State cannot be action of natural forces. the river. He next invokes the great authority of Chief Justice Marshall in the case of Handly's Lessee v. Anthony (5 Wheaton, 374, 379), already referred to, and thus comments upon the early statutes dealing with this question and the language of Chief Justice Marshall : We agree with the observations of the court in Handly's Lessee v. Anthony, that great inconvenience would have followed if land on either side of the river, that was separated from the mainland only by a mere bayou, which did not appear to have ever been navigable, and was dry a portion of the year, had been attached to the jurisdiction of the State on the opposite side of the river; and, in the absence of proof that the waters of the river once flowed between the tract in controversy in this case, and the mainland of Indiana, we should feel compelled to hold that it was properly within the jurisdiction of the latter State. But the question here is not, as if the point were raised to-day for the first time, to what State the tract, from its situation, would now be assigned, but whether it was at the time of the cession of the territory to the United States, or more properly when Kentucky became a State, separated from the mainland of Indiana by the waters of the Ohio River. Undoubtedly, in the present condition of the tract, it would be more convenient for the State of Indiana if the main river were held to be the proper boundary between the two States. That, however, is a matter for arrangement and settlement between the States themselves, with the consent of Congress. If when Kentucky became a State on the 1st of June, 1792, the waters of the Ohio River ran between that tract, known as Green River Island, and the main body of the State of Indiana, her right to it follows from the fact that her jurisdiction extended at that time to the low-water mark on the northwest side of the river. She succeeded to the ancient right and possession of Virginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its waters might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Missouri v. Kentucky, II Wall. 395, 401. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river.1 This practically settles the case and makes it turn upon the evidence introduced by the litigating parties to determine the channel of the Ohio River in 1792. As a result of the examination of the evidence as to the channel, Mr. Justice Field concluded: Original It is clear, we think, from the whole testimony, that at an early day after course of Kentucky became a State, the channel between the island and the mainland of Indiana was often filled with water the whole year and sometimes to the width of two hundred yards; and that water passed through it, of more or less depth, the greater part of the year, until down to a period subsequent to the admission of Indiana into the Union.2 It was evident, therefore, that, at the time of the conveyance of its western domain by Virginia to the United States, the Ohio River flowed to the north of Green River Island; that it likewise flowed to the north of the island in 1792 when Kentucky became a State with its present boundaries, and also in 1816, when Indiana became a State, likewise with its present boundaries. The change in the channel, therefore, as 1 State of Indiana v. State of Kentucky (136 U.S. 479, 507-8). stated by the learned Justice, would not affect the line between the States, inasmuch as, once fixed, it did not depend upon the presence of water to preserve it. In the next place, the court laid great stress upon the view that for seventy years Long after its admission to the Union as a State, Indiana never asserted any claim by legal possession by proceedings to the tract in question; but, on the contrary, Indiana admitted that, Kenduring all these years, Kentucky claimed and exercised jurisdiction over it. On tucky. this phase of the question the learned Justice referred to the decision of the court in the case of Rhode Island v. Massachusetts (4 Howard, 591, 639), and he quoted with approval a passage from Vattel's Law of Nations as establishing prescription between States and Nations as well as individuals. It would perhaps be sufficient to dismiss this matter with a reference to the case and to the authority, but inasmuch as the doctrine of prescription, so important to nations, has been questioned as applying to them, it seems well to lay before the reader the holding of the Supreme Court and the views of a great and not the least of the founders of international law. First, as to the case: escence in posses This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the State of Kentucky, such omission to take any steps to assert her present claim by the State of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome, except by the clearest and most unquestioned proof. It is a principle The prinof public law universally recognized, that long acquiescence in the possession of terri- ciple of tory and in the exercise of dominion and sovereignty over it, is conclusive of the acquination's title and rightful authority. In the case of Rhode Island v. Massachusetts, 4 How. 591, 639, this court, speaking of the long possession of Massachusetts, and the sion. delays in alleging any mistake in the action of the commissioners of the colonies, said: Surely this, connected with the lapse of time, must remove all doubts as to the rights of the respondent under the agreements of 1711 and 1718. No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with the lapse of time and fall with the lives of individuals. For the security of rights, whether of States or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be invoked with greater justice and propriety than in a case of disputed boundary.' 1 Next, as to the statement of the Swiss publicist : Wheaton Vattel, in his Law of Nations, speaking on the same subject, says: The tran- Vattel quillity of the people, the safety of States, the happiness of the human race do not and allow that the possessions, empire and other rights of nations, should remain uncertain, cited. subject to dispute and ever ready to occasion bloody wars. Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title.' Book II, c. II, § 149.2 And the learned Justice confirms the theory of Vattel, if confirmation is needed, by the following passage from the American publicist Wheaton, taken from his International Law: The writers on natural law have questioned how far that peculiar species of presumption, arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation; but the constant and approved practice 1 State of Indiana v. State of Kentucky (136 U.S. 479, 510-11). Ibid. (136 U.S. 479, 511). The survey of of nations shows that by whatever name it be called, the uninterrupted possession of territory or other property for a certain length of time by one State excludes the claim of every other in the same manner as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. Part II, c. IV, § 164.1 The court, however, was unwilling to rest its judgement upon the acquiescence federal or inaction of the State of Indiana, and it appealed to no mean authority when it 1805-6. invoked the survey of 1805 and 1806, authorized by Congress, which 'did not include ', to quote the language of the Court, 'the island within the territory north of the Ohio, but treated the bank of the bayou or channel north of the island as the bank of that river;' 2 and the court felt itself justified in saying, as the result of its examination of the question, that 'This survey, from the time it was made, has been regarded as establishing the fact that the southern boundary of Indiana lies north of the island'.3 The learned Justice further refers not merely to an act of Indiana, but to what may be called a joint act of both of the States, which tended to confirm the court in the opinion which it had already reached. In 1875 the legislature of Indiana passed an act to ascertain the location of the boundary line between the States of Indiana and Kentucky above and near Evansville, and making the same evidence in any dispute'. This action of Indiana was in response to a similar action taken two years previously by the State of Kentucky, authorizing the Governor of that State to appoint a surveyor to act with a like person appointed by the Governor of Indiana, to make a survey of the land in controversy.5 In 1877 the commissioners made a survey, and, to quote the language of the court, 'ran a line on the north side of Green River Island, and also of the small tract known as Buck Island. In doing this, they followed the lines of the United States survey of 1806. By this survey both these islands were left within the State of Kentucky.' Great dissatisfaction, however, was expressed by the people in the vicinage. Although the act as passed authorized the commissioners to run a line and made the survey of the commissioners 'conclusive evidence in any of the courts of this State of the boundary line between the States of Indiana and Kentucky, between the points on said Green River Island, heretofore indicated', the legislature of Indiana, upon the recommendation of the governor, repealed the law, although the repeal of the act could not affect the fact that the commissioners appointed to determine the line had reported against the contentions of Indiana, and no amount of argument could change the fact that the Ohio, running to the south of Green Island, had run to the north of it when the Ohio was made the boundary of the territory which, in 1784, Virginia conveyed to the United States. Great rivers change their courses, and consistency does not seem to be more characteristic of rivers than of those who navigate their waters. The one changes its channel; the other its mind, but the fact remains. In the case of the Ohio changes were to be expected, the court saying: Erratic nature of the Ohio Great changes in the bed of the river were to be expected from the immense volume and flow from its vast water-sheds. These water-sheds, according to the official report of the Tenth Census of the United States, cited by counsel, comprise over two hundred thousand square miles, and more than half of the water from them comes 1 State of Indiana v. State of Kentucky (136 U.S. 479, 511, 512). • Ibid. (136 U.S. 479, 512). from east of Green River Island, and nearly all the great water-courses find their way to the Ohio River. That vast changes should be made in the channel of that river from the volume of water thus received, and its impetuous flow at certain seasons wearing away its banks, deepening some portions of the stream and filling up others, was not surprising; and that where large vessels at one time could easily float should have become dry ground many years afterwards was but the natural effect of the tremendous forces thus brought into operation.1 The court therefore concluded its careful and interesting opinion with the following statement and with the following order: Court The long acquiescence of Indiana in the claim of Kentucky, the rights of property Decision of private parties which have grown up under grants from that State, the general of the understanding of the people of both States in the neighborhood, forbid at this day, in favour after a lapse of nearly a hundred years since the admission of Kentucky into the of KenUnion, any disturbance of that State in her possession of the island and jurisdiction tucky. over it. Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled. Judgment in favor of the claim of Kentucky will be entered in conformity with this Bounopinion; and commissioners will be appointed to ascertain and run the boundary line dary as herein designated, and to report to this court, upon which appointment counsel of the parties will be heard on notice. And it is so ordered.2 30. State of Nebraska v. State of Iowa. sioners ap pointed. With the exception of the two cases of Missouri v. Iowa, already discussed, the A boundary boundary disputes have been between States to the east of the Mississippi. For dispute the most part the controversies arose out of the charters, necessarily uncertain as to the nature and extent of the territories, which no man had seen and which were granted as water by their proprietors. In a lesser degree the territory to the west of the Mississippi was unfamiliar to the Congress in the days when it created territorial governments for vast and indefinite tracts, and when it carved out for them States with natural objects as boundaries or according to surveys inaccurately made. sudden Missouri The boundary dispute of Nebraska v. Iowa (143 U.S. 359), decided in 1891, was due to a of this character, aggravated by a sudden change in the course of the Missouri River. As stated by the reporter, using the language of the court, the case is as follows: in the This is an original suit brought in this court by the State of Nebraska against River. the State of Iowa, the object of which is to have the boundary line between the two The States determined. Iowa was admitted into the Union in 1846, and its western middle boundary as defined by the act of admission was the middle of the main channel of the of the Missouri River. Nebraska was admitted in 1867, and its eastern boundary the State was likewise the middle of the channel of the Missouri River. Between 1851 and 1877, boundary. 1 State of Indiana v. State of Kentucky (136 U.S. 479, 518). 2 Ibid. (136 U.S. 479, 518–19). The later phases of this case are discussed in State of Indiana v. State of Kentucky (159 U.S. 275) (1895) and State of Indiana v. State of Kentucky (167 U.S. 270) (1896). channel Judge ment of the Court. in the vicinity of Omáha, there were marked changes in the course of this channel, so that in the latter year it occupied a very different bed from that through which it flowed in the former year. Out of these changes has come this litigation, the respective States claiming jurisdiction over the same tract of land. To the bill filed by the State of Nebraska the State of Iowa answered, alleging that this disputed ground was part of its territory, and also filed a cross-bill, praying affirmative relief, establishing its jurisdiction thereof, to which cross-bill the State of Nebraska answered. Replications were duly filed and proofs taken.1 The opinion of Mr. Justice Brewer, which was the unanimous opinion of the court, is one to gladden the international lawyer, for it teems with references to books of authority in order to lay down the principle that the slow, gradual, and Distinc imperceptible change of a river by what is technically called accretion carries the boundary with it, whereas the sudden change of a river, by what is known as avulsion, does not affect the boundary between the States. In this latter case the original bed of the river is discernible, which is not the case in the gradual give and take resulting in the small, or at least imperceptible, gain of one and the equal loss of another of contiguous States in the process of accretion. tion between avulsion and accretion. Sudden of the Finding it to be a fact, established by testimony, 'that in 1877 the river above diversion Omaha, which had pursued a course in the nature of an ox-bow, suddenly cut through Missouri the neck of the bow and made for itself a new channel,' 2 the learned Justice held River, that such a change fell within the law of avulsion, not that of accretion. Therefore 1877. the boundary line between the two States did not follow the vagaries of the Missouri River, but remained, before as after, in the old channel and in the central line thereof, ' and that,' to quote the language of the court, 'unless the waters of the river returned to their former bed, became a fixed and unvarying boundary, no matter what might be the changes of the river in its new channel.' The court therefore decreed and ordered: Judgement of the Court determining the principle. The law of river boun We think we have by these observations indicated as clearly as is possible the boundary between the two States, and upon these principles the parties may agree to a designation of such boundary, and such designation will pass into a final decree. If no agreement is possible, then the court will appoint a commission to survey and report in accordance with the views herein expressed. The costs of this suit will be divided between the two States, because the matter involved is one of those governmental questions in which each party has a real and vital, and yet not a litigious, interest.4 In the opening lines of his opinion Mr. Justice Brewer said: It is settled law, that when grants of land border on running water, and the banks are changed by that gradual process known as accretion, the riparian owner's boundary line still remains the stream, although, during the years, by this accretion, the plained. actual area of his possessions may vary.5 daries ex He next shows that: It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the centre 1 State of Nebraska v. State of Iowa (143 U.S. 359–60). 2 Ibid. (143 U.S. 359, 370). Ibid. (143 U.S. 359, 370). Ibid. (143 U.S. 359, 370). For the second and final phase of this case see State of Nebraska v. State of Iowa (143 U.S. 519), decided in 1892. |