^* No. 9, Original. October Term, 1943.

1 Cf. Missouri v. Kansas, 213 U. S. 78; Missouri v. Nebraska, 196 U. S. 23.

2 Act of Admission of Kansas, 12 Stat. 126; Kansas Constitution of 1859, Charters and Constitutions of the United States, Part I, 629, 630.

3 The complaint alleged disputes over the line at points along the river between War Department Survey Stations 399 and 405, at other points in Atchison County, Kansas, and at points along the river between War Department Survey Stations 510 and 515 (Forbes Bend).

4 Attempts at settlement by negotiation had been authorized by Kansas before this proceeding was begun (Laws of Kansas, 1939, c. 355). Apparently they were unavailing, and this suit was instituted. After it was begun, however, the parties agreed to a settlement with respect to all areas but this one and incorporated it in this record. It will be made part of the decree.

5 Jefiries v. East Omaha Land Co., 134 U. S. 178; St. Clair County v. Lovingston, 23 Wall. 46; Nebraska v. Iowa, 143 U. S. 359.

6 Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23; Oklahoma v. Texas, 260 U. S. 606.

7 Since Kansas claims avulsive change both in 1917 and in 1927, and that the accretion began about 1900 or shortly thereafter, her claim necessarily implies that the period of accretion extended either from 1900 to 1917 or from 1900 to 1927.

8 At that time, according to this claim, the main channel of the river flowed through the so-called Missouri channel to the north and east, but was suddenly changed by the ice jam back from that channel into a chute on the Kansas side. This chute previously had cut across the allegedly accreted land a little to the west of where the present channel now lies. The complaint alleges that the ice jam occurred “on or about Februrary 1918.” The scanty testimony in the record if completely accepted would establish the ice jam in 1917 rather than in 1918; cf. note 24 infra.

9 The complaint alleges that the ice jam occurred “during the year 1927.” The witnesses who testify to the jam at this time date it variously in 1927, 1928 and 1929; cr. note 25 infra.

10 C. McWilliams (1892); P. Dyer (1898); C. Hudgins (1900); J. H. Simpson (1904); J. E. Simpson (1905).

11 Cf. testimony of L. F. Stalcup.

12 Witnesses vary as to the exact time from 1910-11 to 1916 (J. H. Peret: 1910-12; Mrs. S. Jenkins: 1910-12; R. E. Simpson: 1913; C. McWilliams: 1912-13; C. Harper: 1915; C. Hudgins: 1915; B. Hudgins: 1916; E. McCoy: 1915). But most of them put this event in 1912 or later, and the most reliable testimony, by those who moved the building (C. Hudgins and B. Hudgins), places it in 1915 or 1916.

13 McWilliams (1924-25); E. McCoy (1922); A. H. Murray (1922-23); Ralph Dyer (1923-24); W. Metcalf (1917); cf. E. A. Cole (1923, 1928).

14 Varying dates are given for the time at which a divided flow was first noted. Kansas witnesses: I. Muse: 1900; L. F. Stalcup: 1910-1911; J. E. Simpson: 1912-13, 1917; O. McKay: 1917; R. E. Simpson: 1918; C. Baskins: 1917; C. W. Ryan: 1917 or 1919; J. McKay: 1920. Missouri witnesses: D. Barbour: 1903; B. Hudgins: 1914; C. Harrison: 1914; Ralph Dyer: 1913-14; C. Harper: 1915; A. H. Murray: 1915; H. H. Hall: 1916; W. Metcalf: 1916; J. Fitzgerald: 1917; Raymond Dyer: 1917-1918.

15 See note 14 supra. A few Kansas witnesses maintain there was only one channel through this period.

16 See note 14 supra. Kansas’ witnesses testified variously that there always had been a channel on the Kansas side, that it was swifter than the Missouri channel (J. H. Simpson), that the Kansas channel was the “main river” (Mrs. J. Coufal), that the Kansas channel was much the larger in 1918 (R. E. Simpson), that most of the water was on the Kansas side in 1920 (P. Bottiger); cf. C. B. Caton, that the river was just about evenly divided in 1917 (C. Baskins). Missouri witnesses said that there was always a substantial flow in the Kansas channel and that it was about as large as or larger than the Missouri channel (e.g., Ralph Dyer, B. Hudgins, C. Dinwiddie, J. Fitzgerald, C. Harper, Raymond Dyer). They placed boats in the Kansas rather than the Missouri channel (E. McCoy); in 1918 (W. L. Moore); 1916 to 1929 (H. H. Hall); and in 1927 (C. Hudgins).

17 See note 16 supra.

18 W. Metcalf: 1917; W. L. Moore: 1918; C. Dinwiddie: 1920-22; C. Harrison: 1921; J. Fitzgerald: 1923-1925; cf. P. Bottiger: 1920.

19 J. Fitzgerald, E. Wales, J. H. Peret (Kansas witness); cf. E. McCoy C. Harper.

20 E. g., J. H. Gray: 1928 et seq.; A. F. Hays: 1926 et seq.; J. B. Gray: 1927-30; G. Atkinson: 1929-after 1934; J. H. Peret: 1929-33; C. Coufal: 1929-33; C. W. Ryan: 1928-31; some Kansas witnesses claim the drying up of the Missouri channel was a sudden concomitant of an ice jam in 1929 but add that the Missouri channel contained water until 1933 or 1934 (e.g., C. Coufal, E. A. Cole), or 1935 or 1936 when it dried up as a result of government diking and revetment work upstream (e.g., J. Coufal).

22 See note 14 supra.

22 E. g. , A. F. Hays, C. Coufal, K. Brownlee, K. Robinson.

23 E. A. Cole, J. Coufal. Cole is a Kansas claimant to ownership of part of the disputed land. Coufal once worked for him.

24 C. Baskins: 1917; J. E. Simpson: 1917; P. Dyer: 1917; C. Dyer.

25 E. A. Cole: 1929; C. Coufal: 1929; J. Coufal: 1929; Mrs. J. Coufal: 1929; E. L. Rockwell: 1927; I. Overstreet: 1927; H. W. Linville: 1927; P. Dyer: 1927 or 1928. Mrs. Coufal, however, testified the “main river” was on the Kansas side of the island at that time. In this respect her testimony flatly contradicts that of her husband and Cole.

26 D. Baskins, J. Kotsch, R. E. Simpson, J. H. Simpson, W. Prusman, G. Atkinson.

27 I. Muse, L. F. Stalcup; cf. A. P. Staver.

28 C. Hudgins, V. Harrison, C. Dinwiddie, R. L. Greene, W. Metcalf, E. Wales; cf. E. McCoy, H. H. Hall, D. Barbour.

29 Cf. note 20 supra; J. Kotsch, W. Prusman, C. McWilliams.

30 They agreed that the Missouri channel flowed around the island not far from the Burlington tracks, turning south at that point and flowing against the Kansas bluffs at Station 510. They also agreed that the Kansas channel was a chute. But they differed concerning its direction and location. Robinson placed it as running almost due south across the center of the island in a straight course. Gray placed the Kansas chute more to the west and with a curving course. Both testified that the Missouri channel was the main channel at that time. The inconsistency between Exhibit 46 and the testimony and drawings of Robinson and Gray may be accounted for in part, though not altogether, by the fact they were in the Bend for hunting and fishing purposes, chiefly in the fall, whereas Exhibit 46 was made from surveys in June and July. The difference in time, however, is hardly enough to account for the difference either in width or depth of the Kansas channel as shown by the exhibit and by their testimony.

31 Cf. notes 27-29 supra.

32 Cf. note 25 supra.

33 Missouri v. Kentucky, 11 Wall. 395; Davis v. Anderson-Tully Co., 252 Fed. 681 (C. C. A.); Commissioners v. United States, 270 Fed. 110 (C. C. A.).

34 Missouri apparently urges that even if the land formed as an island on the Kansas side, the process by which the main channel shifted from the eastern to the western channel and the former gradually filled with alluvial deposits thus connecting the island to the Missouri shore, entitles it to sovereignty over the disputed lands.