Crossing The Line - Does The Georgia Plan To Redraw The Tennessee-Georgia Border Pass Legal Muster?

Reprinted with permission from theTennessee Bar

Journal, a publication of the Tennessee Bar Association,

May 2008.

Georgia and Tennessee are fighting a war of words. Recently,

the Georgia Legislature passed a resolution reciting that

"the northern border of the State of Georgia and the

southern border of the States of North Carolina and Tennessee

lies at the 35th parallel, north of the southernmost bank of

the Tennessee River."1 In so reciting, Georgia

declares that its northern border with Tennessee is incorrectly

drawn. The resolution goes on to create Georgia-North Carolina

and Georgia-Tennessee boundary-line commissions designed to

"meet with similar commissions of the States of North

Carolina and Tennessee to establish, survey and proclaim the

true boundary lines between Georgia and North Carolina and

between Georgia and Tennessee."2 Were the

Georgia-Tennessee state line moved to precisely follow the 35th

parallel, the line would be shifted northward to points over a

mile north of its present location.

The current controversy, which continues to receive detailed

scrutiny by regional news media and which has led to

considerable political posturing, ostensibly hinges on the

proper location of the Georgia-Tennessee border. But everyone

knows that the ultimate issue is water. To support its

burgeoning Atlanta metro population, particularly during a time

of drought, Georgia needs more water. The Tennessee River runs

tantalizingly close to the Georgia line, but it turns northward

just before sweeping through Georgia territory or does it?

Georgia seeks to move the state line to a point that would

bring the Tennessee River within its reach.

This controversy is not a new one. Georgia's resolution

has merely reopened a border disagreement between Tennessee and

Georgia that dates back at least to 1818. The dispute is also

an escalation of a water dispute that arose between the states

a decade ago when the Atlanta Regional Commission set its

sights on an inter-basin transfer of water from the Tennessee

River to Atlanta as a solution to Metro-Atlanta's growing

water needs.

The posturing and debates surrounding this controversy are

well publicized in regional media. Less well known, however,

are the legal principles pursuant to which the dispute would be

decided in court, were the dispute to come to that. Had this

conflict arisen in earlier times or between independent

nations, it is the kind of conflict that "might lead to

war."3 Today, the war of words could well lead

to litigation. The purpose of this article is to explain the

legal principles that would likely control the outcome of such

a lawsuit.

Creation And History Of The Georgia-Tennessee Border: Is It

Or Isn't It The 35th Parallel?

Georgia was admitted to the Union in 1788, and Congress

fixed the 35th parallel as its northern border.4 As

the result of various royal charters and grants, the

southwestern border of North Carolina (presently dividing that

state from Georgia and South Carolina) was recognized as

following the 35th parallel westward to the Mississippi

River.5 In 1790, North Carolina ceded its western

lands to the United States in exchange for the forgiveness of

certain debts.6 The former North Carolina lands,

bounded on the south by the 35th parallel, became the State of

Tennessee on June 1, 1796.7 Congress thus created

Tennessee and specified the 35th parallel as its southern

boundary.

In 1818, Georgia commissioned James Carmack and Tennessee

appointed James S. Gaines to locate the 35th parallel and to

fix the boundary between the two states.8 The

surveying parties met at the town of Nickajack on the Tennessee

River in present-day Marion County, which was believed to be on

the boundary line between Georgia and Alabama.9 The

surveyors decided that the 35th parallel lay "one mile and

twenty-eight poles from the south bank of the

Tennessee."10 The surveying party marked the

line of latitude with a large stone, on which was inscribed

"Geo. lat. 35 north. J. Carmack,"11 thus

setting the present state line.12 We now know this

survey to be inaccurate, and reasons for the incorrect survey

abound in southeast Tennessee lore, ranging from bad weather to

fear of Indian attack.

Legally, Tennessee recognizes its southern boundary as the

35th parallel as found by Carmack and Gaines. The Tennessee

Code states, "The boundary line between this state and the

state of Georgia begins at a point of the true parallel of the

thirty-fifth degree, as found by James Carmack, mathematician

on the part of the state of Georgia, and James S. Gaines,

mathematician on the part of this state."13

Georgia, however, argues that it has never accepted the

Carmack- Gaines state line, and the Georgia Code still places

the state's northern border at the actual 35th

parallel.

The boundary between Georgia and North Carolina and Georgia

and Tennessee shall be the line described as the thirty-fifth

parallel of North latitude, from the point of its

intersection by the River Chattanooga, west to the place

called Nickajack.14

Tennessee and Georgia thus disagree over the legal effect of

the Carmack and Gaines boundary line.

Disputes over the propriety of the border have arisen over

the years. Georgia made efforts in the 1890s, 1905, 1915, 1922,

1941, 1947 and 1971 to "resolve" the dispute, but

each time Tennessee did little or nothing to achieve any

change.15 Georgia even formed a borderline committee

in 1947 and authorized the committee to look into the matter

and the Attorney General of Georgia to bring suit to the

Supreme Court if the committee could not resolve the

dispute.16 Yet the border remained the same.

Georgia's View That The Border Is Misdrawn And Why That

Matters

Georgia's argument is simple and is well outlined in its

resolution. In 1788, Congress fixed the 35th parallel as

Georgia's northern border, and when Congress created

Tennessee in 1796, it specified the 35th parallel as

Tennessee's southern boundary. After Carmack and Gaines

completed their surveying work, Tennessee passed legislation

setting its southern boundary with Georgia as the 35th parallel

as found by Carmack and Gaines. Georgia, on the other hand, has

never officially accepted the Carmack-Gaines line. Without a

doubt, Georgia will be able to prove that the 35th parallel

sits approximately 1.1 miles north of the Carmack-Gaines state

line along the entire Tennessee- Georgia border.

The question now is whether Georgia could, at this late

date, force the border to be moved. The stakes are ostensibly

land but, more fundamentally, are access to Tennessee's

water. According to Georgia, its northern border with

Tennessee, correctly placed along the 35th parallel, would

leave a portion of Nickajack Lake, presently sitting entirely

within Tennessee, in northwest Georgia. In Georgia's view,

capturing a portion of the Tennessee River should entitle

Atlanta to at least a portion of the river's water. The

seriousness of this view, and of Georgia's intent regarding

moving the border, is reflected by a position paper titled

" Tapping the Tennessee River at Georgia's Northwest

Corner: A Solution to North Georgia's Water Supply

Crises," dated February 2008. This memorandum presupposes

that, legally speaking, Georgia's true northern border is

the actual 35th parallel, as opposed to the current placement

of the line. The 35th parallel runs through the Tennessee River

at Nickajack.17 Water issues are thus bound up with

the state line issue, even though resolution of the state line

issue would not necessarily resolve all water

issues.18

Prescription And Acquiescence: The Law Governing The Border

Dispute

Article III, Section 12 of the Constitution extends the

judicial power to controversies between two or more states and

to controversies between a state and citizens of another state.

It specifies that the Supreme Court has original jurisdiction

over cases in which a state shall be a party.19

Were the current border dispute to escalate from a war of

words to legal action, Georgia would begin by filing a motion

with the United States Supreme Court for leave to file a

complaint against Tennessee to resolve the boundary

dispute.20 Although the Supreme Court could conduct

a full evidentiary trial, the court would more likely appoint a

special master to hear evidence and to make a report to the

court containing recommendations.21 The court would

then likely receive briefs and permit oral argument in

opposition to and in favor of the recommendations. Ultimately,

the court would accept, reject or modify, in whole or in part,

the special master's recommendations.22 In

Georgia v. South Carolina, a border dispute that

involved the location of the state line in the Savannah River,

the process from original petition to final decision by the

Supreme Court took 13 years.23 That dispute merely

affected uninhabited islands in the Savannah River.

Boundary disputes between...