500 U.S.

380
111 S.Ct. 1877
114 L.Ed.2d 420

State of ILLINOIS, Plaintiff,

v.
Commonwealth of KENTUCKY.
No. 106, Orig.
Argued March 18, 1991.
Decided May 28, 1991.

Syllabus
In a dispute between Illinois and Kentucky over their common boundary,
the Special Master has recommended that this Court determine the
boundary to be the "low-water mark on the northerly side of the Ohio
River as it existed in the year 1792," rather than the river's northerly lowwater mark "as it exists from time to time"; find that the record does not
support Kentucky's affirmative defenses of acquiescence and laches and
its defenses based on "principles of riparian boundaries, including
accretion, erosion and avulsion"; find that the construction of dams on the
river has caused the present low-water mark on the Illinois side to be
farther north than it was in 1792; and order the two States' common
boundary to be determined as nearly as the 1792 line can now be
ascertained. Kentucky has filed exceptions.
Held:
1. The boundary is the line of the low-water mark as it was in 1792. Pp.
383-388.
(a) This is the rule that was used to determine the boundary between
Kentucky and its neighboring States of Ohio, Ohio v. Kentucky, 444 U.S.
335, 100 S.Ct. 588, 62 L.Ed.2d 530, and Indiana, Indiana v. Kentucky,
136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329; and the history and precedent
that supplied the rule in those cases govern here. Pp. 383-384.
(b) Kentucky has not proved that, under the doctrine of prescription and
acquiescence, the boundary is a transient low-water mark. The record fails

to support Kentucky's claim of a long and continuous possession of, and

assertion of sovereignty over, land within the territory delimited by the
transient mark. Kentucky has imposed property taxes on only 3 of the 15
structures extending into the territory in question. And evidence of its ad
valorem taxation of barges and other watercraft traveling on the river fails
to speak directly to the boundary issue, since it is undisputed that the
sailing line on the river is within Kentucky's boundary and jurisdiction,
and since barges and watercraft would rarely venture near the disputed
territory. Moreover, both the Legislative Research Commission of the
Kentucky General Assembly and the Commonwealth's Attorney General
have made references to the 1792 low-water mark as the boundary. Nor
does the record support the claim of Illinois' acquiescence. The
descriptions of the boundary as following "along [the Ohio River's] northwestern shore" in earlier versions of the Illinois Constitution are verbatim
recitations of the congressional language describing Illinois' boundary in
that State's Enabling Act, and the Special Master correctly reasoned that
Congress intended Illinois' southern boundary to be the same as that
granted Ohio and Indiana when they were formed. In addition, the Illinois
Supreme Court took an even less hospitable view toward Kentucky's claim
than the State Constitution when it adopted, and used for almost 50 years,
a theory that would have ratchetted the boundary line forever southward
toward the river's deepest point. Pp. 384-388.
(c) Kentucky's other affirmative defenses are likewise unavailing. The
laches defense is generally inapplicable against a State. And the defenses
based on the "principles of riparian boundaries" require no extended
consideration, for Kentucky concedes that these would affect the ultimate
boundary determination only if it prevailed on the issues of prescription
and acquiescence. Pp. 388-389.
2. Kentucky's exception to the recommended finding that the construction
of dams on the river has permanently raised its level above that of 1792,
consequently placing the present low-water mark on the Illinois side
farther north than it was in 1792, is sustained. Any question about the
relative locations of the 1792 line and today's low-water mark is
premature and should be determined after the Special Master has made
further recommendations to resolve any disputes the parties may have
about the exact location of the 1792 line. P. 389.
Exceptions to Special Master's Report sustained in part and overruled in
part, Report adopted in part, and case remanded.
SOUTER, J., delivered the opinion for a unanimous Court.

Rickie Leon Pearson, Frankfort, Ky., for defendant.

John Brunsman, Springfield, Ill., for plaintiff.
Justice SOUTER delivered the opinion of the Court.

In this case we return again to the history and geography of the Ohio River
valley, as we consider the location of the boundary of the Commonwealth of
Kentucky with the State of Illinois. We hold it to be the line of the low-water
mark along the river's northerly shore as it was in 1792.

* In July 1986, Illinois sought leave to file a bill of complaint against Kentucky,
invoking this Court's original jurisdiction to resolve a disagreement about the
location of the common boundary of the two States. See U.S. Const., Art. III,
2. Illinois asked the Court to declare "the boundary line . . . to be the low-water
mark on the northerly shore of the Ohio River as it existed in 1792," Report of
Special Master 1-2, and to enjoin Kentucky "from disturbing in any manner the
State of Illinois or its citizens from the peaceful use, and enjoyment of all land,
water and jurisdiction within the boundaries of Illinois as established by the
Court," id., at 2. We granted leave to file the bill of complaint, 479 U.S. 879,
107 S.Ct. 265, 93 L.Ed.2d 243 (1986), and appointed the Honorable Robert
Van Pelt as Special Master.**

In its answer to the complaint, Kentucky denied that the boundary was the 1792
line and claimed it to be the river's northerly low-water mark "as it exists from
time to time." The answer raised the "affirmative defenses" of acquiescence and
laches, and invoked certain "principles of riparian boundaries." Report of
Special Master 2.

The parties spent the next three years in discovery and, after submitting
evidence to the Special Master in January 1990, were granted additional time to
develop the evidentiary record on Kentucky's claim of prescription and
acquiescence. After receiving this evidence in April 1990, the Special Master
submitted a report to this Court, which was ordered filed. 498 U.S. ----, 111
S.Ct. 31, 112 L.Ed.2d 9 (1990).

The Special Master recommended that we (1) determine the boundary between
Illinois and Kentucky to be the "low-water mark on the northerly side of the
Ohio River as it existed in the year 1792"; (2) find that the record fails to
"support the Commonwealth of Kentucky's affirmative defenses"; (3) find that
the construction of dams on the Ohio River has caused "the present low-water

mark on the Illinois side of the river [to be] farther north than it was in 1792";
and (4) order the two States' common boundary to be determined, "as nearly as
[the 1792 line] can now be ascertained, . . . either (a) by agreement of the
parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of
such an agreement or survey, [by the Court] after hearings conducted by the
Special Master and the submission by him to the Court of proposed findings
and conclusions." Report of Special Master 48-49.
6

Kentucky has filed exceptions to the Special Master's report. While Kentucky
challenges many of the factual findings, its primary dispute is with the
conclusion that Kentucky has failed to prove its claim, styled as an affirmative
defense, that under the doctrine of prescription and acquiescence the boundary
is the low-water mark as it may be from to time.

II
A.
7

We agree in large measure with the Special Master's report. The threshold issue
presented in this case was resolved in Ohio v. Kentucky, 444 U.S. 335, 100
S.Ct. 588, 62 L.Ed.2d 530 (1980), in which we held that Kentucky's boundary
with Ohio was the northerly low-water mark of the Ohio River as it was in
1792. We based that holding on the history of Virginia's 1784 cession to the
United States of the lands "northwest of the river Ohio" and Kentucky's
succession to Virginia's northwest boundary upon reaching statehood in 1792.
Id., at 337-338, 100 S.Ct., at 589-590. We relied on the prior opinion in Indiana
v. Kentucky, 136 U.S. 479, 518-519, 10 S.Ct. 1051, 1056-1057, 34 L.Ed. 329
(1890), in which Justice Field, for a unanimous Court, reviewed this history and
held that Kentucky's boundary with Indiana followed the low-water mark on
the northerly shore of the Ohio River "when Kentucky became a State." Ibid.
The same history and precedent that supplied the general rule for determining
the boundary separating Kentucky from its neighboring States of Ohio and
Indiana on the Ohio River also govern the determination of Kentucky's
historical boundary on that river with Illinois.

Kentucky has, indeed, conceded that "if this case were before the Court simply
as a matter of law, Ohio v. Kentucky . . . would be controlling precedent."
Exceptions of Commonwealth of Kentucky 9 (emphasis in original). Kentucky's
exceptions assume, rather, that the case does not turn on the issue of law
decided in Ohio v. Kentucky, but on the "factual issue of acquiescence which
Kentucky has raised as an affirmative defense on the question of its boundary
with Illinois." Exceptions of Commonwealth of Kentucky 9-10. Kentucky

contends that it has long asserted, and Illinois has acquiesced in the assertion,
that the common boundary of the two States is the low-water mark of the Ohio
River, not as it was in 1792, but as it may be from time to time.
9

Although Kentucky has styled its acquiescence claim an affirmative defense,

this "defense," if successfully proved, would not only counter Illinois' boundary
claim but also establish Kentucky's own position. To do this on a theory of
prescription and acquiescence, Kentucky would need to show by a
preponderance of the evidence, first, a long and continuous possession of, and
assertion of sovereignty over, the territory delimited by the transient low-water
mark. Longstanding "[p]ossession and dominion are essential elements of a
claim of sovereignty by prescription and acquiescence." Georgia v. South
Carolina, 497 U.S. ----, ----, 110 S.Ct. 2903, 2912, 111 L.Ed.2d 309 (1990).
Kentucky would then have the burden to prove Illinois' long acquiescence in
those acts of possession and jurisdiction. As we stated in Oklahoma v. Texas,
272 U.S. 21, 47, 47 S.Ct. 9, 17, 71 L.Ed. 145 (1926), there is a "general
principle of public law" that, as between States, a "long acquiescence in the
possession of territory under a claim of right and in the exercise of dominion
and sovereignty over it, is conclusive of the rightful authority." See also
Georgia v. South Carolina, supra, 497 U.S., at ----, 110 S.Ct., at 2911 ("[L]ong
acquiescence in the practical location of an interstate boundary, and possession
in accordance therewith, often has been used as an aid in resolving boundary
disputes" between States).

10

The record developed before the Special Master in this case fails to support
Kentucky's claim of sovereignty by prescription and acquiescence. After a
thorough review of the voluminous evidence presented by both States, the
Special Master concluded that Kentucky had proved neither long and
continuous action in support of its claim to a boundary at the northerly lowwater mark as it might be from time to time, nor Illinois' acquiescence in that
claim. While Kentucky's many exceptions to the extensive factual findings on
these issues do not merit discussion seriatim, an examination of a few will
indicate the evidentiary support generally for the Special Master's conclusions.

11

The Special Master first assessed the evidence bearing on Kentucky's exercise
of dominion. According to Kentucky's view of the boundary, for example, any
permanent structure extending out over the water from the river's northern bank
would be within Kentucky's territory and subject to its taxing power, one of the
primary indicia of sovereignty. The record in this case, however, shows that
Kentucky has imposed a property tax on only 3 of the 15 structures that extend
out, into, or over the water from the Illinois shoreline. Of the three affected
taxpayers, one who received a Kentucky tax bill for property extending south

into the river was also taxed on the same structure by Illinois, and another paid
the Kentucky bill only under protest, "claiming that the property [taxed] was
within the State of Illinois." Report of Special Master 37. The remaining 12
structures extending south into the river from Illinois have never been taxed by
Kentucky.
12

Kentucky advanced what it took to be a stronger claim to having exercised

exclusive taxing jurisdiction right up to the transient low-water mark by
offering evidence of its ad valorem taxation of barges and other watercraft
traveling on the river. But this evidence simply fails to speak directly to the
boundary issue in this case. Vessels traveling the river usually follow a sailing
line charted by the United States Army Corps of Engineers which, for most of
the stretch in question, is either close to the center of the river or near the
Kentucky shore. Illinois does not dispute that the sailing line, like most of the
river, is within the boundary and jurisdiction of Kentucky. Id., at 38. The
territory in question, rather, is thought to be a comparatively narrow sliver of
the Ohio along its northerly shore, where barges and watercraft would rarely
venture. As to the sliver, Kentucky's acts of taxation have been, at best,
equivocal, and the Special Master was accordingly correct when he observed
that the fact of Kentucky's taxation of barges "traveling on the Ohio River
within the acknowledged jurisdiction of Kentucky, does not support Kentucky's
claim of exclusive jurisdiction of the entire breadth of the river." Ibid.

13

This evidence of Kentucky's failure to engage in consistent and unequivocal

acts of occupation and dominion does not stand alone, however, for we are
concerned not only with what its officers have done, but with what they have
said, as well. And what they have said has, in several instances, supported
Illinois' claim. The Legislative Research Commission of the Kentucky General
Assembly and the Attorney General of Kentucky have each taken the position
in the recent past that Kentucky's northern border is the 1792 low-water mark.
An Information Bulletin issued by the Legislative Research Commission in
December 1972 states that " 'Kentucky's North and Western boundary, to-wit,
the low-water mark on the North shore of the Ohio River as of 1792 has been
recognized as the boundary based upon the fact that Kentucky was created from
what was then Virginia.' " Id., at 15. An earlier opinion by the
Commonwealth's Attorney General issued in 1963 asserted that the " 'law, of
course is that the boundary line between the states of Indiana and Kentucky is
the low-water [mark] on the north shore of the Ohio as it existed when
Kentucky became a state in 1792.' " Id., at 12. These statements came to our
attention in Kentucky's last boundary case in this Court, where we found it "of
no little interest" in deciding Ohio v. Kentucky, 444 U.S., at 340-341, 100 S.Ct.,
at 590-591, that these "Kentucky sources themselves, in recent years, have

made reference to the 1792 low-water mark as the boundary." It is hardly of

less interest this time.
14

Just as this representative evidence fails to indicate any longstanding exercise

of occupation and dominion of the disputed area by Kentucky, the record is
equally unsupportive of the claim of Illinois' acquiescence. It is true that the
Illinois Constitution of 1818 described the State's boundary with Kentucky on
the Ohio River simply as following "along its north-western shore," Ill.Const.,
Preamble (1818), and the same description was employed in the State
Constitutions of 1848 and 1870, see Ill.Const., Art. I (1848), Ill.Const., Art. I
(1870). But these are verbatim recitations of the congressional language
describing Illinois' boundary in the State's Enabling Act of April 18, 1818, ch.
67, 3 Stat. 428, and the Special Master correctly reasoned that "[w]hat
Congress intended to be the southern boundary of Illinois, was the same
southern boundary granted the states of Ohio and Indiana when they were
formed. . . . Illinois, like Ohio and Indiana, was created from the territory ceded
by Virginia to the United States. . . ." Report of Special Master 28. Although
the current version of the Illinois Constitution, adopted in 1970, omits any
description of the State's boundaries, the 1870 Constitution's language remained
the reference point in the most recent Illinois case dealing with the State's river
boundary that has come to our attention. See People ex rel. Scott v. Dravo
Corp., 10 Ill.App.3d 944, 944-945, 295 N.E.2d 284, 285 (1973), cert. denied,
416 U.S. 951, 94 S.Ct. 1959, 40 L.Ed.2d 300 (1974).

15

The courts of Illinois, indeed, for some time took an even less hospitable view
of Kentucky's interests than the Illinois Constitution did. In Joyce-Watkins Co.
v. Industrial Comm'n, 325 Ill. 378, 381, 156 N.E. 346, 348 (1927), the State
Supreme Court adopted a theory that would have ratchetted the boundary line
forever southward toward the deepest point of the river, by holding the
boundary to be the low-water mark on the northerly shore of the river at the
"point to which the water receded at its lowest stage." This description of the
boundary was followed by Illinois courts until at least 1973, see People ex rel.
Scott v. Dravo Corp., supra, and while it plainly conflicts with our decisions in
Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329 (1890) and
Ohio v. Kentucky, supra, its use over nearly 50 years shows that Illinois did not
acquiesce in any claim by Kentucky to a low-water mark that might edge
northward over time.

16

Such was the force of the evidence adduced, and such was its failure to support
Kentucky's claim of prescription and acquiescence.

17

Kentucky's other affirmative defenses are likewise unavailing. The Special

Master correctly observed that the laches defense is generally inapplicable
against a State. See Block v. North Dakota, 461 U.S. 273, 294, 103 S.Ct. 1811,
1823, 75 L.Ed.2d 840 (1983) (O'CONNOR, J., dissenting) (collecting
authorities); Guaranty Trust Co. v. United States, 304 U.S. 126, 132-133, 58
S.Ct. 785, 788-789, 82 L.Ed. 1224 (1938); cf. Weber v. Board of Harbor
Comm'rs, 18 Wall. 57, 70, 21 L.Ed. 798 (1873) (statutes of limitations
generally not applicable to State). Although the law governing interstate
boundary disputes takes account of the broad policy disfavoring the untimely
assertion of rights that underlies the defense of laches and statutes of
limitations, it does so through the doctrine of prescription and acquiescence, see
generally Georgia v. South Carolina, supra, which Kentucky has failed to
satisfy.

18

Kentucky's affirmative defenses based on the "principles of riparian boundaries,

including accretion, erosion and avulsion," require no extended consideration,
for Kentucky concedes that these would affect the ultimate boundary
determination only if it prevailed on the issues of prescription and
acquiescence. Exceptions of Commonwealth of Kentucky 48-49 ("It is
Kentucky's position that if it prevails on its affirmative defense of
acquiescence, then the well-recognized principles of accretion, erosion and
avulsion would obviously apply to a current shoreline boundary as it may
change from time to time"). We have previously held as much, concluding that
"the well-recognized and accepted rules of accretion and avulsion attendant
upon a wandering river," have no application to Kentucky's Ohio River
boundary because of the "historical factors" stemming from the cession by
Virginia of the land northwest of the river to the United States. Ohio v.
Kentucky, supra, 444 U.S., at 337, 100 S.Ct., at 589.

19

Kentucky's final exception to the Special Master's report goes to the finding in
Part III.C. that construction of dams on the river has permanently raised its
level above that of 1792, consequently placing the present low-water mark on
the Illinois side farther north than it was in 1792. Kentucky calls any question
about the relative locations of the 1792 line and today's low-water mark
premature, and we agree. Indeed, the Special Master himself suggested that this
issue might, if necessary, "be determined at a later date," Report of Special
Master 47, after he had made further recommendations to resolve any disputes
the parties may have about the exact location of the 1792 line.

III
20

The exception of the Commonwealth of Kentucky to Part III.C. and

Recommendation (3) of the report of the Special Master, as to the effect of

modern dams on the level of the Ohio River, is sustained. Kentucky's other
exceptions are overruled. The report, save for Part III.C. and Recommendation
(3), is adopted and the case remanded to the Special Master for such further
proceedings as may be necessary to prepare and submit an appropriate decree
for adoption by the Court, locating the 1792 line.
21

It is so ordered.

**

In June 1988, we appointed a new Special Master, Matthew J. Jasen, Esq., to

replace Judge Van Pelt, who had died in April 1988. 487 U.S. 1215, 108 S.Ct.
2866, 101 L.Ed.2d 902.