1. In a suit to establish a part of the boundary line of
Louisiana and Mississippi between Willow Point and adjacent
territory in the former and Township 9 North, Range 8 West, in the
latter state, where the Mississippi River forms what is known as
Albemane Bend, the Court, after an examination of the documentary
and oral evidence, sustains the master in finding:
(1) That changes in the course of the river which occurred at
the place in question between the years 1823 and 1912-13, by which
a considerable area was added to the Louisiana shore, were by
gradual erosions and accretions, and not by avulsions. P.
282 U. S.
(2) That a change in 1912-13 by which the river, shifting to the
west, cut off a large part of this area was due to an avulsion. P.
282 U. S.
(3) That Mississippi did not by possession or exercise of
sovereignty or dominion acquire right or title to the disputed
territory. P. 282 U. S.
2. Upon these facts, the boundary is the thread of the main
channel of the river as it was immediately prior to the avulsion of
1912-13. P. 282 U. S.
Final hearing of an original suit to establish part of an
Page 282 U. S. 459
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The bill seeks a decree locating and establishing a portion of
the boundary line of Louisiana and Mississippi, between Willow
Point and adjacent premises in the former, and lands in Township 9
North, Range 8 West, in the latter state, where the Mississippi
River forms what is known as Albemane Bend.
In 1823, the thread of the navigable channel of the river was
the true boundary line, and is correctly located by surveys made by
the Mississippi River Commission in 1823 and 1824. At that time the
territory now in dispute was within Mississippi, and consisted of
an island (then known as Tullos Island, which lay to the east of
the thread of the river, and was separated from the Mississippi
mainland by a chute) and certain portions of the mainland east
thereof. Prior to 1882 the island was renamed "Island No. 98."
The complainant asserts:
That between 1823 and 1913, erosions occurred which ate away all
of Tullos Island and large portions of the Mississippi shore.
That accretions attached to the Louisiana shore.
That the river, and consequently the interstate boundary line,
gradually and imperceptibly moved eastwardly and northwardly a
distance of five or six miles.
That the accretions to the Louisiana shore became the territory
Page 282 U. S. 460
That, in 1912-1913 the river suddenly changed its course, cut
across the bar formed by the said accretions on the Louisiana side,
and, by avulsion, formed a new channel to the west, severing from
the Louisiana shore a large portion of the accretion theretofore
That, as the last change was by avulsion, the boundary line
remained and now is at the thread of the extreme easterly and
northeasterly channel of the river as it was in 1912-1913.
The Mississippi River Commission surveyed the river in 1882, and
admittedly its chart made from that survey correctly shows the
shore lines and bar lines and other relevant data as of that year.
A further survey was made by the Commission, and a plotting taken
therefrom in 1894, and a similar survey and plotting shows the
river as it was in 1912-1913. These demonstrate that the river had
moved to the eastward from its position in 1823, each survey
placing it considerably east of its location at the time of the
next earlier one.
The respondent avers:
That the complainant has failed to show how the change in the
channel came about between the surveys of 1823-1824 and that of
That, as complainant has the burden of showing that the change
took place by accretion, rather than by avulsion, and has failed to
carry that burden, it can make no claim for the land added to the
Louisiana shore prior to 1882.
That, subsequent to 1882, the river above the point in
controversy cut into the Louisiana bank above and along the
northern border of Willow Point, was deflected in a northeasterly
direction, so that, instead of striking Tullos Island it curved
around the head of what then remained of the island (as it is shown
on the survey of 1882) and enlarged the chute between that island
and the Mississippi shore, forming a new channel there.
Page 282 U. S. 461
That subsequently, the old channel, which had run to the west of
the island, filled up, and thereby the island became attached to
the Louisiana shore.
That the new channel running to the north and east of what was
left of Tullos Island added by accretion to the easterly side of
the island and cut farther into the Mississippi shore until
1912-13, when the river suddenly abandoned the new channel and
returned to the old 1882 channel.
That thereby what theretofore had been Tullos Island again
became an island separated from the Louisiana shore, although
greatly enlarged over its dimensions in 1882 by the accretions
added to its easterly side.
As an additional and alternative defense, Mississippi asserts
that its title to the disputed territory cannot now be assailed
because of long continued possession and exercise of sovereignty
and dominion, with the acquiescence of Louisiana.
On the issues thus made, testimony was taken before a
commissioner, and was referred to Thomas G. Haight, a member of the
bar of this Court, as special master, with direction and authority
to report his findings of fact, conclusions of law, and
recommendations for a decree. He has filed his report, recommending
a decree in accordance with the contentions of the complainant. The
respondent has filed exceptions.
The parties are in agreement as to the applicable legal
principles. The exceptions raise no questions of law, but go solely
to the correctness of the master's fact findings and conclusions.
We have therefore examined the proofs, consisting of documentary
evidence and oral testimony, to determine whether the master's
findings are in accord therewith. In brief, he finds:
1. That the changes between 1823 and 1912-13 were by gradual
erosion of the Mississippi shore and gradual accretions to the
Louisiana shore, and not be avulsions.
Page 282 U. S. 462
2. That the change in 1912-13 was due to an avulsion.
3. That the accretions up to the avulsion of 1912-13 and
thereafter, so long as the current flowed in the easterly channel
as it was prior to the avulsion, became Louisiana territory.
4. That the avulsion of 1912-13 did not change the boundary
5. That Mississippi did not, by possession or exercise of
sovereignty or dominion, acquire right or title to the disputed
territory; and, as a consequence of the foregoing,
6. That the present true boundary line is the middle of the
navigable channel prior to the avulsion of 1912-13, as that channel
was when the current ceased to flow therein by reason of the
formation of the new channel by the avulsion of 1912-13, and the
filling of the former channel.
There is no challenge of findings 2 and 4. The whole controversy
revolves about the correctness of findings 1 and 3, as to the
physical changes which actually took place, and finding 5, as to
the exercise of dominion by the respondent.
I. With respect to the physical changes which have taken place
in the location of the Mississippi River, the proofs may
conveniently be divided into two parts -- those which apply to the
period prior to 1882 and those which have to do with that between
1882 and 1912.
It was impossible to procure much or very persuasive oral
evidence as to conditions prior to 1882. The master had before him,
however, the charts of the Mississippi River Commission of 1823-24
and of 1882, and plats from surveys made in 1866 and 1870. By
comparing these and noting facts deducible from them, he concluded
that the river moved eastward from its 1823 channel to its 1882
channel gradually, and not by avulsion. He found that the Louisiana
shore was eroded above Albemane
Page 282 U. S. 463
Bend and extended to the eastward by accretions at Willow Point.
He further found that, while this was occurring, the eastward sweep
of the river gradually cut away the greater portion of Tullos
Island. During all of this time, the river remained of
approximately the same width, thus negativing Mississippi's
contention as to the possibility of the change in the channel being
sudden and by avulsions of nature. His conclusions were also
supported by the relative locations of sand bars and river banks at
the dates of the successive surveys. In 1882 a towhead, so-called,
had been formed on the sandbar created by the accretions to the
Louisiana shore, which was named "Newman's Towhead" because the
owner of the Louisiana mainland at the point from which the bar had
made out was a man named Newman. On This towhead there had sprung
up a growth of willow and cottonwood timber.
From an examination of the proofs and a checking of the
processes of reasoning and deduction adopted by the master, we are
satisfied that his findings on this branch of the case are
justified, and that the contention of Mississippi that he has
relied upon mere inferences, which do not rise to the dignity of
affirmative proofs, is not well founded.
A more serious controversy, complicated by conflicting oral
testimony, is disclosed as to what occurred between 1882 and 1912.
The complainant adduced proofs tending to show that the eastward
and northeastward movement of the channel continued after 1882.
These further tend to show that, by 1894, all that was left of
Tullos Island in 1882 had been washed away, and that the main
channel of the river was in part where that island had formerly
been and in part east of its location; that the eastward movement
of the river and the direction of the current to the east eroded a
substantial portion of the
Page 282 U. S. 464
former Mississippi mainland; that, from 1894 to 1912, this
movement eastward continued, until whole sections of Township 9
North, Range 8 West, in Mississippi, had caved away; that, in
periods of high water in 1912 and 1913, the river overflowed the
bar extending out from the Louisiana shore to Newman's Towhead and
took a southwesterly course, cutting across the accretions
theretofore formed and leaving the eastern portions of the bar,
including the towhead, an island; that a portion of this new island
occupied the location of what was formerly Tullos Island. Thus,
complainant claimed that, prior to 1912, the old island had been
washed away by the eastward progress of the river channel, and had
been replaced by accretions along the westerly side of the river
adjacent to Louisiana.
Respondent offered evidence tending to show that, while the
river reached the extreme easterly position averred by the
complainant, it did so not by washing away Tullos Island and moving
eastwardly over the former location of that island, but by swinging
around to the north and east of that island, enlarging and scouring
out the former chute or narrow channel between the island and the
Mississippi mainland; that thereafter the river added by accretions
to the eastern side of what was left of the island, and that the
old channel to the west of it gradually filled up.
If the weight of the evidence is with the complainant, the
territory in controversy belongs to Louisiana; if the contrary be
found, the disputed territory, originally within the boundaries of
Mississippi, so remains.
There is much conflicting testimony as to the location of the
main channel between 1890 and 1912; as to whether Tullos Island was
scoured away; as to the character of the soil and timber on the
island; as to whether the alleged clay soil of the island
disappeared and was afterwards replaced by a sandbar formed by
accretion; as to
Page 282 U. S. 465
whether the original virgin timber which was on it fell into the
river and disappeared with it, or in part still stands as mute
evidence that the island was never entirely washed away.
Mindful of the fact that the special master did not see and hear
the witnesses, we have felt it incumbent upon us to study the
proofs, documentary and oral, to examine the deductions made
therefrom, and thereby to test the stated conclusions. The
preponderance of the evidence supports the master's finding that,
from 1882 to 1894, the river moved eastwardly, caving away Tullos
Island along its western shore, until it had wiped out that island;
that the continued eastward movement caved the Mississippi shore at
the same time adding to the accretions which had already formed on
the Louisiana shore opposite Willow Point, and that the bar was
continuous from the old high bank on the Louisiana side to the end
of Newman's Towhead. Thus, by 1912, an area five or six miles in
length and several miles in width had been added to the Louisiana
As matters stood in 1912 and 1913, the boundary line between the
states was the thread of the navigable channel far to the eastward
of the present channel. As above stated, there is no controversy as
to what occurred in 1912-13. The river, by a sudden avulsion, made
a short-cut to the west of Albemane Bend, as it then was, and
subsequently the channel in the old bend to the eastward of the new
channel silted and filled until it entirely closed at the upper
end. This sudden avulsion did not change the boundary line between
II. It remains to discuss the proofs bearing upon the master's
fifth finding. The survey of 1882 discloses that accretions
attached to the Louisiana shore had at that time extended to the
eastward so far as to cover a portion of the territory formerly
belonging to Mississippi. The
Page 282 U. S. 466
1894 survey shows these accretions covering a much larger
portion, and that of 1912-13 shows a still greater extension over
former Mississippi territory. The Newmans, who lived on Willow
Point, Louisiana, had a house about one hundred yards east of the
1824 mainland, between the levee and the stream, and just above
Albemane Bend proper. It must therefore have been built on
accretions formed subsequent to 1824. It caved into the river in
1905. The master found that the possession of the Newmans extended
at least to those accretions which had attached to the shore up to
the time that their house was destroyed. The disputed territory is
low alluvial land subject to overflow at times of high water, and
is not protected by levees or dikes. Upon portions of it,
cottonwood and willow timber has grown. The land is not fitted for
cultivation or settlement except in a haphazard way. It took its
name from the Newman family, and was known as the "Newman Towhead."
After the avulsion of 1912-13 severed a large portion of it from
the Louisiana shore, the successors in title of the Newmans leased
the cut-off portion of it, lying to the eastward of the new
channel, to one Towns. The lease described it as part of the Bell
and Willow Point plantations, located in East Carroll Parish,
Louisiana. It was occupied under the lease for six or eight years
for the pasturing of hogs.
The first knowledge that complainant's witnesses had of any
claim on behalf of Mississippi or its citizens was shortly before
this action was brought. It appears that, in or about 1923,
Mississippi sold some of the land in question for delinquent taxes.
On the assessment rolls of Issaquena County, Mississippi, the
purchasers at these tax sales first appeared as owners in
1925-1926. The respondent
Page 282 U. S. 467
put in evidence assessment rolls for certain years between 1848
and 1926. They show that, after 1883, certain of the lands within
the original boundary of Tullos Island are marked "in river," or
"in Mississippi River," and from time to time these lands so
designated were assessed for taxation, sometimes for nominal
amounts and sometimes for substantial sums. At times "Island No.
98" appears as a separate item on the rolls, although the surveys
show that at those times the island had disappeared. It is
described as of greatly varying sizes in different years. The
evidence to be drawn from this source is quite contradictory, and
fails to show any dominion by Mississippi over the disputed
The record sustains the master's finding that there is no proof
that Louisiana or its citizens knew of or acquiesced in any
purported dominion of Mississippi over the disputed territory. The
respondent has failed to meet the test laid down in Michigan v.
Wisconsin, 270 U. S. 295
with respect to exercise of sovereignty and dominion over the
disputed territory, and acquiescence by complainant in such alleged
possession. The master's fifth finding is sustained.
A decree should be entered as recommended by the master,
appointing a commission to locate the thread of the main channel of
the Mississippi River as the same was immediately prior to the
avulsion of 1912-13, and the line when so located is decreed to be
the boundary between the states, between latitude 32� 39' on the
north and the division line between Issaquena and Warren Counties,
Mississippi (as extended westward), on the south. The parties are
accorded forty days within which to submit a decree in accordance
with this opinion.
It is so ordered.