Tennessee v. Virginia
190 U.S. 64 (1903)

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U.S. Supreme Court

Tennessee v. Virginia, 190 U.S. 64 (1903)

Tennessee v. Virginia

No. 6

Submitted May 18, 1903

Decided June 1, 1903

190 U.S. 64

ORIGINAL. IN EQUITY

Syllabus

Report of commissioners appointed to ascertain, retrace, remark, and reestablish the real, certain and true boundary line between the States of Tennessee and Virginia from White Top Mountain to Cumberland Gap confirmed.

A compact having been entered into by the States of Tennessee and Virginia expressed in concurrent laws of said states which received the consent of Congress, this Court modifies the line delineated in the report of the commissioners as to so much thereof as is affected thereby, and that portion of the line is determined, fixed and established in accordance with such compact.

The commissioners having ascertained and recommended the straight line from the end of the "diamond-marked" compact line of 1801-1803 to the corner of the States of North Carolina and Tennessee as the true boundary line between the States of Virginia and Tennessee between those two points, this Court approves and adopts such recommendation.

The proceedings appear in the decree of the Court.

MR. CHIEF JUSTICE FULLER announced the decree of the court:

This cause came on to be heard on May 18, 1903, on the proceedings heretofore had herein, and upon the report of William C. Hodgkins, James B. Baylor, and Andrew H. Buchanan, commissioners appointed by the decretal order herein of April 30, 1900, to ascertain, retrace, remark, and reestablish the real, certain, and true boundary line between the States of Tennessee and Virginia, as actually run and located from White Top mountain to Cumberland Gap, under proceedings had between

Page 190 U. S. 65

the two states in 1801-1803, and as adjudged and decreed by this Court in its decree of April 3, 1893, in a certain original case in equity, wherein the State of Virginia was complainant and the State of Tennessee was defendant, which report is annexed hereto and made part hereof.

And it appearing to the court that said report was filed in this Court on the 5th day of January, 1903, and that the same is unexcepted to by either party in any respect, therefore, upon the motion of the State of Tennessee by her Attorney General, and of the State of Virginia by her Attorney General, it is ordered that said report be, and the same is hereby, in all things confirmed.

It is thereupon ordered, adjudged, and decreed that the real, certain, and true boundary line between the States of Tennessee and Virginia, as actually run and located under the compact and proceedings had between the two states in 1801-1803, and as adjudged by this Court on the third day of April, 1893, in said original cause in equity, wherein the State of Virginia was complainant and the State of Tennessee was defendant as aforesaid, was at the institution of this suit, and now is, except as hereinafter shown, as described and delineated in said report filed herein on January 5, 1903, as aforesaid.

And it further appearing to the Court, and it being so admitted by both parties, that, since the institution of this suit and the decretal order of April 30, 1900, as aforesaid, a compact was entered into by the States of Tennessee and Virginia, expressed in the concurrent laws of said states, namely, the Act of the General Assembly of Tennessee, approved January 28, 1901, entitled

"An Act to Cede to the Virginia a Certain Narrow Strip of Territory Belonging to the State of Tennessee Lying Between the Northern Boundary Line of the City of Bristol, in the County of Sullivan, and the Southern Boundary Line of the City of Bristol, in the County of Washington, Virginia, Being the Northern Half of Main Street, of the said Two Cities,"

and the reciprocal act of the General Assembly of Virginia, approved February 9, 1901, entitled

"An Act to Accept the Cession by the Tennessee to the Virginia, of a Certain Narrow Strip of Territory Claimed as Belonging to

Page 190 U. S. 66

the State of Tennessee, and Described as Lying Between the Northern Boundary Line of the City of Bristol, in the County of Sullivan, Tennessee, and the Southern Boundary Line of the City of Bristol, in the County of Washington, Virginia, Being the Northern Half of the Main Street of the Said Two Cities."

And it further appearing that said compact received the consent of the Congress of the United States by joint resolution approved March 3, 1901, as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That a recent compact or agreement having been made by and between the States of Tennessee and Virginia, whereby the State of Tennessee, by an act of its legislature approved January twenty-eighth, nineteen hundred and one, ceded to the State of Virginia certain territory, specifically described in said act, and being the northern half of the main street between the Cities of Bristol, Virginia, and Bristol, Tennessee, and the State of Virginia, by act of its General Assembly, approved February ninth, nineteen hundred and one, having accepted said cession of the State of Tennessee, the consent of Congress is hereby given to said contract or agreement between said states, fixing the boundary line between said states as shown by said acts referred to, and the same is hereby ratified."

"And said commissioners, in their said report, having ascertained and recommended the straight line from the end of the 'diamond-marked' or compact line of 1801-1803 to the corner of the States of North Carolina and Tennessee as the true boundary line between the States of Virginia and Tennessee between those two points, the Court, approving said recommendation and finding of said commissioners, doth adopt the same."

And the Court, being of opinion that it is proper to recognize the line so established by said last-mentioned compact of 1901 as the real, certain, and true interstate boundary line within and between said two cities, and to definitely determine and fix in this cause what is the real, true, and certain boundary line between said states throughout the entire length thereof,

Page 190 U. S. 67

from the corner of the States of North Carolina and Tennessee, on Pond Mountain, to the corner of Virginia and Kentucky at Cumberland Gap, doth therefore adjudge, order, and decree that the entire real, certain, and true boundary line between the States of Tennessee and Virginia is the line described and delineated in said report filed herein on January 5, 1903, modified as to so much of said line as lies between the two Cities of Bristol, by the aforesaid compact of 1901 between the two states, and as so described, delineated, and modified said boundary line from the said North Carolina corner to the eastern end of the compact line of 1801-1803, known as the "diamond-marked" line, and thence to Cumberland Gap, is hereby determined, fixed, and established.

It is further ordered, adjudged, and decreed that the compensation and expenses of the commissioners, and the expenditures attendant upon the discharge of their duties, be, and they are hereby, allowed at the several sums set forth in their report, as hereinbefore confirmed, and that said charges and expenses, together with all the costs of this suit to be taxed, be equally divided between the parties hereto.

It is further ordered that the clerk of this Court do at the proper charges of the parties to this cause, deliver fifty printed copies of this decree, including said report, to the Attorney General of each of said states.

The report of the commissioners, filed January 5, 1903, is as follows:

To the Honorable the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your commissioners, appointed by the decree of this honorable Court, dated April 30, 1900, to ascertain, retrace, remark, and reestablish the boundary line established between the States of Virginia and Tennessee, by the compact of 1803, which was actually run and located under proceedings had by the two states in 1801-1803, and was then marked with five chops in the shape of a diamond, and which ran from White Top mountain to Cumberland Gap, respectfully represent that they have completed the duties assigned to them by the said

Page 190 U. S. 68

decree of April 30, 1900, that they have retraced and remarked the said boundary line as originally run and marked with five chops in the shape of a diamond in the year 1802, and that, for the better securing of the same, they have placed upon the said line, besides other durable marks, monuments of cut limestone, four and a half feet long and seven inches square on top, with V's cut on their north faces and T's on their south faces, set three and a half feet in the ground, conveniently located as hereinafter more fully described, so that the citizens of each state and others, by reasonable diligence, may readily find the true location of said boundary, all of which is more particularly set forth in the detailed report of their operations which your commissioners herewith beg to submit, together with two maps explanatory of the same, a list of the several permanent monuments and other durable marks, and a complete bill of costs and charges. And your commissioners further pray that this honorable Court accept and confirm this report; that the line as marked on the ground by said commissioners in the years 1901 and 1902 be declared to be the real, certain, and true boundary between the States of Tennessee and Virginia; that your commissioners be allowed their expenses and reasonable charges for their own services in these premises, as shown on the bill of costs which forms a part of this report, and finally, that your commissioners be discharged from further proceedings in these premises.

"William C. Hodgkins [seal]"

"Commissioner"

"James B. Baylor, [seal]"

"Commissioner"

"Andrew H. Buchanan, [seal]"

"Commissioner"

Detailed report of the operations of the commission appointed by the Supreme Court of the United States (April 30, 1900) to retrace and remark the boundary line between the States of Tennessee and Virginia.

At the date of the above decree, and for several months thereafter, the State of Virginia had no funds available for the proceedings

Page 190 U. S. 69

ordered by the Court, and none could be had until there could be a session of the state legislature to make the needed appropriation. It was therefore necessary for your commissioners to seek an extension of the time within which they might make their report, and, upon the motion of the Attorney General of Virginia, an extension was granted until the next term of Court.

At a session of the General Assembly of Virginia held in the winter of 1900-1901, the sum of $5,000 was appropriated for the purpose of paying Virginia's share of the expenses of this boundary survey.

The Tennessee Legislature had previously made a like appropriation.

Your commissioners therefore made preparations for beginning the execution of their duties under your decree of April 30, 1900, as early in the season of 1901 as the weather conditions should permit.

The commission held its first meeting at Washington, D.C., on May 16, 1901, and organized by choosing William C. Hodgkins, of the State of Massachusetts, as chairman: James B. Baylor, of the State of Virginia, as secretary, and Andrew H. Buchanan, of the State of Tennessee, as treasurer.

At this meeting, there was a full discussion of the problem presented and of the method of work which might be most suitable under all the conditions. Arrangements were also made for procuring the necessary camp outfit and supplies.

Through the courtesy of the Superintendent of the United States Coast and Geodetic Survey, your commissioners were able to procure from that bureau, without charge, not only the outfit of tents and camp furniture required for the shelter and comfort of the party, but also the valuable instruments needed for the survey.

This relieved the States of Tennessee and Virginia of a considerable expense which would otherwise have been unavoidable. The two states were spared another heavy item of expense by the fact that each of your commissioners is a civil engineer and entirely familiar with work of this nature. It was therefore unnecessary to follow the usual course of employing

Page 190 U. S. 70

engineers or surveyors to carry out the field work under the direction of the commissioners. Instead of that, your commissioners themselves conducted all the field work, hiring only such rodmen, axmen, etc., as were necessary from time to time. By such methods, and by exercising rigid economy in all of their expenditures, your commissioners have been able to complete the entire work, including the setting of cut-stone monuments, and also including the amount charged for their own remuneration, for the sum of $9,475.99, which is but little more than the amount charged to the State of Virginia alone by the joint commission of 1858-1859.

It having been decided at the first meeting of the commission that the most convenient place for beginning field operations would be the City of Bristol, which is located directly upon the boundary line, the commission adjourned to that place.

Field work was begun on May 22, 1901, with the examination of a portion of the line east of Bristol, where a number of trees were found which bore the marks of the surveys of 1802 and 1858-1859. As there has been considerable controversy and conflicting testimony in regard to the nature of these old marks, it may be well to show, by diagrams and photographs, the actual arrangement and appearance of those of both years, as well as of the somewhat different mark which was used for the present remarking by your commissioners.

image:a

While the marks made in 1858-1859 are still numerous in forested areas and are generally easily distinguishable, those made in 1802 are becoming scarce and sometimes are barely discernible when found.

Page 190 U. S. 71

This is shown in the accompanying photograph of a large white oak tree, upon which the marks of 1858-1859 can readily be traced, while only three of those made in 1802 can be distinguished, and those with difficulty. The marks of 1802 were apparently made with a small and light hatchet and on many trees which have a thick and rough bark the hatchet does not seem to have reached the wood, and in such cases the gradual exfoliation of the bark has often nearly or entirely obliterated the mark. Where the wood was wounded, a small burr has formed which can nearly always be recognized, but cuts which did not completely penetrate the bark have sometimes disappeared.

The marks left by the survey of 1858-1859 were found of very great value as guides to the older "diamond" marks of 1802. Both marks were often found on the same tree, and it was a rare occurrence to find the diamond mark without the mark of 1859, either above or below it. In fact, it was very soon noticed that the mere fact of finding the mark of 1858-1859 either above or below the normal position on a tree was an almost certain indication that a diamond mark had been found there at the date of the later marking, even though, through the action of time and the elements, all vestiges of it may now have disappeared. Since the date of the last survey, very many marked trees have been destroyed through various agencies, especially since the more rapid development of this section in recent years has caused a greater demand for lumber, and, in some places, the trees bearing the old marks are so far apart, and the marks themselves are so faint, that great trouble and delay would often have been experienced in the search for these old marks had it not been for the aid afforded by the marks of 1858-1859, which always proved reliable guides by which to find the older marks.

In this connection it may not be inappropriate for your commissioners to state that they everywhere found that the joint commission of 1859 did its work in a careful and conscientious manner, and that they believe its line, as marked on the growing timber, is identical with that marked by the joint commission

Page 190 U. S. 72

of 1802, and that full credence should be given to statements of fact in the report of that survey.

From a point about a mile and a quarter east of Bristol, the line was traced without difficulty, other than that due to the broken nature of the country traversed, as far as the beginning of what is commonly known as the Denton valley offset.

At this point occurs the greatest and most remarkable irregularity in the whole course of this line, there being a deflection from the direct course of 66

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