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Decision of the

Court in

Kentucky.

Mr. Justice Davis, who dissented in the case of Virginia v. West Virginia (II Wallace, 39), on this occasion spoke for the Court, which was unanimous. It is favour of to be observed, in the first place, that although counsel for Kentucky raised the question of jurisdiction, the Court took no notice of it in its opinion, not even mentioning it to brush it aside. This was no doubt due to the fact that this question had been fully argued, discussed, and passed upon by the Court, in Virginia v. West Virginia, although the opinion in that case had not then been announced. In the second place it will be observed that Mr. Justice Davis was unwilling, as all members of the Court have been, to discuss or decide questions not called for by the case, that he refused to announce a general principle, divorced from the facts, as decisive of the question, and preferred to find the facts as stated in the treaties of contracting nations, making the Mississippi the boundary between them, and from the facts as found to decide the case. This he does, showing the point of view of the Court and the principle to be adopted in the opening words of his opinion:

History of the boundaries.

It is unnecessary, for the purposes of this suit, to consider, whether, on general principles, the middle of the channel of a navigable river which divides coterminous States, is not the true boundary between them, in the absence of express agreement to the contrary, because the treaty between France, Spain and England, in February, 1763, stipulated that the middle of the River Mississippi should be the boundary between the British and French territories on the continent of North America. And this line, established by the only sovereign powers at the time interested in the subject, has remained ever since as they settled it. It was recognized by the treaty of peace with Great Britain of 1783, and by different treaties since then, the last of which resulted in the acquisition of the territory of Louisiana (embracing the country west of the Mississippi) by the United States in 1803. The boundaries of Missouri, when she was admitted into the Union as a State in 1820, were fixed on this basis, as were those of Arkansas in 1836. And Kentucky succeeded, in 1792, to the ancient right and possession of Virginia, which extended, by virtue of these treaties, to the middle of the bed of the Mississippi River. It follows, therefore, that if Wolf Island, in 1763, or in 1820, or at any intermediate period between these dates, was east of this line, the jurisdiction of Kentucky rightfully attached to it. If the river has subsequently turned its course, and now runs east of the island, the status of the does not parties to this controversy is not altered by it, for the channel which the river abanaffect the doned remains, as before, the boundary between the States and the island does not, in consequence of this action of the water, change its owner.1

The

shifting

of the channel

title.

This practically decides the question, or it makes it, as previously stated, one of fact, to be proved as in a case between private parties. The learned Justice states that Virginia claimed the ownership of the island as early as 1782, and that its successor in title, the State of Kentucky, succeeded to this claim, and for many years Ken- prior to the announcement of the suit was 'in the actual and exclusive possession tucky has of the island, exercising the rights of sovereignty over it'. In support of this always main- statement, he adds that the island lies opposite to and forms a part of Hickman County, that the lands embraced in the island were in 1837 surveyed under the authority of Kentucky, and have been sold and conveyed to purchasers under the authority of that State, that the people residing on the island paid taxes and voted according to the laws of Kentucky, and he concludes that this possession, full established by acts like these, has never been disturbed'.3

tained posses

sion.

1 State of Missouri v. State of Kentucky (11 Wallace, 395, 401).

As regards the other party to the suit, he says:

If Missouri has claimed the island to be within her boundaries, she has made no attempt to subject the people living there to her laws, or to require of them the performance of any duty belonging to the citizens of a State. Nor has there been any effort on her part to occupy the island, or to exercise jurisdiction over it.1

And in a later portion of his opinion, which may be said to close this phase of the question, he remarks:

There is, therefore, nothing in this record which shows that Kentucky has not maintained, for a long course of years, exclusive possession and jurisdiction over this territory and the people who inhabit it.2

The learned Justice, however, knew that the assertion of jurisdiction on the part of Kentucky, and the failure on the part of Missouri to do so, was not decisive of the right of either State, although it was very strong testimony in support of a claim of right. As he very properly said, 'it remains to be seen whether she shall remain in possession and continue to exercise this jurisdiction, or whether she shall give way to Missouri'.3

He likewise admitted that the case was not free from difficulty, but, speaking for his brethren, he said that the difficulties could be removed 'by a fair examination of the testimony, and the rights of the contestants properly determined'.4

of witnesses.

The first kind of evidence to which the Court resorted, was the testimony of Evidence persons living in the region of the controversy and engaged in navigation of the river. When the river was full, the Kentucky channel, that is to say, the portion of the River flowing between Wolf Island and Kentucky, afforded a safe passage for boats, 'because', as the learned Justice says, 'at such a time, if the obstructions were not submerged they could be avoided, and navigators would take it as it was five miles the shortest'. He stated, on behalf of the Court, that this channel was admittedly the highway at the date of the suit, but, as the Justice was careful to add, 'the point to be determined is, was it so as far back as 1763, or even 1820' ? 6

The testimony of witnesses established in the opinion of the Court the fact 'that in early times it was difficult for flatboats, even in the highest stage of water, to get into the Kentucky chute, owing to the current running towards the Missouri side, and that if they succeeded in doing it, the navigation was obstructed on accouut of the narrow and crooked condition of the stream'," that, as said by one of the witnesses, 'in low water any one could have got to the island from the Kentucky shore without wetting his feet, by crossing the small streams on the drift-wood',8 that in 1825, although the channel between Kentucky and the island had improved, 'still in the low water of that year it did not have a depth of over two and a half feet nor a width exceeding one hundred and fifty yards, while steamboats passed through the Missouri channel without any difficulty'.9

The testimony appeared to the Court to establish the fact that the channel of the river between the island and the State of Missouri, the west channel, as it is called, was wider and deeper than that to the east of the island, that it was used by navigators as the ordinary channel, and that the highway to the east was at that time

1 State of Missouri v. State of a Ibid. (11 Wallace, 395, 413). 5 Ibid. (11 Wallace, 395, 404).

Ibid. (11 Wallace, 395, 405).

Kentucky (11 Wallace, 395, 402).
3 Ibid. (11 Wallace, 395, 403).
• Ibid. (11 Wallace, 395, 405).

Ibid. (11 Wallace, 395, 403).
Ibid. (11 Wallace, 395, 405).
Ibid. (11 Wallace, 395, 405-6).

only used on extraordinary occasions. Indeed,' the Court says, 'the concurrent testimony of all the persons engaged in the navigation of the river is, that they could never safely go east of the island, unless in high water, and that they uniformly took the west channel in dry seasons'.1 The Court attributed very great weight to the testimony of the boatmen, for the reason that this class of men would naturally take risks in order to save five miles of navigation '.2

There was, however, another and a very interesting class of testimony to which the Court next adverted, a class of testimony which did not depend upon the memory of witnesses. It is thus summarized and stated by Mr. Justice Davis:

Physical But there is additional proof growing out of certain physical facts connected evidence. with this locality which we will proceed to consider. Islands are formed in the Mississippi River by accretions produced by the deposit at a particular place of the soil and sand constantly floating in it, and by the river cutting a new channel through the mainland on one or the other of its shores. The inquiry naturally suggests itself, of which class is Wolf Island? If the latter, then the further inquiry, whether it was detached from Missouri or Kentucky. The evidence applicable to this subject tend strongly to show that the island is not the result of accretions, but was once a part of the mainland of Kentucky. Islands formed by accretions are, in river phraseology, called made land, while those produced by the other process necessarily are of primitive formation. It is easy to distinguish them on account of the difference in their soil and timber.

It has been found, by observation and experience, that primitive soil produces trees chiefly of the hard-wood varieties, while the timber growing on land of secondary formation-the effect of accretions-is principally cottonwood. Wolf Island is of large area, containing about fifteen thousand acres of land, and, with the exception of some narrow accretions on its shores, is primitive land, and has the primitive forest growing on it.

On the high land of the island there are the largest poplar, oak, and black-kack trees growing, and primitive soil only has the constituent elements to produce such timber. But this is not all, for trees of like kind and size are found on the Kentucky side on what is called the second bottom, near the foot of the Iron Banks, which is about two feet higher than the bottom on which Columbus is located. There are no such trees on the Missouri shore. Those found there are of a different kind and much smaller growth. Besides this, the high land on the island is on the same level with the second bottom on the Kentucky side, while it is four or five feet higher than the land on the Missouri side opposite the island and above it. In this state of the case, it would seem clear that this second bottom and island were once parts of the same table of land, and, at some remote period, were separated by the formation of the east channel. In the nature of things, it is impossible to tell when this occurred, nor is it necessary to decide that question, for, by the memory of living witnesses, we are enabled to determine that the east channel, or cut-off, as it should be called, was not the main channel down to 1820.3

The Court next indulges in an explanation of the reason why the Mississippi, flowing west of the island, should have travelled eastward, and this explanation it finds in the fact that the river, striking the hard bank of the Kentucky side, just above the island, was naturally deflected to the west, but that, in the course of time, it ate away the hard soil of the Kentucky bank, extending into its waters, and thereafter flowed in a straight line to the east of the island instead of being deflected to the west, and thus flowing to the west of the island.

1 State of Missouri v. State of Kentucky (11 Wallace, 395, 407).

Finally, the Court referred to the maps of the early explorers of the river and the reports of travellers, which the State of Missouri had introduced in order to prove that the channel of commerce was always to the east of the island. On this Value of point, the language of the Court deserves to be quoted, as the makers of maps are, after all, only witnesses, and travellers only record what they see or find, or should only do so, and, as such, are but witnesses.

The answer to this is, that evidence of this character is mere hearsay as to facts within the memory of witnesses, and if this consideration does not exclude all the books and maps since 1800, it certainly renders them of little value in the determination of the question in dispute. If such evidence differs from that of living witnesses, based on facts, the latter is to be preferred. Can there be a doubt that it would be wrong in principle, to dispossess a party of property on the mere statements-not sworn to of travellers and explorers, when living witnesses, testifying under oath and subject to cross-examination, and the physical facts of the case, contradict them ? 1

So much for the books and the maps subsequent to 1800. Missouri, however, did not rest its case upon their testimony. It appealed to documents of an earlier date. But this evidence fared little better, because it was opposed to the testimony not of makers of maps and of travellers of a more recent date, but to the conclusions of disinterested and scientific experts, who had, in the course of their professional employment, examined the region in controversy. Thus, to quote for the last time the language of Mr. Justice Davis:

But, it is claimed that the books and maps, which antedate human testimony, establish the right of the Missouri to this island. If this be so, there is recent authority for saying they are unreliable. In 1861 Captain Humphreys and Lieutenant Abbott, of the corps of Topographical Engineers, submitted to the proper bureau of the War Department, a report based on actual surveys and investigations, upon the physics and hydraulics of the Mississippi River, which they were directed to make by Congress. In speaking on the subject of the changes in the river, they say: These changes have been constantly going on since the settlement of the country, but the old maps and records are so defective, that it is impossible to determine much about those which occurred prior to 1800.' In the face of this report, authorized by the government, and prepared with great learning and industry, how can we allow the books and maps published prior to this century, to have any weight in the decision of this controversy ? 2

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maps as

evidence.

The bill was therefore dismissed, with the result that Wolf Island remained, Bill disafter as before the creation and admission of Missouri as a State, in the possession missed. and sovereignty of Kentucky.

24. State of South Carolina v. State of Georgia.
(93 U.S. 4) 1876.

The next case to be considered, that of South Carolina v. Georgia (93 U.S. 4), was decided in 1876, six years after the case of Missouri v. Kentucky. In the exercise of their sovereignty under the Articles of Confederation in the very year 1787 in which a more perfect union of the States was drafted in a Convention of the States, South

1 State of Missouri v. State of Kentucky (11 Wallace, 395, 410).
2 Ibid. (11 Wallace, 395. 411).

Bill to restrain federal

Carolina and Georgia had entered into a compact concerning the navigation of the Savannah River, which, in the opinion of South Carolina, was being violated by the interfer- State of Georgia, Alonzo Taft, Secretary of War, and their agents and subordinates.

ence

with the

course

of the

Savannah

River.

Cause of the suit.

"

prevent this, South Carolina filed its bill in the Supreme Court of the Union praying for an injunction to restrain them, to quote the language of the record, 'from obstructing or interrupting" the navigation of the Savannah River, in violation of the compact entered into between the States of South Carolina and Georgia on the twenty-fourth day of April, 1787.' 1

The States of South Carolina and Georgia are contiguous, and they are separated on the east and the west by the Savannah River, and, because of this fact, it was important to them in 1787, as it is now, that the navigation of the river should be free to the inhabitants of both, and that no obstruction should be made to its navigation by either of the states or the inhabitants thereof.

The second article of the compact, dealing with this phase of the question, and upon which the suit was based, is thus worded:

Art. 2. The navigation of the river Savannah, at and from the bar and mouth, along the north-east side of Cockspur Island, and up the direct course of the main northern channel, along the northern side of Hutchinson's Island, opposite the town of Savannah, to the upper end of the said island, and from thence up the bed or principal stream of the said river to the confluence of the rivers Tugoloo and Keowee, and from the confluence up the channel of the most northern stream of Tugoloo River to its source, and back again by the same channel to the Atlantic Ocean, is hereby declared to be henceforth equally free to the citizens of both States, and exempt from all duties, tolls, hindrance, interruption, or molestation whatsoever attempted to be enforced by one State on the citizens of the other, and all the rest of the river Savannah to the southward of the foregoing description is acknowledged to be the exclusive right of the State of Georgia.2

The cause of the suit was the passage of an act of Congress in 1874, appropriating $50,000, and a second act of Congress of the ensuing year, devoting $70,000, 'for the improvement of the harbor at Savannah.' The geographical situation and the local conditions necessary to a comprehension of the case are thus stated in the official report:

The Savannah River, where it flows past the city of Savannah, is divided into two channels by Hutchinson's Island, which extends above and below the city with a length of about six miles, and a width, where widest, of one mile or more. Of these channels, the more northerly is known as Back River, whilst that which passes immediately by the city of Savannah is called Front River.

The improvement consists in the construction of a crib dam at a point known as the 'Cross Tides', for the purpose, by diverting a sufficient quantity of the water passing through the Back River into the Front River channel, of securing to the city a depth of fifteen feet at low water.

To prevent work under the authority of the Act of Congress affecting the flow of the river at Savannah, the State of South Carolina filed its bill against the State of Georgia, the Secretary of War and their agents, in order to restrain them from undertaking what they believed would be for the improvement of the harbor of Savannah. On this state of facts, the case was presented to the Supreme Court, and its first act was to exclude from consideration the compact of 1787 between the States, as it

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