1. Land on the Arkansas side of the Mississippi River was cut
off by a sudden change of the river's course, in 1821, and became
attached to the Tennessee side.
Held:
(1) That it subsequently became a part of Tennessee as the
result of long and continuous exercise by that dominion and
jurisdiction over it with the acquiescence of Arkansas. P.
310 U. S.
566.
(2) That an addition to this area, caused by gradual accretion
from the river, was also subject to the Tennessee jurisdiction. P.
310 U. S.
572.
2. The principle of prescription and acquiescence is applicable
in the determination of boundaries between States. P.
310 U. S.
569.
3. The rule of the thalweg rests upon equitable considerations,
and is intended to safeguard to each State equality of access and
right of navigation in the stream. The rule yields to the doctrine
that a boundary is unaltered by an avulsion, and, in such case, in
the absence of prescription, the boundary no longer follows the
thalweg, but remains at the original line. P.
310 U. S.
571.
4. The doctrine as to the effect of an avulsion may become
inapplicable when it is established that there has been
acquiescence in a long continued and uninterrupted assertion of
dominion and jurisdiction over the area affected. P.
310 U. S.
571.
5. The question whether a State has acquired political
jurisdiction by prescription is not affected by the circumstance
that the title to the area is in the United States, such title not
being disputed. P.
310 U. S.
571.
Exceptions overruled; report confirmed, and decree ordered.
Upon exceptions to the report of a Special Master, appointed in
an original boundary suit (301 U.S. 666) between the States of
Arkansas and Tennessee.
Page 310 U. S. 564
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The State pf Arkansas brought this suit against the State of
Tennessee seeking a decree determining the true boundary between
the States at certain points and confirming the jurisdiction and
sovereignty of the State of Arkansas over the described
territory.
The bill of complaint set forth two counts. The first count
presented the contentions of Arkansas as to the boundary in
relation to an area known as "Needham's Island," later as "Cutoff
Island" or "Moss Island," and to a contiguous formation known as
"Blue Grass Towhead." This is the only area which remains in
controversy, as the parties have agreed by stipulation upon the
boundary line to be fixed in relation to the land described in the
second count.
Tennessee answered, contesting the claims of Arkansas and
asserting by cross-bill its jurisdiction and sovereignty over the
territory in question.
The issues were referred to Monte M. Lemann as Special Master.
301 U.S. 666. The Master has filed a careful and comprehensive
report recommending a decree in favor of Tennessee as to the area
described in count one, and in accordance with the stipulation as
to that described in count two. The case has been heard upon that
report and the exceptions filed by Arkansas.
The Master set forth the following facts as agreed upon by the
parties:
"Prior to 1821, the land in controversy in this suit was on the
west bank of the Mississippi River and the main channel of the
river flowed to the east thereof. At the location involved in this
suit, the river at that time flowed around a twelve mile bend
caused by the extension of a peninsula into the river from the
western shore. In 1821, an avulsion took place in the course of the
river
Page 310 U. S. 565
occasioned by the water's cutting across the neck of this
peninsula at a point where it had become only half a mile wide due
to caving of the river banks. At the present time, the main channel
of the Mississippi River flows to the west of the lands in
controversy, and has so flowed for many years prior to the present.
The original channel of the river is now, and has for many years
been, filled up, so that the island originally created by the
avulsion is now, and has for many years been, physically connected
to, and a part of, the eastern shore of the river."
After a review of the evidence upon points in dispute, the
Master made a summary of his findings and conclusions as
follows:
"(1) The Territory of Arkansas was organized by Act of March 2,
1819, 3 Stat. 493, being carved out of the Territory of Missouri,
which was a part of the Louisiana Purchase, and the eastern
boundary of the Territory was the middle of the main channel of the
Mississippi River."
"(2) In 1819, the lands in controversy were on the west side of
the main channel of the river and were part of the Territory of
Arkansas."
"(3) The avulsion at Needham's Cutoff occurred in 1821."
"(4) The main channel of the river flowed through the cut-off
prior to 1836."
"(5) Arkansas was admitted into the Union on June 15, 1836, 5
Stat. 50, and its eastern boundary was fixed at the middle of the
main channel of the Mississippi River."
"(6) On June 15, 1836, when Arkansas was admitted into the
Union, the lands in controversy were on the east side of the main
channel of the Mississippi River."
"(7) The avulsion did not change the boundary line theretofore
existing between Tennessee and the Territory of Arkansas. "
Page 310 U. S. 566
"(8) The Act of Congress of June 15, 1836, admitting Arkansas
into the Union did not have the effect of excluding from the
boundaries of the Arkansas lands which, immediately prior to the
adoption of the Act, were within the Territory of Arkansas."
"(9) Tennessee was admitted into the Union on June 1, 1796, 1
Stat. 491, c. 47. Its western boundary was the middle of the main
channel of the Mississippi River. The lands in controversy were, in
1796, on the west of the main channel of the river."
"(10) The Act of June 15, 1836, 5 Stat. 50, admitting Arkansas
into the Union, did not have the effect of enlarging the boundaries
of Tennessee."
"(11) From 1826 to the date of the filing of this suit,
Tennessee has continuously exercised dominion and jurisdiction over
the lands in controversy."
"(12) Arkansas has acquiesced in Tennessee's exercise of
dominion and jurisdiction."
"(13) The lands described in Count One of the complaint are now
within the boundaries of Tennessee as a result of prescription.
Bluegrass Towhead, which has been formed by gradual processes and
is attached to Moss Island, is likewise now within the boundaries
of Tennessee."
The exceptions of Arkansas to the Master's report present for
the most part questions of law. Arkansas contends that its true
eastern boundary at the place in controversy was determined by the
rule of the thalweg, being the middle of the main channel of
navigation of the Mississippi River as it existed when the Treaty
of Peace between the United States and Great Britain was concluded
in 1783, subject to such subsequent changes as occurred through
natural and gradual processes.
Arkansas v. Tennessee,
246 U. S. 158;
Arkansas v. Mississippi, 250 U. S. 39;
Arkansas v. Mississippi, 252 U. S. 344. The
Master supports that contention with respect to the
Page 310 U. S. 567
original boundary of the Territory of Arkansas, and also the
contention that the avulsion of 1821 did not change the boundary
line theretofore existing between Tennessee and the Territory of
Arkansas; and, further, the Master holds that the Act of 1836
admitting Arkansas into the Union did not operate to exclude from
its boundaries the lands which, immediately before, were within the
Territory of Arkansas, or to enlarge the boundaries of
Tennessee.
Despite these conclusions, the Master is of the opinion that the
area in question should now be deemed to be within the boundaries
of Tennessee by virtue of prescription and the acquiescence on the
part of Arkansas in the exercise by Tennessee of dominion and
jurisdiction over that area. Upon that question of fact, the Master
found that Tennessee had continuously exercised that dominion and
jurisdiction from the year 1826 to the time of the bringing of the
present suit. In support of this finding, the Master thus
summarized the evidence:
"The contemporary evidence shows that, as early as 1823, entries
of the land were being made under the authority of Tennessee, and
surveys were made under authority of Tennessee as early as 1824.
Witnesses sixty-five, seventy-eight, and eighty-four years old
testified before me that the inhabitants of the island always voted
in Tennessee elections; were taxed by Tennessee, married by
Tennessee Justices of the Peace, required to do road work under
Tennessee authority, educated upon the island in a school operated
by Tennessee. The records of Dyer County, Tennessee, showed that
assessments on the lands in controversy for local taxes were made
by Tennessee authorities and land taxes paid to Tennessee as far
back a 1870, prior to which records are missing. Tennessee Exhibit
42 shows a tax sale by a Tennessee sheriff in 1848 covering lands
on the island. The bill of exceptions in the case of
Moss v.
Gibbs shows testimony
Page 310 U. S. 568
in that case that, as far back as 1826, Tennessee assessed the
lands on the cut-off island, collected the taxes on them, and
served process there. The opinion of the Supreme Court of Tennessee
in
Moss v. Gibbs (1872) 10 Heisk. 283, 57 Tenn. 283,
recites these facts as proven therein."
The Master added that, if he was mistaken in thinking it proper
to consider the depositions and opinion in
Moss v. Gibbs,
supra, as affording evidence in this case,
"the testimony taken before me and the other documentary
evidence, consisting of certified copies of entries, surveys, and
patents is, in my judgment, sufficient to prove Tennessee's long
and uninterrupted exercise of dominion and jurisdiction over the
lands in controversy."
The Master was equally explicit in finding that the record
showed the acquiescence of Arkansas in this assertion of dominion
by Tennessee. On this point, his report states:
"There is no showing that Arkansas ever asserted any claim to
the land in controversy prior to the institution of this suit. The
lands were never surveyed or granted by Arkansas. In 1848, the
United States Surveyor of Public Lands in Arkansas wrote to the
General Land Office in Washington that he had been called upon to
survey the lands on the cut-off island. He received a reply
authorizing him to proceed with the survey of the island 'more
especially if it is not claimed by the Tennessee.' But no survey
was ever made. On October 10th, 1935, application was filed with
the Commissioner of State Lands of Arkansas for the purchase of
Blue Grass Towhead, but no action was taken thereon. The opinion of
the Supreme Court of Tennessee in
Moss v. Gibbs, 10 Heisk.
283, 57 Tenn. 283, was published in the year 1872, and made the
claims of Tennessee a matter of public notoriety."
There was slight, if any, controversy as to the facts upon the
hearing at this bar. The findings of the Master
Page 310 U. S. 569
with respect to the exercise of dominion and jurisdiction by
Tennessee and as to the acquiescence therein of Arkansas are fully
supported by the record, and we must determine the cause upon that
basis.
The contentions of Arkansas in opposition to the application of
the principle of prescription and acquiescence in determining the
boundary between States cannot be sustained. That principle has had
repeated recognition by this Court. In
Rhode
Island v. Massachusetts, 4 How. 591,
45 U. S. 639,
the Court said:
"No human transactions are unaffected by time. Its influence is
seen on all things subject to change. And this is peculiarly the
case in regard to matters which rest in memory, and which
consequently fade with the lapse of time, and fall with the lives
of individuals. For the security of rights, whether of states or
individuals, long possession under a claim of title is protected.
And there is no controversy in which this great principle may be
involved with greater justice and propriety than in a case of
disputed boundary."
Applying this principle in
Indiana v. Kentucky,
136 U. S. 479,
136 U. S. 510,
to the long acquiescence in the exercise by Kentucky of dominion
and jurisdiction over the land there in controversy, the Court
said:
"It is a principle of public law, universally recognized, that
long acquiescence in the possession of territory, and in the
exercise of dominion and sovereignty over it, is conclusive of the
nation's title and rightful authority."
Again, in
Louisiana v. Mississippi, 202 U. S.
1,
202 U. S. 53, the
Court observed:
"The question is one of boundary, and this court has many times
held that, as between the states of the Union, long acquiescence in
the assertion of a particular boundary and the exercise of dominion
and sovereignty over the territory within it should be accepted as
conclusive, whatever the international rule might be in respect of
the acquisition by prescription of large tracts of country claimed
by both."
See also Virginia v. Tennessee, 148 U.
S. 503,
Page 310 U. S. 570
148 U. S. 523;
Maryland v. West Virginia, 217 U. S.
1,
217 U. S. 41-44;
Vermont v. New Hampshire, 289 U.
S. 593,
289 U. S.
613.
In
Michigan v. Wisconsin, 270 U.
S. 295,
270 U. S. 308,
the Court thus referred to the recognition of this principle in
international law, saying:
"That rights of the character here claimed may be acquired, on
the one hand, and lost, on the other, by open, long continued, and
uninterrupted possession of territory is a doctrine not confined to
individuals, but applicable to sovereign nations as well,
Direct United States Cable Co. v. Anglo-American Telegraph
Co., [1877] L.R. 2 A.C. 394, 421; Wheaton, International Law
(5th Eng.Ed.) 268, 269; 1 Moore, International Law Digest, 294
et seq.; and,
a fortiori, to the
quasi-sovereign states of the Union."
Prescription in international law, says Oppenheim, may be
defined as
"the acquisition of sovereignty over a territory through
continuous and undisturbed exercise of sovereignty over it during
such a period as is necessary to create under the influence of
historical development the general conviction that the present
condition of things is in conformity with international order."
And thus he finds that prescription in international law "has
the same rational basis as prescription in municipal law -- namely,
the creation of stability of order." Oppenheim, International Law,
5th Ed., pp. 455, 456.
See also Hall, International Law,
8th Ed., pp. 143, 144; Hyde, International Law, Sec. 116.
This principle of prescription and acquiescence, when there is a
sufficient basis of fact for its application, so essential to the
"stability of order" as between the States of the Union, is in no
way disregarded or impaired by our decisions in
Arkansas v.
Tennessee, supra, and
Arkansas v. Mississippi, supra,
upon which counsel for Arkansas rely. In those cases, the evidence
fell short of the proof of long acquiescence which was necessary to
warrant the application of the principle, and there was no such
showing
Page 310 U. S. 571
of acts of dominion and jurisdiction as are shown on the part of
Tennessee in the instant case.
On behalf of Arkansas, it is argued that the rule of the thalweg
is of such dominating character that it meets and overthrows the
defense of prescription and acquiescence. That position is
untenable. The rule of the thalweg rests upon equitable
considerations, and is intended to safeguard to each State equality
of access and right of navigation in the stream.
Iowa v.
Illinois, 147 U. S. 1,
147 U. S. 7-8;
Minnesota v. Wisconsin, 252 U. S. 273,
252 U. S.
281-282;
Wisconsin v. Michigan, 295 U.
S. 455,
295 U. S. 461;
New Jersey v. Delaware, 291 U. S. 361,
291 U. S. 380.
The rule yields to the doctrine that a boundary is unaltered by an
avulsion, and, in such case, in the absence of prescription, the
boundary no longer follows the thalweg, but remains at the original
line, although now on dry land because the old channel has filled
up.
Nebraska v. Iowa, 143 U. S. 359,
143 U. S. 367;
Missouri v. Nebraska, 196 U. S. 23,
196 U. S. 36;
Arkansas v. Tennessee, supra, pp.
246 U. S.
173-174. And, in turn, the doctrine as to the effect of
an avulsion may become inapplicable when it is established that
there has been acquiescence in a long continued and uninterrupted
assertion of dominion and jurisdiction over a given area. Here,
that fact has been established, and the original rule of the
thalweg no longer applies.
The contention is also pressed that the defense of prescription
is unavailable upon the ground that the title to the land in
controversy is in the United States; that the land is still
unsurveyed land of the United States; and, hence, that the defense
of adverse possession could not be good against Arkansas as she did
not have title. But the question in this suit is not one of title
to particular land, but of boundaries and of political jurisdiction
as between Arkansas and Tennessee. Tennessee is making no claim
against the United States. No title of the
Page 310 U. S. 572
United States to lands within the boundaries of either State is
here in question or is here determined. The ruling of the Master in
overruling this contention is sustained.
A special point is urged as to the area known as "Blue Grass
Towhead." As to this area, the Master found:
"Blue Grass Towhead is a formation adjoining Moss Island (the
cut-off island) on the west thereof, which has been formed since
the year 1916 by the gradual processes of the river and is now
attached physically to the eastern shore of the river. Insofar as
this formation is in controversy in the present litigation, I am of
the opinion that it also is subject to the jurisdiction of
Tennessee, as it was formed by gradual processes and is attached to
Moss Island;
see Arkansas v. Tennessee, 246 U. S.
158,
246 U. S. 173."
It seems clear that, as Moss Island, by prescription and
acquiescence, must be deemed to be part of the territory subject to
the jurisdiction of Tennessee, this addition by gradual processes
should be treated as part of Moss Island, and as subject to the
same jurisdiction.
The exceptions of Arkansas to the Master's report are overruled,
and the report is in all respects confirmed. Decree will be entered
accordingly providing:
(1) That the claims of Arkansas to the lands described in count
one be rejected, and the claims of Tennessee thereto be maintained,
and that the boundary line between the States at the point to which
count one refers be fixed at the middle of the main channel of
navigation in the Mississippi River as it existed at the date of
the filing of the bill of complaint herein.
(2) That the boundary between Arkansas and Tennessee at the
point described in count two of the bill of complaint be fixed in
accordance with the stipulation entered into by the parties, and
that a commissioner be appointed to mark the boundary line as set
out in the stipulation by placing three suitable markers along
the
Page 310 U. S. 573
line and a fourth one on sufficiently high ground to be used in
locating the other three in the event that they should be covered
by water, moved, or destroyed.
(3) That costs be equally divided between the States.
Decree may be settled on notice.
It is so ordered.