Illinois v. Kentucky

• Decision Date: 28 May 1991
• Docket Number: No. 106,O,106
• Citation: 111 S.Ct. 1877,500 U.S. 380,114 L.Ed.2d 420
• Parties: State of ILLINOIS, Plaintiff, v. Commonwealth of KENTUCKY. rig
• Court: U.S. Supreme Court

500 U.S. 380

111 S.Ct. 1877

114 L.Ed.2d 420

State of ILLINOIS, Plaintiff,

v Commonwealth of KENTUCKY.

No. 106, Orig.

Argued March 18, 1991.

Decided May 28, 1991.

Syllabus

In a dispute between Illinois and Kentucky over their common boundary, the Special Master has recommended that this Court determine the boundary to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792," rather than the river's northerly low-water mark "as it exists from time to time"; find that the record does not support Kentucky's affirmative defenses of acquiescence and laches and its defenses based on "principles of riparian boundaries, including accretion, erosion and avulsion"; find that the construction of dams on the river has caused the present low-water mark on the Illinois side to be farther north than it was in 1792; and order the two States' common boundary to be determined as nearly as the 1792 line can now be ascertained. Kentucky has filed exceptions.

Held:

1. The boundary is the line of the low-water mark as it was in 1792. Pp. 383-388.

(a) This is the rule that was used to determine the boundary between Kentucky and its neighboring States of Ohio, Ohio v. Kentucky, 444 U.S. 335, 100 S.Ct. 588, 62 L.Ed.2d 530, and Indiana, Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329; and the history and precedent that supplied the rule in those cases govern here. Pp. 383-384.

(b) Kentucky has not proved that, under the doctrine of prescription and acquiescence, the boundary is a transient low-water mark. The record fails to support Kentucky's claim of a long and continuous possession of, and assertion of sovereignty over, land within the territory delimited by the transient mark. Kentucky has imposed property taxes on only 3 of the 15 structures extending into the territory in question. And evidence of its ad valorem taxation of barges and other watercraft traveling on the river fails to speak directly to the boundary issue, since it is undisputed that the sailing line on the river is within Kentucky's boundary and jurisdiction, and since barges and watercraft would rarely venture near the disputed territory. Moreover, both the Legislative Research Commission of the Kentucky General Assembly and the Commonwealth's Attorney General have made references to the 1792 low-water mark as the boundary. Nor does the record support the claim of Illinois' acquiescence. The descriptions of the boundary as following "along [the Ohio River's] north-western shore" in earlier versions of the Illinois Constitution are verbatim recitations of the congressional language describing Illinois' boundary in that State's Enabling Act, and the Special Master correctly reasoned that Congress intended Illinois' southern boundary to be the same as that granted Ohio and Indiana when they were formed. In addition, the Illinois Supreme Court took an even less hospitable view toward Kentucky's claim than the State Constitution when it adopted, and used for almost 50 years, a theory that would have ratchetted the boundary line forever southward toward the river's deepest point. Pp. 384-388.

(c) Kentucky's other affirmative defenses are likewise unavailing. The laches defense is generally inapplicable against a State. And the defenses based on the "principles of riparian boundaries" require no extended consideration, for Kentucky concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Pp. 388-389.

2. Kentucky's exception to the recommended finding that the construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792, is sustained. Any question about the relative locations of the 1792 line and today's low-water mark is premature and should be determined after the Special Master has made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line. P. 389.

Exceptions to Special Master's Report sustained in part and overruled in part, Report adopted in part, and case remanded.

SOUTER, J., delivered the opinion for a unanimous Court.

Rickie Leon Pearson, Frankfort, Ky., for defendant.

John Brunsman, Springfield, Ill., for plaintiff.

Justice SOUTER delivered the opinion of the Court.

In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of Kentucky with the State of Illinois. We hold it to be the line of the low-water mark along the river's northerly shore as it was in 1792.

I

In July 1986, Illinois sought leave to file a bill of complaint against Kentucky, invoking this Court's original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U.S. Const., Art. III, § 2. Illinois asked the Court to declare "the boundary line . . . to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792," Report of Special Master 1-2, and to enjoin Kentucky "from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court," id., at 2. We granted leave to file the bill of complaint, 479 U.S. 879, 107 S.Ct. 265, 93 L.Ed.2d 243 (1986), and appointed the Honorable Robert Van Pelt as Special Master.^**

In its answer to the complaint, Kentucky denied that the boundary was the 1792 line and claimed it to be the river's northerly low-water mark "as it exists from time to time." The answer raised the "affirmative defenses" of acquiescence and laches, and invoked certain "principles of riparian boundaries." Report of Special Master 2.

The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January 1990, were granted additional time to develop the evidentiary record on Kentucky's claim of prescription and acquiescence. After receiving this evidence in April 1990, the Special Master submitted a report to this Court, which was ordered filed. 498 U.S. ----, 111 S.Ct. 31, 112 L.Ed.2d 9 (1990).

The Special Master recommended that we (1) determine the boundary between Illinois and Kentucky to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; (2) find that the record fails to "sup- port the Commonwealth of Kentucky's affirmative defenses"; (3) find that the construction of dams on the Ohio River has caused "the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792"; and (4) order the two States' common boundary to be determined, "as nearly as [the 1792 line] can now be ascertained, . . . either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions." Report of Special Master 48-49.

Kentucky has filed exceptions to the Special Master's report. While Kentucky challenges many of the factual findings, its primary dispute is with the conclusion that Kentucky has failed to prove its claim, styled as an affirmative defense, that under the doctrine of prescription and acquiescence the boundary is the low-water mark as it may be from to time.

II

A.

We agree in large measure with the Special Master's report. The threshold issue presented in this case was resolved in Ohio v. Kentucky, 444 U.S. 335, 100 S.Ct. 588, 62 L.Ed.2d 530 (1980), in which we held that Kentucky's boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia's 1784 cession to the United States of the lands "northwest of the river Ohio" and Kentucky's succession to Virginia's northwest boundary upon reaching statehood in 1792. Id., at 337-338, 100 S.Ct., at 589-590. We relied on the prior opinion in Indiana v. Kentucky, 136 U.S. 479, 518-519, 10 S.Ct. 1051, 1056-1057, 34 L.Ed. 329 (1890), in which Justice Field, for a unanimous Court, reviewed this history and held that Kentucky's boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River "when Kentucky became a State." Ibid. The same history and precedent that sup- plied the general rule for determining the boundary separating Kentucky from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of Kentucky's historical boundary on that river with Illinois.

Kentucky has, indeed, conceded that "if this case were before the Court simply as a matter of law, Ohio v. Kentucky . . . would be controlling precedent." Exceptions of Commonwealth of Kentucky 9 (emphasis in original). Kentucky's exceptions assume, rather, that the case does not turn on the issue of law decided in Ohio v. Kentucky, but on the "factual issue of acquiescence which Kentucky has raised as an affirmative defense on the question of its boundary with Illinois." Exceptions of Commonwealth of Kentucky 9-10. Kentucky contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time.

Although Kentucky has styled its acquiescence claim an affirmative defense, this "defense," if successfully proved, would not only counter Illinois' boundary claim but also establish Kentucky's own position. To do this on a theory of prescription and acquiescence, Kentucky would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-water mark. Longstandi...