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VERMONT V. NEW HAMPSHIRE, 289 U. S. 593 (1933)
U.S. Supreme Court
Vermont v. New Hampshire, 289 U.S. 593 (1933)
Vermont v. New Hampshire
No. 2, Original
Argued April 20, 21, 1933
Decided May 29, 1933
289 U.S. 593
1. The boundary between the States of Vermont and New Hampshire is the low water mark, on the western side of the Connecticut River, not the top or westerly margin of the bank, as claimed by New Hampshire, and the low water mark for this purpose is taken to be (as found by the Special Master and not challenged by the parties) the line to which the river recedes at its lowest stage, without reference to extreme droughts. Pp. 289 U. S. 596, 289 U. S. 619.
2. Vermont's failure to file exceptions to the Special Master's report, eliminates her claim to the thread of the channel, which the master rejected. P. 289 U. S. 597.
3. In determining the boundary, the Court considers the history of the subject from the creation of New York and New Hampshire as adjoining Royal Provinces to the admission of Vermont into the Union as an independent state, and also the subsequent acts and claims of Vermont and New Hampshire respecting the subject down to the present time, and finds and decides:
(1) That the boundary of New York and New Hampshire originally was the river on its westerly side, and not a line on the bank above low water. P. 289 U. S. 598.
(2) That the Order-in-Council of July 20, 1764, declaring the boundary between New York and New Hampshire to be "the western banks of the River Connecticut" reaffirmed the original river boundary. P. 289 U. S. 600.
(3) In view of the nature of the controversy before the King-in-Council, which was settled by this Order -- a dispute between the two Provinces not as to whether the line dividing their respective jurisdictions ran higher or lower on the Connecticut River bank, but as to whether it was located near the Hudson River, as in the cases of Connecticut and Massachusetts, there is no ground to suppose that a shifting of the line from low water to the top of the bank of the Connecticut was the intent of the Order. P. 289 U. S. 600.
(5) In this respect, the Order, like a treaty or grant fixing the boundary between two states, is to be construed with a view to public convenience and avoidance of controversy. P. 289 U. S. 606.
(6) Decisions of this Court establishing a "bank" boundary in other circumstances held inapplicable. P. 289 U. S. 604.
(7) This construction of the Order-in-Council is confirmed by the construction put upon it subsequently by the Governors of the two Provinces and the Lords of Trade. P. 289 U. S. 603.
(8) That the east boundary of Vermont, upon her admission as a state of the Union in 1791, was the low water mark of the Connecticut River, and not on the bank above the shore, is equally manifest whether the state be considered as carved out of New York territory pursuant to the formal consent given by that state or as an independent revolutionary state set up by the inhabitants of the "New Hampshire Grants," for, in the one case, she took the New York boundary declared by the Order-in-Council of 1764, and, in the other case, that same boundary was established by conditions laid down by Congress in 1781, during the negotiations for statehood, and by Vermont's assent thereto and New Hampshire's acquiescence. Pp. 289 U. S. 606-608.
(9) The acceptance by the Vermont Legislature on February 22, 1782, of the resolutions of Congress of August 20-21, 1781, requiring the relinquishment by the inhabitants of Vermont of "all demands of lands or jurisdiction on the east side of the west bank of the Connecticut River," operated to relinquish any claim on the part of Vermont to jurisdiction extending to the thread of the river in the territory of the New Hampshire Grants as defined by their declaration of independence, also to confirm the eastern boundary of Vermont as a boundary extending to the river as it had been fixed by the Order-in-Council of 1764. P. 289 U. S. 611.
(10) In the negotiations with Congress, the controversy respecting this boundary was whether Vermont had extended her boundary eastward beyond the line fixed by the Order-in-Council. It is not o be supposed that her acceptance of the "west bank" was intended to relinquish more than the resolutions of Congress, supra, required. P. 289 U. S. 612.
(11) Considerations of practical convenience fortify the conclusion that Vermont, upon her admission as a state, took a boundary to normal low water mark. P. 289 U. S. 612.
(12) The conclusion here reached as to the construction of the Order-in-Council and the resolution of Congress under which Vermont was admitted to statehood finds support in the practical construction
given by both states to the boundary, thus defined, in the long continued failure of New Hampshire to assert any dominion over tho west bank of the river and in her long acquiescence in the dominion asserted there by Vermont. P. 289 U. S. 613.
(13) Further important confirmation is found in the location of a monument at low water mark fixing the southeast corner of Vermont and the southwest corner of New Hampshire under authority from the two states. P. 289 U. S. 616.
The bill in this boundary suit was filed on December 18, 1915, and the answer on July 11, 1916. There were several amendments of the pleadings, some before and some after issue joined. On October 13, 1930, Edmund F. Trabue, Esquire, of Kentucky, was appointed Special Master. (282 U.S. 796.) His report was filed on February 6, 1933. The case was heard upon exceptions to the report taken by New Hampshire.
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