"Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption agains

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1 And the Territories acquired by Congress, whether by deed of cession from the original States, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as States, upon an equal footing with the original States in all respects; and the title and dominion of the tide waters and the lands under them are held by the United States for the benefit of the whole people, and, as this court has often said, in cases above cited, "in trust for the future States." The "equal footing" clause has long been held to refer to political rights and to sovereignty. It does not, of course, include economic stature or standing. There has never been equality among the States in that sense. Some States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil. Some had special agreements with the Federal Government governing property within their borders. Area, location, geology, and latitude have created great diversity in the economic aspects of the several States. The requirement of equal footing was designed not to wipe out those diversities but to create parity as respects political standing and sovereignty. Yet the "equal footing" clause has long been held to have a direct effect on certain property rights. Thus the question early arose in controversies between the Federal Government and the States as to the ownership of the shores of navigable waters and the soils under them. It was consistently held that to deny to the States, admitted subsequent to the formation of the Union, ownership of this property would deny them admission on an equal footing with the original States, since the original States did not grant these properties to the United States but reserved them to themselves. 1

2 "Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself. See Massachusetts v. New York, 271 U.S. 65, 89. For that reason, upon the admission of a State to the Union, the title of the United States to lands underlying navigable waters within the States passes to it, as incident to the transfer to the State of local sovereignty, The plain and obvious mode to satisfy the terms of the grant, would be to give them the extent of two miles on each side of the Hoosick River, conformable to all its windings, if that be practicable. Several other modes have been suggested and analogies between this and other cases attempted, which appear either arbitrary in themselves, or too loose and uncertain to furnish a rule for decision. Boundaries of a similar description have, I believe, in many instances, either been settled by accommodation, or established by a length of possession and the acquiescence of all parties This map is so far from concluding, that it cannot be admitted in evidence to the prejudice of strangers to the transaction. But a uniform and long continued acquiescence, as well on the part of the parties making it as on those intrusted in repelling encroachments on the adjoining tracts, might have stamped it with a higher degree of verisimilitude. The acquiescence in such cases affords ground not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years. 2

3 This court has previously recognized that this doctrine is a theory of acquiring ownership over a disputed parcel of land which was popular at the turn of the twentieth The Indiana Supreme Court defined the doctrine as follows: As a general rule, it is affirmed by the authorities that where owners of adjoining premises establish by agreement a boundary or dividing line between their lands, take and hold possession of their respective tracts, and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line, although the period of time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. The general rule recognized by the authorities is that a boundary line located under such circumstances, in the absence of fraud, becomes binding on the owners establishing it, not on the principle that the title to the lands can be passed by parol, but for the reason that such owners have agreed permanently upon the limits of their respective premises and have acted in respect to such line, and have been controlled thereby, and therefore will not thereafter be permitted to repudiate their acts We have observed that by "the forties and fifties when the doctrine of adverse possession became slowly more developed, the doctrine of acquiescence became less frequently used until it disappeared out of the case law altogether in the sixties and seventies," 3

4 The doctrine of acquiescence is applied in instances when adjoining land owners occupy their respective properties up to a certain line and mutually recognize and treat that line as if it is the boundary that separates their properties. Acquiescence rests on the practical reality that oftentimes, the true boundary line location is uncertain and neighbors may themselves establish boundaries. To apply this doctrine: (1) adjoining landowners must treat a specific line as the boundary; and (2) the line must be so treated for a period of years, usually the period required for adverse possession. The Ohio Supreme Court recognized the doctrine of acquiescence long ago: "[W]e hold the principle to be well settled that an agreement upon a division line between adjoining landowners, different from the true line, the true line being a certain, and not a disputed line, and acquiescence by all the parties in such agreed line, for a length of time that would bar a right of entry under the statute of limitations in relation to real estate, would operate to prevent a party purchasing from one of such owners, with notice of the agreed line, from setting up a claim to any line other than that agreed upon, James the First, on the 3d of November, 1620, granted to the Council established at Plymouth the territory on the Atlantic lying between forty and forty-eight degrees of north latitude, extending westward to the sea. And on the 19th of March, 1628, the Council of Plymouth granted to Henry Roswell and others the territory of Massachusetts, which was confirmed by Charles the First, the 4th of March, This grant was limited to the territory "lying within the space of three English miles on the south part of Charles River, or of any or every part thereof; That Massachusetts more than two hundred years ago construed the charter as her counsel now construe it is clear, and the facts proved authorize the conclusion I am of opinion, that, in settling the above-mentioned boundary, the crown will not disturb the settlement by the two provinces so long ago as I apprehend his Majesty will confirm their agreement, which of itself is not binding on the crown, but neither province should be suffered to litigate such an amicable compromise of doubtful boundaries. 4

5 No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with the lapse of time, and fall with the lives of individuals. For the security of rights, whether of states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary. As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory. Ohio v. Kentucky, (1973) ("The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority." (quoting Michigan v. Wisconsin, (1926))); Massachusetts v. New York, (1926) ("Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary."). The acquiescence doctrine does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary. California v. Nevada, (1980) (No relationship need exist "between the origins of a boundary and the legal consequences of acquiescence in that boundary.... Longstanding acquiescence by California and Nevada can give [the boundary lines] the force of law whether or not federal authorities had the power to draw them."). This appeal arises from consolidated actions by appellees, Youngstown Sheet and Tube Company (Youngstown) and the City of East Chicago (East Chicago) against appellant City of Whiting (Whiting), concerning the corporate boundaries of Whiting and East Chicago. This land was reclaimed by Youngstown by means of landfills beginning in

6 Prior to Youngstown's reclamation of the submerged land, the Lake Michigan shore ran from northwest to southeast through sections 9 and 16 of Township 37 North, Range 9 West of the Second Principal Meridian established by the United States Government rectangular survey in In 1896 and 1897, respectively, East Chicago and Whiting (then a town) annexed territory along the lake shore east and west, respectively, of the intersection of the shore with the boundary between sections 9 and 16 Youngstown began conducting landfills from the shore in 1948, resulting in the extension of the shoreline outward in an irregular bulge through parts of sections 9 and 16; the filling progressed steadily until Until 1968 it was apparently the impression of Youngstown, East Chicago, and Lake County, State, and Federal officials that the corporate boundary between Whiting and East Chicago was extended over the landfill along the north-south midline of section 9. This boundary was shown on maps prepared or used by the Lake County Commissioners, Surveyor, Auditor and Plan Commission; by the Indiana State Highway Commission; and by the United States Geological Survey. East Chicago issued building permits, monitored air pollution, and licensed contractors on the land. included upon the zoning maps of East Chicago and excluded from the voting and zoning maps of Whiting. Finally, taxes on the real and personal property in the area were assessed on the assumption that it lay within East Chicago In 1968, Whiting's Common Council adopted Ordinance No. 1115, defining Whiting's corporate boundaries. Part of Youngstown's property (the disputed territory) was within the boundaries so defined. Youngstown and East Chicago filed separate actions to have Ordinance No declared invalid and to restrain Whiting from annexing Youngstown's property. In October of 1974, these cases were consolidated and tried without a jury. The trial court made findings of fact dis-cussed below and made conclusions of law which substantially held that: 6

7 1. The Whiting-East Chicago boundary over the Youngstown landfill was uncertain. 2. The corporate boundary of Whiting does not extend ten miles into Lake Michigan to the state boundary 3. Whiting had acquiesced in the section 9 midline boundary for so long a time that such boundary would be deemed the true Whiting-East Chicago boundary. 7. The extension of Whiting's boundaries to include the disputed property would deprive Youngstown of its property without compensation contrary to the Fifth Amendment. Whiting filed its motion to correct errors, containing 85 specifications of error. The motion attacked most of the trial court's findings as unsupported by sufficient evidence, all of the court's conclusions as erroneous, and the judgment as contrary to law. The motion to correct errors was overruled in its entirety. Whiting's position on the location of the Whiting-East Chicago boundary across the land reclaimed by Youngstown is that the boundary extended perpendicular to the general line of the pre-existing shore as the land was filled, by operation of law, The rules governing apportionment of land formed by natural accretion or artificial fill among adjacent riparian private landowners are diverse. Extension of the private boundary perpendicular to the shoreline is one of several methods mentioned by authorities In spite of the multiplicity of rules employed in extending ownership boundaries across accreted land, McQuillin asserts flatly that municipal boundaries extend perpendicular to the shoreline. It does not appear that many courts have considered the problem. Whatever the result would have been if this Court were called upon to decide how municipal boundaries should be extended in general over reclaimed land, we find another principle applicable to this case which determines our decision. This is the principle of acquiescence in assumed boundaries. The United States Supreme Court has frequently applied this principle in boundary disputes between the states: 7

8 "The rule, long settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority. Michigan v. Wisconsin, (1926) 270 U.S. 295, 308, 46 S.Ct. 290, 294, 70 L.Ed A principle applicable to determine the boundaries of sovereign states should logically apply to those of municipal corporations, since both are governmental entities having territorial boundaries. The determination of whether the parties involved have acquiesced in the establishment of a boundary must be made from all of the circumstances of each case, for general rules could not provide for all possible cases. Factors tending to show acquiescence in this case would include the provision of municipal services to the claimed territory, exercise of police and regulatory powers over such territory, and assessment of taxes on the taxable property in such territory, by East Chicago, the municipality claiming by virtue of acquiescence, without protest or challenge by Whiting, the party contesting acquiescence. In this case the trial court found that all municipal services provided to the disputed territory since its creation were provided by East Chicago. These services included water, sewage treatment, police and fire protection, and ambulance service. East Chicago enforced its building permit, contractor licensing, pollution control laws, and criminal ordinances on the disputed land; Whiting never attempted to enforce any of its ordinances there. Whiting silently permitted East Chicago to service and regulate the area for nearly twenty years, during which time both Youngstown and East Chicago came to rely on the belief that the area lay within East Chicago's boundaries. Although the time involved here is shorter than that in many of the reported decisions, we believe that the facts of this case are sufficient to establish acquiescence by Whiting. Whiting stood silent for between ten and twenty years while Youngstown made expensive improvements 8

9 If this were actually a case in which East Chicago had simply beaten Whiting in a race to provide services, we might agree with Whiting. But the trial court found that Whiting provided no services and exercised no control over the disputed land for a number of years, while Whiting had actual or constructive notice of East Chicago's claim from the numerous maps contained in public records showing the section 9 midline boundary. Two centuries ago, surveyors from Georgia and Tennessee marched through the region's mountains and hollows to mark the official border between the two states. They were supposed to follow the 35th parallel, according to an agreement approved in 1802 by Congress That has led to years of water wars between Georgia and Tennessee, as the Peach state's population has exploded, out-stripping its water supply At the time of Kansas' admission to the Union, January 29, 1861, the western boundary of Missouri followed the thread of the Missouri River, that is, the middle line of its main navigable channel, between these points. This line then became the common boundary of the two states. The States are not in dispute about the applicable law. They agree that when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel's course. Likewise, they agree that a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run. In New Orleans v. United States, 10 Pet , this court said: "The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain." 9

10 It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion. In Gould on Waters, sec. 159, it is said: "But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates." These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between States or nations are, by prescription or treaty, found in running water. With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other, that is, by the gradual, and, as it were, insensible accession or abstraction of mere particles, the river as it runs continues to be the boundary....if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary. What effect, if any, does change in the channel of a creek have upon the title of riparian owners? Erosive accretions attach to the land on which they fall. Accessions or abstractions, particle on particle, are so necessary and so general that title cannot be made to depend upon them. When this is all, a stream once a line continues to be the line. But where there is avulsion or sudden change from any cause, natural or artificial, by which a stream leaves its old bed and cuts for itself a new channel, the rule is otherwise, for title cannot be made to depend upon the meanderings of vagrant streams. 10

11 In Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 304, 62 L.Ed. 638, L.R.A. 1918D, 258, This statement of the law appears in Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 398, 36 L.Ed. 186, approved and copied from Vattel (1 Vattel, Droit des Gens, ch. 22, sections ): "But if, instead of a gradual and progressive change of its bed, the river, by an accident merely natural, turns entirely out of its course and runs into one of the two neighboring States, the bed which it has abandoned becomes thenceforward their boundary Controversies growing out of the shifting of earth by the action of the waters in running streams gave rise to the doctrines of accretion and avulsion. In cases of accretion, owing to the difficulty of tracing the original source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion the original owner still holds the title. Accretion is said to be the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream. Accretion is the usual and ordinary case of the shifting of earth by the action of the waters and avulsion is of a somewhat extraordinary nature. Avulsion may exist, first, where a stream changes its course, and, second, where a considerable quantity of earth is carried en masse across the channel and attached to the opposite shore. As applied to the second class: Avulsion is the removal of a considerable quantity of earth from the land of one proprietor and its deposit upon or annexation to the land of another suddenly and by the perceptible action of the water. Where the change to the channel of a river is made suddenly and violently, and is visible, and the effect is certain, it is said to be by avulsion. 11

12 In Coulthard v. Davis, 101 Iowa 625, 70 N.W. 716, it is held: "Land detached from one side of a river by a sudden change in the channel, and left connected with land on the other side, in such manner as to be capable of identification, is not an accretion." The question of identification must necessarily play an important part in applying the doctrine of avulsion. For without identification there can be no avulsion in a legal sense. "That while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. but it is well settled that the general doctrine does apply to the river, though of course it must be used with reference to the peculiar characteristics of the stream. Nebraska v. Iowa, The argument for the limitation of the avulsion doctrine was made in favor of the abolition of the law of accretion from the valley of the Missouri river in the cases of Missouri v. Nebraska and Nebraska v. Iowa, supra. The court held, however, that, notwithstanding the greater rapidity of changes here than elsewhere, the fundamental principles of the law were not affected." 12

13 "The term 'avulsion' on the one hand and 'gradual and imperceptible accretion' on the other, are used by writers on alluvion to contradistinguish a sudden disruption of a piece of ground from one man's land to another's, which may be followed and identified, from that increment which slowly or rapidly results from floods, but which is utterly beyond the power of identification. "When land is torn from the banks of this stream (Missouri) and plunged into its turbid waters, its component parts are never after distinguishable--the sand and clay and soil, and trees, and roots and logs are soon utterly undistinguishable from any other similar substances, and their destination can never be traced, except that they ultimately go into the gulf of Mexico, unless previously to reaching the ocean they are deposited on either bank or on some island. This is in accordance with the theory of the decision that the land itself which is torn away must be susceptible of location and identification. The question whether the lands in controversy lie within the State of Kentucky or of Indiana, depends chiefly on the land law of Virginia, and on the cession made by that State to the United States. Both Kentucky and Indiana were supposed to be comprehended within the charter of Virginia at the commencement of the war of our revolution. At an early period of that war, the question whether the immense tracts of unsettled country which lay within the charters of particular States, ought to be considered as the property of those States, or as an acquisition made by the arms of all, for the benefit of all, convulsed our confederacy, and threatened its existence. It was probably with a view to this question that Virginia, in 1779, when she opened her land office, prohibited the location or entry of any land "on the northwest side of the river Ohio." 13

14 And in January, 1781, the Commonwealth of Virginia yielded to the United States "all right, title, and claim, which the said Commonwealth had to the territory northwest of the river Ohio, subject to the conditions annexed to the said act of cession." It was intended then by Virginia, when she made this cession to the United States, and most probably when she opened her land office, that the great river Ohio should constitute a boundary between the States which might be formed on its opposite banks. This intention ought never to be disregarded in construing this cession. In pursuing this inquiry, we must recollect that it is not the bank of the river, but the river itself, at which the cession of Virginia commences. She conveys to Congress all her right to the territory "situate, lying, and being, to the northwest of the river Ohio." And this territory, according to express stipulation, is to be laid off into independent States. These States, then, are to have the river itself, wherever that may be, for their boundary. This is a natural boundary, and in establishing it, Virginia must have had in view the convenience of the future population of the country. When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newlycreated State extends to the river only. The river, however, is its boundary. It would be as inconvenient to the people inhabiting this neck of land, separated from Indiana only by a bayou or ravine, sometimes dry for six or seven hundred yards of its extent, but separated from Kentucky by the great river Ohio, to form a part of the last mentioned State It is a fact of no inconsiderable importance in this case, that the inhabitants of this land have uniformly considered themselves, and have been uniformly considered, both by Kentucky and Indiana, as belonging to the last mentioned State. No diversity of opinion appears to have existed on this point. 14

15 Virginia only granted the territory on the northern bank of the river to low-water mark, although, by the compact of 1792, between Virginia and Kentucky, a concurrent jurisdiction over the river is accorded to Ohio and Kentucky. The Ohio is a navigable river; it would be so considered, even if it were not expressly declared to be such by the deed of cession. This, however, does not determine the question, for there are two kinds of navigable rivers. If we resort to the technical and legal definition of a navigable river, it is that part of the stream only where the tide ebbs and flows. The shore, below high-water mark, belongs to the public. But grants of lands, bounded on rivers, or upon the margins of the same, above tide-water, carry the exclusive right of the grantee to low-water mark, or, as some of the authorities say, to the center of the stream. None of our rivers, in the western country, are navigable in the technical acceptation of the term. They all fall within the second class. The distinction was originally made in order to define the jurisdiction of the admiralty courts. In Cooper v. Smith, 9 Serg. & R. 26, 32, it was held that the right to the bed of a navigable river, where the tide did not reach, was presumed to belong to the public, while the right to the shore belonged to the adjacent proprietor. And in Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 74, it was decided that the owners of the soil adjacent to the large rivers, in Pennsylvania, do not own the bed of the river to the center. This appears to have been the settled law in Pennsylvania from a very early period. It has, in some measure, effaced the common law distinction between rivers navigable and not navigable. On the 1st of March, 1784, the delegates from that state in Congress executed and delivered to "the United States in Congress assembled" a deed of "all right, title and claim, as well of soil as of jurisdiction, which the said commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying, and being to the northwest of the River Ohio." 15

16 The first Congress assembled under the Constitution enacted, on the 7th August, 1789, "An act to provide for the government of the territory northwest of the River Ohio." These words of description were repeated in the act, but there were no other words of description. 1 Stat. 50. On the 18th December, 1789, the Legislature of Virginia passed an act consenting "that the district of Kentucky, within the jurisdiction of said Commonwealth, and according to its actual boundaries at that time, should be formed into a new state." On the 7th May, 1800, an act was passed "to divide the territory of the United States northwest of the Ohio into two separate governments." On the 30th April, 1803, the Enabling Act for the admission of Ohio was passed, the Ohio River being made the southern boundary. 2 Stat By this act, everything west of the present boundary of Ohio and east of the division line established by the act of 1800 was "made a part of the Indiana territory." a tract of land nearly five miles in length and over half a mile in width, embracing about 2,000 acres, lying on what is now the north side of the Ohio River. Kentucky alleges that when she became a state on the 1st of June, 1792, this tract was an island in the Ohio River The tract in controversy was then, and has ever since been, called "Green River Island." Kentucky founds her claim to its possession, and to jurisdiction over it, upon the alleged ground that at that time the River Ohio ran north of it, and her boundaries extended to low water mark a tract of land nearly five miles in length and over half a mile in width, embracing about 2,000 acres, lying on what is now the north side of the Ohio River. Kentucky alleges that when she became a state on the 1st of June, 1792, this tract was an island in the Ohio River The tract in controversy was then, and has ever since been, called "Green River Island." Kentucky founds her claim to its possession, and to jurisdiction over it, upon the alleged ground that at that time the River Ohio ran north of it, and her boundaries extended to low water mark on the north side of the river, 16

17 "the question whether the immense tracts of unsettled country which lay within the charters of particular states ought to be considered as the property of those states or as an acquisition made by the arms of all for the benefit of all convulsed our confederacy and threatened its existence." To remove this cause of disturbance, Congress, in September, 1780, passed a resolution recommending "to the several states having claims to waste and unappropriated lands in the western country a liberal cession to the United States of a portion of their respective claims for the common benefit of the union." In pursuance of this act, the delegates in Congress, on the 1st of March, 1784, executed a formal deed ceding to the United States all the right, title, and claim, as well of soil as of jurisdiction, which the commonwealth had to the territory or tract of country within the limits of the Virginia charter, "situate, lying, and being to the northwest of the River Ohio," for the uses and purposes, and subject to the conditions, mentioned in the act of the commonwealth. As thus seen, the territory ceded by the State of Virginia to the United States, out of which the State of Indiana was formed, lay northwest of the Ohio River. The first inquiry, therefore, is as to what line on the river must be deemed the southern boundary of the territory ceded. Early in the history of the state, doubts were raised on this point, and to quiet them its legislature, on the 27th of January, 1810 passed the following act declaring the boundaries of certain counties in the commonwealth: "Be it enacted by the General Assembly that each county of this commonwealth calling for the River Ohio as the boundary line shall be considered as bounded in that particular by the state line on the northwest side of said river, and the bed of the river and the islands therefore shall be within the respective counties holding the mainland opposite thereto, within this state, and the several county tribunals shall hold jurisdiction accordingly." 17

18 "we must recollect that it is not the bank of the river but the river itself at which the cession of Virginia commences. She conveys to Congress all her right to the territory 'situate, lying, and being to the northwest of the River Ohio,' and this territory, according to express stipulation, is to be laid off into independent states. These states, then, are to have the river itself, wherever that may be, for their boundary. But when, as in this case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly created state extends to the river only. The river, however, is its boundary If, instead of an annual and somewhat irregular rising and falling of the river, it was a daily and almost regular ebbing and flowing of the tide, it would not be doubted that a country bounded by the river would extend to low water mark. This rule has been established by the common consent of mankind. Even when a state retains its dominion over a river which constitutes the boundary between itself and another state, it would be extremely inconvenient to extend its dominion over the land on the other side which was left bare by the receding of the water, and this inconvenience is not less where the rising and falling is annual than where it is diurnal. Wherever the river is a boundary between states, it is the main, the permanent river which constitutes that boundary, and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low water mark. When the State of Virginia made the Ohio the boundary of states, she must have intended the great River Ohio, and not a narrow bayou into which its waters occasionally run. All the inconvenience which would result from attaching a narrow strip of country lying on the northwest side of that noble river to the states on its southeastern side would result from attaching to Kentucky, the state on its southeastern border, a body of land lying northwest of the real river and divided from the mainland only by a narrow channel, through the whole of which the waters of the river do not pass until they rise ten feet above the low water mark." 18

19 But above all the evidence of former transactions, and of ancient witnesses, and of geological speculations, there are some uncontroverted facts in the case which lead our judgment irresistibly to a conclusion in favor of the claim of Kentucky. It was over seventy years after Indiana became a state before this suit was commenced, and during all this period, she never asserted any claim by legal proceedings to the tract in question. She states in her bill that all the time since her admission, Kentucky has claimed the Green River Island to be within her limits, and has asserted and exercised jurisdiction over it, and thus excluded Indiana therefrom, in defiance of her authority and contrary to her rights This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the State of Kentucky, such omission to take any steps to assert her present claim by the State of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome except by the clearest and most unquestioned proof. In the case of Rhode Island v. Massachusetts, "The writers on national law have questioned how far that peculiar species of presumption arising from the lapse of time, which is called 'prescription,' is justly applicable as between nation and nation; but the constant and approved practice of nations shows that, by whatever name it be called, the uninterrupted possession of territory or other property for a certain length of time by one state excludes the claim of every other in the same manner as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question." This cause came on to be heard on the report of Gustavus V. Menzies, Gaston M. Alves and Amos Stickney, commissioners appointed herein at this term, on October 21, 1895, to ascertain and run the boundary line between the States of Kentucky and Indiana, as designated in the opinion of this court heretofore filed and judgment and decree heretofore entered herein, May 19, 1890, filed April 27, 1896; the exceptions of the State of Kentucky thereto and the motion of the State of Indiana for the confirmation thereof; and which report is as follows: 19

20 The first meeting of the commission was held at Evansville, Indiana, on December 7, 1895, all the commissioners being present The above mentioned gentlemen being invited thereto, expressed their views in a general way as to a proper method of determining the boundary line to be run between the States of Indiana and Kentucky to accord with the decision of this court. Neither in the order of your honorable court appointing the commissioners, nor subsequently, were your commissioners instructed as to the methods they should pursue in ascertaining the boundary line to be run. it was concluded that a determination of a proper location of the boundary line would require the marking out upon the ground as nearly as possible of the meandered river bank lines of the survey of Jacob Fowler, made in 1805 and 1806, the oldest survey of record, copies of the map and notes of which were incorporated and unchallenged in the testimony in the case. A competent surveyor was employed in the person of Mr. C. C. Genung, surveyor of Vanderburgh County, Indiana, who was familiar with the county records and the landmarks in the vicinity of the proposed line. instructed to reestablish upon the ground as nearly as practicable the aforesaid meander line of the survey of 1805 and 1806, using every precaution to determine said line as accurately as might be, from the notes of the survey, and such marks referred to in the notes, and other authenticated marks as might be found. He was also directed to make cross sections at intervals, by levelling across the depression now existing, where the island chute once was, and determine the present crests of the banks. Your commissioners, after verifying his work on the ground, then held another meeting report satisfied your commissioners on three points. The close accord of the reestablished meander line with the existing crest of the high bank was strong proof that the line as reestablished was in fact a very close approximation in location to the location of the line as originally run; it also indicated that the original meander line was practically along the crest of the high water bank, and not along the low water line; and further, that the crest of the bank along the Indiana side of the depression as it exists to-day must be nearly as it was at the time of the original survey. 20

21 It was decided then, to lay out as a trial line, a line parallel to the meander line of the survey of 1805 and 1806, as reestablished, and at a distance of two chains from it, measured toward the island. On February 3rd, 1896, your commissioners again met at Evansville, Indiana, and proceeded to inspect the trial line as laid out and marked upon the ground. Your commissioners would therefore respectfully state that they have now ascertained and run, according to their best judgment, the boundary line between Indiana and Kentucky, north of the tract known as Green River Island as it existed when Kentucky became a State, [KK note: decision includes detailed description] The above described line is indicated by the red line on the map transmitted herewith, marked Exhibit "C." We also transmit the preliminary and final reports of the surveyor, Mr. C. C. Genung, marked Exhibits "D" and "E," also a sheet of cross sections marked Exhibit "F." Three suitable points should be selected upon the line, one near the upper end, one near the middle, and one near the lower end. At each of these points a monument should be erected which should consist of a stone of durable quality, six feet long, and eighteen inches square in cross section. This stone should he imbedded in a well made foundation of concrete. The concrete foundation to be six feet square and four feet deep, the upper surface being at the surface of the ground. The stone should be placed upright so as to extend three feet into the concrete, and have three feet above the ground. Upon one side of the stone should be cut the word "Indiana," and upon the opposite side the word "Kentucky." Between the stone monuments, at each turning point of the line, there should be placed an iron post six feet long, and six inches in diameter of cross section. The iron post to be imbedded in a foundation of concrete two feet square, and three and one half feet deep; the top of the concrete to be at the surface of the ground, and the post standing upright in the concrete, the top of the post being three feet above the ground. 21

22 The estimated cost of the above described monuments, including placing the same, is $ GENTLEMEN: While I have no special objection to the test line you have tentatively adopted, although it does not seem to make allowance for any accretion to the Indiana bank of the river between June 1st, 1792, and the date of the Congressional survey in 1806, [KK note: several letters follow, including report from the surveyor who retraced the 1806 survey] I first sought to locate his original corners, the posts set by him having long since disappeared. I found a mulberry stub which is an original witness tree, as noted by him. At the termination of the section line between sections 5 and 6 a maple tree witnessed by him has been standing, up to about one year ago, but the stump, now five feet in diameter, with witness marks on it, is still there. Each of these points so located are also points on the meander line, and the surveyor's records in my office, as well as oral testimony of the old inhabitants, go to show beyond question that these are corners established by Mr. Fowler. The line of the low water mark of 1792, from the head to the foot of Green River Island, has been located as ordered by you, and the commencement, terminus and each intermediate angle marked by planting a cedar post five inches square and seven feet in length in the ground to the depth of four and one half feet. And the court being now fully advised in the premises: It is ordered that the exceptions to the report of said commissioners be overruled and that the report of said commis-sioners be, and the same is hereby, confirmed. And it is ordered, adjudged, and decreed that the boundary line between said States of Indiana and Kentucky in controversy herein be, and it is hereby, established and declared to be as delineated and set forth in said report and the map accompanying the same and referred to therein, which map is hereby directed to be filed as a part of this decree. 22

23 In Handly's Lessee v. Anthony, 5 Wheat. 374 (1820), this Court stated that the boundary between Indiana and Kentucky was the low water mark on the western or northwestern side of the Ohio River. Handly was an action for ejectment brought by a plaintiff claiming under a grant from Kentucky against defendants claiming under a grant "from the United States, as being part of Indiana." The Court in Handly observed that the question "depends chiefly on the land law of Virginia, and on the cession made by that State to the United States," id., at 376, and concluded that the United States acquired title from Virginia when negotiations during the period from resulted in Virginia's ceding its lands north and west of the Ohio River to the Federal Government Kentucky was received as a State of the Union in 1792 out of territory Virginia Mr. Chief Justice Marshall enunciated the following, now familiar, principle: "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newlycreated State extends to the river only. The river, however, is its boundary." The rule of the Handly case, as well as its specific application to the Kentucky-Indiana border, has been consistently adhered to in subsequent decisions of this Court. Indiana v. Kentucky,136 U.S. 479 (1890) (despite Indiana's argument, that its boundary was the middle of the river); Henderson Bridge Co. v. Henderson City,173 U.S. 592 (1899);3Nicoulin v. O'Brien,248 U.S. 113 (1918). 23

24 It has been explicitly recognized by the Supreme Court of Ohio in Booth v. Shepherd, 8 Ohio St. 243, (1858), where it was stated with far greater precision than the mere assumption the dissent suggests, post, at , that: "The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the question." In order to counter this history, Ohio argues that, as it was not a party to the Handly case, or to any of the later cases in this Court that reaffirmed Handly, it is not bound by the rule there established, which it characterizes as dictum. In particular, Ohio contends that it is free to challenge the conclusion that Virginia, prior to ceding the land that now encompasses both Indiana and Ohio, held good title to that land. Ohio's new theory is that Virginia did not have title to the lands north of the Ohio River in 1784 when Virginia surrendered its claim to the United States. Virginia's claim, it is said, was baseless. Indeed, Ohio argues that title to these lands was hotly contested, with Virginia, New York, Massachusetts, Connecticut, and the United States all laying claim to the territory north of the river. The Continental Congress, fearing the threat this controversy posed for the youthful Nation, refused to resolve the disputed claims, and, instead, prevailed upon each of the claimants to forgo its claim in favor of the United States for the common good. Accordingly, Ohio contends, the premise of Handly that Virginia had title to the northwest territory prior to ceding it to the United States, or, to say it another way, that it was the common proprietor of lands on both sides of the river is historically invalid. We need intimate no view on the merits of Ohio's historical analysis, for the State's long acquiescence in the location of its southern border at the northern edge of the Ohio River, and its persistent failure to assert a claim to the northern half of the river, convince us that it may not raise the middle-of-theriver issue at this very late date. 24

25 The 1820 decision in Handly necessarily placed Ohio on notice that any claim it might assert to half the river would be precluded by the reasoning of that opinion. The Court in Handly concluded that the entire border between Indiana and Kentucky was the river's northern edge. Virginia's claim to the territory that is now Indiana arose from the same source as its claim to what is now Ohio. The lands to which Virginia purportedly surrendered title to the United States in 1784 encompassed both Ohio and Indiana. Indeed, Ohio consistently has recognized that Handly and the cases that followed it foreclosed any claim that its border was located in the middle of the river. Even its original 1966 bill of complaint and supporting brief6 in this case so state. The decisions of Ohio's highest court are to the same effect. And Ohio for over 150 years has failed to assert, through proceedings available in this Court, the claim it now would raise in the face of Kentucky's legislative7 and judicial8 assertions of sovereignty over the river. "The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority." Michigan v. Wisconsin,270 U.S. 295, 308 (1926). To like effect are Vermont v. New Hampshire,289 U.S. 593, 613 (1933); Maryland v. West Virginia,217 U.S. 1, (1910); Louisiana v. Mississippi,202 U.S. 1, (1906); Virginia v. Tennessee,148 U.S. 503, 523 (1893); Indiana v. Kentucky, 136 U. S., at , 518; Rhode Island v. Massachusetts, 4 How. 591, 639 (1846). Here we have not only long acquiescence by Ohio in Kentucky's open claims over the river, but also lines of cases by this Court and the courts of both Ohio and Kentucky that, for more than 150 years, placed Ohio on consistent notice of the inadequacy of the claim it now asserts. We find ourselves in agreement with the Special Master that Ohio is foreclosed from claiming that its boundary with Kentucky lies in the middle of the Ohio River. 25

26 The State of Ohio, in 1966, instituted this action, under the Court's original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is "the low water mark on the northerly side of the Ohio River in the year 1792." In its answer, Kentucky alleged that the boundary line is the current low-water mark on the northerly side of the Ohio River. We agree with the Special Master. Much of the history concerning Virginia's cession to the United States of lands "northwest of the river Ohio" was reviewed and set forth in the Court's opinion concerning Ohio's motion for leave to amend its 1966 complaint. When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created state extends to the river only. The river, however, is its boundary. It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., Nebraska v. Iowa, 143 U.S. 359 (1892), or the Mississippi River between Arkansas and Mississippi. 26

27 See Mississippi v. Arkansas 415 U.S. 289 (1974), and 415 U.S. 302 (1974). See also Iowa v. Illinois, 147 U.S. 1 (1893); Missouri v. Nebraska, 196 U.S. 23 (1904); Minnesota v. Wisconsin, 252 U.S. 273 (1920); New Jersey v. Delaware, 291 U.S. 361 (1934); Arkansas v. Tennessee, 310 U.S. 563 (1940). In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application. A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, Texas v. Louisiana, 410 U.S. 702 (1973), where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States "Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled." We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. 27

28 The claim of Virginia is that by the charters of the English sovereigns, under which the colonies of Virginia and North Carolina were formed, the boundary line between them was intended and declared to be a line running due west from a point on the Atlantic Ocean on the parallel of latitude thirty-six degrees and thirty minutes north, and that the State of Tennessee, having been created out of the territory formerly constituting a part of North Carolina, the same boundary line continued between her and Virginia.. And the contention of Virginia is that the boundary line claimed by Tennessee does not follow this parallel of latitude but varies from it by running too far north, so as to unjustly include a strip of land about one hundred and thirteen miles in length and varying from two to eight miles in width, over which she asserts and unlawfully exercises sovereign jurisdiction. Commissioners were appointed by Virginia and North Carolina to carry this agreement into effect. They met at Currituck Inlet in March, The variation of the compass was then found to be three degrees one minute and two seconds west, nearly, and the latitude thirty-six degrees thirty-one minutes. The dividing line between the provinces struck Blackwater one hundred and seventy-six poles above the mouth of Nottaway. The variation of the compass at the mouth of Nottaway was two degrees thirty minutes. The line was afterward extended to Steep Rock Creek, 320 miles from the coast, The line was marked with great care by the commissioners of the States, with five chops on the trees in the form of a diamond, at such intervals between them as they deemed sufficient to identify and trace the line. Not a whisper of fraud or misconduct is made by either side against the commissioners, for the conclusions they reached and the line they established. This act shall commence and be in force from and after the passing of a like law on the part of the State of Tennessee." And on the 3d of November, 1803, Tennessee passed the following ratifying act: 28

29 "Whereas, the commissioners appointed to settle and designate the true boundary between this State and the State of Virginia, in conformity to the act passed by the legislature of this State for the purpose, on the thirteenth day of November, one thousand eight hundred and one, have proceeded to the execution of said business, and made a report thereof in the words following, to wit": "And it is deemed proper and expedient that the said boundary line, so fixed and ascertained as aforesaid, should be established and confirmed on the part of this State -- Tennessee responded to that invitation, and appointed commissioners to act with those from Virginia. The commissioners together re-run and re-marked the line as it was established in 1802 No complaint as to the correctness of the line run and established in 1802 was made by Virginia until within a recent period. [Virginia] asks that the compact entered into between her and the State of Tennessee, as set forth in the act of the general assembly of Virginia of January 22, 1803, and which became operative by similar action of the legislature of Tennessee on the 3d of November following, be declared null and void... Independently of any effect due to the compact as such, a boundary line between States or Provinces, as between private persons, which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary. [quoting Rhode Island v. Massachusetts] 29

30 Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title." And Wheaton, in his International Law, says: "The writers on natural law have questioned how far that peculiar species of presumption, arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation; but the constant and approved practice of nations shows that by whatever name it be called, the uninterrupted possession of territory or other property for a certain length of time by one State excludes the claim of every other in the same manner the legislative declaration of Virginia in 1803 that the line marked by the joint commissioners of the two States was ratified as the true and real boundary between them, and the repeated reaffirmation of the same declaration in her laws since that date, notably in the Code of 1858, in the Code of 1860 and in the Code of 1887; notwithstanding that the State has in various modes attested to the correctness of the boundary -- by solemn affirmation in terms, by legislation, in the administration of its government, in the levy of taxes and the election of officers, and in its acquiescence for over eighty-five years "it is a part of the general right of sovereignty belonging to independent nations to establish and fix the disputed boundaries between their respective territories; and the boundaries so established and fixed by compact between nations become conclusive upon all the subjects and citizens thereof, and bind their rights, and are to be treated to all intents and purposes, as the true and real boundary," adds: "This is a doctrine universally recognized in the law and practice of nations. It is a right equally belonging to the States of this Union Our judgment, therefore, is that the boundary line established by the States of Virginia and Tennessee by the compact of 1803 is the true boundary between them, and that on a proper application, based upon a showing that any marks for the identification of that line have been obliterated or have become indistinct, an order may be made, at any time during the present term, for the restoration of such marks without any change of the line. 30

31 31

32 Maryland relied on the charter of 1632 from King Charles I to Lord Baltimore, which also included the Potomac River, although the precise scope of the grant remained in dispute. In her Constitution of 1776, Virginia ceded ownership of the River to Maryland to the extent the River was included in Maryland's 1632 charter. Importantly for our purposes, Virginia specifically excepted from her cession "the free navigation and use of the rivers Potowmack and Pocomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon." In October of that same year, Maryland passed a resolution at a convention of her constitutional delegates that rejected the reservation in Virginia's Constitution. The unanimous convention asserted Maryland's "sole and exclusive jurisdiction" over the River. Maryland and Virginia appointed commissioners, who, at the invitation of George Washington, met at Mount Vernon in March The Mount Vernon conference produced a binding compact (1785 Compact) between the States, which was subsequently ratified by the Maryland and Virginia Legislatures. The 1785 Compact's 13 articles provided, inter alia, that the River "shall be considered as a common highway, for the purpose of navigation and commerce to the citizens of Virginia and Maryland" 32