Warren E. Burger: We’ll hear arguments next in number 27 original, the State of Ohio against the State of Kentucky. Mr. Howard, you may proceed whenever you’re ready.
Joseph M. Howard: Mr. Chief Justice, may it please the Court. This is an action by the State of Ohio requesting a determination of the location of its boundary with Kentucky in the Ohio River. The only question presently before the Court is whether or not Ohio shall be permitted to amend its original complaint. That original complaint was filed back in 1966. At that time, Ohio claimed that the boundary existed at the low water mark on the north side of the river, that is on the Ohio side, as it stood in 1792, which was the day at which Kentucky became a state. Kentucky filed an answer and it claimed that the boundary lay at the present low water mark on the north side of the river on the Ohio side. That, of course, was much farther up on the Ohio shore than the old 1792 line, because of the new dams which have been put in on the Ohio River beginning in back in 1890, the planning began. The dams were erected. I think the first set of them were completed in 1925, and then in the 50’s a new set of high level dams began to be erected by the Army Corps of Engineers, and that caused a much higher level of the water and further inundation on the Ohio side. Well, the issues were joined on the original complaint in the answer. And this Court appointed the Master and there were quite a number of conferences between the Master and counsel as to how the case should be conducted and the evidence presented. There were a great number of conferences apparently between counsels on both sides determining just what the evidence would be. And in July 1970, Ohio made an offer of settlement. As I recall, it was 250 feet up into the river. I may be mistaken on the exact figures on that but that was --
Potter Stewart: That was somewhere between the 1792 line and the present line on the north shore?
Joseph M. Howard: I am not sure Your Honor exactly what. I would guess it would have been above the 1792 line. That’s my guess.
Potter Stewart: The issue originally in this lawsuit was whether or not the low water mark on the north shore was that of 1792 or that of today.
Joseph M. Howard: That’s right; that's right.
Potter Stewart: And I suppose therefore, I would guess, I will assume that a settlement would fix the line somewhere in between those two?
Joseph M. Howard: Well, I have not gotten into that part of it yet at all, and I can’t say; I’m guessing that it was closer to what Ohio wanted than what Kentucky felt Ohio should get. Apparently, from what I can gather from the Master’s comments and from what I’ve seen in the file, counsel on both sides felt that there were some chance that this would be accepted. At least they were content. Nobody could tell of course what the Legislatures or the Executive part on either of the States would have done. So, it had gone just that far that the offer was made. Unfortunately, the counsel for State of Kentucky, John Browning, who had been handling the case since the very outset was killed in an automobile accident about two weeks after the offer was made. Ultimately, in November 1970, Kentucky simply rejected the offer. That was in November. A little over a month later, the administration in Ohio changed. A new Attorney General came in and he asked -- well, nobody in was left on the staff who had worked on this case at all. So he asked that a complete reexamination of the file and everything connected with it be made. That was done and after about four or five months study, recommendation was made to the Attorney General that an effort be made to ask this Court to permit an Amendment of the complaint in order to permit Ohio to make an argument that it was entitled to a line in the middle of the river. We didn’t want to go off the deep end on this without checking and we called the Attorney General’s office in Kentucky and asked him to look through Mr. Browning’s files and see whether there was anything that would make it clear that we were in error, that we couldn’t possibly prevail on that argument. Well, we got no answer from that call. And eventually we filed the motion to amend the complaint which is pending before the Court at the present time. That was done in August 1971. And what we did was to add the first count of the complaint that is alleging that the real boundary between the two states lies in the middle of the river, and then there were some minor alterations in the further parts of the original complaint that is, if the Court disagrees with us on the -- permitting us to amend the or to -- or if the Master were to find against us on the middle of the river, then we would still argue for the 1792 line. And the third question involved is the question of concurrent jurisdiction, which is I think irrelevant as far as the present proceeding is concerned. The Court referred our motion to the Master, and that was argued before the Master in December 1971, and in April he filed his report making a recommendation. That recommendation was that our motion to amend be denied. The Master’s grounds for that were that the new allegations as to the middle of the river failed to state a cause of action. He also said that even if we did state a cause of action, our -- any relief for Ohio would be barred by this Court’s opinions in the series of cases discussing the Indiana-Kentucky borderline. And finally, he said that there were three separate cases in the Supreme Court of Ohio in which it -- which indicated that the State of Ohio acquiesced in those Indiana-Kentucky cases. Our position is that the new allegations that we had made alleging that the boundary line does lie in the middle of the river clearly state a cause of action. We also contend that we are in no way barred by this Court’s decisions and the Indiana-Kentucky boundaries. We were not parties to that, those cases. And finally that we -- the three particular cases that the Master picked up from the Supreme Court and found to be acquiescence in the Indiana-Kentucky line of cases, do not so hold, and that we are -- that’s the only thing in the case so far that goes to the point of acquiescence, and that outside of that, that point should not be further considered at the present time. Now, I really have nothing much to add to the arguments that have been made in the brief.
Byron R. White: Well, did the Special Master independently hold that wholly aside from the prior adjudications or Ohio’s reaction to them that Ohio was stopped because of a long silence over a -- with respect to the boundary?
Joseph M. Howard: Yes sir, he had some language to that effect in his -- in his reports.
Byron R. White: Filing thesis in this Court to support it?
Joseph M. Howard: No, he didn’t cite any cases to my --
Byron R. White: Well, Michigan against Wisconsin is pretty close too, wasn’t it?
Joseph M. Howard: Well, yes. That’s right. I’m sorry, you are correct. Michigan-Wisconsin --
Byron R. White: Well, now if he -- assume he was right in that view, but quite wrong in saying that you amend to complaint the state of cause of action. The complaint nevertheless shouldn’t be -- if you were right on the estoppel point, you still shouldn’t -- that the Amendment still shouldn’t be allowed, should it?
Joseph M. Howard: I think it should. In the --
Byron R. White: If you knew as a matter of law that the -- that Ohio would lose, had to lose because it stopped.
Joseph M. Howard: Well, how do we know that?
Byron R. White: Well, because I just assumed it. I assumed -- I say assume the Master was right in his ruling here which he -- of course if he is wrong in that ruling, then there’s something -- that’s something else again, but if he is right in that --
Joseph M. Howard: If we were -- I would agree with that. If we were sure that we were wrong --
William J. Brennan, Jr.: Well, didn’t the Master at Page 15 expressly say and on the basis of Kentucky’s open and continuous assertion and exercise of dominion to that point without formal objection by Ohio for more than 150 years?
Joseph M. Howard: I don’t know where he got that except from the brief that was filed by Kentucky. The only thing that is in the case at the present time is our amended complaint and that says nothing about acquiescence one way or the other. That’s an affirmative defense that Kentucky has to raise. So far, they haven’t even had the chance to raise it because this Court has not granted the permission to us to file a complaint. That statement is without any support in the record at all. And of course we do not agree to it.
William J. Brennan, Jr.: I gather from what you said, the proceedings from -- before Judge Foreman were limited simply to an oral argument?
Joseph M. Howard: That’s right; that's right.
William J. Brennan, Jr.: No facts --
Joseph M. Howard: No facts.
William J. Brennan, Jr.: -- related or taken or anything else?
Joseph M. Howard: No facts.
William J. Brennan, Jr.: Just on the face of the amended complaint.
Joseph M. Howard: That’s rightl; that's right.
William J. Brennan, Jr.: Where does the fact of the 150 years acquiescence in the dominion of Kentucky? Where does that come from?
Joseph M. Howard: It comes from one of the Kentucky’s briefs.
Potter Stewart: It’s based, however on, isn’t it on Ohio Supreme Court decisions at least in part of which --
Joseph M. Howard: Well he --
Potter Stewart: Of which the Special Master could take judicial notice of?
Joseph M. Howard: He can take judicial notice, that’s right; that’s right. But of course our position is that he misread those cases.
Potter Stewart: Yes, I understand that.
Joseph M. Howard: They were not talking about the middle of the river at all or anything of that sort. They were talking only about the margin of the river that is between the low water mark and the bank.
William H. Rehnquist: Is it your position Mr. Howard that the issue of acquiescence over a period of 150 is basically a factual one that you would --
Joseph M. Howard: Yes.
William H. Rehnquist: -- want to call witnesses on and have a factual determination --
Joseph M. Howard: That’s right.
William H. Rehnquist: -- of rather than just a legal one?
Joseph M. Howard: That’s right. It could be a legal one if there were some action on the part of the -- for instance of the Governor or the Legislature of the state which actually did acquiesced or as, as in the Indiana cases, there was a contact between the two states.
William H. Rehnquist: But if the Master is right in saying that this Court’s decision and Handly’s Lessee although not res judicata as to Ohio. The rational requires the same holding as to the Ohio-Kentucky border, then that would be a legal determination quite apart from any acquiescence, would it not?
Joseph M. Howard: Well it would, but of course the Court had the same thing in the submerged lands cases. Remember the California case was the first one. And that was followed up by the two from Louisiana and Texas in which the contention was made that those Courts were bound by the decision made in California, but the Court directed full hearings on it, and the same thing is before the Court right now in the Continental Shelf cases. Those also depend on the original California submerged land case.
Byron R. White: The holding of Handly's would have to be overruled?
Joseph M. Howard: Yes, it would. Not the holding of the case but the dictum in the case would have to be overruled.
Byron R. White: The rationale?
Joseph M. Howard: Well --
Byron R. White: The reason it would give a judgment to the winner of that case would have to be --
Joseph M. Howard: No sir, because the reason that land was above the high water or the low water mark anyway, and there was no reason for the Court saying anything about the middle of the river. He could have decided it simply by saying that this land lies between the low water mark on the north side and the Indiana bank. Consequently --
William J. Brennan, Jr.: Apparently, at the very least, we have to disapprove or reject that the tell us the statement at page 5 from Handly, wouldn’t it?
Joseph M. Howard: Yes, sir; yes sir.
William J. Brennan, Jr.: But when as in this case ones there is a recent proprietor to --
Joseph M. Howard: Yes, sir.
William J. Brennan, Jr.: That would have to be rejected, disapproved --
Joseph M. Howard: That’s right.
William J. Brennan, Jr.: And that is the reason they gave the court between their judgments. I mean there is another reason and that is the reason they gave.
Joseph M. Howard: Yes, that’s the reason they gave, yes. Of course, our position is that Chief Justice Marshall was a Virginian of course and nobody raise this question of where the boundary line lay, was it in the middle of the river or the north shore, so he didn’t even go into it. Later on, when question of title came up in the Worcester versus Georgia case, he had to go into it very thoroughly. And what he said there is in direct conflict with what he said in the Handly case. I really think -- I would just be repeating what I have said already if I go through, because the questions that have been addressed to me had brought out the main argument that we are making.
Warren E. Burger: It’s always a good time to stop, counsel. In addition to it, it’s lunch time.
Joseph M. Howard: Oh, right. [Laughter]
Warren E. Burger: Mr. Famularo.
John M. Famularo: Mr. Chief Justice and may it please the Court. Mr. Howard has fairly stated the facts and history of this case. However, we wish to emphasize two points at this point. First, we wish to point out that Kentucky did challenge the sufficiency of the allegations to state a cause of action, but that we did not do this in the form of an affirmative defense. We rather raised it as a point of law, much as in common law demurrer, and that point was that the allegations of the State of Ohio are immaterial, that is, if they are true, they in no way change the boundary which was established by Congress long ago based upon the session of Virginia and the acts of Congress thereto. Secondly, we wish to point out that in the original complaint of 1966, the State of Ohio conceded that the boundary between the states of Kentucky and Ohio was the low water mark on the northern shore as that mark existed in 1792. They further conceded that the states involved in the Handly Lessee versus Anthony case, that is, Indiana and Kentucky, should control as between Ohio and Kentucky based upon the identical title relationship of the parties. Thus, they recognized that Handly was controlling and should control as between Ohio and Kentucky. And they have recognized this for more than 150 years since the decision in Handly. At least it has been recognized to the extent that they were judicially aware of Handly, and yet have set by inactively for a period of at least 150 years until the amendment is now sought attempting to establish the boundary in the middle of the river. We submit that the recommendation of the Special Master was correct for two basic reasons. The first reason is what we refer to as the immateriality of any alleged defect in the title of Virginia where the boundary was clearly fixed by Congress based upon the session of Virginia and the acts of Congress. Secondly, we submit that the Special Master’s recommendation was correct due to the judicial admissions found in the 1966 pleadings and the judicial and historical acquiescence upon the part of Ohio which is undisputed. Let us briefly deal with the first allegation. Ohio claims that the boundary is in the middle of the river now, based upon and alleged defect in Virginia’s title due to various pre-revolutionary war documents and actions by the British Crown. We submit that after the Revolutionary War, all of the territories situate within the United States was a part of the United States and any claim are derivative claim of the British Crown was clearly extinguished by the results of the Revolutionary War. Once Virginia ceded the land, situate lying and being to the north of the River Ohio for the sole purpose of creating new states and once the Sovereign United States accepted this session and the terms thereof and recognize the sovereignty of Virginia over the entire river, any defect in that title to the land north of the river is clearly immaterial. The only two parties involved, the Sovereign State of Virginia and the Sovereign United States based upon the negotiations involved, recognized that the boundary was to be on the northern shore. Certainly, they had the authority to act and did so. And the boundary was clearly established as residing within Virginia on the northern shore and all the land south of the river. This was determined long before the State of Ohio was ever created. And Ohio was in no position now to vindicate the rights of the province of Quebec or to vindicate the rights of the Indians. It can only vindicate any rights that they’ve acquired since they became a state. And we submit that clearly the boundary was determined based upon the acceptance of Congress of the Virginia session. It is that law that is the law of the Sovereign United States which must govern this boundary dispute and not the law of any foreign political entity. The Special Master has not rejected this as Ohio claims and if indeed it -- Judge Foreman did, this Court can certainly hold otherwise. We submit that the session of Virginia and the legislative enactments did indeed become the subject of judicial interpretation. In Handly’s Lessee versus Anthony, the Supreme Court judicially recognized and accepted the legislative enactments involved and resolved the boundary dispute reasoning to the language of that session of Virginia itself and also to the acts of Congress involved.
Warren E. Burger: Now, correct me now Mr. Famularo if I’m confused. Isn’t the central issue here whether an amendment should be allowed at this time?
John M. Famularo: This is true Mr. Chief Justice.
Warren E. Burger: Hasn’t the Court historically been rather generous in allowing amendments particularly in actions between the states?
John M. Famularo: Certainly, the courts have been lenient in this regard, Your Honor. However, we submit that they had not been lenient in this regard where indeed the factual allegations taken upon the sufficiency of their face do not establish as a matter of law or cause of action. And we submit that any alleged title defect in Virginia’s land, as we have previously pointed out in our argument so far, is clearly immaterial and to tie up the Court and to bring in such an immaterial claim would in no way resolve the matter or would in no way achieve the expediency which the Court strive for.
Warren E. Burger: Do you have anything to suggest about the scope of the factual matter that would have to be dealt with if an amendment should be allowed?
John M. Famularo: Without going outside the record, Your Honor, I think it suffice it to say that it would be a totally and completely burdensome task. It would, in all likelihood, truly involve a counterclaim as what’s suggested in the hearing before the Special Master. This, in itself, would be an onerous task in trying to compute all of the expenditures overall of the years. And where the allegation is completely immaterial as we submit it is, we submit that this Court should not consider this and should not be burden with this task and the Special Master correctly so held.
William H. Rehnquist: Really, what the Special Master did here was tantamount to allowing a motion to amend the complaint and dismissing the amended complaint for failure to state of claim for relief, wasn’t it, because it was legally barred?
John M. Famularo: Yes, this is correct Mr. Justice Rehnquist, basically what the Special Master did was that reasoning more to the theory of acquiescence than to our initial theory here of the immateriality of any alleged defect in Virginia.
Warren E. Burger: But, it was sort of a demurrer approach, was it not?
John M. Famularo: Yes, it was Your Honor.
Warren E. Burger: And then he acted on that theory.
John M. Famularo: Right, he stated the theory of acquiescence to give validity to this argument and to set forth the rational. However, such --
Potter Stewart: Well, I suppose the -- it’s a little hard to conceptualize in a normal lawsuit, let's say, bring a file a complaint and alleging a promise without consideration to give me a thousand dollars. Well, as a matter of law that doesn’t state a cause of action upon -- on its face because there was no consideration and no action of reliance and so on. You could still file that complaint but it would be dismissed I suppose on a motion to dismiss or on demurrer?
John M. Famularo: This is true, Your Honor.
Potter Stewart: Assuming all the facts to be true. It simply doesn’t state a cause of action under the law.
John M. Famularo: This is true Mr. Justice.
Potter Stewart: And here assuming all the facts to be true. It doesn’t state a cause of action under the law, the law in this case not being the general law, such as the law of contracts, but the law that the boundary between Kentucky and Ohio is the low water mark of the northern side of the Ohio River.
John M. Famularo: That is basically our contention.
Potter Stewart: But it still, I suppose that the complaint as a release to the technical, logical, symmetrical matter should have been allowed to be filed, shouldn’t it? Just as I can go in to the court, a trial court and file an action alleging a promise without consideration to pay me a thousand dollars and maybe absolutely no good. It may not state a cause of action because there was no consideration or its equivalent but nonetheless I can file a complaint, can I?
John M. Famularo: Yes Mr. Justice, subject to the demurrer.
Potter Stewart: Subject to a demurrer or a motion to dismiss.
John M. Famularo: Subject to the motion to dismiss.
Potter Stewart: Right.
John M. Famularo: However, it must be --
Byron R. White: You said a while ago that according to your case was that as the matter of law, even accepted the allegation as true that the dedication by Virginia been accepted by the United States as a matter of law ended the matter.
John M. Famularo: This is true. We are making that statement, and we submit --
Byron R. White: That is what the Special Master held, that was it.
John M. Famularo: He did not reject this theory.
Byron R. White: Well, he did it on all of the (Inaudible)?
John M. Famularo: No, it’s not. He based his upon the theory of acquiescence. However, we submit that he did not reject this theory and clearly the --
Byron R. White: Well, perhaps it’s that -- perhaps in the holding of the ground that we just discussed just this moment, shouldn’t you complaint that that have been allowed to be filed, to be amended?
John M. Famularo: Since this was an original proceeding Mr. Justice White, I think the technical rules actually are not followed and this Court looks to them for guidance, if indeed this were the typical lawsuit between the average parties then in all likelihood exactly what you’re saying would be correct. But in the original proceeding where the Court strives to get the issues before it and tries to eliminate any burdensome issues, which we submit that the boundary in the middle of the river clearly is, it should be rejected and this forms the basis of our contention.
Potter Stewart: There was a case, I just have remembered argued about my second to third day here in the Court back 1958, it's reported in 358 U.S. Page 64, California against Washington, and that was an argument on a motion to file a bill of complaint. Now, that's a very short per curiam judgment, the motion for relief to file a bill of complaint is denied, and then the Twenty-First Amendment of the Constitution is cited, Section 2 of that Amendment along with three or four or five decided cases under the Twenty-first Amendment, i.e. on the merits of the case that we did not allow the complaint to be filed, and the cited cases go into the merits of the complaint rather than allowing the complaint to be filed and then dismissing it on the merits pointing out that might be a practical --
John M. Famularo: I think that is -- that's a sound --
Potter Stewart: That’s 358 U.S. Page 64.
William J. Brennan, Jr.: Mr. Famularo, what is this counterclaim that you mentioned earlier that you would have -- I gather Kentucky you said will have to file if the amended complaint?
John M. Famularo: Yes, it would be a counterclaim basically for expenditures over all of the years Mr. Justice Brennan in excess of the middle of the river to the far side. If indeed Ohio --
William J. Brennan, Jr.: You’d have to make that kind of record in the event that Ohio should prevail and its claim to the middle of the river, is that it?
John M. Famularo: That’s right. But would you have to make that kind of record until actually Ohio had prevailed, if it did? I think to protect the record of the case and to protect our interest, once the amended complaint is allowed to be filed and as a protective device for the common law of Kentucky --
William J. Brennan, Jr.: Well, you would file the counterclaim I gather, but would you have to try it until the issue of the location of the boundary line is settled?
John M. Famularo: Would we have to try the counterclaim?
William J. Brennan, Jr.: Counterclaim, yes.
John M. Famularo: No, in all likelihood we would not because of the expenditures would be for the area line north of the river and to the northern shore.
William H. Rehnquist: Mr. Famularo, to take Justice Stewart’s hypothetical a moment ago, in a common law of Court where you file a complaint that doesn’t state a claim for a relief as an amendment, but the Court simply denies relief to file it, then and you appeal, and on appeal, the court were to say, well he should have been given leave to file his complaint, but we see that it doesn’t state any state of claim that we would grant relief even conceding the facts, would the Appellate Court do you think reverse and say, even though it would have done in no good, you should have been allowed to file a complaint of whether to affirm on other grounds?
Warren E. Burger: It seems to me that that to reverse and say that they should have been allowed to file would be going around the circle of the matter. It seems more critical that the Court should and could look to the facts and take judicial notice of any undisputed facts that are in the record and prohibit such a proceeding from developing, and I think this is exactly -- No but do you think doesn’t that deprive the Trial Court of its inherent right to permit an amendment to the complaint? Inherent power, I should say.
John M. Famularo: Well certainly --
Warren E. Burger: Obviously, it’s an economical and an efficient proceeding, but litigation isn’t always efficient.
John M. Famularo: Certainly, the right of the Trial Court to grant an amendment Mr. Chief Justice would be infringed upon how that right is not absolute and there are various motions to be filed for leave of court in which the grounds are spelled out, and certainly this Court is aware. After the responsive pleadings are filed, and that if that motion or if that attempt to file the amended complaint shows that as a matter of law nothing would be accomplished by it, I don’t think the rights of the Trial Court in this regard are so abruptly encroached upon that as a matter of expediency such could not be held to be dismissed.
Warren E. Burger: But the very holding of the reviewing court in this common law hypothetical case, the very theory of the Appellate Court’s action might put the parties, the party on notice as to how he might appropriately amend his complaint.
John M. Famularo: This is true. However, if I had the language of Mr. Justice Stewart’s case before me, I might be better able to answer this question. Not having it, I can only again state that I think for expediency in a matter especially in an original proceeding --
Warren E. Burger: I suppose that one basic difference is that we, unlike an appellate court in a state common law system, have plenary power. We are the original court here.
John M. Famularo: That’s true. The uniqueness of the original proceeding is something to be considered in this case.
William J. Brennan, Jr.: Well often though that cuts when the controversies between two states as the Chief Justice suggested earlier, to give considerable attitude to the States to have their claims determined when the controversy with the sister state.
John M. Famularo: This is true Mr. Justice Brennan, but we submit that in a close examination of the facts before this Court as little as they may be at this point. The pleadings themselves establish as we have pointed out that any defect in the land lying northwest of the Ohio River is immaterial.
William J. Brennan, Jr.: Would you say the same thing if you were defending of the recommendation of the Special Master on the basis of the acquiescence in which he relied?
John M. Famularo: I am going to get into that right now and we will say the same thing. We think that the Special Master was correct in applying that based upon acquiescence of the State of Ohio that the motion for leave to deny should be -- the motion for a leave to amend should be denied.
William J. Brennan, Jr.: The acquiescence consisting number one of a 150 years, number two of the concessions made in the original complaint?
John M. Famularo: Exactly, those two things. The judicial admissions made in the 1966 pleadings, the inactivity of over 150 years by the State of Ohio, while Kentucky has continuously exerted control over the river in all of its dealings, although they are not specifically a part of the record. Moreover, Kentucky’s legislature as early as 1810 attempted to alleviate the problem as to the boundary questions before Handly’s Lessee was even decided. Yet, Ohio’s legislature apparently has made no such attempts. For 150 years, Ohio has been satisfied and being aware of the judicial determination in Handly’s Lessee versus Anthony and Indiana versus Kentucky, but yet has made no attempts to clarify that insofar as it relates to them. Now they claim that they are not a party to -- that was litigations and therefore they’re not bound by them. Before getting into the Master’s acquiescence theory, I would like to briefly respond to that allegation. To say that they are not bound by that in the strict sense is correct. They were not a party. However, we submit that such a contention is certainly undermined by their judicial admissions. Certainly such a contention is undermined by the lapse of time involved and finally such a contention is undermined by the holding of the Special Master that such a contention would create a checkered river contrary to the intentions of Congress and the intentions of the State of Virginia and would be totally in ascertainable. No one would no where the boundary would be. Based upon that, we submit that Ohio cannot claim that she was not a party. And finally --
Byron R. White: How would a checker or checker border or however you described it to result follow, wouldn’t you have one rule on the Indiana border and another one on the Ohio land?
John M. Famularo: Well, this would be true but on the river, it would be extremely difficult to ascertain where the boundary of Ohio stops or where the boundary of, let’s say, Illinois or Indiana starts. For the average fisherman or the average tugboat operator or the average beer distributor on the river and restaurant attached to the dock, it would be hard to ascertain which is Ohio and which is Illinois, and such would be a checkered fashion.
Byron R. White: Isn’t that true in Mississippi between Illinois and Missouri? Would it just be as hard there as here?
John M. Famularo: It would be, but such does not make the result anymore correct. Finally, we submit that the report of the Special Master was correct in recommending that the motion for leave to amend be denied based upon the judicial admissions and based upon the judicial and historical acquiescence upon the part of the State of Ohio. Ohio’s court --
Potter Stewart: Of course then both the acquiescence and the judicial admissions in this case, I suppose, were to place under the authority of this Court’s decision in Handly’s Lessee, not that Ohio was a party to it but the rational of that case was very, very clear. Now, this Court in the past has reconsidered the earlier decisions. This is the only Court that Ohio can bring a lawsuit against Kentucky in. This is a case not only about original jurisdiction but over an original and exclusive jurisdiction. There is no place else that Ohio can go for relief. Certainly the Master, in this case, is going to consider our existing decisions controlling, but shouldn’t Ohio have an opportunity to ask us to reconsider the rationale of previous decision? After all, it wouldn’t be making history for us to do that and to reconsider previous decision and overrule it.
John M. Famularo: We submit that Ohio based upon its long delay and more importantly based upon the continuous dominion by the Commonwealth of Kentucky should not be allowed at this point to change its total theory.
Potter Stewart: Well, this was all done, all this acquiescence and all this delay and all this judicial admission was done under the compulsion of Ohio’s understanding of the existing law in this Court. But shouldn’t Ohio be given an opportunity to ask us to reconsider and review the existing law and may be find that it was erroneous in the first place.
John M. Famularo: Well, we submit that such should not be done, Your Honor based upon --
Potter Stewart: Without a solid historic foundation.
John M. Famularo: We submit that such should not be done based upon our first argument that even if they have this attempt that it will fail as a matter of law as the Special Master held to state a cause of action.
William J. Brennan, Jr.: Not because of any decision to this Court, but because of the action of the Congress --
John M. Famularo: That’s right.
William J. Brennan, Jr.: -- in accepting the decision.
John M. Famularo: And in no way has that reasoning been detracted from by any decision. In fact it was reaffirmed in Handly.
William J. Brennan, Jr.: Well, I know but in Handly’s that was the interpretation given or the effect given the session plus the congressional legislation.
John M. Famularo: And specifically determined about --
William J. Brennan, Jr.: I suppose even that could be reconsidered, couldn't it?
John M. Famularo: The intentions of Congress and --
William J. Brennan, Jr.: Couldn't it?
John M. Famularo: I suppose it could be, but again we fall back upon our first argument that that such would be to inject in this proceeding at this time an immaterial point.
William J. Brennan, Jr.: Incidentally, what’s left of this controversy between Ohio and Kentucky if we accept the Special Master’s recommendation?
John M. Famularo: If the Special Master’s recommendation was accepted, Mr. Justice Brennan, it would leave the litigation in the State of the original complaint being filed and our answer being filed.
William J. Brennan, Jr.: You’d still have to resolve this question where the low water mark is, whether it’s 1792 or --
John M. Famularo: Or whether it’s the present low water mark. It’s as setup in an affirmative defense in our answer.
William J. Brennan, Jr.: Yes.
Potter Stewart: What’s the -- may I ask, what is the practical significance outside of criminal and some other jurisdiction, and has gas been discovered up around portions and so on?
John M. Famularo: Outside of the record, Your Honor, my understanding of it is that, there has been some minerals found in and around the Henderson area which is across of Evansville, Indiana.
Potter Stewart: That’s Indiana, I mean east of the Great Miami River.
John M. Famularo: The problems of licensing of boats, of licensing of fisherman, hunters, the licensing and taxing, all of these are posing critical questions that need to be resolved in terms of the boundary and its -- the dealings of the Commonwealth of Kentucky we think have been consisted with the boundary at the present low water mark without getting into that at this point. Certainly, that -- those facts are not part of this record.
Potter Stewart: No, that’s the original lawsuit.
John M. Famularo: That’s right. The basis of our acquiescence claim is that this Court can certainly judicially notice the undisputed judicial admission, and judicially notice the undisputed judicial admissions of the State of Ohio and can judicially notice the undisputed historical facts that is the continuous dominion and control over the Ohio River by the Commonwealth of Kentucky and the undisputed delay and inactivity and silence by the State of Ohio based upon the judicial notice of this --
Byron R. White: I thought we heard in the other side that they wanted to challenge that factually.
John M. Famularo: They do; they do Mr. Justice White.
Byron R. White: Well, then you can’t say undisputed, can you?
John M. Famularo: What’s undisputed, we submit, is a matter of law. The judicial admissions as a matter of law we submit speak for themselves and this Court can certainly judicially notice them. The historical facts at least insofar as we have stated, that is, the continuous dominion by the State of Kentucky and the silence by the State of Ohio is an undisputed fact and this Court can certainly judicially notice that and --
William H. Rehnquist: Well supposing we can judicially notice it. Does it amount to anything to more than saying you have a great deal of evidence which would clearly be submitted -- admissible in support of your view as opposed to being conclusive on Ohio?
John M. Famularo: Well, certainly we submit that it is more than enough evidence to establish that any attempt of Ohio to now say that the boundary is in the middle, is improper at this time. Be at by motion to dismiss or whatever. We submit that these theories and that this undisputed facts clearly substantiate our views. And as a matter of law entitle the Commonwealth of Kentucky to a ruling at this point that as a matter of law, they fail to state a cause of action. They cannot be overcome. True, Ohio may have many other facts that they can introduce. However, those facts can in no way, we submit, overcome, that which is already been transpired in the past. And again we fall back upon our first argument Mr. Justice Rehnquist that the expediency of this matter in the original proceeding should attempt to prohibit and avoid any such circumvention of the most direct route. Based upon this, we submit that the finding of the Special Master was correct insofar as it denied the motion for leave to amend.
Warren E. Burger: Thank you Mr. Famularo. Mr. Howard.
Joseph M. Howard: Yes, sir. May I say just -- make just a couple of points on the estoppel and acquiescence. That question was raised in the United States versus California, the first Tidelands Oil case. California claimed that the United States was stopped from claiming title to that three-mile belt of the California coast. It claimed that the United States have acquiesced in California’s claims of title for years. Nevertheless, the Court’s opinion written by Mr. Justice Black, refused to accept that argument and discussed it at some length. I think that is -- seems to me to be controlling in this particular case. The other point is, recently there have been a number of bridges constructed between Ohio and Kentucky. They were the subject of contracts between the two states. The contracts provided that Kentucky would pay for the bridge up to the low water mark on the north side of the river and Ohio would pay for the rest of it. That’s on the Ohio side. But, the contracts also provided that nothing said therein should be determinative of where the boundary line lay. That shows that Ohio was still maintaining its position that the boundary line was not at the low water mark.
Potter Stewart: Well, I guess those contracts were written after the amended complaint and this case was offered, weren't they?
Joseph M. Howard: I think some of them were written prior to that time Your Honor, I am not sure of that. I know some of them have been written after.
Potter Stewart: Could you -- as I understood your -- what you told us about the history of litigation -- this original complaint was filed when, back in 1965?
Joseph M. Howard: 1966.
Potter Stewart: 66 --
Joseph M. Howard: Yes.
Potter Stewart: Then by reason of a change of administration or other reasons, people in your office looked at it and there was nobody familiar with it and you began to study of it and then and only then back four or five years after the original complaint was filed that this theory was discovered or evolved or of whatever that, there was a basis of the amended complaint and that that was the first time I --
Joseph M. Howard: May I say that the prior administration was familiar with this argument.
Potter Stewart: With the argument?
Joseph M. Howard: That’s right. They were familiar with this, they had the Vinton argument made to the General Court of Kentucky back in 1848, which has been mentioned right at the end of our brief and is the best statement of Ohio’s position. They had that at that time. They didn’t have any faith in it. They did not think that because of the length of time that had passed that they would be able to prevail on this Court to permit them to go ahead with that argument. We examined it and we take a different view of it. That’s all. It's two different sets of lawyers looking at it and deciding what should be presented to the Court. But I think, I am not quite sure about those contracts but I am pretty sure that there were some of them that were written before 1966.
William J. Brennan, Jr.: What kinds of proofs would you have in mind to offering in support of the middle of the river line?
Joseph M. Howard: Well, we have lined up all the documentary evidence, which shows to me conclusively that Virginia had no title on the north and the west side of the river. Consequently, the doctrine that Chief Justice Marshall laid down in the Handly case did not apply at all. He said that if one state owns both sides of the river and gives up one side, it retains the entire river. But if two states own the opposite sides of the river, then their boundary runs to the middle. Now, those documentary proofs, what happened prior to the time of the revolution show that Virginia regardless of what their original claim was, under the charter no longer had any title on the north and west side of the river. The title was in the British Crown. It was reserved for the use of the Indians and at the time of the revolution upon the Declaration of Independence, that claim passed directly to the United States. Not to any of the individual states at all, because they had no claim to it at that time.
William J. Brennan, Jr.: Well, what about the acts of the Congress in recognizing this and accepting it?
Joseph M. Howard: Which --
William J. Brennan, Jr.: As I understood the Kentucky’s position there had been acts of the Congress in connection with the session by Virginia to the United States.
Joseph M. Howard: Your Honor, those acts simply mentioned the Ohio River is a boundary. They say no more than that. They talk about the lands in north and west of the river and the lands in south and east of it and that’s all.
Byron R. White: Are you -- who owns the -- you have gone to the extent of saying that Ohio belongs to some other declaration.
Joseph M. Howard: No; no. No sir, they --
Byron R. White: You are saying that, you argue that Congress accepted the session?
Joseph M. Howard: Well let’s go back at the time of the revolution. At the Declaration of Independence, all of the land which was then controlled by the British Crown and which was outside of the boundaries of the states passed directly to the United States under the external sovereignty rule that has been used in the Tidelands Oil cases and is now being argued by the Solicitor General in the Continental Shelf case. We are -- this position that we are taking here is the same as the position that he is taking in that case.
Byron R. White: Well, isn’t it that United States act was  though -- it was as if it acquired the land from the State?
Joseph M. Howard: The Continental Congress controlled the Northwest Territory right from the start. They made treaties with all the Indians who were at that time leaving and had occupancy of the territory. The land eventually came to the United States through the treaties that were made with the Indians. Every bit of Ohio is covered by a treaty with the Indians.
Potter Stewart: That was the Treaty of Greenbelt, wasn’t it?
Joseph M. Howard: That was the last one, the latest one. They were a lot of them before that.
Potter Stewart: The Northwest Territory, I’d always understood, was the land lying north of the Ohio River?
Joseph M. Howard: That’s true, but there was also a Southeast Territory, which was the land lying south and east to the river, Tennessee and Kentucky.
Potter Stewart: Right.
Joseph M. Howard: And if you look through the early acts of Congress, that’s all they referred to, the land north and west to the river and the land south and east of it.
Potter Stewart: And it’s your claim there was the --
Joseph M. Howard: There was never, never any attempt to draw a line in the river.
Potter Stewart: A session by Virginia in 1784 was a --
Joseph M. Howard: They didn’t have anything to see.
Potter Stewart: -- was a kind of a quick claim deed but it wasn’t --
Joseph M. Howard: That’s right, they gave up their claim.
Potter Stewart: Whatever it may have, then and you say they didn’t have anything to see.
Joseph M. Howard: They didn't have -- they had no title, that’s right.
Potter Stewart: I understand your argument.
Joseph M. Howard: That's right.
Potter Stewart: And that John Marshall was wrong in thinking that they --
Joseph M. Howard: Yes, sir; yes sir.
Potter Stewart: Right. [Laughter]
Joseph M. Howard: Thank you.
Warren E. Burger: Thank you Mr. Attorney General. Thank you. The case is submitted.