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in advance for adjoining States to fix an indefinite water boundary between them.*
A boundary between a State and a Territory was fixed by joint action of Congress and the State. Boundaries between Territories were fixed by congressional action alone. Disputes between States regarding boundaries must be settled by the U.S. Supreme Court, whose decisions are final. (148 U.S. 503. For reference to the procedure for submitting boundary disputes to the U.S. Supreme Court, see Martin, 1930, p. 113.)
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 authority (136 U.S. 510; 202 U.S. 1; 270 U.S. 295; 4 Howard 639).
The statute of limitations in the possession of land does not operate against the United States or a State, and title to Government land cannot be acquired by adverse possession."
When original boundary marks have been destroyed, "the law, as well as common sense, must declare that a supposed boundary line long acquiesced in is better evidence of where the real line should be than any survey made after the original monuments have disappeared" (Stewart v. Carleton, 31 Mich. Repts. 270; Diehl v. Zanger, 39 Mich. Repts. 601).
An original monument determines a point on a boundary with greater certainty than courses and distances. "Errors in courses are immaterial" (23 Wallace 46; 103 U.S. 316). When courses have not been marked, a line long recognized as a boundary must be accepted as such (103 U.S. 316).
Three of the most common means of defining a boundary are: By a water boundary, such as a stream, lake, or other body of water, By a divide between two drainage basins,
By a meridian of longitude or a parallel of latitude.
The last of these depends for its exactitude on the work of the surveyor. There is no doubt as to the intent of the wording when
435 Stat. L. 1160-1161; 36 Stat. L. 881; see also 41 Stat. L. 1447. (References in this volume to acts of Congress, joint resolutions, and presidential proclamations, contained in the U.S. Statutes at Large are given in the form used here, or in the later references, the "L" is dropped. "36 Stat. L. 881" (36 Stat. 881), for example, means v. 36, p. 881.) See Article IV, sec. 3, of the Constitution of the United States. The conditions under which ratification by Congress is essential are described at length in 148 U.S. 520-522. See also an excellent review of this question in the opinion, dated June 17, 1929, rendered by the attorney general of Texas to a joint legislative committee of that State, regarding the 100th meridian boundary.
539 Fed. 654; 95 Pac. 278. References given here are from The Federal Reporter and The Pacific Reporter. The former source has to do with Federal cases in courts below the Supreme Court, and the latter with State supreme court cases in the western part of the United States. See Act of Dec. 22, 1928, Public No. 645, 70th Cong., for conditions under which a patent may be obtained to United States land held for 20 years under "color of title."
a parallel of latitude is specified, because the numbering always begins with zero at the equator. The numbering of the meridians now generally accepted increases from zero to the east and west of Greenwich. This has not always been so, and even today in some countries the initial meridian is the one passing through their capital. In the United States the Washington meridian was used as a point of departure in much of the 19th century.
The act of September 28, 1850 (9 Stat. 515), provided, among other things, "That hereafter the meridian of the observatory at Washington shall be adopted and used as the American meridian for all astronomic purposes and *** that the meridian of Greenwich shall be adopted for all nautical purposes." This act was repealed August 22, 1912 (37 Stat. 342).
The Washington meridian passes through the center of the dome of the old Naval Observatory at 24th Street and Constitution Avenue, NW., Washington, D. C. It is 5 hours, 8 minutes, 12.15 seconds or 77°03'02.3'' west of Greenwich.
During the period of nearly 62 years that the act was in force, the meridional boundaries of the Territories and States of Arizona, Colorado, Dakota, Idaho, Montana, Nevada, and Wyoming and the States of Kansas, Nebraska, New Mexico, and Utah were referred to the Washington meridian.
The use of a divide or ridge summit for a boundary has considerable logic to support it. It is a natural barrier and tends to confine political and economic activity to some extent. The intent of the document defining the boundary is clear, and the topographer can mark the line on the ground within very close limits.
If by treaty or statute a nonnavigable river or smaller stream is named as a boundary between States or nations and neither the bank nor the main channel is specified, the line midway between the two banks is the actual boundary. A treaty, statute, or cession may specify that one bank or the other is the boundary; in that case either the high-water or the low-water mark may be the line, according to the wording of the agreement. For example, the north boundary of Kentucky is the low-water mark on the north bank of the Ohio (see p. 179), as fixed by the act of ression by Virginia, and the high-water mark on the west bank of the Chattahoochee River forms part of the west boundary of Georgia (13 Howard 380).
If a boundary line described as following the middle of a river intersects an island, it is the usual policy to give the entire island to the State or Government to which the greater part would fall. This rule was followed by the commission acting under Article VI of the
treaty of Ghent in fixing the St. Lawrence River boundary, and also by the Rhode Island and Massachusetts commissions."
No land can be considered an island unless it is surrounded by water at all times. 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."
Where running streams are the boundaries between States, * when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream [see 265 U.S. 499]; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel [or on one bank if so fixed by statute], although no water may be flowing in it [246 U.S. 173].
So long as that channel [as it was previous to avulsion] remains a running stream the boundary marked by it is still subject to be changed by erosion and accretion; but when the water becomes stagnant *** the boundary then becomes fixed in the middle of the channel [246 U.S. 175].
Thus a line described by statute or treaty as a river boundary may later run across dry land, where it remains fixed unless the river returns to its former channel and changes the channel by slow action. There are many illustrations of this rule in the United States-for example, along the Missouri River between Missouri and Kansas and between Missouri and Nebraska, and on the Mississippi between Tennessee and Arkansas.
If after an avulsion the boundary is again moved by new accretions, a Supreme Court rule (18 Howard 150; 1 Black 209. See also 48 Mich. 88) requires that the boundary be so placed that each State (or individual) shall have a water frontage proportional to what it was immediately after the avulsion occurred, general directions only being considered.
When a navigable river constitutes the boundary between two independent States, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream.
For reference to the use of the water of rivers that cross State lines, abstract of laws, and bibliography of 70 entries relating to that subject, see Hinderlider and Meeker, (1927, v. 90, p. 1035-1051). See also 206 U.S. 46, 259 U.S. 419, 206 U.S. 46-98 (Arkansas River), 259 U.S. 419 (Laramie River), 282 U.S. 660 (Ware River, Mass.), 283 U.S. 336 (Delaware River), 283 U.S. 423 (Colorado River).
75 Wheaton 374. See decision regarding Wolf Island, Mississippi River, 11 Wallace 395.
8 Many examples of the application of this rule are shown on the maps accompanying the reports of the commissioners who established the boundary between Oklahoma and Texas along the Red River. See report 4, Jan. 31, 1927, U.S. Supreme Court.
This general rule has no application to a case governed by convention or by a special right based on prior possession. (See 202 U.S. 29.)
The controlling consideration which fixes the jurisdiction between neighboring States bordering on a navigable stream "is that which preserves to each State equality in the right of navigation in the river." 10
The rule as to what constitutes a navigable stream or lake was reaffirmed in a decision by the U.S. Supreme Court dated February 1, 1926 as follows:
Streams or lakes * are navigable * * when they are used or susceptible of being used in their natural or ordinary condition as highways for commerce *** whether by steamboats, sailing vessels, or flat boats [270 U.S. 49].
By common law, only arms of the sea and streams where the tide ebbs and flows are deemed navigable. (140 U.S. 383.)
The terms "thalweg," "fairway," "midway," or "main channel” are used in the definition of water boundaries between States, meaning the middle or deepest or best navigable channel. They are applied to water boundaries in sounds, bays, straits, gulfs, estuaries, and other arms of the sea, also to boundary lakes and land-locked seas in which there is a deep-water sailing channel.
The middle of the channel refers to the space within which ships can and usually do pass. This may be and often is midway between the two banks. It is not necessarily the deepest channel, which may be so crooked that it can not be used."1
The true water boundary lines for Mississippi River States are lines along the middle of the main channel of navigation as it existed in 1783, subject to such changes as have occurred since that time through natural and gradual processes [246 U.S. 158].
For States bordering on the Mississippi the terms "middle of the Mississippi River," "middle of the main channel of the Mississippi River," "the center of the main channel of that river" are synonymous [147 U.S. 11].
Changes in rivers caused by the works of man do not change boundaries.
The building of docks or other structures in a river does not work an alteration in a boundary line, nor does it affect the sovereignty of the State over the area occupied by such structures. *** He who owns submerged land owns the land reclaimed.12
Each State may establish rules of property over land which emerges on either side of an interstate boundary stream, but such rules extend to the interstate boundary line only [246 U.S. 176].
10 143 U.S. 359-367; 147 U.S. 7-13; 202 U.S. 149; 211 U.S. 127-134; 214 U.S. 205, 215; 246 U.S. 158; 247 U.S. 461; 250 U.S. 39; 252 U.S. 282; 259 U.S. 572. Convention with Mexico, Nov. 12, 1884, Art. I. See Opinions of the Attorney General, 1856, v. 8, p. 175-180, for many references to these rules in international law.
11 147 U.S. 1. For many references to court decisions regarding water boundaries, see Hyde (1922, v. 1, p. 243-248) and Clark (1922, p. 38 and chap. 14).
12 See brief for the United States in Marine Railway & Coal Co. v. the United States, U.S. Supreme Court, October term, 1920, p. 70, 155.
In a case regarding title to land along a tidal stream in a newly created State, the U.S. Supreme Court decided (3 Howard 212; 9 Howard 471; 13 Howard 25) that the shores of navigable rivers and the soil under them up to high-water mark belong to the adjoining State, not to the United States, but this general rule may be modified by treaty, by statute, or by agreement between States when approved by Congress.13
Grants of land by the United States bordering on navigable waters extend to the mean high-water line, but State laws differ in this respect. When a State is admitted to the Union it becomes vested with the title to lands under navigable waters up to mean high-water mark,14 but title to the beds of nonnavigable rivers remained in the United States when new States were organized from areas that were formerly public land (283 U.S. 66). State laws cannot affect titles vested in the United States (283 U.S. 75).
What constitutes the high-water line on the shores of oceans, lakes, and rivers has been the subject of a great many court decisions (156 Wisconsin 261, 272. See also 258 U.S. 574), which may be summarized as follows (Johnson, 1919, p. 160):
The point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.
The following are Supreme Court definitions:
The bed of the river includes * ** all of the area which is kept practically bare of vegetation by the wash of the waters of the river from year to year ***; although parts of it are left dry for months at a time. *** The bank of the river [the Red River] * * * is the water-washed and relatively permanent elevation or declivity [commonly called a cut bank] at the outer line of the river bed which separates the bed from the adjacent upland *** and serves to confine the waters within the bed ***. The boundary intended is on and along the bank at the average or mean level attained by the waters when they reach and wash the bank without overflowing it. [Oklahoma v. Texas [Red River boundary case], 260 U.S. 632, 645.]
The shoreline is "the line which is washed by the water wherever it covers the bed of the river within its banks" (13 Howard 418. See also 5 Wheaton 379). It lies "along the bank at the mean level attained by the waters of the river when they reach and wash the bank without overflowing it." 16
13 See Opinions of the Attorney General, 1856, v. 8, p. 443; 94 U.S. 324; 138 U.S. 226; 255 U.S. 56; and Clark (1922, p. 295).
14140 U.S. 371; 94 U.S. 325. Riparian rights of individuals differ in different States and are not well defined. Riparian rights in England and Canada are ably described in Canadian Surveyor, July 1931, p. 7-16.
15 For references to the meaning of shore and shoreline, see 224 Illinois 43; 79 North Eastern 296, 1907; 12 Lawyer's Reports Annotated, new ser., 687, 1908; 53 Arkansas 314, 1890; 13 South Western 931, 1890; 8 Lawyer's Reports Annotated, 559, 1890.
18 See opinion of the attorney general of the State of New York, Sept. 30, 1925, on the meaning of the "line of high water"; which includes references to many decisions.