of both streams. This evidence is in a measure confirmed by a clause in the West Virginia State Constitution of 1872, which is as follows:

The State of West Virginia includes the bed, bank and shores of the Ohio river, and so much of the Big Sandy river as was formerly included in the commonwealth of Virginia.

Virginia at one time owned the entire area of Kentucky and claimed territory north of the Ohio. Many court decisions have fixed the low-water line on the north bank of the Ohio as the boundary resulting from this claim. It therefore seems reasonable to assume that the Kentucky boundary should be so placed as to exclude the bed and shores to low-water mark on the west side of the two streams.

For the history of the settlement of the boundary between Virginia and North Carolina, see North Carolina, pages 149–151.

In 1779 Virginia and North Carolina appointed commissioners to run the boundary line between the two States west of the Allegheny Mountains, on the parallel of 36° 30'. The commissioners were unable to agree on the location of the parallel; they therefore ran two parallel lines 2 miles apart, the northern known as Henderson's line and claimed by North Carolina, the southern known as Walker's line and claimed by Virginia. In the year 1789 North Carolina ceded to the United States all territory west of her present boundaries, and as Tennessee was formed from the ceded territory, this question became one between Virginia and Tennessee.

Commissioners appointed by Virginia and Tennessee to establish the boundary adopted a compromise line. Their report was made in 1803 and was as follows: 74

A due west line equally distant from both Walker's and Henderson's, beginning on the summit of the mountain generally known as White Top mountain, where the northeast corner of Tennessee terminates, to the top of the Cumberland Mountain, where the southwestern corner of Virginia terminates.

This line, which is about a mile north of the Walker line, was marked on trees by five notches arranged in the form of a diamond and is often called the "diamond line." It was adopted by the legislatures of both States in 1803.

In 1871 Virginia passed an act for appointing commissioners to readjust this line. Tennessee the following year passed an emphatic resolution refusing to reopen the question regarding a boundary which she considered "fixed and established beyond dispute for

ever." 75

74 Haywood, John, The civil and political history of Tennessee, p. 9, Knoxville, 1823; reprint, p. 23, Nashville, 1891. For report to the legislature by the Virginia commissioners, Thomas Walker and Daniel Smith, regarding the survey of this line, see idem (reprint), pp. 487-489. The report by the committee of the legislature is on page 497. 7 Tennessee H. Jour. for Mar. 23, 1872, p. 71.

In 1889 Virginia took the matter to the Supreme Court of the United States, which in 1893 decreed that the line as surveyed and marked in 1803 is the true boundary.76

Until 1784 Virginia exercised jurisdiction over a large tract of country northwest of the Ohio River, but by a deed executed March 1, 1784, she ceded to the United States all that territory, thus making the northern part of her western boundary the north and northwest bank of the Ohio.

On December 31, 1862, the State of Virginia was divided, and 48 counties, composing the western part of the State, were made the new State of West Virginia. By an act of Congress in 1866 consent was given to the transfer of two additional counties from Virginia to West Virginia.

The Legislatures of Virginia in 1873 and West Virginia in 1877 authorized the appointment of commissions for "ascertaining and locating" the boundary between the two States wherever it was in dispute. Commissions were appointed, and an officer from the Corps of Engineers, United States Army, was detailed to aid in the work. So far as can be learned the survey and marking of this boundary have not been undertaken, and its location can be found only by following the old county lines, descriptions of which are given in the Virginia statutes.

References to the statutes by which the counties of Virginia and West Virginia were created can be found in an article by Morgan P. Robinson." Most of the counties were created prior to 1800, and the references are to Hening's Statutes at Large of Virginia, but there have been many changes since that year.

The Grand Assembly of Virginia, in 1660, enacted that

For the prevention of frequent suits and differences *

all counties

shall ** be limited within certaine naturall bounds * and where naturall bounds are wanting to supply that defect by marked trees, which are to be viewed and renewed every three years by the neerest bordering inhabitants of each county and parrish in Easter week.78

WEST VIRGINIA

The separation of West Virginia from Virginia was approved by act of Congress of December 31, 1862,79 and the new State was admitted to the Union by presidential proclamation dated April 20,

76 See 148 U. S. 528. For historical description and plat of the line consult records of the court for the October term, 1891; for geographic positions on the line see p. 184. For report of commissioners who surveyed the line in 1901-2 see 190 U. S. 64. For original maps of this survey see register No. 2634 of the archives of the Supreme Court. For reference to the Bristol cession see p. 184.

77 Virginia counties-Those resulting from Virginia legislation: Virginia State Library Bull., vol. 9, Nos. 1, 2, and 3, January-July, 1916.

78 Hening, W. W., op. cit., vol. 2, p. 18.

79 12 Stat. L. 633.

1863, effective June 19, 1863.80 It is of historical interest that the name proposed for this State by the convention of 1861 was Kanawha. It originally contained the following counties: Barbour, Boone, Braxton, Brooke, Cabell, Calhoun, Clay, Doddridge, Fayette, Gilmer, Greenbrier, Hampshire, Hancock, Hardy, Harrison, Jackson, Kanawha, Lewis, Logan, McDowell, Marion, Marshall, Mason, Mercer, Monongalia, Monroe, Morgan, Nicholas, Ohio, Pendleton, Pleasants, Pocahontas, Preston, Putnam, Raleigh, Randolph, Ritchie, Roane, Taylor, Tucker, Tyler, Upshur, Wayne, Webster, Wetzel, Wirt, Wood, Wyoming. In 1866, with the consent of Congress,81 West Virginia was enlarged by the two counties of Berkeley and Jefferson, transferred from Virginia.

The boundary between West Virginia and Virginia is made up of boundary lines of the counties above enumerated that border on Virginia and can be defined only by reference to the laws by which these counties were created.82

In the constitution of 1872, after a recapitulation of the counties that were transferred from Virginia to West Virginia, is found the following clause defining the boundaries upon the south and west: 83

The State of West Virginia includes the bed, bank, and shores of the Ohio River and so much of the Big Sandy River as was formerly included in the Commonwealth of Virginia; and all territorial rights and property in, and jurisdiction over the same, heretofore reserved by and vested in the Commonwealth of Virginia, are vested in and shall hereafter be exercised by the State of West Virginia. And such parts of the said beds, banks, and shores as lie opposite and adjoining the several counties of this State, shall form parts of said several counties, respectively.

For a history of the boundaries of West Virginia, see Pennsylvania, pages 122-123; Maryland, pages 120, 122; and Virginia, page 144.

NORTH CAROLINA

In the year 1663 the "first charter" of Carolina was granted, which in 1665 was followed by the "second charter." The following extracts from these two charters define the boundaries.

all that territory or tract of ground scituate, lying and being within our dominions of America, extending from the north end of the island called Lucke island, which lieth in the southern Virginia seas, and within six and thirty degrees of the northern latitude, and to the west as far as the south seas, and so southerly as far as the river St. Matthias, which bordereth upon the coast

80 13 Stat. L. 731.

81 14 Stat. L. 350. See 11 Wallace, 39, for a historical sketch of this addition and court decisions relating thereto.

83 Hening, W. W., Virginia Stat. L. from 1619 to 1792, vol. 2, p. 184, 1821.

83 Thorpe, F. N., op. cit., vol. 7, p. 4034.

84 Idem, vol. 5, p. 2744.

}

Southern Ine of the State of Trgina which begins on the sea degrees thirty minutes nori karude and from thence runs he said Charter of King Churies are the right and property is State, to be held by them in sovereignty: ELT PERIEL 1.De. at of the Legislature of is SEZ & El time thereafter it in anywise no withstanding

rovided din That I she me be construed so as to prevent of one or more governments westward of this State, by gislature:

r 2, 1789. the Legislature of North Carolina passed an the United States the western lands now constituting ennessee. (See £z. 10) On February 25, 1790, the deed nd on April 2. 1791. it was accepted by the United States. vised Statutes of North Carolina the boundaries of the escribed as follows: The north boundary, the parallel the south boundary, a line running northwest from 1, on the coast in latitude 33° 56′, to the parallel of 35o, along that parallel to Tennessee; and the west boundary ky Mountains. The intention had been from the earliest mes to establish the northern boundary upon the parallel '. This is the wording of every legislative act relating to he errors of this boundary are due simply to errors in

g.

ollowing description of the boundary lines of this State and various attempts made to locate them is taken from the of the Geological Survey of North Carolina: 90

rst and only serious attempt to ascertain the northern boundary was ide in 1728 by Col. Wm. Byrd and others, commissioners on the part of > colonies, acting under royal authority. From the account given by of this undertaking, it appears that they started from a point on the whose position they determined by observation to be in 36° 31′ north le, and ran due west (correcting for the variation of the compass), to way [Blackwater] River, where they made an offset" of a half mile to aouth of that stream, again running west. The line was run and marked miles from the coast, to a point in Stokes County, on the upper waters le Dan River (on Peter's Creek), the North Carolina commissioners accomying the party only about two-thirds of the distance. Beyond this point line was carried some 90 miles by another joint commission of the two onies in 1749; this survey, terminating at Steep Rock Creek, on the east Stone Mountain, and near the present northwest corner of the State, estiated to be 329 miles from the coast. In 1779 the line was taken up again t a point on Steep Rock Creek, determined by observation to be on the Darallel of 36° 30' (the marks of the previous survey having disappeared entirely), and carried west to and beyond Bristol, Tenn. This last is known as the Walker line [see p. 143], from one of the commissioners of Virginia.

90 Vol. 1, pp. 2–4, Raleigh, 1875.

91 This break in the line is in accordance with an agreement made in 1727 between the governors of the two colonies. Its measured length is 2,977 feet. For text of the agree ment and abstract of report of the commissioners who ran part of the line in 1779-80 see 148 U. S. 507-510.

267201 O-53-11