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decided: June 9, 1924.



Author: Van Devanter

[ 265 U.S. Page 494]

 MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

On April 25 last the commissioners appointed to run, survey, and mark portions of the boundary between the States of Texas and Oklahoma along the Red River under our decree of March 12, 1923 (261 U.S. 340) submitted their report covering the portion of the boundary along the Big Bend Area, and at the same time submitted their report of the survey and platting of the medial line of the river in the vicinity of the river-bed oil wells pursuant to a supplemental order of June 4, 1923 (262 U.S. 505). When the reports were received, general leave was given to parties in interest to except to the reports, or either of them, within a period of four weeks. 264 U.S. 565. Exceptions to the boundary report were presented by the State of Oklahoma, the Grand Oil and Developing Company, and William A. Fondren; and informal protests against its confirmation were received from Frank W. Thaison and J. E. Lester. No exceptions were taken to the medial line report. On May 26 a hearing before the Court was had on the boundary report; but nothing of

[ 265 U.S. Page 495]

     an evidential nature was offered in support of any of the exceptions or protests.

The informal protests by Mr. Thaison and Mr. Lester require only passing notice. They neither show that their authors have any legal interest in the location of the boundary, nor state any facts indicative of error in the work or report of the commissioners.

The exceptions of the Grand Oil and Developing Company and Mr. Fondren show that the exceptors have at best only a conjectural future interest in the location of the boundary. It is a conjectural interest because it is founded on the hope that applications which the exceptors have made for oil and gas leases of parts of the southerly half of the river bed, under the Act of March 4, 1923, c. 249, 42 Stat. 1448, will be granted by the Secretary of the Interior. And it is a future interest because it has not come into existence as yet, and because the sixth section of the act precludes the Secretary from granting such leases before the property is released from the existing receivership. Even after the release, the Secretary's authority will extend to such lands only as may lie between the interstate boundary and the medial line of the river, as the two are settled by this Court. Under present conditions, the United States has the sole proprietary interest in whatever may be within those limits, and it is not excepting to the boundary reported by the commissioners. Plainly these exceptors do not have such a present or certain interest in the subject as entitles them to complain.

We deem it proper, however, to notice one feature of Mr. Fondren's exceptions. In them he asserts that the commissioners were selected as representing respectively the United States and the State of Texas, and that counsel for the State of Oklahoma were remiss in not insisting on the selection of a third commissioner representing that State. The assertion rests on a misapprehension of what

[ 265 U.S. Page 496]

     occurred. Originally there was a purpose to select three commissioners and to direct that the boundary be surveyed and marked for its full length along the river, 539 miles. But as the southerly cut bank, held by the Court to be the true boundary, afterwards was conceded to be so well defined throughout the greater part of the distance that it need not be surveyed or marked (Par. 12 of decree, 261 U.S. 343), the Court deemed it better and in the interest of economy to commit the work on the portions of the boundary not covered by that concession to two commissioners instead of three. The two were selected by the Court as its representatives, not as representatives of any of the parties. The commissioners so understood. Counsel for Oklahoma were not remiss in the matter. Shortly after the two commissioners were selected, counsel for that State, including the Attorney General, requested that a third commissioner be selected, and the request was denied.

The State of Oklahoma of course has a legal interest in the location of the boundary and a right to except to the report, for her territorial jurisdiction is involved. Her exceptions are on two grounds. The first is, that the commissioners have not given proper effect to the sixth paragraph of the decree, 261 U.S. 340, which, with the opinion on which it was based, 260 U.S. 606, was to be their guide. A right understanding of that paragraph requires that it be read with the fifth and seventh. The three are as follows:

"5. The south bank of the river is the water-washed and relatively permanent elevation or acclivity, commonly called a cut bank, along the southerly side of the river which separates its bed from the adjacent upland, whether valley or hill, and usually serves to ...

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