Vanderbilt Lawyer - Volume 37, Number 1

Professor Jim Ely: A River Runs Through It

Professor Jim Ely

The severe drought affecting North Georgia during 2007 has resulted in a problem almost unheard of in this day and time: a border dispute between Tennessee and Georgia over the results of a flawed survey used to create the state border more than two centuries ago.

Thirsting to set the record straight - and to gain access to the Tennessee River, which boasts about 15 times the water flow of the river Atlanta depends upon for its water supply - Georgia State Senator David Shafer (R) proposed a bill aiming to create a boundary-line commission to resolve the dispute. The bill was based on an 18-page memorandum outlining a case for moving the Tennessee line a mile north to the 35th parallel, a move that would put part of the Tennessee River in Georgia and possibly set in motion the building of a water treatment plant, pumping stations and a 100-plus-mile pipeline to move as much as 500 million gallons of water a day to North Georgia and Atlanta.

Though the boundary between Tennessee and Georgia has been in the same place ever since an erroneous survey in 1818, the report's authors claim that legal precedents indicate the U.S. Supreme Court would likely rule that the Georgia state line should be moved to the 35th parallel, where Congress originally intended it to be. But property law expert Jim Ely, the Milton Underwood Professor of Law and History at Vanderbilt, found himself in general agreement with Tennessee Governor Phil Bredesen, whose reaction on first hearing about the Georgia legislation was, "This is a joke, right?"

Georgia officials could go to the U.S. Supreme Court under a constitutional provision providing the court with original jurisdiction in disputes among states, Ely said, but success was unlikely. "If the Georgia lawmakers want to do anything beyond the political-hot-air stage, what they're going to have to do ultimately is bring a lawsuit in the U.S. Supreme Court," Ely said, noting that the Court had rejected a similar suit filed by Virginia in 1893 to change the Tennessee/ Virginia border.

"Realistically, what are the odds that the Supreme Court is going to overturn a boundary that has been agreed upon and acted upon for a very long time period - almost 200 years?" Ely asked.