which you measure the southern boundary of the mouth of the river?
Mr. Barmeyer: The parties are in agreement on that.
Unknown Speaker: They are in agreement on that?
Mr. Barmeyer: Yes, sir.
Unknown Speaker: So you either have to draw a rather horizontal line or else go up to Hilton Head.
Mr. Barmeyer: That's correct, Your Honor.
All the record and evidence of the 18th century perception was that the framers understood the mouth to be at Tybee rather than in this Oyster Bed Island area.
Unknown Speaker: And your position is the mouth is the entire area between Hilton Head and Tybee?
Mr. Barmeyer: That is right.
Even if the entire area is not technically the mouth, it is our position that the 1922 case said you don't look at the thalweg, you don't look at the navigation channel, you find the geographic middle between the island shore in Georgia and the closest point in South Carolina, and that you can draw a very simple... simply plotted geographical mathematical line by using those closest points.
And in this case it would be Turtle Island, South Carolina, Daufuskie Island, South Carolina and Hilton Head Island.
Unknown Speaker: The river has a very big mouth.
Mr. Barmeyer: It has a very--
Unknown Speaker: Everything inside of that is inland waters?
Mr. Barmeyer: --Everything inside of that, this oblique line, is the closing line drawn by the United States.
On the left we have internal waters, and to the right we have the territorial sea.
Unknown Speaker: Is there any historical evidence that Hilton Head was considered a headland for this purpose?
Mr. Barmeyer: Yes, yes, Your Honor, there are two key references here.
One is by General Oglethorpe, who was the founder of the colony of Georgia, who referred to Hilton Head as being at the mouth of the Savannah River.
And a subsequent key reference is from the United States coast survey which, in describing the mouth of the Savannah River, referred to Hilton head Island.
Unknown Speaker: Everybody ignores the New River and the Wright River?
Do they have a mouth, or do they just go into the Savannah?
Mr. Barmeyer: Well, Your Honor, they are tidal rivers.
We call them rivers, but they really are arms of the sea.
This is a... is an estuary where the fresh waters meet the ocean, and this is an entire area of mixing.
But given the fact that everybody agreed that Tybee Island was the mouth of the river on the south, both Tybee Island and Hilton Head Island are really barrier islands that form the boundary between the ocean and the estuary.
And Hilton Head Island is as much an island at the mouth of the Savannah River as Tybee Island is, we submit.
Unknown Speaker: What about Calibogue Sound?
Is that a sound up there, Calibogue Sound?
Is that what it is?
Mr. Barmeyer: It is--
Unknown Speaker: That's also in the mouth of the river?
Mr. Barmeyer: --It's an arm of the sea.
It is a place where these waters enter and flow out, and it flows around Tybee Island.
Unknown Speaker: Well, whatever, it's an awfully big mouth of the river if it embraces the... the entrance to a sound and the entrance to two other rivers, whether they're tidal or not.
Mr. Barmeyer: Well, it is.
Its shape is... gives a little pause because it is elongated.
In the territorial sea, the Special Master, just to go through the exceptions, the Special Master has... recommended a boundary which is basically an equidistant line with some minor modifications.
South Carolina has excepted to the Master's line in the territorial sea, contending that it cuts off South Carolina's coastal front.
Georgia believes that the recommended boundary in the territorial sea is imminently correct, if the Special Master has used the correct starting point.
If the starting point is incorrect, then Georgia would submit that the line should be redrawn using the same principles of law.
I would like to focus first on the Barnwell Island area, which all parties agree is the most important and valuable area in dispute.
And there the question is prescription and acquiescence.
This Court, in many cases, has invoked the doctrine of prescription and acquiescence as an aid in determining the correct location of a boundary which is otherwise uncertain.
In such cases the Court has looked for proof of continuous undisturbed exercise of sovereignty for a period which is long enough to lead to a general, indeed a virtually universal conviction as to the boundary location.
It's Georgia's position that South Carolina's claim of prescription and acquiescence is refuted by the actions of South Carolina, the actions of the United States and the actions by the State of Georgia.
Turning first to the actions by South Carolina, we have South Carolina's solemn agreement by the Treaty of Beaufort that all islands are in Georgia.
And South Carolina continued to reaffirm that absolute, unequivocal language of the Treaty of Beaufort: all islands are in Georgia.
There were discussions between the two states in the 19th century about where exactly the line was.
Was it on the South Carolina bank, was it on the island bank?
Discussions about fishing rights, navigation rights, taxation of structures and so forth.
And in all those discussions, correspondence between the governors and the attorneys general, cases in this Court, there was never so much as a whisper from South Carolina that there is any exception to the blanket reservation of all islands in the Savannah River to the State of Georgia.
Unknown Speaker: Yes, but that is just a condition that was prior to the prescription, isn't it?
Mr. Barmeyer: Well, but that, that was... South Carolina--
Unknown Speaker: I mean, you start with that these islands did belong to Georgia originally, but then by prescription they became the property or sovereign property of South Carolina.
Mr. Barmeyer: --That is right.
But every time Georgia and South Carolina met to debate the boundary, South Carolina says to Georgia all islands are in Georgia.
You don't need to worry about it.
At the same time, they are now saying well, but we were prescribing on this tract of land, Barnwell Island, but we never really told you about it and we never had a formulation of the treaty that would encompass those islands.
In most of the cases by the court we are dealing with some construction of a boundary document which is a rational basis, a reasonable basis for the exercise of prescription or the exercise of possession and jurisdiction.
Here we think South Carolina's continued statements refutes the claim of prescription and acquiescence.
Indeed its statements, its pleadings to this Court in 1922, and the 1922 case was dealing with an island which was only 35 or 40 feet from the South Carolina shore, and South Carolina never took the position in that case that islands close to the South Carolina shore are in South Carolina.
Unknown Speaker: That was considerably upstream, wasn't it?
The 1922 case?
Mr. Barmeyer: Yes, Your Honor, it was.
It was not in this particular area.
One key fact is that Barnwell Island continued to be islands, and perceptible as islands in the river, until well in the 20th century, as shown by Appendix D to our brief, which is an aerial photograph in 1931.
The actions by the United States we believe are critical, because the United States continuously understood and published maps showing Barnwell Island in Georgia.
For these maps I would note that we have a chronology, which is Appendix J to our rebuttal brief, where some of these key facts and key publications are set forth.
But I will outline some of them briefly.
In 1866 the United States performed a survey on Barnwell Island, and labeled that survey as Barnwell Island, Georgia.
There are no maps in the 19th century with boundary line--
Unknown Speaker: Ms. Barmeyer, do you say that prescription can't occur if the United States has published a map showing something is in Georgia rather than in South Carolina?
Mr. Barmeyer: --No, Your Honor, not just one map.
But what the cases look for is a general conviction.
Prescription and acquiescence is used to ratify what is already well understood.
And in this case we think the continued publication of maps showing Barnwell... by the United States and indeed by Georgia, showing Barnwell Island in Georgia, is sufficient to refute South Carolina's contention that there was a general conviction that Barnwell Island was in South Carolina.
Unknown Speaker: Well, what is your strongest case, the strongest case for your position on prescription, do you think?
Mr. Barmeyer: There is really no case just like this, Your Honor.
There is no case where a state is being divested of an area of land that is currently in its possession, as Barnwell Island is currently in the jurisdiction of the State of Georgia.
The closest case is Arkansas v. Tennessee.
It is really the only case we found where there is an island... this is Arkansas v. Tennessee in 1940, where there was an island in the river which was clearly in Arkansas by the boundary document, but prior to the admission of Arkansas into the Union, it became affixed to the Tennessee shore.
And from then on there was a universal treatment of that land as being in Tennessee.
Generations of people grew up on that island; they were educated in schools on the island, operated by Tennessee.
They voted in Tennessee elections; they were married by justices of the peace in Tennessee.
So there really was a course of conduct, universal treatment of the land as being in Tennessee, without any objection by the State of Arkansas.
Of course in this case, Georgia did not acquiesce.
Georgia went into court in 1953, the first time that Georgia was aware that anybody was claiming that the land was in South Carolina.
Georgia went into court and intervened, claiming Georgia dominion, sovereignty and title over Barnwell Island.
The case was thrown out by the district judge for lack of jurisdiction.
The case was appealed by the United States and by Georgia to the Fifth Circuit, and the Fifth Circuit ruled there is, there can be no doubt that Barnwell Island is in Georgia.
We certainly think that goes also to refute a general conviction that Barnwell Island is in South Carolina.
Back to the maps of the United States, in 1911, 1920, 1932, 1957, 1959, 1970, 1971, 1974, these are official published maps, circulated maps by the agencies of the United States, without ever any protest by the State of South Carolina that the map... they contended the boundary was incorrect.
Unknown Speaker: Would you refresh my recollection?
The facts in this are awfully hard to keep in mind.
Am I correct in recalling that as far as the records of title ownership and the like, that they were all kept in South Carolina, and that Georgia had no deeds recorded in Georgia, and the taxes were paid in South Carolina?
Mr. Barmeyer: That is correct, Your Honor.
Those deeds and those transactions--
Unknown Speaker: So if a lawyer wanted to go buy the property and register it, he probably would have gone into the South Carolina jurisdiction rather than Georgia.
Mr. Barmeyer: --If that... if anybody had wanted to buy it.
In fact, what we have is transactions--
Unknown Speaker: Well, apparently somebody does now.
I guess somebody wants to buy it now.
Mr. Barmeyer: --Yes, sir, it has more value now than it did then.
But the transactions which are of record are only among members of one family, and in fact there are really only a handful of deeds--
Unknown Speaker: But they thought they lived in South Carolina.
They thought they lived in South Carolina.
Mr. Barmeyer: --That family clearly thought the islands were in South Carolina.
They never resided on the islands.
They farmed them for a brief period in the 19th century as part of a rice plantation that they had on the mainland.
So there were never any residents on the island.
But it is clear that family... but we contend it was very limited to that family in terms of a perception that the islands were in South Carolina.
Unknown Speaker: But they were apparently the only people who were interested.
Mr. Barmeyer: Well, that's right.
They couldn't find a buyer for the land.
They finally abandoned it and then it was seized for non-payment of taxes by the sheriff.
There really wasn't much that ever happened on these islands, and we think again that distinguishes this case from Arkansas v. Tennessee in 1940 and the other cases where the court has used prescription and acquiescence to change the jurisdictional location of a tract of land.
Unknown Speaker: It was seized by the South Carolina sheriff?
Mr. Barmeyer: That's right, Your Honor.
Unknown Speaker: If we rule in your favor, is it still owned by South Carolina?
Mr. Barmeyer: Well, if you rule in our favor I think it is clear that it is owned by the State of Georgia, if it's... although those questions would be decided by the courts in the respective states, whichever state is to prevail.
The South Carolina claim fails, we contend, on both points, both on prescription, because the acts that were shown to have been performed regarding Barnwell Island are so sparse and generally not of record, generally not of widespread notice or notoriety, and because there hasn't been acquiescence by the State of Georgia as indicated both by Georgia maps and by the maps by the United States.
I would like to save the remainder of my time for rebuttal, if I may.
Unknown Speaker: Very well, Ms. Barmeyer.
Argument of Thomas E. McCutchen, Jr.
Mr. McCutchen: Mr. Chief Justice, and may it please the Court:
While several questions are here before the Court, the major issue, the major financial issue is the Barnwell Island islands.
And South Carolina seeks the approval of the Master on that issue.
By interrogatory number 3, Georgia admitted that it asserted no jurisdiction or sovereignty over the Barnwell Islands between 1760 and 1956, 196 years.
And by interrogatory number 55, Georgia admits that there was no dispute, public or private, regarding the territorial jurisdiction of Barnwell Island between 1787 and 1955, 168 years.
South Carolina exercised the unquestioned jurisdiction during that period.
Georgia's only exercise of sovereignty over the Barnwell Islands in any way between 1732 and 1955 was a 1760 grant which was abandoned and a possible property taxation in 1825, 1830 and 1831.
The Special Master found that this 1760 grant or his estate effectively abandoned this property within several years.
The grant actually was never recorded.
There is no recorded grant in Georgia of the Barnwell Islands at any time.
Unknown Speaker: Mr. McCutchen, suppose I owned a piece of private land out in the country somewhere, and I had never even camped out on it in 50 years, and you... you had gone under dark of night and camped there a couple of nights, but I never knew about it.
Would you be making the same argument, that, you know, Scalia has never been on that land for 50 years, and I have been there frequently.
Mr. McCutchen: No, Your Honor--
Unknown Speaker: Doesn't there have to be a notoriety?
Isn't the whole point that I have to have knowledge that you are on my land and you are asserting juris... you are asserting ownership of my land?
Mr. McCutchen: --Your Honor, there is no trouble there, because the owners were Savannah people living in Savannah, who owned the land and went to South Carolina to obtain the grant.
They put rice plantations on there for a period of over three decades.
This property is only 500 or 600 yards across the river from Fort Jackson.
It's easily seen from Hutchinson Island.
It is seen and admitted by Georgia, from the city of Georgia itself.
The documents which were being recorded for over 100 years were by people who own lands and property in South Carolina and in Georgia, and they recorded these documents in Georgia.
There were mortgages involved.
They had Georgia factors paying the taxes to South Carolina.
So the notoriety of this is totally consistent for all this period of time.
Unknown Speaker: Well, do you... do you say it is enough to bring home the claim of the occupation to Georgia citizens, or does it have to be brought home in some way to the government of Georgia?
Mr. McCutchen: Well, it was brought home to everybody who was around, including the aldermen, to the city council.
It was perceived... we say the islands were perceived as being in the State of South Carolina.
The grant which Georgia attempted in 1760, 17 years before the treaty, Georgia never did it again because of the perceptions that followed certainly after that treaty.
And it was only a few years after 1787 that South Carolina granted this property the first time to Hezekiah Roberts, in 1795, a grant which expired because it wasn't recorded.
But in 1813 South Carolina granted it again to Archibald Smith.
He was in Savannah, a native of Savannah, a very prominent farmer, and he perceived that he had to go to South Carolina to get the grant of the Barnwells.
And so from that time forward it has been perceived as being in South Carolina.
We have quoted 20 different observations of the people and the time, historically, as where they saw that these properties were.
Of course, at this long period of time we don't have the live bodies, so we have to go back to the times and how they were perceived.
Unknown Speaker: And you think the Special Master was absolutely correct?
Mr. McCutchen: Absolutely correct.
Unknown Speaker: In all phases.
You don't... you are supporting his report entirely with respect to Barnwell?
Mr. McCutchen: With respect to Barnwell, we are supporting it.
Now, Georgia, as I said, after 18... 1787, never made any act of attempt of a granting.
No one has ever gone to Georgia to try to perfect any grant.
Nobody has gone back to Georgia and asked for another grant.
And when the South Carolina granted the islands to Archibald Smith in 1813, it granted three islands, described as islands, as marsh islands.
Incidentally, when the first grant occurred by Georgia in 1760, it was only described as two marsh islands, and there were only two in existence.
The tax books in Georgia perhaps show payment of taxes in 1825, 1830 and 1831.
And described in that is land marsh, land marsh and three marsh islands.
May or may not have been these islands.
But the grant by which it would had to have been if it were at all was the 1813 grant, of course, of the Barnwells from South Carolina.
Had Georgia even brought this suit in 1900, the claims of the Barnwells would have been foreclosed by acquiescence and prescription.
And further, South Carolina in this century sold these Barnwell Islands for non-payment of taxes in the 1930s.
And the commission in South Carolina which acquired them then subsequently conveyed them.
And the chain of title is consistent from 1813 down till this very day in South Carolina.
And there is no chain of title in Georgia.
And Georgia's argument that no one could have seen them in exercising this sovereignty cannot be true because of the unobstructed view of 500 or 600 yards away and because of the intense interest of people in rice plantations and in farming.
The Barnwells were used for rice plantations and planting for decades.
And these dike fields and all are shown, easily are visible, cannot be ignored.
Rice lands were extremely valuable, nothing more valuable in that area.
They were as prominent and valuable as a 10-story building would be today.
No one thought that the Barnwells were ungranted.
No one appeared in Georgia and said give me a grant, and no one in Georgia said we have got untaxed land out there, the Barnwells.
No one applied for taxation.
The Barnwells were located at the intersection of the superhighway of that day in Georgia, the Savannah River and the land, the road which carried from Savannah to Charleston, the most prominent city in South Carolina.
This is not a remote, hidden area.
It was opposite the city of Savannah and--
Unknown Speaker: There was a bridge over the river at this point?
Mr. McCutchen: --Pardon me, Your Honor?
Unknown Speaker: There was a bridge over the river at this point?
Mr. McCutchen: No, sir, but the ferry that came from Savannah lands right by the Barnwell Islands.
It is a ferry road and so designated back at that time.
And that was the route to Charleston.
So from Savannah you went right by the Barnwells, and of course any boat going from Savannah had to go by the Barnwells to get on out to the sea.
So over and over the Smiths and the Barnwells were according, in Chatham County, Georgia, their property, because they own it in both states.
It was Ped and Archibald Smith's estate when he died in Savannah.
He was not a stranger.
And, of course, later on there were acknowledgements of the division of the lands among the children in the 1860s, even a mortgage in the 1890s between them.
And a prominent Savannah merchant was a factor who was paying the taxes to South Carolina for the Barnwells.
Unknown Speaker: What about the Fifth Circuit case in 1955?
Mr. McCutchen: South Carolina was not a party to that case, and there is nothing in the record to show that South Carolina knew anything about that until that case was decided.
And, of course, the Fifth Circuit has no jurisdiction on boundary matters.
South Carolina was not served in that case.
But in 18... in 1955--
Unknown Speaker: Would Georgia's actions in that case be a prescriptive act of its own?
Mr. McCutchen: --Well, even if it were considered that way, that is 1955.
First, South Carolina filed in this Court a petition to decide the boundary in '55; Georgia opposed it.
It was refused.
South Carolina filed again in 1957.
Georgia opposed it.
It was refused.
This case we are here for today started 12 years ago.
So you have got a period of only 20 years at most in which Georgia could have done, or whatever it has done to reacquire what it had lost.
And I say to you it cannot obliterate the past of almost 175 years or more.
Unknown Speaker: Mr. McCutchen, why did it take so long for this case to get here?
Mr. McCutchen: Well, Your Honor, we bifurcated the trial, and the case did start in 1977, and filed the reports, and, Your Honor, I could not go beyond that in saying that it has been a lengthy matter.
The record is full of perceptions of individuals that these islards were in South Carolina.
In the 20th century South Carolina has continued to exercise jurisdiction by law enforcement, by South Carolina wildlife personnel patrolling the Barnwell Islands, by issuing shad fishing licenses for nets on the Barnwells.
And Georgia really has no explanation or excuse for her prolonged inactivity.
Georgia has now abandoned Rabbit Island.
All of the Barnwell Islands were right next to the shore.
Rabbit was one of them; it is in a line there.
Whatever reasons have existed for Georgia to abandon its claim to Rabbit Island, vigorously contested in the trial below.
Unknown Speaker: Is Rabbit the one right next to the two described as Barnwell Islands?
Mr. McCutchen: Yes, Your Honor.
It is the one farthest upstream.
And whatever its reasons to have abandoned Rabbit appear totally inconsistent with its efforts today to assert its claim as to the other islands.
You see, Rabbit was one of the two that was in the Tannant grant in 1760, the only time Georgia exercised any dominion.
The other islands, other than the one next to it, did not even exist then.
There's more evidence of inhabitation and cultivation on Hog Island, which Georgia still claims, than on Rabbit Island.
Georgia did nothing different as to Hog Island or Long Island than it is to Rabbit Island, which is abandoned.
And Georgia says in its brief on page 13, note 6, that Rabbit Island is in South Carolina.
But it says it's not there because of accretion.
It is only there, apparently, there is no other reason given, by virtue of prescription and acquiescence.
And the Master said that only Rabbit and Hog existed in 1787.
And after the Master's report Georgia abandons one of the only two which existed at treaty time.
If you refer to Appendix E to the exceptions and brief of Georgia and its rebuttal index also prepared by Georgia, you will see the clear and continuous chain of South Carolina's claim to the Barnwell Islands, notwithstanding the efforts of Georgia to list, for instance, 60 years of paying taxes in South Carolina as a one-line entry, and Georgia wants to list these three years in 1825, '30 and '31 as three entries to bolster an attempt to finite some exercise over the islands.
If you refer to pages 39 to 66 of the first report of the Master, every phase of the Barnwells is covered by him, from perception and historical and title and so forth.
Now, in this 1955 circuit case which Georgia seeks to claim gives it some rights, the Special Master object... rejected that, saying it was neither collateral estoppel, and it was not res judicata.
And he found that record very sparse, which it was.
There is no evidence, as I said, that South Carolina knew about that until the litigation was over.
It was not a party, not served.
And Durfee v. Duke certainly clearly teaches us that the Fifth Circuit couldn't bind South Carolina or Georgia to the location of a boundary between them.
Unknown Speaker: xxx.
Mr. McCutchen: There is not even one title deed--
Unknown Speaker: Mr. McCutchen, certainly if prescription had not occurred by the time that that suit was brought, that would have been an act of Georgia at any rate that would have refuted its acquiescence.
Mr. McCutchen: --Except that Georgia was not even in the case in the beginning and petitioned in it after certain preliminary motions had been brought.
And Georgia in its brief before the Fifth Circuit said to the Fifth Circuit, the boundary between South Carolina and Georgia is not involved in this case.
And Georgia made that representation in its brief to the Fifth Circuit, and the Fifth Circuit in its decision says the boundary between South Carolina and Georgia is not involved in this case.
And we think South Carolina can stand on that, should stand on it just as the Fifth Circuit accepted it.
Georgia now seeks to fault South Carolina for participating and saying we lost rights.
But it would be unconscionable for the... Georgia to have gone to the Fifth Circuit and made that active representation, saying there is no boundary involved at all and now seek to have South Carolina precluded in some way by virtue of that decision.
And again, Georgia opposed our efforts to file a case in this Court in '55 and '57 to determine the boundary.
After the 1880s, the next 75 years, South Carolina continued its taxing and sovereignty, and Georgia did nothing during this prolonged period.
The record before this Court is the 1787 treaty, and what has happened since.
It is the first and only record of the 200 years of acquiescence, of notice, of records, of the exercise of jurisdiction and sovereignty, of law enforcement, of grants by South Carolina, of continuity of title, of taxes paid to South Carolina, and of Georgia's total unerupted acquiescence and abandonment for well over 100 years.
This is South Carolina's first day in court on that boundary.
I would like to turn to Denwill and Horseshoe Shoal.
The Corps of Engineers has been working since 1840 to keep the port of Georgia open, deeper, more accessible.
Unknown Speaker: The port of Savannah?
Mr. McCutchen: Pardon me?
Unknown Speaker: You said the port of Georgia.
You mean the port of Savannah?
Mr. McCutchen: Excuse me, the Corps of Engineers to keep the port of Georgia open.
And there has never been a South Carolina port there.
Unknown Speaker: Where is the port of Georgia?
Mr. McCutchen: Savannah, Georgia.
Savannah, Georgia, the port.
Excuse me, Your Honor.
So, all the dredging and all the erection of wing dams and the blocking of channels and the diversion of streams and the side dams and the training walls have been solely for the city of Savannah and its port in Georgia.
And Georgia now seeks to obtain not only the benefit of this scouring and diversion and deviation of water in blocking the channels, but it wants to say that deposits now, which have come up on the South Carolina side on Denwill, is Georgia land.
Denwill has always been fast land in South Carolina on the northern shore.
Due to the training walls and silting and damming and deposits, an area which was underwater as a part of the Savannah River immediately adjacent to the South Carolina bank, has now become fast land, totally attached to the South Carolina fast land.
And the Master did recommend that this area, over a mile long, belonged to Georgia.
Now, Georgia does not deny that this new land resulted in part from natural sedimentation, reply brief of Georgia 5 and 7.
But here, because of these manmade devices in part, the contention is that a different result obtains.
If this be corrective course on this type of system, you could take 15 miles from that city on down to the ocean and block South Carolina off from every bit of its land.
South Carolina did not place this fill or construct these training walls, so it is not involved in this act.
It was not an evulsive change as we see it.
It occurred over a period of probably 40 years.
Unknown Speaker: Under the act, is there anyway South Carolina could have prevented the Corps of Engineer from dumping the sediment there?
Mr. McCutchen: Your Honor, I guess some relief may have been able to be sought.
Of course, I understand today the Secretary of Commerce may... have the determination of whether the Corps can do something or not, but no action was brought during this period.
Unknown Speaker: I mean, I... I just don't know how that works.
The Corps of Engineer can just dump the stuff anywhere it wants up and down the river?
Just say here's a good spot, and--
Mr. McCutchen: Well, or the city of Savannah suggested it need... keep its scouring, and certainly South Carolina during this period did not attempt to stop the Corps of Engineers in its... whatever authority it has with regard to navigability.
Whether the fill started at the South Carolina mainland and moved into the river, or whether it started in the river and moved to the mainland, it doesn't make any difference, because it is now fast land.
The strip on Denwill and the strip on Bird Island, which we show on page 6 of our exceptions and brief as an illustration in our exception, is the same sort of basis.
We excepted the Master's report as to Denwill, and we excepted that it is fated to give South Carolina Bird Island, because Bird Island, many, many times larger than it was in 1787, now has accretions also due to these wing dams.
Same argument is made with both.
I want to say to Your Honors it ought to be rejected as to both, because the accretions to Bird ought to be Georgia, and the accretions to Denwill ought to be South Carolina.
We did this because of the inconsistency in the report.
Now, South Carolina has asserted that islands which formed on the South Carolina side of the river after 1787 belonged to South Carolina.
That involves a little unnamed island upstream of Pennyworth, and unnamed island just south of Pennyworth known as Tide Gate, Oyster Bed Island and of course all the Barnwells except the first two.
There was perhaps a shoal as to the... as to Oyster Bed in 1787, but nothing more.
The Masters found that it emerged in the 1880s or '90s.
Now, if islands emerging after 1787 were included in the treaty, then there would have been no boundary set at that time at all, and the language doesn't say after emerging islands, it says in, which is at present.
So it would have taken a boundary loop to even gone up and gotten the Oyster Bed shoal in 1787.
Unknown Speaker: --Suppose a line... suppose an island pops up right in the middle of the... what is the Latin phrase, the filum?
You had a lot of good Latin in the briefs there, what was it?
It is right in the middle--
Mr. McCutchen: xxx.
Unknown Speaker: --where the boundary line is placed in the northernmost stream, up comes an island right in the middle, and the boundary goes right in the middle of the island.
What would be the situation there?
South Carolina would own half and Georgia would own half?
Mr. McCutchen: That's a possibility.
And I am not saying that Georgia may not, if it went in the center, have even some greater right of interpretation there.
Unknown Speaker: Well, now, but... do you know any other interstate boundary that works like that, where an island in the middle of the river is--
Mr. McCutchen: This is unusual language.
It said islands in the stream.
We think that the Georgia people went there with the idea they had conveyed and granted the islands.
They knew what they had in 1787 and what they had granted, and they wanted to be sure they retained it.
But the Masters found that Oyster Bed Island didn't crop up in the middle of the stream.
It cropped up on the northern side of what the boundary line, as he was in 1787, and so we contend that it is now in South Carolina.
It is in fact a national wildlife preserve.
Unknown Speaker: --I am not asserting it was in the middle of the stream.
I am just asserting that the principle you are arguing for has some rather embarrassing and silly consequences.
Mr. McCutchen: Well, the language that was drawn of course did an unusual thing in reserving islands without further enlargement of the language.
South Carolina excepts to the lateral seaward boundary as drawn by the Special Master.
Unknown Speaker: I take it that both sides object to that, don't they?
Mr. McCutchen: Yes, sir.
Unknown Speaker: Go ahead.
Mr. McCutchen: The boundary recommended by the Special Master extends entirely into waters which lie opposite the coast of South Carolina.
No part of the recommended boundary is opposite--
Unknown Speaker: xxx perpendicular to the closing line, didn't he?
Mr. McCutchen: --Yes, sir, he did.
He did not use an equidistant line.
He started out as if it is an equidistant line, and he--
Unknown Speaker: Well, where did he... where did he start that line from?
Did he, was that halfway on the... halfway between Hilton Head and the--
Mr. McCutchen: --Well, It's shown on the same exhibit in which the former... he just moved up that line--
Unknown Speaker: --How far?
Mr. McCutchen: --and then went out.
Unknown Speaker: Well, how far... where did he start it, though?
Where did he start the line?
What was his principle?
The line extending seaward--
Mr. McCutchen: Well, he took the mouth and then he moved up, and he decided... he started it, a line that South Carolina had drawn as an equidistant line--
Unknown Speaker: --Between what?
Mr. McCutchen: --Between Georgia... the bound... the land... land formations of Georgia and South Carolina.
And he started out on an equidistant line, but as shown in our detailed map, the line of equidistance would have then bent southward, but the Master did not have it bend southward.
Unknown Speaker: Are you talking about the basically north sound... south line that connects Tybee Island to Hilton Head Island?
Mr. McCutchen: No, sir.
I am talking about the--
Unknown Speaker: The east-west--
Mr. McCutchen: --Exhibit B, Exhibit B, which is in the second and final report of the Special Master.
Exhibit B of the Master shows a series of lines.
And the Master started out with line number 5.
Unknown Speaker: --And what was his explanation for starting there, or did he give any?
Mr. McCutchen: Well, he just said under all conditions it was at the mouth and that is where he would start.
But he started on an equidistant line, as drawn by 5, and the Master didn't draw his line on any map after that.
He just said you take number 5 as if is perpendicular and you'd move on out to sea.
Unknown Speaker: On that perpendicular line.
Mr. McCutchen: On that perpendicular line.
Unknown Speaker: Regardless of whether it is equidistant between the coasts.
Mr. McCutchen: And it is not equidistant, because line number 5, the beginning of it dips down.
Unknown Speaker: Well, what does your opponent insist?
Mr. McCutchen: --Well, the opponent wanted to slide on up the line towards Tybee for three miles and then start.
Unknown Speaker: Naturally.
Mr. McCutchen: And the Master didn't pay any attention to that.
Unknown Speaker: Well, what is your theory that it should... where should it start?
Where should that line start?
Mr. McCutchen: We think... our theory, Your Honor, is that the coast of Georgia is at 20 degrees.
The coast of South Carolina is at 47 degrees.
The coastal fronts, if you overlap them, going out you have the area in... we see in dispute.
And so we are saying that if you divide that between those coastal fronts you would have an area of 123.5 degrees.
And that is where we see as the area of dispute for the overlapping nature of the coastal fronts.
Unknown Speaker: And what is involved?
Jurisdiction over those waters?
Mr. McCutchen: Yes, sir.
Unknown Speaker: This is in... this is within the three mile--
Mr. McCutchen: Yes, sir, but we do not know what significance this line will have in the future days as to the 200-mile outrun.
And of course every degree that it goes up is going to make that the difference.
Unknown Speaker: --Well, is that area that is in dispute of commercial value now?
Mr. McCutchen: --For shrimping.
Unknown Speaker: Fishing?
Mr. McCutchen: Shrimping.
Heavy shrimping area.
And that is one of the reasons this suit apparently started.
Unknown Speaker: And the interest is in which state can regulate it?
Mr. McCutchen: Regulate it.
Control whatever is underneath.
There has been some oil exploration.
Unknown Speaker: Tax it?
Mr. McCutchen: If granted.
If owned by any individuals.
The line of the Master is six degrees farther north than even the most favorable line which is perpendicular to the Georgia coast.
Unknown Speaker: Well, who could... which... I suppose some state can tax the income from that shrimping?
Mr. McCutchen: Yes, sir.
And there are licensed shrimpers in South Carolina and licensed shrimpers in Georgia.
And by that, of course, that is what happened.
Georgia arrested the South Carolina shrimper to precipitate this suit.
And that is a very valuable enterprise in that area.
Unknown Speaker: Mr. McCutchen, looking at Appendix B on, in Georgia's brief, I... how did the... and you support the Master's... the Master's decision to jog the line south just before Oyster Bed Island.
Mr. McCutchen: Yes, sir.
Unknown Speaker: I don't understand what the basis for that angle was.
Mr. McCutchen: He took that position--
Unknown Speaker: You see where the yellow line goes south and where Georgia would prefer the red line... yes the red line.
Mr. McCutchen: --The Master simply said that the area that he had north of that was north of the boundaries that existed in 1787, and there was slight water going in that area.
And so he put that line as being where it was.
These maps, the accretions that have all have occurred since 1787 are very substantial in some of these matters.
But the Master said that Oyster Bed was on the northern side of the stream, as it was in 1787.
Unknown Speaker: He thought that was dry land up there, that that line represented the mid point between dry land on both sides in 1787?
Mr. McCutchen: He said that's the way he would have fixed it, the boundary, as of that time, based on the best evidence that he had before him as of that time.
Unknown Speaker: As I recall, it didn't have to do with dry land.
It had to do with his thinking that the, that the navigation channel was south of there, and that--
Mr. McCutchen: Well, he said the northern stream.
Unknown Speaker: --it was so close to the mouth at this point that we will just follow the navigation channel.
Mr. McCutchen: That's true.
The boundary was the northern stream.
But he said Oyster Bed Island was north of the northern stream as it existed in 1787.
And our position, of course, on the lateral seaward boundary is that it should start at the historical mouth, and the mouth--
Unknown Speaker: The mouth... the mouth is different from that closing line between Hilton Head and Tybee, isn't it?
Mr. McCutchen: --Yes, sir.
The mouth is really between Tybee and what you might see as a shoal just north of that, and it has been historically understood for over 250 years and has been treated by all of the observers through the period of time.
William DeBrahm, for instance, the most informed engineer--
Unknown Speaker: The mouth is where, now?
North of Tybee?
Mr. McCutchen: --Right at Tybee.
Right where the intersect, as it goes from Tybee on, as the closing line starts north.
And all the historical reports have said the mouth is at Tybee.
Sir James Wright, the governor of Georgia in 1773, placed the mouth of the Savannah at Tybee.
Unknown Speaker: Well, Tybee is a big... what, at what place on Tybee?
Mr. McCutchen: That is the language they used, and he, Sir... Sir James Wright used actual coordinates that placed it there, as did William DeBrahm, who... the surveyor who put it--
Unknown Speaker: Well, the mouth isn't a point, is it?
Mr. McCutchen: --It's a place where the water from the river enters into the ocean.
Unknown Speaker: --I agree with you.
--South Carolina agrees that the south boundary of the mouth is at Tybee.
The question is where is the north boundary.
Mr. McCutchen: The north boundary has always been considered to be at Tybee just above where the south boundary is.
It's confined in there on the ocean floor by virtue of a channel which has been there historically, and that has been the place in which ships have entered--
Unknown Speaker: How far above where the south boundary is?
I mean, that is the only question we are talking about.
Mr. McCutchen: --Half a mile.
Unknown Speaker: On this Appendix B, can you... I... I'm not clear on that.
On Georgia's Appendix B, where, where north of Tybee is the... is the northern point of the line that constitutes the mouth?
Is it at those dotted lines?
Mr. McCutchen: That is where we place it, along in there.
Unknown Speaker: The dotted lines?
Mr. McCutchen: Yes, straight north.
Unknown Speaker: Straight north, or along that closing line?
Mr. McCutchen: Right along that closing line, anywhere right in there would be the... where it is.
Because it has always been referred to as at Tybee.
And that was the way it was perceived in that time.
The Special Master, in the boundary which he gave to the islands of Georgia, used--
Unknown Speaker: Well, he started his line just at the... just at sort of just a little north of where you say the mouth was.
You started his... the Master started his perpendicular seaward boundary just a little north of where you say the mouth was?
Mr. McCutchen: --No, sir.
He didn't start it there.
If we could, if you turn back to Appendix B in the Master's report, you would see the beginning of that line is south of where Your Honor is mentioning.
It is in about the midpoint of that mouth.
If you look at Appendix B--
Unknown Speaker: And you say that is right, where he started it?
It's just that... he just... it's just that he went off in the wrong direction.
Mr. McCutchen: --Yes, sir.
We say he started at the correct place.
Unknown Speaker: Well, then Georgia's... Georgia's Exhibit B is... Appendix B just isn't right.
Mr. McCutchen: Well, I see--
Unknown Speaker: --Thank you, Mr. McCutchen.
Ms. Barmeyer, you have four minutes remaining.
Rebuttal of Patricia T. Barmeyer
Mr. Barmeyer: Thank you, Your Honor.
Georgia agrees with the point made by the Chief Justice that South Carolina must show prescription and acquiescence as of 1953, because, of course, otherwise it would be defeated by the action taken by Georgia in intervening and pursuing the case, the condemnation case that went to the Fifth Circuit.
The question is, as of 1953, was there the cumulative notoriety that's required in the cases to change the location of Barnwell Island from Georgia to South Carolina?
Was there any notice to Georgia?
Now, Georgia asserted to the Fifth Circuit that Georgia did not know that the boundary was in dispute, because South Carolina had never made any claim to Barnwell Island that was brought home to the State of Georgia until in 1955, when South Carolina sought to file an original action in the court.
That was the first time that South Carolina appeared on the scene and said yes, we claim Barnwell Island.
As of 1955--
Unknown Speaker: But South Carolina had been on the scene all along, because that's been where the deeds were recorded and the taxes were paid, and this land was being obviously used.
Mr. Barmeyer: --Deeds were recorded and taxes were paid in South Carolina, but those are primarily passive acts by the clerk of court.
If you go to the clerk of court and you record a deed in its improper form, it is going to be recorded.
If you say I own 1,000 acres in Beaufort County, and here are my taxes, they are going to accept it.
There wasn't any affirmative exercise of South Carolina--
Unknown Speaker: I don't think so.
I don't think the clerk in Fairfax County here would accept a deed to Maryland land for filing.
Mr. Barmeyer: --If it was in--
Unknown Speaker: I don't think so at all.
Mr. Barmeyer: --If it said it was in Virginia.
If the deed on its face said it was in Virginia, I submit they would record it.
Unknown Speaker: I don't think so, but maybe... maybe the clerks aren't as quick there, but--
Mr. Barmeyer: In South Carolina they recorded it.
Unknown Speaker: --I think our Fairfax county clerks would know that--
--Did Georgia ever try to collect any taxes on either?
Mr. Barmeyer: Taxes were paid in Georgia in the early 19th century: 1825, 1830 and 1831.
Unknown Speaker: Well, when last did they try to collect them?
Mr. Barmeyer: In 1831 taxes were received and accepted.
Unknown Speaker: Well, does that have any significance to us, to this case, now?
Mr. Barmeyer: Well, I think all of these facts have significance, but what the Court does is take all of them and determine is there enough to say that there was a general--
Unknown Speaker: Well, I don't know of anything more important to a state government than taxes.
Mr. Barmeyer: --Taxes are key, but I would point out that the way these lands were reported for taxes in South Carolina was I am Charlotte Barnwell, I tell the tax collector I own 152 acres, and I pay the tax on it.
There is nothing on the tax records--
Unknown Speaker: Well, is there any place... is there any other Georgia land that pays taxes to South Carolina?
Mr. Barmeyer: --There may well be, Your Honor.
At least until the 20th century and the '60s, when the clerks were able to get these photogrammetric tax maps where you could really superimpose the property boundaries on the land, in Georgia and other states that were not granted, and South Carolina, that were granted randomly with irregular parcels, there wasn't a chart that somebody could go to to see whether or not this township, this range, whether or not the land had been granted, whether or not taxes had been paid.
I think it's key that South Carolina did not even know of the grant by South Carolina to this land.
Unknown Speaker: How do you get to the Special Master's findings of historical facts on deference?
What should be our standard?
Clearly erroneous, or do we de novo, look at all this record and make our own findings, or what?
Mr. Barmeyer: Your cases have said that the Master's findings are entitled to a tacit presumption of correctness.
But the role of the Court is to make a de novo review, an independent review of the record, and to assure itself that a correct decision has been made.
Unknown Speaker: Well, I suppose if we accepted all of his historical facts there would still be left the question of whether they add up to prescription.
Mr. Barmeyer: Yes, sir, that is correct.
Unknown Speaker: Thank you, Ms. Barmeyer.
Mr. Barmeyer: --Thank you, Your Honor.
Chief Justice Rehnquist: The case is submitted.