Durfee v. Duke

LOCATION: Alabama State Capitol

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 375 US 106 (1963)
ARGUED: Oct 24, 1963
DECIDED: Dec 02, 1963

Facts of the case


Media for Durfee v. Duke

Audio Transcription for Oral Argument - October 24, 1963 in Durfee v. Duke

Earl Warren:

Number 37, Gene Durfee et al., Petitioners, versus Julia E. Duke.

Mr. Ross.

August Ross:

Mr. Chief Justice, gentlemen.

This controversy had its inception about 1956 in the filing of acquired title suit in Richardson County, Nebraska is most quite title suits went, there was no big difference that involved.

However, the defense by the defendants of the property was without the jurisdiction of the court that is in the adjoining State of Missouri, it was river bottom ground.

The defendant was served with process and the defendant appeared in the Nebraska suit, specifically set up the question of the jurisdiction that is the contention that the ground was situate within the State of Missouri and therefore, the State of Nebraska did not have jurisdiction.

She offered evidence, she testified personally.

It --

Arthur J. Goldberg:


August Ross:

None, Your Honor.

Arthur J. Goldberg:


August Ross:

I understand there's no such contention.

And that there was a decision of the District Court of Douglas -- of Richardson County, Nebraska affirming the title of the plaintiff which was based on a tax deed and deeds from other individuals of record.

Then, the Missouri claimant, if I may refer to her as such, prosecuted an appeal to the Nebraska Supreme Court.

And under Nebraska procedure in an equity action, the trial is de novo.

And she has then a new and complete review of the evidence, on the record however, before the Nebraska Supreme Court and that Court affirmed the judgment of the Richardson County District Court, made fact findings and confirmed the convention of the District Court that the property was in Nebraska.

And I might say in that regard, that every court that has reviewed the evidence has concluded that this ground originally was in Nebraska, of that, they all made the determination that when Nebraska was admitted to the union on basis of evidence offered, the ground in dispute was in Nebraska as opposed to being in Missouri and if -- of necessity, is in one State or the other.

After the judgment was affirmed in the Nebraska Supreme Court and she sought no appeal from that judgment to this Court.

She went back across the river and then the Circuit Court, I believe, they call it, of the State of Missouri instituted precisely the same action, same parties, no dispute about, stipulated and found no (Inaudible), same real estate, no question about it, stipulate.

They raise precisely the same issue, ownership of the ground and the -- repeated the contention that it is in Missouri.

The case was removed to the Federal District Court for the Western District of Missouri and tried there before Judge Duncan and the defense of res judicata was asserted and the court took evidence and by agreement, all of the evidence which -- went into the Nebraska court was received by stipulation of having been previously prepared in the Nebraska appellate proceeding.

There was some offer of additional evidence but, in my opinion and consequential, it was matter to a forester who testified that a tree was cut on this ground and in his opinion the tree was of a certain age.

Well, it doesn't conflict with the ruling because the Nebraska court found that the ground -- the grounding question not only was in Nebraska, but it existed for a fixed period of time, it doesn't conflict with it.

And there was -- in this ground, I might state, is some one to two miles west and by west -- I mean -- I mean west, from where it was at the time Nebraska was admitted to the union.

That's just to give you an idea of the distance that the river had to move in order to move with it at the boundary.

So that it was our contention there and the court, although it did find it necessary to determine on it, it was our contention that once that boundary line was established, it was incumbent upon them if they contended that the ground was in Missouri to establish that that river moved from its initial point at the time Nebraska was admitted as the result of accretion as opposed to avulsion because as soon as you have the first avulsion, the boundary would remain where it was and the state boundary wouldn't change it but the court concluded that the ground in question was situated west of a point where the river was established and didn't have to determine the other feature as to how the river got to where it was since it was already west of that particular point, the ground was in Nebraska and consequently, it didn't come to any conclusion as to how the river changed, that is whether by accretion or avulsion up to a point that is referred to in the pleadings and in the briefs, as what they call the old shoot.

So, I mentioned that so that there was really no dispute as to the fact that there's going to lease at one time was in Nebraska and the Nebraska court held that it is still in Nebraska.

Referring en banc in --

Potter Stewart:

The -- the boundary between the two States, Mr. Ross, is the Missouri River at that point.

August Ross:

That is correct, sir.