How the States Got Their Shapes Too_ The People Behind the Borderlines - Mark Stein [152]
Adverse possession … riparian rights.… Out with the jokesters, in with the experts. The lawyers were about to have a field day—particularly since both water rights and boundary rights are areas with complex legal histories. In Georgia’s corner was Atlanta-based attorney Brad Carver, whose specialization included both land use and water use law. In a report Carver helped prepare for the Georgia legislature, he described numerous instances in which Georgia had, in fact, challenged the incorrectly surveyed state line.
As far back as 1887, Georgia had passed a resolution much like Shafer’s, seeking Tennessee’s cooperation in correcting the boundary location. Georgia went on record again in 1941, when its legislature created a committee to look into means of correcting the error. In 1947 Georgia acted yet again, this time authorizing its state attorney general to bring suit, if necessary, before the U.S. Supreme Court. That got Tennessee’s governor to meet with the boundary committee Georgia’s legislature had created, but ultimately the issue went nowhere. And in 1971 Georgia had passed a resolution calling upon the two states to create a boundary line commission. Again, no such commission was created.
But Tennessee had experts, too. While it was true that Georgia had disputed the boundary’s location as far back as 1887, it had known about the discrepancy since 1826. That was when surveyor James Cemak discovered it while locating the northern border of Alabama. Cemak was also the surveyor who had made the error, and he was also not surprised to discover it. He had known back in 1818 that the equipment provided by the state of Georgia was ill-suited to the task. Upon discovering the inadequacy of the equipment, Cemak had written to Georgia’s governor, asking him “to procure such an apparatus as would be necessary to enable me to perform my duties with the greatest possible accuracy.” But, as Cemak later recounted, “The shortness of the time would not admit of sending abroad for them.”4
Not only did Georgia instruct its surveyor to continue despite his concerns about accuracy, but after the inaccuracy was discovered by Cemak during his 1826 survey of Alabama’s border, Georgia did nothing for sixty years. Tennessee pointed out that these facts had previously been the basis of a conclusion by a University of Georgia professor that Georgia had thereby lost any rights to the land.5
Tennessee’s experts also cited an 1893 Supreme Court decision in a case where Virginia had challenged a faulty survey of its boundary with Tennessee nearly a century after the error was made. The court had rejected Virginia’s challenge. Likewise, in a boundary dispute between Georgia and South Carolina, the Supreme Court had stated that “long acquiescence in the practical location of an interstate boundary and possession therewith, often has been used as an aid in resolving boundary disputes.”6
Other than periodic resolutions passed by its legislature, Georgia had never filed suit, never sought to collect property taxes in the disputed region, and never offered residents of the region in-state college tuition or state-sponsored scholarships. It had, however, published official state highway maps and voting district maps, all bearing the governor’s signature, and all showing the disputed boundary in its current location.
One month after Shafer’s resolution was passed, Tennessee passed a resolution rejecting it. Anticipating this, Shafer’s resolution had authorized the Georgia attorney general to file suit before the U.S. Supreme Court in the event that the two states could not reach an agreement. Shafer believed Georgia could win.
But Georgia’s governor wasn’t so sure. “Authorize means to give the ability to do so,” his spokesperson said. “It doesn’t mean shall.”
To date, no suit has been initiated.
DISTRICT OF COLUMBIA
ELEANOR HOLMES NORTON
Taxation without Representation