are cited. I think the better deduction from them is that they only declare the constant integrity of the shore, and the dominion of the government over it whether it recede or advance. When it ceases to be washed by the tides or the seas it becomes part of the upland and belongs to the owner of the upland. And this is but the application of the principle, said to be of natural justice, that he who loses by the encroachments of the sea should gain by its recession. Banks v. Ogden, 2 Wall. 57, 67, 17 L. Ed. 818.17

SECTION 2.-BOUNDARIES

I. RIVERS 18

HANDLY'S LESSEE v. ANTHONY.

(Supreme Court of the United States, 1820. 5 Wheat. 374, 5 L. Ed. 113.)

Mr. Chief Justice MARSHALL delivered the opinion of the court. This was an ejectment brought in the Circuit Court of the United States for the District of Kentucky, to recover land which the plaintiff claims under a grant from the State of Kentucky, and which the defendants hold under a grant from the United States as being part

17 The passage to which Mr. Justice McKenna refers is as follows: "The rule governing additions made to land, bounded by a river, lake, or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient, that insensible additions to the shore should follow the title to the shore itself.

"There is no question in this case that the accretion from Lake Michigan belongs to the proprietor of land bounded by the lake. The controversy turns on ownership." Per Mr. Chief Justice Chase in Banks v. Ogden, 2 Wall. 57, 67, 17 L. Ed. 818 (1864).

For more elaborate treatment of the doctrine of accretion, see New Orleans v. United States, 10 Pet. 662, 9 L. Ed. 573 (1836); County of St. Clair v. Lov ingston, 23 Wall. 46, 23 L. Ed. 59 (1874).

18 "It seems difficult upon principle to support the right to the free use of rivers as a right stricti juris. While this is not expressly admitted, it is tacitly conceded by nearly all the advocates. They define this right of use as an 'imperfect right.' The term is an anomaly. The fallacy is thus aptly stated by a learned authority on international law: 'A right, it is alleged, exists; but it is an imperfect one, and therefore its enjoyment may always be subjected to such conditions as are required in the judgment of the state whose

of Indiana. The title depends upon the question whether the lands lie in the State of Kentucky, or in the State of Indiana.

At this place, as appears from the plat and surveyor's certificate, the Ohio turns its course, and runs southward for a considerable distance, and then takes a northern direction, until it approaches within less than three miles, as appears from the plat, of the place where its southern course commences. A small distance above the narrowest part of the neck of land which is thus formed, a channel, or what is commonly termed in that country a bayou, makes out of the Ohio, and enters the same river a small distance below the place where it resumes its westward course. This channel, or bayou, is about nine miles by its meanders, three miles and a half in a straight line, and from four to five poles wide. The circuit made by the river appears to be from fifteen to twenty miles. About midway of the channel two branches empty into it from the northwest, between six and seven hundred yards from each other; the one of which runs along the channel at low water, eastward, and the other westward, until they both enter the main river. Between them is ground over which the waters of the Ohio do not pass until the river has risen about ten feet above its lowest state. It rises from forty to fifty feet, and all the testimony proves that this channel is made by the waters of the river, not of the creeks which empty into it. The people who inhabit this peninsula, or island, have always paid taxes to Indiana, voted in Indiana, and been considered as within its jurisdiction, both while it was a territory, and since it has become a state. The jurisdiction of Kentucky has never been extended over them.

The question whether the lands in controversy lie within the State

property is affected, and for sufficient cause it may be denied altogether.' Hall, p. 140.

"Woolsey terms it 'only a moral or imperfect right to navigation.' "However, it is no longer to be doubted that the reason of the thing and the opinion of other jurists, spoken generally, seem to agree in holding that the right can only be what is called (however improperly) by Vattel and other writers imperfect, and that the state through whose domain the passage is to be made 'must be the sole judge as to whether it is innocent or injurious in its character.' Phillimore, CLVII, citing Puffendorf, Wheaton's Elements of International law, Hesty's Law of Nations, Wolff's Institutes, and Vattel." Per Duffield, Umpire, in The Faber Case, German-Venezuelan Commission of 1903, Ralston's Reports of Venezuelan Arbitrations, 600, 630 (1903). The Faber Case decided in effect, as stated by the headnote, that: "States through the territory of which navigable streams flow, although these streams rise in the territory of other states, have the right to close these rivers to navigation at their discretion, and no appeal will lie therefrom. This doctrine would seem to apply even though these rivers emptied directly into the sea, instead of debouching into an inland lake, as in the case under consideration, wholly within the territory of the state seeking to control the navigation of these rivers. This doctrine being applicable to the inhabitants of the state at the headwaters of the streams is all the more applicable to domiciled foreigners."

This case contains a citation of authorities and numerous quotations from publicists of international standing.

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."

In September, 1780, Congress 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." 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." One of these conditions is, "that the ceded territory shall be laid out and formed into states." Congress accepted this cession, but proposed some small variation in the conditions, which was acceded to; and in 1783 Virginia passed her act of confirmation, giving authority to her members in Congress to execute a deed of conveyance.

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.

At the trial, the counsel for the defendants moved the court to instruct the jury, 1. That the lessor of the plaintiff cannot recover, the land in contest not being at any time subject to the laws of Kentucky, but to those of Indiana. 2. Because the evidence does not show that the land is within the limits of the state of Kentucky. The court instructed the jury, that, admitting that the western and north-western boundary of Kentucky included all the islands of the Ohio, and extended to the western and north-western bank of the Ohio, yet no land could be called an island of that river, unless it was surrounded by the waters of the Ohio at low-water mark; and to low-water mark only, on the western or north-western side of the Ohio, did the boundaries of the state of Kentucky extend. The counsel for the plaintiff excepted to this opinion, and then moved the court to instruct the jury, that if they found the land in question was covered by the grant to the lessor of the plaintiff, and that it was surrounded by a regular water-channel of the Ohio on the north-western side, and was, at the mid

dle and usual state of the water in Ohio, embraced and surrounded by the water of the Ohio flowing in said channel, it was an island, and within the state of Kentucky. But the court refused to give the instructions aforesaid, but instructed the jury, that if the water did not run through said channel at low water, but left part thereof dry, it was not an island, nor within the state of Kentucky. To this opinion, also, the counsel for the plaintiff excepted. The jury found a verdict for the defendants, on which the court rendered judgment, which judgment is now before this court on a writ of error.

The two exceptions present substantially the same questions to the court, and may therefore be considered together. They are, whether land is properly denominated an island of the Ohio, unless it be surrounded with the water of the river, when low? and whether Kentucky was bounded on the west and northwest by the low water mark of the river, or at its middle state? or, in other words, whether the state of Indiana extends to low-water mark, or stops at the line reached by the river when at its medium height?

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 bé 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 newly created state extends to the river only. The river, however, is its boundary.

"In case of doubt," says Vattel, "every country lying upon a river, is presumed to have no other limits but the river itself; because nothing is more natural than to take a river for a boundary, when a state is established on its border; and wherever there is a doubt, that is always to be presumed which is most natural and most probable."

"If," says the same author, "the country which borders on a river, has no other limits than the river itself, it is in the number of territories that have natural or indetermined limits, and it enjoys the right of alluvion." Lib. 1, c. 22, § 268.

Any gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana, and it is not very easy to distinguish between land thus formed, and land formed by the receding of the

water.

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. It is founded on common convenience. 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, 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 lowwater mark.

The opinions given by the court must be considered in reference to the case in which they were given. The sole question in the cause respected the boundary of Kentucky and Indiana; and the title depended entirely upon that question. The definition of an island which the court was requested to give, was either an abstract proposition, which it was unnecessary to answer, or one which was to be answered according to its bearing on the facts in the cause. The definition of an island was only material so far as that definition might aid in fixing the boundary of Kentucky. In the opinion given by the court on the motion made by the counsel for the defendants, they say that "no land can be called an island of the Ohio, unless it be surrounded by the waters of that river at low-water mark." We are not satisfied that this definition is incorrect, as respected the subject before the court; but it is rendered unimportant, by the subsequent member of the sentence, in which they say, "that to low-water mark only, on the western and northwestern side of the Ohio, does the state of Kentucky extend."

So, in the motion made by the counsel for the plaintiff, the court. was requested to say, that if the waters of the Ohio flowed in the channel, in its middle and usual state, it was not only an island, but "within the state of Kentucky."

If the land was not within the state of Kentucky, the court could