The Border War that Wasn’t: North Carolina v. Tennessee

By Luke Manget

One morning in late April, 1899, Jasper Fain heard a group of horses approaching his farm deep in the Snowbird Mountains in the far southwestern tip of North Carolina.  Fain had inherited a good portion of the 35,000 acres that his father, Mercer Fain, had amassed by using slave labor to run an iron forge, and he had turned it into a successful cattle ranch.  That spring morning, a group of four armed men, including Deputy U.S. Marshall Murphy Anderson and Monroe County (Tennessee) Sheriff W.B. Barr, dismounted and began to read a federal court order charging Fain with trespassing and ordering him off the land.  Fain protested, declaring that he, in fact, owned the land and that he was not bound by an order from Tennessee because he was a resident of North Carolina.  His father had obtained his land on the headwaters of the Tellico River from the state of North Carolina before the Civil War.[1] 

Undeterred, Anderson presented the papers and repeated the order.  Depending on which states’ newspapers you believe, Fain either grabbed a gun and was arrested by the armed posse or invited the officers in to talk about it.  North Carolina newspapers claimed that during a cordial chat, one of the officers persuaded Fain to fetch him some water from a nearby spring.  When Fain left the house, the posse seized the home and began removing Fain’s possessions.  Fain watched as the party sawed through the rafters, causing part of the roof to collapse. 

As the hour was getting late, the posse prepared to spend the night.[2] 

Sometime during the commotion, Fain managed to send word of the encounter back to the Cherokee County seat of Murphy, North Carolina, a few hours’ ride away.  Around 2am the next morning, another armed posse of ten men, including Fain’s brother Allen A. Fain and Cherokee County sheriff’s deputies, arrived and awakened the party of Tennesseans at gunpoint.  They placed them under arrest, charged them with criminal trespass, assault, and false imprisonment, and hauled them back to Murphy, where they were imprisoned in the Elliott Hotel.  Their fate would be determined by federal courts.

Thus was the dramatic beginning to a conflict that would drag the two states into a long-running court battle, culminating in a United States Supreme Court decision nearly two decades later.  At issue was the location of the state line, which would determine the rightful owner of some 26,000 acres of forestland in the Tellico River and Slickrock Creek basins.  The border was last officially surveyed in 1821, but both states had lost their original copies of the survey.  North Carolina’s burned in a fire, and Tennesseans seemed to have misplaced theirs.  For some 70 years the location of the border was not an issue, but Tennessee began issuing patents to the disputed land in the 1880s, spawning numerous lawsuits and dispossessions. 

Marshall Anderson and Sheriff Barr were acting on behalf of Vernon K. Stevenson, a wealthy Nashville cotton dealer and slaveholder before the Civil War who had begun speculating in timber lands and filed suit against Fain.  Along with Fain, five of his neighbors were also targeted by Tennessee for removal. Along Slickrock Creek, some 20 miles northeast of the Fain residence, two parties who claimed the same piece of land based on land grants from different states were locked in their own court battle. 

Because these private land disputes were dependent upon the bigger question of state sovereignty, the disputes were heard in federal court.  Both sides presented persuasive evidence.  For every deposition taken by Tennessee that claimed the state line went over the Hangover Lead to the south of Slickrock Creek, North Carolina presented a deposition that claimed the border went up Slickrock Creek.  A District Court judge decided in favor of Fain and North Carolina, denying the Tennesseans’ demand for release from jail, but an Appellate Court reversed the decision, awarded the land to Tennessee, freed the men held in the Elliot Hotel, and ordered Fain be arrested and dispossessed.  North Carolina appealed the decision to the U.S. Supreme Court, but with no new evidence, the court, led by Chief Justice William H. Taft, was unlikely to hear it.  In 1911, the Tennessee state archivist discovered copies of the original 1821 map in a moldy basement in Nashville and the next year, a grandson of the original surveyor found his grandfather’s diary from the expedition in an old desk.  Based on this new evidence, the Supreme Court finally sided with Fain and the North Carolinians in 1914, some 22 years after the initial litigation.[3] 

The case North Carolina v. Tennessee (1914)—and the sources it produced—provide a fascinating glimpse into how land and property were regarded in turn-of-the-century Appalachia.  Because the original maps and surveys of the border run in 1821 were supposedly lost or destroyed, the case hinged on testimony from dozens of aged residents who lived in and around the disputed territory.  The depositions, affidavits, and testimony they left can help us explore the habitus of those who knew and used the high mountains southwest of the Smokies.  In all, some 62 witnesses provided testimony that consumes more than two thousand pages of published court documents.  They include tales of murder and domestic abuse, hunting, moonshining, cattle driving, and a variety of other topics.  On one level, this is a story of two states fighting it out over issues of jurisdiction.  But on a deeper level, it is a story of people and borders, property, commodities, and commons.  

These border disputes were not new in the 1890s.  Disagreements over where cattle herders could range their cattle arose from time to time along this particular stretch of border.  These conflicts over the grazing commons were often worked out on a local level between the landowners and herders.  The location of the border drew the attention of the states in the 1890s because the virgin timber on the disputed lands had suddenly become valuable.  Following the completion of the Western North Carolina Railroad in 1891 and the promises of rail linkages to national and global markets, covetous eyes turned toward “the finest timber lands to be found anywhere in this part of the country.”[4]  As various lumber companies, such as the Smoky Mountain Land, Lumber, and Improvement Company, purchased interests in the disputed territory, claiming land that North Carolinians had already settled with state grants, they brought demands to firm up the border.  Determining the border would determine who could profit from the oak, hickory, maple, and chestnut trees.  The commodification of the forests brought the enforcement of boundaries.

The term “commons” can mean many different things, so some clarification is necessary.  By “commons,” I refer to the cultural, economic, and ecological system that existed in the southern mountains that recognized individual rights to certain spaces in order to access certain resources.  The earliest Euro-American inhabitants of the southern mountains established a web of use rights, an informal code, that determined who could have access to what resources.  These rights had both European and Native American antecedents, but they were established and reinforced through use until they became custom protected, at times, by common law.  They were subject to constant negotiations—either tacit or explicit—between and among landowners and commoners.  Court testimony reveals a complex pattern of negotiations between herdsman and landowners, some involving the financial leasing of grazing lands, while others involved no more than a handshake and an understanding that Mr. X would graze his cattle on a portion of Mr. Y’s land.  Yet, testimony also reveals that such agreements did not end conflicts.

This system coexisted, often uneasily, with a culture of private property that saw the landscape as a patchwork of plats, names, and prices.  While private property was the law and dominant culture of the land, its dominance was never absolute.  Even mountain landowners acceded to the idea that if it occurred in “the wild”—that is, if it was not the product of some man’s labor—their claims to it were tenuous and did not attempt to enforce their rights to exclusivity.  Commoners saw the landscape in terms of potential resources.  They knew where to dig for ginseng, where to hunt for bear, where to fish for trout, where to find firewood, honey, berries, and nuts.  They assumed that these resources were the property of the harvester, rather than the landowner on whose land it was harvested.  In this world, borders were porous.  To those who used the commons, it mattered less who owned the land than what was happening on it.  Unless a property was posted and patrolled, or unless someone else had already staked out grazing rights or hunting rights, it was fair to assume that anyone in the community could access it.  Odds were good that all parties involved knew each other.   

By itself, the case of State of North Carolina v. State of Tennessee did not end this de facto commons.  It had been under assault for at least 40 years and, in some form, would continue until today, but in firming up the border, the Supreme Court delivered a key victory to the forces of commodification.  Indeed, from this perspective, the real winner of the case was neither Jasper Fain and his allies nor the state of North Carolina.  The real winners were timber companies, land speculators, and others who insisted that unimproved forest land should be a commodity to be bought and sold at will, that private property endowed its owners with rights of exclusivity even over unimproved forests, and that borders should be policed and enforced.  In affirming these values, State of North Carolina v. State of Tennessee made the mountains safe for modernization and hastened the end of the open range in the southern mountains.  After all, as one timber man decried, “fire and stock are the two principal enemies” of timber.[5]

The court case ensured that the question of the state line remained a “boundary dispute,” rather than a “border conflict,” a term that carries connotations of violence.  Despite the touch-and-go start to the dispute, there is no evidence that violence took place over the disputed land.  However, this did not stop one newspaper from playing up tropes of Appalachian feudists.  A writer from the Roanoke Beacon declared that the lawsuit was “necessary…to settle the dispute which was bringing about a state of lawlessness and clash of authority that bade fair to bring Winchester rifles into play among the people.”[6]

[1] See, for example, “North Carolina,” Wilmington Messenger, 8 October 1899.

[2] The details of this encounter are disputed.  This is the allegations of the North Carolina newspaper, The Asheville Citizen.  The Knoxville Sentinel, however, claimed that Fain was apprehended after he grabbed a gun.  See “Judge Ewart is Reversed,” Asheville Citizen, 3 May 1900; “Deputies Still Held,” Knoxville Sentinel, 1 May 1899.

[3] State of North Carolina v. State of Tennessee. 235 US 1 (1914)

[4] “Record that may soon settle boundary claim,” Knoxville Sentinel, 20 April 1911.

[5] J.S. Holmes, Forest Conditions in Western North Carolina, The North Carolina Geological and Economic Survey 23 (Raleigh, NC: Edwards & Broughton Printing Co, 1911), 94.

[6] “Dispute on Strip of Land,” Roanoke Beacon, 28 April 1911.