Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone
MR. JUSTICE SANFORD delivered the opinion of the Court.
This suit was brought by the State of Oklahoma against the State of Texas, in 1919, to settle a controversy between them over that portion of their common boundary extending westwardly along the course of the Red River from the southeast corner of Oklahoma to the 100th meridian of longitude west from Greenwich. This portion of the boundary line, it has been decided, extends along the south bank of the River. 256 U.S. 70 and 608; 258 U.S. 574.
The present controversy arises under a counterclaim filed by the State of Texas, in 1920. It relates to that portion of the boundary line extending northwardly along the 100th meridian from the Red River to the parallel of 36 degrees 30 minutes north latitude, which constitutes the eastern boundary of the Panhandle of Texas and the main western boundary of Oklahoma. The only dispute is as to the location of this line upon the ground. Different surveys have been made. On the one side, Oklahoma and the United States claim that the line is that which was surveyed and marked in 1859 by A. H. Jones and H. M. C. Brown as the line of the 100th meridian,
and retraced and extended in 1860 by John H. Clark; and, on the other side, Texas claims that it is a more easterly line, running north from a monument established, by Arthur D. Kidder in 1902 to mark the intersection of the meridian and the Red River.
Three separate contentions are made:
1. Oklahoma and the United States contend that by the decision and decree of this court in United States v. Texas, 162 U.S. 1, commonly called the Greer County case, it was conclusively determined and decreed that the boundary line followed the line of the meridian as surveyed and marked on the ground by Jones, Brown and Clark, and the matter thereby became res judicata. 2. Oklahoma contends that, independently of this adjudication, the Jones, Brown and Clark line has been recognized as the true location of the meridian through a long course of years and is established as the boundary line by acquiescence and by long continued exercise of jurisdiction over the strip in dispute. 3. Texas on the other hand, contends that a line running north from the Kidder monument is the established boundary.
By the treaty of 1819 between the United States and Spain*fn1 the boundary line established between the two countries followed the course of the Red River westward to the 100th degree of west longitude, and, crossing the Red River, ran thence due north to the Arkansas River; all "as laid down in Melish's map of the United States." The same line was established by the treaty of 1828 between the United States and the United Mexican States,*fn2 and confirmed by the Convention of 1838 between the United States and the Republic of Texas;*fn3 and it became part of the boundary between the State of Texas and the adjacent territory of the United States on the admission
of Texas into the Union in 1845.*fn4 In 1850, however, by a legislative compact between the United States and the State of Texas, it was agreed that the northern boundary line of Texas should run west with the parallel of 36 degrees 30 minutes from its intersection with the 100th meridian;*fn5 so that we are not now concerned with the portion of the meridian extending north of that parallel.
Since 1850 many steps have been taken -- at long intervals -- looking to the establishment of the line of the meridian between the Red River and the parallel. To rightly understand the course of the legislation it should be borne in mind: first, that the Red River forks about sixty miles east of the strip of land now in dispute, the South Fork passing along its southern end, and the North Fork crossing it about forty miles to the north; and, secondly, that on Melish's map of the United States the 100th meridian was erroneously shown as crossing the Red River more than one hundred miles east of this strip, and east of the fork in the River.*fn6 These two facts gave rise to a controversy in reference to the location of the other boundary line along the course of the Red River, which, although now long determined, was interwoven with the question as to the location of the line of the meridian north of the River and complicated the issues involved in its settlement.
In the light of this preliminary statement we proceed to set forth, in chronological order, the material facts*fn7 necessary to the determination of the contentions now made.
The first step towards the location of the boundary line was taken by the Texas Legislature, which in 1854 authorized the appointment of a commissioner, who, with a commissioner for the United States, should run and mark the entire boundary line between Texas and the territories of the United States from the point where it left the Red River to its intersection with the Rio Grande.*fn8
Pending action by Congress in this matter, the United States, by a treaty made with the Choctaw and Chickasaw Indians in 1855,*fn9 awarded them a tract of land in the Indian territory whose western boundary was described as running north from the Red River along the 100th meridian to the main Canadian River. In 1857, the Commissioner of Indian Affairs, for the purpose of marking the boundaries of the Indian lands, employed two contract surveyors, A. H. Jones and H. M. C. Brown, to survey and mark the line of the meridian from the north bank of the main Red River to the north boundary of the Creek or Seminole country.
Before Jones and Brown had commenced this survey, Congress, in 1858, authorized the appointment of a joint commissioner to run and mark the boundary line between the Territories of the United States and Texas in accordance with the Texas Act of 1854.*fn10 The commissioners began their work on the Rio Grande, but differences soon arose, which caused them to separate; and the survey was continued solely by John H. Clark, the United States commissioner, who ran and marked a large part of the western boundary of Texas and its northern boundary along the parallel.*fn11
Meanwhile Jones and Brown had made, in 1859, their survey of the boundary of the Indian lands. They began at a rock monument on the north bank of the South Fork of Red River, placed to mark the intersection of the 100th meridian with that stream, and ran the line of the meridian northwardly from this monument about 109 miles, marking it with mile posts.*fn12
In February, 1860, the Texas Legislature -- then claiming, it appears, that the boundary line along the Red River followed the line of the North Fork -- created the County of Greer, with a boundary including, in general terms, all the territory lying east of the 100th meridian and between the North and South Forks of the River; this being a tract containing more than 2,000 square miles and extending about sixty miles east of the Jones and Brown line.*fn13
Later in 1860, Clark, the United States commissioner, under instructions from the Secretary of the Interior, adopted and retraced so much of the line of the meridian as had been established by Jones and Brown, and prolonged their line to its intersection with the parallel, where he established an earth monument to mark the northeast corner of Texas.*fn14
For many years after 1860 Texas asserted complete jurisdiction over the territory included in Greer County.*fn15
At different times from 1872 to 1875, four United States contract surveyors separately retraced different portions of the Jones, Brown, and Clark line of the 100th meridian and re-established most of it by rebuilding many of the mile posts. They also, at the same times, subdivided the public lands in the western part of the Indian Territory in a series of townships closing on the west upon the line thus retraced and re-established, on which they erected the closing corners of the townships.*fn16
In 1876 the Texas Legislature established a series of five new counties lying west of the Jones, Brown and Clark line and extending southwardly from the parallel beyond the South Fork of Red River. Their eastern line commenced "at a monument on the intersection of the one hundredth meridian" and the parallel, and called for five "mile posts on the one hundredth meridian" and "the initial monument on the one hundredth meridian." One of these counties and parts of two others lay between the North and South Forks of Red River, and two of these "mile posts" and the "initial monument" were between the two Forks, that is, between these counties and Greer County.*fn17
In 1879 Congress passed an Act creating the northern judicial district of the State of Texas, in which Greer County was included.*fn18
In January, 1882, the Secretary of the Interior, in response to a Resolution of the Senate calling for a report of any survey made by the United States and Texas Boundary Commission under the Act of 1858, transmitted
a report of the Commissioner of the General Land Office in which, after setting forth the work that had been separately done by Clark in running the western and northern boundaries of Texas, the establishment of part of the line of the 100th meridian by Jones and Brown, and the retracing of their line by Clark, he specifically called attention to the fact that: "No part of said boundary survey has ever been officially agreed upon or accepted by the two governments as contemplated in the Act of Congress authorizing the survey." This report was referred to the Senate Committee on Territories.*fn19
At this same session of Congress -- a controversy having meanwhile arisen as to the ownership of the territory included in Greer County -- a Representative from Texas introduced a bill to define the boundary between the Indian Territory and Texas as running up the middle of the North Fork of the Red River to the 100th meridian, and thence due north to "the northeast corner of said State of Texas as now established;"*fn20 while a Senator from Texas introduced a bill to create a joint commission to run and mark the boundary line along the course of the Red River westwardly to the 100th meridian, as laid down in Melish's map, and definitely settle which Fork was the principal or true Red River.*fn21 And before the
end of this session, the legislature of Texas, in May, 1882, passed an Act authorizing the appointment of a commissioner to run and mark, with a commissioner for the United States, the course of the Red River westwardly to the 100th degree of west longitude, as laid down on Melish's map, in order to settle the true location of the meridian and determine whether the North or South Fork was the true Red River designated in the ...