*1 v. KENTUCKY OHIO 5, 1973 March January 1973 Decided Orig. Argued No. Court, which opinion of the J., delivered Blackmun, Powell, Marshall, White, J., and Stewart, BkeNNAN, C. BurgeR, opinion, dissenting J., JJ., joined. filed Douglas, Rehnquist, post, p. 652. on plaintiff for the cause argued M. Howard
Joseph With Master. Special of the Report to the exceptions Brown, Attorney General J. William the brief was him of Ohio. Attorney General Famularo, Assistant
John M. vice hac pro defendant the cause Kentucky, argued Special of the Report exceptions to answer Hancock, Ed W. brief were on the With him Master. Attorney General, James Bingo, M. Assistant Attor- ney General. opinion: delivered the Justice Blackmun
Mr. Court. years
Almost seven ago, March 1966, the of State Ohio instituted this original against action the Common- Kentucky. wealth of By prayer its for relief in pro- posed of bill complaint, Ohio asked only that the Court declare and establish:
“1. The line between the of State Ohio and the Kentucky State of as being the water low mark on northerly the side of the Ohio River in the year 1792 ....
“2. The of State Ohio and the of Kentucky State equal have and concurrent jurisdiction over and on all of the Ohio from River the northerly shore to the Southerly shore, except jurisdiction incidental the sovereignty the soil under the river and structures permanently attached thereto.” In its complaint Ohio alleged:
“4. The State of Ohio was established from the land by ceded legislative act of the Commonwealth of Virginia to the United States on the day 1st March, 1784, which act is known as the Cession of Virginia.
“5. The State of Kentucky was by established the separation of the District of Kentucky from the jurisdiction of the Commonwealth of Virginia pur- suant to that certain act of the Virginia Legislature entitled 'An Act concerning the erection of the dis- trict of Kentucky into an independent passed state/ on the 18th day of December, 1789, which act is known as the Virginia-Kentucky Compact. the State line of northern The
“6. Vir- Cession from the established low Compact as the Virginia-Kentucky and ginia River of the Ohio northerly side on the mark water 1792.” year in the existed the United From 1910 to allege: on to went Ohio navigational River in the dams erected States earlier replacing been it has purposes. Since waters dams has caused ones. This higher with areas various inundate permanently river rise or shores Kentucky. result, "As of both Ohio farther north- moved have been River banks of the Ohio increased levels have the water southerly as erly and mark water north low of the river.” damming elevation increased been obscured of 1792 “has *3 Kentucky claimed that has levels.” of the water north- present “along is two States line between the rather than the River line of the Ohio erly shore south is located water mark which northerly low now and line.” Ohio “does north present of the shore . between always . has claimed . low water mark.” northerly the 1792 is complaint granted. file bill of Leave to admitted the answer (1966). Kentucky U. S. 982 paragraphs numbered above-quoted allegations the Hon- complaint. appointed Ohio’s The Court then in Special Master the case. Phillip orable Forman as (1966). 385 U. S. leave years moved for later, August 1971,
Five
to file an
amendment Ohio
complaint. By
amended
this
would
and Ken-
assert
between it
tucky
alterna-
or, only
is the middle of the Ohio River,
mark
northerly
the 1792 low water
on the
tively,
year Kentucky
1 1792 is the
became a
189.
State.
Stat.
shore. We referred the motion to the Special Master.
404 U.
S.
(1971). He held a hearing and in due
course filed
report.
his
406 U.
915 S.
Master
recommended this Court enter
its order
denying
petition
Ohio’s
for leave to amend. His con-
clusion rested on
ground
“that
the proposed amend-
ment,
any
view
its factual allegations, fails as a
matter of law to state a cause of
Report
action.”
Upon the filing of Ohio’s exceptions and Kentucky’s
reply, we set the matter
for argument.
I
Accepted procedures for an ordinary case in
pos-
ture
probably
would
lead us to conclude that the motion
for leave to file should be granted, and the case would
then proceed to trial or judgment on the pleadings. This,
however, is not an ordinary case.
It is one within the
original and exclusive jurisdiction of the Court. Const.,
Art. Ill, §2; 28 U. S. C. §
(a).
Procedures gov-
erning the
exercise
our original
jurisdiction are not
invariably governed by
precedent
common-law
or by
current rules
procedure.
of civil
See United States Su-
preme Court Rule 9; Rhode Island v. Massachusetts,
This case is amendment proposed allegations kind. The Ohio’s Kentucky. We, yet formally are not as controverted Ken- material admitted. treat the new as therefore, even the new tucky however, that, assuming asserts, stated, to be no cause action is allegations true, subject proposed amendment matter Ohio’s barred a matter of as law.
I—I In Handly Anthony, (1820), s Lessee v. Wheat. Indiana Court stated between and Kentucky was the low water mark western on the or Handly northwestern side of the Ohio River. was an ejectment action for brought by plaintiff under claiming a grant from un- against claiming defendants der a grant “from the as States, part United being Id., Indiana.” disputed 375. The land a neck south of a or channel, bayou, that had formed north of the main river. When the river was the channel high, filled and cut off the land to north. When the river was low, dry the channel was in part and the separation did not exist. The resolution of the case turned on whether land was in Kentucky. Indiana or in In- diana, like Ohio, received territory from the United States. The Court in Handly observed ques- land, tion “depends chiefly on the law of Virginia, and on cession made to the State United States,” id., at 376, and concluded that the United acquired States title from Virginia when negotiations during period from 1781-1784 resulted Virginia’s ceding its lands north and west of the Ohio River to the Federal Gov- ernment.2 Kentucky was received a State 2Recommendation of the Congress, Continental September 6, 1780, Hening, W. Laws of Resolution of the Gen Assembly Virginia, eral January 2, 1781, conditioned, among other *5 646
Union in 1792 out of territory Virginia purported retain at the time of 1784 cession. The Court con- cluded, on the basis this history, Kentucky, through Virginia, extended up to the low water mark or the northern, far, side of the Ohio River. Mr. Chief Justice Marshall enunciated the following, now familiar, principle:
“When
great
river
is the
between two
nations or
if
states,
the original
is in
property
neither,
be
there
no convention respecting it, each holds
to the middle of the stream.
when,
But
as in this
case, one State
the original
proprietor, and grants
the territory on one side
only,
retains the river
within its own domain, and
newly-created
State
extends to the river only. The river,
is its
however,
boundary.”
The rule of the Handly case, well as its specific application to the Kentucky-Indiana border, has been things, upon ratification of the Articles of upon Confederation and like cessions States, id., other 564, 567; Act of the Continental Congress, September 13, 1783, 25 J. Cong. of the Cont. 1774-1789, p. Act of Confirmation, 20, 1783, October Hening, W. Virginia Laws of 326 (1823); Act of the Congress, Continental 1, 1784, March 1 Laws of the (B. United States 1815). & D. ed. Virginia resolution recited that “will Commonwealth yield to the congress of the United States right, all title, ... claim that the said commonwealth hath to the lands northwest of the river Ohio.” 10 W. Hening, Laws Virginia Among proposed conditions guarantee by was also a the United Virginia States to remaining “all territory Virginia included between the Atlantic Ocean and the south east side of the river Id., Ohio.” at 566. This latter agreed condition was not Congress by its Act of 1783. 25 Cong. J. of the 1774-1789, Cont. p. The 1783 Act territory referred to “to the north-west of the river Ohio.” 11 Hening, W. Virginia Laws of So, too, did the deed of March from to the United accepted States by Congress on day. the same 1 Laws of the States, supra, United at 474. *6 of this decisions subsequent .to
consistently adhered (1890) 479 136 U. S. Kentucky, Indiana v. Court. that 486-493, id., at argument, Indiana’s (despite Bridge Henderson river); middle of the the boundary v. Nicoulin (1899);3 592 173 S. City, U. Henderson Co. v. explicitly has been It (1918). 113 O’Brien, U. S. 248 v. in Booth of Ohio Court Supreme by the recognized it was where (1858), 247-248 243, St. Shepherd, 8 Ohio assump- mere than the precision greater with far stated that: 654-655, post, at suggests, the dissent tion deed the to given “The construction States, the court of United by supreme the cession in and acted acquiesced thus having been regarded may be Ohio, of Virginia both courts, question.” of the as decisive 310 Aten, 307, 2 v. McCullock Ohio also Lessee See 142 Porter, 138, 11 Ohio Blanchard v. Lessee Garner, 655 v. 3 Gratt. Commonwealth (1841).4 See 1846). of Va. (Gen. Court that, as history, argues Ohio In counter this order to any of the Handly or to party to the case, it was not a not Handly, it is that reaffirmed later cases in this Court characterizes which it established, bound the rule there it is free In contends that particular, as dictum. Ohio ceding to Virginia, prior that challenge conclusion 3 boundary nothing what question can be added to “Upon indisputable cited; and it must be assumed was said the eases mark on to low-water extends Henderson Ohio River.” northwestern banks of the western and City, (1899). Bridge Co. v. Henderson U. S. bridge contrary tax in the possible a intimation to There is Mayer, Bridge Co. v. 31 Ohio St. Covington Cincinnati á case of however, been to have appears, 317, 327, case grant bridge company’s charter of the resolved on the content Sebastian bridge. v. ing permission erection of the See Bridge Co., Covington & Cincinnati Ohio St. the land that now encompasses both Indiana and Ohio, good held title to land.
Handly
later
decisions which Ohio was not
party
of course do not foreclose Ohio’s claim in a
judicata
res
sense. But proceedings under this Court’s
jurisdiction
original
are basically equitable in nature,
Rhode Island v. Massachusetts,
Ill *7 By its amended complaint Ohio seeks to re-examine an accepted premise of Handly decision and, proc- ess of doing so, to alter legal rights that, practical matter, have long been settled. By presently claiming ownership of half the Ohio River, Ohio does not assert that when Virginia ceded the lands northwest of the river, it intended to establish the river’s center as the line between Ohio and Kentucky, but, at the same time and thus inconsistently, to establish its northern edge as the line between Indiana and Kentucky. Rather, Ohio challenges the very postulate underlying the Handly decision, which must be taken, in practical effect, as establishing the entire northern boundary of Kentucky including its contact with Ohio. Ohio’s new theory is that Virginia did not have title to the lands north of the Ohio River in 1784 when Virginia surrendered its claim to the United States. Virginia’s claim, it is said, was baseless. Indeed, Ohio argues that title to these lands was hotly contested, with Virginia, New York, Massachusetts, Connecticut, and the United States all laying claim to the territory north of the river. The Continental Congress, fearing the threat this controversy posed for the youthful Nation, refused to resolve the disputed claims, and, instead, prevailed upon each of forgo claimants to its claim in favor the United
States for the common good. Accordingly, Ohio con- tends, the premise of Handly had title to —that the northwest territory prior to ceding it to the United States, or, to say it another that way, it was the common proprietor of lands on both sides the river —is his- torically invalid.
We need intimate no view on the merits of Ohio’s his- torical analysis, the State’s long acquiescence in the location of its southern border at the northern edge the Ohio River, persistent failure to assert a claim to the northern half of the river, convince us that it may not raise the middle-of-the-river issue at very late date. The 1820 decision in Handly necessarily placed Ohio on notice any that claim it might assert to half the river would be precluded by the reasoning of opinion. that The Court in Handly concluded entire border between Indiana and Kentucky was the river’s northern edge. Virginia’s claim to the territory is now Indiana arose from the same source as its claim to what is now Ohio. The lands to which Vir- ginia purportedly surrendered title the United States in 1784 encompassed both Ohio and Indiana.5 Ohio could not reasonably have believed, after Handly, *8 its claim over the northern half of the Ohio River rested on a footing different from that of Indiana. 5See Indiana v. Kentucky, 136 479, U. S. (1890). 505 See also the deed 1, of 1784, March referred 2, to in supra, n. from to the United August States. 7, On 1789, Congress passed “An provide Act to for the Government of Territory Northwest of the river Ohio.” 1 Stat. 50. In 1800, territory this was divided into separate governments. two 2 Stat. 58. And April 30, 1802, enabling Act for the admission of passed. Ohio 2 173. Stat. The State was formed out of the eastern half of the theretofore territory divided and was “bounded ... on the south the Ohio river,” ibid.; the land in the eastern division not included within the boundaries described for hereby Ohio “is to, attached and made a part of the territory.” Indiana Id., at 174. 650 Handly consistently has that recognized
Indeed, Ohio any it foreclosed claim that followed and the cases that in of the river. Even was located the middle its border and brief6 complaint supporting 1966 bill of original The highest in case so state. decisions Ohio’s And years court are to the same effect. over 150 assert, through proceedings has failed to available in this now raise in the Ken- the claim it would face of Court, 7 tucky’s judicial8 and assertions of legislative sovereignty over the river. say
Ohio does not its failure to assert its claim century past any over the and a half is due to excusable implications Handly neglect. and later decisions 6 now, always “The State of Ohio does and has claimed main Kentucky tained that between it the State of northerly low water mark of the Ohio River, mark year existed in the 1792 when Kentucky became a state.” Brief support complaint (Emphasis of motion for leave file original.) 7 Handly 1810, decision, In Kentucky a decade before the Legislature following enacted the statute: Assembly, 1 Be it enacted General county
“Sec. That each calling commonwealth, Ohio, of this for the river as the line, particular by shall be considered as bounded in the state river, line on the north west side of said and the bed river islands, counties, respective and the shall be therefore within the holding opposite thereto, state, the main land within this and the county tribunals, jurisdiction accordingly.” several shall hold Acts Kentucky, 1809, p. (1810); 100 1 Statute Laws 268 Ky. 1, 1, 2 2 Stat., p. See also Rev. Tit. c. 8 County, Commonwealth Henderson 27, 371 2d 29-30 v. S. W. Ralston, Louisville Co. (1963); 119, Sand & Gravel 266 2d v. S. W. Steamers, Inc., Ky. 649, Shannon v. Streckfus (1954); 121-122 279 McKnight, Ky. McFarland 653, 833, (1939); 45 S. W. 2d v. Chambers, (1846); Church 274, (Ct. 3 Dana 278-279 v. Fleming Kenney, Ky. 155, App. Ky. 1835); v. Commonwealth, 1859). (Ky. McFall v. Metc.
651
support
are too clear to
that claim. Ohio
Court
this
Nor,
this in its
brief here.9
initial
recognized
unequivocal
claims of
longstanding
light
Kentucky
river,
oppose
over the
and Ohio’s failure to
claims, may
credibly
those
has not
suggest
“The
acquiesced.
rule, long-settled and never doubted
by
by
court,
long acquiescence
this
is that
one state in
territory
possession
by
another and in the exer-
cise of
and dominion over
sovereignty
it is conclusive of
Michigan
the latter’s title and rightful authority.”
v.
Wisconsin, 270
295,
U. S.
308
To
effect
like
are
Hampshire,
Vermont v. New
289
593,
(1933);
U. S.
613
Maryland
Virginia,
v. West
217
1,
U. S.
42-44 (1910);
Louisiana v. Mississippi, 202
1,
U. S.
53-54
Vir-
(1906);
ginia
Tennessee,
v.
148
503,
(1893);
U. S.
523
Indiana v.
Kentucky, 136 U.
S.,
509-510, 518; Rhode Island v.
Massachusetts,
Here we have only not long acquiescence Ohio in Kentucky’s open claims over the but river, also lines of cases Court and the courts of both Ohio and Ken- tucky that, for more than 150 years, placed Ohio on con- sistent notice of inadequacy of the claim it now We asserts. find ourselves in agreement Special with Master that Ohio is foreclosed from claiming that Ohio, “Like the State of Indiana was formed from the land ceded by Virginia; therefore, boundary it has for its southern the Ohio (1816), River. See 3 (1816). Thus, Stat. and 3 Stat. 399 boundary determination of the between the states of Indiana and would control the determination of the between Kentucky.” the states of support Ohio and Brief in of motion for complaint leave to file situation, course, is otherwise when the States’ dispute open, long has standing. See, been continuous example, Jersey Delaware, 361, (1934); New v. 291 U. 376-377 S. Texas, Oklahoma v. 46-47 U. S. Arkansas v. Ten nessee, U. S. *10 in the middle of the Ohio
boundary with lies River. adopted Special
The recommendation is Master’s for bill of complaint motion leave to amend its is Ohio’s Special The case is remanded to the Master denied. further proceedings.
It is ordered. so Douglas, dissenting. Justice Mr.
The of Ohio instituted this action lo- original State boundary cate between it and the Commonwealth of Kentucky complaint on the Ohio River. The initial Kentucky’s recognized northern as following “the northerly low water mark on the side of the Ohio year River as it existed in the 1792,” but asserted that subsequent events had altered the location of the low- Today water mark. the Court denies request Ohio’s permitted be to amend complaint plead an theory: alternative boundary true between in the States is the middle of the Ohio River.2 concepts
Basic of pleading preclude determination of in factual issues testing sufficiency of a The claim.3 appropriate question for the Court this stage of the proceedings, therefore, is if whether the facts as stated by Ohio are true, a valid legal issue is tendered. Ohio asserts Kentucky’s that Virginia, predecessor in title, never ownership held rights to both banks of River that, accordingly, Kentucky’s current claim to land underlying the northern side of the Ohio River in- is valid.4 The question before equivalent us to that 1 Complaint 6.¶ complaint Amended 1-3. ¶¶ James, §4.1, p. 127; Conley 3 F. Civil Procedure Gibson, v. U. S. 45-46. 4 Virginia’s upon claim of title granted rests by King charter I Company James to the London argues 1609. Ohio later posed by majority’s demurrer. of in- The conclusion sufficiency is, therefore, sustainable. not upon Court’s decision is a the merits determination only Ohio’s and should made proffered allegations be after all evidence it. The concludes, is before Master and the agrees, acquiesced Court that Ohio has to Ken- tucky’s ownership of the northern half of Ohio River adjudications established Court. Although I find consideration of the such merits to be premature, *11 the Court’s me reasoning prompts to review the case law upon estoppel which is urged.
The Ohio River serves
the boundary
as
between the
States of Kentucky and Indiana
well
boundary
as
as the
parties
between the
to this suit, Kentucky and Ohio.
During the 19th century,
this Court dealt with the na-
ture of the Kentucky-Indiana
boundary in two cases.
Handly’s Lessee v. Anthony,
made language those cases.9 The most indeed, recent of three, quite explicitly: states “It does not become necessary, to case, determine whether-the middle of the Ohio River . . . does or does not constitute the boundary line be- tween the of Virginia states and Ohio. For all the purposes of this case, it may be assumed that Vir- ginia was the original, undisputed owner of the ter- ritory on both sides of the river, and still retains all that she part did not with her deed of cession in 1784.” Ohio now wishes question precisely that assumption. In prematurely judging the issues and pretermitting briefing and argument of Ohio’s attack on the validity of Virginia’s title, the Court does disservice both to the adjudication dispute of this and to procedural con- tours of original I actions. would allow amend its complaint so that the merits might be reached in due course.
92 Ohio, at (discussing only ownership of the land above the water line but bank); below the Ohio, (“The at 139-140 defendant’s conveys deed top the soil to bank, of the river reserves the ‘break and slope,’ point between that river”). and the St., S Ohio at 245-246 (noting Handly’s “In the case Anthony, Lessee v. supreme court of States, pro- United *13 assumption eeed[ed] original proprietor was the of both sides of the river (emphasis . .” added)). . notes First, Ohio has the river center of to the a claim sent to substantiate early cases Court. considered been not Virginia’s prior assumption turned instead predicated, claims are Kentucky’s which title, upon additionally points land involved.7 Ohio as to the valid