# Ohio v. Kentucky/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
[p642] MR. JUSTICE DOUGLAS, dissenting.
The State of Ohio instituted this original action to locate the boundary between it and the Commonwealth of Kentucky on the Ohio River. The initial complaint recognized Kentucky's northern boundary as following "the low water mark on the northerly side of the Ohio River as it existed in the year 1792," but asserted that subsequent events had altered the location of the low-water mark. Today the Court denies Ohio's request that it be permitted to amend its complaint to plead an alternative boundary theory: that the true boundary between the States is in the middle of the Ohio River.
Basic concepts of pleading preclude determination of factual issues in testing the sufficiency of a claim. The appropriate question for the Court at this stage of the proceedings, therefore, is whether if the facts as stated by Ohio are true, a valid legal issue is tendered. Ohio asserts that Virginia, Kentucky's predecessor in title, never held ownership rights to both banks of the Ohio River and that, accordingly, Kentucky's current claim to land underlying the northern side of the Ohio River is invalid. The question before us is equivalent to that [p653] posed by a demurrer. The majority's conclusion of insufficiency is, therefore, not sustainable.
The Court's decision is a determination upon the merits of Ohio's proffered allegations and should be made only after all the evidence is before it. The Master concludes, and the Court agrees, that Ohio has acquiesced to Kentucky's ownership of the northern half of the Ohio River as established by adjudications in this Court. Although I find such consideration of the merits to be premature, the Court's reasoning prompts me to review the case law upon which estoppel is urged.
The Ohio River serves as the boundary between the States of Kentucky and Indiana as well as the boundary between the parties to this suit, Kentucky and Ohio. During the 19th century, this Court dealt with the nature of the Kentucky-Indiana boundary in two cases. Handly's Lessee v. Anthony, 5 Wheat. 374 (1820), and Indiana v. Kentucky, 136 U.S. 479 (1890). Later cases dealt with issues that turned upon the boundary [p654] determination of Handly's Lessee. Based upon a historical analysis that Ohio here contests, the Court held in the Handly case that the Kentucky-Indiana boundary coincides with the northern low-water mark of the Ohio River. Ohio, of course, was not involved in that litigation. Yet, the Master's recommendation that is now adopted would bind Ohio today to a determination made in 1820 in a case to which it was not a party. And, since the doctrine of res judicata does not reach so far, reliance is placed upon an estoppel theory. Simply stated, Kentucky contends that Ohio has lost whatever rights it may once have had to challenge the Kentucky claim to land underlying the northern half of the Ohio River by failing to object earlier and by recognizing the boundary rationale that was applied to Indiana in cases tried in Ohio courts since 1820. Ohio disputes the suggestion.
First, Ohio notes that the argument it wishes to present to substantiate a claim to the center of the river has not been considered by this Court. The early cases turned instead on the assumption that Virginia's prior title, upon which Kentucky's claims are predicated, was valid as to the land involved. Ohio additionally points out that the three Ohio cases proffered as evidence of Ohio's recognition of Kentucky's claim to the northern half of the river concerned private disputes that hinged upon location of the river's edge, rather than a determination as to the boundary between the States. That the further determination is not required is [p655] made clear by the language of those cases. The most recent of the three, indeed, states quite explicitly:
   "It does not become necessary, in this case, to determine whether the middle of the Ohio River... does or does not constitute the boundary line between the States of Virginia and Ohio. For all the purposes of this case, it may be assumed that Virginia was the original, undisputed owner of the territory on both sides of the river, and still retains all that she did not part with by her deed of cession in 1784."
Ohio now wishes to question precisely that assumption. In prematurely judging the issues and pretermitting briefing and argument of Ohio's attack on the validity of Virginia's title, the Court does disservice both to the adjudication of this dispute and to the procedural contours of original actions. I would allow Ohio to amend its complaint so that the merits might be reached in due course.

## Notes

* ↑ Complaint ¶ 6.
* ↑ Amended complaint ¶¶ 1-3.
* ↑ F. James, Civil Procedure § 4.1, p. 127; Conley v. Gibson, 355 U.S. 41, 45-46.
* ↑ Virginia's claim of title rests upon the charter granted by King James I to the London Company in 1609. Ohio argues that later events, including the revocation of the charter in 1624 when Virginia became a Crown colony, 1 J. Marshall, The Life of George Washington 69; 2 W. Hening's Stat. at Large 525-526; 1 Laws of the United States 465 (B. & D. ed. 1815) (hereinafter Laws), and the ceding by the French to the British of the Eastern Mississippi Valley north of the Ohio River under the Treaty of Paris in 1763, 1 Laws 441-442; A. Shortt & A. Doughty, Documents Relating to the Constitutional History of Canada, 1759-1791, pp. 113, 116, sharply curtailed Virginia's reach and that the middle of the river was intended as the boundary between old and new States by the United States following the Revolution. It seeks to substantiate this final point by references to various laws that prescribe the boundaries of new States, 1 Laws 475, 480, provide for navigational rights, id., at 479-480, and speak in general terms of Virginia, Kentucky, and Tennessee as the lands south, or south and east, of the Ohio River, and of Ohio, Indiana, and Illinois as the lands to the north, or the north and west, 2 Laws 14, 104, 138, 179, 311, 421, 533; 3 Laws 367, 385, 396, 596, 612.
* ↑ Henderson Bridge Co. v. Henderson City, 173 U.S. 592 (1899); Wedding v. Meyler, 192 U.S. 573 (1904); Nicoulin v. O'Brien, 248 U.S. 113 (1918).
* ↑ Handly's Lessee v. Anthony, 5 Wheat. 374, 377, 379.
* ↑ See ibid.; Indiana v. Kentucky, 136 U.S. 479, 503-504.
* ↑ Lessee of McCullock v. Aten, 2 Ohio 307 (1826); Lessee of Blanchard v. Porter, 11 Ohio 138 (1841); Booth v. Shepherd, 8 Ohio St. 243 (1858).
* ↑ 2 Ohio, at 310 (discussing only ownership of the land above the water line but below the bank); 11 Ohio, at 139-140 ("The defendant's deed conveys the soil to the top of the river bank, and reserves the 'break and slope,' between that point and the river").
* ↑ 8 Ohio St., at 245-246 (noting that "In the case of Handly's Lessee v. Anthony, the supreme court of the United States, proceed[ed] on the assumption that Virginia was the original proprietor of both sides of the river..." (emphasis added)).