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2. STATES 12(2)—BOUNDARY LINE MUST BE the Minnesota shore, leaving portions of

LOCATED BY REFERENCE TO SITUATION them in each state. See Wisconsin v. Duluth,
TIME ACT DEFINING BOUNDARIES WAS 96 U. S. 379, 24 L. Ed. 668; Norton v. White-
PASSED.
The location of the main channel of the St. side, 239 U. S. 144, 36 Sup. Ct. 97, 60 L. Ed.

186.
Louis river, designated as the northern bound-
ary of Wisconsin by Act Aug. 6, 1816, must be

"An act to enable the people of Wisconsin determined upon consideration of the situation Territory to form a Constitution and state existing in 1846.

government, and for the admission of such 3. STATES

state into the Union,” approved August 6, Ow12(2)→LOCATION CHANNEL OF ST. LOUIS RIVER, CONSTITUTING

1846 (9 Stat. 56, c. 89), described the bounBOUNDARY LINE, STATED,

dary in part as follows: In Upper St. Louis Bay, the main channel “Thence (with the northwesterly boundary of of the St. Louis river, constituting the boundary Michigan) down the main channel of the Montbetween Wisconsin and Minnesota by Act Aug. real river to the middle of Lake Superior; 6, 1846, is not the narrow winding channel thence (westwardly] through the center of Lake near the Minnesota shore, with a ruling depth Superior to the mouth of the St. Louis river; of 10 or possibly 8 feet, but the shorter and

.276 more direct course westward to the deeper chan- thence up the main channel *of said river to the nel, about seven-eighths of a mile northeast first rapids in the same, above the Indian vil. of Big Island.

lage, according to Nicollet's map; thence due

south to the main branch of the River St. 4. STATES 12(2)—MAIN CHANNEL OF RIVER

Croix," etc.
CONSTITUTING BOUNDARY LOCATED
REFERENCE TO ACTUAL OR PROBABLE USE;
"THALWEG."

With the boundaries described by the EnThe doctrine of "thalweg," under which the abling Act, Wisconsin entered the Union May boundary line between states separated by a 29, 1848 (9 Stat. 233, c. 50). navigable river is the middle of the main chan- "An act to authorize the people of the ter. nel of the stream, bas reference to actual or ritory of Minnesota to form a Constitution probable use of the stream, and does not neces- and state government, preparatory to their sarily refer to the line of the greatest depth, admission in the Union,” approved February if it is not the channel generally used.

26, 1857 (11 Stat. 166, C. 60), specifies a por. [Ed. Note. For other definitions, see Words tion of the boundary thus: and Phrases, First and Second Series, Thalweg.]

"Thence by a due south line to the north line In Equity.

of the state of Iowa; thence east along the Original suit by the State of Minnesota northern boundary of said state to the main against the State of Wisconsin. Decree en the main channel of said river, and following

channel of the Mississippi river; thence op tered, fixing the boundary line as stated in the boundary line of the state of Wisconsin, the opinion.

until the same intersects the St. Louis river;

thence down said river to and through Lake *Messrs. W. D. Bailey and H. B. Fryberger, Superior, on the boundary line of Wisconsin both of Duluth, Minn., Lyndon A. Smith, of and Michigan, until it intersects the dividing St. Paul, Minn., Charles R. Pierce, of Wash- line between the United States and the British 'ington, D. C., and Clifford L. Hilton and possessions." Frank B. Kellogg, both of St. Paul, Minn.,

With boundaries as therein described, Minfor complainant. Messrs. M. B. Olbrich, of Madison, Wis., nesota became a state May 11, 1858 (11 Stat.

285, c. 31). Walter C. Owen, of Maiden Rock, Wis., and Walter Drew, of Milwaukee, Wis., for de ficting interpretations of the words:

The present controversy arises from confendant.

“Thence (westwardly] through the center of Mr. Justice McREYNOLDS delivered the Lake Superior to the mouth of the St. Louis

river; thence up the main channel of said river opinion of the Court.

to the first rapids in the same, above the Indian We are asked to ascertain and establish village, according to Nicollet's map." the boundary line between the parties in Upper and Lower St. Louis Bays. Complain- The situation disclosed by an accurate surant claims to the middle of each bay-half- / vey gives much room for differences concernway between the shores. The defendant does ing the location of the "mouth of the St. not seriously question this claim as to the Louis river" and "the main channel of said lower bay, but earnestly maintains that in | river.” Nicollet's map of the “Hydrographthe upper one the line follows a sinuous ical Basin of the Upper Mississippi River," course near complainant's shore. Since 1893 | published in 1843, and drawn upon a scale a deep channel has been dredged through of 1:1,200,000—approximately 20 miles to the these waters and harbor lines have been estab-inch-is too small either to reveal or to give lished. According to Wisconsin's insistence, material aid in solving the difficulties. А its border crosses and recrosses this channel sketch from it-approximately on original and intersects certain docks extending from scale—is printed on the next page.

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Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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During 1823–1825 Lieut. Bayfield, of the, Minnesota and Wisconsin Points are low British Navy, surveyed and sounded the west- narrow strips of sand—the former 6 miles terly end of Lake Superior and the lower wa- in length, the latter approximately 3. Beters of St. Louis river. A chart compiled tween them there is a narrow opening from data so obtained (1:49,300—4,108 feet known as “The Entry," and inside lies a bay to the inch) and published in 1828, shows the (Allouez and Superior) 9 miles long and a general configuration and lays the proper mile and a half wide. A narrow channel

*278 sailing course southward of *Big Island. between Rice's Point and Connor's Point Prior to 1865 this was the only available leads into Lower St. Louis Bay, approximatechart, and navigators often used it.

ly a mile and a half wide and 3 miles long. The first accurate map of these waters was Passing south of Grassy Point, another chandrawn from surveys and soundings made un- nel leads into irregular shaped Upper St. der direction of Capt. George W. Meade in Louis Bay, with Big Island at its southwest1861, and is now on file in the Lake Survey erly end. Southeast of this island begin the Office at Detroit. After being reduced one-well-defined banks, deep narrow channel, and hall—to a scale of 1:32,000 or approximate- obvious current characteristic of a true rivly two inches to a mile—it was engraved and er; these continue through many windings published in 1865 or 1866. Known as the to the falls above the Indian village noted on Meade Chart, this reproduction is accepted Nicollet's Map. by both parties as adequately disclosing con- Meade's Chart indicates: A depth of not ditions existing in 1846. A rough sketch over 8 feet across the bar at "The Entry" ; based upon the chart-about one-third of its a deep channel through Superior Bay; rathsize and also a photographic reproduction er shallow water, with a ruling depth of 8 of a portion of the original map, are printed feet, in Lower St. Louis Bay; 8 feet of waon succeeding pages.

ter on a fairly direct course, about a mile

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(40 Sup.Ct.)

*285 .FROM A PAOTOGRAPH–POBTION OF ORIGINAL MEADE MAP. WEST OF GRASSY POINT, ON FILE IN OFFICE U. S. ENGINEERS.

Scale: About 1 mile to 9 inches.
(The words "Fishermans Islandhave been added.)

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rior, that within “The Entry" there were *in length, from the deep channel south of only small boats of light draft, and that Grassy Point and east of Fisherman's Island navigation long remained rather primitive. to the deep water immediately westward of

[3] Lower St. Louis Bay was shallow, with the *bar, about seven-eighths of a mile north- a ruling depth of 8 feet, and had no well

defined channel. From the deep water at east of Big Island. It further discloses a curving channel along the west side of the southern tip of Grassy Point a vessel Grassy Point, and thence close to the Min- drawing less than 8 feet bound north of

Big Island and beyond could have turned nesota shore and around Big Island, with a depth of 15 or more feet, except at the bar, northwest and followed the narrow winding where there are only 10, possibly 8, feet. To channel near the Minnesota shore with a rulthe south of Big Island lies the well-known ing depth of 10, possibly 8, feet, or it could

have proceeded westward, approximately one and formerly much-used course indicated on

mile, over a more direct course with a depth Lieut. Bayfield's Map.

The level of the water within all the bays of 8 feet or more, until it came to the deeper is substantially the same as in Lake Supe- east of Big Island. This latter course is in

channel about seven-eighths of a mile northrior; such current as exists flows in opposite dicated by the red trace “A, B, C,” on Mindirections, according to the wind and movement within the lake. The shores are ir- nesota's Exhibit No. 1—Meade's Chart. For regular and much indented.

many years officers and representatives of Since 1893 the United States have dredged both states regarded the boundary as on or a 22 foot channel through Upper St. Louis near this line; and, considering all the cir

cumstances, we think it must be accepted as Bay and

thence around Grassy Point; through Lower St. Louis Bay (where there the main channel within intendment of the

statute. are two branches) and between Rice's and

No current controlled navigation, Connor's Points; thence through Superior and vessels proceeding in opposite directions Bay to “The Entry” and into the lake. Ex- followed the same general course. tensive docks have been constructed from

Both parties say that in 1846— the Minnesota shore in both the upper and “practically all of Upper and Lower St. Louis lower bays; those extending southwest from Bays between the shores were navi*gable for Grassy Point cross the boundary claimed by such vessels as were accustomed to use said Wisconsin. The general situation of 1846 bays at said time for the purpose of navigation, continued until long after 1861, but during and there was no defined course, or channel, the last 30 years extensive improvements re-in said bays, which said vessels followed, but, quired for a large and busy harbor have pro owing to the depth of the water, they were duced great changes.

permitted and accustomed to travel across said

bays in any direction." [1] The complainant maintains that within the true intendment of the statute the For very many years subsequent to 1846 “mouth of the St. Louis river” is southeast there were no vessels with S-foot draft upon of Big Island, where end the banks, channel, these waters, and probably none of such size and current characteristic of a river and regularly plied there until 1890 or later. lake features begin. On the other hand, the The course south of Big Island shown on defendant insists, and we think correctly, the Bayfield Map was never accepted as the that such mouth is at the junction of Lake boundary, and need not be further considSuperior and the deep channel between Min- ered. Wisconsin's claim to that island is not nesota and Wisconsin Points—"The Entry.” denied.

It is unnecessary to specify the many facts Manifestly, from the description beretofore and circumstances, historical and otherwise, given, the waters between Big Island and which lead to the conclusion stated. They Lake Superior were broad sheets, without

any definite uninterrupted deep channel ex. seem adequate, notwithstanding *some trou-tending throughout their entire length; also blesome objections based upon the peculiar | there was no steady, controlling current. hydrographic conditions.

Such vessels as plied there in 1846 and long [2] Treating “The Entry" as the mouth of thereafter moved with freedom in different the St. Louis river, where is the line "thence directions. The evidence convinces us that, up the main channel of said river to the as navigation gradually increased prior to first rapids," etc.? This must be determined 1890, the northerly course in Upper St. Louis upon consideration of the situation existing Bay commonly followed by vessels going to in 1846, which the parties admit remained or coming from points above Big Island was substantially unchanged until after the not along the narrow curving channel skirtMeade survey. No alterations now material / ing Grassy Point, but over the shorter one have come about through accretion or ero- near the middle of the bay. sion.

This court approved the doctrine of ThalThe line through Superior Bay is not here weg, as opposed to the physical middle line, called in question. But let it be noted that in Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. no vessel drawing more than 8 feet could 239, 37 L, Ed. 55, and has adhered thereto. have passed into that bay from Lake Supe-Louisiana v. Mississippi, 202 U. S. 1, 26 Sup.

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