Earl Warren: Number 17 Original, State of Nebraska, Plaintiff, versus State of Iowa. Mr. Moldenhauer.
Howard H. Moldenhauer: Mr. Chief Justice, may it please the Court. The question to be argued today in this matter is whether this Court is to take jurisdiction of an original action by the State of Nebraska against the State of Iowa to construe and enforce the Iowa and Nebraska boundary compact of 1943. The -- a motion for leave to file a bill of complaint has been filed with this Court to which was attached to the complaint.Iowa has indicated opposition to this motion on briefs on file. In 1892, this Court decided that the Missouri River Boundary between Iowa and Nebraska was the middle of the main channel of the Missouri River. And that in spite of the rapidity of the changes of the Missouri River caused by the velocity of the current that the normal principles of the law of accretion and avulsion applied to the Missouri and that this boundary move where the changes of the channel were gradual or imperceptible by the process known as accretion or reliction but that where the river suddenly abandoned its bank and sought a new bed by the process known as avulsion, the boundary did not move but remained in the abandoned channel. During the years that followed that decision of this Court, there were many changes, natural changes in the Missouri River and the flooding was very great. So in the 1930s, the United States Army Corps of Engineers embarked upon a program with channel stabilization. And they commenced to divert the river into a new and stabilized channel which has been referred to as a design channel. They did this by the construction of dikes and revetments and by dredging operations. Well, as a result of all these natural changes, as a result of the action by the Corps of Engineers much land which had been in the State of Nebraska found itself placed on the easterly or Iowa side of the river, much land which had been in the State of Iowa found itself placed on the westerly or the Nebraska side of the Missouri River and there was a great deal of uncertainty and friction which resulted as to where this land was. So because of this uncertainty and this friction, the states in the early 1940s entered into the negotiations. And in 1943, both states entered into the Iowa-Nebraska Boundary Compact which was duly ratified by the Congress of the United States. And this compact did several things. After accepting an area known as Carter Lake, Iowa by metes and bounds description which was left in Nebraska by avulsion in 1877, the Compact set the new line between Iowa and Nebraska and defined it as the center line of the proposed stabilized channel of the Missouri River as established by maps on file with the U.S. Army Corps of Engineers in which maps were then subsequently filed with the Secretary's of the State of the two states. And the Compact went on and it provided that Iowa ceded and relinquish jurisdiction of all lands now in Iowa but lying westerly of said boundary line to Nebraska and Nebraska ceded jurisdiction over all lands on the other side of the river to the State of Iowa. At that time, when they determined this new line, the states didn't take any action to specifically identify the land. In fact, we've been informed that it was too expensive of a job at that time and they didn't want to make all these difficult determinations which couldn't be made without litigation and without a great deal of expenditure funds. They also didn't provide any procedure for describing land which had been placed -- which had been in one state and was thereby ceded to the other by the different metes and bounds descriptions of the different regions or range lines which were applicable to land in that other state. The Compact didn't stop there with just setting a line. It continued and this is cited at pages 26 and 30 of our complaint, to provide the titles, mortgages, and other liens good in Nebraska, shall be good in Iowa as to any lands which Nebraska may cede to Iowa in any pending suits or actions which concerns said lands maybe prosecuted to final judgment in Nebraska and such judgment shall be accorded full force in fact in Iowa. The Compact went one step further and provided for the collection of taxes on lands which had been ceded to the other state by the original ceding state for the year of the Compact. And then it went on and provided a five-year limitation and stated that all liens or other rights accrued or accruing as aforesaid in this tax provision shall be claimed or asserted within five years or be forever barred. In fact as it turned out the channel wasn't stabilized and everyone thought it was at that time, the Corps of Engineers changed its plans. The channel or river broke through in many places. Some of the maps were destroyed. But for many years, it appeared that this Compact had solved the boundary problems between Iowa and Nebraska. And Nebraska citizens continued in their peaceful possession of this land, they improved it, they cleared it. And because of the stabilization of the river, the land which was really rich bottom land became highly productive farmland. This period of peace and tranquility which lasted until the early 60s was suddenly broken by announcement by the State Conservation Commission of the State of Iowa that the state was planning to attempt to acquire a great deal of land -- title to potential recreational sites along the Missouri River. On January 1 of 1961, the Conservation Commission published a document known as Part 1 of the Missouri River Planning Report. And this listed approximately 25 areas which contained -- or 15,000 acres of land somewhere on the Iowa side of the river as it presently exist somewhere on the Nebraska side. And the com -- the planning report indicated that there maybe some more changes because we're not quite sure in some areas what the Corps of Engineers is going to do and their action may affect whether or not we think we can acquire some more land. The theory which Iowa seem to be following was the Iowa Rule of Law, of common law at least, that the state owns title to the beds of navigable streams. And this had been followed by the Iowa Supreme Court for many years. This differs from the Nebraska Law and that in Nebraska the beds of navigable streams belong to the riparian owners but subject to the easement of public navigation in the streams. The State of Iowa then proceeded to implement this program by filing some lawsuits against some of these landowners which had owned Nebraska land and had been Nebraska residents. And this caused a great deal of concern to the State of Nebraska because Nebraska felt that it had by the Compact placed these lands within the jurisdiction of Iowa by entering into a new boundary line. But in doing so, it didn't do this unequivocally, it extracted certain guarantees from the State of Iowa, guarantees which were essential to the existence of this Compact.
Earl Warren: Mr. Moldenhauer, may I ask you? Has the line been definitely fixed now?
Howard H. Moldenhauer: Your Honor, the line was defined in the Compact as the middle of --
Earl Warren: Yes.
Howard H. Moldenhauer: -- the main channel as it existed on these maps.
Earl Warren: Yes.
Howard H. Moldenhauer: I think it's our position that this created an artificial line but it is a little difficult to tell in many places where this line is because the maps which were on file and referred to had a scale of one inch equals to 2640 feet. The Corps of Engineers at that same time had many maps which were the same as the alluvial plain maps but with a much larger scale, an inch equals 400 feet. We've been informed since that time that many of these one inch equals 400 foot maps have been destroyed. And these were maps which surveyors used as a practical matter because we've been informed that in many places where these maps were destroyed is impossible under the original maps that laid the boundary out on the ground as it exist. So we have a description of a boundary. Now then there were many river changes since that time. The river broke out of its bank and again, there's never been any definitive decision which would define in those places where this boundary is at the present time.
Earl Warren: Well, may I ask, is there a dispute between Nebraska and Iowa as to which state this particular piece of property is in?
Howard H. Moldenhauer: There is not Your Honor except as to 50 feet. We have mentioned in our petition two particular situations in our complaint, two particular situations where Iowa is claiming land. In the one case, it's clear that the land is in -- presently in the jurisdiction of Iowa if the Compact is a valid compact. We're not questioning the validity of it.
Earl Warren: Yes.
Howard H. Moldenhauer: In the other case, the land is with the exception of the westerly 50 feet. And our state surveyors has examined this very carefully and has informed us that the westerly 50 feet of this land which Iowa is -- has described in its petition in its state court is in Nebraska at the present time and is westerly of the center of the stabilized channel as it was defined by the boundary compact. So there maybe a real question between the states as to what the Compact meant or where the line is as a practical matter within the language of the Compact.
Earl Warren: As to that 50 feet?
Howard H. Moldenhauer: As to that 50 feet particularly and we think that the fact that they have taken that position is indicative of -- of course, Iowa's entire approach to the Compact because we'll go into our contentions as to Iowa's unilateral approach towards this -- towards the interpretation of this Compact. There's only that 50 feet right now that Iowa has claimed that we're aware of which we feel is in Nebraska.
Speaker: (Inaudible) inside that 50 feet.
Howard H. Moldenhauer: Yes sir.
Speaker: (Inaudible)
Howard H. Moldenhauer: This is our contention Your Honor, yes. And you see --
Speaker: (Inaudible)
Howard H. Moldenhauer: Your Honor, it is our contention that when we entered into this Compact, we didn't unequivocally cede the land to the State of Iowa or place it in Iowa's jurisdiction. We only did so subject to some safeguards which were placed in the Compact. And our theory really is that this Compact is a contract between the states. And as such it's binding on the states not just their judiciary but it's binding on the states themselves. And that the State of Iowa by instituting these quiet actions is not recognizing these titles to this land which is ceded. They're making a unilateral determination of what the meaning of the Compact is. And we don't think that when two states enter in an agreement such as a compact, we think that one state should be able to enforce the terms of that compact, whatever they are. This matter seemed to be of great interest to the states or they wouldn't have put in provisions which were designed to settle the controversy at least as between the states and landowners along the river and design to settle the boundary.
Speaker: But Iowa says that they agreed (Inaudible).
Howard H. Moldenhauer: Your Honor, they say this is true but our answer is and our contention is that these provisions to safeguard titles were put there for a purpose. And that Iowa by taking that position is saying you have to try your title in our courts with us, the state as a party. And we think that because of the result of that situation and the unfairness which seems to result from that situation that we should be able to have the determination here. For instance, to illustrate the unfairness which may result. First in 1943, the states refused to define where the boundary was. The states wouldn't take it upon themselves to decide these things. It doesn't seem fair that now, 20 years later, a landowner has to come in himself and make that very difficult factual determination of where the boundary is. It's a burden cast upon an individual farmer which we don't think it's fair to cast upon him. Now, if we have decided where the boundary was, that would have been another matter.
Speaker: (Inaudible) to protect citizens and their property rights.
Howard H. Moldenhauer: But this is different Your Honor because these citizens are placed in this predicament clearly because of the Boundary Compact. If it hadn't been for the Boundary Compact, we'd have an entirely different situation. But we have an area where there was a clear question as to jurisdiction of the courts. And we might have a situation resulting as such as this Court considered in Durfee versus Duke a year ago last December where a District Court in one case said the land is here and the Court in another state said we find the land is located here. In that sort of situation, if Iowa brought a quiet title action and the individual landowner didn't appear at all and ignored it, he could go to Nebraska and bring his quiet title action and Iowa is claiming and the Nebraska individuals claiming that he get his share if Iowa comes in and who knows what happens. But at least, he might not have been deprived of his rights by that Iowa quiet title action in that Iowa Court.
Earl Warren: Well, is this essentially a boundary dispute between Iowa and Nebraska?
Howard H. Moldenhauer: Your Honor, I would say it is more a suit to determine the meaning and to enforce the Compact with regard to boundary. This is really the crux of it. We've got many other incidental problems along the boundary because there's much land which is in question now. It would be hoped that someday the states could settle this problem by compact but this is important to Nebraska because if Nebraska can't guarantee that the rights of its citizens will be protected once a compact is entered into it. And if Nebraska can enter into provisions which can be enforced by Nebraska, I doubt that the state would ever be interested in entering into a compact.
Earl Warren: Well, I understood you to say that there was sort of a nebulous zone all along the river --
Howard H. Moldenhauer: Well, I --
Earl Warren: -- the river now that -- and would naturally involve a great number of property rights. Would that mean that every time an owner has a problem of that kind that the states would come in on (Voice Overlap)?
Howard H. Moldenhauer: No Your Honor. This is more intended to show the background and the history behind the Compact because we think --
Earl Warren: What?
Howard H. Moldenhauer: -- that this is important in determining what the Compact meant at the time that it was entered into.
Earl Warren: Well, isn't this just a factual situation here that could be determined by another court between the parties?
Howard H. Moldenhauer: Not between the states Your Honor. The only thing that can happen is Nebraska I supposed -- these states were pending when this was brought to Nebraska's attention in the Iowa Court.
Earl Warren: I understood you that the State of Nebraska doesn't claim any sovereignty over this land. It doesn't claim the right to tax as to (Voice Overlap) --
Howard H. Moldenhauer: That's correct Your Honor.
Earl Warren: -- doesn't claim any -- anything as protecting the rights of this individual landowner that you think should not be subjected to an action of this kind but that the state ought to defend it --
Howard H. Moldenhauer: Well, but you see Your Honor, these people were placed in this position by the Compact. And we contend that we put them there. We put them there by our agreement with Iowa. And we think that when Iowa entered into a compact with us, that they thereby accepted and relinquished jurisdiction over much of this land which had been taxed in Nebraska, which had quiet title actions in Nebraska, which was occupied by Nebraska residents all during this period of time. What happens as a practical matter is that the Iowa Court say, “You are here, we apply Iowa Law. The Compact has no bearing. It's strictly a matter of where the land formed”. Now if this is so, we think that it takes a determination by this Court with the states before it that this is the meaning of the Compact because we are automatically -- if the Court refuses jurisdiction, we are bound by Iowa's construction that they're entitled to go ahead with this program.
Earl Warren: Well, how would our resolution of this case resolve all your other rights along the river?
Howard H. Moldenhauer: We feel Your Honor that this Court could determine and if it would consider the two factual situations which we have alleged, that a determination of those factual situations would also determine the meaning and the intent of the Compact and that this would be a broad enough decision that hopefully it would either discourage Iowa from proceeding with other actions or would given up guidelines that we could be able to determine ourselves in what situations they could proceed and what they couldn't.
Earl Warren: Advisory opinion?
Howard H. Moldenhauer: Well, no because we've got factual situation you see. It's in -- it's the same as any case when you have one factual situation perhaps the doctrine of law which is stated there might be applicable to many other areas. What this Court did in 1892 and we're not asking the Court to do it again but originally, they gave a decision as to the normal principles of law which applied to Missouri. Then the parties got together with the Court's suggestion and entered into a decree whereby they set their boundary but the Court first said these are the principles of law which apply. We don't have -- I don't -- we don't ask the Court for an advisory opinion because we don't feel we have that right. But we do ask for a construction of the meaning and intent of this Compact as between the states. We want to know what Iowa agreed to do as to us. We think we're entitled to know that. And if they don't live up to their agreement with us, we think we're entitled to enforce it just as in any contract where someone insists upon the insertion of a provision. The other party breaches it. We think there's something to be determined here and of course, all we're asking is our -- the right to have these facts heard. We think we're right. We think they are breaching the Compact and we have alleged distinct violations of the Compact.
Byron R. White: Well, even if there was no doubt at all as to the meaning of the Compact, I would assume you would say you had a right to come in to this Court just for enforcement.
Howard H. Moldenhauer: That's right Your Honor.
Byron R. White: And that --
Howard H. Moldenhauer: We don't know where else to go.
Byron R. White: And what is your interest in this -- assuming there's no doubt at all about the meaning of the Compact, just assume that. Now all your allegation is Iowa is breaching its promise which it made to the State of Nebraska. What is Nebraska's interest?
Howard H. Moldenhauer: Our answer is Your Honor that we had an interest to enter into the Compact in the first place. We --
Byron R. White: But no more interest in the land that's located in Iowa?
Howard H. Moldenhauer: But we didn't say that because we said, we are only ceding this to you on these conditions. It didn't -- and Iowa itself in its adoption or enactment of the Compact provisions insisted that the Nebraska Law contain these identical provisions for the protection of the landowners. So that creates our interest. We --
William J. Brennan, Jr.: Well, what if I had to build (Inaudible)?
Howard H. Moldenhauer: Pardon Your Honor?
William J. Brennan, Jr.: If in fact it's been a breach by Iowa of this promise, is that enough to give you an interest to ask us (Voice Overlap) --
Howard H. Moldenhauer: We feel it is Your Honor. We feel --
William J. Brennan, Jr.: Well, why go to the rest of it. You don't need it, do you?
Howard H. Moldenhauer: I'd like to sit down right now if I'm not sure with the answer.
William J. Brennan, Jr.: Maybe you should.
Howard H. Moldenhauer: I -- no. I -- we don't' want to mislead the Court as to what's the factual situation is. We don't want you to think we're trying to lay taxes on land which is in Iowa or anything like that. We feel that that creates a status because in entering into the Compact, we -- the only thing we could do; we did it pursuant to constitutional requirements. We can't, not that we engage in war anyway, we can't. We've given up that right --
William J. Brennan, Jr.: Well, what has really moved Nebraska to come in to -- into this Court when these very same issues are going to be litigated in the -- or litigatable in the Iowa Courts between the individual property owners and the State of Iowa?
Howard H. Moldenhauer: The agitation was so great Your Honor and the uncertainty all up and down the entire boundary --
William J. Brennan, Jr.: These people who were agitating are citizens of Iowa now, aren't they?
Howard H. Moldenhauer: No, oh, no. There are Nebraska citizens.
William J. Brennan, Jr.: Who own land over in Iowa?
Howard H. Moldenhauer: Who owned land in Iowa because of the Compact. Now, as one fellow says, I was in Nebraska and I went to war and I came back and all my lands are in Iowa. I don't know how it happened. And these people in the cases we've considered there are some Nebraskans and certainly there are some Iowans too but there are many Nebraskans who have land on that side of the river now. They go across the river and they farm it. We have -- we think stated in the complaint the facts concerning a lot of this land and some of this land had been on the tax rule since 1895.
William J. Brennan, Jr.: They're thinking -- these people think that you want to do their litigating?
Howard H. Moldenhauer: No. No, but you see Your Honor, for an individual landowner they have to go up against the state and determine this matter.
William J. Brennan, Jr.: So, this whether (Voice Overlap) --
Howard H. Moldenhauer: It breaks him.
William J. Brennan, Jr.: -- rather attempt with the --
Howard H. Moldenhauer: He cannot afford to. These people have all of their money tied up in their land. They're not big corporations. They've got everything there. They have to put in the fertilizer and the machinery and that sort of thing. And here, Iowa is saying, “Look little guy, you got to make a determination. The state itself was unwilling to do 43 or 20 years ago".
William J. Brennan, Jr.: This is going to be a substantial undertaking I suppose --
Howard H. Moldenhauer: Yes.
William J. Brennan, Jr.: -- to determine there's a lot of history, a lot of facts that have been -- that has to be found out as to where this line is.
Howard H. Moldenhauer: That's correct Your Honor and we have asked for a special master in these two cases should the Court take jurisdiction. We think it can be done. And we think -- we spent very frankly a year and a half approximately studying these two situations.
William J. Brennan, Jr.: What do you suppose it might cause a private litigatant if you were litigating with the State of Iowa to private lawsuit?
Howard H. Moldenhauer: Well, I know that more than -- not by a private litigant but at least by the State of Nebraska, more than $25,000 have been spent already. And we just got into this stage and that was an investigation. I know in one situation where a lawyer required half of the private litigant's farm which was of the substantial area to try this kind of case and it took him five or six years. And he was -- it was an absurd matter but he was entitled to it for our services but it meant that the farmer who got a decree that he own this farm anyway lost and ended up with half of his farm. And we think this is grossly unjust. We don't think the landowner can win in this situation.
Speaker: (Inaudible)
Howard H. Moldenhauer: I think there is a real question Your Honor as to the expenditure of funds for that purpose.I don't know your answer but I've heard people suggest that.
Speaker: (Inaudible)
Howard H. Moldenhauer: That --
Speaker: (Inaudible)
Howard H. Moldenhauer: That would of course incidentally in -- would incidentally affect the rights of these people and would benefit them. It -- it's incidental because really these funds -- the funds are expanded for the purpose of enforcing the Compact. The fact that they would be benefited of course is nice because it relieves them of a real burden. But our legislature and we attached a copy as an exhibit of the legislative resolution at page 99 of our complaint indicated that the state was deeply concerned on behalf of its citizens in this matter.
Byron R. White: But can't -- you're going -- may settle your argument with Iowa to sue to sustain here and you win but the results here aren't going to bind these private litigants.
Howard H. Moldenhauer: No Your Honor. We understand that. But this --
Byron R. White: So they could just -- if they -- if some of them didn't like the answer they got here, I suppose they could start all over again.
Howard H. Moldenhauer: There maybe incidental issues between the states but certainly this Court could determine where the boundary was in 1943 at the time of the Compact. If we didn't have a Boundary Compact, the Court would -- could find out where the boundary is there now.
William J. Brennan, Jr.: But that wouldn't bind the private litigants?
Howard H. Moldenhauer: Well, the finding of the boundary and line I think would Your Honor.
William J. Brennan, Jr.: Why?
Howard H. Moldenhauer: Because I think it's only between in this Court and an action between two states or by Compact where you can determine a boundary line as between two states. Certainly, the Court always tries titles where individuals have to -- themselves show where the property is.
Speaker: (Inaudible)
Howard H. Moldenhauer: Your Honor, only because we placed that land in Iowa by the Compact. You see, we place that they're subject to conditions. We didn't just say this is a new line. We insisted that this is only the line if you respect the titles, liens, and mortgages which would be in Nebraska. And --
Speaker: (Inaudible)
Howard H. Moldenhauer: I think there is a good possibility that's so. It seems to me that I've seen in all the reading that there is a question in some circum --
Speaker: (Inaudible)
Howard H. Moldenhauer: Well, we want to -- of course to recognize these principles --
Speaker: (Inaudible)
Howard H. Moldenhauer: Well, Your Honor, we have but you see, it isn't we think when a state enters into a compact. It isn't just saying our courts will agree to this. We think that Compact is a document which is binding on the entire state and all its citizens.
Speaker: (Inaudible)
Howard H. Moldenhauer: But the state itself is questioning those since we think that a breach occurs in this situation in the questioning of these titles by the state because the result is no matter what the outcome, the individual landowners have been deprived of his land. This is a good reason why the states might insist on this kind of provision in the first place because when they talk about selling boundaries, what comes up is, how do we protect Joe Dukes (ph) who has got land down here on the river. Well, we'll put it in a clause of -- to protect it. And since Iowa solemnly agreed to this, we would assume that all of the Iowa branches would live up to this commitment including their Attorney General's office and their Conservation Commission because we think they're bound by this. They didn't say, “Our courts will respect your titles.” Iowa said, “We, Iowa will respect your titles in effect.” And Iowa itself is here as a party. We at least Your Honor, we think we're entitled to a determination whether that conduct is a breach of the Compact. We want to know what we've agreed to. We have got boundary questions right now with Missouri. We've got other boundary questions with Iowa. There has been a talk about the Compact. We wonder how we can enter into a Compact if we're merely creating a situation whereby some individual is going to have his title attacked. And so we think that the purpose of the Compact requirement in the constitution would be defeated if a state can't enforce a compact which is entered into. This is really the crux of our argument. These rights arise out of contract. They're not independent situations which existed. And of course the alternative is that what we decide we couldn't intervene in the Iowa suits. We're faced with that situation and cases were pending. We didn't think it's proper to subject to the state to the jurisdiction of the Iowa courts as to the meaning of the Compact. This Court has often held that compact shouldn't be subject to the unilateral construction by one court. And Iowa was construing it their way. We don't have anything to say about it. We don't have any -- the Iowa Attorney General's office has taken the position and the State of Iowa consequently in these cases that the law of Nebraska is irrelevant immaterial. It doesn't have any bearing at all. And we don't see how you can have any decision as to the river itself without having -- without taking into account what the Compact does, because Iowa's argument leads to one other sort of absurd result. Well first, there's one another unfairness I'd like to mention. And that is that Iowa has waited 20 years before they've done anything about the situation. And we think of course that it -- that this constitutes a course of conduct which is consistent with Nebraska's contentions. Witnesses have died during this period. Lands have been cleared. Landmarks have been destroyed. Trees have been removed which might indicate when this land was formed. And this Court in previous cases considering boundary has recognized that the operation of time can operate to a tremendous prejudice to the individuals. And here again, the only person who is prejudice is the landowner because the state is sitting there saying, “We are a sovereign”. They're saying that you can't apply adverse possession against us. We're not subject to the normal doctrines of latches or estoppel. And therefore, the state can wait 20 years until everybody dies and bring their suit. We think that situation isn't just.
Speaker: (Inaudible)
Howard H. Moldenhauer: Certainly --
Speaker: (Inaudible)
Howard H. Moldenhauer: I know there was one case which we cited, the Massachusetts against -- or Rhode Island against Massachusetts where the Court said that we find one issue which we should hear, we would take jurisdiction. But I'm not sure Your Honor that --
Speaker: (Inaudible)
Howard H. Moldenhauer: I don't think that that 50 feet is crucial --
Speaker: (Inaudible)
Howard H. Moldenhauer: No. That's put in, in part to show that Iowa -- it's another indication of Iowa's unilateral construction of this compact and their complete disregard for what we contend the Compact says. It's another example of conduct by them which in effect says, “We don't care what Nebraska thinks. We're going to go on our own way, under our own law, and with our own principles.”
Byron R. White: Mr. Moldenhauer, let's assume for the moment that there's -- that it doesn't make any difference in this case where the boundary line is. In short, assume that -- well, there is one piece of this ground I take it that you admit is in Iowa.
Howard H. Moldenhauer: Yes sir Your Honor because of the Compact --
Byron R. White: You admit that it's in Iowa and all that you say is that Iowa is living up to its obligations under the Compact with regard to that piece of ground. Now, Iowa says that it is. Iowa says the only dispute is whether this person who's private owner really is -- owns that land or -- and has the right which were protected under the Compact. And this may well turn on for example on whether or not this island or these lands involved (Inaudible) before or after the Compact.
Howard H. Moldenhauer: Yes sir.
Byron R. White: Because if it accreted before, it was -- it's probably older than the Nebraska law and repeated after the state owned it under Iowa law. Now, assume that's the only issue there is in the whole case, just as to whether or not this private landowner did have some rights or does have some rights which the Compact protected. And that depends on wholly factual matters of determining when and under what circumstances (Inaudible) in the river came in to being. Now would you say that that is a matter for an original case in this Court? It is that you are alleging a breach of Compact.
Howard H. Moldenhauer: Yes sir.
Byron R. White: But you say, "Iowa, you're breaching that con -- that Compact because this piece of land belongs to a resident of Nebraska whose rights are protected by the Compact". And so you would be alleging a breach of compact by Iowa. But is it that the kind of a case that you think ought to be up here on a (Voice Overlap) --
Howard H. Moldenhauer: Well, Your Honor, we think it goes beyond that because --
Byron R. White: Well, just answer that question.
Howard H. Moldenhauer: I think the principle behind the court's taking jurisdiction because of the -- or allegation of breach of compact and Iowa's denial of that allegation is sufficient.
Byron R. White: Even though it turns wholly on the factual matter --
Howard H. Moldenhauer: Even though it turns on these factual matters --
Byron R. White: No matter what destruction involved?
Howard H. Moldenhauer: The (Inaudible) -- well of course, we have claimed there are.
Byron R. White: Well, I understand that.
Howard H. Moldenhauer: Yes sir.
Byron R. White: I understand that.
Howard H. Moldenhauer: I think so Your Honor because we have no place else to go to obtain (Voice Overlap) --
Byron R. White: But Iowa is certainly isn't -- doesn't admit that they're breaching the Compact.
Howard H. Moldenhauer: No and Iowa's mere statement that they're not --
Byron R. White: And part of their answer to you is just what I've (Voice Overlap) --
Howard H. Moldenhauer: That's right. They're saying we're not, therefore, we can go and do what we please but by saying they're not they have created the controversy because they're denying it.
Byron R. White: Oh yes.
Speaker: Mr. Moldenhauer, following Justice White's question, suppose this. Suppose that the land was ceded to Iowa under the Compact, your Compact of Section 3 says, "Title shall be good in Iowa as to any land from Nebraska (Inaudible) to Iowa". Suppose following the cession, Iowa does something with that land. Let's say it takes it for a public purpose just as it would take for the Iowa land of its citizens. Would it be your theory that you could come in to this Court and say that because the titles says that the title shall be good in Iowa as to any lands of Nebraska they cede to Iowa that makes out a case of violation of the Compact?
Howard H. Moldenhauer: In light of the history behind it and the meaning and in front of the Compact at the time, we think so Your Honor.
Earl Warren: Do you mean that this land which is now in Iowa under the Compact is forever immune from treatment by Iowa in the same nondiscriminatory way that it treats Iowa land of its own citizens?
Howard H. Moldenhauer: Your Honor --
Earl Warren: Is that what your version of the Compact is?
Howard H. Moldenhauer: No. They certainly have their own private rights which they can claim in any suit. We don't know that they're discriminating or not discriminating against Nebraska citizens. All we know is that somehow, they made a decision as to which land they were going to go after.
Earl Warren: What is the violation under the Compact that you assert?
Howard H. Moldenhauer: Well, our contention is that it was -- that the facts would show and that the purpose of the Compact was to settle controversy and settle the boundary along the Missouri as between the states and the individuals. And that in light of that purpose and in light of that history, it should be settled as to these individual titles which were on the tax roles in the State of Nebraska, its title Compact which were occupied by individual citizens of the State of Nebraska in which -- and which Nebraska had exercised jurisdiction over the land.
Earl Warren: But isn't this -- doesn't this relate to some avulsion with respect to that land?
Howard H. Moldenhauer: Your Honor, there is a great deal of question about avulsion here because the Corps of Engineers when it -- not only natural avulsion but the conduct of the Corps of Engineers want to stabilize the channel because the Corps designed the channel and then it moved this river in various ways. There were many areas where there were islands, channels on both sides, the Corps cut off one side and shove the river clear over. In one of these factual situations, we have evidence that the Corps of Engineers dug a ditch completely in Nebraska for about 6000 feet. Now in 1892, the decision of this Court was the normal rules of avulsion and accretion apply. But we wonder whether these presumptions that follow and some of these rules are still applicable in light of the fact the Corps completely redesigned the channel and moved it around like it did.
Earl Warren: But is it your theory here that Iowa is treating this land that belongs to Nebraska citizens any differently from the way it's treating land of a similar type which is owned by Iowa citizens.
Howard H. Moldenhauer: That is not the basis for it, it maybe a fact. We don't say it is or isn't because we don't know how they make their determination. And --
Earl Warren: Would that be very important because does -- do you read this compact to give to this land anymore status than Iowa land would be given? In other words, when the Compact says, “Title shall be good in Iowa”, does it mean super seniority title, is that the way you're interpreting the Compact?
Howard H. Moldenhauer: No. No, we don't mean that it gives them any greater rights and it -- or that gives the Nebraska land any greater rights necessarily unless this language is construed that it means that Iowa by entering into this Compact thereby adopted the Nebraska theory as to the Missouri River concerning states easements in the bed -- in the river itself as opposed to state ownership of the bed. Iowa, we think may well have -- when you look -- and this Compact could be construed to indicate that Iowa thereby gave up its claim of title in the bed as against these people.
Speaker: Is there anything in the Compact that says that?
Howard H. Moldenhauer: We think that the Compact -- no, it doesn't in so many words Your Honor but we don't think you can read the Compact by just looking at the language. We think that the conduct and the reasoning that what really promulgated the Compact, the circumstance had formed the conduct after are important in finding out what this Compact means.
Speaker: I would say, I have the Compact and your complaint and all it seems to say to me unless there is some long history to the contrary is that there'll be a good title. The titles of that land will be recognized and it will be treated like Iowa land but the title will be confirmed. Is it a theory that Nebraska law shall -- should probably apply to that land in terms of succession, inheritance, etcetera?
Howard H. Moldenhauer: No Your Honor, but it is our theory that they agreed they would respect and maintain that title.
Speaker: Would give it or would it -- in my -- and you just say I'm wrong if I am in a -- I'm trying to construe the Compact. Would it mean really that what this Compact says is that you recognize the title then you give it the same treatment that you give to any recognized title, the land in your state? Would that be a fair construction with the Compact?
Howard H. Moldenhauer: Well Your Honor, it depends. I don't think it necessarily would because when a state enters into a Compact, it is more than just entering -- passing for instance reciprocal legislation. It isn't just passing legislation saying this is the fact. It's saying we agree. And one of the questions put in issue is what does this mean when the state says we agree. Because some of the language seems to indicate that what a state agrees, this is binding on all the state officials. In the boundary situations, we think that -- and this somewhat goes into something that would go to merits but we think there's a very appropriate quote from Indiana versus Kentucky which is a no boundary case in which they said, one of the great questions which concerns the boundaries of states where great natural boundaries are established in general terms with the view to public convenience and avoidance of controversy. We think the great object when it can be distinctively perceived ought not to be defeated by those technical perplexities which sometimes influence contracts between individuals. Those principles and considerations which produce the boundary ought to preserve it. We think that these are important things and we think that the Compact should be looked at or we might have reached a rule of construction of a compact and that these things should be construed to eliminate controversy, not create controversy. And we contend what Iowa's doing is creating controversy. It also in the -- it creates a completely impossible situation as to what is the law in the present Missouri River because when this river moves, does Iowa then require a new title to a new bed, there are areas where the river was completely in Nebraska at the time of the Compact. Iowa says, these titles are good in Nebraska and will be good in Iowa. They make a new boundary. I would suppose that that would mean that Iowa would have to recognize that the Nebraska riparian owner own the entire bed. But nowhere has Iowa ever admitted that in any of the cases. There might be other cases where Iowa would own the entire bed. There might be other cases where there might be an easement to half the river and there might be Iowa ownership of the bed in the other half. And these islands are forming and disappearing. We're not asking for a determination of disputes between these individuals. We think the State of Iowa itself took itself out of the picture when it entered into the Compact. We would therefore submit that we think we do have a controversy between the states. We think it depends on this compact. We think that the public interest is to be served by this Courts taking jurisdiction and making a determination on the merits, because we think that it could be an extreme deterrent to any state, to everyone entering to another compact. If by doing so, it could place its citizens in a position which it might not want to do. We think that it was a matter of great public interest or it would not have been included in the first place and that justice and fairness and right will be served.
Speaker: (Inaudible)
Howard H. Moldenhauer: Your Honor, the only other way that I can see, of course these people can have their action determined in the state courts. And if they've got the resources, if they've got the money, they might be able to get it up here on appeal. Then I suppose certiorari might be discretional with this Court.
William J. Brennan, Jr.: Well, what would there be for us in the file of litigation --
Howard H. Moldenhauer: You see, this is another thing Your Honor. The -- in a private litigation like this, when the landowner raises the Compact, these questions are very difficult to determine.
William J. Brennan, Jr.: Would that raise a federal question you think (Voice Overlap) --
Howard H. Moldenhauer: Well, I have read a law review note which says it does not. I've seen some indications, in some of the cases it does. So I can't say it's clear. But you see the state court can easily avoid this problem because the state court can find as a matter of fact, the land was clear over some place else and was not involved along the river. And I wouldn't suggest that any intension on fairness but we think you should avoid not only unfairness but --
William J. Brennan, Jr.: But even if it did raise the federal question, its still be open to question. I suppose, will that be binding to the State of Nebraska?
Howard H. Moldenhauer: Oh I -- yes, I don't think it would unless we get the two states before us and then we can determine.
William J. Brennan, Jr.: The legal question you're presenting here is whether when you don't have an interest in the -- you may not have an actual interest as the state in any of its land although you allege an interest to 50 feet of it but assuming you didn't -- what you're really saying is, is there anyway to enforce the Compact?
Howard H. Moldenhauer: Is there anyway to enforce the Compact, right. And particularly if you make an agreement which you may not be able to show an interest in the subject --
William J. Brennan, Jr.: (Inaudible)
Byron R. White: So there is -- many other way for you to enforce that compact?
Howard H. Moldenhauer: There's no place to go and we just want a fair decision (Voice Overlap) --
Byron R. White: And if we say that you can't have it enforced here, that will have a chilling effect on your -- entering any more compact.
Howard H. Moldenhauer: That's correct Your Honor. I have nothing to say so, thank you.
Earl Warren: (Inaudible)
Mr. Attorney General: Honorable Chief Justice, Honorable Associate Justices, may it please the Court. The defendant, State of Iowa contends that the bill of complaint by the State of Nebraska on its face does not establish the existence of a justiciable controversy between the State of Nebraska and the State of Iowa which would require this Court to exercise its original jurisdiction. It is our position that this complaint fails in all respects to show that the State of Nebraska is the real party in interest and has been injured. It has been well established by the decisions that this Court will not entertain a proceeding on original jurisdiction by a state on behalf of its citizens or group of citizens and not in the interest of the state itself.
William J. Brennan, Jr.: Do any of those cases involved Compacts here?
Mr. Attorney General: No they did not Your Honor. That's correct.
William J. Brennan, Jr.: So in that sense, as regard to the application of that principle, this is the first time that question has been here, is it?
Mr. Attorney General: To my understanding, this is the first time that this precise question and this state of facts as made up by the complaint and the answer that has been before this Court for in all boundary cases where this Court has assumed jurisdiction, there has either been a question of the validity of the Compact or as to the location whereas in this instance by legislation and ratification and with the consent of the Congress, the boundary was established and we feel nothing for this Court to determine in that respect.
Byron R. White: Well, I suppose you're going to explain why Nebraska doesn't have an interest in enforcing Iowa's promise into this compact.
Mr. Attorney General: Your Honor, we feel that first of all by virtue of Nebraska (Inaudible) law, the common law of Nebraska invest title to the bed of the stream --
William J. Brennan, Jr.: Well, let's just concede that Nebraska has no interest in any of these lands. Let's assume that for the moment.
Mr. Attorney General: Yes.
William J. Brennan, Jr.: No interest in any of the land and that the only people that have any interest in the land are private parties. You say ipso facto Nebraska can't bring this suit.
Mr. Attorney General: I say this Your Honor for the reason that in the complaint as stated by the State of Nebraska, they are asking for what they call a construction of Section 3 apparently of the Iowa and Nebraska Boundary Compact which merely provides that the State of Iowa will recognize those titles which are good in Nebraska.
William J. Brennan, Jr.: Well, they alleged that Iowa is not living up to its promise to recognize those titles and admitting that Nebraska has no interest in the -- in that land, doesn't own any interest in the lands. Why hasn't Nebraska get an interest in saying to Iowa, “Do you promise to respect those titles? Do you see that as regards to that very land that we conveyed to you, you are making a claim of ownership to it? And that isn't respecting the title. You are breaching Section 3.” Now, why hasn't Nebraska got an interest in saying that?
Mr. Attorney General: Of course we say that --
William J. Brennan, Jr.: I know you deny it but let's -- but the claim is made and you have to accept that it's true on its face, don't you?
Mr. Attorney General: Well, I would assume then that for that purpose, if assuming that the complaint is true in that respect, just for the purposes of arguing jurisdiction. I would be ready to admit that the State of Nebraska probably does have at least maybe or not a litigious interest but perhaps a governmental interest.
Byron R. White: Well, it's got contracting parties and that --
Mr. Attorney General: That's correct. And I think this is probably born out by the first boundary dispute between Iowa and Nebraska in 1892.
Byron R. White: Well if that's true, then here, we've got Iowa -- Nebraska saying, “You broke your promise about two pieces of the land". And you say, well that claim is all -- it sounds like one that Nebraska has got an interest in. But you come back and say, “We deny we're breaching the Compact. That those two pieces of land, neither one of them was in existence or owned and owned by a Nebraska citizen in the State of Nebraska at the time the Compact was signed". If that -- now does that change the jurisdictional question at all?
Mr. Attorney General: Well, not entirely because I think if we could examine their entire complaint and the matter submitted in connection there with that we'll find out that there are not facts sufficiently clear and presently submitted by the State of Nebraska to warrant invoking the jurisdiction of this Court in connection with that particular allegation.
Byron R. White: But if there were?
Mr. Attorney General: If there were --
Byron R. White: The mere fact that -- the mere -- if there were sufficient facts alleged, the mere fact that Iowa -- that Nebraska doesn't have an interest in the land isn't going to --
Mr. Attorney General: No, I would say that is correct, the mere lack of ownership in the land. I would like to point out in that respect with -- in the case of Nebraska versus Iowa decided by this Court in 1892. There was a great distinction in that. At that time, the State of Nebraska law was the -- identical to the law of Iowa in 1906. They subsequently changed their law or at least clarified it to the extent that it invested ownership in the riparian owner. Nebraska versus Iowa and that former case likewise was different in the respect that there was no compact. There was a question of course both states then followed the rule of the thalweg. The boundary line was established as the thalweg of the river, the deepest part of the main channel. The question of an oxbow which was broken off placing a town on this Carter Lake was placed on the Nebraska side leaving intact this same identifiable piece of land. And the channel of the Missouri River remained on the Iowa side. And this Court held that because of the fact of the avulsion that the boundary line between the states did not changed. And accordingly, it remained in this old oxbow on the Nebraska side while the main channel of the river ran entirely within the State of Iowa. This oxbow of course dried up, thus, we have a situation where the town of Carter Lake, Iowa is entirely on the Nebraska side and has been for years. So this is an obvious situation where the river, the Missouri River runs entirely through the State of Iowa. The State of Nebraska has no interest or ownership whatsoever along those lines. The plaintiff admits in paragraph 10, page 11 of his motion, that the State of Nebraska has no ownership as such in the lands and controversy. And we feel that in Arkansas versus Texas where in this Court, in allowing the motion to file a bill of complaint, stated at page 82 of 98 law edition, the contention that the controversy is between two states is challenged on the ground that the injured party is the University of Arkansas which does not stand in the shoes of the State. Arkansas must of course, represent an interest of her own and not merely that of her citizens or corporations. The Court went on to find that the particular university was an instrumentality of the state and thus concluded that there was and actually in actuality a true controversy. But this Court, in recognizing and allowing the motion and in recognizing that a true controversy did in fact exist and pointed out the conversed, that Arkansas as Nebraska must in this case, represent an interest of her own and not merely that of her citizens as in the case at bar. The State of Nebraska has pointed out that the Iowa-Nebraska boundary was formerly before this Court in Nebraska versus Iowa which I have previously discussed. Also, in that particular case which was before the Court, the question of jurisdiction was not raised. But we respectfully submit that the State of Nebraska has failed to establish that this suit is anything but one instituted on behalf of its own citizens and accordingly we feel jurisdiction shouldn't be exercised. We further submit that a state that is asking permission of this Court to prevent the enforcement and exercise of the duties of another state, they must allege in the complaint offered for filing facts that are clearly sufficient to call for a decree in its favor. This Court's decisions definitely established that not every matter of submission -- sufficient moment to warrant resort to equity by one person against another who would justify an interference by this Court with the action of the state. In Missouri versus Illinois, this Court upon rule -- overruling a demurrer discussed primarily the jurisdiction of the Court and stated that 200 U.S., page 578, the constitution extends the judicial power of the United States to controversies between two or more states and between a state and citizens of another state and gives this Court original jurisdiction in cases in which a state shall be a party. Therefore, if one state raises a controversy with another, this Court must determine whether there is any principle of law and if any, what on which the plaintiff can recover. But the fact that this Court must decide does not mean of course, that it takes the place of a legislature. Some principles, it must have power to declare. For instance, when there a dispute arises about boundaries, this Court must determine the line. And in doing so, must be governed by rules explicitly or implicitly recognized. We submit that in accord with this particular holding, that there is no line to determine that the line was determined by the Compact between the states. The Compact of 1943 established the jurisdictional boundary between the State of Nebraska and the State of Iowa. It is -- has been and can be accurately located by surveyors. Its self-evident, it's actually a matter that if this Court were to make a judicial determination as to where the boundary is or if the legislature is to do it, it necessarily requires the employment of a surveyor to go out and physically locate the same. Thus the boundary having been established in 1943 between the State of Nebraska and the State of Iowa by compact placing it in the center of the design channel, the boundary is there. It only must be physically located. This Court can do nothing more to determine the location of that line.
Hugo L. Black: In view of the argument that you're making now, I don't understand the answer you gave to Justice Brennan or Justice White that you did not regard the question of Nebraska having no interest in this land as such itself as a state was dispositive of the original jurisdiction question.
Mr. Attorney General: And not entirely. I intended to convey that the lack of ownership in the land by the State of Nebraska as an -- as a sovereign entity precludes it from having any interest to invoke original jurisdiction as to the location of the boundary line. And that their complaint that we are breaking Section 3 with reference to the titles would be sufficient to circumvent that for the purposes of exercising original jurisdiction by this Court. But that particular complaint will be negated by the inconsistencies and the evidentiary matters that they have submitted in connection with their motion.
Hugo L. Black: Well, then as I understand that you are saying that the controlling question is the lack of interest in the point of view of original jurisdiction, the lack of interest that Nebraska has in this land.
Mr. Attorney General: For certain purposes, yes (Voice Overlap) --
Hugo L. Black: You might not understand the qualification, is that it?
Mr. Attorney General: Well, then --
Hugo L. Black: Excuse me, (Inaudible) -- I'm sorry.
Mr. Attorney General: I'm saying that if the State of Nebraska were the owner of this land, then the only court that could hear this dispute would be this Court because they would then be the real party in interest without question. And accordingly, it could not be subjected to the state court of the original jurisdiction. But in that absence, I'm saying for them to raise a question which possibly might invoke the original jurisdiction of this Court. They must show a definite breach of the Compact or a proper allegation of the breach where they have only made a proper allegation as to Section 3 which we feel will be negative.
William J. Brennan, Jr.: (Inaudible) because this if they have not pleaded a breach.
Mr. Attorney General: That is correct.
William J. Brennan, Jr.: Exactly pleaded a breach, then your -- I think (Voice Overlap) --
Mr. Attorney General: We claim that the bill of complaint in of itself --
William J. Brennan, Jr.: But if you look at the bill of complaint they have not pleaded the breach of the Compact, is that what you're saying?
Mr. Attorney General: The complaint coupled with the matters submitted with it.
William J. Brennan, Jr.: Yes.
Byron R. White: Well, then you're really saying that we ought to be ruling here on a motion to dismiss not based on jurisdiction. But if -- that the -- if they pleaded (Voice Overlap) --
Mr. Attorney General: Well, I'm saying -- I won't say both Your Honor.
Byron R. White: Oh, I understand that but you're -- but the -- but -- do you say if there were -- that there isn't any jurisdiction because he has completed the brief.
Mr. Attorney General: No, I can't say that. I can say that jurisdiction should not be exercised because there hasn't been a properly alleged breach.
Byron R. White: Well, what -- where do you -- on what do you base your claim that there is -- that the Court has no jurisdiction in this case? Because in -- unquestionably, Iowa is saying you breached your contract. I mean if that's its allegation you say that (Inaudible) enough tax.
Mr. Attorney General: Oh, perhaps, I should be saying that the Court does have jurisdiction but it should not be exercised for these reasons.
Byron R. White: Oh, because of the insufficiency of the factual allegation.
Mr. Attorney General: That is one allegation.
Speaker: It's a privilege complaint in other words.
Mr. Attorney General: That is correct.
Speaker: Well that's --
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: There are --
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: We're saying that the Compact as it's written is clear that Section 3 merely says that the State of Iowa as well as the State of Nebraska must recognize those titles which are good in their respective states. And this admits to have no construction. It would not necessarily employ in the application of Nebraska principles of law.
Speaker: (Inaudible)
Mr. Attorney General: We're saying that it's an evidentiary question, a question of fact as to where this landform prior to the Compact and that it can be properly resolved in a court of competent jurisdiction whether it'd be in Nebraska Court or the Iowa Court depending on what jurisdiction lies and in the two cases about which they specifically complained happen to be in the Iowa jurisdiction. Now, as to where they evolve, it is only proper -- it's an evidentiary question when the land formed, well -- where the thalweg ran prior to the Compact to establish ownership. And accordingly, Nebraska law wouldn't apply. It's a question of fact. It's an evidentiary question as to where the land formed. And of course --
Speaker: (Inaudible)
Mr. Attorney General: That's --
Speaker: (Inaudible)
Mr. Attorney General: That is correct.
Speaker: (Inaudible)
Mr. Attorney General: That's correct.
Speaker: (Inaudible)
Mr. Attorney General: But if we get to that point, of course, we're at the merits.
Speaker: (Inaudible)
Mr. Attorney General: That's correct.
Speaker: (Inaudible)
Mr. Attorney General: It is our contention that the land in question since we are talking about merits, formed on the Iowa side of the river prior to the Compact, has always remained on the Iowa side of the river. No intervening avulsion or anything. Consequently, it accredited to the bed which is ownership as vested in the State of Iowa. And accordingly, any title is furious and fictitious.
Speaker: (Inaudible)
Mr. Attorney General: That's correct.
Speaker: (Inaudible)
Mr. Attorney General: Well, in every instance, I suppose you might say that the Compact comes into existence in every quiet title action along the Missouri River whether it's between a Nebraskan riparian owner and another Nebraskan on the Nebraska side because they have to draw that legal description in the petition to the center of the proposed stabilized channel.
Speaker: (Inaudible)
Mr. Attorney General: That's correct.
Speaker: (Inaudible)
Mr. Attorney General: That's correct.
Speaker: (Inaudible)
Mr. Attorney General: That is correct.
Speaker: (Inaudible)
Mr. Attorney General: On the face of the complaint coupled with the matters they've submitted in their brief and appendices.
Speaker: (Inaudible)
Mr. Attorney General: No, no.
Speaker: (Inaudible)
Mr. Attorney General: Certainly cannot.
Speaker: (Inaudible)
Mr. Attorney General: That would be correct.
Speaker: (Inaudible)
Mr. Attorney General: I think that if you examine their complaint in the entirety as to certain things that I shall attempt to point out at this point, that perhaps I can show why we'll -- we feel that it's deficient on its face because of the inconsistencies and some of the absences that they have submitted. First of all, in paragraph 14, page 14 of the plaintiff's motion, the plaintiff of State of Nebraska alleges “approximately the westerly 50 feet of the land described in the second amendment to plaintiff's petition in the State of Iowa versus Babbitt marked Exhibit H is presently in the State of Nebraska and it's west of the center line of the proposed stabilized channel of the Missouri River as established by the alluvial planes maps, referred to in the Iowa-Nebraska Boundary Compact. This allegation has succeeded by paragraph 20, page 19 of the plaintiff's motion which provides impertinent part. The problem is compounded by the fact that the alluvial plane maps referred to in the Iowa-Nebraska Boundary Compact are of too small a scale, (one inch equals 2640 feet) and do not contain sufficient detail for a surveyor to accurately locate the boundary on the ground. Thus, in one breath, the plaintiff alleges that we're transcending the boundary by 50 feet and then the next states, it can't be located. Then plaintiff in an attempt to explain this inconsistency states on pages 2 and 3 of its supplemental brief. Iowa has clearly misread the latter paragraph because paragraph 20 does not state that it is impossible in all areas to locate the boundary. That states that it is not possible in many areas to locate the center line of the proposed stabilized channel of the Missouri River within the meaning of the 1943 Compact on the ground for maps presently on file in the office of the United States Army Corps of Engineers. These allegations are not inconsistent. Then plaintiff asserts on 9 and 10 of its supplemental brief. The first paragraph towards the bottom about eight lines up, this would apparently create an artificial line as the new boundary rather than the moving river boundary which was subject to change. The language middle of the main channel as used in the Compact would seem to be aligned on the applicable maps equal distance -- distant from each bank of the proposed stabilized channel or the design channel. Since the deepest part of the main channel of the Missouri River, when it constituted the boundary previously, varied from shore to shore, it would seem that the Compact resulted in the creation of a new boundary at almost every place along the entire border between Iowa and Nebraska. In light of this, it is difficult to understand how Iowa can take the position that the Compact is completely irrelevant to the actions which it is bringing particularly since in some of the actions, Iowa surveys disregard the tread of a stream and run to the so-called middle of the designed channel or at least to what we would suppose Iowa considers to be the so-called middle of the designed channel. Thus we find at this point the state of the Missouri River, first, we're over the boundary by 50 feet, second, it can't be located, third, it can't be located in all areas. And then we are errant because our surveys disregard the tread of the stream and run to the center of the designed channel which is the Compact of 1943, the center of the design channel. To this last assertion, we admit our surveys run to the center of the design channel of Missouri River. This is the precise language contained in the 1943 compact. Thus, in this instance, we are saying that from a accumulative standpoint, their assertions of fact clearly do not call for a decree in the Nebraska's favor. And on the contrary plans last assertion that were running to the center of the designed channel, exonerates the State of Iowa from improperly locating the boundary. Examining the allegation that Iowa is unilaterally advocating the Compact by its actions inquiring title, we find this to support plaintiff's allegation in the case of State versus Babbitt. First, the State of Iowa has according to Nebraska in that case, exceeded the boundary by 50 feet. Secondly, they turn to the interrogatories posed by the State of Iowa in that case submitted as an appendix by Nebraska and the answer to certain of those interrogatories carried on page 53 and 62 of plaintiff's motions -- motion respectively. Commencing with interrogatory 11, was any part of the land above ordinary high-water mark and contained within plaintiff's metes and bounds description in plaintiff's Second Amendment to petition formed by accretion. That's the land where we're supposed to be over the boundary by 50 feet. If so, when did such accretions first arise above ordinary high-water mark? And in what state did the same first arise above ordinary high-water mark? Answer: Answering interrogatory 11, these dependent states that it is impossible at this time to determine the answer to this question for the reason that these dependents have not been furnished with a proper map, plot or survey, showing the area contained with plaintiff's metes and bounds description in plaintiff's Second Amendment to petition. Interrogatory 12 is any part of the land in controversy, the same original identical land which was included in either the original Iowa survey or the area -- of the area made in 1851 and 1852, or in the original Nebraska's territorial survey made in the area in 1856. If so, which survey included it and what part of the land in controversy was so included? Answer: Same answer as given to Interrogatory 11. Interrogatory 13, did any part of the land in controversy come in to existence by accretion. And if so, when did such accretions formed? In what state did they form? And to what did they accrete? Answer: Same answer as Interrogatory 11. If you have -- Interrogatory 14, if you have answered the preceding interrogatory in the affirmative state, who was the owner or who were the owners of the river bed or riparian lands to which the land in controversy accreted? Answer: The same answer as Interrogatory 11. Interrogatory 15, if you have stated and answered to any foregoing interrogatories that any part of the land in controversy in this case was in existence prior to 1920, state by what means or method you now identify that part of the land in controversy as being the same identical land? And lastly, Interrogatory 17, has the thalweg of the Missouri River ever flowed to the east of the area described in plaintiff's Second Amendment to petition or to the east of any part thereof which would be the Iowa bank or to the east of any of the same identical land which now exist in the area above ordinary high-water mark. And if so, when did the thalweg of the Missouri River so flow and for what period of time or periods of time? Thus, the matter submitted in connection with the plaintiff's motion in support demonstrates probably that the facts asserted clearly do not call for a decree in its favor. It creates a paradox for Nebraska asserts that we are unilaterally abrogating the Compact in this particular case. Ownership which can only be established by the principles of law and the origin of the land in question which the real parties in interest provide by answering, they don't have the proper maps and plots to provide us with this information. We respectfully submit that this deficiency does not warrant invoking the jurisdiction of this Court. The State of Iowa or State of Nebraska takes issue at the State of Iowa in our position concerning the importance of the origin and formation of the river lands relative to ascertaining ownership. We submit that this is the only question, the precise question, and it is the sole question in determining ownership of riparian lands. Inviting your attention to the first paragraph on page 28 and concluding on page 29 of plaintiff's supplemental brief, the State of Nebraska in substance makes -- takes issue with Iowa's theory. And if the Court will clearly examine the legal conclusions that are discussed therein and examine the fact that Nebraska calls this our present theory, you will find that it is -- this is not the theory. You could have nothing but a flexible boundary. We would have the thalweg rule. The boundary was established in 1943. It was determined. There is nothing to determine. It has to be located physically, yes. It would have to be physically ascertained if this Court made a judicial determination as to where it was. The last sentence after discussing Iowa's theory, it says, this would seem to create a state of utter confusion along the Missouri River and one in need of a solution. This is entirely true. For in many instances, the river now runs entirely within the State of Nebraska or entirely within the State of Iowa. It has left a stabilized channel. And the boundary in many instances runs over dry lands. But the only solution can be by mutual legislative action of the respective legislators and the consent of Congress. The boundary was fixed. It cannot be changed. And the fact that the river may in some instances lie with -- entirely within the State of Iowa, is a problem that must be dealt with in the respective courts having jurisdiction on each individual case basis. A excellent example is in Appendix A of our brief in argument in opposition to the moment -- motion. In that instance, Dartmouth College, draining its title through a Nebraskan riparian owner, sued another Nebraskan who was an adverse possessor in Iowa courts over land lying in Iowa by virtue of the Compact but situated on the right bank or the Nebraska side of the river. The State of Iowa intervened and our contention was that the land formed on the Iowa side and that there was an avulsion in 1937. And accordingly, the boundary did not change. The trial court disagreed with us. He held there was no avulsion and that the river gradually shifted to the left bank of the Iowa side. And accordingly, the boundary -- then boundary in ‘37 followed it. And it became accretion to the Nebraskan riparian owner. This is a hazard of owning land, riparian land. You gain some, you lose some. Now in this instance, the Missouri River was then put entirely through the center of this island, the proposed stabilized channel. And the boundary was sent right through the center of this island. And they blocked the shoot on the Iowa side. They put the boundary through the center of this island. Then the shoot broke. The revetments by the Corps and the river refused to go through the center of this island. The Nebraska shoot dried up and the land became contiguous with the Nebraska side of the river. But by virtue of the ‘43 boundary compact, half of it is in the State of Iowa. That was a precise reason that Dartmouth College sued Gerald Rose in our courts to quiet his title. And yet, it's on the westerly side of the river. And now, being a property owner for a certain instance in the State of Iowa, he no longer has the right to accrete along the bed of the streams for he is now an Iowa owner. And he must -- this land now must be governed by Iowa laws and the state owns the bed of the stream. But downstream where the river comes back where it used to be and he's a Nebraska riparian owner. He can accrete to the center of the channel. Now this is a situation of -- apparently, Nebraska feels that this isn't the state of the law and says it's a need of a solution. This we submit gentleman is the law and is in need of a solution but can only be sent by a new boundary compact. Finally, it is our position that it is clear that Nebraska's complaint about two specific cases which have not -- the individuals who are the alleged owners have not been made parties to this litigation. We submit that although this Court has jurisdiction, original but not exclusive over a controversy between a state and citizens of another state it cannot be exercise in their absence. And that this particular action filed by the State of Nebraska should be dismissed for the want of indispensable party's litigant. This Court has held repeatedly in for -- in Minnesota versus Northern Securities Company, an original suit in this Court wherein the motion was denied because of the absence of indispensable parties. This Court stated at 184 U.S. 234 and 235, the general rule in equity is that all persons materially interested either legally or beneficially in the subject matter of a suit are to be made parties to it so there be may a complete decree which shall bind them all. It is clear and it is admitted by the State of Iowa that the specific parties, Henry E. Schemmel and Darwin Merritt Babbitt are not made parties to the State of Iowa or to this particular action and do in fact claim ownership in the lands in controversy. Nebraska, the plaintiff in this action, concedes or contends that they are in fact the owners accordingly. A binding adjudication cannot be made by this Court affecting their rights and in their absence. The authorities that the plaintiff relies upon, it should be pointed out that all involved either the question of where the boundary was since it had not been determined or the validity of the agreement that it established a compact between the states. But in this case, the boundary has been determined by our mutual legislatures. Our plaintiff also mentioned Durfee versus Duke which he points out is a deformable situation. And I think you'll find that this decision is illustrative of the indispensability of Mr. Schemmel or Mr. Babbitt in order for res judicata to apply. In that situation, the parties were before the Court. The plaintiff has further asked in his brief where a statement destroying the presumption set down by the Iowa courts in Kittredge versus Ritter, 172 Iowa 55. I'd like to point out that that's a 1915 case and that was one of course we followed the rule of the thalweg. And it's normal that a presumption would occur that if land is on one side of the river, it would be a natural presumption that it is in the state of the -- that it is nearest to. Because there is a presumption that in fact and in law against an avulsion of carrying -- occurring as opposed to the election in the normal processes of accretion. Accordingly, his request that this presumption in Iowa should be struck down like I pointed out, it was a 1915 case and prior to the 43 Compact. We respectfully submit that the motion should be denied and that the State of Iowa be given the opportunity to proceed in courts of competent jurisdiction to ascertain ownership to land much in the same way that the State of Nebraska brings actions in its courts. I think it might -- it is interesting to point out in the intervener's brief who is of course not before the Court, his permission having been denied, he points out a situation in Nebraska wherein he was a party litigant and claimed title to these lands in Nebraska courts by virtue of an Iowa Harrison County judgment. He claims that they didn't give full faith and credit to this particular decree. The Court, the Nebraska Court, found in that particular case, I believe the caption is Schrader, Schroeder versus Homestead et al, 1961 case. And the Nebraska Court found that the land was never in Iowa and accordingly the title was no good. We submit that this is the only question before the Court and it should be before the lower court and not this Court. Thank you.
Byron R. White: Let me get it -- the state now. Let's suppose the complaint by Nebraska says, near the track of land A and they described it, which the time the Compact was entered into was located in the State of Nebraska and was owned by Mr. X. Iowa promised to respect that title in the Compact if we convey -- if we gave up our claim to it. We put in effect quick claim any interest that Nebraska had to the State of Iowa in exchange for that promise. Iowa is now asserting that it owns Track A and has sued Mr. X in the Iowa Courts to establish title of the State of Iowa. We allege that Iowa is breaching its promise that it gave in the Compact. And we ask that the United States Supreme Court take jurisdiction and adjudicate our claim. Iowa of course says Track A wasn't in the State of Iowa or in the State of Nebraska at the time the Compact was formed. That track came into existence by accretion after the Compact was formed. I'll use -- just on those bare facts, was there a suit between two states if we ought to pick jurisdiction out here in this Court? Or do we have jurisdiction to hear it?
Mr. Attorney General: Well, I think in any event because of the absence of Mr. Schemmel and Mr. Babbitt that there is nothing in adjudication at this point would certainly be of no value or benefit whatsoever.
William J. Brennan, Jr.: Well, of course this Court has said in regard to that in another case that was here that with -- the litigation was between a state and private parties that no matter how that litigation came out wouldn't -- it wouldn't preclude the claim of the state of the other state.
Mr. Attorney General: Then I certainly don't think that there's anything of moment before this Court because it will resolve (Voice Overlap) --
Byron R. White: Yes, but -- now, how about the other question. How about the question -- are you saying we have no jurisdiction because they're indispensable parties that ought to be here and aren't?
Mr. Attorney General: I say that's correct, yes sir.
Byron R. White: That's just a question on whether we ought to exercise that jurisdiction?
Mr. Attorney General: Yes, that's correct. You have jurisdiction --
Byron R. White: With that jurisdiction, we could take the case?
Mr. Attorney General: That's correct.
Byron R. White: And if the indispensable parties came in here and said that we have -- we want nothing to do with this case. We don't abide by anything that happens.
Mr. Attorney General: It is not, I don't think as I recall a decision of this Court for this Court to determine or the responsibility is not upon this Court to make parties to it or form up the makeup of the particular lawsuit.
Byron R. White: But is that your only response though to -- is that your only reason for saying that it -- on that hypothetical case I gave you that the --
Mr. Attorney General: Well, I think that -- I think this if Mr. Schemmel and Mr. Babbitt were before this Court that a determination could be made at the State of Iowa respecting this land. But I think in the absence of their presence that if they -- an adjudication was made and assuming that the evidence showed that Iowa was correct in its evidentiary theory, could it be said that it would operate with justice on Mr. Schemmel and Mr. Babbitt?
Byron R. White: Well for just a moment, let's assume that in this case -- in this situation that Babbitt and whatever the other name is, had actually litigated and finished their litigation with Iowa in the state courts of Iowa and Iowa had won. And the Courts have adjudicated that this land has -- is owned by the State of Iowa and that Schemmel and Babbitt had no interest in the land. And Nebraska meanwhile has been much of this litigation. He said, "We have more than a party to that suit. Those cases weren't well tried. Those in private parties didn't have the money to investigate or present the facts. We're going to sue Iowa in the United States Supreme Court". And they brought the suit here. Why shouldn't Nebraska have the right to determine whether or not Iowa's promise in the Compact has been breached?
Mr. Attorney General: Well, as I said earlier, I don't feel that I think they do have the right to determine but I don't think their complaint that it's entirely based upon what they have submitted in connection therewith demonstrates clear (Voice Overlap) --
Byron R. White: Now, but this hypothetical that I just gave you, the hypothetical I just gave you. No matter what the Iowa's Supreme -- Iowa's state courts determine in the litigation between the private parties in the State of Iowa. No matter what those courts determine, wouldn't Nebraska have the right to come here and -- in an original suit, and have its claim against Iowa litigated?
Mr. Attorney General: I think I would answer that yes. Thank you.
Earl Warren: Mr. Moldenhauer.
Howard H. Moldenhauer: We only have a few short comments Your Honor. We think we have specially alleged the breach. We would like to -- we wonder really in light of our -- Iowa's argument, what the purpose of the Compact was? What the Compact was intended to accomplish? Particularly when we considered that at the time of the Compact, we have land on which taxes had been paid in Nebraska since 1895. We had land -- the same land which had been surveyed and was in 1933, 10 years prior to the Compact was on record in the Nebraska County. They have the quiet title action to it in 1940 in Nebraska with all of the individuals before the Court at least. There had been land sold through in the state proceedings in the District Court. Individuals lived on the island. They voted Nebraska. There were these census reports in Nebraska. Children were born and died on the island. We found that (Inaudible) verse recorded with the Nebraska Bureau of Vital Statistics. The inhabitants at all times considered themselves inhabitants of the State of Iowa and Iowa when this is raised says that these titles are spurious. Well, we wonder what situations like that would -- the purpose of the Compact was. We think that we're entitled as between ourselves to a determination. If Nebraska ended up giving away a lot of things without extracting any promises, if we really got take in there for suckers, we want to know we're suckers. We think we're entitled to know that. This Court even in its dissent has recognized in Arkansas against Texas which was cited by the defendant that if a controversy between two states concerns a construction a Compact, this Court must of course determine their rights and necessity and we think we're entitled to a determination of these rights as between ourselves. We entered into the Compact. We entered into the commitment not our citizen but we did and we think we're entitled to know now what this means in light of the situation which developed. Thank you.