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decided: May 1, 1922.



Author: Van Devanter

[ 258 U.S. Page 578]

 MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This suit in equity was brought in this court by the State of Oklahoma against the State of Texas to settle a controversy between them over their common boundary along the course of the Red River and over the title to the southerly half of the river bed. The State of Texas answered the bill and joined in the prayer that the controversy be decided. Shortly thereafter the United

[ 258 U.S. Page 579]

     States, by the court's leave, intervened as a party in interest, and in its bill of intervention set up a claim to the river bed as against both States. Subsequent proceedings resulted in a decree recognizing and declaring that the true state boundary is along the south bank of the river, as claimed by Oklahoma and the United States, and not along the medial line of the stream, as claimed by Texas. 256 U.S. 70, and 608. The decree directed a further hearing to determine what constitutes the south bank, where along that bank the boundary is, and the proper mode of locating it on the ground. That hearing was had last week and disclosed that the parties differ widely as to what constitutes the south bank. A decision on the question will be given after it shall have been fully considered. The southerly cut-bank to which we shall refer presently may or may not be the bank along which the boundary extends. On this we intimate no opinion now.

Our present concern is with proprietary claims to the bed of the river and to the proceeds of oil and gas taken from 43 miles of the southerly half.

After we acquired jurisdiction of the suit it developed that the State of Oklahoma was claiming title to the entire river bed from one bank to the other; that the State of Texas was claiming title to the southerly half; that the United States was disputing the claims of both States and asserting full proprietorship of the southerly half and an interest (because of its relation to Indian allottees) in portions of the northerly half; that a part of the bed, particularly of the southerly half, had been but recently discovered to be underlaid with strata bearing oil and gas and to be of great value by reason thereof; that many persons were proceeding to drill for, extract and appropriate these minerals with uncertain regard for the dispute over the title and for the true ownership; that possession of parts of the bed was being taken and held by intimidation and force; that in suits for injunction the

[ 258 U.S. Page 580]

     courts of both States were assuming jurisdiction over the same areas; that armed conflicts between rival aspirants for the oil and gas had been but narrowly averted and still were imminent; that the militia of Texas had been called to support the orders of its courts and an effort was being made to have the militia of Oklahoma called for a like purpose; that these conflicting assertions of jurisdiction and the measures taken to sustain them were detrimental to the public tranquility, were of general concern and were likely to result in great waste of the oil and gas and in their extraction and appropriation to the irreparable injury of the true owner of the area in dispute, and that unless these minerals were secured and conserved by means of wells drilled and operated in that area there was danger that they would be drawn off through wells in adjacent territory pending the solution of the controversy over the state boundary and the title to the river bed.

In these circumstances, on the motion of the United States, fully supported by the State of Oklahoma and expressly approved by the State of Texas to the extent of its proprietary claim, we appointed a receiver to take possession of the part of the river bed between the medial line and a line on the south bank temporarily and provisionally designated, and within defined easterly and westerly limits, and to control or conduct all necessary oil and gas operations therein. As to that area there appeared to be urgent need for such action. The order provided in detail for ascertaining and holding the net proceeds of the oil and gas in such way that they could be awarded and paid to whoever ultimately should be found to be the rightful claimants, and also provided for such interventions in the suit as would permit all possible claims to the property and proceeds in the receiver's possession to be freely and appropriately asserted. 252 U.S. 372.

[ 258 U.S. Page 581]

     Numerous parties have since intervened for the purpose of asserting rights to particular tracts in the receiver's possession and are seeking to have the same and the net proceeds of the oil and gas taken therefrom surrendered to them.Many of these claims conflict one with another and all are in conflict with the claims of one or more of the three principal litigants.

Under the Constitution our original jurisdiction extends to suits by one State against another and to suits by the United States against a State.*fn1 In its first stage this was a suit by one State against another. When the United States intervened it became also a suit by the United States against those States. In its enlarged phase it presents in appropriate form the conflicting claims of the two States and the United States to the river bed and calls for their adjudication. The other claims, being for particular tracts and funds in the receiver's possession and exclusively under our control, are brought before us because no other court lawfully can interfere with or disturb that possession or control. It long has been settled that claims to property or funds of which a court has taken possession and control through a receiver or like officer may be dealt with as ancillary to the suit wherein the possession is taken and the control exercised, -- and this although independent suits to enforce the claims could not be entertained in that court.*fn2

[ 258 U.S. Page 582]

     The decree recognizing and declaring that the boundary between the two States is along the south bank of the river, and not along its medial line, means that the entire river bed is within the State of Oklahoma and beyond the reach of the laws of the State of Texas, and therefore that the latter State and its grantees and licensees have no proprietary interest in the bed or in the proceeds of oil and gas taken therefrom. Of course, when the exact location of the boundary along the south bank is determined, it may develop that the receiver is holding some land on the southerly side of that line or proceeds arising there-from, and if so, the State of Texas and its grantees and licensees will be free to claim the same.

The other claims are all such as may be examined without awaiting an exact location of the boundary. They may be grouped and designated as (a) those of the State of Oklahoma and its grantees and licensees, (b) that of the United States, (c) those of Indian allottees and others based on the ownership of riparian lands on the northerly side of the river, and (d) those based on placer mining locations made in the river bed. The evidence bearing on these claims was taken and reported under an order entered at the last term, 256 U.S. 605, and the pertinent questions of fact and law have been recently presented in both oral and printed arguments.

The Red River rises in the Panhandle of Texas, near the New Mexico boundary, and takes an easterly and southeasterly course to the Mississippi, of which it is a tributary. Its total length is about 1,300 miles. The first 557 miles from its mouth are in Louisiana and Arkansas, the next 539 miles are in Oklahoma along the southern boundary, and the remainder is in the Panhandle of Texas. The receivership area embraces 43 miles of the southerly half of the river bed and lies 409 miles up stream from the eastern boundary of Oklahoma.In that State the river bed between the cut-banks, so-called, has

[ 258 U.S. Page 583]

     an average width of one-third of a mile, -- the least width being in the vicinity of the 100th meridian and the greatest in the vicinity of the receivership area.

By the Treaty of 1803 with France and that of 1819 with Spain the United States acquired the full title to the bed of the river within what now constitutes the State of Oklahoma and to the adjacent lands on the north, and it still is their proprietor, save as in the meantime the title to particular areas, or some beneficial interest therein, has passed or been transferred from it to others in virtue of the Constitution or some treaty or law made thereunder. Recognizing that this is so, the claimants, other than the United States, severally have assumed, as they should, the burden of showing that the rights in the river bed which they are asserting were mediately or immediately derived from the United States. Whether they have successfully carried this burden is the matter for decision.

Oklahoma claims complete ownership of the entire bed of the river within that State, and in support of its claim contends that the river throughout its course in the State is navigable, and therefore that on the admission of the State into the Union, on November 16, 1907, the title to the river bed passed from the United States to the State in virtue of the constitutional rule of equality among the States whereby each new State becomes, as was each of the original States, the owner of the soil underlying the navigable waters within its borders. If that section of the river be navigable, its bed undoubtedly became the property of the State under that rule.*fn1a Those who oppose the State's claim recognize that this is so; and the State concedes that its claim is not tenable, if that section of the river be not navigable. So the real question in this connection is whether the river is navigable in Oklahoma.

The State relies on the third article of the Treaty of 1819 between the United States and Spain (8 Stat. 252)

[ 258 U.S. Page 584]

     as conclusively establishing the navigability of that section of the river. The article says:

"The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Nachitoches, or Red River; then following the course of the Rio Roxo westward, to the degree of longitude 100 west from London and 23 from Washington; then, crossing the said Red River, and running thence, by a line due north, to the river Arkansas; thence, following the course of the southern bank of the Arkansas, to its source, in latitude 42 north; and thence, by that parallel of latitude, to the South Sea.The whole being as laid down in Melish's map of the United States, published in Philadelphia, improved to the first of January, 1818. But, if the source of the Arkansas river shall be found to fall north or south of latitude 42, then the line shall run from the said source due south or north, as the case may be, till it meets the said parallel of latitude 42, and thence, along the said parallel, to the South Sea: All the islands in the Sabine, and the said Red and Arkansas rivers, throughout the course thus described, to belong to the United States; but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations."

The State's reliance is on the concluding words, but we think it ill-founded. At the date of the treaty the Red and Arkansas rivers were in a general way known to be navigable in their lower reaches and not navigable in their upper reaches, but how far up the streams navigability extended was not known. Both were of great length,

[ 258 U.S. Page 585]

     largely within a region occupied by wild Indians, and measurably unexplored. The words on which the State relies evidently were to apply alike to both streams. The international boundary was to run along the southerly banks of both, -- along that of the Red for about 600 miles*fn1b east of the 100th meridian and along that of the Arkansas from the same meridian to the source of that river in the heart of the Rocky Mountains. To attribute to the parties a purpose to impress this entire stretch of the Arkansas with a navigable character, regardless of the actual conditions, is, in our opinion, quite inadmissible. And so of the 600-mile stretch of the Red. The entire article, examined in the light of the circumstances in which the treaty was negotiated, shows, as we think, that what really was intended in this regard was to provide and make sure that the right to navigate these rivers, wherever along the boundary they were navigable in fact, should be common to the respective inhabitants of both nations.

A legal inference of navigability is said to arise from the action of the surveying officers who, when surveying the lands in that region, ran a meander line along the northerly bank and did not extend the township and section lines across the river. But this has little significance. The same thing was done on the Platte and other large western streams known to be unnavigable. Besides, those officers were not clothed with power to settle questions of navigability.*fn2a

A like inference is sought to be drawn from the fact that Congress, in permitting the construction of certain bridges across the river within Oklahoma, provided in substance

[ 258 U.S. Page 586]

     that there should be no interference with navigation.*fn1c But it is reasonably manifest that this provision was only precautionary and not intended as an affirmation of navigable capacity in that locality. The river was known to be navigable from its mouth to near the eastern boundary of Oklahoma and there had been, as will be seen presently, some light navigation above that boundary in the irregular times of temporary high water; so those who were about to construct the bridges at large expense deemed it ...

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