Mississippi v. Arkansas/Dissent Douglas

by William Orville Douglas

MR. JUSTICE DOUGLAS, dissenting.

Luna Bar is today an island in the Mississippi River. Arkansas on the west claims it is hers because the river as a result of an avulsion moved west. Mississippi claims it is hers because Luna Bar was created as a result of slow gradual accretion. The Special Master found for Mississippi and the case is here on exceptions to his Report.

[p295] No one has a historical recorded account of what happened. Mississippi made its case by use of experts who testified as to how the Mississippi River usually performs. They testified that the river at low water washes the concave side of a turn (this being the side that marks Luna Bar) but that during high water it scours the convex side (that being Arkansas). That testimony gives force to the argument that accretion formed Luna Bar, washing heavily Arkansas land to form the island. Favoring Mississippi was other testimony that at least in the Mississippi avulsion would shorten the course of the river, while here the course was lengthened. Never did the experts know of an instance where avulsion had worked the way Arkansas claims.

Opposed to these highly qualified experts were lay witnesses who knew Luna Bar. They had located great trees that once grew there, the age of the trees going back before 1800. Luna Bar therefore was not recently created nor was it created within the last 100 years. It had been there a long, long time. Moreover, the soil matched Arkansas' soil and the height of the land on Luna Bar was comparable to Arkansas' elevation. The Arkansas case was further bolstered by the theory that in the 1870's the avulsive action took place when the river returned to its old channel.

The Special Master stated in his report:

"I am aware that as Special Master it is not my function to render a decision. My duty is to make a report containing such review of the evidence as I consider justifies my findings of fact. I do not consider that to make the findings I do, it is necessary to totally destroy the validity of Arkansas' contentions. The burden of persuasion was upon Arkansas. Initially Arkansas conceded that Mississippi [p296] had met its initial burden, aided as it was by the presumption that the change in the thalweg of the river was the product of accretion. The quite special character of the reasoning of Arkansas' witnesses leaves me unpersuaded that it has met its burden of proof. I make clear also that I would come to this conclusion even if the burden of proof was not on Arkansas, but was on plaintiff Mississippi." Report of Special Master 33.

The case is close and if we were governed by the rule governing district court findings when an appeal is taken I would agree that the Special Master's findings are not "clearly erroneous." Heretofore the Court has not considered itself limited in its review of its Masters by the "clearly erroneous" test.^[1] We said in [p297] United States v. Utah, 283 U.S. 64, 89, that the "findings of the master . . . are justified by the evidence"; and in Kansas v. Missouri, 322 U.S. 213, 232, that the Master's judgment "accords with the conclusions we make from our own independent examination of the record." And see United States v. Oregon, 295 U.S. 1, 29. It has at times been argued that original jurisdiction should not be taken, because of the waste of judicial time by this Court: "In an original suit, even when the case in first referred to a master, this Court has the duty of making an independent examination of the evidence, a time consuming process which seriously interferes with the discharge of our ever increasing appellate duties." Georgia v. Pennsylvania R. Co., 324 U.S. 439, 470 (Stone, C.J., dissenting). The majority opinion did not dispute that claim but gave special reasons why original jurisdiction was necessary in that case. Id., at 465–466. The findings of the Special Master are of course entitled to respect and their weight will be increased to the extent that credibility of witnesses is involved, as he saw them and heard them, while we have only a cold record. Credibility, however, seems to play no part here. The record [p298] consists of maps and of testimony of witnesses. Those testifying for Mississippi qualified as eminent experts. Those testifying for Arkansas were in part experts and in part countrymen who for years knew Luna Bar, frequented it, and studied it. The experts of Mississippi state a plausible explanation that bolsters the theory of accretion. But the countrymen with their physical evidence convince me that the Mississippi River acted in an unprecedented way, found an old channel and in one convulsive operation invaded Arkansas leaving Luna Bar as island carved out of Arkansas.^[2]

There is evidence taken from borings that the soil of the island is not compatible with the soil that would result from accretion. An expert, Dr. Clarence O. Durham, head of the Geoscience Department of Louisiana State University spent two days on the island. He concluded that prior to 1823, the date of the first Federal Land Office Survey, the river had flowed west of the island but that between 1823 and 1871 the channel at that point was not divided. He reached this conclusion from an 1872 map [p299] which showed an abrupt shift of the Arkansas western bank into an abandoned prehistoric channel of the river. The island is the hard base of an ancient clay plug that dates prior to 1823. The ancient cypress stumps on the Arkansas mainland and those on the west side of the island are compelling evidence that the island and the mainland were connected for some centuries. To say that the island was formed by accretion is to use magic to make the ancient cypress stumps on the island disappear. Those trees are of the climax species; and the experts all agree that where climax trees appear the land mass on which they grow is at least 150 years old. The trees found on the high ground of the island were black walnut and red mulberry. Those trees were there prior to 1800 which would be impossible if Luna Bar was the product of accretion in modern times.^[3] The hard core [p300] of the island has an elevation between 133.2 feet and 133.5 feet; and the elevation on the adjacent Arkansas bank is between 132.2 feet and 139 feet.^[4] Again there [p301] is a compelling inference that while accretion may have added some soil to the island, the high hard core of the island was once connected with the mainland and severed from it by some abrupt and violent action of the river.

Notes

1. Fed. Rule Civ. Proc. 52(a) provides that findings of fact made by district courts "shall not be set aside unless clearly erroneous." It also provides that "[t]he findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court." Rule 53(e)(2) provides that "[i]n an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous." But those Rules are applicable only to "the procedure in the United States district courts in all suits of a civil nature." Rule 1.
    
   But we have never formulated such a rule when it comes to our review of reports submitted by Special Masters whom we have named in cases under our original jurisdiction. It seems inappropriate that we adopt such a rule in view of the delicacy and gravity of many of the issues in these contests between two sovereign states or between the United States and one or more of the States. The ultimate decision on the facts should rest with us, the sole tribunal to which the resolution of the issues in this type of case has been entrusted by Art. III.
    
   In Georgia v. Brailsford, 3 Dall. 1, the Court in a case under the head of its original jurisdiction impaneled a jury. And that procedure, though soon abandoned, was followed in a few other cases: [p297] See 1 H. Carson, History of the United States Supreme Court 169 n.1 (1902).
    
   In Rhode Island v. Massachusetts, 12 Pet. 657, 734, involving a boundary dispute, the Court said: "[W]e may ascertain facts with or without a jury, at our discretion, as the circuit courts, and all others do, in the ordinary course of equity" or alternately "a commission of boundary" may be awarded.
    
   In Pennsylvania v. Wheeling & Belmont Bridge Co., 9 How. 647, a commissioner was appointed to hold hearings and report to the Court, Pennsylvania having complained of the erection of a bridge across the Ohio River at Wheeling.
    
   While commissioners were appointed in the early years, the practice this century has been to use Special Masters.
    
2. The Master found that Arkansas' proof failed to justify a finding that there was an abandoned channel which the Mississippi found again in the 1870's. The absence of independent evidence of such a channel is not surprising, in view of the quality of the maps made before the 1870's. For example, the Master attaches as appendices to his report six maps of the area charted before the 1870's. All of them trace the outline of the Mississippi for navigational purposes. But none are topographical maps which would show the existence of an ancient, dry, low-lying channel on the Arkansas mainland into which the Mississippi could divert. This, however, does not show that such a channel did not exist or refute the physical evidence which Arkansas has mustered. Just as Arkansas has not produced a pre-1870 map proving the prior existence of the ancient channel, Mississippi directs us to no map to prove that such a channel did not exist.
    
3. The Master stated that the testimony about vegetation and the age of trees on the island was, "as far as I can tell, reasonably comparable" to that presented in two earlier cases concerning the origin of Luna Bar (Anderson-Tully Co. v. Walls, 266 F. Supp. 804; Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W.2d 632). The Master also stated: "It was the position of Mississippi that various stumps found on Luna Bar and Spanish Moss Bend had been brought there by flood waters. Its position in such regard was sustained by the courts heretofore considering the matter. I do likewise."
    
   Neither of the earlier cases makes clear the exact extent of testimony admitted, or precisely how it corresponds with the testimony given before the Special Master in the instant case. Arkansas, however, notes that "evidence of the relic trees found on top of the island [was] not discovered at [the time of the earlier litigation], and this record is the only record of their existence." Moreover, it is hardly true that the Arkansas court "sustained" Mississippi's position that the cypress stumps found in Spanish Moss Bend had been carried there by floodwaters. That court, remanding the case to the lower court for further proceedings, noted that the appearance [p330] of at least two of the stumps in photographs tended to lend support to testimony that they had grown in place. So did the designation of "cypress knees" and "cypress stumps" and trees along the Arkansas shore near the mainland on several early Mississippi River Commission charts. These designations indicated that there was evidence of cypress stumps many years before 1940, when it was contended that they had been floated downriver and left at Luna Bar. 248 Ark., at 502, 452 S.W.2d, at 637. Finally, the opinion of the District Court in Anderson-Tully Co. v. Walls, supra, does not even mention the cypress stumps. Therefore, as to the ancient relic stumps found on top of the island and in Spanish Moss Bend, it would not seem that we are forced to overcome the decision of any previous court which has accepted Mississippi's theory about their origin.
    
   On the other hand, Richard Proctor, who has lived in the area of Luna Bar for 91 years, testified that he had fished around cypress stumps in the river which had been there "as long as I been big enough to know." Moreover, he testified that he found a mink in an old cistern on the Bar, the existence of which is quite inconsistent with the Point Bar migration theory.
    
4. The fact that an early Mississippi River Commission hydrographic survey showed the elevation of Luna Bar to be somewhat lower than that of the land on the west bank of Spanish Moss Bend, the Arkansas side of the river, does not disprove Arkansas' position that Luna Bar originated as a portion of the Arkansas mainland which was severed by avulsion. Reference to Appendix A of the Court's decree, a topographic map prepared by the Army Corps of Engineers, shows the rolling nature of much of the land adjacent to the Mississippi River in the area of Luna Bar and indicates that a difference in elevation between two points would not be startling. Moreover, it appears that in 1874, between the time when Arkansas claims the avulsion occurred and the time the Mississippi River Commission conducted its survey, there was a flood in the Mississippi which would have washed at Luna Bar. See Arkansas Land & Cattle Co. v. Anderson-Tully Co., supra, at 506, 452 S.W.2d, at 639.