In this boundary dispute between Arkansas and Mississippi over
an area known as Luna Bar in the abandoned bed of the Mississippi
River between the upstream and downstream ends of Tarpley Cut-off,
where Arkansas' Chicot County and Mississippi's Washington County
adjoin, the report of the Special Master is adopted, in which he
found that Luna Bar was formed by accretion resulting from the
gradual westward movement of the Mississippi River, and is
therefore part of the State of Mississippi, and not by avulsive
process, as claimed by Arkansas. Pp.
415 U. S.
291-294.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
415 U. S.
294.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Mississippi, prompted by the pendency of private title
litigation in the Arkansas courts, [
Footnote 1] instituted this original
Page 415 U. S. 290
action against Arkansas in November, 1970. The bill of
complaint, which accompanied the motion for leave to file, prayed
that the boundary line between the two States, in the old bed of
the Mississippi River from the upstream end to the downstream end
of Tarpley Cut-off, that is, the Spanish Moss Bend-Luna Bar-Carter
Point area where Arkansas' Chicot County and Mississippi's
Washington County adjoin, be fixed and determined.
The river was originally established as the boundary between the
States by their respective Acts of Admission. Mississippi's Act, 3
Stat. 348 (1817), described the line as "up" the river. [
Footnote 2] Arkansas' Act, 5 Stat. 50
(1836), described the line as "up the middle of the main channel of
the said river."
See also Arkansas' Constitution, Art. 1
(1874). Over 50 years ago, the question whether there was any
difference in the meaning of these two descriptions was resolved
and the boundary was determined to be "the middle of the main
navigable channel, and not along the line equidistant between the
banks."
Arkansas v. Mississippi, 250 U. S.
39,
250 U. S. 43
(1919). That decision was in conformity with the rule of the
thalweg enunciated in
Iowa v. Illinois, 147 U. S.
1,
147 U. S. 7-8,
147 U. S. 13
(1893), and followed, in the absence of special circumstances, in
many subsequent cases.
See, for example, Minnesota v.
Wisconsin, 252 U. S. 273,
252 U. S.
281-282 (1920);
New Jersey v. Delaware,
291 U. S. 361,
291 U. S.
379-380 (1934);
Arkansas v. Tennessee,
310 U. S. 563,
310 U. S. 571
(1940).
Arkansas responded to Mississippi's motion and moved that leave
to file be denied and that the complaint be dismissed. The motion
for leave to file, however, was granted. 400 U.S. 1019 (1971).
Thereafter, the Honorable
Page 415 U. S. 291
Clifford O'Sullivan was appointed Special Master. 402 U.S. 926
(1971). The Master's report eventually issued and was ordered
filed. 411 U.S. 913 (1973). [
Footnote 3] Arkansas' exceptions to the report and
Mississippi's response to those exceptions were forthcoming in due
course, and the case has been argued to this Court.
Prior to 1935, Spanish Moss Bend was on the thalweg, or primary
channel, of the Mississippi River. It has not been the thalweg,
however, since the Tarpley Cut-off was established about five miles
to the east in 1935 by the United States Army Corps of Engineers.
The present controversy focuses on what is known as Luna Bar on the
eastern bank of the old river at Spanish Moss Bend. The issue
simply is whether Luna Bar came into being by gradual migration of
the river westward, or, instead, by some avulsive process, also to
the westward. Depending on the resolution of this factual issue,
legal consequences ensue in line with established principles
conceded by the two States to be the law relating to riparian
accretion and avulsion.
Nebraska v. Iowa, 143 U.
S. 359 (1892);
Missouri v. Nebraska,
196 U. S. 23
(1904);
Bonelli Cattle Co. v. Arizona, 414 U.
S. 313,
414 U. S.
325-327 (1973). These principles need no reiteration
here. It suffices to say that, if Luna Bar was formed by accretion,
this litigation is to be resolved in favor of Mississippi, and,
contrarily, if Luna Bar resulted from an avulsion, the suit is to
be resolved in favor of Arkansas.
Upon our independent review of the record, we find ourselves in
complete agreement and accord with the findings of fact made by the
Special Master. [
Footnote 4]
Report
Page 415 U. S. 292
34. We therefore affirm those findings, overrule Arkansas'
exceptions to the Master's report, confirm that report, and, in
general, accept the Master's recommendations for a decree.
We deem it unnecessary to outline at length the evidence
adduced, or to reproduce here the detailed analysis of that
evidence made by the Special Master. We note only that the dissent
would regard the case as close because of three factors: (1)
certain testimony as to ancient trees on Luna Bar indicated by the
presence of three stumps that could not have lived and died there
in the last 100 years, (2) some testimony as to soil on the bar
"not compatible with the soil that would result from accretion,"
post at
415 U. S. 298,
and (3) the bar's "hard core . . . elevation,"
post at
415 U. S.
299-300, that coincides with the elevation "on the
adjacent Arkansas bank." These factors, in our view, would be
pertinent except that they reflect only the approach and testimony
of Arkansas' witnesses, and overlook pertinent and persuasive
testimony to the opposite effect from expert witnesses for
Mississippi. The latter are the witnesses that the Special Master
credited, as do we, in the evaluation of the conflicting
testimony.
Arkansas conceded that Mississippi made out a
prima
facie case of accretion. Tr. of Oral Arg. 19. In addition, the
Master was impressed with the total absence of
Page 415 U. S. 293
any known historical reference to an avulsion in this area that
changed the course of the river by the necessary half mile. And the
dissent acknowledges, post at
415 U. S. 295,
as to how "Mississippi made its case," and concedes that the
testimony "gives force to the argument that accretion formed Luna
Bar," that there was testimony that, in the Mississippi River,
"avulsion would shorten the course of the river, while here the
course was lengthened," and that Mississippi's experts knew of no
instance "where avulsion had worked the way Arkansas claims."
So far as the ancient tree stumps are concerned, Mississippi
presented evidence from forestry experts that the forest on Luna
Bar was one predominantly of pioneer species with the expected
small accompanying, scattered areas of secondary and climax trees,
and with no tree more than 37 years old. This is consistent with
the first appearance of growth upon Luna Bar depicted in early
Mississippi River Commission charts showing the bar to be barren
and without vegetation. Report 10. Mississippi's position as to the
three particular stumps was that they had been washed in by
floodwaters in preceding years; that one had moss on its roots, a
condition incompatible with growth in place; and that, at the point
where another allegedly was found in 1972, the elevation of the bar
was at least 10 feet above what it had been 90 years earlier. Thus,
the stump necessarily should have been deep in the undersoil of the
bar, and not on its surface at the time of its removal. Report
11.
The soil composition is purely a matter of conflicting
testimony, and we are persuaded by Mississippi's evidence. Deep
borings, of course, would be below the riverbed, and would be
expected to be consistent throughout the area on both sides of the
river. And, as noted above, charts of 1882 and 1894, admitted
into
Page 415 U. S. 294
evidence, show Luna Bar as a dry sandbar with no vegetation.
The claim of similar elevations, too, encounters strong and
convincing opposing authority. Dr. Charles R. Kolb, a highly
qualified expert for Mississippi, testified that his study
disclosed that the Arkansas bank, from the first comparative
recordings until fairly recent times, was about 12 feet higher than
Luna Bar. Report 15, 19. R. 354-357. And there is an absence of
levee formations on Luna Bar, as contrasted with the presence of
pre-1860 levees on the Arkansas bank.
We agree with the Special Master's evaluation of the evidence,
and conclude, as he did, that Arkansas did not sustain its burden
of rebutting Mississippi's conceded
prima facie case, a
burden the Arkansas court has described as "considerable."
Pannell v. Earls, 252 Ark. 385, 388,
483 S.W.2d
440, 442 (1972).
Upon our own consideration and our independent review of the
entire record, of the report filed by the Special Master, of the
exceptions filed thereto, and of the argument thereon, a decree is
accordingly entered.
It is so ordered.
[For decree adopted and entered by the Court,
see post,
p.
415 U. S.
302.]
[
Footnote 1]
See Arkansas Land & Cattle Co. v. Anderson-Tully
Co., 248 Ark. 495,
452 S.W.2d
632 (1970), a 4-3 decision of the Supreme Court of
Arkansas.
[
Footnote 2]
Mississippi's Constitution of 1890, Art. 2, however, reads, "up
the middle of the Mississippi river, or thread of the stream."
[
Footnote 3]
Other orders are reported at 402 U.S. 939 (1971) and at 403 U.S.
951 (1971).
[
Footnote 4]
Although the precedent is not binding in this original action
between the two States, it is not without interest to note that, in
private litigation, Luna Bar has been determined to be in
Mississippi.
Anderson-Tully Co. v. Walls, 266 F.
Supp. 804 (ND Miss.1967). Another private suit involving the
issue is the one mentioned above as pending in the Arkansas state
courts.
Arkansas Land & Cattle Co. v. Anderson-Tully Co.,
supra. Further proceedings in that litigation were stayed on
February 16, 1971, by the Chancery Court of Chicot County,
Arkansas, until final judgment in the present action. Special
counsel for the respective States here were counsel for the private
parties in the cited federal and state court cases.
MR. JUSTICE DOUGLAS, dissenting.
Luna Bar is today an island in the Mississippi River. Arkansas
on the west claims it is hers because the river as a result of an
avulsion moved west. Mississippi claims it is hers because Luna Bar
was created as a result of slow gradual accretion. The Special
Master found for Mississippi, and the case is here on exceptions to
his Report.
Page 415 U. S. 295
No one has a historical recorded account of what happened.
Mississippi made its case by use of experts who testified as to how
the Mississippi River usually performs. They testified that the
river at low water washes the concave side of a turn (this being
the side that marks Luna Bar) but that, during high water it scours
the convex side (that being Arkansas). That testimony gives force
to the argument that accretion formed Luna Bar, washing heavily
Arkansas land to form the island. Favoring Mississippi was other
testimony that, at least in the Mississippi River, avulsion would
shorten the course of the river, while here the course was
lengthened. Never did the experts know of an instance where
avulsion had worked the way Arkansas claims.
Opposed to these highly qualified experts were lay witnesses who
knew Luna Bar. They had located great trees that once grew there,
the age of the trees going back before 1800. Luna Bar therefore was
not recently created nor was it created within the last 100 years.
It had been there a long, long time. Moreover, the soil matched
Arkansas' soil, and the height of the land on Luna Bar was
comparable to Arkansas' elevation. The Arkansas case was further
bolstered by the theory that, in the 1870's the avulsive action
took place when the river returned to its old channel.
The Special Master stated in his report:
"I am aware that, as Special Master, it is not my function to
render a decision. My duty is to make a report containing such
review of the evidence as I consider justifies my findings of fact.
I do not consider that, to make the findings I do, it is necessary
to totally destroy the validity of Arkansas' contentions. The
burden of persuasion was upon Arkansas. Initially Arkansas conceded
that Mississippi
Page 415 U. S. 296
had met its initial burden, aided as it was by the presumption
that the change in the thalweg of the river was the product of
accretion. The quite special character of the reasoning of
Arkansas' witnesses leaves me unpersuaded that it has met its
burden of proof. I make clear also that I would come to this
conclusion even if the burden of proof was not on Arkansas, but was
on plaintiff Mississippi."
Report of Special Master 33.
The case is close, and if we were governed by the rule governing
district court findings when an appeal is taken, I would agree that
the Special Master's findings are not "clearly erroneous."
Heretofore, the Court has not considered itself limited in its
review of its Masters by the "clearly erroneous" test. [
Footnote 2/1] We said in
United
Page 415 U. S. 297
States v. Utah, 283 U. S. 64,
283 U. S. 89,
that the "findings of the Master . . . are justified by the
evidence"; and in
Kansas v. Missouri, 322 U.
S. 213,
322 U. S. 232,
that the Master's judgment "accords with the conclusions we make
from our own independent examination of the record."
And see
United States v. Oregon, 295 U. S. 1,
295 U. S. 29. It
has at times been argued that original jurisdiction should not be
taken, because of the waste of judicial time by this Court:
"In an original suit, even when the case is first referred to a
master, this Court has the duty of making an independent
examination of the evidence, a time-consuming process which
seriously interferes with the discharge of our ever-increasing
appellate duties."
Georgia v. Pennsylvania R. Co., 324 U.
S. 439,
324 U. S. 470
(Stone, C.J., dissenting). The majority opinion did not dispute
that claim, but gave special reasons why original jurisdiction was
necessary in that case.
Id. at
324 U. S.
465-466. The findings of the Special Master are, of
course, entitled to respect, and their weight will be increased to
the extent that credibility of witnesses is involved, as he saw
them and heard them, while we have only a cold record. Credibility,
however, seems to play no part here. The record
Page 415 U. S. 298
consists of maps and of testimony of witnesses. Those testifying
for Mississippi qualified as eminent experts. Those testifying for
Arkansas were in part experts and in part countrymen who for years
knew Luna Bar frequented it, and studied it. The experts of
Mississippi state a plausible explanation that bolsters the theory
of accretion. But the countrymen, with their physical evidence,
convince me that the Mississippi River acted in an unprecedented
way, found an old channel, and, in one convulsive operation,
invaded Arkansas, leaving Luna Bar an island carved out of
Arkansas. [
Footnote 2/2]
There is evidence taken from borings that the soil of the island
is not compatible with the soil that would result from accretion.
An expert, Dr. Clarence O. Durham, head of the Geoscience
Department of Louisiana State University, spent two days on the
island. He concluded that, prior to 1823, the date of the first
Federal Land Office Survey, the river had flowed west of the
island, but that, between 1823 and 1871, the channel at that point
was not divided. He reached this conclusion from an 1872 map
Page 415 U. S. 299
which showed an abrupt shift of the Arkansas western bank into
an abandoned prehistoric channel of the river. The island is the
hard base of an ancient day plug that dates prior to 1823. The
ancient cypress stumps on the Arkansas mainland and those on the
west side of the island are compelling evidence that the island and
the mainland were connected for some centuries. To say that the
island was formed by accretion is to use magic to make the ancient
cypress stumps on the island disappear. Those trees are of the
climax species; and the experts all agree that, where climax trees
appear, the land mass on which they grow is at least 150 years old.
The trees found on the high ground of the island were black walnut
and red mulberry. Those trees were there prior to 1800, which would
be impossible if Luna Bar was the product of accretion in modern
times. [
Footnote 2/3] The hard
core
Page 415 U. S. 300
of the island has an elevation between 133.2 feet and 133.5
feet; and the elevation on the adjacent Arkansas bank is between
132.2 feet and 139 feet. [
Footnote
2/4] Again, there
Page 415 U. S. 301
is a compelling inference that, while accretion may have added
some soil to the island, the high hard core of the island was once
connected with the mainland and severed from it by some abrupt and
violent action of the river.
Page 415 U. S. 302
DECREE
IT IS ORDERED, ADJUDGED, AND DECREED As FOLLOWS:
1. Luna Bar, depicted in Mississippi's Exhibits 1 and 2,
constituting, respectively, Appendix A and part of Appendix B to
the Special Master's report, and appended hereto and hereby made a
part of this decree, came into existence by accretion to Carter
Point and is, and was, a part of the State of Mississippi.
2. The boundary line between the State of Mississippi and the
State of Arkansas in the areas between the upstream and the
downstream ends of Tarpley Cut-off is as follows:
"In the abandoned bed of the Mississippi River between the
upstream end of the Tarpley Cut-off and the downstream end of
Tarpley Cut-off, as defined and identified in Mississippi's said
Exhibit 2. The courses and distances of the above-described line
are set out in said Exhibit 2."
3. The cost of this suit, including the expenses of the Special
Master and the printing of his report, have been paid out of the
fund made up of equal contributions by the State of Mississippi and
the State of Arkansas, and said fund has been sufficient to defray
all said expenses to the date of the issuance of the report. Any
costs and expenses that may be incurred beyond the amount so
contributed by the respective litigants shall be borne by the State
of Arkansas.
[
Footnote 2/1]
Fed.Rule Civ.Proc. 52(a) provides that findings of fact made by
district courts "shall not be set aside unless clearly erroneous."
It also provides that "[t]he findings of a master, to the extent
that the court adopts them, shall be considered as the findings of
the court." Rule 53(e)(2) provides that "[i]n an action to be tried
without a jury the court shall accept the master's findings of fact
unless clearly erroneous." But those Rules are applicable only to
"the procedure in the United States district courts in all suits of
a civil nature." Rule 1.
But we have never formulated such a rule when it comes to our
review of reports submitted by Special Masters whom we have named
in cases under our original jurisdiction. It seems inappropriate
that we adopt such a rule in view of the delicacy and gravity of
many of the issues in these contests between two sovereign States
or between the United States and one or more of the States. The
ultimate decision on the facts should rest with us, the sole
tribunal to which the resolution of the issues in this type of case
has been entrusted by Art. III.
In
Georgia v.
Brailsford, 3 Dall. 1, the Court, in a case under
the head of its original jurisdiction, impaneled a jury. And that
procedure, though soon abandoned, was followed in a few other
cases:
see 1 H. Carson, History of the United States
Supreme Court 169 n. 1 (1902).
In
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S. 734,
involving a boundary dispute, the Court said: "[W]e may ascertain
facts with or without a jury, at our discretion, as the circuit
courts, and all others do, in the ordinary course of equity" or
alternately "a commission of boundary" may be awarded.
In
Pennsylvania v. Wheeling &
Belmont Bridge Co., 9 How. 647, a commissioner was
appointed to hold hearings and report to the Court, Pennsylvania
having complained of the erection of a bridge across the Ohio River
at Wheeling.
While commissioners were appointed in the early years, the
practice this century has been to use Special Masters.
[
Footnote 2/2]
The Master found that Arkansas' proof failed to justify a
finding that there was an abandoned channel which the Mississippi
found again in the 1870's. The absence of independent evidence of
such a channel is not surprising, in view of the quality of the
maps made before the 1870's. For example, the Master attaches as
appendices to his report six maps of the area charted before the
1870's. All of them trace the outline of the Mississippi for
navigational purposes. But none are topographical maps which would
show the existence of an ancient, dry, low-lying channel on the
Arkansas mainland into which the Mississippi could divert. This,
however, does not show that such a channel did not exist, or refute
the physical evidence which Arkansas has mustered. Just as Arkansas
has not produced a pre-1870 map proving the prior existence of the
ancient channel, Mississippi directs us to no map to prove that
such a channel did not exist.
[
Footnote 2/3]
The Master stated that the testimony about vegetation and the
age of trees on the island was, "as far as I can tell, reasonably
comparable" to that presented in two earlier cases concerning the
origin of Luna Bar (
Anderson-Tully Co. v.
Walls, 266 F.
Supp. 804;
Arkansas Land & Cattle Co. v. Anderson-Tully
Co., 248 Ark. 495,
452 S.W.2d
632). The Master also stated:
"It was the position of Mississippi that various stumps found on
Luna Bar and Spanish Moss Bend had been brought there by flood
waters. Its position in such regard was sustained by the courts
heretofore considering the matter. I do likewise."
Neither of the earlier cases makes clear the exact extent of
testimony admitted, or precisely how it corresponds with the
testimony given before the Special Master in the instant case.
Arkansas, however, notes that
"evidence of the relic trees found on top of the island [was]
not discovered at [the time of the earlier litigation], and this
record is the only record of their existence."
Moreover, it is hardly true that the Arkansas court "sustained"
Mississippi's position that the cypress stumps found in Spanish
Moss Bend had been carried there by floodwaters. That court,
remanding the case to the lower court for further proceedings,
noted that the appearance of at least two of the stumps in
photographs tended to lend support to testimony that they had grown
in place. So did the designation of "cypress knees" and "cypress
stumps" and trees along the Arkansas shore near the mainland on
several early Mississippi River Commission charts. These
designations indicated that there was evidence of cypress stumps
many years before 1940, when it was contended that they had been
floated downriver and left at Luna Bar. 248 Ark., at 502, 452
S.W.2d at 637. Finally, the opinion of the District Court in
Anderson-Tully Co. v. Walls, supra, does not even mention
the cypress stumps. Therefore, as to the ancient relic stumps found
on top of the island and in Spanish Moss Bend, it would not seem
that we are forced to overcome the decision of any previous court
which has accepted Mississippi's theory about their origin.
On the other hand, Richard Proctor, who has lived in the area of
Luna Bar for 91 years, testified that he had fished around cypress
stumps in the river which had been there "as long as I been big
enough to know." Moreover, he testified that he found a mink in an
old cistern on the Bar, the existence of which is quite
inconsistent with the Point Bar migration theory.
[
Footnote 2/4]
The fact that an early Mississippi River Commission hydrographic
survey showed the elevation of Luna Bar to be somewhat lower than
that of the land on the west bank of Spanish Moss Bend, the
Arkansas side of the river, does not disprove Arkansas' position
that Luna Bar originated as a portion of the Arkansas mainland
which was severed by avulsion. Reference to Appendix A [omitted] of
the Court's decree, a topographic map prepared by the Army Corps of
Engineers, shows the rolling nature of much of the land adjacent to
the Mississippi River in the area of Luna Bar, and indicates that a
difference in elevation between two points would not be startling.
Moreover, it appears that, in 1874, between the time when Arkansas
claims the avulsion occurred and the time the Mississippi River
Commission conducted its survey, there was a flood in the
Mississippi which would have washed at Luna Bar.
See Arkansas
Land & Cattle Co. v. Anderson-Tully Co., supra, at 506,
452 S.W.2d at 639.