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By Bart Crattie

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THE DIVIDE: A surveyor's reflections on the Tennessee/Georgia boundary issue

 Somewhere between Ringgold and Dalton, Georgia , then heading west to the top of Lookout Mountain in the vicinity of Camp Adahi is a physical and locatable line known as the divide.  If one were to pour a bucket of water exactly on that line, one half of the water would flow south to the Coosa River and eventually to the Gulf of Mexico.  The other half of the bucket would flow north to the Tennessee River and eventually to the Gulf via the Mississippi River.  A similar divide, man made, now exists, just a little north of the physical divide.  Water, tax bases, new political constituencies and blatant land grabbing, among many other issues are the hallmarks of the most recent legislative folly or divide sprung upon us by the Georgia Legislature.

Fourteen minutes and fifty nine seconds into my Warhol fifteen minutes, I was asked to reflect on the divide.  It started back in October as a simple hypothetical, based on historical fact in an opinion piece that ran in the Atlanta Journal Constitution and in Commercial Network Magazine.  I had merely pointed out that in 1818, an error had been made in the surveyed line between the States of Georgia and Tennessee. At that time I stated among other things that Georgia was rightly entitled to the   Tennessee River but not legally so.  I also made the statement that unfortunately for the citizens of Georgia, the corner is where the corner is. One local TV station and the local paper were curious and did follow up stories.

The giant awakes...the Georgia Senate unanimously approved a resolution forming a boundary commission to relocate, no, actually move the long established line between our two friendly states.  E-mails and phone calls immediately began.  The NY and LA Times, NPR, NBC news, The Weather Channel as well as the local media were now interested in the opinions of an humble, simple land surveyor.  That was about 15 minutes ago.  Now, after much reflection, my opinion is that my legislature is full of it, they wish to fruitlessly spend enormous sums of tax dollars and are following the advice of high paid counsel that frankly amounts to only so much poppycock.

Being a land surveyor in both the States of Tennessee and Georgia, I must maintain objectivity.  Further, a little understood fact is that in all statements and actions, a surveyor is required to be objective.  Attorneys, to their credit are advocates for the individual.  The surveyor is barred from advocacy of an individual.  The surveyor's client is the general public,  sometimes to the detriment of his current, paying client.  This lofty principle results in freeing our courts of unnecessary and frivolous suits, much like what Georgia is now doing.  My legislators are receiving advice and counsel that, in my opinion, is doing grave harm to both the citizens and funds of the state.

One of the three sources that amount to the “Holy Grail” of legal issues in land surveying is a book entitled “Boundary Control and Legal Principles”.  This book as well as one other of the three was coauthored by the world renowned and highly respected attorney Walter Robillard.  Walter lives in Georgia.  I have borrowed the following from Walter and his collegues.

            In a resurvey the surveyor is frequently confronted with the problem of resolving conflicts discovered when applying the deed to the ground.  The courts, by their declarations in past cases, give the surveyor guidance.  The following elements are of importance. 1) An occupancy right that has ripened into a legal right extinguishes ... all written title to the occupied land. 2) As between private parties in a land dispute, a senior right is superior to junior right and 3) Written intentions of the parties are paramount. The intent of the parties ... is determined first from the writings and then by the order of importance of deed elements.  Usually a call for a prior survey controls; monuments control over direction, distance or area.

In the instance of the GA/TN, occupancy ripened long ago according to each state's minimum statutory periods, with or without “color of title”.  Because each state's lines and boundaries were established simultaneously junior and senior rights are not applicable. Therefore, written intentions are paramount and complete the elements of importance.  The intentions of the US Government as well as both States was to place the boundary on the 35^th  parallel of latitude.  All parties did just this by written decree and then by the survey of 1818. That year, Camak, Gaines and others ran a line on the true 35^th from Nickajack  east for 110 miles. This true line of parallel was confirmed by the same Georgia mathematician, Camak in 1826. It was not until a later date that the error was discovered.   After the Cherokee were removed Georgia further acquiesced to the line through the surveys and land sales of the 1830's and 1840's.  In the late 1800's, Georgia recognized the current location of the line in its many railroad surveys.  As late as the 1940's, the Highway Department of Georgia reestablished and accepted the line in a very high tech geodetic survey.  This means that the surveyors had to be well aware of both longitude and latitude.  Intent and acquiescence are obvious, open and notorious in all of these cases. 

Some other items from Mr. Robillard's book:

     The monuments as set by the original surveyor to show the lines as marked and surveyed express the intent of the subdivider and become paramount control for resurvey.  Once  a lot, street or block line within a subdivision (in this case, the United States is the subdivision of property) is established by the original surveyor and the land is sold in accordance with the original plat, the lines originally marked and surveyed are unalterable. No rule... is more firmly established than that courses and distances are controlled by marked and fixed monuments.  The boundary lines of older subdivisions established in error, often become the true boundary lines by prescriptive title.  Errors in the measurements of distance, angles or surface occur, but the location of the original monuments, if undisturbed, is certain and conclusive as to the original location of the lines run by the original surveyor.

Every surveyor is intimately aware of “Cooley's Dictum”.  In 1878, the Chief Justice of the Michigan Supreme Court, the honorable Justice Cooley presented a harsh admonishment to surveyors, courts and legislatures wrongly thinking lines can move because of improvements in technologies and methods.  Part of this dictum states:

      Nothing is better understood than that a few of our plats will stand the test of careful and accurate survey without disclosing errors.  This is true of the government surveys as of any others, and if all the lines were now subject to corrections on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities.  Indeed the mischiefs that must follow would be incalculable, and the visitation of the surveyor might well be set down as a great public calamity.  But no law can sanction this course.  No rule in real estate law is more inflexible that that monuments control over course and distance...

I feel quite comfortable standing in agreement with both Walt Robillard and Justice Cooley.  We all have in our company the preeminent survey historian for the State of Georgia, Farris Cadle.  When asked about his opinion on the issue, good Professor Cadle dismissed the effort as “ridiculous”.  My representatives are serious and truly believe they are serving their constituents in a responsible and competent way.  I personally think this couldn't be farther from the truth.  My plea to my legislature is cease this divide.  Governor Perdue's prayers have had a much, much more positive effect that this much, much misguided attempt of the establishment of a useless boundary commission.  It has failed in the many times it was attempted and it will fail this time.  

 Editor’s Note: Bart Crattie is a surveyor and history buff, recently named surveyor of the year by the Tennessee surveyors' association.  He thought it interesting that the boundary between Tennessee and Georgia as created and accepted nearly 200 years ago was accurate to the best of surveyors’ ability with contemporary instruments.  He wrote on this in a November 2008 comment, which also appeared in the Atlanta Constitution.  He never imagined the firestorm it would start which included stories on NBC news, the Weather Channel, the Los Angeles Times and local media.  His motive in the story was to call attention to the importance of accurate surveys.  He got it.