was held that in the absence of avulsion the boundary was the varying center of the channel. But there is no fixed rule making that the boundary between States bordering on a river. Thus, the grant of Virginia, of all right, title and claim which the said commonwealth had to the territory northwest of the River Ohio, was held to place the boundary on the north bank of the river. Handley's Lessee v. Anthony, 5 Wheat. 374, in which the subject is discussed by Mr. Chief Justice Marshall. See also Howard v. Ingersoll, 13 How. 381. Now, if Congress in establishing the boundary between Washington and Oregon had simply named the middle of the river, or the center of the channel, doubtless it would be ruled that the center of the main channel, varying as it might from year to year through the processes of accretion, was the boundary between the two States. That Congress had the propriety of such a boundary in mind is suggested by the terms of the act establishing the territorial government of Washington, passed March 2, 1853, c. 90, 10 Stat. 172, in which 'the middle of the main channel of the Columbia River' was named as the boundary. However, as we have seen, when Congress came to provide for the admission of Oregon (doubtless from being more accurately advised as to the condition of the channels of the Columbia River) it provided that the boundary should be the middle of the north The channel. The courts have no power to change the boundary thus prescribed and Court establish it at the middle of some other channel. That remains the boundary, although change some other channel may in the course of time become so far superior as to be practi- the cally the only channel for vessels going in and out of the river.1 The learned Justice further said: cannot boundary prescribed These considerations lead to the conclusion that when, in a great river like the by Columbia, there are two substantial channels, and the proper authorities have named Congress. the center of one channel as the boundary between the States bordering on that river, the boundary, as thus prescribed, remains the boundary, subject to the changes in it which come by accretion, and is not moved to the other channel, although the latter in the course of years becomes the most important and properly called the main channel, of the river.2 The conclusion, therefore, of the Court was necessarily, as stated by Mr. Justice Brewer, that the boundary between the two States is the centre of the north channel, changed only as it may be from time to time through the processes of accretion'.3 The international aspect of this case is clear without comment, as a dispute of this kind may arise between nations as well as States, whenever the channel of a river, made the boundary between them, either ceases to be navigable or is deserted by commerce for another branch or channel of the same stream. In such a contingency the case of Washington v. Oregon (211 U.S. 127) will be a precedent, ready to the hand of statesman, lawyer, and judge. 65. State of Missouri v. State of Kansas. (213 U.S. 78) 1908. The controversy in the case of Missouri v. Kansas (213 U.S. 78), decided in 1908, is briefly yet adequately stated in the following passage from the opinion of Mr. Justice Holmes, speaking for a unanimous court: This is a bill to establish the western boundary of the State of Missouri for a short distance above Kansas City in that State. The object of Missouri is to 1 State of Washington v. State of Oregon (211 U.S. 127, 134–5). Ibid. (211 U.S. 127, 136). Ibid. (211 U.S. 127, 136). For the final phase of this case see State of Washington v. State of Oregon (214 U.S. 205), post, p. 468. Dispute about an island in the Mis souri River, maintain title to an island of about four hundred acres in the Missouri River, now lying close to Kansas City, Missouri, and Kansas City, Kansas. The State of Kansas claims the same island by answer and what it terms a crossbill. A few words will explain the issue between the parties. When Missouri was admitted to the Union its western boundary at this point was a meridian running due north. There was land between a part of this line and the Missouri River. By treaty with the Indians and act of Congress on the petition of Missouri, that State was granted jurisdiction over such land and its boundary was extended to the Missouri River. Since that time due to a the river had been moving eastward by gradual erosion, and at the place in controgradual versy has passed to the east of the original line. The land in question lies to the east change in of the line and the claim of Missouri is that, whatever the change in the river, its bed. jurisdiction remains to that line.1 the river History of the boundary. The question involved in this case is interesting, but not difficult to decide, because, in anticipation of the grant of a triangular strip of land lying between its northern boundary extended due west to the Missouri River and between that river on the west, and a line due north from the middle point of the intersection of the Kansas and Missouri River, the State of Missouri, in the session of its legislature of 1834-5, amended its constitution in order that the boundary of the State be so altered and extended as to include all that tract of land lying on the north side of the Missouri River, and west of the present boundary of this State, so that the same shall be bounded on the south by the middle of the main channel of the Missouri River, and on the north by the present northern boundary line of the State, as established by the Constitution, when the same is continued in a right line to the west, or to include so much of said tract of land as Congress may assent'.2 The act of Congress approved June 7, 1836, provided that 'when the Indian title to all the lands lying between the State of Missouri and the Missouri River shall be extinguished, the jurisdiction over said lands shall be hereby ceded to the State of Missouri, and the western boundary of said State shall be then extended to the Missouri River'. On December 16, 1836, Missouri assented to this act of Congress, and in the meantime, on September 17 of that year, a treaty was made with the Indians, whereby they released their claims to the land in question; and on March 28, 1837, the President, pursuant to act of Congress, declared the Indian title to the lands extinguished. That the river was to be the western boundary of Missouri and that, on familiar principles of law, the jurisdiction of the State of Missouri should extend to the middle of the river, is made clear by a reference to the express desire of the State on the one hand and of the Congress on the other. In 1831 the General Assembly of Missouri transmitted a memorial to the Congress, in which it requested its boundary to be extended westward to the Missouri River, on the ground that the territory between the river and its then western boundary was inhabited by Indians, and conflicts. were to be feared on the frontier unless there were interposed 'whenever it is possible, some visible boundary and natural barrier between the Indians and the whites'; that the Missouri River would become this visible boundary and natural barrier by extending the northern boundary of this State in a straight line westward until it strikes the Missouri, so as to include within this State a small district of country between that line and the river'. Congress acted at the request of and for the reasons stated by Missouri, and the strip of land acquired by treaty from the Indians was 1 State of Missouri v. State of Kansas (213 U.S. 78, 81-2). granted by the Congress to Missouri in order that the Missouri River might be the visible boundary and natural barrier between the Indians and the whites'.1 Such was the intent of the State before the acquisition of the territory. Since that date the State of Missouri has evidenced its understanding that the middle of the Missouri River was the boundary, not that it acquired the river itself, by a succession of statutes relating to the river counties in this part of the States, all of which adopted as boundary the middle of the main channel of the river. In addition to this action of the legislative and executive branches of the Government, the State judiciary, in the case of Cooley v. Golden (52 Mo. App. 229), decided in 1893, has held the middle of the river to be the boundary between that part of the State and Kansas. The decision in this case is as interesting as it is important, in that the dispute determined the boundary of Atchison County, formed out of the territory between the parallel of latitude and the Missouri River granted by Congress to the State of Missouri in 1836. After stating that the case was an action of forcible entry and detainer, brought before a Justice of the Peace in Atchison County, presiding Judge Smith said: line By the act of Congress, approved June 7, 1836, United States Statutes at Large, Mid34, entitled An Act to extend the western boundary of the State of Missouri to the channel Missouri River', it was provided that, when the Indian title to all the lands lying adopted between the State of Missouri and the Missouri River should be extinguished, the by the jurisdiction over said lands should be thereby ceded to the State of Missouri. It is Missouri to be observed that the act ceded the land between the old State line and the river, Courts. and the extension of the boundary was to the river, not to the bank, thus making the natural water-course the boundary; and the general rules, construing such words of cession as shown by the adjudged cases, carry that boundary to the centre of the channel. Benson v. Morrow, 61 Mo. 345; Jones v. Soulard, 24 How. 41; Howard v. Ingersoll, 13 How. 381; Railroad v. Devereux, 41 Fed. Rep. 14; Missouri v. Iowa, 7 How. 660. And this seems to have been the intention of Congress; for it will be seen by reference to the act providing for the admission of the Territory of Nebraska into the Union that one of the boundaries of the State so admitted should be from the junction of the Niobrara River down the middle of the channel of the latter river following the meanderings thereof, &c. 13 United States Statutes at Large, 47. It would be unreasonable to suppose that Congress intended to limit the extension of the territorial jurisdiction of the State of Missouri to the bank of the Missouri, and thus leave a sort of neutral territory between the Missouri shore and the middle of the channel of the river over which neither the States of Missouri nor Nebraska had jurisdiction. The Constitution of Missouri, section 1, article 1, declared that the boundaries of the State as heretofore established by law are hereby ratified and confirmed; so that it is not to be doubted that Congress by the ceding act extended the northern boundary line of the State to the middle of the channel of the Missouri River, and from thence down the river to the middle of the Kansas River. Act of Congress of March 6, 1820, for the admission of Missouri; Revised Statutes, 1889, 47. In the cession act of June 7, 1836, is embraced what is commonly known as the 'Platte purchase', consisting of a number of counties, among which is Atchison, situate in the northwest corner of the State. The State was thus committed, both before and since the acquisition of the territory, to this theory of construction. In view of this fact it requires no citation of authorities for the statement that the boundary follows the gradual shifting of State of Missouri v. State of Kansas (213 U.S. 78, 83). follows The line the stream, and that the island, produced by a gradual and natural process in and by the river, belongs to the State of Kansas if it be, as in this case it was, on the Kansas side of the channel. the change of the stream. Judgement of the Court in favour sas. This was the view of the Supreme Court, as expressed by Mr. Justice Holmes in the last lines of his opinion: It follows upon our interpretation that it is unnecessary to consider the evidence as to precisely where the line as surveyed ran from opposite the mouth of the Kansas or Kaw. If the understanding both of the United States and the State had not been of Kan- a wholesale adoption of the river as a boundary, without any niceties, still, as the cession to the river' extended to the center of the stream, it might be argued that even on Missouri's evidence there probably was a strip ceded at the place in dispute. But from the view that we take such refinements are out of place. The act has to be read with reference to extrinsic facts because it fixes no limits except by implication. We are of opinion that the limit implied is a point in the middle of the Missouri opposite the middle of the mouth of the Kaw.1 66. State of Washington v. State of Oregon. The decree of the Supreme Court in the first case of Washington v. Oregon (211 U.S. 127), decided in 1908, was unsatisfactory to the former State, but inasmuch as the Supreme Court is, as the name implies, supreme, having no judicial tribunal above it to which it is inferior, the decision is to be taken as final. This does not mean, however, that the decision may not be questioned in subsequent cases involving the same or similar principles, or that a re-examination might not result in a different decision. But the judgement of the court in a particular case is decisive of the rights of the parties, unless at their instance it is modified or reversed, and in Petition a subsequent proceeding to which they are parties. The court may be petitioned by Washington for for a rehearing, and in the present case the State of Washington, availing itself of this right of the defeated litigant, asked a rehearing upon the following points, as stated in the official report : a re hearing. I. The court erred in finding and holding that the present ship channel at the entrance to the Columbia River was the old south channel. II. The court erred in finding and holding that the former north channel still subsisted to the northward of Sand Island, and that the boundary between the States of Washington and Oregon was to the northward of said Sand Island. III. The court erred in not finding and holding that the present single channel at the entrance to the mouth of the Columbia River was as much the former north channel of the entrance to said river as it was the former south channel, and in not giving effect as a matter of law to the said combined single channel as the boundary between the two States. IV. The court erred in finding and holding that the Columbia River inside the entrance was not divided by islands and in finding and holding that the testimony failed to show anything calling for consideration in respect to the ownership of the said islands.2 Counsel for the State of Washington appeared and argued for a reconsideration of the case for the reasons specified, and counsel for Oregon appeared in support of the previous decision and argued against the allowance of the petition. The court, State of Missouri v. State of Kansas (213 U.S. 78, 85). necessarily forced to reconsider the case in fact, although perhaps not in form, affirmed its decision, denied the petition for a rehearing, which would in effect have been a retrial of the case, and ventured to suggest, as the controversy between the two States was acute, that the consent of the Congress of the United States be requested to enable the States of Washington and Oregon to enter into an agreement or compact, by the terms of which the boundary in dispute should be adjusted to their mutual convenience and satisfaction. ment of decision. Mr. Justice Brewer delivered the opinion of the court upon the petition for Judgea rehearing of the case of Washington v. Oregon (214 U.S. 205), decided in 1909, the Court and as he had delivered the opinion of the court in the previous phase of the question, re-affirmhe was especially qualified to do so. It is unnecessary to state what has been said ing the on so many occasions, that the court approached the case upon rehearing anxious not merely to see but to do justice in the premises, especially observable in its attitude toward suits to which States are parties, and its statements concerning them and their rights. The present was no exception, a fact thus stated by Mr. Justice Brewer after recounting the antecedents of the case: On examination of that petition we entered an order directing that the parties have leave to file briefs upon the questions. They have done so, and we have re-examined the case with great care.1 Of the four points for rehearing, Mr. Justice Brewer dealt with two in his opinion, inasmuch as the two cover the ground of the four. The first, as stated by Mr. Justice Brewer, was 'whether the boundary near the mouth of the Columbia River was and is the channel north of Sand Island'. On this point the learned Justice stated for the court: We held that it was, and with that conclusion we are still satisfied so satisfied, indeed, that the court did not find it necessary to repeat the reasoning by which the conclusion was reached.2 Mr. Justice Brewer, however, referred to the very interesting case of Missouri v. Kentucky (11 Wallace, 395, 411), decided in 1870, with which the reader is familiar, ‘as much in point'. The Mississippi River is the boundary between these States, as it was the boundary by the treaty of 1763 between France, Spain, and England, and by the treaty of 1783 between Great Britain and the United States; and at the time of the admission of Missouri as a State of the Union in 1820, the main channel of the Mississippi had been, at least to that period, west of a tract of land called Wolf Island, whose ownership was claimed by each State. Since the admission of Missouri, the Mississippi had veered to the east, so that the main channel of the stream was to the east of the island instead of to the west thereof. Notwithstanding the change of channel, Mr. Justice Davis said for a unanimous court: It follows, therefore, that if Wolf Island in 1763, or in 1829, 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 parties to this controversy is not altered by it, for the channel which the river abandoned remains, as before, the boundary between the States and the island does not, in consequence of this action of the water, change its owner. State of Washington v. State of Oregon (214 U.S. 205, 214).. Ibid. (214 U.S. 205, 214). |