[252 U.S. 273, 275] Messrs. W. D. Bailey and H. B. Fryberger, both of Duluth, Minn., Lyndon A. Smith, of St. Paul, Minn., Charles R. Pierce, of Washington, D. C., and Clifford L. Hilton and Frank B. Kellogg, both of St. Paul, Minn., for complainant.
Messrs. M. B. Olbrich, of Madison, Wis., Walter C. Owen, of Maiden Rock, Wis., and Walter Drew, of Milwaukee, Wis., for defendant.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
We are asked to ascertain and establish the boundary line between the parties in Upper and Lower St. Louis Bays. Complainant claims to the middle of each bay-halfway between the shores. The defendant does not seriously question this claim as to the lower bay, but earnestly maintains that in the upper one the line follows a sinuous course near complainant's shore. Since 1893 a deep channel has been dredged through these waters and harbor lines have been established. According to Wisconsin's insistence, its border crosses and recrosses this channel and intersects certain docks extending from the Minnesota shore, leaving portions of them in each state. See Wisconsin v. Duluth, 96 U.S. 379 ; Norton v. Whiteside, 239 U.S. 144 , 36 Sup. Ct. 97.
With the boundaries described by the Enabling Act, Wisconsin entered the Union May 29, 1848 (9 Stat. 233, c. 50).
With boundaries as therein described, Minnesota became a state May 11, 1858 (11 Stat. 285, c. 31).
The present controversy arises from conflicting interpretations of the words:
The situation disclosed by an accurate survey gives much room for differences concerning the location of the 'mouth of the St. Louis river' and 'the main channel of said river.' Nicollet's map of the 'Hydrographical Basin of the Upper Mississippi River,' published in 1843, and drawn upon a scale of 1: 1,200,000-approximately 20 miles to the inch- is too small either to reveal or to give material aid in solving the difficulties. A sketch from it-approximately on original scale-is printed on the next page. [252 U.S. 273, 277] During 1823-1825 Lieut. Bayfield, of the British Navy, surveyed and sounded the westerly end of Lake
Superior and the lower waters of St. Louis river. A chart compiled from data so obtained (1:49,300-4,108 feet to the inch) and published in 1828, shows the general configuration and lays the proper sailing course southward of [252 U.S. 273, 278] Big Island. Prior to 1865 this was the only available chart, and navigators often used it.
The first accurate map of these waters was drawn from surveys and soundings made under direction of Capt. George W. Meade in 1861, and is now on file in the Lake Survey Office at Detroit. After being reduced one- half-to a scale of 1: 32,000 or approximately two inches to a mile-it was engraved and published in 1865 or 1866. Known as the Meade Chart, this reproduction is accepted by both parties as adequately disclosing conditions existing in 1846. A rough sketch based upon the chart-about one- third of its size-and also a photographic reproduction of a portion of the original map, are printed on succeeding pages.
Minnesota and Wisconsin Points are low narrow strips of sand-the former 6 miles in length, the latter approximately 3. Between them there is a narrow opening known as 'The Entry,' and inside lies a bay (Allouez and Superior) 9 miles long and a mile and a half wide. A narrow channel between Rice's Point and Connor's Point leads into Lower St. Louis Bay, approximately a mile and a half wide and 3 miles long. Passing south of Grassy Point, another channel leads into irregular shaped Upper St. Loui Bay, with Big Island at its southwesterly end. Southeast of this island begin the well-defined banks, deep narrow channel, and obvious current characteristic of a true river; these continue through many windings to the falls above the Indian village noted on Nicollet's Map.
Meade's Chart indicates: A depth of not over 8 feet across the bar at 'The Entry'; a deep channel through Superior Bay; rather shallow water, with a ruling depth of 8 feet, in Lower St. Louis Bay; 8 feet of water on a fairly direct course, about a mile in length, from the deep channel south of Grassy Point and east of Fisherman's Island to the deep water immediately westward of the [252 U.S. 273, 279] bar, about seven-eighths of a mile northeast of Big Island. It further discloses a curving channel along the west side of Grassy Point, and thence close to the Minnesota shore and around Big Island, with a depth of 15 or more feet, except at the bar, where there are only 10, possibly 8, feet. To the south of Big Island lies the well-known and formerly much- used course indicated on Lieut. Bayfield's Map.
The level of the water within all the bays is substantially the same as in Lake Superior; such current as exists flows in opposite directions, according to the wind and movement within the take. The shores are irregular and much indented.
Since 1893 the United States have dredged a 22 foot channel through Upper St. Louis Bay and around Grassy Point; thence through Lower St. Louis Bay (where there are two branches) and between Rice's and Connor's Points; thence through Superior Bay to 'The Entry' and into the lake. Extensive docks have been constructed from the Minnesota shore in both the upper and lower bays; those extending southwest from Grassy Point cross the boundary claimed by Wisconsin. The general situation of 1846 continued until long after 1861, but during the last 30 years extensive improvements required for a large and busy harbor have produced great changes.
The complainant maintains that within the true intendment of the statute the 'mouth of the St. Louis river' is southeast of Big Island, where end the banks, channel, and current characteristic of a river and lake features begin. On the other hand, the defendant insists, and we think correctly, that such mouth is at the junction of Lake Superior and the deep channel between Minnesota and Wisconsin Points-'The Entry.'
It is unnecessary to specify the many facts and circumstances, historical and otherwise, which lead to the conclusion stated. They seem adequate, notwithstanding [252 U.S. 273, 280] some troublesome objections based upon the peculiar hydrographic conditions.
Treating 'The Entry' as the mouth of the St. Louis river, where is the line 'thence up the main channel of said river to the first rapids,' etc.? This must be determined upon consideration of the situation existing in 1846, whcih the parties admit remained substantially unchanged until after the Meade survey. No alterations now material have come about through accretion or erosion.
The line through Superior Bay is not here called in question. But let it be noted that no vessel drawing more than 8 feet could have passed into that bay from Lake Superior, that within 'The Entry' there were only small boats of light draft, and that navigation long remained rather primitive.
Lower St. Louis Bay was shallow, with a ruling depth of 8 feet, and had no welldefined channel. From the deep water at the southern tip of Grassy Point a vessel drawing less than 8 feet bound north of Big Island and beyond could have turned northwest and followed the narrow winding channel near the Minnesota shore with a ruling depth of 10, possibly 8, feet, or it could have proceeded westward, approximately one mile, over a more direct course with a depth of 8 feet or more, until it came to the deeper channel about seven-eighths of a mile northeast of Big Island. This latter course is indicated by the red trace 'A, B, C,' on Minnesota's Exhibit No. 1-Meades Chart. For many years officers and representatives of both states regarded the boundary as on or near this line; and, considering all the circumstances, we think it must be accepted as the main channel within intendment of the statute. No current controlled navigation, and vessels proceeding in opposite directions followed the same general course.
Both parties say that in 1846--
For very many years subsequent to 1846 there were no vessels with 8- foot draft upon these waters, and probably none of such size regularly plied there until 1890 or later.
The course south of big Island shown on the Bayfield Map was never accepted as the boundary, and need not be further considered. Wisconsin's claim to that island is not denied.
Manifestly, from the description heretofore given, the waters between Big Island and Lake Superior were broad sheets, without any definite uninterrupted deep channel extending throughout their entire length; also there was no steady, controlling current. Such vessels as plied there in 1846 and long thereafter moved with freedom in different directions. The evidence convinces us that, as navigation gradually increased prior to 1890, the northerly course in Upper St. Louis Bay commonly followed by vessels going to or coming from points above Big Island was not along the narrow curving channel skirting Grassy Point, but over the shorter one near the middle of the bay.
This court approved the doctrine of Thalweg, as opposed to the physical middle line, in Iowa v. Illinois, 147 U.S. 1 , 13 Sup. Ct. 239, and has adhered thereto. Louisiana v. Mississippi, 202 U.S. 1 , 26 Sup. Ct. 408, 571; Washington v. Oregon, 211 U.S. 127 , 29 Sup. Ct. 47; Id., 214 U.S. 205 , 29 Sup. Ct. 631; Arkansas v. Tennessee, 246 U.S. 158 , 38 Sup. Ct. 301, L. R. A. 1918D, 258.
The doctrine of Thalweg, a modification of the more ancient principle, which required equal division of territory, was adopted in order to preserve to each state equality of right in the beneficial use of the stream as a means of communication. Accordingly, the middle of the principal channel of navigation is commonly accepted as the boundary. Equality in the beneficial use often would be defeated, rather than promoted, by fixing the boundary on a given line merely because it connects points of greatest depth. Deepest water and the principal navigable channel are not necessarily the same. The rule has direct reference to actual or probable use in the ordinary course, and common experience shows that vessel do not follow a narrow crooked channel, close to shore, however deep, when they can proceed on a safer and more direct one with sufficient water.
As we view the whole record, the claim of Wisconsin cannot prevail, unless the doctrine of Thalweg requires us to say that the main channel is the deepest one. So to apply it here would defeat its fundamental purpose. The ruling depth in the waters below Upper Bay was 8 feet, and practically this limited navigation to vessels of no greater draft. For these there was abundant water near the middle line. Under such circumstances [252 U.S. 273, 283] Minnesota would be deprived of equality of right both in navigation and to the surface, if the boundary line were drawn near its shore.
A decree will be entered, declaring and adjudging as follows: That the boundary line between the two states must be ascertained upon a consideration of the situation existing in 1846 and accurately disclosed by the Meade Chart. That when traced on this chart the boundary runs midway between Rice's Point and Connor's Point, and through the middle of Lower St. Louis Bay to and with the deep channel leading into Upper St. Louis Bay, and to a point therein immediately south of the southern extremity of Grassy Point; thence westward along the most direct course, through water not less than 8 feet deep, eastward of Fisherman's Island and as indicated by the red trace 'A, B, C,' on Minnesota's Exhibit No. 1, approximately one mile, to the deep channel and immediately west of the bar therein; thence with such channel north and west of Big Island up stream to the falls.
Within 30 days counsel may present a proper decree for carrying this opinion into effect. The costs will be equally divided between the states.
It seems appropriate to repeat the suggestion, made in Washington v. Oregon, supra, 214 U.S. 217, 218 , 29 S. Sup. Ct. 631, that the parties endeavor with consent of Congress to adjust their boundaries.
Mr. Justice BRANDEIS concurs in the result. [252 U.S. 273, 284]