the middle of the channel or bed of the River | E-Toney's Point, now washed away. Mississippi." 9 Stat., 140.

tinuous lines represent old banks of the Dotted lines, the present banks. Bepresents made land, timber small: age of er, 25 to 30 years.

I-Accretions on west side of Island, with young timber 25 to 30 years old.

The Congress of the United States, in admitting Missouri into the Union, understands this language as meaning "in the middle of the main channel of the river."

By the middle of the channel is meant the thread of the stream, or filum aquæ; that is, "the middle line between the shores upon each side, without regard to the channel or lowest and deepest part of the stream. And in ascertaining the shores or water lines on each side to measure, it will be proper to find what these lines are when the water is in its natural and ordinary stage, at a medium height, neither swollen by freshets, nor shrunk by drought." Ang. Wat., sec. 10, p. 16, note 2, ed. of 1869.

The constant changes which are taking place in the bed of a river by the operation of natural causes, such as the formation of sand-bars, or excavations caused by accumulation of water in times of flood, would, if any attempt were made to fix and settle the rights of parties according to the quantity of water which flowed nearer one shore than to the other, leave them in a state of constant confusion and uncertainty. Ang. Wat., sec. 101, a, p. 116.

It was this principle which was applied by this court in Harding's Lessee v. Anthony, 5 Wheat., 374.

In this case the defendant's witnesses generally say, that it is only a question of time as to the filling up of the western channel. If so, on the principle above declared, Wolf Island would then become part of Missouri.

In the case of Alabama v. Georgia, 23 How., 505, 515 (64 U. S., XVI., 556, 560), this court define the bed of a river to be "that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn."

Messrs. Garrett Davis, Henry Stanbery, R. Johnson and J. J. Crittenden, for respondent:

Article 7 of the Treaty between France, Spain and England, of date Feb. 10, 1763, is in these words; " In order to establish peace on solid and durable foundations, and to remove forever all subjects of dispute with regard to the limits of the British and French territories on the Continent of North America, it is agreed, that for the future, the confines between His Britannic Majesty and his Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its source to the River Iberville, and from thence by a line drawn along the middle of the river," etc.

Article 4 of the Treaty between Spain and the United States, of date October 20, 1795, contim-tains these words: "It is likewise agreed that the western boundary of the United States, which separates them from the Spanish Colony of Louisiana, is the middle of the channel or the

Coint on Missouri shore now washed off.
harp point of Iron Bank Bluffs, now washed

bed of the River Mississippi, from the northern | sippi River, in the middle of the main channel boundary of the said States to the completion of thereof, to the place of the beginning.' the thirty-first degree of latitude, north of the equator," etc.

The Treaty of Oct. 1, 1800, between Spain and France, has this provision: "His Catholic Majesty promises and agrees to restore to the French Republic, six months after the full and entire execution of the above mentioned conditions and stipulations concerning His Royal Highness, the Duke of Parma, the Colony or Province of Louisiana, with the same extension which it actually has in the possession of Spain, and which it had when possessed by France, and such as it ought to be by virtue of the vari ous treaties made since, between His Catholic Majesty and other States."

In the Treaty between France and the United States, the preceding provision of the Treaty between France and Spain is set forth at length, and is followed by this stipulation: "And whereas, in pursuance of said Treaty, and particularly of the 3d article, the French Republic has an incontestable right to the dominion and to the possession of the territory, the First Consul of the French Republic, desiring to give to the United States a strong proof of his friendship, doeth hereby cede to the United States, in the name of the French Republic, forever and in full sovereignty, the said territory, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French Republic, in virtue of the above men tioned Treaty concluded with His Catholic Majesty."

Missouri must recover upon the strength of her right, the evidence in the case must establish it, and she is not entitled to the judgment of the court, unless the record shows each and all these propositions to be true: (1) That the middle of the main channel of the Mississippi River, in 1820, when Missouri became a State, was east of Wolf Island. (2) That, in 1762, when Louisiana was ceded by France to Spain, the middle of the main channel of the Mississippi River was east of Wolf Island. (3) That, during the long period that Virginia, first a Colony and and then a State, owned and held possession of the country east and up to the Mississippi River, the middle of the main channel of that river was east of Wolf Island. We maintain that the record does not show the truth of all these propositions, or any one of them, and that neither of them is true in fact.

Mr. Justice Davis delivered the opinion of the court:

The purpose of this bill is, to ascertain and establish by a decree of this court, the boundary between the States of Missouri and Kentucky, at a point on the Mississippi River known as Wolf Island, which is about twenty miles below the mouth of the Ohio. The State of Missouri insists that the island is a part of her territory, while the State of Kentucky asserts the contrary. The bill alleges that both States are bounded at that point by the main channel of the river, and that the island, at the time the boundaries were fixed, was and is on the Mis

The Mississippi River, above the parallel of 36° 30', was always the unquestionable bound-souri side of the channel. ary between Louisiana and Virginia, both as a colony and as a State, until the formation of the State of Kentucky, and then between Kentucky and Louisiana; and the Treaties before quoted from, recognize that boundary. But the right and possession of Virginia to the country east of, and to the middle of the Mississippi River, was prior to those Treaties. Virginia was discovered and taken possession of by the English, in 1607-8.

By the definitive Treaty between Great Britian and the United States, in which their sov ereignty and independence are recognized, a portion of their boundary is set forth in this language: "thence along a line to be drawn along the middle of the said Mississippi River, until it shall intersect the northernmost part of the thirty-first degree of north latitude," etc.

The boundary of Virginia, as described in her charter, was not clearly defined, but always, as a colony and a State, her territory and posses sion west was to the Mississippi River, and along that river, from the mouth of the Ohio River to its intersection with the parallel of 36° 30' north latitude.

The right and possession of Virginia to that section of the Mississippi and the country east of it, was prior to the discovery of Louisiana by the French. The ancient right and posses sion of Virginia passed to and continued in Kentucky.

In 1820 Missouri became a State by a descriptive boundary, from which I make this extract: "Thence due east to the middle of the main channel of the Mississippi River; thence down, and following the course of the Missis

The answer states that Kentucky, formed cut of territory originally embraced within the State of Virginia, was admitted into the Union on the first day of June, 1792, and that she 18 always claimed her boundary on the Missis sippi, to the middle of the river as Wolf Island, to be within her jurisdiction and limits, as rived from Virginia. And it denies that island belongs to Missouri, or that the min channel was on the eastern side of it, when boundaries of the State were fixed.

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It is unnecessary, for the purposes of this shit to consider whether, on general principles. middle of the channel of a navigable river whet divides coterminous States, is not the t boundary between them, in the absence of press agreement to the contary, because Treaty between France, Spain and England February, 1763, stipulated that the middle the River Mississippi should be the bound between the British and the French territo on the Continent of North America. And line, established by the only sovereign powe the time interested in the subject, has remə ever since as they settled it. It was re nized by the Treaty of Peace with Great Br of 1783, and by different treaties since then last of which resulted in the acquisition of territory of Louisiana (embracing the cou west of the Mississippi) by the United Stat 1803. The boundaries of Missouri, wher was admitted into the Union as a State in were fixed on this basis, as were those of Ar sas in 1836. 3 Stat. at L., 545; 5 Stat. at L., And Kentucky succeeded, in 1792 (1 Stat. 189), to the ancient right and possession of

I

ginia, which extended, by virtue of these treatics, | his warrant on the island, but surely the State to the middle of the bed of the Mississippi cannot claim that she acquired any right by River. It follows, therefore, that if Wolf this proceeding. There is, therefore, nothing Island, in 1763, or in 1820, or at any intermedi- in this record which shows that Kentucky has ate period between these dates, was east of this not maintained, for a long course of years, exline, the jurisdiction of Kentucky rightfully clusive possession and jurisdiction over this terattached to it. If the river has subsequently ritory and the people who inhabit it. It remains turned its course, and now runs east of the to be seen whether she shall remain in possesisland, the status of the parties to this contro sion and continue to exercise this jurisdiction, versy is not altered by it, for the channel which or whether she shall give way to Missouri. The the river abandoned remains, as before, the case is certainly not without its difficulties, but boundary between the States, and the island we think these difficulties can be removed by a does not, in consequence of this action of the fair examination of the testimony, and the right, water, change its owner. Heffter, p. 143, sec. of the contestants properly determined. 66: Caratheodéry Du Droit Inter., p. 62. The evidence to be considered consists of the That Virginia claimed the ownership os testimony of living witnesses, the physical the island as early as 1782 is very certain, for changes and indications at and above the island, at that date the arable land on it was entered in and the maps and books produced by the comthe proper office of Virginia as vacant land lying plainant. In a controversy of this nature, where within the territorial limits of the State, al state pride is more or less involved, it is hardly though it seems the entry was never surveyed to be expected that the witnesses would all or carried into a grant. And that Kentucky is agree in their testimony. And as this conflict now, and has been for many years prior to the does exist, it is necessary to consider the evicommencement of this suit, in the actual and dence somewhat in detail, in order to justify exclusive possession of the island, exercising the conclusions we have reached concerning it. the rights of sovereignty over it, is beyond dis- There are eight witnesses called for the compute. The island lies opposite to and forms plainant, who testify confidently, that the main part of Hickman County, one of the counties channel of the Mississippi River was always of the State, and the lands embraced in it were, east of Wolf Island, and one of them (Swon), in May, 1837, surveyed under state authority, an experienced river man, who navigated and have since then been sold and conveyed to the river from 1821 to 1851, in all stages the purchasers by the same authority. The of water, says there are no indications that the people residing on it have paid taxes and exer- main channel was ever on the west side. Only cised the elective franchise according to the three of them knew the river prior to 1820, and laws of the State. In 1851, a resident of the they were engaged in the business of flat boatisland was elected to represent the county in ing, which is hardly ever undertaken in a low the General Assembly, and served in that capac- stage of water. There is nothing to show that ity. And as early as 1828, a minor living there any one of them ever made a personal examinawith one Samuel Scott, was bound an appren- tion of the channels and surrounding objects tice to him by the proper court having jurisdic- at this point, and there is a remarkable absence tion of such subjects. This possession, fully of facts to sustain their opinions. It is also noestablished by Acts like these, has never been ticeable, in connection with this evidence, that disturbed. If Missouri has claimed the island to none of the witnesses (Hunter may be an exbe within her boundaries, she has made no at-ception) ever lived in the vicinity of the island, tempt to subject the people living there to her or remained there any length of time, and that laws, or to require of them the performance of all the knowledge any of them acquired of the any duty belonging to the citizens of a State. Nor state of the river was obtained by passing up or has there been any effort on her part to occupy down it at different times, either on flat-boats or the island, or to exercise jurisdiction over it. steamboats. Notwithstanding they swear posiIf there were proof that the island, by legislatively that the channel was always east of the tion, had been included in the limits of New Madrid County, then the service of a writ in 1820, on the solitary settler there, by the sheriff of the county, would be an exercise of sovereign power on the part of the State. But in the absence of this proof, there is nothing to connect the State with the transaction, or from which an inference can be drawn that the sheriff was authorized to go on the island with his process. And for the same reason, it is hard to see how the fact, conceding it to be true, that a person occupying the position of a circuit judge of Missouri, once lived on the island (when or how long we are not informed), tends to show that the State intended to take possession of it.

These things may prove that, in the opinion of the judge and sheriff, the island belonged to Missouri, but they do not go further and put the State in any better position than she was, if they had not occurred. And so with the location of the New Madrid claim in 1821. He, doubtless, believed he had authority to locate

island, yet Watson says it changed for about three years, and Ranney testifies that on one occasion, when the main channel was divided into three parts, the deepest water for a short time in the fall of the year was found on the west of the island, and steamboats passed on that side. But they do not prove a deficiency of water at any time in the Missouri channel, or that any boat, from that or any other cause, was ever hindered in any attempt to run it. It is undoubtedly true that the Kentucky channel, when the river was full, for many years has afforded a safe passage for boats, because at such a time, if the obstructions were not submerged they could be avoided, and navigators would take it, as it was five miles the shortest. passing the river only occasionally, and with out any knowledge of where the volume of water flowed when the river was low, they would naturally conclude it was the main channel. It is equally true that now it is the main highway for the business of the river; but the point to be determined is: was it so as far back as

And

1763, or even 1820? If in the investigation of he kept a wood yard on the Kentucky side opsuch an inquiry, positive certainty is not at posite the island, and missed the opportunity tainable, yet the evidence furnished by the de- of supplying boats that ran the Missouri channel. fendant affords a reasonable solution of it. And there is no one who speaks of a scarcity And, at any rate, it greatly outweighs the evi of water in the Missouri channel, until after dence on the other side, and in such a case the Captain Shreve operated in this locality with party in possession has the better right. The his snag boats, which had the effect of opening proof on behalf of the defendant consists of the and deepening the Kentucky channel, so that it testimony of twenty-seven witnesses. Many has now become the navigable stream. Judge Unof them have been acquainted with the river derwood says that in 1820 the west channel was from an early period in this century, and quite between four and five hundred yards wider than a number have spent their lives near their dis- the east one, and must have discharged nearly puted territory and, therefore, had better op- double the quantity of water. And one witportunities for observing the condition of the ness testifies that the east channel was formerly river at this point than the witnesses for the so narrow that two steamers could not pass in complainant, who only passed there occasion-it abreast. It would seem, therefore, that the ally. Nearly all of them are old men, and condition of this channel, as told by these witthere is no diversity of opinion between them nesses, was proof enough that the main chanconcerning the location of the main channel of nel was west of the island; but this is not all the the Mississippi River at Wolf Island. All who proof on the subject. Russell, who was aptestify on the subject-there are only a few pointed superintendent of river improvements who do not agree that until a comparatively in 1842, and knew the island since 1814, and recent period it ran west of the island, and to spent five months there in 1819, swears that in fortify their opinions they describe the state of descending the river in 1830 or 1831 he sounded the respective channels at different times, and the Kentucky channel and, not finding water tell what was done by themselves or others enough in it by two or three feet to float his about the navigation of the river. They concur boat, was compelled to go down on the Misin saying that in early times it was difficult for souri side, where there was nine or ten feet of flat-boats, even in the highest stage of water, to water. To the same effect is the evidence of get into the Kentucky chute, owing to the cur- Holton, who, in 1828, being unable to get up rent running towards the Missouri side, and the east channel with a steamer drawing upthat if they succeeded in doing it, the naviga- wards of six feet of water, went over to the Mistion was obstructed on account of the narrow souri side and passed through without any and crooked condition of the stream, which trouble. And, three years later, Peebles saw was filled with tow-heads, sand-bars, driftwood, three or four steamers attempt to run up the and rack heaps. One of the witnesses, in de- Kentucky channel, and failing to get through, scribing the appearance of this chute in 1804, back out and easily ascend the other. Christostates that it looked like lowlands, with cotton-pher, who ran the river from 1824 to 1861, on wood and cypress on it, and that there was only a narrow channel close to the island; all the other space to the Kentucky shore, now open water, was then covered with large cottonwood | timber.

Other witnesses corroborate this testimony, and unite in saying that in early times, at an ordinary stage of water, it was impossible to take the Kentucky channel at all, on account of these obstructions, while the Missouri chan nel was wide, deep and unobstructed. And one of them expresses the opinion that in low water anyone could have got to the island from the Kentucky shore without wetting his feet, by crossing the small streams on the driftwood. But we are not left to conjecture on this point, for Ramsey, an old inhabitant of the country, swears that on one occasion he walked over from the Kentucky side to the island, nearly all the way on dry land, and the res idue on driftwood, and noticed while on the island, that there was plenty of water in the Missouri channel.

Can it be possible that such a stream at this time was the main channel of the Mississippi River? Although the Kentucky channel, from natural causes, had improved in 1825, still in the low water of that year it did not have a depth of over two and a half feet nor a width exceeding one hundred and fifty yards, while steamboats passed through the Missouri channel without any difficulty. The witness who testifies to this state of things, at that time, had his attention especially called to the subject as

one occasion could not pass the bar at the foot of the Kentucky chute with a boat drawing twelve feet of water, and was compelled to change to the other side, and got up without any difficulty; and there are other witnesses who testify to the inability of boats to pass east of the island, and to their safe passage west of it. Indeed, the concurrent testimony of all the persons engaged in the navigation of the river is, that they could never safely go east of the island, unless in high water, and that they uniformly took the west channel in dry seasons; and the flat-boat men, in early times, even in high water, were frequently compelled to uncouple their boats in order to descend the Kentucky channel, and then were obliged to pull through by trees, on account of the narrowness of the channel. In low water they would quite often get aground and have to wait for a rise of the river to take them out. It will readily be seen that this class of men would naturally take risks in order to save five miles of navigation. Moseby, who has lived in the vicinity for fortytwo years, testifies to the greater volume of water in the Missouri channel, and to boats usually taking it; and all the witnesses agree that since they knew the river the chutes around the island have undergone great changes, and that the east one is now, in depth, width and freedom from obstructions, wholly unlike what it was formerly. In this state of proof, how can it be successfully contended that Missouri has any just claim to the island?

But there is additional proof growing out of

certain physical facts connected with this lo- | have operated to straighten the banks above cality which we will proceed to consider. Isl- the island on the Kentucky side, to bring the ands are formed in the Mississippi River by water closer to them and, as a consequence, to accretions produced by the deposit at a partic- cast it into the east channel. And that before ular place of the soil and sand constantly float- these projecting points were removed and the ing in it, and by the river cutting a new chan- accretions made at Town Creek, the water was nel through the mainland on one or the other thrown towards the Missouri side. This was of its shores. The inquiry naturally suggests necessarily so, as can readily be seen by an initself: of which class is Wolf Island? If the spection of the map. In the original condilatter, then the further inquiry whether it was tion of the river, the current must have been detached from Missouri or Kentucky. The carried from the Missouri point to the Iron evidence applicable to this subject tends strong- Banks opposite, and rebounded from them ly to show that the island is not the result of across to the Missouri side, so as to carry the accretions, but was once a part of the main channel west of Wolf Island. And it is equally land of Kentucky. Islands formed by accre- clear that the changes which have occurred tions are, in river phraseology, called made within this century have straightened the river land, while those produced by the other proc and turned the channel to the east of the isless necessarily are of primitive formation. It and. Can there be any need of further eviis easy to distinguish them on account of the dence to sustain the long continued possession difference in their soil and timber. of Kentucky to the island, and are not the witnesses who swear that in their time the main channel of the Mississippi River ran west of Wolf Island abundantly fortified?