256 U.S.

70
41 S.Ct. 420
65 L.Ed. 831

STATE OF OKLAHOMA
v.
STATE OF TEXAS (UNITED STATES, Intervener).
No. 23, Original.
Argued Dec. 14 and 15, 1920.
Decided April 11, 1921.

Mr. Leslie C. Garnett, of Washington, D. C., for the United States.

[Argument of Counsel from page 71 intentionally omitted]
Messrs. C. M. Cureton, of Austin, Tex., and Thomas Watt Gregory, of
Washington, D. C., for State of Texas.
[Argument of Counsel from pages 72-81 intentionally omitted]
Messrs. Joseph Weldon Bailey, of Austin, Tex., and A. H. Carrigan, of
Wichita Falls, Tex., for landowners.
Mr. S. P. Freeling, of Oklahoma City, Okl., for State of Oklahoma.
Mr. Justice PITNEY delivered the opinion of the Court.

This is a suit in equity in our original jurisdiction, brought by the state of

Oklahoma against the state of Texas, to establish the true boundary line
between those states where it follows the course of the Red river from the
100th degree of west longitude to the easterly boundary of Oklahoma. The bill
avers that by the third article of a treaty concluded February 22, 1819, and
ratified and proclaimed February 22, 1821 (8 Stat. 252), between the United
States of America and the King of Spain, who had sovereignty over the territory
now known as Texas, but then a part of Mexico, the boundary line between the
two countries where formed by the Red river was established as following the
south bank of that stream; that after Mexico had become independent, and on
January 12, 1828, a treaty was concluded, and on April 5, 1832, ratified and

proclaimed, between the United States of America and the United Mexican
States by which the validity of the Treaty of 1819 was confirmed (8 Stat. 372);
that in the year 1837 Texas was recognized as an independent republic, no
longer under the power and jurisdiction of Mexico, and on April 25, 1838, a
treaty was concluded, and in the same year ratified and proclaimed, between
the United States and the Republic of Texas, by which the boundary as thus
established was accepted by that Republic as binding (8 Stat. 511); and that
under joint resolutions of Congress dated respectively March 1 and December
29, 1845 (5 Stat. 797; 9 Stat. 108), Texas was admitted into the Union as a
state, with 'the territory properly included within and rightfully belonging to the
Republic of Texas.' That by act of Congress approved May 2, 1890, a
temporary government was provided for a part of the territory adjoining said
boundary on the north, now comprised in the state of Oklahoma, under the
name of the territory of Oklahoma (chapter 182, 26 Stat. 81), and that by
section 29 (page 93) the remaining part was designated as the Indian Territory;
but that by section 25 (page 92), in view of the existence of a controversy
between the United States and the state of Texas as to the ownership of what
was known as Greer county, described as 'the tract of land lying between the
North and South forks of the Red river where the Indian Territory and the state
of Texas adjoin, east of the one hundredth degree of longitude,' it was provided
that the act should not apply to that county until the title thereto had been
adjudicated and determined to be in the United States; and, in order to provide
for a speedy and final judicial determination of the controversy, the Attorney
General was authorized and directed to commence in the name and behalf of
the United States and prosecute to a final determination a suit in equity in this
court against the state of Texas; that accordingly, at the October term, 1895
(1890), the Attorney General of the United States filed in this court an original
bill against the state of Texas to determine whether the territory embraced
within the then county of Greer was in the state of Texas or within the territory
and exclusive jurisdiction of the United States; that after a full hearing of said
cause this court found, decided, and decreed that the territory east of the 100th
meridian of longitude, west and south of the river now known as the North fork
of Red river, and north of a line following westward, as prescribed by the
Treaty of 1819, the course, and along the south bank, both of Red river and of
the river now known as the Prairie Dog Town fork or South fork of Red river
until such line meets the 100th meridian of longitude, constitutes no part of the
territory properly included within or rightfully belonging to Texas at the time of
the admission of that state into the Union, and was not within the limits nor
under the jurisdiction of that state, but was subject to the exclusive jurisdiction
of the United States of America (162 U. S. 1, 90, 91, 16 Sup. Ct. 725, 40 L. Ed.
867), and that afterwards, under act of Congress approved June 16, 1906
(chapter 3335, 34 Stat. 267), the inhabitants of the area constituting the territory
of Oklahoma (including said Greer county) and the Indian Territory were

admitted into the Union as the state of Oklahoma.

2

The state of Texas appeared in the present suit, and filed an answer, denying
that the Treaty of 1819 fixed the boundary at the South bank of the Red river;
asserting, on the contrary, that the treaty, by its legal meaning and effect, fixed
it in the middle of the main channel of that river; denying that the effect of the
decree in the case of United States v. Texas was to determine that the south
bank of Red river, or of the Prairie Dog Town fork or South fork of that river,
constituted the boundary between the United States and Texas at any point; and
setting up a counterclaim and other matters not necessary to be here repeated.

The United States, by leave of the court, intervened, and by its petition of
intervention set up an interest as trustee of Indian allottees with respect to
certain portions of the bed of the Red river and as owner in its own right of a
large part of the bed and of numerous islands therein; and supported the
contentions of the state of Oklahoma as to the location of the boundary line by
the true construction of theTreaty of 1819 and as to the effect of the final decree
in United States v. Texas.

At the same time it was brought to the attention of the court that because of the
recent discovery and development of oil and gas deposits in the bed of the river
adjacent to Wichita county, Tex., serious conflicts had arisen between parties
claiming title from the state of Texas and others claiming title from the state of
Oklahoma or under the mineral laws of the United States; and that there was
danger of the exhaustion of the deposits of oil and gas pending the
determination of the questions at issue between the parties to the cause, and
danger of armed conflict between rival claimants under them; and thereupon, on
motion of the United States, concurred in by the state of Oklahoma and
consented to by the state of Texas, as to lands claimed in its proprietary
capacity, we appointed a receiver to take possession of that part of the river bed
lying between mid-channel and the south bank, and within the disputed oil
field.

Pending the receivership, by order of June 7, 1920, made pursuant to the

suggestion of the parties, we set the cause down for hearing at the present term
upon two questions of law, with leave to take testimony pertinent to the
purpose. 253 U. S. 471, 40 Sup. Ct. 580, 64 L. Ed. 1015.

The testimony was taken and returned, a hearing has been had, and the matter is
now to be decided.

The questions are as follows:

7

'(1) Is the decree of this court in United States v. Texas, 162 U. S. 1, 16 Sup.
Ct. 725, 40 L. Ed. 867, final and conclusive upon the parties to this cause in so
far as it declares that the Treaty of 1819 between the United States and Spain
fixed the boundary along the south bank of Red river? (2) If said decree is not
conclusive, then did the Treaty of 1819, construed in the light of pertinent
public documents and acts, fix the boundary along the midchannel of Red river
or along the south bank of said river?'

The first is a question of res judicata, and, obviously, if it is answered in the

affirmative, the second becomes immaterial.

The general principle, applied in numerous decisions of this court, and

definitely accepted in Southern Pacific R. R. v. United States, 168 U. S. 1, 48,
49, 18 Sup. Ct. 18, 42 L. Ed. 355, is, that a question of fact or of law distinctly
put in issue and directly determined by a court of competent jurisdiction as a
ground of recovery or defense in a suit or action between parties sui juris is
conclusively settled by the final judgment or decree therein so that it cannot be
further litigated in a subsequent suit between the same parties or their privies
whether the second suit be for the same or a different cause of action. As was
declared by Mr. Justice Harlan, speaking for the court in the case cited on page
49 of 168 U. S., on page 27 of 18 Sup. Ct. (42 L. Ed. 355):

10

'This general rule is demanded by the very object for which civil courts have
been established, which is to secure the peace and repose of society by the
settlement of matters capable of judicial determination. Its enforcement is
essential to the maintenance of social order; for, the aid of judicial tribunals
would not be invoked for the vindication of rights of person and property, if, as
between parties and their privies, conclusiveness did not attend the judgments
of such tribunals in respect of all matters properly put in issue and actually
determined by them.'

11

In order to aid us in ascertaining whether the question of boundary location

now at issue was settled by the decision and decree in the Greer County Case,
the parties have stipulated that the entire record in that case, including
pleadings, stipulations, testimony, briefs, and documents of every character,
now on file in this court, and the orders and decrees of the court therein, are to
be considered in evidence for all purposes. They have been examined and
considered accordingly.

12

The jurisdiction of the court over the subject-matter of that suitits original
jurisdiction over a suit in equity brought by the United States against one of the
states to determine the boundary between such state and a territory of the
United States was put at issue by a demurrer to the bill of complaint in that
case, and decided in favor of the jurisdiction, United States v. Texas, 143 U. S.
621, 641, et seq., 12 Sup. Ct. 488, 36 L. Ed. 285. It was set at rest when
followed by the making of a final decree, United States v. Texas, 162 U. S. 1,
90, 91, 16 Sup. Ct. 725, 40 L. Ed. 867.

13

That the court had jurisdiction over the parties is obvious from the fact that the
suit was brought in behalf of the United States pursuant to an act of Congress
(Act of May 2, 1890, c. 182, 25; 26 Stat. 81, 92), that a bill of complaint and
an amended bill were filed, to each of which the state of Texas demurred, and
also answered, and that the United States filed a replication (162 U. S. 21-23,
16 Sup. Ct. 725, 40 L. Ed. 867), and both parties introduced evidence and
participated in the hearing.

14

There is identity of parties between the former suit and the present one, so far
as concerns the proprietary interest now set up by the United States. As to
governmental jurisdiction, the state of Oklahoma has succeeded in part to the
position formerly held by the United States, and therefore is in privity with it.

15

The former decision was based upon final hearing, on issue joined between the
parties and upon evidence taken by both; and, as stated, it resulted in a final
decree (162 U. S. 90, 91, 16 Sup. Ct. 725, 40 L. Ed. 867).

16

Therefore it remains only to consider whether the 'right, question, or fact' now
in controversythe location of the boundary line with respect to the course of
the Red river, and whether by the true construction of the Treaty of 1819 its
location is along the south bank or in mid-channelwas put in issue and
directly determined in the former case. That the final decree purports to
determine it is obvious from a reading of the language employed (162 U. S. 90,
16 Sup. Ct. 754, 40 L. Ed. 867):

17

'That the territory east of the 100th meridian of longitude, west and south of the
river now known as the north fork of Red river, and north of a line following
westward, as prescribed by the treaty of 1819 between the United States and
Spain, the course, and along the south bank, both of Red river and of the river
now known as the Prairie Dog Town fork or South fork of Red river until such
line meets the 100th meridian of longitudewhich territory is sometimes called
Greer countyconstitutes no part of the territory properly included within or

rightfully belonging to Texas at the time of the admission of that state into the
Union, and is not within the limits nor under the jurisdiction of that state, but is
subject to the exclusive jurisdiction of the United States of America.'
18

The literal meaning of this is not seriously disputed; but it is insisted that, so far
as it describes the boundary line of the treaty as following the south bank of the
river, it was outside the issues litigated, and hence is not conclusive upon the
parties to this causein effect, that in construing the decree the words 'along
the south bank' should be excluded from consideration. Clearly, the inclusion
of those words amounted to a decision that the correctness of that particular
definition of the boundary was within the issues in the cause. But we concede
that, in a subsequent suit upon a different cause of action, the question whether
the matter decided on the former occasion was within the issues then proper to
be decided, or was presented and actually determined in the course of deciding
those issues, is open to inquiry, and that, unless it be answered in the
affirmative, the matter is not res judicata.

19

What was involved and determined in the former suit is to be tested by an

examination of the record and proceedings therein, including the pleadings, the
evidence submitted, the respective contentions of the parties, and the findings
and opinion of the court; there being no suggestion that this is a proper case for
resorting to extrinsic evidence. Russell v. Place, 94 U. S. 606, 608, 24 L. Ed.
214; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 688, et seq.,
15 Sup. Ct. 733, 39 L. Ed. 859; Baker v. Cummings, 181 U. S. 117, 124-130,
21 Sup. Ct. 578, 45 L. Ed. 776; National Foundry, etc., v. Oconto Water Supply
Co., 183 U. S. 216, 234, 22 Sup. Ct. 111, 46 L. Ed. 157.

20

The Act of May 2, 1890 (26 Stat. 81, 92), briefly recited the existence of a
controversy between the United States and the state of Texas as to the
ownership of the land known as Greer county, and directed the Attorney
General to bring suit in this court in order that the rightful title to that land
might be finally determined. Referring to this, and to the history and nature of
the controversy, it is contended that the pleadings should be so construed as to
confine the issue to the identification of one of the forks of the Red river with
the Red river of the treaty. It is true that the principal matter in dispute was the
claim of the United States to ownership of the tract of land lying between the
forks and bounded on the west by the 100th meridian. But the bill and the
amended bill, after reciting article 3 of the treaty defining the boundary line
between the United States and Spain, by which both parties to the cause were
bound, and recounting the history of the controversy, concluded with a prayer
that the bill might be filed and Texas made a defendant thereto, 'to the end and
for the purpose of determining and settling the true boundary line between the

United States and the state of Texas, and to determine and put at rest questions
which now exist as to whether the Prairie Dog Town fork or the North fork of
Red river, as aforesaid, constitutes the true boundary line of the Treaty of 1819';
and that upon final hearing a decree might be entered, establishing
complainant's rights as set up in the bill; and there was a prayer for general
relief. The contention now made is based upon an unduly narrow interpretation
of the act and of the pleading. Granting that the substantial controversy related
to the ownership of and jurisdiction over the tract lying between the forks, it
was essential to a complete and precise disposition of that controversy that the
court should define with certainty the bounds of the tract. If it were to be
awarded to the state of Texas, an accurate definition of its northerly boundary
was essential; if to the United States, like accuracy in defining its southerly
boundary was called for; in either case, the line to be defined was 'the true
boundary line between the United States and the state of Texas.' And if, as
suggested, the river is to be regarded as navigable (upon which we express no
opinion), so that a boundary line separating national territory from that of the
state, if described as following the river, without more, would by implication
follow the middle of the main navigable channel, as in a case between adjoining
states (Iowa v. Illinois, 147 U. S. 1, 13, 13 Sup. Ct. 239, 37 L. Ed. 55; Arkansas
v. Tennessee, 246 U. S. 158, 171, 38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A.
1918D, 258), so much the more was specific mention of the bank essential to
an accurate description of the tract in issue, if the bank was the true line instead
of midchannel. And if at the termination of the suit, the line were left
undefined, a ground of further controversy would remain; and it is as foreign to
correct practice as to the principles of equity that a final decree should be
pregnant with further litigation.
21

Even less substantial is the suggestion that the language of section 25 of the Act
of 1890 (26 Stat. 92) authorizing suit to determine the title to the tract 'lying
between the North and South forks of the Red river,' etc., and the use of that
phrase in the amended bill had the effect of excluding from the issue land south
of the middle of the south fork. Upon so narrow an interpretation, the
controversy might as well be confined to the upland between the forks, leaving
the United States without claim to any part of the bed of the stream, if the south
fork proved to be the river of the treaty. Of course, the phrase merely pointed
out the tract in dispute, without attempting to delimit it.

22

The contention that the evidence and the arguments in the Greer County Case
raised no controversy as to whether the boundary followed the mid-channel or
the south bank of the river is not well founded. The Treaty of 1819, and a mass
of historical and other data bearing upon its proper interpretation, were before
the court. It appeared that the treaty was negotiated at Washington between the

Spanish Minister, Don Luis de Onis, and the United States Secretary of State,
John Quincy Adams; M. de Neuville, the French Minister, acting at times as an
intermediary. The state of Texas itself introduced authenticated extracts from
the instructions of the Spanish Minister, and excerpts from correspondence
between him and Mr. Adams, from which latter it appeared that the question
whether the boundary should follow the middle of the Sabine and Red rivers, or
the westerly bank of the former and the southerly bank of the latter, was one of
the points under discussion; the Spanish Minister proposing the middle lines,
Mr. Adams the banks.
23

Furthermore, in the principal brief for the state of Texas, reference was made to
entries in Mr. Adams' diary, found in his Memoirs, vol. 4, pp. 233-280, in
connection with which the brief declared:

24

'An objection was long persisted in by Spain that instead of the banks of the
rivers named being boundaries the middle of the river should be the dividing
line [Adams, supra]. This objection was at last abandoned,' etc.

25

The diary itself, in the pages thus referred to, abounds in statements to the effect
that the representative of Spain, during the course of the negotiation, insisted
that the middle of the rivers should be taken for the boundary, Mr. Adams
firmly insisting upon 'the western and southern banks,' and at last prevailing. J.
Q. Adams' Memoirs, vol. 4, pp. 255, 256, 261, 264, 266, 267, 270. It is true
these references were made by counsel for Texas principally with the object of
showing the important part that the Melish Map (mentioned in the treaty)
played in the negotiations; but it is impossible to escape the conclusion that
both counsel and the court understood that the question whether the boundary
line, where it followed the Sabine and Red rivers, should be so located as to
establish the United States as owner of the rivers or so as to divide the
ownership between the United States and Spain, figured to an important extent
in the negotiations, was disposed of by the treaty, and hence was vital to the
correct location of the boundary line as between the litigants. If the point was
not controverted, it was only because counsel for Texas in effect conceded that
the treaty line ran along the south bank of the Red river. It may have seemed, at
that time, a matter of no great moment.

26

Finally, the precise matter was discussed in the opinion of the court, and was
made the subject of a finding which was carried into the final decree. In the
course of an outline of the diplomatic correspondence and negotiations that
preceded the making of the treaty, the court said (162 U. S. 27, 16 Sup. Ct. 729
[40 L. Ed. 867]):

27

'The Spanish Minister required that 'the boundary between the two countries
shall be the middle of the rivers, and that the navigation of the said rivers shall
be common to both countries.' Mr. Adams replied that the United States had
always intended that 'the property of the river should belong to them,' and he
insisted on that point 'as an essential condition, as the means of avoiding all
collision, and as a principle adopted henceforth by the United States in its
treaties with its neighbors.' He agreed, however, 'that the navigation of the said
rivers to the sea shall be common to both people"citing Annals of Congress,
Appendix, 15th Cong., 2d Sess., 2120, 2021, 2123.

28

The opinion then proceeded to set forth (162 U. S. 27-29, 16 Sup. Ct. 729 [40
L. Ed. 867]) the third and fourth articles of the treaty, in the former of which
occurs the language that Mr. Adams had insisted upon as carrying out the
purposes of the United States that 'the property of the river should belong to
them'; and at a later point the opinion declared (162 U. S. 37, 16 Sup. Ct. 733
[40 L. Ed. 867]):

29

'The two governments certainly intended that the line should be run from the
Gulf along the western bank of the Sabine river, and after it reached Red river
that it should follow the course of that river, leaving both rivers within the
United States.'

30

And, having decided the case in favor of the United States, the court embodied
in the final decree a description of the boundary line, in terms quoted above.

31

To sum it up, we find that the question of the true location of the boundary
between the territory of the United States and Texas where it followed the Red
river bordering upon Greer county, and the question whether the boundary
followed the middle or the south bank of the river, were within the issues made
by the pleadings, and so recognized by both parties, as well as by the court;
that, by the concession of both, the location was to be determined according to
the true effect and meaning of the Treaty of 1819; that in elucidation of the
matter the treaty, and much historical evidence of the negotiations that led up to
it, were introduced, discussed by counsel in argument, and referred to in the
opinion of the court; and that the point was directly determined by the court
and the determination made a part of its final decree. By every test that
properly can be applied, the matter is res judicata.

32

And, of course it not only concludes the parties with respect to that part of the
boundary which borders upon what was called Greer county, but settles the
construction of article 3 of the Treaty of 1819 as to the entire course of the Red

river where it marks the boundary between the territory then owned by the
United States and that of the state of Texas.
33

Having reached this conclusion upon the first of the two questions proposed for
decision, it is unnecessary to consider the second, which is whether the treaty,
by proper construction, fixes the boundary along the midchannel or the south
bank. The matter being res judicata, as the result of the decree in the former
suit, it is of no consequence whether it was correctly decided or not. We say
this without intending to intimate the least doubt about the propriety of that
decision.

34

The parties may submit within 30 days a proper form of decree for carrying this
decision into effect.

35

It is so ordered.

36

Mr. Justic CLARKE took no part in the consideration or decision of this case.