MISSOURI V. KENTUCKY, 78 U. S. 395 (1870)

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U.S. Supreme Court

Missouri v. Kentucky, 78 U.S. 11 Wall. 395 395 (1870)

Missouri v. Kentucky

78 U.S. (11 Wall.) 395


1. On a question of the exact ancient course of a river in a wild region of our country, maps made by early explorers being but hearsay evidence, so far as they relate to facts within the memory of witnesses -- ex. gr. since A.D. 1800 -- are not to control the regularly given testimony of such persons.

2. It seems that the old maps (those ex. gr. prior to A.D. 1800), indicative of the physics and hydraulics of the Mississippi are not greatly to be relied on.

3. Wolf Island, in the Mississippi River, about twenty miles below the mouth of the Ohio, is part of the State of Kentucky, and not part of the State of Missouri. This fact settled by the testimony of witnesses as to which state exercised jurisdiction, as to where the middle of the main channel of the Mississippi River had been when the boundary between the states was fixed, by the character of the sod and trees of the island as compared with the soil and trees of Missouri and Kentucky, respectively, and by the natural changes produced in the course of the current by the physics and hydraulics of the river since the time mentioned as generally and specifically shown.

The State of Missouri brought here, in February, 1859, her original bill against the State of Kentucky, the purpose of the bill being to ascertain and establish by a decree of this Court the boundary between the two states at a point on the Mississippi River known as Wolf Island, which is about twenty miles below the mouth of the Ohio. The State of Missouri insisted that the island was a part of her territory, while the State of Kentucky asserted the contrary. The bill alleged that both states were bounded at that point by the main channel of the river, and that the island, at the

Page 78 U. S. 396

time the boundaries were fixed, was and is on the Missouri side of said channel.

The answer stated that Kentucky, formed out of territory originally embraced within the State of Virginia, was admitted into the Union on the 1st day of June, 1792, and that she had always claimed her boundary on the Mississippi to the middle of the river, and Wolf Island to be within her jurisdiction and limits as derived from Virginia, a part of Hickman County, one of the counties of Kentucky, opposite to which it lay. And it denied that the island belonged to Missouri or that the main channel was on the eastern side of it when the boundaries of the states were fixed.

An immense amount of testimony, derived from maps as ancient as the earliest well known navigation of the river; from the journals of ancient and later travelers; from official and quasi-official surveys &c., was introduced by the counsel of both sides, but more especially by those of Missouri, to show where the main channel had been and was -- whether on the east or on the west of the island -- in 1763, where the boundary between France and England, then owners respectively of the regions now known as Missouri and Kentucky, and more particularly where it was in 1783, when by our treaty of peace with Great Britain we succeeded to the rights of that government; and also where it was in 1820, when Missouri, part of the territory acquired from France, was admitted into the Union, the middle of the main channel of the river confessedly having been fixed in all these cases as the boundary. The depositions of many witnesses on both sides, particularly on the defendant's, were also read, testifying as to where within the memory of man the channel in dispute had been.

The witnesses of the complainant -- to give the case of Missouri more particularly -- stated that from the present time back to 1830, the main channel of the river was on the east side of the island, and that from 1830 as far back as 1794, both channels were navigable. They admitted that from 1832 to the present time, the eastern channel had been chiefly used for navigation.

Page 78 U. S. 397

The early maps and charts of the river, introduced by the State of Missouri, laid down the island as nearly in the middle of the river, but the larger portion of it west of the middle line. Amongst these were the map of Lieutenant Ross, of the British army, made in 1765 in an expedition from Fort Chartres to New Orleans; the map of Captain Philip Pittman, published in London in 1770; the map of General Collot in 1796; Hutchins's map in 1778; and Luke Munsell's map of Kentucky, made in 1818.

Extracts from the books of early travelers stated their passage down the river on the east side; among these books were the travels of Ashe in 1806, and of Sir Francis Baily in 1796.

The Pittsburg Navigator, in several editions from 1806 to 1818, was relied on, stating the channel to be on both sides, but best on the east side.

Reliance was had, too, on certain official or quasi-official maps of the federal government. An official map, made in 1821 by the United States Engineers' Department, under an Act of Congress of April 14, 1820, and a United States Survey and Report, made in 1838 by the Land Department, with official computation, showed the area of the cross-section of the east channel to be 31,020.33 square feet, and of the west channel to be 18,625.71, and the mean velocity of the east channel to be 3.72 feet per second, and of the west channel to be 2.79 feet, and giving the gallons discharged by the east channel per second as 115,395, and of the west channel 51,965, being less than one-half on the west side; and also the greatest depth of water on the east side as being 23 feet against 22 1/2. General Barnard's apparently official map of 1821 was relied on as laying down the channel on the east side; as also the United States Coast Survey map, of 1864, presenting it in the same way. The island, it seemed, had been surveyed by the United States, in March, 1821, as part of Missouri, and in April, 1823, steps were taken to locate on it a New Madrid certificate for 600 arpents; and in August, 1834, a plot of the island was sent to the Register of the Land Office at Jackson, Missouri.

The State of Missouri relied also a good deal on the fact,

Page 78 U. S. 398

which seemed to have been sufficiently proven, that in 1820 the Sheriff of New Madrid County (the county in Missouri opposite to the island), had executed process of the Missouri courts on the island against the only settler on it, one Hunter, and who entered upon it prior to 1803; and that one of the Missouri circuit court judges had once -- though when did not appear -- resided on the island.

Evidence introduced by Missouri tended to show that the first clear act of jurisdiction exercised by Kentucky was not earlier than 1826, and that it was only in 1837, when her legislature passed an act for the sale of lands on the island and her people purchased under her title so offered, that Kentucky asserted open and exclusive ownership of the island.

The State of Kentucky, on its side, gave proof which was much of it in direct opposition to that presented by Missouri. It proved that land on the island was entered in the Virginia land office during the Revolutionary war; the state now known as Kentucky being then part of Virginia, and that in 1828, one of the courts of Kentucky exercised jurisdiction over the island in a matter of apprenticeship. Although it presented fewer evidences from ancient maps and books of travels than did the State of Missouri, it produced more living persons whose recollections came in support of its case. More than a score of witnesses, many of them ancient, including boatmen, navigators, and several persons who had lived from childhood close by the island, some opposite to it, and specially interested by their business to note on which side vessels sailed, all testified that while now the main channel of the river was to be regarded as on the east side of the island, it was undoubtedly and within their memory and knowledge not so formerly, but was on the west side; many of these witnesses going into details, and showing a positive and experimental knowledge on the subject upon which they spoke -- details of a sort that could not easily be invented and which, if not invented but true, tended to give the case to Kentucky.

The geology of the island and its sylva were relied on by

Page 78 U. S. 399

Kentucky and shown to be more coincident with its own soil and woods than with those of Missouri, the argument hence being that what was now an island was originally part of the mainland of Kentucky.

The counsel for Kentucky directed evidence yet more specially to the physical changes which the shores of the two states had undergone since the years 1763, 1783, and 1820. It was not denied by them that now and since 1820, the river on the east side of the island had become broad, deep, and navigable; the testimony introduced by them being directed to show that this was the result of physical and hydraulic causes, working changes since the boundary had been fixed, some of the changes being the results of actual efforts of science to improve the channel, but others, immeasurably more operative, natural ones only; a continuation of those changes caused in the basin of the Mississippi, by the mighty rises to which the river is subject; estimated at such magnitude that men of science [Footnote 1] have considered that the river poured past even at this high point of it, at the rise in March, 1858, 1,130,000 cubic feet per second; at the rise in April of that year 1,260,000, and at the rise in the following June (continuing for several days), the immense volume of 1,475,000 of cubic feet per second, inundating cities, changing courses of the stream, and in former ages leaving far to the west of the present river course those crescent-shaped lakes, noted by Sir Charles Lyell and other geologists, plainly bends in the ancient channel. [Footnote 2]

These were causes, sufficient as the counsel of the State of Kentucky argued, to account for the change in the course of the channel, and the counsel produced a map known as H. G. Black's (see it infra, p. 78 U. S. 409), showing how the eastern channel had been produced by recent mighty rushings of the river against the "iron banks," above the island, and which, while they were able to resist the current, threw it with a rebound to the Missouri side, but which, now yielding to the tremendous stream and being gradually washed away, let the whole force of the river come in a more direct and easy course.

The statement, in more detail, of this great body of evidence, tending only to the establishment of facts, would serve no purpose of judicial science, and may be the more properly omitted by the reporter since in most of the details not already given, it is minutely presented by the learned Justice who gives, after stating it, the opinion of the Court as a result.

Page 78 U. S. 401

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