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202 U.S.

Argument for Defendant.

is vastly shorter by reason of the fact that the artificial and imaginary line cuts across the heads of bays and inlets. The natural coast line, as known to physical geography, exists primarily for the purposes of boundary. The artificial coast line, as known to international law, exists only for the purposes of jurisdiction. Rivier, Principes du Droit des Gens, vol. I, pp. 145, 146, 170.

Both in their popular and technical senses "coast" and "shore" are identical and convertible terms. 4 Am. & Eng. Ency. of Law, 2d ed. p. 818. See United States v. Pacheco, 2 Wall. 587; Farnham on Waters, vol. 2, p. 1463 and vol. 1, p. 227. The word "shore" is also used in admitting Alabama. An island is a body of land surrounded by water. 17 Am. & Eng. Ency. of Law, 2d ed. p. 530. A body of land continually covered by water is not an island. Weber v. Pere Marquette Boom Co., 62 Michigan, 626. It does not lose its character by being almost submerged at high tide. De Guyer v. Banning, 167 U. S. 723. As to erosion and submergence, see Widdicombe v. Rosemiller, 118 Fed. Rep. 295. It is necessary that a strip of navigable water should separate it from the mainland. Dumphry v. Williams, 2 Pugsley (N. B.), 350; King v. Young, 76 Maine, 76; American River Water Co. v. Amsden, 6 California, 443; Attorney General v. Woods, 108 Massachusetts, 436; Grand Rapids v. Powers, 89 Michigan, 94; Bamphrey v. State, 52 Minnesota, 181.

The business of a cartographer, or map-maker, is to describe land forms, not to settle titles of particular sovereignties to particular parts of the earth's surface. The value of every map depends upon two factors: first, the completeness of the data out of which it is constructed; second, the skill of the cartographer in working such data into an harmonious whole. Early maps, which are necessarily based upon incomplete data, are almost invariably misleading guides. For that reason, international jurists generally regard such maps as of little or no value in boundary controversies. The great English jurist, Sir Travers Twiss, in speaking of the uselessness of maps in the

Argument for Defendant.

202 U. S.

investigation of boundary questions, has even regretted that they are ever appealed to at all. See Greenhow's History of Oregon and California, p. 437, note; United States v. Texas, 162 U. S. 1.

There is nothing in the Swamp Land Act to give color to the idea suggested in the bill, that Congress, as well as the various departments of the United States Government, having authority in the premises, have themselves recognized the boundary line contended for by Louisiana by reason of the fact that the United States Government has confirmed to the State of Louisiana the lands composing Half Moon Island, etc. So far from there being the slightest foundation of truth for that suggestion the fact is that the act in question undertook to give to complainant as a donation certain lands which, by her application for them, she admitted belonged, not to her, but to the United States.

If defendant's contention is sound that the islands in question were conveyed to her by an express grant upon her admission to the Union in 1817, then the subsequent act of March 2, 1849, purporting to donate certain swamp and overflowed lands to complainant can have no possible operation for the simple reason that the United States had, at the date of said act, neither title nor interest. Grants made by a legislature are not warranties; and if the thing granted was not in the grantor at the time of the grant, no estate passes to her grantee. Rice v. Minn. & N. W. R. R. Co., 1 Black, 358; Polk v. Wendal, 9 Cranch, 87. If that be true, then the ex parte proceeding of the Secretary of the Interior in 1852 was simply null and void as an attempt to take away a part of the domain of a State without the consent of its legislature. Art. IV, § 3, Const. U. S.

The doctrine of acquiescence does not apply to wild and unsettled lands such as were those in dispute. The assertion of sovereignty by Louisiana practically dates from the act of its legislature of 1902 relating to the dredging of oysters. Mississippi has never acquiesced in the claims of Louisiana but on

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the contrary has exercised sovereignty over the disputed territory in many ways, e. g., its courts in 1821 convicted for robbery; an inquest was held upon a body found in the waters of Isle à Pitre in 1886; in 1893 an arrest was made for violations of oyster laws in these waters. The legislature in 1857 passed an oyster and game law covering the territory in question, which was embodied in the Revised Statutes of the State for 1871, 1880 and 1892.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

The demurrer was overruled because the court was of opinion that the bill presented a prima facie case of justiciable controversy between the State of Louisiana and the State of Mississippi as to the boundary line between them, and we are clear that the proofs establish the existence of such a controversy as to fully sustain our jurisdiction.

It is apparent that the enforcement of the oyster legislation of the two States led to a conflict between the authorities of both, which involved a dispute as to the true boundary line.

In 1886 the State of Louisiana passed an act vesting the power to control the oyster industry in the hands of the officials of the parishes of the State in their several localities, along general lines laid down in the law. Laws Louisiana, 1886, Act No. 106. This was followed by the acts of 1892 (No. 110), 1896 (No. 121), and 1900 (No. 159). By the act of 1896 nonresident oyster fishermen were prohibited from fishing oysters in Louisiana waters, and the dredging of oysters was also prohibited, in this particular differing from the laws of Mississippi, which permitted it. By a concurrent resolution of 1900 a Legislative Commission was created to investigate and report on the oyster industry of the State.

In January, 1898, the parochial authorities of the parish of St. Bernard equipped and sent out an official expedition to exclude from the oyster waters of the parish any non-resident VOL. CCII-3

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oyster fishermen who might be found fishing therein. Nonresident Mississippi oystermen were found fishing oysters there, and they were notified that they must stop fishing and move out of those waters. These Mississippians then complained to the Mississippi authorities and a conference ensued between representatives of the parish of St. Bernard and the county of Hancock. In January, 1901, at the instance of the Louisiana Legislative Commission appointed under the act of 1900, and of committees appointed from the police juries of the Louisiana parishes of St. Bernard and Plaquemines, a meeting of the state officials of Louisiana was held in New Orleans to consider the subject of the dispute with the State of Mississippi, and the invasion by non-residents of the Louisiana oyster waters. This meeting resulted in the appointment by the Governor of Louisiana of a commission of five members, and an official communication from the Governor of Louisiana addressed to the Governor of Mississippi requesting the latter to appoint a similar commission to see if it were possible to effect an amicable settlement of the dispute between the two States. This Mississippi commission was accordingly appointed, and the two commissions held a joint conference in New Orleans in March, 1901. Louisiana presented at the conference a map showing the Louisiana contention as to the boundary, which is the map attached to the bill and marked Exhibit E. The Mississippi commission reported that it was impossible to effect an amicable extrajudicial settlement of the dispute, and that the only hope of settlement was a friendly suit in the Supreme Court of the United States. This report was submitted by the Mississippi commission to the Governor of Mississippi and was transmitted to the legislature of that State. At this session the State of Mississippi passed a new law controlling her oyster waters and oyster industry. Laws, 1902, c. 58. This act created a state oyster commission, vested with entire control of the Mississippi oyster industry. It took the control of the industry out of the hands of the coast county authorities and centralized it in this state department, which was authorized to establish a

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system of patrol of the Mississippi oyster waters and to maintain patrol boats to sustain the oyster laws in her territory. In July, 1902, the State of Louisiana followed the example of the State of Mississippi and adopted an act, Acts 1902, No. 153, creating a state oyster commission of Louisiana as a state department vested with full control of the oyster industry of Louisiana, and authorized to establish patrol boats and maintain an armed patrol on the Louisiana oyster waters to protect her rights in the oyster industry therein. In view of the danger of an armed conflict, the Oyster Commissions of both States, in September, 1902, adopted a joint resolution establishing a neutral territory between the two States "pending the final decision by the Supreme Court of the United States in the boundary suit to be instituted," to remain a common fishing ground. This modus vivendi did not include all of the disputed territory, but the waters of Mississippi Sound between the deep water channel and the north shore line of the Louisiana marshes were embraced by it.

In the following October this bill was filed. Louisiana appeared through her Governor and her Attorney General, and the action of the Governor in instituting the suit was subsequently approved, ratified and confirmed by the legislature.

The facts that the act of Congress admitting the State of Louisiana gave that State all islands within three leagues or nine miles of her coast, and that the subsequent act of Congress admitting the State of Mississippi purported to give that State all islands within six leagues or eighteen miles of her shore, and that some islands within nine miles of the Louisiana coast were also within eighteen miles of the Mississippi shore, furnished the basis for a boundary controversy, although, in our judgment, the apparent inconsistency is reconcilable, as hereinafter explained. And that controversy involved to each State pecuniary values of magnitude, as is shown by the evidence on both sides. We think that there existed between the two States, in their sovereign capacity as States, a controversy affecting the boundary line separating them in the locality in

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