opinion: OHIO v. KENTUCKY
  No. 27,
  Orig.
  Argued December 3, 1979
  Decided January 21, 1980
  BlacKMUN, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, post, p. 341.
  James M. Bingo, Assistant Attorney General of Kentucky, argued the cause for defendant. With him on the briefs were Robert F. Stephens, Attorney General, and George F. Babe.
  Michael R. Szolosi argued the cause for plaintiff. With him on the brief were William J. Brown, Attorney General of Ohio, Howard B. Abramoff, Assistant Attorney General, and Stephen C. Fitch.
  Mr. Justice Blackmun
  delivered the opinion of the Court.
  The State of Ohio, in 1966, instituted this action, under the Court’s original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is “the low water mark on the northerly side of the Ohio River in the year 1792.” Leave to file the bill of complaint was granted. 384 U. S. 982 (1966). In due course, Kentucky filed its answer and a Special Master was appointed. 385 U. S. 803 (1966). In its answer, Kentucky alleged that the boundary fine is the current low-water mark on the northerly side of the Ohio River.
  Ohio later moved for leave to file an amended complaint that would assert, primarily, that the boundary between Ohio and Kentucky is the middle of the Ohio River, and, only alternatively, is the 1792 low-water mark on the northerly shore. That motion was referred to the Special Master. 404 U. S. 933 (1971). The Special Master held a hearing and in due course filed his report recommending that Ohio's petition for leave to amend be denied. 406 U. S. 915 (1972). Upon the filing of Ohio's exceptions and Kentucky’s reply, the matter was set for hearing. 409 U. S. 974 (1972). After argument, the Special Master’s recommendation was adopted, Ohio’s motion for leave to amend was denied, and the case was remanded. 410 U. S. 641 (1973).
  The Honorable Robert Van Pelt, who by then had been appointed Special Master following the resignation of his predecessor, thereafter filed his report on the case as shaped by the original pleadings. That report was received and ordered filed. 439 U. S. 1123 (1979). Kentucky lodged exceptions to the report, and Ohio filed its' reply. Oral argument followed.
  The Special Master recommends' "that this Court determine that the boundary between Ohió and Kentucky “is the low-water mark on the northerly side of the Ohio River as it existed in the year 1792”; that the boundary “is not the low-water mark on the northerly side of the Ohio River as it exists today”; and that such boundary, “as nearly as it can now be ascertained, be determined either a) by agreement of the parties, if reasonably possible, or b) by joint survey agreed upon by the parties,” or, in the absence of such an agreement or survey, after hearings conducted by the Special Master and the submission by him to this Court of proposed findings and conclusions. Report of Special Master 16.
  We agree with the Special Master. Much of the history concerning Virginia’s cession to the United States of lands “northwest of the river Ohio” was reviewed and set forth in the Court’s opinion concerning Ohio’s motion for leave to amend its 1966 complaint. 410 U. S., at 645-648. Upon the denial of Ohio’s motion, the case was left in the posture that the boundary between the two States was the river’s northerly low-water mark. The litigation, thus, presently centers on where that northerly low-water mark is — is it the mark of 1792 when Kentucky was admitted to the Union, ch. IV, 1 Stat. 189, or is it a still more northerly mark due to the later damming of the river and the consequent rise of its waters?
  It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., Nebraska v. Iowa, 143 U. S. 359 (1892), or the Mississippi River between Arkansas and Mississippi. See Mississippi v. Arkansas, 415 U. S. 289 (1974), and 415 U. S. 302 (1974). See also Iowa v. Illinois, 147 U. S. 1 (1893); Missouri v. Nebraska, 196 U.S. 23 (1904); Minnesota v. Wisconsin, 252 U. S. 273 (1920); New Jersey v. Delaware, 291 U. S. 361 (1934); Arkansas v. Tennessee, 310 U. S. 563 (1940). In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application.
  A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, Texas v. Louisiana, 410 U. S. 702 (1973), where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river’s expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia’s GenerabAssembly for the cession to the United States (“the lands northwest of the river Ohio”), 10 W. Hening, Laws of Virginia 564 (1822); the Virginia Act of 1783 (“the territory ... to the north-west of the river Ohio”), 11 W. Hening, Laws of Virginia 326, 327 (1823); and the deed from Virginia to the United States (“the territory ... to the northwest of the river Ohio”) accepted by the Continental Congress on March 1, 1784, 1 Laws of the United States 472, 474 (B. & D. ed. 1815). The Court acknowledged this through Mr. Chief Justice Marshall’s familiar pronouncement with respect to the Ohio River in Handly’s Lessee v. Anthony, 5 Wheat. 374, 379 (1820):
  “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 newly-created State extends to the river only. The river, however, is its boundary.”
  The dissent concedes as much. Post, at 342. The dissent then, however, would be persuaded by whatever is “the current low-water mark on the northern shore.” Post, at 343. But it is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio, antecedents that fix the boundary not as the river itself, but as its northerly bank. Handly’s Lessee, in our view, supports Ohio’s position, not the dissent’s. If there could be any doubt about this, it surely was dispelled completely when the Court decided Indiana v. Kentucky, 136 U. S. 479 (1890). There Mr. Justice Field, speaking for a unanimous Court, said:
  “[Kentucky] 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 water 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.
  “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.” Id., at 508, 518-519.
  The fact that Indiana v. Kentucky concerned a portion of the Ohio River in its Indiana-Kentucky segment, rather than a portion in its Ohio-Kentucky segment, is of no possible legal consequence; the applicable principles are the same, and the holding in Indiana v. Kentucky has pertinent application and is controlling precedent here. The Court’s flat pronouncements in Indiana v. Kentucky are hot to be rationalized away so readily as the dissent, post, at 343-345, would have them cast aside. Kentucky’s present contentions, and those of the dissent, were rejected by this Court 90 years ago.
  We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court’s holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master’s report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. See, e. g., Utah v. United States, 420 U. S. 304 (1975), and 427 U. S. 461 (1976); New Hampshire v. Maine, 426 U. S. 363 (1976), and 434 U. S. 1 (1977). The dissent’s concern about the possibility, surely extremely remote, that the comparatively stable Ohio River might “pass completely out of Kentucky’s borders,” post, at 343, is of little weight. Situations where land of one State comes to be on the “wrong” side of its boundary river are not uncommon. See Wilson v. Omaha Indian Tribe, 442 U. S. 653 (1979); Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 369, n. 5 (1978); Missouri v. Nebraska, 196 U. S. 23 (1904).
  Finally, it is of no little interest that Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary. Informational Bulletin No. 93 (1972), issued by the Legislative Research Commission of the Kentucky General Assembly, states:
  “Kentucky’s North and West boundary, to-wit, the low water mark on the North shore of the Ohio River as of 1792, has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia.” Id., at 3.
  See also the opinion of the Attorney General of Kentucky, OAG 63-847, contained in Kentucky Attorney General Opinions 1960-1964. See also Perks v. McCracken, 169 Ky. 590, 184 S. W. 891 (1916), where the court stated that the question in the case was “where was the low water mark at the time Kentucky became a State.”
  The exceptions of the Commonwealth of Kentucky to the report of the Special Master áre overruled. The report is hereby adopted, and the case is remanded to the Special Master so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree.
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