260 U.S. 606 (1923), 18, Oklahoma v. Texas

Docket Nº:No. 18, Original
Citation:260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428
Party Name:Oklahoma v. Texas
Case Date:January 15, 1923
Court:United States Supreme Court
 
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Page 606

260 U.S. 606 (1923)

43 S.Ct. 221, 67 L.Ed. 428

Oklahoma

v.

Texas

No. 18, Original

United States Supreme Court

Jan. 15, 1923

Argued April 25, 26, 27, 1922

IN EQUITY

Syllabus

1. The boundary line between the States of Texas and Oklahoma along the Red River, as determined by the Treaty of 1819 between the United States and Spain, is along the southerly bank of the stream. P. 625.

2. There is a material difference between taking the bank of a river as a boundary and taking the river itself. P. 626.

Page 607

3. The bank intended by the treaty is the water-washed and relatively permanent elevation or acclivity at the outer line of the river bed, which separates the bed from the adjacent upland, whether valley or hill, and serves to confine the waters within the bed and preserve the course of the river. P. 631.

4. The boundary intended is on and along this bank at the average or mean level attained by the waters in the periods when they reach and wash the bank without overflowing it. P. 632.

5. The bed includes all of the area which is kept practically bare of vegetation by the wash of the waters of the river from year to year in their onward course, although parts of it are left dry for years at a time, but excludes lateral valleys having the characteristics of relatively fast land and usually covered by upland vegetation, although temporarily overflowed in exceptional instances when the river is at flood. P. 632.

6. The provisions of the Treaty of 1819, supra, that

the use of the waters, and the navigation of the Sabine to the sea, and of the said Rivers Roxo [Red] and Arkansas, throughout the extent of said boundary, on their respective banks, shall be common to the respective inhabitants of both nations,

doubtless reserve and secure right of access to the water at all stages for enjoyment of the permitted use (the part of Red River now in question, however, is not navigable), but they afford no reason for regarding the boundary as below the bank or within the riverbed. P. 632.

7. Applying the treaty to the physical situation here revealed by the evidence, the Court finds that the boundary should be located along the southerly of the two water-worn banks designated as the "cut banks," which separate almost uniformly the sand bed of the river from land in its valley, on either side, overflowed at times, but having the physical characteristics of upland, and which has heretofore been dealt with as such by the United States and Texas, respectively. P. 633.

8. The doctrine of erosion, accretion, and avulsion applies to boundary rivers, including the Red River, which changes rapidly and materially in flood. P. 636. Nebraska v. Iowa, 143 U.S. 359.

9. The party asserting that the course has changed by avulsion since the treaty became effective, in 1821, has the burden of proving it. P. 638.

10. Evidence of avulsive change held insufficient in some instances and sufficient in others. P. 638.

Page 608

In this suit, the Court first decided that the boundary between Oklahoma and Texas is along the south bank of the Red River (256 U.S. 70) and made an interlocutory decree for the taking of evidence and for a further hearing to determine what constitutes the south bank and the proper location of the boundary line along it (256 U.S. 608). These matters are now disposed of by the present opinion. *

Page 623

VANDEVANTER, J., lead opinion

MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

A principal object of this suit, originally brought in this Court, is to settle a controversy over that part of the boundary between the States of Texas and Oklahoma which follows the course of the Red River from the 100th degree of west longitude to the easterly limit of Oklahoma. This boundary is part of an old one between the territory of the United States and the Spanish possessions to the southwest which was agreed on and defined in the third article of the Treaty of 1819. 8 Stat. 252. As to line in question, that definition is still controlling; it has been reaffirmed on several occasions, but never changed. The controversy arises chiefly out of diverging views of what the definition means and how it is to be applied. The full treaty provision reads as follows:

Article 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico at the mouth of the River Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Nachitoches, or Red River; then following the course of the Rio Roxo westward, to the degree of longitude, 100 west from London and 23 from Washington; then, crossing the said Red River, and running thence, by a line due north, to the River Arkansas; thence, following the course of the southern bank of the Arkansas, to its source, in latitude 42 north, and thence, by that parallel of latitude, to the South Sea. The whole being as laid down in Melish's map of the United States, published at Philadelphia, improved to the first of January, 1818. But, if the source of the Arkansas River shall be found to fall north or south of latitude 42, then the line shall run from the said source due south or north, as the case may be, till it meets the

Page 624

said parallel of latitude 42, and thence, along the said parallel, to the South Sea: all the islands in the Sabine, and the said Red and Arkansas Rivers, throughout the course thus described, to belong to the United States, but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.

The two high contracting parties agree to cede and renounce all their rights, claims, and pretensions, to the territories described by the said line; that is to say: the United States hereby cede to his Catholic Majesty, and renounce forever, all the rights, claims, and pretensions to the territories lying west and south of the above-described line, and in like manner, his Catholic Majesty cedes to the said United States, all his rights, claims, and pretensions, to any territories east and north of the said line, and for himself, his heirs, and successors, renounces all claim to the said territories forever.

In the early stages of the suit, the chief point of difference between the parties was that Oklahoma and the United States were claiming the south bank of the river as the boundary, while Texas was contending for the thread or middle of the stream. That difference was disposed of in an opinion delivered April 11, 1921, wherein this Court recognized that, in the earlier case of United States v. Texas, 162 U.S. 1, it had been adjudged that the boundary, as fixed by the treaty, is along the south bank. 256 U.S. 70. The purport of that opinion was embodied in an interlocutory decree of June 1, 1921, which also made provision for taking additional evidence and for a further hearing to determine what constitutes the south bank, where along that bank the boundary is, and the proper mode of locating it on the ground -- these being matters on which the parties were unable to agree. 256

Page 625

U.S. 608. Additional evidence filling several printed volumes was afterwards taken, and the further hearing was had near the close of the last term.

On the questions of what constitutes the south bank, and where along the same the boundary is, the parties are still far apart. Oklahoma and the United States contend that the bank and boundary are at the foot of a range of hills or bluffs which fringes the south side of the valley through which the river runs, while Texas insists that they are "at low water mark" on that side of the river -- meaning as is said in the brief, "the edge of the water at that usual and ordinary stage in which it is found during most of the year." This is now the principal issue, and to it the evidence and arguments are largely directed. Its solution involves a consideration of what was intended by the treaty provision and of the physical situation to which the provision is to be applied.

The treaty provision names three rivers -- the Sabine, the Red, and the Arkansas. It expressly locates the boundary along the "western bank" of the Sabine and the "southern bank" of the Arkansas, and describes the intermediate section as leaving the Sabine at a designated point and running due north until it "strikes" the Red, then "following the course" of the Red westward to the 100th meridian, then "crossing" the Red and running due north to the Arkansas. Thus, while the boundary is in exact words fixed along a designated bank of the Sabine and the Arkansas, it is not expressly so fixed as respects the Red. This difference in terms, if not otherwise overcome, might well be taken as signifying a difference in purpose. But that it has no such signification is otherwise made [43 S.Ct. 223] plain. We say this first because the direction for "crossing" the Red at the 100th meridian on a line running north strongly implies that the preceding course is somewhere on the southerly side of the river; secondly, because the declaration that

the use of the waters, and

Page 626

the navigation of the Sabine to the sea, and of the said rivers Roxo [Red] and Arkansas, throughout the extent of the said boundary, on their respective banks

shall be common to the respective inhabitants of both nations distinctly shows that a bank boundary is intended along the Red, just as along the Sabine and the Arkansas, and, thirdly, because available historical data relating to the negotiations which culminated in...

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