venient in the course of their division among themselves of great tracts of the continent of Africa, and which find their sanction solely in their reciprocal stipulations. . . . Whether the spheres of influence' and the Hinterland' doctrines be or be not intrinsically sound and just, there can be no pretense that they apply to the American continents or to any boundary disputes that now exist there or may hereafter arise. Nor is it to be admitted that, so far as territorial disputes are likely to arise between Great Britain and the United States, the accepted principles of international law are not adequate to their intelligent and just consideration and decision. For example, unless the treaties looking to the harmonious partition of Africa have worked some change, the occupation which is sufficient to give a state title to territory can not be considered as undetermined. It must be open, exclusive, adverse, continuous, and under claim of right. It need not be actual in the sense of involving the possessio pedis over the whole area claimed. The only possession required is such as is reasonable under all the circumstances-in view of the extent of territory claimed, its nature, and the uses to which it is adapted and is put-while mere constructive occupation is kept within bounds by the doctrine of contiguity." Mr. Olney, Sec. of State, to Sir Julian Pauncefote, British ambassador, June 22, 1896, For. Rel. 1896, 232, 235. 2. ACCRETION. $82. "When the ship was brought into this country a claim was given of a grave nature, alleging a violation of the territory of the United States of America. The capture was made, it seems, at the mouth of the Mississippi River, and, as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis,' and since the introduction of firearms that distance has usually been recognized to be about three miles from the shore. But it so happens in this case that a question arises as to what is to be deemed the shore, since there are a number of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the mainland. It is contended that these are not to be considered as any part of the territory of America, that they are a sort of no man's land,' not of consistency enough to support the purposes of life, uninhabited, and resorted to only for shooting and taking birds' nests. I am of a different opinion; I think that the protection of territory is to be reckoned from these islands; and that they are the natural appendages of the coast on which they border, and from which indeed they are formed. Their elements are derived 6 immediately from the territory, and on the principle of alluvium and increment, on which so much is found in the books of law. Quod vis fluminis de tuo prædio detraxerit, and vicino prædio attulerit, palam tuum remanet, even if it had been carried over to an adjoining territory. Whether they are composed of earth or solid rock will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil." Sir W. Scott, The Anna (1805), 5 C. Rob. 373. As to land submerged by the gradual advance of the sea, see Wilson v. Shiveley, That title by accretion applies to gradual increase by wrongful deposit by In 1851 a fractional section of land in Iowa was surveyed by United States surveyors and a part thereof designated as lot 4 containing 37.24 acres, the northern boundary being the Missouri River. In 1853 the lot was entered and paid for, and a patent was obtained for it in 1855. Between that time and 1888 it was subject to ten conveyances, and in each case it was described as lot 4. About 1853 new land began to form along the whole of the river line, and the increase continued until 1870, when it amounted to about forty acres, which continued to be a part of the lot. The new land was formed by the operation of the current and waters of the river washing and depositing earth, sand, and other material upon the lot, while the waters and current of the river receded so that the new land became high and dry above the usual high-water mark, the river making for itself a main course far north of the original meander line. This process, begun in 1853 and continued until 1870, went on so slowly that it could not be observed in its progress; but, at intervals of less than three or four months, it could be seen by the eye that additions greater or less had been made to the shore. Held, that, under the conveyances above referred to, in which no interest of any kind was reserved, the accretions passed with the lot as part thereof, and that it was properly alleged that the new land was formed by imperceptible degrees," and that the general law of accretion, which had been held to be applicable to the Mississippi River, was also applicable to the Missouri River, although the changes in the latter were greater and more rapid than in the former, the difference not being so great as to render the law of accretion inapplicable. The court cited County of St. Clair . Lovingston, 23 Wall. 46, to the effect that "alluvion meant the addition to riparian land, gradually and imperceptibly made, through causes either natural or artificial, by the water to which the land was contiguous; that the test of what was gradual and imperceptible was that, although the witnesses might see from time to time that progress had been made, they could not perceive it while the process was going on, and that it was alluvion whether the addition was made on a stream which overflowed its banks or on one which did not." Jefferis . East Omaha Land Co. (1890), 134 U. S. 178, 191, citing Jones v. Title by accretion may be maintained in respect of an island or dry land gradually formed upon that part of the bed of a river which is owned in fee by the riparian proprietor, who in such case retains title the land previously owned by him together with the new deposit ereon. But the formation of a bar at the foot of an island in a river by the transfer of a quarter of a mile of land in a single night does not confer a title by accretion; nor can the right of accretion to an island in a river be so extended lengthwise of the stream as to exclude riparian proprietors as such, above or below the island, from access to the river. St. Louis r. Rutz (1891), 138 U. S. 226, 245, 250, 251. To a movable island, traveling for more than a mile and from one State to another, title by accretion does not arise, since its progress is not imperceptible in the legal sense. St. Louis. Rutz (1891), 138 U. S. 226, 251. By the act of August 4, 1846, 9 Stats. at L. 52, the western boundary of Iowa was declared to be "the middle of the main channel of the Missouri River;" by the act of April 19, 1864, the eastern boundary of Nebraska was declared to be the same channel, or, in the words of the statute, "the middle of the channel of said Missouri River." (13 Stats. at L. 47.) Between 1851 and 1877 there occurred in the course of the channel various changes, in consequence of which the State of Nebraska filed an original bill in the Supreme Court of the United States against the State of Iowa for the purpose of having the question, as to the effect of these changes on the common boundary, determined. The court, Brewer, J., delivering the opinion, observed that it was "settled law, that when grants of land border on running water, and the banks are changed by that gradual process known as accretion, the riparian owner's boundary line still remains the stream, although, during the years, by this accretion, the actual area of his possessions may vary" (New Orleans v. United States, 10 Pet. 662, 717; Jones v. Soulard, 24 How. 41; Banks . Ogden, 2 Wall. 57; Saulet v. Shepherd, 4 Wall. 502; St. Clair County v. Lovingston, 23 Wall. 46; Jefferis . East Omaha Land Co., 134 U. S. 178), and that it was "equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel [which is termed in law 'avulsion'] works no change of boundary,” the boundary remaining as it was, "in the center of the old channel, although no water may be flowing therein" (Gould on Waters, § 159; 2 Bl. Com. 262; Angell on Water Courses, § 60; Trustees of Hopkins' Academy. Dickinson, 9 Cush. 544; Buttenuth. St. Louis Bridge Co., 123 Illinois, 535; Hagan v. Campbell, 8 Porter (Ala.), 9; Murry v. Sermon, 1 Hawks (N. C.), 56); and that these propositions were "universally recognized. . . where the boundaries between States or nations. are, by prescription or treaty, found in running water" (quoting, at great length, the opinion of Attorney-General Cushing, 8 Op. 175, 176). It was contended, however, that the law of accretion was not applicable to the Missouri River. The court replied that the contrary had already been decided, in a question between individuals, touching claims in the very place in controversy, in Jefferis v. Land Company, 134 U. S. 178, 189, and that this decision applied to the pending case. "The Missouri River," said the court, is a winding stream, coursing through a valley of varying width, the substratum of whose soil, a deposit of distant centuries, is largely of quicksand. . The current is rapid, far above the average of ordinary rivers; and by reason of the snows in the mountains there are two well-known rises in the volume of its waters, known as the April and June rises. The large volume of water pouring down at the time of these rises has great and rapid Frequently . action upon the loose soil of its banks. the washing out of the underlying sand causes an instantaneous fall of quite a length and breadth of the superstratum of soil into the river; so that it may, in one sense of the term, be said that the diminution of the banks is not gradual and imperceptible, but sudden and visible. Notwithstanding this, two things must be borne in mind, that, while there may be an instantaneous and obvious dropping into the river of quite a portion of its banks, such portion is not carried down the stream in a solid and compact mass, but disintegrates and separates into particles of earth borne onward by the flowing water, and giving to the stream that color which . has made it known as the 'muddy' Missouri; and, also, that while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The only thing which distinguishes this river from other streams, in the matter of accretion, is in the rapidity of the change caused by the velocity of the current; and this in itself, in the very nature of things, works no change in the principle underlying the rule of law in respect thereto. The boundary, therefore, between Iowa and Nebraska is a varying line, so far as affected by these changes of diminution and accretion in the mere washing of the waters of the stream. "It appears, however, from the testimony, that in 1877 the river above Omaha, which had pursued a course in the nature of an ox-bow, suddenly cut through the neck of the bow and made for itself a new channel. This does not come within the law of accretion, but of that of avulsion. By this selection of a new channel the boundary was not changed, and it remained as it was prior to the avulsion, the center of the old channel; and that, unless the waters of the river returned to their former bed, became a fixed and unvarying boundary, no matter what might be the changes of the river in its new channel.” Nebraska. Iowa (1892), 143 U. S. 359, 368. The court, besides quoting the opinion of Attorney-General Cushing, quoted Vattel, Book 1, ch. 22, §§ 268, 269, 270. 3. CESSION. The effects of a cession of territory are determined by the instrument by which it is made, and by such principles of international and constitutional law as may be applicable to the case. The effect of the transfer of sovereignty on the national status of the inhabitants of the ceded territory is discussed in the chapter on nationality. The effect of a change of sovereignty on treaty relations is discussed in the chapter on treaties. "The Constitution confers absolutely on the Government of the Union the power of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or by treaty." Marshall, C. J., American Insurance Co. v. Canter (1828), 1 Peters, 511. |