Mississippi v. Louisiana

PETITIONER:Mississippi
RESPONDENT:Louisiana On exception to the Report of the Special Master
LOCATION:Pittsburgh Party Headquarters

DOCKET NO.: 11 ORIG
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

CITATION: 350 US 5 (1955)
ARGUED: Oct 10, 1955
DECIDED: Oct 17, 1955

Facts of the case

Question

Audio Transcription for Oral Argument – October 10, 1955 in Mississippi v. Louisiana

Earl Warren:

The State of Mississippi versus the State of Louisiana.

Mr. Stewart.

Ashton L. Stewart:

May it please the Court.

This is a boundary dispute between the States of Mississippi and Louisiana.

The dispute actually is made up of two separate areas involving two separate disputes.

The first one is what has been spoken of in the trial and in the briefs as a Diamond Island Towhead area.

I believe I have some charts here from the offerings which will demonstrate more forcefully than what I can say the point at issue.

The Mississippi River in the 1860s that’s flowing in this manner, down here, originally as it’s probably straight but the point here spoken of is Diamond Point was gradually built and built it — built out of here.

And somewhere between 18 — back in 1866, there was an avulsion that took place that is the water cut itself a new channel through here and left this tip out in front.

Of course, under the law, the avulsion did not change the boundary with reference to the ownership of this particular island that remained in Mississippi.

Now, the question here in this particular dispute is where shall that boundary be?

The — this Court in Arkansas versus Tennessee in 1918 had this to say with respect to boundaries that are in running streams between states.

It is said it’s simply beyond the possibility of dispute that whenever a boundary is in a running stream and that stream is moved by the processes of erosion on one side and accretion to the other that the boundary continues with the stream and is not left behind.

In that case, the question there involved was the exception to that general rule, which is the case of an avulsion when the channel suddenly takes another course and leads or abandoned its former course.

In that case, the Court went on to say that in the case of an avulsion, the channel remains in the former stream and continues to remain there and to be moved by the processes of erosion and accretion so long as that old stream remains a running stream.

That is the point, the interpretation of that very language here.

The Special Master has cited the case of Arkansas versus Tennessee in his opinion and he has read into the language there that since the thalweg or the deepest portion of the channel is what is meant in the — all of the jurisprudence of this Court as to where the boundary would be that when this Court used the word so long as this old channel remains a running stream, the Special Master has added to those words that so long as that is a running stream at low water or it seems to me that he has added additionally and is not subject to navigation at low water.

In other words, the crux of this case is what do the word “running stream” mean?

It is demonstrated, I would say very forcefully by this particular point here which was the point up stream from the island that the Master recommended be fixed as the upstream end of the boundary that is going to the main and the old channel.

This was — this chart here was made by Suter’s, chart made in 1874 from a reconnaissance of the river.

Now, our position is that if this remaining running stream and if this, the deepest portion of this old channel, the thalweg mended or was moved by the processes of erosion and accretion.

By then, this Court has already stated that that boundary was moved.

I believe we can better demonstrate by the next chart.

This is an excerpt from a Mississippi River Commission survey, different in some respect from the Suter reconnaissance.

This is the identical same area, four years to six years later.

This chart was finished on a survey made by the Mississippi River Commission during the years 1878, 1980.

It obviously showed a channel, still running there to the mouth of the island.

It obviously showed that some portion of Louisiana here has been built out.

We have superimposed on this chart since the Master has decided this location of the boundary where it should be at the time that low water first ceased the flow to that old channel and this is it in red line.

It is clear that that red line goes across land.

Ashton L. Stewart:

Yet, the channel has still moved on and is still in existence here at the time of this survey in 1878 and 1880.

To get to the point of issue here, what land is being part of that, we believe that this chart will better demonstrate that.

I can locate here the last remnant of this little island that is right in there.

Now, of course, the Mississippi River through building on this right bank of the Mississippi had pushed on down here.

This chart is in 1937-1938 and it has pushed on much further.

We used it so the Court would not become confused for the channel is still here too, down south of this particular bank.

The Special Master held that this point S was out here, some mile and a fraction upstream from the vast head of the island as was shown on this survey made in 1878-1880.

The Master has projected this line around here and then projected it down across the accretion this way.

And it is our contention that that line has been erroneously placed and it should be at the — in the last channel when the water ceased to flow and there was no longer a running stream around that island.

And if that be so, this is where Louisiana suggests that the line should be here, the streamline here.

This therefore under this particular phase of the case is the land in dispute insofar as the record is now concerned.

Originally, I might say that when this suit was first filed and accomplished in much greater area of land, completely around that way, I believe all the down here of many, many thousands of acres but by stipulations, it has been reduced to this point and the other point that I will discuss shortly.

Now, we say that a running stream continues to be a running stream —

John M. Harlan:

Could I ask a question?

Ashton L. Stewart:

Yes, sir.

John M. Harlan:

(Inaudible)

Ashton L. Stewart:

So long — insofar as Diamond Point is concerned, yes, sir.

John M. Harlan:

(Inaudible)

Ashton L. Stewart:

Well, if it please the Court, I believe I can better demonstrate it here.

Diamond Point is here.

That has been admitted by Louisiana as being in Mississippi.

The island was admitted by Louisiana as being in Mississippi.

We are talking about the accretions that came in and formed to this right bank here.

And that is the part that is left and that portion of the case which we speak of as the Diamond Towhead area and why that particular name, I know not.

That’s the way it was — has been spoken of historically and it’s shown in that manner on old many charts and it was used, been given that name during a hearing and still being used in all the briefs.

In other words, the Diamond Point, Louisiana admitted that it was a point broad that was built out from Mississippi.

It is that time included at trial.

Subsequently, the avulsion took place and then subsequently again, this channel built on down here moving this obvious point on the way completely as it was demonstrated by this next chart.

Is the Diamond Point at south or the north of that map that you just turned onto?

Ashton L. Stewart:

This is north, sir.

Yes.

Which is — which is (Inaudible)

Is — is that — the figure here is the Diamond Point.

Ashton L. Stewart:

This is Diamond Point.

It’s not — not the (Inaudible) at all.

Ashton L. Stewart:

They’re here — here are the outline of Diamond Point after the avulsion which cut off this little island here.

But the avulsion pushed — pushed that out.

Ashton L. Stewart:

Yes, sir.

But was that — the Diamond Point before the avulsion was there, the land —

Ashton L. Stewart:

That’s right, sir, and is still spoken of as Diamond up.

You — you admit that before and as I understood you, you were saying that so far as after the avulsion then the Diamond Point was in Mississippi at that time?

Ashton L. Stewart:

We say it was always in Mississippi.

(Inaudible) had stayed there because of avulsion.

Ashton L. Stewart:

Yes, sir.

Yes.

But then, do you claim that that’s part of the North by virtue of — in — with (Inaudible) at that time?

Ashton L. Stewart:

No, sir.

That’s an avulsion in that land, remained in Mississippi, we still stipulate it in this case.

There’s no question about that.

It’s the question of where the boundary would be when the current ceased to flow in the channel that went around the abandoned channel, that’s the question.

This Court has said it should be where it was when the water ceased to flow and there was not a running stream.

The Master said that it is not a running stream when it is not running at some low water, some particular state of low water despite the fact that it may run as a part of a river in every other state.

And we say despite the many holdings of — in numerous cases of state courts here in this United States, I found none from this Court that a — a stream need not be a continuously running stream.

It can be periodic.

It can be sometimes dry in order to continue to be a running stream.

I have cited from 12 different states here, I was unable to find any other adjudication on that point that the — the waters flow at least periodically.

It’s still a running stream and the flow of water may not be constant is still a running stream.

Containing running water most of the year is still a running stream.

That flow of water allowing a regulate water course is intermittent does not affect its character as a water course.

But it’s not necessary that there be a continuous flow.

Ashton L. Stewart:

The stream did not lose its character as a natural stream because in periods of small rainfall and the water flowed in it.

Those states are scattered over this United States and they are all to the effect that it has no criteria to be a running stream that they are not — that there be periods of dry, dryness when no water flows or intermittent flows.

Earl Warren:

Are those — are those decisions related to a thalweg?

Ashton L. Stewart:

Thalweg, sir, in my appreciation, they’re not related to a thalweg, specifically no, sir.

But any running stream will have a thread or a deep portion, a thalweg in my understanding, interpretative into German means, a valley way.

And the valley way is where the — this Court has held the boundaries located when a running stream forms a boundary between states.

Earl Warren:

Well, do the — you say that these state decisions are not related to a thalweg?

Are there not decisions of this Court that determine what kind of a stream it — it must be to have a thalweg?

Ashton L. Stewart:

I — I don’t believe there are —

Earl Warren:

Do not — do not the decisions of this Court hold that — that thalweg is the navigation channel?

Ashton L. Stewart:

Yes.

That would be wherever —

Earl Warren:

And how do you — how do you distinguish those from your situation here?

Ashton L. Stewart:

Well, I would say that insofar as the necessity or requirement that there’d be a thalweg be concerned that is obvious even from this chart that there was a thalweg in there, in this whole abandoned channel.

This chart was made from the same — well, it’s possibly one-third of isolation above low water, mean low water as I recall it.

So, that’s a state would — grown up to say 43 feet above mainly low water — main low water for some particular year.

This one-third is approximately only 14 feet and for many other great portions of the rest of the year, you would have say 30 feet of water there.

Obviously, it can be navigated.

It could be navigated at any time that there was sufficient water to ordinarily provide the navigation and there was sufficient water during many periods of this particular year when this chart was made because this was only one-third of isolation.

It shows water in there.

And for the other two-thirds of the isolation, which was to be spread over the year, the rainy seasons, why it would be subject to navigation and therefore, of course sir, it would have a thalweg and that would be the boundary.

The point that I made with reference to the state decisions is that it does not cease to be a running stream with a thalweg to say just because there was a month or a day or several months that no water run in the channel.

Earl Warren:

That’s what I was trying to get at.

Does the — do the state courts say that it does not cease to be a running stream with the thalweg?

Ashton L. Stewart:

Well, they have never —

Earl Warren:

You — you —

Ashton L. Stewart:

— mentioned the word thalweg.

Earl Warren:

You said that just a moment ago though, with the thalweg you said.

Ashton L. Stewart:

Well, I said that that they have never mentioned, but it is my opinion that any running stream that is navigable will have a thalweg before.

That is the definition by this Court, or what a thalweg would be.

Ashton L. Stewart:

It would be the deepest part of the channel where navigation would usually travel —

Earl Warren:

Could it have two?

Ashton L. Stewart:

Sir?

Earl Warren:

Does it have two thalwegs?

Ashton L. Stewart:

I could conceive that, yes.

Felix Frankfurter:

Not at the same time?

Ashton L. Stewart:

Not the same time.

Earl Warren:

That’s what I mean here.

Ashton L. Stewart:

That’d be some —

Earl Warren:

I mean, at the same time.

Ashton L. Stewart:

A choice if the — the steamboat people would take all of the — the navigable people would take and that would be the valley way.

It — it is determined by this Court on many occasions that it is the main channel that would be the choice in case there were more than one or two, more than two.

Our point simply is that insofar as this Court’s decision in Arkansas versus Tennessee is concerned, where it had an exact situation such as this that that case is binding and it should be followed because it’s bounded in logical reasons, because if for example, when you’re going to fix the boundary of a stream at some time, some particular space of low water or intermittent flow are then you are going to abandon this proposition that this Court has said was so firmly fixed could not be this unsaid and that is that if a boundary is in a running stream, and that stream moved because of the processes of erosion and accretion, that boundary follows a stream.

And therefore, we say that as long as this channel remains a running stream, it was subject to erosion and accretion.

That’s what causes erosion and accretion, the force of the water and that it did move from its old place where it was in 1874 according to this previous chart to this particular point here.

William O. Douglas:

This water occasionally run where you take the line (Inaudible)

Ashton L. Stewart:

Now sir?

William O. Douglas:

Just to view what’s the difference between you and (Inaudible)

Ashton L. Stewart:

Well, the lines on this next chart, I should say in its explanation of that, the Master has held here that Mississippi — contention is here and that was where the thalweg of the channel was when the water pre-ceased to flow at low water.

We contend that it should be here of the eastern end of that channel shouldn’t be here because that was where the water last ceased to flow.

And it ceased the flow approximately some time after the 1878 chart.

Then, the remainder of this is as a result of the division of accretion, whoever owns the land or fronts on where there are accretions, their processes and theories under which they are divided and this line here certainly goes across the accretion bars and this was theirs also.

But the main point is where would be — where would that old channel be as it went around that whole island and perhaps it’s better demonstrated from here as to that.

If this old channel is here as we contended to be because there is an old channel there and it’s still on — still flowing is obviously there because there’s water there.

This is an official chart of Mississippi River Commission and this is where the Master thought that the water ceased to flow at low water, at least low water.

Well, at this particular point, that would be Louisiana land here.

If our position is correct, it would be Mississippi land here, if Mississippi is correct.

And there is where the main body of those accretions were formed in here, right there because the river by now is over this location has washed back this way.

Where is the area that’s in dispute?

Ashton L. Stewart:

They think the old shore lines are along here.

Ashton L. Stewart:

This is where Mississippi held, it should be where water ceased to flow at the first low water and this — this is the point where Louisiana says it just ceased to flow.

The water was no longer a running stream there.

These are the accretions here, sir, that are in dispute and they belong to this area between here.

Felix Frankfurter:

What’s the equation?

Ashton L. Stewart:

About 4000 acres.

Felix Frankfurter:

What for is the land for use for now?

Ashton L. Stewart:

Well, it’s being used for grazing timber and had been in numerous (Inaudible) leases on it.

That’s (Voice Overlap) —

Felix Frankfurter:

Just the milk and the coconut, isn’t it?

Ashton L. Stewart:

That’s probably is the milk and the coconut.

(Inaudible)

Felix Frankfurter:

It’s quite a study to turn oil and milk — coconut milk.

Where is — where is the river on that map now?

Ashton L. Stewart:

Well, the river, sir, it’s around here, over here —

I see.

Ashton L. Stewart:

— and through here.

This is — this is old Diamond Point here.

In 1933, they made a shoot cut-off or rather a cut-off (Inaudible) Mississippi River in.

The Commission, they cut it through here and you can see that it’s just beginning.

It’s just beginning to take all of the — the flow of the river.

That brings about the next point in this Diamond Island Towhead area.

(Inaudible) prior to the avulsion of 1861 —

Ashton L. Stewart:

Between 1964 and 1966.

Prior to the avulsion (Inaudible) Mississippi’s avulsion in it’s territory (Inaudible)

Ashton L. Stewart:

Diamond Point, sir, Diamond Point, prior to the avulsion.

Why do you restrict that as to all the land in dispute?

Ashton L. Stewart:

Well, that would be an improper statement, sir, because the river meanders back and forth.

At one time, Mississippi owned it, another time, Louisiana owned it.

That’s because of accretion.

Ashton L. Stewart:

Depending on the processes of accretion and erosion.

It was — well then, at — at the time (Inaudible)

Ashton L. Stewart:

Yes.

This is the —

(Inaudible)

Ashton L. Stewart:

Before the erosion, the line, this would be up here and taken into the island (Inaudible)

Never demonstrated by (Inaudible)

Ashton L. Stewart:

By this particular chart.

It’s in here.

What’s that line (Inaudible)

Ashton L. Stewart:

Well, it means so far, yes, sir.

(Inaudible) as the result its presented (Inaudible)

Ashton L. Stewart:

I would think so.

No, sir, because the — this particular stretch of the river —

(Inaudible)

Ashton L. Stewart:

Well, the — this particular portion of the river is a very active portion insofar as those processes are concerned.

Originally sir, the — this government township sections were down in here, on Louisiana.

I understand that —

Ashton L. Stewart:

That part where it built —

— but by a process of the accretion, it came to be in Mississippi?

Ashton L. Stewart:

Yes, sir.

That’s right.

Was there at the time of the avulsion?

Ashton L. Stewart:

This — this land was here at the time of the avulsion, yes, sir.

And everything that has taken place since then has been used in the change made by the avulsion?

Ashton L. Stewart:

No, sir.

Changed the course of the river?

Ashton L. Stewart:

Changed the course of the river, yes, sir, by the processes of erosion and accretion because this particular point meanders out and cuts off all except that little tip of the top there and goes over here.

There’s been no accretion in Louisiana, north and west of the original river channel prior to the avulsion?

Ashton L. Stewart:

You mean in here, sir?

Yes.

Ashton L. Stewart:

No, sir.

That was a dead channel.

And — and that — that is now recognized as Louisiana (Inaudible)

Ashton L. Stewart:

Oh, north and west of that, yes, sir.

There is no dispute here that the channel insofar as this is concerned because it’s beneath north like that, no dispute that that channel is in that old water up to about here as you can see.

And then, the dispute starts that Mississippi says that even though this bar built down that way that nevertheless that bar built after the phrase, low water flowed through there.

And even though it was built, this bar here was built by accretion to Louisiana shore but nevertheless, it was built after the first low water ceased to flow that therefore that’s Mississippi there.

Accrued through to it instead of Louisiana?

Ashton L. Stewart:

Yes.

They — they say that it’s accrued.

I would say — it has to say following that accrue — accrued to the line and not the land because they have to admit that all of this side of that line is Louisiana.

That of course violates the principle that this Court has so strongly adhered to, that if the channel — if the boundary or thalweg is in a river and that river changes by erosion and accretion that the boundary changes with the river.

And how can you freeze a boundary up here on dry land if you are going to continue to so hold that?

And of course, this Court has held at so many times and it’s so logical in its early review, it followed all of the European countries on that because it’s the great right to the water in front it.

Felix Frankfurter:

Mr. Stewart, did you tell the Court as you did on there, what is the status of the territory was — included territory was between — at the time of the avulsion and at the time of the present (Inaudible) that drawing?

This is relevant, the very recent, is that true?

This question of dispute to take from where?

Ashton L. Stewart:

Well, this present —

Felix Frankfurter:

When did this — when was the specific claim when you were not the claimant.

Ashton L. Stewart:

This present dispute goes over the years of the record.

Felix Frankfurter:

When was it — it begins when?

Ashton L. Stewart:

I believe way beyond 1900 when the —

Felix Frankfurter:

As long as the oil was discovered?

Ashton L. Stewart:

Yes, sir.

Because in those days, they were —

Felix Frankfurter:

They never came before (Inaudible)

Ashton L. Stewart:

No one did know, sir.

Felix Frankfurter:

Well, on the dispute, was it a lively reenacted (Inaudible)

Ashton L. Stewart:

Well, there were two change of title, one from Louisiana and one from Mississippi.

They were —

Felix Frankfurter:

They have given a state tax.

Ashton L. Stewart:

Both in Louisiana and in Mississippi.

Felix Frankfurter:

The oil has laid dormant since the avulsion.

Ashton L. Stewart:

Yes, sir.

Oh well, I shouldn’t say lay dormant because it has been litigated over the years and the record shows that —

Felix Frankfurter:

That’s what I want to know.

It was litigated?

Ashton L. Stewart:

Yes, sir.

The last litigation commenced in 1937 in Mississippi courts.

Prior to that, there was —

Felix Frankfurter:

(Inaudible) private landowners?

Ashton L. Stewart:

Yes, sir.

(Inaudible)

Ashton L. Stewart:

Well, it commenced on the basis that the — or claiming from Louisiana a title to this last litigation.

He did live in Mississippi.

So, the Mississippi owners of this — had the Mississippi titles, they sued the Louisiana owners who were residents of Mississippi in the Mississippi court on an injunction on the theory that we’re going to enjoin from litigating over in Louisiana, because the Louisiana owners had sued the Mississippi people in attempts of land over and — timber over in Louisiana and it was just a great number of lawsuits.

The Louisiana owners were attempting to recover in trespass for cutting timber on this area here and the Mississippi owners caught the — Louisiana owners in Mississippi and got an injunction suit on them.

We have mentioned some of those here in our briefs.

The Mississippi Supreme Court held that we and it was up to that Supreme Court about four times between 1937 and the early years after the war.

That Court finally adjudicated that they only spoke of the island in it — in the decision, but the litigation was between the people who were on out in the south of the island and the Mississippi people here, whether the accretion to certain sections, you can see some of the lines here.

And of course, the decision was factual, going on — on theory that this line and — at some other reasoning time would not be when the water last ceased to flow in that channel.

The expert who testified for Mississippi in that particular case had testified that in his opinion, he thought the boundary should be where the water, just before 50% flowed on one of the other channels and we speak of it in our brief as the 50% theory.

The — that particular statement was not — his evidence was not covered in the report of the Supreme Court of Mississippi, but it affirmed the — the decision of the chancellor in Mississippi and the chancellor’s report based it on that theory of this particular man.

They first started this lawsuit on that theory.

We say on it, what we call — they thought that the boundary should be when 50% of the water started crossing — more than 50% of the water started crossing down the new channel.

It’s been our opinion and position all along that the case of Arkansas versus Tennessee was conclusive and that is that it is only when the water ceased to be a running stream, and that it is still a running stream even though at some stages it may not be low water going through that channel.

Earl Warren:

When did each of these states started — start to tax that land?

Ashton L. Stewart:

Before 1900, sir —

Earl Warren:

Both states did?

Ashton L. Stewart:

Yes, sir.

Ashton L. Stewart:

More or less, we have in the record.

I believe I pointed out in the early brief of Louisiana that there needn’t be afraid of the record because so much it involved such as that.

They have volumes of deeds and tax assessment rules showing that both states were taxing the same land.

And both States were claiming titles and the man who had a good title had titles in both states.

I owe that particular —

Felix Frankfurter:

Both states had and I suppose neither got it.

Well, I — I’m sure that both got it, sir, because —

Both got it?

Ashton L. Stewart:

There weren’t too many taxes because most of them paid the taxes.

Felix Frankfurter:

Paid what?

Ashton L. Stewart:

Because —

Felix Frankfurter:

A very unusual (Inaudible)

Hugo L. Black:

Both collected from the same man?

I can understand that —

Ashton L. Stewart:

Yes.

Hugo L. Black:

— if I have two change of titles.

Ashton L. Stewart:

Actually, from the same man took the change of title, yes, sir.

The evidence will show that.

I have a — that particular phase is out in the case because the Special Master has held that it was too much of that and so therefore no one has exclusively possessed and the State of Mississippi is not accepted to that recommendation.

So, the next problem, if there are no other questions with reference to this particular old channel here when water last ceased to flow involved actually the same legal point and that is where shall the channel be fixed on the southerly side of those accretions?

Remember that the channel was north of Diamond Point, nesting the Diamond Point was here.

That same channel used to be up here and flowing around here.

And then after the avulsion, it flowed around here and has had meanders there and to here.

And our point is, that so long as this channel has a running stream in it, and is subject to causing the processes of erosion and accretion and subject to cause this land or this channel to meander while the boundary remains an active boundary there.

The Special Master held that when the water first ceased to flow in this channel here, at low water that the boundary has been became fixed, despite the fact that this channel may have meandered on down considerably, the Master spoke of a third of a mile.

I believe it’s a third to half a mile on some of the evidence that has meandered on down here.

In other words, we can see that from the Master’s line here that he stopped in the thalweg of this old lane Mississippi, goes over and then come down this old channel which he says was abandoned when the first low water flowed through there and then goes up.

He does not take it through and still in the old channel which we say continues to flow and we believe is forcefully demonstrated by two things here.

First, the position of the Mississippi express clause or on the testimony that the water ceased to flow in here for the first time in 1939, the Master states that it ceased to flow in there.

I’m trying to quote exactly his words at least by 1940.

Ashton L. Stewart:

I take it that means the same thing.

We produced a photograph which showed that channel here in 1939.

We had the witnesses mark it.

I hope Your Honors can see it.

This is the old channel here, has the cut off here.

(Inaudible)

Ashton L. Stewart:

The artificial cut-off right here made in 1933.

It does not show all of this upper portion here, but this channel here, right here is this channel here.

We submitted at that time that that was quite some channel and quite some river to have ceased to flow in the language of this Court and become stagnant.

(Inaudible)

Ashton L. Stewart:

It was taken as my recollection as not flood water.

It was so testified, sir.

We further offered in evidence the water stages taken by the Mississippi River Commission for the year 1953 and had identified by one of their engineers who was an employee of Mississippi River Commission who testified for them in a private capacity that he took the water stage to the — when water was ceased to flow in here at a stage of the river at 16.2 feet.

When water was in this river here, 16.2 feet, it did not flow in this channel across here.

But when water rose above 16.2 feet, it did flow in here.

In accordance with this information here form Mississippi River Commission as to the depths of the water there, we find that this old channel here, even in 1953 and at the time we tried this case is with the latest information.

Flowed commencing on February, the 18th and 19th continued for the rest of February, all of March, all of the April all of May and through June the 17th.

The highest that the water got at any time of any portions of the river was 33.52 feet.

So, it is obvious that the difference between 16th in the fraction of feet is 30 feet, it had that flow in there.

Now, of course, it was testified that 1953 was a relatively low water flow, because as this information is here to the effect that flood water is at 43 feet.

In other words, it was still flowing through here through this old channel for — about four months of the year 1953, and it was considerably less than the 43-foot flood stage as high as three fifths and 33 in a fraction feet.

We also had much evidence in the record to the effect that since the Master’s had fixed the channel here, having ceased to flow that it had meandered some 1400 feet, continued on meandering.

Therefore, the processes of erosion and accretion were in full effect.

That, we submit will take care of the boundary around the island and will divide up the accretion because all of this was in Louisiana, but the dispute is between these two lines and there’s no dispute on this side of the channel of the island.

In summary, I would just want to say on this particular part of the case, that the evidence which cannot be again said that there was a flow in that channel, as this particular chart of the Mississippi River Commission.

It was a survey.

The — there was no evidence that disputed this.

The theory that the Master got away from that was that no low water was flowing through that channel at the time of this survey, but it would be a considerable flow of much water through there subject to navigation at the time this chart was made since this was only at one-third of isolation above low water.

And therefore, it was obviously and according to the — the data that went with this chart, obviously that there was a running stream there and it’s obvious that that is what caused this stream to move over from this particular line where the water ceased to flow and place of low water.

John M. Harlan:

(Inaudible)

Ashton L. Stewart:

Well, the record is without any question, sir, the Diamond Point had gone on and that all of these accretions were to the right bank.

That’s — that’s Louisiana, the right rescinding bank.

This was never disputed that this was Louisiana here.

John M. Harlan:

(Inaudible)

Ashton L. Stewart:

Sir?

John M. Harlan:

I said I thought that wasn’t disputed in an answer (Inaudible) as to your contention that the accretions were all from the Louisiana bank.

Ashton L. Stewart:

I don’t quite understand it all.

I’ll answer it the way I believe I understand it, sir.

The Master held and there was no dispute that these accretions were to the right bank here.

This was nothing but an elongation or a projection of this particular bar which has broken up throughout the record as been involved.

There has never been any dispute so far as I know that the accretions were there.

The difference came about that Mississippi wanted to put the last channel which would stop those accretions there and when the water first ceased to flow at low water.

They want to freeze them there despite the fact that all of these accretions continued to form to the right bank, continue to form which we contend as Louisiana is set — Louisiana up to the redline.

And there is no reason for it not to be Louisiana pass the red line unless the Master be correct, that is that the accretion — that the channel has ceased to flow when it had no low water flow.

Was that the question, sir?

There are a several points here that I –I don’t believe deserve too much comment on is the question as to how these accretions were to be divided in — to the owners of the land fronting on the river on that side by meaning — speaking of owners I mean, the Mississippi or Louisiana.

The State of Mississippi contended and that they held that they should be divided by running a line at right angles to the successive thalwegs of the stream as it moved away.

Louisiana thought there was no need to contest that because it is — except Louisiana.

There are other theories in law none by this Court that I know of as to how accretions are to be divided, but since they have accepted that, we will accept it.

We believe it’s all right.

Now, if there are no further questions on that part, I will turn to the next part.

The next part of the case has been referred to during a trial of the case and in various brief as the Diamond Point area, and that is filed, this Diamond Point in 1913, as the year we’ve just been talking about up here.

Here’s the little island.

You can see it’s up in here.

I am here.

This is the bottom end of it.

Here’s the little island we’re talking about.

These are the accretions that we’ve been talking about.

Now, the part we’re going to talk about now is the Diamond Point, here.

Mississippi contended that we’ve already stated that it built out from Louisiana and — from Mississippi and where the point falls.

Ashton L. Stewart:

Louisiana admitted that.

It’s in the record as a stipulation.

And we admitted the Diamond Point was a part of Mississippi.

In the stipulation, however, we did not admit what the boundaries of Diamond Point were.

It is obvious that we were a complete (Inaudible) heads as to whether where the boundary on the north was because the same legal proposition is applicable to the north boundary of Diamond Point as it is to the south boundary of this Diamond Island towhead area.

So, we did admit that and we didn’t admit any boundaries and because with stipulations that are in the record.

Now, this particular point has to do with an island that was formed here, sometime approximately in 1925 or 1926.

As you can see from this 1913 chart, the channel if you examine closely and one of the witnesses do this on it which we reproduced was, “Put the thalweg over here against the north bank of (Inaudible) bin,” that they speak of here, in the vicinity of where the island first formed.

The — the question of course is on which side of the thalweg did the island first appear?

Now, that would determine whether it would belong to Louisiana or to Mississippi.

If it formed at this particular time in 1913 is positioned here, it will be obviously Louisiana.

I must explain and needed it to the Court that this portion of the river had jumped around considerably, as Mississippi as Louisiana.

There is no understanding that Mississippi will all be adjacent to Mississippi because you may find some portion of Louisiana separated all the same way from Louisiana and the reason for that —

Did you find portions of the State separated by land or separated by —

Ashton L. Stewart:

By land, sir.

Yes, sir.

There’d be little islands of land belonging to the State over in the other State?

Ashton L. Stewart:

Yes.

It would be separate areas of the land, for example, the southern point area is separated in that manner.

Now, it is Louisiana adjoining Mississippi.

That of course is brought about by excessive avulsion and — now the part that we want to find out about is where was this thalweg and this island formed in this channel.

There is not a sufficient — have information to conclusively show where that is.

If it please the Court, I believe my argument on this particular point is thoroughly covered within my brief and I would prefer to save my rebuttal for the Diamond Point Towhead area if the Court will apply.

Can I just ask you one question, Mr. Stewart?

Was there a conflict in the evidence on which the Master found this fact?

Ashton L. Stewart:

Yes, sir.

Well, do you — do you attack to this finding of the fact here as being clearly erroneous?

Ashton L. Stewart:

Clearly, yes, sir.

Based upon what law or fact?

Ashton L. Stewart:

Well, it’s based on obvious fact and conclusions from those found facts which are all in our opinion, Mississippi River Commission charts.

Ashton L. Stewart:

It would have to be a legal theory that would determine where that island was because there are not sufficient charts or surveys to determine actually where the thalweg was when the island was formed.

Briefly, that is the argument we make.

Felix Frankfurter:

How can you — how can you deduce a legal theory on a matter of this sort?

We haven’t got any facts to nourish such a theory.

Ashton L. Stewart:

Well, the fact, the legal point that we take or the — the fact that we take that a thalweg stays on the outside of the bank and if it is there, well, that is the deepest part of the channel and that’s where the boundary is.

Now, if an island is formed or if that ceases to be the deepest channel because the next time is up.

The next map we have which was the first map that showed an island, shows it here.

We still have a channel north there.

We still have a channel south of there.

Now, the channel through the south of the area is slightly deeper, so that’s where the thalweg would be there at the time of 1925-1926, but we say that the history actually is not there because the history shows that that north channel is a closing channel.

And therefore, a closing channel shows that it was the main channel.

Now, this is the point where we differ basically with the Master.

As you can see, the channel here was the 1913 channel here.

It kept eroding back in here, as the 1920 channel, as the 1924 channel right here.

It kept eroding back over here and because of developments upriver from this particular point suddenly in 1925 or 1926.

This channel ceased to be an eroding channel and became — and in creating a channel because in 1926 back line suddenly comes back over here, the 1926 bank line, the green one.

So, suddenly, it has changed all of its activities from an eroding channel back and it jumped back over here.

And during that interval of time, the island formed.

We say it is logical that the channel or the leading channel here, that’s where the thalweg was and that Mississippi carried the burden of proof and there’s no evidence here against that particular theory.

We like to reserve the remainder.

Thank you.

Earl Warren:

Mr. Brandon.

Gerard H. Brandon:

May it please the Court.

I think that we should immediately make known the facts that Mississippi finds itself in complete disagreement with Louisiana, when they say that there’s no dispute of facts here and in complete disagreement as to what are the well established facts.

Likewise, we found ourselves in disagreement with Louisiana as to the applicable law of the case, as the conflicting briefs of each part into the suit will clearly demonstrate.

When this suit was instituted, that was brought by the State of Mississippi to establish its right and sovereignty in the boundary line between the two states affecting an area of something over 20,000 acres of land that were being in whole or in part adversely claimed by Louisiana and which in Louisiana’s answer, their certain title adverse to the title claim of the State of Mississippi.

Subsequently, after the investigation of the case and proceeded by Louisiana, Louisiana did enter into two stipulations that appear in the record and in the Master’s report.

One to the effect that prior to 1864 or 1865, a point bar had built out from Mississippi as alleged in Mississippi’s complaint.

And that an avulsion occurred across this point of land separating a part of Mississippi from the rest of the mainland and they admitted that the part so separated was in the State of Mississippi, but proceeded then to claim all of the land around that separated part and to make this part of Mississippi a complete island surrounded not by water but by Louisiana.

A situation which is contrary to natural effects of the operation of role of the Mississippi River, its changes of course and also would be contrary to the decisions of this Court.

So, on — on your theory, there will be no islands surrounded by land?

Gerard H. Brandon:

Yes, sir.

That is correct.

And — and on the Louisiana theory, they can be islands surrounded by land, the State?

Gerard H. Brandon:

Contend that the — Louisiana contends that there could be an island of Mississippi completely surrounded by land.

We have authority to which we recite — recite to the Court that the subsequent filling of this channel and the resulting processes following the avulsion will not — are not governed by the law of erosion and accretion.

The filling of the channel will not press back the boundary of a State and that one State whereas the course of a boundary can change by erosion and accretion, but by the filling of the channel that it could not press back the boundary.

And in other words, it was accretion formed to both Mississippi and Louisiana.

May I post for a moment, Your Honor?

To demonstrate what I mean by that, it must be born in mind that this chart shows a situation after there had been an avulsion, but of course it must be born in mind with the State boundary between the State of Mississippi and Louisiana at that time followed that thalweg of course around the river and that this entire channel in here and supposed shoot cut-off channel toward Mississippi.

It was Mississippi on both sides.

It was Mississippi all the way from — from this point here down to this point below and that whatever filling in here was the effect of the avulsion and not the effect of erosion and accretion.

And the location of those boundaries and that thalweg was clearly established by geologists, by experienced engineers and born in mind — and born out, corroborated by the actual owned seen report of Major Charles R. Suter who made this reconnaissance survey in the year 1874, some several years after the occurrence of the avulsion.

And at the conclusion or completion of the process of the avulsion, the shoot cut-off channel had been initiated as never as we can historically ascertain.

The claim the years 1864 and 1866, but Major Suter reported from his own name, seen the report to the Corps of Engineers on his reconnaissance.

He made his report in 1875 in February, that it resulted a flood of 1874, he bend of Diamond Island had filled and the Mississippi River had established itself permanently in the shoot.

And that was a complete filling of that whole river bed without (Inaudible) around here and I’d jump to show on another map as being yet one with a running stream.

The first controlled surveys of the Mississippi River Commission was one made from a reconnaissance surveys and actual controlled surveys of 1878 and 1880 period.

And the map of 1880, Exhibit 10 to the bill of complaint for the State of Mississippi in this case about which much testimony was taken, shows conclusively that the old channel that had existed around to the north and west of what is now known as Diamond Island Towhead had completely filled.

So far filled that at minimal water, you could not have — you could — there could be no entry of water there even at a stage of 20 feet above minimum water and it was perfectly dry completely across the old riverbed at the time of that matter.

Now, counsel for Louisiana in their brief and in their exposition of the problem here before this Court have selected one chart, which they have denoted and reproduced in their brief as their plate one being the chart, which counsel says shows a stream of water.

That chart was one made from a number of manuscript charts of no definite period, and that no definite stage of the water.

The stage in that particular area for whatever particular time it was, sometime after 1880 showed a stage of some 20 or more feet above minimal water.

Much evidence was taken concerning this chart and we submit that it is not pertinent whatsoever to the establishment of the boundary line, or as has been demonstrated by the testimony of the witnesses and indeed seen by the Master who went on this particular area and made a first known inspection thereof.

What is shown here is nothing more than one of a number of flood scoured out, drained channels that made from time to time be located first here then there, depending upon the overflow water of the Mississippi River during times of flood or high water.

And the geologist, Dr. H. N. Fisk who was the Chief Geological Consultant for the Mississippi River Commission for many years and still occupies the position, in an advisory capacity and the control of the flows of the Mississippi River from Pittsburgh to the Gulf, advising the engineers and the President of the Mississippi River Commission, described that situation and said that it did not locate and did not approximate the abandoned thalweg or deep water channel line of the river course as it had existed at the time of the occurrence of the avulsion.

That is was nothing more than a surfaced scour feature brought about by the washing or scouring effects of high water overflow.

As the water would flow and for that manner if it please the Court, I think it is beyond dispute that at times of high water until the unofficial cut-offs have been constructed had now spin the water to the Mississippi River, this entire flood rain overflowed every year and would overflow this year and would overflow much vast of areas, pronounced that the construction of that isn’t along the bank that protects the alluvial lands of the State of Louisiana.

(Inaudible)

Gerard H. Brandon:

How was that, sir?

Where does Mississippi (Inaudible) thalweg of the — prior to the avulsion.

Gerard H. Brandon:

Yes, sir, the thalweg —

That was the (Inaudible)

Gerard H. Brandon:

He gave it to us.

He —

He puts the thalweg in the first (Inaudible)

Gerard H. Brandon:

You could not possibly —

(Inaudible)

Gerard H. Brandon:

Do the best you can on available charts, on a testimony of witnesses that may have memory of it on the — and on this basis, on — on scars features that can be seen on — on aerial mosaics, sir, that an expert can take that and he can see these features of difference of — of coloring that make shadows and he can tell where it formed and where it was and what the difference in growth is.

That (Inaudible), it would be interesting to note.

It has shown from such aerial mosaics the varying courses of the Mississippi River in the lower — lower area or as my friend says, “For all recent times, some 20,000 years from the Texas border to the Mississippi Hills,” as it has meandered in that area and that sir can be done.

His study of this area was of course of real recent time and he made actual borings on the ground, took deposits of gravels and sands and clays and came up with his expert opinion, which when he reproduced on the exhibits that are in evidence here, the former thalweg course of the Mississippi River without himself having at any time prior thereto have been familiar with the report of Major Suter so closely corresponded there with that it was quite remarkable and so closely does that we can say truthfully that the point of thalweg, that (Inaudible) shown on a Suter Map and those shown on the charts of Dr.Fisk are one and the same for all practical purposes.

Now then, another way, sir, of getting at that is for an engineer familiar with the widening of Mississippi River such as Mr. Austin B.Smith, with the Mississippi River Commission and the Corps of Engineers, an active flood control work for 25 years who was in charged of the construction of some of these artificial cut-offs has seen these old channels become abandoned and clogged up and filled and can tell at what rate they do so.

He can make calculations as he did by the calculated accretion rates and erosion rates and filling rates in abandoned channels and thereby locate to a close proximity, the situation as it existed at the time of the flow that the flow ceased in the old channel or when the avulsion was completed.

The Special Master in this case had the benefit of that expert opinion evidence, but he also had the benefit of lay witnesses who justified.

Now, about this situation here, let’s turn back to the reproduction of the Suter Map.

The evidence in the case shows and the chart of 1880 shows that upon the occurrence of this avulsion, the forces of the water flowing and divided as it were by the head of the island and the course of filling this abandoned channel caused a deposition of gravel bar as a part of this island between the divided flow of the water.

And that that gravel bar, that deposition is yet there as justified by lay witnesses who had navigated in that area, who — one who lived on the land and had seen where accretions had formed and know where they were, a steamboat captain and by the geologist for Louisiana who made the borings as well as Dr.Fisk, so that the Master was supported in his findings of fact by what he saw because he do saw the deposition of this gravel in that area and which he has reported therefore, never washed away.

And therefore, that the channel of the Mississippi River, the navigable channels have never been in such a contorted location as counsel for Louisiana now claim, but he was supported by those lay witnesses in addition to the experts.

Now, as we take it, the entire fallacy of Louisiana’s argument in this case has been that whereas at the present moment, they may be required to confess that the word “thalweg” has an important bearing upon the determination of the boundaries in dispute has — has long been established by this Court and it does not merely mean a valley way that it is related to navigation.

It is the course of navigation or the sailing main downstream and therefore that of the greatest amount of current as this Court has from time to time held.

And that the thalweg doctrine is one which they have ignored in their entire presentation of this case and they seized upon the use — an informant by this Court in the case of Arkansas versus Tennessee of language that gave them hope when the Court spoke of the stream becoming stagnant or as long as there’s water is flowing, it is susceptible of change.

But of course what this Court meant, when that navigable channel is filled and when the water — the current ceased to flow therein, then the boundary is fixed in that old channel as this Court has defined it to wit in the navigable channel, in the — along the thalweg of the navigable channel as that thalweg as such last existed.

And so, it is that the Court, the Master below has so found.

(Inaudible)

Gerard H. Brandon:

Yes, sir.

(Inaudible)

Gerard H. Brandon:

In Louisiana’s contention?

May it please the Court.

Louisiana has of course produced only a view of the current numerous charts and then on first year until that I saw one that I might be able to —

Did you — did you established from Mississippi —

Gerard H. Brandon:

Sir?

You establish from the (Inaudible) part of Mississippi to that (Inaudible)

Gerard H. Brandon:

Yes, sir.

I think a matter of — at the closest point, possibly some five miles.

I might — from Mississippi to it?

None of — none of that land would be (Inaudible)

Gerard H. Brandon:

I’m — I’m afraid I did not understand your question, sir.

I’m referring to say that this land, if the water from Louisiana (Inaudible) part of a Mississippi island and Louisiana territory.

Gerard H. Brandon:

Yes, sir.

But what I want to know is, if you started the Mississippi (Inaudible), namely, goes through that point of the Mississippi Island and Louisiana.

How much Louisiana land would you have to go through?

Gerard H. Brandon:

Well, we don’t think we have to go through any because we think it is contiguous throughout to Mississippi.

Well, I’m not —

Gerard H. Brandon:

But if Louisiana prevailed as they contend and if all of the accretion south of it, original cut-off area were alloted to Louisiana.

That’s what I want to know.

Gerard H. Brandon:

Some five miles, as near as I can just judge it.

I wouldn’t — you want to take a note on it, sir.

And —

Hugo L. Black:

Did they know where to get through it from Mississippi, just by going through Louisiana land?

Gerard H. Brandon:

According to their contentions on one theory.

Now, they could have an ultimate theory by which they do accord Louisiana and to Mississippi the right of accretion, but they want to relocate the place for the apportionment of that accretion as Mr. Stewart has shown you and that would narrow it down and take — deprive I think Mr. Stewart estimated some 5000 acres of land or area that would be there involved.

But the — of course, the decision was done upon fixing the boundary as it last existed.

And then, the river having thereafter again changed its course in the course of a migration to project that boundary at all times at right angles to each successive ascertainable thalweg within the Mississippi River.

Now, the reason we do that is —

Hugo L. Black:

Would you say that has to be done in the effect of (Inaudible) thalweg of Mississippi land and Louisiana River?

Gerard H. Brandon:

I would say that would have to be done in order to preserve the States their respect to territory to which they are entitled under the law, sir.

Because it must be born in mind that this shoot cut-off channel when it formed through its entire length and breadth was Mississippi.

It brought across Mississippi territory and the new bed of the Mississippi River was completely in on both sides and throughout its length and breadth, a part of Mississippi.

Are there any — are there any (Inaudible) that they are islands of Mississippi land in the State of Louisiana or islands of Louisiana land in the State of Mississippi?

Gerard H. Brandon:

I know of none that do not touch upon the Mississippi River at one point — one part or another.

I know of tons of land that I can walk from Mississippi into Louisiana, but at one end of it is a Mississippi River.

That’s a — a point such as that that has been cut-off at its neck, but of course as the river thereafter moves while there’s accretion to that, as there is to the other and it must always be adjacent therefore to the river.

And I therefore know of none that is completely separated as they have sought in this case to accomplish.

Now, if it pleases the Court, I desire to leave the remainder of my time to Mr. James who will discuss some other features of the case.

Earl Warren:

Mr. James.

James D. Thomas:

If Your Honor please, the basic here of Louisiana is very apparent and I think the Chief Justice in his questions to Mr. Stewart immediately hit upon the soft spot in Louisiana’s case.

And just so there won’t be any dispute about it and at the very outset, I’d like to clear up this question about the thalweg.

The Chief Justice asked, Mr. Stewart, what he meant by thalweg.

Mr. Stewart responded that it was a German word, meaning, “valley way”.

And Your Honor please, that is the basis on which Louisiana has proceeded in the whole trial of this case and their use of words and choice of language is in direct conflict in its meaning with the decisions of this Court.

Now, let me give you just basically the basis for Mr. Stewart’s statement to the Court that it does mean a valley way.

In the course of the trial, we had gotten through many days of —

Felix Frankfurter:

What is — the word doesn’t mean that (Inaudible)

James D. Thomas:

It means, “valley way” is a —

Felix Frankfurter:

(Inaudible)

James D. Thomas:

Yes, sir, and no question about it but it doesn’t —

Felix Frankfurter:

(Inaudible) but that’s what — that’s what the word means.

James D. Thomas:

The word means “valley way,” Your Honor please, but as used in Iowa versus Illinois, the term thalweg means the sit of the navigable channel of the Mississippi River, when is used in boundary disputes where a navigable stream is the boundary between two states, the boundary of the two States is fixed to the thalweg of the stream.

That is to say the middle of the navigable channel of the stream and it is not used in an abstract sense as this Court used it in Iowa.

Felix Frankfurter:

(Inaudible) use the German word?

James D. Thomas:

That’s right.

It becomes a word that it has a legal meaning as it’s defined by this Court.

And when used in its German — Germanic meaning by — as Mr. Stewart and his witnesses have done, it is used in a sense that it’s in direct conflict with the language of this Court in ever decided case.

Now, let me show you and illustrate, if Your Honor please, in the records and of course we — we have not — ever had a printed record served on us in this case so I am reading from the brief at page 14, quoting from the testimony in the transcript.

We had gone along in the trial of the case and we were — Mississippi was quite concerned as to why we seem to be — there should be in the confusion in the Master’s mind to ours as to what we were talking about.

It was quite apparent we — we’re not using the same language and the witnesses did mean the same thing.

Louisiana introduced a Mr. (Inaudible), as a geological expert.

They introduced a Mr. (Inaudible) as a geological expert and they predicated their whole case upon that testimony and Mr. Stewart had predicated his whole argument here on maps which were drawn at his instance on this map by these two men.

Now, what did those witnesses state, by Mr. McKamy?

James D. Thomas:

“Mr. (Inaudible), will you tell us your definition of thalweg?”

Answer – “Thalweg, sir, is a deep portion or zone of a stream.

My understanding here is that it’s derived from the German word valley way and in a stream therefore would have a thalweg by that definition.”

Do you — you do not refer it in either way to navigation?

“No, sir.”

So therefore, the — the geologists and the attorney, both for the State of Louisiana are using words that are — with one definition when the Supreme Court of the United States in boundary disputes has given that word a very distinct meaning and that it’s — of the Louisiana’s used of the word is in direct conflict with that of the Supreme Court.

Now, with Mr. Waldo’s testimony by Mr. Brandon.

“Mr. Waldo, what is your understanding of the term thalweg?

Have you studied a little bit of German, sir, use the word — use the translation valley way?”

You do not know its definition then it matters pertaining to the navigation of boundaries, when it is referred to in reference to the application of the thalweg doctrine.”

“Sir, I have never done any research toward boundary of determination nor I have been affiliated within the navigation on the road.

So, I’m afraid I wouldn’t be familiar with the thalweg doctrine.

The Louisiana is here basing its case upon testimony of witnesses who are not even familiar with the thalweg doctrine and the cause is advanced by Louisiana, it’s predicated upon a theory made up of that witnesses in contrary to the thalweg doctrine as announced by this Court.

Now, further with Mr. (Inaudible) testimony.

“You did not concern yourself with the location of that thalweg as it existed, as all the approximate date of January 1830 — January 1933, shortly thereafter, in an attempt to locate anything concerning boundaries or the fixation of the navigable channel prior to the effective making of the cut-off.”

Also, on the thalweg, in my mind, it is a rather wide and definite zone and I don’t feel that it can be pinpointed.

So, I didn’t concern myself too much with it and that’s how Louisiana has treated the thalweg doctrine as announced first in this Court by in the Illinois versus — Iowa versus Illinois and put to rest in several cases and probably the — the best discussion of the thalweg doctrine being in the case in New Jersey versus Delaware.

I was somewhat amazed to hear Mr. Stewart tell this Court that there was no testimony showing that the island, south of Diamond Point, there was no testimony to warrant its — the Master awarding it to Mississippi and that there was no dispute.

Now, he is correct in saying that there is no dispute.

But when he — he is mistaken when he said that there is a dispute that it belongs to Louisiana because there’s not a scintilla of evidence in this record, not a scintilla to show that that island ever belonged to Louisiana, was ever formed anywhere close to Louisiana.

Now, what happened is this.When this old channel south of Diamond Point, again to deteriorate after the construction of the cut-off of 1933 by the United States Government across the base or neck of Diamond Point, the United States Government saw that the main channel of the river would go through the cut-off, filled up the lower end the river, fill up the lower end of — of the channel around Diamond Point to stop the flow, to keep it from being a flowing stream.

And as that channel deteriorated, the island formed out in the river and formed to the north of the thalweg of the main navigable channel to Mississippi River, being on the Mississippi side of the thalweg of the river.

The main thalweg of the Mississippi River was to the south of this island and in due course within a few years, by the process of accretion that became attached to the Mississippi mainland, it is now a part and attached to the Mississippi mainland and it always has been on the Mississippi side of the thalweg of the Mississippi River.

Now, Your Honor please, let me read you so that — so you can see how wrong Mr. Stewart was when he told you that there was nothing in this record to warrant the Master awarding that to Mississippi.

This is the plain testimony taken from the record.

Mr. McKamy – The main thalweg is south of the island in 1926, is it?”

Witness, and incidentally, that witness is (Inaudible), the man who says that the word thalweg means “valley way.”

So, when Mr. Stewart walked over here and put his hand on (Inaudible) the thalweg was up here.

It was a deep portion of the river.

Therefore, it was a thalweg.

James D. Thomas:

But gentlemen, that has no — that has no legal significance and is legally wrong and is in direct conflict what this Court’s held in every one of these decided cases.

The witness, “I would say that the deepest thalweg is south and when the — within the next two years, this becomes the only thalweg.”

Mr. Clifton – “I think Your Honors are entitled to an answer to your question.

Was the main thalweg south?

I would like to ask the witness if he can understand that question and answer it.

By Mr. (Inaudible)

The thalwegs are approximately equal, but I would say that the main fault and consequently the main thalweg at the time that the map is south of the said sand bar.

It couldn’t be any plainer than that.

Mr. McKamy – “And becomes the sole thalweg?”

The witness – “Eventually.”

Mr. McKamy – “Have you got a 1933 map here that shows the situation.

By Mr. (Inaudible) “Yes, sir.

We have it.

I can show you very plainly on a 1932 photographs.

They may even be plainer at that time to show you the abandonment.”

Mr. McKamy – “By 1928, it shifted way down here?”

“Yes, sir.

By 1929, shifted into this area.

Still further south shows that thalweg to be cutting on this side, the right bank?”

“Yes, sir.”

The witness – “Yes, sir, cutting south of that island and by 1902, sir, as demonstrated on those photographs which in Louisiana’s Exhibit number 23, the area of the sand bar that has been discussed, I will mark it an A.

By that time, during minimal low water, there is no flow whatsoever around the north.”

Mr. McKamy – “In other words, it became attached to the left bank being the Mississippi bank?”

Witness – “Yes, sir.

By its abandonment of that channel to the north, it’s now completely to the south.

They retreated the bank to the south as been previously alluded to as occurring between 1926 to 1929 and is still continuing as can be seen by the caving bank along here from the point between B — blue and cyan blue.

So, that’s the channel that previously existed north of the said sand bar as for the time of the photographs, Louisiana’s Exhibit Number 23, then completely abandoned by high water.”

Mr. McKamy – “This is Louisiana’s witness, the only maps that you can show that this island, the first time it appears on the map shows its north of the main thalweg?”

“Yes, sir, on the 1925-1926 map.”

Now, that’s Louisiana’s witness and yet Louisiana’s counsel tells you that there’s no evidence based on Master’s finding that that island is in Mississippi.

James D. Thomas:

There is not one scintilla of evidence in this record that that island was ever on the Louisiana side of the thalweg of the Mississippi River and it’s — it has never been anywhere else.

In the charts of 1918 to 1915 of the Mississippi River Commission, it doesn’t show the appearance of any islands.

And every succeeding chart it’s published and put out by the Mississippi River Commission shows no islands at all in the formation of the river until 1925 and on 1925, it shows that island appearing on the north of the thalweg of the main channel of the Mississippi River and is attached to the Mississippi main island now and is a part of Mississippi.

There is not as the Special Master has found in his report.

There is no testimony to show that it is in Mississippi.

It is conclusively shown by Dr.Fisk, by Dr.– by all of the witnesses and every other person that’s testified in the case.

So, there can’t be any question of a doubt that that island, regardless of whether Mr. Stewart may walk up to your map and say, “Look, I’m going to put a map up there.

This is a thalweg up here.

There’s a deep channel in the river and that’s a thalweg.

”That’s not the thalweg that we’re talking about in boundary disputes.

It’s not the thalweg that this Court described and fixed in Iowa versus Illinois being the first case.

Now, if Your Honor please, let’s talk about just for a moment the boundary around Diamond Point.

Mr. Stewart has said all through his argument, when a surrounding stream and the Chief Justice asked him again, “In your state decisions, do they have a thalweg?”

Those decisions do not and Mr. Stewart answered back, “Yes, sir.

They have a thalweg.

Every stream has a thalweg.”

But we are not talking about water courses and the water ways as the case has cited in the brief of Louisiana that’s been filed so recently in this cause.

We are talking about the Mississippi River as a navigable stream which forms a boundary between two sovereign states in a given area.

As Mr. Brandon has said, when this case was originally filed, it involved some 25,000 acres of land.

And by a process of admissions and by process of stipulations on the part of Louisiana, we’ve gotten down now to a where it only involved whether or not a — a dry bank, 20 feet above the water is a running stream.

Now, if Your Honor please, that is literally what happened and that is clearly covered in the Master’s report.

There can be no question about that because Mr. Stewart and Mr. Lancaster that’s seated in this room today with what the Special Master when he took the trip on — going down to Mississippi River.

We went down and all of us went down to Mississippi River to see this old abandoned channel around Oak Bend.

Now, the United States engineers built this Diamond Point cut-off to the base of Oak Bend in aid of navigation and flood control.

And the — when they constructed that cut-off channel in there and took the main body of the Mississippi River from the old Oak Bend channel and placed to do the Oak Bend channel, it fully occupied that channel by 1936.

All of the navigation rights were taken out — out of the old Oak Bend channel and it was closed to navigation.

None — no one — none of the Masters of the Boats were notified that it was — it was a sailing channel.

They were all notified that it was no longer a sailing lane for commerce.

They were all notified up and down the river that the tows had moved up and down in commerce, that it was no longer navigable.

Mr. Stewart says, “What has navigation to do with the fixing of a boundary?”

James D. Thomas:

This Court has repeatedly held that navigation is the criteria upon which the fixation of a boundary between two states in a navigable stream is predicated.

Now, the Master says, “By 1930 and certainly by 1940, no water flowed in the old abandoned channel around Oak Bend, certainly at low water.”

Well, what is (Inaudible)

Ironically, that is not beyond to — construe it to say anything different that we are talking about the main Mississippi River.

We’re talking about the main Mississippi River that forms the boundary between these two States.

We are talking about the Mississippi River that has the thalweg that’s utilized in the commerce of the world by taking tows which the more tonnage is going up and down that river today than ever before.

When we went down there, we parked that (Inaudible) on the bank of the river and we walked right straight up the riverbank 20 feet high.

And when we got up there on the 20 — up on — up a bank 20 feet above the flowing water, we looked out this way and that was a flowing river.

And strange as it might seem, two of the biggest tows on the Mississippi River passed through the opening of — of Diamond Point cut-off at the time we were there.

We looked back out into this area back into the old channel of the old deserted channel and what was there?

Sand, debris, a few pools of stagnant water.

Now, that is what Louisiana is saying to this Court that they’re now are contending as the running stream.

They are now contending to you that it doesn’t make any difference how high the water goes if a little water can trickle and then cause a little caving, it’s a bank that the boundary will be fixed.

And that is impossible under the law as announced by this Court.

We simply say to you, Your Honor please, that this is a report — may I say in my limited experience, one of the finest reports of the Master that I’ve ever seen.

It was — it was one of the ablest lawyers that I have ever seen who was appointed by this Court as Special Master.

I never have seen a Court that was presided over with more dignity and grace and more consideration.

One of the finest reports I have ever seen.

It’s fully justified by the evidence it introduced in this case and we certainly say that the Master’s report should be confirmed and a decree entered accordingly.

Ashton L. Stewart:

May it please the Court.

I would just like to conclude on what I think is the only issue in the Court, before this Court and it is still a legal form that is on the Diamond Point here, the Diamond Island towhead here.

That point is as this Court has held that in a case of an avulsion, so long as the old channel remains a running stream, capable of erosion and accretion that a boundary remains in that stream and that’s the only point involved here and a lot of (Inaudible)

Now, in Arkansas versus Tennessee, here is the decree.

I have quoted heretofore from the reasons.

The decree in that case is that they have pointed a Commission through — get 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 in 1876.

And the question whether it is practical now to locate accurately the line of the river as it been running.

In other words, they appointed a Commission to find out what happened to the old channel by locating the erosions and the accretions.

They spoke nothing of any low water channel.

A running stream is a running stream whether it has low water running stream or not, so long as it continuously running, has a bed on the sides and banks and it conveys water in a channel that are — is usually in customary for example.

Therefore, the only question on this point that we — hear the argument of that is.

Ashton L. Stewart:

When does a stream ceased to be a running stream?

We say that this Court has said in Arkansas versus Tennessee, it’s when the processes of erosion and accretion have ceased and the water is stagnant.

That it ceased to be a running stream.

Those processes of erosion and accretion take place in a running stream that do not take place otherwise.

So if the Court is going to followup this decision here which is based on logic that is if whenever a boundary is in a stream, that boundary moves with the stream, we would like to submit it on that.

We think the briefs amply cover —

Mr. Stewart, you would say that your thalweg is related to a running stream no matter how small, has nothing to do with navigation, is that right?

Ashton L. Stewart:

Well, I — I can spend considerable time to answer that.

That of course is not my position, none whatsoever, sir.

My position is exactly that — what a thalweg is, it’s the main navigation of a stream — main navigational point.

And the Court has repeatedly concluded it as a valley way.

As I say, that is a side issue here.

That has nothing to do with the issues before this Court.

That’s a play on words.

We say that the only issue here is when is a running stream ceased to be a running stream?

And we say that this Court has already decided that point and I say that that is in logic.

That is following the general theory that whenever a boundary is in a running stream, that boundary changes with the change of the stream by the processes of erosion and accretions and we don’t believe we have any question involved on — that’s even debatable actually if the Court will just examine that case and this chart.

There was much said just now about whether — there be no evidence to support our statement that this chart shows that this is a running stream.

We haven’t showed that this channel here at its narrowest point was 300 feet wide, 300 feet wide and that’s not a channel.

That’s a survey channel.

Counsel referred to as a flow — overflow water.

The chart shows that it is one-third of oscillation, a stream (Inaudible) above low water and that’s about 14 feet, the height of that channel thus far.

That’s some 30 feet away from high flood water.

We submit the case and let’s hear some answers to the question.

Thank you.