(43 Sup. Ct.)

river on the line of its bed, as that is made by | of the Red river adjacent to this boundary the average and mean stage of the water, as is not navigable. 258 U. S. 574, 42 Sup. Ct. that is expressed in the conclusion of the pre- 406, 66 L. Ed. 771. ceding paragraph of this opinion."

[2] Upon the authority of these cases, and upon principle as well, we hold that the bank intended by the treaty provision is the water-washed and relatively permanent elevation or acclivity at the outer line of the

*632

Texas refers to the proceedings in 1840 and 1841 whereby the United States and the Republic of Texas jointly traced and marked so much of the treaty boundary as lies along the western bank of the Sabine, and claims that what was done makes for a view different from that here expressed. We do not so understand the proceedings. Gen. Hunt, who represented the Republic of Texas in that undertaking, took the position that portions of the river bed often immersed could be treated as the bank and that low-water mark should be regarded as the boundary. Mr. Overton, who represented the United States, dissented and said:

river bed which separates the bed from the
adjacent upland, whether valley or hill, and
serves to confine the waters within the bed
and to preserve the course of the river, and
that the boundary intended is on and along
the bank at the average or mean level at-
tained by the waters in the periods when
they reach and wash the bank without over-
flowing it. When we speak of the bed we
include all of the area which is kept praca
tically bare of vegetation by the wash of the
waters of the river from year to year in
their onward course, although parts of it
are left dry for months at a time; and we
exclude the lateral valleys, which have the
characteristics of relatively fast land and
usually are covered by upland grasses and
vegetation, although temporarily overflowed
in exceptional instances when the river is at
flood.

The conclusion that the boundary intended is on and along the bank and not at lowwater mark or any other point within the river bed has full confirmation in available historical data respecting the negotiations which attended the framing and signing of the treaty. 4 American State Papers, Foreign Relations, pp. 621, 622; 4 Memoirs of John Quincy Adams, pp. 255, 256, 260, 261, 266-270.

Texas places some reliance on the concluding words of the treaty provision, "but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo [Red] and Arkansas, throughout the extent of the said boundary, on their respective banks shall be common to the respec

line of the character proposed by you, but "The term 'bank' does not imply, I conceive, it rather means that natural barrier which confines the waters, and compels them to flow within a well-defined channel, although the surface of the river may fluctuate in elevation between its banks at various seasons of the year. The same conception of the meaning of this term precludes on my part the idea that it would be just to claim the western margin of any inundations caused by the river overflowing its banks, because in such cases the usual well-defined barrier is temporarily surmounted."

Mr. Overton's view prevailed and, as nearly as can be told now, the work proceeded on the view that the boundary was along the mean water line on what he defined as the bank. H. R. Ex. Doc. 51.

With what was intended by the treaty provision in mind, we turn to the physical situation to which the provision is to be applied.

*634

eastward in a serpentine course through a valley bordered on either side by a range of

[3] *This section of the Red river flows

is 539 miles, and on a direct line 321 miles. bluffs or hills. The distance along the river The valley widens irregularly from about 2

The bed over which the water flows is com

miles on the west to 15 or more on the east.

tive inhabitants of both nations." As already observed, these words show that the boundary intended is "on" the bank. Νο doubt they reserve and secure a right of ac-posed of light, loose sand, and is of varying cess to the water, at all stages, adequate to breadth, the maximum being 14 miles and the enjoyment of the permitted use; but the average one-third of a mile. On either they afford no basis for regarding the bound-side are stretches of valley land which vary ary as below the bank or within the river in both width and length by reason of the bed. Dunlap v. Stetson, 4 Mason, 349, 366, Fed. Cas. No. 4,164. This part of the treaty provision is quite unlike the old compact considered in Maryland v. West Virginia, 217

winding of the river and the irregularities in the face of the bluffs. This land is fairly covered with grasses and other upland growth, and often is studded with trees. Many of the trees are old, and among them are elm, pecan, and other kinds of hard wood. A slight depression or a succession of depressions usually lies along the foot of the bluffs. The river or a channel may have been there in years that are gone, but, if so, no one knows when. Almost uniformly the valley land is separated from the sand bed of the river by a clearly defined water

*636

worn bank, designated by witnesses and, tivated under these disposals, and a larger counsel as a cut bank. This bank ranges in height from 2 to 10 or more feet, the height generally increasing from west to east and the lower parts usually being where the bed is wide. On the valley side of the bank is vegetation and on the river side bare sand. The cut banks effectively confine the water to the sand bed, save in exceptional instances, when the river is at flood and overflows adjacent lands for a few days. There is some overflowing almost every year and in one year out of 12 or 15 the overflow reaches back to the bluffs in many places.

When the water is in substantial volume, it flows over the whole of the sand bed and washes both banks; but when the volume is relatively low, much of the bed is dry. The latter is the prevailing condition, and this because the source and upper reaches

*635

of the river are within a *region where the rainfall is light, seasonal only, and quickly carried into the stream. Along the western part of the boundary the bed is entirely dry in long stretches for weeks at a time; and when the water is flowing, but low, it is found in shallow channels, which divide and shift about over the bed. Witnesses accustomed to crossing there speak of finding the flowing channel near one side of the bed in the morning and in the middle or near the other side in the evening. Only in pronounced bends are the channels relatively stable. Along the eastern part of the boundary the volume of water always is substantial, but there again it is inclined to divide into separate channels and to cross and recross the bed frequently. Along both parts, when the water is low, as is the rule, the channels in which it moves have low marginal elevations, but these are composed of mere sand, have no permanency, and yield readily to the action of the water and the winds. Material changes in them are habitual, not exceptional.

This survey of the physical situation demonstrates that the banks of the river are neither the ranges of bluffs which mark the exterior limits of the valley, nor the low shifting elevations within the sand bed. And that this is the natural and reasonable view of the situation is illustrated by a long course of public and private action.

The valley land always has been dealt with as upland. The United States surveyed and disposed of that on the north side under its public land and Indian laws, and Texas surveyed and disposed of that on the south side under her land laws. Both treated the cut banks as the river banks and carried their surveys to those banks, but not beyond. Patents were issued for practically all the land. Individuals freely sought and dealt with it as upland. Much of that on the south side was disposed of by Texas 50 years ago, some of it 70. Thousands of acres on that side were improved, occupied, and cul

acreage was occupied *and used under them for pastures. Through the long period covered by this course of action there never was any suggestion that this valley land was Part of the river bed, nor that the shifting elevations of sand within the sand bed were the river's banks, nor that the land on the South side belonged to the United States. Not until some land on the south side and part of the river bed were discovered to be valuable for oil was this unbroken course of action and opinion drawn in question. However much the oil discovery may affect values, it has no bearing on the questions of boundary and title.

Our conclusion is that the cut bank along

the southerly side of the sand bed constitutes the south bank of the river, and that the boundary is on and along that bank at the mean level of the water, when it washes the bank without overflowing it.

Of

[4] The boundary as it was in 1821, when the treaty became effective, is the boundary of to-day, subject to the right application of the doctrines of erosion and accretion and of avulsion to any intervening changes. those doctrines this Court recently said: "It is settled beyond the possibility of dispute that, where running streams are the boundaries between states, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel." Arkansas v. Tennessee, 246 U. S. 158, 173, 38 Sup. Ct. 301, 304 (62 L. Ed. 638, L. R. A. 1918D, 258).

[5] Oklahoma and the United States question the applicability of the doctrine of erosion and accretion to this river, particularly

⚫637

the part in western Oklahoma, and *this because of the rapid and material changes effected during rises in the river. But we think the habit of this river is so like that of the Missouri in this regard that the ruling relating to the latter in Nebraska v. Iowa, 143 U. S. 359, 368, 12 Sup. Ct. 396, 399 (36 L. Ed. 186) is controlling. It was there said:

"The Missouri river is a winding stream, coursing through a valley of varying width, the substratum of whose soil, a deposit of distant centuries, is largely of quicksand. The large volume of water pouring down at the time of these rises, with the rapidity of its current, has great and rapid action upon the Whenever it impinges loose soil of its banks. with direct attack upon the bank at a bend of the stream, and that bank is of the loose sand obtaining in the valley of the Missouri, it is not strange that the abrasion and washing away is rapid and great. Frequently, where

(43 Sup.Ct.)

⚫639

above the loose substratum of sand there is a now than 60 years ago, but how much is undeposit of comparatively solid soil, the wash- certain. The enlargement is the result of ing out of the underlying sand causes an instantaneous fall of quite a length and breadth | intervening accretions. The habit of the of the superstratum of soil into the river; so that it may, in one sense of the term, be said that the diminution of the banks is not gradual and imperceptible, but sudden and visible. No engineering skill is sufficient to say where the earth in the bank, washed away and disintegrating into the river, finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or 50 miles below, and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side and deposit of the same upon the other. The only thing which distinguishes this river from other streams, in the matter of accretion, is in the rapidity of the change caused by the velocity of the current; and this in itself, in the very nature of things, works no change in the principle underlying the rule of law in respect thereto.

"Our conclusions are that, notwithstanding the rapidity of the changes in the course of

*638

river is to erode the outer bank of a bend and to accrete to the opposite bank. Three surveys executed by Texas in 1856, and covering less than the whole area, disclose the presence at that time of over 1,700 acres. On the outer part are physical evidences of the formation being comparatively recent. On the inner part are like evidences of the formation being old, among them being the presence of living trees more than a century old. One of the trees, a pecan, attained an age of 170 years. A part of the area was cultivated, and the remainder used for pasturage, as early as 1877. At that time there were more trees than now. Many were taken by early settlers for firewood, fencing posts, and building logs; some logs being over 3 feet through. To overcome the inference arising from the presence of the old trees, which were well scattered, testimony was presented to show that in 1821 these trees were all on islands, which afterwards were consolidated amongst themselves and with the land on the south side. We think this testimony is essentially speculative, and not a proper basis for judgment. In this area, as elsewhere in the valley, a succession of depressions is found at the foot of the bluffs, and some testimony was produced to show that in 1821 the river, or a part of it, flowed there. may be that the river was there long ago, but the testimony that it was there in 1821 is far from convincing. Texas has been exercising jurisdiction over the area and asserting proprietorship of the soil for more than half a century, and has surveyed and disposed of [7] A controverted one is ascribed to the it all; the earliest disposals being in 1856. so-called Big Bend area, which is within the Some of the later surveys seem to conflict oil field. That area is now on the south side with those first made, but all name the river of the river and connected with the bluffs on bank as a boundary. In those of 1856, and that side. Oklahoma and the United States possibly others, it was the controlling call. assert that in 1821 a channel of the river See Schnackenberg v. State (Tex. Civ. App.) ran between it and the bluffs, and that the 229 S. W. 934; Cordell Petroleum Co. v. river has since abandoned that channel. Michna (C. C. A.) 276 Fed. 483. The jurisdicTexas denies this, and insists that the situation and title of Texas stood unchallenged tion in 1821 was practically as now. Stim- until shortly before this suit. Our concluulated by the large values involved, the par

the channel, and the *washing from the one side and on to the other, the law of accretion controls on the Missouri river, as elsewhere, and that not only in respect to the rights of individual land owners, but also in respect to the boundary lines between states."

[6] Common experience suggests that there probably have been changes in this stretch of the Red river since 1821, but they cannot be merely conjectured. The party asserting material changes should carry the burden of proving them, whether they be recent or old. Some changes are shown here and conceded. Others are asserted on one side and denied on the other.

*640

It

ties have exhausted the avenues of research sion is that the claim that the river, or any and speculation in presenting testimony part of it, ran south of this area in 1821, is thought to bear on this question. The tes- not sustained. So the boundary follows the timony, particularly of the experts, is con- cut bank around the northerly limit of the flicting. It is so voluminous that it does not area. admit of extended statement or discussion here. We can only refer to important features and give our conclusions.

There are no surveys or records depicting the situation in 1821; nor are there any human witnesses who knew this part of the river then. But there are inanimate witnesses, such as old trees, which tell a good deal. At that place the river makes a pronounced, but gradual, bend to the north and back to the south. The area in question is on the inner side of the bend. It is larger

Burke Bet Island and Goat Island, both near the Big Bend area, are claimed by Texas on the theory that in 1821 they were part of We think the the land on the south side. evidence, all considered, falls short of estab lishing the claim, and tends rather to show that neither island was ever part of the permanent fast land on that side. The claim is accordingly rejected.

[8] What now appears to be an island op posite mile post 575 and near the line be tween Hardeman and Wilbarger counties, in

Texas, is claimed by that state to have been part of the land on the south side up to 1902 and then severed from it by avulsive action in time of flood. The evidence sustains the claim. So the boundary follows the north bank of the island.

There are instances in which the river since 1821 has in time of flood left its former channel and cut a new one through a neck of land, thereby causing land theretofore on one side of the river to be on the other. Such avulsive action does not carry the boundary with it, but leaves it where it was before. There is no controversy about these cut-offs, and the evidencce indicates that they readily can be recognized.

The matter of running, locating, and marking the boundary upon the ground in accordance with the principles stated herein will be referred to three commissioners to be appointed by the court, their action to be subject to its approval.

The parties may submit within 30 days a form of decree to carry these conclusions into

effect.

641

A bank is the rising ground, or area, bordering a stream. To describe a boundary merely as following the course of the river bank gives it no definite location. Something more must be known before it can be laid down on the ground, e. g., that it runs with the low, ordinary, or high water mark. Το ascertain this something more, when the application of a treaty is involved, the purpose and all provisions of the compact, the character of the country, and any other facts indicative of intention may be considered.

642

*The treaty of 1819 declares:

"The use of the waters, and the navigation of the Sabine to the sea, and of the said rivers the said boundary, on their respective banks,1 Roxo and Arkansas, throughout the extent of shall be common to the respective inhabitants of both nations."

Parts of these rivers are navigable. For hundreds of miles the Red river passes over

a

sandy waste, between irregular "cut banks," sometimes a mile apart (one-third mile on the average), and the waters are mainly useful for domestic purposes, for live Mr. Justice McREYNOLDS, dissenting. stock, and for irrigation. During most of The parties to the compact of 1819 (ratified the year the stream is only a few yards wide 1821) distinctly avowed the purpose to settle and flows along shallow channels, commonly at some distance from the southern "cut and terminate all their differences and pre-bank." Manifestly, if the boundary is on the tensions by a treaty which shall designate with precision the limits of their respective bordering territories in North America." And when all of its provisions are given proper weight, I think that instrument fixes the international boundary with reasonable precision at low-water mark on the south side of the Red river-not at the margin of

the "cut bank."

"It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their

construction words are to be taken in their or

dinary meaning. as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that where a treaty admits of two constructions, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred." Geofroy v. Riggs, 133 U. S. 258, 271, 10 Sup. Ct. 295, 298 (33 L. Ed. 642).

Under United States v. Texas, 162 U. S. 1, 16 Sup. Ct. 725, 40 L. Ed. S67, and Oklahoma v. Texas, 256 U. S. 70, 41 Sup. Ct. 420, 65 L. Ed. 831, we must interpolate "southern bank" into the description of the contested boundary and treat this as though it read, "then following the course of the [southern bank of the] Rio Roxo westward, to the degree of longitude 100 west from London," etc. Thus amended, we should now interpret the compact with a view to effectuate the intention of the parties.

margin of that bank, the Spanish inhabitants were generally cut off from the stream, and could not use the waters without crossing or occupying territory of the United States. By its express terms the treaty reserved to those people the right to use and navigate the waters, and I cannot think that by mere implication it imposed a very serious barrier

thereto.

Again, if the boundary runs with the southern "cut bank" of the Red river, of what effect are the words, "all the islands in the Sabine, and the said Red and Arkansas rivers, throughout the course thus described,

That

to belong to the United States"? boundary being admitted, all islands would necessarily lie within the United States, and their reservation was unnecessary. But, if low water marks the boundary, then the reservation becomes important. Without it grave disputes might arise as to the true line where islands lie south of the main stream. See Georgia v. South Carolina, 257 U. S. 516, 42 Sup. Ct. 173, 66 L. Ed. 347.

With the boundary fixed at low-water mark, the Spanish inhabitants obtained free

*643

access to the stream at *all seasons and could use its waters as their welfare required; the reservation of the islands to the United States is important; the parties obtained full reciprocal rights; and the unfortunate

1 The boundary follows only a portion of each river-the upper reaches of the Arkansas, the middle part of the Red, and the lower section of the Sabine. No rights were given to Spanish subjects in respect of the waters of these rivers, except along the boundary.

(43 Sup.Ct.)

consequences incident to ownership by the [ and Alabama, which must prevail, as it would in United States of a long, narrow, barren strip all other cases, where there may be a transfer between a foreign country and the stream by one nation of a part of its territory to anare avoided.

Note that this cause was decided before boundary between two nations or states, if the ratification of the treaty in 1821.