Subject:  GEORGIA v. SOUTH CAROLINA, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

No. 74, Orig.  Argued January 8, 1990--Decided June 25, 1990

This suit involves a dispute between Georgia and South Carolina over the
location of their boundary along the Savannah River, downstream from the
city of Savannah and at the river's mouth, and their lateral seaward
boundary.  In 1787, the parties agreed in the Treaty of Beaufort that the
boundary along the river was the river's "most northern branch or stream,"
"reserving all islands in [the river] to Georgia . . . ."  In 1922, the
Treaty was interpreted to mean, inter alia, that where there is no island
in the river, the boundary is midway between the banks, and where there is
an island, the boundary is midway between the island and the South Carolina
shore.  Georgia v. South Carolina, 259 U. S. 572.  The Special Master has
submitted two Reports, making several boundary recommendations.  Both
States have filed exceptions.

Held:

    1. The Special Master's determination that the Barnwell Islands are in
South Carolina is adopted.  Georgia's exception is overruled.  South
Carolina has established sovereignty over the islands by prescription and
acquiescence, as evidenced by its grant of the islands in 1813, and its
taxation, policing, and patrolling of the property.  Georgia cannot avoid
this evidence's effect by contending that it had no reasonable notice of
South Carolina's actions.  Inaction alone may constitute acquiescence when
it continues for a sufficiently long period, see Rhode Island v.
Massachusetts, 15 Pet. 233, 274, and there has been more than inaction on
Georgia's part.  It was charged with knowing that the Treaty placed all of
the Savannah River islands in Georgia, yet, despite the fact that
cultivation was readily discernable, there is virtually no record of its
taxation of, or other sovereign action over, these lands.  A 1955 Court of
Appeals' decision in a condemnation proceeding by the Federal Government,
which  recognized Georgia's sovereignty over the islands, cannot be
regarded as fixing the boundary between the States.  Pp. 10-15.

    2. The Special Master's determination that the islands emerging in the
river after the 1787 Treaty do not affect the boundary line between the
States is adopted, and Georgia's exception is overruled.  Georgia's
suggestion that the boundary in the vicinity of each new island runs
between that island and the South Carolina shore would create a regime of
con tinually shifting jurisdiction, by creating a new "northern branch or
stream" for even the smallest emerging island no matter how near the South
Carolina shoreline, and would frustrate the purpose of the Treaty, which
purports to fix the boundary "forever hereafter."  Construing the Treaty to
avoid sudden boundary changes would be more consistent with this language,
and also comports with the simplicity and finality of the Court's 1922
reading of the Treaty and with the respect for settled expectations that
generally attends the drawing of interstate boundaries, cf. Virginia v.
Tennessee, 148 U. S. 503, 522-525.  Pp. 15-19.

    3. The Special Master's conclusion that Oyster Bed Island is in South
Carolina and that the southern side of the Savannah's mouth is Tybee Island
while the northern side is an underwater shoal is adopted.  Georgia's
exception is overruled.  Customarily a boundary would be drawn to an
opposing headland.  However, due to the uncommon type of river mouth here,
Tybee Island has no counterpart of high land on the northern side.  Rather,
the geographical feature taking its place is the shoal, long recognized as
confining the river.  To accept Georgia's proposition that the northern
side should be the closest South Carolina headlands-- islands that are so
distant that they cannot even be said to touch the river--would result in
having Georgia's waters lie directly seaward of South Carolina's coast and
waters.  Pp. 19-21.

    4. In drawing the boundary line around islands on the South Carolina
side of the river's thread, when the midline of the stream encounters an
island and must move northward to become the line midway between the island
bank and the South Carolina shore, the Special Master erred in invoking a
right-angle principle--i.e., using the line midway between the island and
the shore until the island ends and the boundary reverts to the middle of
the river, and then using right-angle lines to con- nect the island-to-bank
center line with the bank-to-bank center line by the shortest distance.
Georgia's exception is sustained.  Georgia's approach--to use a point
"triequidistant" from the South Carolina shore, the island shore, and the
Georgia shore, resulting in a boundary that would pass through this point
and otherwise be equidistant from the South Carolina shore and the Georgia
shore, or island--is sensible, less artificial, fair to both States, and
generally in line with what the Court said in 1922.  Pp. 21-23.

    5. The Special Master's determination that additions to Denwill and
Horseshoe Shoal be awarded to Georgia is adopted, and South Carolina's
exception is overruled.  The rapidity of some aspects of dredging and other
processes used by the Army Corps of Engineers to improve the river's
navigation channel support the Master's recommendation that the changes in
the Savannah River were caused primarily by avulsion rather than the
natural and gradual process of erosion and accretion.  Pp. 23-26.

    6. Since the Special Master's Second Report clarified any confusion
that may have existed with regard to how the recommended boundary line
affects Bird Island, the boundary dispute as to this island has been
eliminated and South Carolina's exception, initially made, is overruled.
Pp. 26-27.

    7. The Special Master's determination of the lateral seaward boundary
between the States is adopted.  His line continues down the river's mouth
until it intersects a line, from Tybee Island's most northern point to
Hilton Head Island's most southern point, where it proceeds out to sea
perpendicularly to that line.  His recommendation gives equitable balance
and recognition to the so-called equidistant principle, Texas v. Louisiana,
426 U. S. 465, and to the inland boundary between the States, and does so
with the least possible offense to any claimed parallel between offshore
territory and the coast itself.  The States' respective exceptions are
overruled.  Pp. 27-30.

Exceptions of South Carolina overruled; Exception of Georgia to Special
Master's use of right-angle principle sustained; Other exceptions of
Georgia overruled; Special Master's recommendations, as to which no
exceptions have been taken or as to which exceptions have been advanced but
overruled, are adopted.

Blackmun, J., delivered the opinion for a unanimous Court with respect to
Parts I, II, III, and VIII, and the opinion of the Court with respect to
Part IV, in which Brennan, White, Marshall, Stevens, O'Connor, and Scalia,
JJ., joined; with respect to Part V, in which Brennan, White, Marshall,
Stevens, O'Connor, and Scalia, JJ., joined, and in which Rehnquist, C. J.,
and Kennedy, J., joined except for a portion thereof; with respect to Part
VI, in which Rehnquist, C. J., and Brennan, Stevens, O'Connor, Scalia, and
Kennedy, JJ., joined; with respect to Part VII, in which Rehnquist, C. J.,
and Brennan, White, Marshall, Stevens, and O'Connor, JJ., joined; and with
respect to Part IX, in which Rehnquist, C. J., and Brennan, White,
Marshall, O'Connor, and Kennedy, JJ., joined.  White, J., filed an opinion
dissenting in part, in which Marshall, J., joined.  Stevens, J., filed an
opinion dissenting in part, in which Scalia, J., joined.  Scalia, J., filed
an opinion dissenting in part, in which Kennedy, J., joined.  Kennedy, J.,
filed an opinion dissenting in part, in which Rehnquist, C. J., joined.

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Subject:  GEORGIA v. SOUTH CAROLINA, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

No. 74, Orig.  Argued January 8, 1990--Decided June 25, 1990

This suit involves a dispute between Georgia and South Carolina over the
location of their boundary along the Savannah River, downstream from the
city of Savannah and at the river's mouth, and their lateral seaward
boundary.  In 1787, the parties agreed in the Treaty of Beaufort that the
boundary along the river was the river's "most northern branch or stream,"
"reserving all islands in [the river] to Georgia . . . ."  In 1922, the
Treaty was interpreted to mean, inter alia, that where there is no island
in the river, the boundary is midway between the banks, and where there is
an island, the boundary is midway between the island and the South Carolina
shore.  Georgia v. South Carolina, 259 U. S. 572.  The Special Master has
submitted two Reports, making several boundary recommendations.  Both
States have filed exceptions.

Held:

    1. The Special Master's determination that the Barnwell Islands are in
South Carolina is adopted.  Georgia's exception is overruled.  South
Carolina has established sovereignty over the islands by prescription and
acquiescence, as evidenced by its grant of the islands in 1813, and its
taxation, policing, and patrolling of the property.  Georgia cannot avoid
this evidence's effect by contending that it had no reasonable notice of
South Carolina's actions.  Inaction alone may constitute acquiescence when
it continues for a sufficiently long period, see Rhode Island v.
Massachusetts, 15 Pet. 233, 274, and there has been more than inaction on
Georgia's part.  It was charged with knowing that the Treaty placed all of
the Savannah River islands in Georgia, yet, despite the fact that
cultivation was readily discernable, there is virtually no record of its
taxation of, or other sovereign action over, these lands.  A 1955 Court of
Appeals' decision in a condemnation proceeding by the Federal Government,
which  recognized Georgia's sovereignty over the islands, cannot be
regarded as fixing the boundary between the States.  Pp. 10-15.

    2. The Special Master's determination that the islands emerging in the
river after the 1787 Treaty do not affect the boundary line between the
States is adopted, and Georgia's exception is overruled.  Georgia's
suggestion that the boundary in the vicinity of each new island runs
between that island and the South Carolina shore would create a regime of
con tinually shifting jurisdiction, by creating a new "northern branch or
stream" for even the smallest emerging island no matter how near the South
Carolina shoreline, and would frustrate the purpose of the Treaty, which
purports to fix the boundary "forever hereafter."  Construing the Treaty to
avoid sudden boundary changes would be more consistent with this language,
and also comports with the simplicity and finality of the Court's 1922
reading of the Treaty and with the respect for settled expectations that
generally attends the drawing of interstate boundaries, cf. Virginia v.
Tennessee, 148 U. S. 503, 522-525.  Pp. 15-19.

    3. The Special Master's conclusion that Oyster Bed Island is in South
Carolina and that the southern side of the Savannah's mouth is Tybee Island
while the northern side is an underwater shoal is adopted.  Georgia's
exception is overruled.  Customarily a boundary would be drawn to an
opposing headland.  However, due to the uncommon type of river mouth here,
Tybee Island has no counterpart of high land on the northern side.  Rather,
the geographical feature taking its place is the shoal, long recognized as
confining the river.  To accept Georgia's proposition that the northern
side should be the closest South Carolina headlands-- islands that are so
distant that they cannot even be said to touch the river--would result in
having Georgia's waters lie directly seaward of South Carolina's coast and
waters.  Pp. 19-21.

    4. In drawing the boundary line around islands on the South Carolina
side of the river's thread, when the midline of the stream encounters an
island and must move northward to become the line midway between the island
bank and the South Carolina shore, the Special Master erred in invoking a
right-angle principle--i.e., using the line midway between the island and
the shore until the island ends and the boundary reverts to the middle of
the river, and then using right-angle lines to con- nect the island-to-bank
center line with the bank-to-bank center line by the shortest distance.
Georgia's exception is sustained.  Georgia's approach--to use a point
"triequidistant" from the South Carolina shore, the island shore, and the
Georgia shore, resulting in a boundary that would pass through this point
and otherwise be equidistant from the South Carolina shore and the Georgia
shore, or island--is sensible, less artificial, fair to both States, and
generally in line with what the Court said in 1922.  Pp. 21-23.

    5. The Special Master's determination that additions to Denwill and
Horseshoe Shoal be awarded to Georgia is adopted, and South Carolina's
exception is overruled.  The rapidity of some aspects of dredging and other
processes used by the Army Corps of Engineers to improve the river's
navigation channel support the Master's recommendation that the changes in
the Savannah River were caused primarily by avulsion rather than the
natural and gradual process of erosion and accretion.  Pp. 23-26.

    6. Since the Special Master's Second Report clarified any confusion
that may have existed with regard to how the recommended boundary line
affects Bird Island, the boundary dispute as to this island has been
eliminated and South Carolina's exception, initially made, is overruled.
Pp. 26-27.

    7. The Special Master's determination of the lateral seaward boundary
between the States is adopted.  His line continues down the river's mouth
until it intersects a line, from Tybee Island's most northern point to
Hilton Head Island's most southern point, where it proceeds out to sea
perpendicularly to that line.  His recommendation gives equitable balance
and recognition to the so-called equidistant principle, Texas v. Louisiana,
426 U. S. 465, and to the inland boundary between the States, and does so
with the least possible offense to any claimed parallel between offshore
territory and the coast itself.  The States' respective exceptions are
overruled.  Pp. 27-30.

Exceptions of South Carolina overruled; Exception of Georgia to Special
Master's use of right-angle principle sustained; Other exceptions of
Georgia overruled; Special Master's recommendations, as to which no
exceptions have been taken or as to which exceptions have been advanced but
overruled, are adopted.

Blackmun, J., delivered the opinion for a unanimous Court with respect to
Parts I, II, III, and VIII, and the opinion of the Court with respect to
Part IV, in which Brennan, White, Marshall, Stevens, O'Connor, and Scalia,
JJ., joined; with respect to Part V, in which Brennan, White, Marshall,
Stevens, O'Connor, and Scalia, JJ., joined, and in which Rehnquist, C. J.,
and Kennedy, J., joined except for a portion thereof; with respect to Part
VI, in which Rehnquist, C. J., and Brennan, Stevens, O'Connor, Scalia, and
Kennedy, JJ., joined; with respect to Part VII, in which Rehnquist, C. J.,
and Brennan, White, Marshall, Stevens, and O'Connor, JJ., joined; and with
respect to Part IX, in which Rehnquist, C. J., and Brennan, White,
Marshall, O'Connor, and Kennedy, JJ., joined.  White, J., filed an opinion
dissenting in part, in which Marshall, J., joined.  Stevens, J., filed an
opinion dissenting in part, in which Scalia, J., joined.  Scalia, J., filed
an opinion dissenting in part, in which Kennedy, J., joined.  Kennedy, J.,
filed an opinion dissenting in part, in which Rehnquist, C. J., joined.

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

 


    SUPREME COURT OF THE UNITED STATES


No. 74, Orig.




GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

[June 25, 1990]



    Justice White, with whom Justice Marshall joins, dissenting in part.
    I join all but Part VI of the Court's opinion.  In that Part, the Court
sustains Georgia's exception to the Special Master's use of the "right
angle" principle to delimit the boundary between the two States where there
is an island in the river belonging to Georgia.  Where this is the case,
the boundary line is not a line equidistant from the mainland shores of the
two States as it otherwise would be, but a line equidistant from the island
bank and the South Carolina shore.  In particular dispute is Pennyworth
Island, an island belonging to Georgia just north of the city of Savannah
and in existence when the Treaty of Beaufort was signed.  The Special
Master recommends that the boundary at Pennyworth be the island-South
Carolina shore center line only so long as some part of Pennyworth is
opposite the shore, but when that is not the case, the boundary reverts, at
right angles to the shore-to-shore center line.
    This is an eminently reasonable approach, it seems to me.  Furthermore,
it is faithful to the Court's decision in 1922.  There the Court ruled as
follows: "(1) Where there are no islands in the boundary rivers the
location of the line between the two States is on the water midway between
the main banks of the river when the water is at ordinary stage; (2) Where
there are islands the line is midway between the island bank and the South
Carolina shore when the water is at ordinary stage . . . ."  Georgia v.
South Carolina, 257 U. S. 516, 523 (1922).  Thus the boundary line at any
point is determined by reference to just two banks, either the two main
banks or the island and South Carolina banks.  This cannot be carried out
by any method other than the Master's right angle approach.
    Georgia's approach, which the Court adopts, would deviate from the main
bank-to-bank center line far short of where any part of the island is
opposite the South Carolina shore.  This point, it is said, is a point
"triequidistant" from the South Carolina shore, the island shore and the
Georgia shore--thus referring to three banks rather than two.  It is true
that from that point onward the boundary line as it circumscribes the
island would at any point be equidistant from the island and South Carolina
banks, but the point at which the shore-to-shore center line ceases to be
the boundary at either end of the island requires reference to the two
mainlands and the island.  Using Georgia's approach, the boundary is no
longer exclusively determined by either the two mainlands or the island and
the South Carolina banks.
    Georgia complains that the Master had no authority for his position but
he did his best to follow the 1922 decision, noting that in that case
Georgia pressed the position that it now urges--that when the island-South
Carolina bank center line passes the ends of the island it "deflects" and
continues until at some point it meets the center line between the two main
banks.  The Court, as the Master noted, did not endorse this position, for
it made no mention of "deflection."  Rather, as I have said, it defined the
boundary everywhere with reference either to the two main banks or the
island-South Carolina banks.
    Furthermore, the Master was convinced that Georgia's position would
unfairly deprive South Carolina of the ownership of some riverbed that does
not lie between the island and the South Carolina shore.  The Court
concedes that there is no precedent for Georgia's position, fails to give
any deference to the Master's view of what is a "fair" resolution of the
issue, and, as I see it, misreads Georgia v. South Carolina, supra.   With
all due respect, I dissent.

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

 


    SUPREME COURT OF THE UNITED STATES


No. 74, Orig.



GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

[June 25, 1990]



    Justice Stevens, with whom Justice Scalia joins, dissenting in part.
    With respect to Part IX of the Court's opinion, I would sustain South
Carolina's exception to the Special Master's determination of the angle of
the lateral seaward boundary.  I am persuaded that a boundary drawn in
reference to the full coastlines of the respective States, rather than one
drawn perpendicular to the line connecting Hilton Head and Tybee Islands,
is more equitable and consistent with the equidistant principle of Texas v.
Louisiana, 426 U. S. 465 (1976). {1}  The difference between this boundary
and that recommended by the Special Master becomes particularly clear if
one assumes that the boundary line would not change angles when it crosses
the outer limits of the 3-mile and 12-mile territorial seas.

 
 
 
 
 


------------------------------------------------------------------------------
1
    South Carolina's coast runs northeast to southwest at approximately a
47 angle, and Georgia's at a 20 angle.  Ante, at 23.  Lines perpendicular
to these coastal fronts, at approximately 137 and 110, respectively, define
the overlapping area in the illustrations on the next page.  The Hilton
Head-to-Tybee closing line lies at a 14 angle.  S. C. Rebuttal Brief 8.
The Special Master and the Court set the boundary east of this closing line
at an angle perpendicular to it, at the azimuth 104, completely outside of
the overlap of the States' coastal fronts:



S. C. Exceptions 21.



I would extend the boundary eastward from the same starting point, but at
an angle perpendicular to the average angle of the States' coastal fronts.
Assuming that the above-reported measures of the coastal fronts are
correct, the azimuth of this boundary would be approximately 1231/2 :



S. C. Exceptions 22.




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

 


    SUPREME COURT OF THE UNITED STATES


No. 74, Orig.



GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

[June 25, 1990]



    Justice Scalia, with whom Justice Kennedy joins, dissenting in part.

    I would sustain South Carolina's exceptions with respect to
southeastern Denwill and Horseshoe Shoal, and I accordingly dissent from
Part VII of the Court's opinion.  The Court does not purport to alter
settled principles of law regarding accretion and avulsion but, applying
those principles to the specifics of this record and acknowledging the
question to be close, approves the determination of the Master.  In my
view, the facts do not support the Court's holding.

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

 


    SUPREME COURT OF THE UNITED STATES


No. 74, Orig.



GEORGIA v. SOUTH CAROLINA


on exceptions to reports of special master

[June 25, 1990]



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

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


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

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


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

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