The controlling consideration which fixes the jurisdiction between neighboring States bordering on a navigable stream “is that which preserves to each State equality in the right of navigation in the river." 10 The rule as to what constitutes a navigable stream or lake was reaffirmed in a decision by the U.S. Supreme Court dated February 1, 1926 as follows: Streams or lakes * are navigable *** when they are used or susceptible of being used in their natural or ordinary condition as highways for commerce * whether by steamboats, sailing vessels, or flat boats [270 U.S. 49]. By common law, only arms of the sea and streams where the tide ebbs and flows are deemed navigable. (140 U.S. 383.) The terms "thalweg," "fairway," "midway," or "main channel” are used in the definition of water boundaries between States, meaning the middle or deepest or best navigable channel. They are applied to water boundaries in sounds, bays, straits, gulfs, estuaries, and other arms of the sea, also to boundary lakes and land-locked seas in which there is a deep-water sailing channel. The middle of the channel refers to the space within which ships can and usually do pass. This may be and often is midway between the two banks. It is not necessarily the deepest channel, which may be so crooked that it can not be used."1 The true water boundary lines for Mississippi River States are lines along the middle of the main channel of navigation as it existed in 1783, subject to such changes as have occurred since that time through natural and gradual processes [246 U.S. 158]. For States bordering on the Mississippi the terms "middle of the Mississippi River," "middle of the main channel of the Mississippi River," "the center of the main channel of that river" are synonymous [147 U.S. 11]. Changes in rivers caused by the works of man do not change boundaries. The building of docks or other structures in a river does not work an alteration in a boundary line, nor does it affect the sovereignty of the State over the area occupied by such structures. * * * He who owns submerged land owns the land reclaimed.12 Each State may establish rules of property over land which emerges on either side of an interstate boundary stream, but such rules extend to the interstate boundary line only [246 U.S. 176]. 10 143 U.S. 359-367; 147 U.S. 7-13; 202 U.S. 149; 211 U.S. 127-134; 214 U.S. 205, 215; 246 U.S. 158; 247 U.S. 461; 250 U.S. 39; 252 U.S. 282; 259 U.S. 572. Convention with Mexico, Nov. 12, 1884, Art. I. See Opinions of the Attorney General, 1856, v. 8, p. 175-180, for many references to these rules in international law. 11 147 U.S. 1. For many references to court decisions regarding water boundaries, see Hyde (1922, v. 1, p. 243–248) and Clark (1922, p. 38 and chap. 14). 12 See brief for the United States in Marine Railway & Coal Co. v. the United States, U.S. Supreme Court, October term, 1920, p. 70, 155. In a case regarding title to land along a tidal stream in a newly created State, the U.S. Supreme Court decided (3 Howard 212; 9 Howard 471; 13 Howard 25) that the shores of navigable rivers and the soil under them up to high-water mark belong to the adjoining State, not to the United States, but this general rule may be modified by treaty, by statute, or by agreement between States when approved by Congress.13 Grants of land by the United States bordering on navigable waters extend to the mean high-water line, but State laws differ in this respect. When a State is admitted to the Union it becomes vested with the title to lands under navigable waters up to mean high-water mark,1 but title to the beds of nonnavigable rivers remained in the United States when new States were organized from areas that were formerly public land (283 U.S. 66). State laws cannot affect titles vested in the United States (283 U.S. 75). What constitutes the high-water line on the shores of oceans, lakes, and rivers has been the subject of a great many court decisions (156 Wisconsin 261, 272. See also 258 U.S. 574), which may be summarized as follows (Johnson, 1919, p. 160): 15 The point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. The following are Supreme Court definitions: The bed of the river includes * ** all of the area which is kept practically bare of vegetation by the wash of the waters of the river from year to year *; although parts of it are left dry for months at a time. *** The bank of the river [the Red River] * * * is the water-washed and relatively permanent elevation or declivity [commonly called a cut bank] at the outer line of the river bed which separates the bed from the adjacent upland *** and serves to confine the waters within the bed ***. The boundary intended is on and along the bank at the average or mean level attained by the waters when they reach and wash the bank without overflowing it. [Oklahoma v. Texas [Red River boundary case], 260 U.S. 632, 645.] The shoreline is "the line which is washed by the water wherever it covers the bed of the river within its banks" (13 Howard 418. See also 5 Wheaton 379). It lies "along the bank at the mean level attained by the waters of the river when they reach and wash the bank without overflowing it." 16 13 See Opinions of the Attorney General, 1856, v. 8, p. 443; 94 U.S. 324; 138 U.S. 226; 255 U.S. 56; and Clark (1922, p. 295). 14 140 U.S. 371; 94 U.S. 325. Riparian rights of individuals differ in different States and are not well defined. Riparian rights in England and Canada are ably described in Canadian Surveyor, July 1931, p. 7–16. 15 For references to the meaning of shore and shoreline, see 224 Illinois 43; 79 North Eastern 296, 1907; 12 Lawyer's Reports Annotated, new ser., 687, 1908; 53 Arkansas 314, 1890; 13 South Western 931, 1890; 8 Lawyer's Reports Annotated, 559, 1890. 18 See opinion of the attorney general of the State of New York, Sept. 30, 1925, on the meaning of the "line of high water"; which includes references to many decisions. The question has often been asked whether a boundary defined by statute or treaty, as on a specified parallel of latitude or meridian of longitude, should be located by direct astronomic observations or from geodetic computations giving a mean position derived from a great number of observations. It has generally been agreed that an astronomic location is the proper one, but astronomic and geodetic positions may differ materially. For example the astronomic stations on the 49th parallel boundary east of the Rocky Mountains vary from 6 seconds north to 8 seconds south of the mean parallel of latitude-a range of more than a quarter of a mile. It seems likely that for future surveys geodetic positions will be used wherever available.17 17 Differences between astronomic and geodetic values for the same position on the earth's surface are often a cause of confusion. An adjustment of the triangulation net across the United States, connecting many accepted astronomic stations, resulted in the adoption of the U.S. Standard Datum. When this horizontal datum was accepted by Canada and Mexico, and their own positions connected to it, it was renamed the North American Datum. After a general adjustment by the U.S. Coast and Geodetic Survey, a new datum was adopted, called the 1927 North American Datum, usually referred to as 1927 N.A.D. A point in Kansas was held fixed. The shift necessary to convert geodetic coordinates from the old to the new datum varies from zero to about 100 feet in latitude and a similar amount in longitude. The displacement increases with the distance from the fixed point. In this publication, 1927 N.A.D. values are so labeled. They are used where they are available or where the conversion is practical. No change is made where it is desirable to retain the historical value or where the accuracy of the original determination does not warrant it. All boundary lines should be well marked, the size and character of the marks depending on the importance of the line. (See figs. 1, 2.) Many State boundaries, even some run in recent years, have been very inadequately marked, by blazes on trees or by stones so small that they could be easily carried off. Hundreds of thousands of dollars spent in litigation and in the resurvey of old lines would have been saved had the lines been properly marked when first run. Many lines have marks at intervals of 1 mile. A better rule to follow is to place the marks in such a way that from any one of them two others may be seen; therefore, all obstructing trees and brush should be cleared away. Marks should also be placed at road crossings and other important points. 17 For a discussion of this subject, see U.S. Cong. (1877, p. 260, 261, 267). See also Hodgson and others (1926, p. 1699) and Sweitzer (1927, p. 428). |