· · · GEORGIA, TENNESSEE · · ·

DAVID SHAFER

When the Grass Is Greener on the Other Side

In the spring of 1818 the States of Georgia and Tennessee, by their commissioners, ascertained and marked the dividing line.… The 35th parallel of north latitude constitutes that boundary and there was nothing more to do than to trace and mark that parallel on the surface of the earth.… The result of the observations made on that occasion differs from that of those contained in this report.

—JAMES CAMAK, REPORT TO THE GEORGIA SECRETARY OF STATE, 1827

On February 10, 2008, members of the Georgia State Senate sang “This land is your land, this land is my land” as Senator David Shafer stood to propose a bill authorizing the governor “to initiate negotiations with the Governors of Tennessee and North Carolina for the purpose of correcting the flawed 1818 survey erroneously marking the 35th parallel south of its actual location and to officially recognize the State of Georgia’s northern border with the States of Tennessee and North Carolina as the precise 35th parallel as was intended when both states were created.” The Senate passed the resolution unanimously. Georgia’s House of Representatives followed suit, and the governor signed.

“I would offer to settle this dispute over a friendly game of football,” one Tennessee state senator replied, “but that would be unfair to the state of Georgia.” “I think they’re embarrassing themselves,” said another. “Absurd and laughable,” said a third. One Tennessee official went before the press in a coonskin hat as a colleague proclaimed, “Davy Crockett is not going to give up the fight.” David Shafer was not amused. When a prominent member of the Tennessee legislature joked (or half joked), “I think we need to have our militia down there,” Georgia’s Senator Shafer replied that they were welcome, so long as the troops didn’t go below the 35th parallel.1

David Shafer (1965-) (photo credit 43.1)

Emotions were turning serious on both sides of the line. Fingers began to be pointed, and not just across the state line. When, in proposing a resolution rejecting Georgia’s call for a boundary commission, a Tennessee legislator included the phrase “legal precedent favors the Volunteer State, just as good fortune often smiles upon the righteous,” he was criticized by a fellow legislator who declared, “I don’t take this as a tongue-in-cheek matter.”2 The language regarding the righteous was dropped.

In Georgia, too, the debate regarding the state line was causing other lines to surface. A February 2008 editorial in the Athens Banner-Herald began, “As one man’s quixotic quest, the effort to get Georgia’s northern border moved one mile farther north was an entertaining diversion from the more routine motifs of pettifoggery and pandering that dominate the annual sessions of the Georgia legislature. But now that the whole Senate has bought into Sen. David Shafer’s legislative proposal, it has crossed the line from the merely entertaining to the more than mildly troubling.”

The same editorial, however, observed, “That’s not to say Shafer … doesn’t have a point.”

What was the point of resurrecting a 190-year-old surveying error? Water. Tennessee had it; Georgia needed it. Georgia had been suffering an extreme drought since the spring of 2007. The drought sorely exacerbated an ongoing problem in Atlanta, where rapid population growth had outpaced the region’s water supply. If the northern border of Georgia had been accurately surveyed in 1818, the state line would pass through the Tennessee River.

But it would not have in 1818. Only after the federal government built Nickajack Dam in the mid-1960s did the river back up enough to cross the 35th parallel. Still, prior to the original surveying of the line in 1818, Georgians assumed there was no question that the river crossed below the 35th parallel. This assumption is revealed in Georgia’s 1802 Act of Cession, the legislation in which Georgia released to the federal government its western land from colonial days (present-day Alabama and Mississippi). The act described Georgia’s northern border as commencing at the point where its newly defined western border ran “in a direct line to Nickajack on the Tennessee River; then crossing the last mentioned river, and thence running up the said Tennessee River and along the western bank thereof to the southern boundary line of the State of Tennessee.” The southern boundary of Tennessee had previously been established by Congress as the 35th parallel. That Georgia’s Act of Cession described the boundary as going up the river to the southern border of Tennessee reveals that no one at the time knew exactly where the 35th parallel was. Including, as it turned out, the 1818 surveyor, who located the line just over a mile south of where it should have been. Tennessee ratified the 1818 survey. Georgia did not.

Erroneously surveyed Georgia-Tennessee border

Two centuries later, Shafer’s concern was the same as the state’s leaders in the early years of the Republic. “Georgia must increase its water supply,” he stated, echoing the objective stated in the Act of Cession. “I am more concerned about securing riparian [river bank] rights to the Tennessee River than obtaining the entire disputed area.”3

Though the intent of his resolution was to obtain water, the resolution itself concerned a boundary. As it happened, Tennessee’s lieutenant governor, Ron Ramsey, was a professional surveyor. Ramsey cited “adverse possession,” a technical term that refers to a legal precedent regarding inaccurately surveyed lines. “If this line has been there that long,” he told the Chattanooga Times Free Press, “almost 200 years, or 190 years, that’s the line now.”

Adverse possession … riparian rights.… Out with the jokesters, in with the experts. The lawyers were about to have a field day—particularly since both water rights and boundary rights are areas with complex legal histories. In Georgia’s corner was Atlanta-based attorney Brad Carver, whose specialization included both land use and water use law. In a report Carver helped prepare for the Georgia legislature, he described numerous instances in which Georgia had, in fact, challenged the incorrectly surveyed state line.

As far back as 1887, Georgia had passed a resolution much like Shafer’s, seeking Tennessee’s cooperation in correcting the boundary location. Georgia went on record again in 1941, when its legislature created a committee to look into means of correcting the error. In 1947 Georgia acted yet again, this time authorizing its state attorney general to bring suit, if necessary, before the U.S. Supreme Court. That got Tennessee’s governor to meet with the boundary committee Georgia’s legislature had created, but ultimately the issue went nowhere. And in 1971 Georgia had passed a resolution calling upon the two states to create a boundary line commission. Again, no such commission was created.

But Tennessee had experts, too. While it was true that Georgia had disputed the boundary’s location as far back as 1887, it had known about the discrepancy since 1826. That was when surveyor James Cemak discovered it while locating the northern border of Alabama. Cemak was also the surveyor who had made the error, and he was also not surprised to discover it. He had known back in 1818 that the equipment provided by the state of Georgia was ill-suited to the task. Upon discovering the inadequacy of the equipment, Cemak had written to Georgia’s governor, asking him “to procure such an apparatus as would be necessary to enable me to perform my duties with the greatest possible accuracy.” But, as Cemak later recounted, “The shortness of the time would not admit of sending abroad for them.”4

Not only did Georgia instruct its surveyor to continue despite his concerns about accuracy, but after the inaccuracy was discovered by Cemak during his 1826 survey of Alabama’s border, Georgia did nothing for sixty years. Tennessee pointed out that these facts had previously been the basis of a conclusion by a University of Georgia professor that Georgia had thereby lost any rights to the land.5

Tennessee’s experts also cited an 1893 Supreme Court decision in a case where Virginia had challenged a faulty survey of its boundary with Tennessee nearly a century after the error was made. The court had rejected Virginia’s challenge. Likewise, in a boundary dispute between Georgia and South Carolina, the Supreme Court had stated that “long acquiescence in the practical location of an interstate boundary and possession therewith, often has been used as an aid in resolving boundary disputes.”6

Other than periodic resolutions passed by its legislature, Georgia had never filed suit, never sought to collect property taxes in the disputed region, and never offered residents of the region in-state college tuition or state-sponsored scholarships. It had, however, published official state highway maps and voting district maps, all bearing the governor’s signature, and all showing the disputed boundary in its current location.

One month after Shafer’s resolution was passed, Tennessee passed a resolution rejecting it. Anticipating this, Shafer’s resolution had authorized the Georgia attorney general to file suit before the U.S. Supreme Court in the event that the two states could not reach an agreement. Shafer believed Georgia could win.

But Georgia’s governor wasn’t so sure. “Authorize means to give the ability to do so,” his spokesperson said. “It doesn’t mean shall.”

To date, no suit has been initiated.

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