Where the bill is brought in the circuit court to quiet, and
remove a cloud upon, the title of land alleged to be within the
state and district where the suit is brought, and the cloud is
based upon tax sales made under the authority of an adjoining state
in which defendants claim the land is situated, although the chief
difference may be upon the question of fact as to the location of
the boundary line between the two states, if the construction of
the act of Congress admitting one of the states to tho Union and
defining its boundaries is also in dispute, the circuit court has
jurisdiction of the case as one arising under the Constitution or
law of the United States.
Joy v. St. Louis, 201 U.
S. 332, distinguished.
Under the acts of Congress of March 1, 1817, 3 Stat. 348,
admitting Mississippi,
Page 205 U. S. 215
and of June 15, 1836, 5 Stat. 50, admitting Arkansas to the
Union, the boundary line between the two states is the middle of
the main channel of the Mississippi River as it was in 1817, and at
the point where Island No. 76 is situated, it was at that time on
the Mississippi side of that island, which has never been within
the State of Mississippi, notwithstanding attempts on the part of
that state to exercise jurisdiction thereover.
In this case, the court determined a controversy between private
parties involving the location of the boundary line between two
states favorably to the party in possession of the land involved
under the authority of the state actually exercising jurisdiction
thereover, but expressed doubt to whether court should in such a
case go further than the actual conditions, rather than leave it to
the other state, if dissatisfied, to bring a suit in its own
name.
142 F. 787 reversed.
The facts are stated in the opinion.
Page 205 U. S. 218
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill to quiet and remove a cloud upon the title to
land alleged to be in Arkansas. The circuit court found that
Page 205 U. S. 219
the land was in Mississippi and dismissed the case for want of
jurisdiction. 142 F. 787. The judge made the usual certificate, and
an appeal was taken to this Court.
The land in controversy is Island No. 76, formerly called
Chapeau Island, in the Mississippi River, and whether it is part of
Arkansas or of Mississippi depends, as both parties agree, on what
was the western boundary of Mississippi as established by the act
of Congress admitting that state to the Union. Act of March 1,
1817, c. 23, 3 Stat. 348. In that act, the state is bounded by a
line "beginning on the River Mississippi" and running around the
state "to the Mississippi River, thence up the same to the
beginning." The plaintiffs contend that these words should be
construed to bound the state on the eastern bank of the river,
while the defendants maintain that they refer to the middle of the
main channel as it then was. The chief difference is upon the
question of fact whether the main channel was to the east or west
of the island in 1817; but, as the construction of the statute also
is in dispute, there is jurisdiction, and
Joy v. St.
Louis, 201 U. S. 332,
cited by the appellees, does not apply.
We shall assume for the purposes of decision that the boundary
is the middle of the main channel as it was in 1817, and address
ourselves at once to the chief issue. Some facts are clear.
Arkansas was admitted to the Union by act of Congress of June 15,
1836, c. 100, 5 Stat. 50. This act purported, in terms, to bound
the new state by the middle of the main channel -- that is, of
course, as it then was, so that, if at that time the channel was on
the Mississippi side, the act of the government imported an
understanding that the boundary of Mississippi went no farther. In
1847, 1848, and 1849, there were purchases of a great part of the
island at the United States Land Office in Helena, Arkansas, and
certificates and patents were issued by the United States
government. The titles thus created are not attacked, but are said
to have been lost by the Mississippi tax sale hereafter mentioned.
The small remnant was conveyed by the United States to Arkansas
Page 205 U. S. 220
ten years later by a patent under the Swamp Land Act. Arkansas
regularly taxed the island as far back as its books are preserved,
and presumably before. The above-mentioned greater part was
forfeited for taxes to the state. Then the state instituted a
statutory proceeding to decide whether the forfeiture was valid,
and, if not, to collect the taxes by a new sale. A new sale was
ordered in due time, made, and the deed approved by the court. The
plaintiffs are purchasers from the grantor under this sale and also
from grantees of the residue patented under the Swamp Land Act to
the state.
Thus, it is apparent that Arkansas has exercised dominion over
the island from 1847 down to recent times. The State of
Mississippi, on the other hand, only recently, and since the
channel has changed, as we shall state, has attempted to tax it. In
1891, it purported to sell the land for taxes, but the next year
the money paid was refunded to the purchaser, on the certificate of
the governor and attorney general of the state that the land was
"within the limits, and the property, of the State of Arkansas."
Later, in 1899, the state changed its mind and sold the land for
taxes again, the defendants getting their title from this sale, but
the possession of Arkansas and the plaintiffs under it has
remained. In view of these conditions, there may be a doubt whether
courts should go beyond them in a private controversy, rather than
leave it to the State of Mississippi, if dissatisfied, to bring a
suit in its own name.
See Jones v. United States,
137 U. S. 202;
Foster v.
Neilson, 2 Pet. 253;
Filhiol v. Torney,
194 U. S. 356;
Bedel v. Loomis, 11 N.H. 9;
State v. Dunwell, 3
R.I. 127;
State v. Wagner, 61 Me. 178, 184. But, however
this may be, the facts stated give us a starting point and raise a
presumption which is fortified by some further matters also beyond
dispute.
The court below finds that
"ever since 1839, and probably two or three years before that
time, up to the year 1881, the main channel was east of the island
in controversy, and, since 1881 up to the present time, west of the
island,"
the change
Page 205 U. S. 221
being due, it seems, to the washing away of the old Napoleon
island, ten miles or so above. There is no serious attempt to cast
doubt upon this finding, and we deem it correct. In connection with
the finding, it should be noticed that a Mississippi statute of
1839, repeated in the Code of 1857, p. 64, gives as one boundary of
Bolivar County, "thence down the main channel of the said
Mississippi," thus seemingly adopted the channel as it then was, on
the Mississippi side, as the true boundary, and furnishing evidence
from which we should not lightly depart. In 1849, the island was
surveyed and platted as part of Arkansas, and the survey was
certified by William Pelham, the Surveyor of Public Lands in
Arkansas. The field notes state that the main channel is on the
Mississippi side, and that the inhabitants of the island vote and
pay taxes in Arkansas. They add that the channel or chute on the
other side is wide, but in low water very shallow, and that, on
December 27, 1845, the surveyor got his skiff through with
difficulty. This is the most exact and authentic of the surveys
produced on either side.
The presumption raised by the facts thus far recited is
confirmed by the evidence of an old steamboat captain, whose
personal experience went back to 1839. He testified that he learned
under his father and brother, and that they instructed him that the
channel was on the east side in 1812. He further stated that one of
the first wood yards established on the Mississippi River for
selling wood to steamers was just above No. 76 on the Mississippi
side. Another witness, who lived in the neighborhood in 1839 and
after, testified that the channel was considered to be on the east
side, that the boats passed directly in front of her house, and
that they could not pass up the chute on the other side except in
very high water. Having in mind the finding that we have quoted, we
mention the last testimony only for the indication that it gives of
a more or less permanent condition existing at the time when the
witness' memory began.
As against this consensus of action on the part of the two
Page 205 U. S. 222
states concerned and the United States, this presumption from
the establishment of the channel for a time running back nearly or
quite to the admission of Arkansas, and this testimony from memory
and tradition, the chief reliance of the defendants is upon certain
maps and the statement in a letter to which we shall refer. The
first and most important of the maps is one of a "Reconnaissance of
the Mississippi and Ohio Rivers," made during the months of
October, November, and December, 1821, by two captains and a
lieutenant of engineers under the direction of the board of
engineers. This exhibits Chapeau island with a dry sand bar on the
Mississippi side, and indicates by dots that the channel is to the
west. If the distances are accurate, the sand bar at the top
approaches pretty near to Mississippi; but in view of the small
scale of the map and the absence of measurements there is no
sufficient warrant for assuming that the distances are accurate. As
to the indication of the channel, it would not be surprising,
considering the short time during which the reconnoiter extended,
if it had been determined by nothing more than the visible width.
But, in any event, it hardly would do more than confirm a
conjecture suggested by other sources which we shall mention that,
in some years, the western passage was as good as or better than
the more permanent one to the east.
The next map is one certified January 22, 1829, of a survey in
February, 1827, showing the Arkansas shore sectionized and the
island sketched in, with distances indicated at some points, but
not sectionized. This map cannot be said to help either side except
by speculation of an uncertain sort. The next map, however, is more
definite. It is a map of Township 21, Range 8 West, Mississippi,
said to be projected from field notes of Benjamin Griffin, also
produced, made in January and February, 1830. Here, the island is
divided up as part of the township, although not sectionized under
the United States statutes, and there are other slight indications
that the draftsman regarded the island as belonging to
Mississippi.
Page 205 U. S. 223
This map is more or less counteracted by another map of the same
township signed by Benjamin Griffin, which does not sectionize the
island, and indicates, if it indicates anything about it, that the
channel is on the east side. The field notes in two places speak of
"where the west boundary comes to the river," and they give the
width of the east channel at the top as 2,920 feet. The defendants
contend that the first mentioned of these two maps is the completed
work, but that hardly can be said to be proved.
In addition to these maps, there is some correspondence, etc,
from which it appears that the island was selected by Mississippi
under the Swamp Land Act, and that, after the selection had been
approved by the Secretary of the Interior, but before any patent
had issued, the island was sold by the state in 1854 to one Ford.
In 1859, Ford wrote to the Governor of Mississippi complaining that
Arkansas claimed jurisdiction and that the island had been disposed
of as public domain within the limits of that state, asking the
Governor to claim a patent form Washington, and enclosing a letter
to the writer, Ford, from one Downing, who is said to have been
Surveyor General of Mississippi at an earlier date. This letter is
much relied upon. It purports to answer an inquiry as to the
island, refers to the survey of 1830 or 1831, and says that, at
that time and for some years after, the island chute, as it was
called, was quite narrow, not over 100 yards wide about opposite
the middle of the island, and that, at that time, the writer never
heard of a steamboat going up or down on the east side. The main
river then passed on the west side. The writer adds that he thinks
it was in 1835 that he spent some time in examining the land in T.
21, R. 8 W., and that the island chute was quite narrow then.
Presumably this letter was written with knowledge of Ford's
object, and it hardly can be said to stand on the footing of
disinterested tradition. Whether it was admissible or not we need
not consider. It was forwarded to the Department of the Interior by
the Governor with Ford's claim. The
Page 205 U. S. 224
Commissioner answered the letter, expressing an opinion
favorable to Mississippi from inspection of the plats and Downing's
statement, and enclosing a similar opinion of a former Commissioner
in 1855, also from inspection of the plats. Both letters, however,
called for evidence of the condition in 1817, and the later one
specifically asked for an affidavit from Downing and another
disinterested witness. It was assumed that the land, or most of it,
was disposed of, and that the question would be of reimbursement.
The affidavits asked for seem not to have been furnished, and
nothing more appears to have been done until June 27, 1896. At that
date, another letter from the Acting Commissioner speaks of the
land as having been mostly disposed of before the Swamp Land Act,
and therefore not granted by it, and suggests the submission of a
list containing the 51 acres not so disposed of for approval to
Mississippi, giving the Governor sixty days for action. Nothing
further was done.
This evidence appears to us insufficient to meet the established
facts to which we have referred. It must be admitted to raise a
doubt whether the channel has not varied from time to time before
the great changes about 1881. This doubt is enhanced by other
sources of information not put in evidence, but partially referred
to by the plaintiffs at the argument. A map in Samuel Cummings'
Western Navigator, Philadelphia, 1822, vol. 1, indicates the
channel on the Arkansas side, and this is confirmed by the text.
Vol. 2, p. 44. In the Navigator, Zadok Cramer, published for a
number of years at Pittsburgh for the information of pilots, in
1806, the channel is said to be good on both sides. In 1808 and
1811, it is said that the left (east) side is the best in low
water. In 1814, 1817, and 1818, on the other hand, the best channel
is said to be on the right side at all stages. We refer to all the
years that we have seen. In view of this statement, for the very
year when Mississippi was admitted it is impossible not to
hesitate, but in Cummings' Western Pilot for 1833 we read "channel
either side: the right is nearest, and the left
Page 205 U. S. 225
is probably rather deepest," and this seems to us to have been
true for the whole time. Upon the whole evidence, we are compelled
to decide that the plaintiffs have made out their case.
Decree reversed.
MR. JUSTICE HARLAN agrees with the circuit court as to both the
facts and the law, and therefore dissents.
MR. JUSTICE PECKHAM took no part in the decision.