text:
LOUISIANA v. MISSISSIPPI
Legal provision:
Argument of John L. Madden
Chief Justice Earl Warren: Number 14, Original, State of Louisiana, Plaintiff, versus State of Mississippi et al.
Mr. Madden.
Mr. John L. Madden: Mr. Chief Justice and may it please the Court.
Set down for our argument at this time is a motion of the State of Louisiana for a leave to file a complaint against the State of Mississippi based upon a boundary dispute between those states in the area of the Mississippi River.
Included in the motion is a prayer that all proceedings be stayed in the case of Joseph S. Zuccaro et al. versus Humble Oil & Refining Company, which is Civil Action Number 1011 on the docket of the United States District Court for the Western District of the Southern -- the Western Division of the Southern District of Mississippi.
That stay is requested because of the dominant issue in that case as to the location of a producing well and the only way that the Court could possibly decide this case would be to decide the boundary dispute that exist between Mississippi and Louisiana.
If we had only one case to present in the argument, that we would like to make today, it is Durfree versus Duke.
That is the sole substance of our argument.
It is a very logical opinion, very intelligently presented and when read particularly when Judge -- when Mr. Justice Black's concurring opinion is read with it then I think we have the answer to the problem as presented here today.
Now, we have here a chart, we want to show something about the locale of this dispute.
Heights rises, its circumstances and anything that the Court may be interested in.
Realizing, however, that we are here asking to come in the Court, we're not here on the merits but as I take it from this very learned opinion that there's only one way or two ways to settle a boundary dispute between states.
One is in the original jurisdiction of this Court and the other one is in a compact according to Article I, Section 10 of the Constitution.
It seems to me that so far as our motion is concerned, we -- we certainly should not have to sit by and find out what the Federal District Court in Mississippi is going to do about the boundary.
So we have no forum except to come here.
Now --
Justice John M. Harlan: Could you intervene in the private litigation?
Mr. John L. Madden: We -- we could Mr. Justice Harlan but we do not wish to because we will find ourselves in the same position almost as if Mississippi would come in and we would not come in.
You see, we wouldn't have those two States vis-a-vis each other, contending in that same court and there would be no judgment that would be binding it if Louisiana would -- would come into it, then the judgment down there would not be binding upon the State of Mississippi.
Now, we -- we think that there are some five questions that we should go into as briefly or as fully as our time would permit and if the Court directs it, one does have jurisdiction, then properly invoked.
Second, is the justiciable controversy presented.
Third, are the States of Mississippi and Louisiana, the real parties of interest?
Justice William J. Brennan: I didn't hear that quite.
Mr. John L. Madden: Are the States of Mississippi and Louisiana, the real parties of interest?
Fourth, does the complaint state a cause of action?
Fifth, should the proceedings in the United States District Court be stayed?
Now, the jurisdiction of this Court is invoked of course under Article III, Clause 2, paragraph 2 of the Constitution in which the jurisdiction is conferred upon this Court and simply which the state is a party.
Then in Section 1251, Title 28, United States Code annotated, paragraph 81, there is a -- original and exclusive jurisdiction if the controversy was between the States.
Now, if there is a controversy of the state with a -- with the citizens of another State then that is the original jurisdiction.
Now we have had to bring in as defendants in this case, Humble Oil & Refining Company which is Louisiana's own lessee and the Zuccaros who are claiming the land in Mississippi.
I'll get into that in a minute to show why they're claiming to this water bottoms rather than a -- than the State of Mississippi because they are parties down then the suit below and I think that whether they are essential defendants or not, they certainly should be nominal defendants in here to present any objection if they might have to in defining of this complaint.
Now, I have here by my side and to the back of me an easel on which a map is presented.
Justice William J. Brennan: Mr. Madden, may I just ask, you're not suggesting that these private parties are necessary for this?
Mr. John L. Madden: No sir.
Justice William J. Brennan: In other words, you might -- your position is you could have brought this -- Louisiana could have brought this lawsuit against Mississippi and have ignored what's going on with this (Voice Overlap) --
Mr. John L. Madden: Yes and -- Mr. Justice Brennan, I think I'll have to clarify that answer in this respect and that Louisiana now is one of a -- practically, all the States of the Union that have the right title to navigable water bottoms by raising of a title that is by virtue of its inherent sovereignty and has held on to that.
But in Mississippi, the riparian owner owns the thread of the stream whether the stream is navigable or not.
Now since title and boundary has some qualities and elements that together or still we do not say that the Zuccaros are indispensable but they're certainly -- if we could distinguish between indispensable and unnecessary, then I think they should be before this Court.
They and the State of Mississippi have come in jointly and answered it or rather filed an objection to the filing of this complaint.
Justice William J. Brennan: But that any -- any -- in other words, what you're telling me, this is not really necessarily a fight between private parties in that sense, is that it?
That there is at least connected with that kind of claim something of Mississippi's claim intertwined, is that it?
Mr. John L. Madden: Yes.
For instance, Louisiana's interest, I -- that would be taken up in time by my co-counsel but Louisiana has a two-fold interest in this matter.
First, is proprietary interest, it owns these navigable water bottoms and it owns this producing well, that is the -- that's on state own land and it gets ruined, a substantial (Inaudible).
At the same time, the state has the sovereignty interest, the governmental interest that -- of regulating the production of the well, police powers and all of those are powers of sovereignty.
Now, Mississippi has those two, that's why they're in here because this boundary is so linked up with the question of a -- of its jurisdiction and of its sovereignty that it is necessarily a party before this Court and an -- an indispensable party because the judgment in favor of Louisiana on the boundary matter, of course would not be binding anywhere if the -- if it -- the other state involved was not before the Court.
Now, I want to get to -- this is not presented, may it please the Court, with any idea in mind of trying to take – to state Louisiana's position on any controversial issue but simply to show the Court the locale.
Now, this map was that if you're -- to some (Inaudible) miles above Natchez, Mississippi and it run going down for about 40 miles below.
Now, you will notice very large loops in that river and that's not just common to that particular area but it's all the way from Cairo, Illinois down to Baton Rouge, Louisiana.
Now in the Great Flood of 1927, the Corps of Engineers decided that they were going to have to devise some plan of shortcut of this river on the way to the dock and there were some 15 cuts.
In some of those instances, there were all erosions, man-made erosions but it made no particular consequence because when the water got through the -- the channel, it -- it went back to its old channel and so there wasn't any question there of -- of any -- any change in the boundary.
Now we get to this Glasscock Cutoff right here which is one of the most tremendous conversations that the Corps of Engineers have -- have -- have ever protected and tried to harness these waters of this area here.
Now this area is called (Inaudible) band area, that's the area in which the suit of Esso Standard versus Jones were decided by a Louisiana Court in which has absolutely nothing to do with this case because this case here, what we are dealing with now is the Mississippi River not an old flow that comes through here.
That involved the Esso case -- involved a question of where the State owned land and that of riparian owners ended, and again, in an area west of the river.
Now, in this case, when this -- the water started and comes down here and so were trying to get the (Inaudible) the water out of proposition.
The water was going very, very heavily against the Louisiana bank.
The plan at first was to -- was to have this in -- into to this bank of the Mississippi side here and that was a direct channel and get it out of this bend but they found out after many years, they have effort that it was too resistant.
Then the channel went at great speed directly across where you can see the green line here in this part of the river.
Now we say that this producing well was drilled on Louisiana land.
We do not even say now that this well or is not in Louisiana soil.
Chief Justice Earl Warren: Where was -- where is the well?
Mr. John L. Madden: The well, may it please the Court, is located approximately in this (Inaudible)
Chief Justice Earl Warren: Yes.
Mr. John L. Madden: My point is this.
Chief Justice Earl Warren: Yes.
Mr. John L. Madden: And the least -- the Louisiana stream runs out on the dam in Mississippi River into (Inaudible) point here.
Justice William J. Brennan: Is the well in the riverbed itself?
Mr. John L. Madden: Yes.
Now, the Mississippi says that this well is in Mississippi territory, we say it's Louisiana.
But now we have -- we say this that if that well has -- is in the State of Mississippi now, then it was brought about by this avulsive action of a tunnel and that therefore, the original boundary should not be stirred.
We're not getting into a question of accretion.
Accretion is not involved in this matter.
It's the underwater beds that's involved in this dispute.
Now, may it please the Court, I believe I haven't got a minute just to begin probably the second thought of the argument and that's on the -- on the justiciable nature of the controversy.
Chief Justice Earl Warren: Would you like to start that (Voice Overlap) --
Mr. John L. Madden: I would like to --
Chief Justice Earl Warren: We'll recess now gentlemen.
Argument of John L. Madden
Mr. John L. Madden: Thank you.
This morning in trying to describe the area and that was about all I was trying to do not to set up any particular process where we might locate the well because if -- if the motion is granted, then we go to a special mass and then we find out all of these matters on the merits.
But I referred to the lease this morning as covering an area since in here all the way down here.
That is an error.
Suppose that the fact did -- the argument I was making was at the time to get this water out of this (Inaudible) bend, the lease that we're referring to sought right here and learn toward down for quite some distance down and to what is called "Deadman's Bend".
Now, it's not all the -- Mr. Chief Justice Warren at we have a well that's located I think it -- if my worthy opponents will permit an area of this mass of thing have put up here says much, we can give you a better idea of where this well is located.
Now, we do not agree that that is the exact location with reference to its boundary, the boundary of the area.
Now, may it please the Court, in two other points, I would like to bring out first --
Unknown Speaker: May I ask (Inaudible)
Mr. John L. Madden: Yes.
Unknown Speaker: (Inaudible)
Mr. John L. Madden: No, sir.
Unknown Speaker: (Inaudible)
Mr. John L. Madden: No, sir.
That -- that was -- I believe it flow after flow of 1940-1941.
Unknown Speaker: (Inaudible)
Mr. John L. Madden: I believe that's correct.
It has some stream columns of (Inaudible) but I think the river itself is -- is confederating here as of beyond 1940-1941 to a map by the Mississippi River Commission.
The reference to the leasing of this area was Louisiana as the owner of the naval flow waterbeds throughout the State.
Then the lease Carter Oil Company on May 10th, 1948, it covered a large area as I have indicated here of the Mississippi River but particularly the area on which this producing well is located.
In here, annual rentals were paid until drilling again.
You see the annual drilling was the cause of cessation of the annual rental payment.
And having security permit to drill from the Louisiana Department of Conservation, a well was putted in on March the 2nd, 1954 at a site on the west bank of the river and in direction with drill.
Of course, that is necessary on account of the fact they can't drill in this if the river does not permit it.
And at a point which at that time and since, as far as I can think it go, the well is on the -- it was bottom under the river on the Louisiana side of the boundary.
The well was completed as an oil producer on April 27th, 1954.
Carter and Humble -- now reported Carter Oil Company and Humble Oil and Refining Company merged on December the 1st, 1959.
And from that time forward until the present time, Humble owns the lease.
All royalties were paid to the State of Louisiana from production as one-eighth on oil and gas and other liquid hydrocarbons until February 1st, 1963.
The suspension went into effect at that time for one expressed reason and one only.
And that was the filing of the Zuccaros case down in the Federal District Court in Mississippi.
Humble simply quit paying the state royalties.
Now, that is the condition of the -- in the history of the leasing in this particular area.
Now, throughout -- this is not the only well in the area.
It's only one in the stream here in this particular area of the river.
Now, this in production all around in this area here someday have been some dry oil, some producing oil wells, some producing gas well.
So it's not -- it's not located simply in an area that just has one well, but it just happens to be that this one well is there in exact disputed territory between Mississippi and Louisiana.
Chief Justice Earl Warren: May I ask, Mr. Madden, I thought you (Inaudible)
Mr. John L. Madden: I think, may it please the Court, that it should cover an area of that of -- I would say of about 12 miles of -- beginning here at the Glasscock Cut and running down here all the way -- all the way down up to the end of this -- this particular bend.
Now, the reason to that is this.
You might find some area down here, I don't know.
We haven't gone down that far where Mississippi may gain some land.
Unknown Speaker: (Inaudible)
Mr. John L. Madden: May gain some land as a result of imperceptible accretion.
Justice William J. Brennan: Well, have -- have you posed an issue on the complaint for that whole 12 miles?
Mr. John L. Madden: Yes, we -- we mentioned that whole area in the complaint but we did not make amidst in bound description of it.
We just refer to this general bend area of that Deadman's Bend.
Justice Byron R. White: But this area is affected by the same consideration that the specific well occasion --
Unknown Speaker: We had to stop the --
Mr. John L. Madden: That -- that's true.
Chief Justice Earl Warren: And that is all, all that is affected, that 12 miles?
Mr. John L. Madden: Yes, yes, that's correct.
Chief Justice Earl Warren: And is that affected by that cut that you showed us?
Mr. John L. Madden: We -- we say that it is affected by if it has been affected at all.
Now, Mississippi takes the position that this way only been Mississippi.
We say that it's still in Louisiana but that if there has been any change in the location of this well which would throw the thalweg, a wave on the other side of the well, then it has been caused by this man-made avulsion.
Justice William J. Brennan: And therefore does not affect Louisiana's claim?
Mr. John L. Madden: That's right.
That's correct.
Now, turning to the question of a justiciable controversy, Mississippi and its opposition had referred us to a number of cases.
We refer to them, ourselves, as being -- some of them as being requiring review test those other small labor.
For instance, we have cases here in which -- in Arkansas versus Texas which says that the Court go out of reaches behind.
It's behind the nature of the controversy and beyond its palm to find out the State's reapportionment in that.
And then we have another case, an old case of -- of Connecticut versus Massachusetts which says that the Supreme Court will not exert power to control conduct of one State at two of another unless threaten invasion of rights is serious and clearly established.
Then the case of Texas versus Florida, we have an alternative proposition.
Either the complaining State must have received some harm or injury from the other State or there must be a right, a substantial right involved that is in jeopardy and a right that could be imposed.
But the point that I wish to emphasize on Court is after reading these actions on original boundaries in this Court, I don't find any harm or injury mentioned.
Nothing is having anything to do with it.
It's just a question.
Is this dispute there?
Does it exist?
Is it real?
You don't have to have an arm conflict.
You don't have to go as far as the -- this Court acted very quickly at one time and saving that these two States against almost to all conflict back in 1901.
There were case in 201, 202 Louisiana 1.
But now, one or two of the cases I mentioned now I have taken party in this scope.
We have a bill of complaint here in the last case between Mississippi and Louisiana decided by this Court in 1955.
I have before me the complaint, the bill of complaints.
At bill of complaints says just about this, that a controversy has risen in the complainant, State of Mississippi and the said State of Louisiana that a few portion of the borderline between the two States that no agreement has been reached and can be reached so we are having to invoke the original-jurisdiction of this Court.
Now, we are trying to say that all of these harm and injury and of all of this acuteness, these behemoths between the States very severe pressure in the regulatory power simply is not required in this boundary actions.
Now, you take the case hereof Mississippi versus Louisiana which is decided in 1928.
There this Court said the record sustains the Master's finding that there is no proof that Louisiana or its citizens knew of or every east in any purported dominion of Mississippi over the disputed territory.
And it went on -- and the Court went on to say that the first knowledge of the complainant's witnesses knew anything about the dispute, derivable action was filed.
Now, in this case, Mississippi there is not saying that a boundary does not -- that a dispute does not exist.
It simply says that this is not justiciable enough to burden this Court with it or words to that effect.
Well, if -- if a controversy is justiciable and that the boundaries in dispute, I don't see where you can drive and decide on the weight of the controversy in deciding whether or not the jurisdiction held this Court should be exercised.
Now, they jointly deprive interest in opposing Louisiana's motion to file a complaint and it said on page 7 of the opposition, "We do not relinquish any right or title that we have to this area."
Now, if they don't relinquish it and -- and pour that up, then they are claiming it and they're claiming it against the State of Louisiana.
We believe that a justiciable controversy has been presented and the other requirements of whether a reasonable action had been made and I wished to turn over the remaining of our time to my co-counsel.
I think he would discuss the question of East Mississippi -- East Louisiana the reported in this case.
And that is a question and further has a cause of action had been stated.
We think that required the Court of our pleading that must be examined.
Chief Justice Earl Warren: Mr. Carmouche.
Argument of Edward M. Carmouche
Mr. Edward M. Carmouche: Thank you.
May it please the Court.
I think my colleague has illustrated them in the first 30 minutes that a conflict actually does exist between the State of Louisiana and the State of Mississippi.
And this is the only form that can finally determine the controversy been in exist between the two States.
We feel that there is considerably more involved in this suit from the fact that we have just lost our royalties.
Mississippi seems to infer in her brief that this is a very unimportant thing and that said she is not exercising her regulatory powers of this term that there's really no controversy.
But when you stop to think about it, of course, this well has produced to date almost a million dollars worth of oil.
It's still producing and we hope that it will continue to produce for a long time.
But that's not the -- the sole issue.
There are many other wells located in this area.
Now, as my colleague pointed out prior to this avulsion, prior to the cut being made by the United States engineers at Glasscock, the current in the Mississippi River was flowing east to the bank of Mississippi River.
That meant that erosion, if left, the natural processes would've continued to move east and we would've been cutting farther and farther into the State of Mississippi.
The United States engineers in making this cut and I may point out here that when we are referred to our Master that we can prove and will rely on the fact (Inaudible) one of the earliest cuts made by the engineers that they didn't know quite is much about the subject as they do today.
And by mistake, that cut was made in such a way that you -- part of the current, instead of being directed towards Mississippi, it now bounces all towards the Louisiana bank and we know that that thalweg will continue to move westward.
So, we have other areas, other wells affected in this suit of the companies and we believe that all of these things are at issue and cannot be decided unless this Court takes jurisdiction.
Justice Byron R. White: The thalweg is frankly a new word to me, that's the midpoint of the main channel?
Mr. Edward M. Carmouche: Yes, sir.
That is probably the preferred definition by this Court.
Also, there had been many definitions about thalweg in the past.
We readily admit that the thalweg is usually the boundary as East Mississippi's contention.
And if you will leave to nature that thalweg would be the boundary, the middle in the main channel.
But in an avulsive situation, the opposite is true.
If this is an avulsion, this Court has said time and time again that the boundary is the thalweg as it existed immediately prior to the avulsion.
And so we feel, therefore, that this movement to the west does not affect their boundary, it cannot affect their boundary and that we have a controversy before you.
Now, Louisiana and Mississippi are the real parties and the interest in this controversy.
Louisiana's claim here is both proprietary and governmental in nature.
As my colleague stated under Louisiana law, the State owns all navigable waterbeds to its boundary.
Mississippi, the riparian owner owns rather than the State.
Our State is entitled to all royalties that are payable from wells that are located on the beds of navigable waters.
And until the Zuccaros has filed this suit, we were receiving those royalties.
Then about three months prior to the filing of the complaint, before this Honorable Court, on the law of cease paying our royalties because of the cloud that had been cast on our title by the Zuccaros.
Now, in addition to this proprietary claim of -- of Louisiana, we are also acting in a sovereign capacity in regulating this territory.
The State of Louisiana issued the permit to drill this well.
The State of Louisiana granted this lease to Humble Oil and Refining Company.
The State of Louisiana set the allowable on this well.
We have exercised all police powers, the -- the exercise up until the filing of this suit.
Now, we also have exercised our sovereign capacity of collecting all taxes such as severance taxes and ad valorem taxes on the property involved.
Justice Arthur J. Goldberg: General, what has happened in (Inaudible)
Mr. Edward M. Carmouche: They are held in Esso, yes.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: Not in Court, but almost simply refused to pay us our royalties because this suit is pending against us and in the event the Zuccaros when this suit in Mississippi in the District Court, then naturally our title will be in dispute.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: Yes.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: Now, if this Court does not take jurisdiction, it's quite easy to see what's going to happen.
If a Mississippi jury approval determines in this damage suit that this land lies on the State of Mississippi and they've got to reach that position in order to give damages for trespass then, do you think that the State of Mississippi is going to sit on the fact and not collect severance taxes?
That they will not attempt to regulate the flow of this well?
That they will not set units?
We're going to have a multiplicity of suits out of this unless this Court ceases jurisdiction as it should on the prior jurisprudence.
The fact that Mississippi has not exercised any of these powers today is meaningless as long as there is a possibility that they might exercise it, our title will always be clouded.
Now, my colleague mentioned that a mileage of some 12 to 15 miles is affected by this avulsion.
Now, that's considerably more property than the Zuccaros own.
But being fundamentally and all company attorney and Attorney for the State, member of board, it's quite easy to see that nobody is going to make any beds and by any leases in that area until this situation is straightened up.
Justice Byron R. White: Well, Mississippi --
Mr. Edward M. Carmouche: Nobody -- sir?
Justice Byron R. White: Mississippi hasn't, for a minute, suggested that this well or any of this land is in fact in the State of Louisiana, has it?
Mr. Edward M. Carmouche: No, the Zuccaros say it's in Mississippi.
Justice Byron R. White: Well, I know, but does the State of Mississippi doesn't concede that it's in Louisiana?
Mr. Edward M. Carmouche: No, they simply say that they reserved all of their rights which is tantamount for saying if the Zuccaros win, we're going to step in.
We're going to let Zuccaro fight our battle for us and if he wins, then we'll lose.
Justice Byron R. White: So they -- you've asserted -- Louisiana has asserted its title to this land and Mississippi neither -- neither admits nor denies it?
Mr. Edward M. Carmouche: They reserve their rights which I think that's a correct statement, yes.
Justice Byron R. White: An ordinary pleading, I suppose, that would be a denial in effect?
Mr. Edward M. Carmouche: Yes, sir, but I do not believe that the question of jurisdiction of this Honorable Court should rest with what Mississippi wants to do.
Their decision to litigate or not litigate is completely immaterial.
The question involved before this Court is, does a boundary dispute exist?
Is it real?
Is it substantial?
Justice Arthur J. Goldberg: (Inaudible) Mississippi law, then the class suit belongs to the Zuccaro not with the State.
Mr. Edward M. Carmouche: That's right.
Yes, sir.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: So you can see why they would prefer to sit back and fight this in another day.
But if the Zuccaros win, they'll tax our well.
Now, what's going to happen in Louisiana?
Justice William J. Brennan: By the way, may I ask you this, you told that the Humble has stop paying oil lease --
Mr. Edward M. Carmouche: Yes.
Justice William J. Brennan: -- and has stop paying taxes to Louisiana?
Mr. Edward M. Carmouche: No, sir, it is paying taxes.
Justice William J. Brennan: And it's affecting Louisiana's allowable (Voice Overlap) --
Mr. Edward M. Carmouche: Yes, sir.
Now, here is our position.
In the event that you allow this Mississippi jury who would naturally be biased to determine whether this land is in Louisiana or Mississippi, from that moment on, these powers can be exercised by the State of Louisiana.
Now, what's the Humble going to do to us?
They paid out all of these losses over the past years.
We feel that certainly Humble would sue us for back raw offense, for back severance taxes.
They would destroy the unit because if this land is in Mississippi, Louisiana had no authority to sell a unit.
What about the money that they paid us as a lease bonus when they purchased this lease, the rentals that they pay prior to drilling the well?
They're just a multiplicity of problems involved in this thing in the mere assertion of jurisdiction is immaterial, I think, to the Court today.
Now, the very fact that the State of Mississippi is here acting jointly with the Zuccaros evidence is their interest in this controversy.
They are here primarily in a capacity of parens patriae.
As you pointed out in Kentucky versus Indiana, the appropriate appearance here of a State by its proper officers either as a complainant or defendant is conclusive on this point.
Now, Mississippi takes the position that this is a private controversy between the Zuccaros and Humble.
Nothing could be further from the truth.
They state even further that we're appearing here on behalf of Humble.
Louisiana's interest in this matter is that of lessor to lessee.
We have an additional interest in that these royalties ceased being paid to us as I pointed out.
I pointed out some of the consequences that would occur in the event that the Zuccaros either win or do not win their case.
We're going to have suits regardless of the outcome of this district -- of this Mississippi jury's verdict as to the ownership of this land.
And only last week, it's seem conclusive to us that when this Court rule in the case of Durfee versus Duke that you clearly saw the multiplicity of suits that could arise if you simply allow this Mississippi jury to go ahead and reach it's verdict.
Here, you have a situation where a question of ownership was tried completely through the State of Nebraska, all of its courts.
Then, you started out in the Missouri courts and it was removed to the Federal District Court in Missouri, came up completely through the court system to the United States Supreme Court at which time you pointed out only last week that had anyone come up here and asked for original-jurisdiction if the battle would have been settled.
That is what we are trying to avoid, gentlemen.
There is no way to settle this case unless we are here on a matter of original-jurisdiction and that is -- that is why we are here now in order to cut out this vexatious, the multiplicity of suits that are possible.
I believe that we have stated the cause of action in our complaint.
Now, in answer to our staple that we have stated the cause of action, Mississippi relies on two cases.
One is Esso Standard Oil Company versus Jones and St. Clair County versus Lovingston.
I have the honor to participate in the Esso Standard versus Jones case.
I think that the case has nothing whatsoever to do with the case in controversy here today.
In Esso versus (Inaudible) -- California et al., we were dealing with the ownership of accretions in the old bend way after a cutoff had been and the river was no longer effective in the old channel.
There, we had no question whatsoever of thalweg or boundary.
It was a question of whether when the pond of Mississippi was cutoff whether this body of water was a lake or whether it became a stream.
And the Louisiana Supreme Court held that as long as this body of water had (Inaudible) of its own, which it did at the time that the suit made in the stream regardless of whether that act was made by a man or nature.
And so, the second question in the suit was has this body of water silted up and became land instead of water, who owns it?
And the Court held that the riparian owners were the owners.
They reached that decision based on the Lovingston case.
But here, we have an entirely different situation.
We have an avulsive situation in the new channel.
In the old channel, your changes were gradual and imperceptible.
Now, how can Mississippi contend when you take a massive drainage and start excavating land that that's gradual and imperceptible?
It's simply beyond lee.
Yes, Justice Goldberg?
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: Yes, all you have to do is have a dispute in which the State is a party under Article III, Section 2 of the Constitution.
We are part.
We feel that we are a party to this controversy.
Our rights have been jeopardized not might, they're having it.
So, regardless with Mississippi's position in this matter, we feel that the Court should accept the original-jurisdiction as it's granted to you by the Constitution of the United States.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: No, sir, I said original-jurisdiction.
There is a distinction in boundary between two States.
You have exclusive and original in the case that you mention in the hypothetical, it is original-jurisdiction.
Now, I believe that we have discussed efficiently the Jones case and pointed out that that case is good law but it's simply inapplicable.
It deals with accretion.
Now, there are a myriad of cases dealing with avulsion, Arkansas versus Tennessee, State of Nebraska versus Missouri, and others too numerous to mention.
All of these cases hold that when -- where running streams of the boundaries between States, the same rule applies as between private proprieties and that is that if the stream from any cause, natural or artificial suddenly leaves its own bed and forms a new one by the process known as "avulsion", the resulting change of channel works no change of boundary which remains in the middle of the old channel.
Now, I think we've demonstrated in our complaint in up here today that we have stated a cause of action, we alleged in our complaint that this well was drilled in Louisiana and remains in Louisiana.
Therefore, we have a controversy.
Justice John M. Harlan: Are you going to deal though with the question of -- assuming that jurisdiction is accepted with -- as to whether the private litigations should be stayed?
Mr. Edward M. Carmouche: Yes, sir, yes, sir, that's my next point.
Justice John M. Harlan: Oh, I'm sorry, I'll let you finish --
Mr. Edward M. Carmouche: My time is up.
I'll have to handle that in reputation but I will have it, Your Honor.
Chief Justice Earl Warren: Mr. Teller.
Argument of Landman Teller
Mr. Landman Teller: Mr. Chief Justice and Justices of the Court.
It should be my object to show that there are really is not here alleged a permissible or legal boundary dispute that actually that's not an issue before this Court when you properly understand this situation and exactly what has here been alleged to the Court.
Just as Mr. Carmouche was sitting down, he says that an avulsion and he said it correctly according is an instance where the river leaves its bed and it forms a new one.
We have no such situation as that here involved.
We have here a case where the Mississippi River is now since 1812 has been and as far as we know, it will continue to be the boundary between the States in this particular area.
And if this Court is going to fix the boundary in this case which is the burying thalweg of that stream, you're going to be fixing the boundary from day to day and every other case up and down the -- well, the river is 2500 miles but there's not that much difference in the boundary.
I mean, for instance in -- in Louisiana -- between Louisiana and Mississippi, I asked the so-called expert to tell me the -- how much boundary there was from the 31st degree of north latitude to the 33rd which is the place of common boundary and he said that it's 198 miles.
Now, I don't know that.
That's what I just told.
They all in that area, some cases whether been either man-made or natural avulsion.
Now, there was no avulsion in the Duke versus Durfee case that you're dealing with.
And here is what we would like us to get before the Court.
It's -- it's alleged in the complaint and we thought it might be of service to might give you a little map and we put one up here.
This is it to my -- to the Court's left.
Now, we attached to a supplemental brief which we filed.
And I would a -- a map.
And this is the map of -- the original of which was -- was reproduced.
That's the gray document.
Now, superimposed is -- this is -- this happens to be a 1962 map of the general area.
Superimposed on that map, we have a point called (a) which is the head of the cutoff.
Now, that was a Glasscock Cutoff, which is shown here on this stream map.
Then we have a point called (b) which is a toe or foot of the cutoff.
If -- if you can follow me, I believe we can get this -- we -- we can accept the situation.
Chief Justice Earl Warren: Yes.
Justice John M. Harlan: (Voice Overlap) did you say you filed a separate amended brief with the map?
Mr. Landman Teller: We did geology in Graver.
And it -- it's supposed to have a map attached to it, each one.
So that is the foot of the cutoff.
Now, below that, south of that area is the area which Louisiana says is in controversy.
Now, if you will notice that the avulsion took place between (a) and (b).
It took place in this -- in this bend way which extends to the -- to your left or west on the map and went a course of 16 miles around the bend.
No question about the fact if that was an avulsion.
It was a man-made avulsion.
And it didn't change the title to anything either above it or below it.
Now, what Louisiana is here saying is that they also might -- that below this avulsion, below this point (b) that the title became fixed in the year 1939.
I even know that continues as the Mississippi River is the only river, it's the flowing stream.
It has a live thalweg.
And that was 16 miles up to 12 miles downstream.
That -- I don't know why they stopped there.
They could go on down from New Orleans if it was -- out of -- going down the state line.
And 12 miles downstream would be down to the water bends -- water grimes bend, I guess, that they -- they want this Court to inform the Master to tell him where the live thalweg of the stream is.
Justice Byron R. White: What's stream (Inaudible) in the -- in the location of the river down below the cutoff is because of the -- the water running in a different angle or --
Mr. Landman Teller: As -- as a result of the cutoff?
Justice Byron R. White: Yes.
Mr. Landman Teller: Well, that question has been pretty well laid at rest by the case of St. Clair County versus Lovingston which was decided in 1874 by this Court and which has been followed in the jurisprudence of -- it may have a set of rule of profit as follows on the jurisprudence of almost every State in the --
Justice Byron R. White: What that -- what that case holds?
Mr. Landman Teller: That case holds -- it doesn't make any difference whether it's natural or artificial just so long as the intention there was not to create a change in ocean.
And actually, there are reasons, and this is coincidentally in one reason we feel so sure about position, very recently the Supreme Court of Louisiana had occasions to deal with the situation in the bend way.
Justice Byron R. White: Well, do you understand that Mississippi or Louisiana, in making this assertion, that the location of the -- of the boundary line or the location of the thalweg below the cutoff has been radically changed as the result of the cutoff?
Mr. Landman Teller: I would think --
Justice Byron R. White: Is that in the assertion?
Mr. Landman Teller: -- that Louisiana is saying that they have a vested right to their boundary as it existed in the year of 1939 --
Justice Byron R. White: Yes.
Mr. Landman Teller: -- when that foot -- when that --
Justice Byron R. White: And that the boundary would change or that --
Mr. Landman Teller: And --
Justice Byron R. White: -- the thalweg was --
Mr. Landman Teller: And then --
Justice Byron R. White: -- changed as the result of the cutoff but that couldn't change the boundary.
Mr. Landman Teller: Well, they say that the -- that if they were entitled to a vested right as of 1939, the Court would have to form a map to go back and find out where the thalweg was in 1939 and fix that as a permanent boundary.
Justice Byron R. White: But they are saying that the thalweg has changed because of the cutoff.
Mr. Landman Teller: As a result --
Justice Byron R. White: Yes.
Mr. Landman Teller: -- of the -- of the cutoff.
Justice Byron R. White: And that a -- and that a -- a changing thal -- a thalweg, it changes because of a man-made cutoff that changed the boundary.
Mr. Landman Teller: Well, we are saying that the thalweg had changed it because of a man-made cutoff does not change the boundary.
That thalweg remains a boundary.
We -- Mississippi is saying that.
Justice William J. Brennan: Well, doesn't Louisiana say the same thing?
Mr. Landman Teller: No, if they did there'd be no dispute about the boundary and that's what I want --
Justice William J. Brennan: I don't follow -- I don't -- I didn't follow that fact.
Mr. Landman Teller: Well, then I -- I best --
Justice William J. Brennan: When you -- when you -- may I just -- are you just suggested that what they want have done in this action is that they're be determined as of 1939 the location of the thalweg as of that date.
Mr. Landman Teller: As of that date.
Justice William J. Brennan: Which they say is different by reason of this man-made avulsion --
Mr. Landman Teller: That is --
Justice William J. Brennan: -- on its location today.
Mr. Landman Teller: That's right.
Justice William J. Brennan: And they say that 19 -- it's location in 1939 marked the boundary between your two States.
Mr. Landman Teller: That -- that is what I -- that is what I understand to be their position.
Justice William J. Brennan: Well, now, I don't quite understand how this differs from yours.
Mr. Landman Teller: Our position is that that thalweg is still there.
That it has always been -- what we are talking about below -- below Glasscock Cutoff --
Justice Byron R. White: Yes.
Mr. Landman Teller: -- is the Mississippi River --
Justice Byron R. White: But you don't suggest that the thalweg in the same place today as it was in 1939.
Mr. Landman Teller: No, I don't suggest that --
Justice Byron R. White: (Voice Overlap) --
Mr. Landman Teller: -- and I wouldn't suggest this going to be in the same place in this location or any other along the river next year and because the vastness of the river, there is no (Inaudible) of those with or without man-made avulsions.
And the thalweg, this Court has always recognized from the earliest time in fixing what is the boundary between the State, not only in the Mississippi River but in any and every flowing stream that the mid-channel of navigation is the thought and that's the very line remains the boundary.
Justice Byron R. White: Well, to this thing it isn't very important than it is very often important to determine where the thalweg is.
Mr. Landman Teller: Well, I think it is an old matters of jurisdiction between the States and where the -- I mean to get a distinctive or exact line, no, I guess it is a good thing that you don't have to find out every -- everyday.
Justice Byron R. White: You're just saying that we shouldn't take the case because it's so difficult to -- you have to take another one tomorrow and the next day.
Mr. Landman Teller: That -- that is right and that's the reason it does remain as -- as it has been a set of rule of property for all of the years since these two States have been admitted into the union and since the -- since the union of the United States has been formed and that -- and that's what it almost has to be --
Justice Byron R. White: But Louisiana says that -- that the State -- the ordinary rule of the thalweg shouldn't apply here because the -- because the year of the area of all the cutoff really was a part of a man-made avulsion.
Mr. Landman Teller: Well, that's what they say.
Now, and their own Supreme Court of -- of Louisiana said in this Esso versus Jones case that they there say that no one would make such a contention.
Now, when you study that out, they just got through litigating that case and they don't -- and that's what the Supreme Court of Louisiana said.
The Supreme Court of Louisiana pointed out in dealing with this Glasscock -- the bend way, which was admittedly within the area within the -- is bypassed by the cutoff and was within the area of the cutoff.
Now, they -- they've said there that that line changed until the streams ceased to flow in the bend way.
And in saying that, they pointed out, they -- they adopted the rule that this Court has announced years ago in the Lovingston case in 1874 at St. Clair County case that it didn't make any difference whether this was a man-made cutoff or a natural that it was not done for the purpose of changing ownership and that the resulting effects of it did not change the boundary which remains the thalweg of the stream.
Now, that's the only boundary that -- if you don't have that boundary would you have?
What would you do?
How much more confusion will result if this Court says that the -- the Mississippi River is no longer the boundary between the two streams?
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: No, no, I am not because it appears from the complaint itself on the very phase of the complaint itself that that is the issue.
And if it be an issue that the thalweg itself, no -- what Mississippi says is that the thalweg of Mississippi River is the boundary.
If this Court says that's the only legal or permissible boundary, then there's nothing to appoint a Master thought because the only dispute that could then exist would be on which side of that admitted undisputed boundary is a particular bottom-hole location of all single oil well.
And that doesn't present any dispute between the States.
Justice John M. Harlan: What you are really saying I think it was that the motion for this file has granted you would be in here on a motion for summary judgment.
Mr. Landman Teller: That is correct and we are here now --
Justice John M. Harlan: But that isn't quite the issue you've gotten --
Mr. Landman Teller: Not --
Justice John M. Harlan: -- for us.
Mr. Landman Teller: Well, I don't believe that the way Senate -- we were saying that -- that on the phase of the -- the complaint, that no cause of action has been stated for other than the thalweg remaining as it always has been the boundary within the point of Mississippi River.
Justice William J. Brennan: In other words, below the cut.
Mr. Landman Teller: Below the cut.
Justice William J. Brennan: The thalweg maybe a shifting thalweg but there it always was and that's always marked the boundary and it's only within this bend where it's disappeared that you have to locate the existing thalweg to fix the boundaries and if --
Mr. Landman Teller: You just stated much better than I do, Mr. Justice Brennan, because that's what I've been trying to -- to get across to the Court that that is the only boundary that you can -- that's the only line.
That is the mid -- mid-channel.
That is crib of the stream.
And that has to be the boundary.
You can have no other boundary.
You can have no other division line but that thalweg.
Now, if you would take this thing in map which is precisely the -- the point.
If you look down at the -- at the bottom of it, there you see a meander line of 1828-1829.
And you will notice --
Justice Byron R. White: Now, let's -- let's assume for the moment --
Mr. Landman Teller: Alright.
Justice Byron R. White: -- that in 1939 and whenever does the cutoff was constructed that --within -- and it was put in the operation, it was in a month the channel of the river has shifted to the west in that 12 miles, 500 yards just from the -- just from the stream having a different speed and a different direction of the flow that -- at that point, say it had changed immediately and -- and obviously 500 yards.
Now, the -- the rule would be that -- that an avulsion doesn't change the boundary, is that right?
Mr. Landman Teller: That -- that is correct.
And -- and --
Justice Byron R. White: Well, the streams would still be 400 -- and that it'd be 400 and 500 yards away.
Mr. Landman Teller: Well, if that -- that is not true.
Justice Byron R. White: If in the State where it is, there would be a -- a change in thalweg just a little bit now and then but now it's changed 500 yards.
The river is flowing -- flowing in a -- in a different place.
Mr. Landman Teller: There is no contention that happened.
This -- this complaint alleges that in 1933, this ditch was done.
This -- this -- and in 1939, it finally became sufficiently open to be the -- be carrying the mainstream of the -- of the river.
Now, this area below it has always been there is no charge that -- they say that in 1939 after it became the main channel, after four years of -- of gradual open, that they should then have their -- the thalweg that then existed fixed as upon the boundary.
Now, this -- this complaint also alleges that there are 15 of these cutoffs that have been made by the -- the engineers up and down the -- the -- reaches up the river.
Justice Arthur J. Goldberg: (Inaudible) motion to file the complaint (Inaudible)
Mr. Landman Teller: Yes, sir.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: Yes, sir.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: That -- that is the contention and it's --
Justice Arthur J. Goldberg: -- be denied.
Mr. Landman Teller: We've not only denied, we say that that's not legally maintained, that that's a conclusion of the plea which it -- which this Court cannot -- cannot adopt and it's in the position now after properly evaluating these allegations to say that they cannot adopt it because this is talking about something below the cutoff.
Now, if the results -- if the resulting effects of this cutoff that -- that is if they are going to stop the processes of erosion and accretion below them, then we no longer have the Mississippi River in -- in practical effect as the boundary.
You just have a lot of masters that is going out and you'll have land on the Mississippi side that belongs to Louisiana of -- of the river and you'll have the same thing up and down -- i mean --
Justice Byron R. White: (Inaudible)
Mr. Landman Teller: Well, we've been here a long --
Justice Byron R. White: You never will otherwise.
Mr. Landman Teller: -- been -- been -- well after --
Justice Byron R. White: What are the years?
Do you know whenever those?
Mr. Landman Teller: Well, that's -- it's -- it's not my theory, Mr. Justice.
It's the theory that -- that has been existed --
Justice Byron R. White: Where in this --
Mr. Landman Teller: -- from the very beginning that -- of -- of the jurisprudence of this country that the -- that the main mid -- mid-navigation channel of the stream is the thalweg and that is known otherwise as the thread of the stream and that furnishes the boundary.
And it is capable of being ascertained at any given time that it becomes important by the (Inaudible).
Justice Byron R. White: That might be different tomorrow.
Mr. Landman Teller: And it maybe different tomorrow.
Justice Byron R. White: If somebody drills an oil well in the middle of -- of Mississippi River that -- today it might be in Louisiana, the next day in Mississippi, the next day after that it might be shipped back and it might be -- it might just change back and forth every week.
Mr. Landman Teller: Well, that's true and -- and what happened in this case was this.
After -- so, Louisiana gave a lease to this area below the cutoff, 12 Mississippi landowners gave a lease to a similar area because it had been to -- it's been established by this Court in -- by Mississippi courts and also by this Court in the case of Archer versus Greenville Sand and Gravel Company that the Mississippi riparian landowner owns to the thread of the stream to the thalweg.
Now, the Mississippi owners gave some leases to Humble.
Humble and its subsidiary Carter got together.
Now, this is in this record before you.
It's -- it's all attached to Louisiana's complaint and agreed upon a line and this is what they said and they announced the correct law and -- and so agreed.
And with the Court's permission, I would read from -- from the quotation from a portion of that agreement which I have -- we accorded at page 11 of our brief.
It's the one in blue.
"Whereas Humble and Carter recognized that the boundary between the State of Mississippi and the State of Louisiana," I'm talking about this area right here, "which is the community boundary between the leases owned by Humble above the scribe and the lease of Carter above the scribe is the thalweg or thread of the stream of the Mississippi, which thalweg or thread of the stream is subject to change from time to time assort to the natural action of the river and the accretion or erosion resulting there from."
And this was done in 1953, November the 25th, 1953.
In consequence whereof, the boundary aforesaid separating say at least all ownerships will be subject to change.
And whereas, Humble and Carter realized that the changes does occurring by natural action of the river in the thalweg or throughout the spring and consequently in the boundary between the States of Louisiana and Mississippi maybe sufficient in extent to disparage, disrupt and embarrass operations for the drilling, development and production of the lease and may give rise to operating problems.
It could impede efficiency and cause loss or confusion in a sense and whereas Humble and Carter have the opinion that under these circumstances, it is the best interest of each to agree affection to each with the other.
Upon an agreed value to separate their respective operational rights and ownerships so the set operating and only boundary between the parties shall remain fixed and determined, irrespective of the true boundary between the States of Louisiana and Mississippi at the present or any changes --
Justice Byron R. White: That would -- that would bind neither the -- that would bind neither the land in private land over in Mississippi side or either States.
Mr. Landman Teller: Now, that's exactly our -- our position that it binds nobody.
They -- they fixed -- now, they could've gone into -- to -- they could have -- they wished to have this operation line fixed as if -- as the line.
They could've gone to the Zucarros, who I happen to represent in the court below.
They could've gone to (Inaudible) Mississippi owns the land more to the thread of the stream.
And they could've told them "Now, this is what we are doing," but they didn't do that.
In fact, we didn't know of any disagreement until the Zucarros filed a suit and -- and Humble filed it as a defensive plea in connection with the defenses in this suit.
Now, that's -- that's the way it happened.
So --
Chief Justice Earl Warren: Mr. Teller, may ask you --
Mr. Landman Teller: Sure.
Chief Justice Earl Warren: -- this?
Suppose in the District Court, suppose we did not take jurisdiction of this case and in the -- the Mississippi District Court, the Mississippi claimants lost their case, would the State of Mississippi then abandon them in acquiesce in that?
Mr. Landman Teller: It is -- it is my understanding that -- that that would be the -- the case, that the State of Mississippi would then -- would likely exceed to their judgment and have no -- no claim.
(Voice Overlap) --
Chief Justice Earl Warren: I noticed that you -- noticed that you said you represented the private plaintiffs below.
Mr. Landman Teller: And -- and also I would've --
Chief Justice Earl Warren: Have you -- are you authorized to speak for the --
Mr. Landman Teller: All private --
Chief Justice Earl Warren: -- State of Louisiana (Voice Overlap) --
Mr. Landman Teller: I'm a spe -- I'm a special of -- the Attorney General's kind enough to appoint me as a special assistant in this case for this purpose and I do know that that is the position of the State of -- of Mississippi which the Attorney -- the Assistant Attorney General here will -- will vouch for me.
Chief Justice Earl Warren: Would that mean anymore than that it is the opinion of the present Attorney General that that would be the situation?
Mr. Landman Teller: I don't -- I personally don't believe it would mean anymore than that because I don't see how you could speak to anybody voting for what he --
Chief Justice Earl Warren: Well, that's what I mean.
But -- but this litigation would -- they'd still be subject to litigation, would they not, over in -- over in Louisiana?
Mr. Landman Teller: Well, I -- I don't think that -- I think that the point is that if the thalweg is the true boundary, that there's nothing that this Court will ever say or its Master could ever say but that the thalweg is the boundary.
And that's just as real boundary as -- as can be.
It's just like this Court has said, it's a monument, it -- it's a line.
And when -- when the Court appoints the Master to fix one of these boundaries, when he gets to the thalweg, he wanted for more latitude down the thalwegs to another.
Now, that's what they've always done.
Chief Justice Earl Warren: Aren't you outguessing the Court -- what the Court might do?
Mr. Landman Teller: I'm not on position --
Chief Justice Earl Warren: You say --
Mr. Landman Teller: -- to do so.
Chief Justice Earl Warren: You say that the Court couldn't do that, how do you know they couldn't?
Mr. Landman Teller: I -- I didn't mean -- if I so stated, I did not mean to convey the impression that the Court could not (Voice Overlap) --
Chief Justice Earl Warren: Well, isn't it bound by -- we're bound by --
Mr. Landman Teller: By -- by -- they -- well, if -- if the --
Chief Justice Earl Warren: Yes.
Mr. Landman Teller: -- if the thalweg is the boundary between the States, then the Court would -- could so find now that the thalweg is the boundary.
Chief Justice Earl Warren: Yes.
Mr. Landman Teller: Then there would be controversy if -- when Mississippi says that that's the boundary and Louisiana says that that's the boundary, they ceases to be a dispute as to where the boundary is, just like two adjoining land, as I see it.
If you reach out in my brief, where the boundary goes to the creek, well --
Justice William J. Brennan: Mr. Teller, what fact (Inaudible) in this lease?
Mr. Landman Teller: Yes.
Justice William J. Brennan: Several times emphasizes, recognition that the boundary may change because the thalweg changes --
Mr. Landman Teller: That's right.
Justice William J. Brennan: -- to do and I'm referring particularly natural action of the river and accretion or erosion resulting there from.
But my understanding is that the claim of Louisiana, as pleaded is, that whatever has happened to that thalweg below the foot of the cutoff, is not to natural action of the river but has been due to the man-made avulsion of -- of, namely, the cutoff just above.
Mr. Landman Teller: I believe that is from --
Justice William J. Brennan: Well, wouldn't that make a different in the law (Voice Overlap) --
Mr. Landman Teller: I don't think it makes -- no, because I don't think that they are privileged to make -- to -- to deliberately maintain that position because the law is, as we understand it, that whether that cutoff wasn't -- wasn't a natural cutoff or a man-made avulsion if it does not change anything except the area within the avulsion itself.
It does not result to change.
Now, there was testimony --
Justice Byron R. White: But in that effect said that this land below is within the avulsion.
Mr. Landman Teller: Well, it is not.
Justice Byron R. White: Because there is a -- the assertion is that there was -- there -- as I understand it, at least that within their assertion -- their assertion includes the proposition or the possibility that there was a radical change below the cut which was part and parcel of the man-made avulsion.
Mr. Landman Teller: Well, of course, that would have to be a -- it will have to be dissolved by evidence and held --
Justice Byron R. White: That is --
Mr. Landman Teller: -- held.
Justice Byron R. White: -- the point.
Mr. Landman Teller: -- that -- that's how -- how radical that change was --
Justice Byron R. White: That's the main point.
Mr. Landman Teller: Well -- which we -- but -- but we don't -- it's -- it's not -- it -- it is nevertheless, is -- is not the -- if -- they don't charge that it was a change that -- that the change itself was not imperceptible.
They don't charge that plainly or unequivocally and they don't mean to charge it because they're not going to prove that it wasn't -- actually, it didn't get to -- to where it is today until 1954, which was some 20 years after the original cutoff.
And they do not charge that anywhere.
It's their duty to charge that plainly and unequivocally in their complaint.
They do not do that.
They simply said that -- that any changes, no matter how -- how they may be, how imperceptible they may be, all the results of the avulsion, they do not charge that the -- that the change which we --
Justice Byron R. White: Even there was a radical change, he wouldn't be making his argument, is that right?
Mr. Landman Teller: Well, I would still be making the argument that -- that the -- that you still have to go.
But, in other words, you don't have a boundary within a boundary, that the Mississippi River is itself the boundary.
And it always has been below that.
And if the thalweg itself shifted in there, no one is going to see if it did shift within that boundary that it would still remain that it has to remain the -- the exact line which divides the two jurisdictions as to boundaries.
Justice Arthur J. Goldberg: (Inaudible) never the law even if it did (Inaudible) in that effect.
Mr. Landman Teller: Well, they -- they --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: They say that the change occurred as the direct result of the cutoff but they don't say to what period of time that change occurred.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: Well --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: But the point is, they don't -- do not say that that movement in the thalweg below Glasscock was itself a precipitous nature at all.
They -- they do not purport to say that.
Justice Arthur J. Goldberg: But your argument before (Inaudible)
Mr. Landman Teller: Well, I would even then -- I would -- I would still think that the Mississippi River would remain the boundary and that the thalweg in that river as it existed and as that river may change, would necessarily continue to be the boundary.
And I think that --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: Yes, sir.
Justice Arthur J. Goldberg: What the (Inaudible)
Mr. Landman Teller: Well, I think that the -- that the -- in St. Clair County versus Lovingston.
Justice Hugo L. Black: St. Clair County versus Lovingston.
Mr. Landman Teller: Lovingston.
Unknown Speaker: (Inaudible)
Mr. Landman Teller: That's 23 wall, page 46.
It's -- it is cited in our supple --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Landman Teller: Well, no -- no, it -- it involves a man-made ditch, which would -- will argue this having changed of the boundary.
It -- it's the same thing.
Justice Arthur J. Goldberg: It is from the (Inaudible)
Mr. Landman Teller: 46.
And of course, they are just innumerable annotations on that same subject, which we have cited in our -- in our supplemental brief in -- in one study, they are.
I believe it is.
But --
Justice Hugo L. Black: As to the next page, for that to whom --
Mr. Landman Teller: 130 --
Justice Hugo L. Black: -- who own the accretion, is it what you (Inaudible)
Mr. Landman Teller: That's right and this is the -- this is the same thing because the accretions are going to be --
Justice Hugo L. Black: What do you think is the difference between your -- Mississippi and Louisiana, any?
Mr. Landman Teller: I really don't think there is.
I think that it's not a --
Justice Hugo L. Black: In other words, you think there's no controversy between you at all?
Mr. Landman Teller: Well, this is the reason we say that.
Justice Hugo L. Black: Where is this land?
Mr. Landman Teller: The -- the land is in the bottom of the bed of Mississippi River.
Justice Hugo L. Black: But is it in Mississippi or Louisiana?
Mr. Landman Teller: Well, now, it's -- it's not a question whether -- whether the land is (Voice Overlap) --
Justice Hugo L. Black: Which one do you claim it stands?
Mr. Landman Teller: We claim the oil well is now on the Mississippi side of the thalweg.
Justice Hugo L. Black: Now, why do you claim it's there?
Mr. Landman Teller: Because thalweg is west of that.
Justice Hugo L. Black: Because the thalweg is --
Mr. Landman Teller: Is west of the bottom-hole --
Justice Hugo L. Black: Is it always -- is it always been west of that?
Mr. Landman Teller: Since -- since the well was drilled in 1954 according to --
Justice Hugo L. Black: Whose have been paying taxes to the --
Mr. Landman Teller: Louisiana.
Justice Hugo L. Black: Louisiana.
Has it been paying in the Mississippi?
Mr. Landman Teller: No.
Justice Hugo L. Black: Have they ever paid any tax to Mississippi on that land --
Mr. Landman Teller: Never.
Justice Hugo L. Black: -- during all the history of the (Voice Overlap)?
Mr. Landman Teller: Not -- not during the time that the oil well has been drilled.
It was a directionally drilled oil well.
Justice Hugo L. Black: They claim that -- there's been a shift due to the man-made avulsions, is it not?
Mr. Landman Teller: That -- that is -- that there's a shifting --
Justice Hugo L. Black: What do you say about that?
Mr. Landman Teller: We -- we say that the -- that the thalweg that is the boundary --
Justice Hugo L. Black: Do you say there has been a shift of it or not?
Mr. Landman Teller: There has been a gradual -- there has been a shift and --
Justice Hugo L. Black: Caused by what, do you say?
Mr. Landman Teller: It's due to the operation of the river.
There have been causes as the result of the avu -- avulsion.
Justice Hugo L. Black: Do you agree with them it is caused by an avulsion, man-made avulsion?
Mr. Landman Teller: No.
Justice Hugo L. Black: You do not?
Mr. Landman Teller: Well, now, in this sense, we may agree that -- that that is what changed the -- the way the river was running.
And -- and I dare say that --- that experts will readily testify, that had that change not been made.
The -- that the channel -- main channel may have continued more to the west -- more to the east than it did.
We can conceive that that evidence would be readily forthcoming but that does not change the boundary, which is the Mississippi River, and which is the main channel navigation in there.
Justice Hugo L. Black: But it did change the Mississippi River itself, do you say?
Mr. Landman Teller: No.
Justice Hugo L. Black: Didn't you say it shifted?
Mr. Landman Teller: Well -- well, not specifically.
I don't -- I know of no shift in the river (Inaudible) in occasion.
Justice Hugo L. Black: How does it happen that Mississippi is claiming land now but didn't claim before 1954?
Mr. Landman Teller: Well, in -- I don't -- I guess that Mississippi is in the sense that the Zucarros have ascertained --
Justice Hugo L. Black: Alright, what --
Mr. Landman Teller: The same thing, because -- because that -- the channel of navigation is now to the west, all west --
Justice Hugo L. Black: Channel of navigation is now to the west?
Mr. Landman Teller: To the west.
Justice Hugo L. Black: Caused by what?
Mr. Landman Teller: Just the -- I guess it could've bee -- suppose it did result from the --
Justice Hugo L. Black: Do you claim that the -- the channel changing has given the land to the Zucarros because it's non-Mississippi?
Mr. Landman Teller: It's within -- the -- the land is now -- that the well is the bottom-hole of that well is now in Mississippi.
Justice Hugo L. Black: And they claim that it didn't -- never has been in Mississippi.
Mr. Landman Teller: That's right.
Justice Hugo L. Black: And it's not yet and that there has been no shift to the river that gives it to Mississippi.
Mr. Landman Teller: They -- they claim that the -- that the (Inaudible) fixed as it was in 1939 where the main channel was at that time.
Justice William J. Brennan: Mr. Teller, don't you have to say that sure, there's been a shift in -- in favor of Mississippi but if the shift through the natural action of the river and Louisiana says it is not, it's a shift due to this cutoff man-made avulsion and therefore, the ordinary rule which would give you the benefit if it were due to natural action of the river doesn't apply but the old location of the thalweg determined whether it's Louisiana or Mississippi and why isn't that a controversy between the two?
Mr. Landman Teller: Because of this, we say that there has been a shift.
We say that the river remains a boundary.
Mr. Landman Teller: And it had made no difference why that shift in the thalweg occurred from a natural avulsion or a man-made avulsion, that the thalweg, as it changed, change the state boundary with it, so that the shift was a natural shift in the -- in the state boundary.
Justice William J. Brennan: Well, that's a question of law, isn't it?
Mr. Landman Teller: I don't think so.
I think it is a question --
Justice Byron R. White: (Voice Overlap) --
Mr. Landman Teller: -- yes, I think it is a question of law, that's what I mean.
Justice Byron R. White: (Voice Overlap) minimum that it's a question of law, is it not?
Mr. Landman Teller: What?
That's a question of law which --
Justice Byron R. White: And it maybe that you have to have -- if the -- if the questions were decided in certain ways, maybe you'll have to have a fact.
Mr. Landman Teller: Well, I don't think so because I think it that the -- the complaint is so clear in -- in its recitation that all of this occurred in the bed of the river that all --
Justice Byron R. White: Do you say -- do you say that conceding -- conceding that the river shifted due to the man-made avulsion nevertheless as a matter of law?
Mr. Landman Teller: That's exactly our position.
Justice Byron R. White: Yes.
Mr. Landman Teller: And that the thalweg is the boundary -- has been the boundary and will remain the boundary.
Justice Hugo L. Black: Do you say that the shifted thalweg remains the boundary?
Mr. Landman Teller: Yes, that's right.
Justice Hugo L. Black: Wherever it go?
Mr. Landman Teller: Wherever it go.
Justice Hugo L. Black: Year to year?
Mr. Landman Teller: From year to year, from day to day, from time to time.
Justice Hugo L. Black: Even if it's done by a man?
Mr. Landman Teller: If it's done -- if it -- yes, if -- if the resulting effect above or below it is done by a man, yes, as long as that bend of the stream remains the boundary that that shifting thalweg remains (Voice Overlap).
Justice Hugo L. Black: Well, I -- what else would make in the principle as to whether it's above or below if the river came to the question of whether it's changed by a man or artificially.
Justice Byron R. White: Well, you would say that we get the same result, the same question as supposed that a man didn't make this avulsion but it is occurred naturally.
Mr. Landman Teller: I think the same question would be posed and I -- I don't -- I think the same answer would -- would have to result that the thalweg in Mississippi River as it existed below the -- the area of the avulsion, no matter -- whether somebody could've find or not to find as it came (Voice Overlap).
Justice William J. Brennan: Well, I -- I may suggest, Mr. Teller, I would suppose then that if procedure means much in these cases have -- doesn't mean as much that uses that -- your tactic is not an opposition to the motions were filed but rather let them file on a motion to the solicited complaint on the ground it doesn't state the cause of action.
Mr. Landman Teller: Well, as we understand it, that -- that it is -- that it's true but we understand that's the -- why I say it's a reason that you dismissed the complaint.
That's what the Court did in Massachusetts.
Justice William J. Brennan: You mean why -- why -- that's the reason why we refused to accept.
Mr. Landman Teller: Or refused to -- to let them file.
That was done in Massachusetts --
Justice William J. Brennan: It may be --
Mr. Landman Teller: -- versus Missouri.
Justice William J. Brennan: -- may be -- yes.
Mr. Landman Teller: And in looking at it, it was -- it does not state the cause of action then that is a ground for declining to permit the complaint to be filed and that's what this Court has done consistently in -- in --
Justice William J. Brennan: In this two, you said all you want to state in support of the motion to dismiss if you had filed one.
Mr. Landman Teller: Yes, that -- that's all I could say.
I couldn't say anything more on -- on the ground that it states no cause of action.
Now, we do say this that there is no controversy between the State with relation to where that well is because now the Zucarros had sued Humble Oil Company.
They're asking not in the work of Louisiana.
The fact that Humble has elected to suspend its royalty payments to Louisiana is -- is not a -- a reason for this Court to assume jurisdiction.
If -- if Humble is supposed to pay Louisiana, all Louisiana has to do is to sue Humble in its own courts, any -- as it may elect.
And where this well -- suppose the location is --
Justice Hugo L. Black: Well, wouldn't it still depend on who -- where the river is, where the land was in Mississippi or Louisiana, wouldn't that be the crucial issue to go up?
Mr. Landman Teller: I think it's -- I think that the boundary is a crucial issue.
One -- if you -- if you say this Court was to decide that the boundary is the thalweg as it now exist, then that leaves no dispute about the boundary or I will say the well -- then it's just a matter of -- of ascertaining a fact but this Court doesn't have to take jurisdiction or wouldn't take jurisdiction.
I shouldn't think you undertake to find as to where that directionally drilled well, where it is found.
If its west of this undisputed thalweg, well, it's in Louisiana, that's the end of it.
I mean, that's a -- that's a mathematical or ascertainable fact.
We are here if its east of that thalweg, then what difference would it make to Louisiana?
It's like -- you should be not so for me what care I have for you'd be but --
Justice Hugo L. Black: The difference of that in Illinois well (Voice Overlap) --
Mr. Landman Teller: Well, that maybe true but -- but it -- it would do -- it would -- that -- that would be so but it wouldn't present a dispute with the State of Mississippi because Mississippi has taken nothing from Louisiana.
Justice Hugo L. Black: (Inaudible) isn't it?
Mr. Landman Teller: No, I don't -- now, the Zuccaros are private citizens filed this complaint for a self-surfaced trespass and -- and that's what they say activated this cause of action but they are saying --
Chief Justice Earl Warren: Will the State of Mississippi get royalties if -- if your people win?
Mr. Landman Teller: They would get no royalties because they have no ownership.
They would get severance taxes and --
Chief Justice Earl Warren: Yes, severance taxes and --
Mr. Landman Teller: -- they would.
Chief Justice Earl Warren: Yes.
Mr. Landman Teller: And they -- they would have --
Chief Justice Earl Warren: They'd have -- they'd have (Voice Overlap) --
Mr. Landman Teller: And they would then -- they would then be within -- begin to regulate no (Voice Overlap) --
Chief Justice Earl Warren: (Voice Overlap) --
Mr. Landman Teller: -- well and there would be a -- a problem of -- of the fact that the well was in Mississippi which would mean if it the (Inaudible) win the case, no doubt, they will make every such contention such as that.
That well is in Mississippi, should be -- and royalty and severance taxes should be paid and -- and the like.
I don't think there's any question but that -- that would -- would follow.
But that presents no dispute with the -- with Louisiana between -- I mean the claim would be against Humble, it wouldn't be against Louisiana.
And if -- if we found the boundary -- if we once (Voice Overlap) --
Justice Hugo L. Black: Suppose that half of Mississippi -- suppose it would half Mississippi instead of just being this much, I mean half of Louisiana.
You would have a title --
Mr. Landman Teller: You -- you mean -- if -- if the -- if the river --
Chief Justice Earl Warren: -- if the river to the State and you say, "Well, that doesn't dispute between landowners".
Mr. Landman Teller: Well, I don't think it -- I mean once the boundary is at stake, then the consequences of the --
Justice Hugo L. Black: So that you say it shifts along with the thalweg.
Mr. Landman Teller: Well, that's right but -- but -- once if -- if the Court -- if this Court determines that that's the boundary, then the consequences which broken my determination, no matter how much it involved, would just -- would just certainly fall in place as I see it.
That -- if that's the boundary, that fixes that part of the property.
And -- and that, in our view, is the -- if -- is that -- you don't say that there is no dispute about the boundary and that the other matters, without that boundary dispute, do not present a case that justiciable conquest between the States or one which this Court should take jurisdiction of.
Justice Hugo L. Black: If the Court permits the file, are you objecting the saying if the (Inaudible) influence?
Mr. Landman Teller: Yes, we are.
Justice Hugo L. Black: Why?
Mr. Landman Teller: Because we see -- well, actually, I get the practical consequence of that would be that the parties migrate because it's going to be expensive to these private landowners to -- to try this litigation.
But I don't know of any reason why the Court would -- would want to stay in each proceedings, involving of a -- a disputed claim between the Zucarros on the one hand and Humble Oil Company on the other, especially when Humble says that they agreed upon the boundary which was not the state line and as a condition to that agreement, as you will read, they were cited in --
Justice Hugo L. Black: Does that lawsuit depend on where the -- other the lands in Mississippi or Louisiana?
Mr. Landman Teller: Oh, absolutely -- it depends.
They would have that --
Justice Hugo L. Black: Where it depends on?
Mr. Landman Teller: As a -- as a condition to recover.
They would have to prove that they own this land and that this -- this oil company can't directionally drill the well underneath their land and extracted their oil.
They have to subs that tre -- trespass and as an -- and they're see -- seeking a monetary judgment from Humble thalweg.
Now, there's just one of the thing that I want (Voice Overlap) --
Justice Hugo L. Black: Crucial issue being whether it's in Louisiana or Mississippi.
Mr. Landman Teller: That -- it would even go to the jurisdiction.
I don't think there's any question about that and they've raised all kinds or forms and would have to be -- the -- the -- but I think it would fall -- that the case would rise or fall on that determination.
Unknown Speaker: That's where they --
Mr. Landman Teller: And I might point out that Humble agreed on this arbitrary line with its subsidiary (Inaudible).
They recognized that several units that they have been informed with the State Oil and Gas Board who are then west of this line.
Justice Byron R. White: Has there been any suggestion that Mississippi and Louisiana has any kind of conversation about a settlement of this case or about it?
Mr. Landman Teller: Well, my -- my associates won't take it up right now but they didn't -- Mississippi didn't even know the -- the suit was going to be filed until they got processed.
So they couldn't -- so there wasn't any (Inaudible)
Thank you very much.
Chief Justice Earl Warren: Mr. McLendon.
Argument of Martin R. Mclendon
Mr. Martin R. Mclendon: Mr. Chief Justice, Associate Justices, may it please the Court.
As we understand the issue present before the Court, it's on a motion of the State of Louisiana to file or be permitted to file a complaint, an original action.
And as we understand, we are to take that complaint as it is written and apply the law as this Court has written it to the facts as they are undisputed.
Now, to begin with, I think that what the Court said in Arkansas versus Texas is material to this particular observation in determining -- the Court said this, "In determining whether the interest being litigated is an appropriate one for the exercise of a reasonable jurisdiction, we, of course, look behind and beyond the legal form in which the claim of the State is pressed.
We determine whether the claim is that of the State, whether the State is indeed the real party in interest.
We think it has been amply covered but we want to restate it for emphasis.
We think that the complaint in this case does not comply with that rule because there's no charge that the State of Mississippi is or has been or is attempting to deprive the State of Louisiana of anything.
Justice Hugo L. Black: Well, is it?
Mr. Martin R. Mclendon: It is not.
Justice Hugo L. Black: Why -- why is Mississippi defending?
Mr. Martin R. Mclendon: We will may defend it, Your Honor and as (Voice Overlap) --
Justice Hugo L. Black: Depending on the ground that it's in Mississippi?
Mr. Martin R. Mclendon: We will defend -- may defend it on -- based upon the ground of the citizens of Mississippi who had sued a lessee of the State of Louisiana because of peculiarities of the two -- the law of the two States, the Law of Louisiana being the -- the State owns, as trustee for the people, the bed of the navigable stream, whereas the Louisiana, the abiding property owner owns the bed of the stream to the boundary line.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: If the Court please, I support the contention of my colleague that the thalweg -- the thalweg, as it's been called, is the boundary line between the States at the point in question.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: Well, this engineer, this is the navigational chart, that the only river pallet is used.
They follow -- I think they follow that red line that is the thalweg, the main channel.
According to the engineer, the place is on there, the oil well and the abiding property of the Zuccaro goes out to that river stream and not exactly into the lower -- the property goes to that point.
Now --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: If it is determined that -- that it is on the eastern of the thalweg, yes, sir.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: Yes, sir.
Justice Arthur J. Goldberg: Is that correct?
Mr. Martin R. Mclendon: Yes, sir.
Justice Arthur J. Goldberg: (Inaudible) is that correct?
Mr. Martin R. Mclendon: Yes, sir.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: Now, that -- that I want to get into that, if the Court please, in just a minute.
I want to explain that it's our understanding, I don't think it's been probably brought out here today.
But I want to explain it with -- if I may get to that point (Inaudible).
Louisiana as the lessor has been receiving royalty payments.
They regulate the production and receive taxes.Mississippi had not attempted to regulate production or anything else.
Now, this Court has held that its original-jurisdiction was in controversies between States was a good substitute for diplomacy and war between nations, peculiar to our federal system.
And, of course, in two cases that I have referenced to, war or armed conflict was narrowly averted, that is Louisiana versus Mississippi and Oklahoma versus Texas, Oklahoma versus Texas having to do with oil well, Louisiana versus Mississippi having to do with oyster fishing rights.
We have pointed out, we think, that Mississippi is not presently attempting to assert any jurisdiction over this particular property.
Now, with the Court's permission, we want to take issue or something that Mr. Carmouche said a minute ago and that there's a presumption of bias on the part of the jury.
We -- we respectfully reject that contention and now ask the Court to disregard it.
We think it's offensive to our jury system as it exist.
And of course, as Justice Goldberg pointed out, that we -- if the -- if it is finally determined that this oil well is in Mississippi, we intend to exercise jurisdiction.
Now, the avulsion which was caused by the United States Corps of Engineers joining this cutoff here is that cutoff as it is now.
This is the map in 1930 and 1940-41.
This is a map of 1962.
The cutoff leads (Inaudible) bend way.
And this became the main channel of the stream.
On each side of this river, because of that avulsion, the State of Mississippi to this (Inaudible).
The boundary line goes all up here.
That is the remaining boundary and continues to be the boundary under the law of this Court as it was established because that was an avulsion and avulsive cutoff immediate and so that something remained on the other side of the river.
Now, down here where this property is located, the (Inaudible) there is almost (Inaudible).
This shift has been gradual and imperceptible and this Court has held that -- that is a natural right, I believe they used the word "natural right' it -- because he who stands to gain by an accretion is not law -- responsible to anyone for because he could not recover for his loss by an erosion.
Now, that was what --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: Natural and imperceptible.
But it does not necessarily have to be natural according to St. Clair County versus Lovingston.
In that case, as long as --
Unknown Speaker: (Inaudible)
Mr. Martin R. Mclendon: -- as long as it's gradual and the party claiming the benefit is not liable and did not construct the artificial (Inaudible).
In that case, the City of St. Louis had built a dike out.
And the water had accreted around behind it.
And this Court said, following the old common law, that so long as the particular individual who was claiming the benefit of that accretion had not caused it, he was -- he was entitled to receive the benefit side.
And of course, the rule we're talking about is that accretions belong to the abiding property.
Justice Hugo L. Black: That was the accretion of -- on the soil --
Mr. Martin R. Mclendon: Yes, sir.
Rebuttal of John L. Madden
Mr. John L. Madden: -- back to the stream.
Rebuttal of Martin R. Mclendon
Mr. Martin R. Mclendon: That's right, yes.
Justice Hugo L. Black: And they said that the man owning the property next to it was like an owner of flocks and herbs, that they're entitled to the natural inquiry.
Mr. Martin R. Mclendon: Natural inquiry.
Justice Hugo L. Black: But this they claim is not natural inquiry.
Mr. Martin R. Mclendon: Well, that I think --
Justice Hugo L. Black: They claim that this is due to man-made work.
Mr. Martin R. Mclendon: That -- if the Court please, we submit and Mr. Goldberg read the particular point, paragraph 17 of the complaint, we submit is the conclusion of the pleader.
Justice Hugo L. Black: That's what the -- of course, he concludes something when they alleged it, aren't they?
Mr. Martin R. Mclendon: Well --
Justice Hugo L. Black: What they're alleging is that this is a man-made work in this file question.
You might say that we would make them tell on how -- what men did and going to details about when he did it and who did it and how much he paid for it but after all, what they alleged is it's a man-made job, don't they?
Mr. Martin R. Mclendon: Well, they allege, if the Court please, that the man-made avulsion between points (a) and point (b) on this map, holds that there are accretions down here and because of this avulsion to point (b) that it should -- that it effected and changed the property ownership down to this point and we admit that it changed the property ownership here and changed the boundary between the State.
But we say at point (b) at the foot of that cutoff and this is mass made by -- under the direction of the President of Mississippi River Commission.
We think the Court can take judicial knowledge of the fact that the particular problem in this complaint or involved in this point is below the cutoff, outside of the area that was changed by avulsion.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: Well --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: That's right.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: Well --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: -- if -- if --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Martin R. Mclendon: If the Court please, the -- you have anticipated me once more and we're going to get to that point.
We think that if the Court follows the rule that it first announced, in (Inaudible) versus Illinois and continues to adhere to the fact and the latest -- latest expression concerning, it was in Mississippi versus Louisiana 300 U.S. and continues to maintain that in areas like this, the live thalweg is the boundary line.
Now, that has been followed in every case involving States boarding upon navigable streams, the Missouri and the Mississippi River.
On Missouri versus Kentucky, Louisiana versus Mississippi, Arkansas versus Mississippi and Tennessee and all other States up and down the river, this live thalweg, this channel that the river both kept and feud because it is followed, the main channel of the stream, as I understand that's a German word and it's been used worldwide as -- where live streams or boundaries between States.
Now, this Court in the last case that it had between these two States, used the live thalweg and the dead thalweg as in preference to metes and bounds descriptions.
It would use a metes and bounds description to the point where the river still flowed or whether it had ceased to flow but was still un -- underwater and they would use the dead thalweg or the live thalweg around in preference to metes and bounds.
And the -- the best this Court could do would be establish metes and bounds and this Court has heretofore use live and dead thalweg in preference to metes and bounds.
They asked the Court to mark this boundary from here to here.
And if the Court adheres to the rule that the live thalweg is still the boundary, we submit that it is not a question of fact because there's no dispute that was back to your question Justice -- Mr. Justice Goldberg, there was no dispute between the two States because the live thalweg is as definite as appositive and easily as determination as the edge of this desk of the --
Justice Hugo L. Black: May I ask you -- because I -- I've just read the -- this case of yours that you referred to.
You referred to the live thalweg, alright, you'd mean the new one after the stream shifted.
That's what you'd mean by the live one is it or the Deadman?
Mr. Martin R. Mclendon: Well, I mean by the Deadman, this area that goes up to here, the live thalweg as to where the water has flown since -- flowed down the river.
Justice Hugo L. Black: In what case -- what case of this Court has held, that's the one I was concern in here, could --
Mr. Martin R. Mclendon: Yes, sir.
Justice Hugo L. Black: -- you tell me?
Has held that where the thalweg has changed by reason of man avulsion or man's work, artificial work that the boundary of the States also says with that -- to go along with the new thalweg?
What case of this Court tells that?
Mr. Martin R. Mclendon: I don't believe I understand your question, Mr. Justice.
Justice Hugo L. Black: I mean this.
The cases have held unless changed by reason of the natural ebb and flow of the tide, the natural change within the stream, man had nothing to do with it that the thalweg, being where the thalweg -- the boundary, continues to be the boundary where the shifting changes of the stream, can you tell?
Mr. Martin R. Mclendon: Yes.
Justice Hugo L. Black: Well, what case has held is -- does the new thalweg that becomes the boundary, if the new thalweg is caused by shifting of the stream with man produced?
Mr. Martin R. Mclendon: If I made to you that impression, Your Honor, I had no intention of doing so.
The new thalweg, as I've pointed out from point (a) to point (b), Mississippi is on this side and Mississippi is on that side that the boundary between the two States continues to go up here because this was an avulsive change down here, below point (b) during these areas they asked to be governed in this matter, that is the old and continuing channel of the river.
It has merely shifted by reason, I think everyone can see, by reason of the fact that the -- of the Glasscock Cutoff being done.
Justice Hugo L. Black: That's right.
They alleged that in your brief and that's a man's work and yet you say that the -- that the boundary shifts with the shifting of the thalweg (Voice Overlap) --
Mr. Martin R. Mclendon: Well, if the Court please, may I -- may --
Justice Hugo L. Black: And I just read your opinion that County of St. Clair and I just don't see where it says that at all.
Now, is there any other case that proceed to it in there?
Mr. Martin R. Mclendon: If the court please, I -- I still have not -- I have not attempted to represent to this Court that the -- an avulsive change changes the boundary between the States.
I have only attempted to represent that an accretion -- an accretive change changes with the -- the river.
The river goes with it.
Justice Hugo L. Black: They say this is not accretive within the technical artistic meaning of that word.
They say its change brought about by a man-made avulsion.(Voice Overlap) --
Mr. Martin R. Mclendon: They say that the -- they say that any change from this point down to here is brought about by this man-made avulsion.
And we say that the continuing -- the live thalweg, as it goes to down here all the way to here, according to St. (Voice Overlap) --
Justice William J. Brennan: Well, really what they say, Mr. McLendon, in 17 is, this -- isn't it, that surely it's accretive below the cutoff but nevertheless, it's accretive due to avulsion because they say the Glasscock Cutoff being man-made is a close natural mean and avulsive at any event.
As I understand it means that even if accretive below, that that's brought on the change in the location of thalweg.
Nevertheless, that accretion is due to an avulsive action whether man-made or natural, I don't care.
Mr. Martin R. Mclendon: And that --
Justice William J. Brennan: And as I read 17 --
Mr. Martin R. Mclendon: That's --
Justice Byron R. White: And you say -- and you say that as long as it's accretive below the cutoff, it cannot -- that -- that the thalweg still marked the --
Unknown Speaker: The boundary.
Justice Byron R. White: -- the boundary.
Mr. Martin R. Mclendon: That is our understanding of --
Justice Byron R. White: As long as it's accretive, no matter as if this result from the cutoff.
Mr. Martin R. Mclendon: That's right.
Justice Byron R. White: Yes.
Mr. Martin R. Mclendon: We think that that --
Justice Hugo L. Black: That's what I'm asking if you had any case besides to the St. Clair case.
Mr. Martin R. Mclendon: Well, the only case we --
Justice Hugo L. Black: (Voice Overlap) --
Mr. Martin R. Mclendon: -- we have that is that the case is with this particular point.
I'm not certain it has come up except in the Louisiana Supreme Court case but we have cases, a continual line of cases where this Court has held that the live thalweg is and continuous to remain the boundary between the States.
Justice Hugo L. Black: Yes, that's correct, when is the live thalweg is brought about by consensuses of nature in shifting the stream.
Mr. Martin R. Mclendon: Well we -- the -- if there's a factual issue in this view.
Justice Hugo L. Black: We're asking the Court to take judicial notice -- notice of this map and note that the -- the Glasscock Cutoff areas here and we can see the changes in state boundary was made but the thalweg continued to be the boundary here and that is what they're asking the Court to change a -- to setup a new rule of law.
Mr. Martin R. Mclendon: As we understand, the -- we have laid too long on this particular point we think because our time is gone but we won't point out again the cases.
We submit that Louisiana is not a prop --
Chief Justice Earl Warren: You may take a couple of minutes more to -- to state your point.
Mr. Martin R. Mclendon: It was American conclusion by way of conclusion, Your Honor.
We wanted to point out that this Court, heretofore, in examining such type -- the cases of this type, New Hampshire versus Louisiana.
Louisiana, I mean New York versus Louisiana and Massachusetts versus Missouri where the real interest, where the Court as if followed it through and looked through the form of the complaint to the real interest applied the law as it head theretofore written it and came up with the conclusion that the parties and interest were individual citizens and not States and that the States stood nothing to gain or nothing to lose has seemed fit to -- to dismiss those cases or to decline to permit them to be filed.
We -- by way of complete summary want to say that we don't think or submit to the Court that the complaint states a justiciable controversy between these two States as we understand the opinions by this Court.
I want to personally thank and thank from the State of Mississippi the Court for (Inaudible) and receptive here.
Thank you.
Chief Justice Earl Warren: Mr. Carmouche.
Rebuttal of Edward M. Carmouche
Mr. Edward M. Carmouche: Thank you.
Your Honors may I answer the last question posed to me before beginning my refutation.
The question was should the proceedings in the United States District Court be stayed.
We think definitely, yes.
I do not agree with Mississippi's assertion in their argument in their brief that protest should be something like the case of Louisiana versus Mississippi where there was eminent danger on conflict.
I do not believe that we have to convince this Honorable Court that there's a possibility of a war between Louisiana and Mississippi for this Court to have jurisdiction over boundary dispute.
That is possibly the maximum situation.
But we believe the test should be as in the case of Mississippi versus Louisiana in 1955 when this Court found that there was a boundary dispute.
The one in question asked there whether it was substantial or whether Louisiana wanted to exercise jurisdiction at that time, the question was simply pointed out that there was a dispute between the two States as to where the thalweg was.
In that case, we were dealing with accretions.
The Court held that they were imperceptible and gradual and therefore reached a different conclusion --
Justice Byron R. White: But don't you --
Mr. Edward M. Carmouche: -- but --
Justice Byron R. White: Would you -- would you agree here that you have that case as to the Court held that any accretive change is -- is -- does change the boundary?
Mr. Edward M. Carmouche: No, sir.
What I'm saying here, the only question before this Court is there a dispute?
It is for a Master to determine what kind of change has taken place and whether we own it or whether a --
Justice Byron R. White: That -- that is the --
Mr. Edward M. Carmouche: -- recipient --
Justice Byron R. White: --point.
Let's assume that it was determined that there was an accretive change here.
Mr. Edward M. Carmouche: Yes, sir.
Justice Byron R. White: That as a matter of law, any accretive change whether caused by avulsion or not changes the boundary.
Mr. Edward M. Carmouche: I think we would still --
Justice Byron R. White: That is the matter before us.
Mr. Edward M. Carmouche: No, sir, I think we still have some issues.
And I would like --
Justice Byron R. White: What?
Mr. Edward M. Carmouche: -- to point them out.
We drill this -- first, let me say that I do not like the idea of Mississippi putting words in our mouth and saying that we're standing on the proposition that the thalweg is, in 1939, is as it should be established.
Our position in our brief was that if this is an avulsive situation, we should take the thalweg as it existed immediately prior to the avulsion.
Now, in 1932, they began the work on this cutoff.
In 1939, they finished it, but it still was not effective.
The engineers couldn't get water to go through it.
They couldn't divert that -- that curb.
And so, they went back in and bridged it again and it was not until 1950 that actually the cutoff became fully effective.
So, that leads us to this issue.
If the thalweg is the boundary, what is the critical date for the establishment of this thalweg?
Is it as we find it today?
Is it as we find it at the time the Zuccaros filed their suit?
Justice Byron R. White: And is that --
Mr. Edward M. Carmouche: Is it --
Justice Byron R. White: -- is -- is that acceptable as cutoff, you would say from day to day is the right time?
Mr. Edward M. Carmouche: Correct, yes, sir.
Justice Byron R. White: But now you say, the -- that the -- that the cutoff makes all the difference --
Mr. Edward M. Carmouche: It is a law.
Justice Byron R. White: -- even though there's only accretive change involved.
Mr. Edward M. Carmouche: We -- we don't say that it was accretion.
We said it was avulsion which is the opposite --
Justice Byron R. White: (Voice Overlap) you say it's accretion as a result of an avulsion which makes it an avulsion in your -- in your word.
Mr. Edward M. Carmouche: I -- I think that Mississippi has confused us here.
Accretion means a building up of land by gradual and imperceptible process.
Justice William J. Brennan: Well, the words --
Mr. Edward M. Carmouche: I dont't --
Justice William J. Brennan: -- you used is any movement.
Of course, you mean that --
Mr. Edward M. Carmouche: Yes.
Justice William J. Brennan: -- the movement of the thalweg.
Mr. Edward M. Carmouche: I don't believe that there's been any change in land at all.
There's no new land on our side of the bank and no new land on the Mississippi side of the bank.
The current has changed to where the main current, the deepest part of the river is shifting westward.
Justice William J. Brennan: Well, if they're right, there's an accretion to the land owned by the riparian owners by reason of the shift of the thalweg, isn't it?
Mr. Edward M. Carmouche: No, there's still water there.
Justice William J. Brennan: Maybe but as (Voice Overlap) --
Mr. Edward M. Carmouche: There's still water --
Justice William J. Brennan: -- the accretion to that land?
Mr. Edward M. Carmouche: If we're speaking of it --
Justice William J. Brennan: You have to --
Justice Byron R. White: But (Voice Overlap) on the Mississippi side?
Mr. Edward M. Carmouche: Sir?
Justice Byron R. White: There's an accretion on the Mississippi side as it occurring (Voice Overlap) --
Unknown Speaker: It has to be.
Mr. Edward M. Carmouche: If we're speaking in terms of the thalweg, yes, sir.
If we're speaking of --
Justice William J. Brennan: Well, you used the word "movement" anyway, is it?
Mr. Edward M. Carmouche: Yes, sir.
Justice William J. Brennan: But what do you mean over at 17, as I read you correctly is, saying what I suggested, the adversary you meant, the Glasscock Cutoff being man-made as opposed to natural means and avulsive in any event?
Mr. Edward M. Carmouche: Yes, sir.
Justice William J. Brennan: What do you mean by that?
Mr. Edward M. Carmouche: Well, the Lovingston case, as they pointed out, said that accretions whether man-made or natural, if imperceptible will set the thalweg in the middle of the main channel.
Now, we are saying that this is an avulsive action, first.
Justice William J. Brennan: That caused the movement of it.
Mr. Edward M. Carmouche: And second that it was perceptible which takes us out of the --
Justice Byron R. White: You -- you'd say that the change wasn't avul -- wasn't accretive at all --
Mr. Edward M. Carmouche: Right.
Justice Byron R. White: -- below the cutoff?
Mr. Edward M. Carmouche: Right.
Justice Byron R. White: (Voice Overlap) the avulsive change itself (Voice Overlap) --
Mr. Edward M. Carmouche: That's right.
And further, that it must meet the test of the imperceptibility and gradually which this does not mean a dredge, which is picking up more than a ton of earth in a time, cannot by any stretch of the imagination be construed as gradual and imperceptible.
You can see it.
This Court held in the very case that were cited by our opponents, St. Clair versus Lovingston, the task as to what is gradual and imperceptible is that, although the witnesses may see from time to time that progress has been made.
They could not perceive it while the process was going on.
It is imperceptible.
Chief Justice Earl Warren: Well Mr. --
Mr. Edward M. Carmouche: In other words, it's what can be seen.
Chief Justice Earl Warren: Mr. Carmouche, I have -- I understand that the cutoff was not completed and was not thoroughly useful until 1950, is that right?
Mr. Edward M. Carmouche: Yes, Your Honor.
Chief Justice Earl Warren: How much of a change are we talking about now?
We -- we've been talking a lot about whether it was a gradual imperceptible accretion or not, how much of a change is there in the -- in the thalweg in this very neighborhood that we're talking about?
Mr. Edward M. Carmouche: I would say over a thousand feet, Your Honor.
Chief Justice Earl Warren: Over a thousand feet.
Mr. Edward M. Carmouche: And it's continuing to move to the west.
Now, we certainly -- that movement has been a myth.
Justice William J. Brennan: Have the banks in the river changed there or just the thalweg?
Mr. Edward M. Carmouche: The thalweg.
Justice Byron R. White: Banks, not the banks at all?
Mr. Edward M. Carmouche: No, not to my knowledge.
Of course, that's a question for the merits.
Justice William J. Brennan: How wise the (Inaudible) this?
Why --
Justice Byron R. White: Its quite --
Justice William J. Brennan: Why?
Mr. Edward M. Carmouche: Yes, Your Honor, why is it here?
Of course, it's (Inaudible)
Justice William J. Brennan: Well, don't take your time.
Mr. Edward M. Carmouche: Yes, it's -- it's over a mile, I would say.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: Our courts would testify before our Master from 12 to 15 miles and we think that all of that is avulsive, not just where they the cut and that is the opposite.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: Sir?
Justice Arthur J. Goldberg: (Inaudible)
Mr. Edward M. Carmouche: No (Inaudible) another bend and that it gets back into its natural current.
Now, we think that this boundary dispute -- dispute exist and that the controversy between the parties is real and substantial.
We do not think that we should be forced to submit ourselves to the jurisdiction of the Mississippi jury to determine our eastern boundary.
We do not think that even if we did submit ourselves to the jurisdiction of this Mississippi case that we would solve anything because Mississippi is not a party and it would not be bound by that decision.
And until you have both States bound, you cannot determine this boundary.
Now, the issue was brought home very clearly by Mr. Justice Black's questions to my opponent.
He said, "Is this well located in the State of Mississippi or in Louisiana?"
And they said it was located in Mississippi.
We contend in our complaint that it's located in Louisiana and has always been located in Louisiana.
And furthermore, if it isn't, that the change is made in the thalweg have no effect on our eastern boundary.
That's the first issue.
Then the second is whether this thing is caused by avulsion or pure accretion?
Is it a gradual and imperceptible thing?
Or is it something that you can see or the change is personable?
Or is it done in such a manner that this artificial change resulted in no change in boundary?
Now, I -- I think that it's quite an important point, if this thing is avulsive, we have the additional issue, which I was beginning to get into, of when is the critical date?
If it was avulsive, is it when the channel is completed?
Or is it when it becomes completely effective?
Or is it when we have drilled our oil well?
All of these are important questions and we'll come up.
They will determine the good or the bad faith of the oil company in drilling this well.
Should they have known or not know whether to drill this well?
We -- we think that all these questions will have to be decided.
We think that counsel for the opposition is talking either both sides of his mouth.
First in his brief, he says, "All you've got to do is find the present thalweg.
You don't have to take jurisdiction over this matter.
(Inaudible) and you'll find.
On other hand, he is saying, "If you take jurisdiction over this case, you're going to be faced with a multiplicity of suits, it's so complex, it's going to be too troublesome for this Court."
Now, I think that that's an inconsistent argument that is made by our opponent.
We do not think that it would be too difficult for this Court or any other court to decide.
We simply feel that the United States Constitution has set up this Court as the original forum for such a dispute.
Justice Hugo L. Black: May you read your complaint as charging that the change or the shift is viewed to accretion coming onto the side of the river, which accretions were caused by man-made work at the bar?
Mr. Edward M. Carmouche: We were trying to do that in one other thing.
We were trying to plead alternatively that first, this is an avulsion and it done map because the boundary was set.
Second, if it was not an avulsion that these accretions were not gradual and imperceptible and therefore, they would not --
Justice William J. Brennan: In (Inaudible) -- where the Court find.
Mr. Edward M. Carmouche: Yes, sir --
Justice William J. Brennan: If that what was avulsive.
Mr. Edward M. Carmouche: That's right.
Justice William J. Brennan: And with the cutoff, isn't it?
Mr. Edward M. Carmouche: That's right.
Justice Hugo L. Black: And that's --
Mr. Edward M. Carmouche: Now --
Justice Hugo L. Black: That's the -- the difference in legal course you and your adversary.
Mr. Edward M. Carmouche: Yes, Your Honor.
Justice Hugo L. Black: They asked us to either expand or (Inaudible) with case or simply hold that the language there were would apply to accretions caused by man-made avulsions and you say that -- that language in that opinion should not be so construed unless you --
Mr. Edward M. Carmouche: Correct, Your Honor.
Justice Hugo L. Black: -- could so find.
Mr. Edward M. Carmouche: In other words, the question that Your Honor asked to my opponent, "Show me a case where an avulsion -- that -- that after an avulsion that the title was determined by the live thalweg."
I have been unable to find any case that this Court has ever decided to that effect.
The cases that my opponents have pointed out dealt with pure accretion.
They did not deal with avulsive situation.
And we think the fact that this is immediately below a cutoff makes it nonetheless, avulsive.
So therefore, I believe that we have shown all of their arguments that there is a justiciable controversy, that we have stated the cause of action.
There is a real dispute between the State of Louisiana and Mississippi.
In closing, I would like to counteract one thing my opponent has said and that is if they had no knowledge of this complaint until they saw it, I think we can aptly show before our Master that we wrote the Attorney General of Mississippi and the Governor of Mississippi stating that we were going to the seek the original-jurisdiction of this Court more than two months prior to its filing.
They were aware of this dispute.
I'd like to finish by talking about this agreement between Humble and Carter and the Zuccaros, which I thought has made so much of the seeking agreement.
I do not believe that the State of Louisiana's right can be modified in any respect by either Carter, by Humble or by the Zuccaros nor can the rights of the State of Mississippi is purely immaterial to the matter at hand.
The question is, is there a dispute?
Is it a real dispute?
We say it is real and immediate.
I certainly want to thank the Court for your kind attention.
It's been a real privilege.
Chief Justice Earl Warren: Yes.