In a dispute between Illinois and Kentucky over their common
boundary, the Special Master has recommended that this Court
determine the boundary to be the "low water mark on the northerly
side of the Ohio River as it existed in the year 1792," rather than
the river's northerly low water mark "as it exists from time to
time"; find that the record does not support Kentucky's affirmative
defenses of acquiescence and laches and its defenses based on
"principles of riparian boundaries, including accretion, erosion
and avulsion"; find that the construction of dams on the river has
caused the present low water mark on the Illinois side to be
farther north than it was in 1792; and order the two States' common
boundary to be determined as nearly as the 1792 line can now be
ascertained. Kentucky has filed exceptions.
Held:
1. The boundary is the line of the low water mark as it was in
1792. Pp.
500 U. S.
383-388.
(a) This is the rule that was used to determine the boundary
between Kentucky and its neighboring States of Ohio,
Ohio v.
Kentucky, 444 U. S. 335, and
Indiana,
Indiana v. Kentucky, 136 U.
S. 479; and the history and precedent that supplied the
rule in those cases govern here. P.
500 U. S.
383-384.
(b) Kentucky has not proved that, under the doctrine of
prescription and acquiescence, the boundary is a transient low
water mark. The record fails to support Kentucky's claim of a long
and continuous possession of, and assertion of sovereignty over,
land within the territory delimited by the transient mark. Kentucky
has imposed property taxes on only 3 of the 15 structures extending
into the territory in question. And evidence of its
ad
valorem taxation of barges and other watercraft traveling on
the river fails to speak directly to the boundary issue, since it
is undisputed that the sailing line on the river is within
Kentucky's boundary and jurisdiction, and since barges and
watercraft would rarely venture near the disputed territory.
Moreover, both the Legislative Research Commission of the Kentucky
General Assembly and the Commonwealth's Attorney General have made
references to the 1792 low water mark as the boundary. Nor does the
record support the claim of Illinois' acquiescence. The
descriptions of the boundary as following "along [the Ohio River's]
north-western shore" in earlier versions of the
Page 500 U. S. 381
Illinois Constitution are verbatim recitations of the
congressional language describing Illinois' boundary in that
State's Enabling Act, and the Special Master correctly reasoned
that Congress intended Illinois' southern boundary to be the same
as that granted Ohio and Indiana when they were formed. In
addition, the Illinois Supreme Court took an even less hospitable
view toward Kentucky's claim than the State Constitution when it
adopted, and used for almost 50 years, a theory that would have
ratchetted the boundary line forever southward toward the river's
deepest point. Pp.
500 U. S.
384-388.
(c) Kentucky's other affirmative defenses are likewise
unavailing. The laches defense is generally inapplicable against a
State. And the defenses based on the "principles of riparian
boundaries" require no extended consideration, for Kentucky
concedes that these would affect the ultimate boundary
determination only if it prevailed on the issues of prescription
and acquiescence. P.
500 U. S.
388-389.
2. Kentucky's exception to the recommended finding that the
construction of dams on the river has permanently raised its level
above that of 1792, consequently placing the present low water mark
on the Illinois side farther north than it was in 1792, is
sustained. Any question about the relative locations of the 1792
line and today's low water mark is premature, and should be
determined after the Special Master has made further
recommendations to resolve any disputes the parties may have about
the exact location of the 1792 line. Pp.
500 U. S.
389.
Exceptions to Special Master's Report sustained in part and
overruled in part, Report adopted in part, and case remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
JUSTICE SOUTER delivered the opinion of the Court.
In this case, we return again to the history and geography of
the Ohio River valley, as we consider the location of the boundary
of the Commonwealth of Kentucky with the State of Illinois. We hold
it to be the line of the low water mark along the river's northerly
shore as it was in 1792.
Page 500 U. S. 382
I
In July, 1986, Illinois sought leave to file a bill of complaint
against Kentucky, invoking this Court's original jurisdiction to
resolve a disagreement about the location of the common boundary of
the two States.
See U.S.Const., Art. III, ยง 2. Illinois
asked the Court to declare "the boundary line . . . to be the low
water mark on the northerly shore of the Ohio River as it existed
in 1792," Report of Special Master 1-2, and to enjoin Kentucky
"from disturbing in any manner the State of Illinois or its
citizens from the peaceful use, and enjoyment of all land, water
and jurisdiction within the boundaries of Illinois as established
by the Court,"
id. at 2. We granted leave to file the bill of
complaint, 479 U.S. 879 (1986), and appointed the Honorable Robert
Van Pelt as Special Master.
*
In its answer to the complaint, Kentucky denied that the
boundary was the 1792 line and claimed it to be the river's
northerly low water mark "as it exists from time to time." The
answer raised the "affirmative defenses" of acquiescence and
laches, and invoked certain "principles of riparian boundaries."
Report of Special Master 2.
The parties spent the next three years in discovery and, after
submitting evidence to the Special Master in January, 1990, were
granted additional time to develop the evidentiary record on
Kentucky's claim of prescription and acquiescence. After receiving
this evidence in April, 1990, the Special Master submitted a report
to this Court, which was ordered filed. 498 U.S. 803 (1990).
The Special Master recommended that we (1) determine the
boundary between Illinois and Kentucky to be the "low water mark on
the northerly side of the Ohio River as it existed in the year
1792"; (2) find that the record fails to "support
Page 500 U. S. 383
the Commonwealth of Kentucky's affirmative defenses"; (3) find
that the construction of dams on the Ohio River has caused "the
present low water mark on the Illinois side of the river [to be]
farther north than it was in 1792"; and (4) order the two States'
common boundary to be determined, "as nearly as [the 1792 line] can
now be ascertained, . . . either (a) by agreement of the parties,
(b) by joint survey agreed upon by both parties, or (c) in the
absence of such an agreement or survey, [by the Court] after
hearings conducted by the Special Master and the submission by him
to the Court of proposed findings and conclusions." Report of
Special Master 48-49.
Kentucky has filed exceptions to the Special Master's report.
While Kentucky challenges many of the factual findings, its primary
dispute is with the conclusion that Kentucky has failed to prove
its claim, styled as an affirmative defense, that, under the
doctrine of prescription and acquiescence, the boundary is the low
water mark as it may be from to time.
II
A
We agree in large measure with the Special Master's report. The
threshold issue presented in this case was resolved in
Ohio v.
Kentucky, 444 U. S. 335
(1980), in which we held that Kentucky's boundary with Ohio was the
northerly low water mark of the Ohio River as it was in 1792. We
based that holding on the history of Virginia's 1784 cession to the
United States of the lands "northwest of the river Ohio" and
Kentucky's succession to Virginia's northwest boundary upon
reaching statehood in 1792.
Id. at
444 U. S.
337-338. We relied on the prior opinion in
Indiana
v. Kentucky, 136 U. S. 479,
136 U. S.
518-519 (1890), in which Justice Field, for a unanimous
Court, reviewed this history and held that Kentucky's boundary with
Indiana followed the low water mark on the northerly shore of the
Ohio River "when Kentucky became a State."
Ibid. The same
history and precedent that supplied
Page 500 U. S. 384
the general rule for determining the boundary separating
Kentucky from its neighboring States of Ohio and Indiana on the
Ohio River also govern the determination of Kentucky's historical
boundary on that river with Illinois.
Kentucky has, indeed, conceded that, "if this case were before
the Court simply as a
matter of law, Ohio v. Kentucky . .
. would be controlling precedent." Exceptions of Commonwealth of
Kentucky 9 (emphasis in original). Kentucky's exceptions assume,
rather, that the case does not turn on the issue of law decided in
Ohio v. Kentucky, but on the "factual issue of
acquiescence which Kentucky has raised as an affirmative defense on
the question of its boundary with Illinois." Exceptions of
Commonwealth of Kentucky 9-10. Kentucky contends that it has long
asserted, and Illinois has acquiesced in the assertion, that the
common boundary of the two States is the low water mark of the Ohio
River, not as it was in 1792, but as it may be from time to
time.
Although Kentucky has styled its acquiescence claim an
affirmative defense, this "defense," if successfully proved, would
not only counter Illinois' boundary claim but also establish
Kentucky's own position. To do this on a theory of prescription and
acquiescence, Kentucky would need to show by a preponderance of the
evidence, first, a long and continuous possession of, and assertion
of sovereignty over, the territory delimited by the transient low
water mark. Longstanding "[p]ossession and dominion are essential
elements of a claim of sovereignty by prescription and
acquiescence."
Georgia v. South Carolina, 497 U.S. ___
(1990). Kentucky would then have the burden to prove Illinois' long
acquiescence in those acts of possession and jurisdiction. As we
stated in
Oklahoma v. Texas, 272 U. S.
21,
272 U. S. 47
(1926), there is a "general principle of public law" that, as
between States, a
"long acquiescence in the possession of territory under a claim
of right and in the exercise of dominion and sovereignty over it,
is conclusive of the rightful authority."
See also Georgia v. South Carolina, supra, 497 U.S. at
500 U. S. 389
("[L]ong
Page 500 U. S. 385
acquiescence in the practical location of an interstate
boundary, and possession in accordance therewith, often has been
used as an aid in resolving boundary disputes" between States).
The record developed before the Special Master in this case
fails to support Kentucky's claim of sovereignty by prescription
and acquiescence. After a thorough review of the voluminous
evidence presented by both States, the Special Master concluded
that Kentucky had proved neither long and continuous action in
support of its claim to a boundary at the northerly low water mark
as it might be from time to time, nor Illinois' acquiescence in
that claim. While Kentucky's many exceptions to the extensive
factual findings on these issues do not merit discussion
seriatim, an examination of a few will indicate the
evidentiary support generally for the Special Master's
conclusions.
The Special Master first assessed the evidence bearing on
Kentucky's exercise of dominion. According to Kentucky's view of
the boundary, for example, any permanent structure extending out
over the water from the river's northern bank would be within
Kentucky's territory, and subject to its taxing power, one of the
primary indicia of sovereignty. The record in this case, however,
shows that Kentucky has imposed a property tax on only 3 of the 15
structures that extend out, into, or over the water from the
Illinois shoreline. Of the three affected taxpayers, one who
received a Kentucky tax bill for property extending south into the
river was also taxed on the same structure by Illinois, and another
paid the Kentucky bill only under protest, "claiming that the
property [taxed] was within the State of Illinois." Report of
Special Master 37. The remaining 12 structures extending south into
the river from Illinois have never been taxed by Kentucky.
Kentucky advanced what it took to be a stronger claim to having
exercised exclusive taxing jurisdiction right up to the transient
low water mark by offering evidence of its
ad valorem
Page 500 U. S. 386
taxation of barges and other watercraft traveling on the river.
But this evidence simply fails to speak directly to the boundary
issue in this case. Vessels traveling the river usually follow a
sailing line charted by the United States Army Corps of Engineers
which, for most of the stretch in question, is either close to the
center of the river or near the Kentucky shore. Illinois does not
dispute that the sailing line, like most of the river, is within
the boundary and jurisdiction of Kentucky.
Id. at 38. The
territory in question, rather, is thought to be a comparatively
narrow sliver of the Ohio along its northerly shore, where barges
and watercraft would rarely venture. As to the sliver, Kentucky's
acts of taxation have been, at best, equivocal, and the Special
Master was accordingly correct when he observed that the fact of
Kentucky's taxation of barges
"traveling on the Ohio River within the acknowledged
jurisdiction of Kentucky, does not support Kentucky's claim of
exclusive jurisdiction of the entire breadth of the river."
Ibid.
This evidence of Kentucky's failure to engage in consistent and
unequivocal acts of occupation and dominion does not stand alone,
however, for we are concerned not only with what its officers have
done, but with what they have said, as well. And what they have
said has, in several instances, supported Illinois' claim. The
Legislative Research Commission of the Kentucky General Assembly
and the Attorney General of Kentucky have each taken the position
in the recent past that Kentucky's northern border is the 1792 low
water mark. An Information Bulletin issued by the Legislative
Research Commission in December 1972 states that
"'Kentucky's North and Western boundary, to-wit, the low water
mark on the North shore of the Ohio River as of 1792, has been
recognized as the boundary based upon the fact that Kentucky was
created from what was then Virginia.'"
Id. at 15. An earlier opinion by the Commonwealth's
Attorney General issued in 1963 asserted that the
"'law, of course is that the boundary line between the states of
Indiana and
Page 500 U. S. 387
Kentucky is the low water [mark] on the north shore of the Ohio
as it existed when Kentucky became a state in 1792.'"
Id. at 12. These statements came to our attention in
Kentucky's last boundary case in this Court, where we found it "of
no little interest" in deciding
Ohio v. Kentucky, 444 U.S.
at
444 U. S.
340-341, that these "Kentucky sources themselves, in
recent years, have made reference to the 1792 low water mark as the
boundary." It is hardly of less interest this time.
Just as this representative evidence fails to indicate any
longstanding exercise of occupation and dominion of the disputed
area by Kentucky, the record is equally unsupportive of the claim
of Illinois' acquiescence. It is true that the Illinois
Constitution of 1818 described the State's boundary with Kentucky
on the Ohio River simply as following "along its north-western
shore," Ill.Const., Preamble (1818), and the same description was
employed in the State Constitutions of 1848 and 1870,
see
Ill. Const., Art. I (1848), Ill.Const., Art. I (1870). But these
are verbatim recitations of the congressional language describing
Illinois' boundary in the State's Enabling Act of April 18, 1818,
ch. 67, 3 Stat. 428, and the Special Master correctly reasoned
that
"[w]hat Congress intended to be the southern boundary of
Illinois, was the same southern boundary granted the states of Ohio
and Indiana when they were formed. . . . Illinois, like Ohio and
Indiana, was created from the territory ceded by Virginia to the
United States. . . ."
Report of Special Master 28. Although the current version of the
Illinois Constitution, adopted in 1970, omits any description of
the State's boundaries, the 1870 Constitution's language remained
the reference point in the most recent Illinois case dealing with
the State's river boundary that has come to our attention.
See
People ex rel. Scott v. Dravo Corp., 10 Ill.App.3d 944,
944-945, 295 N.E.2d 284, 285 (1973),
cert. denied, 416
U.S. 951 (1974).
Page 500 U. S. 388
The courts of Illinois, indeed, for some time took an even less
hospitable view of Kentucky's interests than the Illinois
Constitution did. In
Joyce-Watkins Co. v. Industrial
Comm'n, 325 Ill. 378, 381, 156 N.E. 346, 348 (1927), the State
Supreme Court adopted a theory that would have ratchetted the
boundary line forever southward toward the deepest point of the
river by holding the boundary to be the low water mark on the
northerly shore of the river at the "point to which the water
receded at its lowest stage." This description of the boundary was
followed by Illinois courts until at least 1973,
see People ex
rel. Scott v. Dravo Corp., supra, and while it plainly
conflicts with our decisions in
Indiana v. Kentucky,
136 U. S. 479
(1890) and
Ohio v. Kentucky, supra, its use over nearly 50
years shows that Illinois did not acquiesce in any claim by
Kentucky to a low water mark that might edge northward over
time.
Such was the force of the evidence adduced, and such was its
failure to support Kentucky's claim of prescription and
acquiescence.
B
Kentucky's other affirmative defenses are likewise unavailing.
The Special Master correctly observed that the laches defense is
generally inapplicable against a State.
See Block v. North
Dakota, 461 U. S. 273,
461 U. S. 294
(1983) (O'CONNOR, J., dissenting) (collecting authorities);
Guaranty Trust Co. v. United States, 304 U.
S. 126,
304 U. S.
132-133 (1938);
cf. 85 U. S. Board of
Harbor Comm'rs, 18 Wall. 57,
85 U. S. 70
(1873) (statutes of limitations generally not applicable to State).
Although the law governing interstate boundary disputes takes
account of the broad policy disfavoring the untimely assertion of
rights that underlies the defense of laches and statutes of
limitations, it does so through the doctrine of prescription and
acquiescence,
see generally Georgia v. South Carolina,
supra, which Kentucky has failed to satisfy.
Page 500 U. S. 389
Kentucky's affirmative defenses based on the "principles of
riparian boundaries, including accretion, erosion and avulsion,"
require no extended consideration, for Kentucky concedes that these
would affect the ultimate boundary determination only if it
prevailed on the issues of prescription and acquiescence.
Exceptions of Commonwealth of Kentucky 48-49 ("It is Kentucky's
position that, if it prevails on its affirmative defense of
acquiescence, then the well-recognized principles of accretion,
erosion and avulsion would obviously apply to a current shoreline
boundary as it may change from time to time"). We have previously
held as much, concluding that "the well-recognized and accepted
rules of accretion and avulsion attendant upon a wandering river,"
have no application to Kentucky's Ohio River boundary because of
the "historical factors" stemming from the cession by Virginia of
the land northwest of the river to the United States.
Ohio v.
Kentucky, supra, 444 U.S. at
444 U. S.
337.
Kentucky's final exception to the Special Master's report goes
to the finding in Part III.C. that construction of dams on the
river has permanently raised its level above that of 1792,
consequently placing the present low water mark on the Illinois
side farther north than it was in 1792. Kentucky calls any question
about the relative locations of the 1792 line and today's low water
mark premature, and we agree. Indeed, the Special Master himself
suggested that this issue might, if necessary, "be determined at a
later date," Report of Special Master 47, after he had made further
recommendations to resolve any disputes the parties may have about
the exact location of the 1792 line.
III
The exception of the Commonwealth of Kentucky to Part III.C. and
Recommendation (3) of the report of the Special Master, as to the
effect of modern dams on the level of the Ohio River, is sustained.
Kentucky's other exceptions are overruled. The report, save for
Part III.C. and Recommendation (3), is adopted, and the case
remanded to the Special
Page 500 U. S. 390
Master for such further proceedings as may be necessary to
prepare and submit an appropriate decree for adoption by the Court,
locating the 1792 line.
It is so ordered.
* In June, 1988, we appointed a new Special Master, Matthew J.
Jasen, Esq., to replace Judge Van Pelt, who had died in April,
1988. 487 U.S. 1215.