Handly v. Anthony
| Decision Date | 14 March 1820 |
| Parties | HANDLY'S Lessee v. ANTHONY et al |
| Court | U.S. Supreme Court |
This was an ejectment brought in the Circuit Court of the United States for the District of Kentucky, to recover land which the plaintiff claims under a grant from the State of Kentucky, and which the defendants hold under a grant from the United States, as being part of Indiana. The title depends upon the question whether the lands lie in the State of Kentucky, or in the State of Indiana.
At this place, as appears from the plat and surveyor's certificate, the Ohio turns its course, and runs southward for a considerable distance, and then takes a northern direction, until it approaches within less than three miles, as appears from the plat, of the place where its southern course commences. A small distance above the narrowest part of the neck of land which is thus formed, a channel, or what is commonly termed in that country a bayou, makes out of the Ohio, and enters the same river a small distance below the place where it resumes its westward course. This channel, or bayou, is about nine miles by its meanders, three miles and a half in a straight line, and from four to give poles wide. The circuit made by the river appears to be from fifteen to twenty miles. About mid-way of the channel two branches empty into if from the northwest, between six and seven hundred yards from each other; the one of which runs along the channel at low water, eastward, and the other westward, until they both enter the main river. Between them is ground over which the waters of the Ohio do not pass until the river has risen about ten feet about its lowest state. It rises from forty to fifty feet, and all the testimony proves that this channel is made by the waters of the river, not of the creeks which empty into it. The people who inhabit this peninsula, or island, have always paid taxes to Indiana, voted in Indiana, and been considered as within its jurisdiction, both while it was a Territory, and since it has become a State. The jurisdiction of Kentucky has never been extended over them.
The question whether the lands in controversy lie within the State of Kentucky or of Indiana, depends chiefly on the land law of Virginia, and on the cession made by that State to the United States.
Both Kentucky and Indiana were supposed to be comprehended within the charter of Virginia at the commencement of the war of our revolution. At an early period of that war, the question whether the immense tracts of unsettled country which lay within the charters of particular States, ought to be considered as the property of those States, or as an acquisition made by the arms of all, for the benefit of all, convulsed our confederacy, and threatened its existence. It was probably with a view to this question that Virginia, in 1779, when she opened her land office, prohibited the location or entry of any land 'on the northwest side of the river Ohio.'
In September, 1780, Congress passed a resolution, recommending 'to the several States, having claims to waste and unappropriated lands in the western country, a liberal cession to the United States, of a portion of their respective claims, for the common benefit of the Union.' And in January, 1781, the Commonwealth of Virginia yielded to the United States 'all right, title, and claim, which the said Commonwealth had to the territory northwest of the river Ohio, subject to the conditions annexed to the said act of cession.' One of these conditions is, 'that the ceded territory shall be laid out and formed into States.' Congress accepted this cession, but proposed some small variation in the conditions, which was acceded to; and in 1783 Virginia passed her act of confirmation, giving authority to her members in Congress to execute a deed of conveyance.
It was intended then by Virginia, when she made this cession to the United States, and most probably when she opened her land office, that the great river Ohio should constitute a boundary between the States which might be formed on its opposite banks. This intention ought never to be disregarded in construing this cession.
At the trial, the counsel for the defendants moved the Court to instruct the jury,
1. That the lessor of the plaintiff cannot recover, the land in contest not being at any time subject to the laws of Kentucky, but to those of Indiana.
2. Because the evidence does not show that the land is within the limits of the State of Kentucky.
The Court instructed the jury that, admitting that the western and northwestern boundary of Kentucky included all the islands of the Ohio, and extended to the western and northwestern bank of the Ohio, yet no land could be called an island of that river, unless it was surrounded by the waters of the Ohio at law water mark; and to low water mark only, on the western or northwestern side of the Ohio, did the boundaries of the State of Kentucky extend.
The counsel for the plaintiff excepted to this opinion, and then moved the Court to instruct the jury, that if they found the land in question was covered by the grant to the lessor of the plaintiff, and that it was surrounded by a regular water channel of the Ohio on the northwestern side, and was, at the middle and usual state of the water in the Ohio, embraced and surrounded by the water of the Ohio, flowing in said channel, it was an island, and within the State of Kentucky. But the Court refused to give the instructions aforesaid, but instructed the jury, that if the water did not run through said channel at low water, but left part thereof dry, it was not an island, nor within the State of Kentucky.
To this opinion, also, the counsel for the plaintiff excepted. The jury found a verdict for the defendants, on which the Court rendered judgment; which judgment is now before this Court on a writ of error.
The two exceptions present substantially the same questions to the Court, and may therefore be considered together. They are, whether land is properly denominated an island of the Ohio, unless it be surrounded with the water of the river, when low? and...
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