State of Oklahoma v. State of Texas United States

Citation67 L.Ed. 428,260 U.S. 606,43 S.Ct. 221
Decision Date15 January 1923
Docket NumberNo. 18,18
PartiesSTATE OF OKLAHOMA v. STATE OF TEXAS (UNITED STATES, Intervener)
CourtUnited States Supreme Court

[Syllabus from pages 606-607 intentionally omitted] Mr. W. W. Dyar, of Washington, D. C., for intervener.

[Argument of Counsel from pages 608-614 intentionally omitted] Messrs. Thos. W. Gregory, of Washington, D. C., W. A. Keeling, of Mexia, Tex., C. W. Taylor, of Corsicana, Tex., R. H. Ward. of Houston, Tex., and C. M. Cureton, of Austin, Tex., for State of Texas.

[Argument of Counsel from pages 614-622 intentionally omitted]

Page 622

Messrs. Joseph W. Bailey, of Dallas, Tex., and Orville Bullington and A. H. Carrigan, both of Wichita Falls, Tex., for Texas patented land owners.

Mr. S. P. Freeling, of Okalhoma City, Okl., for State of oklahoma.

Page 623

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

A principal object of this suit, originally brought in this court, is to settle a controversy over that part of the boundary between the states of Texas and Oklahoma which follows the course of the Red river from the 100th degree of west longitude to the easterly limit of Oklahoma. This boundary is part of an old one between the territory of the United States and the Spanish possessions to the southwest which was agreed on and defined in the third article of the treaty of 1819. 8 Stat. 252. As to line in question that definition is still controlling; it has been reaffirmed on several occasions, but never changed. The controversy arises chiefly out of diverging views of what the definition means and how it is to be applied. The full treaty provision reads as follows:

'Article 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Nachitoches, or Red river; then following the course of the Rio Roxo westward, to the degree of longitude, 100 west from London and 23 from Washington; then, crossing the said Red river, and running thence, by a line due north, to the river Arkansas; thence, following the course of the southern bank of the Arkansas, to its source, in latitude 42 north; and thence, by that parallel of latitude, to the South Sea. The whole being as laid down in Melish's map of the United States, published at Philadelphia, improved to the first of January, 1818. But, if the source of the Arkansas river shall be found to fall north or south of latitude 42, then the line shall run from the said source due south or north, as the case may be, till it meets the

Page 624

said parallel of latitude 42, and thence, along the said parallel, to the South Sea: All the islands in the Sabine, and the said Red and Arkansas rivers, throughout the course thus described, to belong to the United States; but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.

'The two high contracting parties agree to cede and renounce all their rights, claims, and pretensions, to the territories described by the said line; that is to say: The United States hereby cede to his Catholic Majesty, and renounce forever, all the r rights, claims, and pretensions, to the territories lying west and south of the above-described line; and in like manner, his Catholic Majesty cedes to the said United States, all his rights, claims, and pretensions, to any territories east and north of the said line; and for himself, his heirs, and successors, renounces all claim to the said territories forever.'

In the early stages of the suit the chief point of difference between the parties was that Oklahoma and the United States were claiming the south bank of the river as the boundary, while Texas was contending for the thread or middle of the stream. That difference was disposed of in an opinion delivered April 11, 1921, wherein this court recognized that in the earlier case of United States v. Texas, 162 U. S. 1, 16 Sup. Ct. 725, 40 L. Ed. 867, it had been adjudged that the boundary, as fixed by the treaty, is along the south bank. 256 U. S. 70, 41 Sup. Ct. 420, 65 L. Ed. 831. The purport of that opinion was embodied in an interlocutory decree of June 1, 1921, which also made provision for taking additional evidence and for a further hearing to determine what constitutes the south bank, where along that bank the boundary is, and the proper mode of locating it on the ground—these being matters on which the parties were unable to agree. 256

Page 625

U. S. 608, 41 Sup. Ct. 539, 65 L. Ed. 1114. Additional evidence filling several printed volumes was afterwards taken, and the further hearing was had near the close of the last term.

On the questions of what constitutes the south bank, and where along the same the boundary is, the parties are still far apart. Oklahoma and the United States contend that the bank and boundary are at the foot of a range of hills or bluffs which fringes the south side of the valley through which the river runs, while Texas insists that they are 'at low-water mark' on that side of the river—meaning as is said in the brief 'the edge of the water at that usual and ordinary stage in which it is found during most of the year.' This is now the principal issue and to it the evidence and arguments are largely directed. Its solution involves a consideration of what was intended by the treaty provision and of the physical situation to which the provision is to be applied.

The treaty provision names three rivers—the Sabine, the Red, and the Arkansas. It expressly locates the boundary along the 'western bank' of the Sabine and the 'southern bank' of the Arkansas, and describes the intermediate section as leaving the Sabine at a designated point and running due north until it 'strikes' the Red, then 'following the course' of the Red westward to the 100th meridian, then 'crossing' the Red and running due north to the Arkansas. Thus, while the boundary is in exact words fixed along a designated bank of the Sabine and the Arkansas, it is not expressly so fixed as respects the Red. This difference in terms, if not otherwise overcome, might well be taken as signifying a difference in purpose. But that it has no such signification is otherwise made plain. We say this, first, because the direction for 'crossing' the Red at the 100th meridian on a line running north strongly implies that the preceding course is somewhere on the southerly side of the river; secondly, because the declaration that 'the use of the waters, and

Page 626

the navigation of the Sabine to the sea, and of the said rivers Roxo [Red] and Arkansas, throughout the extent of the said boundary, on their respective banks,' shall be common to the respective inhabitants of both nations, distinctly shows that a bank boundary is intended along the Red just as along the Sabine and the Arkansas; and, thirdly, because available historical data relating to the negotiations which culminated in the treaty show indubitably that those who framed and signed it on behalf of the United States and Spain intended to establish, and understood they were establishing, a bank boundary along all three rivers. 4 American State Papers, Foreign Relations, p. 621, 622; 4 Memoirs of John Quincy Adams, pp. 255, 256, 260, 261, 266-270; United States v. Texas, 162 U. S. 1, 27, 16 Sup. Ct. 725, 40 L. Ed. 867. The words 'throughout the extent of the said boundary, on their respective banks,' are the last by which the treaty provision denotes the relation of the boundary to the rivers, and, as those words are otherwise supported, they point with controlling force to what was in the minds of the high contracting parties. It follows from these considerations that the meaning of the treaty provision is just what it would be if the Red river section of the boundary were expressly described as along the south bank.

We therefore are concerned with an instance in which the bank of a river, and not the river itself, has been made the boundary between two nations—now between two states of the Union.

In many jurisdictions it is settled that there is a material difference between taking the bank of a river as a boundary and taking the river itself, and this rule has been recognized and applied by this court from an early time in the adjudication of controversies over state boundaries.

During the Revolutionary period Virginia ceded to the United States all her 'territory northwest of the river

Page 627

Ohio.' Afterwards Kentucky and Indiana were admitted into the Union as states, with the southerly or initial line of that cession as the boundary between them. A controversy over that boundary was brought before this court in Handly's Lessee v. Anthony, 5 Wheat. 374, 5 L. Ed. 113. The question presented was whether the boundary was along low-water mark or at the line reached by the river when at medium height. In an opinion delivered by Chief Justice Marshall the court held the boundary was along low water mark, but was careful to say:

'In pursuing this inquiry, we must recollect that it is not the bank of the river, but the river itself, at which the cession of Virginia commences.'

Mr. Justice Story participated in the decision of that case and concurred in the opinion. Subsequently, when holding the Circuit Court for the District of Maine, he had occasion to interpret two conveyances of land adjacent to a stream in that state. One tract was described as bounded by the stream from one point to another, and the other as bounded by the bank of the stream from one point to another. The learned Justice was of opinion that the two bounding lines were essentially unlike, and he held as to...

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