The Supreme Court/The Supreme Court.iso/pc/ascii/misc/74_orig.d4

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Subject: No. 74, Orig.--DISSENT, GEORGIA v. SOUTH CAROLINA




    SUPREME COURT OF THE UNITED STATES


No. 74, Orig.



GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

[June 25, 1990]



    Justice Kennedy, with whom The Chief Justice joins, dissenting in
part.
    Georgia's fourth exception concerns the islands in the Savannah River
that came into existence after the States signed the Treaty of Beaufort in
1787.  Agreeing with the Special Master, the Court finds these islands in
South Carolina if they emerged on a portion of the river bed belonging to
South Carolina.  Georgia contends that all islands formed by natural
processes lie within its territory unless South Carolina has acquired them
through prescription.  I would sustain Georgia's fourth exception and I
therefore dissent from Part IV of the Court's opinion and that portion of
Part V concerning Oyster Bed Island.
    The Treaty of Beaufort, in pertinent part, provides:

" `The most northern branch or stream of the river Savannah from the sea or
mouth of such stream to the fork or confluence of the rivers now called
Tugoloo and Keowee, and from thence the most northern branch or stream of
the said river Tugoloo till it intersects the northern boundary line of
South Carolina . . . reserving all the islands in the said rivers Savannah
and Tugoloo to Georgia . . . shall forever hereafter form the sepa ration
limit and boundary between the States of South Carolina and Georgia.' "
Ante, at ----, n. 1. (Emphasis added.)


Georgia reasons that the clause reserving all islands to Georgia gives it
sovereignty over all islands regardless of when or where they emerged.
South Carolina maintains that the treaty placed the islands existing in
1787 in Georgia and then vested the rights of the two States with respect
to the river beds.  It contends that, under ordinary principles of property
law, it has jurisdiction over any island that arose from its portion of the
river bed after that time.  See St. Louis v. Rutz, 138 U. S. 226, 247
(1891).  I agree with Georgia.
    South Carolina's view would render superfluous the clause "reserving
all islands" to Georgia.  The clause cannot give Georgia only the islands
existing in 1787 because the treaty would give these islands to Georgia
even in the absence of the clause.  South Carolina lies to the north of
Georgia.  As a result, wherever the Savannah River contains islands, its
northernmost streams flow between the islands and the South Carolina shore.
All islands existing in 1787, therefore, lay on Georgia's side of the
dividing line and would belong to Georgia even if the treaty said nothing
about islands.  This is the principle of our decision in Georgia v. South
Carolina, 257 U. S. 516 (1922).  We ruled there that "the loca- tion of the
boundary line `where the most northern branch or stream' flows between an
island or islands and the South Carolina shore" is midway "between the
island bank on the one side and the South Carolina bank on the other."
Id., at 521-522.  Consistent with this earlier holding, by interpreting the
island reservation clause to address all islands regardless of when or
where they arose, Georgia's view gives effect to the language of the
treaty.
    Georgia's rule also seems in keeping with what I think that the parties
to such a treaty must have intended.  When two States define their boundary
according to a river, they may expect natural processes such as erosion and
accretion to alter their borders.  Louisiana v. Mississippi, 466 U. S. 96,
100 (1984); Arkansas v. Tennessee, 246 U. S. 158, 173 (1918).  South
Carolina takes the position that, although the boundary between the States
moves when accretion and erosion change the river banks, the boundary does
not change when these processes produce or alter an island within the
river.  Because the treaty defines the dividing line according to the most
northern stream of the river, I do not think that those who signed it
contemplated this uneven result.
    Georgia's position, in addition, comports better with our 1922
interpretation of the Treaty of Beaufort.  In ruling on the status of
islands in the Chattooga River (i. e., the most northerly branch of the
Tugaloo River), our decree states that all of the islands belong to
Georgia.  See Georgia v. South Carolina, 259 U. S. 572 (1922).  We saw no
need, at that time, to distinguish islands that arose after 1787 from any
other islands.  See ibid. (distinguishing only those islands "formed by
nature" from other islands).  Even though we did not need to pass on the
specific issue in this case in 1922, we should give some weight to the
language of our previous order to avoid upsetting settled expectations.
    The result advocated by Georgia seems quite reasonable.  It has the
benefit of simplicity because, so long as all islands belong to Georgia,
one may discern the boundaries between the two States without knowing when
the islands arose, how much they have eroded, or where the middle-point of
the river lay at the time of their emergence.  Although the rule will favor
Georgia in some instances, at other times it may work to the benefit of
South Carolina.  As Georgia explains in its brief:

"Either state stands to lose river bed as a result of nat ural changes in
the river; likewise, each state has the potential of acquiring additional
river bed as a result of accretion and erosion.  For example, if an island
existed in 1787 but was subsequently eliminated by gradual erosion, the
boundary would be moved to the advantage of South Carolina, and the river
bed previously owned by Georgia would then be owned by South Carolina."
Ga. Exceptions 56 (footnote omitted).


For these reasons, I would sustain Georgia's fourth exception.
    Several consequences follow from my view.  First, Oyster Bed Island
would lie within Georgia's territory and the boundary would run north of
the location adopted by the Court at this point in the river.  See First
Report of Spe- cial Master 88, n. 68 (noting that, if the treaty does place
all islands in Georgia, "then the boundary line would definitely be north
of Oyster Bed Island, and the Special Master is in error").  This
conclusion prevents me from joining Part V of the Court's opinion on this
question.
    Second, the small unnamed islands upstream and downstream from
Pennyworth Island would belong to Georgia.  My conclusion with respect to
these islands prevents me from joining Part IV of the Court's opinion.
    Third, my interpretation of the treaty also implies that the Barnwell
Islands which emerged after 1787 at one time belonged to Georgia.  I agree
with the Court, however, that Georgia lost these islands to South Carolina
by prescription.  I thus dissent in part.

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