The Special Master's Report, to the extent that it recommends
that the relevant boundary between Texas and Louisiana be the
geographic middle of Sabine Pass, Lake, and River (collectively
Sabine) and not the west bank or the middle of the main channel and
that all islands in the east half of the Sabine when Louisiana was
admitted as a State in 1812, or thereafter formed, should be
awarded to Louisiana, is adopted; decision on the Report with
respect to islands in the west half of the Sabine existing in 1812
or thereafter formed, is deferred pending further proceedings, in
which the United States is invited to participate, and which the
Special Master is to conduct. Pp.
410 U. S.
704-714.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
410 U. S.
714.
Page 410 U. S. 703
MR. JUSTICE WHITE delivered the opinion of the Court.
Texas brought this original action against Louisiana to
establish its rights to the jurisdiction and ownership of the
western half of Sabine Pass, Sabine Lake, and Sabine River
(collectively Sabine) from the mouth of the Sabine in the Gulf of
Mexico to the thirty-second degree of north latitude, and to obtain
a decree confirming the boundary of the two States as the
geographic middle of the Sabine. After the motion to file was
granted, 397 U.S. 931 (1970), Louisiana filed motions, answer, and
counterclaim asserting that its boundary was on the west bank of
the Sabine; and the case was referred to a Special Master, 398 U.S.
934 (1970).
The Report of the Special Master and the parties' exceptions are
now before us. The Special Master's recommendations are that the
geographic middle, not the west bank or the middle of the main
channel, is the boundary between the two States; that all islands
in the Sabine when Louisiana was admitted as a State in 1812 should
be awarded to Louisiana subject to prescriptive claims, if any, by
Texas to such islands; that all islands formed in the east half of
the Sabine after 1812 belong to Louisiana, and those in the west
half to Texas. The Special Master contemplates further proceedings
to determine what islands were in the Sabine in 1812 and what
prescriptive claims Texas may have to such islands. Louisiana's
exceptions maintain that its boundary is not the geographic middle,
but the west bank of the Sabine, or alternatively, the main channel
of the stream as it existed in 1812 west of the most westerly
islands. Louisiana also claims all islands in the Sabine, whether
existing in 1812 or thereafter formed. The exception filed by Texas
asserts its right to all islands in the west half of
Page 410 U. S. 704
the river but proposes that the question of ownership be
deferred pending the outcome of the proposed additional proceedings
with respect to islands that may have existed as of 1812.
Oral argument was heard on the exceptions. We now approve and
adopt the report of the Special Master except his conclusions with
respect to ownership of islands in the western half of the
Sabine.
I
In an Enabling Act approved February 20, 1811, 2 Stat. 641,
Congress authorized the inhabitants of a portion of the Louisiana
Territory ceded under the Treaty between the United States and
France on April 30, 1803, 8 Stat. 200, to seek statehood. The
Sabine boundary for what was to become the State of Louisiana was
described as
"beginning at the mouth of the river Sabine, thence by a line to
be drawn along the middle of the said river, including all islands
to the thirty-second degree of latitude. . . ."
2 Stat. 641. The 1812 Louisiana Constitution described the
State's western boundary in substantially the same manner,
[
Footnote 1] and the Act of
Admission of April 8, 1812, 2 Stat. 701, employed language
identical to that of the Enabling Act.
Preceding this period, and for some time thereafter, the western
boundary of the United States was in doubt. Negotiations between
the United States and Spain from 1803 until 1819 culminated in the
Treaty of Amity, Settlement, and Limits, 1819, 8 Stat. 252. Under
this treaty, the boundary "between the two countries" was in
relevant part established along the west bank of the Sabine, 8
Stat. 254; the United States relinquished all of Texas
Page 410 U. S. 705
west of that boundary in exchange for Florida and the Spanish
claim to the Oregon Territory; and it was provided that all islands
in the Sabine belonged to the United States.
The United States renewed its efforts to acquire Texas, and,
when Mexico declared its independence from Spain in 1821, the
United States began negotiating anew for the purchase of Texas. In
the Treaty of Limits, 1828, 8 Stat. 372, the United States and
Mexico recognized the boundary "between the two countries,"
id. at 374, on the west bank of the Sabine as established
in the 1819 treaty with Spain. [
Footnote 2] Texas declared its independence from Mexico in
1836, 1 Laws, Republic of Texas, 3-7, in Gammel's Laws of Texas
1822-1897, was recognized as an independent nation by the United
States in 1837, Cong.Globe, 24th Cong., 2d Sess., 83, 270, and, in
1838, the Sabine boundary agreed upon with Spain in 1819, and with
Mexico in 1828, was adopted by the United States and Texas, 8 Stat.
511. [
Footnote 3] The Sabine
boundary remained unchanged when Texas was admitted as a State in
1845, 9 Stat. 108.
In 1848, the legislatures of Texas and Louisiana passed
competing resolutions, each requesting consent of Congress to
establish its jurisdiction over the Sabine between the middle and
the western bank. [
Footnote 4]
Congress passed an
Page 410 U. S. 706
Act in 1848 giving its consent to Texas to extend its eastern
boundary from the west bank of the Sabine to the middle, 9 Stat.
245, the Act stating:
"[T]his Congress consents that the legislature of
Page 410 U. S. 707
the State of Texas may extend her eastern boundary so as to
include within her limits one half of Sabine Pass,
one
half of Sabine Lake, also
one half of Sabine River,
from its mouth as far north as the thirty-second degree of north
latitude."
(Emphasis added.)
II
We agree with the Special Master that the western boundary of
Louisiana is the geographical middle of the Sabine River, not its
western bank or the middle of its main channel. Congress had the
authority to admit Louisiana to the Union and to establish the
boundaries of that State. U.S.Const., Art. IV, § 3;
United
State!s v. Louisiana, 363 U. S. 1,
363 U.S. 30,
363 U. S. 60-62,
363 U. S. 67
(1960);
Washington v. Oregon, 211 U.
S. 127,
211 U. S.
134-135 (1908). Hence, our task is to ascertain
congressional will when it admitted Louisiana into the Union on
April 8, 1812, and established her relevant western boundary as
"beginning at the mouth of the river Sabine; thence, by a line
to be drawn along the middle of said river, including all islands
to the thirty-second degree of latitude. . . ."
2 Stat. 702. The statute in this respect was identical with the
Enabling Act of the prior year and differed hardly at all from the
Preamble to the Louisiana Constitution of January 22, 1812. The
Louisiana Legislature resolved in 1848 that the State's
jurisdiction should be "extended" to the western half of the river,
reciting that neither it nor any other State had authority over
that portion of the Sabine.
See n 4,
supra. Texas made a similar request,
see n 4,
supra, Congress acceding to the latter and consenting that
Texas could
"extend her eastern boundary so as to include within her limits
one half of Sabine Pass, one half of the Sabine Lake, also one half
of Sabine River, from its mouth . . . [to] the thirty-second degree
of north latitude."
9 Stat. 245. On the floor of the Senate, Mr. Butler, speaking
for the Judiciary
Page 410 U. S. 708
Committee, stated that the boundaries of the United States
extended to the western shore of the Sabine, but that the boundary
of the State of Louisiana extended only to the middle, the result
being that "the half of the river and lake, to the western shore,
belonged to the United States, and was not included in the State of
Louisiana. . . ." Cong.Globe, 30th Cong., 1st Sess., 882. Hence,
the bill, which gave "the half of the river beyond the boundary of
the State of Louisiana to the State of Texas. . . ."
Ibid.
The bill passed, both Senators from Louisiana expressing "their
acquiescence in the arrangement."
Ibid. [
Footnote 5]
There is not a whisper in these statutes and instruments that
the western boundary of Louisiana was on the west bank of the
Sabine. Clearly, the boundary was
Page 410 U. S. 709
along the "middle" of the Sabine, not on the west bank Louisiana
argues, without substance we think, that the boundary was extended
to the west bank by the Treaties of 1819 and 1828 with Spain and
Mexico respectively, when the United States established and
confirmed its own western boundary on the west bank of the Sabine.
As the Special Master correctly noted, however, the United States
was acting in its sovereign capacity throughout these events, and
there is no indication that the United States was in any way
representing Louisiana or intending to relocate the State's western
border. Nor was there reason to do so. On the contrary, admission
of States beyond the Sabine was some day contemplated, and it was
more consistent with the policy of the United States to grant only
the east half of the river to Louisiana and reserve the west half
for a future State or States.
See United States v. Holt State
Bank, 270 U. S. 49,
270 U. S. 55
(1926);
Shively v. Bowlby, 152 U. S.
1,
152 U. S. 26-28,
152 U. S. 57-58
(1894).
The Special Master was also correct in ruling that the United
States intended the geographic middle of the river, not of the main
channel, or thalweg, to be the western boundary of the State. The
argument that the middle of the main channel was intended rests on
the line of cases in this Court beginning with
Iowa v.
Illinois, 147 U. S. 1 (1893),
which hold that, in normal circumstances, it should be assumed
Congress intends the word "middle" to mean "middle of the main
channel" in order that each State would have equal access to the
main navigable channel. [
Footnote
6] The doctrine was borrowed from international
Page 410 U. S. 710
law and has often been adhered to in this Court, although it is
plain that within the United States two States bordering on a
navigable river would have equal access to it for the purposes of
navigation whether the common state boundary was in the geographic
middle or along the thalweg.
Id. at
147 U. S. 7-8,
147 U. S. 10;
New Jersey v. Delaware, 291 U. S. 361,
291 U. S.
380-385 (1934).
In
Iowa v. Illinois, however, the Court recognized that
the issue was the intent of Congress, 147 U.S. at
147 U. S. 11, and
that it was merely announcing a rule of construction with respect
to statutes and other boundary instruments. Thus, it was
acknowledged that the rule might be "changed by statute or usage of
so great a length of time as to have acquired the force of law."
Id. at
147 U. S. 10.
When Congress sufficiently indicates that it intends a different
boundary in a navigable river, the thalweg rule will not apply.
[
Footnote 7] In
Washington
v. Oregon, 211 U. S. 127
(1908), the usual rule of the thalweg was recognized, but the Court
said that "there is no fixed rule making that the boundary between
States bordering on a river."
Id. at
211 U. S. 134.
The Act admitting Oregon was construed by the Court as placing the
northern boundary of the State in the northern channel of the
Columbia River and as intending it to remain there even
Page 410 U. S. 711
though that channel ceased to be the main navigable channel in
the Columbia.
It was therefore imperative for the Special Master to look to
congressional intent; and if it was sufficiently clear that
Congress intended the Louisiana boundary to be the geographic
middle of the Sabine, rather than the thalweg, it was his duty to
establish the border along the former line. His conclusion was
surely consistent with the controlling instruments -- "along the
middle of the . . . river." It is also apparent that the parties to
the Act of Admission, the United States and Louisiana, both
evidenced their understanding of the 1811 Enabling Act, the 1812
Constitution of Louisiana, and the 1812 Act of Admission when the
Legislature of Louisiana and the Congress of the United States
expressly recited in 1848 that the western boundary of Louisiana
included only the east half of the Sabine, not the west half.
Whatever may be the normal significance of a later congressional
indication of the meaning of an earlier statute,
see, e.g.,
Glidden Co. v. Zdanok, 370 U. S. 530,
370 U. S. 541
(1962);
Great Northern R. Co. v. United States,
315 U. S. 262,
315 U. S. 273,
315 U. S. 277
(1942);
Brewster v. Gage, 280 U.
S. 327,
280 U. S. 337
(1930);
Tiger v. Western Investment Co., 221 U.
S. 286,
221 U. S. 309
(1911), here the question concerns the 1812 boundary between the
United States and Louisiana, and in light of Art. IV, § 3, cl. 2,
of the Constitution empowering Congress "to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States," we think the Act of 1848
and the events connected with its passage had special significance
as a construction by the United States and Louisiana of the earlier
act admitting Louisiana to the Union.
Cf. Washington v.
Oregon, 211 U.S. at
211 U. S. 135.
At least, the indications are clear enough to us that we shall not
apply the rule of the thalweg in this case.
Page 410 U. S. 712
The Special Master also concluded that, even if he was in error
in rejecting Louisiana's claim with respect to the original
location of her western boundary, Texas must still prevail by
reason of prescription and acquiescence. Because we are satisfied
with our conclusion, already reached, with respect to the boundary
location, we need not pass upon this aspect of the Special Master's
Report, although we note that the facts relied upon by him are
consistent with and support the other ground for his conclusion as
to Louisiana's Sabine boundary.
III
With respect to islands in the Sabine it is conceded that
Louisiana owns all islands in the eastern half of the river,
whether existing in 1812 or thereafter formed. As to islands in the
west half, the Special Master concluded that, by virtue of the 1812
Act of Admission Louisiana owns all islands that then existed in
that portion of the river, but rejected her claims to islands
thereafter formed in the western half. All later formed islands in
that half of the river, he concluded, belonged to the State of
Texas.
We shall withhold judgment with respect to the ownership of
islands in the western half of the Sabine River. Further
proceedings with respect to these islands are contemplated in any
event, and it is our view that the United States should be
requested to present any claims it may have to any of the islands
in the western half of the Sabine south of 32 degrees north
latitude and, if it so desires, to present evidence and argument
with respect to the ownership of such islands. The Special Master
should then determine whether his Report in this respect should be
modified and complete the proceedings with respect to the ownership
of the Sabine islands. Our reasons for so directing will be briefly
stated.
Page 410 U. S. 713
It is the unquestioned rule that States entering the Union
acquire title to the lands under navigable streams and other
navigable waters within their borders.
Scott v. Lattig,
227 U. S. 229,
227 U. S.
242-243 (1913);
County of St. Clair v.
Lovingston, 23 Wall. 46,
90 U. S. 68
(1874);
Pollard's Lessee v.
Hagan, 3 How. 212,
44 U. S.
228-230 (1845). But the rule does not reach islands or
fast lands located within such waters. Title to islands remains in
the United States, unless expressly granted along with the
streambed or otherwise. This was the express holding of
Scott
v. Lattig, supra.
In that case, a dispute arose over the ownership of an island
located east of the thalweg of the Snake River, which was the
western boundary of the State of Idaho. It appeared that, after
Idaho came into the Union, and thereby acquired title to the river
bed on its side of the thalweg, the United States patented riparian
lands opposite the island, and the patentees claimed the island
under the laws of Idaho as against a settler seeking to homestead
the property under the laws of the United States. The homesteader
prevailed in this Court because title to the island remained in the
United States:
"But the island, which we have seen was in existence when Idaho
became a State, was not part of the bed of the stream or land under
the water, and therefore its ownership did not pass to the State or
come within the disposing influence of its laws. On the contrary,
although surrounded by the waters of the river and widely separated
from the shore, it was fast dry land, and therefore remained the
property of the United States and subject to disposal under its
laws, as did the island which was in controversy in
Mission
Rock Co. v. United States, 109 Fed. Rep. 763, 769-770, and
United
States v.
Page 410 U. S. 714
Mission Rock Co.,189 U.S.
391."
227 U.S. at
227 U. S.
244.
In the case before us, it is probably correct that, once the
eastern boundary of Texas was extended to the middle of the river
in 1848, that State became entitled to any islands in the west half
which formed after the date of that extension. But unless the 1848
Act conveyed to Texas the islands located in the western half of
the river at that time, title to those islands remained in the
United States, if the United States had not previously conveyed all
or part of them to Louisiana. The 1848 Act, however, does not
mention islands in the Sabine, and it would therefore appear, if
Lattig is to be followed, that the United States has an
interest in any proceedings to determine the ownership of islands
in the west half of the Sabine and should be a party to, or at
least have the opportunity to participate in, such proceedings.
Texas claims any such islands existing prior to 1848 by
prescription and acquiescence, but, plainly, a State may not
acquire property from the United States in this manner.
United
States v. California, 332 U. S. 19,
332 U. S. 39-40
(1947)
We shall accordingly await the result of further proceedings
before the Special Master with respect to the ownership of islands
in the western portion of the Sabine. In all other respects, the
exceptions of the parties are overruled, and the report of the
Special Master is confirmed.
So ordered.
[
Footnote 1]
The preamble to the 1812 Louisiana Constitution described the
boundary as along the middle of the Sabine, "including all
its islands." (Emphasis added.)
[
Footnote 2]
Neither the 1819 Treaty nor the 1828 Treaty mentions Louisiana
or its western boundary.
[
Footnote 3]
Texas' relevant boundary along the Sabine thus began
"on the gulf of Mexico, at the mouth of the river Sabine, in the
sea, continuing north along the western bank of that river, to the
32d degree of latitude. . . ."
8 Stat. 374.
[
Footnote 4]
The Louisiana Resolution, passed on March 16, 1848, and
presented to Congress, provided in pertinent part:
"Whereas the constitution and the laws of the State of
Louisiana, nor those of any other State or territory, extend over
the waters of the Sabine river from the middle of said stream to
the western bank thereof; and that it is of importance to the
citizens living contiguous thereto, and to the people in general,
that the jurisdiction of some State should be extended over said
territory, in order that crimes and offences committed thereupon
should be redressed in a speedy and convenient manner: "
"
Therefore be it resolved by the Senate and House of
Representatives of the State of Louisiana in General Assembly
convened, 1st. That the constitution and the jurisdiction of
the State of Louisiana shall be extended over part of the United
States, embraced in the following limits (whenever the consent of
the Congress of the United States can be procured thereto,)
viz: "
"Between the middle of the Sabine river and the western bank
thereof, to begin at the mouth of said river where it empties into
the Gulf of Mexico, and thence to continue along the said western
bank to the place where it intersects the thirty-second degree of
north latitude, it being the boundary line between the said State
of Louisiana and the States of --"
"2d.
Be it further resolved, etc., That our Senators be
instructed, and our Representatives in Congress requested, to
procure the passage of a law on the part of the United States,
consenting to the extension of the constitution, and the
jurisdiction of the laws of the State of Louisiana, over the
territory in said river."
S. Misc. Doc. No. 135, 30th Cong., 1st Sess.
The Resolution adopted by Texas on March 18, 1848, stated in
relevant part:
"
Resolution of the Legislature of Texas, in favor of the
passage of an act, extending the jurisdiction of that State over
the Sabine pass, the Sabine lake, and the Sabine river, April 17,
1848."
"
Joint Resolution instructing our Senators and requesting
our Representatives in Congress to use their efforts to have a law
passed to extend the jurisdiction of Texas over one half of Sabine
poss, lake, and river."
"SEC. 1.
Be it resolved by the Legislature of the State of
Texas, That our Senators be instructed, and our
Representatives in Congress be requested, to use their efforts to
have a law passed by Congress, extending the jurisdiction of Texas
over one half of the waters of Sabine lake, Sabine pass, and Sabine
river, up to the 32� of north latitude."
S. Misc. Doc. No. 123, 30th Cong., 1st Sess.
[
Footnote 5]
The full report of the action by the Senate, Cong.Globe, 30th
Cong., 1st Sess., 882, is as follows:
"Mr. Butler, from the Committee on the Judiciary, reported an
act giving the consent of the Government of the United States to
the State of Texas to extend the eastern boundary
so as to
include within her limits one-half of the Sabine Pas, Sabine Lake,
and Sabine River as far north as the 32� of north
latitude."
"Mr. B. asked for the immediate consideration of the bill, and
briefly explained its character. The boundary of the United States,
it was known, embraced the Sabine River and lake to its western
shore. The boundary of the State of Louisiana extended to the
middle of the Sabine;
so that the half of the river and lake,
to the western shore, belonged to the United States, and was not
included in the State of Louisiana; therefore, the boundary of
the State and that of the United States, was not identical. The
bill before the Senate gives the half of the river beyond the
boundary of the State of Louisiana to the State of Texas, for the
purpose of enabling the latter to extend her criminal jurisdiction
to the Louisiana boundary. There could be no objection to the bill,
and he hoped it would now be passed."
"Mr. Johnson, of La., and Mr. Downs in behalf of the State of
Louisiana, expressed their acquiescence in the arrangement."
"The bill was then read a third time and passed."
(Emphasis added.)
[
Footnote 6]
That the "middle" of a river was to be construed as the thalweg
in establishing the boundary between the States newly admitted to
the Union was not authoritative doctrine prior to 1892, when
Iowa v. Illinois, 147 U. S. 1, was
decided, and certainly not when Louisiana was admitted to the Union
in 1812. The opinion in
Iowa v. Illinois, supra, referred
to five treatises on international law in support of its holding,
but noted the sharp conflict on the thalweg rule between the
Illinois and Iowa courts. In
Dunlieth & Dubuque Bridge Co.
v. County of Dubuque, 55 Iowa 558, 8 N.W. 443 (1881), though
the phrase in question was "middle of the main channel," certainly
a phrase that would lend itself to a thalweg construction, the
court instead ruled that the phrase meant the middle of the river
bed, while in
Buttenuth v. St. Louis Bridge Co., 123 Ill.
535, 17 N.E. 439 (1888), the court construed the phrase "middle of
the Mississippi River" as being under the thalweg doctrine. After
reviewing both cases, this Court chose the latter rule of
construction.
[
Footnote 7]
A sufficiently expressed intent of Congress also overrides the
usually applicable "equal-footing" rule,
United States v.
Louisiana, 363 U. S. 1,
363 U. S. 76-77
(1960).
MR. JUSTICE DOUGLAS, dissenting.
Louisiana was admitted into the Union in 1812. 2 Stat. 701. The
Constitution of Louisiana of 1812 described her western boundary
as
"beginning at the mouth of the river Sabine, thence by a line to
be drawn along the middle of said river, including all its islands,
to the
Page 410 U. S. 715
thirty-second degree of latitude. . . ."
That was the description [
Footnote
2/1] that was recited in the 1812 Act in which Congress
approved the Constitution of Louisiana. 2 Stat. 702. There remained
a controversy between this Nation and Spain over this western
boundary and the Treaty of 1819 settled the question by the only
authority that could establish a boundary with a foreign
government.
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S.
725.
That treaty provided that the boundary should start "at the
mouth of the river Sabine, in the sea, continuing north, along the
western bank of that river, to the 32d degree of latitude." 8 Stat.
252, 254, 256. When Texas was admitted to the Union in 1845, 9
Stat. 108, that same boundary was used to describe her eastern
line. 8 Stat. 372, 374. The Treaty of 1828 recognized that as the
boundary line between Louisiana and Texas for it was the boundary
between the United States and Mexico, of which Texas was a part. 8
Stat. 372. Texas did not come into the Union until 1845. The Treaty
of 1819 read in context means that Louisiana's western border,
coinciding with that of the United States, was the western bank of
the Sabine.
The 1819 Treaty does not mention Louisiana. But Louisiana along
that segment of our western boundary was a buffer between this
Nation and Spain. It is therefore dubious that the United States
was bargaining for that narrow strip between the "middle" of the
Sabine and the west bank of the Sabine as a detached, isolated
piece of our public lands. Rather, it seems well nigh conclusive
that, in 1819, this Nation was bargaining with Spain for a border
that, in part, at least, of its reach, would be the western border
of Louisiana.
Page 410 U. S. 716
Louisiana claims that much and alternatively only the "middle"
of the Sabine which, according to the thalweg doctrine, when
describing boundaries on navigable waters, means the middle of the
channel, which is not necessarily the geographical "middle." The
thalweg doctrine had that meaning both when Louisiana was admitted
to the Union [
Footnote 2/2] and
since that time. [
Footnote 2/3]
Why then does Louisiana lose? Why is her boundary
restricted?
The Court relies on the Act of Congress of July 5, 1848, 9 Stat.
245, which gave Texas permission to extend her eastern boundary "so
as to include within her limits one half of Sabine Pass, one half
of Sabine Lake, [and] one half of Sabine River."
Washington v. Oregon, 211 U. S. 127
(1908), makes clear that the boundary originally established when
Louisiana was admitted to the Union "is not within the power of the
National Government to change . . . without [Louisiana's] consent.
. . ."
Id. at
211 U. S.
131.
Given that legislative restraint, Congress had no power to take
the west bank from Louisiana or, alternatively, it must have used
"one-half" in a general, rather than a mathematical, sense, thereby
granting to Texas only those areas lying west of the thalweg.
The Sabine River, Sabine Lake, and Sabine Pass are one
continuous body of navigable water. Heretofore, when in
controversies between States, the "middle" of a navigable stream
has been described as the boundary, the middle of the channel is
intended.
Iowa v. Illinois, 147 U. S.
1,
147 U. S. 7;
Arkansas v. Tennessee, 246 U. S. 158,
246 U. S. 173;
Minnesota v. Wisconsin, 252 U. S. 273;
Wisconsin v. Michigan, 295 U. S. 455.
Page 410 U. S. 717
Mississippi, which was admitted to the Union five years after
Louisiana, argued much as Texas does in this case to the effect
that Congress had given her territory that Louisiana claimed under
an earlier title. The Court held,
"[i]f it were true that . . . repugnancy between the two acts
existed, it is enough to say that Congress, after the admission of
Louisiana, could not take away any portion of that State and give
it to the State of Mississippi."
Louisiana v. Mississippi, 202 U. S.
1,
202 U. S. 40.
This reasoning is equally applicable to Louisiana's western
border.
I conclude in the alternative that the thalweg doctrine --
widely and generally accepted -- has not been constitutionally
displaced by statutory language in this case.
The question remains whether acts of acquiescence and
prescription have since replaced the thalweg with some other
boundary between Louisiana and Texas. Although the Special Master
concluded that the maps and other evidence in question support both
the conclusion that Louisiana has acquiesced in a mid-stream
boundary, rather than the claimed west-bank boundary, and that the
mid-stream boundary thus recognized is in the geographic center,
rather than the thalweg, I cannot agree. The vast majority of the
maps in evidence do denominate a boundary between the banks of the
waterways in issue. The quality of the boundary representation is,
however, quite inadequate even to determine whether a geographic
centerline designation was attempted. Moreover, the main channel is
not depicted, so that any possible variance from the thread of the
stream is incapable of determination. [
Footnote 2/4] Indeed, the language employed by the
Master to describe these maps in the Appendix to his Report depicts
this uncertainty; the terms "middle," "mid-Sabine," and
"centerline" appear
Page 410 U. S. 718
to be used interchangeably, with only an occasional use of the
more precise terminology "geographic middle." [
Footnote 2/5] Acquiescence on the part of one State
or prescription on the part of another should not be predicated on
such an inadequate showing.
The case should be returned to the Special Master for hearings
that will thoroughly explore the factual issues concerning the
alleged acquiescence or prescription.
[
Footnote 2/1]
It was also in the Enabling Act giving Louisiana authority to
form a constitution and state government and gain admission to the
Union. 2 Stat. 641.
[
Footnote 2/2]
The earlier authorities are discussed at length in
Iowa v.
Illinois, 147 U. S. 1,
147 U. S. 7-10
(1893).
[
Footnote 2/3]
Thompson on Real Property § 3075 (1962 ed.); 3 American Law of
Property § 12.27 n. 16 (A. Casner ed.1952).
[
Footnote 2/4]
See generally Texas Exs. A, F.
But see
Louisiana Ex. K.
[
Footnote 2/5]
Report of Special Master, App. B.