LOCATION: Odessa Junior College
DOCKET NO.: 17 ORIG
DECIDED BY: Burger Court (1972-1975)
CITATION: 406 US 117 (1972)
ARGUED: Mar 29, 1972
DECIDED: Apr 24, 1972
Howard H. Moldenhauer - for plaintiff
Michael Murray - for defendant
Facts of the case
Media for Nebraska v. Iowa
Audio Transcription for Oral Argument - March 29, 1972 in Nebraska v. Iowa
Warren E. Burger:
We'll hear arguments next in 17 original, Nebraska against Iowa.
Howard H. Moldenhauer:
Mr. Chief Justice and may it please the Court.
This case involves Nebraska's contention that the State of Iowa has violated the Iowa-Nebraska Boundary Compact of 1943.
In order to properly evaluate the contentions of the State of Nebraska, we feel it's essential at first we have to examine into the situation as it existed in 1943 and in prior years.
The case of Nebraska versus Iowa decided in 1892 determined the originally the boundaries between the two States was the center of the main channel of the Missouri River.
And the boundary moved with changes of the channel, when these changes were gradual and imperceptible but when they were sudden or by avulsion, then the boundary remained in the bed of the abandoned channel.
These principles applied at that time, both to State and private boundaries.
There's no dispute down through the years and Missouri River was very notorious for all of its periodic flooding and many natural changes.
And it was common knowledge that at many times that it changed its course and had had physically dissevered lands from one State and left them on the opposite side of the river and this created all kinds of problems in determining a jurisdiction, titles, which schools children should go to, and taxation.
And the legislative history of both States is replete with recognition of these problems and the legislatures had boundary commissions from 1901 through 1943.
Commencing at about 1934, on top of this already confused situation along the river, the U.S. Army Corps of Engineers set out to create a new and stabilized channel for the Missouri River.
This channel was supposed to be 700 feet wide and was prepared on the drawing boards.
And then the Corps of Engineers said the construction dikes and revetments set about to place the river in that channel.
And commencing in 1938, they also dug canals to physically place the river in the channel.
These canals consisted in many cases initially of a ditch, dug on dry land and then, they opened or pulled the plug at the top and allowed the water to go through when it scoured out through that dry land the new channel.
At that time, the Corps, when it moved the river, moved it around islands, around barren areas, and through bank area.
And it created or further confusion in so far as boundary problems were concerned, but the Corps, when it channelized the river, paid no attention to the boundary, it was not concerned with this, it was concerned in confining the river and stopping the flooding and improving navigation.
By 1943, the Corps had dredged canals of at least 11 locations and Nebraska feels that the evidence shows at least 15 places, but that really is not important, there were several canals, which they have dug.
And in 1943, South of Omaha, the river was 99% in its design channel to the Nebraska border, and North of Omaha, it was approximately 78% in the design channel.
But, this river worked by the Corps had further compounded many the title problems which existed.
In 1943, then the states, under the assumption that the river was finally stabilized, entered into a Compact to settle their boundary, and at that time we think the facts are very significant, because at that time, each state and the Master so found, recognized that the shifts of the channel in the past had been so numerous and intricate that for practically all land adjacent to the river, there were no conclusive determination of either State or private boundaries was considered passable.
They both recognized that in many places the boundary line was not located in Missouri River.
And that these places had not been determined and were almost impossible of determination.
And if a compromised couldn't be worked out and if they have to make a determination, where the boundary had been fixed on dry land, it would be an extremely complicated and an expensive process.
At this time and prior to this time, the State of Iowa was making no claim to abandon river beds or islands arising in the bed of the Missouri River and under any common law claim of sovereign ownership.
In 1932, they have purchased some land in an abandon river bed, in a well-known avulsion of the Lake Manawa, just south of Council Bluffs, Iowa.
And they were not claiming islands which existed south of Omaha, where the river had been entirely in the design channel, since at least about 1938.
There were abandoned channels in oxbows all up and down the Missouri River, on both sides of Missouri River.
And Iowa had made no claim to these abandoned channels on oxbows on either side.