Argument for the State of Indiana. no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domains, and the newly created State extends to the river only. The river, however, is its boundary." "If instead of an annual and somewhat irregular rising and falling of the river, it was a daily and almost regular ebbing and flowing of the tide, it would not be doubted that a country bounded by the river would extend to low-water mark. This rule has been established by the common consent of mankind. It is founded on common convenience. Even when a State retains its dominion over a river which constitutes the boundary between itself and another State, it would be extremely inconvenient to extend its dominion over the land on the other side which was left bare by the receding of the water. And this inconvenience is not less where the rising and falling is annual than where it is diurnal. Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark. "When the State of Virginia made the Ohio the boundary of States, she must have intended the great river Ohio, and .not a narrow bayou into which its waters occasionally run. All the inconvenience which would result from attaching a narrow strip of country lying on the northwest side of that noble river to the States on its southeastern side, would result from attaching to Kentucky, the State on its southeastern border, a body of land lying northwest of the real river, and divided from the main land only by a narrow channel, through the whole of which the waters of the river do not pass, until they rise ten feet above low-water mark. "The case is certainly not without its difficulties; but in the great questions, which concern the boundaries of States, where great natural boundaries are established in general terms, with a view to public convenience and the avoidance of controversy, we think the great object, when it can be distinctly perceived, ought not to be defeated by those technical Argument for the State of Indiana. perplexities which may sometimes influence contracts between individuals. The State of Virginia intended to make the great river Ohio, throughout its extent, the boundary between the territory ceded to the United States and herself. When that part of Virginia, which is now Kentucky, became a separate State, the river was the boundary between the new States, erected by Congress in the ceded territory, and Kentucky. Those principles and considerations which produced the boundary ought to preserve it. They seem to us to require that Kentucky should not pass the main river and possess herself of lands lying on the opposite side, although they should, for a considerable portion of the year, be surrounded by the waters of the river flowing into a narrow channel." From what has been said above, it is evident that the conclusion of this court, in the case of Handly's Lessee v. Anthony, above referred to, relating to the state boundary line, is a dictum, and that it is, therefore, open to this court to decide whether the boundary line between these States extends along the middle line of the Ohio River or along the line of highwater mark, medium water mark or low-water mark on the northwestern side or the southeastern side. There have been few cases in the state courts in which the exact location of the boundary of the States northwest and southeast of the Ohio River has been a material question. The question has been considered in the state courts, and the following may be said to be the result of the decisions. The Kentucky courts have always claimed, under the authority of Handly's Lessee v. Anthony, to the low-water mark on the north west side of the Ohio River. Fleming v. Kenney, 4 J. J. Marsh. 155; Church v. Chambers, 3 Dana, 274; McFall v. Commonwealth, 2 Met. (Ky.) 394; McFarland v. Knight, 6 B. Mon. 500. In Indiana the authority of Handly's Lessee v. Anthony is recognized as applicable to the boundaries of riparian owners, but the right of wharfing out into the Ohio River is insisted upon. Stinson v. Butler, 4 Blackford, 285; Cowden v. Kerr, 6 Blackford, 280; Doe v. Hildreth, 2 Indiana, 274; Commissioners of St. Joseph County v. Pidge, 5 Indiana, 13; Argument for the State of Indiana. Bainbridge v. Sherlock, 29 Indiana, 364; S. C. 95 Am. Dec. 644; Gentile v. State, 29 Indiana, 409; Carlisle v. State, 32 Indiana, 55; Martin v. Evansville, 32 Indiana, 85; Sherlock v. Bainbridge, 41 Indiana, 35; Sherlock v. Alling, 44 Indiana, 184. The same may be said of the courts of Illinois, though there is a strong tendency to claim to the middle of all rivers. Middleton v. Pritchard, 3 Scammon, 510; S. C. 38 Am. Dec. 112; Ensminger v. People, 47 Illinois, 384; S. C. 95 Am. Dec. 495; Buttenuth v. St. Louis Bridge Co., 123 Illinois, 535; Fuller v. Dauphin, 124 Illinois, 542. In Ohio and Virginia the question has been hotly discussed, and the authority of Handly's Lessee v. Anthony denied. Virginia was dissatisfied with the case of Handly's Lessee v. Anthony because she claimed to high-water mark on the northwest side of the river; Ohio, because she claimed to the middle of the river. See Commonwealth v. Garner, 3 Grattan, 655; Benner's Lessee v. Platter, 6 Ohio, 505; Covington & Cincinnati Bridge Co. v. Mayer, 31 Ohio St. 317; St. Joseph &c. Railroad v. Devereaux, 41 Fed. Rep. 14. The conclusion of Chief Justice Marshall is based upon the theory that the act and deed of cession of Virginia are to be treated as a grant of the undisputed territory of Virginia, and that the words "to the northwest of the river Ohio," are to be construed as though they were words of strict boundary rather than of governmental description. He admits that his construction is not without difficulty, and the words are plainly ambiguous. An examination of the circumstances under which the cession was made establishes that: 1. The words "to the northwest of the river Ohio" in the act and deed of cession of Virginia are not words of boundary, since the territory had not at that time any determinate bounds on the north. 2. These words were used in the previous statutes of Virginia, and in the common and official speech and writing of the time to describe a large tract of territory claimed by England, France, Spain, the United States and Virginia. 3. The act of cession of 1783 is remodelled from the act of 1781, in which the territory of Virginia is divided into two Argument for the State of Indiana. parts by such description that, if the words of description are construed technically, the Ohio River itself is not described. 4. The act of 1783 is not strictly an act of cession, but a proposition for compromise between Virginia and the United States of a dispute in which the United States claimed that Virginia had no title to the territory southeast or northwest of the Ohio River. For these reasons it is evident that the words "within the limits of the Virginia Charter to the northwest of the river Ohio" in the act of Virginia of 1783 are words of governmental description of an indeterminate tract, contained in an agreement of compromise, and not words of definite boundary contained in an instrument of grant. It is therefore improper to treat the act and deed of cession of Virginia as though they were a carefully drawn deed of grant by metes and bounds, and to give to the words "to the northwest of the river Ohio" the same technical significance which they might have if they constituted a part of a carefully drawn description by metes and bounds of a territory admitted to be the undisputed property of the grantor. By the insertion of the provision respecting the free navigation of the Ohio River, Virginia accomplished three important things. 1. It bound the State of Kentucky to apply to the Ohio River the principles relating to the navigable waters wholly within the Northwest Territory, regarding which it was by the ordinance provided that: "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty therefor." 2. It compelled Kentucky to agree with the United States that it would never attempt to control the navigation of the Ohio River. If Kentucky had gone over to Spain, the first act, of course, would have been to close the Ohio and Mississippi rivers to navigation. By keeping Kentucky in the Union Argument for the State of Indiana. and binding her to exercise only that concurrent jurisdiction which States bounded by navigable rivers would be entitled to exercise by the rules of international law, the possibility of either the Ohio or the Mississippi rivers being closed to navigation would be done away with, since Spain, without Kentucky and the southwest territory, east of the Mississippi, would not have been strong enough to have violated the obligations of the treaty of 1783, which provided for the free navigation of the Mississippi. 3. It bound itself and Kentucky to recognize as having concurrent jurisdiction with itself over the Ohio River "only the States which may possess the opposite shores of said river," that is, the United States and the States to be formed in the Northwest Territory, bounding on the Ohio River. Thus, all complications with the Ohio Company, or any other land company, would be avoided, since the United States, by consenting to the act, would bind themselves to protect Virginia and Kentucky from any such claims of jurisdiction over the Ohio River by any land company. In this act Virginia treats itself and Kentucky as bounding on the Ohio River. The words are: "That the use and navigation of the river Ohio, so far as the territory of the proposed State or the territory which shall remain within the limits of this Commonwealth lies thereon," etc. Further, this act is an admission by Virginia that the State or States possessing the opposite shores of the river, which at that time was the United States, had a right to exercise concurrent jurisdiction over the Ohio River with itself and Kentucky, since it does not purport to grant to the United States any new rights. Probably nothing was further from the intention of the Virginia legislature in adopting the act of cession of 1783 than to make claim to exclusive territorial rights over the Ohio River, as against the United States. The advantages of the Union were at that time fully recognized, and the immense value of the water-ways to the civilization of that period made it the one idea of the State to keep the great water-ways open to free navigation, the States on both sides possessing jurisdic |