BOUNDARY AND JURISDICTIONAL PROBLEMS
OF THE KENTUCKY-OHIO BORDER
BY EUGENE O. PORTER
The Ohio River forms parts of the
boundaries of five states
and in so doing advances two problems:
first, that of the actual
boundary of each state on the river; and
second; that of the juris-
diction- which each state may exercise
on the river. In other words,
Virginia, in her deed of cession of the
Old Northwest to the Gov-
ernment of the Confederacy in 1784 and
in her enabling act for
Kentucky in 1789. chose, at the time, to
divide her jurisdiction
over the river between herself and
Kentucky, on the one hand, and
the proposed states north of the river,
on the other, but she did
not choose to divide the dominion over
the soil of the river bed.
But both Kentucky and Ohio have
steadfastly refused to recognize
the two-fold aspect of the problem. As a
matter of fact, both
states have confused the problem of the
boundary with that of
jurisdiction.
The problem of the boundary goes back to
the deed of cession
when Virginia ceded "all right,
title, and claims as well as soil as
jurisdiction, which the said commonweath
hath to the territory
within the limits of the Virginia
charter, situate, lying, and being
to the northwest of the Ohio
river."1 This clause,
however,
proved to be confusing and the United
States Supreme Court was
called upon to interpret it. The need
for an interpretation was
brought about by an act of the Kentucky
Legislature. A jut of
land extended from the Indiana shore
above and near Evansville.
At low-water mark this strip of land
formed a peninsula but when
the river was swollen the projection was
completely surrounded
by water and 'therefore had the
appearance of an island. The
Federal Government had granted patents
for this land. Then
Kentucky evolved the theory that her
boundary extended to the
opposite shore at high-water mark and
likewise granted patents
1 United States Statutes at Large,
I, 474.
155
I56
OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY
for the projecting land. Finally, in
1820, the conflicting claims
were carried before the Supreme Court of
the United States in
the case of Handley's Lessee vs.
Anthony.2
Chief Justice John Marshall wrote the
decision in this case.
He denied Kentucky's claim in no
uncertain terms, saying:
When a great river is the boundary
between two nations or states,
if the original property is in neither,
and there be no convention re-
specting it, each holds to the middle of
the stream. But when, as in
this case, one state is the original
proprietor, and grants the territory
on one side only, it retains the river
within its own domain, and the
newly created state extends to the river
only. The river, however,
is the boundary.
But, continued the Chief Justice,
Whenever the river is a boundary between
states, it is the main,
permanent river which constitutes that
boundary; and the mind will
find itself embarrassed with
insurmountable difficulties in attempting
to draw any other line than the low
water mark.
Later, in 1898, the Supreme Court
restated the Marshall de-
cision in the case of the Henderson
Bridge Co. vs. Henderson
City.3 In this case the court upheld the right of Henderson
City,
Kentucky, to tax the company's bridge
from the Kentucky side
over the Ohio River to low-water mark on
the Ohio side, on the
grounds that Kentucky owned the river to
the north shore at low-
water mark.
But to return to the earlier decision,
both Kentucky and Ohio,
unlike Virginia and later West Virginia,4
accepted the "low-water
mark" interpretation. The attitude
of Ohio is seen in the case of
Lessee of Blanchard vs. Porter et
al.5 which came before the Ohio
Supreme Court in 1841. In this case land
lying beween high- and
low-water marks on the Ohio side had
been leased by Virginia as
public land and the Ohio proprietor
whose land bounded on the
river at that point brought a suit of
ejectment. The court declared
that such land was not the property of
Virginia as a part of the
river but that it belonged to the
adjacent proprietor.
2 Wheaton, 374 et seq.
3 176
United States Reports, 592 et seq.
4 See Eugene O. Porter, "The West
Virginia-Ohio Boundary," West Virginia His-
tory (Charleston), II (1941), 113-9.
5 11 Ohio Reports, 138.
PROBLEMS OF THE KENTUCKY-OHIO
BORDER 157
Meanwhile the Supreme Court of Kentucky
rendered similar
decisions in acceptance of the low-water
mark boundary although,
in two cases which will be discussed
later, the court confused the
problem of boundary with that of
jurisdiction. Furthermore, in
1903, the Kentucky Legislature passed an
act which was a natural
corollary to Marshall's decision. The
act stated that
Each county in this Commonwealth shall
have the right to dispose of
the unappropriated lands lying therein,
not otherwise provided for,
. . . and hold the proceeds for county
purposes, . . . And all that por-
tion of the bed of the Ohio river, lying
north of the thread of the
stream, except such portions as may be
accretions to islands privately
owned, is hereby declared to be vacant
and unappropriated property;
and the same may be held, leased, and
used for county purposes, as
herein provided.6
The Supreme Court of Kentucky, moreover,
upheld the right
of the Legislature to appropriate the
bed of the river, the court
citing Marshall's decision as proof that
Kentucky's boundary
extended to the Ohio shore at low-water
mark.7
Thus it would seem that so far as
Kentucky and Ohio are
concerned the boundary problem is a
closed one, since each accepts
the low-water mark interpretation. At
this time, therefore, it might
be interesting to point out the
attitudes of the other states which
border on the Ohio River. West Virginia
lays claim to the entire
river while confined within its banks
or, in other words, West
Virginia claims that her boundary
stretches to the "ordinary high-
water mark" on the Ohio side.8
Indiana accepts the low-water
boundary but Illinois tends to look
towards the middle of the
stream. That state maintains that
"under the common law. [if the]
lands [are] bounded by a river not
navigable, the line of the ripar-
ian owner extends to the center thread
of the stream." This
doctrine was first promulgated by the
Illinois Supreme Court in
18429 and repeated in 1868 in the case
of Ensminger vs. the
People of the State of Illinois10
and again in 1888 in the case of
6 Carroll's Kentucky Statutes, 1936, Section 4702.
7 Ware vs. Hagar, auditor: 126 Kentucky Reports, 324.
8 See West Virginia Code of 1939, 1.
See also 25 West Virginia Reports, 426 or
52 American Reports, 211, for the
acceptance by the West Virginia Supreme Court of
the high-water line of demarcation.
9 Middletown vs. Pritchard: 4
Illinois Reports, 510.
10 47 Illinois Reports, 384.
158
OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY
John Fuller vs. Victor Dauphin.11 It is true, of course, that these
cases pertain to the Mississippi River
and that no such case per-
taining to the Ohio River has ever been
reviewed by the Supreme
Court of Illinois. Yet the court has
gone on record to the effect
that the Mississippi is not a navigable
stream at common law, a
navigable stream at common law being one
in which the tide ebbs
and flows.12 Certainly with
this interpretation the Ohio River is
also a non-navigable stream and
therefore the court would hardly
reverse itself in a case pertaining to
the Ohio River.
Let the problem of the boundary be what it may, it is the
problem of jurisdiction which has been
least understood, espe-
cially by Ohio; and to understand this
problem it is necessary
to return to Virginia's "Act
Concerning the Erection of the Dis-
trict of Kentucky into an Independent
State," commonly called
the "Compact with Virginia."13
In Section XI of the Compact,
Virginia stated that the
"respective jurisdiction of this common-
wealth, and of the proposed State, on
the river aforesaid, shall be
concurrent only with the States which
may possess the opposite
shores of the said river." At the
same time Virginia decreed
that the use and navigation of the Ohio
River should be free and
common to the citizens of the United
States.14 Kentucky,
of
course, accepted this Compact and she
incorporated Section XI
in her several constitutions.15
Nevertheless, from the first settlement
of the Northwest Ter-
ritory, Kentucky claimed exclusive
jurisdiction over the Ohio
River where it touches her soil. As a
result difficulties and em-
barrassments followed. Persons arrested
by territorial officers
for crimes committed on boats lying at
or floating near the shore
of the territory were discharged on
pleas that the territorial courts
lacked jurisdiction. This condition of
things frequently resulted
in the escape of criminals from deserved punishment.16 Finally,
11 124
Illinois Reports, 542.
12 4 Illinois Reports, 510.
13 Henning's Virginia Statutes, XIII. 19; Carroll's Kentucky Statutes, 1936.
14 Today the control and supervision of
navigable rivers are under the Secretary
of War. See 21 Opinions Attorney
General, 518.
15 Constitution of 1792, Art. VIII, Sec.
7; Constitution of 1799, Art. VI, Sec. 9;
Constitution of 1850, Art. VII, Sec. 9.
See Francis Newton Thorpe, The Federal and
State Constitutions (Washington, 1909), II, 1264-315.
16 Jacob Burnet, Notes on the
Early Settlement of the North-Western Territory
(Cincinnati, 1847), 308.
PROBLEMS OF THE KENTUCKY-OHIO
BORDER 159
in 1799, the Northwest Territorial
Legislature decided to counter-
act the claims of Kentucky but in so
doing she based her legis-
lation on the fact that the Ohio River
had been declared a public
highway.17 In an act defining
and regulating privileges the Ter-
ritorial Legislature inserted a clause
which stated that "all arrests,
. . . made in any place, or on any river
or water course, within or
bounding the territory, shall be deemed
lawful."18 This act was
passed by a unanimous vote in each house
and was approved by
the governor with the distinct
understanding that it asserted the
right of concurrent jurisdiction over
the whole river.19
No serious effort was made at that time
on the part of Ken-
tucky to contest the act of the
Territorial Legislature. In fact it
was not until 1813 that Ohio's claim to
concurrent jurisdiction
with Kentucky was challenged by the
latter state. As a result the
Ohio legislature in that year passed a
resolution requesting the
governor to correspond with the governor
of Kentucky concern-
ing the appointment of commissioners to
meet with commissioners
from Ohio in order "to arrange and
define by compact, the extent
and objects of their several concurring
jurisdictions on the said
river."20 But the governor of
Kentucky refused to discuss the
matter.
Later the Supreme Court of Kentucky was
called upon to
interpret the validity of two acts of
the legislature but in so doing
the court confused the problem of
boundary with that of jurisdic-
tion. The first such decision was handed
down in 1835 in a case
in chancery, Church and others vs.
Chambers.21 In this case two
Kentucky statutes, one of 1824 and
another of 1828, were ques-
tioned. The former made liable to
damages the master of any
vessel who suffered a slave to come
aboard for the purpose of
crossing the river. The second statute
extended the liabilities to
the "owners, mate, clerk, pilot,
and engineer." In the case in
point, a suit for damages was brought
against some of the owners
17 Ibid., 309.
18 Salmon P. Chase, The Statutes of
Ohio and of the Northwestern Territory (Cin-
cinnati, 1833), I, 257.
19 Burnet,
Notes, 309.
20 Laws of Ohio, XI,
172. The governor of Virginia was also invited to appoint
commissioners. He likewise refused.
21 3 Dana, 274.
160
OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY
and others as officers of the steamboat Magnolia
in consequence
of slaves having been taken aboard and
carried without the own-
er's consent from Kentucky to
Cincinnati. There the slaves had
disappeared and, it was presumed, had
gone to Canada.
The plea of the defense attorney in this
case was that "the
slaves were not taken from Kentucky, not
being . . . in this State
when they were taken on board; and, if
they were then in this
State, not being out of it when they
disembarked." But the Su-
preme Court cited the Marshall decision
and stated that Kentucky
laws "operate on all persons on so
much of the Ohio river as is
within the jurisdictional limits of
Kentucky" and that "that is the
whole of it from shore to shore lying on
her border." Likewise,
in 1846, in a similar case, McFarland
vs. McKnight,22 the Supreme
Court of Kentucky again recognized the
constitutionality of the
above-mentioned statutes and based its
decision upon that of
Marshall.
Another decision of the Supreme Court of
Kentucky is
worth citing because it shows more
clearly that the court confused
the two problems. This decision was
handed down in 1859 when
an Ohio justice of the peace carried up
on appeal a case wherein
he had been convicted for unlawfully
solemnizing a marriage. The
marriage ceremony was performed on a
ferry boat, on the Ohio
River, midway between Newport and
Cincinnati. Under the laws
of Ohio the justice was authorized to
solemnize marriages. Never-
theless the Supreme Court upheld the
verdict of the lower court
on the ground that Kentucky had
exclusive jurisdiction over the
Ohio River where it touches her shore.
In so doing, however, the
court erroneously stated, "It did
not appear that Ohio had ever,
by its legislation, assumed, or claimed,
or asserted jurisdiction,
exclusive or concurrent, over the Ohio
river."23
Possibly Kentucky's attitude was
prompted by Ohio's con-
fused association of boundary and
jurisdiction. Indeed, because
of this confused association, Ohio has
denied herself any kind of
jurisdiction on the Ohio River. An
excellent example is a deci-
22 6 B. Monroe,
500.
23 McFall vs. Commonwealth: 2 Metcalfe, 394.
PROBLEMS OF THE KENTUCKY-OHIO
BORDER 161
sion of the Ohio Supreme Court rendered
in 1858. In the case
in point James G. Hubbard had been a
passenger on an Ohio
River steamboat and had been
accidentally pushed into the river
and drowned when the boat was landed at
Bellaire, Ohio. Ben-
jamin Shepherd, as administrator of the
Hubbard estate, brought
suit against the owners of the boat on
the ground of negligence.
But the court, while admitting the
defendants guilty of negligence,
denied judgment on the ground that Ohio
courts lacked jurisdic-
tion inasmuch as the negligence had
occurred beyond low-water
mark.24
Several years later, in 1877, the Fish
Commission of Ohio,
in its report concerning fish culture in
the State, considered also
the subject of the territory over which
Ohio laws could be en-
forced. This involved the question of
jurisdiction on the Ohio
River. The commission suggested that the
legislatures of the
three states, Ohio, Kentucky, and West
Virginia, appoint com-
missioners to fix the boundary line
along the middle of the navi-
gable channel of the Ohio River, that
Ohio might have jurisdic-
tion over part of the river.25 And thus again were the boundary
and jurisdiction problems confused.
Likewise, in his annual message to the
Ohio legislature in
January, 1878, Goverhor Young commended
the appointment of
commissioners to meet with such
commissioners as might be ap-
pointed by Kentucky and West Virginia.
The governor, in mak-
ing this suggestion, stated that
Parties resident of West Virginia and of
Kentucky habitually place
seines across the mouths or outlets of
Ohio streams near the Ohio
side, in the season of the year when
migratory fish are seeking the
mouths of streams flowing into the Ohio
River, thus preventing migra-
tory fishes from ascending and
depositing their spawn to restock said
streams with food fishes.
24 Booth vs. Hubbard: 8 Ohio State
Reports, 243. It is interesting to note that a
similar case was carried upon appeal to the
Indiana Supreme Court. In this case a man
named Sappington had been a passenger on
the steamboat United States when it col-
lided in mid-channel with the American.
The collision caused the death of Sapping-
ton and the administrator of the estate
of the deceased brought suit for damage on the
ground of negligence. The court
specifically stated and upheld the claim that Indiana
had concurrent jurisdiction on the Ohio
River with Kentucky. See Sherlock et al. vs.
Ailing: 94 Indiana
Reports, 184.
25 Thirty-Second Annual Report of the Ohio State Board of
Agriculture, 513.
162
OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY
Continuing, the governor remarked:
It is not charged that the residents of
these states have, by their
conduct, violated any law, for it is
claimed for them, and the claim has
been admitted in the case of Booth vs.
Hubbard, 8 0. S. R., 243, that
the boundary line of the State of Ohio,
dividing us from these States,
is low-water mark on the Ohio side. "
Thus again the problem of boundary was
confused with that
of jurisdiction. At the same time the
only result of the governor's
recommendation was a joint resolution of
the General Assembly
to print in pamphlet form the report of
the Fish Commission.27
In summation it must be pointed out that
the most important
thing to consider in this question of
concurrent jurisdiction is the
attitude of the Supreme Court of the
United States. And here
we are fortunate inasmuch as that court
has clarified the problem.
As a matter of fact, as early as 1823,
in the case of Green and
others vs. Biddle,28
the Supreme Court held that the
Compact of
1789 between Virginia and Kentucky was
valid under the provi-
sions of the constitution and that
Congress consented to the admis-
sion of Kentucky into the Union upon the
condition mentioned in
the Compact.
But a more clear-cut decision issued
forth from the Supreme
Court in 1904 in the case of Wedding
vs. Meyler.29 This case had
been carried up on error from the Warren
Circuit Court of Ken-
tucky. The question denied jurisdiction
to an Indiana court in
the matter of the service of a suit on a
steamboat in the Ohio
River on the Indiana side. The opinion
of the court was read by
Justice Holmes. He asserted:
What the Virginia Compact certainly
conferred on the States
north of the Ohio, was the right to administer
the law below low-
water mark on the river, and, as part of
that right, the right to serve
process there with effect.
Justice Holmes further stated, in
speaking for the court, that
"so far as application we adopt the
statement of Chief Justice
26 Columbus Ohio State Journal, January 8, 1878. For this case see
footnote 24.
above.
27 Laws of Ohio, LXXV, 1191.
28 5 United States Reports, 369.
29 192 United States Reports, 573.
PROBLEMS OF THE KENTUCKY-OHIO
BORDER 163
Roberts in Arnold vs. Shields."
30 In this case the Supreme Court
of Kentucky had recognized the fact that
Indiana had concurrent
jurisdiction on the river with Kentucky.
The court had stated:
Jurisdiction, unqualified, being as it
is, the sovereign authority to
make, decide on, and execute laws, a
concurrence of jurisdiction, there-
fore must entitle Indiana to as much
power--legislative, judicial, and
executive, as that possessed by
Kentucky, over as much of the Ohio
river as flows between them.
Thus in view of the fact that the United
States Supreme
Court has conceded concurrent
jurisdiction to all the states border-
ing on the river, it is interesting to
note, at this time, the attitude
of those states concerning the problem.31
As has been pointed out,
Indiana has successfully maintained the
right to exercise con-
current jurisdiction with Kentucky and
Kentucky, as pointed out
above, has in turn conceded that right.
At the same time Illinois
has provided by statute for concurrent
jurisdiction on the Ohio
River where it touches her soil. One
statute reads:
Each county bounded by either the
Mississippi, Ohio, or Wabash
rivers, shall have jurisdiction over
such river to the extent it is so
bounded, which jurisdiction may be
exercised concurrently with the
contiguous states bounded by such river.32
Only Ohio, therefore, of the states
north of the river, has
refused to dissociate the problem of the
boundary from that of
jurisdiction. In view of this fact one
can hardly criticize West
Virginia for asserting the right of
exclusive jurisdiction over
the river where it touches her
shore.33 Nor can Kentucky be
criticized for conceding jurisdiction to
Indiana and at the same
time refusing to concede it to Ohio.
And there the matter lies. It is idle
gesture to expect that
some momentous question may arise to
cause the Supreme Court
of the United States to re-examine the
problem. Nor is such
necessary. Likewise it is unlikely that
Ohio will lay claim to and
30 4 Kentucky Reports, 43.
31 For a complete discussion of the
problem of concurrent jurisdiction see Eugene
O. Porter, "The Boundary and
Jurisdictional Problems of the Ohio River," Indiana
Magazine of History (Bloomington), XXXIX (1943), 121-32.
32 Illinois Statutes, Chap. 34,
Sec. 2.
33 See the case of State vs. Plant: 25
West Virginia Reports, 426. Also found in
52 American Reports, 211.
164
OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY
exercise concurrent jurisdiction. And
all the while Ohio peace
officers along the river are thwarted in
their efforts to arrest law-
breakers who make their way to the
river. The only hope of the
officers is that West Virginia or
Kentucky authorities may cap-
ture the fugitives and return them to
the Ohio side where they
are "pushed" over the
low-water mark.