State of Nebraska v. State of Lowa

• Citation: 36 L.Ed. 186,143 U.S. 359,12 S.Ct. 396
• Parties: STATE OF NEBRASKA v. STATE OF LOWA
• Decision Date: 29 February 1892
• Court: United States Supreme Court

143 U.S. 359

12 S.Ct. 396

36 L.Ed. 186

STATE OF NEBRASKA v. STATE OF LOWA.

February 29, 1892.

J. M. Woolworth and C. J. Greene, for complainant.

J. Y. Stone, J. J. Stewart, and Smith McPherson, for defendant.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

It is settled law that when grants of land border on running water, and the banks are changed by that grandual process known as 'accretion,' the riparian owner's boundary line still remains the stream, although, during the years, by this accretion, the actual area of his possessions may vary. In New Orleans v. U. S., 10 Pet. 662, 717, this court said: 'The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold be the same boundary, including the accumulated soil. No other fule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain.' See, also, Jones v. Soulard, 24 How. 41; Banks v. Ogden, 2 Wall. 57; Saulet v. Shepherd, 4 Wall. 502; St. Clair v. Lovingston, 23 Wall. 46; Jefferis v. Land Co., 134 U. S. 178, 10 Sup. Ct. Rep. 518.

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 center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, 'avulsion.' In Gould, Waters, § 159, it is said: 'But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates.' 2 Bl. Comm. 262; Ang. Water-Courses, § 60; Trustees v. Dickinson, 9 Cush. 544; Buttenuth v. Bridge Co., 123 Ill. 535, 17 N. E. Rep. 439; Hagan v. Campbell, 8 Port. (Ala.) 9; Murry v. Sermon, 1 Hawks, 56.

These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between states or nations are, by prescription or treaty, found in running water. Accretion, no matter to which side it adds ground, leaves the boundary still the center of the channel. Avulsion has no effect on boundary, but leaves it in the center of the old channel. In volume 8, Op. Attys. Gen. U. S. 175, 177, this matter received exhaustive consideration. A dispute arose between our government and Mexico in consequence of changes in the Rio Bravo. The matter having been referred to Attorney General Cushing, he replied at length. We quote largely from that opinion. After stating the case, he proceeds:

'With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other, that is by the gradual, and, as it were, insensible accession or abstraction of mere particles,—the river as it runs continues to be the boundary. One country may, in process of time, lose a little of its territory, and the other gain a little, but the territorial relations cannot be reversed by such imperceptible mutations in the course of the river. The general aspect of things remains unchanged. And the convenience of allowing the river to retain its previous function, notwithstanding such insensible changes in its course, or in either of its banks, outweighs the inconveniences, even to the injured party, involved in a detriment, which, happening gradually, is inappreciable in the successive moments of its progression.

'But, on the other hand, if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation through whose territory the river thus breaks its way suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the maiddle of the deserted river-bed. For, in truth, just as a stone piller constitutes a boundary, not because it is a stone, but because of the place in which is stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary.

'Such is the received rule of the law of nations on this point, as laid down by all the writers of authority. See, ex. gr., Puffend, Jus. Nat. lib. iv, cap. 7, s. ii; Gundling, Jus. Nat. p. 248, Wolff, Jus. Gentium, ss. 106-109; Vattel, Droit des Gens, liv. i, c. 22, s. 268, 270; Stypmanni, Jus. Marit, cap. v, n. 476-552; Rayneval, Droit de la Nature, tom. i, p. 307; Merlin, Repertoire, ss. voc. alluv.'

Further reference is made in the opinion to the following authorities:

'Don Antonio Riquelme states the doctrine as follows:

"When a river changes its course, directing its currents through the territory of one of the two coterminous states, the bed which it leaves dry remains the property of the state (or states) to which the river belonged, that being retained as the limit between the two nations, and the river enters so far into the exclusive dominion of the nation through whose territory it takes the new course. Nations must, of necessity, submit their rights to these great alterations which nature predisposes and consummates. * * * But when the change is not total, but progressive only,—that is to say, when the river does not abandon either state, but only gradually shifts its course by accretions, then it continues still to be the boundary, and the augmentation of territory which one country gains at the expense of the other is to be held by it as a new acquisition of property.' Derecho Internacional, tom. i, p. 83.

'Don Andres Bello and Don Jose Maria de Pando both enunciate the doctrine in exactly the same words, namely:

"When a river or lake divides two territories, whether it belong in common to the coterminous riparian states, or they possess it by halves, or one of them occupies it exclusively, the rights which either has in the lake or river do not undergo any change by reason of alluvion. The lands insensibly invaded by the water are lost by one of the riparian states, and those which the water abandons on the opposite bank increase the domain of the other state. But if, by any natural accident, the water which separated the two states enters of a sudden into the territory of the other, it will thenceforth belong to the state whose soil it occupies, and the land, including the abandoned river channel or bed, will incur no change of master.' Bello, Derecho International, p. 38; Pando, Derecho International, p. 99.

'Almeda refers to the same point briefly, but in decisive terms. He says:

"As the river belongs to the two nations, so, also, the river-bed, if by chance it become dry, is divided between them as proprietors. When the river changes its course, throwing itself on one of two coterminous states, it then comes to belong to the state through whose territory it runs, all community of right in it so far ceasing.' Derecho Publico, tom. i, p. 199.

'Leaving authorities of this class, then, let us come to those which discuss the question in its relation to private rights, and as a doctrine of municipal jurisprudence.

'The doctrine is transmitted to us from the laws of Rome. Just. Inst. lib. ii, tit. i, ss. 20-24; Dig. lib. xii, tit. i, 1, 7. See J. Voet ad Pandect. tom. i, pp. 606, 607; Heinec. Recit. lib. ii, tit. 2, ss. 358-369; Struvii Syntag. ex. 41, cc. 33-35; Bowyers' Civil Law, c. 14.

'Don Alfonso transferred it from the civil law to the Partidas. Partida iii, tit. 28, 1. 31. Thus it came to be, as it still remains, an established element of the laws of Spain and of Mexico. Alvarez, Instituciones, lib. ii, tit. i, s. 6; Asso, Instituciones, p. 101; Gomez de la Serna, Elementos, lib. ii, tit. 4, sec. 3, no. 2; Escriche, Dic. s. vocc. accession natural, aluvion, avulsion; Febrero Mexicano, tom. 1, p. 161; Sala Mexicano, (Ed. 1845,) tom. ii, p. 62.

'The same doctrine, starting from the same point of departure, made its way through the channel of Bracton, into the laws of England, and thence to the United States. Bracton de Legg. Angliae, lib. 2, cap. 2, fol. 9; 2 Bl. Comm. p. 262; Wool. Waters, p. 34; Ang. Water-Courses, c. 2; Lynch v. Allen, 4 Dev. & B. 62; Murry v. Sermon, 1 Hawks, p. 56; King v. Yarborough, 3 Barn. & C. p. 91; Id., 2 Bligh, (N. S.) p. 147.

'Such, beyond all possible controversy, is the public law of modern Europe and America; and such, also, is the municipal law both of the Mexican republic and the United States.'

Vattel states the rule thus at page 121, (book 1, c. 22, § 268:) 'If a territory which terminates on a river has no other boundary than that river, it is one of those territories that have natural or indeterminate bounds, (territoria arcifinia,) and it enjoys the right of alluvion; that is to say, every gradual increase of soil, every additon which the current of the river may make to its bank on that side, is an addition to that territory, stands in the same predicament with it,...