Argument for the State of Indiana.

The "full possession, jurisdiction and control" which the State of Virginia is alleged to have retained after the cession of 1783, is not shown by the evidence.

The cross-bill of Kentucky places her claim of exercise of jurisdiction over the "Green River Island" tract as distinct from the exercise of jurisdiction by Virginia, over the "Green River Island" tract upon four grounds.

The first ground is, "That the owners of soil thereon, hold their title thereto under grants made by her as the original proprietor thereof."

The State of Kentucky was formed June 1st, 1792. It issued its first patent for land on the "Green River Island" tract in 1818. Twenty-six years elapsed, therefore, before the executive officers of the State of Kentucky determined to issue patents for the land on the "Green River Island" tract. Yet it appears from the statement of Zadok Cramer, the author of "The Navigator," published in 1808, that at the time of publishing that book, there were "six or eight families settled" on the "Green River Island" tract.

All the circumstances surrounding the original issue of the Kentucky patents, are consistent with the theory that doubts existed for twenty-six years on the part of the governors of Kentucky as to their right to issue patents for land on the "Green River Island" tract, and that the doubt was finally solved by an acting governor, who was, perhaps, interested in having the question settled one way or the other. A precedent having been once established, the subsequent governors followed it, as was natural and perhaps proper, since the issuing of the first patent determined the position of Kentucky in the matter, and it was as proper to cover the whole tract with patents as to cover any part of it.

Considering the fact that, for twenty-six years, under a system of land laws which permitted the location of land wheresoever the claimant might see fit, no individual took out a patent from Kentucky upon the "Green River Island " tract though during that period there were from six to ten families settled upon it; considering, also, that the facts surrounding the issue of the first patent gave rise to the suspicion that the

Argument for the State of Indiana.

state officers issuing the patent may have had an interest in it; considering, also, the great looseness with which the patents were finally issued; considering, also, that it was for the pecuniary interest of the settlers on the island to take title from Kentucky rather than from the United States, and that they could not have obtained title from the United States without having the United States survey of 1806 corrected, it is submitted that the facts surrounding the issue of the Kentucky patents are such as to destroy the force of the issue of those patents as proof of the exercise of jurisdiction by Kentucky over the "Green River Island" tract.

The second claim of Kentucky of right to exercise jurisdiction over the "Green River Island " tract is, "that the property thereon, amounting to many thousands of dollars in value, has always been assessed for taxation by her legally authorized officials, and the taxes thereon paid into her state treasury." This statement is not supported by the evidence.

The third ground on which the State of Kentucky claims to have acquired the right of jurisdiction over the "Green River Island" tract is, "that the residents thereon, possessing the other necessary qualifications, have always voted at her elections as legal voters." It appears that the residents on the "Green River Island" tract voted, when they voted at all, at the town of Henderson, some twenty miles away by the river. Admitting this to be true, it is of little or no effect as showing an exercise of jurisdiction by the State of Kentucky over the disputed tracts.

The fourth ground on which the State of Kentucky claims to have acquired the right of jurisdiction over the "Green River Island" tract is, "that her courts have always exercised undisputed jurisdiction, both civil and criminal, over the said island."

The record in the case of Garrett v. McClain shows that the jurisdiction of the Kentucky court was disputed in that very case. One of the grounds on which the injunction against the execution of the judgment was asked was, that the Kentucky court which rendered the judgment had no jurisdiction over the "Green River Island" tract, because that tract was "beyond the territorial limits of the State of Kentucky."

Argument for the State of Indiana.

X. The State of Kentucky, in her cross-bill, claims that the State of Indiana has always acquiesced in the claims of Kentucky to the "Green River Island" tract. The State of Indiana did not acquiesce in the original issuing of the Virginia patent, since the State of Indiana did not exist at the time the Virginia patent was issued.

It is impossible for a State of this Union to acquire a right of jurisdiction as against another State, over a disputed territory, by any exercise of jurisdiction, however clear and however long continued. To permit a State to acquire jurisdiction by its own action as against another State, would be to apply the equitable doctrine of laches to dealings between sovereign States. Such a doctrine never has been and never could be admitted to exist by the States of this Union. It would be in violation of the common law maxim, — nullum tempus occurrit regi.

While a State may allow rights to be acquired against it by its own citizens if it so chooses, it is inconsistent with the idea of sovereignty that one State or nation should acquire rights of territory and jurisdiction by the inaction of another State. The question of state boundaries is a question to be determined by the construction of written instruments, and the examination of the facts in connection therewith, and the application of the principles of law and equity so far as they are consistent with state sovereignty. If it should be admitted that there could be any exercise of jurisdiction or acquisition of territory through the action of one State, and the inaction of another, the result of the doctrine would be to produce disputes regarding the territory, which could finally be settled only by force, since States would not permit the courts to determine claims to acquisition of territory.

Such a doctrine would also be subversive of Article I, section 10, of the Constitution of the United States which provides that, "No State shall, without the consent of Congress, enter into any agreement or compact with another State." If the doctrine of laches or limitation is to apply as between States, it could only be sustained upon the theory upon which the doctrine of laches or limitation is sustained as between

Argument for the State of Indiana.

individuals, that is, upon presumption of a prior grant. To hold, therefore, that a State might acquire territory and jurisdiction by its own action, would be practically to hold that one State might enter into compact or agreement with another State, without the consent of Congress, and that the right of jurisdiction which a State of this Union possesses, is a right which may be conveyed by the State without the consent of Congress.

XI. Have the States of Indiana and Kentucky so legislated, and have any acts been done under such legislation which can affect the location of the boundary line between the two States?

The statute of Indiana, of February 27, 1875, referred to in the cross-bill, does not stand by itself. In the year 1873, the State of Kentucky had legislated in regard to the boundary line between the States near the "Green River Island" tract. The statute of Kentucky relating to this matter was approved April 21st, 1873. [This legislation, and the acts of the executive of each State were then reviewed at length, and the results of the examination were claimed to be this:]

The effect of the legislation of Kentucky in 1873, and of Indiana in 1875, since the consent of Congress to it was not obtained, depends, therefore, entirely upon the question whether the meander line of the Ohio River in the United States survey of 1806 was or was not the state boundary line. If it was, it was competent for the two States to provide any evidence of it, as the actual and admitted boundary, which they saw fit.

That the meander line of the United States survey of 1806 was not and could not be the state boundary line is a question which would seem not to admit of argument. When this court held, in the case of Railroad Company v. Schurmeir, 7 Wall. 272, that the meander lines of the United States surveys were run merely for the purpose of determining the amount of land for which the purchaser from the United States government should pay, it placed a final negative upon any claim that the meander line could ever be a state boundary line. There is not enough in the fact that a meander

Counsel for the State of Kentucky.

line was run along a river forming the boundary of a State of this Union to raise such a meander line from its humble office of determining whether a person should pay a few dollars, more or less, to the dignity of a boundary line between two States.

The absurdity of the survey of 1875 is apparent when it is considered that if the meander line of the United States survey of 1806 should have been adopted as the boundary of Indiana along the Ohio River, a large and valuable part of the city of Evansville and of the other towns and cities of Indiana on the Ohio River would have become a part of the State of Kentucky. If it was proper for the state boundary line to be fixed at the meander line adjacent to the "Green River Island" tract, it was equally proper that it should be so fixed at all points along the Ohio River.

If these statutes of Indiana and Kentucky made or attempted to make the meander line of the United States survey of 1806 the boundary line, they impaired the obligation of the contract made by the United States with the patentees from the United States adjacent to the "Green River Island" tract, on the north, since these statutes made no provision for compensation to these patentees, for the land taken from them between the bayou and the meander line of the survey of 1806.

It is submitted, therefore, whether the act of Indiana of 1875 is to be treated as part of a proposed "agreement or compact" between the State of Indiana and the State of Kentucky, or whether it stands by itself as furnishing a proposed rule of evidence in the Indiana courts, that the acts required to be performed as a prerequisite to the taking effect of the statute were never performed and never can be performed; that the statute itself is unconstitutional and void and that therefore neither this statute nor the acts done thereunder have any effect upon the location of the state boundary line.

Mr. P. W. Hardin, Attorney General of the State, and Mr. J. Proctor Knott for the State of Kentucky.