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STATE ILLINOIS v. COMMONWEALTH KENTUCKY

SUPREME COURT OF THE UNITED STATES No. 106, Orig. 111 S. Ct. 1877, 500 U.S. 380, 114 L. Ed. 2d 420, 59 U.S.L.W. 4515, 1991.SCT.43007 <http://www.versuslaw.com> decided: May 28, 1991. STATE OF ILLINOIS, PLAINTIFFv.COMMONWEALTH OF KENTUCKY ON EXCEPTIONS TO REPORT OF SPECIAL MASTER. John Brunsman, Assistant Attorney General of Illinois, argued the cause for plaintiff. With him on the brief was Neil F. Hartigan, Attorney General. Rickie L. Pearson, Assistant Attorney General of Kentucky, argued the cause for defendant. With him on the brief were Frederic J. Cowan, Attorney General, and James M. Ringo, Assistant Attorney General. Souter, J., delivered the opinion for a unanimous Court. Author: Souter


ON EXCEPTIONS TO REPORT OF SPECIAL MASTER.

Souter, J., delivered the opinion for a unanimous Court.

Author: Souter

 JUSTICE SOUTER delivered the opinion of the Court.

In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of Kentucky with the State of Illinois. We hold it to be the line of the low-water mark along the river's northerly shore as it was in 1792. I

In July 1986, Illinois sought leave to file a bill of complaint against Kentucky, invoking this Court's original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U. S. Const., Art. III, ยง 2. Illinois asked the Court to declare "the boundary line . . . to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792," Report of Special Master 1-2, and to enjoin Kentucky "from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court," id., at 2. We granted leave to file the bill of complaint, 479 U.S. 879 (1986), and appointed the Honorable Robert Van Pelt as Special Master.*fn*

In its answer to the complaint, Kentucky denied that the boundary was the 1792 line and claimed it to be the river's northerly low-water mark "as it exists from time to time." The answer raised the "affirmative defenses" of acquiescence and laches, and invoked certain "principles of riparian boundaries." Report of Special Master 2.

The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January 1990, were granted additional time to develop the evidentiary record on Kentucky's claim of prescription and acquiescence. After receiving this evidence in April 1990, the Special Master submitted a report to this Court, which was ordered filed. 498 U.S. 803 (1990).

The Special Master recommended that we (1) determine the boundary between Illinois and Kentucky to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; (2) find that the record fails to "support the Commonwealth of Kentucky's affirmative defenses"; (3) find that the construction of dams on the Ohio River has caused "the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792"; and (4) order the two States' common boundary to be determined, "as nearly as [the 1792 line] can now be ascertained, . . . either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions." Report of Special Master 48-49.

Kentucky has filed exceptions to the Special Master's report. While Kentucky challenges many of the factual findings, its primary dispute is with the conclusion that Kentucky has failed to prove its claim, styled as an affirmative defense, that under the doctrine of prescription and acquiescence the boundary is the low-water mark as it may be from time to time.

II

A

We agree in large measure with the Special Master's report. The threshold issue presented in this case was resolved in Ohio v. Kentucky, 444 U.S. 335 (1980), in which we held that Kentucky's boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia's 1784 cession to the United States of the lands "northwest of the river Ohio" and Kentucky's succession to Virginia's northwest boundary upon reaching statehood in 1792. Id., at 337-338. We relied on the prior opinion in Indiana v. Kentucky, 136 U.S. 479, 518-519 (1890), in which Justice Field, for a unanimous Court, reviewed this history and held that Kentucky's boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River "when Kentucky became a State." Ibid. The same history and precedent that supplied the general rule for determining the boundary separating Kentucky from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of Kentucky's historical boundary on that river with Illinois.

Kentucky has, indeed, conceded that "if this case were before the Court simply as a matter of law, Ohio v. Kentucky. . . would be controlling precedent." Exceptions of Commonwealth of Kentucky 9 (emphasis in original). Kentucky's exceptions assume, rather, that the case does not turn on the issue of law decided in Ohio v. Kentucky , but on the "factual issue of acquiescence which Kentucky has raised as an affirmative defense on the question of its boundary with Illinois." Exceptions of Commonwealth of Kentucky 9-10. Kentucky contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time.

Although Kentucky has styled its acquiescence claim an affirmative defense, this "defense," if successfully proved, would not only counter Illinois' boundary claim but also establish Kentucky's own position. To do this on a theory of prescription and acquiescence, Kentucky would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-water mark. Long-standing "[p]ossession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence." Georgia v. South Carolina, 497 U.S. 376, 389 (1990). Kentucky would then have the burden to prove Illinois' long acquiescence in those acts of possession and jurisdiction. As we stated in Oklahoma v. Texas, 272 U.S. 21, 47 (1926), there is a "general principle of public law" that, as between States, a "long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the ...


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