Ohio v. Kentucky

• Decision Date: 05 March 1973
• Docket Number: No. 27,O,27
• Citation: 410 U.S. 641,35 L.Ed.2d 560,93 S.Ct. 1178
• Parties: State of OHIO, Plaintiff, v. Commonwealth of KENTUCKY. rig
• Court: U.S. Supreme Court

410 U.S. 641

93 S.Ct. 1178

35 L.Ed.2d 560

State of OHIO, Plaintiff,

v Commonwealth of KENTUCKY.

No. 27, Orig.

Argued Jan. 10, 1973.

Decided March 5, 1973.

Syllabus

Ohio sought leave to file an amended bill of complaint in an original action involving a boundary dispute with Kentucky.By the amendment Ohio claimed that the boundary between Ohio and Kentucky was located in the middle of the Ohio River.The motion was referred to the Special Master, who recommended that the motion be denied.Held:

1.In the exercise of its original jurisdiction, this Court is not invariably bound by common-law precedent or by current rules of civil procedure.The requirement of a motion for leave to file a complaint permits the Court to dispose of it at a preliminary stage in an appropriate case, such as where the claim is barred as a matter of law and a hearing on the issues presented 'would only serve to delay adjudication on the merits and needlessly add to the expense that the litigants must bear.'Pp. 644—645.

2.Ohio's long acquiescence in the location of the Ohio-Kentucky line at the northern edge of the Ohio River bars Ohio's present claim that the boundary is at the middle of the river.Pp. 648—652.

Motion for leave to file amended bill of complaint denied.

Joseph M. Howard, Washington, D.C., for plaintiff.

John M. Famularo, Lexington, Ky., for defendant, pro hac vice, by special leave of Court.

Mr. Justice BLACKMUNdelivered the opinion of the Court.

Almost seven years ago, in March 1966, the State of Ohio instituted this original action against the Commonwealth of Kentucky.By its prayer for relief in its proposed bill of complaint, Ohio asked only that the Court declare and establish:

'1.The boundary line between the State of Ohio and the State of Kentucky as being the low water mark on the northerly side of the Ohio River in the year 1792 . . ..

'2.The State of Ohio and the State of Kentucky have equal and concurrent jurisdiction over and on all of the Ohio River from the northerly shore to the southerly shore, except jurisdiction incidental to the sover-eignty of the soil under the river and structures permanently attached thereto.'

In its complaint Ohio alleged:

'4.The State of Ohio was established from the land ceded by legislative act of the Commonwealth of Virginia to the United States on the 1st day of March, 1784, which act is known as the Cession of Virginia.

'5.The State of Kentucky was established by the separation of the District of Kentucky from the jurisdiction of the Commonwealth of Virginia pursuant to that certain act of the Virginia Legislature entitled 'An Act concerning the erection of the district of Kentucky into an independent state,' passed on the 18th day of December, 1789, which act is known as the Virginia-Kentucky Compact.

'6.The northern boundary line of the State of Kentucky was established from the Cession of Virginia and the Virginia-Kentucky Compact as the low water mark on the northerly side of the Ohio River as it existed in the year 1792.'¹

Ohio went on to allege: From 1910 to 1929, the United States erected dams in the Ohio River for navigational purposes.Since 1955, it has been replacing the earlier dams with higher ones.This has caused the waters of the river to rise and permanently inundate various areas of both Ohio and Kentucky.'As a result, the shores or banks of the Ohio River have been moved farther northerly and southerly as the water levels have increased by the dammning of the river.'The north low water mark of 1792'has been obscured by the increased elevation of the water levels.'Kentucky has claimed that the line between the two States is 'along the present northerly shore line of the Ohio River rather than the 1792 northerly low water mark which is located to the south of the present north shore line.'Ohio 'does now and has always claimed . . . that the boundary between it and Kentucky is the 1792 northerly low water mark.'

Leave to file the bill of complaint was granted.384 U.S. 982, 86 S.Ct. 1883, 16 L.Ed.2d 1002(1966).Kentucky by its answer admitted the allegations of the above-quoted numbered paragraphs of Ohio's complaint.The Court then appointed the Honorable Phillip Forman as Special Master in the case.385 U.S. 803, 87 S.Ct. 29, 17 L.Ed.2d 49(1966).

Five years later, in August 1971, Ohio moved for leave to file an amended complaint.By this amendment Ohio would assert that the boundary between it and Kentucky is the middle of the Ohio River, or, only alternatively, is the 1792 low water mark on the northerly shore.We referred the motion to the Special Master.404 U.S. 933, 92 S.Ct. 266, 30 L.Ed.2d 246(1971).He held a hearing and in due course filed his report.406 U.S. 915, 92 S.Ct. 1762, 32 L.Ed.2d 114(1972).The Master recommended that this Court enter its order denying Ohio's petition for leave to amend.His conclusion rested on the ground 'that the proposed amendment, in any view of its factual allegations, fails as a matter of law to state a cause of action.'Report 16.Upon the filing of Ohio's exceptions and Kentucky's reply, we set the matter for argument.409 U.S. 974, 93 S.Ct. 303, 34 L.Ed.2d 238(1972).

I

Accepted procedures for an ordinary case in this posture would probably lead us to conclude that the motion for leave to file should be granted, and the case would then proceed to trial or judgment on the pleadings.This, however, is not an ordinary case.It is one within the original and exclusive jurisdiction of the Court.Const., Art. III, § 2;28 U.S.C. § 1251(a).Procedures governing the exercise of our original jurisdiction are not invariably governed by common-law precedent or by current rules of civil procedure.See United States Supreme Court Rule 9;Rhode Island v. Massachusetts, 14 Pet. 210, 10 L.Ed. 423(1840).Under our rules, the requirement of a motion for leave to file a complaint, and the requirement of a brief in opposition, permit and enable us to dispose of matters at a preliminary stage.See, for example, Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689(1954);California v. Washington, 358 U.S. 64, 79 S.Ct. 116, 3 L.Ed.2d 106(1958);Virginia v. West Virginia, 234 U.S. 117, 121, 34 S.Ct. 889, 891, 58 L.Ed. 1243(1914).Our object in original cases is to have the parties, as promptly as possible, reach and argue the merits of the controversy presented.To this end, where feasible, we dispose of issues that would only serve to delay adjudiction on the merits and needlessly add to the expense that the litigations must bear.

This case is peculiarly susceptible to treatment of that kind.The allegations in Ohio's proposed amendment are not as yet formally controverted by Kentucky.We, therefore, treat the new material as admitted.Kentucky asserts, however, that, even assuming the new allegations to be true, no cause of action is stated, for the subject matter of Ohio's proposed amendment is barred as a matter of law.

II

In Handly's Lessee v. Anthony, 5 Wheat. 374, 5 L.Ed. 113(1820), this Court stated that the boundary between Indiana and Kentucky was the low water mark on the western or northwestern side of the Ohio River.Handly was an action for ejectment brought by a plaintiff claiming under a grant from Kentucky against defendants claiming under a grant 'from the United States, as being part of Indiana.'Id., at 375.The disputed land was a neck south of a channel, or bayou, that had formed north of the main river.When the river was high, the channel filled and cut off the land to the north.When the river was low, the channel was dry in part and the separation did not exist.The resolution of the case turned on whether the land was in Indiana or in Kentucky.Indiana, like Ohio, received its territory from the United States.The Court in Handly observed that the question 'depends chiefly on the land law of Virginia, and on the cession made by that State to the United States,'id., at 376, and concluded that the United States acquired title from Virginia when negotiations during the period from 1781—1784 resulted in Virginia's ceding its lands north and west of the Ohio River to the Federal Government.² Kentucky was received as a State of the Union in 1792 out of territory Virginia purported to retain at the time of the 1784 cession.The Court concluded, on the basis of this history, that Kentucky, through Virginia, extended up to the low water mark on the northern, or far, side of the Ohio River.Mr. Chief Justice Marshall enunciated the following, now familiar, principle:

'When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream.But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only.The river, however, is its boundary.'5 Wheat., at 379.

The rule of the Handly case, as well as its specific application to the Kentucky-Indiana border, has been consistently adhered to in subsequent decisions of this Court.Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329(1890)(despite Indiana's argument, id., at 486—493, 10 S.Ct. 1051, that its boundary was the middle of the river);Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 19 S.Ct. 553, 43 L.Ed. 823(1899);³ Nicoulin v. O'Brien, 248 U.S. 113, 39 S.Ct. 23, 63 L.Ed. 155(1918).It has been explicitly recognized by the Supreme Court of Ohio in Booth v. Shepherd, 8 Ohio St. 243, 247—248(1858), where it was stated with far greater precision than the mere assumption the dissent suggests, post, at 654—655, that:

'The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the...