U.S. Supreme Court
Louisiana v. Mississippi, 202 U.S. 1
(1906)
Louisiana v. Mississippi
No. 11, Original
Argued October 10, 11, 12, 1905
Decided March 5, 1906
202 U.S.
1
In Equity
Syllabus
The act of Congress admitting Louisiana having given that state
all islands within three leagues of her coast, and the subsequent
act of Congress admitting Mississippi having purported to give that
state all islands within six leagues of her shore, and some islands
within nine miles of the Louisiana coast being also within eighteen
miles of the Mississippi shore, although the apparent inconsistency
is reconcilable, the basis of a boundary controversy involving to
each state pecuniary values of magnitude, exists, and such a
controversy between the two states in their sovereign capacity as
states and having a boundary line separating them justifies the
exercise of the original jurisdiction of this Court.
As the act admitting Mississippi was passed five years after the
act admitting Louisiana, Congress could not take away any portion
of Louisiana and give it to Mississippi. Section 3, Art. IV of the
Constitution does not permit the claims of any particular state to
be prejudiced by the exercise of the power of Congress therein
conferred.
Acts of Congress passed at different times for the admission of
different states where their respective subjects are not identical
with or similar to each other do not form part of a homogeneous
whole, of a common system, so as to allow a claimant under the
later act to claim that it changed the earlier act by construction,
and the rule of
in pari materia does not apply.
Page 202 U. S. 2
The term
thalweg is commonly used by writers on
international law in the definition of water boundaries between
states, meaning the middle or deepest or most navigable channel,
and while often styled "fairway" or "midway" or "main channel," the
word has been taken over into various languages, and the doctrine
of the
thalweg is often applicable in respect of water
boundaries to sounds, bays, straits, gulfs, estuaries and other
arms of the sea, and also applies to boundary lakes and land-locked
seas whenever there is a deep water sailing channel therein.
The " maritime belt " is that part of the sea which, in
contradistinction to the open sea, is under the sway of the
riparian states.
As between the states of the Union, long acquiescence in the
assertion of a particular boundary, and the exercise of sovereignty
over the territory within it, should be accepted as conclusive,
whatever the international rule may be in respect of the
acquisition by prescription of large tracts of country claimed by
two states.
The real, certain, and true boundary south of the Mississippi
and north of the southeast portion of the Louisiana, and separating
the two states in the waters of Lake Borgne, is the deep water
channel sailing line emerging from the most eastern mouth of Pearl
River into lake Borgne and extending through the northeast corner
of Lake Borgne, north of Half Moon or Grand Island, thence east and
south through Mississippi Sound, through South Pass between Cat
Island and Isle a Pitre to the Gulf of Mexico.
The State of Louisiana, by leave of court, filed her bill
against the State of Mississippi, October 27, 1902, to obtain a
decree determining a boundary line between the two states, and
requiring the State of Mississippi to recognize and observe the
line so determined.
The bill alleged:
"1st. That the State of Louisiana was admitted into the Union of
the United States of America by the act of Congress found in
chapter 50 of the United States Statutes at Large, volume 2, page
701, approved April 6th, 1812, and therein the boundaries of the
said State of Louisiana, in the preamble of said act, were
described as follows:"
" Whereas the representatives of the people of all that part of
the territory or country ceded under the name of 'Louisiana' by the
treaty made at Paris on the 30th day of April, 1803, between the
United States and France, contained within the following limits,
that is to say, beginning at the mouth of the
Page 202 U. S. 3
River Sabine, thence by a line drawn along the middle of said
river, including all islands to the 32d degree of latitude; thence
due north to the northernmost part of the 33d degree of north
latitude; thence along the said parallel of latitude to the River
Mississippi; thence down the said river to the River Iberville, and
from thence along the middle of said river and Lakes Maurepas and
Pontchartrain to the Gulf of Mexico; thence bounded by the said
gulf to the place of beginning, including all islands within three
leagues of the coast,"
"etc."
"2d. That, according to the foregoing description, the eastern
boundary of the State of Louisiana was formed by the Mississippi
River, beginning at the northeast corner of said state and
extending south to the junction of the said river with the River
Iberville (now known as Bayou Manchac), and thence extending
eastwardly through the lower end of the Amite River, through the
middle of Lake Maurepas, Pass Manchac, and Lake Pontchartrain, and,
in order to reach the Gulf of Mexico, its only course was through
the Rigolets, into Lake Borgne, and thence by the deep-water
channel through the upper corner of Lake Borgne, following said
channel, north of Half Moon Island, through Mississippi Sound to
the north of Isle a Pitre, through the Cat Island channel,
southwest of Cat Island, into the Gulf of Mexico, which said
eastern boundary of the State of Louisiana is more fully shown on
diagram No. 1, made part of this bill."
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202 U.S.
1diag1�
image:a
"3d. That, by the Act of Congress found in the United States
Statutes at Large, vol. 2, p. 708, c. 57, approved April 14th,
1812, additional territory was added to the then-existing State of
Louisiana which additional territory was described in the following
language:"
" Beginning at the junction of the Iberville with the River
Mississippi; thence along the middle of the Iberville, the River
Amite, and of the Lakes Maurepas and Pontchartrain to the eastern
mouth of the Pearl River; thence up the eastern branch of Pearl
River to the 31st degree of north latitude; thence along the said
degree of latitude to the River Mississippi; thence
Page 202 U. S. 4
down the said river to the place of beginning, shall become and
form a part of the said State of Louisiana."
"4th. That the effect of this legislation, as to the eastern
boundary of the State of Louisiana, was to retain the Mississippi
River as the original eastern boundary, as far south as the 31st
degree of north latitude. The change then moved the eastern
boundary eastward along the 31st degree of north latitude to the
Pearl River, whence it then ran south down the said river, through
its eastern branch, till it entered the northern corner of Lake
Borgne, where the state's eastern boundary then joined and followed
the boundary line originally fixed in the Act of April 8th, 1812,
and followed, as heretofore stated,
Page 202 U. S. 5
the deep-water channel through the upper corner of Lake Borgne,
north of Half Moon Island, eastward through the deep-water channel
along the Mississippi Sound till it reached the Cat Island channel
north of Isle a Pitre, and southwest of Cat Island, whence passing
through Chandeleur Sound, northeast of Chandeleur Islands, it
entered the Gulf of Mexico, and ran south around the delta of the
Mississippi River and then north and westward to the point where
the Sabine River enters the Gulf of Mexico, as will be more fully
seen from the diagram No. 2, made part of this bill."
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202 U.S.
1diag2�
image:b
"5th. That the territory lying adjacent to, and to the eastward
of, the State of Louisiana, is the State of Mississippi, which
Page 202 U. S. 6
latter state was admitted into the Union of the United States of
America by the Act of Congress found in the United States Statutes
at Large, vol. 3, c. 23, page 348, approved March 1st, 1817,
whereby the inhabitants of the western part of the then Mississippi
Territory were authorized to form for themselves a state
constitution and to be admitted into the Union, the boundaries of
the then-to-be-created state being described as follows:"
" Beginning on the River Mississippi at the point where the
southern boundary line of the State of Tennessee strikes the same;
thence east along the said boundary line to the Tennessee River;
thence up the same to the mouth of Bear Creek; thence by a direct
line to the northwest corner of the County of Washington [Alabama];
thence due south to the Gulf of Mexico; thence westwardly,
including all the islands within six leagues of the shore to the
most eastern junction of Pearl River with Lake Borgne; thence up
said river to the 31st degree of north latitude; thence west along
the said degree of latitude to the Mississippi River; thence up the
same to the beginning."
"6th. That, by the said act, Congress intended that the southern
boundary line of the State of Mississippi, beginning at the point
dividing it from the State of Alabama, should run westwardly till
it joined the Louisiana eastern boundary line, and that, in doing
so, the said southern boundary would in effect start westward from
a point eighteen miles south of the coastline, and include in its
westwardly direction the western end of Petit Bois Island, all of
Horn Island, Ship Island, and Cat Island, and the smaller islands
north of these, those islands being the ones contemplated in the
act of Congress, as being within eighteen miles of the southern
coastline of Mississippi, and that the said southern boundary of
Mississippi, extending in its westwardly direction through the Gulf
of Mexico, would gradually approach the coastline, and meet the
eastern boundary line of Louisiana just as the said eastern
boundary line of Louisiana emerges from the Cat Island channel into
the Gulf of Mexico, and thence follow and become the same as
the
Page 202 U. S. 7
Louisiana boundary line extending westwardly to the south of Cat
Island, through Mississippi Sound to the north of Half Moon or
Grand Island to the most southern junction of the
Page 202 U. S. 8
east branch of the Pearl River with Lake Borgne, being identical
with the Louisiana eastern boundary, and thence extending up the
channel of Pearl River."
"7th. That the islands included between the shoreline and the
southern boundary of the State of Mississippi are the islands
heretofore described,
viz.: the western end of Petit Bois
Island, with all of Horn Island, Ship Island, and Cat Island, and
the small islands north of them, those islands being large, and
well known to Congress at the time of the passage of the act, all
of which islands and the southern boundary of the State of
Mississippi will more fully appear from the diagram No. 3, made a
part of this bill."
image:c
"8th. That the islands contemplated in the Act of Congress of
1812, creating the State of Louisiana, and intended to be embraced
within the State of Louisiana, as provided by the clause, 'Thence
bounded by the said gulf to the place of beginning, including all
islands within three leagues of the coast,' were all of the other
islands, except those heretofore named as going to the State of
Mississippi, as all other islands, and all other mainland, are
south and west of the boundary line thus passing from Pearl River
through the deep-water channels in Lake Borgne and Mississippi
Sound, through the deep-water channel southwest of Cat Island to
the eastward of the Chandeleur Islands, and thence south, taking in
the delta of the Mississippi River, and extending westward along
the Gulf coast, including all islands along the coast, to the
Sabine River, where the State of Louisiana is thence bounded on the
westward by the State of Texas, all of which will more fully appear
from diagram No. 2, heretofore referred to."
"9th. Now your orator avers that there has developed in recent
years in the waters south of the State of Mississippi and east of
the southern portion of the State of Louisiana a considerable
growth of oysters, and an industry of large proportions, in the
handling of said bivalves, either in their fresh or in a canned
condition, has resulted therefrom."
"10th. That the State of Mississippi has by legislative
Page 202 U. S. 9
enactments, regulated the oyster industry in the waters of said
state, and permits the dredging of oysters on the natural oyster
reefs in waters of the said state, as will more fully appear from
the statutes of said state to which reference is made."
"11th. That the State of Louisiana has, by legislative
enactments, regulated the oyster industry in the said State of
Louisiana, and prohibits the dredging of oysters on the natural
reefs in the waters of said state, as will more fully appear from
the statutes of said state to which reference is made."
"12th. That the provisions of the laws of the said two states
differ considerably in many other respects."
"13th. That the existence and location of the natural oyster
reefs in the waters of the Parish of St. Bernard, in the State of
Louisiana, which adjoins the State of Mississippi, is shown by the
map made from a reconnaissance by the United States Fish Commission
steamer 'Fish Hawk,' in February, 1898, as will more fully appear
from diagram No. 4, now made part of this bill. [Map omitted
because of size --
see original printed reports in 202
U.S.]"
"14th. Now your orator avers that the boundary line dividing the
two states in the waters thereof has been clearly defined by the
acts of Congress creating the States of Louisiana and Mississippi,
as will be seen from the diagram No. 5, made up from the boundary
descriptions taken from the acts of Congress creating the said
states of Louisiana and Mississippi, which diagram is also made
part of this bill."
image:d
"15th. That the said boundary line in the waters between said
states has never been designated by buoys or marks of any kind by
either state, nor designated in any manner except by the United
States government insofar as it has buoyed the deep-water channel,
extending from the mouth of the Pearl River through the upper
corner of Lake Borgne, north of Half Moon Island, eastward to the
Cat Island pass, north of Isle a Pitre, and southwest of Cat
Island, which buoys were placed by the Coast Survey of the United
States government."
"16th. That, owing to the differences in the laws of the States
of Louisiana and Mississippi regulating the oyster industry of
Page 202 U. S. 10
the respective states, the said statutes providing penalties for
the violation thereof, much confusion has resulted, and a great
public demand has arisen in Louisiana to definitely mark the
boundary line dividing the two states in the waters thereof; that
citizens of the State of Mississippi, in violation of the laws of
the State of Louisiana, have been fishing oysters with dredges
Page 202 U. S. 11
on the natural reefs in the waters of the State of Louisiana,
said fishermen claiming that they were in the waters of the State
of Mississippi, and consequently not violating the laws of the
State of Louisiana."
The bill then set forth that,
"to avoid an armed conflict between the Sheriff and officers of
the Parish of St. Bernard, in the State of Louisiana, and the
Sheriff and officers of the County of Harrison in the State of
Mississippi,"
a meeting of citizens of Louisiana was called by the governor of
that state, which met in New Orleans, and resulted in the
appointment by the governor of commissioners on the part of
Louisiana
"to consider the determination of the water boundary line
between the two states and arrange for its easy location and
identification by a proper system of buoys,"
and the request that the Governor of Mississippi appoint like
commissioners on the part of that state, which appointment was
made.
The joint commission met and considered the subject, and
subsequently the Mississippi commission reported its inability to
agree with the Louisiana commission, stating, among other things,
"It is apparent that the only hope of settlement is a friendly suit
in the Supreme Court of the United States, and we respectfully
suggest that course."
The bill continued:
"24th. That the eastern water boundary line, as claimed by your
orator,
viz., a line beginning at the most southern
junction of the channel of the east branch of the Pearl River with
Lake Borgne, and thence eastward, following the deep-water channel
to the north of Half Moon Island, through the Mississippi Sound
channel, to Cat Island pass, northeast of Isle a Pitre into the
Gulf of Mexico, thereby dividing the waters between the two states,
agrees, and is in accord, with the acts of Congress creating
respectively the State of Louisiana and the State of Mississippi,
as already shown by diagram No. 5; that any other boundary than the
deep-water channel as aforesaid would cause the limits of the two
states to conflict and overlap, and that it is not to be presumed
that the Congress of the United States
Page 202 U. S. 12
intended to, or would, establish in its description a boundary
for the State of Mississippi conflicting with the already-existing
Louisiana eastern boundary when there is a construction of the
wording of the two acts, in fact the only construction that
suggests itself, that shows a boundary readily ascertained,
harmonizing with the words of the acts as they now read, and
clearly defining the limits of the two states in the waters between
them."
"25th. Your orator further avers that the use of the word
'westwardly' in the description of the southern boundary of the
State of Mississippi, as that southern boundary line extends
westwardly from the Alabama state line to the Louisiana eastern
boundary line, shows that it was not the intention of Congress to
have it run direct or due west throughout the whole course, and
that it was evidently the intention of Congress, in giving to the
State of Mississippi the islands north of that westwardly drawn
line, that the eighteen-mile limit shall gradually decrease as it
approached the Louisiana line on the east till it met and followed
it to its source. If the Mississippi line ran parallel to the
southern coast of Mississippi at a distance of eighteen miles from
such coastline, following the meander of the coast, and thence
joined at right angles a line emerging from the mouth of Pearl
River, such line would not only include Grassy, Half Moon, Round,
Le Petit Pass Islands and Isle a Pitre, already belonging to
Louisiana as being within nine miles or three leagues of the
Louisiana shoreline, but such line would also include part of the
mainland of the State of Louisiana. as will be seen from the
following diagram (No. 6), made a part of this bill, and it
certainly could not have been the intention of Congress to take
away from the State of Louisiana any islands or mainland already
belonging to it, and to give them to the State of Mississippi, as
such a proceeding, without the consent of the Legislature of the
State of Louisiana, would be a violation of sec. 3 of Art. 4 of the
Constitution of the United States."
"26th. You orator avers that the marshlands claimed by
Page 202 U. S. 13
the State of Mississippi to be islands are in truth, with the
exception of the Isle a Pitre, Grassy, Half Moon, Round, and Le
Petit Pass islands, low-lying marshlands, forming part of the
mainland of the State of Louisiana; that said swamp or marshlands
and islands have been known as and called, since time immemorial,
'the Louisiana marshes;' that they were approved to the State of
Louisiana by the Commissioner of the General Land Office on May 6,
1852, as will appear from a certified copy of said record of
approval from the United States Land Office, made a part of this
bill, marked Exhibit (G) and, where not since sold by the State of
Louisiana to private purchasers, have always stood on the books of
the register of the Louisiana State Land Office as state lands, to
be offered for sale, until recently transferred by the State of
Louisiana to the Board of Commissioners for the Lake Borgne Basin
Levee District by the provisions of Act No. 14 of the Legislature
of the State of Louisiana for the year 1892 for the purpose of
enabling the said levee board, by the proceeds of sale of said
lands, to secure the funds to aid in the building of levees in that
levee district, to protect the lands from overflow."
"27th. That parts of said disputed territory claimed by the
State of Mississippi to be islands within eighteen miles of its
shoreline are in fact part of the mainland of the State of
Louisiana, and therefore belong to and form part of said State of
Louisiana; but if your Honors should feel that any part of this
disputed area was islands by reason of the presence of shallow
water, then, as islands, they are within the nine-mile limit of
distance from the shoreline of the State of Louisiana, and
therefore belong to and form part of the State of Louisiana by that
second provision of the act of Congress giving Louisiana all
islands within three leagues of its shoreline."
"28th. Your orator further avers that, where contiguous states
or countries are separated by water, it is, and always has been,
the custom to regard the channel as establishing the boundary line
of such states, and that the State of Mississippi has itself
recognized this principle in the description of
Page 202 U. S. 14
its territorial limits, as found in the second article of its
own constitution, adopted November, 1890, in the following
words:"
"
* * * *"
"29th. Your orator avers that, as heretofore stated, the
Congress of the United States, 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 the
State of Louisiana by reason of the fact that the United States
government has confirmed to the State of Louisiana the lands
composing Half Moon Island, which is just south of the deep-water
channel [by sections and townships as set forth]"
and also
"the lands forming what is commonly known as Isle a Pitre [by
sections and townships, as stated],"
all of them
"recognized as belonging to and forming part of the State of
Louisiana by the said United States government, and have always
heretofore been so recognized by the people of the said two states;
that the lands forming the Isle a Pitre were sold by the State of
Louisiana,"
etc., etc.,
"and said lands have been assessed on the assessment rolls of
the Parish of St. Bernard, State of Louisiana, and taxes thereon
have been paid to the State of Louisiana for the past thirty-five
years, and said lands have never been assessed on the rolls of, nor
have any taxes ever been paid to, the State of Mississippi, and
that this is the case with all other lands and islands now claimed
by the State of Mississippi, but which in truth and fact belong to
the State of Louisiana."
"30th. Your orator therefore further avers that all constituted
authorities competent to create, adopt, or consider the said
boundary line have declared the water boundary line claimed by the
State of Louisiana --
viz., the deep-water channel running
from the most southern junction of the eastern mouth of Pearl
River, through Lake Borgne, north of Half Moon Island, through
Mississippi Sound, north of Isle a Pitre, and Southwest of Cat
Island, through Cat Island pass, through Chandeleur Sound northeast
of Chandeleur Islands to the Gulf
Page 202 U. S. 15
of Mexico, to be the true water boundary between the said
states."
The bill prayed that it be adjudged and decreed
"that the boundary line dividing the States of Louisiana and
Mississippi, in the waters between the said states to the south of
the State of Mississippi, and to the southeast of the State of
Louisiana, is the deep-water channel commencing at the most
southern junction of the eastern mouth of Pearl River with Lake
Borgne, thence by the deep-water channel through Lake Borgne, north
of Half Moon Island, through Mississippi Sound, north of Isle a
Pitre, through Cat Island Pass channel, southwest of Cat Island,
through Chandeleur Island Sound, northeast of the Chandeleur
Islands, to the Gulf of Mexico, as is delineated on the original
map submitted by the Louisiana boundary Commission to the
Mississippi Boundary Commission, and now made part of this bill,
marked Exhibit 'E;' that the said deep-water channel be located
throughout its course and permanently buoyed at the joint expense
of the two states; that the State of Mississippi and its citizens
be perpetually enjoined from disputing the sovereignty and
ownership of the State of Louisiana in the said land and water
territory south and west of said boundary line,"
and for costs and general relief.
[Exhibit "E" is not reproduced in the printed record, but it to
be found in the Louisiana Atlas of Maps, p. 60. It consists of
coast survey charts Nos. 189, 190, and 191, showing the coast from
Mobile to Lakes Borgne and Pontchartrain, with boundary lines added
in red ink. The maps given in this statement are sufficient to
supply the lack of this particular exhibit.]
The State of Mississippi, by leave, filed a demurrer to the
bill, which was, by stipulation, submitted to the consideration of
the court on printed arguments, and was subsequently overruled.
Thereupon the State of Mississippi, on leave, filed her answer
and cross-bill.
Page 202 U. S. 16
The state denied articulately nearly every material allegation
of the bill, and therefore the accuracy of the diagrams or maps
attached thereto, and asserted the true boundary to be as set forth
in her cross-bill. and while she admitted
"that the deep-water channel out of the mouth of Pearl River,
through the upper course of Lake Borgne, and on into the Gulf, as
stated in the bill, has been marked by buoys by and under the
direction of the United States government, for navigation and
commercial purposes,"
she denied
"that said marking of the deep-water channel was ever intended
to fix in any manner whatsoever any part of the boundary line
between said states,"
and further denied
"the correctness of complainant's statement that, where
contiguous states or countries are separated by water, the channel
of the waters dividing said states constitutes a boundary line, and
defendant specifically denies that such rule is applicable to this
case."
The cross-bill averred that the southern boundary line of the
State of Mississippi was fixed by the act of Congress, approved
March 1, 1817, 3 Stat. 348, c. 23, § 2.
That by that act, Mississippi was given
"all lands under the waters south of her well defined shoreline
to the distance of six leagues from said shore at every point
between the Alabama line and the most eastern junction of Pearl
River with Lake Borgne, including all islands within said
limit,"
and
"all territory within said limits, not being a part of the
mainland of the State of Louisiana, became, was, and is a part of
the Territory of the State of Mississippi."
That the acts of 1812, creating the State of Louisiana, failed
"to describe the water line from the most eastern mouth of Pearl
River to the Gulf of Mexico," and hence Louisiana proposed,
"without authority in law, to follow the deep-water channel from
the mouth of Pearl River to the Gulf of Mexico -- that is, as far
south as that point in the sea where the waters of Chandeleur Sound
merge into the waters of the Gulf of Mexico."
That the act creating the State of Mississippi was the
organization
Page 202 U. S. 17
of a state government in the western part of Mississippi
Territory; that the southern part of the Territory of Mississippi
was added thereto by an act of Congress approved May 14, 1812,
which provided:
"That all that portion of territory lying east of Pearl River,
west of the Perdido, and south of the thirty-first degree of
latitude be, and the same is hereby, annexed to the Mississippi
Territory, to be governed by the laws now in force therein, or
which may hereafter be enacted, and the laws and ordinances of the
United States, relative thereto in like manner as if the same had
originally formed a part of said territory, and until otherwise
provided by law, the inhabitants of the said district, hereby
annexed to the Mississippi Territory, shall be entitled to one
representative in the general assembly thereof."
2 Stat. 734.
That this act and the act admitting the State of Mississippi
"recognized the fact that the boundary line of the State of
Louisiana embraced no island in the waters to the east of said
state and to the south of the Mississippi mainland, or shore, and
within six leagues of the Mississippi shore; that the said
Louisiana acts are not in conflict with the aforesaid Mississippi
acts, the boundaries of Louisiana only embracing such islands, as
clearly shown by said acts creating and admitting her, as were
within the Gulf of Mexico and also within three leagues of her gulf
coast -- that is to say, within the Gulf of Mexico proper and to
the south of said State of Louisiana, as contemplated by Congress;
that the said line from the mouth of Pearl River to the Gulf of
Mexico, dividing the Territory of Mississippi from the State of
Louisiana, was never defined until the passage of the act creating
the State of Mississippi, when, for the first time, the southern
boundary of the Mississippi Territory, the western part of which
was, by said act, made the State of Mississippi, was accurately
defined and established, as herein stated; that the line above
described and defined by the said Mississippi acts includes no
islands which are within three leagues of the Louisiana mainland
and also in the Gulf of Mexico, as the limits
Page 202 U. S. 18
of the Gulf of Mexico are defined by the said state in her
original bill herein."
That the State of Louisiana
"claims title and sovereignty over some of the islands belonging
to the State of Mississippi by virtue of certain alleged action of
certain officers of the United States government and local officers
of the State of Louisiana,"
but the claim
"is not well founded because of the matters herein set forth,
and because said islands and territory have not been susceptible to
actual use and occupation, and because said claim is in violation
of sec. 3, Art. IV, of the Constitution of the United States . .
."
But, if the court should adjudge said islands and territory
approved by the aforesaid officials to the State of Louisiana to
belong to said state, then cross-complainant prayed that the claim
of title of Louisiana thereto
"be restricted to the real lands or islands so lost to the State
of Mississippi, and be in no case permitted to affect any lands
under the waters, or any of the public oyster reefs
thereunder."
It was then alleged that Mississippi had "exercised sovereignty
and jurisdiction over said waters within eighteen miles of her
shore aforesaid," and that, by her statutes, as codified in 1857,
had asserted such jurisdiction.
And that, by the legislation of Congress and the state, the
"Mississippi Sound" was recognized as a body of water, six leagues
wide, wholly within the State of Mississippi, from Lake Borgne to
the Alabama line, separate and distinct from "the Gulf of
Mexico."
The cross-bill further averred that Congress, "in the early
history of the Republic, in dealing with the Gulf coast or shore,"
was not perfectly familiar with the line, and, by several acts
"creating the Gulf states, respectively, treated the said Gulf
coast or shore as a line running generally from east to west," and
said states were, in the contemplation of Congress,
"so formed and bounded as to give to each state jurisdiction
over the waters adjacent to its shore or coast for a certain
specified distance southward from its mainland line; that it
was
Page 202 U. S. 19
not intended to give to any state jurisdiction over waters
adjacent to and immediately south and in front of any other state
or territory."
But that the deep-water channel line contended for by Louisiana
would take nearly all of the Hancock County waterfront, much of
that of Harrison County, and possibly some of that of Jackson
County, over all which Mississippi had exercised jurisdiction since
her admission.
Reference was then made to the organization of Hancock and
Jackson Counties in December, 1812, and of Harrison County, in
1841, and to certain sections of the Revised Code of Mississippi of
1880 and a codification of 1892, making a general reference to
islands within six leagues of the Mississippi shore, and it was
charged that, during all this time, the government of the
Mississippi Territory and that of the State of Mississippi had
exercised full and complete jurisdiction and sovereignty over the
waters in the "Mississippi Sound" as a part of the three counties
aforesaid.
The prayer was that it be decreed
"that the boundary line dividing the states of Mississippi and
Louisiana is the line which, beginning at a point six leagues due
south of that point on the shore where the Alabama and Mississippi
line enters the Gulf of Mexico, runs westwardly with the
meanderings of the shore six leagues always therefrom until said
line reaches and touches the real mainland of Louisiana about two
miles due west of the 'Indian Mound' and 'Lake of the Mound,' and
thence in an almost due northward direction along and on the high
tide mark of the said Louisiana mainland to Mississippi Sound at or
near Nine Mile Bayou, and thence further along said mainland at the
high tide mark westwardly to that point due south of the middle of
the most southern or eastern junction of Pearl River with Lake
Borgne, and thence from said point due north to the said Pearl
River; that the said line be located and permanently buoyed at the
joint expense of the two states; that the full title and
sovereignty over all the islands and the land under the waters
north and east of the said line so established be decreed and
adjudged to be in the
Page 202 U. S. 20
State of Mississippi, and that the State of Louisiana and her
citizens be perpetually enjoined from disputing such title and
sovereignty of the State of Mississippi therein,"
and for costs and general relief.
The following "Exhibit Map" was attached.
image:e
The State of Louisiana filed replication and also an answer to
the cross-bill, the allegations of which were in substance
denied.
Page 202 U. S. 21
As to the Act of May 14, 1812, the state said that it could not
and did not change the boundaries of Louisiana, and that, in fact,
the southern portion of the Mississippi Territory as claimed was
not then in possession of the United States, and did not extend
south of the thirty-first degree of north latitude; that, February
12, 1813, an act was passed
"authorizing the President of the United States to take
possession of a tract of country lying south of the Mississippi
Territory and west of the River Perdido,"
but that this was not published until 1818; nor were the
resolution of January 15 and the Act of March 3, 1811, on the
relations of the United States to Spain, published until after
April 20, 1818. 3 Stat. 471, 472.
The cause being at issue, much evidence, documentary and
otherwise, was taken, and the case was argued October 10, 11, and
12.
Page 202 U. S. 33
MR. CHIEF JUSTICE Fuller 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 water of the parish any nonresident
Page 202 U. S. 34
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 nonresidents 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
Page 202 U. S. 35
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
shoreline 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
Page 202 U. S. 36
question of a character to justify the exercise of our original
jurisdiction within the rules laid down in
Missouri v.
Illinois, 200 U. S. 496;
Missouri v. Illinois, 180 U. S. 208;
Pennsylvania v. Wheeling
Bridge Company, 13 How. 589;
Louisiana v.
Texas, 176 U. S. 1;
Kansas v. Colorado, 185 U. S. 125.
2. The State of Louisiana was admitted into the Union by the act
of Congress approved April 8, 1812, 2 Stat. 701, c. 50, which
commenced as follows:
"Whereas, the representatives of the people of all that part of
the territory or country ceded under the name of 'Louisiana' by the
treaty made at Paris on the thirtieth day of April, one thousand
eight hundred and three, between the United States and France,
contained within the following limits -- that is to say: beginning
at the mouth of the River Sabine; thence by a line to be drawn
along the middle of said river, including all islands, to the
thirty-second degree of latitude; thence due north to the
northernmost part of the thirty-third degree of north latitude;
thence along the said parallel of latitude to the River
Mississippi; thence down the said river to the River Iberville, and
from thence along the middle of the said river and Lakes Maurepas
and Ponchartrain to the Gulf of Mexico; thence bounded by the said
gulf to the place of beginning including all islands within three
leagues of the coast. . . ."
Map of Diagram No. 1, given in the opening statement, shows the
limits as thus defined.
By an act of Congress approved April 14, 1812, 2 Stat. 708., c.
57, additional territory was added to the State of Louisiana,
described thus:
"All that tract of country comprehended within the following
bounds, to-wit: beginning at the junction of the Iberville with the
River Mississippi; thence along the middle of the Iberville, the
River Amite and of the Lakes Maurepas and Pontchartrain to the
eastern mouth of the Pearl River; thence up the eastern branch of
Pearl River to the thirty-first degree of north latitude; thence
along the said degree of latitude to the River Mississippi; thence
down the said river to the place of beginning,
Page 202 U. S. 37
shall become and form a part of the said State of Louisiana, and
be subject to the Constitution and laws thereof in the same manner,
and for all intents and purposes, as if it had been included within
the original boundaries of the said state."
This added territory is shown on map or
�
202 U.S.
1diag2�diagram No. 2. The eastern boundary
of Louisiana was thereby moved eastward from the Mississippi to
Pearl River, and Louisiana was given the country south of the
thirty-first degree of north latitude, and north of the boundary
formed by the River Iberville, the middle of Lakes Maurepas and
Pontchartrain, and the Rigolets.
The River Iberville is called on this map Bayou Manchac, and is
still known by that name. The Rigolets is a gut connecting the
waters of Lakes Pontchartrain and Borgne, both of which are bodies
of salt water and were originally arms of the sea. In order to
reach the open waters of the Gulf of Mexico from the middle of
Lakes Maurepas and Pontchartrain, the line ran through the Rigolets
into Lake Borgne, and after the addition to the state by the Act of
April 14, 1812, the eastern boundary line of Louisiana entered Lake
Borgne to the south by Pearl River as well as the Rigolets. To get
from Lake Borgne into the open water of the Gulf of Mexico beyond
Chandeleur Islands and around to the western boundary of Louisiana,
it was necessary, as Louisiana contends, to follow the deep-water
channel north of Half Moon or Grand Island, through Mississippi
Sound, and thence by the pass between Cat Island and Isle a Pitre,
north of the Chandeleur Islands, into the open Gulf. Many maps are
given in the record, some made at dates long prior to the admission
of Louisiana as a state, some at that time, and some within a few
years thereafter, and all show the St. Bernard Peninsula to be
geographically a true part of the State of Louisiana, or of an area
of country that was to form the state, and that the said peninsula
projected itself as a well defined arm of land out into the waters
of the Gulf, branching off as a projection from the main body of
land composing
Page 202 U. S. 38
the state, and forming a part of it. We observe that, on many of
these early maps, the term "peninsula" is applied to this
projection, and that designation is sufficiently accurate for the
purpose of description.
November 14, 1803, President Jefferson sent a communication to
Congress, in which, among other things, he said:
"The object of the following pages is to consolidate the
information respecting the present State of Louisiana, furnished to
the Executive by several individuals among the best informed on the
subject."
"Of the province of Louisiana, no general map sufficiently
correct to be depended upon has been published, nor has any been
yet procured from a private source. It is indeed probable that
surveys have never been made upon so extensive a scale as to afford
the means of laying down the various regions of a country which, in
some of its parts, appears to have been but imperfectly explored. .
. ."
"
St. Bernardo"
"On the east side of the Mississippi, about five leagues below
New Orleans, and at the head of the English Bend, is a settlement
known by the name of the Poblacion de St. Bernardo, or the Terre
aux Boeufs, extending on both sides of a creek or drain, whose head
is contiguous to the Mississippi, and which, flowing eastward,
after a course of eighteen leagues, and dividing itself into two
branches, falls into the sea and Lake Borgne. This settlement
consists of two parishes, almost all the inhabitants of which are
Spaniards from the Canaries, who content themselves with raising
fowls, corn, and garden stuff for the market at New Orleans. The
lands cannot be cultivated to any great distance from the banks of
the creek on account of the vicinity of the marsh behind them, but
the place is suscepctible of great improvement, and of affording
another communication to small craft of from eight to ten feet
draught, between the sea and the Mississippi."
"Country from Plaquemines to the sea, and Effect of the
hurricanes: "
Page 202 U. S. 39
"From Plaquemines to the sea is twelve or thirteen leagues. The
country is low, swampy, chiefly covered with reeds, and having
little or no timber, and no settlement whatever. It may be
necessary to mention here that the whole lower part of the country,
from the English Turn downwards, is subject to overflowing in
hurricanes, either by the recoiling of the river or reflux from the
sea on each side, and, on more than one occasion, it has been
covered from the depth of two to ten feet, according to the descent
of the river, whereby many lives were lost, horses and cattle swept
away, and a scene of destruction laid. The last calamity of this
kind happened in 1794, but fortunately they are not frequent. In
the preceding year, the engineer who superintended the erection of
the fort at Plaquemines was drowned in his house near the fort, and
the workmen and garrison escaped only by taking refuge on an
elevated spot in the fort, on which there were, notwithstanding,
two or three feet of water. These hurricanes have generally been
felt in the month of August. Their greatest fury lasts about twelve
hours. They commence in the southeast, veer about to all the points
of the compass, are felt most severely below, and seldom extend
more than a few leagues above, New Orleans. In their whole course,
they are marked with ruin and desolation. Until that of 1793, there
had been none felt from the year 1780."
This communication was, of course, before Congress when the act
of 1812, admitting Louisiana, was approved, and the peninsula was
clearly recognized as forming part of the Parish of St. Bernard, as
was its marshy character and that of the adjoining parish.
By the Act of Congress approved March 1, 1817, 3 Stat. 348, c.
23, the inhabitants of the western part of the then Mississippi
Territory were authorized to form for themselves a state
constitution and to be admitted into the Union, with the following
boundaries:
"Beginning on the River Mississippi at the point where the
southern boundary line of the State of Tennessee strikes the same;
thence east along the said boundary line to the Tennessee River;
thence up the same to the mouth of Bear
Page 202 U. S. 40
Creek; thence by a direct line to the northwest corner of the
County of Washington; thence due south to the Gulf of Mexico;
thence westwardly, including all the islands within six leagues of
the shore, to the most eastern junction of Pearl River with Lake
Borgne; thence up said river to the thirty-first degree of north
latitude; thence west along the said degree of latitude to the
Mississippi River; thence up the same to the beginning."
The people in convention, August 15, 1817, formed a constitution
and state government (approved subsequently by popular vote), and
the state was admitted by resolution December 10, 1817. 3 Stat.
472.
The State of Alabama was admitted by the Act of March 2, 1819, 3
Stat. 489, c. 47, § 2, which provided:
"That the said state shall consist of all the territory included
within the following boundaries, to-wit: beginning at the point
where the thirty-first degree of north latitude intersects the
Perdido River; thence east to the western boundary line of the
State of Georgia; thence along said line to the southern boundary
line of the State of Tennessee; thence, west, along said boundary
line, to the Tennessee River; thence, up the same, to the mouth of
Bear Creek; thence, by a direct line, to the northwest corner of
Washington County; thence, due south, to the Gulf of Mexico;
thence, eastwardly, including all islands within six leagues of the
shore to the Perdido River, and thence, up the same to the
beginning."
The islands, marsh or otherwise claimed by Louisiana in this
case were all within three leagues of her coast. The act admitting
Mississippi was passed five years after the Louisiana act, yet
Mississippi claims thereunder the disputed territory as being
islands within eighteen miles of her shore. If it were true that
this repugnancy between the two acts existed, it is enough to say
that Congress, after the admission of Louisiana, could not take
away any portion of that state and give it to the State of
Mississippi. The rule
qui prior est tempore portior est
jure applied, and section three of Article IV of the
Constitution does not permit the claims of any particular state to
be
Page 202 U. S. 41
prejudiced by the exercise of the power of Congress therein
conferred.
But it is said that the act admitting Louisiana, the act
admitting Mississippi, and the act admitting Alabama must be
construed as
in pari materia, and, being so construed,
that Congress must be held to have had in view in the three acts a
division of the coast along the Gulf of Mexico, so as to equalize
the water frontage of Mississippi, Louisiana, and Alabama.
We do not regard these acts as
in pari materia in any
proper sense. They provided for the admission of three separate
states, and the subject of each was not only not identical with,
but not even similar to, that of the others. They did not form part
of a homogeneous whole of a common system, so as to allow a
claimant under the later act to successfully contend that it
changed the earlier act by construction or effected such change
because declaratory of the meaning of the prior act.
And assuming for the sake of argument that the Louisiana and
Mississippi acts were irreconcilably inconsistent, but remembering
that, when Louisiana was admitted into the Union, the territory now
composing the coast counties of Mississippi -- that is, below the
thirty-first degree of north latitude, was not actually a part of
the Mississippi Territory, but was in dispute between the United
States and Spain the theory of any preconcerted design in regard to
the waterfront of the two states is too unreasonable to be
entertained.
In the treaty of peace between England, France, and Spain of
February 10, 1716, Article VII, on the subject of the boundary line
separating the dominions of England and France in the New World,
provided:
"That for the future, the confines between the dominions of His
Britannic Majesty and those of His Most Christian Majesty in that
part of the world shall be fixed irrevocably by a line drawn along
the River Mississippi from its source to the River Iberville, and
from thence by a line drawn along the middle of this river and the
Lakes Maurepas and Pontchartrain to the sea."
According to this treaty, England retained the port of Mobile
and its river and everything east
Page 202 U. S. 42
of the Rigolets. The Island of Orleans, formed by the River
Iberville, Lakes Maurepas, and Pontchartrain, the Rigolets, the
Gulf of Mexico, and the Mississippi River, remained the property of
France. In the treaty of February 10, 1763, practically the same
language is used in describing the boundary line separating the
British from the French territory, and by the twentieth article,
the cession to England of Florida by Spain and all that Spain
possessed on the continent of North America was provided for. By
the treaty of September 3, 1783, between England and Spain, England
retroceded East and West Florida to Spain. By the treaty of St.
Ildefonso of October 1, 1800, Spain ceded to France
"the colony or province of Louisiana with the extent that it now
has in the hands of Spain, and that it had when France possessed
it, and such as it should be after the treaties subsequently
entered into between Spain and other states."
April 30, 1803, France ceded to the United States "the colony or
province of Louisiana" using the same description as used by Spain
in ceding the territory to her, and stating in Article II: "In the
cession made by the preceding article are included the adjacent
islands belonging to Louisiana . . ."
There is nothing in any of these transfers to raise a doubt that
the peninsula of St. Bernard was part of the Island of Orleans, and
that this Island of Orleans was in fact formed by the extension to
the sea of the boundary line coming down through the middle of
Lakes Maurepas and Pontchartrain, and so finding its way to the sea
by the deep-water channel.
March 26, 1804, an act of Congress was approved dividing the
country acquired as Louisiana from France into two parts,
providing:
"That all that portion of country ceded by France to the United
States under the name of Louisiana which lies south of the
Mississippi Territory and of an east and west line to commence on
the Mississippi River at the thirty-third degree of north latitude,
and to extend west to the western boundary of the said cession,
shall constitute a Territory of the United
Page 202 U. S. 43
States under the name of the Territory of Orleans, the
government whereof shall be organized and administered as
follows:"
"
* * * *"
"SECTION 12. The residue of the Province of Louisiana ceded to
the United States, shall be called the District of Louisiana, the
government whereof shall be organized and administered as follows:
. . ."
Congress manifestly regarded the lands to the east, that were
south of the Mississippi Territory, and which form the disputed
area of today, as part of the original island of Orleans, included
in the treaty of April 30, 1803, and these were given to the
Territory of Orleans, whose southeastern boundary was the original
southeastern boundary of the island of Orleans. At that date, the
Mississippi Territory did not extend south of the thirty-first
degree of north latitude, and its domain did not reach the shore of
Mississippi Sound, so-called.
February 20, 1811, 2 Stat. 641, c. 21, an act of Congress was
approved
"to enable the people of the Territory of Orleans to form a
constitution and state government, and for the admission of such
state into the Union on an equal footing with the original states
and for other purposes."
The description of the limits was as follows:
"Beginning at the mouth of the River Sabine, thence, by a line
to be drawn along the middle of the said river, including all
islands, to the thirty-second degree of latitude, thence due north
to the northernmost part of the thirty-third degree of north
latitude, thence along the said parallel of latitude to the River
Mississippi, thence down the said river to the River Iberville, and
from thence along the middle of the said river and Lakes Maurepas
and Ponchartrain to the Gulf of Mexico, thence, bounded by the said
gulf to the place of beginning including all islands within three
leagues of the coast,"
etc.
The eastern boundary thus described is a water boundary, and, in
extending this water boundary to the open sea or Gulf of Mexico, we
think it included the Rigolets and the deep-water sailing channel
line to get around to the westward. A little
Page 202 U. S. 44
over one year later Louisiana was created a state by the act of
Congress of April 8, 1812, with this identical eastern boundary
line, and the addition of territory by the Act of April 14, 1812,
did not affect the deep-water sailing channel line as a
boundary.
April 7, 1798, 1 Stat. 549, c. 28, an act was approved "for an
Amicable Settlement of Limits with the Georgia, and Authorizing the
Establishment of a government in the Mississippi Territory," which
read in part:
"That all that tract of country bounded on the west by the
Mississippi; on the north by a line to be drawn due east from the
mouth of the Yasous to the Chatahouchee River; on the east by the
River Chatahouchee, and on the south by the thirty-first degree of
north latitude shall be and hereby is constituted one district, to
be called the Mississippi Territory."
This was in conformity with the treaty between Spain and the
United States of October 27, 1795. Maps of that date and
subsequently show that the admitted rights of the United States did
not at the time extend south of the thirty-first degree of north
latitude at that point.
By an Act of January 15, 1811, the President of the United
States was authorized, among other things, in the event that any
foreign government attempted to occupy the same, to take possession
of the country lying east of the River Perdido, and south of the
State of Georgia and the Mississippi Territory. The River Perdido
is in the State of Alabama east of the State of Mississippi, and
flows into the Gulf of Mexico between Mobile Bay, in Alabama, and
Pensacola Bay, in Florida. A few days later, and on March 3, 1811,
an act of Congress was approved providing that the Act of January
15, 1811, and this act should not be published until the end of the
next session of Congress, unless with the consent of the
President.
By resolution approved January 15, 1811, it was specifically
declared that the United States could not, without serious
inquietude, see any part of the territory adjoining the southern
border of the United States pass into the hands of any foreign
power,
"and that a due regard to their own safety compels
Page 202 U. S. 45
them to provide, under certain contingencies, for the temporary
occupation of the said territory."
3 Stat. 471.
May 14, 1812, an act of Congress was passed, 2 Stat. 734, c. 84,
to enlarge the boundaries of the Mississippi Territory which used
the following language:
"That all that portion of territory lying east of Pearl River,
west of the Perdido, and south of the thirty-first degree of
latitude be, and the same is hereby, annexed to the Mississippi
Territory,"
etc. The country described was not at the time in the possession
of the United States, and on February 12, 1813, Congress passed an
act "authorizing the President of the United States to take
possession of a tract of country lying south of the Mississippi
Territory and west of the River Perdido," which act referred to the
tract as "not now in possession of the United States." 3 Stat. 472.
But it was not until the Enabling Act in respect of Mississippi,
approved March 1, 1817, that the language was used:
"Thence due south to the Gulf of Mexico; thence, westwardly
including all the islands within six leagues of the shore, to the
most eastern junction of Pearl River with Lake Borgne,"
etc.
The claim of Mississippi is that the disputed area is composed
of islands, and as those islands are within eighteen miles of her
shore, that they were given to her by the Act of March 1, and the
resolution of December 10, 1817. It is true there are some islands
in that area, such as Grassy, Half Moon, Petit Pass, and Isle a
Pitre, all of which are between the deep-water channel on the north
and the main coastline of St. Bernard peninsula on the south.
The contention of Louisiana is that these islands were
previously given to her by the Act of April 8, 1812, more than five
years prior to the admission of Mississippi, and that her title
thereto, even if the acts were in conflict, is superior to that of
the State of Mississippi, and she also contends that the islands
belong to her because they are south of the deep-water sailing
channel line, which she submits is the true boundary line between
the two states. Mississippi denies that the peninsula
Page 202 U. S. 46
of St. Bernard and the Louisiana marshes constitute a peninsula
in the true sense of the word, but insists that they constitute an
archipelago of islands. Certainly there are in the body of the
Louisiana marshes or St. Bernard peninsula portions of sea marsh
which might technically be called islands, because they are land
entirely surrounded by water, but they are not true islands. They
are rather, as the Commissioner of the General Land Office wrote
the Mississippi land commissioner in 1904, "in fact hummocks of
land surrounded by the marsh and swamp in said townships. . .
."
And when the Louisiana act used the words: "Thence bounded by
the said gulf to the place of beginning, including all islands
within three leagues of the coast," the coast referred to is the
whole coast of the state, and the peninsula of St. Bernard formed
an integral part of it. Lake Borgne and Mississippi Sound are
bodies of salt water, and, as such, parts of the sea or gulf, and
as the coast of Louisiana began along the north shore of the
peninsula, it is not to be supposed that the islands referred to by
Congress in the Louisiana act were solely those islands to the
south of that state.
The contention of Mississippi is based upon an assumed
inconsistency between the Louisiana and the Mississippi acts, but
we think, upon a true interpretation, in the light of the facts,
that no such inconsistency can be imputed. The maps show that there
is a chain not of alluvial, but of sea-sand islands, running from
the west shore of Mobile bay, in the State of Alabama, westward to
and inclusive of Cat Island, in the State of Mississippi. This
chain forms the southern boundary of Mississippi Sound, and the
islands are all relatively the same distance from the shore of the
States of Mississippi and of Alabama. They, beginning at the
eastern end, are Dauphin, Petit Bois, Horn, Ship, and Cat Islands,
and there are some other islands lying within this chain. If
Congress referred to these islands as being thus within six leagues
of the shore when the act creating the State of Mississippi was
passed, it follows that there would be no conflict with prior
existing boundaries of
Page 202 U. S. 47
the State of Louisiana, particularly if the deep-water sailing
channel line be taken as the correct boundary between the states.
And when Congress created a separate territorial government for the
eastern part of Mississippi Territory and called it Alabama, by the
Act of March 3, 1817, it used the same language concerning the
western and southern boundary of the territory:
"Thence due south to the Gulf of Mexico, thence eastwardly,
including all the islands within six leagues of the shore to the
Perdido River and thence up same to the beginning."
It seems obvious to us that it was to this chain of islands that
Congress referred when it admitted Mississippi into the Union, and
that it had no intention whatsoever of giving Mississippi any claim
of ownership in the sea-marsh islands, which had been previously
granted to the State of Louisiana.
We are of opinion that the peninsula of St. Bernard in its
entirety belongs to Louisiana; that the Louisiana marshes at the
eastern extremity thereof form part of the coastline of the state,
and that the islands within nine miles of that coast are hers,
except as restricted by the deep-water sailing channel regarded as
a boundary. Cat Island, for instance, is within the nine miles, but
it is north of the deep-water channel, is not alluvial, and is
conceded by both states to belong to Mississippi.
3. That there is a deep-water sailing channel line emerging from
the mouth of Pearl River, and extending east between Lower Point
Clear and Grand Island, is shown by the numerous maps, surveys, and
sketches in the record. It separates into two branches, one of them
passing between Cat Island and Isle a Pitre.
Among the maps put in evidence by Louisiana is one prepared by
George Gauld, M.A. for the British Admiralty, in the year 1778,
and, from the relative depths of water given, the existence of this
same channel, extending out into the Gulf, southwest of Cat Island,
is shown, and is the same as noted on maps of subsequent years.
February 14, 1839, an act of the legislature of Mississippi
was
Page 202 U. S. 48
approved providing for a survey of the Mississippi coast. The
survey and report are given in full in the record, and the
deep-water channel above referred to is traceable in detail on the
sketch. The channels indicated on this survey and on the United
States Coast and Geodetic Survey map are the same channels. It may
be noted in passing that the body of water now known as
"Mississippi Sound" is not so designated on this sketch, and the
first map which uses this name to which our attention has been
called was issued in 1866.
Louisiana lies between the States of Mississippi to the east and
Texas to the west. The southern portion of Louisiana is
geologically of an alluvial formation, containing the delta of the
Mississippi River. The peninsula of the Parish of St. Bernard is
practically a part of this delta formation.
Mississippi's mainland borders on Mississippi Sound. This is an
enclosed arm of the sea, wholly within the United States, and
formed by a chain of large islands, extending westward from Mobile,
Alabama, to Cat Island. The openings from this body of water into
the Gulf are neither of them six miles wide. Such openings occur
between Cat Island and Isle a Pitre; between Cat and Ship Islands;
between Ship and Horn Islands; between Horn and Petit Bois Islands;
between Petit Bois and Dauphin islands; between Dauphin island and
the mainland on the west coast of Mobile bay. The maps show all
this, and, among others, reference may be made to Jeffrey's map of
1775, given in the record, and which, in reduced form, is
reproduced from Jeffrey's Atlas of 1800 as the frontispiece of Vol.
II, Adams' History of the United States.
Now to repeat, the boundary of Louisiana separating her from the
State of Mississippi to the east is the thread of the channel of
the Mississippi River, and this extends south until it reaches the
thirty-first degree of north latitude and then runs directly east
along that degree until Pearl River is reached; thence south along
the channel of that river to Lake Borgne. Pearl River flows into
Lake Borgne, Lake Borgne into Mississippi Sound, and Mississippi
Sound into the open Gulf of Mexico
Page 202 U. S. 49
through, among other outlets, South Pass, separating Cat Island
from Isle a Pitre.
If the doctrine of the
thalweg is applicable, the
correct boundary line separating Louisiana from Mississippi in
these waters is the deep-water channel.
The term "
thalweg" is commonly used by writers on
international law in definition of water boundaries between states,
meaning, the middle, or deepest, or most navigable channel. And
while often styled "fairway" or "midway" or "main channel," the
word itself has been taken over into various languages. Thus, in
the treaty of Lunevillc, February 9, 1801, we find "
le thalweg
de l'Adige," "
le thalweg du Rhin," and it is
similarly used in English treaties and decisions, and the books of
publicists in every tongue.
In
Iowa v. Illinois, 147 U. S. 1, the
rule of the
thalweg was stated and applied. The
controversy between the states of Iowa and Illinois on the
Mississippi River, which flowed between them, was as to the line
which separated "the jurisdiction of the two states for the
purposes of taxation and other purposes of government." Iowa
contended that the boundary line was the middle of the main body of
the river, without regard to the "steamboat channel" or deepest
part of the stream. Illinois claimed that its jurisdiction extended
to the channel upon which commerce on the river by steamboats or
other vessels was usually conducted. This Court held that the true
line in a navigable river between states is the middle of the main
channel of the river.
Mr. Justice Field, delivering the opinion of the Court,
said:
"When a navigable river constitutes the boundary between two
independent states, the line defining the point at which the
jurisdiction of the two separates is well established to be the
middle of the main channel of the stream. The interest of each
state in the navigation of the river admits of no other line. The
preservation by each of its equal right in the navigation of the
stream is the subject of paramount interest. It is therefore, laid
down in all the recognized treatises of international
Page 202 U. S. 50
law of modern times that the middle of the channel of the stream
marks the true boundary between the adjoining states up to which
each state will, on its side, exercise jurisdiction. In
international law, therefore, and by the usage of European nations,
the term 'middle of the stream,' as applied to a navigable river,
is the same as the middle of the channel of such stream, and in
that sense the terms are used in the treaty of peace between Great
Britain, France, and Spain, concluded at Paris in 1763. By the
language, 'a line drawn along the middle of the River Mississippi
from its source to the River Iberville,' as there used, is meant
along the middle of the channel of the River Mississippi."
This judgment related to navigable rivers. But we are of opinion
that, on occasion, the principle of the
thalweg is
applicable, in respect of water boundaries, to sounds, bays,
straits, gulfs, estuaries, and other arms of the sea.
As to boundary lakes and landlocked seas, where there is no
necessary track of navigation, the line of demarcation is drawn in
the middle, and this is true of narrow straits separating the lands
of two different states; but whenever there is a deep-water sailing
channel therein, it is thought by the publicists that the rule of
the
thalweg applies. 1 Martens (F. de), 2d ed. p. 134;
Hall, § 38; Bluntschli, 5th ed.
§§ 298, 299; 1 Oppenheim, pp. 254, 255.
Thus, Martens writes:
"What we have said in regard to rivers and lakes is equally
applicable to the straits or gulfs of the sea, especially those
which do not exceed the ordinary width of rivers or double the
distance that a cannon can carry."
So Pradier Fodere says (Vol. II, p. 202), that as to lakes, "in
communication with or connected with the sea, they ought to be
considered under the same rule as international rivers."
The same view is confirmed by decisions of this Court and of
many arbitral tribunals.
In
In re Devoe Manufacturing Company, 108 U.
S. 401, the question at issue was in regard to the
boundary line between New York and New Jersey under an agreement
between the two
Page 202 U. S. 51
states. The jurisdiction of the State of New Jersey was claimed
"to extend down to the bay of New York, and to the channel midway
of said bay," and this Court sustained the claim.
See Hamburg
American Steamship Company v. Grube, 196 U.
S. 407.
In the San Juan water boundary controversy between the United
States and Great Britain, Emperor William I. gave the award in
favor of the United States, October 21, 1871, by deciding "that the
boundary line between the Territory of Her Britanic Majesty and the
United States should be drawn through the Haro channel," and it is
apparent that the decision was based on the deep-channel theory as
applicable to sounds and arms of the sea, such as the straits of
San Juan de Fuca; indeed, in a subsequent definition of the
boundary, signed by the Secretary of State, the British Minister,
and the British representative, the boundary line was said to be
prolonged until "it reaches the center of the fairway of the
straits of San Juan de Fuca." The fairway was the equivalent of the
thalweg.
Again, in fixing the boundary line of the Detroit River under
the sixth and seventh articles of the Treaty of Ghent, the
deep-water channel was adopted, giving Belle Isle to the United
States as lying north of that channel.
So in the Alaskan boundary case, the majority of the arbitration
tribunal, made up of Baron Alverstone, Lord Chief Justice of
England, Mr. Secretary Root, and Senators Lodge and Turner, held
that the middle of the Portland channel was the proper boundary
line, and included Wales island, to the north of which the channel
passed. This sustained the American contention in regard to the
thalweg and the island lying south of it.
But counsel contend that the rule
"as to the flow of the mid-channel or
thalweg of the
River Iberville (now known as Manchac) through the east, through
Lakes Maurepas and Pontchartrain, expires by its own limitation
when such mid-channel reaches Lake Borgne, which, in contemplation
of the rule, is the
Page 202 U. S. 52
open sea, and part of the waters of the Gulf of Mexico."
This contention is inconsistent, as matter of fact, with the
allegation of the cross-bill that
"the Mississippi Sound was recognized as a body of water six
leagues wide, wholly within the State of Mississippi, from Lake
Borgne to the Alabama line, separate and distinct from the Gulf of
Mexico,"
and with Mississippi's Exhibit Map A, presenting her claim,
while the record shows that the strip of water, part of Lake Borgne
and Mississippi Sound, is not an open sea, but a very shallow arm
of the sea, having outside of the deep-water channel an
considerable depth.
The maritime belt is that part of the sea which, in
contradistinction to the open sea, is under the sway of the
riparian states, which can exclusively reserve the fishery within
their respective maritime belts for their own citizens, whether
fish, or pearls, or amber, or other products of the sea.
See
Manchester v. Massachusetts, 139 U. S. 240;
McCready v. Virginia, 94 U. S. 391.
In
Manchester v. Massachusetts, the Court said:
"We think it must be regarded as established that, as between
nations, the minimum limit of the territorial jurisdiction of a
nation over tide waters is a marine league from its coast; that
bays wholly within its territory, not exceeding two marine leagues
in width at the mouth, are within this limit, and that included in
this territorial jurisdiction is the right of control over
fisheries, whether the fish be migratory, free-swimming fish, or
free-moving fish, or fish attached to or embedded in the soil. The
open sea within this limit is, of course, subject to the common
right of navigation, and all governments, for the purpose of
self-protection in time of war or for the prevention of frauds on
its revenue, exercise an authority beyond this limit."
Questions as to the breadth of the maritime belt or the extent
of the sway of the riparian states require no special consideration
here. The facts render such discussion unnecessary.
Islands formed by alluvion were held by Lord Stowell, in respect
of certain mud islands at the mouth of the Mississippi,
Page 202 U. S. 53
to be "natural appendages of the coast on which they border, and
from which, indeed, they are formed."
The Anna (1805), 5
C. Rob. 373.
As to these particular waters, the observations of Mr. Hall, 4th
ed., p. 129, are in point:
"Off the coast of Florida, among the Bahamas, along the shores
of Cuba, and in the Pacific are to be found groups of numerous
islands and islets rising out of vast banks, which are covered with
very shoal water and either form a line more or less parallel with
land or compose systems of their own, in both cases enclosing
considerable sheets of water, which are sometimes also shoal and
sometimes relatively deep. The entrance to these interior bays or
lagoons may be wide in breadth of surface water, but it is narrow
in navigable water."
He then states the specific case of the Archipielago de los
Canarios on the coast of Cuba, and says:
"In cases of this sort, the question whether the interior waters
are, or are not, lakes enclosed within the territory must always
depend upon the banks, and the width of the entrances. Each must be
judged upon its own merits. But in the instance cited, there can be
little doubt that the whole Archipielago de los Canarios is a mere
salt water lake, and that the boundary of the land of Cuba runs
along the exterior edge of the bank."
In such circumstances as exist in the present case, we perceive
no reason for declining to apply the rule to the
thalweg
in determining the boundary.
4. Moreover, it appears from the record that the various
departments of the United States government have recognized
Louisiana's ownership of the disputed area, that Louisiana has
always asserted it, and that Mississippi has repeatedly recognized
it, and not until recently has disputed it.
The question is one of boundary, and this Court has many times
held that, as between the states of the Union, long acquiescence in
the assertion of a particular boundary and the exercise of dominion
and sovereignty over the territory within it should be accepted as
conclusive, whatever the international
Page 202 U. S. 54
rule might be in respect of the acquisition by prescription of
large tracts of country claimed by both.
Virginia v.
Tennessee, 148 U. S. 503;
Indiana v. Kentucky, 136 U. S. 479;
Missouri v.
Kentucky, 11 Wall. 395;
Rhode
Island v. Massachusetts, 4 How. 591.
The Louisiana Enabling Act of February 20, 1811, provided that
all the waste and unappropriated lands in said state should be and
remain the property of the United States government. In the
disputed area of today are included lands and waters located in
various townships, all of which are enumerated in the southeastern
land district of Louisiana, east of the Mississippi River. The
lands in these townships were surveyed by the government about the
year 1842, all of them as being in and forming a part of the State
of Louisiana. By the Swamp Land Grants of 1849 and 1850, the United
States granted to certain states the swamp and overflowed lands
within their respective limits in order that these lands might be
reclaimed, protected from overflow, and brought into use. Louisiana
made application to the United States for the approval to her of
these lands as being part of her territory and situated within her
limits. They all lay south of the deep-water channel, and were all
approved to the State of Louisiana May 6, 1852. They were then
offered by the state through the register therefor as a department
of the many sales of them were made from time to time to
individuals, and patents issued therefor in various years from 1853
to 1894. In 1892, in furtherance of the better protection of the
lands of the Parishes of St. Bernard and Plaquemines from overflow,
the Legislature of Louisiana adopted an act which created a Lake
Borgne Basin Levee Commission, and provided a board of
commissioners therefor, as a department of the state government,
and the register of the State Land Office was authorized to
transfer all of the unsold lands to the board, which was done in
April, 1895. The board was authorized by law to sell these lands,
and also to levy taxes to be used in establishing a protective
levee system in the district. The board made sales of a
considerable number of acres
Page 202 U. S. 55
to different individuals from September 16, 1898, to March 7,
1902. Isle a Pitre was composed of certain enumerated sections of
Township 10, South of Range 20 East, and these lands were approved
to Louisiana by the Commissioner of the General Land Office of the
United States May 6, 1852, as forming part of that state, and they
were subsequently patented, sold, and conveyed to various
individuals, the chain of title extending from 1852 -- a period of
over fifty years. The lands forming Isle a Pitre have been paying
taxes to the State of Louisiana for years. Political and police
control and jurisdiction by the Parish of St. Bernard officials
were exercised over the disputed area, and many instances are given
of police control and jurisdiction by Louisiana officials over this
general territory. This territory consisted, as heretofore stated,
of what was known as the Louisiana Marshes, and it is admitted that
they have immemorially been known by that name, though some of the
witnesses for Mississippi said that they were also known as Grand
Marshes, admitting, however, that they were quite as frequently
called the Louisiana Marshes.
Some other matters may properly be referred to as showing the
general understanding of and acquiescence in the boundary asserted
by Louisiana.
In January, 1901, the Superintendent of the Coast and Geodetic
Survey was applied to by a member of the House of Representatives
from Mississippi for information in regard to the boundary line
between Louisiana and Mississippi in the present disputed area, and
Hodgkins, an assistant in the department, a well known expert in
such matters, made a report January 30, 1901, which, after
considering the subject in all its phases, showed that the correct
boundary between the two states in the locality is the deep-water
sailing channel line contended for by Louisiana.
The United States Geological Survey published in the year 1900 a
bulletin devoted to a discussion of the boundaries of the states
and territories, and giving a history of changes as they may have
occurred. The third edition was published in
Page 202 U. S. 56
1904. Gannett's Boundaries, 58th Congress, 2d Session, H.R.Doc.
678.
In the opinion of that Bureau, Louisiana was originally bounded
by the deep-water channel, and is the owner of the area in dispute
today, according to the report and the accompanying sketches.
In 1897, Louisiana requested the United States Commission of
Fish and Fisheries to make an investigation and report upon certain
technical matters in connection with the oyster industry of that
state, which investigation was made in February, 1898, by the
United States Fish Commission steamer
Fish Hawk. A map was
made of the area investigated in St. Bernard Parish, and that map
is given in the opening statement as Diagram No. 4 [omitted because
of size --
see U.S. Reports]. Louisiana's ownership was
clearly recognized.
The General Land Office of the United States began, as early as
1842, a detailed survey of the land forming the disputed area, of
which township plats appear in the record. The survey gave the
location of Marsh island, Half Moon or Grand Island, an unnamed
island, Petit Pass island, and Isle a Pitre, and the sections and
townships comprised in these islands. They were all designated as
being in the southeastern land district of Louisiana, east of the
Mississippi River.
When, as we have said, Louisiana, in the year 1852, selected
these and other lands within her state limits as inuring to her
under the Swamp Land Grants, the General Land Office, on May, 6,
1852, recognized the correctness of the claim to the lands and
approved and patented them to her as a state. Mississippi also
applied for the land inuring to her under the provisions of those
grants, and received her swamp lands, but the state never selected
and never had approved to her, as is shown by the books of the
State Land Office of Mississippi, any of the lands in the disputed
area of today; but it appeared that the state did have in her land
office books a record of the lands forming St. Joseph's Island,
which lay immediately north of the deep-water channel, and did not
extend south of that channel.
Page 202 U. S. 57
The General Land Office of the United States, in all of the maps
it has caused to be made of Louisiana and Mississippi, has been
consistent in its recognition of the ownership by Louisiana of the
disputed area.
See maps of Louisiana, 1879, 1886, 1887,
1896, and of Mississippi in 1890.
As before stated, in 1839, an engineer and surveyor made a
report and sketch of the coast of Mississippi, under the authority
of that state. This showed the territory lying south of the
deep-water channel in outline to be a peninsular formation. The
report referred to Horn, Petit Bois, Cat, and Ship Islands as
belonging to Mississippi, all of which are east of the disputed
territory, and the territory southwest of the deep-water channel,
or South Pass, was described as the Louisiana Marshes. The official
maps of Mississippi recognized Louisiana's ownership of the
disputed territory. The state map of October 26, 1866, which was
approved by Governor Humphrey and also by Governor Alcorn, did
this, and other maps, as the official map of Mississippi, published
under an act of the legislature of that state on March 8, 1882;
Rand McNally's section map of Mississippi, compiled from the
records of the office of the Surveyor General of the Board of
Immigration and Agriculture, Jackson, Mississippi, and the Railroad
Commissioners' map of Mississippi gave like recognition. The only
exception seems to be a map of the Railroad Commission, issued in
1904, two years after this suit was instituted, wherein, on the
eighteen-mile theory, Mississippi for the first time
cartographically extended her claims into the St. Bernard,
Louisiana, peninsula.
The record contains much evidence of the exercise by Louisiana
of jurisdiction over the territory in dispute, and of the general
recognition of it by Mississippi as belonging to Louisiana.
Apparently Louisiana had exercised complete dominion over it from
1812 with the acquiescence of Mississippi, unless the fact that the
latter made a general reference to islands within six leagues of
her shore in her code of 1880 indicated otherwise. But the evidence
fails to satisfy us that she attempted any physical possession or
control until after 1900. The few instances
Page 202 U. S. 58
referred to as showing that Mississippi asserted rights in the
disputed area are of little weight and require no discussion.
Our conclusion is that complainant is entitled to the relief
sought.
Decree accordingly.