Maryland v. West Virginia (217 U.S. 1)/Opinion of the Court

by William R. Day

United States Supreme Court

217 U.S. 1

Maryland  v.  West Virginia

 Argued: November 2, 3, 4, 1909. --- Decided: February 21, 1910

This case originates in a bill filed by the state of Maryland, October 12, 1891, against the state of West Virginia, invoking the original jurisdiction of this court, conferred by the Constitution for the settlement of controversies between states. At its January session of 1890 the general assembly of the state of Maryland passed an act authorizing and directing its attorney general to take such steps as might be necessary to obtain a decision of the Supreme Court of the United States which would settle the controversy between the states of Maryland and West Virginia concerning the true location of that portion of the boundary line between the two states lying between Garrett county, Maryland, and Preston county, West Virginia.

Preston county, West Virginia, was erected out of Monongalia county, Virginia, in the year 1818. Garrett county, Maryland, was erected out of the western portion of Alleghany county under chapter 212 of the Acts of the General Assembly of the State of Maryland of 1872.

The boundary in controversy runs between the two states from the head waters of the Potomac to the Pennsylvania line.

The bill of complaint states the foundation of the Maryland title to be the charter granted on June 20, 1632, by King Charles I. of England to Cecilius Calvert, Baron of Baltimore, all rights under which, it is averred, have vested in the complainant, the state of Maryland. Virginia, it is alleged, by her first Constitution of June 29, 1776, disclaimed all rights to property, jurisdiction, and government over the territory described in the charter of Maryland and the other colonies, in the following terms:

'The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction, and government, and all other rights whatsoever which might, at any time heretofore, have been claimed by Virginia, except the free navigation and use of the rivers Potomac and Pokomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon.' The bill also recites complainant's title to the South Branch of the Potomac river. It avers the failure to settle the true location of the boundary line in dispute with West Virginia, which state succeeded to the rights and title of Virginia. The bill charges that the state of West Virginia is wrongly in possession, of, and exercising jurisdiction over, a large part of the territory rightfully belonging to Maryland; that the true line of the western boundary of Maryland is a meridian running south to the first or most distant fountain of the Potomac river, and that such true line is several miles south and west of the line which the state of West Virginia claims, and over which she has attempted to exercise territorial jurisdiction.

The state of West Virginia filed an answer and cross bill, in which she sets up her claim concerning the boundary in dispute between the states, and says that the true boundary line, long recognized and established, is the one known as the 'Deakins' line, and in the answer and cross bill she prays to have that line established as the true line between the states. She also alleges in her cross bill that the north bank of the Potomac river, from above Harper's Ferry to what is known as the Fairfax stone, is the true boundary between the states; that West Virginia should be awarded jurisdiction over that portion of the river to the north bank thereof.

There is much documentary and other evidence in the record bearing upon the contention that the South Branch of the Potomac river is the true southern boundary of Maryland, but in the briefs and arguments made on behalf of Maryland in this case the claim for the South Branch of the Potomac as the true boundary is not pressed, and the controversy is narrowed to the differences in the location of the boundary, taking the North Branch of the Potomac river as the true southern boundary line of Maryland.

As we have already said, the contention of the state of Maryland is rested upon the construction of the charter granted by King Charles I., June 20, 1632, to Lord Baltimore. The part of the charter necessary to consider is here given in the original Latin, and the translation thereof, as the same is contended for in the brief filed for the state of Maryland:

Western and Southern Boundaries, Which Calls Are as Follows, to Wit:

Transuendo a dicto aestuario vocato Delaware Bay recta linea per gradum praedictum usque ad verum Meridianum primi Fontis Fluminis de Pottomack deinde vergendo versus Meridiem ad ulteriorem dicti Fluminis Ripam et eam sequendo qua Plaga occidentalis ad Meridianalis [qu. plagam occidentalem et meridianalem] spectat usque ad Locum quendam appelatum Cinquack prope ejusdem Fluminis Ostium scituatum ubi in praefatum Sinum de Chessopeake evolvitur ac inde per Lineam brevissimam usque ad praedictum Promontorium sive Locum vocatum Watkin's Point.

Going from the said estuary called Delaware bay in a right line in the degree aforesaid to the true meridian of the first fountain of the river Potomac, then tending downward towards the south to the farther bank of the said river, and following it to where it faces the western and southern coasts as far as to a certain place called Cinquack, situate near the mouth of the same river, where it discharges itself in the aforenamed bay of Chesapeake, and thence by the shortest line as far as the aforesaid promontory or place called Watkin's Point.

There is some difference in the record as to the true Latin text and the translation thereof. For our purpose it is sufficient to consider that presented by the state of Maryland in the language above set forth. It is to be observed that the purpose of this part of the grant was to locate the northern line of the state of Maryland from Delaware bay 'to the true meridian of the first fountain of the river Potomac, then tending downward toward the south to the farther bank of said river, and following it to where it faces the western and southern coasts as far as to a certain place called Cinquack,' etc.

It is the contention of the state of Maryland that the controversy between her and the state of West Virginia is narrowed to a proper location of the true meridian from the first fountain head of the Potomac river, which, being located, will effectually settle the boundary line in dispute. The claim of the state of Maryland may be further illustrated by a consideration of the plate exhibited in the brief filed in behalf of that state, which is herewith given:

It is to be noted in considering this plate that the north and south line at the left is called the Potomac meridian, running from a certain point designated as the Potomac stone. It is insisted for the state of Maryland that the spring at this point most nearly fulfils the terms of the Lord Baltimore charter, in that it properly locates the true meridian of the first fountain head of the Potomac river, and following it according to the description in the grant, embraces said river to its farther bank as the true boundary of Maryland.

On the other hand, West Virginia contends that the true head of the river Potomac is at the Fairfax stone, and that the boundary should be located by a line from the spring at that point; and that such has long been the recognized boundary line between Virginia, West Virginia, and Maryland. The distance from the Fairfax meridian to the Potomac meridian is about 1 1/4 miles, and the distance to the Pennsylvania line about 37 miles.

It may be true that the meridian line from the Potomac stone, in the light of what is now known of that region of country, more fully answers the calls in the original charter than does a meridian line starting from the Fairfax stone. But it is to be remembered that the grant to Lord Baltimore was made when the region of the country intended to be conveyed was little known was wild and uninhabited, had never been surveyed or chartered, and the location of the upper part of the Potomac river was only a matter of conjecture.

It is said, and the record tends to show, that the only map of the country then known to be in existence was one pre-

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pared and published by Captain John Smith, upon which only a very small part of the Potomac river is shown, and from which we get no light as to the true source and course of the upper reaches of the Potomac river. The so-called Potomac stone was neither set nor located until 1897, six years after the beginning of this suit, when it was put in place by the surveyor in this case, on the part of the state of Maryland. He then set a monument designated as the 'Potomac stone,' and gave the name Potomac to the spring at the origin of that fork of the Potomac river. The so-called Potomac meridian was run by the same engineer, located and named by him in the year 1897.

The Fairfax stone, which is shown at the beginning of the north and south line in plate No. 1, has a history and importance in this case which renders it necessary to note something of its origin and location. Without going into a history of the prior grants in Virginia, we come directly to the one bearing upon this case. It was made in September, 1688, by King James II. of England, for the northern neck of Virginia, to Thomas (Lord) Culpeper, which subsequently became the property of Lord Fairfax, and is usually spoken of as the Fairfax grant. That grant was under consideration in this court in the case of Morris v. United States, 174 U.S. 198, 43 L. ed. 947, 19 Sup. Ct. Rep. 649, a case to which we shall have occasion to refer later, and from page 223 of that report we take a description of so much of the grant as is necessary to a consideration of this cause. The northern neck of Virginia is described in that grant as follows:

'All that entire tract, territory, or parcel of land situate, lying, and being in Virginia in America, and bounded by and within the first heads or springs of the rivers of Tappahannock als Rappahannock and Quiriough als Patowmack rivers, the courses of said rivers from their said first heads or springs, as they are commonly called and known by the inhabitants and description of those parts and the bay of Chesapeake, together with the said rivers themselves and all the islands within the outermost banks thereof, and the soil of all and singular the premises, and all lands, woods, underwood, timber, and trees, wayes, mountains, swamps, marshes, waters, rivers, ponds, pools, lakes, water courses, fishings, streams, havens, ports, harbours, bays, creeks, ferries, with all sorts of fish, as well whales, sturgeons, and other royal fish. . . . To have, hold, and enjoy all the said entire tract, territory, or portion of land, and every part and parcel thereof, . . . to the said Thomas, Lord Culpeper, his heirs and assigns forever.'

The territory embraced in this northern neck became subject to the jurisdiction and dominion of Virginia, and the boundary lines fixed for it became important in determining the true boundary between Virginia and adjoining states. In the grant to Lord Culpeper the tract is described as lying in Virginia, in America, and bounded by and within the first heads or springs of the rivers, Rappahannock and Patowmack. Disputes having arisen between the governor and council of Virginia and Lord Fairfax, touching the true boundary of the grant, an order was made on November 29, 1733, by the King in Council, reciting that Lord Fairfax had petitioned for an order to settle the boundaries of his tract, and for a commission to issue, run out, and ascertain the boundaries of the same. The King granted an order, and thereafter the governor of Virginia, on September 7, 1736, appointed certain commissioners to act for the colony of Virginia in the matter; Lord Fairfax appointed certain commissioners to act on his behalf.

The instructions to the commissioners required them to make a clearer description of the boundaries in controversy, to make exact maps of the rivers Rappahannock and Potomac, and the branches thereof to the head or spring, so-called or known, and the surveys made by them, with correct maps thereof, to be laid before his Majesty. The commission adopted the North Branch of the Potomac river, then known as the Cohaungoruton, and after further proceedings, which are not necessary to recite in detail, and after a reference to the Lords of Trade and Plantations, a report was made which, among other things, stated that a line run from the first head or spring of the south or main branch of the Rappahannock river to the first head or spring of the Potomac river is, and ought to be, the boundary line determining the tract or territory of land commonly called the northern neck. Ultimately the matter was laid before the King in Council, and commissioners were appointed to mark and run the line between the head spring of the rivers Rappahannock and Potomac, and the stone called the Fairfax stone was planted in September, 1746, at the head spring of the Potomac river. In 1748, the location of the stone was approved by the Virginia assembly and the King in Council. This Fairfax stone has been an important monument in settling and establishing boundaries since that time.

It was found still in place in 1859 by Lieutenant Michler, who made a survey on behalf of the boundary commissioners of Maryland and Virginia, to which we shall have occasion to refer later on. In his report, Lieutenant Michler describes the stone as follows:

'The initial point of the work, the oftmentioned, oft-spoken of 'Fairfax stone,' stands on a spot encircled by several small streams flowing from the springs about it. It consists of a rough piece of sandstone, indifferent and friable, planted to a depth of a few feet in the ground, and raising a foot or more above the surface. Shapeless in form, it would scarcely attract the attention of the passer-by. The finding of it was without difficulty and its recognition and identification, by the inscription 'Ffx,' now almost obliterated by the corroding action of water and air.'

Without stopping to mention the cases in which Virginia has recognized this monument in creating counties and otherwise, it is to be noted that it was recognized as a boundary point by the state of Maryland in erecting Garrett county, the boundary between which and Preston county, West, Virginia, it was the purpose of the act of the legislature of Maryland to have settled by the filing of the bill and proceedings in the present case.

By the Constitution of Maryland of 1851 it is provided (article 8, § 2):

'When that part of Alleghany county lying south and west of a line beginning at the summit of Big Back Bone or Savage mountain where that mountain is crossed by Mason and Dixon's line, and running thence by a straight line to the middle of Savage river, where it empties into the Potomac river, thence by a straight line to the nearest point or boundary of the state of Virginia, thence with said boundary to the Fairfax stone, shall contain a population of ten thousand, and the majority of electors thereof shall desire to separate and form a new county and make known their desire by petition to the legislature, the legislature shall direct, at the next succeeding election, that the judges shall open a book at each election district in said part of Alleghany county, and have recorded therein the vote of each elector 'for or against' a new county. In case the majority are in favor, then said part of Alleghany county to be declared an independent county, and the inhabitants whereof shall have and enjoy all such rights and privileges as are held and enjoyed by the inhabitants of the other counties in this state.'

In the act of 1872, creating Garrett county, it is provided:

'That all that part of Alleghany county lying south and west of a line beginning at the summit of Big Back Bone or Savage mountain where that mountain is crossed by Mason and Dixon's line, and running thence by a straight line to the middle of Savage river where it empties into the Potomac river; thence by a straight line to the nearest point or boundary of the state of West Virginia, then with the said boundary to the Fairfax stone, shall be a new county, to be called the county of Garrett, provided,' etc.

It appears that not infrequent attempts have been made to settle the controversy between the states now at the bar of this court. In the years 1795, 1801, and 1810 certain commissioners were provided for by the state of Maryland to meet commissioners to be appointed by the state of Virginia, with power to adjust the boundary between the southern and western limits of the state of Maryland and the dividing line between it and Virginia. Nothing seems to have come of these attempts.

In 1818, the state of Maryland passed an act proposing to Virginia the appointment of a commission, to run a line from the most western source of the North Branch of the Potomac.

In February, 1822, the legislature of Virginia expressed its willingness to appoint commissioners, who were to locate the western boundary by a stone located by Lord Fairfax at the head waters of the Potomac river. The commissioners met, but the divergency in their instructions prevented any action.

In 1825, Maryland passed an act for the settlement of the boundary, providing that the governor of Delaware should act as umpire. In 1833, Virginia passed an act providing for commissioners to run the lines from the Fairfax stone, or, at the first fountain of the Cohangoruton or North Branch of the Potomac river. In default of Maryland appointing commissioners, Virginia commissioners were to run and mark the line.

In October, 1834, the state of Maryland filed a bill in this court against the state of Virginia, which bill was subsequently dismissed without any action being taken thereon. In 1859, a line was run by Lieutenant Michler, of the United States Topographical Engineers, to which we shall have occasion to refer more in detail later on.

By an act of 1781, the state of Maryland appropriated land within the state in Washington county, west of Fort Cumberland, with certain exceptions, to discharge the engagements of the state to the officers and soldiers thereof, and, by a resolution passed in April, 1787, the governor and council were requested 'to appoint and employ some skilful person to lay out the manors, and such parts of the reserve and vacant lands, belonging to this state, lying to the west of Fort Cumberland, as he may think fit and capable of being settled and improved, in lots of 50 acres each, bounded by a fixed beginning and four lines only, unless on the sides adjoining elder surveys; that the beginning of each lot be marked with marking irons, or otherwise, with the number thereof, and that a fair book of such surveys, describing the beginning of each lot by its situation, as well as number, be returned and laid before the next general assembly.'

Under this resolution, Francis Deakins was appointed to make the survey, and, in 1788, an act of the general assembly of Maryland was passed. It reads, in part, as follows:

'And whereas, in pursuance of a resolve of the general assembly, at April session, 1787, authorizing the governor and council to appoint and employ some skilful person to lay out the manors and such parts of the reserves and vacant land belonging to this state, lying to the westward of Fort Cumberland, as he might think fit and capable of being settled and improved, in lots of 50 acres each, Francis Deakins was appointed and employed by the governor and council for that purpose, and has finished the said survey, and has returned a general plot of the county westward of Fort Cumberland, on which 4,165 lots of 50 acres each are laid off, besides sundry tracts which have been patented, distinguishing on the plot those lots which have been settled and improved from those which remain uncultivated; and the said Francis Deakins has also returned two books, entitled A and B, in which are entered certificates of all of the lots before-mentioned.'

And further enacted that 2,575 of the aforesaid lots were contained in the following limits: 'Begining at the mouth of Savage river and running with the North Branch of the Potomac river to the head thereof, then with the present supposed boundary line of Maryland until the intersection of an east line to be drawn from said boundary line with a north course from the mouth of Savage river will include the number of lots aforesaid to be distributed by lot among the said soldiers and recruiting officers, and their legal representatives,' etc.

And it further provides that lots granted to officers should be adjacent to those distributed to the soldiers, within the following limits: 'By extending the aforesaid north course from the mouth of Savage river, until its intersection with an east line to be drawn from the aforesaid supposed boundary line of Maryland will include the necessary number, allowing to each officer or his representatives four lots aforesaid.'

The act also contains the following language:

'And be it enacted, that the line to which the said Francis Deakins has laid out the said lots is, in the opinion of the general assembly, far within that which this state may rightfully claim as its western boundary; and that at a time of more leisure the considerations of the legislature ought to be drawn to the western boundaries of the state, as objects of very great importance.'

Deakins filed a map, which is in evidence in this case, and which shows a large number of lots laid out, and also certain outlines of deeds and grants. This line in the briefs and records is sometimes mentioned as having been run in 1787, sometimes 1788, and sometimes 1789. In view of the act of 1788, the line was probably run in that year. As, in our view of the case, the action of Deakins in the location of this line, and his evident adoption of the Fairfax stone as a starting point, is an important feature of this controversy, we insert herein a tracing from the original Deakins map, put in evidence on the part of the state of West Virginia. An inspection of this map shows a north and south line upon the west side thereof, and also some of the military lots laid out by Deakins in that part of the tract. It is to be noted that this north and south line is marked: 'The meridian line and the head of the North Branch of the Potowmack river as fixed by Lord Fairfax.' This could mean but one thing, and that is, an attempted meridian line north from the Fairfax stone, located to the Pennsylvania line.

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We shall have occasion to recur to this line.

In 1852 the legislature of the state of Maryland passed an act concerning the disputed boundary, which act provides:

'Whereas it is of great importance that the western territorial limit of the state of Maryland be clearly defined and her boundary be permanently established; and whereas, the true location of the western line of Maryland between the states of Maryland and Virginia, beginning at or near the Fairfax stone on the North Branch of the Potomac river, at or near its source, and running in a due north line to the state of Pennsylvania, is now lost and unknown, and all the marks have been destroyed by time or otherwise; and whereas, the states of Virginia and Maryland have both granted patents to the same tracts of land at or near the supposed line, and as suits of ejectment are now pending in the circuit court of Alleghany county, in the state of Maryland, by persons holding under Maryland patents against persons now in possession and holding land under patents granted by the state of Virginia, which cannot be justly settled without establishing said boundary line:

'Therefore, section 1. Be it enacted by the general assembly of Maryland, that the governor be and he is requested to open a correspondence with the governor of Virginia in relation to tracing, establishing, and marking the said line, and in case the legislature of Virginia shall pass an act providing for the appointment of a commissioner to act in conjunction with a commissioner on the part of Maryland in the premises, then and in such case, the governor be and he is hereby authorized and requested to appoint a commissioner who, together with the commissioner who shall be appointed on the part of Virginia, shall cause the said line to be accurately surveyed, traced, and marked with suitable monuments, beginning therefor at the said Fairfax stone, and running thence due north to the line of the state of Pennsylvania.

'Sec. 2. And be it enacted, that it shall be the joint duty of the commissioners after running, locating, establishing, and marking the said line, to make a report setting forth all the facts touching, locating, and marking said line; and it shall be the duty of the commissioner of each respective state to forward copies of the joint report to each of their respective legislatures; and upon the ratification of said report by the state of Virginia and the state of Maryland, through their respective legislatures, the said boundary lines shall be fixed and established so to remain forever, unless changed by mutual consent of the two states.'

In 1854, the general assembly of Virginia met this action upon the part of the state of Maryland by the passage of an act which provides:

'Whereas the general assembly of Maryland has passed an act for running and marking the boundary line between that state and the state of Virginia, beginning therefor at the Fairfax stone on the Potomac river, sometimes called the North Branch of the Potomac river, at or near the source, and running thence due north to the line of the state of Pennsylvania; and whereas the legislature of Maryland has requested the appointment of a commissioner on the part of this state to act in conjunction with the commissioner of Maryland to run and mark said line: therefore, be it enacted,

'1. That the governor appoint a commissioner who, together with the Maryland commissioner, shall cause the said line to be accurately surveyed, traced, and marked with suitable monuments, beginning therefor at the Fairfax stone, situated as aforesaid, and running thence due north to the line of the state of Pennsylvania.'

'Upon the ratification of such report by the legislatures of the states of Virginia and Maryland, the said boundary line shall be fixed and established to remain forever, unless changed by mutual consent of the said states.'

Under these acts of the legislatures of the respective states, commissioners were appointed, who made application to the Secretary of War for the services of an officer of the United States Engineers to aid them in carrying out the purposes of the acts. Upon this application, the Secretary of War detailed Lieutenant N. Michler, of the United States Topographical Engineers. As directed in both the acts, Lieutenant Michler commenced his work at the Fairfax stone, and ran a line northwardly, marking it at certain places. This line intersected the Pennsylvania line at a point about three fourths of a mile west from the northern extremity of the Deakins line, which had been run in 1788, as we have already stated. There was a triangle between the Deakins and Michler lines, having its apex at the Fairfax stone, and lines diverging thence, until there was a difference of three fourths of a mile at the base of the triangle at the Pennsylvania line.

It appears that the commissioners of the two states differed, the commissioner of Virginia contending that by the act of the legislature, above referred to, that state had not adopted the meridian line from the Fairfax stone as the boundary. The commissioner of Maryland contended for that meridian line. On March 5, 1860, the legislature of Maryland passed an act adopting the Michler line, commencing at the Fairfax stone at the head of the North Branch of the Potomac river, and running thence due north to the southern line of Pennsylvania, as surveyed in the year 1859 by commissioners appointed by the states of Maryland and Virginia, and thereafter the state of Maryland provided for the marking of the Michler line.

Virginia did not approve of the Michler line, but in 1887 West Virginia passed an act confirming the line as run by Lieutenant Michler in 1859 as the true boundary line between West Virginia and Maryland, but the act was not to take effect until and unless Maryland should pass an act or acts confirming and rendering valid all the entries, grants, patents, and titles from the commonwealth of Virginia to any person or persons, to lands situate and lying between the new Maryland line and the old Maryland line heretofore claimed by Virginia and West Virginia, to the same extent and with like legal effect as though the said old Maryland line was confirmed and established.

The divergence between Michler's line and the line shown on Deakins' map probably arises from the fact that Lieutenant Michler ran a true astronomical line, and that his line is a true north and south line, whereas the Deakins line was probably run with a surveyor's compass, and with less accuracy than the Michler line.

It is the contention of the state of Maryland that Deakins never attempted to run a true north and south line; that he never had any authority from the state of Maryland so to do; and that, in the act confirming the laying out of the lots by Deakins, it was especially declared by the state of Maryland that it did not show the true western boundary of the state; furthermore, that the attempts which have been made to trace the Deakins line show that it is not a true north and south line, but a broken line, having offsets in various places.

The state of Maryland insists that the evidence shows that a number of old grants made prior to the Deakins survey would extend west of the boundary line, as shown either by Deakins or Michler. It is the contention of the state of Maryland that when these grants were made she indicated a line further to the west than either of these lines, and that the ancient grants of large tracts of land show that fact. But the evidence contained in this record leaves no room to doubt that after the running of the Deakins line the people of that region knew and referred to it as the line between the state of Virginia and the state of Maryland. Lieutenant Michler, in the frank and able report filed with his survey, recognizes this situation, for he says:

'The meridian as traced by me last summer differs from all previous lines run; some varying too far to the east, others too far to the west. The oldest one, and that generally adopted by the inhabitants as the boundary line, passes to the east; and from measurements made to it I found that it was not very correctly run. The surveyor's compass was used for the purpose, and some incorrect variation of the needle allowed. Owing to the thick and heavy growth of timber, it is utterly impossible to run a straight line through it without first opening a line of sight. It could only be approximately done.

'When north of the railroad, and the nearer the Pennsylvania line is approached, the settlements and farms become more numerous; and if the meridian line is adopted as the boundary, it will cause great litigation, as the patents of most of the lands call for the boundary as their limits. On the Pennsylvania boundary the new line is about three quarters of a mile west of the old; on the railroad,-feet; at Weill's filed, 85 feet; on the northwestern turnpike, about 40 feet, and on the backbone, about 20 feet.'

These recitals from Lieutenant Michler's report, if the record were lacking in other evidence, would leave little doubt that there was an old boundary line, generally adopted, and that the adoption of the true meridian line, which Lieutenant Michler ran, would cause great litigation because of the acquiescence of the people in the old boundary line,-the Deakins line.

The report of the committee of the Maryland Historical Society, an exhibit in this case, contains a history of the boundary dispute, and it is therein said:

'The provisional line of 1787, or 'Deakins line,' as it was called, had long done duty as a boundary; and as the state granted no lands beyond it, it came to be looked upon, despite the emphatic protest of the assembly of 1788, as the true boundary line of the state. In process of time the marks became obliterated, and conflicts of title and litigation arose between the holders of Maryland and the holders of Virginia patents for lands in the debatable territory. So in May, 1852, the Maryland legislature passed an act reciting these facts, and requesting the governor to open a correspondence with the governor of Virginia about the matter; and authorizing him to appoint a commissioner, if the legislature of Virginia would also appoint one, which joint commission should run and mark a line due north from the Fairfax stone, which line, when ratified by both legislatures, should be the boundary between the states.'

The state of Maryland has herself, in sundry grants, recognized this old line. In a grant by the state of Maryland for a tract called 'Maryland,' dated January 23, 1823, among other calls is this one: 'Running thence south 36 degrees west, 86 perches to the Virginia and Maryland line, as run under the directions of Francis Deakins at the time of laying out the lots to the westward of Fort Cumberland, and thence running,' etc.

In the Deakins description of the first lot north of the Fairfax stone, the following language is used in describing military lot No. 1101:

'Beginning at a bounded maple marked 1100, standing one mile north from a stone fixed by Lord Fairfax for the head of the North Branch of the Powtomack river, and running north 89 1/2 perches; east, 89 1/2 perches; south, 89 1/2 perches; then to the beginning, containing 50 acres.'

This record leaves no doubt as to the truth of the statement contained in the report of the committee of the Maryland Historical Society, that the Deakins line, before the passage of the act under which the Michler line was run, had long been recognized as a boundary and served as such. Even after the Michler line was run and marked, the testimony shows that the people generally adhered to the old line as the true boundary line. There are numerous Virginia grants and private deeds of land given in the record, which call for this old Maryland line as the boundary.

The testimony shows that the people living along the Deakins line worked and improved the roads on the Virginia side, as a general rule, up to this line. Correspondingly, Maryland worked the roads on the other side of this line. On the west of the line, the people paid taxes on their lands in Preston county, West Virginia. They voted in that county, and with rare exceptions regarded themselves as citizens of West Virginia. As a general rule, the schools established there were West Virginia schools. The allegiance of nearly all these people has been given to West Virginia.

It is true there has been more or less contention as to the true boundary line between these states. Attempts have been made to settle and adjust the same, some of which we have referred to, and the details of which may be found in the very interesting document to which we have already made reference, the report of the committee of the Maryland Historical Society. In the proposed settlements, for many years, Virginia and West Virginia have consistently adhered to the Fairfax stone as a starting point for the disputed boundary. When West Virginia passed the act of 1887, ratifying the Michler line, it was upon condition that Virginia titles granted between the Michler line and the old Maryland line should be validated. Maryland, in the act of 1852, recognized the same starting point.

And the fact remains that after the Deakins survey in 1788, the people living along the line generally regarded that line as the boundary line between the states at bar. In the acts of the legislatures of the two states, to which we have already referred, resulting in the survey and running of the Michler line, it is evident from the language used that the purpose was not to establish a new line, but to retrace the old one; and we are strongly inclined to believe that had this been done at that time, the controversy would have been settled.

A perusal of the record satisfies us that for many years occupation and conveyance of the lands on the Virginia side has been with reference to the Deakins line as the boundary line. The people have generally accepted it and have adopted it, and the facts in this connection cannot be ignored. In the case of Virginia v. Tennessee, 148 U.S. 503, 522, 523, 37 L. ed. 537, 544, 13 Sup. Ct. Rep. 728, 736, Mr. Justice Field, speaking for the court, had occasion to make certain comments which are pertinent in this connection, wherein he said:

'Independently of any effect due to the compact as such, a boundary line between states or provinces, as between private persons, which has been run out, located, and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary. Lord Hardwicke in Penn v. Baltimore, 1 Ves. Sr. 444, 448; Boyd v. Graves, 4 Wheat. 513, 4 L. ed. 628; Rhode Island v. Massachusetts, 12 Pet. 657, 734, 9 L. ed. 1233, 1264; United States v. Stone, 2 Wall. 525, 537, 17 L. ed. 765, 767; Kellogg v. Smith, 7 Cush. 375, 382; Chenery v. Waltham, 8 Cush. 327; Hunt, Boundaries, 3d ed. 306.

'As said by this court in the recent case of Indiana v. Kentucky, 136 U.S. 479, 510, 34 L. ed. 329, 332, 10 Sup. Ct. Rep. 1051, 'it is a principle of public law, universally recognized, that long acquiescence in the possession of territory, and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority.' In the case of Rhode Island v. Massachusetts, 4 How. 591, 639, 11 L. ed. 1116, 1137, this court, speaking of the long possession of Massachusetts, and the delays in alleging any mistake in the action of the commissioners of the colonies, said: 'Surely this, connected with the lapse of time, must remove all doubts as to the right of the respondent under the agreements of 1711 and 1718. 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 invoked with greater justice and propriety than in a case of disputed boundary."

And quoting from Vattel on the Law of Nations to the same effect:

'The tranquillity of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute and ever ready to occasion bloody wars. Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title.' [Bk. 2, chap. 11, § 149.]

And adds from Wheaton on International Law:

'The writers on natural law have questioned how far that peculiar species of presumption arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation; but the constant and approved practice of nations shows that by whatever name it becalled, the uninterrupted possession of territory or other property for a certain length of time by one state excludes the claim of every other in the same manner as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question.' [Pt. 2, chap. 4, § 164.]

'There are also moral considerations which should prevent any disturbance of long-recognized boundary lines; considerations springing from regard to the natural sentiments and affections which grow up for places on which persons have long resided; the attachments to country, to home, and to family, on which is based all that is dearest and most valuable in life.'

In Louisiana v. Mississippi, 202 U.S. 1, 53, 50 L. ed. 913, 932, 26 Sup. Ct. Rep. 408, 423, this court said:

'The question is one of boundary, and this court has many times held that, as between the states of the Union, long acquiescence in the assertion of a particular boundary, and the exercise of dominion and sovereignty over the territory within it, should be accepted as conclusive, whatever the international rule might be in respect of the acquisition by prescription of large tracts of country claimed by both.'

An application of these principles cannot permit us to ignore the conduct of the states and the belief of the people concerning the purpose of the boundary line known as the old state, or Deakins, line, and to which their deeds called as the boundary of their farms, in recognition of which they have established their allegiance as citizens of the state of West Virginia, and in accordance to which they have fixed their homes and habitations.

True it is, that, after the running of the Deakins line, certain steps were taken, intended to provide a more effectual legal settlement and delimitation of the boundary. But none of these steps were effectual, or such as to disturb the continued possession of the people claiming rights up to the boundary line.

The effect to be given to such facts as long-continued possession 'gradually ripening into that condition which is in conformity with international order' depends upon the merit of individual cases as they arise. 1 Oppenheim, International Law, § 243. In this case, we think a right in its nature prescriptive has arisen, practically undisturbed for many years, not to be overthrown without doing violence to principles of established right and justice equally binding upon states and individuals. Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. ed. 1233.

It may be true that an attempt to relocate the Deakins line will show that it is somewhat irregular, and not a uniform, astronomical north and south line; but both surveyors appointed by the states represented in this controversy were able to locate a number of points along the line, and the northern limit thereof is fixed by a mound, and was located by the commissioners who fixed the boundary between West Virginia and Pennsylvania by a monument which was erected at that point, and we think from the evidence in this record that it can be located with little difficulty by competent commissioners.

We think, for the reasons which we have undertaken to state, that the decree in this case should provide for the appointment of commissioners whose duty it shall be to run and permanently mark the old Deakins line, beginning at a point where the north and south line from the Fairfax stone crosses the Potomac river, and running thence northerly along said line to the Pennsylvania border.

As to the contention made by West Virginia in her cross bill, that she is entitled to the Potomac river to the north bank thereof, we think that claim is disposed of by the case of Morris v. United States, 174 U.S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649, already referred to. In that case, among other things, there was a controversy between the heirs of James H. Marshall and the heirs of John Marshall as to the ownership of the bed of the Potomac river from shore to shore, including therein certain reclaimed lands. Claim of the one set of heirs was based upon the charter of Lord Baltimore of June, 1632, and that of the others upon the grant of King James II. to Lord Culpeper, afterwards owned by Fairfax, to which we have already referred.

After making reference to the award of the commission to fix the Virginia and Maryland boundary, appointed in 1877, fixing the line and boundary at low-water mark on the Virginia shore, to which arbitration the state of West Virginia was not a party, this court dispossed of the controversy, irrespective of that award, in the following language, used by Mr. Justice Shiras in delivering the opinion of the court:

'Whether the result of this arbitration and award is to be regarded as establishing what the true boundary always was, and that therefore the grant to Thomas, Lord Culpeper, never of right included the Potomac river, or as establishing a compromise line, effective only from the date of the award, we need not determine. For, even if the latter be the correct view, we agree with the conclusion of the court below, that, upon all the evidence, the charter granted to Lord Baltimore by Charles I., in 1632, of the territory known as the province of Maryland, embraced the Potomac river and the soil under it, and the islands therein, to high-water mark on the southern or Virginia shore; that the territory and title thus granted to Lord Baltimore, his heirs and assigns, were never devested by any valid proceedings prior to the Revolution; nor was such grant affected by the subsequent grant to Lord Culpeper.

'The record discloses no evidence that, at any time, any substantial claim was ever made by Lord Fairfax, heir at law of Lord Culpeper, or by his grantees, to property rights in the Potomac river, or in the soil thereunder, nor does it appear that Virginia ever exercised the power to grant ownership in the islands or soil under the river to private persons. Her claim seems to have been that of political jurisdiction.'

We think this decision disposes of and denies this claim of the state of West Virginia in her cross bill.

Upon the whole case, the conclusions at which we have arrived, we believe, best meet the facts disclosed in this record, are warranted by the applicable principles of law and equity, and will least disturb rights and titles long regarded as settled and fixed by the people most to be affected. If this decision can possibly have a tendency to disturb titles derived from one state or the other, by grants long acquiesced in, giving the force and right of prescription to the ownership in which they are held, it will no doubt be the pleasure, as it will be the manifest duty, of the lawmaking bodies of the two states, to confirm such private rights upon principles of justice and right applicable to the situation.

A decree should be entered settling the rights of the states to the western boundary, and fixing the same, as we have hereinbefore indicated, to be run and established along the old line known as the Deakins or old state line; and commissioners should be appointed to locate and establish said line as near as may be. The cross bill of the state of West Virginia should be dismissed in so far as it asks for a decree fixing the north bank of the Potomac river as her boundary. Counsel for the respective states are given forty days from the entry hereof to agree upon three commissioners, and to present to the court for its approval a decree drawn according to the directions herein given, in default of which agreement and decree this court will appoint commissioners, and itself draw the decree in conformity herewith. Costs to be equally divided between the states.

Decree accordingly.

Notes