Ohio v. Kentucky

PETITIONER: Ohio
RESPONDENT: Kentucky
LOCATION: University of Washington Law School

DOCKET NO.: 27 ORIG
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 410 US 641 (1973)
ARGUED: Jan 10, 1973
DECIDED: Mar 05, 1973

ADVOCATES:
John M. Famularo - for defendant, pro hac vice, by special leave of Court
Joseph M. Howard - for plaintiff

Facts of the case

Question

Media for Ohio v. Kentucky

Audio Transcription for Oral Argument - January 10, 1973 in Ohio v. Kentucky

Warren E. Burger:

We’ll hear arguments next in number 27 original, the State of Ohio against the State of Kentucky.

Mr. Howard, you may proceed whenever you’re ready.

Joseph M. Howard:

Mr. Chief Justice, may it please the Court.

This is an action by the State of Ohio requesting a determination of the location of its boundary with Kentucky in the Ohio River.

The only question presently before the Court is whether or not Ohio shall be permitted to amend its original complaint.

That original complaint was filed back in 1966.

At that time, Ohio claimed that the boundary existed at the low water mark on the north side of the river, that is on the Ohio side, as it stood in 1792, which was the day at which Kentucky became a state.

Kentucky filed an answer and it claimed that the boundary lay at the present low water mark on the north side of the river on the Ohio side.

That, of course, was much farther up on the Ohio shore than the old 1792 line, because of the new dams which have been put in on the Ohio River beginning in back in 1890, the planning began.

The dams were erected.

I think the first set of them were completed in 1925, and then in the 50’s a new set of high level dams began to be erected by the Army Corps of Engineers, and that caused a much higher level of the water and further inundation on the Ohio side.

Well, the issues were joined on the original complaint in the answer.

And this Court appointed the Master and there were quite a number of conferences between the Master and counsel as to how the case should be conducted and the evidence presented.

There were a great number of conferences apparently between counsels on both sides determining just what the evidence would be.

And in July 1970, Ohio made an offer of settlement.

As I recall, it was 250 feet up into the river.

I may be mistaken on the exact figures on that but that was --

Potter Stewart:

That was somewhere between the 1792 line and the present line on the north shore?

Joseph M. Howard:

I am not sure Your Honor exactly what.

I would guess it would have been above the 1792 line.

That’s my guess.

Potter Stewart:

The issue originally in this lawsuit was whether or not the low water mark on the north shore was that of 1792 or that of today.

Joseph M. Howard:

That’s right; that's right.

Potter Stewart:

And I suppose therefore, I would guess, I will assume that a settlement would fix the line somewhere in between those two?

Joseph M. Howard:

Well, I have not gotten into that part of it yet at all, and I can’t say; I’m guessing that it was closer to what Ohio wanted than what Kentucky felt Ohio should get.

Apparently, from what I can gather from the Master’s comments and from what I’ve seen in the file, counsel on both sides felt that there were some chance that this would be accepted.

At least they were content.

Nobody could tell of course what the Legislatures or the Executive part on either of the States would have done.

So, it had gone just that far that the offer was made.

Unfortunately, the counsel for State of Kentucky, John Browning, who had been handling the case since the very outset was killed in an automobile accident about two weeks after the offer was made.