The varying Upon this statement of facts Mr. Justice Brewer thus comments in behalf of the court whose opinion he delivered: So whatever changes have come in the north channel, and although the volume boundary of water and the depth of that channel have been constantly diminishing, yet, as all is the resulted from processes of accretion, or, perhaps, also of late years from the jetties centre of constructed by Congress at the mouth of the river, the boundary is still that channel, the north the precise line of separation being the varying center of that channel. Jeffries v. channel. East Omaha Land Co., 134 U.S. 178; Nebraska v. Iowa, 143 U.S. 359; Iowa v. Illinois, 147 U.S. 1; Missouri v. Nebraska, 196 U.S. 23; Louisiana v. Mississippi, 202 U.S. 1.1 The second of the two points considered by the court related to the failure of the court to find islands in the channel of the Columbia River, because, after the boundary has entered the north ship channel it continues, according to the act of Congress admitting Oregon as a State, 'thence easterly, to and up the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof to a point near Fort Walla Walla'. In reference to this matter, which was not material, inasmuch as the dispute before the court referred to the entrance of the Columbia River, not to the course thereafter, Mr. Justice Brewer had said: The testimony fails to show anything calling for consideration in respect to the last clause in the quotation from the boundary of Oregon. The channel is not divided by islands. In the petition for a rehearing counsel for Washington alleged that, in the bill and the answer, a controversy was stated and admitted concerning the jurisdiction, as Mr. Justice Brewer summarized it, over numerous islands and sands in Columbia River, sixteen of which are enumerated by name. The court, however, was not impressed by the argument of counsel concerning the islands, the learned Justice saying that while sixteen islands and sands are mentioned, yet in the brief filed by the plaintiff on the application for a rehearing it is stated that, outside of Sand Island, the title to which is, as shown in the former opinion settled by the decision of the first question, only two, Desdemona Sands and Snag Island, can be called islands, the remainder being entirely submerged and only visible at low tide. These two, therefore, are all that can come within the definition in the boundary '.2 The contention of counsel in the matter of islands did not affect the boundary between the States. It did not cause the court to determine the middle of the channel of the river as affected by the presence of islands, inasmuch as, in this portion of the river, there were two islands (Sand Island and Desdemona Sands) within the jurisdiction of Oregon. The third, Snag Island, was granted by Oregon to private parties in 1877, and the State of Washington had neither questioned this transaction nor attempted to interfere with the jurisdiction of Oregon over the island.3 As the title to these islands, properly or improperly so called, was held to be in Oregon, it was unnecessary to determine the meaning of 'the widest channel' of the river, but as the question was raised by counsel, the court referred 1 State of Washington v. State of Oregon (214 U.S. 205, 215). Ibid. (214 U.S. 205, 216-17). to it in terms of future if not of present importance. Thus, Mr. Justice Brewer said: We agree with counsel that the term 'widest channel' does not mean the broadest Definiexpanse of water. There must be in the first instance a channel—that is, a flow of tion of water deep enough to be used and in fact used by vessels in passing up and down the widest river; but it does not mean the deepest channel but simply the widest expanse of water which can reasonably be called a channel.1 The court recognized the difficulty of determining a boundary running through a river of great width, three miles or so at certain places, whose bed is largely of sand and whose channel had been naturally affected by the flow of the water and also of late years by the jetties constructed by the Government in order to facilitate navigation. And Mr. Justice Brewer stated in this connexion that Congress had apparently been impressed with this difficulty, inasmuch as it had granted to Washington and Oregon concurrent 'jurisdiction in civil and criminal cases upon the Columbia River'. But in accordance with the holding of the court in Nielson v. Oregon (212 U.S. 315, 320), decided a year previously, a provision of this kind was a matter of convenience, and was not a determination of the boundaries between the States, Mr. Justice Brewer, who delivered the opinion of the court in that case, saying: Undoubtedly one purpose, perhaps the primary purpose, in the grant of concurrent jurisdiction was to avoid any nice question as to whether a criminal act sought to be prosecuted was committed on one side or the other of the exact boundary in the channel, that boundary sometimes changing by reason of the shifting of the channel. channel'. suggests As indicating the solicitude of the Supreme Court in cases involving disputes between The We may be pardoned if, in closing this opinion, we refer to the following: 'Resolved . . ., That the consent of the Congress of the United States is hereby given to the States of Mississippi and Arkansas to enter into such agreement or compact as they may deem desirable or necessary, not in conflict with the Constitution of the United States, or any law thereof, to fix the boundary line between said States, where the Mississippi River now, or formerly, formed the said boundary line and to cede respectively each to the other such tracts or parcels of the territory of each State as may have become separated from the main body thereof by changes in the course or channel of the Mississippi River and also to adjudge and settle the jurisdiction to be exercised by said States, respectively, over offenses arising out of the violation of the laws of said States upon the waters of the Mississippi River.' . . . Similar ones have passed Congress in reference to the boundaries between Mississippi and Louisiana and Tennessee and Arkansas. We submit to the States of Washington and Oregon whether it will not be wise for them to pursue the same course, and, with the consent of Congress, through the aid of commissioners, adjust, as far as possible, the present appropriate boundaries between the two States and their respective jurisdiction.2 State of Washington v. State of Oregon (214 U.S. 205, 216). ment between the States. A boun dary dispute. History of the boundaries. Charter line of 1632. 67. State of Maryland v. State of West Virginia. There are only three instances to be found in the records of the Supreme Court, in which the State of Maryland appeared as a suitor against a State of the Union, and prosecuted the controversy to a final hearing, resulting in a decree or judgement. In each instance, the State of West Virginia was defendant. It appears, according to the statement of Mr. Justice Day, in the case of Maryland v. West Virginia (217 U.S. 1), decided in 1910, that as far back as October 1834, the State of Maryland filed a bill in the Supreme Court, against the State of Virginia, which, however, was subsequently dismissed without any action being taken upon it.1 The controversy was apparently the controversy before the Court in the present case, which in the meantime had grown acute; so acute, indeed, that resort was again made to this august Tribunal, in order that the dispute concerning this portion of its boundaries with West Virginia, the successor in interest of the State of Virginia, might be judicially determined, as other, and even more perplexing boundary disputes between many of the States of the Union, including even the United States itself, had been, by the Supreme Court. The territory involved was trifling, but the principle was not. It is always the same, whether the case be large or small, concern land or money, or questions of sovereignty; for judicial settlement is no respecter of persons, or of property, or even of sovereign rights. On June 20, 1632, Charles the First of England granted to the second Lord Baltimore, a large tract of territory named Maryland', in honour of the then Queen of England, and from the charter a few lines are quoted, as they contain within them the germ of the controversy. The charter defines the boundary of the Colony, now the State of Maryland, as : going from the said estuary called Delaware Bay in a right line in the degree aforesaid 40 N. 1. to the true meridian of the first fountain of the river Potomac, then tending downward towards the south to the farther bank of the said river and following it to where it faces the western and southern coasts, as far as to a certain place called Cinquack situate near the mouth of the same river, where it discharges itself in the aforenamed Bay of Chesapeake, and then by the shortest line as far as the aforesaid promontory or place called Watkin's Point.2 The northern boundary of Maryland and the line of separation between it and Pennsylvania, were determined by Lord Hardwicke in the famous case of Penn v. Lord Baltimore (1 Vesey Sr.), decided in 1750, and the line as drawn, known as 'Mason and Dixon's Line', from the names of the surveyors, is famous in history, not so much as the boundary between Pennsylvania and Maryland, but as the demarcation between freedom and slavery. The western boundary, however, between Maryland and Virginia was not directly or unequivocally determined in Colonial days, or indeed at any time before the decision of the present case in the Supreme Court, although from time to time attempts were made, and a general working agreement seems to have been reached from 1787 on, although the agreement, if such it can be called, was not of a formal nature. 1 State of Maryland v. State of West Virginia (217 U.S. 1, 32). 2 Ibid. (217 U.S. 1, 25). 'first Potomac. The purpose of the State of Maryland in resorting to the Supreme Court, was to Dispute secure the location of 'the first fountain of the Potomac River', from which point as to the a meridian ran north to Pennsylvania, separating Maryland from West Virginia, and fountain' the line following the Potomac River from this point eastward, separating Maryland on of the the north from West Virginia on the south. Maryland claimed that the first fountain of the river Potomac lay a little farther west than Virginia, and Virginia's successor, West Virginia, admitted, and that its true boundary lay farther to the south. These latter States claimed the first fountain lay a little to the east. The meridian lines drawn from these two points northward to Pennsylvania were about a mile and a quarter apart, and the distance from the farthest point south about thirty-seven miles to the Pennsylvania frontier. This was the first part of the dispute. The second was as to the sense in which the Potomac was to be the boundary Dispute between the two States. as to the Potomac After the point of the true meridian was located at the first fountain of the line. river Potomac, the boundary line ran downward towards the south 'to the farther bank of the same river', to its mouth in Chesapeake Bay. Maryland claimed in accordance with its charter, not merely to the middle of the Potomac, but to the farther bank, meaning by that, the southern bank, and not merely to low, but to high-water mark. West Virginia maintained that the first fountain of the river Potomac', was farther to the east, and therefore claimed the strip of land about a mile and a quarter wide between lines due north from these points to Pennsylvania. In addition, West Virginia claimed not merely to the Potomac flowing between the two States, but to the northern bank of that stream. To settle these two questions, the present suit was brought, and it may be said in this connexion, before proceeding to a discussion of the dispute, that the Supreme Court decided in favour of West Virginia's contention to the land, and Maryland's contention as to the Potomac. cross-bill On October 12, 1891, the State of Maryland filed its bill against the State of Bill and West Virginia, invoking the original jurisdiction of the Supreme Court for the settle- filed, ment of controversies between States in accordance with the grant of judicial power 1891. contained in the Constitution made by the States in conference in 1787, of which Maryland was one. The State of West Virginia filed an answer and cross-bill and the case was before the court. The land in controversy between the two States was claimed by Garrett County of Maryland and by Preston County of West Virginia, and, as already stated, the boundary in controversy ran between the two States from the head-waters of the Potomac to the Pennsylvania line. The origin of the controversy began with the charter granted on June 20, 1632, by His Majesty King Charles I of England, to Cecilius Calvert, second Lord Baltimore, but the controversy itself did not break out until years thereafter, inasmuch as the region in which the western boundary of the State lay was unknown to geographers and was unsettled at the time. The difference concerned the location of 'the first fountain of the river Potomac' from which the true meridian ran due north and south to Pennsylvania, and the conflicting claims of Maryland, on the one hand, and of West Virginia, as successor to the title of Virginia, on the other, to the Potomac River, Maryland claiming the Potomac to the farther bank thereof from the first fountain to the Bay, West Virginia the Potomac to the north bank thereof during its course between Maryland and West Virginia. The Province of Maryland thus bounded had difficulty with its neighbours, both in drawing and securing the recognition of the lines of its charter. Its relations to Delaware, then a part of Pennsylvania, on the east, and Pennsylvania, on the north, gave rise to the very famous case of Penn v. Lord Baltimore (1 Vesey Sen. 444; Vesey Sen. Sup. 194), decided in 1750, in which Lord Hardwicke decreed the line between the two colonies. The difficulties with Virginia to the south were many and serious, and on June 29, 1776, the first constitution of that State thus renounced its claims inconsistent with the charters of its neighbours : The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released and forever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction and government, and all other rights whatsoever which might, at any time heretofore, have been claimed by Virginia, except the free navigation and use of the rivers Potomac and Pokomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon.1 In addition to the charter and to the renunciation by Virginia of its claims inconsistent therewith, the bill of the State of Maryland, to quote its terms from the opinion of Mr. Justice Day, delivering the unanimous opinion of the court in this case, 'also recites complainant's title to the South Branch of the Potomac River. It avers the failure to settle the true location of the boundary line in dispute with West Virginia, which State succeeded to the rights and title of Virginia. The bill charges that the State of West Virginia is wrongly in possession of and exercising jurisdiction over a large part of the territory rightfully belonging to Maryland; that the true line of the western boundary of Maryland is a meridian running south to the first or most distant fountain of the Potomac River, and that such true line is several miles south and west of the line which the State of West Virginia claims, and over which she has attempted to exercise territorial jurisdiction. 'The State of West Virginia filed an answer and cross bill, in which she sets up her claim concerning the boundary in dispute between the States, and says that the true boundary line, long recognized and established, is the one known as the "Deakins' " line, and in the answer and cross bill she prays to have that line established as the true line between the States. She also alleges in her cross bill that the north bank of the Potomac River from above Harpers Ferry to what is known as the Fairfax Stone is the true boundary between the States; that West Virginia should be awarded jurisdiction over that portion of the river to the north bank thereof.' 2 It should be said, in this connexion, that, in the briefs and arguments made on behalf of Maryland, counsel did not press the claim of their client to the south branch as the true boundary as marked by the Fairfax stone, but located the point at which the meridian should be drawn from a point in the north branch of the Potomac as marked by the so-called Potomac stone, placed in 1897, six years after the suit began. The claim to the northern and southern banks of the river, respectively made by 1 State of Maryland v. State of West Virginia (217 U.S. 1, 23). |