Missouri v. Nebraska (196 U.S. 23)

by John Marshall Harlan

United States Supreme Court

196 U.S. 23

Missouri  v.  Nebraska

 Argued: February 24, 1904. --- Decided: December 19, 1904

This is a case of disputed boundary between two states of the Union.

The suit was commenced by an original bill filed in this court by the state of Missouri against the state of Nebraska. The relief sought by the former state is a decree declaring its right of possession of, and its jurisdiction and sovereignty over, certain territory east and north of the center of the main channel of the Missouri river as it runs between the two states at the present time; that Missouri be quieted in its title thereto; and that the state of Nebraska be forever enjoined and restrained from disturbing Missouri in the full enjoyment and possession of said territory.

The state of Nebraska, after answering, filed a cross bill asking a decree confirming the possession, jurisdiction, and sovereignty of Nebraska over said territory; that the boundary line between that part of Missouri known as Atchison county and that part of Nebraska known as Nemaha county, be ascertained and established, and permanent monuments erected to indicate the location of such line; and that the state of Missouri be enjoined and restrained from disturbing the state of Nebraska in the full enjoyment and possession of said territory.

The commissioners heretofore appointed to take the evidence have filed their report, and it is agreed that their finding of facts is correct. The case is before us upon questions of law arising out of the pleadings, the report of the commissioners, and the stipulation of the parties.

By an act of Congress of March 6th, 1820, provision was made for the admission of Missouri into the Union with the following boundary: 'Beginning in the middle of the Mississippi river, on the parallel of thirty-six degrees of north latitude; thence west, along that parallel of latitude, to the San Francois river; thence up and following the course of that river, in the middle of the main channel thereof, to the parallel of latitude of thirty-six degrees and thirty minutes; thence west along the same to a point where the said parallel is intersected by a meridian line passing through the middle of the mouth of the Kansas river, where the same empties into the Missouri river; thence from the point aforesaid, north, along the said meridian line, to the intersection of the parallel of latitude which passes through the rapids of the river Des Moines, making the said line to correspond with the Indian boundary line; thence east from the point of intersection last aforesaid, along the said parallel of latitude, to the middle of the channel of the main fork of the said river Des Moines; thence down and along the middle of the main channel of the said river Des Moines to the mouth of the same, where it empties into the Mississippi river; thence due east to the middle of the main channel of the Mississippi river; thence down and following the course of the Mississippi river, in the middle of the main channel thereof, to the place of beginning: Provided, That said state shall ratify the boundaries aforesaid: (a) And provided also, That the said state shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the said state, so far as the said river shall form a common boundary to the said state and any other state or states, now or hereafter to be formed and bounded by the same, such rivers to be common to both; and that the river Mississippi, and the navigable rivers and waters leading into the same, shall be common highways, and forever free, as well to the inhabitants of the said state as to other citizens of the United States, without any tax, duty, impost, or toll therefor imposed by the said state.' 3 Stat. at L. 545, chap. 22.

On the 15th day of January, 1831, the state of Missouri, speaking by its legislature, memorialized Congress to make more certain and definite its northwest boundary. That memorial, among other things, stated: 'When this state government was formed, the whole country on the west and north was one continued wilderness, inhabited by none but savages, and but little known to the people or to the government of the United States. Its geography was unwritten, and none of our citizens possessed an accurate knowledge of its localities, except a few adventurous hunters and Indian traders. The western boundary of the state, as indicated by the act of Congress of the 6th of March, 1820, and adopted by the Constitution of Missouri, is a 'meridian line passing through the middle of the mouth of the Kansas river, where the same empties into the Missouri river,' and extends from the parallel of latitude of 36 degrees and 30 minutes north, 'to the intersection of the parallel of latitude which passes through the rapids of the river Des Moines.' The part of this line which lies north of the Missouri river has never been surveyed and established, and consequently its precise position and extent are unknown. It is believed, however, that it extends about 100 miles north from the Missouri river, and almost parallel with the course of the stream, so as to leave between the line and the river a narrow strip of land, varying in breadth from 15 to 30 miles. This small strip of land was acquired by the United States from the Kansas Indians, by the treaty of the 3d of June, 1825 [7 Stat. at L. 244], and is now unappropriated and at the free disposal of the general government. . . . These considerations seem to us sufficiently obvious to impress upon the public mind the necessity of interposing, whenever it is possible, some visible boundary and natural barrier between the Indians and the whites. The Missouri river, bending as it does, beyond our northern line, will afford the barrier against all the Indians on the southwest side of that river, by extending the north boundary of this state in a straight line westward, until it strikes the Missouri, so as to include within this state the small district of country between that line and the river, which we suppose is not more than sufficient to make two, or at the most three, respectable counties. . . . In every view, then, we consider it expedient that the district of county in question should be annexed to and incorporated with the state of Missouri; and to that end we respectfully ask the consent of Congress. . . . With these views of the present condition and future importance of that little section of country, and seeing the impossibility of conveniently attaching it now or hereafter to any other state, your memorialists consider it highly desirable, and indeed necessary, that it should be annexed to and form a part of the state of Missouri. And to the accomplishment of that desirable end we respectfully request the assent of Congress.'

A subsequent act, entitled 'An Act to Extend the Western Boundary of the State of Missouri to the Missouri River,' approved June 7th, 1836, provided: 'That when the Indian title to all the lands lying between the state of Missouri and the Missouri river shall be extinguished, the jurisdiction over said lands shall be hereby ceded to the state of Missouri, and the western boundary of said state shall be then extended to the Missouri river, reserving to the United States the original right of soil in said lands, and disposing of the same: Provided, That this act shall not take effect until the President shall, by proclamation, declare that the Indian title to said lands has been extinguished; nor shall it take effect until the state of Missouri shall have assented to the provisions of this act.' 5 Stat. at L. 34, chap. 86.

It is alleged in the bill that Congress intended by the act of 1836 to meet the wishes of Missouri as expressed in its memorial; that after the passage of that act the President, by proclamation [5 Stat. at L. 802] declared that the Indian title to the lands covered by that act had been extinguished; and that Missouri duly assented to its provisions.

By an act of Congress approved February 9th 1867 [14 Stat. at L. 391, chap. 36], Nebraska was admitted into the Union, with the following boundary: 'Commencing at a point formed by the intersection of the western boundary of the state of Missouri with the fortieth degree of north latitude; extending thence due west along said fortieth degree of north latitude to a point formed by its intersection with the twenty-fifth degree of longitude west from Washington; thence north along said twenty-fifth degree of longitude to a point formed by its intersection with the forty-first degree of north latitude; thence west along said forty-first degree of north latitude to a point formed by its intersection with the twenty-seventh degree of longitude west from Washington; thence north along said twenty-seventh degree of west longitude to a point formed by its intersection with the forty-third degree of north latitude; thence east along said forty-third degree of north latitude to the Reya Paha river; thence down the middle of the channel of said river, with its meanderings to its junction with the Niobrara river; thence down the middle of the channel of said Niobrara river, and following the meanderings thereof, to its junction with the Missouri river; thence down the middle of the channel of said Missouri river, and following the meander ings thereof to the place of beginning.' 13 Stat. at L. 47, chap. 59.

Messrs. Edward C. Crow and Sam B. Jeffries for the State of Missouri.

[Argument of Counsel from pages 27-32 intentionally omitted]

Messrs. Frank N. Prout and W. H. Kelligar for state of Nebraska.

Mr. Justice Harlan delivered the opinion of the court:

Notes