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THE DECISIONS

OF THE

Supreme Court of the United States,

AT

OCTOBER TERM, 1892.

(Authenticated copy of opinion record strictly followed, except as to such reference words and

figures as are inclosed in brackets.]

11 *THE STATE OF IOWA state of Illinois to ascertain and fix by judi0.

cial finding the boundary line between those THE STATE OF ILLINOIS.

states,
The facts are stated in the opinion.

Messrs. John Y. Stone, Atty. Gen. of (See 8. C. Reporter's ed. 1-14.)

Iowa, and Jas. C. Davis for complainant. Boundary between states-mid-channel of navi Mr. George Hunt, Atty. Gen. of Illinois,

gable rider-navigable rivers between states of for defendant. the Union-boundary line between lora and Illinois commission to ascertain boundary *Mr. Justice Field delivered the opinion [2 line.

of the court:

The Mississippi river flows between the 1 When a navigable river constitutes the bound-states of Iowa and Illinois. It is a navigable ary between two independent states, the mid-stream and constitutes the boundary between dle of the main channel of the stream marks the the two states; and the controversy between true boundary between them up to which each them is as to the position of the line between state will on its side exercise jurisdiction. its banks or shores wbich separates the juris& In international law and by the usage of Euro- diction of the two states for the purposes of pean nations, the terms "middle of the stream" taxation and other purposes of government. and “mid-channel" of a navigable river are The complainant, the state of Iowa, consynonymous and interchangeably used.

tends that, for taxation, and for all other pur& The true line in navigable rivers between the poses, the boundary line is the middle of the states of the Union which separates the jurisdic main body of the river, taking the middle line tion of one from the other is the middle of the between its banks or shores without regard to main channel of the river; the Jurisdiction of the steamboat channel," as it is termed, or each state extends to the thread of the stream, that is. to the “mid-channel," and, if there be deepest part of the stream, and that, to deterseveral channels, to the middle of the principal mine the banks or shores, the measurements one, or, rather, the one usually followed. must be taken when the water is in its natural

The boundary line between the state of Iowa or ordinary stage, neither swollen by floods and the state of Ilinois is the middle of the main nor shrunk by droughts. navigable channel of the Mississippi river.

On the other hand, the defendant, the state 6. In a proper case, this court will appoint a com- of Illinois, claims that, for taxation and all mission to ascertain and designate the boundary other purposes, its jurisdiction extends to the lines between two states as determined by this middle of “the steamboat channel" of the court and to report the same to the court for its river, wherever that may be, whether on its further action.

east or west bank-the channel upon wbich (No. 5, original.)

commerce on the river by steamboats or other Submitted Noo. 28, 1892. Decided Jan. 3, 1893. vessels is usually conducted, and which for

that reason is sometimes designated as "the THIS is an original suit commenced in this channel of commerce."

court by the state of Iowa against the The state of Iowa in its bill alleges: That NOTE.-A8 to navigable waters; what are, in Unit- territory does not divest the vested rights of individuh ed States; streams and inland waters as highways, als to property; former laws continue until altered see note to United States v. The Montello, 22: 891. by nere sovereign, see note to Delassus r. United

As to what is seashore; how far lands bounded on, States, 8: 71. atend, see note to United States v. Pacheco, 17:885. A8 to judicial settlement of state boundaries, see

That dominion acquired over conquered or ceded note to Nebraska v. Iowa, 38: 188

TAT

prior to and at the time of the treaty between of the draw in the bridge, or 880 feet from the England, France, and_Spain, in 1763 (3 Jen- Iowa shore of the river and 2,162 feet from the kinson's Collection of Treaties, p. 177), the ter- shore of the river in Illinois on Island No. ritory now comprising the state of Iowa was Four; that at places in the river there are two under the dominion of France, and the terri- or more channels equally accessible and useful tory now comprising the state of Illinois was for navigation by steamboats and other crafts under the dominion of Great Britain, and that carrying the commerce of the river; and that by the treaty named the middle of the river at the Keokuk & Hamilton bridge the channel Mississippi was made the boundary line be- used by steamboats is partly artificial, con. tween the British and French possessions in structed by excavation of rock from the river North America.

bed to facilitate the approach to the lock of That by the treaty of Paris between Great the United States canal'immediately north of Britain and the United States, wbich was con- the bridge. cluded September 3, 1783, (3 Jenkinson's Col. That the state of Iowa claims the right to lection of Treaties, p. 410, art. II, and 8 Stat. tax all bridges across the river to the middle at L. 80) the territory comprising the state of thereof, and does tax the Keokuk & Hamilton 3) Illinois passed to the United States, * and bridge to its middle between the east and west that by the purchase of Louisiana from France, abutments thereof, that is, the west approach under the treaty of 1803 (8 Stat, at L._208) and abutment 200 feet and 1096 feet of the the territory comprising the state of Iowa bridge proper, thereby treating, for conveni. passed to the United States,

ence of taxation, the middle of the bridge beThat the boundary between the territory tween abutments as the middle of the river at comprising the states of Illinois and Iowa re- that point, but which is in fact 225 feet less mained the middle of the river Mississippi, as than one half the distance across the main arm fixed by the treaty of 1763.

or body of the river at that point. That by the Act of Congress of April 18, That the state of Illinois and its municipali. 1818, known as the Act Enabling the People ties assess, and tax, as in that state, 716 feet of of Illinois to Form a State Constitution (3 Stat. the bridge actually assessed and taxed in Iowa, at L. 428), the northern and western boundaries and 225 feet of the bridge in addition thereto, of Illinois were defined as follows: Starting in located in Iowa but not taxed in that state. the middle of Lake Michigan, at north latitude That the Keokuk & Hamilton Bridge Comforty-two degrees and thirty minutes, "thence pany, owner of the Keokuk & Hamilton west to the middle of the Mississippi river, and bridge, is a corporation of both of said states thence down along the middle of that river to consolidated, and complains of such double its confluence with the Ohio river," and that taxation. the constitutions of Illinois of 1818, 1848, and That litigation is now pending over such 1870 defined the boundaries in the same taxation, and is liable at any time to arise over way.

the taxation of any of the other bridges across Ånd the bill further alleges that the state of the river between the said states, now nine in Illinois and its several municipalities bordering number. on the Mississippi river claim the right to as To the end, therefore, that the line between sess and do assess and tax, as in Illinois, all the states may be definitely fixed by the only bridges and other structures in the river from court having jurisdiction to do so, the comthe illinois shore to the middle of the steam-plainant prays that this court will take juris. boat channel, or channel of the river usually diction of this bill, and that the state of Illinois traversed by steam and other crafts in carrying be summoned and *requested to answer it, [5 the commerce of the river, whether such chan-waiving such answer being on oath, and that nel is east or west of the middle of the main upon the final hearing this court will definitely body or arm of the river; and that they thus settle the boundary between the states at the assess and tax, as in that state, the bridge of said several bridges. the Kerkuk & Hamilton Bridge Company To this bill the state of Illinois appeared by across the river from Keokuk, Iowa, to Island its attorney general and filed its answer, which No. Four, in Hancock county, Illinois, from denied that the boundary line between the the west shore of the island westward 2.462 states of Iowa and Illinois is the middle of the feet to the east end of the draw of the bridge, Mississippi river, and insisted that it is tho and to a point not over 580 feet east from the middle of the steamboat cbappel, or channel Iowa sbore of the river and 941 feet west of commonly used by boats in carrying the com. the middle of the main arm or body of the river merce of the river, whether east or west of the at that point

middle of the river. It admitted that the state That the steamboat channel, or channel of and its municipalities claimed the right to tax the river where boats ordinarily run in carry- and did tax bridges and other structures in the ing the commerce of the river, varies from river to the middle of the steamboat channel or side to side of the river, sometimes being next channel of commerce, whether such channel to the Illinois shore and then next to the Iowa was east or west of the middle of the main shore, and, at most points in the river shifting body or arm of the river, and did assess and from place to place as the sands of its bed are tax the Keokuk & Hamilton bridge to its draw changed by the current of the water; that at and west of the middle of the main body or the point of the Keokuk & Hamilton bridge arm of the river: and that the steamboat cban. 4) mentioned* the river bed is rock and not sub- nel or channel of commerce is first dear one ject to much change; that at that point, were it shore and then near the other, and at other pot for the bridge, the middle of the steamboat places nearly across the river. But it denied channel would be, and was before the bridge the right of the state of Iowa to tax the bridges was erected, fully 300 feet east of the east end I mentioned crossing the Mississippi river to any

point east of the middle of the steamboat chan- |plications are liable to arise over the assessment nel, or channel of commerce of the river. of any other of the bridges.

To the answer a replication was filed by the To the end, therefore, that the boundary state of Iowa.

line between the states of Illinois and Iowa at At the time of filing its answer the state of said several bridges may be defined and settled, Nlinois filed also its cross bill, in which it al- the state of Illinois prays that the state of leges that there exist nine bridges across the Iowa be made defendant to this cross bill, and Mississippi river between the states, the most required to answer it, and that upon the final southern of which is the Keokuk & Hamilton hearing the court will define and establish at Railroad bridge and the most northern, the each of the bridges the boundary lines between Duplieth & Dubuque Bridge Company's rail- the states of Illinois and Iowa, to which points road bridge.

the respective states may tax. To this cross That for the purposes of taxation the state bill the defendant, the state of Iowa, answered, of Illinois and its municipalities claim the right | admitting the existence of nine bridges across to assess and tax the respective bridges to the the Mississippi river, where it forms the bound. middle of the channel of commerce or steam- ary between the states of Illinois and lowa, boat chandel, that is, the channel usually used and that the state of Illinois and its several by steamboats and other crafts navigating the municipalities bordering upon the river claim river; ard that on the part of the state of Iowa the right to tax said bridges from the Illinois and its municipalities it is claimed that each shore of the river to the middle of the channel state has the right to assess and tax to the mid- of commerce or steamboat channel, and that dle of the main arm or body of the river, re- the state of Iowa and its municipalities bordergardless of where the channel of commerce or ing on the river claim the right to tax and do steambnat channel may be.

tax the several bridges to the middle of the 6] *That the supreme court of Iowa, in the main

arm or body of thë river, regardless of case of Dunleith & D. Bridge Co. v. Dubuque where the channel of commerce or steamboat County, 55 Iowa, 558, held that the authorities channel, that is, that part of the river usually in Iowa bave the right to tax such structures traversed by steam or other vessels carrying to the middle of the main arm or body of the the commerce of the river, may be. It therestream and no further, though at the point fore prays that upon the final hearing the where such structure is situated the channel or boundary lines between the two states may be part of the river followed by steamboat mea established, to which the respective states may in pavigating the river is far east of the mid-lax. dle of such main body of the stream.

By setting down the case for hearing on the That following the decision in that case, the bill, answer, and replication (without taking authorities in lowa assess and tax such struct- any testimony), and on the cross bill and the ures to the middle of the main body of the answer to it, all the facts alleged in the answer river.

to the original bill, as well as those alleged in That at the point of the location of the Keo the cross bill and not denied in the answer, are kuk & Hamilton bridge the main body of thereby admitted. the river, before the construction of the bridge, When a navigable river constitutes the was between the Iowa sbore at Keokuk, Lee boundary between two independent states, the county, Iowa, and the west shore of Island No. line defining the point at which the jurisdicFour, located in the city of Hamilton, Hancock tion of the two separates is well established to county, Illinois, & breadth of about 3,042 feet; be the middle of the main channel of the that in constructing the bridge a solid approach stream. The interest of each state in the is extended from the shore at Keokuk into the navigation of the river admits of no other line. river 200 feet, and from the shore on Island The preservation by each of its equal right in No. Four, in Illinois, about 700 feet, and the the vavigation of the stream is the subject of main body of the river confined between the paramount interest. It *is, therefore, laid (8 abutments to the bridge 2,192 feet apart, and down in all the recognized treatises on interthe bridge consists of the east and west abut- national law of modern times that the middle ments, eleven piers, a draw next to the west or of the channel of the stream marks the true Iowa abutment of 380 feet, avd ten spads, to boundary between the adjoining states up to gether 1812 feet.

which each state will on its side exercise juris. That the middle of the steamboat channel, diction. In international law, therefore, and or that part of the river usually traversed by by the usage of European nations, the term steamboat men in navigating the river, is at or middle of the stream," as applied to a navignear the east end of the draw or pivot span, able river, is the same as the middle of the about 380 feet from the west abutment and channel of such stream, and in that sense the 1812 feet from the east abutment.

terms are used in the treaty of peace between That the assessor in Illinois in assessing the Great Britain, France, and Spain, concluded bridge values the bridge to the east end of the at Paris in 1763. By the language, “a line draw and assesses the same against that part drawn along the middle of the river Mississippi of the bridge in Illinois, and the authorities in from its source to the river Iberville," as there Iowa value and assess the bridge to the middle used, is meant along the middle of the channel thereof, 1096 feet east from the west abut- of the river Mississippi. Thus Whenton, in ment, as in the state of Iowa; that thereby 716 his "Elements of International Law,” (8th ed.) feut of tbe bridge is valued and assessed both $ 192, says: in Illinois and Iowa; that litigation is now “Where a navigable river forms the boundpending in the lower courts between the bridge ary of conterminous states, the middle of company and the authorities over the assess the channel, or thalweg, is generally taken 7) medis, and that the same *trouble and com- as the line of separation between .ibe two

states, the presumption of law being that the bave free use of it, and the dividing line will right of navigation is common to both; but run in the middle of the channel, unless the this presumption may be destroyed by actual contrary is shown by long occupancy or agreeproof of prior occupancy and long updisturbed ment of the parties. If a river changes its bed, possession, giving to one of the riparian pro the line through the old channel continues, but prietors the exclusive title to the entire river." the equitable right to the free *use of the (10

And in $ 202, whilst tbus stating the rule as stream seems to belong, as before, to the state to the boundary line of the Mississippi river be whose territory the river has forsaken." $ 58. ing the middle of the channel, states that the The middle of the channel of a navigable channel is remarkably winding, “crossing river between independent states is taken as and recrossing perpetually from one side to the true boundary line from the obvious reason the other of the general bed of the river.” that the right of navigation is presumed to be

Mr. Creasy in his “First Platform on Inter-common to both in the absence of a special national Law" expresses the same doctrine. convention between the neighboring states, or He says:

long use of a different line equivalent to such “It bas been stated bat, where a navigable a convention. river separates neighboring states, the thalweg, Phillimore, in his * Commentaries on Interor middle of the navigable channel, forms the national Law," in the chapter upon acquisiline of separation. Formerly a line drawn tion, speaks of decisions upon the law of along the middle of the water, the medium property as incident to neighborbood, profilum aquæ, was regarded as the boundary line; ceeding upon the principle that “mid-channel" and still will be regarded prima facie as the is the line of demarcation between the neighboundary line, except as to those parts of the bors. Vol. 1, 239. river as to which it can be proved that the The reason and necessity of the rule of intervessels which pavigate those parts keep their national law as to the mid-channel being the 9] course babitually along some *channel dif- true boundary line of a navigable river separatferent from the medium filum. Wben tbis is ing independent states may not be as cogent the case, the middle of the channel of traffic is in this country, where neighboring states are now considered to be the line of demarcation." under the same general government, as in (p. 223.)

Europe, yet the same rule will be held to Mr. Creasy also refers to the language of obtain unless changed by statute or usage of Dr. Twiss on the same subject, w bo observes so great a length of time as to have acquired that “Grotius and Vattel speak of the middle the force of law. of the river as the line of demarcation between As we have stated, in international law and two jurisdictions, but that modern publicists by the usage of European nations, the terms and statesman prefer the more accurate and "middle of the stream” and “mid-channel" more equitable boundary of the navigable mid- of a navigable river are synonymous and inter channel. If there be more than one channel changeably used. The Enabling Act of April of a river, the deepest channel is regarded as 18, 1818, 18 Siat, at L. chap. 67, p. 428) under the navigable mid-channel for the purpose of which Illinois adopted a constitution and beterritorial demarcation; and the boundary line came a state and was admitted into the Union, will be the line drawn along the surface of the made the middle of the Mississippi river the stream corresponding to the line of deepest western boundary of the state. The Enabling depression of its bed. The islands on either Act of March 6, 1820, (3 Stat. at L. chap. 22, side of the mid-channel are regarded as ap- $ 2, p. 545) under which Missouri became a pendages to either bauk; and if they have state and was admitted into the Union, made once been taken possession of by the nation to the middle of the main channel of the Missio whose bank they are appendant, a change in sippi rider the eastern boundary, so far as its the mid-channel of the river will not operate to boundary was conterminous with the western deprive the nation of its possession, although boundary of Illinois. The Enabling Act of the water-frontier line will follow the change August 6, 1864, (9 Stat. at L. 56) under which of the mid-channel."

Wisconsin adopted a constitution and became Halleck in his "Treatise on International a state and was admitted into the Union, gives Law" is to the same effect. He says: the western boundary of tbat state, after reach

“Where the river not only separates the ing the river St. Croix, as follows: "Tuence conterminous states, but also their territorial | down the main channel of said river to the jurisdictions, the Thalweg, or middle channel, Mississippi, thence down the centre of the main forms the line of separation through the bays *channel of that” (Mississippi) “river to (11 and estuaries through which the waters of the the northwest corner of the state of Illinois." river flow into the sea. As a general rule, The northwest corner of the state of Illinois this line runs through the middle of the deep- must therefore be in the middle of the main est channel, although it may divide the river channel of the river which forms a portion of and its estuaries into two very unequal parts. its western boundary. It is very evident that But the deeper channel may be less suited, or these terms, "middle of the Mississippi river," totally unfit for the purposes of navigation, in and “middle of the main channel of the which case the dividing line would be in the Mississippi river," and "the centre of the middle of the one which is best suited and main channel of that river," as thus used, are ordinarily used for that object.” Vol. 1, chap. synonymous. It is not at all likely that the 6, S 23.

Congress of the United States intended that Woolsey in his "International Law" repeats those terms, as applied to the Mississippi river tDe same doctrine and says:

separating Illinois and Iowa, should have a "Where a navigable river forms the bound- different meaning when applied to the Missisary between two states, both are presumed to sippi river separating Illinois from Missouri,

or a different meaning when used as descriptive | The court proceeds, treating the Mississippi of a portion of the western boundary of Wis- river as a common boundary between the consin. They were evidently used as signify, states of Illinois and Missouri, to inquire the ing the same thing.

meaning of the term,"middle of the MissisThe question involved in this case has been sippi river," used in the Enabling Act of Conelaborately considered, both by the supreme gress and in the constitution, defining the court of Iowa and the supreme court of Illi- boundaries of the state of Illinois. It answers pois, in cases relating to the assessment and the inquiry by observing that the word "cban. ta xation of bridges crossing the Mississippi nel" is used as indicating the space within river, as to the point to wbich the jurisdiction which ships can and usually do pass," and says: of each state for taxation extends, and they "It is apprehended it is in this sense the expres. differed in their conclusions. In Dunleith & sions 'middle *of the river,' 'middle of the (13

D. Bridge Co. v. Dubuque County, 55 Iowa, main channel,' mid-channel,''middle thread 558, 564, the supreme court of Iowa, after of the channel,' are used in enabling acts of ohserving that the Act of Congress admitting Congress and in state constitutions establishing Iowa into the Union and the constitution of state boundaries. It is the free navigation of Iowa in its preamble declare that the eastern the river-when such river constitutes a comboundary of the state shall be "the middle of mon boundary, that part on which boats can the main channel of Mississippi river," pro- and do pass, sometimes called 'nature's pathceeds to inquire what line is understood by way'—that states demand shall be secured to those words, "middle of the main channel. them. When a river, navigable in fact, is The defendant maintained that the deep water taken or agreed upon as the boundary between of the stream used in the navigation of the two nations or states, the utility of the main river was meant, while the plaintiff insisted channel, or, what is the same thing, the navithat the words described the bed in wbich the gable part of the river, is too great to admit stream of the river flows; that is, the bed over a supposition that either state intended to sur. wbich the water flows from bank to bank. render to the state or nation occupying the opThe court thought that the words, when apposite sbore the whole of the principal channel plied to rivers generally, without the purpose or highway for vessels and thus debar its own of describing their currents or navigable char. vessels the right of passing to and fro for puracters, always bore the latter signification, I poses of defense or commerce. That would observing that this was their primary meaning, be to surrender all, or at least the most valuable and was of opinion that they were used in part, of such river boundary, for the purposes that sense in the Act of Congress admitting of commerce or other purposes deemed of 12) the state into the *Union, and in the con- great value to independent states or nations." stitution of lowa. In support of this view the The opinions in both of these cases are able court referred to the changing character of the and present, in the strongest terms, the differcurrents of the river followed by vessels, ent views as to the line of jurisdiction between caused by the shifting pature of the sand bars neighboring states, separated by a navigable found in the river. The course of naviga- stream; but we are of opinion that the contion," it said, "wbich follows what boatmen trolling consideration in this matter is that call the channel, is extremely sinuous, and which preserves to each state equality in the often changing, and is unknown except to ex right of navigation in the river. We there. perienced navigators. On the other band, the fore hold, in accordance with this view, that bed of the main river, designated by the word the true line in navigable rivers between the channel, used in its primary sense, is the great states of the Union which separates the juris. body of water flowing down the stream; it is diction of one from the other is the middle of broad and well defined by islands or the main the main channel of the river. Thus the ju. shore. It cannot be possible that Congress risdiction of each state extends to the thread and the people of the state, in describing its of the stream, that is, to the 'mid-channel,” boundary, used the word channel to describe and, if there be several channels, to the middle the siduous, obscure, and changing line of of the principal one, or, rather, the one usually Davigation, rather than the broad and dis- followed. tinctly defined bed of the main river. The It is therefore ordered, adjudged, and decenter of this river bed channel may be readily clared that the boundary line between the state determined, while the center of the navigable of Iowa and the state of Illinois is the midchannel often could not be known with cer- dle of the main navigable channel of the tainty. The first is a fit boundary line of a Mississippi river. And, as the counsel of the state; the second cannot be."

two states both desire tbat this boundary line In Buttenuth v. St. Louis Bridge Co., 133 be establisbed at the places where the several Ill. 535, the supreme court of Illinois reached bridges mentioned in the pleadings—nine in a different conclusion after an elaborate con- number--cross the Mississippi river, it is further sideration of the same question. That was a ordered that a commission be appointed [14 case where an alleged over estimate was made to ascertain and designate at said places the of a bridge crossing the Mississippi river at St. boundary line between the two states, such Louis, and the question discussed was, how commission, consisting of three competent far did the jurisdiction of Illinois extend over persons, to be named by the court upon sug. the river? After observing that wben a river gestion of counsel, and be required to make the is a boundary between states, as is the Missis- proper examination and to delineate on maps sippi between Illinois and Missouri, it is the prepared for that purpose the true line as demain-the permanent-river which constitutes iermined by this court, and report the same to the boundary, and not that part which flows the court for its further action. in seasons of high water and is dry at others. I

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