State of Indiana v. State of Kentucky
| Decision Date | 19 May 1890 |
| Citation | 10 S.Ct. 1051,136 U.S. 479,34 L.Ed. 329 |
| Parties | STATE OF INDIANA v. STATE OF KENTUCKY |
| Court | U.S. Supreme Court |
[Statement of Case from pages 479-481 intentionally omitted] J. E. McDonald, M. M. Butler, and A. H. Snow, for complainant.
[Argument of Counsel from pages 482-502 intentionally omitted]
Proctor Knott and P. W. Hardin, for defendant.
This is a controversy between the state of Indiana and the state of Kentucky, growing out of their respective claims to the possession of, and jurisdiction over, a tract of land nearly five miles in length and over half a mile in width, embracing about 2,000 acres, lying on what is now the north side of the Ohio river. Kentucky alleges that when she became a state, on the 1st of June, 1792, this tract was an island in the Ohio river, and was thus within her boundaries, which had been prescribed by the act of Virginia creating the district of Kentucky. The territory assigned to her was bounded on the north by the territory ceded by Virginia to the United States. The tract in controversy was then, and has ever since been, called 'Green River Island.' Kentucky founds her claim to its possession, and to jurisdiction over it, upon the alleged ground that at that time the River Ohio ran north of it, and her boundaries extended to low-water mark on the north side of the river, also upon her long undisturbed possession of the premises, and the recognition of her rights by the legislation of Indiana. Indiana rests her claim, also, upon the boundaries assigned to her when she was admitted into the Union, on the 11th of December, 1816, of which the southern line was designated 'as the River Ohio from the mouth of the Great Miami river to the mouth of the Wabash.' This boundary, as she alleges, embraces the island in question; she contending that the river then ran south of it, and that a mere bayou separated it from the main-land on the north.
The territory lying north and west of the Ohio, embracing the state of Indiana, as well as the territory lying south of that river, embracing the state of Kentucky, was previous to 1776, and down to the cession of the same to the United States, held by the state of Virginia. Indeed, that commonwealth claimed that all the territory lying north of the Ohio river and west of the Alleghanies, and extending to the Mississippi, was within her chartered limits. As stated by Chief Justice MARSHALL in Handly's Lessee v. Anthony, 5 Wheat.
374, 376, at an early period of the Revolutionary 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 threat tened its existence.' To remove this cause of disturbance, congress, in September, 1780, 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.' The commonwealth of Virginia yielded to this recommendation; and on the 20th of December, 1783, an act was passed by her legislature authorizing her delegates in congress to convey to the United States all her right, title, and claim, as well of soil as of jurisdiction, 'to the territory or tract of country within the limits of the Virginia charter situate, lying, and beng to the northwest of the River Ohio,' subject to certain conditions, among which was that the territory should be laid out and formed into states containing a suitable extent of territory, not less than 100 nor more than 150 miles square, or as near thereto as the circumstances would admit, and that the states so formed should be distinct, republican states, and admitted members of the federal Union, having the same rights, sovereignty, freedom, and independence as the other states. In pursuance of this act the delegates in congress, on the 1st of March, 1784, executed a formal deed ceding to the United States all the right, title, and claim, as well of soil as of jurisdiction, which the commonwealth had to the territory or tract of country within the limits of the Virginia charter, 'situate, lying, and being to the north-west of the River Ohio,' for the uses and purposes, and subject to the conditions, mentioned in the act of the commonwealth. By the act of congress of July 13, 1787, entitled, 'An ordinance for the government of the territory of the United States north-west of the River Ohio,' a modification was made of the terms of the cession of Virginia, to the effect that there should be formed in the ceded territory not less than three
nor more than five states, the fixed and established boundaries of which were designated, and of which the Ohio river was declared to be one.
As thus seen, the territory ceded by the state of Virginia to the United States, out of which the state of Indiana was formed, lay north-west of the Ohio river. The first inquiry, therefore, is as to what line on the river must be deemed the southern boundary of the territory ceded, or, in other words, how far did the jurisdiction of Kentucky extend on the other wise of the river? Early in the history of the state, doubts were raised on this point; and, to quiet them, its legislature, on the 27th of January, 1810 passed the following act declaring the boundaries of certain counties in the commonwealth: 'Whereas, doubts are suggested whether the counties calling for the River Ohio as the boundary line extend to the state line on the north-west side of said river, or whether the margin of the south-east side is the limit of the counties; to explain which, be it enacted by the general assembly, that each county of this commonwealth calling for the River Ohio as the boundary line shall be considered as bounded in that particular by the state line on the north-west side of said river; and the bed of the river and the islands, therefore, shall be within the respective counties holding the main-land opposite thereto, within this state, and the several county tribunals shall hold jurisdiction accordingly.' Statute Law of Kentucky, vol. 1, p. 268.
Upon this question of boundary, we also have, happily, a decision of this court rendered so early as 1820. In Handly's Lessee v. Anthony, 5 Wheat. 374, ejectment was brought to recover land which the plaintiff claimed under a grant from the state of Kentucky, while the defendants held under a grant from the United States; and the title depended upon the question whether the land lay in the state of Kentucky, or in the state of Indiana. It was separated from the main-land of Indiana by a bayou, a small channel, which made out of the Ohio, and entered that river again a few miles below. This bayou was from four to five poles wide, and its bed was
dry during a portion of the year. The court said that the question whether the land lay within the state of Kentucky or of Indiana depended chiefly upon the land law of Virginia, and on the cession of that state to the United States; and, in determining this question, it went into the consideration of the proper construction to be given to the deed of cession, and reached the conclusion that the boundary between the states was at low-water mark on the north-west side of the river. 'In pursuing this inquiry,' said the court, and this territory, according to express stipulation, is to be laid off into independent states. These states, then, are to have the river itself, wherever that may be, for their boundary. This is a natural boundary; and, in establishing it, Virginia must have had in view the convenience of the future population of the country. 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 newlycreated state extends to the river only. The river, however, is its boundary. * * * If, instead of an annual and somewhat irregular rising and falling of the river, it was a daily and almost regular ebbing and flowing of the tide, it would not be doubted that a country bounded by the river would extend to low-water mark. This rule has been established by the common consent of mankind. It is founded on common convenience. Even when a state retains its dominion over a river which constitutes the boundary between itself and another state, it would be extremely inconvenient to extend its dominion over the land on the other side which was left bare by the receding of the water; and this inconvenience is not less where the rising and falling is annual than where it is diurnal. Wherever the river is a boundary between states, it
is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark. When the state of Virginia made the Ohio the boundary of states, she must have intended the great River Ohio, and not a narrow bayou into which its waters occasionally run. All the inconvenience which would resultfrom attaching a narrow strip of country lying on the north-west side of that noble river to the states on its south-eastern side would result from attaching to Kentucky, the state on its south-eastern border, a body of land lying north-west of the real river, and divided from the main-land only by a narrow channel, through the whole of...
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