Indiana v. Kentucky

136 U.S. 479, 10 S. Ct. 1051, 34 L. Ed. 329, 1890 U.S. LEXIS 2226

• Court: Supreme Court of the United States
• Decided: May 19, 1890
• Docket: 2. Original
• Status: Published

Opinion

Mr. Justice Field

delivered the opinion of the court.

This is a controversy between the State of Indiana and the State of Kentucky growing out of their respective claims to the possession of and jurisdiction over a tract of land nearly five miles in length and over half a mile in width, embracing about two thousand acres, lying on what is now the north side of the- Ohio River.

Kentucky alleges that when she became a State on the 1st of June, 1792, this tract was an island in the Ohio River, and was thus within her boundaries, which had been prescribed by the act of Yirginia creating the District of Kentucky. The territory assigned to her was bounded on the north by the territory ceded, by Yirginia to the United States. The tract in controversy was then and has ever since been called Green River Island. Kentucky founds her claim to its possession and to jurisdiction over it upon the alleged ground that at that time the river- Ohio ran north of it, and her boundaries extended to low-water mark on the north side of the river; also upon her long undisturbed possession of the premises, and the recognition of her rights by the legislation of-Indiana.

Indiana rests her claim also upon the boundaries assigned to her when she was admitted into the Union on the 11th of December, 1816, of which the southern line was designated “ as'the river Ohio from the mouth of the Great Miami River to the mouth of the 'Wabash.” This boundary, as she alleges, embraces the island in question, she contending that the river then ran south of it, and that a mere bayou separated it from the mainland on the north.

The territory lying north and west of the Ohio, embracing the State of Indiana, as well as the territory lying south of that river, embracing the State of Kentucky, was, previous to 1776, and down to the cession of the same to the United States, held by the State of Yirginia. Indeed, that Commonwealth claimed that all the territory lying north of the Ohio River and west of the Alleghanies and extending to the Mississippi was within her chartered limits. As stated by Chief Justice Marshall, in Handly's Lessee v. Anthony, 5 Wheat. 374, 376, at an early period of the Revolutionary "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.” To remove this cause of disturbance, Congress in September, 1780, 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.” The Commonwealth of Yirginia yielded to this recommendation, and on the 20th of December, 1783, an act was passed by her legislature authorizing her delegates in Congress to convey to the United States all her right, title and claim, as well of soil as of jurisdiction, “to the territory or tract of country within the limits of the Yirginia charter, situate, lying and being to the northwest of the river Ohio,” subject to certain conditions, among which was that the territory should be laid out and formed into States containing a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles Square, or as near thereto as the circumstances would admit, and that the States so formed should be distinct republican States, and admitted members of the Federal Union, having the same rights, sovereignty, freedom and independence as the other States. In pursuance of this act the delegates in Congress, on the'1st of March, 1784, executed a formal deed ceding to the United States all the right, title and claim as well of soil as of jurisdiction which the Commonwealth had to the territory or tract of country within the limits of the Yirginia charter, “ situate, lying a/tid heing to the northwest of the ■river Ohio” for the uses and purposes and subject to the conditions mentioned in the act of the Commonwealth.

By the act of Congress of July 13, 1787, entitled, “ An ordinance for the government of the territory of the United States northwest of the river Ohio,” a modification was made of the terms of the cession of Yirginia, to the effect that there should be formed in the ceded territory not less than three nor more than five States, the fixed and established boundaries ,of which were designated, and of which the Ohio Eiver was declared to be one.

As thus seen, the territory ceded by the State of Yirginia to the United States, out of which the State of Indiana was formed, lay northwest of the Ohio Eiver. The first inquiry, therefore, is as to what line on the river must be deemed the southern boundary of the territory ceded, or, in other words, how far did the jurisdiction of Kentucky extend on the other side of the river. Early in the history of the State, doubts were raised on this point, and to quiet them, its legislature, on the 27th of January, 1810, passed the following act declaring the boundaries of certain counties in the Commonwealth: ■’

“ Whereas doubts- are suggested whether the counties calling for the river- Ohio as the boundary line, extend to the state line on the northwest side of said river, or wfiether the margin of the southeast side is the limit of the counties; to explain which

“ 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 northwest 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.” 1 Statute Law of Kentucky, (1834,) p. 268 Sess. Laws 1810, 100.

Upon this question of boundary we also have, happily, a decision of this court rendered so early as 1820. In Handly’s Lessee v. Anthony, 5 Wheat. 374, ejectment was brought to recover land which the plaintiff claimed under a grant from .the State of Kentucky, while the defendants held under a grant from the United States, and the title depended upon the question whether the land lay in the State of Kentucky or in the State of Indiana. It was separated from the mainland of Indiana by a bayou, a small channel, which made out of the Ohio, and entered that river again a few miles below.

This bayou was from four to five poles wide and its bed was dry during a portion of the year. The court said that the question whether the land lay within the State of Kentucky or of Indiana depended chiefly upon the land law of Yirginia and on the cession of that State to the United States. And in determining this question it went into the consideration of the proper construction to be given to the deed of cession, and reached the conclusion that the boundary between the States was at low-water mark on the northwest side of the river.

“ In pursuing this inquiry,” said the court, p. 319, “ Ave must recollect, that it is not the bank of the river, but the river itself, at Avliich the cession of Yirginia commences. She conveys to Congress all her right to the territory ‘ situate, lying and being to the northAvest 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, Avherever that may be, for their boundary. This is a natural boundary, and in establishing it'Yirginia must have had im view the convenience of the future population of the country. When a great river is the boundary betAveen 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 Avithin its own domain, and the neAvly created State extends to the river only. The river, however, is its boundary. ... If, instead of an annual and somewhat irregular rising and falling of the river, it Avas a daily and almost regular ebbing and flowing of the tide, it Avould not be doubted that a country bounded by the river Avould extend to loAAAvater 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 Avhich constitutes the boundary betAveen ' itself and ■another State, it would be extremely inconvenient to extend its dominion over the land on the other side Avhich AA'as left bare.by the receding of the Avater. And this inconvenience is not less Avhere the rising and falling aré annual than where they are 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 itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark. When the State of Yirginia made the Ohio the boundary of States, she must have intended the great river Ohio, and 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 mainland 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.” This decision has been followed by the courts of Kentucky. See Church v. Chambers, 3 Dana, 279 ; McFarland v. McKnight, 6 B. Mon. 500, 510; Fleming v. Kenny, 4 J. J. Marsh. 155, 158; McFall v. Commonwealth, 2 Met. (Ky.) 394. In this last case, the defendant, a justice of the peace for a Cincinnati township, in the State of Ohio, solemnized a marriage on a ferry-boat upon the Ohio Biver, midway between Newport in Kentucky and Cincinnati in Ohio, and was -indicted in the courts of Kentucky for unlawfully solemnizing a marriage, and was convicted of the offence, he not having been authorized to perform that ceremony by the county court of that State. The Court of Appeals of Kentucky in affirming the conviction referred to the authority of Handly’s Lessee v. Anthony, and said : “ That the boundary and jurisdiction of the State of Kentucky rightfully extend to low-water mark on the western or northwestern side of the river Ohio must now be considered as settled.” The same doctrine was maintained in Commonwealth v. Garner, 3 Gratt. 655, by the General Court of Yirginia, at its June term, 1846, after elaborate consideration, against the earnest contention of some of its judges that the jurisdiction of the State after the cession extended to the line of high-water mark on'tlie northwest side of the river.

¥e agree with the observations of the court in Handly's Lessee v. Anthony, that great inconvenience would have fol lowed, if land on either side of the river, that was separated •from the mainland only by a mere bayou, which did not appear to have ever been navigable, and was dry a portion of the year, had been attached to the jurisdiction of the State on the opposite side of the river; and, in the absence of proof that the waters of the river once flowed between the tract in controversy in this case, and the mainland of Indiana, we should feel compelled to hold that it was properly within the jurisdiction of the latter State. But the question here is not, as if the point were raised to-day for the first time, to what State the tract, from its situation, would now be assigned, but whether it was at the time of the cession of the territory to the United States, or more properly when Kentucky became a State, separated from the mainland of Indiana by the waters of the Ohio River. Undoubtedly, in the present condition of the tract, it would be more convenient for the State of Indiana if the main river were held to be the proper boundary between the two States. That, however, is a matter for arrangement and settlement between the States themselves, with the consent of Congress. If when Kentucky became a State on the 1st of June, 1792, the waters of the Ohio River ran between that tract, known as Green River Island, and the main body of the State of Indiana, her right to it follows from the fact that her jurisdiction extended at that time to low-water mark on the northwest side of the river. She succeeded to the ancient right and possession of Yirginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up from a variety of causes, natural and artificial, •so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its waters might so depart from its ancient channel as to leave on the opposite side of the river 'entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Missouri v. Kentucky, 11 Wall. 395, 401. ITer dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river.

The question then becomes one of fact, did the waters of the Ohio pass between Green Kiver Island and the mainland of Indiana when Kentucky became a State and her boundaries were established ? There is much evidence introduced on the part of Indiana to show that since her admission into the Union the Ohio Kiver has not passed between the island and the mainland except at intervals of high water; and that at low water the mainland has been accessible for portions at least of the year from the island, free from any water obstructions. Aside from the speculations of geologists, which are not of a very convincing character, the evidence consisted principally of the recollections of witnesses, which were more or less vague and imperfect. Apart from those speculative theories, she produced no evidence that at the time the cession was made by Yirginia to the United States in 1181, or when Kentucky became a State, the tract was attached to and formed a part of the territory then ceded, out of which the State of Indiana was created, or that the waters of the Ohio did not run between it and the mainland of Indiana so as to justify its designation as an island in the river. Much evidence has also been given on that subject by, Kentucky, and a great number of transactions shown, which proceeded upon the assumption that the tract was within the jurisdiction of that State. It is clear, we think, from the whole testimony, that' at an early day after Kentucky became a State, the channel between the island and the mainland of Indiana was often filled Avith water the whole year and sometimes to the width of two hundred yards; and that water passed through it, of more or less depth, the greater part of the year, until down to a period subsequent to the admission of Indiana into the Union.

But above all the evidence of fin " transactions and of ancient Avitnesses, and of geological speculations, there' are some uncontroverted facts in the case Avhich lead our judgment irresistibly to a conclusion in favor of the claim of Kentucky. It was over seventy years after Indiana became a State before this suit Avas commenced, and during all this period she never asserted any claim by legal proceedings to the tract in question. She states in her bill that all the time since her admission Kentucky has claimed the Green River Island to be within her limits and has asserted and exercised jurisdiction over it, and thus excluded Indiana therefrom, in defiance of her authority and contrary to her rights. Why then did she delay to assert by proper proceedings her claim to the premises ? On the day she became a State her right to Green River Island, if she ever had any, was as perfect and complete as it ever could be. On that day, according to the allegations of her bill of complaint, Kentucky was claiming and exercising, and has done so ever since, the rights of sovereignty both as to soil and jurisdiction over the land. On that day, and for many years afterwards, as justly-and forcibly observed by counsel, there were perhaps scores of living witnesses whose testimony would have settled, to the exclusion of a reasonable doubt, the pivotal fact upon which the rights of the two States now hinge and yet she waited for over seventy years before asserting any claim whatever to the island, and during all those years she never exercised or attempted to exercise a single right .of sovereignty or ownership over its soil. It is not shown, as he adds, that an officer of hers executed any process, civil or criminal, within it, or that a citizen residing upon it was a voter at her polls, or a juror in her courts, or that a deed to any of its lands is to be found on her records, or that any taxes were collected from residents upon it for her revenues.

This long acquiescence in .the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the State of Kentucky, such omission to take any steps to assert her present claim by the State of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome, except by the clearest and most unquestioned proof. It is a principle of public law universally recognized', that long acquiescence in the possession of territory and in the exercise of dominion and sovereignty over’it, is conclusive of the nation’s title and rightful aut hority. In the case of Rhode Island v. Massachusetts, 4 How. 591, 639, this court, speaking of the long'possession of Massachusetts, and the delays in alleging any mistake in the action of the commissioners of the colonies, said': “Surely this, connected with the lapse of time, must remove all doubts as to the right of the respondent under the agreements of lili and 1118. No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with the lapse of time and fall with the lives of individuals. For the security of rights, whether ’ of States or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be invoked with greater justice and propriety than in a case of disputed boundary.”

Yattel, in his Law of Nations, speaking on the same subject, says: “ The tranquillity of the people, the safety of States, the happiness of the human race do not allow that the possessions, empire and other rights of nations, should remain uncertain, subject to dispute and ever peady to occasion bloody wars. 1 Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title.” Book II, c. 11, § 149. And Wheaton, in his International Law, says: “ The writers on natural law have questioned how far that peculiar species of presumption, arising from the lapse of -time, which is called prescription, is justly applicable as between nation and nation ; but the constant and approved practice of nations shows that by whatever name it be called,- the uninterrupted possession of territory or other property for a certain length of time by one State excludes the claim of every other in the same manner as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question.’ 1 Part II, c. IY, § 164.

Potential as are the considerations drawn from the long silence and acquiescence of Indiana in’the claim and pretensions of Kentucky, her affirmative action is not ■ the less persuasive in 'favor of Kentucky’s claim. It appears that on March 26, 1804, Congress authorized a survey into townships, six miles square, of the public lands north of the Ohio River and east of the Mississippi River. 2 Stat. 277, c. 35. Under this act a survey was made of the land in the vicinity of Green River Island in the month of December, 1805, and in April, 1806, and it did not include the island within the territory north of the Ohio, but treated the bank of the bayou or channel north of the island as the bank of that river. The notes of this survey were given in evidence and show conclusively that the officers of the government at that time did not consider the tract in controversy as forming any part of the territory of Indiana, but did consider that the waters of the Ohio River running north of it made the tract now in controversy an island of the river. This survey, from the time it was made, has been regarded as establishing the fact that the southern boundary of Indiana lies north of the island. It is now insisted that the lines of this survey were intended merety as meander lines run for .the purpose of defining the sinuosity of the bank and the means of ascertaining the quantity of land then subject to sale, and was not intended as a boundary line of the island. Conceding, for the purposes of this case, that this is true so far as related to the fixing of the precise line of low-water mark, to which the territory of Indiana extended, it does not affect the force of the survey, as evidence that the island was not included within that territory, according to the' judgment at that time of the surveying officers of the United States. With knowledge of this survey, the legislature of that State, on the 27th of Februarjq 1875, passed an act entitled, “An act to ascertain the location of the boundary line between the States of Indiana and Kentucky above and near Evansville, and making the same evidence in any dispute.” This act recited that difficulty and dispute had arisen between the owners of land in Indiana and Kentucky in regard to the boundary line between the two States, and that such difficulty involved the title to large tracts of land above and near the line between Green Eiver Island and the State of Indiana, and empowered and directed the Governor to select a CQmmissioner, who should be a resident of the State and a practical surveyor, to act with a similar commissioner to be appointed by the Governor of Kentucky ; and provided that the two commissioners so selected-should make a survey of the line dividing the States, beginning at the head of Green Eiver Island near and opposite to the mouth of Green Eiver, and running thence down the Ohio Eiver to the lower end of the island.

The second and third sections of this act are as follows :

“ Sec. 2. In running said' line the said commissioners shall consult and be governed' by the surveys originally made by the 'government of the United States when such surveys are not inconsistent with each other, and they shall establish and mark proper monuments along said line, whereby the same may be plainly indicated and perpetuated.

“ Seo. 3. Within ten days after making such survey and establishing said line, said commissioners shall reduce the same to writing, giving a full and plain description of all the courses and distances, and of the marks and monuments made and established, and sign' and acknowledge the same before some officer authorized to take acknowledgments of deeds, which •writing, so acknowledged, shall be recorded in the recorder’s office in the counties of Yanderburgh and Warrick, and the original filed in the office of the Secretary of State, and such writing, or the record thereof, shall be conclusive evidence in any of the courts of this State of the boundary line between the States of Indiana and Kentucky, between the points on said Green Eiver Island heretofore indicated.”

An appropriation was also made for the survey.

An act of similar purport had been passed by the State of Kentucky on the 23d of April,'1873, authorizing the Governor of that State to appoint a surveyor to act with the person ser lected by the Governor of Indiana and make a survey of the line. In pursuance of these acts the States each appointed a commissioner to survey the line. The commissioners accordingly, in 1877, made a survey, and ran a line on the north side of Green Biver Island, and also of the small tract known as Buck Island. In doing this, they followed the lines of the .United States survey of 1806. By this survey both these islands were left within the State of Kentucky. Complaint being made of the action of the commissioners in running the line on the high bank, the Governor of Indiana directed the commissioner of that State to suspend any further action under the act, and subsequently visited Evansville, a city in Indiana, northwest of the island, and near the survey made, and examined the line of the survey, and in a subsequent letter to the commissioners stated that the line thus run did not in any part conform to the low-water mark of the river, but that the greater part was upon the bank, and the residue at a distance from it, leaving a tract of land between it and the river.

Subsequently the legislature of Indiana, upon the recommendation of the Governor,' repealed the law authorizing the survey, and on the 14th of March, 1877, passed an act authorizing the Governor to enter into negotiations with the Governor of Kentucky for the acquisition from the latter State of all her rights of jurisdiction and soil over the Green Biver Island and her claim for any ground on the Indiana side of the river at said island, or to establish the line between the States by surveys, to be made in such manner as they might deem just; provided that the Governor of Kentucky should be authorized to enter into the agreement by the legislature of that State, and the consent of Congress should be obtained thereto. These efforts to adjust the boundary line failing, the Governor was authorized to direct the prosecution in this court of a suit for the purpose of determining and settling the boundary.

Now whilst no agreement between the States would be of any validity under the Constitution without the consent of Congress, and the survey made pursuant to the joint action of the two States would not have been legally binding even had it not been withdrawn before the report of the commissioners was filed in the offices designated in the acts, still the law of Indiana authorizing the line to be fixed in accordance with the survey of the United States, and no other was made except the one in 1806, although the act speaks of surveys, ivas a plain recognition on her part that the boundary of the State was north of the island, though it was uncertain where the line should be drawn on the land, inasmuch as the channel of the bayou had been filled up. It is an admission entitled.to great weight in explaining the cause of the State’s general acquiescence, from the time it was admitted into the Union up to the passage of that act, in the claim and jurisdiction of Kentucky. Independently of the necessity of obtaining the consent of Congress to the execution of any agreement between the two States, it was competent for the State of Indiana to provide for a survey of a line already established, and to make such survey evidence in subsequent controversies upon the subject.

Whilst on the part of Indiana there was a want of affirmative action in the assertion of her present claim, and a general acquiescence in the claim of Kentucky, there was affirmative action on the part of Kentucky in the assertion of her rights, as we have seen by the law declaring' the boundaries of her counties on the Ohio River, passed in January, 1810; and there was action taken in the courts of the United States and of the State by parties claiming under her or her grantor, and there was also action by her officers in the assertion of her authority over the land; all of which tends to support the claim of rightful jurisdiction. It at least shows that her claim was never abandoned by her or her people. On the 10th of February, 1181, Yirginia issued a military land warrant to one John Slaughter. In March, 1785, Slaughter had a tract of six hundred acres surveyed, upon which he located a part of that warrant, and the tract was conveyed to him by the Commonwealth of Yirginia on the 10th of February,'1790, by patent, in which the land was described by metes and bounds as lying in the district set apart for the officers and soldiers, of the Yirginia Continental line, on the first large island in the Ohio below the mouth of Green River. That island was Green River Island. In September, 1821, Slaugh ter’s heirs, who were residents of Virginia, brought a suit in ójectment in the .Circuit- Court of the United States for the District of Kentucky, to recover the land conveyed' to their ancestor by this patent, against Garrett and others, who were in possession. The cause was not tried until 1834, when the plaintiffs, who relied entirely upon the validity of the patent to Slaughter, recovered judgment and were awarded restitution of the premises. "When the marshal went upon the land to execute the writ for its possession, he was accompanied by one Levi Jones, who claimed to have an equitable title under Slaughter’s heirs, and was there to receive possession. Garrett, one of the defendants, concluded to purchase one hundred acres of the land upon which he was living from Jones, and for part of the purchase-money executed to Jones his note. Jones assigned this note to James House, who in turn assigned it to Jackson McLean. McLean brought an action at law upon the note in the Circuit Court of Henderson County, in Kentucky, in which he recovered judgment by default, and sued out a writ of execution, whereupon Garrett filed a .bill in equity in the same court, making Jones and House co-defendants with McLean, to enjoin the enforcement of the judgment at law upon the following, among other, grounds : First, that the process in the common law action had been served upon him at his residence on Green Hiver Island, which ■was not within the territorial limits of the State of Kentucky, but beyond the jurisdiction of the court, and that, therefore, the service of pi’ocess, judgment and execution were null and void; second, that neither Jones, nor Slaughter, under whom he claimed, had ever had a valid title to the land which Jones had sold him, because the military land warrant upon which Slaughter’s patent had been issued could not be located upon land which lay northwest of the Ohio and north of the mouth of the Green Hiver. As evidence that the tract of land in controversy lay in Indiana and not in Kentucky, he filed a copy of the deed of cession from Virginia to the United States as part of his bill. The question of Kentucky’s title and right of jurisdiction over Green Hiver Island ivas thus put in issue and its decision was necessary to the determina tion of the case. Several depositions were taken by each party upon the point, but, upon a full hearing of the case, Garrett’s bill was dismissed, with costs and charges. Here were two adjudications, one by the United States Circuit Court and the other by a Circuit Court of the State, that Green River Island was within the jurisdiction of Kentucky. And the record-shows that between 1818 and 1877 numerous grants of parcels of land on the island were made by Kentucky, and that between these dates taxes were assessed by her officers upon the lands as being within her territory and jurisdiction.

"We have spoken of the character of the testimony introduced on the part of Indiana, and of the fact that it does not touch upon the condition of the channel above the island previous to her admission as a State into the Union. The testimony of the witnesses introduced by the State of Kentucky consisted to a great extent of recollections, which must of necessity have been more or less imperfect. They showed, as already stated, that in former times at some periods of the year there was a large volume of water which passed north of Green River Island, and that sometimes this volume continued throughout the whole year; but they also showed that at a very early period great changes had taken place in the channel north of the island, so that in some portions of the year it was easy to pass on foot from the island to the mainland.

The fácts as they existed at the time of the cession of Virginia to the United States in 1784, and even at the time of the admission of Kentucky into .the Union, have long since passed beyond the memory of man, and therefore cannot be established by oral testimony. As counsel says, the very grandchildren of men then living are now hoary with age. The facts can only be established as a matter of inference from general facts in regard to the condition of the country, and documentary evidence which in many cases rises little above that of hearsay; such as notices by travellers and maps given by them indicating the position of thfe tract in question. Of the latter it may be said that they all represent the tract as an island in the river.

Great changes in the bed of the river were to be expected from the immense volume and flow from its vast water-sheds. These water-sheds, according to the official report of the Tenth Census of the United States, cited by counsel, comprise over two hundred thousand square miles, and more than half of the water from them comes from east of Green River Island, and nearly all the great water-courses find their way to the Ohio River. That vast changes should be made in the channel of that river from the volume of water thus received, and its impetuous flow at certain seasons wearing away its banks deepening some portions of the stream and filling up others, was not surprising; and that where large vessels at one time could easily float should have become dry ground manjr years afterwards was but the natural effect of the tremendous forces thus brought into operation.

¥e have, not deemed it important to take up the testimony of each of the numerous witnesses produced in the case by the States of Indiana' and Kentucky. It would serve no useful purpose to attempt an analysis of the testimony of each, and to show how little and how much weight should be attributed to it. All the testimony is to be taken with many allowances from imperfect recollection, from the confusion by many witnesses of what they saw with what they heard, or of what they knew of their own knowledge with what they learned from the narrative of others. The clear and admitted facts we have mentioned, corroborated as they are by nearly everything of record presented, leave on our minds a much more satisfactory conclusion than anything derived from the oral, testimony before us. The long acquiescence of Indiana in the claim of Kentucky, the rights of property of private parties which have grown up under grants from that State, the general understanding of the people of both States in the neighborhood, forbid at this day, after a lapse of nearly a hundred years since the admission of Kentucky into the Union, any disturbance of that State in her possession of the island and jurisdiction over it.

Our conclusion is,' that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction •of Kentucky at that time extended, and ever . since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled.

Judgment vnfa/oor of the claim of Kentucky will he entered in conformity with this opinión j and commissioners will he appointed to ascertain a/nd run the boundary line as herein designated, and to report to this court, upon which appointment cownsel of the parties will 'he hea/rd on notice. ■ And it is so ordered.

1 La tranquillité des peuples, le salut des Etats, le bonheur du genre humain, ne souffrent point, que les possessions,,l’empire, et les autres droits des Nations, demeurent incertains, sujets k contestation, et toivjours en état d’exciter des guerres sanglantes. 2 Vattel, ed. Pradier-Fodéré, (1863), 134.