State of Vermont v. State of New Hampshire

• Decision Date: 29 May 1933
• Docket Number: O,No. 2,2
• Citation: 77 L.Ed. 1392,53 S.Ct. 708,289 U.S. 593
• Parties: STATE OF VERMONT v. STATE OF NEW HAMPSHIRE. riginal
• Court: U.S. Supreme Court

289 U.S. 593

53 S.Ct. 708

77 L.Ed. 1392

STATE OF VERMONT

v STATE OF NEW HAMPSHIRE.

No. 2, Original.

Argued April 20, 21, 1933.

Decided May 29, 1933.

[Syllabus from pages 593-595 intentionally omitted] Messrs. Charles E. Hughes, Jr., of New York City, James P. Tuttle, of Manchester, N.H., and J. A. Matthews, of Newark, N.J., for the State of New Hampshire.

Messrs. Warren R. Austin, of Burlington, Vt., and John G. Sargent, of Ludlow, Vt., for the State of Vermont.

Mr. Justice STONE delivered the opinion of the Court.

This is an original suit, brought by the state of Vermont December 8, 1915, for the determination of the boundary line between that state and the state of New Hampshire. By the amended bill of complaint Vermont alleged that the boundary is 'the thread of the channel' of the Connecticut River for its entire course, except for that part from the northerly limits of the town of Vernon, Vt., south to the Massachusetts line where it 'is the west bank of Connecticut River at low-water mark.' In the original bill of complaint there was an alternative claim that, if this court should be of the opinion that the boundary is not the thread, but is 'the west bank of the Connecticut River,' then, 'such line is the westerly edge of the waters of the Connecticut River at its average and mean stage during the entire year without reference to the extraordinary freshets or extreme droughts.' New Hampshire, by its amended answer, asserts that the boundary is 'at the top or westerly margin of the westerly bank of the Connecticut River and the east branch thereof.'

Vermont's claim of a boundary at the thread of the channel was based upon the following propositions: Township grants made by the Governor of the province of New Hampshire, by royal authority, between 1741 and 1764, on the west side of the Connecticut River in the territory now Vermont, were bounded by the river, which was nontidal, and carried title to its thread by virtue of the common law of England; an order of the King-in-Council of July 20, 1764, fixing the boundary between the provinces of New York and New Hampshire at the 'western banks of the River Connecticut,' thus including the territory now Vermont in the province of New York, was nullified by the successful revolution of the inhabitants of the New Hampshire grants; hence the eastern boundary of the revolutionary state of Vermont was the same as the eastern limits of the township grants, namely, the thread of the river; Vermont was admitted to the Union as a sovereign independent state with her boundaries those established by her revolution. Her eastern boundary was therefore the thread of the Connecticut River.

The special master sustained all these contentions except the last one. With respect to it he found that Vermont had, by resolution of her Legislature of February 22, 1782, relinquished any claim to jurisdiction east of the west side of the river, at low-water mark, in conform- ity to a Congressional resolution of August 20, 21, 1781, prescribing terms upon which Congress would consider the admission of Vermont to the Union. In addition to the findings already indicated, the special master also concluded that the order of the King-in-Council of July 20, 1764, even if not rendered ineffective by the revolution of Vermont, was not intended to recognize any rights of New Hampshire west of the west side of the river at low water; that Vermont's claim of a boundary at the thread of the river would be defeated by her acquiescence in New Hampshire's exercise of dominion over the waters of the river even if it had not been relinquished by acceptance of the resolutions of Congress of August, 1781, and finally that, by practical construction of the two states by long usage and acquiescence, the boundary of Vermont was fixed at the low-water mark on the west side of the river.

Accordingly the special master found that:

'The eastern boundary of the State of Vermont upon her admission to the Union was that stated in the resolutions of Congress of August 20, and 21, 1781, and in the resolution of the Vermont legislature of February 22, 1782, and this I find to be the low-water mark on the west side of the Connecticut River.'

The line of low-water mark thus specified was further defined as 'the point to which the river recedes at its lowest stage without reference to extreme droughts,' and no exception has been taken to this definition.

Vermont's claim of a boundary to the thread of the channel is no longer before us as New Hampshire alone has filed exceptions to the report of the special master. Those exceptions narrow the issue to the single question whether the boundary line is at low-water mark on the west side of the river as the master found or at the top or westerly margin of the bank as contended by New Hampshire; in other words, whether New Hampshire acquired and retained jurisdicti n of a narrow ribbon of land of varying width on the west side of the Connecticut River, extending along the entire eastern boundary of Vermont, which at some stages of the river is submerged and at others left uncovered by the water. In support of this contention New Hampshire relies on the order of the King-in-Council of 1764, which it is argued established the eastern boundary of Vermont at the west bank of the Connecticut River, not at low-water mark, but at the top of the bank or the line upon it where vegetation ceases.

The Order-in-Council must be considered in the light of the colonial history out of which it grew, which is elaborately reviewed in the special master's report. The royal province of New Hampshire was established on September 18, 1679, by commission of Charles II, establishing the president and council of that province. On July 3, 1741, Benning Went-worth was appointed Governor by George II. His commission, like that later issued to him by George III in 1760, defined the western boundary of the province only by the provision that its south line and its north line should extend westward 'till it meets with our other governments.' The government on the west of New Hampshire was the province of New York, originating in the grant of June 29, 1674, by Charles II to his brother James, Duke of York, which included 'all the lands from the west side of Connecticut river to the east side of Delaware Bay.' This grant merged in the crown when James, Duke of York, became King James II in 1685.

Despite the language of the New York grant fixing its eastern boundary as the west side of the Connecticut River, that province did not assert jurisdiction as far east as the Connecticut River at any point south of the New Hampshire line. The western boundary of the province of Connecticut was fixed about 1684 with the acquiescence of New York as a line, approximately north and south, twenty miles east of the Hudson River, and before 1750 Massachusetts had settled westerly to about the same line and New York had made no attempt to disturb those settlements.

Governor Wentworth, construing his commission as extending the province of New Hampshire westwardly at least to this line east of the Hudson River, acting under authority of a royal commission, made, from about 1752 to 1764, numerous grants of townships in the territory west of the Connecticut River, now a part of Vermont. Each of these grants comprised a territory six miles square and conferred on the inhabitants authority to organize town governments. Twenty-three of the towns were adjacent to the Connecticut River, and with the exception of Vernon, which extended across the river at the southeastern corner of the present state of Vermont, the boundary line of these townships was described expressly or by implication as extending to or beginning at a tree or other designated monument standing on the westerly side or the west bank of the river and extending 'thence up the river' or 'thence down the river.' At the time of these grants the river was extensively used by the inhabitants on both sides for hunting and fishing.

The special master, upon an exhaustive examination of the evidence and the law, concluded that these boundaries were on the river and, with the exception of the town of Vernon, carried the boundary of the townships to the thread of the river. Although this conclusion is challenged by the exceptions filed in behalf of New Hampshire, it is not denied that the boundary in the description of the New Hampshire township grants carried at least to the river.

In 1749, before the township grants before us were made, a controversy had arisen between the Royal Governors of New Hampshire and New York over their respective authority to make grants in the territory between the Hudson and Connecticut Rivers. Although sus- pended during the French and Indian wars, the conflict was renewed at the end of 1763 and in 1764 was submitted to the King-in-Council for determination. New York a serted that, under the grant to the Duke of York, that province included 'all the lands from the west side of Connecticut River.' New Hampshire claimed that its boundary extended to the line approximately twenty miles east of the Hudson corresponding roughly to a prolongation northerly of the westerly boundaries of Massachusetts and Connecticut. The controversy was referred to the Lords of Trade, who made their report of July 10, 1764. Their recommendation was approved by the order of the King-in-Council, on July 20, 1764, which fixed the boundary in the following language:

'His Majesty, * * * doth accordingly, hereby order and declare the western banks of the River Connecticut, from where it enters the Province of the Massachusetts Bay, as far north as the forty-fifth degree of northern latitude, to be the boundary line between the said two Provinces of New Hampshire and New York.'

As it is conceded that the King-in-Council had authority to fix the boundary between the two royal provinces, the meaning and effect of the order of 1764 must first be...