The boundary line between the States of Georgia and Alabama
depends upon the construction of the following words of the
contract of cession between the United States and Georgia,
describing the boundary of the latter,
viz.,
"West of a line beginning on the western bank of the
Chattahoochee River where the same crosses the boundary between the
United States and Spain, running up the said river and along the
western bank thereof."
It is the opinion of this Court that the language implies that
there is ownership of soil and jurisdiction in Georgia, in the bed
of the River Chattahoochee, and that the bed of the river is that
portion of its soil which is alternately covered and left bare, as
there may be an increase or diminution in the supply of water, and
which is adequate to contain it at its average and mean stage
during the entire year, without reference to the extraordinary
freshets of the winter or spring, or the extreme drought of the
summer or autumn.
The western line of the cession on the Chattahoochee River must
be traced on the water line of the acclivity of the western bank,
and along that bank where that is defined, and in such places on
the river where the western bank is not defined, it must be
continued up the river on the line of its bed, as that is made by
the average and mean stage of the water, as that is expressed in
the conclusion of the above-recited paragraph.
Page 64 U. S. 506
By the contract of cession, the navigation of the river is free
to both parties.
See the case of
Howard v.
Ingersoll, 13 How. 381, and the correction of its
syllabus in the errata in 14 Howard in this, that "the boundary
line runs along the top of the high western bank," instead of
"the boundary line runs up the river, on and along its western
bank, and the jurisdiction of Georgia in the soil extends over to
the line which is washed by the water wherever it covers the bed of
the river within its banks."
This was a case of original jurisdiction in the Supreme Court
under that article in the Constitution which confers jurisdiction
over controversies between two or more states.
The State of Alabama filed her bill in this Court at December
Term, 1855. After stating the compact of 1802 between the United
States and Georgia, the bill stated the claim of Alabama as
follows:
The complainant further states that
"This line can only be ascertained with certainty and accuracy
by a just and proper construction of the agreement and cession
aforesaid, made and entered into as aforesaid by and between the
State of Georgia and the said United States, and that, by a just
and proper construction thereof, the said line commences at a point
where the 31st degree of north latitude crosses the Chattahoochee
River, and on the western bank of said river, on that part or
portion of the said bank that reaches to or touches the water at
ordinary or common low water, and runs up said river and along the
western bank thereof, and on said portion of said bank that touches
the water at its ordinary or common height, until said line reaches
the point on said river from whence it leaves the same in a
straight direction to Nickajack -- in other words, that said line,
so far as it runs on the bank of the Chattahoochee River, runs upon
the western bank at the usual or common low water mark. And as
evidence that the line as above described is the true and correct
line according to the true intent and meaning of said agreement and
cession, your complainant states that the banks of said river over
and upon which said line runs, though at some few places high and
steep, over which the water never passes, yet said banks are mostly
low and flat, so that when the river is high, or when there is a
usual or common freshet, the water of said
Page 64 U. S. 507
river spreads over the land at some places as much as a half
mile, at some places less, and other places more than a half mile
west from the common low water mark. And your complainant cannot
and never has believed that it was the intention, either of the
State of Georgia or of the United States, that said line was to be
placed on what may be termed the high water mark of said river at
the time they entered into the agreement and cession aforesaid, not
only on account of the uncertainty in ascertaining and locating the
same, but also for the further reason that at some places on said
river the jurisdiction of the State of Georgia would pass far west
of the river at its ordinary height, whilst at other places, where
the banks or bluffs are high and steep, it would pass but little or
none at all beyond the line marked by the ordinary or common stage
of the water."
"Influenced by these reasons as well as by the consideration
that the line of ordinary low water mark is readily and easily
ascertained, the State of Alabama has ever claimed that said line
runs upon the bank where the water touches the same when the river
is at its ordinary or common height -- that is, that said line runs
on the western bank of said river at usual or common low water
mark, and not on the bank at high water mark. And your complainant
has ever claimed and exercised jurisdiction all along and upon said
bank to low water mark, as above described, until the line reaches
that point on the river from whence it starts directly to
Nickajack."
The State of Alabama then called upon the State of Georgia to
answer the following questions:
"1. Whether or not the said defendant does not claim all the
lands on the western bank of the Chattahoochee River, north of the
31st degree of north latitude, up to the point or place where the
line that separates the State of Alabama from the State of Georgia
leaves the bank of said river in a straight direction for
Nickajack, and whether she does not claim and assert a right to
exercise jurisdiction and authority over all of said land on the
western side of the Chattahoochee River up to high water mark?
"
Page 64 U. S. 508
"2. Whether the defendant does not claim that the jurisdiction
and soil all along the bank of said river, up to high water mark,
belong exclusively to her, the said State of Georgia, and that the
line separating the State of Alabama from the State of Georgia is
located on the western bank of said river, at high water mark?"
"3. Has not the complainant described correctly the character of
the bank of said river, and particularly that portion of the bank
commencing at the 31st degree of north latitude, and extending
sixty or seventy miles above?"
"4. Does not the water, at many places on the western side of
said river and south of the point where said line leaves the same
for Nickajack, pass far beyond and west of the ordinary low water
mark?"
"5. Are not the banks of said river, at many places north of the
31st degree of north latitude, low and flat? and does not the water
of said river, during the usual freshets, pass over the adjoining
land, at some places as much as a half mile, at some places less,
and at other places more than a half mile west of the ordinary low
water mark of said river?"
"6. Has not the complainant correctly set forth the first
section of the articles of agreement and cession between the United
States and the State of Georgia and described in this bill so far
as is necessary to ascertain the boundary line between the States
of Alabama and Georgia, and has not the complainant correctly
described the titles by which the United States acquired the
Alabama territory? And, if not, in what particular is the
description defective, and what part of the articles of agreement
and cession not set forth is material in ascertaining said
line?"
At December term, 1858, the State of Georgia answered, after
reserving to herself all manner of advantage to be derived from
demurrer or plea to the bill. The facts of the case, as stated by
Alabama, were admitted, as was the conclusion that the eastern
boundary of Alabama was the western boundary of Georgia, wherever
that might be. This Georgia not only admitted for Alabama, but
affirmed for herself.
Page 64 U. S. 509
The claim of Georgia and answer to the interrogatories
propounded were as follows:
"So far as this line runs along the western bank of the
Chattahoochee River, Georgia denies that it runs along the usual or
common low water mark, but, on the contrary, she contends that it
runs along the western bank at high water mark, using high water
mark in the sense of the highest line of the river's bed -- or, in
other words, the highest line of that bed, where the passage of
water is sufficiently frequent to be marked by a difference in soil
and vegetable growth."
"In answer of the specific questions which are propounded by the
bill, the State of Georgia says that so far as the Chattahoochee
River is the dividing line between her and the State of Alabama,
she does claim all the lands, and a right to exercise jurisdiction
over all the lands on the western bank of said river up to high
water mark, using high water mark in the sense just above
explained. She says, in answer to the second question, that she
does claim that the jurisdiction and soil all along the western
bank of said river, up to high water mark, belong exclusively to
her, and that the line separating the State of Alabama from the
State of Georgia is located on the western bank of said river, at
high water mark, using the term high water mark in the sense before
explained. To the third question the State of Georgia says that
while she regards the description of the banks of the river given
in the bill as being too highly drawn, yet she admits that it is
more applicable to the southern part of the bank than to that part
of it sixty or seventy miles above the 31st degree of north
latitude, and she admits that in some places the banks are flat,
but she says that in other places, especially on the upper and
longer portion of the river, the banks are generally steep and well
defined -- so much so as to be familiarly known as 'the bluffs of
the Chattahoochee.' To the fourth and fifth questions Georgia says
that the banks of said river, at a number of places along the
dividing line between the two states, are low and flat, and it is
true that in freshets the water passes west of the low water mark,
as far perhaps as half a mile in some places, and in a few places
perhaps even farther. To
Page 64 U. S. 510
the sixth and last specific question, Georgia answers that the
first section of the articles of cession from Georgia to the United
States is set forth in the bill with substantial correctness so far
as this controversy can be affected by it, and that the exact words
of that section are as before stated in this answer. Also she
admits that section to be the only one material to this issue. She
admits that the title of the United States to the Territory of
Alabama was acquired from Georgia by the means described in the
bill, but she does not admit the intimation that the United States
had acquired a previous title from the State of South Carolina, nor
can she perceive the relevancy of such an intimation to the present
issue."
MR. JUSTICE WAYNE delivered the opinion of the Court.
This case involves a question of boundary between the States of
Alabama and Georgia.
Alabama claims that its boundary commences on the west side of
the Chattahoochee River at a point where it enters the State of
Florida; from thence up the river along the low water mark on the
western side thereof to the point on Miller's Bend, next above the
place where Uchee Creek empties into such river; thence in a line
to Nickajack, on Tennessee River.
Georgia denies that the line intended by the cession of her
western territory to the United States runs along the usual low
water mark of the perennial stream of the Chattahoochee River, but
that the State of Georgia's boundary line is a line up the river,
on and along its western bank, and that the ownership and
jurisdiction of Georgia in the soil of the river extends over to
the water line of the fast western bank, which, with the eastern
bank of the river, make the bed of the river.
Page 64 U. S. 511
The difference between the two states must be decided by the
construction which this Court shall give to the following words of
the contract of cession:
"
West of a line beginning on the western bank of the
Chattahoochee River, where the same crosses the boundary between
the United States and Spain, running up the said river and along
the western bank thereof."
In making such construction, it is necessary to keep in mind
that there was by the contract of cession a mutual relinquishment
of claims by the contracting parties, the United States ceding to
Georgia all its right, title &c., to the territory lying east
of that line, and Georgia ceding to the United States all its right
and title to the territory west of it.
We believe that the boundary can be satisfactorily determined
and run in this suit, from the pleadings of the parties,
notwithstanding their difference as to the locality and direction
of it on the Chattahoochee River.
Georgia is interrogated in certain particulars in the bill,
which the complainant thinks will produce answers illustrative of
the right of Alabama to the boundary which is claimed. Georgia
answers them separately, having previously given a correct and
literal copy of the contract. It is as follows:
"The State of Georgia cedes to the United States all the right,
title, and claim which the said state has to the jurisdiction and
soil of the lands situated within the boundaries of the United
States south of the State of Tennessee, and west of a line
beginning on the western bank of the Chattahoochee River, where the
same crosses the boundary line between the United States and Spain;
running thence up the said River Chattahoochee, and along the
western bank thereof, to the great bend thereof, next above the
place where a certain creek or river called Uchee being the first
considerable stream on the western side above the Cussetas and
Coweta towns empties into the said Chattahoochee River; thence in a
direct line to Nickajack, on the Tennessee River; thence crossing
the said last-mentioned river; and thence running up the said
Tennessee River, and along the western bank thereof, to the
southern boundary line of the State of Tennessee."
In answer to the first question, Georgia admits what is
Page 64 U. S. 512
alleged in the bill in relation to the definition of the
boundaries of the Territory of Alabama by an act of Congress,
passed in eighteen hundred and seventeen, and the subsequent grant
of admission of the State of Alabama into the Union with the same
boundaries in the year eighteen hundred and nineteen; and the
conclusion from it is simply that the eastern boundary line of
Alabama is the western boundary line of Georgia, but that, so far
as that line runs along the western bank of the Chattahoochee
River, Georgia denies that it runs along the usual or low water
mark, but on the contrary Georgia contends that it runs along the
western bank at high water mark, using high water mark in the sense
of the highest water line of the river's bed, or in other words the
highest water line of that bed, where the passage of water is
sufficiently frequent to be marked by a difference in soil and
vegetable growth.
Georgia also answers affirmatively the other interrogatory in
the bill with the same qualification, that what she claims is a
right to exercise jurisdiction over all the lands up to the water
line of the western bank of the river's bed.
Georgia also says that while she regards the description of the
banks of the river given in the bill as highly drawn, she admits it
to be more applicable to the southern part of the bank than to that
part of it sixty or seventy miles above the thirty-first degree of
north latitude. It is admitted that in some places the banks are
flat, but that in other places, especially in the upper portion of
the river, the banks are generally steep and well defined, so much
so as to be familiarly known as the "Bluffs of the Chattahoochee,"
and that the banks of the river in a number of places along the
dividing line between the two states are low and flat, and that in
freshets the water spreads as far as half a mile beyond the line to
the west, and in a few places further than the western line of the
river's bed, over low lands, which Georgia does not claim to be
under its jurisdiction.
These declarations and admissions upon the part of Georgia
simplify the controversy and narrow it to the claim of the
respective parties as heretofore set forth.
The contract of cession must be interpreted by the words
Page 64 U. S. 513
of it, according to their received meaning and use in the
language in which it is written, as that can be collected from
judicial opinions concerning the rights of private persons upon
rivers, and the writings of publicists in reference to the
settlement of controversies between nations and states as to their
ownership and jurisdiction on the soil of rivers within their banks
and beds. Such authorities are to be found in cases in our own
country and in those of every nation in Europe.
Woolrych defines a river to be a body of flowing water of no
specific dimensions -- larger than a brook or rivulet, less than a
sea --
a running stream, pent on each side by walls or
banks.
Grotius, ch. 2, 18, says a river that separates two
jurisdictions is not to be considered barely as water, but as water
confined in such and such banks, and running in such and such
channel. Hence there is water having a bank and a bed, over which
the water flows, called its channel, meaning by the word "channel"
the place where the river flows, including the whole breadth of the
river.
Bouvier says banks of rivers contain the river in its natural
channel, where there is the greatest flow of water.
Vattel says that the bed belongs to the owner of the river. It
is the running water of a river that makes its bed, for it is that
and that only which leaves its indelible mark to be readily traced
by the eye, and wherever that mark is left, there is the river's
bed. It may not be there today, but it was there yesterday, and
when the occasion comes, it must and will -- unobstructed -- again
fill its own natural bed. Again, he says, the owner of a river is
entitled to its whole bed, for the bed is a part of the river.
Mr. Justice Story, in
Thomas and Hatch, 3 Sumner 178,
defines "shores" or "flats" to be the space between the margin of
the water at a low stage, and the "banks" to be what contains it in
its greatest flow; Lord Hale defines the term "shore" to be
synonymous with "flat," and substitutes the latter for that
expression. Mr. Justice Parker does the same in 6 Mass. 436,
439.
Chief Justice Marshall says the shore of a river borders on
Page 64 U. S. 514
the water's edge, and the rule of law, as declared by the Court
in
18 U. S. 5
Wheat. 379, is that when a great river is a boundary between two
nations or states, if the original property is not in either, and
there be no convention about it, each holds to the middle of the
stream.
Virginia, in her deed of cession to the United States of the
territory northwest of the Ohio, fixed the boundary of that state
at low water mark on the north side of the Ohio, and it remains the
limit of that state and Kentucky, as well as of the states
adjacent, formed out of that territory. 3 Dana 278, 279;
18 U. S. 5
Wheat. 378; Code of Virginia, 1849, 49, 34; 1 St. Ohio, 62. By
compact between Virginia and Kentucky, the navigation is free. A
like compact exists between New York and New Jersey, as to the
Hudson River and waters of the Bay of New York and adjacent
waters.
Webster's definition of a "bank" is a steep declivity rising
from a river or lake, considered so when descending, and called
"acclivity" when ascending.
Doctor Johnson defines the word "bank" to be the earth arising
on each side of a water. We say properly the "shore" of the sea and
the "bank" of a river, brook, or small water. In the writings of
our English classics, the two words are more frequently used in
those senses -- for instance, as when boats and vessels are
approaching the "shore" to communicate with those who are upon the
"banks."
Bailey, in his edition of the Universal Latin Lexicon of
Facciolatus and Forcellinus, says that ripa, the bank of a river,
is
extremitas terrae quod aqua alluitur et proprie dicitur de
flumine; ut litus de mare, nam hoc depressum est declive atque
humile, ripa altior fere est praeruptior, and again,
ripa
recte definitur id quod flumen continet, naturalem vigorem cursus
sui tenens.
Notwithstanding that there are differences of expression in the
preceding citations, they all concur as to what a river is, what
its banks are, that they are distinct from the shore or flat, and
as to what constitutes its channel.
With these authorities and the pleadings of this suit in view,
all of us reject the low water mark claimed by Alabama
Page 64 U. S. 515
as the line that was intended by the contract of cession between
the United States and Georgia. And all of us concur in this
conclusion, that by the contract of cession, Georgia ceded to the
United States all of her lands west of a line beginning on the
western bank of the Chattahoochee River where the same crosses the
boundary line between the United States and Spain, running up the
said Chattahoochee River and along the western bank thereof.
We also agreed and decide that this language implies that there
is ownership of soil and jurisdiction in Georgia in the bed of the
River Chattahoochee, and that the bed of the river is that portion
of its soil
which is alternately covered and left bare as there
may be an increase or diminution in the supply of water, and which
is adequate to contain it at its average and mean stage during the
entire year, without reference to the extraordinary freshets of the
winter or spring or the extreme droughts of the summer or
autumn.
The western line of the cession on the Chattahoochee River must
be traced on the water line of the acclivity of the western bank
and along that bank where that is defined, and in such places on
the river where the western bank is not defined, it must be
continued up the river on the line of its bed, as that is made by
the average and mean stage of the water, as that is expressed in
the conclusion of the preceding paragraph of this opinion.
By the contract of cession, the navigation of the river is free
to both parties.
