cast of the mouth of the north fork of Red If, as asserted by the state, this case should river, as now known, is conclusive upon both governments, their privies and successors. If this position b this position be sound, the case is for the state; for it is conceded that the entire territory in dispute ute is west of the 100th meridian, as that meridian appears on the Melish map of 1818, although it is, beyond all question, east of the true 100th meridian astronomically located and as long recognized both by the United States and Texas. The state's answer thus presents this issue: "That the line of said 100th meridian of longitude west from London, as laid down in said map of Melish, intersects the Rio Roxo, or Red river, a distance of many miles east of what is claimed by the complainant to be the true line of said meridian, and many miles east of the point where the Kecheahquehono [Prairie Dog Town fork of Red river] empties its waters into the Rio Roxo of the treaty; and said meridian so laid down on Melish's map and extended north to the 42d parallel of north latitude includes, as territory properly belonging to and conceded to Spain under the terms of the treaty, and belonging of right to Texas by virtue of the establishment of her independence, a large part of the lands now belonging to the Chickasaw and other tribes of Indians, under concessions by treaty, as well as a portion of the present states of Kansas and of Colorado, and a part of the territory of Nero Mexico. Defendant shows that long before andafter the date of said treaty of 1819 the King 36] of Spain claimed all this territory *lying west of said 100th meridian of longitude and south of said 42d parallel of latitude as laid down upon Melish's map; and in effectuation be determined upon the basis that the 100th meridian is where the Melish map located it, and not where it is in fact, this court may well decline to recognize a claim attended with such grave consequences as those suggested by the answer, unless it be clearly established. Undoubtedly, the intention of the two governments, as gathered from the words of the treaty, must control; and the entire instrument must be examined in order that therealintention *of the contracting parties may be ascer- [37 tained. 1 Kent, Com. 174. For that purpose the map to which the contracting parties referred is to be given the same effect as if it had been expressly made a part of the treaty. McIver v. Walker, 13 U. S. 9 Cranch, 173 [3: 694], 17 U. S. 4 Wheat. 444 [4:611]; Noonan v. Braley, 67 U. S. 2 Black, 499 [17: 278]; Cragin v. Powell, 128 U. S. 691, 696 [32: 566, 567]; Jefferis v. East Omaha Land Co. 134 U. S. 178, 194 [33: 872, 878]. But are we justified, upon any fair interpretation of the treaty, in assuming that the parties regarded that map as absolutely correct in all respects, and not to be departed from in any particular or under any circumstances? Did the contracting parties intend the words of the treaty should be literally followed, if by so doing the real object they had in mind would be defeated? The boundary line was to begin at the mouth of the river Sabine, and continue north along the western bank of that river to the 32d degree of latitude. Was it intended that the Melish map should control in fixing the point where the Sabine river met that degree of latitude? Was the line due north from Sabine river to Red river to begin at the of such claim exercised repeated acts of own-intersection of Sabine river with the true 32d ership and dominion over the same, without degree of latitude, or where Melish's map inquestion; and after securing her independence dicated the place of such intersection? The not and could not know that it was accurate | debts, and for compensation or indemnity for and establishment as an independent nation, the United Mexican States likewise asserted their dominion and authority over said territory; and Texas, both as a separate Republic and as a state of the Union, has claimed and exercised complete ownership and dominion over said territory, including the territory now In controversy, by occupation of said territory by her armies, and by extending the operations of her laws over the same, and by various other acts and declarations, until the happening of the matters and things now here to be shown and set forth." Referring to the pleadings and to the act of Congress of January 31, 1885, in which the terms of the treaty are recited, and which directs the commissioners appointed under it to "mark the point where the 100th meridian of longitude crosses Red river, in accordance with the terms of the treaty," the counsel for the state says: "But if the intersection of the 100th meridian of longitude with the parallel 36° 30′ north latitude, constituting the beginning of the north boundary line of Texas under the act of 1850 [9 Stat. at L. 446, chap. 49], shall be held to mean the actual and not the Melish intersection, it does not follow that the actual and not the Melish 100th meridian constitutes the eastern boundary line of the state. Nor is the situation altered by the fact that this construction will leave for future determination the ownership of a portion of the northeastern territory." two governments certainly intended that the line should be run from the Gulf along the western bank of the Sabine river, and after it reached Red river that it should follow the course of that river, leaving both rivers within the United States. But it cannot be supposed that they had in view the intersection of Sabine river with any degree of latitude other than the true 32d degree of latitude, nor the crossing of the line extending along the Red river westward with any meridian of longitude other than the true 100th meridian. The 4th article of the treaty shows that the contracting parties contemplated that the line should be fixed with more precision than it was then possible to do; and to that end provision was made for the appointment of commissioners and surveyors, who should run and mark it, and designate exactly the limits of both nations, -the results of such proceedings, it was declared, to be considered part of the treaty, having the same force as if *inserted therein. [38 Melish's map of 1818 was taken as a general basis for the adjustment of boundaries, but the rights of the two nations were made subject to the location of the lines with more precision, at a subsequent time, by commissioners and surveyors appointed by the respective governments. So far as is disclosed by the diplomatic correspondence that preceded the treaty, the negotiators assumed for the purposes of a settlement of their controversy that Melish's map was, in the main, correct. But they did in all respects. Hence they were willing to take it as the basis of a final settlement, the fixing of the line with more precision, and the designating of the limits of the two nations with more exactness, to be the work of commissioners and surveyors, who were to meet at a named time, and the result of whose work should become a part of the treaty. While the line agreed upon was, speaking generally, to be as laid down on Melish's map, it was to be fixed with more precision, and designated with more exactness, by representatives of the two nations. But there is another and perhaps stronger view of this question, and which is equally conclusive even if the 100th meridian originally contemplated by the treaty of 1819 were assumed to have been the erroneous meridian line of Melish's map. This view rests upon the official acts of the general government and of Texas, and requires that the present controversy shall be determined upon the basis that the line, which by the treaty was to follow "the course of the Rio Roxo westward," extends to the true 100th meridian, thence by a line due north. As heretofore stated, the Republic of Texas, by an act passed December 19, 1836, declared that its civil and political jurisdiction extended to the following boundaries: Beginning at the mouth of the Sabine river and running along the Gulf of Mexico 3 leagues from the land, to the mouth of the Rio Grande; thence up the principal stream of the latter river to its source; thence due north to the 42d degree of north latitude; thence "along the boundary line as defined in the treaty between the United 39] States and Spain, to the beginning." The President of that Republic was authorized and required by the same act to open a negotiation with the United States to ascertain and define the boundary as agreed upon in that treaty. 1 Sayles, Early Laws of Texas, art. 257. This boundary had not been defined when Texas was admitted as a state into the Union, with the territory "properly included within and rightfully belonging to the Republic of Texas." The settlement of that question, together with certain claims made by Texas against the United States, were among the subjects that engaged the attention of Congress during the consideration of the various measures constituting the compromises of 1850. The result was the passage of the above act of September 9, 1850, chap. 49, the provisions of which were promptly accepted by the state of Texas. This legislation of the two governments constituted a convention or contract in respect of all matters embraced by it. The settlement of 1850 fixed the boundary of Texas "on the north" to commence at the point at which the 100th meridian intersects the parallel of 36° 30 north latitude, and from that point the northern line ran due west to the 103d meridian, thence due south to the 32d degree of north latitude, thence on that parallel to the Rio Bravo del Norte, and thence with the channel of that river to the Gulf of Mexico. Texas, in the same settlement, ceded its claim to territory exterior to the limits and boundaries so established, and relinquished all claims upon the United States for liability for its the surrender to the United States of its ships, ports, arsenals, custom-house revenues, arms and munitions of war, and public buildings, with their sites, which became the property of the United States at the time of the admission of the state into the Union. In consideration of that establishment of boundaries, cession of claim to territory, and relinquishment of claims, the United States agreed to pay and has paid to Texas the sum of $10,000,000. 9 Stat. at L. 446. The words "the meridian of 100 degrees west from Greenwich," in the act of 1850, manifestly refer to the true 100th meridian, and not to the 100th meridian as located *on [40 the Melish map of 1818. Theprecise location of that meridian has not been left in doubt by the two governments. The United States has errected a monument at the point where the 100th meridian is intersected by the parallel of 36° 30′ north latitude. This was done many years ago, upon actual survey, and Texas has, by its legislation, often recognized the true 100th meridian to be as located by the United States. Looking at the above map of 1892, it will be seen that the counties of Lipscomb, Hemphill, Wheeler, Collingsworth, and Childress are all immediately west of the 100th meridian. These counties were established in 1876. 3 Sayles, Early Laws of Texas, art. 4285. The boundaries of each, as defined in the legislative enactments of Texas, are given in the margin. It will be seen that the eastern boundary of each county is the 100th meridian. By the act creating Lipscomb county, its boundary immediately south of the parallel of 36° 80′ north latitude begins "at a monument +The county of Lipscomb.-Beginning at a monument on the intersection of the 100th meridian and the 36t degree of latitude, 1,629 feet north of the 132d mile post on the 100th meridian; thence west 30 miles to the 30th mile post on the 36t degree of latitude; thence south 30 miles and 1,629 feet; thence east 30 miles to the 102d mile post; thence north 30 miles and 1,629 feet to the beginning. The county of Hemphill.-Beginning at the northeast corner of Roberts county and the southeast corner of Ochiltree county and southwest corner of Lipscomb county; thence east 30 miles to the southeast corner of Lipscomb county, to the 1024 mile post on the 100th meridian; thence south 30 miles to the 72d mile post; thence west 30 miles to the southeast corner of Roberts county; thence north 30 miles to the place of beginning. The county of Wheeler.-Beginning at the 72d mile post, on the 100th meridian, the southeast corner of Hemphill county; thence west 30 miles to the southwest corner of Hemphill county and the southeast corner of Roberts county: thence south 30 miles: thence east 30 miles to the 42d mile post. on the 100th meridian; thence north 30 miles to the place of beginning. The county of Collingsworth.-Beginning at the northeast-corner of Donley county and southeast corner of Gray county and southwest corner of Wheeler county: thence east 30 miles to the south east corner of Wheeler county at the 42d mile post, on the 100th meridian; thence south 30 miles; thence west 30 miles to the southeast corner of Donley county: thence north 30 miles to the place of beginning. The county of Childress.-Beginning at the southeast corner of Collingsworth county at the 12th mile post, on the 100th meridian; thence west 23 miles; thence south 30 miles; thence east about 35 miles to the new west line of Hardeman county; thence north to Pairie Dog Town river; thence up said river to the initial monument on the 100th meridian; thence north to the 12th mile post at the place of beginning. 8 Sayles, Early Laws of Texas, art. 4285. UNITED STATES V. STATE OF TEXAS. 1895. on the intersection of the 100th meridian and convention or contract between the United the 36 degrees of latitude." That monument States and Texas, as embraced in their respectis the one established by the United States ive enactments of 1850, together with the after the settlement of 1850. Peculiarly significant is the boundary of Childress county, one of the lines of which runs up Prairie Dog Town river-which river, the United States insists, constitutes the southern boundary of 41] *the territory in dispute "to the initial monument on the 100th meridian." The "initial monument" here referred to was erected in 1857 under the authority of the United States to mark the place where, as its representatives then and have ever since claimed, the line, "following the course of the Rio Roxo westward," crossed the 100th meridian. It thus appears that the two governments, with knowledge that the treaty of 1819 referred to Melish's map of 1818, have, by official action, declared that the 100th meridian is located on the line that marks the eastern boundaries of the counties of Lipscomb, Hemphill, Wheeler, and Collingsworth, in the state of Texas. Besides, the proof in the cause leaves no room to doubt that the true 100th meridian is, as shown by the above map of 1892, immediately east of those counties. The acts of the two governments and the evidence therefore concur in showing that the 100th meridian is not correctly delineated on the Melish map of 1818. And in the above settlement of a part of the boundary lines between the United States and Texas, the two governments have accepted the true 100th meridian and discarded the Melish 100th meridian. Giving effect to the compromise act of 1850, the suggestion that the 100th meridian must be taken, in the present controversy, to be as located on the Melish map of 1818, is wholly inadmissible. It cannot be supposed 42] that the United States *would have agreed to pay $10,000,000 to the state of Texas, as pro: vided in the act of 1850, if it had been suggested that any dispute in respect of boundary not covered by that act, and so far as such dispute depended upon degrees of longitude, was to be determined otherwise than by reference to the true 100th meridian. Assuming that the two governments did not intend by the settlement of 1850 to fix the point where the line "following the course of the Rio Roxo westward" crossed the 100th meridian, nevertheless it is inconceivable that the two governments intended that, in establishing the boundary of Texas "on the north," the 100th meridian mentioned in the enactment of 1850 should be the true 100th meridian, but that the state should be at liberty to insist, in respect of its boundary along Red River, that the 100th meridian be taken to be as delineated on the Melish map, and thereby obtain all the land, within the limits of Indian territory, between the true 100th meridian and the Mel ish 100th meridian. We have said that the treaty itself, upon a reasonable interpretation of its provisions, left it open to the contracting parties, through commissioners and surveyors, to fix the lines with precision, and therefore to show, by competent evidence, where the true 100th meridian was located. But if this were not so, we should feel obliged to hold that the 162 U. S. U. S., Book 40. subsequent acts of the two governments, require in the determination of the present controversy that the 100th meridian mentioned in the treaty of 1819 be taken to be the true 100th meridian, and consequently that the line "following the course of the Rio Roxo westward to the degree of longitude 100 west from London" must go, and was intended to go, to the true or actual 100th meridian, and not stop at the Melish 100th meridian. So that the real question for solution is whether, as contended by the United States, the line "following the course of the Rio Roxo westward to the degree of longitude 100 west from London" meets the 100th meridian at the point where *Prairie Dog Town fork of [43 Red river crosses that meridian, or whether, as contended by the state, it goes northwestwardly up the north fork of Red river until that river crosses the 100th meridian many miles due north of the initial monument established by the United States in 1857. Upon this point the evidence is very voluminous. Much of it, we feel constrained to say, is of little value, and tends only to confuse the mind in its efforts to ascertain what was within the contemplation of the negotiators of 1819. It is a matter of regret that the question now presented, involving interests of great magnitude, should not have been determined, in some satisfactory mode, before or shortly after Texas was admitted as one of the states of the Union. It has remained unsettled for so long a time that it is not now so easy of solution as it would have been when the facts were fresh in the minds of living witnesses who had more intimate knowledge of the circumstances than any one can now possibly have upon the most thorough investigation. Before looking at the Melish map of 1818, it will be proper to inquire as to the general course of Red river, so far as any information had been given to the public prior to the making of that map. Probably the most trustworthy publication on the subject is Pike's "Account of Expeditions to the Sources of the Mississippi and through the Western Parts of Louisiana to the Source of the Arkansaw, Kans, La Platte, and Pierre Juan Riv. ers, Performed by Order of the Government of the United States, During the Years 1805, 1806, and 1807; and a Tour through the Interior Parts of New Spain, when Conducted through these Provinces by Order of the Captain General in the Year 1807." This work was copyrighted in 1808 and published at Philadelphia in 1810. It was illustrated by numerous charts, copies of which constitute the two [four] pages following this page-one of them being "A Chart of the Internal Part of Louisiana," the other, "A Map of the Internal Provinces of New Spain." Those charts show a large river called Red river, extending from a point near Santa Fé, between latitude 37° and 38°, across what is now the state of Texas, passing Natchitoches, Louisiana. Both show a chain of mountains *running north and [48 south, marked on one chart as capped mountains, very high." 55 "White snow 881 |