to the eastward, depriving the State of Tennessee of a small strip of its territory; that the changes made by the slower and the sudden change of the river were to be considered together, and the strip of land thus laid bare, lost to Tennessee by erosion, should be restored to it on the theory of reliction, by which submerged lands revert to their original owners. The basis for this contention is thus stated by Mr. Justice Pitney: 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 14 or 1 miles, with consequent narrowing of the neck of land opposite Dean's Island.1 In 1874 a map was made by Colonel Suter under the direction of the War Department, and was accepted by the States as giving the geographical situation as it existed in 1876, just as the Humphrey map was relied on for the situation as it existed in 1823. the courts The situation produced by the sudden change in the course of the Mississippi Litigahad been the source of much litigation in the courts of Tennessee, in which the State tion in had brought action as early as 1903 against one Cissna and others to restrain them of the from cutting timber upon those portions of the land claimed by that State, and for States. an accounting for the timber already cut; and thus to determine the boundary between Tennessee and Arkansas in a suit to which the State of Arkansas was not a party. In each of its phases the defendants denied the jurisdiction of the Tennessee courts and carried the case to the Supreme Court of the United States from a judgement of the Supreme Court of Tennessee, where, to quote the language of Chief Justice White in Cissna v. Tennessee (242 U.S. 195, 197), The judgment of the Supreme Court of the State not only decreed the lands to belong to the State of Tennessee in its sovereign capacity, on the ground that they were situated within that State, but gave a recovery for the amount of the timber cut before the bringing of the suit and also for the money value of the balance of the timber on the lands which had been cut and removed as the result of the modification of the injunction permitting that to be done.' It was admitted on appeal that a decision of the case between the State and private parties would determine the facts upon which the boundary between the two States was dependent, and that it would therefore determine the boundary between the States, which necessarily was a Federal question involving the interests of the Union. In the meantime, the State of Arkansas had filed its bill in the Supreme Court to have the boundaries between the two States determined by that tribunal. The justices of the Supreme Court were therefore unwilling to decide the question of boundary in an action to which Arkansas was not a party, or to find the facts in such an action which would necessarily decide the issue in the controversy between States where the Supreme Court had assumed jurisdiction. Mr. Chief Justice White, speaking for his brethren, therefore directed that the case on appeal be 'assigned for hearing at the same time and immediately after the coming on for hearing of the original boundary suit between the two States. And to the end that that hearing 1 State of Arkansas v. State of Tennessee (246 U.S. 158, 161-2). may be expedited, we say in addition, first, that if the facts in the boundary case be stipulated by the parties either by reference to the facts shown in this case or otherwise, both the cases will be taken on submission on printed briefs, if the parties are so advised; or second, if they are not so advised, upon an agreement and stipulation as to the facts in the boundary case, that case and this will be ordered advanced and assigned for oral argument at an early day.'1 In accordance with the suggestion of the Chief Justice, an answer on the part of Tennessee and a replication thereto on the part of Arkansas were filed and the cause of action was brought to hearing upon facts stipulated by the august litigants. In view of the decision of the Supreme Court in the leading case of Iowa v. Illinois (147 U.S. 1), decided in 1893, and the affirmance of that decision in Louisiana v. Mississippi (202 U.S. 1, 49), decided in 1906, Washington v. Oregon (211 U.S. 127, 134), decided in 1908, and the second of the same case (214 U.S. 205, 215), decided in 1909, holding that the mid-channel, the channel of commerce, or the thalweg is the line of boundary between riparian States in the absence of a special agreement modifying this principle of international law, it does not seem necessary or advisable to discuss the contention of Tennessee, advanced in the present case and contained in the holdings of its courts, that the boundary between the two States is a mathematical line equally distant between the well-marked banks of the river. Nor is it necessary to consider the case of Cessill v. State (40 Arkansas, 501), decided in 1883, in which the Supreme Court of Arkansas held the boundary to be a line along the river bed equally distant from the permanent and defined banks of the ascertained channel on either side, inasmuch as that case, and other cases invoked by counsel for Tennessee had, to quote the language of Mr. Justice Pitney,' for their object the establishment of a proper rule for the administration of the criminal laws of the State and were entirely independent of any action taken or proposed by the authorities of the State of Tennessee.' 'These decisions had', to quote again Mr. Justice Pitney's language, 'no particular reference to that part of the river bed that was abandoned as the result of the avulsion of 1876.' Indeed, as pointed out by the learned Justice, ' they dealt with parts of the river where the water still flowed in its ancient channel.' , 2 The court therefore was of the opinion that the Arkansas decisions invoked by Tennessee did not establish an acquiescence on the part of the former State in the contention of the latter in the sense in which that term was understood, defined, and applied in Rhode Island v. Massachusetts (4 How. 591, 638, 639), decided in 1846, and repeatedly affirmed and followed by later decisions of the Supreme Court. The really important contention in this case, which differentiated it from others involving avulsion, was that ' after the old channel ran dry, the owners of the banks and the bed should be restored to their own, according to the original boundaries fixed before the river changed its course or moved laterally in its bed, such lands being still susceptible of definite location.' 3 Standing alone, this contention might be accepted, but it did not stand alone, as counsel for Tennessee contended further, as stated by Mr. Justice Pitney, 'that since the avulsion of 1876 caused the old river bed to dry up, what is called "the doctrine 1 Cissna v. State of Tennessee (242 U.S. 195, 198). 2 State of Arkansas v. State of Tennessee (246 U.S. 158, 172). 3 Ibid. (246 U.S. 158, 168–9). trine of of submergence and reappearance of land" must be applied, so as to establish the 'The doc- If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it; or though the marks be defaced; yet if by situation and extent of quantity, and bounding upon the firm land, the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject doth not lose his propriety; and accordingly it was held by Cooke and Foster, M. 7 Jac. C. B., though the inundation continue forty years. Admitting the law to be as thus stated-and other authorities were cited in its behalf although that of the great Lord Chief Justice was sufficient-it plainly did not apply to the present case, in that it referred solely to a sudden change of the sea, which admittedly changed title to property, whereas, by the gradual change produced by erosion, the boundary line had shifted, so that the line between the States was to be taken as it existed in 1876, as changed by gradual process before the sudden change due to avulsion. Or, as Mr. Justice Pitney expresssed it : gence and reappear doctrine A reference to the context shows that the portion quoted is a statement of one The of several exceptions to the general rule that any increase of land per relictionem, or court sudden recession of the sea, belonged of common right to the King as a part of his holds the prerogative. It amounts to no more than saying that where the reliction did but to be restore that which before had been private property and had been lost through the inappliviolence of the sea, the private right should be restored if the land is capable of cable. identification. . . . Certainly it cannot be regarded as having the effect of carving out an exception to the rule that where the course of the stream changes through the operation of the natural and gradual processes of erosion and accretion, the boundary follows the stream; while if the stream leaves its former bed and establishes a new one as the result of an avulsion, the boundary remains in the middle of the former Avulsion channel. An avulsion has this effect, whether it results in the drying up of the old leaves the channel or not. So long as that channel remains a running stream, the boundary boundary marked by it is still subject to be changed by erosion and accretion; but when the water becomes stagnant, the effect of these processes is at an end; the boundary then becomes fixed in the middle of the channel as we have defined it, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores but as an ultimate effect of the avulsion. The emergence of the land, however, may or may not follow, and it ought not in reason to have any controlling effect upon the location of the boundary line in the old channel. To give to it such an effect is, we think, to misapply the rule quoted from Sir Matthew Hale.2 It is perhaps difficult, if not impossible, to make the meaning of the court clearer than it has, and yet it may nevertheless be said that, in effect, the court held that changes produced by gradual process, such as erosion and accretion, were to be kept separate and distinct from changes produced by violent processes such as avulsion; that one changed boundary, the other did not, and that where erosion or accretion had shifted the line before avulsion, the line was to be taken, after avulsion, where it had been left by erosion and accretion irrespective of the doctrine of submergence State of Arkansas v. State of Tennessee (246 U.S. 158, 174). un changed. Judgement of the court in favour sas. and emergence, which might apply between the private citizen and his State in accordance with the principles of municipal law but not between two States in accordance with international law. This latter distinction the learned Justice is careful to point out, saying that the disposition of land emerging on either side of an interstate boundary stream as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them.' 1 After citing cases in support of this view, he refers to the different rule of property existing in the contending States, saying: Thus, Arkansas may limit riparian ownership by the ordinary high-water mark; and Tennessee, while extending riparian ownership upon navigable streams to ordinary low-water mark, and reserving as public the lands constituting the bed below that mark, may, in the case of an avulsion followed by a drying up of the old channel of the river, recognize the right of former riparian owners to be restored to that which they have lost through gradual erosions in times preceding the avulsion, as she has done in State v. Muncie Pulp Co., 119 Tennessee, 47. But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located. Applying these views and speaking for a unanimous court, Mr. Justice Pitney' was amply justified, both in law and practice, to conclude that: (1) The true boundary line between the States, aside from the question of the of Arkan- avulsion of 1876, is the middle of the main channel of navigation as it existed at the Treaty of Peace concluded between the United States and Great Britain in 1783, subject to such changes as have occurred since that time through natural and gradual processes. (2) By the avulsion of 1876 the boundary line between the States was unaffected, and remained in the middle of the former main channel of navigation, as above defined. (3) The boundary line should now be located according to the middle of that channel as it was at the time the current ceased to flow therein as a result of the avulsion of 1876. Commis- (4) A commission consisting of three competent persons, to be named by the sion to be court upon the suggestion of counsel, will be appointed to run, locate, and designate appoint- the boundary line between the States at the place in question in accordance with the above principles. ed. (5) The nature and extent of the erosions and accretions that occurred in the old channel prior to its abandonment by the current as a result of the avulsion of 1876, and the question whether it is practicable now to locate accurately the line of the river as it then ran, will be referred to said commission, subject to a review of its decision by this court if need be.3 The decision in the boundary dispute, wherein the State of Arkansas was plaintiff and the State of Tennessee was defendant, was rendered on March 4, 1918. The decision in the case of Cissna v. Tennessee (246 U.S. 289), which had been postponed, followed seven days later, from which the following passage may be quoted from the 1 State of Arkansas v. State of Tennessee (246 U.S. 158, 175-6). a Ibid. (246 U.S. 158, 176). Ibid. (246 U.S. 158, 177). For a later phase of this case see State of Arkansas v. State of Tennessee (247 U.S. 461), post, p. 534. opinion of Mr. Justice Pitney, delivering the opinion of the court in that case upon appeal : reversal of a see It is a part of the law of interstate boundaries, that where a running stream forms Consethe boundary, if the bed and channel are changed by the natural and gradual processes quential of erosion and accretion, the boundary follows the varying course of the stream; while if the stream suddenly leaves its old bed and forms a new one, the resulting change decision. of channel works no change of boundary, which remains in the middle of the old in the channel although no water be flowing in it. Arkansas v. Tennessee, supra. A Tennescorrect application of this rule to changes in the Mississippi is necessary in order Courts. that proper effect may be given to the treaties and acts of Congress by which that river was established as an interstate boundary, and hence this is a question of federal law. The state court acknowledged the rule in theory, but departed from it in fact. Starting with the Humphreys map as showing the location of the banks of the river as they were in 1823, the date to which the earliest records related, and finding from the evidence that between that date and the time of the avulsion there had been gradual erosions from the Tennessee bank at the place where the land in controversy is situate, to an extent sufficient in the aggregate to increase the width of the river from a little less than a mile to between 1 and 1 miles, the court held that the subsequent emergence of the bed of the river at this place, consequent upon the avulsion of 1876, had the effect of pressing back the line between the States to the middle of the old channel as it ran in 1823, so as to restore to Tennessee what it held before the erosions from its banks. This result was reached by grafting upon the acknowledged rule as to boundary streams an exception deduced from the rule of the common law that lands once swallowed by the sea, if afterwards exposed by its recession, are restored to the former owner if they can be identified. As we have pointed out in Arkansas v. Tennessee, it is a misapplication of this doctrine to treat it as forming an exception to the established rule respecting the effect of erosion, accretion, and avulsion upon the course of a boundary stream. We conclude, therefore, that the court erred in awarding to the State of Tennessee a recovery of any land or damages for cutting and removing timber from any land lying without the limits of the State as defined in our opinion in Arkansas v. Tennessee, supra, being a line drawn along the middle of the main channel of navigation of the Mississippi River (as distinguished from a line midway between the visible and fixed banks of the stream) as it was at the time when the current ceased to flow therein as a result of the avulsion of 1876, and without regard to changes in the banks or channel that had occurred through the natural and gradual processes of erosion and accretion prior to the avulsion. It results that the judgment of the state court must be Reversed, and the cause remanded for further proceedings not inconsistent with this opinion. 79. State of Virginia v. State of West Virginia et al. (246 U.S. 565) 1918. of execution There is reason to believe that the members of the Supreme Court are heavy at Question heart when they think of the case of Virginia v. West Virginia, and that they are uncomfortable when it is mentioned in their presence; and the reader may admit becomes a feeling of this kind when staid and learned judges would not. For the case has acute. just made its ninth appearance, and Virginia is still awaiting its just dues, although it has a judgement in its favour which West Virginia cannot contest, but is unwilling to satisfy. |