Unmistakable Marks: When States Draw the Line
Don’t think state boundary disputes affect surveyors at the local level? Think again.
Surveyors are intimately familiar with the frequent disagreements between private landowners over a disputed boundary line. However, the disagreements most likely to make headlines are those situations where adjoining states are unable to agree on the location of their common boundaries.
While disputes over state boundaries might seem too large an issue for many surveyors to consider relevant to their practice, many of the principles applied by the U.S. Supreme Court in state boundary disputes are equally applicable to local disputes over municipal boundary lines or other regulatory divisions. The principles discussed below can also be of great significance to any surveyor who surveys tracts near or on a state boundary line.
Acquiescence originated as a common law principle applied to private boundary disputes, but it has since been modified to serve the U.S. Supreme Court in many instances where adjoining jurisdictions cannot agree on the location of a state boundary line. One of the earliest rulings to consider acquiescence between states remains a benchmark decision today. Rhode Island v. Massachusetts 1 considered a boundary created by charter in 1628. A portion of the original language described the disputed line as: “…lying within the space of three English miles on the south part of Charles River, or of any or every part thereof…” The beginning point of the dividing line was established circa 1642 by Nathaniel Woodward and Solomon Saffrey, but the line was not marked until 1664, when a joint commission representing both the colonies of Plymouth and Massachusetts met to determine its location. Massachusetts accepted results of the survey, and the court presumes that the Plymouth Colony did as well.
This survey and return of the boundary between colonies was seen by the court as a legitimate effort to clarify the previously vague terms of the original descriptions. However, disagreement over the location of the line continued and additional survey work was performed circa 1702. At this time, it was discovered that several towns and grants had been established that conflicted with the original state line.
Commissioners from both colonies met again in 1711 and concluded the original beginning point of the 1642 survey conducted by Woodward and Saffrey was skillfully established and adequately determined the location of the line as described in the original charters. The 1642 point of beginning was reaffirmed in 1718 and yet again in 1749.
In 1754, Connecticut consulted with English legal authorities and was told that, while agreements between the colonies were not binding on the crown, it would be unreasonable to set aside an amicable agreement between the colonies. It appears that neither state mounted a significant challenge to the boundary line as established until the action leading to the 1846 decision.
In attempting to resolve a boundary dispute with a 200-year history, the court took into consideration the fact that the line was originally run at a time when the precise location was considered to be of little significance. There was no apparent evidence of fraud associated with the establishment of the state boundary line.
In the final page of a lengthy decision, the Supreme Court states: “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 states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary.” 1 This statement became the basis of the principle of acquiescence between sovereign states, and has been affirmed on numerous subsequent disputes between states.
Differences Between State, Private Disputes
A major difference between acquiescence as demonstrated between individual landowners and sovereign states is the actions that will adequately demonstrate an apparent meeting of minds.
Where private parties dispute, the evidence will likely involve fences, maintenance or surveyed lines. Where states or municipalities are the parties to a dispute, sovereignty of disputed tracts will often be demonstrated by control of voting precincts, taxation, school districting or permitting processes. In cases where a state, county or municipal government exercises dominion for many years over citizens utilizing typical functions of government, courts are likely to consider this significant evidence of acquiescence.
Another difficulty facing the U.S. Supreme Court in these decisions has been determining the minimum length required to settle state boundary dispute. Many states apply the statute of limitations (or the 20-year standard established by English statute) to disputes between private adjoiners.
Where private parties dispute, the evidence will likely involve fences, maintenance or surveyed lines. Where states or municipalities are the parties to a dispute, sovereignty of disputed tracts will often be demonstrated by control of voting precincts, taxation, school districting or permitting processes.
Claims between sovereigns generally require much greater duration. In Rhode Island v. Massachusetts, two centuries was considered sufficient. In the 2003 decision Virginia v. Maryland 2, Justice Rehnquist declined to set a minimum duration for claims of this type, but noted that only once in the history of the nation’s highest court had a span of less than 40 years sufficed to prove acquiescence between sovereigns.
Additional Complications with River Boundaries
Many decisions have built on and clarified the principle enunciated in Rhode Island v. Massachusetts — sometimes in unexpected ways. At first glance, Ohio v. Kentucky 3 appears to deal solely with the riparian law and its effect on the state boundary along the Ohio River. However, a more detailed reading of this decision demonstrates an unlikely overlap between riparian law and acquiescence.
The numerous disputes over the Ohio River boundary are based in part on the unusual mechanism by which the boundary was created. Where they are unaffected by mitigating circumstances, river boundaries between sovereign nations or states will be considered to extend to the line of navigation of the river. In this instance, the lands on both sides of the river that later would become Ohio and Kentucky were originally part of Virginia. Since Virginia first ceded lands beyond “the low water mark on the northerly side of the Ohio River” to the United States in 1784, the subsequent creation of Kentucky on the south side of the river could not (theoretically) change the preexisting boundary line. In a 1971 addendum to their original complaint, Ohio contended that the state boundary should be in the middle of the Ohio River.
Justice Blackmun recognizes several previous court decisions that had already established the state boundary in question as being the low water mark on the north bank of the Ohio River as it existed in 1792.
As early as 1820, Chief Justice Marshall affirmed the effect of the original formation of the state boundary along the Ohio River: 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.4 Several subsequent decisions strengthened the effect of this early decision.
In his 1973 decision, Justice Blackmun admits that a few prior decisions included comments that cast doubt on the location of the disputed line. It was also argued that Virginia did not actually have title to the bed of the river and therefore had no power to reserve the riverbed in the original transfer to the United States. However, another relevant decision in 1850 noted that: “The construction given to the Virginia deed of cession by the supreme court of the United States, having been thus acquiesced in and acted on by the courts, both of Virginia and Ohio, may be regarded as decisive of the question.” 5
Both states had exercised dominion and authority up to the north bank of the river for many years. In 1810, the Kentucky Legislature passed a statute recognizing that counties bordering the Ohio River would be considered to extend to the north bank of the river. In addition, numerous court rulings from both Kentucky and Ohio court recognized the north bank of the river as the state boundary line.
Ohio v. Kentucky notes the significance of clear and longstanding claims made by Kentucky over the river. This court also failed to observe any significant evidence that Ohio ever disputed the claims. Justice Blackmun concludes: Ohio does not say that its failure to assert its claim over the past century and a half is due to any excusable neglect. The implications of Handly and later decisions of this Court are too clear to support that claim. Ohio recognized this in its initial brief here. Nor, in the light of the longstanding and unequivocal claims of Kentucky over the river, and Ohio’s failure to oppose those claims, may Ohio credibly suggest that it has not acquiesced. “The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter’s title and rightful authority.” 5
This quotation is followed by an impressive list of U.S. Supreme Court decisions affirming the principle. While the full list may not merit inclusion in this article, the scope clearly illustrates the extent to which this principle has affected boundaries across the nation. Arkansas, California, Illinois, Indiana, Louisiana, Maryland, Michigan, Mississippi, Nevada, Tennessee, Vermont and Wisconsin have all been party to state boundary disputes where acquiescence was a factor.
As recently as 2013, The Wall Street Journal 6 reported a possible renewal of a long-standing disagreement between Georgia and Tennessee over their common state boundary. It seems unlikely that we have seen the last chapter in land wars between states.
- Rhode Island v. Massachusetts: 45 U.S. 591; 11 L. Ed. 1116; 1846
- Virginia v. Maryland: 540 U.S. 56; 124 S. Ct. 598; 157 L. Ed. 2d 461; 2003
- Ohio v. Kentucky; 410 U.S. 641; 93 S. Ct. 1178; 35 L. Ed. 2d 560 (1973)
- Handly’s Lessee v. Anthony, 5 Wheat. 374 (1820)
- Ohio v. Kentucky; 410 U.S. 641; 93 S. Ct. 1178; 35 L. Ed. 2d 560 (1973)
- The Wall Street Journal, April 10, 2013: Article by Cameron McWhirter
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.