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The rule as to what constitutes a navigable stream or lake was reaffirmed in a decision by the United States Supreme Court 19 dated February 1, 1926, as follows:
Streams or lakes * 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.
At common law only arms of the sea and streams where the tide ebbs and flows are deemed navigable.20
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.
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.23
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.25
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.
In a case before the United States Supreme Court regarding title to land along a tidal stream in a newly created State it was decided 27 that the shores of navigable rivers and the soil under them up to
19 270 U. S. 49.
20 140 U. S. 383.
21 147 U. S. 1. For many references to court decisions regarding water boundaries see Hyde, C. C., International law, vol. 1, pp. 243–248, Boston, 1922; and Clark, F. E., A treatise on the law of surveying and boundaries, p. 38 and ch. 14, Indianapolis, 1922.
22 246 U. S. 158.
23 147 U. S. 11.
24 See brief for the United States in Marine Railway & Coal Co. v. the United States, U. S. Supreme Court, October term, 1920, p. 70.
25 Idem, p. 155.
26 246 U. S. 176.
273 Howard 212; 9 Howard 471; 13 Howard 25.
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. 28
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.29 What constitutes the high-water line on the shores of oceans, lakes, and rivers has been the subject of a great many court decisions, which may be summarized as follows: 30
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 waterwashed 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.
The shore line is "the line which is washed by the water wherever it covers the bed of the river within its banks." 83 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." 34
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
2 See Opinions of the Attorney General, vol. 8, p. 443; also 94 U. S. 324; 138 U. S. 226; 255 U. S. 56; and Clark, F. E., A treatise on the law of surveying and boundaries, p. 295, 1922.
2140 U. S. 371; 94 U. S. 325.
0156 Wisconsin 261, 272. See also 258 U. S. 574.
21 For references to the meaning of shore and shore line 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, Oklahoma v. Texas [Red River boundary case], 260 U. S. 632, 645,
13 Howard 418. See also 5 Wheaton 379.
See opinion of the attorney general of the State of New York, Sept. 30, 1925, relative to the meaning of the "line of high water," which gives references to numerous decisions.
vary from 6 seconds north to 8 seconds south of the mean parallel of latitude or a range of more than a quarter of a mile. It seems likely that for future surveys geodetic positions will be used wherever available.35 (See p. 174.)
All boundary lines should be well marked, the size and character of the marks to depend on the importance of the line. (See pl. 2.) Many State boundaries, even some run in recent years, have been very inadequately marked, blazes on trees or stones so small that they could be easily carried off having been used. 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, all obstructing trees and brush being cleared away. Marks should also be placed at road crossings and other important points.
A State-line mark should project not less than 3 feet above ground (4 feet is better) and should be so firmly set that it can not be easily overturned nor disturbed by frost. These conditions are most easily met by constructing monuments of concrete or of metal posts set on concrete bases. Each monument should have the State names on opposite sides; it should bear also the year of survey, an identifying number, and, if practicable, a reference to the treaty or act in accordance with which the line was run. The following specifications were prepared for the monuments on the New York-Connecticut boundary, survey of 1909-10, and are quoted as affording examples of adequate marks:
The monuments are to be of good-quality light-colored granite, free from seams or other defects, straight and of full size throughout, not less than 9 nor more than 10 feet in length, 12 inches square 4 feet down from the top, tapering from 12 inches square to not over 15 inches square in the next 11⁄21⁄2 feet and not less than 12 inches nor more than 20 inches on any face the rest of the distance. The top and the four sides of each monument for a distance of 4 feet from the top are to be cut smooth at right angles with each other and finished with 6-cut work. The tapering portion to be pointed to a smooth even surface to conform to the dimensions given. The remaining portions to be left as split, but full size, not less than 12 inches square throughout, the bottom to be not less than 12 inches square and substantially at right angles to the sides, and every point of the lower 5 feet of the stone must lie outside the planes of the smooth-cut portion. On one side will be cut the letters "N. Y."; on the opposite side will be cut the letters "CONN." On the third side will be cut the figures "1909." Additional similar letters shall be cut as may be ordered.
The letters "N. Y." and "CONN." are to be 5 inches high; the figures to be 4 inches high. All letters to be cut with V-shaped indentations at least 3 inch deep.
or a discussion of this subject see Report of the survey of the boundary between United States and Canada: 44th Cong., 2d sess., S. Ex. Doc. 41, pp. 260, 261, 267, See also Am. Soc. Civil Eng. Proc., October, 1926, p. 1699, and March, 1927, p. 428.
These monuments were set in concrete bases 4 feet square and 5 feet deep.
The most recent practice in marking curved or crooked boundaries is to make them a series of connected straight lines, and for water boundaries to set suitable reference marks on shore. This plan was authorized by the British treaty of 1908 for the rivers on the Canadian boundary and was adopted in marking the MassachusettsRhode Island line.
The boundary marks should be protected by law and should be inspected frequently and repaired whenever necessary. Some States provide for such attention-New York at 3-year intervals, Pennsylvania and Massachusetts at 5-year intervals.30
A United States statute, approved March 4, 1909, makes it a misdemeanor to molest any monument or witness tree on a Government survey. It provides as follows: 37
Whoever shall willfully destroy, deface, change, or remove to another place any section corner, quarter-section corner, or meander post, on any Government line of survey, or shall willfully cut down any witness tree or any tree blazed to mark the line of a Government survey, or shall willfully deface, change, or remove any monument or bench mark of any Government survey, shall be fined not more than two hundred and fifty dollars, or imprisoned not more than six months, or both.
The necessity for preserving boundary marks was recognized by Moses, who wrote (Deuteronomy xix, 14): “Thou shalt not remove thy neighbor's landmark."
Many references to court decisions regarding boundaries can be found in the following publications:
Clark, F. E., A treatise on the law of surveying and boundaries, chap. 21, Indianapolis, Bobbs-Merrill Co., 1922.
Mack, William, Cyclopedia of law and procedure, vol. 36, p. 842, New York, American Law Book Co., 1910.
Mack, William, and Hale, W. B., Corpus juris, Boundaries, vol. 9, pp. 145298, New York, American Law Book Co., 1916.
McKinley, W. M., and Rich, B. A., Ruling case law, Boundaries, vol. 4, pp. 77-132, 1914, and States, vol. 25, pp. 373–376, Northport, N. Y., Edward Thompson Co., 1916.
Michie, T. J., The encyclopedia of Supreme Court reports, vol. 3, pp. 494–507, Charlottesville, Va., 1909.
Moore, J. B., A digest of international law: 56th Cong., 2d sess., H. Doc. 551, vol. 1, pp. 272, 273, 618, 619, 747, 1906.
Skeleton, R. E., The legal elements of boundary surveying, Indianapolis,
Taylor, R. H., A treatise on the law of boundaries and fences, Albany, William Gould & Son, 1874.
Digest of U. S. Supreme Court reports (subject pp. 1339-1357, Rochester, N. Y., 1928.
"Boundaries"), vol. 3,
See New York laws for 1887, ch. 421, and for 1892, ch. 678; Pennsylvania act approved May 4, 1889; and Massachusetts revised laws, ch. 1, sec. 4.
* Crim. Code, sec. 57; 35 Stat. L. 1099.
BOUNDARIES OF THE UNITED STATES AND ADDITIONS TO ITS TERRITORY
BOUNDARIES OF THE UNITED STATES
PROVISIONAL TREATY WITH GREAT BRITAIN, 1782
The original limits of the United States were first definitely described in the provisional treaty concluded with Great Britain November 30, 1782. The second article of that treaty defines them as follows 38 (see fig. 2):
ARTICLE II. From the northwest angle of Nova Scotia, viz, that angle which is formed by a line drawn due north from the source of St. Croix River to the highlands; along the highlands which divide those rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost head of Connecticut River; thence down along the middle of that river to the 45th degree of north latitude; from thence, by a line due west on said latitude until it strikes the river Iroquois or Cataraquy [St. Lawrence]; thence along the middle of said river into Lake Ontario, through the middle of said lake until it strikes the communication by water between that lake and Lake Erie; thence along the middle of said communication into Lake Erie, through the middle of said lake until it arrives at the water communication between that lake and Lake Huron; thence along the middle of said water communication into the Lake Huron; thence through the middle of said lake to the water communication between that lake and Lake Superior; thence through Lake Superior northward of the Isles Royal and Phelippeaux, to the Long Lake; thence through the middle of said Long Lake, and the water communication between it and the Lake of the Woods, to the said Lake of the Woods; thence through the said lake to the most northwestern point thereof, and from thence on a due west course to the river Mississippi; thence by a line to be drawn along the middle of the said river Mississippi untill it shall intersect the northernmost part of the 31st degree of north latitude. South, by a line to be drawn due east from the determination of the line last mentioned, in the latitude of 31 degrees north of the equator, to the middle of the river Apalachicola or Catahouche; thence along the middle thereof to its junction with the Flint River; thence straight to the head of St. Mary's River; and thence down along the middle of St. Mary's River to the Atlantic Ocean. East, by a line to be drawn along the middle of the river St. Croix, from its mouth in the bay of Fundy to its source, and from its source directly north to the aforesaid highlands which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence; comprehending all islands within twenty leagues of any part of the shores of the United States, and lying between lines to be drawn due east from the points where the aforesaid boundaries between Nova Scotia on the one part and East Florida on the other, shall respectively touch the Bay of Fundy and the Atlantic Ocean; excepting such islands as now are, or heretofore have been, within the limits of the said province of Nova Scotia. [See p. 160 for a separate article attached to this treaty.]
39 Malloy, W. M., Treaties, conventions [etc.] between the United States and other powers, 1776–1909; 61st Cong., 2d sess., S. Doc. 357, vol. 1, p. 581, 1913. Mowry, W. A., The territorial growth of the United States, New York, Silver, Burdett & Co., pp. 16-25, 1902 (review of the negotiations preceding the signing of this treaty).