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202 U.S.

Argument for Complainant.

As to the act of May 14, 1812, the State said that it could not and did not change the boundaries of Louisiana, and, that, in fact, the southern portion of the Mississippi Territory as claimed was not then in possession of the United States, and did not extend south of the thirty-first degree of north latitude; that February 12, 1812, an act was passed "authorizing the President of the United States to take possession of a tract of country lying south of the Mississippi Territory and west of the river Perdido," but that this was not published until 1818; nor were the resolution of January 15 and act of March 3, 1811, on the relations of the United States to Spain, published until after April 20, 1818. 3 Stat. 471, 472.

The cause being at issue, much evidence, documentary and otherwise, was taken, and the case was argued October 10, 11 and 12.

Mr. John Dymond, Jr., Mr. Francis C. Zacharie and Mr. Walter Guion, Attorney General of the State of Louisiana, with whom Mr. Alexander Porter Morse and Mr. Albert Estopinal, Jr. were on the brief, for complainant:

The authority for bringing the suit is found in the act of the legislature of Louisiana, No. 65 of 1884 and in No. 26 of 1904, besides the general authority vested in the Governor and state officers to defend and protect the interests and property of the State. There exists a controversy between the two States of great magnitude and involving great financial interests.

The ownership of all the land that had not been previously sold by the State and the ownership of all of the water area in the disputed territory, being the bottoms of navigable waters of the State, was vested in and claimed by Louisiana in her sovereign capacity and no individuals had any private rights therein. This water area had a positive value of great magnitude. The State, under her oyster law was vested with the ownership of these oyster water bottoms, and authorized to

Argument for Complainant.

202 U.S.

rent them for the purposes of oyster cultivation for which she received a direct rental through her oyster commission of one dollar per acre per annum and a further revenue of two cents per barrel from each barrel of oysters gathered, either from these leased bedding grounds, or from the natural oyster reefs, which were also her property in absolute ownership. The State can rent them for $200,000 per annum and they are therefore worth in the neighborhood of $5,000,000.

The control and possession of a considerable part of these waters had become the subject of violent controversy and had reached the point of an armed conflict and could only be settled by resorting to this court. The jurisdiction is clear under the previous rulings. Rhode Island v. Massachusetts, 12 Pet. 719; The Wheeling Bridge Case, 13 How. 589; South Carolina v. Georgia, 93 U. S. 381; Louisiana v. Texas, 176 U. S. 1; New Jersey v. New York, 5 Pet. 284; Missouri v. Illinois, 180 U. S. 208; Kansas v. Colorado, 185 U. S. 125.

The State of Louisiana by the words of the law owns the peninsula of St. Bernard in its entirety and the islands in dispute, together composing the disputed area. Act of April 6, 1812, and act of April 14, 1812. The act grants all islands within three leagues of the coast and Louisiana therefore owns the islands and waters lying north of the St. Bernard peninsula and within nine miles from its coast. Mississippi's claim to islands and territory eighteen miles from her shore is based on a later act approved December 10, 1817. Congress could not take away territory previously ceded to Louisiana and grant it to Mississippi.

Further, it is a general rule, that where there are two conflicting titles, the elder shall be preferred. Broome's Legal Maxims, 7th Am. ed. p. 355, with authorities in note 5. And this principle has been frequently applied by this court in cases of boundaries between States where the grants to the colonies prior to the establishment of our Government have seemed to conflict. No court acts differently in deciding on boundary between States, than on lines between separate tracts of land,

202 U.S.

Argument for Complainant.

and the rules and principles of equity equally apply between States, as between individuals. Rhode Island v. Massachusetts, 12 Pet. 658.

Louisiana's title to the disputed area is also established by the fact that the said area is south of and on the Louisiana side of the deep water channel boundary line and as this deep water channel sailing line is the correct water boundary between the States at this point all land and water south of it is the property of the State of Louisiana.

This deep water sailing channel line claimed by Louisiana as the proper boundary between the two States exists to-day and is shown on the United States Coast and Geodetic Survey of that section.

The deep water channel is a boundary created by nature and the soils separated by it and forming the limits of the two States are of natural geological difference. Nature made the deep water channel her boundary in this area and the subsequent enactments of man were but a confirmation of this basic principle. Indiana v. Kentucky, 136 U. S. 479. On the Mississippi side the islands and shores are of sea sand formation while those on the Louisiana side are alluvial.

The deep water sailing channel line is the boundary that was recognized by England, France and Spain in their ancient treaties affecting their separate interests in this country.

The adoption by the Congress of the United States, in the creation of the State of Louisiana, of the line extending down the Mississippi river to the river Iberville and thence through the middle of Lakes Maurepas and Pontchartrain to the sea, as one of the boundaries of that State was not a new line established for the first time but was in fact an affirmation of an ancient line which in its extension to the open sea must follow the deep water channel. The treaty of peace between England, France and Spain adopted February 10, 1716, article VII, treats of the subject of the boundary line separating the dominions of England and France in the New World, and follows the middle of the Iberville. See also treaty of February 10, 1763,

Argument for Complainant.

202 U. S.

between the same nations using practically the same language; treaty of September 3, 1783, between England and Spain; treaty of St. Ildefonso, October 1, 1800, between France and Spain, and finally the cession of Louisiana to the United States by France, April 30, 1803.

The deep water channel was in fact recognized by the Congress of the United States in its legislation and in the treaties referring to this section of the country, as the proper boundary, and according to which it divided it up. Act of March 28, 1804; act of February 20, 1811, using the same language employed in the treaties, "the middle of the river" Iberville.

The first extension of the territory of Mississippi south of 31° of north latitude was by act of May 14, 1812, over one month after the creation of the State of Louisiana and at that time the territory affected was not in the possession of the United States. See act of February 13, 1813. But the State of Mississippi was not created until 1817 when for the first time is mentioned the islands within six leagues of the shore.

The deep water sailing channel is the proper boundary line between the two States recognized by all rules of international law. "Coast" is the seaboard of a country and includes bordering islands. 6 Am. & Eng. Ency. of Law, 171; The Anna, C. Rob. 373.

Mr. Justice Story in Thomas v. Hatch, 3 Sumn. 178, defined "shore" to be the space between the margin of the water at a low stage, and the banks to be what it contains in its greatest flow; Lord Hale defined it as synonymous with flat; Mr. Justice Parker does the same in 6 Massachusetts, 436, 439, and Chief Justice Marshall described the shore of a river as bordering on the water's edge. Alabama v. Georgia, 23 How. 513.

"Thalweg" a term now universally used by international lawwriters to define water boundaries between States and Nations, is a German word composed of two separate words, "thal," a valley, and "weg," way, meaning the middle or the deepest or most navigable channel. An English equivalent may be "fairway" or "midway" or "main channel."

202 U. S.

Argument for Complainant.

Where a navigable river forms the boundary of coterminous States, the middle of the channel—the filum aquæ or thalweg— is generally taken as the line of their separation. 1 Halleck's Int. Law, Baker's ed. p. 145, citing Gundling, Jus Nat., p. 248; Wolfius, Jus Gentium, §§ 106-109; Stypmannus, Jus Marit., etc., cap. V, n. 476-552; Merlin, Repertoire, voc. "alluvium"; Rayneval, Droit de la Nature, tome I, p. 307; De Cussy, Droit Maritime, liv. I, tit. II, §57; Rayneval, Inst. du Droit Nat., liv. II, ch. XI; Pothier, Œuvres de, tome X, pp. 87,88; Voet, ad Pandects, tome I, pp. 606, 607; Heineccius, Recitaciones, lib. II, tit. I, §§ 356-369; Las Siete Partidas, pt. III, tit. XXVIII, L. 31; Gomez, Elementos, lib. II, tit. IV, §3; Febrero Mexicana, tome I, p. 161; Sala Mexicana, tome II, p. 62; Justinian, Inst., lib. II, tit. I, Nos. 20-24; De Camp's Manuel des Prop. Riv., passim; Chardon, Droit a' Alluvion, passim; Grotius, De Jur. Bel. ac. Pac., lib. VII, ch. III, § 17; Ortolan Domaine International, Nos. 85-93; Heffter, Droit International, No. 69, note; Gunther, Europ. Volkerrecht, tit. II, p. 57; Pestel, Commentarii de Repub. Batav. No. 268; Bowyer, Universal Public Law, ch. XXVIII; Riquelme, Derecho Pub. Int., lib. I, tit. I, ch. IV; Bello, Derecho Internacional, pt. I, cap. III; Pando, Derecho Internacional, p. 99; Almeda, Derecho Publico, tome I, p. 199; Cushing, Opinions U. S. Att'ys Gen'l, vol. VIII, p. 175; Crittenden, Opinions U. S. Att'ys Gen'l, vol. V, pp. 264, 412; Puffendorf, De Jur. Nat. et Gent., lib. IV, ch. V, §8; Wolfius, Jus Gentium, §§ 108, 109; Proudhon et Dumay, Domaine Public, tome IV, ch. LVI, sec. 7. See also Baker's Int. Law, p. 68; Bowen's Int. Law, p. 10; Creasy, Int. Law, p. 221, citing Halleck, p. 138, Twiss, p. 201; Grotius, Lib. II, ch. III, sec. 18; Klubn, sec. 133; Twiss, Law of Nations, citing Grotius, lib. II, ch. III, §8; Puffendorf, lib. IV, ch. V, §8; Hall, Int. Law, citing Grotius, lib. II, ch. III, § 18, Wolfius, Jus Gentium, §§ 106, 107, Vattel, liv. LIV, ch. XXII, § 266, De Martens, Precis, No. 39, the Twee Gebroeders, 3, Rob. 339, 340; Bluntschli, $$297, 298, 301; Twiss, I, §§ 143, 144; Droit des Gens, Rivier, sec. 14; Droit des Gens,

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