# Rhode Island v. Massachusetts (40 U.S. 233)

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United States Supreme Court
40 U.S. 233
Rhode Island and Providence Plantations v. Massachusetts
THIS case was before the court, at January term 1838 (12 Pet. 657); and again, at January term 1840 (14 Ibid. 210).
A bill was filed in the supreme court, on the 16th of March 1832, by the state of Rhode Island and Providence Plantations, asking the court to settle the boundary between that state and the commonwealth of Massachusetts. Mr. Webster appeared for the commonwealth of Massachusetts.
After various proceedings in the case, a plea and answer to the bill of the state of Rhode Island were filed by commonwealth of Massachusetts; and, at January term 1838, Webster, counsel for the commonwealth of Massachusetts, 'moved to dismiss the bill, on the ground that the supreme court had no jurisdiction in the cause.' A full report of the matters contained in the bill, and in the plea and answer, will be found in 12 Pet. 659-69. The question of jurisdiction was argued by Austin, Attorney-General of Massachusetts, and Webster, on the part of the commonwealth of Massachusetts; and by Hazard and Southard, for the state of Rhode Island. The court ordered that the motion to dismiss the bill of the complainants should be overruled.
Afterwards, at the same term, 12 Pet. 755, Webster, in behalf of the state of Massachusetts, as her counsel and attorney in court, moved for leave to withdraw the plea filed in the case on the part of the state of Massachusetts, and also the appearance which had been entered for the state. The court, after argument, on the 24th February 1838 (12 Pet. 761), ordered, 'That if the counsel for the state of Massachusetts shall elect to withdraw the appearance heretofore entered, that leave for the same be and was given; and the state of Rhode Island may proceed ex parte. But that, if the appearance be not withdrawn, that then, as no testimony had been taken, the parties be allowed to withdraw or amend the pleadings, under such order as the court should thereafter make in the premises. The appearance of the state of Massachusetts was not withdrawn; and the case was argued, on the sufficiency of the plea, at January term 1840; the bill of the complainants having been amended. 14 Pet. 210.
On the 8th of January 1841, the state of Massachusetts, by Austin, Attorney-General of the commonwealth, and Webster, 'for himself,' filed the following demurrer to the complainant's bill:
The defendant, by protestation, not confessing all or any of the matters and things in the complainant's bill of complaint contained to be true, doth demur to the said bill, and for cause of demurrer, showeth: That no case is stated by the bill authorizing this court to grant the relief sought, or any other relief: That no such mistake or fraud is averred in the bill, as is sufficient to set aside the awards and agreements between the parties, therein stated, nor any other cause or reason sufficient for that purpose; and that these awards and agreements conclude the question: That the bill states nothing which can do away the effect of the possession by Massachusetts up to the line asserted by her to be the true line, which possession the bill itself admits to have been continued for more than a century, and which possession is itself conclusive on the title: That the bill states no case for the interference of this court, with the line of division actually existing between two independent states, fixed by treaty, compact, or agreement between them, and acquiesced in for a century, as is true of this case, according to the bill itself: That this court has no power or jurisdiction to disturb or interfere with a boundary line actually existing beween two states, well known and defined, and resting on early compact and long-continued acquiescence and possession, upon any allegation of fraud or mistake in the original transaction. Wherefore, and for divers other good causes of demurrer appearing in the said bill, the defendant doth demur thereto, and asks the judgment of the court, whether said defendant ought to be ordered to make any further or other answer to said bill; and prays to be hence dismissed with costs.
The demurrer was argued by Austin and Webster, for the state of Massachusetts; and by Randolph and Whipple, for the state of Rhode Island and Providence Plantations.
Austin, for the respondents, in support of the demurrer.-The object of the plaintiff is, by a decree of this court, to be confirmed and established in the title, jurisdiction and sovereignty which she sets up to a portion of territory, now and ever heretofore, in the possession, jurisdiction and sovereignty of the respondent. The bill describes this disputed territory with reasonable accuracy, so that it is seen to be included between the present actual southern boundary of Massachesetts, and a line nearly parallel thereto, drawn between nearly three and four miles due north from it, along the whole border of Rhode Island, comprising an area of about one hundred square miles. The bill does not state that this territory is densely inhabited, and under a high state of improvement; but if the court could judicially understand, that it is occupied by seven thousand people, all of whom, as did their ancestors to remotest time, deem themselves to be citizens, and most of them native citizens of Massachusetts; and that there is upon it not less than a million of dollars of taxable property; the importance of the controversy could not be doubted.
The bill sets forth the alleged title of Rhode Island to the territory in dispute, and claims it as included in the charter of Charles II. It describes accurately the title of Massachusetts to the territory secured to her by her colonial and provincial charters, the one granted in 1629, and the other in 1691; and alleges that her southern boundary is by a line, 'three English myles on the south parte of the rivir called Charles rivir, or of any or every parte thereof;' and further alleges that the southern boundary of Massachusetts, and the northern boundary of Rhode Island, is by the same line; the one being contiguous to the other. All this is true. The bill avers that the actual line of possession on the part of Massachusetts, is more than three miles, viz., several miles south of Charles river, and of any and every part thereof. On this allegation, it is obvious, the whole assumed merits of the plaintiff's case depend. If it be not true, there is no pretence of right to disturb the ancient and existing possession of the respondent.
Whether it be true or not, in point of fact, must depend on a legal construction of the words of the charter. As illustrative of that question, and not, in the present aspect of the case, for any purpose of deciding it, the maps and plans of the territory heretofore used, and now before the court, may be referred to. By universal admission, the Charles river has one main or principal stream, which is supplied by other streams or branches. If these latter streams, which have also local names, are any part of Charles river, within the meaning of the charter, then the actual line of Massachusetts, which is within three miles of the principal branch (sometimes locally called Mill river, at others, Jack's Pasture brook), is the true boundary by her charter. If the main stream, and not the head-waters, is alone entitled to be termed 'Charles river, or any and every part thereof,' then, unquestionably, the actual line of Massachusetts is not in conformity with the charter; because, in ancient times, it was assumed, and now is believed to be true, that the true point of off-set for the protraction, southwardly, of the line of three miles from any part of Charles river, is from the most southerly stream, branch of head-waters of the river, and it was accordingly so drawn. It is believed, that such is, and ever was, the universal acceptance of the terms; and that wherever a different construction was put on the like phraseology, it was the construction made by power in violation of right.
But the case not stands before the court on demurrer; and in this form of pleading, the counsel for Massachusetts very well understand, that this question of fact is not open to discussion. They are bound by the allegations of the bill, and must proceed to a hearing with this fact, pro hac vice, against them; and with an admission that the line of actual possession is not the true line of the charter. It is with full confidence in the opinion that the bill (even admitting this great and fundamental error on the part of Rhode Island, to be received as she has stated it) does not set forth a sufficient cause for the interposition of this court, that Massachusetts has ventured to waive this consideration for the present; and to deny that even on this presumptions, Rhode Island has any title, by her own showing, to the territorial jurisdiction which she demands by her bill. We suppose, indeed, this is already settled by this court in effect, though not in form. The bill incorporates the defence of Massachusetts, on two other points; which, independent of the original accuracy of the boundary, are each, by itself, fatal to the plaintiff's demand. It admits the fact of an amicable settlement in 1710 and 1718, and the further fact of an actual possession on the part of Massachusetts, under and by virtue of such agreements, for now nearly a century and a half.
It is again obvious, that the question of right between these parties depends-1. On the original correct location of the boundary line. 2. On the effect of the agreements in establishing a boundary. 3. On the undisturbed possession for more than one hundred years.
On the former hearing in this case, the respondent had filed a plea in bar, setting out, more fully than the plaintiff had done, the agreements of 1710, 1718; and relying upon them as fair and perfect contracts, made fairly, with full and equal knowledge, and accompanied and followed by an undisturbed possession from the time they were made. We understood the court to overrule that plea, because it contained two defences instead of one; upon a strict application of the severest rules of chancery practice, which, with great respect, we had contended could not apply to a case like the present, and were in no case applicable to the plea, in the form in which it was presented.
In pronouncing the opinion of the court, the chief justice said,

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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