Argument for the State of Indiana.

tion over the river for the proper preservation of peace and order thereon.

Unless the terms of written instruments make it absolutely clear that it was the intention that the boundary line between the States on the opposite sides of the river should be elsewhere than at the middle line, that line should be the boundary.

As above shown, the words of the act of cession of the Northwest Territory do not necessarily fix the boundary line elsewhere than at the middle line of the Ohio River.

It is therefore submitted that the middle line of the Ohio River is the boundary line between the States of Indiana and Kentucky.

II. If it be granted that the southern boundary of the State of Indiana is the low-water mark of the Ohio River upon the northwest side, then is that low-water mark of the Ohio River on the northwest side, at the present time, on the north or the south margin of the "Green River Island" tract and the "Buck Island" tract? Does the present location of this low-water mark fix the state boundary line?

The testimony introduced by the State of Indiana proves conclusively that the low-water mark on the northwest side of the Ohio River is, at the present time, south of the "Green River Island Tow-head," and that the whole tract is an accretion to the "Green River Island" tract within the last twenty or thirty years.

III. If it be granted that the low-water mark on the northwest side of the Ohio River is, at the present time, along the southern margin of the "Green River Island" tract, and the "Buck Island" tract; and that the location of this low-water mark at the present time does not fix the state boundary, is it necessary to examine into the facts relating to the location of the lowwater mark prior to the year 1816, when the State of Indiana was formed with the Ohio River as its boundary on the south, or does the formation of the State of Indiana, in 1816, with that boundary, so fix the boundary, as against the State of Kentucky, as to make evidence as to the location of the lowwater mark prior to that date, immaterial?

Argument for the State of Indiana.

It is submitted on the proof that, even if it is necessary for the State of Indiana in this case to make proof of the location of the low-water mark on the northwest side of the Ohio River prior to the present time, it is not necessary that it should in its proof go further back than the year 1816; since in that year the State of Kentucky recognized the right of the United States and of the State of Indiana to exercise jurisdiction at least to the low-water mark of the Ohio River on the northwest side.

IV. If the location of the state boundary line was definitely fixed in the year 1816 at the low-water mark of the Ohio River, was the low-water mark on the northwest side of the Ohio River, in 1816, on the north or south margin of the "Green River Island" tract and the "Buck Island" tract, and has it ever since remained as located in 1816 ?

It is shown by the testimony of living witnesses, practically without contradiction, that, since 1820, the depression north of the "Green River Island" tract has remained substantially as it is at present, the height of the bottom of the depression above low-water mark changing slightly from year to year by the washing and filling caused by the high water at seasons of overflow, but the average height above low-water mark remaining substantially the same.

It is submitted, therefore, that, if the low-water mark on the northwest side of the Ohio River is the state boundary, the State of Indiana has shown, by living witnesses, that this line of low-water mark, since 1820, has been on the south. margin of both the "Green River Island" tract and the "Buck Island" tract. The testimony referred to under the sixth point of this brief shows that the same state of facts existed between 1820 and 1816.

V. If it be necessary for the purpose of determining the state boundary to examine into the location of the low-water mark on the northwest side of the Ohio River as it existed prior to 1816, did the United States survey of 1806, a meander line of which ran along the north side of the "Green River Island" tract and the "Buck Island" tract, affect the location of the state boundary line?

Argument for the State of Indiana.

Considering the uncertain state of the law, at the time of the United States survey of 1806, with regard to the meaning of the words "to the northwest of the river Ohio;" considering also the fact that there was an outstanding Virginia patent on a part of the "Green River Island " tract (the validity of which will be considered later); considering also that the Henderson County Court of Kentucky had taken upon itself to allow surveys to be made on the "Green River Island" tract by Kentucky surveyors, thus incidentally determining that the "Green River Island" tract was not " to the northwest of the river Ohio;" considering also that, for the United States surveyor to have surveyed the "Green River Island" tract at that time would have required of him the determination of a great question which is yet undetermined; considering also that the surveyor of the United States, in going on the "Green River Island" tract to make surveys over the Kentucky surveys would have doubtless exposed himself to personal violence and ejection from the land, it is not to be wondered that he accepted the interpretation of the words, "to the northwest of the river Ohio," placed upon them by the Kentucky courts, and made return that, in his individual opinion, the bank of the bayou was the bank of the Ohio, and that his superiors did not question his survey.

It is submitted, therefore, that the above considerations greatly weaken, if they do not totally destroy any evidential force that the United States survey of 1806 may be claimed to have, as bearing upon the question of the location of the lowwater mark, in 1806, with relation to the "Green River Island" tract.

As evidence in itself of the boundary between the States, it is absolutely worthless, since meander lines are not intended to show the low-water mark, but only to approximately determine the location of the banks of the stream meandered. Railroad Co. v. Schurmeir, 7 Wall. 272.

VI. If the state boundary line was not definitely fixed at the low-water mark on the northwest side of the Ohio River, in 1816, but was so fixed by the deed of cession from Virginia to the United States in 1784, and by the act of cession of Vir

Argument for the State of Indiana..

ginia in 1783, was the low-water mark on the northwest side of the Ohio River, in 1783 and 1784, on the north or the south margin of the "Green River Island" tract and the "Buck Island" tract, and has it ever since remained as it existed in 1783 and 1784?

Counsel discussed the evidence on this point at length, and concluded: Everything, therefore, science, tradition and evidence of deceased and living persons, points to the conclusion that the low-water mark on the northwest side of the Ohio River, is, and since 1783, has been along the south margin of the "Green River Island" and the "Buck Island" tracts. And hence the conclusion is irresistible that if the lowwater mark on the northwest side of the Ohio River be the state boundary, therefore the state boundary runs to the south of all the disputed tracts, leaving all these tracts within the jurisdiction of the State of Indiana.

VII. If it be granted that the southern boundary of the. State of Indiana is the low-water mark on the northwest side of the Ohio River, and that the low-water mark on the northwest side of the Ohio River at the present time is on the southern margin of the "Green River Island" tract and the "Buck Island" tract; but since the year 1816 or the year 1783, the low-water mark has been along the north margin of those tracts; has the process by which the location of the low-water mark has changed been gradual or sudden, and has such change been a change to a new condition or a return to an old condition? If it should be found that the location of the low-water mark has changed, has the state boundary line changed its location in consequence of such a change of location of the lowwater mark?

While the principle of accretion is perhaps not strictly applicable to a case of this kind, since there is no claim that the “Green River Island " tract is a piece of land actually formed by process of deposit within the existing banks of the Ohio River, yet, taking into consideration that the tract is a formation by the deposit of the Ohio River within its geological banks: that the location of the main river channel of the Ohio River has been within the recent historical and geologi

Argument for the State of Indiana.

cal times south of the "Green River Island" tract where it now is; that if the "Green River Island" tract was ever a true island it was such from a temporary detachment from the territory of Indiana, it is right and proper that this court in deciding a question of this kind, which is more properly a question of politics and diplomacy than a question of strict law, should base its decision upon the principles of justice, rather than upon strict and technical rules of law, and should dissolve any doubts which may arise as to the existence or nonexistence of claimed facts, which by reason of the unsettled condition of the country cannot be proved with absolute accuracy, by calling to its assistance the principle of accretion, and if it should be of opinion that the low-water mark on the northwest side of the Ohio River is the boundary between the States of Indiana and Kentucky, should adjudge that the boundary of the State of Indiana, to which the disputed tracts are now finally and completely attached, is along the southern margin.

VIII. If this court should find that the state boundary line is along the north margin of the "Green River Island" tract, does it also extend along the north or the south margin of the "Buck Island" tract by reason of the fact that the "Buck Island" tract, is an accretion to or a part of the "Green River Island" tract, or an accretion to or a part of the undisputed soil of Indiana?

It will be noticed that, in the above, two facts are assumed: (1) That the low-water mark on the northwest side of the Ohio River is the state boundary line. (2) That the lowwater mark of the Ohio River is on the north margin of the "Green River Island " tract.

Both these facts the State of Indiana expressly denies. If, however, the facts thus assumed to exist were true, the testimony shows that the "Buck Island" tract is an accretion to the undisputed soil of Indiana, and that hence the state boundary line is upon its south margin.

IX. The State of Kentucky has not exercised sovereignty and jurisdiction over the "Green River Island" tract or the "Buck Island" tract in such a manner as to affect the location of the state boundary line.

VOL. CXXXVI-32