Where do you draw the line? Can Georgia move its border and get a drink?

Georgia’s population has doubled since 1940, and nearby waters such as the Chattahoochee River and Lake Lanier can no longer slake metro Atlanta’s insatiable thirst. Meanwhile, the Tennessee River—with its surplus of one billion gallons a day—flows tantalizingly close to Georgia’s northern border. In one spot at manmade Nickajack Lake near Chattanooga, the river is so close that developers and lobbyists can almost taste it.

Normally, of course, it wouldn’t matter how close the river flows to the Georgia line. If the Tennessee doesn’t touch or cross the border, Georgia can’t have access to it—no matter how thirsty the Atlanta suburbs get.

Survey says?

For years, Georgia has argued that its true northern border lies along the 35^th parallel and that an 1818 surveying error caused the boundary to be marked one mile too far south—and out of reach of the Tennessee River. If the border had been correctly marked, Georgia claims, the state line would be a mile north, and parts of the Tennessee River would cross into Georgia such that Georgia could tap into those one billion gallons a day.

Georgia hasn’t seriously acted on this issue until the past few years, when its drought and development have forced its hand. The Georgia legislature has recently passed H.R. 4, which proposes this solution: Georgia will ignore the surveying error for the majority of the length of the state line IF Tennessee will agree to cede about one square mile of land at Nickajack Lake (so Georgia can stick in a straw). If Tennessee fails to agree to this by the close of its 2014 legislative session, Georgia will sue to have the state line put back at the 35^th parallel. (If the state line were moved up to the 35^th parallel, Georgia would gain about 68 square miles and 30,000 new residents—who would presumably be unhappy about being moved to a state that has a state income tax.)

You’re kidding, right?

So far, Tennessee has not taken Georgia’s threat seriously. Gov. Bill Haslam responded vaguely that he’ll continue to protect the interests of Tennessee, while Tennessee state legislators have said: Eh, see you in court. Meanwhile, Chattanooga mayor Ron Littlefield (no relation to me) proclaimed Feb. 27, 2008, as “Give our Georgia Friends a Drink Day,” and had his aide—wearing a coonskin cap—deliver a truckload of bottled water to the Georgia state capitol.

No one appears to dispute that Georgia’s border was originally supposed to be the 35^th parallel. Indeed, due to antiquated surveying equipment and methods and inexperienced crew members, many state lines and other important borders were imprecisely mapped. New York and New Jersey have argued over Ellis Island for years, and a more exact North Carolina/South Carolina line was bad news for a convenience store owner who can now no longer sell fireworks even though his store hasn’t moved.

Tennessee officials are laughing at Georgia’s cockamamie scheme, and it may not matter anyway. The Tennessee Valley Authority (TVA) owns the land and manages the river in the disputed area, and so that federal agency would have final say over whether Georgia can drink the water.

Still, H.R. 4 raises this legal question: If Georgia’s border is supposed to be the 35^th parallel, can Georgia have the border “restored” after all this time?

Jurisdiction

This sounds like the type of dispute that can wind through the courts for years, but a clause in the U.S. Constitution’s Article III offers a direct line to the U.S. Supreme Court: “The judicial power shall extend to… Controversies between two or more states….” U.S. Const. art. III, § 2, cl 1.

The Wall Street Journal interviewed Joseph Zimmerman, a political scientist and expert on interstate disputes, who says the Court almost always takes these cases. The Court then appoints a retired judge as special master, who reviews the facts and makes a recommendation to the Court.

If Tennessee fails to respond timely to Georgia’s demands, then, the state legislature will ask Georgia’s attorney general to sue Tennessee. If the attorney general does so, the case will go to the Supreme Court, who will decide whether the state line can be moved to the 35^th parallel.

Acquiescence

The theory of the case will likely involve acquiescence. Acquiescence in property law means that when one party lets another party infringe on his rights without objecting, the aggrieved party eventually loses the right to claim his rights. The law discourages parties from “sleeping on their rights.”

For acquiescence to apply, the aggrieved party must have had knowledge that its rights were being infringed, and the aggressor party must not be acting with malice aforethought.

Georgia is painfully familiar with acquiescence. In 1990, the Supreme Court held in Georgia v. South Carolina that Georgia had lost the right to an island in the Savannah River—even though the Treaty of Beaufort of 1787 gave the island to Georgia. 497 U.S. 376 (1990). The Court held that Georgia had knowingly slept on its rights—had stood by for years while South Carolina made the island into a peninsula and then levied property taxes. Id. at 380.

I’m awake!

The Georgia legislature has suggested that Georgia should argue that it did not acquiesce—that it complained to Tennessee about the border more than once. This argument will almost certainly fail, because Georgia has not asserted its rights by filing a lawsuit. This is the most direct and obvious path to asserting one’s rights, and Georgia has failed to do it for nearly 200 years.

Tennessee’s response—or non-response—to Georgia’s threat seems reasonable, then. Tennessee can easily argue that it did not maliciously try to take Georgia’s land. (It’s not Tennessee’s fault that the line was drawn wrong.) Also, Tennessee will successfully argue that Georgia had notice: The 68 square miles in question are attached to the rest of Georgia, and so Georgia has had ample notice that residents of this area pay Tennessee property taxes and call themselves Tennesseans. Lastly, Georgia acquiesced: Georgia could have easily disputed the border in the past 200 years, but it has slept on its rights.

The Tennessee River will stay in Tennessee.