Vermont v. New HampshireAnnotate this Case
289 U.S. 593 (1933)
U.S. Supreme Court
Vermont v. New Hampshire, 289 U.S. 593 (1933)
Vermont v. New Hampshire
No. 2, Original
Argued April 20, 21, 1933
Decided May 29, 1933
289 U.S. 593
HEARING UPON EXCEPTIONS TO REPORT
OF THE SPECIAL MASTER
1. The boundary between the States of Vermont and New Hampshire is the low water mark, on the western side of the Connecticut River, not the top or westerly margin of the bank, as claimed by New Hampshire, and the low water mark for this purpose is taken to be (as found by the Special Master and not challenged by the parties) the line to which the river recedes at its lowest stage, without reference to extreme droughts. Pp. 289 U. S. 596, 289 U. S. 619.
2. Vermont's failure to file exceptions to the Special Master's report, eliminates her claim to the thread of the channel, which the master rejected. P. 289 U. S. 597.
3. In determining the boundary, the Court considers the history of the subject from the creation of New York and New Hampshire as adjoining Royal Provinces to the admission of Vermont into the Union as an independent state, and also the subsequent acts and claims of Vermont and New Hampshire respecting the subject down to the present time, and finds and decides:
(1) That the boundary of New York and New Hampshire originally was the river on its westerly side, and not a line on the bank above low water. P. 289 U. S. 598.
(2) That the Order-in-Council of July 20, 1764, declaring the boundary between New York and New Hampshire to be "the western banks of the River Connecticut" reaffirmed the original river boundary. P. 289 U. S. 600.
(3) In view of the nature of the controversy before the King-in-Council, which was settled by this Order -- a dispute between the two Provinces not as to whether the line dividing their respective jurisdictions ran higher or lower on the Connecticut River bank, but as to whether it was located near the Hudson River, as in the cases of Connecticut and Massachusetts, there is no ground to suppose that a shifting of the line from low water to the top of the bank of the Connecticut was the intent of the Order. P. 289 U. S. 600.
(5) In this respect, the Order, like a treaty or grant fixing the boundary between two states, is to be construed with a view to public convenience and avoidance of controversy. P. 289 U. S. 606.
(6) Decisions of this Court establishing a "bank" boundary in other circumstances held inapplicable. P. 289 U. S. 604.
(7) This construction of the Order-in-Council is confirmed by the construction put upon it subsequently by the Governors of the two Provinces and the Lords of Trade. P. 289 U. S. 603.
(8) That the east boundary of Vermont, upon her admission as a state of the Union in 1791, was the low water mark of the Connecticut River, and not on the bank above the shore, is equally manifest whether the state be considered as carved out of New York territory pursuant to the formal consent given by that state or as an independent revolutionary state set up by the inhabitants of the "New Hampshire Grants," for, in the one case, she took the New York boundary declared by the Order-in-Council of 1764, and, in the other case, that same boundary was established by conditions laid down by Congress in 1781, during the negotiations for statehood, and by Vermont's assent thereto and New Hampshire's acquiescence. Pp. 289 U. S. 606-608.
(9) The acceptance by the Vermont Legislature on February 22, 1782, of the resolutions of Congress of August 20-21, 1781, requiring the relinquishment by the inhabitants of Vermont of "all demands of lands or jurisdiction on the east side of the west bank of the Connecticut River," operated to relinquish any claim on the part of Vermont to jurisdiction extending to the thread of the river in the territory of the New Hampshire Grants as defined by their declaration of independence, also to confirm the eastern boundary of Vermont as a boundary extending to the river as it had been fixed by the Order-in-Council of 1764. P. 289 U. S. 611.
(10) In the negotiations with Congress, the controversy respecting this boundary was whether Vermont had extended her boundary eastward beyond the line fixed by the Order-in-Council. It is not o be supposed that her acceptance of the "west bank" was intended to relinquish more than the resolutions of Congress, supra, required. P. 289 U. S. 612.
(11) Considerations of practical convenience fortify the conclusion that Vermont, upon her admission as a state, took a boundary to normal low water mark. P. 289 U. S. 612.
(12) The conclusion here reached as to the construction of the Order-in-Council and the resolution of Congress under which Vermont was admitted to statehood finds support in the practical construction
given by both states to the boundary, thus defined, in the long continued failure of New Hampshire to assert any dominion over tho west bank of the river and in her long acquiescence in the dominion asserted there by Vermont. P. 289 U. S. 613.
(13) Further important confirmation is found in the location of a monument at low water mark fixing the southeast corner of Vermont and the southwest corner of New Hampshire under authority from the two states. P. 289 U. S. 616.
The bill in this boundary suit was filed on December 18, 1915, and the answer on July 11, 1916. There were several amendments of the pleadings, some before and some after issue joined. On October 13, 1930, Edmund F. Trabue, Esquire, of Kentucky, was appointed Special Master. (282 U.S. 796.) His report was filed on February 6, 1933. The case was heard upon exceptions to the report taken by New Hampshire.
MR. JUSTICE STONE delivered the opinion of the Court.
This is an original suit brought by the State of Vermont December 8, 1915, for the determination of the boundary line between that state and the State of New Hampshire. By the amended bill of complaint, Vermont alleged that the boundary is "the thread of the channel" of the Connecticut River for its entire course, except for that part from the northerly limits of the town of Vernon, Vermont, south to the Massachusetts line where it "is the west bank of Connecticut River at low water mark." In the original bill of complaint, there was an alternative
claim that, if this Court should be of the opinion that the boundary is not the thread, but is "the west bank of the Connecticut River," then
"such line is the westerly edge of the waters of the Connecticut River at its average and mean stage during the entire year without reference to the extraordinary freshets or extreme droughts."
New Hampshire, by its amended answer, asserts that the boundary is "at the top or westerly margin of the westerly bank of the Connecticut River and the east branch thereof."
Vermont's claim of a boundary at the thread of the channel was based upon the following propositions: township grants made by the Governor of the Province of New Hampshire, by royal authority, between 1741 and 1764, on the west side of the Connecticut River in the territory now Vermont, were bounded by the river, which was nontidal, and carried title to its thread by virtue of the common law of England; an order of the King-in-Council of July 20, 1764, fixing the boundary between the Provinces of New York and New Hampshire at the "western banks of the River Connecticut," thus including the territory now Vermont in the Province of New York, was nullified by the successful revolution of the inhabitants of the New Hampshire grants; hence the eastern boundary of the revolutionary State of Vermont was the same as the eastern limits of the township grants -- namely, the thread of the river; Vermont was admitted to the Union as a sovereign independent state with her boundaries those established by her revolution. Her eastern boundary was therefore the thread of the Connecticut River.
The Special Master sustained all these contentions except the last one. With respect to it, he found that Vermont had, by resolution of her Legislature of February 22, 1782, relinquished any claim to jurisdiction east of the west side of the river at low water mark, in conformity
to a Congressional resolution of August 20, 21, 1781, prescribing terms upon which Congress would consider the admission of Vermont to the Union. In addition to the findings already indicated, the Special Master also concluded that the order of the King-in-Council of July 20, 1764, even if not rendered ineffective by the revolution of Vermont, was not intended to recognize any rights of New Hampshire west of the west side of the river at low water; that Vermont's claim of a boundary at the thread of the river would be defeated by her acquiescence in New Hampshire's exercise of dominion over the waters of the river even if it had not been relinquished by acceptance of the resolutions of Congress of August, 1781, and finally that, by practical construction of the two states by long usage and acquiescence, the boundary of Vermont was fixed at the low water mark on the west side of the river.
Accordingly, the Special Master found that:
"The eastern boundary of the State of Vermont upon her admission to the Union was that stated in the resolutions of Congress of August 20, and 21, 1781, and in the resolution of the Vermont Legislature of February 22, 1782, and this I find to be the low water mark on the west side of the Connecticut River."
The line of low water mark thus specified was further defined as "the point to which the river recedes at its lowest stage without reference to extreme droughts," and no exception has been taken to this definition.
Vermont's claim of a boundary to the thread of the channel is no longer before us, as New Hampshire alone has filed exceptions to the report of the Special Master. Those exceptions narrow the issue to the single question whether the boundary line is at low water mark on the west side of the river, as the master found, or at the top or westerly margin of the bank, as contended by New Hampshire; in other words, whether New Hampshire acquired and retained jurisdiction of a narrow ribbon of land
of varying width on the west side of the Connecticut River, extending along the entire eastern boundary of Vermont, which at some stages of the river is submerged and at others left uncovered by the water. In support of this contention, New Hampshire relies on the order of the King-in-Council of 1764, which it is argued established the eastern boundary of Vermont at the west bank of the Connecticut River not at low water mark, but at the top of the bank or the line upon it where vegetation ceases.
The Order-in-Council must be considered in the light of the colonial history out of which it grew, which is elaborately reviewed in the Special Master's report. The Royal Province of New Hampshire was established on September 18, 1679, by Commission of Charles II establishing the president and council of that province. On July 3, 1741, Benning Wentworth was appointed Governor by George II. His Commission, like that later issued to him by George III in 1760, defined the western boundary of the province only by the provision that its south line and its north line should extend westward "till it meets with our other governments." The government on the west of New Hampshire was the province of New York, originating in the grant of June 29, 1674, by Charles II to his brother James, Duke of York, which included "all the lands from the west side of Connecticut River to the east side of Delaware Bay." This grant merged in the Crown when James, Duke of York, became King James II in 1685.
Despite the language of the New York grant fixing its eastern boundary as the west side of the Connecticut River, that province did not assert jurisdiction as far east as the Connecticut River at any point south of the New Hampshire line. The western boundary of the province of Connecticut was fixed about 1684, with the acquiescence of New York, as a line, approximately north and south, twenty miles east of the Hudson River, and before 1750,
Massachusetts had settled westerly to about the same line, and New York had made no attempt to disturb those settlements.
Governor Wentworth, construing his Commission as extending the Province of New Hampshire westwardly at least to this line east of the Hudson River, acting under authority of a royal Commission, made, from about 1752 to 1764, numerous grants of townships in the territory west of the Connecticut River, now a part of Vermont. Each of these grants comprised a territory six miles square and conferred on the inhabitants authority to organize town governments. Twenty-three of the towns were adjacent to the Connecticut River, and, with the exception of Vernon, which extended across the river at the southeastern corner of the present State of Vermont, the boundary line of these townships was described expressly or by implication as extending to or beginning at a tree or other designated monument standing on the westerly side or the west bank of the river and extending "thence up the river" or "thence down the river." At the time of these grants, the river was extensively used by the inhabitants on both sides for hunting and fishing.
The Special Master, upon an exhaustive examination of the evidence and the law, concluded that these boundaries were on the river and, with the exception of the Town of Vernon, carried the boundary of the townships to the thread of the river. Although this conclusion is challenged by the exceptions filed in behalf of New Hampshire, it is not denied that the boundary in the description of the New Hampshire township grants carried at least to the river.
In 1749, before the township grants before us were made, a controversy had arisen between the Royal Governors of New Hampshire and New York over their respective authority to make grants in the territory between the Hudson and Connecticut Rivers. Although suspended
during the French and Indian wars, the conflict was renewed at the end of 1763, and in 1764 was submitted to the King-in-Council for determination. New York asserted that, under the grant to the Duke of York, that province included "all the lands from the west side of Connecticut River." New Hampshire claimed that its boundary extended to the line approximately twenty miles east of the Hudson corresponding roughly to a prolongation northerly of the westerly boundaries of Massachusetts and Connecticut. The controversy was referred to the Lords of Trade, who made their report of July 10, 1764. Their recommendation was approved by the order of the King-in-Council, on July 20, 1764, which fixed the boundary in the following language:
"His Majesty . . . doth accordingly hereby order and declare the western banks of the River Connecticut, from where it enters the Province of the Massachusetts Bay, as far north as the forty-fifth degree of northern latitude, to be the boundary line between the said two Provinces of New Hampshire and New York."
As it is conceded that the King-in-Council had authority to fix the boundary between the two royal provinces, the meaning and effect of the order of 1764 must first be considered. The Special Master concluded that the purpose and effect of the order were to leave undisturbed the boundary of New York as established by the grant to the Duke of York of all the lands from the west side of the Connecticut River; that the boundary fixed was therefore at the river, and not at some point upon its bank. We think this conclusion correct.
New Hampshire contends that the designation of the "western banks" of the river as the boundary established a "bank" boundary above low water mark, as distinguished from one upon the river, which admittedly would carry at least to low water. But the language of the order was adopted to express a judgment upon conflicting
claims, each clearly defined, neither of which involved the question whether the line was to be drawn at low water or at some point above. New York, relying on the Duke of York's grant, contended that its jurisdiction extended to the Connecticut River, and not, as New Hampshire argued, to the line about twenty miles east of the Hudson, continuing that which marked the boundary of Massachusetts and Connecticut. In the entire history of the controversy, there appears to have been no suggestion that the jurisdiction of New York would not extend to the Connecticut River if it were found to extend east of the western boundary of Connecticut and Massachusetts. Thus, the written statement of January 20, 1764, presenting the claims of New York to the Lords of Trade stated that "this Province is bounded eastward by Connecticut River," and the Lords of Trade in their report informed the Crown that
"Your Majesty's Lieutenant Governor of New York contends that . . . 'the Province of New York does, both by the words and construction of the grant to the Duke of York, extend eastward as far as Connecticut River.'"
This was the claim in favor of which the Lords of Trade decided. [Footnote 1] True, they recommended
"the western banks of the River Connecticut from where it enters the Province of the Massachusetts Bay as far north as the forty-fifth degree of northern latitude should be declared to be the boundary line between the two Provinces."
But the evidence is conclusive that there was no thought that the designation of the banks as the boundary would have a different effect than the designation of the river itself. A communication from the Lords of Trade to Lieutenant Governor Colden of New York with respect to the boundary dispute, July 13, 1764, three days after their report to the Crown, advised him that,
"as the reasons you assign for making Connecticut River the boundary line between the two provinces appear to us to have great weight, we have adopted and recommended that proposition."
In adopting the reference to the banks of the river contained in the recommendation of the Lords of Trade, the Order-in-Council did not give it any different meaning. [Footnote 2]
Subsequent events attest the validity of this conclusion. After the receipt of the order by the Governors of New Hampshire and New York, and the publication of its terms, it was interpreted by three Governors of New York, Moore, the Earl of Dunmore, and Tryon, [Footnote 3] to establish the river as the eastern boundary of the province and, except for a petition of New Hampshire to the Crown in 1771 for a rescission of the order, the royal governments of both provinces recognized its validity up to the time of the revolution. In reporting to the Crown December 3, 1772, upon New Hampshire's petition for rescission, the Lords of Trade recommended adherence to
"those principles of true policy and sound wisdom which appear to have dictated the proposition of making the River Connecticut the boundary between the two colonies."
And the response of the Governor of New Hampshire to a questionnaire sent out by the Lords of Trade in 1774 recited that "the River Connecticut from Hinsdale runs through this Province, and is its boundary to the 45
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