Howard v. IngersollAnnotate this Case
54 U.S. 381 (1851)
U.S. Supreme Court
Howard v. Ingersoll, 54 U.S. 13 How. 381 381 (1851)
Howard v. Ingersoll
54 U.S. (13 How.) 381
APPEAL FROM THE SUPREME COURT OF ALABAMA AND ERROR TO THE
CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF GEORGIA
In 1802, when Georgia ceded her back lands to the United States, she had jurisdiction over the whole of the Chattahoochee River, from its source to the thirty-first degree of north latitude.
The rule is that where a power possesses a river and cedes the territory on the other side of it, making the river the boundary, that power retains the river unless there is an express stipulation for the relinquishment of the rights of soil and jurisdiction over the bed of such river.
When Georgia ceded to the United States all the land situated on the west of a line running along the western bank of the Chattahoochee River, she retained the bed of the river and all the land to the east of the line above mentioned.
The river flows in a channel, between two banks, from fifteen to twenty feet high, between the bottom of which and the water, when the river is at a low stage, there are shelving shores, from thirty to sixty yards each in width.
The boundary line runs along the top of this high western bank, leaving the bed of the river and the western shelving shore within the jurisdiction of Georgia.
These two cases were argued and decided together. The suits related to the same tract of land and the rights of the same parties, although they came up from different states. The first, which is referred to in the opinion of the court as No. 121, was an action on the case brought by Ingersoll in the Circuit Court of Alabama (state court) to recover damages for the wrongful obstruction by Howard of the Chattahoochee River whereby the waters of that stream were backed in such a manner as to overflow Ingersoll's land and obstruct the use of his mill. This mill was built between the high bank of the river and low water mark, as it was called, so that when the water was high, it was overflowed; but when the water was low, it was on dry ground. At such times, it was worked by a race fed from the river by means of a wing dam. Howard built a
dam below, which backed the water upon the mill and impeded its operations. On the trial of this cause, the jury returned a verdict in favor of Ingersoll for the sum of $4,000. The cause was carried to the Superior Court of Alabama, where the judgment was affirmed, whence it was brought to this Court under the 25th section of the Judiciary Act.
"HOWARD & ECKOLLS, Plaintiffs in error"
"v. No. 131"
This case was brought by writ of error, from the Circuit Court of the United States for the District of Georgia. Howard & Eckolls, the builders of the dam, brought a suit against Ingersoll in the Superior court of Muscogee county, Georgia, to recover damages for an illegal entry upon their land covered with water and fishing thereon. The jury found a verdict for the plaintiffs for the sum of $600. A bill of exceptions brought the case up to this Court.
After these general observations upon the two cases, let us now take them up separately; and first of
"HOWARD, Plaintiff in error"
"v. No. 121"
It has been always stated that this case was brought from the Supreme Court of Alabama. The bill of exceptions, which was taken on the trial of the cause in Russell circuit court, was as follows:
"Bill of Exceptions. On the trial of this cause, the plaintiff Ingersoll produced a patent from the United States to himself dated in 1802 to fractional section No. 11, township 7, range 30, and proved title in himself to lots 1, 2, 3, and 4, in the Town of Girard, lying in Russell County, Alabama, and specifically described in some of the counts of the declaration; said land has for its eastern boundary the State of Georgia, and is immediately west of the Chattahoochee River on the bank thereof. This river has, for the most part, high bluff banks, but in some places the banks are low and the adjacent lands on either side where they are low are subject to inundation for nearly a mile out of the banks. Immediately at the plaintiff's lands and lots there are banks of the river from fifteen to twenty feet high, and very abrupt, and are high on both sides, and above and below, for considerable distances. The abrupt and high banks, however, do not extend down to the water's edge at ordinary low water. The bed of the river at this point is about two hundred yards wide from bank to bank; and by the bed is meant the space between these abrupt and high banks, and is composed of rocks
and slues among the rocks from one side to the other; ordinary low water and extreme low water together prevail for about two-thirds of the year, during which time the river is confined to a channel about thirty yards wide, leaving the bed of the river as above described, exposed on each side of this channel from thirty to sixty yards. Immediately under the western abrupt and high bank, and within the latitude of the north and south boundary line of plaintiff's land, side lines being drawn down to the water's edge, and in the bed of the river, as above described, east of said western abrupt and high bank, the plaintiff erected a mill previous to 1842, and continued the possession and use thereof until overflowed by defendant's dam. The place on which said mill was situated was covered with water in ordinary high water, but was bare and dry in ordinary low water."
"To supply his mill with water, the plaintiff had erected a wing dam, which ran in a north-east direction into the river, and supplied his mill with water at all seasons, and diverted a portion of the stream to the said mill, which passed again into the river above defendant's dam, and he, plaintiff, had blown out rock to give room to his mill wheel."
"It was further proved that in 1845 the defendant erected a dam across the river about three hundred yards below the plaintiff's mill and opposite the City of Columbus, Georgia. The said dam was four to five feet high, and at ordinary low water backed the water on plaintiff's mill, so as to prevent its working; in high water the said dam made no difference, as the water was level above it and on both sides of it. The plaintiff further proved the value of his mill and the injury he sustained. The defendant introduced in evidence the act of cession of the State of Georgia to the United States; the Constitution of the State of Georgia; an act of the State of Georgia granting to the City of Columbus, the right to lay off lots on her river boundary, running across the Chattahoochee River, to high water mark, on the western bank of said river. All of which evidence, being printed in the public acts, are to be read and considered in full as part of this bill of exceptions."
"The defendant also offered in evidence an authenticated deed to him from the City of Columbus granting him said lots, running across the river, and authority to erect the dam across the river, which original deed and accompanying plat, it is agreed, may form a part of this bill of exceptions and may be exhibited as such. The plaintiff's land was situated at a point of the river where there were falls or rapids and where it was not navigable, and that it was far above tidewater, and a fresh water stream, and between Miller's Bend and Cochei Creek.
The defendant's dam raised the water to a point on the western high bank which [is] dry at ordinary low water. One witness proved that he never knew a sheriff or constable of Georgia to come over on the western bank to serve any writ or process or other official act, and stated that he, the witness, had good opportunity to know if any such thing had been attempted, as he had lived on the western bank for ten years."
"At the place at which plaintiff's mill was erected, the summit of the bank was never overflowed, even at the highest stages of the river, the water of which always remained several feet below it. The plaintiff gave in evidence to the court, which was not allowed to go as evidence to the jury, although requested by plaintiff, acts of the State of Georgia conveying authority to the commissioners to negotiate the cession of territory from Georgia to the United States and also the act of Georgia ratifying said cession, all of which may be read from the public acts. The court charged the jury that one passing from Georgia to Alabama, across the Chattahoochee River, at ordinary low water, would be upon the bank as soon as he left the water on the western side, although an inappreciable distance from the water, and that the line described in the treaty of cession from Georgia to the United States as running up said river and along the western bank thereof is the line impressed upon the land by ordinary low water, and if they believed the plaintiff's mill was west of that line and defendant's dam backed the water so as to obstruct the operation of said mill, the plaintiff was entitled to recover, to which charge the defendant excepted."
"The defendant asked the court to charge the jury that if the bank of the river was ordinary low water mark, the plaintiff had no right to the use of the water at that stage, which charge the court refused, to which defendant excepted, and prays his exceptions to be signed and sealed and made part of the record of this cause, which is accordingly done in term time."
"J. J. WOODWARD [L.S.]"
The judgment of the circuit court was affirmed by the Supreme Court of Alabama, and brought to this Court to be reviewed, under the 25th section of the Judiciary Act.
"HOWARD & ECKOLLS, Plaintiffs in error"
"v. No. 131"
This action was brought by way of petition by Howard & Eckolls, the owners of the dam below, against Ingersoll, the owner of the mill above, for entering the close ground covered with water of the petitioners and fishing. Ingersoll removed
the cause into the circuit court of the United States, where it was tried in July, 1850. The court having refused to charge the jury as prayed for by the plaintiffs, they brought the case to this Court, although there was a verdict in their favor for $600 damages.
The following is the bill of exceptions:
"On the trial of this cause, the plaintiffs proved, by the articles of cession dated on t16 June, 1802, between the United States and Georgia, that the boundary line between Georgia and the territory, now State of Alabama, was a line beginning on the western bank of the Chattahoochee River and running along the western bank thereof. And did further prove by competent testimony of witnesses both for the plaintiffs and on the part of the defendant that at the part of the said River Chattachoochee where the closes in the said declaration mentioned are situated, the said river, not being a tidewater and not being navigable, is considerably reduced at its lowest state, especially in droughts, being quite narrow at such state, particularly in some places where it is confined by rocks projecting from the opposite sides of the river, and in other places spreading out more at large. That between the water in this state of the river and a high and perpendicular bluff on the western or Alabama side, the distance varies, according to one witness, from 30 to 100 yards; according to another, the bluff banks are high and precipitous; at some places they are 30 feet, at others 100, and again 150 feet from the main channel; by another, at the foot of the bluff bank is a flat space from 50 to 150 feet wide, between ordinary water mark and the bluff bank; from very low water mark to the bluff bank is more than 50 to 150 feet. According to another witness it is from 100 to 120 feet from the bluff bank to medium water mark, and from 80 to 100 feet from medium water mark to low water mark; that this intermediate space is a flat or bottom land, gradually descending from the base of the bluff to the water; that in places upon this flat there is a growth of shrubbery, and some trees, such as pines, gums, oaks, willows, alders, poplars &c.; that the growth on this flat would be liable to be destroyed if the flat were long or often overflowed; that there is a road or cartway underneath this bluff, a grist-mill, one post of which stands in the water, the water approaching very near the bluff at that point, and there being just room between the mill and the bluff for the above road to pass. There is also a saw mill, but not on the closes in the declaration mentioned, and a cotton gin factory under the bluff on this flat, and a small portion of it has at times been cultivated. That in the ordinary winter state of the river, the water covers this
flat about half way to the bluff, to the base of a bank or ridge of sand and gravel, having an inclination of about forty-five degrees; that in very full states of the river -- that is, in freshets -- the water covers the flats, reaching to or nearly to the bluff, and in the freshet of 1840, known as the Harrison freshet, it extended twelve feet up the base of the bluff; that the extent to which this flat is covered with water varies with the height of the freshets in said river, it being all dry land at the lowest state of the river and a portion of it being always, except in high freshets, uncovered with water; that it is only in the full state of the river that the water overflows the sand bank or ridge before mentioned."
"Whereupon the plaintiffs prayed the court to instruct the jury that the true interpretation of the said article of cession in the year 1802 between the United States and Georgia requires the boundary line between the State of Georgia and the Territory, now State, of Alabama, to be drawn on and along the western bank of the Chattahoochee River. And that wherever the jury may find that bank to be, the jurisdiction and limits of the State of Alabama must terminate, and cannot pass beyond that line to the eastward of the same, but that all east of said line, whether it be land or water, is included within the limits and jurisdiction of Georgia, and no grant from the United States or the State of Alabama can confer title to any part of the same, either directly or indirectly, either by virtue of the said grant or as an incident to the same."
"Which instruction the said court refused to give except subject to this modification, to-wit, that the articles of cession was an instrument the interpretation of which belonged to the court, and not to the jury, and gave the said instruction subject to the said modification, and moreover instructed the jury that by the true construction of those articles of cession, the boundary line between the State of Georgia and Alabama was to be drawn on and along the western bank of the Chattahoochee River at low water mark, when the river was at its lowest state."
To which refusal and instruction the plaintiffs except, and pray this bill of exceptions to be signed, sealed, and enrolled, which is done this fifth day of July, 1850.
"JNO. C. NICOLL [L.S.]"
"District Judge for the District of Georgia"
MR. JUSTICE WAYNE delivered the opinion of the Court.
The point for decision in these cases is one of boundary, between the States of Georgia and Alabama. It is what is the line of Georgia on the western bank of the Chattachoochee River, from the 31st deg. north latitude,
"where the same crosses the boundary line between the United States and Spain; running thence up the said River Chattahoochee, and along the western bank thereof, to the great bend thereof, next above the place where a certain creek or river called 'Uchee,' being the first considerable stream on the western side, above the Cussetas and Coweta Towns, empties into the said Chattahoochee River."
It determination depends upon what were the limits of Georgia and her ownership of the whole country within them when that state, in compliance with the obligation imposed upon it by the revolutionary war, conveyed to the United States her unsettled territory, and upon the terms used to define the boundaries of that cession.
In the case from Alabama,
"The court charged the jury that one passing from Georgia to Alabama across the Chattachoochee River at ordinary low water would be upon the bank as soon as he left the water on the western side, although an inappreciable distance from the water, and that the line described in the treaty of cession from Georgia to the United States as running
up said river and along the western bank thereof, is the line impressed upon the land by ordinary low water, and if they believed the plaintiff's mill was west of that line, and the defendant's dam backed the water so as to obstruct the operation of the mill, the plaintiff was entitled to recover."
In the case from the Circuit Court of the United States for the District of Georgia, the district judge presiding, the jury was instructed
"That by the true construction of these articles of cession, the boundary line between the State of Georgia and Alabama was to be drawn on and along the western bank of the Chattahoochee River at low water mark, when the river was at its lowest state."
All of us think that both of these instructions were erroneous, though there is a difference among us as to the construction given by the majority of the Court to the article defining the boundary of Georgia upon the river, and the reasoning in support of it. These differences will be seen in the opinions which our brothers have said they meant to give in these cases.
We will not give our views of what were the limits of the State of Georgia when it ceded its unsettled territory west of the Chattahoochee River to the United States. that state's then ownership of the whole of it, citing in support of our conclusions indisputable historical facts, and the legislation of Georgia, of South Carolina, and of the United States, upon the subject.
It is well known to all of us, when the colonies dissolved their connection with the mother country by the Declaration of Independence, that it was understood by all of them that each did so with the limits which belonged to it as a colony. There was within the limits of several of them a large extent of unsettled territory. Other states had little or none.
The latter contended, as all of them had united in a common declaration of independence and in a common war to secure it, which no one colony could do for itself, that the unsettled lands within the former ought to become a common property among all of the states.
On the 6th of September, 1780, Congress recommended this subject to the consideration of the states. On the 10th of October after, it was resolved by Congress
"That the unappropriated lands that may be ceded or relinquished to the United States by any state should be disposed of for the common benefit of the United States, and be settled and formed into distinct republican states, which shall become members of the federal union and have the same rights of sovereignty, freedom, and independence as the other states."
3 Journals of Congress 516, 535.
From these references we have the whole policy of Congress concerning those unsettled territories, so happily since consummated
by the states and by Congress. It was not, however, achieved without some delays and objections from the states to which these lands belonged. Some of the states, Maryland taking the lead, refused to sign the Articles of Confederation until after strong assurances had been given that such cessions would be made. And when that state did so, it was with the declaration that she did not relinquish or intend to relinquish the right which she had with the other states to the "back country," as she termed the unsettled lands within the limits of some of the states.
Early in 1781, Virginia made such a relinquishment. New York quickly followed, and Massachusetts and Connecticut, always willing to make any sacrifice for the common cause, relinquished their unsettled lands after the war had been concluded.
The cause assigned by each of these four states for doing so, and the principles upon which these cessions were accepted by the United States, involved North and South Carolina and Georgia in the obligation to do the same. Though not done for several years, it was never denied by either of these states.
All of the states had been actuated by the same spirit for independence. When the war had been happily concluded, all of them looked to the wild territory within the United States as the first source from which revenue could be raised to pay the war debt of the Union. It then was $42,000,000.
It would be difficult to say which class of its creditors had the strongest claims upon the justice and gratitude of the people of the United States. But all felt, and it was conceded by the other classes of creditors, that the soldiers who had patiently borne the privations of the field and bravely met its hazards to secure the liberties of the country ought to have their claims paid by portions of the public lands, with certain available securities from Congress for the residue.
From these references we learn that the states entered into the Union with the understanding by all of them that each had an undiminished sovereignty within its colonial limits. That there were within the limits of some of them unsettled lands over which Congress had no legislative control. But that it was early recognized by these states whilst the Articles of Confederation were in the course of ratification and immediately after they were completed, that their unsettled territories were to be transferred by them to the United States, to be disposed of for the common benefit and to be formed into distinct republican states, with all the rights and sovereignty of the other states.
We have seen that relinquishments had been made by Virginia, New York, Massachusetts, and Connecticut. South Carolina did the same in 1787, after the settlement of her territorial disputes with Georgia.
We will now state what those disputes were and how they were adjusted, in order that the jurisdiction of the State of Georgia and that state's ownership of the whole territory ceded by it to the United States in 1802 may be fully understood in connection with the principles or rules by which its western boundary upon the Chattahoochee River must be interpreted.
Georgia was originally a province formed by royal prerogative out of a portion of that territory which was within the chartered limits of South Carolina. It was a corporation under the title of
"Trustees for establishing the Colony of Georgia in America, which was to continue for twenty-one years, with power in the trustees to form laws and regulations for its government, after which all the rights of soil and jurisdiction were to vest in the Crown."
It was described in the act of incorporation
"as all those lands, countries, and territories situate, lying, and being in that part of South Carolina in America which lies from the northern stream of a river, then commonly called the Savannah, all along the seacoast to the southward under the most southern stream of a certain other great water or river, called the Alatamaha, and westward from the heads of the said rivers respectively in direct lines to the South Seas."
It may be well here to say that the power of the King to alter, change, enlarge, or diminish the limits of his royal governments in America cannot be denied.
"Those governments were of two kinds, royal and proprietary. In the former, the right of the soil and jurisdiction remained in the Crown, and their boundaries, though described in letters patent, were subject to alteration at its pleasure, for as it possessed the right of soil and government, and delegated them to its governors during pleasure, it might dispose of them in what manner and to whom it thought fit, might alter, extend, or abridge them as its inclination or policy might declare. In proprietary governments, the right of soil as well as jurisdiction was vested in the proprietors. These charters were in the nature of grants, and their limits being fixed by these charters, could not be altered but by their consent."
South Carolina, then, could not object either to the first charter given to Georgia or to the subsequent extension of its boundaries by the King, though forming a part of what had been within the charter of that royal colony.
In 1763, Great Britain having then acquired by treaty with Spain Florida, Pensacola, and all that Spain had held in North America, east and southeast of the River Mississippi, all of that country between the Alatamaha and Florida, originally within the chartered limits of South Carolina, but which had
always been disputable territory between England and Spain, the then Governor of South Carolina assumed to be at his disposal under his royal commission. Within the year 1763 he granted to many persons in Carolina large tracts of land lying between the Alatamaha and St. Mary's Rivers. His power to do so was objected to by Georgia, but her remonstrances were not regarded. The subject was brought to the notice of the Board of Trade. The governor's conduct was disapproved, declared to be unwarrantable, and orders were given that no charters or grants should be issued for lands on the south of the Alatamaha River, which had been surveyed under warrants from South Carolina. But as surveys had been made under the governor's warrants and grants issued by South Carolina for the lands before the orders of the Board of Trade were received, they were not formally recalled. These transactions, however, excited much attention at the time in England from the representations which were made concerning them by Governor Wright of Georgia. The ultimate consequence was that the King, in January, 1764, extended the limits of Georgia, including within them all that country which had been within the chartered limits of South Carolina and limiting the south boundary of that colony by the northern stream of Savannah River as far as the head of the same. The language of the letters patent granted to Sir James Wright is that the colony of Georgia
"shall be bounded on the north by the most northern stream of a river, then commonly called Savannah, as far as the head of the said river, and from thence westward as far as our territories extend; on the east by the seacoast, from the said River Savannah to the most southern stream of a certain other river, called St. Mary's, including all islands within twenty leagues of the coast lying between the said Rivers Savannah and St. Mary's, as far as the head thereof, and from thence westward as far as our territories extend by the north boundary line of our provinces of East and West Florida,"
which was "a line drawn from that part of the Mississippi which is intersected by latitude 31, due east, to the Appalachicola." See the King's Proclamation and letters patent to Sir James Wright, Wat. 744.
For twenty years after this extension of Georgia, its limits were not called in question by South Carolina, or perhaps, to speak more properly, they had not been a subject of inquiry by that state, though what they were was well understood by the authorities of Georgia. Nothing had occurred between 1764 and 1776 from which any contest concerning them could arise, and it was not until two years after the provisional treaty of peace between England and the United States was made that South Carolina claimed any part of the unsettled territory of
Georgia, within the limits defined by the King's patent of January, 1764.
The provisional treaty of peace with the King of Great Britain was signed in November, 1782. In the 2d article will be found the boundaries of the United States. They are repeated in the definitive treaty concluded at Paris on the 3d September, 1783. In less than four months after the provisional treaty was made, Georgia declared legislatively that the southern boundary of the state was a line drawn from the Mississippi in the latitude of 31 degrees, on a due east course to the River Chattahoochee, and in other respects according to the southern boundary of the United States, as that was settled by the provisional treaty between the United States and Great Britain. The southern boundary of the United States is described in the treaties with England
"as a line to be drawn, due east from the middle of the Mississippi River in the latitude of 31 degrees north of the equator to the middle of the River Appalachicola or Chattahoochee, thence along the middle thereof to its junction with the Flint, thence straight to the head of the St. Mary's River, and thence down along that river to the Atlantic ocean."
Compare this boundary with that in the commission to Governor Wright for the Colony of Georgia, and they will be found identical. Indeed, unless the chartered limits of Georgia as they are stated in that commission had been taken by the negotiators of the treaty with England as their guide, they would not have had any by which to run the southern line for the United States from the Mississippi to the Chattahoochee, and thence as it is described to the Atlantic Ocean.
The next action of Georgia asserting its jurisdiction over its limits will be found in the 13th section of the Act of February, 1783, Wat.Dig. 264. It defines what those limits were. In February, 1785, Georgia passed another act for the establishment of a county to the west of the Chattahoochee, within a line to be drawn down the Mississippi from where it receives the Yazoo till it intersects the 31st degree of north latitude, thence due east as far as the lands might be found to reach which had at any time been relinquished by the Indians, then along the line of relinquishment to the River Yazoo and down to its mouth, calling it the County of Bourbon.
This last act and the two which preceded it attracted the notice of the authorities of South Carolina, and then that state, for the first time since 1764, denied that the limits of Georgia were as she had declared them to be and claimed for itself within them a large extent of country.
South Carolina reasserted her claim upon the principle that her surveys had been made in 1763, between the Rivers Alatamaha
and St. Mary's, forgetting that her then governor had been reproved and had apologized for authorizing them to be made, and denied that the source of the Keowee River was the head of the Savannah River, and that the country between its source and the source of the Tugaloo River down to the mouth of the Keowee, where it empties into the Savannah, belonged to Georgia.
Neither state would yield, and the border excitements, growing out of the differences, admonished both that it would be best and safest for them to resort to that court which had been provided in the 9th article in the confederation for "the settlement of disputes then existing or that might arise between two or more states concerning boundary, jurisdiction, or any other cause whatever."
South Carolina presented a petitioner for that purpose. Georgia was cited to appear and did so. Congress then provided for the appointment of judges, and at this point of the proceedings Carolina withdrew her petition, it having become the conviction of both states, from information brought out by the controversy, that these differences could be amicably adjusted.
Carolina had contended that as the original boundaries of Georgia were the Rivers Savannah and Alatamaha, and lines drawn due west from their sources to the Mississippi; that all the land lying south of the Alatamaha, and a line drawn due west from its source to the Mississippi, as far as the northern boundary of the Floridas, continued to be a part of the province of South Carolina, out of which Georgia was taken. And that when the British Crown, by its proclamation of October, 1763, annexed to Georgia all the lands lying between the Rivers Alatamaha and St. Mary's, it meant only the lands between those rivers below their sources, and not such as lay above those sources, and between lines drawn from them respectively west to the Mississippi, which tract of country, of course, even after the proclamation, still continued a part of South Carolina.
Georgia, on the contrary, maintained that when the proclamation annexed to its government all the lands lying between the Rivers Alatamaha and St. Mary's, it meant not merely the tract of country which lay between those rivers, below their sources, but also the whole territory held by the British Crown between the northern boundaries of Florida, as established by the same proclamation, and the ancient line of Georgia.
Carolina further claimed the land lying between the North Carolina line and the line due west from the mouth of the Tugaloo River to the Mississippi, because the River Savannah loses that name at the confluence of the Tugaloo and Keowee Rivers, and consequently that spot was said to be the head of Savannah River. Georgia contended that the source of the Keowee was the head of the Savannah River.
At this time neither state had such original documents from the archives of England as were sufficient to determine its right with certainty. But Georgia had secondary proof of the letters patent which were given by the King to Governor Wright in 1764, though they had been taker away with him when he fled from the state during the revolutionary war. The original commission and letters patent were subsequently obtained from the records of the Board of Trade in England. They fully confirmed the correctness of the secondary proof upon which the state had acted. There was also at the same time disclosed from those records in detail all of the action of the Board of Trade and of the King concerning Governor Boone's surveys in 1763 of the land between the Alatamaha and St. Mary's, with the disapprobation of all that he had done in that matter and the governor's apology for his conduct. Though done already, we will introduce into this connection the boundaries of Georgia in the letters patent to Governor Wright that the controversy between Georgia and South Carolina, and its amicable termination, may be better understood.
After South Carolina withdrew her petition from Congress, the said states entered into a convention for the settlement of the territorial differences between them. It was concluded at Beaufort, in April, 1787. Carolina was represented by three of her most distinguished citizens of that day, and Georgia by three of hers, in whom the state had every confidence. It was ratified by both states, though one of the three commissioners from Georgia, Mr. Houston, was dissatisfied with and would not sign it.
By this convention it was agreed
"That the most northern branch or stream of the River Savannah, from the sea or mouth of such stream to the fork or confluence of the river now called Tugaloo and Keowee, and from thence the most northern branch or stream of the said River Tugaloo, till it intersects the northern boundary line of South Carolina, if the said branch or stream of Tugaloo extends so far north, reserving all the islands in the said River Tugaloo and Savannah to Georgia, but if the headspring or source of any branch or stream of the said River Tugaloo does not extend to the north boundary line of South Carolina, then a west line to the Mississippi to be drawn from the headspring or source of the said branch or stream of Tugaloo River, which extends to the highest northern latitude, shall forever ever hereafter form the separation limit and boundary between the states of South Carolina and Georgia."
1 Art.Convention, Wat.Dig. 754.
From this article we see that South Carolina abandoned the ground taken in her petition, and only claimed territory in Georgia
in the event that a geographical fact should turn out differently from what the commissioners of Georgia said it was and accordingly with what the commissioners of South Carolina supposed it to be. That was whether or not the headspring or source of any branch or stream of Tugaloo extended to the north boundary line of South Carolina. If it did not, then from wherever the headspring or source of that river might be lower than this north boundary line, Carolina could claim from it, by a line drawn west to the Mississippi, all the land which was between that line and the higher north line which Georgia had before declared to be the boundary of this state. But if the headspring or source of the Tugaloo did reach the north boundary line of South Carolina, then that stream to its source was to be the boundary between the two states, to the west of which Carolina could not then claim any land. Georgia, on its part, by the same article, withdrew its claim to that part of South Carolina which is between the Keowee and Tugaloo Rivers, where the most northern branch of the Tugaloo intersects the northern boundary line of South Carolina.
South Carolina, however, acting upon the opinion of its commissioners that the headspring of the most northern branch of the Tugaloo did not intersect the northern boundary line of that state, ceded to the United States, in three months after the convention with Georgia had been made, all the territory which it was supposed Carolina had got by it in Georgia.
The cession is as follows:
"All the territory or tract of country included within the River Mississippi, and a line beginning at that part of said river which is intersected by the southern boundary line of the State of North Carolina and continuing along the said boundary line until it intersects the ridge or chain of mountains which divides the eastern from the western waters, then to be continued along the top of the said ridge of mountains until it intersects a line to be drawn due west from the head of the southern branch of Tugaloo River to the said mountains, and thence to run a due west course to the River Mississippi."
The United States accepted the cession, and until by actual exploration it had been ascertained that the headspring or branch of the Tugaloo River was north of the line of South Carolina, it was not known that the land actually transferred to the United States by the South Carolina cession was only a tract of country about twelve miles wide from north to south, extending from the top of the main ridge of mountains which divides the eastern from the western waters, lying between latitude 35