Arkansas v. Tennessee (246 U.S. 158)

[Syllabus from pages 158-160 intentionally omitted]

This is an original suit in equity brought by the State of Arkansas against the State of Tennessee for the purpose of determining the location of the boundary line between those States along that portion of the bed of the Mississippi river that was left dry as the result of an avulsion which occurred March 7, 1876, when a new channel was formed known as the 'Centennial Cut-Off.'

The cause, having been put at issue by the filing of answer and replication, was brought on to hearing upon stipulated facts, pursuant to an intimation made by this court is Cissna v. Tennessee, 242 U.S. 195, 198, 37 Sup. Ct. 108, 61 L. Ed. 243.

The facts are as follows: By the Treaty of 1763 between England, France, and Spain, Art. VII (3 Jenkinson's Treaties, 177, 182), the boundary line between the British and French possessions at this place was established as 'a line drawn along the middle of the River Mississippi,' with consequent recognition of the dominion of France over the territory now comprising the State of Arkansas, and the dominion of Great Britain over that now comprising the State of Tennessee. By the Treaty of Peace concluded between the United States and Great Britain, September 3, 1783 (8 Stat. 80), the territory comprising Tennessee passed to the United States, its westerly boundary being described (Art. II) as 'a line to be drawn along the middle of the said River Mississippi.' It formed a part of the State of North Carolina. In the year 1790 North Carolina ceded it to the United States (Act of April 2, 1790, ch. 6, 1 Stat. 106). In the report made in the following year by Thomas Jefferson, then Secretary of State, and submitted to Congress by President Washington, the bounds of the ceded territory were described, the western boundary being 'the middle of the River Mississippi.' 1 American State Papers, Public Lands, p. 17. And by Act of June 1, 1796 (ch. 47, 1 Stat. 491), the whole of the territory thus ceded was made a State. By the Louisiana Purchase, under the Treaty of April 30, 1803 (8 Stat. 200), the territory comprising Arkansas was acquired by the United States from France. It was admitted into the Union as a State by Act of June 15, 1836 (ch. 100, 5 Stat. 50), its easterly boundary being escribed as 'the middle of the main channel of the said river.'

According to the stipulated facts, the earliest evidence concerning the location of the river at the place in question relates to the year 1823, and is set forth upon a map made recently by Major Humphreys, purporting to show the conditions as they existed at that time. The river flowed southward past Dean's Island on the Arkansas side, made a bend to the westward at or about the southernmost part of this island, and then swept northerly and westerly around Island No. 37 (Tennessee), a lesser channel known as McKenzie Chute passing between that island and the main Tennessee shore; the main and lesser channels met at the southwestern extremity of Island No. 37, and the river flowed thence southwesterly past Point Able, Tennessee, opposite which it turned again easterly and then northerly, forming what is known as the Devil's Elbow, and flowed thence easterly or northeasterly around Brandywine Point or Island (Arkansas), until it came within a distance of about two miles from the place where it started its northerly turn opposite Dean's Island; and at this point it turned again to the southward. It is agreed that in 1823 the river ran substantially as indicated upon the Humphreys map, and that between that year and the year 1876 the width of the channel, by erosion and caving in of the Tennessee bank south, southwest, and west of Dean's Island, along the mainland and Island No. 37, had increased from its former width of about a mile or less to a width of 1 1/4 or 1 1/2 miles, with consequent narrowing of the neck of land opposite Dean's Island. It is a matter in controversy between the parties whether during the same period there were accretions to Dean's Island and Plum Island, in the State of Arkansas, and to Island No. 37 and the shore below Point Able, on the Tennessee side. A steamboat reconnaissance of the river was made by Colonel Suter under the direction of the War Department in 1874, and a map of the place in question was prepared under his direction and is in evidence. There being no proof of material changes in the river between 1874 and 1876, this map, while not shown to be entirely accurate, is agreed to represent the general situation as it existed in the latter year.

On March 7, 1876, the river suddenly and with great violence, within about thirty hours, made for itself a new channel directly across the neck opposite the apex of Dean's Island, so that the old channel around the bend of the elbow (a distance of fifteen to twenty miles) was abandoned by the current, and although it remained for a few years covered with dead water it was no longer navigable except in times of high water for small boats, and this continued only for a short time, since the old bed immediately began to fill with sand, sediment, and alluvial deposits. In the course of time it became dry land suitable for cultivation and to a considerable extent covered with timber. The new channel is called, from the year in which it originated, the 'Centennial Cut-Off,' and the land that it separated from the Tennessee mainland goes by the name of 'Centennial Island.'

The cut-off and the territory affected by it are the same that are mentioned and dealt with in the cases of Stockley v. Cissna, 119 Fed. 812, 56 C. C. A. 324, State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437, and Stockley v. Cissna, 119 Tenn. 135, 104 S. W. 792. The State of Tennessee, in her answer, pleads and relies upon the first and second of these cases as judicial determinations and evidence of the boundary line between the States at the place in question. Their materiality and effect are matters to be determined.

Prior to 1876, notably around 'Island 37' and 'Devil's Elbow,' the bank on one side of the river was high and subject to erosion, the effect of the water against it; while on the opposite side the bank was a fiat or sloping shore, so that the width of the river was materially affected by the rise and fall of the water, being considerably wider at normal than at low-water stage.

The following questions are submitted for the determination of this court:

(1) Arkansas contends that the true boundary line between the States (aside from the question of the avulsion of 1876) is the middle of the river at low water, that is, the middle of the channel of navigation; whereas Tennessee contends that the true boundary is a line equidistant from the well-defined banks at a normal stage of the river.

(2) Arkansas contends that by the avulsion of 1876 the boundary line between the States was unaffected, and remained in the middle of the river bed which was by the avulsion abandoned, whether the first or the second definition of the middle of the river be adopted; whereas Tennessee contends that the line was affected by the avulsion to the extent indicated by the opinion of the Supreme Court of that State in State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437; that is, that the effect of the avulsion was to press back the line between the two States to the middle of the old channel as it ran previous to the erosions upon the Tennessee banks that occurred between 1823 and 1876.

(3) Tennessee contends that, irrespective of the question of accretions and erosions, it is impossible now to locate accurately the line of the river as it ran in 1876 just prior to the avulsion, and that therefore the line of 1823 must prevail as the boundary line between the States, where it has been or can be located accurately and definitely; whereas Arkansas insists that there is no real difficulty in locating the middle of the river in 1876.

Upon the determination of these points, the court is to appoint a commission to run, locate, and designate the line.

Mr. Caruthers Ewing, of Memphis, Tenn., for the State of Arkansas.

[Argument of Counsel from pages 164-166 intentionally omitted]

Mr. G. T. Fitzhugh, of Memphis, Tenn., for the State of Tennessee.

[Argument of Counsel from pages 166-169 intentionally omitted]

Mr. Justice PITNEY, after stating the case as above, delivered the opinion of the Court,