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Subject: No. 106 Orig. -- OPINION, ILLINOIS v. KENTUCKY




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 106, Orig.




STATE OF ILLINOIS, PLAINTIFF v. COMMONWEALTH OF KENTUCKY


on exceptions to report of special master

[May 28, 1991]



    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, MDRV 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. {1}
    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. --- (1990).
    The Special Master recommended that we (1) determine the boundary
between Illinois and Kentucky to be the "lowwater 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 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 Com monwealth 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.  Longstanding "[p]ossession and dominion
are essential elements of a claim of sovereignty by prescription and
acquiescence."  Georgia v. South Carolina, 497 U. S. ---, --- (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 rightful authority."  See also
Georgia v. South Carolina, supra, at --- ("[L]ong acquiescence in the
practical location of an interstate boundary, and possession in accordance
therewith, often has been used as an aid in resolving boundary disputes"
between States).
    The record developed before the Special Master in this case fails to
support Kentucky's claim of sovereignty by prescription and acquiescence.
After a thorough review of the voluminous evidence presented by both
States, the Special Master concluded that Kentucky had proved neither long
and continuous action in support of its claim to a boundary at the
northerly low-water mark as it might be from time to time, nor Illinois'
acquiescence in that claim.  While Kentucky's many exceptions to the
extensive factual findings on these issues do not merit discussion
seriatim, an examination of a few will indicate the evidentiary support
generally for the Special Master's conclusions.
    The Special Master first assessed the evidence bearing on Kentucky's
exercise of dominion.  According to Kentucky's view of the boundary, for
example, any permanent structure extending out over the water from the
river's northern bank would be within Kentucky's territory and subject to
its taxing power, one of the primary indicia of sovereignty.  The record in
this case, however, shows that Kentucky has imposed a property tax on only
3 of the 15 structures that extend out, into, or over the water from the
Illinois shoreline.  Of the three affected taxpayers, one who received a
Kentucky tax bill for property extending south into the river was also
taxed on the same structure by Illinois, and another paid the Kentucky bill
only under protest, "claiming that the property [taxed] was within the
State of Illinois."  Report of Special Master 37.  The remaining 12
structures extending south into the river from Illinois have never been
taxed by Kentucky.
    Kentucky advanced what it took to be a stronger claim to having
exercised exclusive taxing jurisdiction right up to the transient low-water
mark by offering evidence of its ad valorem taxation of barges and other
watercraft traveling on the river.  But this evidence simply fails to speak
directly to the boundary issue in this case.  Vessels traveling the river
usually follow a sailing line charted by the United States Army Corps of
Engineers which, for most of the stretch in question, is either close to
the center of the river or near the Kentucky shore.  Illinois does not
dispute that the sailing line, like most of the river, is within the
boundary and jurisdiction of Kentucky.  Id., at 38.  The territory in
question, rather, is thought to be a comparatively narrow sliver of the
Ohio along its northerly shore, where barges and watercraft would rarely
venture.  As to the sliver, Kentucky's acts of taxation have been, at best,
equivocal, and the Special Master was accordingly correct when he observed
that the fact of Kentucky's taxation of barges "traveling on the Ohio River
within the acknowledged jurisdiction of Kentucky, does not support
Kentucky's claim of exclusive jurisdiction of the entire breadth of the
river."  Ibid.
    This evidence of Kentucky's failure to engage in consistent and
unequivocal acts of occupation and dominion does not stand alone, however,
for we are concerned not only with what its officers have done, but with
what they have said, as well.  And what they have said has, in several
instances, supported Illinois' claim.  The Legislative Research Commission
of the Kentucky General Assembly and the Attorney General of Kentucky have
each taken the position in the recent past that Kentucky's northern border
is the 1792 lowwater mark.  An Information Bulletin issued by the
Legislative Research Commission in December 1972 states that " `Kentucky's
North and Western boundary, to-wit, the lowwater 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
15.  An earlier opinion by the Commonwealth's Attorney General issued in
1963 asserted that the " `law, of course is that the boundary line between
the states of Indiana and Kentucky is the low-water [mark] on the north
shore of the Ohio as it existed when Kentucky became a state in 1792.' "
Id., at 12.  These statements came to our attention in Kentucky's last
boundary case in this Court, where we found it "of no little interest" in
deciding Ohio v. Kentucky, 444 U. S., at 340-341, that these "Kentucky
sources themselves, in recent years, have made reference to the 1792
low-water mark as the boundary."  It is hardly of less interest this time.
    Just as this representative evidence fails to indicate any longstanding
exercise of occupation and dominion of the disputed area by Kentucky, the
record is equally unsupportive of the claim of Illinois' acquiescence.  It
is true that the Illinois Constitution of 1818 described the State's
boundary with Kentucky on the Ohio River simply as following "along its
north-western shore," Ill. Const., Preamble (1818), and the same
description was employed in the State Constitutions of 1848 and 1870, see
Ill. Const., Art. I (1848), Ill. Const., Art. I (1870).  But these are
verbatim recitations of the congressional language describing Illinois'
boundary in the State's Enabling Act of April 18, 1818, ch. 67, 3 Stat.
428, and the Special Master correctly reasoned that "[w]hat Congress
intended to be the southern boundary of Illinois, was the same southern
boundary granted the states of Ohio and Indiana when they were formed. . .
. Illinois, like Ohio and Indiana, was created from the territory ceded by
Virginia to the United States. . . ."  Report of Special Master 28.
Although the current version of the Illinois Constitution, adopted in 1970,
omits any description of the State's boundaries, the 1870 Constitution's
language remained the reference point in the most recent Illinois case
dealing with the State's river boundary that has come to our attention.
See People ex rel. Scott v. Dravo Corp., 10 Ill. App. 3d 944, 944-945, 295
N. E. 2d 284, 285 (1973), cert. denied, 416 U. S. 951 (1974).

    The courts of Illinois, indeed, for some time took an even less
hospitable view of Kentucky's interests than the Illinois Constitution did.
In Joyce-Watkins Co. v. Industrial Comm'n, 325 Ill. 378, 381, 156 N. E.
346, 348 (1927), the State Supreme Court adopted a theory that would have
ratchetted the boundary line forever southward toward the deepest point of
the river, by holding the boundary to be the low-water mark on the
northerly shore of the river at the "point to which the water receded at
its lowest stage."  This description of the boundary was followed by
Illinois courts until at least 1973, see People ex rel. Scott v. Dravo
Corp., supra, and while it plainly conflicts with our decisions in Indiana
v. Kentucky, 136 U. S. 479 (1890) and Ohio v. Kentucky, supra, its use over
nearly 50 years shows that Illinois did not acquiesce in any claim by
Kentucky to a low-water mark that might edge northward over time.
    Such was the force of the evidence adduced, and such was its failure to
support Kentucky's claim of prescription and acquiescence.
B


    Kentucky's other affirmative defenses are likewise unavailing.  The
Special Master correctly observed that the laches defense is generally
inapplicable against a State.  See Block v. North Dakota, 461 U. S. 273,
294 (1983) (O'Connor, J., dissenting) (collecting authorities); Guaranty
Trust Co. v. United States, 304 U. S. 126, 132-133 (1938); cf. Weber v.
Board of Harbor Comm'rs, 18 Wall. 57, 70 (1873) (statutes of limitations
generally not applicable to State).  Although the law governing interstate
boundary disputes takes account of the broad policy disfavoring the
untimely assertion of rights that underlies the defense of laches and
statutes of limitations, it does so through the doctrine of prescription
and acquiescence, see generally Georgia v. South Carolina, supra, which
Kentucky has failed to satisfy.
    Kentucky's affirmative defenses based on the "principles of riparian
boundaries, including accretion, erosion and avulsion," require no extended
consideration, for Kentucky concedes that these would affect the ultimate
boundary determination only if it prevailed on the issues of prescription
and acquiescence.  Exceptions of Commonwealth of Kentucky 48-49 ("It is
Kentucky's position that if it prevails on its affirmative defense of
acquiescence, then the well-recognized principles of accretion, erosion and
avulsion would obviously apply to a current shoreline boundary as it may
change from time to time").  We have previously held as much, concluding
that "the well-recognized and accepted rules of accretion and avulsion
attendant upon a wandering river," have no application to Kentucky's Ohio
River boundary because of the "historical factors" stemming from the
cession by Virginia of the land northwest of the river to the United
States.  Ohio v. Kentucky, supra, at 337.
    Kentucky's final exception to the Special Master's report goes to the
finding in Part III.C. that construction of dams on the river has
permanently raised its level above that of 1792, consequently placing the
present low-water mark on the Illinois side farther north than it was in
1792.  Kentucky calls any question about the relative locations of the 1792
line and today's low-water mark premature, and we agree.  Indeed, the
Special Master himself suggested that this issue might, if necessary, "be
determined at a later date," Report of Special Master 47, after he had made
further recommendations to resolve any disputes the parties may have about
the exact location of the 1792 line.

III
    The exception of the Commonwealth of Kentucky to Part III.C. and
Recommendation (3) of the report of the Special Master, as to the effect of
modern dams on the level of the Ohio River, is sustained.  Kentucky's other
exceptions are overruled.  The report, save for Part III.C. and
Recommendation (3), is adopted and the case remanded to the Special Master
for such further proceedings as may be necessary to prepare and submit an
appropriate decree for adoption by the Court, locating the 1792 line.
It is so ordered.







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1
    In June 1988, we appointed a new Special Master, Matthew J. Jasen,
Esq., to replace Judge Van Pelt, who had died in April 1988.  487 U. S.
1215.