Ohio sought leave to file an amended bill of complaint in an
original action involving a boundary dispute with Kentucky. By the
amendment, Ohio claimed that the boundary between Ohio and Kentucky
was located in the middle of the Ohio River. The motion was
referred to the Special Master, who recommended that the motion be
denied.
Held:
1. In the exercise of its original jurisdiction, this Court is
not invariably bound by common law precedent or by current rules of
civil procedure. The requirement of a motion for leave to file a
complaint permits the Court to dispose of it at a preliminary stage
in an appropriate case, such as where the claim is barred as a
matter of law and a hearing on the issues presented "would only
serve to delay adjudication on the merits and needlessly add to the
expense that the litigants must bear." Pp.
410 U. S.
644-645.
2. Ohio's long acquiescence in the location of the Ohio-Kentucky
line at the northern edge of the Ohio River bars Ohio's present
claim that the boundary is at the middle of the river. Pp.
410 U. S.
648-652.
Motion for leave to file amended bill of complaint denied.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion
pos, p.
410 U. S.
652.
Page 410 U. S. 642
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Almost seven years ago, in March, 1966, the State of Ohio
instituted this original action against the Commonwealth of
Kentucky. By its prayer for relief in its proposed bill of
complaint, Ohio asked only that the Court declare and
establish:
"1. The boundary line between the State of Ohio and the State of
Kentucky as being the low water mark on the northerly side of the
Ohio River in the year 1792. . . ."
"2. The State of Ohio and the State of Kentucky have equal and
concurrent jurisdiction over and on all of the Ohio River from the
northerly shore to the southerly shore, except jurisdiction
incidental to the sovereignty of the soil under the river and
structures permanently attached thereto."
In its complaint, Ohio alleged:
"4. The State of Ohio was established from the land ceded by
legislative act of the Commonwealth of Virginia to the United
States on the 1st day of March, 1784, which act is known as the
Cession of Virginia."
"5. The State of Kentucky was established by the separation of
the District of Kentucky from the jurisdiction of the Commonwealth
of Virginia pursuant to that certain act of the Virginia
Legislature entitled 'An Act concerning the erection of the
district of Kentucky into an independent state,' passed on the 18th
day of December, 1789, which act is known as the Virginia-Kentucky
Compact. "
Page 410 U. S. 643
"6. The northern boundary line of the State of Kentucky was
established from the Cession of Virginia and the Virginia-Kentucky
Compact as the low water mark on the northerly side of the Ohio
River as it existed in the year 1792. [
Footnote 1]"
Ohio went on to allege: from 1910 to 1929, the United States
erected dams in the Ohio River for navigational purposes. Since
1955, it has been replacing the earlier dams with higher ones. This
has caused the waters of the river to rise and permanently inundate
various areas of both Ohio and Kentucky.
"As a result, the shores or banks of the Ohio River have been
moved farther northerly and southerly as the water levels have
increased by the damming of the river."
The north low water mark of 1792 "has been obscured by the
increased elevation of the water levels." Kentucky has claimed that
the line between the two States is
"along the present northerly shore line of the Ohio River,
rather than the 1792 northerly low water mark which is located to
the south of the present north shore line."
Ohio "does now and has always claimed . . . that the boundary
between it and Kentucky is the 1792 northerly low water mark."
Leave to file the bill of complaint was granted. 384 U.S. 982
(1966). Kentucky, by its answer, admitted the allegations of the
above-quoted numbered paragraphs of Ohio's complaint. The Court
then appointed the Honorable Phillip Forman as Special Master in
the case.
385 U. S. 83
(1966).
Five years later, in August, 1971, Ohio moved for leave to file
an amended complaint. By this amendment, Ohio would assert that the
boundary between it and Kentucky is the middle of the Ohio River,
or, only alternatively, is the 1792 low water mark on the
northerly
Page 410 U. S. 644
shore. We referred the motion to the Special Master. 404 U.S.
933 (1971). He held a hearing and, in due course, filed his report.
406 U.S. 915 (1972). The Master recommended that this Court enter
its order denying Ohio's petition for leave to amend. His
conclusion rested on the ground "that the proposed amendment, in
any view of its factual allegations, fails as a matter of law to
state a cause of action." Report 16. Upon the filing of Ohio's
exceptions and Kentucky's reply, we set the matter for argument.
409 U.S. 974 (1972).
I
Accepted procedures for an ordinary case in this posture would
probably lead us to conclude that the motion for leave to file
should be granted, and the case would then proceed to trial or
judgment on the pleadings. This, however, is not an ordinary case.
It is one within the original and exclusive jurisdiction of the
Court.Const., Art. III, § 2; 28 U.S.C. § 1251(a). Procedures
governing the exercise of our original jurisdiction are not
invariably governed by common law precedent or by current rule of
civil procedure.
See United States Supreme Court Rule 9;
Rhode Island v.
Massachusetts, 14 Pet. 210 (1840). Under our rules,
the requirement of a motion for leave to file a complaint, and the
requirement of a brief in opposition, permit and enable us to
dispose of matters at a preliminary stage.
See, for example,
Alabama v. Texas, 347 U. S. 272
(1954);
California v. Washington, 358 U. S.
64 (1958);
Virginia v. West Virginia,
234 U. S. 117,
234 U. S. 121
(1914). Our object in original cases is to have the parties, as
promptly as possible, reach and argue the merits of the controversy
presented. To this end, where feasible, we dispose of issues that
would only serve to delay adjudication on the merits and needlessly
add to the expense that the litigants must bear.
Page 410 U. S. 645
This case is peculiarly susceptible to treatment of that kind.
The allegations in Ohio's proposed amendment are not as yet
formally controverted by Kentucky. We, therefore, treat the new
material as admitted. Kentucky asserts, however, that, even
assuming the new allegations to be true, no cause of action is
stated, for the subject matter of Ohio's proposed amendment is
barred as a matter of law.
II
In
Handly's Lessee v.
Anthony, 5 Wheat. 374 (1820), this Court stated
that the boundary between Indiana and Kentucky was the low water
mark on the western or northwestern side of the Ohio River.
Handly was an action for ejectment brought by a plaintiff
claiming under a grant from Kentucky against defendants claiming
under a grant "from the United States, as being part of Indiana."
Id. at
18 U. S. 375.
The disputed land was a neck south of a channel, or bayou, that had
formed north of the main river. When the river was high, the
channel filled and cut off the land to the north. When the river
was low, the channel was dry in part, and the separation did not
exist. The resolution of the case turned on whether the land was in
Indiana or in Kentucky. Indiana, like Ohio, received its territory
from the United States. The Court in
Handly observed that
the question "depends chiefly on the land law of Virginia, and on
the cession made by that State to the United States,"
id.
at
18 U. S. 376,
and concluded that the United States acquired title from Virginia
when negotiations during the period from 1781-1784 resulted in
Virginia's ceding its lands north and west of the Ohio River to the
Federal Government. [
Footnote
2] Kentucky was received as a State of the
Page 410 U. S. 646
Union in 1792 out of territory Virginia purported to retain at
the time of the 1784 cession. The Court concluded, on the basis of
this history, that Kentucky, through Virginia, extended up to the
low water mark on the northern, or far, side of the Ohio River. Mr.
Chief Justice Marshall enunciated the following, now familiar,
principle:
"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 newly created State extends to the
river only. The river, however, is its boundary."
5 Wheat. at
18 U. S.
379.
The rule of the
Handly case, as well as its specific
application to the Kentucky-Indiana border, has been
Page 410 U. S. 647
consistently adhered to in subsequent decisions of this Court.
Indiana v. Kentucky, 136 U. S. 479
(1890) (despite Indiana's argument,
id. at 486-493
[argument of counsel -- omitted], that its boundary was the middle
of the river);
Henderson Bridge Co. v. Henderson City,
173 U. S. 52
(1899); [
Footnote 3]
Nicoulin v. O'Brien, 248 U. S. 113
(1918). It has been explicitly recognized by the Supreme Court of
Ohio in
Booth v. Shepherd, 8 Ohio St. 243, 247-248 (1858),
where it was stated with far greater precision than the mere
assumption the dissent suggests,
post at
410 U. S.
654-655, that:
"The construction given to the Virginia deed of cession by the
supreme court of the United States, having been thus acquiesced in
and acted on by the courts, both of Virginia and Ohio, may be
regarded as decisive of the question."
See also Lessee of McCullock v. Aten, 2 Ohio 307, 310
(1826);
Lessee of Blanchard v. Porter, 11 Ohio 138, 142
(1841). [
Footnote 4]
See
Commonwealth v. Garner, 3 Gratt. 655 (Gen. Court of Va.
1846).
In order to counter this history, Ohio argues that, as it was
not a party to the
Handly case, or to any of the later
cases in this Court that reaffirmed
Handly, it is not
bound by the rule there established, which it characterizes as
dictum. In particular, Ohio contends that it is free to challenge
the conclusion that Virginia, prior to ceding
Page 410 U. S. 648
the land that now encompasses both Indiana and Ohio, held good
title to that land.
Handly and the later decisions to which Ohio was not a
party, of course, do not foreclose Ohio's claim in a
res
judicata sense. But proceedings under this Court's original
jurisdiction are basically equitable in nature,
Rhode
Island v. Massachusetts, 14 Pet. 210 (1840), and a
claim not technically precluded nonetheless may be foreclosed by
acquiescence.
Indiana v. Kentucky, 136 U.S. at
136 U. S. 510,
136 U. S. 518.
We turn to that aspect of the present case.
III
By its amended complaint, Ohio seeks to reexamine an accepted
premise of the
Handly decision and, in the process of
doing so, to alter legal rights that, as a practical matter, have
long been settled. By presently claiming ownership of half the Ohio
River, Ohio does not assert that, when Virginia ceded the lands
northwest of the river, it intended to establish the river's center
as the line between Ohio and Kentucky, but, at the same time and
thus inconsistently, to establish its northern edge as the line
between Indiana and Kentucky. Rather, Ohio challenges the very
postulate underlying the
Handly decision, which must be
taken, in practical effect, as establishing the entire northern
boundary of Kentucky including its contact with Ohio. Ohio's new
theory is that Virginia did not have title to the lands north of
the Ohio River in 1784 when Virginia surrendered its claim to the
United States. Virginia's claim, it is said, was baseless. Indeed,
Ohio argues that title to these lands was hotly contested, with
Virginia, New York, Massachusetts, Connecticut, and the United
States all laying claim to the territory north of the river. The
Continental Congress, fearing the threat this controversy posed for
the youthful Nation, refused to resolve the disputed claims, and,
instead, prevailed upon each of
Page 410 U. S. 649
the claimants to forgo its claim in favor of the United States
for the common good. Accordingly, Ohio contends, the premise of
Handly -- that Virginia had title to the northwest
territory prior to ceding it to the United States, or, to say it
another way, that it was the common proprietor of lands on both
sides of the river -- is historically invalid.
We need intimate no view on the merits of Ohio's historical
analysis, for the State's long acquiescence in the location of its
southern border at the northern edge of the Ohio River, and its
persistent failure to assert a claim to the northern half of the
river, convince us that it may not raise the "middle of the river"
issue at this very late date . The 1820 decision in
Handly
necessarily placed Ohio on notice that any claim it might assert to
half the river would be precluded by the reasoning of that opinion.
The Court in
Handly concluded that the entire border
between Indiana and Kentucky was the river's northern edge.
Virginia's claim to the territory that is now Indiana arose from
the same source as its claim to what is now Ohio. The lands to
which Virginia purportedly surrendered title to the United States
in 1784 encompassed both Ohio and Indiana. [
Footnote 5] Ohio could not reasonably have believed,
after
Handly, that its claim over the northern half of the
Ohio River rested on a footing different from that of Indiana.
Page 410 U. S. 650
Indeed, Ohio consistently has recognized that
Handly
and the cases that followed it foreclosed any claim that its border
was located in the middle of the river. Even its original 1966 bill
of complaint and supporting brief [
Footnote 6] in this case so state. The decisions of Ohio's
highest court are to the same effect. And Ohio, for over 150 years,
has failed to assert, through proceedings available in this Court,
the claim it now would raise in the face of Kentucky's legislative
[
Footnote 7] and judicial
[
Footnote 8] assertions of
sovereignty over the river.
Ohio does not say that its failure to assert its claim over the
past century and a half is due to any excusable neglect. The
implications of
Handly and later decisions
Page 410 U. S. 651
of this Court are too clear to support that claim. Ohio
recognized this in its initial brief here. [
Footnote 9] Nor, in the light of the longstanding and
unequivocal claims of Kentucky over the river, and Ohio's failure
to oppose those claims, may Ohio credibly suggest that it has not
acquiesced.
"The rule, long-settled and never doubted by this court, is that
long acquiescence by one state in the possession of territory by
another and in the exercise of sovereignty and dominion over it is
conclusive of the latter's title and rightful authority."
Michigan v. Wisconsin, 270 U.
S. 295, 308 (1926). To like effect are
Vermont v.
New Hampshire, 289 U. S. 593, 613
(1933);
Maryland v. West Virginia, 217 U. S.
1,
217 U. S. 42-44
(1910);
Louisiana v. Mississippi, 202 U. S.
1, 554 (1906);
Virginia v. Tennessee,
148 U. S. 503,
148 U. S. 523
(1893);
Indiana v. Kentucky, 136 U.S. at
136 U. S.
509-510, 518;
Rhode Island v.
Massachusetts, 4 How. 591,
45 U. S. 639
(1846). [
Footnote 10]
Here, we have not only long acquiescence by Ohio in Kentucky's
open claims over the river, but also lines of cases by this Court
and the courts of both Ohio and Kentucky that, for more than 150
years, placed Ohio on consistent notice of the inadequacy of the
claim it now asserts. We find ourselves in agreement with the
Special Master that Ohio is foreclosed from claiming that its
Page 410 U. S. 652
boundary with Kentucky lies in the middle of the Ohio River.
The Special Master's recommendation is adopted, and Ohio's
motion for leave to amend its bill of complaint is denied. The case
is remanded to the Special Master for further proceedings.
It so ordered.
[
Footnote 1]
1792 is the year Kentucky became a State. 1 Stat. 189.
[
Footnote 2]
Recommendation of the Continental Congress, September 6, 1780,
10 W. Hening, Laws of Virginia 562 (1822); Resolution of the
General Assembly of Virginia, January 2, 1781, conditioned, among
other things, upon ratification of the Articles of Confederation
and upon like cessions by other States,
id. at 564, 567;
Act of the Continental Congress, September 13, 1783, 25 J. of the
Cont.Cong. 1774-1789, p. 559 (1922); Act of Confirmation, October
20, 1783, 11 W. Hening, Laws of Virginia 326 (1823); Act of the
Continental Congress, March 1, 1784, 1 Laws of the United States
472 (B. & D. ed. 1815).
The 1781 Virginia resolution recited that the Commonwealth
"will yield to the congress of the United States . . . all
right, title, and claim that the said commonwealth hath to the
lands northwest of the river Ohio."
10 W. Hening, Laws of Virginia 564 (1822). Among the proposed
conditions was also a guarantee by the United States to Virginia of
"all the remaining territory of Virginia included between the
Atlantic Ocean and the south east side of the river Ohio."
Id. at 566. This latter condition was not agreed to by the
Congress by its Act of 1783. 25 J. of the Cont.Cong. 1774-1789, p.
563 (1922).
The 1783 Act referred to territory "to the north-west of the
river Ohio." 11 W. Hening, Laws of Virginia 327. So, too, did the
deed of March 1, 1784, from Virginia to the United States accepted
by Congress on the same day. 1 Laws of the United States,
supra, at 474.
[
Footnote 3]
"Upon this question of boundary, nothing can be added to what
was said in the cases cited, and it must be assumed as indisputable
that the boundary of Kentucky extends to low-water mark on the
western and northwestern banks of the Ohio River."
Henderson Bridge Co. v. Henderson City, 173 U.
S. 592,
173 U. S. 613
(1899).
[
Footnote 4]
There is a possible intimation to the contrary in the bridge tax
case of
Covington & Cincinnati Bridge Co. v. Mayer, 31
Ohio St. 317, 327, 329 (1877). The case appears, however, to have
been resolved on the content of the bridge company's Ohio charter
granting permission for the erection of the bridge.
See
Sebastian v. Covington & Cincinnati Bridge Co., 21 Ohio
St. 451 (1871).
[
Footnote 5]
See Indiana v. Kentucky, 136 U.
S. 479,
136 U. S. 505
(1890).
See also the deed of March 1, 1784, referred to in
n 2,
supra, from
Virginia to the United States. On August 7, 1789, Congress passed
"An Act to provide for the Government of the Territory Northwest of
the river Ohio." 1 Stat. 50. In 1800, this territory was divided
into two separate governments. 2 Stat. 58. And on April 30, 1802,
the enabling Act for the admission of Ohio was passed. 2 Stat. 173.
The State was formed out of the eastern half of the theretofore
divided territory and was "bounded . . . on the south by the Ohio
river,"
ibid.; the land in the eastern division not
included within the boundaries described for Ohio "is hereby
attached to, and made a part of the Indiana territory."
Id. at 174.
[
Footnote 6]
"The State of Ohio does now, and has always, claimed and
maintained that the boundary between it and the State of Kentucky
is the
northerly low water mark of the Ohio River, as that
mark existed
in the year 1792, when Kentucky became a
state."
Brief in support of motion for leave to file complaint 8.
(Emphasis in original.)
[
Footnote 7]
In 1810, a decade before the
Handly decision, the
Kentucky Legislature enacted the following statute:
"Sec. 1
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."
Acts of Kentucky, 1809, p. 100 (1810); 1 Statute Laws of
Kentucky 268 (1834).
See also 2 Ky.Rev.Stat., Tit. 1, c. 1, p. 2 (1971).
[
Footnote 8]
Commonwealth v. Henderson County, 371
S.W.2d 27, 29-30 (1963);
Louisville Sand & Gravel Co.
v. Ralston, 266
S.W.2d 119, 121-122 (1954);
Shannon v. Streckfus Steamers,
Inc., 279 Ky. 649, 653, 131 S.W.2d 833, 835 (1939);
McFarland v. McKnight, 45 Ky. 500, 510 (1846);
Church
v. Chambers, 3 Dana 274, 278-279 (Ct.App. Ky. 1835);
Fleming v. Kenney, 27 Ky. 155, 158 (1830);
McFall v.
Commonwealth, 2 Metc. 394, 396 (Ky. 1859).
[
Footnote 9]
"Like Ohio, the State of Indiana was formed from the land ceded
by Virginia; therefore, it has for its southern boundary the Ohio
River.
See 3 Stat. 289 (1816), and 3 Stat. 399 (1816).
Thus, a determination of the boundary between the states of Indiana
and Kentucky would control the determination of the boundary
between the states of Ohio and Kentucky."
Brief in support of motion for leave to file complaint 10.
[
Footnote 10]
The situation, of course, is otherwise when the States' boundary
dispute has been open, continuous and of long standing.
See,
for example, New Jersey v. Delaware, 291 U.
S. 361,
291 U. S.
376-377 (1934);
Oklahoma v. Texas, 272 U. S.
21,
272 U. S. 46-47
(1926);
Arkansas v. Tennessee, 246 U.
S. 158,
246 U. S. 172
(1918).
MR. JUSTICE DOUGLAS, dissenting.
The State of Ohio instituted this original action to locate the
boundary between it and the Commonwealth of Kentucky on the Ohio
River. The initial complaint recognized Kentucky's northern
boundary as following "the low water mark on the northerly side of
the Ohio River as it existed in the year 1792," [
Footnote 2/1] but asserted that subsequent events
had altered the location of the low-water mark. Today the Court
denies Ohio's request that it be permitted to amend its complaint
to plead an alternative boundary theory: that the true boundary
between the States is in the middle of the Ohio River. [
Footnote 2/2]
Basic concepts of pleading preclude determination of factual
issues in testing the sufficiency of a claim. [
Footnote 2/3] The appropriate question for the
Court at this stage of the proceedings, therefore, is whether, if
the facts as stated by Ohio are true, a valid legal issue is
tendered. Ohio asserts that Virginia, Kentucky's predecessor in
title, never held ownership rights to both banks of the Ohio River,
and that, accordingly, Kentucky's current claim to land underlying
the northern side of the Ohio River is invalid. [
Footnote 2/4] The question before us is equivalent
to that
Page 410 U. S. 653
posed by a demurrer. The majority's conclusion of insufficiency
is, therefore, not sustainable.
The Court's decision is a determination upon the merits of
Ohio's proffered allegations, and should be made only after all the
evidence is before it. The Master concludes, and the Court agrees,
that Ohio has acquiesced to Kentucky's ownership of the northern
half of the Ohio River as established by adjudications in this
Court. Although I find such consideration of the merits to be
premature, the Court's reasoning prompts me to review the case law
upon which estoppel is urged.
The Ohio River serves as the boundary between the States of
Kentucky and Indiana, as well as the boundary between the parties
to this suit, Kentucky and Ohio. During the 19th century, this
Court dealt with the nature of the Kentucky-Indiana boundary in two
cases.
Handly's Lessee v.
Anthony, 5 Wheat. 374 (1820), and
Indiana v.
Kentucky, 136 U. S. 479
(1890). Later cases dealt with issues that turned upon the boundary
determination
Page 410 U. S. 654
of
Handly's Lessee. [
Footnote 2/5] Based upon a historical analysis that Ohio
here contests, the Court held in the
Handly case that the
Kentucky-Indiana boundary coincides with the northern low-water
mark of the Ohio River. [
Footnote
2/6] Ohio, of course, was not involved in that litigation. Yet
the Master's recommendation that is now adopted would bind Ohio
today to a determination made in 1820 in a case to which it was not
a party. And, since the doctrine of
res judicata does not
reach so far, reliance is placed upon an estoppel theory. Simply
stated, Kentucky contends that Ohio has lost whatever rights it may
once have had to challenge the Kentucky claim to land underlying
the northern half of the Ohio River by failing to object earlier
and by recognizing the boundary rationale that was applied to
Indiana in cases tried in Ohio courts since 1820. Ohio disputes the
suggestion.
First, Ohio notes that the argument it wishes to present to
substantiate a claim to the center of the river has not been
considered by this Court. The early cases turned, instead, on the
assumption that Virginia's prior title, upon which Kentucky's
claims are predicated, was valid as to the land involved. [
Footnote 2/7] Ohio additionally points out
that the three Ohio cases proffered as evidence of Ohio's
recognition of Kentucky's claim to the northern half of the river
[
Footnote 2/8] concerned private
disputes that hinged upon location of the river's edge, rather than
a determination as to the boundary between the States. That the
further determination was not required is
Page 410 U. S. 655
made clear by the language of those cases. [
Footnote 2/9] The most recent of the three, indeed,
states quite explicitly:
"It does not become necessary, in this case, to determine
whether the middle of the Ohio River . . . does or does not
constitute the boundary line between the states of Virginia and
Ohio. For all the purposes of this case, it may be assumed that
Virginia was the original, undisputed owner of the territory on
both sides of the river, and still retains all that she did not
part with by her deed of cession in 1784. [
Footnote 2/10]"
Ohio now wishes to question precisely that assumption. In
prematurely judging the issues and pretermitting briefing and
argument of Ohio's attack on the validity of Virginia's title, the
Court does disservice both to the adjudication of this dispute and
to the procedural contours of original actions. I would allow Ohio
to amend its complaint so that the merits might be reached in due
course.
[
Footnote 2/1]
Complaint � 6.
[
Footnote 2/2]
Amended complaint � 1-3.
[
Footnote 2/3]
F. James, Civil Procedure § 4.1, p. 127;
Conley v.
Gibson, 355 U. S. 41,
355 U. S.
45-46.
[
Footnote 2/4]
Virginia's claim of title rests upon the charter granted by King
James I to the London Company in 1609. Ohio argues that later
events, including the revocation of the charter in 1624 when
Virginia became a Crown colony, 1 J. Marshall, The Life of George
Washington 69; 2 W. Hening's Stat. at Large 525-526; 1 Laws of the
United States 465 (B. & D. ed. 1815) (hereinafter Laws), and
the ceding by the French to the British of the Eastern Mississippi
Valley north of the Ohio River under the Treaty of Paris in 1763, 1
Laws 441-442; A. Shortt & A. Doughty, Documents Relating to the
Constitutional History of Canada, 1759-1791, pp.113, 116, sharply
curtailed Virginia's reach and that the middle of the river was
intended as the boundary between old and new States by the United
States following the Revolution. It seeks to substantiate this
final point by references to various laws that prescribe the
boundaries of new States, 1 Laws 475, 480, provide for navigational
rights,
id. at 479-480, and speak in general terms of
Virginia, Kentucky, and Tennessee as the lands south, or south and
east, of the Ohio River, and of Ohio, Indiana, and Illinois as the
lands to the north, or the north and west, 2 Laws 14, 104, 138,
179, 311, 421, 533; 3 Laws 367, 385, 396, 596, 612.
[
Footnote 2/5]
Henderson Bridge Co. v. Henderson City, 173 U.
S. 592 (1899);
Wedding v. Meyler, 192 U.
S. 573 (1904);
Nicoulin v. O'Brien,
248 U. S. 113
(1918).
[
Footnote 2/6]
Handly's Lessee v.
Anthony, 5 Wheat. 374,
18 U. S. 377,
18 U. S.
379.
[
Footnote 2/7]
See ibid.; Indiana v. Kentucky, 136 U.
S. 479,
136 U. S. 503
504.
[
Footnote 2/8]
Lessee of McCullock v. Aten, 2 Ohio 307 (1826);
Lessee of Blanchard v. Porter, 11 Ohio 138 (1841);
Booth v. Shepherd, 8 Ohio St. 243 (1858).
[
Footnote 2/9]
2 Ohio at 310 (discussing only ownership of the land above the
water line but below the bank); 11 Ohio at 13140 ("The defendant's
deed conveys the soil
to the top of the river bank, and
reserves the "break and slope," between that point and the
river").
[
Footnote 2/10]
8 Ohio St. at 245-246 (noting that, "In the case of
Handly's
Lessee v. Anthony, the supreme court of the United States,
proceed[ed] on the
assumption that Virginia was the
original proprietor of both sides of the river . . ." (emphasis
added)).