136 U.S.

479
10 S.Ct. 1051
34 L.Ed. 329

STATE OF INDIANA
v.
STATE OF KENTUCKY.
May 19, 1890.

[Statement of Case from pages 479-481 intentionally omitted]

J. E. McDonald, M. M. Butler, and A. H. Snow, for complainant.
[Argument of Counsel from pages 482-502 intentionally omitted]
Proctor Knott and P. W. Hardin, for defendant.
FIELD, J.

This is a controversy between the state of Indiana and the state of Kentucky,
growing out of their respective claims to the possession of, and jurisdiction
over, a tract of land nearly five miles in length and over half a mile in width,
embracing about 2,000 acres, lying on what is now the north side of the Ohio
river. Kentucky alleges that when she became a state, on the 1st of June, 1792,
this tract was an island in the Ohio river, and was thus within her boundaries,
which had been prescribed by the act of Virginia creating the district of
Kentucky. The territory assigned to her was bounded on the north by the
territory ceded by Virginia to the United States. The tract in controversy was
then, and has ever since been, called 'Green River Island.' Kentucky founds her
claim to its possession, and to jurisdiction over it, upon the alleged ground that
at that time the River Ohio ran north of it, and her boundaries extended to lowwater mark on the north side of the river, also upon her long undisturbed
possession of the premises, and the recognition of her rights by the legislation
of Indiana. Indiana rests her claim, also, upon the boundaries assigned to her
when she was admitted into the Union, on the 11th of December, 1816, of
which the southern line was designated 'as the River Ohio from the mouth of
the Great Miami river to the mouth of the Wabash.' This boundary, as she
alleges, embraces the island in question; she contending that the river then ran

south of it, and that a mere bayou separated it from the main-land on the north.
2

The territory lying north and west of the Ohio, embracing the state of Indiana,
as well as the territory lying south of that river, embracing the state of
Kentucky, was previous to 1776, and down to the cession of the same to the
United States, held by the state of Virginia. Indeed, that commonwealth
claimed that all the territory lying north of the Ohio river and west of the
Alleghanies, and extending to the Mississippi, was within her chartered limits.
As stated by Chief Justice MARSHALL in Handly's Lessee v. Anthony, 5
Wheat. 374, 376, at an early period of the Revolutionary 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 threat tened its existence.' To remove this cause of
disturbance, congress, in September, 1780, 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.' The commonwealth of
Virginia yielded to this recommendation; and on the 20th of December, 1783,
an act was passed by her legislature authorizing her delegates in congress to
convey to the United States all her right, title, and claim, as well of soil as of
jurisdiction, 'to the territory or tract of country within the limits of the Virginia
charter situate, lying, and beng to the northwest of the River Ohio,' subject to
certain conditions, among which was that the territory should be laid out and
formed into states containing a suitable extent of territory, not less than 100 nor
more than 150 miles square, or as near thereto as the circumstances would
admit, and that the states so formed should be distinct, republican states, and
admitted members of the federal Union, having the same rights, sovereignty,
freedom, and independence as the other states. In pursuance of this act the
delegates in congress, on the 1st of March, 1784, executed a formal deed
ceding to the United States all the right, title, and claim, as well of soil as of
jurisdiction, which the commonwealth had to the territory or tract of country
within the limits of the Virginia charter, 'situate, lying, and being to the northwest of the River Ohio,' for the uses and purposes, and subject to the
conditions, mentioned in the act of the commonwealth. By the act of congress
of July 13, 1787, entitled, 'An ordinance for the government of the territory of
the United States north-west of the River Ohio,' a modification was made of the
terms of the cession of Virginia, to the effect that there should be formed in the
ceded territory not less than three nor more than five states, the fixed and
established boundaries of which were designated, and of which the Ohio river
was declared to be one.

As thus seen, the territory ceded by the state of Virginia to the United States,
out of which the state of Indiana was formed, lay north-west of the Ohio river.
The first inquiry, therefore, is as to what line on the river must be deemed the
southern boundary of the territory ceded, or, in other words, how far did the
jurisdiction of Kentucky extend on the other wise of the river? Early in the
history of the state, doubts were raised on this point; and, to quiet them, its
legislature, on the 27th of January, 1810 passed the following act declaring the
boundaries of certain counties in the commonwealth: 'Whereas, doubts are
suggested whether the counties calling for the River Ohio as the boundary line
extend to the state line on the north-west side of said river, or whether the
margin of the south-east side is the limit of the counties; to explain which, be it
enacted by the general assembly, that each county of this commonwealth
calling for the River Ohio as the boundary line shall be considered as bounded
in that particular by the state line on the north-west side of said river; and the
bed of the river and the islands, therefore, shall be within the respective
counties holding the main-land opposite thereto, within this state, and the
several county tribunals shall hold jurisdiction accordingly.' Statute Law of
Kentucky, vol. 1, p. 268.
Upon this question of boundary, we also have, happily, a decision of this court
rendered so early as 1820. In Handly's Lessee v. Anthony, 5 Wheat. 374,
ejectment was brought to recover land which the plaintiff claimed under a grant
from the state of Kentucky, while the defendants held under a grant from the
United States; and the title depended upon the question whether the land lay in
the state of Kentucky, or in the state of Indiana. It was separated from the mainland of Indiana by a bayou, a small channel, which made out of the Ohio, and
entered that river again a few miles below. This bayou was from four to five
poles wide, and its bed was dry during a portion of the year. The court said that
the question whether the land lay within the state of Kentucky or of Indiana
depended chiefly upon the land law of Virginia, and on the cession of that state
to the United States; and, in determining this question, it went into the
consideration of the proper construction to be given to the deed of cession, and
reached the conclusion that the boundary between the states was at low-water
mark on the north-west side of the river. 'In pursuing this inquiry,' said the
court, 'we must recollect that it is not the bank of the river, but the river itself,
at which the ess ion of Virginia commences. She conveys to congress all her
right to the territory situate, lying, and being to the north-west 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 be 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 newlycreated state extends to the river only.
The river, however, is its boundary. * * * 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, and not a narrow bayou into which its waters occasionally
run. All the inconvenience which would resultfrom attaching a narrow strip of
country lying on the north-west side of that noble river to the states on its
south-eastern side would result from attaching to Kentucky, the state on its
south-eastern border, a body of land lying north-west of the real river, and
divided from the main-land 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.'
5

This decision has been followed by the courts of Kentucky. See Church v.
Chambers, 3 Dana, 279; McFarland v. McKnight, 6 B. Mon. 510; Fleming v.
Kenny, 4 J. J. Marsh. 158; McFall v. Com., 2 Metc. (Ky.) 394. In this last case,
the defendant, a justice of the peace for a Cincinnati township, in the state of
Ohio, solemnized a marriage on a ferry boat upon the Ohio river, midway
between Newport, in Kentucky, and Cincinnati, in Ohio, and was indicted in
the courts of Kentucky for unlawfully solemnizing a marriage, and was
convicted of the offense; he not having been authorized to perform that
ceremony by the county court of that state. The court of appeals of Kentucky, in
affirming the conviction, referred to the authority of Handly's Lessee v.
Anthony, and said: 'That the boundary and jurisdiction of the state of Kentucky
rightfully extend to low-water mark on the western or north-western side of the
River Ohio must now be considered as settled.' The same doctrine was
maintained in Com. v. Garner, 3 Grat. 655, by the general court of Virginia, at
its June term, 1846, after elaborate consideration, against the earnest contention

of some of its judges that the jurisdiction of the state after the cession extended
to the line of high-water mark on the north-west side of the river.
6

We agree with the observations of the court in Handly's Lessee v. Anthony, that
great inconvenience would have followed if land on either side of the river, that
was separated from the main-land only by a mere bayou, which did not appear
to have ever been navigable, and was dry a portion of the year, had been
attached to the jurisdiction of the state on the opposite side of the river; and, in
the absence of proof that the waters of the river once flowed between the tract
in controversy in this case, and the main-land of Indiana, we should feel
compelled to hold that it was properly within the jurisdiction of the latter state.
But the question here is not, as if the point were raised to-day for the first time,
to what state the tract, from its situation, would now be assigned, but whether it
was at the time of the cession of the territory to the United States, or more
properly when Kentucky became a state, separated from the main-land of
Indiana by the waters of the Ohio river. Undoubtedly, in the present condition
of the tract, it would be more convenient for the state of Indiana if the main
river were held to be the proper boundary between the two states. That,
however, is a matter for arrangement and settlement between the states
themselves, with the consent of congress. If, when Kentucky became a state, on
the 1st of June, 1792, the waters of the Ohio river ran between that tract known
as 'Green River Island' and the main body of the state of Indiana, her right to it
follows from the fact that her jurisdiction extended at that time to low-water
mark on the north-west side of the river. She succeeded to the ancient right and
possession of Virginia; and they could not be affected by any subsequent
change of the Ohio river, or by the fact that the channel in which that river once
ran is now filled up, from a variety of causes, natural and artificial, so that
parties can pass on dry land from the tract in controversy to the state of Indiana.
Its waters might so depart from its ancient channel as to leave on the opposite
side of the river entire counties of Kentucky, and the principle upon which her
jurisdiction would then be determined is precisely that which must control in
this case. Missouri v. Kentucky, 11 Wall. 395, 401. Her dominion and
jurisdiction continue as they existed at the time she was admitted into the
Union, unaffected by the action of the forces of nature upon the course of the
river.

The question, then, becomes one of fact. Did the waters of the Ohio pass
between Green River island and the main-land of Indiana when Kentucky
became a state, and her boundaries were established? There is much evidence
introduced on the part of Indiana to show that since her admission into the
Union the Ohio river has not passed between the island and the main-land
except at intervals of high water, and that at low water the main-land has been

accessible for portions, at least, of the year, from the island, free from any
water obstructions. Aside from the speculations of geologists, which are not of
a vary convincing character, the evidence consisted principally of the
recollections of witnesses, which were more or less vague and imperfect. Apart
from those speculative theories, she produced no evidence that at the time the
cession was made by Virginia to the United States, in 1784, or when Kentucky
became a state, the tract was attached to, and formed a part of, the territory then
ceded, out of which the state of Indiana was created, or that the waters of the
Ohio did not run between it and the main-land of Indiana, so as to justify its
designation as an island in the river. Much evidence has also been given on that
subject by Kentucky, and a great number of transactions shown which
proceeded upon the assumption that the tract was within the jurisdiction of that
State. It is clear, we think, from the whole testimony, that, at an early day after
Kentucky became a state, the channel between the island and the main-land of
Indiana was often filled with water the whole year, and sometimes to the width
of 200 yards, and that water passed through it, of more or less depth, the greater
part of the year, until down to a period subsequent to the admission of Indiana
into the Union.
8

But, above all the evidence of former transactions, and of ancient witnesses,
and of geological speculations, there are some uncontroverted facts in the case
which lead our judgment irresistibly to a conclusion in favor of the claim of
Kentucky. It was over 70 years after Indiana became a state before this suit was
commenced, and during all this period she never asserted any claim by legal
proceedings to the tract in question. She states in her bill that, all the time since
her admission, Kentucky has claimed the Green River island to be within her
limits, and has asserted and exercised jurisdiction over it, and thus excluded
Indiana therefrom, in deflance of her authority, and contrary those shares were
transferred on the books delay to assert by proper proceedings her claim to the
premises? On the day she be came a state, her right to Green River island, if she
ever had any, was as perfect and complete as it ever could be. On that day,
according to the allegations of her bill of complaint, Kentucky was claiming
and exercising, and has done so ever since, the rights of sovereignty, both as to
soil and jurisdiction, over the land. On that day, and for many years afterwards,
as justly and forcibly observed by counsel, there were, perhaps, scores of living
witnesses whose testimony would have settled, to the exclusion of a reasonable
doubt, the pivotal fact upon which the rights of the two states now hinge; and
yet she waited for over 70 years before asserting any claim whatever to the
island, and during all those years she never exercised, or attempted to exercise,
a single right of sovereignty or ownership over its soil. It is not shown, as he
adds, that an officer of hers executed any process, civil or criminal, within it, or
that a citizen residing upon it was a voter at her polls or a juror in her courts, or

that a deed to any of its lands is to be found on her records, or that any taxes
were collected from residents upon it for her revenues. This long acquiescence
in the exercise by Kentucky of dominion and jurisdiction over the island is
more potential than the recollections of all the witnesses produced on either
side. Such acquiescence in the assertion of authority by the state of Kentucky,
such omission to take any steps to assert her present claim by the state of
Indiana, can only be regarded as a recognition of the right of Kentucky too plain
to be overcome except by the clearest and most unquestioned proof. It is a
principle of public law, universally recognized, that long acquiescence in the
possession of territory, and in the exercise of dominion and sovereignty over it,
is conclusive of the nation's title and rightful authority. In the case of Rhode
Island v. Massachusetts, 4 How. 591, 639, this court, speaking of the long
possession of Massachusetts, and the delays in alleging any mistake in the
action of the commissioners of the colonies, said: 'Surely this, connected with
the lapse of time, must remove all doubts as to the right of the respondent under
the agreements of 1711 and 1718. No human transactions are unaffected by
time. Its influence is seen on all things subject to change; and this is peculiarly
the case in regard to matters which rest in memory, and which consequently
fade with the lapse of time and fall with the lives of individuals. For the
security of rights, whether of state or individuals, long possession under a claim
of title is protected; and there is no controversy in which this great principle
may be invoked with greater justice and propriety than in a case of disputed
boundary.' Vattel, in his Law of Nations, speaking on the same subject, says:
'The tranquillity of the people, the safety of states, the happiness of the human
race, do not allow that the possessions, empire, and other rights of nations
should remain uncertain, subject to dispute, and ever ready to occasion bloody
wars. Between nations, therefore, it becomes necessary to admit prescription
founded on length of time as a valid and incontestable title.' Book 2, c. 11,
149. nd Wheaton, in his International Law, says: 'The writers on national law
have questioned how far that peculiar species of presumption arising from the
lapse of time, which is called 'prescription,' is justly applicable as between
nation and nation; but the constant and approved practice of nations shows that,
by whatever name it be called, the uninterrupted possession of territory or other
property for a certain length of time by one state excludes the claim of every
other, in the same manner as, by the law of nature and the Municipal Code of
every civilized nation, a similar possession by an individual excludes the claim
of every other person to the article of property in question.' Part 2, c. 4, 164.
9

Potential as are the considerations drawn from the long silence and
acquiescence of Indiana in the claim and pretensions of Kentucky, her
affirmative action is not the less persuasive in favor of Kentucky's claim. It
appears that on March 26, 1804, congress authorized a survey into townships

six miles square of the public lands north of the Ohio river and east of the
Mississippi river. Chapter 35, 2 St. at Large, p. 277. Under this act a survey
was made of the land in the vicinity of Green River island in the month of
December, 1805, and in April, 1806; and it did not include the island within the
territory north of the Ohio, but treated the bank of the bayou or channel north of
the island as the bank of that river. The notes of this survey were given in
evidence, and show conclusively that the officers of the government at that
time did not consider the tract in controversy as forming any part of the territory
of Indiana, but did consider that the waters of the Ohio river running north of it
made the tract now in controversy an island of the river. This survey, from the
time it was made, has been regarded as establishing the fact that the southern
boundary or Indiana lies north of the island. It is now insisted that the lines of
this survey were intended merely as meander lines run for the purpose of
defining the sinuosity of the bank, and the means of ascertaining the quantity of
land then subject to sale, and was not intended as a boundary line of the island.
Conceding, for the purposes of this case, that this is true so far as related to the
fixing of the precise line of low-water mark to which the territory of Indiana
extended, it does not affect the force of the survey as evidence that the island
was not included within that territory, according to the judgment at that time of
the surveying officers of the United States. With knowledge of this survey, the
legislature of that state, on the 27th of February, 1875, passed an act entitled,
'An act to ascertain the location of the boundary line between the states of
Indiana and Kentucky above and near Evansville, and making the same
evidence in any dispute.' This act recited that difficulty and dispute had arisen
between the owners of land in Indiana and Kentucky in regard to the boundary
line between the two states, and that such difficulty involved the title to large
tracts of land above and near the line between Green River island and the state
of Indiana, and empowered and directed the governor to select a commissioner,
who should be a resident of the state, and a practical surveyor, to act with a
similar commissioner to be appointed by the governor of Kentucky, and
provided that the two commissioners so selected should make a survey of the
line dividing the states, beginning at the head of Green River island, near and
opposite to the mouth of Green river, and running thence down the Ohio river
to the lower end of the island. The second and third sections of this act are as
follows: 'Sec. 2. In running said line the said commissioners shall consult, and
be governed by, the surveys originally made by the government of the United
States, when such surveys are not inconsistent with each other; and they shall
establish and mark proper monuments along said line, whereby the same may
be plainly indcat ed and perpetuated. Sec. 3. Within ten days after making such
survey, and establishing said line, said commissioners shall reduce the same to
writing, giving a full and plain description of all the courses and distances, and
of the marks and monuments made and established, and sign and acknowledge
the same before some officer authorized to take acknowledgments of deeds,

which writing, so acknowledged, shall be recorded in the recorder's office in the

counties of Vanderburgh and Warrick, and the original filed in the office of the
secretary of state; and such writing, or the record thereof, shall be conclusive
evidence in any of the courts of this state of the boundary line between the
states of Indiana and Kentucky, between the points on said Green River island
heretofore indicated.' An appropriation was also made for the survey. An act of
similar purport had been passed by the state of Kentucky on the 23d of April,
1873, authorizing the governor of that state to appoint a surveyor to act with the
person selected by the governor of Indiana, and make a survey of the line. In
pursuance of these acts the states each appointed a commissioner to survey the
line. The commissioners accordingly, in 1877, made a survey, and ran a line on
the north side of Green River island, and also of the small tract known as 'Buck
Island.' In doing this, they followed the lines of the United States survey of
1806. By this survey, both these islands were left within the state of Kentucky.
Complaint being made of the action of the commissioners in running the line
on the high bank, the governor of Indiana directed the commissioner of that
state to suspend any further action under the act, and subsequently visited
Evansville, a city in Indiana north-west of the island, and near the survey made,
and examined the line of the survey, and in a subsequent letter to the
commissioners stated that the line thus run did not in any part conform to the
low-water mark of the river, but that the greater part was upon the bank, and
the residue at a distance from it, leaving a tract of land between it and the river.
Subsequently the legislature of Indiana, upon the recommendation of the
governor, repealed the law authorizing the survey, and on the 14th of March,
1877, passed an act authorizing the governor to enter into negotiations with the
governor of Kentucky for the acquisition from the latter state of all her rights of
jurisdiction and soil over the Green River island, and her claim for any ground
on the Indiana side of the river at said island, or to establish the line between
the states by surveys, to be made in such manner as they might deem just,
provided that the governor of Kentucky should be authorized to enter into the
agreement by the legislature of that state, and the consent of congress should be
obtained thereto. These efforts to adjust the boundary line failing, the governor
was authorized to direct the proscution in this court of a suit for the purpose of
determining and settling the boundary.
10

Now, while no agreement between the states would be of any validity, under
the constitution, without the consent of congress, and the survey made pursuant
to the joint action of the two states would not have been legally binding even
had it not been withdrawn before the report of the commissioners was filed in
the offices designated in the acts, still the law of Indiana authorizing the line to
be fixed in accordance with the survey of the United Statesand no other was
made except the one in 1806, although the act speaks of surveyswas a plain

recognition on her part that the boundary of the state was north of the island,
though it was uncertain where the line should be drawn on the land, inasmuch
as the channel of the bayou had been filled up. It is an admission entitled to
great weight in explaining the cause of the state's general acquiescence from
the time it was admitted into the Union, up to the passage of that act, in the
claim and jurisdiction of Kentucky. independently of the necessity of obain ing
the consent of congress to the execution of any agreement between the two
states, it was competent for the state of Indiana to provide for a survey of a line
already established, and to make such survey evidence in subsequent
controversies upon the subject. While on the part of Indiana, there was a want
of affirmative action in the assertion of her present claim, and a general
acquiescence in the claim of Kentucky, there was affirmative action on the part
of Kentucky in the assertion of her rights, as we have seen, by the law declaring
the boundaries of her counties on the Ohio river, passed in January, 1810; and
there was action taken in the courts of the United States and of the state by
parties claiming under her or her grantor, and there was also action by her
officers in the assertion of her authority over the land; all of which tends to
support the claim of rightful jurisdiction. It at least shows that her claim was
never abandoned by her or her people.
11

On the 10th of February, 1784, Virginia issued a military and warrant to one
John Slaughter. In March, 1785, Slaughter had a tract of 600 acres surveyed,
upon which he located a part of that warrant; and the tract was conveyed to him
by the commonwealth of Virginia on the 10th of February, 1790, by patent, in
which the land was described by metes and bounds as lying in the district set
apart for the officers and soldiers of the Virginia Continental line, on the first
large island in the Ohio below the mouth of Green river. That island was Green
River island. In September, 1821, Slaughter's heirs, who were residents of
Virginia, brought a suit in ejectment in the circuit court of the United States for
the district of Kentucky, to recover the land conveyed to their ancestor by this
patent, against Garrett and others, who were in possession. The cause was not
tried until 1834, when the plaintiffs, who relied entirely upon the validity of the
patent to Slaughter, recovered judgment, and were awarded restitution of the
premises. When the marshal went upon the land to execute the writ for its
possession, he was accompanied by one Levi Jones, who claimed to have an
equitable title under Slaughter's heirs, and was there to receive possession.
Garrett, one of the defendants, concluded to purchase 100 acres of the land
upon which he was living from Jones, and for part of the purchase money
executed to Jones his note. Jones assigned this note to James Rouse, who in
turn assigned it to Jackson McLean. McLean brought an action at law upon the
note in the circuit court of Henderson county, in Kentucky, in which he
recovered judgment by default, and sued out a writ of execution, whereupon

Garrett filed a bill in equity in the same court, making Jones and Rouse codefendants with McLean, to enjoin the enforcement of the judgment of law
upon the following, among other, grounds: First, that the process in the
common-law action had been served upon him at his residence on Green River
island, which was not within the territorial limits of the state of Kentucky, but
beyond the jurisdiction of the court, and that, therefore, the service of process,
judgment, and execution were null and void; second, that neither Jones nor
Slaughter, under whom he claimed, had ever had a valid title to the land which
Jones had sold him, because the military land warrant upon which Slaughter's
patent had been issued could not be located upon land which lay north-west of
the Ohio, and north of the mouth of the Green river. As evidence that the tract
of land in controversy lay in Indiana, and not in Kentucky, he filed a copy of
the deed of cession from Virginia to the United States as part of his bill. The
question of Kentucky's title and right of jurisdiction over Green River island
was thus put in issue, and its decision was necessary to the determination of the
case. Several depositions were taken by each party upon the point; but, upon a
full hearing of the case, Garrett's bill was dismissed, with costs and charges.Her
e were two adjudications, one by the United States circuit court, and the
other by a circuit court of the state, that Green river island was within the
jurisdiction of Kentucky. And the record shows that, between 1818 and 1877,
numerous grants of parcels of land on the island were made by Kentucky, and
that between these dates taxes were assessed by her officers upon the lands as
being within her territory and jurisdiction.
12

We have spoken of the character of the testimony introduced on the part of

Indiana, and of the fact that it does not touch upon the condition of the channel
above the island previous to her admission as a state into the Union. The
testimony of the witnesses introduced by the state of Kentucky consisted to a
great extent of recollections, which must, of necessity, have been more or less
imperfect. They showed, as already stated, that in former times, at some periods
of the year, there was a large volume of water which passed north of Green
River island, and that sometimes this volume continued throughout the whole
year; but they also showed that, at a very early period, great changes had taken
place in the channel north of the island, so that in some portions of the year it
was easy to pass on foot from the island to the main-land. The facts as they
existed at the time of the cession of Virginia to the United States, in 1784, and
even at the time of the admission of Kentucky into the Union, have long since
passed beyond the memory of man, and therefore cannot be established by oral
testimony. As counsel says, the very grandchildren of men then living are now
hoary with age. The facts can only be established as a matter of inference from
general facts in regard to the condition of the country, and documentary
evidence, which in many cases rises little above that of hearsay; such as notices

by travelers, and maps given by them, indicating the position of the tract in
question. Of the latter, it may be said that they all represent the tract as an
island in the river.
13

Great changes in the bed of the river were to be expected from the immense
volume and flow from its vast water-sheds. These water-sheds, according to the
official report of the tenth census of the United States, cited by counsel,
comprise over 200,000 square miles, and more than half of the water from
them comes from east of Green River Island, and nearly all the great watercourses find their way to the Ohio river. That vast changes should be made in
the channel of that river from the volume of water thus received, and its
impetuous flow at certain seasons, wearing away its banks, deepening some
portions of the stream, and filling up others, was not surprising; and that, where
large vessels at one time could easily float should have become dry ground
many years afterwards was but the natural effect of the tremendous forces thus
brought into operation.

14

We have not deemed it important to take up the testimony of each of the

numerous witnesses produced in the case by the states of Indiana and
Kentucky. It would serve no useful purpose to attempt an analysis of the
testimony of each, and to show how little and how much weight should be
attributed to it. All the testimony is to be taken with many allowances from
imperfect recollection, from the confusion by many witnesses of what they saw
with what they heard, or of what they knew of their own knowledge with what
they learned from the narrative of others. the clear and admitted facts we have
mentioned, corroborated as they are by nearly everything of record presented,
leave on our minds a much more satisfactory conclusion than anything derived
from the oral testimony before us. The long acquiescence of Indiana in the
claim of Kentucky, the rights of property, of private parties, which have grown
up under grants from that state, the general understanding of the people of both
states in the neighborhood, forbid at this day, after a lapse of nearly 100 years
since the admission of Kentucky into the Union, any disturbance of that state in
er possession of the island and jurisdiction over it.

15

Our conclusion is that the waters of the Ohio river, when Kentucky became a
state, flowed in a channel north of the tract known as 'Green River Island,' and
that the jurisdiction of Kentucky at that time extended, and ever since has
extended, to what was then low-water mark on the north side of that channel;
and the boundary between Kentucky and Indiana must run on that line, as
nearly as it can now be ascertained, after the channel has been filled. Judgment
in favor of the claim of Kentucky will be entered, in conformity with this
opinion; and commissioners will be appointed to ascertain and run the boundary

line as herein designated, and to report to this court, upon which appointment
counsel of the parties will be heard on notice. And it is so ordered.