By the treaty of 1819 between the United missioner for the United States, should run States and Spain1 the boundary line estab- and mark the entire boundary line between lished between the two countries followed the Texas and the territories of the United States course of the Red River westward to the from the point where it left the Red River 100th degree of west longitude, and crossing to its intersection with the Rio Grande.8 the Red River, ran thence due north to the Arkansas River; all "as laid down in Melish's map of the United States." The same line was established by the treaty of 1828 between the United States and the United Mexican States2 and confirmed by the Convention of 1838 between the United States and the Republic of Texas; and it became part of the boundary between the State of Texas and the adjacent territory of the United States on

1845.4

*25

the ad*mission of Texas into the Union in In 1850, however, by a legislative compact between the United States and the State of Texas, it was agreed that the northern boundary line of Texas should run west with the parallel of 36 degrees 30 minutes from its intersection with the 100th meridian;5 so that we are not now concerned with the portion of the meridian extending north of that parallel.

Since 1850 many steps have been taken-at long intervals-looking to the establishment of the line of the meridian between the Red River and the parallel. To rightly understand the course of the legislation it should be borne in mind: First, that the Red River forks about sixty miles east of the strip of land now in dispute, the South Fork passing along its southern end, and the North Fork crossing it about forty miles to the north; and, secondly, that on Melish's map of the United States the 100th meridian was erroneously shown as crossing the Red River more than one hundred miles east of this strip, and east of the fork in the River. These two facts gave rise to a controversy in reference to the location of the other boundary line along the course of the Red River, which, although now long determined, was interwoven with the question as to the location of the line of the meridian north of the river and complicated the issues involved in its settlement. In the light of this preliminary statement we proceed to set forth, in chronological order, the material facts? necessary to the determination of the contentions now made.

26

*The first step towards the location of the boundary line was taken by the Texas Legislature, which in 1854 authorized the appointment of a commissioner, who, with a com

18 Stat. 252.

18 Stat. 372.

Treaties and Conventions of the United States, p.

1779.

Joint Res. 5 Stat. 797; Joint Res. 9 Stat. 108. 9 Stat. 446, c. 49; 2 Sayles' Early Laws of Texas, p. 267; President's Proclamation, 9 Stat. 1005.

Pending action by Congress in this matter, the United States, by a treaty made with the Choctaw and Chickasaw Indians in 1855,9 awarded them a tract of land in the Indian territory whose western boundary was described as running north from the Red River along the 100th meridian to the main Canadian River. In 1857, the Commissioner of Indian Affairs, for the purpose of marking the boundaries of the Indian lands, employed two contract surveyors, A. H. Jones and H. M. C. Brown, to survey and mark the line of the meridian from the north bank of the main Red River to the north boundary of the Creek or Seminole country.

Before Jones and Brown had commenced this survey, Congress, in 1858, authorized the appointment of a joint commissioner to run and mark the boundary line between the territories of the United States and Texas in accordance with the Texas Act of 1854.10 The commissioners began their work on the Rio Grande, but differences soon arose, which caused them to separate; and the survey was continued solely by John H. Clark, the United States commissioner, who ran and marked a large part of the western boundary of Texas and its northern boundary along the parallel.11

*27

*Meanwhile Jones and Brown had made, in 1859, their survey of the boundary of the Indian lands. They began at a rock monument on the north bank of the South Fork of Red River, placed to mark the intersection of the 100th meridian with that stream, and ran the line of the meridian northwardly from this monument about 109 miles, marking it with mile posts.12

In February, 1860, the Texas Legislaturethen claiming, it appears, that the boundary line along the Red River followed the line of the North Fork-created the County of Greer, with a boundary including, in general terms, all the territory lying east of the 100th meridian and between the North and South Forks of the river; this being a tract containing more than 2,000 square miles and extending

83 Gammel's Laws of the State of Texas, p. 1525. And see prior Joint Resolution to the same effect. Id. p. 206.

11 Stat. 611.

10 11 Stat. 310, c. 92.

11 Clark's reports appear in Sen. Ex. Doc. No. 70, 47th Cong., 1st Sess., and a summary in Heuse Doc. No. 635, 57th Cong., 1st Sess., p. 14.

12 See report of Commissioner of the General Land Office, House Report No. 1282, 47th Cong., 1st Sess., and House Doc. No. 635, 57th Cong., 1st Sess., p. 12. It appears that Jones and Brown adopted as the beginning of their survey the monument which had been erected earlier in the same year by Daniel G. 'These are shown, in the main, by an agreed Major, the astronomer for Indian boundary surstatement of facts.

See copy of Melish's map, 162 U. S. 1, 52, 16 S. Ct. 725, 739; also House Report No. 1595, 58th Cong., 2d Sess., p. 2.

veys.

(47 S.Ct.)

about sixty miles east of the Jones and Brown |ary Commission under the Act of 1858, transline. 13

At this same session of Congress-a conand re-established most of it by rebuilding troversy having meanwhile arisen as to the many of the mile posts. They also, at the ownership of the territory included in Greer same times, subdivided the public lands in County-a Representative from Texas introthe western part of the Indian territory induced a bill to define the boundary between a series of townships closing on the west the Indian Territory and Texas as running upon the line thus retraced and re-establish-up the middle of the North Fork of the Red ed, on which they erected the closing corners of the townships.16

degree of west longitude," this being the longitude Many years later, in 1906, the House Committee on

15 See House Report No. 1595, 58th Cong., 2d Sess., of 1858. House Report No. 1186, 59th Cong., 1st Sess., p. 3.

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In 1896 this Court decided the Greer County Case, and entered a decree adjudging that the territory east of the *100th meridian of longitude between the North Fork of the Red River and the south bank of the South Fork, called Greer County, constituted no part of the territory belonging to Texas, but was subject to the exclusive jurisdiction of the United States. United States v. Texas, supra, at page 90 (16 S. Ct. 725).

reciting that a controversy existed between | 3,797.3 feet east of the Jones and Brown inthe United States and Texas as to the point itial monument.28 where the 100th degree of longitude crossed the river, as described in the treaty, which had never been ascertained and fixed by any authority competent to bind the United States and Texas, and which should be settled so that the boundary then in dispute because of the difference of opinion as to this crossing might also be settled; and authorizing the President to designate officers who, in conjunction with such persons as might be appointed by Texas, should ascertain and mark the point where the 100th meridian crossed the Red River, in accordance with the terms of the treaty.23

In 1901 Congress passed an Act, in which, after reciting that this Court had adjudged in the Greer County Case that "the degree of In 1887 the President issued a proclama- longitude one hundred west" designated in tion reciting that the United States owned the treaty of 1819, "referred to the true one all of the territory lying between the 100th hundredth meridian astronomically located," meridian and the North and South Forks of and that "the true intersection of this meridthe Red River, but that the State of Texasian" with the South Fork of Red River had had asserted a conflicting claim thereto grow-not been fixed by the United States and Texing out of a controversy as to the point whereas, acting together, nor "by the decree in said the meridian crossed the Red River, as de- cause," the Secretary of the Interior was scribed in the treaty of 1819, and that the United States commissioners appointed un

#31

der the Act of 1885 had by their report determined that the *South Fork was the true Red River designated in the treaty, but the Texas commissioners had refused to concur in this report; and admonishing and warning the officers of Greer County and all other persons against exercising or attempting to exercise any authority over these lands.24

In 1890 Congress created the Territory of Oklahoma out of a portion of the Indian Territory bounded on the west and south by the boundary lines of the State of Texas; 25 and by the same Act directed that a suit in equity be brought in this Court on behalf of the United States against the State of Texas, to settle the controversy as to the title to the land included in Greer County lying east of the 100th meridian, and between the Forks

of the Red River. The suit was instituted in the same year.

In 1891 the surveys made by Clark, the United States commissioner, under the Act of 1858, of the western and northern boundary lines of Texas, were "confirmed" by an Act of Congress 26 and by a Joint Resolution of the Texas Legislature;27 but neither the Act nor the Resolution made any reference to the survey of the eastern boundary.

In 1892 H. S. Pritchett, Director of the Astronomical Observatory of Washington University, St. Louis, was employed by Texas to establish, scientifically and accurately, the intersection of the 100th meridian with the Red River. He located this intersection

23 23 Stat. 296, c. 47.

24 23 Stat. 843. The report of the United States commissioners appears in House Ex. Doc. No. 21, 50th Cong., 1st Sess.

226 Stat. 81, 92, c. 182, § 25.

20 26 Stat. 948, 971, c. 542.

10 Gammel's Laws of the State of Texas, 195.

directed to cause "the intersection of the

true one hundredth meridian" with the South

Fork of the River, to be established and fix

ed "by the most accurate and scientific methods," and a suitable monument to be erected at such intersection. 29

Pursuant to this Act the Secretary of the Interior detailed Arthur D. Kidder, Examiner of Surveys, to establish the point of intersection of the true meridian with the River. He did this work in 1902, making his observations and calculations according to the scientific methods then in use; determined that the true meridian intersected the South Fork at a point 3,699.7 feet east of the initial monument of Jones and Brown, and 97.6 feet west of Pritchett's location; and placed a sandstone monument on the north side of the . stream to mark the point of intersection as thus determined. His report and field notes were approved by the Commissioner of the General Land Office and adopted by the Secretary of the Interior, who transmitted copies

*33

of them to the House of Representatives, and reported, in accordance therewith, that he had caused "the intersection of the true one *hundredth meridian with the Red River" to be determined and established by a permanent monument in compliance with the Act of 1901.30

In March, 1903, Kidder, who meanwhile had been further detailed by the Secretary of the Interior, as astronomer and surveyor, to establish and mark upon the ground the point of intersection of the 100th meridian with the parallel of 36 degrees 30 minutes, and three other astronomical points in the boundary of Texas, was directed by the Com

28 His report appears in House Doc. No. 635, 57th Cong., 1st Sess., p. 31.

(47 S.Ct.)

Kidder completed his supplemental work on the boundary line in 1903, and made a detailed report to the Secretary of the Inte-rected that the line be run north to the in

"The adjustment of these lines is of great interest to the department, because they involve both public lands and lands of the Choctaw Indians, and until they are adjusted present problems and embarrassments which cannot be solved or removed until the lines are definitely fixed and marked. The continued unsettled conIn-lems and involves the Government, settlers on dition of these boundary lines adds to the probthe public lands, and citizens of the Indian tribes and of the State of Texas in trouble and expense

of which they should be relieved at the tween Texas and Oklahoma, and possibly the earliest possible moment."

This letter and resolution was referred to the House Judiciary Committee.36

In November, 1907, Oklahoma was admitted as a State of the Union.37

In 1910 the House Committee on Indian Affairs recommended for passage another Joint Resolution introduced by the Representative from Texas for the creation of a commission to establish and mark the boundary lines between Texas and the Territories of the United States, corresponding to the Joint Resolution which had been recommended by the Secretary of the Interior in 1907,38 but no further action was taken by Congress in reference to the matter.

In 1910 also one John L. Wortham filed applications with the surveyors of the five counties that had been created in 1876, under the provisions of the Texas Acts authorizing the sale of vacant land, for the purchase from the State of the land on the east of these counties lying in the strip now in dispute, between the Jones, Brown and Clark line and Kidder's location of the 100th meridian, which had not been previously embraced in the land surveys of these counties. One of

*37

United States and certain Indian tribes, concerning the boundaries between the two States, and directed that a suit be instituted in this Court for the purpose of determining and settling these boundaries.39 But before

this suit had been commenced the State of Oklahoma brought its suit in the present cause, in which, as has been stated, the State of Texas set up by counter*claim its contention in respect to the location of the 100th meridian.

*38

In 1923 the United States Coast and Geodetic Survey undertook to locate the portion of the 100th meridian in controversy by a modern and scientific method of triangulation, and concluded that the true meridian ran 371.5 feet east of the Kidder monument. In addition to the foregoing matters the parties have stipulated that:

"The United States, the Territory of Oklahoma and the State of Oklahoma in succession have continuously enforced their laws, civil and criminal over the strip here in dispute ever since the decision in the Greer County Case."

It further appears that prior to May 3, 1920, the United States had disposed of 20,657 acres in the strip in dispute by patents issued on homestead entries and public sales,

for which it had collected $8,026; that 3118

acres had been included in the school and uni

were then 318 acres in pending entries, leav

land. The dates of these patents and grants

are not shown.

We come now to the consideration of the several contentions made by the parties.

these surveyors *having refused to make a survey for the purpose of obtaining a grant, it was held by the Texas Court of Civil Ap-versity grants to Oklahoma; and that there peals, in 1912, that mandamus would not lie to compel him so to do, on the ground, sub-ing, it was estimated, 118 acres of vacant stantially, that as the undisputed facts show that the State of Texas was not exercising jurisdiction over this land, it was not the duty of the county surveyor to survey lands which the political powers of this state In the first place it is to be observed that recognized as lying beyond its limits, and while the intersection of the line of the 100th the court had no jurisdiction to determine meridian and the South Fork of Red River whether the de facto boundary line was has been located four times, that is, by Jones the de jure boundary of the State, this be- and Brown in 1859, by Pritchett in 1892, by ing a political and not a judicial question. Kidder in 1902, and by the Coast and GeodetWortham v. Sullivan, 147 S. W. 702. On the ic Survey in 1923-the three latter locations other hand, however, surveys having been differing between themselves by less than 400 made by other county surveyors and the ap-feet-there is no extrinsic evidence showing plications returned to the General Land Of fice of Texas, three patents were issued to Wortham by the State of Texas later in the same year covering 2,002 acres of the strip of land in dispute; this being the only part of this strip which Texas has ever attempted to patent. Since that time, it is stipulated, the award to Wortham of other lands in this strip has been held in abeyance "on account the boundary by *the decision and decree in of the shadow of doubt cast upon the legal | the Greer County Case, and, also, independstatus of the aforesaid Kidder line," but "the General Land Office of Texas has in no sense abandoned its claim to the area west of and adjacent to" that line.

In 1919 the Texas Legislature passed an Act reciting the existence of a controversy be

36 House Doc. No. 54, 60th Cong., 1st Sess. 37 President's Proclamation, 35 Stat. 2160. 38 House Joint Res. No. 6, 61st Cong., 2d Sess.; House Report No. 1250, 61st Cong., 2d Sess.

that any one of these locations is precisely correct. Nor is this claimed. And we have now no occasion to settle the exact location of the meridian line, as an original matter; the present contentions, as stated at the outset, being, on the one side, that the Jones, Brown and Clark line is conclusively established as

*39

ently of that adjudication, by long continued recognition, acquiescence, and the exercise of jurisdiction, and on the other side, that a line running north from the Kidder monument is the established boundary. We take up these contentions in their order.

[1] 1. The Greer County suit was brought by the United States against Texas solely to

30 Concurrent Resolution, 2d Called Sess., General Laws of Texas, 1919, p. 462.