Appendix — Mississippi v. Louisiana

gi- 1158 Prine n

No.

In The

Supreme Court of the United States

October Term, 1991

o

THE STATE OF MISSISSIPPI, ET AL.,

Petitioners,

V.

THE STATE OF LOUISIANA, ET AL.,

Respondents.

-¢

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

o

APPENDIX TO THE PETITION FOR

WRIT OF CERTIORARI

e

CHarites ALAN Wriciil

727 East 26th Street

Austin, Texas 78705

Mikrt Moore, Attorney General

Rosert E. SAnpers, Assistant

Attorney General

State of Mississippi

P. O. Box 220

Jackson, Mississippi 39205

Rosertr R. Baiess

Wueevess, BEANLAND, Suarrtey &

BaiLEss

P. O. Box 991

Vicksburg, Mississippi 39181

James W. McCarrney

Counsel of Record

Vinson & Exxins L.L.P.

3201 First City Tower

1001 Fannin Street

Houston, Texas 77002-6760

(713) 758-2324

FAX (713) 758-2346

Counsel for Petitioners

January 16, 1992

COCKLE LAW BRIEF PRINTING CO. (800) 225-4964

OR CALL COLLECT (02) 342-2831

,

INDEX

Houston, et al. v. Thomas, et al., 937 F.2d 247 (5th

Ct, Te < oanuweencs bdaae enteee ene

Order Denying Petition for Rehearing and Sug-

gestion for Rehearing en banc dated October 22,

GUE vevvcenestudatsvteccouseunnedeeensssesenee

28 US.C. Section 1254 (19GB) ... 1... cc ceceevccees

Bench Opinion, Houston, et al. v. Thomas, et al., U.S.

District Court, Southern District of Mississippi,

FO err rr eee

Judgment, Houston, et al. v. Thomas, et al., US.

District Court, Southern District of Mississippi,

RS DE By. TO 6 00s ci a shcdscdinteeseesensne

Bench Opinion, Houston, et al. v. Thomas, et al., U.S.

District Court, Southern District of Mississippi,

Ree Gee Fe, WE ao v.06 06 06etvbaceesesnnes

Judgment, Houston, et al. v. Thomas, et al., US.

District Court, Southern District of Mississippi,

fpemeees EPOCUNOT 1S, BSED occ cccccccccccvcecces

Excerpt from Motion of State of Louisiana to File

Complaint and for Stay Order and Brief in Sup-

port, Louisiana v. Mississippi, et al., No. 114, US.

INT TIS soos ou va snndosestestesaoeseeuns

Excerpt from Complaint and Application for Stay

Order, No. 114, U.S. Supreme Court ...........

Excerpt from Brief of Louisiana in Support of

Motion for Leave to File Complaint and for Stay

SE ss oo 6c i bbe Cale bea dae eee

Excerpt from Brief of Mississippi in Opposition to

Motion for Leave to File Complaint, Louisiana v.

Mississippi, U.S. Supreme Court................

ii

IN DE X —- Continued

Denial of Application for Stay dated October 3,

1988, Louisiana v. Mississippi, U.S. Supreme

Court [reported at 480 U.S. 2 ar

Order Denying Leave to File Bill of Complaint,

Louisiana v. Mississippi, No. 114, U.S. Supreme

Court, and dissenting opinion ......-......-+>.

Order Denying Petition for Rehearing and Alter-

native Motion to File Separate Complaint, Loui-

siana v. Mississippi, No. 114, U.S. Supreme

Court, issued February 27, 1989 [reported at 489

ees nec Webvessenevrvarescccecccces

Excerpt from Petition for Rehearing by the State

of Louisiana of Its Motion to File Complaint,

Louisiana v. Mississippi, No. 114, U.S. Supreme

a, rn ee ier

la

Julia Donelson HOUSTON, et

al., Plaintiffs-Appellees,

v.

Ruth M. THOMAS, et al., Defendants,

State of Louisiana and Lake Providence

Port Commission, Intervening

Defendants-Appellants.

No. 90-1031.

United States Court of Appeals

Fifth Circuit.

Aug. 5, 1991.

Appeal was taken from an order of the United States

District Court for the Southern District of Mississippi,

William Henry Barbour, Jr., Chief Judge, which deter-

mined that accretions to west bank of Mississippi River

were within territorial boundaries of State of Mississippi,

rather than State of Louisiana. The Court of Appeals,

Duhé, Circuit Judge, held that: (1) court clearly erred in

concluding that boundary thalweg lay west of certain

island in year that land was patented, and (2) court

improperly applied doctrine of acquiescence to its factual

findings.

Reversed and rendered.

Appeal from the United States District Court for the

Southern District of Mississippi.

Before POLITZ and DUHE, Circuit Judges.’

' Judge Alvin B. Rubin was a member of the original panel

but died on June 11, 1991 before this decision was rendered

This matter is being decided by a quorum. 28 U.S.C. § 46(d).

2a

DUHE, Circuit Judge:

In a boundary dispute as treacherous as old man

river itself, the appellants challenge the district court's

conclusion that accretions to the west bank of the Missis-

sippi River are within the territorial boundaries of Missis-

sippi. Finding that the district court erred in its initial

placement of the boundary thalweg between Louisiana

and Mississippi, we reverse and render judgment for the

appellants.

Meandering Through the Courts: The Proceedings Upstream

At issue in phase one of this bifurcated case was the

sovereign ownership of a mass of accretions lying along

the west bank of the Mississippi river near Lake Provi-

dence, Louisiana.? The action was originally instituted by

Mississippi citizens in federal district court as a suit to

quiet title against Louisianians asserting ownership of the

accreted lands. One year later, the State of Louisiana and

the Lake Providence Port Commission intervened, pray-

ing that the accreted portion be adjudged Louisiana prop-

erty. The intervenors filed a petition in the United States

Supreme Court, requesting that the court exercise Its

2 The appellees and some maps refer to these accretions as

“Stack Island.” These same maps also refer to a nearby island-

shaped land mass by the same designation. While the latter

exhibits true island characteristics, the accretionary features

only exhibit such characteristics during very high water levels.

To avoid confusion, we refer in this opinion to the disputed

lands as “the accretions,” “the accreted land,” or “the accre-

tionary features.”

3a

original jurisdiction in this dispute between states. Inex-

plicably, the High Court declined the invitation.

The case proceeded to trial on the question of state

boundary only, where the district judge waded through

the testimony of experts and would-be landowners, as

well as maps, surveys, and charts dating back to the late

nineteenth century. The court ruled that the interstate

boundary, frozen by an avulsive shift in the river, placed

the disputed lands within Mississippi. Alternatively, the

court found that Mississippi had exercised sovereign

authority over the accretions, and that Louisiana had

acquiesced in Mississippi's assertion of ownership. From

that judgment, Louisiana takes this appeal.

Wading In: Two Tales of One River

We begin our voyage down the river with a review of

the factual bases for each party’s ownership claim. Their

tales are so divergent that each will be separately

recounted.

Louisiana contends that at the time the land grant

patent was issued to Stephen Blackwell in 1881, a land

mass identified on the General Land Office survey as

“Island Number 94,” or “Stack Island,” was subject to the

divided flow of the Mississippi River. Although relatively

narrow, the channel flowing to the east of the island

comprised the main navigable thread, or thalweg, of the

river.’ Accordingly, since federal common law fixes the

* The term “thalweg” is a legal term of art used to describe

the middle of the principal [channel] of a waterway. Louisiana

v. Mississippi, 466 U.S. 96, 100, 104 S.Ct. 1645, 1648, 80 L.Ed.2d

74 (1984).

da

interstate boundary at the thalweg, Louisiana argues that

the island was incorrectly attributed to Mississippi on the

1881 survey plat.

Louisiana notes that a sudden and perceptible (avul-

sive) change in the main course of the river occurred in

1882, when dikes constructed by the Mississippi River

Commission induced a change in the flow pattern, divert-

ing river traffic into the west channel. Because that

change was avulsive, however, the boundary remained

legally fixed in the east channel. Flooding enlarged the

east channel in 1912, filling the west channel impassibly

with silt, and restoring the east channel to dominance.

Meanwhile, Stack Island was gradually eroding away,

and its fragments were accreting downstream on the west

bank of the river near Lake Providence. Eventually, Loui-

siana suggests it was replaced by a new island formed in

approximately the same location. Louisiana further

claims that at all relevant times, it exercised sovereign

authority over the disputed portion.

In contrast, Mississippi argues that in 1881, shoreline

surveys and government lights indicated that the thalweg

of the river was located to the west of Stack Island.

Because the middle of the west channel formed the inter-

state boundary, the thalweg, Stack Island was properly

attributed to Mississippi in the land grant survey. Missis-

sippi acknowledges that the east channel gradually

enlarged in the early 1900’s, and the west channel was

abandoned by navigation when it filled with silt and

alluvium. However, because it characterizes that gradual

shift as “avulsive” in nature, it suggests the interstate

boundary remained fixed in the west channel.

5a

Though it concedes the island has undergone sub-

stantial changes due to the processes of erosion and

accretion, it maintains that the “original” Stack Island

never eroded away. Finally, Mississippi maintains that it

has consistently claimed, taxed, and exercised dominion

over the accreted portion.

Navigating a Legal Course: The Rules of the River

Under the “Rule of the Thalweg,” when a navigable

| river flows between states, the middle thread of the main

channel of the river constitutes the interstate boundary.

lowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55 (1893).

In early cases, courts defined the “main channel” as the

deepest and most navigable branch of a waterway. How-

ever, in Louisiana v. Mississippi, 466 U.S. 96, 104S.Ct. 1645,

80 L.Ed.2d 74 (1984), noting that the descriptions “deep-

est” and “most navigable” are frequently not syn-

onymous, the Court refined the rule. Accordingly, current

law dictates that the channel used as the “ordinary course

of traffic on the river” is the river’s thalweg. /d. at 101,

104 S.Ct. at 1648.

At least one exception to the Rule of the Thalweg is

recognized: where an avulsive shift in the course of the

river occurs, the boundary remains frozen in the former

thalweg. Thus, “where a stream, which is the boundary,

for any cause suddenly abandons its old and seeks a new

bed, such change of channel works no change of bound-

ary....” Nebraska v. lowa, 143 U.S. 359, 361, 12 S.Ct. 396,

397, 36 L.Ed. 186 (1892).

6a

Although “true” avulsive action is typically

described as sudden and perceptible, our court has mod-

ified that characterization, opting to apply the avulsion

exception where a change in the identity of the thalweg

was slow and gradual. In Hogue v. Stricker Land & Timber

Co., 69 F.2d 167 (5th Cir.), cert. denied, 293 U.S. 591, 55

S.Ct. 106, 79 L.Ed. 686 (1934), the ownership of Glasscock

Island, a land mass in the Mississippi River, was the

subject of a dispute between a Mississippi resident and a

Louisiana corporation. The evidence revealed that

although the east channel was once the thalweg, the west

channel had gradually become dominant through the nat-

ural, dynamic forces of the river. While not contesting the

original designation of the east channel as the thalweg,

the Mississippi plaintiff argued that absent a sudden,

perceptible shift in the river’s course, the interstate

boundary should follow the main channel of the river as

it shifted westward.

Our court relying on Missouri v. Kentucky, 11 Wall.

395, 20 L.Ed. 116 (1870), disagreed. Though noting that

“strictly speaking there was no avulsion,” Id. at 168, it

concluded:

_ where the main channel changes from

one side of an island to the other, it seems that

the same rules as to boundary govern as are

applied in cases of avulsion. . . . The old channel

remains the boundary in the case of an island as

well as in that of an avulsion.

Id. Thus, in the case of an island, even a gradual change

in the orientation of the thalweg effects no change in the

boundary, or in the sovereign ownership of the island.

7a

Distilling these legal principles, we apply a two-step

analysis in resolving this factual dispute. First, we deter-

mine which channel constituted the boundary thalweg in

i#61. Second, we consider whether, under the Hogue

exception, that boundary remained fixed notwithstanding

a shift in the identity of the original thalweg. We conduct

this inquiry against the backdrop of the clearly erroneous

standard, giving due regard to the trial judge’s assess-

ments of the witnesses’ credibility. See Fed. Ruie of Civ.

Pro. 52(a).

Step One: Looking Back to 1881

The appellants submit that the district court clearly

erred in concluding that the boundary thalweg lay west

of Stack Island in 1881, the year the land was patented to

Stephen Blackwell. We agree.

In reaching its conclusion, the district court relied

primarily on the interpretation given by Austin Smith,

Mississippi's only expert witness, of information con-

tained in an 1881 shoreline survey. The district court

considered the surveyor’s notation of a “good deep chan-

nel” to the west of the island, and Smith's testimony that

depth was the determinative factor, as persuasive evi-

dence of the dominance of that channel. It also noted the

presence of a government navigation light on the west

bank of the river near the island, concluding that light

served to guide river traffic from the head of Stack Island

down the west channel. Without elaboration, the court

pronounced an 1881 survey accompanying a Mississippi

River Commission (MRC) study inconclusive, and

declined to consider it in formulating its findings.

8a

Although we acknowledge that the district court’s find-

ings are entitled to deference, after our review of the

evidence, we are “left with the clear impression that an

error has been made.” Stauffer Chemical Co. v. Brunson, 380

F.2d 174, 181 (Sth Cir.1967).

We recognize that it is not within the province of the

reviewing court to second-guess the district court's

assessment of Smith's credibility as a witness. However,

it is apparent that Smith disregarded the only conclusive

pieces of evidence in formulating his opinion. The first

such piece of evidence is the hydrographic survey com-

pleted in December of 1881 pursuant to a major Congres-

sionaliy-funded MRC improvement plan. That plan, for

which Congress appropriated nearly one million dollars,

was designed in part to improve navigation in the

vicinity of the Lake Providence reach. The report issued

in 1883 at the conclusion of the project clearly designates

the east channel as the “main channel” at the time of the

December 1881 survey. For example, the report lists as

one of the “general effect[s] of the work” the “closing of

the main channel of the river . . . and bringing it back to the

[downstream] right of Stack Island by a system of deflect-

ing dikes.”

The report continues:

... In order to force the main channel of the river

which flowed down the [east channel] . . . a main

dike . . . was driven from a point below the foot

of Baleshed Bar to the head of Stack Island,

leaving the low water main channel from Longwood

through the [east channel] open for the passage of

boats. (emphasis added)

9a

The district court also ignored the hydrographic data

contained in an MRC survey depicting the topography

and hydrography of this portion of the river in 1881-82.

While those data indicate the presence of shoals near the

northern end of Stack Island in the west channel, the

hydrographic soundings depict ample depths, even at

low water, for typical river traffic in the east channel.

Given these facts, it is illogical that vessels would employ

a route that was not only approximately one mile longer,

but also marked by treacherous shoals.

The evidence relied upon by Mississippi, Smith, and

ultimately the district court simply does not contain the

type of data necessary to support a contrary conclusion.

The 1881 shoreline survey was not intended to reflect the

hydrographic features of this part of the river, nor does it.

Unlike the MRC survey, done in anticipation of major

dike construction in the river itself, the shoreline survey

of Stack Island was intended for patent purposes only,

and contains no true hydrographic readings.

The deputy surveyor’s vague notation of a “good

deep channel” to the west of the island is less than

determinative. Not only is the depth of the channel no

longer the focus of our inquiry, Louisiana v. Mississippi,

466 U.S. at 101-02, 104 S.Ct. at 1648, but the survey fails to

reflect any depth soundings in the east channel.* Because

* The shoreline survey does make some reference to

“shoals” at the foot of the east channel. This finding is refuted

by hydrographic data obtained just three months later and

depicted on the MRC survey map. Although we cannot resolve

factual disputes, we note the inconsistency in the evidence to

demonstrate the inconclusiveness of the shoreline survey.

10a

we endeavor to determine the relative dominance of the

channels, the shoreline survey simply does not contain

the type of data necessary to determine the identity of the

thalweg in 1881.

Equally inconclusive is the placement of the U.S.

navigation lights along both banks of the river as

reflected on the shoreline survey. In the vicinity of the

Lake Providence reach, that survey depicts a navigation

light on the east bank of the river at Reserve Plantation

near the northern tip of the island, a light on the west

bank directly across from the island, and a light on the

east bank near the Shipland Landing south of the island.

The MRC survey, completed only three months later,

depicts two lights in the vicinity of the Reserve Planta-

tion, a light on the west bank beyond the southern tip of

the island, and the Shipland Landing light on the east

bank. The MRC survey does not depict a navigation light

on the west bank near the mid-point of the island as does

the shoreline survey.

Regardless of the resolution of that factual dispute,

the placement of the lights does little to determine the

identity of the low-water channel. As the district court

found, plantations located on both sides of the river were

serviced by steamboats that were presumably able to use

either channel at high water. Since navigation lights were

needed to assist these vessels, the depiction of the light

on the west bank cannot compensate for the inadequacies

in the shoreline survey.

Thus, we find the court clearly erred in relying upon

evidence that, regardless of its veracity, could not support

lla

its finding. In rejecting this evidence, and Smith's inter-

pretation of it, we note that we are not the first court to

do so. In prior litigation between these same states, the

Supreme Court rejected Smith’s theory regarding the

placement of an interstate boundary, criticizing his undue

emphasis on which channel was the deepest and swiftest.

Louisiana v. Mississippi, 466 U.S. at 103-06, 104 S.Ct. at

1649-1651. Noting that the “Smith [boundary] line did not

conform to the data on the surveys. . . [and] that it was

not conceivable that a mariner would adopt Smith's track

of navigation,” the court adopted Louisiana’s proposed

placement of the thalweg instead. For the reasons out-

lined above, we do likewise.

Freezing the Boundary:

An Avulsive Shift?

As the district court noted, both parties generally

concede that flooding in 1911 and 1912 shifted the thal-

weg from the west channel to the east channel. The

difference, of course, is that Mississippi suggests the thal-

weg was originally in the west channel, while Louisiana

suggests it was diverted there from the east by the dike

construction in 1882-83. Because the district court deter-

mined, as a threshold matter, that the thalweg originally

lay in the west channel in 1881, it found in necessary to

consider whether the 1911 shift was avulsive. Concluding

that it was, the court ruled that the interstate boundary

was frozen in the west channel.

Our reversal of the district court’s ruling on the

original location of the thalweg obviates further discus-

sion of the avulsion issue in light of the law of this circuit.

12a

Both parties agree, and the district court found, that the

main channel lay to the west of the island from 1883 to

1911, and then shifted to the east thereafter. However, the

question of whether that shift, or any prior one, was

“avulsive” is irrelevant as a matter of law in this context.

Under our holding in Hogue, even a gradual change in

the identity of the “main” channel around an island

effects no change in the boundary. Thus, the boundary

remained frozen in the east channel, where it lay at the

time of the patent in 1881, regardless of the nature of any

shift in the river’s course. Hogue, 69 F.2d at 168.

Acquiescence

Alternatively, the district court concluded that the

disputed lands belonged to Mississippi under the Doc-

trine of Acquiescence. Because we find the district court

improperly applied the law to its factual findings, we

reverse this ruling as well.

Numerous cases recognize that acquiescence by one

state in the exercise and preservation of an interstate

boundary by another is conclusive evidence of the loca-

tion of the official boundary. See e.g., Rhode Island v.

Massachusetts, 4 How. 591, 638-39, 11 L.Ed. 1116 (1846);

Virginia v. Tennessee, 148 U.S. 503, 522-525, 13 S.Ct.

728-735-37, 37 L.Ed. 537 (1893); Louisiana v. Mississippi,

202 U.S. 1, 53-57, 26 S.Ct. 408, 422-425, 50 L.Ed. 913

(1906). The Supreme Court has even noted that the doc-

trine pre-empts the “Rule of the Thalweg” when “it is

established that there has been acquiescence in a long-

continued and uninterrupted assertion of dominion and

jurisdiction over a given area... .” Arkansas v. Tennessee,

13a

310 U.S. 563, 567-72, 60 S.Ct. 1026, 1030, 84 L.Ed. 1362

(1940).

Over strenuous and repeated objection from the

appellants, the district court permitted the introduction

of the testimony of numerous residents of the disputed

lands. A colorful assortment of Mississippi citizens testi-

fied that they had occupied the accreted lands as owners,

had run cattle there, had hunted and fished, and even

engaged in the illegal cultivation of marijuana. There was

some evidence that Mississippi assessed taxes against

those individuals, although it is disputed whether the

property taxed was Stack Island or the accreted lands.

Other evidence suggests Mississippi law enforcement

agents exercised criminal jurisdiction over the island.

Louisiana citizens testified to similar facts. Some

indicated that they had hunted or fished on the lands

with Louisiana licenses, and that wildlife agents had

enforced Louisiana game laws on the accretions. Further-

more, Louisiana argues residents of the disputed lands

have paid taxes on the accreted portions to the state of

Louisiana.

Without regard to the correctness of the district

court’s findings on these disputed factual issues, and

assuming without deciding that the evidence was prop-

erly admitted, we find much of this evidence irrelevant to

the question of acquiescence. Distinct from any state law

theory of adverse possession, the federal common law

doctrine of acquiescence is premised upon proof of the

relationship between sovereigns. Thus, details of discreet

activities of individuals such as hunting, fishing, or farm-

ing are largely irrelevant. Although evidence of the

14a

assessment of taxes by a sovereign is sometimes proba-

tive, see e.g., Arkansas v. Tennessee, 310 U.S. at 567-72, 60

S.Ct. at 1029-1031, its persuasiveness is diminished in

cases like this one where there is some evidence that both

states claimed the disputed lands as a tax base.

Discounting that extraneous testimony, we are left

with little evidence of any acts committed by agents of

the state of Louisiana that indicate its recognition of the

sovereign authority of Mississippi over the accreted

lands. There was some testimony that Louisiana law

enforcement agents had handed over a suspected law

breaker to Mississippi for prosecution for an offense

allegedly committed on the accretions. However, a few

such isolated incidents do not constitute a “long-contin-

ued and uninterrupted assertion of dominion and juris-

diction over an area... .” Arkansas v. Tennessee, 310 US.

at 471, 60 S.Ct. at 1030. Those acts are simply not of

sufficient duration and magnitude to justify application

of the doctrine See e.g., California v. Nevada, 447 U.S. 125,

130-32, 100 S.Ct. 2064, 2067-68, 65 L.Ed.2d 1 (1980) (where

the evidence established California’s recognition of a put-

ative boundary for over 100 years); Arkansas v. Tennessee,

310 US. at 567-72, 60 S.Ct. at 1029-1031 (applying the

doctrine where the evidence showed unchallenged an

unequivocal dominion by Tennessee for 115 years); Low-

siana v. Mississippi, 202 U.S. at 53-57, 26 S.Ct. at 422-24

(involving over 90 years of acquiescence by Mississippi)

Reviewing the district court’s application of the law to its

factual findings de novo, we cannot sustain the district

court’s ruling on the issue of acquiescence

15a

Conclusion

For the foregoing reasons, we reverse the judgment

of the district court adjudging the disputed property

within the state of Mississippi, and enter judgment in

favor of the appellants.

REVERSED and RENDERED.

l6a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-1031

—_—

JULIA DONELSON HOUSTON, ET AL.,

Plaintiffs-Appellees,

versus

RUTH M. THOMAS, ET AL.,

Defendants,

STATE OF LOUISIANA and LAKE

PROVIDENCE PORT COMMISSION,

Intervening Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Mississippi

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC 7

(Opinion August 5, 5 Cir, 1991, F.2d)

(October 22, 1991)

17a

Before POLITZ and DUHE, Circuit Judges.*

PER CURIAM:

(f) The Petition for Rehearing is DENIED and no mem-

ber of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc, (Federal Rules of Appellate Procedure

and Local Rule 35) the Suggestion for Rehearing En Banc

is DENIED.

() The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who are

in regular active service not having voted in favor of it,

(Federal Rules of Appellate Procedure and Local Rule 35)

the Suggestion for Rehearing En Banc is also DENIED.

() A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT: CLERK’S NOTE:

United States RULES 41 FOR

Cissuit beden STAY OF THE

. MANDATE.

*Judge Alvin B. Rubin was a member of the original panel

but died on June 11, 1991 before this decision was ren-

dered. This matter is being decided by a quorum. 28

U.S.C. Section 46(d).

18a

§ 1254. Courts of appeals; certiorari; appeal; certified

questions

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;

19a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION —

JULIA DONELSON HOUSTON, ET AL

PLAINTIFFS,

V. | CIVIL ACTION

RUTH M. THOMAS, ET AL NO. W86-0080(B)

DEFENDANTS.

BENCH OPINION

BEFORE: THE HONORABLE

WILLIAM H. BARBOUR, JR.,

UNITED STATES DISTRICT JUDGE

DATE: JUNE 23, 1989

PLACE: VICKSBURG, MISSISSIPPI

APPEARANCES:

COUNSEL FOR PLAINTIFF:

MR. ROBERT R. BAILESS

MR. M.E. WARD

COUNSEL FOR THIRD PARTY DEFENDANT:

MS. HELEN WETHERBEE

COUNSEL FOR DEFENDANT/PLAINTIFF

INTERVENORS:

MR. GARY L. KEYSER

MR. CALVIN ADAMS

COURT REPORTER:

MS. CELESTE O. McCLELLAND, RPR

[p. 2) THE COURT: The Court has heard the

evidence in this case, has heard the arguments of counsel,

20a

and is prepared at this stage to render this bench opinion

expressing finding of fact and conclusions of law as to the

issue presented by the bifurcated portion of this trial.

The issue presented to the Court at this stage of the

trial is basically a very simple one. It is whether the land

mass in question, sometimes referred to as Stack Island or

Island Number 94, lies in Mississippi or in Louisiana.

The Court makes the following findings of fact. The

Plaintiffs in this case, Julia Donelson Houston, et al., are

the record owners of Island Number 94 which is also

referred to as Stack Island. That island was originally

patented to their predecessors in title, a Mr. Blackwell, as

a part of Issaquena County, Mississippi. The Court will

not attempt to discuss the Plaintiffs individually but sim-

ply will say that title has been properly deraigned from

the original patentee, Blackwell, to the Plaintiffs, who the

Court will refer to as the Houstons.

In 1881 an island known as Island Number 94, which

was also shortly thereafter or even at that time known as

Stack Island, was patented to Blackwell. It lay in the

vicinity of Lake Providence, Louisiana, in the stretch of

the Mississippi River known as Lake Providence Reach. It

is clear from the history of the work done by the Corps of

Engineers in the [p. 3] Lake Providence Reach that this

reach being a long reach was and has been a very unsta-

ble reach of the Mississippi River for a long period of

years. In fact, it was one of the first two projects under-

taken for stabilization of the navigation channel by the

Mississippi River Commission which was formed in the

early 1880s about the time the island was patented.

21a

The island has been subject to quite a bit of legal

controversy. This Court in the late 1970s decided the case

of Houston versus United States Gypsum Company which

was taken to the Court of Appeals for the 5th Circuit on

three different occasions and recorded in the Federal

Reporter Second Series with three different written opin-

ions. That case was a contest between Mississippi owners

over the ownership of the island and resulted eventually

in a determination that the Houstons were the owners of

the island as against the other Mississippi claimants. That

lawsuit did not determine whether the island was in

Mississippi or Louisiana nor did it determine whether

any of the Louisiana riparian owners had any claims to

the island.

The island was also subject to a lawsuit dealing with

title thereof in Issaquena County, Mississippi, in the

Chancery Court in about 1937 or 1938. That lawsuit was

eventually settled between the prior owners and the

Houstons. The Houstons had acquired title to the land

through a deed of trust foreclosure sale and the propriety

of [p. 4] that sale was the basic issue of that lawsuit.

The issue presented in this lawsuit was raised by the

filing of the suit by the Houstons against the Louisiana

riparian owners seeking in effect to quiet title to the

property against the Louisiana land owners in favor of

the Houstons. Since the issue was raised as to whether

the land lay in Louisiana or Mississippi, the State of

Louisiana joined as a Plaintiff Intervenor, and it joined

the State of Mississippi as a Third Party Defendant.

The Houston Plaintiffs not only claim that the !and is

in Mississippi but also claim that even if the land is in

22a

Louisiana that it by virtue of the doctrine of adverse

Possession or the corresponding Louisiana doctrine has

title to the Property as against anyone who owns land

adjacent to the bank of the Louisiana side.

The State of Louisiana is interested insofar as is [sic]

it claims and desires for the land in question to be

included in the State of Louisiana for purposes of its own

people, for tax purposes and other purposes.

The State of Mississippi logically prefers the land to

be in the State of Mississippi. The State of Mississippi has

adopted the arguments and proof of the Houston Plain-

tiffs.

The State of Louisiana is actually a set of Defendants,

being the State itself as well as the Lake Providence Port

Commission, a state agency, which owns riparian lands

across [p. 5] the port channel from the south end of the

land in question, and also by virtue of recent quitclaim

deeds by which the Port Commission acquired record

title to a portion of the land mass in question from

various individual riparian owners who were joined as

Defendants.

Also a Defendant in the case is the Fifth Louisiana

Levy [sic] District which is an entity organized and exis-

ting for the purpose of maintaining the Mississippi River

levies [sic] as well as other levies [sic] in a four parish

district lying along the Mississippi River running south

from the Arkansas/Louisiana boundary. The Levy [sic]

District has claims to portions of the land mass as well as

the Lake Providence Port Commission. The Court will not

at this time attempt to sort out the various other named

Defendants in the Case, many of whom who have sufferec

| oe

23a

default judgments and others of whom who have trans-

ferred title to the Lake Providence Port Commission. That

will remain for the second portion of the trial.

The issue, as stated earlier, for the Court at this time

on the bifurcation portion concerns whethe; the land

mass in question is Mississippi land or Louisiana land.

In addressing the overall issue, the first question

presented to the Court is whether Stack Island, or Island

94, lay in Mississippi or Louisiana at the time of its patent

to Blackwell in 1881. The patent itself was not issued,

until 1888. It was based, however, on a survey which was

preformed [p. 6] on August 11 and 12 of 1881. The parties

appear to agree that although the patent was not issued

until 1888 that it relates back to the day of the survey in

August of 1881. The map prepared from the survey was

introduced into evidence as P-8. The basic issue pre-

sented in this question as to where the boundary line

between Mississippi and Louisiana lay at the time of the

survey on August 11 and 12 of 1881 concerns the bound-

ary thalweg of the Mississippi River on those days.

The concept of the thalweg constituting the boundary

between states having a river as their common boundary

was recently discussed by the United States Supreme

Court in the case of Louisiana versus Mississippi reported

at 466 US 96. This is a case that was decided in 1984.

Beginning at page 100 the Court stated in regard to the

boundary thalweg as follows: “The matter is further com-

plicated by the fact that the definition of the term ‘thal-

weg’ has not been uniform or exact. The master notes in

his report that this Court observed in an earlier case that

the term has been defined to mean ‘the middle or deepest

24a

or most navigable channel’, but he points out correctly

that ‘the middle’ or ‘deepest’ or the ‘most navigable’ are

not necessarily one and the same. Indeed, this Court itself

acknowledged this fact in Michigan versus Wisconsin.

(Deepest water and the Principal navigable channel are

not necessarily the same.) The doctrine of the thalweg has

evolved from the presumed intent of Congress in [p. 7]

establishing state boundaries and has roots in interna-

tional law and in the concept of the equality of access.”

“What emerges from the cases, however, is the prop-

Osition that the live thalweg is at the ‘middle of the

Principal channel, or rather, the one usually followed.’ As

the master observed, and as the Parties appear to agree,

‘the thalweg defines the boundary, and the ordinary

course of traffic on the river defines the thalweg.’ Our

task, therefore, is to identify the downstream course of

river traffic. It appears to us, as it did to the master, to be

a matter of evidence as to the course commonly taken

downstream by vessels navigating the particular reach of

the river. It is to the evidence that we now turn.”

Thus the Supreme Court has outlined the definition

of boundary thalweg as the most navigable downstream

course in the river. The Court is thus required at this time

to consider the evidence all the way back to 1881 and

decide at that time where the most navigable channel lay.

Plaintiffs present their Exhibit P-7 as their primary

evidence, that being the survey of Island Number 94 as of

August 1881. The Court notes that the surveyor at that

time shows a “good deep channel” with “no bottom”

running to the west of the island. The surveyor also notes

25a

along the west channel of the river “heavy caving of

bank.”

On his plat along the east side of the island the [p. 8]

surveyor shows “east chute of river of Mississippi River”

together with a “depth of 12 feet” up at the northern end

of the east chute and a notation of “shoals” at the south

end of the chute which lies along the east side of the

island and between the island and the Mississippi main-

land.

The Court would normally conclude from this map

that the surveyor clearly meant to indicate that the main

channel of the Mississippi River, which logically would

be the channel followed by boats on a downstream

course, to be to the west of the island.

The State of Louisiana and the Fifth Louisiana Levy

[sic] District, which basically has the same position and

has adopted the proof of the State of Louisiana and the

Port Commission, and the Court will hereafter basically

refer to all of them simply as the State of Louisiana, rely

on charts of the Mississippi River Commission Numbers

43 and 44 which bear Exhibit Number LA-10 and on a

report of the Mississippi River Commission and an

attached map marked LA-18-A.

LA-10 consists of two charts taped together showing

the entire reach of the river at Lake Providence. Chart

Number 43 is the upper part of LA-10 and Chart 44 is the

lower part. Chart 43, according to its legend, was pre-

pared as to the topography and hydrography in 1881 and

1882. Chart Number 44 was prepared in regard to the

topography and hydrography in 1882/83. Consequently

26a

LA-10 was prepared [p. 9] subsequently to the surveyor’s

map, P-7.

The State of Louisiana urges that LA-10 shows that

the main channel for navigation purposes lay in the chute

to the east of Stack Island. As evidence of this Louisiana

sites the location of United States navigation lights on the

west bank of the river south of the island and on the east

bank of the river at the upper end of the Stack Island

chute and just opposite the northern end of Stack Island.

There is also a second navigation light on the oppo-

site side of the river just upstream from the head of the

island. The next light upstream is at Longwood Landing

on the west side of the river.

The experts for Louisiana postulate that traffic trav-

eled downstream from the Longwood Landing light over

to the head of Stack Island and down the Stack Island

chute to the navigation light back on the west side of the

river south of Stack Island.

The State of Louisiana further argues the November

1883 report of the Mississippi River Commission engineer

attached as LA-18-A together with the map or chart

attached to that report. That chart showed conditions as

of October 31, 1883. The report on page 423 under para-

graph 4 states that “the closing of the main channel of the

river, which passed between the foot of Baleshed Bar and

the head of Stack Island, and bringing it back to the right

of Stack Island by [p. 10] a system of deflecting dikes

located on the Louisiana side of Elton Bar.” And then

later,... “so as to prevent further caving of the Missis-

sippi shore behind the island which is already done a

27a

great deal of damage and was increasing at an alarming

rate.”

On page 425 of the same report under the heading

Stack Island the report says “in order to force the main

channel of the river, which flowed down the Stack Island

the chute, on the outside and along the face of the island

between it and the Elton Bar.” And then it goes on to

State “the dike system that we built at the head of the

Stack Island between Stack Island and Baleshed Bar,

upstream of Stack Island.”

The chart in the map attached to LA-18-A shows an

old steamboat channel which the Louisiana parties urge

indicates an old steamboat channel coming out of the

Stack Island chute crossing between Stack Island and

Baleshed Bar over toward the west bank of the river

From these two exhibits and their interpretation by

their experts, the Louisiana partie’ urge that the main

navigation channel for downstream traffic by the time of

these reports, 1882 and 1883, was down the Stack Island

chute to the east of the island. They urge that since there ~

was bank caving at the time these works were planned

and because the Mississippi River Commission chose this

stretch of river for its first work, that obviously there was

a problem in [p. 11] holding the Mississippi shore and the

thalweg must have been there. They argue that this must

have occurred before the patent and that the survey was

simply wrong.

In opposition to this theory the Plaintiffs and the

State of Mississippi urge a logical reading of P-8 which is

a chart of the Lake Providence Reach as depicted by a

Shoreline survey executed in October and November of

28a

1881 for the Mississippi River Commission. That chart

shows a Government light at the end of 1881 only a

couple of months after the survey was completed not

only upstream from Stack Island on the eastern bank but

also across from the middle of Stack Island on the west

bank. This Government light was not shown on LA-10.

Mr. Smith, the expert for the Plaintiffs, drew the line

which he felt was the thalweg which runs from Govern-

ment light at Longwood Landing on the west side of the

river across to the Government light north of Stack Island

on the east side of the river, back across to the west side

of the river to the Government light in the area of Al-

bright [sic] Plantation of Mrs. M.B. Blackwell and then

down the west bank of the river until it again turns back

to the east bank at Shipland Landing.

The Court notes that this is an earlier map. The Court

accepts the logic of Mr. Smith in that the reason for the

Government light on the west bank would be to delineate

the normal chennel back from the east bank to the west

bank and [p. 12] therefore to the west side of Stack Island.

The Court further notes in regard to this stretch of

river that there were several plantation landings in 1881

and 1882 along the east bank. Beginning at south end of

LA-10 there is a Shipland Landing. Further up near the

southern end of Stack Island is a Ben Lowman [sic] Land-

ing. About halfway up the east chute is Elsey [sic] Land-

ing. Further up past the navigation lights on the east side

is Reserve Landing and then slightly above that there is

an Oakley Landing. Further up the river there are a Holly

Ridge Landing and a Homochitto Landing.

29a

Accordingly, the east bank of the river along this

stretch was apparently fairly well developed from a plan-

tation standpoint. It appears logical to the Court that the

east channel would be used regularly by steamboats ser-

vicing these plantation landings. Accordingly, there does

not seem to be any question that there would be traffic up

the east chute or down as the case may be. This might

explain the second Government navigation light in the

vicinity of the north end of Stack Island as depicted on

LA-10. At any rate, the Court does not think that this

defines the normal downstream thalweg for the river and

notes that also there are landings on the west side of the

river, Lake Providence Landing, Arlington Landing, and

Longwood Landing.

[p. 13] The Court is thus faced with conflicting evi-

dence as to what the normal course of downstream navi-

gation was in 1881 on this stretch of river. The Court

finds that a preponderance of the evidence favors the

Plaintiffs theories for the following reasons. It would

appear that a surveyor making this survey of the island

in 1881 would certainly be aware of the fact that the

island would have to be patented either in Mississippi or

Louisiana.

The surveyor indicated the good deep channel on the

west side of the island. It seems clear to the Court that in

August of 1881, if you rely on the survey itself, that the

Court would have to find that the channel ran to the west

side of the island. This theory is supported by the next

most recent evidence being the shoreline survey P-8

which was conducted in October and November of 1881]

The Government light on the west side of the river being

the next downstream light from that at the head of Stack

30a

Island would support Mr. Smith’s theory as to the normal

thalweg or downstream navigation route. The Court

notes that in the west side of the river according to P-8

between Baleshed Bar to the north and the end of Stack

Island to the south are depicted sand bars which would

indicate that boats would need to swing to the east side

of the river before Swinging back to the west side. The

Court feels that the old steamboat channel on the map

attached to LA-18-A appears to be in the vicinity not [p.

14] only of this traversing thalweg of the river but also

along the same line that the secondary traffic coming up

the east chute might take, particularly taking into account

the Baleshed Bar lying to the north of Stack Island.

The Court also does not find that the report itself,

LA-18-A, is as conclusive as the Louisiana parties feel it

is. The Court notes that LA-10 and P-8 both indicate

substantial erosion of the bank along the north end of

Stack Island on the Mississippi side. In fact, Louisiana 10

seems to indicate that the levy [sic] had been breached by

the time of the making of that map.

The Court reads the report and these maps to indi-

cate that the river certainly is trying to switch its course

into the east chute but not necessarily that it had by 1881

The Court, accordingly, rules that as of the date of the

survey that the thalweg and therefore the boundary

between Mississippi and Louisiana lay to the west of

Stack Island. Therefore the Court concludes that at that

time Stack Island was a part of the State of Mississippi

rather than a part of the State of Louisiana

The parties agreed generally that about 1911 to 1913

that the main channel of the river switched to the east

3la

side of Stack Island. The flood charts introduced into

evidence show that a substantial flood occurred at the

end of 1911 and the early part of 1912. Louisiana, of

course, has claimed [p. 15] that the main channel was in

this east chute in 1881 and that it evulsed [sic] to the west

side of the island in 1882 and 1883 when the dikes

depicted on the map attached to LA-18-A were built by

the Mississippi River Commission.

It appears to the Court that a preponderance of the

evidence shows that this was the time and the cause of

the switching of the main channel of the river to the east

chute. This was an evulsive [sic] change.

Evulsive [sic] changes of the boundary thalweg do

not change state boundaries. Reserve [sic] versus State of

Kentucky 78 US 395; Davis versus Anderson Tulley [sic], 252

Federal Reporter, 681, 8th Circuit, 1918; Washington versus

Oregon, 211 US 127.

Accordingly, the evulsive [sic] change which

occurred in 1911 and 1912 did not change the boundary

from the west side of Stack Island to the east side. In fact,

the Court finds that the boundary has remained on the

west side of the island until the present time. The Court

in Davis versus Anderson Tulley {sic} stated that under the

conditions of an evulsive [sic] change that the boundary

remains in the old channel subject to subsequent changes

in that channel brought [sic] by accretion and erosion

while the water in it remains a running stream

The next question to be answered by the Court is

whether the land mass in question is the same island as

Island 94, sometimes known as Stack Island, as depicted

in the 1881 [p. 16] survey. Louisiana basis [sic] its claim to

——— re

32a

the contrary primarily on series of navigation charts

introduced as LA-21, 26, and 29. Basically these are

annual charts of the river. Those charts show land masses

within the stream as well as other features. Mr. Harrison,

the expert for the Louisiana Parties, superimposed on

each of those charts the location of Stack Island and its

Shape as it existed in 1881 at the time of the patent

survey. The Louisiana parties argued that by looking at

those charts, that it is apparent that the migrating Stack

Island, which was eroding and accreting and migrating

generally in a southwesterly direction, by 1954 had

moved out from under any portion of the superimposed

original island and therefore had disappeared and there-

fore that the land mass that remains today is not the same

island as Island 94, or Stack Island.

In support of this argument the Louisiana parties

further assert that another island has now formed in the

approximate position of the 1881 Stack Island and further

that that land mass is now identified on the Government

charts as Stack Island. The Court notes that there are two

Stack Islands identified on the chart presented by the

Louisiana parties, this “new” Stack Island as well as the

land mass in question.

The Court does not accept the theory of the Louisiana

Parties. It is clear from the Louisiana exhibits themselves,

[p. 17] LA-21, 27, and 29, that there has always been a

land mass from 1881 to the Present time which map by

map can be traced from the original Stack Island. It is

interesting to note that this very active stretch of the river

between 1881 and the present eroded the west bank of the

river in the Lake Providence area by up to a mile and that

it from time to time has placed and removed not only

33a

substantial sand bars but whole islands. Throughout this

time period, however, substantial remnants of the origi-

nal Stack Island have existed. In fact, Stack Island started

out as some 700 acres. According to one survey it grew to

a substantial but undetermined acreage. It reduced and

then in the 1970s it was back up in the range of 4,000

acres. At the present time the land mass claimed by the

Plaintiffs is of approximately 2,000 acres. During all of

this time, however, some portion of Stack Island has

remained above the low water mark and can be traced to

an earlier map.

The Court concludes by a preponderance of the evi-

dence that the land mass which now lies against the

Louisiana bank and which is the portion claimed by the

Plaintiffs, is Stack Island in the sense that it is the original

island as it originally existed in 1881 plus accretions less

erosion. This is clearly illustrated by the overlay prepared

by Mr. Smith and introduced as Exhibit P-37-B depicting

various maps made at various times

[p. 18] Of course, after approximately 1930 we have

live testimony from witnesses who either worked or lived

in that area and there is no testimony whatsoever that

Stack Island disappeared. The Court simply thinks that

the Louisiana parties’ position that Stack Island disap-

peared because it moved out from under the location of

the original Stack Island is not well taken, that such a

theory would have to depend on the island entirely going

under water without having anything left of it at a partic-

ular moment in time

Accordingly, the Court finds that even though this

land mass is now basically up against the Louisiana shore

34a

and for large portions of the year completely dry between

what is called the island and the high bank on the Louisi-

ana side, that it is the remnant of Stack Island and is stil!

owned by the Plaintiffs subject to any adverse possession

claims that might be disposed of later by the Court.

The thalweg or boundary thalweg therefore remained

on the west side of Stack Island during this process of

southwestwardly migration over the long period of time

between 1881 and about 1954. During that period the

boundary was subject to the remains of the old west

channel as it was changed from time to time by accretion

and erosion. In approximately 1954 the flow on the west

side of Stack Island ceased. At that time the boundary

became fixed and is the boundary at this time. That

boundary was platted by Mr. [p. 19] Smith by geographi-

cal calls as set forth in the original complaint filed in this

case and was placed on Exhibit P-32. The Court finds that

that boundary is the fixed boundary between Louisiana

and Mississippi.

The final question to be addressed by the Court is

how much of the land mass claimed by the Plaintiffs is

Stack Island. As the Court stated earlier the land mass is

sizeable [sic], consisting of approximately 2,000 acres at

the present time and being a narrow land mass approx-

imately 7 or 8 miles long lying along the west bank in the

Lake Providence vicinity. The Plaintiffs claim that the

northern end of Stack Island is the line between what was

formerly a chute between Baleshed Towhead or Bar and

Stack Island which was eventually closed by the Corps of

Engineers. The Plaintiffs claim as the southerly end all of

the accretions to the island which lie across from and

35a

south of the Lake Providence Port lands and its facility in

that area.

The major question for the Court to answer in this

regard is whether the southerly end of the land mass

known as Stack Island is in fact part of that island. It is

clear from the various maps introduced into evidence but

particularly the annual navigational maps, LA-21, 27, and

29, that at least two sand bars developed at the south end

of Stack Island.

It was explained by one of the experts that sand bars

at [p. 20] the toe of an island naturally form if there is a

divided flow around the island. It is apparent that these

sand bars eventually connected with Stack Island as it

grew to exist along the Louisiana shore and gradually the

sand bars built up and filled in so that they are for

practical purposes an extended land mass all the way

down the land claimed by the Plaintiffs.

The Court notes that some leases in approximately

1970 refer to “Stack Island proper”, “middle bar’, and

“lower bar.” These were references made by Ted Houston

who is now deceased but who was one of the principals

in the ownership and management of the property before

his death. The Court notes that those leases were given to

Captan Jack Wyly, who was one of the adverse claimants

prior to his conveying his claim to the island to the Port

Commission, and that he took the leases in his name for

the purpose of grazing cattle over the whole land mass.

Further, he also at a iater time was instrumental in form-

ing a hunting club and leasing that property. The Louisi-

ana parties in opposition to this argument did present

evidence through Mr. Wyly that the hunting club not only

Derren aetna nell

36a

leased the area known as Stack Island but also the adja-

cent banks for the purpose of controlling all of the land.

And he explained that this didn’t mean that he and the

other Louisiana riparian owners were not claiming the

island.

[p. 21] It appears logical to the Court that the forma-

tions south of what might be called Stack Island proper

were accretions caused by the flow around that island,

and that until they actually attached to the island they

were sand bars and were not permanent land masses. The

only thing to the contrary is the testimony of Mr. Har-

rison who claimed them to be islands. This claim, how-

ever, was made on the basis of the charts, which were

navigation charts which clearly called those formations

sand bars. The Court, accordingly, concludes that the

entire land mass claimed by the Plaintiff is Stack Island

and accretions thereto including the southerly end of it

which runs down past the Port Commission.

The Court, accordingly, concludes that the Plaintiffs’

claims to the land mass insofar as claiming that it is one

land mass and that it lies in the State of Mississippi are

proven by a preponderance of the evidence and the Court

so finds.

The Houston Plaintiffs have also presented to the

Court a theory under which it claims that the State of

Louisiana has acquiesced in the jurisdiction over this land

mass by the State of Mississippi and therefore that if

Louisiana ever had claim to the land that it has in effect

given up those claims through the doctrine of acquies-

cence to the State of Mississippi.

37a

[p. 22] Because of the ruling of the Court, previously

stated in this bench opinion, it is not necessary to discuss

the doctrine of acquiescence. That doctrine is promoted

by the Plaintiffs only in the event it does not prevail in

regard to its basic theory that the island has migrated to

its present position.

The Court, however, realizes that this piece of land

has been subject to long, torturous, and expensive litiga-

tion by the Houstons as well as the other parties and will

make a ruling in regard to the issue of acquiescence in the

event the case is appealed and in the event the appellate

Court might find the Court is in error in ruling on the

first part of this bench opinion.

The Houston Plaintiffs claim that the State of Missis-

sippi has exercised jurisdiction over Island 94, or Stack

Island, since the patent to Mr. Blackwell which was

issued by the United States of America making that

island part of the State of Mississippi in 1881. The proof

shows that since 1889 the taxes have been paid on the

island to Issaquena County, Mississippi, which is the

main land adjacent to where the original Island 94, or

Stack Island, was located. The Houstons to this day con-

tinue to pay Mississippi ad valorem taxes on the property.

The Plaintiffs also presented proof that the Sheriff of

Issaquena County claimed jurisdiction over the island for

criminal purposes, [p. 23] particularly for game violation

purposes; and that although he said that he would not

patrol the island, that he requested the Houstons to pre-

sent any game violators on the island before the Courts of

Issaquena County, Mississippi. The proof further showed

that Sheriff Sam House, who interestingly enough later

made a claim to part of the Stack Island area, personally

38a

carried Charles Shelton and James Kelly who has leased

Stack Island from the Houstons for hunting purposes

over to see the Sheriff of Issaquena County, Mississippi,

to request the Sheriff of Issaquena County to help the

hunting club with trespassers and game violators. Appar-

ently Sheriff House at that time considered Stack Island

to be a part of Mississippi.

Later the proof showed that officers of the Louisiana

State Police were flying in a small aircraft searching for

marijuana patches when they discovered one on Stack

Island. They did not attempt to excise [sic] jurisdiction

over the island at that time but notified the Mississippi

Bureau of Narcotics who thereafter obtained a search

warrant for the purpose of searching the island. Missis-

sippi was assisted by Louisiana authorities at that time

and the Louisiana authorities actually arrested suspects

on the island itself but immediately turned them over to

Mississippi Bureau of Narcotics agents as soon as those

agents could arrive from the State of Mississippi. Missis-

sippi prosecuted those [p. 24] parties.

The proof to the contrary on the issue of acquiescence

were relatively vague statements by Jimmy House, whose

family still owns part of the riparian property, and Cap-

tan Jack Wyly, who claimed a part of the property at least

until he deeded his property to the Port Commission

recently, that the Louisiana reputation was that this was a

part of Louisiana and that game wardens from Louisiana

did sometimes go on the island. The Court doubts that

there is any direct proof of game wardens from Louisiana

ever patrolling the island.

39a

The State of Louisiana parties further assert that in

1908 by Legislative Act Number 191 the Louisiana Legis-

lature authorized the vesting of the title to islands in the

Mississippi River to the Fifth Louisiana Levy [sic] Dis-

trict. The exhibits introduced into evidence clearly show

that beginning about 1907 the Levy [sic] District was

interested in assisting the U.S. Army Corps of Engineers

in obtaining willow logs for use in building revetments

along the Louisiana bank. The islands in the river appar-

ently had substantial growths of willow in which the

Corps was interested. Knowing that there were adverse

claims to those islands, the Levy [sic] District passed a

series of resolutions, corresponded with the Corps about

the willows, and eventually requested and prevailed in

obtaining the 1908 legislation allowing the State of Loui-

siana to transfer the islands to it.

[p. 25] The Court at this juncture will note that under

the law of the State of Louisiana, islands in the Missis-

sippi River west of the Louisiana-Mississippi line belong

to the State of Louisiana. This is not the law in Missis-

sippi. The islands on the east side of the Mississippi-

Louisiana boundary belong to the riparian owners. The

Court notes in passing at this point, however, that Stack

Island, or Island 94, occupies a peculiar position in that it

was patented to Mr. Blackwell who was not the riparian

owner at the time.

At any rate, the question then arises as to whether

during the 1907 through approximately 1911 time period

the activities of the Fifth Louisiana Levy [sic] District

constituted acts that might break the sovereign control of

the State of Mississippi over Stack Island and therefore

40a

destroy the claim of acquiescence by the Plaintiffs in the

State of Mississippi.

The Court notes first that Act 191 passed by the

Legislature of Louisiana cannot be read to convey title to

Stack Island itself. It is an extremely general statute. The

Court further notes that the survey commissioned by the

Fifth Louisiana Levy [sic] District of the islands, the plat

of which was introduced as LA-37-A-1, does not purport

to show Stack Island at all. At that time it is clear that

Stack Island lay opposite the port of Lake Providence

itself and the plat is noticeably absent in showing a land

mass in that [p. 26] area. The Islands 7, 8 and 9, being the

islands shown on the plat, lie well to the south of where

Stack Island lay at that time.

The Court, accordingly, concludes from a prepon-

derance of the evidence that even if it is wrong in con-

cluding that the boundary thalweg lay always to the west

of Stack Island and, accordingly, that Stack Island was in

fact in Louisiana at some time, that Louisiana has acqui-

esced in the exercise of the exclusive jurisdiction over the

island by the State of Mississippi and that it is now in the

State of Mississippi. The cases appear to place a mini-

mum time limit for acquiescence in the range of 35 to 40

years. The Court notes that the acquiescence was clear

from 1881 to 1907, a period of 26 years. The Court does

not feel that the activity by the Louisiana Legislature was

prompted by the Fifth Louisiana Levy [sic] District in the

period from 1907 to 1912 was such as to interrupt the

period of exclusive jurisdiction by the State of Mississippi

and that in fact the period of exclusive jurisdiction by the

State of Mississippi has run from 1881 to the present time.

4la

Accordingly, the Court finds that if the land be not in

the State of Mississippi because of the thalweg boundary

that the land is in the State of Mississippi under the

doctrine of acquiescence.

The third position taken by the Plaintiffs was that [p.

27] under the Doctrine of Lost Grant that Louisiana had

lost title to or claim over Stack Island. The Plaintiffs’

attorney in closing argument conceded that the Doctrine

of Lost Grant is not applicable to the placing of state line

but might be applicable to the issue of adverse possession

which will remain after this ruling of this Court.

This concludes the findings of fact and conclusions of

law in regard to this bifurcated portion of the trial. The

Court at this time will ask the attorneys for the parties

whether anyone requests a clarification of this ruling or

addition to this ruling.

MR. BAILESS: No, Your Honor.

MR. KEYSER: Judge, we think you have covered

everything.

THE COURT: All right. Mr. Adams, do you agree

with that?

MR. ADAMS: Yes, sir.

THE COURT: All right. And Ms. Wetherbee, any-

thing?

MS. WETHERBEE: Nothing, Your Honor.

THE COURT: All right. That will be the ruling of

the Court in regard to this portion of the trial.

Let’s go off the record here at this time.

42a

(Off the record.)

THE COURT: The Court has asked the attorneys

to [p. 28] consult with the Courtroom Deputy for the

Court about agreeable time for the next portion of this

trial. All other issues will be tried at that time.

Is there anything further for the record this after-

noon?

MR. KEYSER: No, Your Honor.

MR. BAILESS: Your Honor, we have some pend-

ing motions and things and motions taken under advise-

ment and I assume the Court wants to save all of those

for the next hearing or are we going to try to rule on them

sometime between now and then?

THE COURT: If you need them ruled on between

now and then! will certainly consider doing that for you.

Why don’t you check over your hand and see where you

stand. If making rulings between now and then would

expedite the next hearing, that will be fine. If it is going

to be the same amount of time we can simply make those

rulings at the front end of the next portion of the trial.

MR. BAILESS: Thank you, Your Honor.

THE COURT: All right. If there is nothing fur-

ther, then we will stand in recess.

(Recess.)

43a

CERTIFICATE

[p. 29] I, Celeste O. McClelland, Registered Profes-

sional Reporter, United States District Court, Southern

District of Mississippi, do hereby certify that the above

and foregoing 28 pages contain a full, true, and correct

transcript of the proceedings had in the aforenamed case

at the time and place indicated, which proceedings were

recorded by me to the best of my skill and ability.

I certify that the transcript fees and format comply

with those prescribed by the Court and Judicial Confer-

ence of the United States.

This the 29th day of June, 1989.

/s/ Celeste O. McClelland

Celeste O. McClelland

My Commission Expires:

June 29, 1991

44a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

JULIA DONELSON HOUSTON, ET AL PLAINTIFFS

VS. CIVIL ACTION NO. W86-0080(B)

RUTH M. THOMAS, ET AL DEFENDANTS

JUDGMENT

(Filed Jul. 3, 1989)

THIS CAUSE having come on for trial before the

Court without a jury, beginning June 19, 1989 through

June 23, 1989, to determine whether the property which is

the subject of this litigation is located in the State in

Mississippi or in the State of Louisiana, and the Court

having heard testimony and argument of counsel, and at

the conclusion of the hearing having rendered its ruling

from the bench on June 23, 1989, and in accordance with

said bench ruling, the Court finds as follows:

1. Stack Island, or Island No. 94, is located wholly

within the State of Mississippi. The Patent from the

United States of America was issued to Stephen B. Black-

well in 1888 describing the subject property as being

located within Issaquena County, Mississippi. The parties

agree that the issuance of the Patent relates back to the

survey of Island No. 94, which said survey was dated

August 11-12, 1881. The boundary thalweg has been

defined by the United States Supreme Court in Louisiana

v. Mississippi, 466 U.S. 96, at 100-101 (1984) as the middle

of the principal channel, or, rather, the one usually fol-

lowed by the downstream traffic of navigation. The

boundary thalweg at the time of the 1881 survey is clearly

45a

shown to be West of Stack Island. The survey (Exhibit

P-7) shows “Good Deep Channel - No Bottom” West of

Stack Island. The survey further shows a heavy caving

bank on the West side of the island. The East Chute

Channel shown on the survey reflects a depth of twelve

(12) feet at the North end of the East Chute and shows

shoals at the foot or Southerly end of the chute. Mar-

shall’s Shoreline Survey dated October-November, 1881

(Exhibit P-8) clearly shows by the positioning of the

government navigation lights that the navigation course

was West of Stack Island at that time. The evidence

offered by the State of Louisiana, which evidence was

dated later in time than the aforementioned surveys, does

not prove that the boundary thalweg was in a different

location at the time the patent survey was made. It is

undisputed that the main navigation channel was West of

Stack Island from about 1883 through 1909. In the period

of approximately 1911 through 1913, an avulsive change

occurred in the main navigation course at Stack Island. It

is shown by Exhibit P-18 that by 1913 the Stack Island

East Chute Channel had been adopted for navigation.

This avulsive change in the main navigation course did

not change the state boundary of the boundary thalweg,

and the boundary between Mississippi and Louisiana

remained in the old channel West of Stack Island. Mis-

sourt v. Kentucky, 11 Wall. 395, 408, 20 L.Ed. 116; Davis v.

Anderson-Tully Company, 252 F. 681, 685 (8th Cir. 1918);

Washington v. Oregon, 211 U.S. 127, 135, 29 S.Ct. 47, 53

L.Ed. 118.

2. The land mass known as Stack Island is the same

land mass known as Stack Island, or Island No. 94, as

described in the 1881 survey of the General Land Office

46a

of the United States of America. There was always a land

mass traced to the original Stack Island, also known as

Island No. 94. Stack Island, through the processes of

accretion and erosion, has always existed and has never

disappeared. This is clearly illustrated by Exhibits P-37-A

and P-37-B. It is also shown by the surveys and flood

control and navigation exhibits offered by the State of

Louisiana. The Court heard live testimony concerning the

period from about 1930. There is no testimony that Stack

Island has ever disappeared. The land mass located

against the Louisiana bank of the Mississippi River is

Stack Island. At all times the boundary thalweg remained

on the West side of Stack Island still subject to the pro-

cesses of accretion and erosion until the water in the

boundary: channel ceased to flow. The water in the

boundary channel ceased to flow in about the year 1954,

at which time the boundary thalweg became fixed. The

fixed boundary thalweg is the line established and plat-

ted by Austin B. Smith in geographic positions as shown

on Exhibit P-32 and as described by geodetic positions as

reflected in Exhibit P-32-1.

3. The Southerly end of the lands claimed by the

Plaintiffs is part of Stack Island. This land mass formed as

a result of the divided flow of the Mississippi River on

both sides of Stack Island by a process described by

Austin B. Smith as confluence bar accretions. The land

mass gradually built up by the natural processes of the

Mississippi River and is accretions to Stack Island. The

land mass Easterly of the fixed boundary thalweg is

therefore within the State of Mississippi.

4. Additionally, the Plaintiffs and the State of Mis-

sissippi have presented the Doctrine of Acquiescence as a

we a ee

47a

basis for this Court to find that the subject property is

located in the State of Mississippi. The State of Missis-

sippi has exercised jurisdiction and sovereignty over the

subject lands since 1881 by levying ad valorem taxes at

least since 1889. Law enforcement on Stack Island has

been provided by the State of Mississippi. Louisiana

authorities have recognized that Mississippi has jurisdic-

tion and sovereignty over Stack Island. Sam House, as

sheriff of East Carroll Parish, Louisiana, carried James

Kelly and Charles shelton to Issaquena County, Missis-

sippi in an attempt to get help from the Mississippi law

enforcement authorities. The Louisiana State Police, after

discovering through aerial reconnaissance a marijuana

field on Stack Island, notified the Mississippi Bureau of

Narcotics of the location of the marijuana field. Missis-

sippi law enforcement officers arrested suspects in con-

nection therewith and the suspects were prosecuted in

Issaquena County, Mississippi. Act No. 191 of the Louisi-

ana Legislature passed in 1907 does not destroy the claim

of acquiescence. The said Act cannot be read to convey

Stack Island in particular. The survey of the islands of the

Fifth Louisiana levee District (Exhibit LA-37-A-1) does

not show Stack Island and in fact the islands claimed by

Louisiana and by the Fifth Louisiana Levee District are all

located well South of Stack Island as it existed at that

time. The State of Louisiana has, under the Doctrine of

Acquiescence, acquiesced in the subject property being

under the jurisdicton [sic] and sovereignty of the State of

Mississippi. The 1907 Act No. 191 did not interrupt the

acquiescence by the State of Louisiana. If the Court has

erred in its determination that Stack Island is located in

the State of Mississippi under the Rule of the Thalweg,

48a

then this Court finds that Stack Island is located in the

State of Mississippi under the Doctrine of Acquiescence.

5. The plaintiffs have conceded that the Doctrine of

Presumption of Lost Grant has no application to the issue

of setting the state boundary. |

6. The boundary between the State of Louisiana and

the State of Mississippi in the area of Stack Island, Missis-

sippi, is described by geodetic positions of the vertexes,

numbered Point 1 through Point 21, and described as

follows:

Beginning at Pt. 1 at North Latitude 32° 49° 25" and West

Longitude 91° 09' 27", said Pt. 1 being at the foot of the

West bounds of Baleshed Towhead, Mississippi and the

head of the West bounds of Stack Island, Mississippi,

which was fixed along the thalweg of the abandoned

Mississippi River Channel in about 1954, thence South-

ward with the fixed thalweg (marking the Mississippi-

Louisiana boundary) in the abandoned sector of Lake

Providence Bend channel at Pt. 2, Latitude 32° 49' and

Longitude 91° 09' 34"; thence to Pt. 3, Latitude 32° 48° 47”

and Longitude 91° 09' 37"; thence to Pt. 4, Latitude 32° 48'

30" and Longitude 91° 09' 39"; thence to Pt. 5, Latitude 32°

48' and Longitude 91° 09’ 47"; thence to Pt. 6, Latitude 32°

47’ 18" and Longitude 91° 09' 51"; thence to Pt. 7, Latitude

32° 47' 6" and Longitude 91° 09’ 54"; thence to Pt. 8,

Latitude 32° 47' and Longitude 91° 09’ 59"; thence to Pt. 9,

Latitude 32° 46' 50" and Longitude 91° 10' 7"; thence to Pt.

10, Latitude 32° 46' 35" and Longitude 91° 10’ 14”; thence

to Pt. 11, Latitude 32° 46' 20" and Longitude 91° 10’ 16";

thence to Pt. 12, Latitude 32° 46' and Longitude 91° 10’

18"; thence to Pt. 13, Latitude 32° 45’ 45" and Longitude

91° 10° 20"; thence to Pt. 14, Latitude 32° 45' 30" and

Longitude 91° 10' 18"; thence to Pt. 15, Latitude 32° 45’ 15"

and Longitude 91° 10' 12"; thence to Pt. 16, Latitude 32°

_———

49a

45' and Longitude 91° 10' 01"; thence to Pt. 17, Latitude

32° 44' 45" and Longitude 91° 09° 49"; thence to Pt. 18,

Latitude 32° 44' 30" and Longitude 91° 09° 38"; thence to

Pt. 19, Latitude 32° 44' 23" and Longitude 91° 09° 30";

thence to Pt. 20, Latitude 32° 44’ 15" and Longitude 91° 09

18"; thence to Pt. 21, Latitude 32° 44’ 07" and Longitude

91° 09’; thence to Pt. 22, Latitude 32° 44' and Longitude

91° 08' 44"; said Pt. 21 marks 1975 downstream bounds of

Stack Island fixed thalweg (Fixed Interstate Mississippi-

Louisiana boundary) and the beginning of the 1975 live

thalweg (Live Interstate, Mississippi-Louisiana bound-

ary).

7. The second trial of this cause to determine all

other issues not disposed of in this first trial is hereby set

for October 2, 1989, at 9:00 a.m. in the Federal Courthouse

at Vicksburg, Mississippi.

SO ORDERED AND ADJUDGED, this 3rd_ day of

July , 1989.

/s/ William H. Barbour, Jr.

UNITED STATES DISTRICT JUDGE

50a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

JULIA DONELSON HOUSTON, ET AL

PLAINTIFFS,

V. CIVIL ACTION NO. W86-0080(B)

RUTH M. THOMAS, ET AL

DEFENDANTS.

BENCH OPINION

BEFORE: THE HONORABLE

WILLIAM H. BARBOUR, JR.,

UNITED STATES DISTRICT JUDGE

DATE: OCTOBER 2, 1989

PLACE: VICKSBURG, MISSISSIPPI

APPEARANCES:

COUNSEL FOR PLAINTIFFS:

MR. ROBERT R. BAILESS

MR. M. E. WARD

COUNSEL FOR INTERVENORS:

MR. GARY L. KEYSER

MR. CALVIN ADAMS

COURT REPORTER:

MS. CELESTE O. McCLELLAND, RPR

245 E. CAPITOL, ROOM 534

JACKSON, MISSISSIPPI 39201

(601) 965-5135

[p. 2] THE COURT: The Court has heard the evidence

presented by all parties in regard to this matter and is

now prepared to enter its findings of fact and conclusions

of law by way of this bench opinion.

5la

This Court had before it by virtue of the complaint to

remove cloud, originally filed in this case by the Houston

Plaintiffs, a possession issue. The Defendants were the

riparian owners on the Louisiana side of the Mississippi

River adjacent to what has been referred to in this case as

Stack Island. Some of those Defendants moved to expand

the basic questions of the lawsuit to a state boundary

dispute between the State of Mississippi and the State of

Louisiana and those two states were joined as parties.

The Lake Providence Port Commission was a riparian

owner. As the Court recollects the Lake Providence Port

Commission is an entity of the State of Louisiana and,

accordingly, the State of Louisiana undertook representa-

tion of the Lake Providence Port Commission.

Also eventually joined in the lawsuit was the Fifth

Louisiana Levee District, which is responsible for the

Mississippi River levees as well as other levees along the

Lake Providence reach of the Mississippi River as well as

in other areas.

The Court earlier this year bifurcated the trial of this

case and heard the state boundary issue. The Court

decided [p. 3] that issue favorably to the State of Missis-

sippi and the Houston Plaintiffs deciding that Stack

Island was a part of the State of Mississippi and as a part

of that ruling set the boundary line between the State of

Louisiana and the State of Mississippi along the west side

of the area known as Stack Island.

The Court did this for reasons of jurisdiction and

state law. If the Court had decided that the land mass was

a part of Louisiana, the Court had concluded that the case

would be more properly tried on the possessory title

\

52a

issues in the Federal Courts for the State of Louisiana

under Louisiana law.

When the Court decided that the property was in

Mississippi, the Court determined that this Court has the

jurisdiction to decide the property interest on diversity of

citizenship jurisdiction and because the property is in

Mississippi will apply Mississippi law to the decision as

to who owns the property. The decision as to ownership

of the property of course will quiet title to it.

By way of further background, this land mass has

been subject to other litigation. The Court has heard

proof today from Ms. Elizabeth Reed that at some point

she and her mother sold some timber to the United States

Gypsum Company. Timber cutting on Stack Island was

the subject of successful litigation on behalf of the

Houstons earlier in which it was [p. 4] determined that

the Houstons had title to the island rather than United

States Gypsum. Also the Houstons have litigated title to

this property in the Chancery Court of Issaquena County,

Mississippi, and a final decree was entered by that Court

on May 7, 1968, in effect adjudging that the island was

owned by the Houstons and that the Defendants named

in that lawsuit had no claim to it. The Court is not sure as

to the binding effect of that lawsuit and to the need for

the Plaintiffs to bring this lawsuit in the face of the

decision in that one. However, in the interest of settling

all the issues in regard to this tract of land, both pos-

sessory and in regard to the location as to whether it is in

Mississippi or Louisiana, the Court urged and probably

even required that the attorneys for the Houstons include

all persons who might have any claim to the property in

this lawsuit.

53a

The Court notes in this regard that under Louisiana

law riparian owners own to the edge of the main river

including any accretions and islands in the Louisiana

portions of the river are owned by the State of Louisiana.

Under Mississippi law the adjacent land owners own the

islands in the Mississippi portion of the river.

The Defendant Louisiana riparian owners who filed

answers and counterclaims took the legal position under

Louisiana law that Stack Island had become an accretion

to their east bank and that they, accordingly, have

acquired [p. 5] title by accretion over time out to the edge

of the main river.

The decision of the Court in the first phase of this

hearing in ruling that Stack Island was an island which

had migrated down-stream and to the west in which the

Court set the state boundary line between the island and

the Louisiana bank, in effect, eliminated the riparian

owners’ claims to the island under the Louisiana doc-

trines of accretion.

This, accordingly, leaves for the Court the question as

to whether the ownership of the land known as Stack

Island which is legally titled to the Houston interests has

been subjected to any adverse possession by any Louisi-

ana riparian owners.

At this point the Court notes that as a result of this

lawsuit, most of the riparian owners west of Stack Island

have deeded their interests in Stack Island to the Lake

Providence Port Commission. The Lake Providence Port

Commission operates a port facility near the south end of

Stack Island which is divided from Stack Island by what

54a

is known as the Port Commission Chute. That chute is

kept open by dredging at this time.

The parties agreed in the face of the clear proof that

legal title to Stack Island was in the name of the Houston

interest. Accordingly, the parties agreed that the burden

of proving any adverse possession under Mississippi law

lay upon [p. 6] the adverse claimants. The adverse claim-

ants in this case were the State of Louisiana and the Lake

Providence Port Commission. The Lake Providence Port

Commission claims under the same theory previously

explained by the Court on the basis that itself is a rip-

arian owner to accreted land lying directly east of the

Port Commission property which is across the chute from

the south end of Stack Island.

The Port Commission also claims as successor in

interest to the riparian owners lying west of the island by

virtue of numerous quitclaim deeds which have been

obtained by the Port Commission from the various rip-

arian owners the rest of Stack Island.

Accordingly, the State of Louisiana and the Lake

Providence Port Commission proceeded with their proof

here today in regard to adverse possession. Several wit-

nesses were presented. Ms. Elizabeth Reed testified that

she and her family had owned a plantation, which was

marked on Louisiana Exhibit 1-A, and that she and her

family had claimed to the water’s edge. In support of her

testimony, she testified that she had sold timber to United

States Gypsum and had entered into a lease for all lands

east of the levee.

The Court also notes that she testified that her father,

Vail Deloney, had engaged in a sand and gravel operation

55a

by excavating in the chute between the river bank and the

island [p. 7] for many years prior to her father’s death in

1967. The Court notes that this witness never testified to

any possession east of the line which the Court has

established as the state boundary.

Next, the State of Louisiana and the Port Commission

called Ms. Vail Deloney, the mother of Ms. Reed. Ms.

Deloney basically only testified that she had been hunt-

ing one time on the island with her husband in the 1930's.

Next, the State and the Port Commission called a

Federal Fish and Wildlife Officer, Mr. Oliveros, who testi-

fied that he had written tickets for Federal violations and

prosecuted them in the Louisiana Federal Court. This

reportedly was offered to show that Mississippi had

acquiesced in the jurisdiction of Louisiana on these lands.

The Court, however, takes this testimony merely to show

that the Federal authorities took these cases to Federal

Court in Louisiana and Mississippi had nothing to do

with them one way or the other.

Next, the State and Port Commission called two State

of Louisiana Wildlife and Fisheries Enforcement Officers

or Game Wardens who testified that they had hunted on

Stack Island as boys, that they had each written some

tickets for game offenders on the island and taken the

violators either to Federal Court in the State of Louisiana

or State Court in Louisiana. Both also testified they had

never seen [p. 8] Mississippi game agents on the island,

that they had never seen any of the Houstons or any

other people from Mississippi on the island, and that they

had never seen any posted signs on the island.

56a

The Court understands the purpose of this testimony

to be both that the State of Mississippi had acquiesced in

the jurisdiction of Louisiana and to offset or contradict

some of the other testimony which had previously been

offered by the Houston Plaintiffs in regard to posting and

possession by the Houstons.

The Court notes that neither of these witnesses, Mur-

ray nor Chatman, testified as to any possession by any-

body specific and, accordingly, finds that their testimony

is not very probative.

Finally, the State of Louisiana and Port Commission

called Billy Jack Murray, who basically stated that he had

hunted a number of times 12 to 15 years ago with people

who were from Louisiana. He had hunted on Stack Island

as well as on the unprotected side of the levee, but, again,

never testified as to any specific adverse claimants of the

island itself.

Accordingly, the Court would have found, if it had

been asked to do so on the basis of that proof by way of a

motion for directed verdict, that the State of Louisiana

and the Louisiana Port Commission had failed to carry

their burden of [p. 9] proof and present any substantial

evidence whatsoever as to any adverse claim by any

particular party.

The Court further would note that there was no

statement of claim to a particular part of the property

except by Ms. Reed who merely extended her property

lines eastward to cover the island.

No motion for directed verdict was made by the

Houstons and so, accordingly, the court will go forward

57a

and assess the rest of the evidence which was adopted by

the Houstons through the earlier testimony given to the

Court.

There were a number of witnesses who testified in

the first hearing of this case, all to the effect that this

property has been claimed and possessed by the

Houstons for many years. Jelly Higgins testified that as

far back as the late 1950's and early 1960's that he and his

father had run cattle on the island pursuant to various

letters of authorization and grazing leases from the

Houstons and that these leases covered the entire land.

Mr. Higgins also testified that in the late Fifties and early

Sixties that the Houstons had planted cottonwood trees

on portions of Stack Island, and that between 1962 and

1970 Jelly Higgins had run trespassing hunters off of the

island as well as kept the island posted, all under the

authorization of Ted Houston who was managing the

property for the Houston interest.

Charles Shelton testified that he had hunted on the

[p. 10] island as a boy, receiving permission to hunt from

Jelly Higgins’ father. He also stated that he was the

president of the Stack Island Hunting Club beginning in

1970, that the island was leased for the hunting club

purposes from the Houstons and that the hunting club

posted it every year pursuant to that lease.

He and James Kelly testified as to putting up a fence

that Sam House wanted. This was to a small portion of

the land on the island lying east of the high bank on the

Louisiana side. Sam House was the riparian owner west

of that particular property.

58a

The Court has heard no other claim from Mr. House

as to this property and does not think that the putting up

of the fence by the hunting club owners would be suffi-

cient to establish an open, adverse, notorious, contin-

uous, and uninterrupted possession of any portion of the

island by Sam House.

The Court notes, although it does not so consider,

that Mr. Keyser in his offer of proof in regard to Mr.

House’s testimony that Mr. House would have testified

that he himself had taken the fence down.

Mr. Kelly confirmed that he had seen cottonwood

planters on the island as a boy. Ralph Polk testified that

the cottonwood planters were hired by the Houstons and

that he regularly took Ted Houston to the island for

inspection [p. 11] during some of the low water season by

way of tractor.

Mr. Jarvis testified that he was the land manager at

the present time for the Houston interest and that in 1985

he had leased the entire island to Captan Jack Wyly.

Horsefly Higgins testified that he had leased all of

Stack Island from the Houstons and he had been repre-

sented in that transaction by Mr. Wyly, who is an attor-

ney. Mr. Wyly testified that he had leased all of the island

from the Houstons for the Stack Island Hunting Club and

that he himself as a riparian owner did not claim any

Mississippi land.

The only other testimony which the Court has con-

sidered relevant from the first trial was that of Randy

Walters, the Port Commission Director, who testified that

the Port Commission had dredged in the Lake Providence

59a

port chute between the port and the lower end of Stack

Island to keep that channel open, and that barges in and

out of the port facility had been tied up against the east

bank of the chute which would be next to the south

portion of Stack Island. The Court does not think that

that establishes any possessory right or interest in the

Port Commission specifically or in any other parties.

Accordingly, the Court concludes as a matter of law

that the Houston Plaintiffs are the record title owners to

Stack Island, being that land mass lying east of the state

boundary [p. 12] established by this Court in the bench

opinion following the first phase of this trial.

And, further, that the State of Louisiana, the Lake

Providence Port Commission, the Fifth Louisiana Levee

District, and any other Defendants have failed to make

any showing as to any open, adverse, notorious, contin-

uous and uninterrupted possession of any part of that

land mass for ten years or more as required by Missis-

sippi law.

Accordingly, the Houston Plaintiffs are entitled to a

final judgment setting forth their ownership of the island

and quieting title to that entire land mass in their names.

The Court earlier announced that it was taking cer-

tain motions under advisement: One being a motion to

strike the counterclaims of the Defendants, which was

filed on behalf of the Houston Plaintiffs; another motion

filed by the State of Louisiana and the Lake Providence

Port Commission moving to substitute the State of Louisi-

ana and the Lake Providence Port Commission as the

60a

parties and interest in this suit in place of the quitclaim-

ing riparian owners; and a motion by the State of Louisi-

ana and the Lake Providence Port Commission to set

aside the default judgments taken against the riparian

owners.

These three motions are intertwined with the

defenses of the original riparian Defendants to the Plain-

tiffs’ motion for Rule 11 sanctions in which Plaintiffs

claim that the [p. 13] riparian owners who were joined as

Defendants should be assessed attorneys fees and costs.

Mr. Fox represented a group of those parties. Mr. Wyly

represented himself and others. A third group of riparian

owner Defendants never appeared in the lawsuit one way

or the other and suffered default.

In regard to those who who [sic] never appeared and

suffered default, the State’s motion to set aside those

default judgments if in fact it goes to those defendants is

denied.

In regard to the Rule 11 sanctions motion, Mr. Fox

argued, and Mr. Wyly in effect adopted the same posi-

tion, that Mr. Fox had filed on behalf of his clients a

motion to dismiss and that that motion to dismiss was not

ruled upon by the Court until the case was originally set

for trial on March 21, 1988. At that time, defaults had

been entered against certain parties including Mr. Fox's

clients.

The Court, in attempting to get all issues involving

this land before it, made certain rulings at that time

including a ruling which attempted to bring into Court

all parties who wished to be in Court. The Court directed

the defaulting Defendants to show cause within ten days

6la

as to why they should not suffer default. The Court also

at that time overruled or denied the motion to dismiss.

Mr. Fox has argued to the Court and has presented wit-

nesses that the position of his clients was that under the

Federal Rules he [p. 14] was not required to answer until

ten days after the motion to dismiss had been ruled upon

and that his clients did so by filing an answer and coun-

terclaim at that time.

Mr. Wyly in effect took the same position except in

regard to one of his clients, Mr. Albert Surles, that Mr.

Surles had appeared pro se and by way of a letter written

to the Court stated that he had no interest in the property

being considered by the Court.

The Court can see where the named Defendants who

were attempting to appear were procedurally confused.

Accordingly, the motion to strike the counterclaims of

those Defendants on the basis that they were not timely

filed is denied.

Also the motion of the State of Louisiana and the

Lake Providence Port Commission to set aside the default

judgments as to any of the parties who filed answers after

March 21, 1989, is granted.

The Court also will allow the substitution of the State

of Louisiana and the Lake Providence Port Commission

in the place and stead of those parties who have appeared

in this Court in one way or the other, and had thereafter

quitclaimed their interest to the Lake Providence Port

Commission.

62a

The Court in considering Rule 11 sanctions must

consider that the signature of an attorney or party consti-

tutes a certificate by the signer that the signer has read

the [p. 15] pleading, motion, or other paper, that to the

best of the signer’s knowledge, information, and belief

formed after reasonable inquiry, that the position taken

therein is well grounded in fact and is warranted by

existing law or a good faith argument for the extension,

modification or reversal of existing law, and that it is not

interposed for any improper purpose such as unnecess-

ary delay or to increase the cost of litigation.

The Court finds that the motion for Rule 11 sanctions

is not well taken. Those Defendants who filed the motion

to dismiss and thereafter filed an answer and counter-

claim, were in good faith relying upon a position well

founded in law, that if the Court had determined that the

boundary line between the State of Mississippi and the

State of Louisiana was on the east side of the island

rather than the west side of the island, then the riparian

owners on the Louisiana side would have a valid claim to

the property. Under those circumstances it would be the

Houstons who would be asserting title by adverse pos-

session rather than record title to the property.

Accordingly, the Court finds that the position taken

by those parties was not unreasonable under law or fact,

that this case was a question in which serious factual

issues were presented, that if those factual issues had

been decided in the other way that a completely different

set of laws would [p. 16] have been applied and, accord-

ingly, that the parties were entitled to take the positions

that they did without incurring Rule 11 sanctions. The

motion for Rule 11 sanctions is denied.

63a

The Court, accordingly, will enter a final judgment

adjudicating the Houstons to be the sole owners of Stack

Island, that it lies in Mississippi, and that the title thereto

is quieted as against all of the parties in the lawsuit

opposed to the Houstons.

Because of the complexity of the legal description, |

will ask Mr. Bailess as the prevailing party to prepare a

proposed final judgment including whatever you feel is

necessary to place in your judgment for title purposes.

You may make any necessary statement which will make

that judgment recordable for land deed purposes.

I will ask that the judgment be presented to the

attorneys opposite for criticism or comment before it is

presented to the Court.

The Court did not specifically address Mr. Sedrick

Banks, the successor to Bess Purdy, deceased. The Court

notes that Mr. Bailess on behalf of the Houstons appar-

ently conceded that Rule 11 sanctions would not be prop-

erly assessed against that succession or estate.

That will conclude the bench opinion by the Court.

I will ask the parties represented as to whether there

[p. 17] is any request for additional adjudication by the

Court or clarification of any ruling by the Court.

Mr. Bailess for the Houstons?

MR. BAILESS: Your Honor, if the Court please,

you covered a great deal. | think | understand what the

Court did. I can’t think of anything right now.

One small point of clarification. Which attorneys do |

have to run this order by?

64a

THE COURT: All right.

MR. BAILESS: Would it be Mr. Keyser and Mr.

Adams? Or do I also need to run it by Mr. Fox and Mr.

Wyly and Mr. Banks?

THE COURT: Is there any request from either

Mr. Banks, Mr. Fox, or Mr. Wyly to review the judgment?

MR. BANKS: No, sir, I'd waive any request of

succession that Bess Purdy may have.

MR. FOX: No, Your Honor.

MR. WYLY: No, Your Honor.

THE COURT: All right.

MR. WYLY: I would like to ask one thing.

THE COURT: Just a minute. Let me take this in

order.

Mr. Bailess, you will only be required to submit it to

Mr. Keyser and Mr. Adams. The other attorneys do not

wish you to submit it to them.

[p. 18] MR. BAILESS: Thank you, Your Honor.

One thing that either | am confused about or the Court

was confused about is the motion to set aside the default

judgment. And | think that the only motion that was filed

to set aside a default judgment was filed by Mr. Wyly on

behalf of Mr. Surles, Gladstone Corporation, and the

Wyly interests. | could be wrong about that.

MR. WYLY: According to if it’s in order, I ask

that those motion [sic] to be set aside be withdrawn.

THE COURT: Would you simply withdraw

those motions?

65a

MR. WYLY: Yes, sir.

THE COURT: All right. The withdrawal -

MR. WYLY: That will clarify his problem; will it

not?

THE COURT: Yes, sir, the withdrawal of those

motions will be permitted and that will render moot the

motion to set aside. | had understood in our telephone

conversation last week between Mr. Bailess and Mr. Key-

ser that there had been a motion by Mr. Keyser on behalf

of his clients to set aside default judgments; is that not

true?

MR. BAILESS: No, Your Honor. | was just infor-

ming the Court that that was one motion that had been

filed but which had never been disposed of. It was actu-

ally filed by Mr. Wyly.

[p. 19] THE COURT: I have granted that with-

drawal and that moots that issue. Accordingly, the Court

simply states that the comments made in the bench opin-

ion concerning the motion to set aside the default judg-

ments is deleted. They will not actually be taken out of

the transcript but it should be considered as though they

had not been mentioned.

MR. BAILESS: Thank you, Your Honor.

THE COURT: All right. Mr. Keyser, any request

for additions or clarifications?

MR. KEYSER: No, sir. I don’t have any.

THE COURT: Mr. Adams?

MR. ADAMS: No, sir.

66a

THE COURT: All right. Mr. Wyly?

MR. WYLY: I would like to ask if the Court

would have the boundaries marked so that all parties

concerned, the line and the boundaries will be marked.

THE COURT: All right. Mr. Wyly. | will decline

that request. I think that it is up to the land owners to

mark a boundary and that the Court should not require

that to be done. The Court has ruled in the first phase of

this trial as to the exact geographical calls constituting

that boundary. And if at the conclusion of these proceed-

ings some party wishes to expend the money to have a

surveyor mark that boundary in accordance with those

calls, certainly whoever wishes that done can do so. | will

not require that.

[p. 20) All right, Mr. Banks?

MR. BANKS: Your Honor, I’m kind of a small

fish in a big pond here, but the best I can figure it out, the

succession has some three or four acres interest in this

island that was in dispute. My question would be, has the

Court determined what costs, if any, the Defendants are

liable for?

THE COURT: I have not but ! will address that

_in just a moment.

Mr. Fox, any request for clarification or additions

from your clients?

MR. FOX: No, Your Honor.

THE COURT: All right. Let me address the

issue of costs. I'm sure that Mr. Bailess as the prevailing

party is interested in that.

67a

This Court understands that in the matter of costs in

Federal Court that there is considerable discretion on the

Judge’s part as to which costs to assess to a prevailing

party. Normally the only costs which I assess are the

filing fees and any witness costs that were actually

expended for subpoenaed witnesses. | do not normally

allow as costs things that appear on the printed costs bill

for depositions, costs of copies, and such matters as that.

I would suggest to everyone that probably the most

equitable way to assess costs under the circumstances

would [p. 21] be to assess them against the State of

Louisiana and the Lake Providence Port Commission as

the primary parties who were protesting the lawsuit,

particularly in regard to the positions taken by the indi-

vidual Defendants that basically once the litigation star-

ted they turned their interests over to the State of

Louisiana.

Accordingly, the Court will assess the costs in favor

of the Plaintiffs only against the State of Louisiana and

the Lake Providence Port Commission.

And then, Mr. Bailess, you may be guided by my

remarks in regard to whatever costs you might wish to

claim. I will not rule on that at this time. You may make

your claim by a proper bill of costs in any form or fashion

that you wish. I will rule on that at a later point if called

upon so to do.

All right. Anything further from anybody?

The Deputy Clerk was missing a couple of exhibits in

the record. I understand that she called you, Mr. Keyser. |

believe they were Louisiana exhibits.

68a

MR. KEYSER: Yes, sir. We had talked about it

earlier today. She’s still missing Louisiana 20 and 30 and |

had assumed she had found them when | hadn't heard

back from her and | didn’t find them in my stuff. I will

endeavor to get copiés of them.

THE COURT: You need to have the record com-

plete, particularly if someone wishes to take an appeal.

She did [p. 22] not have those after the last hearing. We

had a large number of exhibits and it was fairly compli-

cated.

Mr. Keyser, let me ask you to be responsible either

for finding those original exhibits or providing us with

copies.

MR. KEYSER: Yes, sir.

THE COURT: All right. I will ask the attorneys

before we leave this afternoon to please help the Court-

room Deputy with the exhibits to make sure while you

are all here that the exhibits are in proper order.

The Court has made this bench opinion. In the event

it is transcribed for appeal or other purposes, the Court

will reserve the right to edit or amend this bench opinion.

The Court, however, will not change the end results of

the opinion by any such editing or amending.

If there is nothing further then the Court will stand

in recess.

(Recess. )

[p. 23] * * *

69a

CERTIFICATE

I, Celeste O. McClelland, Registered Professional

Reporter, United States District Court, Southern District

of Mississippi, do hereby certify that the above and fore-

going 22 pages contain a full, true, and correct transcript

of the proceedings had in the aforenamed case at the time

and place indicated, which proceedings were recorded by

me to the best of my skill and ability.

I certify that the transcript fees and format comply

with those prescribed by the Court and Judicial Confer-

ence of the United States.

This the 13th day of October, 1989.

/s/ Celeste O. McClelland

Celeste O. McClelland

My Commission Expires:

June 29, 1991

70a

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

JULIA DONELSON HOUSTON, RUTH HOUSTON

BAKER and HINES H. BAKER, JR., CO-EXECUTORS

AND CO-TRUSTEES OF THE ESTATE OF GEORGE T.

HOUSTON a/k/a GEORGE T. HOUSTON, III,

DECEASED; AND RUTH HOUSTON BAKER,

INDIVIDUALLY

PLAINTIFFS

VS. CIVIL ACTION NO. W86-0080(B)

RUTH M. THOMAS, DECEASED; BESSIE PRICE

TALBERT PURDY, DECEASED; MRS. EDITH P.

HOUSTON; EDMOND SUSAN BELL FOLK; SARAH

ANN SCHNEIDER BOTKIN; SARA ANN SCHNEIDER

MOTT; FREDERICK HALL SCHNEIDER, III; GAY

SCHNEIDER WARREN; NANETTE SCHNEIDER

MILLER; LISA M. MILLER; OWEN S. BROWN, JR.;

MARY VIRGINIA BROWN; WILLIAM F. NAFF; JOHN

O. NELSON, JR.; TOM ED NELSON; ALBERT P.

SURLES, JR.; WALTER ELVIS SURLES; ALBERT P-

SURLES; HAZEL T. WHITE; ELIZABETH DELONEY

REED; VAIL DELONY BALDRIDGE; ELIZABETH

LOUISE MILLER DELONEY, ADMINISTRATRIX OF

THE SUCCESSION OF VAIL M DELONY; GENEVIEVE

BROWN SHORTER, DECEASED; CHARLIE BUTLER;

BETTYE JOE SHORTER PRINCE; FRED ROGERS

SHORTER; WILLIE B. SHORTER; EDWARD LEO

SHORTER; SAM L. HOUSE, JR.; MILDRED A. HOUSE;

SAM THOMAS BATTON; AUDREY H. BATTON;

GLADSTONE CORPORATION; ANNIE ROSE W.

GILFOIL; JAMES HENRY GILFOIL, II]; WILLIAM D

BROWN, III; GRADY WYLY BROWN; PHILIP B.

BROWN; JAMES GRADY WYLY, JR.; ANNIE ETHEL

WYLY; WILLIAM NORRIS WYLY; BONNIE G. WYLY;

7la

HOLLYBROOK LAND COMPANY, INCORPORATED;

ED M. LOWRANCE, TRUSTEE FOR HELEN C.

LOWRANCE; HELEN C. LOWRANCE; OGDEN

RUSSELL; KATHLEEN P. RUSSELL, DECEASED;

FEDERAL DEPOSIT INSURANCE CORPORATION;

THE UNKNOWN HEIRS AT LAW OR DEVISEES OF

SAM ERNEST SHORTER; THE UNKNOWN HEIRS AT

LAW OR DEVISEES OF SAM EARL SHORTER; THE

UNKNOWN HEIRS AT LAW OR DEVISEES OF SAM

SHORTER, JR.; THE UNKNOWN HEIRS AT LAW OR

DEVISEES OF ELLA N. BELL; NATHANIEL W.

THOMAS; FRANK M. THOMAS; COLLINS S.

THOMAS; SAM DONALD JR., EXECUTOR OF THE

SUCCESSION OF BESSIE PRICE TALBERT PURDY;

MARTHA CECILIA RUSSELL REED, INDIVIDUALLY

AND AS CO-GUARDIAN OF THE PERSON AND

ESTATE OF OGDEN “SONNY” RUSSELL; LYNN

OGDEN RUSSELL, INDIVIDUALLY AND AS CO-

GUARDIAN OF THE PERSON AND ESTATE OF

OGDEN “SONNY” RUSSELL; BOARD OF

COMMISSIONERS FOR THE FIFTH LOUISIANA

LEVEE DISTRICT

DEFENDANTS

STATE OF LOUISIANA AND

LAKE PROVIDENCE PORT COMMISSION

INTERVENORS

AND THIRD PARTY PLAINTIFF

STATE OF MISSISSIPPI!

THIRD PARTY DEFENDANT

JUDGMENT

(Filed Dec. 13, 1989)

THIS CAUSE having come on for trial before the

Court without a jury on October 2, 1989, this hearing

72a

being the second phase of the trial of this cause, the trial

being bifurcated by the Court to first determine whether

the property which is the subject of this litigation is

located within in the State of Mississippi or in the State of

Louisiana, to determine whether or not this Court had

jurisdiction of the property, and to determine the applica-

tion of state law. This Court has previously determined in

the earlier hearing that the property which is the subject

of this litigation is located in the State of Mississippi. The

Court has heard testimony and argument of counsel in

this the second and final phase of this litigation, and at

the conclusion of said hearing, the court rendered its

ruling from the bench on October 2, 1989, and in accor-

dance with said bench ruling, the Court finds as follows:

1. This Court had earlier ruled that the property

known as Stack Island moved downstream and to the

West by virtue of the natural processes of the Mississippi

River. This action eliminated the claim that the subject

property constituted accretions of the State of Louisiana.

Having so ruled, the only issue left to be decided by this

Court is that of adverse possession of the property known

as Stack Island.

2. Legal title to the subject property is in the name

of Plaintiffs. All parties have agreed that the burden of

proof is on the Louisiana riparian owners to prove any

title they may have by adverse possession.

3. The Court has heard testimony from Elizabeth D.

Reed, Mrs. Vail Deloney, Joe Oliveros, Mike Murray, Joe

Chapman and Billy Murray. The testimony offered by the

Defendants, Intervenors does not meet the burden of

proof required of them. There is no testimony of any

73a

adverse possession East of the State boundary line as set

by this Court. In order to prove adverse possession, the

Defendants and Intervenors were required to prove pos-

session that is hostile and under claim of right, actual,

open, notorious and visible, exclusive, continuous and

uninterrupted and peaceful.

4. At the earlier hearing of this cause in June, 1989,

the Plaintiffs offered proof of possession of the subject

property by the Plaintiffs as follows:

(a) Eyreal “Jelly” Higgins testified that he grazed

cattle on Stack Island and observed that the Houstons

had planted cottonwood trees. Jelly Higgins kept tres-

passers off of Stack Island and kept the property posted.

(b) Charles Shelton testified that he hunted on Stack

Island as a boy. Further, he kept Stack Island posted as

president of the hunting club on Stack Island.

(c) James Kelly confirmed that the Houstons plan-

ted cottonwood trees on Stack Island.

(d) Ralph Polk testified that he saw the Houstons

on Stack Island and on several occasions transported Ted

Houston to Stack Island.

(e) A. M. “Horsefly” Higgins testified that in the

1950’s he leased all of Stack Island for grazing purposes.

He was represented by attorney Captan Jack Wyly in

executing this grazing lease on Stack Island. Captan Jack

Wyly testified that as a Louisiana riparian owner he

claimed no Mississippi land.

The State of Louisiana and the Lake Providence Port

Commission offered as a witness Randy Walters, the

74a

Executive Director of the Lake Providence Port Commis-

sion, who testified that dredging was done in the Haga-

man Chute to keep the Port Commissiqn channel open.

He also testified that barges tied to the east bank of the

Chute. This testimony does not establish any possessory

rights in the Lake Providence Port Commission.

5. The Plaintiffs are the record title owners of Stack

Island being that part east of the state boundary line as

set by the Court by Judgment dated July 3, 1989.

6. No Defendant or Intervenor has met the burden

of proof to establish any property rights in Stack Island.

7. The Plaintiffs are entitled to final judgment quiet-

ing title to Stack Island.

8. The Plaintiffs’ Motions to Strike Counterclaims of

the various Defendants are denied.

9. The Motions for Substitution of Parties as filed by

the State of Louisiana and the Lake Providence Port Com-

mission are granted.

10. The Plaintiffs’ Motions for Sanctions are denied. ©

11. All court costs are assessed against the State of

Louisiana and the Lake Providence Port Commission, for

which Plaintiffs may make claim by proper bill of costs.

12. Judgment is hereby entered adjudicating that:

(a) Julia Donelson Houston, Ruth Houston Baker

and Hines H. Baker, Jr. as Trustees of the Julia Donelson

Houston Marital Trust are the fee simple owners of an

undivided three-sixteenths (/1) interest, and that Julia

Donelson Houston, Ruth Houston Baker and Hines H.

75a

Baker, Jr. as Trustees of the George T. Houston Estate

Trust are the fee simple owners of an undivided nine-

sixteenths (°/1s) interest, and that Ruth Houston Baker is

the fee simple owner of an undivided one-fourth (1/4)

interest in and to the property hereinafter described lying

North of the North line extended Westward of that cer-

tain tract of land known as “Shipland”; and

(b) Julia Donelson Houston, Ruth Houston Baker

and Hines H. Baker, Jr. as Trustees of the Julia Donelson

Houston Marital Trust are the fee simple owners of an

undivided one-eighth ('/s) and that Julia Donelson

Houston, Ruth Houston Baker and Hines H. Baker, Jr. as

Trustees of the George T. Houston Estate Trust are the fee

simple owners of an undivided three-eighths (?/s) interest

each in and to only the oil, gas and other minerals lying

in, on and under the land hereinafter described, lying

South of the North line extended Westward of the certain

tract of land known as “Shipland”; and

(c) Ruth Houston Baker is the fee simple owner of

the lands hereinafter described lying South of the North

line extended Westward of that certain tract of land

known as “Shipland”, subject to the ownership of an

undivided one-half ('/2) interest [described above in

12(b)) in and to the oil, gas and other minerals lying in,

on and under said property.

Further, this Court finds that none of the Defendants

or Intervenors have any right, title or interest in said

lands and this Court removes and cancels all clouds

heretofore existing on the title of Plaintiffs in and to said

property as against all claims of the Defendants and

Intervenors.

76a

13. The property of Plaintiffs is described as fol-

lows, to-wit:

That certain island in the Mississippi River known as

Island No. 94 and also known as Stack Island, being

sometimes also called Section 27 of Township 11 North,

Range 9 West, Issaquena County, Mississippi, being the

same island, with accretions which have been added

thereto, which was conveyed by the United States of

America to Stephen B. Blackwell by Patent dated Decem-

ber 29, 1888 and recorded in Book S at Page 444 of the

Land Records of Issaquena County, Mississippi. The West

boundary of said lands, which is also the East boundary

of the lands in the State of Louisiana, is described by

geodetic positions of the vertexes, numbered Point |

through Point 21, and described as follows:

Beginning at Pt. 1 at North Latitude 32° 49’ 25" and West

Longitude 91° 09’ 27", said Pt. 1 being at the foot of the

West bounds of Baleshed Towhead, Mississippi and the

head of the West bounds of Stack Island, Mississippi,

which was fixed along the thalweg of the abandoned

Mississippi River Channel in about 1954, thence South-

ward with the fixed thalweg (marking the Mississippi -

Louisiana boundary) in the abandoned sector of Lake

Providence Bend channel at Pt. 2, Latitude 32° 49° and

Longitude 91° 09° 34”; thence to Pt. 3, Latitude 32° 48° 47°

and Longitude 91° 09’ 37"; thence to Pt. 4, Latitude 32° 48

30” and Longitude 91° 09’ 39”; thence to Pt. 5, Latitude 32°

48’ and Longitude 91° 09’ 47"; thence to Pt. 6, Latitude 32°

47' 18" and Longitude 91° 09’ 51"; thence to Pt. 7, Latitude

32° 47' 6" and Longitude 91° 09° 54”; thence to Pt. 8,

Latitude 32° 47’ and Longitude 91° 09’ 59"; thence to Pt. 9,

Latitude 32° 46’ 50” and Longitude 91° 10' 7"; thence to Pt.

10, Latitude 32° 46’ 35" and Longitude 91° 10’ 14”; thence

to Pt. 11, Latitude 32° 46' 20" and Longitude 91° 10' 16°;

77a

thence to Pt. 12, Latitude 32° 46’ and Longitude 91° 10’

18"; thence to Pt. 13, Latitude 32° 45° 45” and Longitude

91° 10° 20"; thence to Pt. 14, Latitude 32° 45° 30” and

Longitude 91° 10° 18"; thence to Pt. 15, Latitude 32° 45’ 15"

and Longitude 91° 10’ 12”; thence to Pt. 16, Latitude 32°

45' and Longitude 91° 10° 01"; thence to Pt. 17, Latitude

32° 44° 45" and Longitude 91° 09° 49”; thence to Pt. 18

Latitude 32° 44’ 30" and Longitude 91° 09' 38": thence to

Pt. 19, Latitude 32° 44° 23” and Longitude 91° 09° 30”;

thence to Pt. 20, Latitude 32° 44’ 15" and Longitude 91° 09

18"; thence to Pt. 21, Latitude 32° 44 07” and Longitude

91° 09’; thence to Pt. 22, Latitude 32° 44’ and Longitude

91° 08° 44"; said Pt. 21 marks 1975 downstream bounds of

Stack Island fixed thalweg (Fixed Interstate Mississippi -

Louisiana boundary) and the beginning of the 1975 live

ewes (Live Interstate, Mississippi — Louisiana bound.

ary).

14. This Judgment, along with a copy of the plat of

Exhibit P-32D, which said Exhibit P-32D is attached to

this Judgment as Appendix A, may be recorded in the

Land Records of Issaquena County, Mississippi and in the

office of the Clerk of Court of East Carroll Parish, Louisi-

ana.

SO ORDERED AND ADJUDGED, the 13 day of Dec.,

1989. _ ae

s/ William H. Barbour, jr

UNITED STATES

DISTRICT JUDGE

78a

APPENDIX “A”

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ae ae %

ISSAQULENA

=

EN: 5

LOUISIANA

Cannons

AVAILABLE COPY

79a

No. [114] Original

In the

Supreme Court of the United States

October Term, 1988

StaTE OF LOUISIANA,

Plaintiff,

v.

STATE OF MiIssISSIPPI, ET AL.,

Defendants.

MOTION TO FILE COMPLAINT, COMPLAINT

AND APPLICATION FOR STAY ORDER,

AND BRIEF IN SUPPORT OF MOTION,

COMPLAINT AND APPLICATION FOR

STAY ORDER

WILLIAM J. GUSTE, JR.

Attorney General

State of Louisiana

State Capitol

Baton Rouge, Louisiana 70804

GARY L. KEYSER

DAVID C. KIMMEL

Assistant Attorneys General

State of Louisiana

80a

No. [114] Original

In The

Supreme Cuurt of the United States

October Term, 1988

STATE OF LOUISIANA,

Plaintiff,

V.

STATE OF MissISsSsIPPI, ET AL.,

=,

Defendants.

MOTION FOR LEAVE TO FILE COMPLAINT

AND FOR STAY ORDER

The State of Louisiana, appearing herein through the

Honorable William J. Guste, Jr., its Attorney General,

acting in pursuance of the authority and powers vested in

him by Article IV, Section 8 of the Louisiana Constitution,

respectfully states that:

1. A portion of the boundary between the States of

Louisiana and Mississippi common to the Parish of East

Carroll, Louisiana, and the County of Issaquena, Missis-

sippi, is in dispute.

2. This boundary dispute between the States is sub-

ject to the exclusive original jurisdiction of the Supreme

Court of the United States.

3. An action is presently pending in the United

States District Court, Western Division of the Southern

District of Mississippi, entitled Julia Donelson Houston, et

8la

al, vs. Ruth M. Thomas, et al., Civil Action No.

W86-0080(B), wherein, as shown by Exhibit “A”, the

Complaint to Remove Cloud, complainants in said civil

action are claiming ownership of a portion of lands

involved in |

No. [114] Original

In The

Supreme Court of the United States

October Term, 1988

STATE OF LOUISIANA,

Plaintiff.

V.

STATE OF MississiPPl, ET AL.,

Defendants.

COMPLAINT AND APPLICATION FOR

STAY ORDER

- * *

[p. 11] XVIII.

Consequently, in the necessary and essential exercise

of sovereign rights, the exact location of the boundary

line between Mississippi and Louisiana in the area at

controversy becomes of major and substantial signifi-

cance to the respective states, in view of the great value

82a

of the lands and water bottoms for navigational, hunting,

fishing, timber and recreational purposes, as well the

potential for the production of oil, gas and other min-

erals. Heretofore, it has not been necessary to determine

with [p. 12] preciseness the exact location of such bound-

ary line. This controversy now makes such a determina-

tion essential to the two sovereign states, as well as to

their citizens.

XIX.

The property rights, the sovereign rights and the

sanctity of the boundary between the States of Louisiana

and Mississippi are inextricably involved in the private

litigation which commenced this controversy, thus insti-

tuted and pending in the United States District Court for

the Western Division of the Southern District of the State

of Mississippi, and said Court is not the forum proper to

such determinations. Nor is the State of Louisiana

required to submit its title to said court, nor should it be.

XX.

The decision of the Supreme Court of the United

States herein will be conclusively binding on all private

parties and it alone has the power to fix and determine

the boundary lines herein described. The suit of Julia

Donelson Houston, et al. vs. Ruth M. Thomas, et al., should

be stayed by Order of this Court until a final judgment

herein can be had, and application is hereby made by the

State of Louisiana for an Order to be issued by this Court,

83a

directed to the United States District Court, Western Divi-

sion of the Southern District of Mississippi, staying all

proceedings in said suit.

XXI.

The jurisdiction of the Supreme Court of the United

States in boundary disputes between States is exclusive

and original and accordingly it is appropriate that the

suit of Julia Donelson Houston, et al. vs. Ruth M. Thomas, (p.

13] et al., be stayed and all parties thereto be served with

a copy of the Stay Order herein applied for, and be given

the opportunity to assert such interests as they may have

in this action.

WHEREFORE, PREMISES CONSIDERED.

> La *

BRIEF OF THE STATE OF LOUISIANA IN SUPPORT

OF ITS MOTION FOR LEAVE TO FILE ORIGINAL

SUIT AND FOR STAY ORDER.

[p. 16] II.

THE MOTION FOR LEAVE TO FILE

SHOULD BE GRANTED

Jurisdiction vests since this is a suit between the

States of Louisiana and Mississippi in which private per-

sons are also proper parties due to the nature of the

boundary dispute.

The value of the property involved in [sic] great. The

rights of the State of Louisiana are real and substantial.

84a

The controversy exists and is justiciable. The Supreme

Court of the United States is the only forum to settle this

dispute, fix the boundary line between the states, and

determine finally the rights of the parties. See Florida v.

Georgia, 17 How. 478 (1854); Oklahoma v. Texas, 158 U.S.

574, 66 L.Ed. 771, 42 Sup. Ct. 406 (1922).

This court has entertained jurisdiction in such contro-

versies on numerous occasions, and has done so in sev-

eral prior Mississippi River boundary cases between

Louisiana and Mississippi, as in Louisiana v. Mississippi,

202 U.S. 1, 50 L.Ed. 913, 26 S.Ct. 408 (1906); Louisiana v.

Mississippi, 282 U.S. 458, 75 L.Ed. 459, 51 S.Ct. 197 (1931);

and Louisiana v. Mississippi, 384 U.S. 24, 16 L.Ed. 2d 330,

86 S.Ct. 1250 (1966).

85a

No. 114, Original

SSSSO3..oeoass"e—saeasxcoan

In the Supreme Court of the United States

OCTOBER TERM, 1988

STATE OF LOUISIANA,

Plaintiff,

VS.

STATE OF MISSISSIPPI, ET AL.,

Defendants.

BRIEF IN OPPOSITION TO

MOTION FOR LEAVE TO FILE COMPLAINT

Mike Moore, Attorney General

State of Mississippi

Rosert E. SANpeRs

(Counsel of Record)

Special Assistant Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Telephone: (601) 359-3840

Rosert R. Bairrss

Whreevess, BEANLAND, Suaprpiey &

BaILESS

Post Office Box 991

Vicksburg, Mississippi 39181

Telephone: (601) 636-8451

MoitcHent. Emmett Warp

Warp, Martin, Terry &

WiLiirorRD

Post Office Box 789

Vicksburg, Mississippi 39181

Telephone: (601) 636-6565

86a

Attorneys for Defendants

November, 1988

—————————————————— “ss

E. L. MENDENHALL, INC.,

926 Cherry Street, Kansas City, Mo. 64106,

(816) 421-3030

* » *

[p. 6] Mississippi. All necessary and indispensible parties

are before the Court.

Here, Louisiana has an adequate forum to present its

claims - the United States District Court for the Southern

District of Mississippi - where the same issues are before

the District Court. Louisiana chose its forum to litigate

the issues. Louisiana intervened as a party in a District

Court suit - a suit that was simply an action to remove

cloud on title.

Houston brought the suit to establish the boundary

line to their land. It is incidental that the boundary line is

also alleged to be the State line. The boundary line could

have been an established roadway or an inland stream.

A denial of the Louisiana motion would work no

irreparable harm upon Louisiana, would avoid further

glutting the docket of this Court, and would avoid the

expense and delay occasioned by the appointment of a

Special Master. The last action of this nature filed by

Louisiana, in which a Special Master was appointed to try

the issues, resulted in a cost to the parties for the fees of

the Special Master alone in excess of $64,000.00. Louisiana

v. Mississippi, 466 U.S. 921, 80 L.Ed.2d 175, 104 S.Ct. 1701.

These judicial economics are particularly important as the

proceedings were begun in the United States District

87a

Court in July, 1986. The proceedings are ready to proceed

to trial before the District Court.

Here, justice is far better served by a trial in the

lower court, with appropriate review, than by a trial

before a Special Master whose rulings this Court simply

cannot consider with the care and attention it should.

[p. 7] In the event any parties are dissatisfied with

the result reached by the United States District Court,

they have the recourse of the normal appellate process of

federal courts, including the review in this Court on Writ

of Certiorari.

CONCLUSION

For these reasons, the Court should deny the Motion

for Leave to File Complaint and should remit the case to

the United States District Court for the Southern District

of Mississippi, Western Division, for further proceedings.

Respectfully submitted,

Mike Moore, Attorney General

State of Mississippi

By: Rosert E. SaNpers

(Counsel of Record)

Special Assistant Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Telephone: (601) 359-3840

88a

Ropert R. Bairess

WuHeEELESS, BEANLAND, SHAPPLEY &

BaILEss

Post Office Box 991

Vicksburg, Mississippi 39181

Telephone: (601) 636-8451

MitcHett Emmett WarD

Warp, Martin, Terry &

WILLIFORD

Post Office Box 789

Vicksburg, Mississippi 39181

Telephone: (601) 636-6565

Attorneys for Defendants

89a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

October 3, 1988

JOSEPH F. SPANIOL, JR., AREA CopE 202

CLERK OF THE COURT 479-3011

Gary L. Keyser, Esquire

Assistant Attorney General

State Capitol

Baton Rouge, LA 70804

Re: State of Louisiana v. State of Mississippi, et al.

No. 114, Original (Application No. A-239)

Dear Mr. Keyser:

The Court today entered the following order in the

above-entitled case:

“The application for stay of proceedings in the

United States District Court for the Southern

District of Mississippi in the case of Julia Don-

elson Houston, et al. v. Ruth M. Thomas, et al.,

C.A. No. W86-0080(B) presented to Justice White

and by him referred to the Court is denied.”

Very truly yours,

JOSEPH F. SPANIOL, JR., Clerk

By

Francis J. Lorson

Chief Deputy Clerk

kb

ce:

90a

The Honorable Buddy Roemer, Governor of Louisi-

The Honorable Ray Mabus, Governor of Mississippi

The Honorable Michael Moore, Attorney General of

Mississippi

Robert R. Bailess

George F. Fox, Jr.

Archie L. Jefferson

William F. Naff

Hines H. Baker, Jr.

M. E. Ward

[Reported at 488 U.S. 808]

9la

No. 114, Orig. Louisiana v. Mississiprt eT AL. Motion for

leave to file bill of complaint denied. [For earlier order

herein, see ante, p. 808.]

Justice Wuite, with whom Justice Stevens and Justice

ScaLia join, dissenting.

Louisiana’s complaint against Mississippi is plainly

within our original jurisdiction and alleges a boundary

dispute with Mississippi, the very kind of a dispute that

countless times the Court has accepted and adjudicated

under its original jurisdiction. Furthermore, as 28 U.S.C.

§1251(a) prescribes, the Court has exclusive jurisdiction

over controversies between States. No other court may

entertain Louisiana’s complaint against Mississippi.

It is true that Louisiana intervened in a dispute

between private parties over the ownership of land on an

island in the Mississippi, claiming that the land was in

that State. That suit might settle the dispute among the

parties and the State, but a judgment that the island is in

Louisiana would not bind Mississippi. For that reason, |

suppose, Louisiana filed a third-party complaint against

Mississippi and also sought leave to file an original action

in this Court. We prefer to have disputes within our

original jurisdiction settled in other fora where possible.

See, e.g., Arizona v. New Mexico, 425 U.S. 794 (1976). But

this boundary dispute between two States is exclusively

our business and as such, may not be adjudicated in the

District Court. Had Louisiana not intervened in the pri-

vate action, denying leave to file would surely be inde-

fensible. Perhaps denial of leave to file rests on the

possibility that the private action will go forward with

Louisiana as a party and that a judgment unfavorable to,

92a

but binding on Louisiana will be entered. For me, how-

ever, this is no way to treat a sovereign State that wants

its dispute with another State settled in this Court. |

would grant leave to file.

93a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

February 27, 1989

JOSEPH F. SPANIOL, JR., AREA CopE 202

CLERK OF THE COURT 479-3011

Mr. Gary L. Keyser

Asst. Attorney General

State of Louisiana

P.O. Box 94095

Baton Rouge, LA 70804-9095

Re: Louisiana v. Mississippi, No. 114 Original

Dear Mr. Keyser:

The Court today entered the following order in the

above-entitled case:

“The petition for rehearing and alternative

motion to file a separate complaint is denied.”

Very truly yours,

Joseph F. Spaniol, Jr., Clerk

By:

Francis J. Lorson

Chief Deputy Clerk

Ig

cc: Al Nusso,

Asst. Attorney General of Mississippi

Robert R. Bailess, Esq.

George F. Fox, Jr., Esq.

Archie L. Jefferson, Esq.

William F. Naff

Hines H. Baker, Jr., Esq.

M. E. Ward, Esq.

[Reported at 489 U.S. 1050]

94a

No. 114 Original

eee SOOwuwnan" ou

In the

Supreme Court of the United States

October Term, 1988

STATE OF LOUISIANA,

Plaintiff,

Vv.

STATE OF MiISssISSIPPI, ET AL.,

Defendants.

PETITION FOR REHEARING BY THE STATE OF

LOUISIANA OF ITS MOTION TO FILE

COMPLAINT; AND ALTERNATIVE MOTION TO

FILE SEPARATE COMPLAINT AND

BRIEF IN SUPPORT

WILLIAM J. GUSTE, JR.

Attorney General

State of Louisiana

State Capitol

Baton Rouge, Louisiana 70804

GARY L. KEYSER

DAVID C. KIMMEL

Assistant Attorneys General

State of Louisiana

95a

[p. 2] 2.

The property rights, the sovereign rights and the

location of the boundary between the States of Louisiana

and Mississippi, all important legal issues, are involved

in the litigation which commenced this controversy in the

United States District Court, and said Court is not the

proper forum to make such determinations in matters

between states. Parenthetically, a judgment by the District

Court in this matter would not necessarily bind all parties

at issue, particularly as concerns the boundary question

and the validity of the original United States patent. The

decision of the Supreme Court of the United States in this

matter will be conclusively binding on all private parties,

as well as the states, and it alone has the power to fix and

determine the boundary lines herein described.

* — *

[p. 8] A trial of the case in Jackson, Mississippi,

would no doubt give at least the appearance of partiality

to some, which a case of this type does not justly deserve.

Il.

THE STATES ARE THE REAL PARTIES AT INTEREST

While all of the parties whose presence is indispens-

able, necessary or proper for the determination of this

case between the states are properly involved, the states

are the real parties at interest as concerns the location of

96a

their common boundary and the ownership of the water-

bottoms which adjoin it. They are not merely represent-

ing the interests of their citizens, who have related

interests which can be determined at the same time.

* * *

[p. 9] HI.

IT IS ESSENTIAL THAT THE SUPREME COURT

ASSERT ITS JURISDICTION, AND SUCH IS IN THE

INTEREST OF JUDICIAL ECONOMY

While it is possible for the District Court to reach

some type of decision affording relief to some of the

parties involved, a judgment by the District Court that

Island No. 94 is in Louisiana would not bind Mississippi,

nor necessarily the numerous private parties involved.

Such a judgment would not necessarily deter dual assess-

ment and taxation by the taxing bodies of the two states,

nor dissuade both Mississippi and Louisiana claimants

from asserting acts of ownership and possession.

A district court decision will, however wise, lead

inevitably to an appeal of the case and, thence, certainly

to this Court for final resort. Consequently, the time of

the appellate court will also be consumed and, ultimately,

the time of this Court as well.

It can hardly be imagined that the Supreme Court

will not take jurisdiction in a case of this magnitude since

it has, as a matter of record, already recognized the

essential need for hearing matters of similar kind, while

not taking jurisdiction of every possible case. See State of

Louisiana v. State of Texas, 176 U.S. 1, 16, 44, 44 L Ed 347,

97a

353, 20 S Ct 251 (1899); Texas v. Louisiana, 426 US. 465, 48

L Ed 2d 775, 96 S Ct 2155 (1976); Commonwealth of Massa-

chusetts v. State of Missouri, 308 U.S. 1, 19-20, 84 L Ed 3, 60

S Ct 39 (1939); and Oklahoma v. Texas, 258 U.S. 574, 66 L

Ed 771, 42 S Ct 406 (1922).