The boundary of the State of Kentucky extends only to low water
mark on the western or northwestern side of the River Ohio, and
does not include a peninsula or island on the western or
northwestern bank, separated from the main land by a channel or
bayou, which is filled with water only when the river rises above
its banks, and is at other times dry.
When a 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 (Virginia) is the original proprietor, and
grants the territory on one side only, it retains the river within
its own domain, and the newly erected state extends to the river
only, and the low water mark is its boundary.
If a river, subject to tides, constituted the boundary of a
state, and at flood the waters of the river flowed through a narrow
channel round an extensive body of land, but receded from that
channel at ebb, so as to leave the land it surrounded at high
water, connected with the main body of the country; this portion of
territory would scarcely be considered as belonging to the state on
the opposite side of the river, although that state should have the
property of the river.
In great questions which concern the boundaries of states where
great natural boundaries are established in general terms, with a
view to public convenience and the avoidance of controversy, we
think the great object where it can be distinctly perceived, ought
not to be defeated by those technical perplexities which may
sometimes influence contracts between individuals.
Page 18 U. S. 375
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This was an ejectment brought in the Circuit Court of the United
States for the District of Kentucky, to recover land which the
plaintiff claims under a grant from the State of Kentucky, and
which the defendants hold under a grant from the United States, as
being part of Indiana. The title depends upon the question whether
the lands lie in the State of Kentucky, or in the State of
Indiana.
At this place, as appears from the plat and surveyor's
certificate, the Ohio turns its course, and runs southward for a
considerable distance, and then takes a northern direction, until
it approaches within less than three miles, as appears from the
plat, of the place where its southern course commences. A small
distance above the narrowest part of the neck of land which is thus
formed, a channel, or what is commonly termed in that country a
bayou, makes out of the Ohio, and enters the same river a small
distance below the place where it resumes its westward course. This
channel, or bayou, is about nine miles by its meanders, three miles
and a half in a straight line, and from four to give poles wide.
The circuit made by the river appears to be from
Page 18 U. S. 376
fifteen to twenty miles. About midway of the channel, two
branches empty into if from the northwest, between six and seven
hundred yards from each other; the one of which runs along the
channel at low water, eastward, and the other westward, until they
both enter the main river. Between them is ground over which the
waters of the Ohio do not pass until the river has risen about ten
feet about its lowest state. It rises from forty to fifty feet, and
all the testimony proves that this channel is made by the waters of
the river, not of the creeks which empty into it. The people who
inhabit this peninsula or island have always paid taxes to Indiana,
voted in Indiana, and been considered as within its jurisdiction,
both while it was a territory, and since it has become a state. The
jurisdiction of Kentucky has never been extended over them.
The question whether the lands in controversy lie within the
State of Kentucky or of Indiana, depends chiefly on the land law of
Virginia, and on the cession made by that state to the United
States.
Both Kentucky and Indiana were supposed to be comprehended
within the charter of Virginia at the commencement of the war of
our revolution. At an early period of that war, the question
whether the immense tracts of unsettled country which lay within
the charters of particular states, ought to be considered as the
property of those states, or as an acquisition made by the arms of
all, for the benefit of all, convulsed our confederacy, and
threatened its existence. It was probably with a view to this
question that Virginia, in 1779, when she opened her
Page 18 U. S. 377
land office, prohibited the location or entry of any land "on
the northwest side of the River Ohio."
In September, 1780, Congress passed a resolution,
recommending
"to the several states, having claims to waste and
unappropriated lands in the western country, a liberal cession to
the United States, of a portion of their respective claims, for the
common benefit of the Union."
And in January, 1781, the Commonwealth of Virginia yielded to
the United States
"all right, title, and claim, which the said Commonwealth had to
the territory northwest of the River Ohio, subject to the
conditions annexed to the said act of cession."
One of these conditions is, "that the ceded territory shall be
laid out and formed into states." Congress accepted this cession,
but proposed some small variation in the conditions, which was
acceded to; and in 1783, Virginia passed her act of confirmation,
giving authority to her members in Congress to execute a deed of
conveyance.
It was intended then by Virginia, when she made this cession to
the United States, and most probably when she opened her land
office, that the great River Ohio should constitute a boundary
between the states which might be formed on its opposite banks.
This intention ought never to be disregarded in construing this
cession.
At the trial, the counsel for the defendants moved the court to
instruct the jury
1. That the lessor of the plaintiff cannot recover, the land in
contest not being at any time subject to the laws of Kentucky, but
to those of Indiana.
Page 18 U. S. 378
2. Because the evidence does not show that the land is within
the limits of the State of Kentucky.
The court instructed the jury that, admitting that the western
and northwestern boundary of Kentucky included all the islands of
the Ohio and extended to the western and northwestern bank of the
Ohio, yet no land could be called an island of that river unless it
was surrounded by the waters of the Ohio at law water mark, and to
low water mark only, on the western or northwestern side of the
Ohio, did the boundaries of the State of Kentucky extend.
The counsel for the plaintiff excepted to this opinion, and then
moved the court to instruct the jury, that if they found the land
in question was covered by the grant to the lessor of the
plaintiff, and that it was surrounded by a regular water channel of
the Ohio on the northwestern side, and was, at the middle and usual
state of the water in the Ohio, embraced and surrounded by the
water of the Ohio, flowing in said channel, it was an island, and
within the State of Kentucky. But the court refused to give the
instructions aforesaid, but instructed the jury, that if the water
did not run through said channel at low water, but left part
thereof dry, it was not an island, nor within the State of
Kentucky.
To this opinion also the counsel for the plaintiff excepted. The
jury found a verdict for the defendants, on which the court
rendered judgment, which judgment is now before this Court on a
writ of error.
The two exceptions present substantially the same questions to
the court, and may therefore be considered
Page 18 U. S. 379
together. They are whether land is properly denominated an
island of the Ohio unless it be surrounded with the water of the
river, when low, and whether Kentucky was bounded on the west and
northwest by the low water mark of the river, or at its middle
state, or in other words whether the State of Indiana extends to
low water mark or stops at the line reached by the river when at
its medium height?
In pursuing this inquiry, we must recollect that it is not the
bank of the river, but the river itself, at which the cession of
Virginia commences. She conveys to Congress all her right to the
territory "situate, lying, and being, to the northwest of the River
Ohio." And this territory, according to express stipulation, is to
be laid off into independent states. These states, then, are to
have the river itself, wherever that may be, for their boundary.
This is a natural boundary, and in establishing it, Virginia must
have had in view the convenience of the future population of the
country.
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. "In case of doubt," says
Vattel,
"every country lying upon a river is presumed to have no
other
Page 18 U. S. 380
limits but the river itself, because nothing is more natural
than to take a river for a boundary when a state is established on
its borders, and wherever there is a doubt, that is always to be
presumed which is most natural and most probable."
"If," says the same author,
"the country which borders on a river, has no other limits than
the river itself, it is in the number of territories that have
natural or undetermined limits, and it enjoys the right of
alluvion."
Any gradual accretion of land, then, on the Indiana side of the
Ohio, would belong to Indiana, and it is not very easy to
distinguish between land thus formed, and land formed by the
receding of the water.
If, instead of an annual and somewhat irregular rising and
falling of the river, it was a daily and almost regular ebbing and
flowing of the tide, it would not be doubted that a country bounded
by the river would extend to low water mark. This rule has been
established by the common consent of mankind. It is founded on
common convenience. Even when a state retains its dominion over a
river which constitutes the boundary between itself and another
state, it would be extremely inconvenient to extend its dominion
over the land on the other side, which was left bare by the
receding of the water. And this inconvenience is not less where the
rising and falling is annual, than where it is diurnal. Wherever
the river is a boundary between states, it is the main, the
permanent river, which constitutes that boundary, and the mind will
find
Page 18 U. S. 381
itself embarrassed with insurmountable difficulty in attempting
to draw any other line than the low water mark.
When the State of Virginia made the Ohio the boundary of states,
she must have intended the great River Ohio, not a narrow bayou
into which its waters occasionally run. All the inconvenience which
would result from attaching a narrow strip of country lying on the
northwest side of that noble river to the states on its
southeastern side, would result from attaching to Kentucky, the
state on its southeastern border, a body of land lying northwest of
the real river, and divided from the main land only by a narrow
channel, through the whole of which the waters of the river do not
pass until they rise ten feet above the low water mark.
The opinions given by the court must be considered in reference
to the case in which they were given. The sole question in the
cause respected the boundary of Kentucky and Indiana, and the title
depended entirely upon that question. The definition of an island
which the court was requested to give, was either an abstract
proposition, which it was unnecessary to answer, or one which was
to be answered according to its bearing on the facts in the cause.
The definition of an island was only material so far as that
definition might aid in fixing the boundary of Kentucky. In the
opinion given by the court on the motion made by the counsel for
the defendants, it says that "no land can be called as island of
the Ohio unless it be surrounded by the waters of that river at low
water mark." We
Page 18 U. S. 382
are not satisfied that this definition is incorrect, as
respected the subject before the court; but it is rendered
unimportant, by the subsequent member of the sentence, in which
they say, "that to low water mark only, on the western and
northwestern side of the Ohio, does the State of Kentucky
extend."
So in the motion made by the counsel for the plaintiff, the
court was requested to say that if the waters of the Ohio flowed in
the channel, in its middle and usual state, it was not only an
island, but "within the State of Kentucky."
If the land was not within the State of Kentucky, the court
could not give the direction which was requested. The court gave an
instruction substantially the same with that which had been given
on the motion of the defendant's counsel.
If it be true that the River Ohio, not its ordinary bank, is the
boundary of Indiana, the limits of that state can be determined
only by the river itself. The same tract of land cannot be
sometimes in Kentucky and sometimes in Indiana, according to the
rise and fall of the river. It must be always in the one state or
the other.
There would be little difficulty in deciding that in any case
other than land which was sometimes an island, the State of Indiana
would extend to low water mark. Is there any safe and secure
principle on which we can apply a different rule to land which is
sometimes, though not always, surrounded by water?
So far as respects the great purposes for which the river was
taken as the boundary, the two cases
Page 18 U. S. 383
seem to be within the same reason, and to require the same rule.
It would be as inconvenient to the people inhabiting this neck of
land, separated from Indiana only by a bayou or ravine, sometimes
dry for six or seven hundred yards of its extent, but separated
from Kentucky by the great River Ohio, to form a part of the last
mentioned state, as it would for the inhabitants of a strip of land
along the whole extent of the Ohio, to form a part of the state on
the opposite shore. Neither the one nor the other can be considered
as intended by the deed of cession.
If a river, subject to tides, constituted the boundary of a
state, and at flood the waters of the river flowed through a narrow
channel, round an extensive body of land, but receded from that
channel at ebb, so as to leave the land it surrounded at high
water, connected with the main body of the country; this portion of
territory would scarcely be considered as belonging to the state on
the opposite side of the river, although that state should have the
property of the river. The principle that a country bounded by a
river extends to low water mark, a principle so natural, and of
such obvious convenience as to have been generally adopted, would,
we think, apply to that case. We perceive no sufficient reason why
it should not apply to this.
The case is certainly not without its difficulties, but in great
questions which concern the boundaries of states, where great
natural boundaries are established in general terms, with a view to
public convenience, and the avoidance of controversy, we think the
great object, where it can be distinctly perceived,
Page 18 U. S. 384
ought not to be defeated by those technical perplexities which
may sometimes influence contracts between individuals. The State of
Virginia intended to make the great River Ohio, throughout its
extent, the boundary between the territory ceded to the United
States and herself. When that part of Virginia, which is now
Kentucky, became a separate state, the river was the boundary
between the new states erected by Congress in the ceded territory,
and Kentucky. Those principles and considerations which produced
the boundary, ought to preserve it. They seem to us to require,
that Kentucky should not pass the main river, and possess herself
of lands lying on the opposite side, although they should, for a
considerable portion of the year, be surrounded by the waters of
the river flowing into a narrow channel.
It is fact of no inconsiderable importance in this case, that
the inhabitants of this land have uniformly considered themselves,
and have been uniformly considered both by Kentucky and Indiana as
belonging to the last mentioned state. No diversity of opinion
appears to have existed on this point. The water on the north
western side of the land in controversy, seems not to have been
spoken of as a part of the river, but as a bayou. The people of the
vicinage, who viewed the river in all its changes, seem not to have
considered this land as being an island of the Ohio, and as a part
of Kentucky, but as lying on the north western side of the Ohio,
and being a part of Indiana.
Page 18 U. S. 385
The compact with Virginia, under which Kentucky became a state,
stipulates that the navigation of and jurisdiction over the river
shall be concurrent between the new states, and the states which
may possess the opposite shores of the said river. This term seems
to be a repetition of the idea under which the cession was made.
The shores of a river border on the water's edge.
Judgment affirmed with costs.