Kinnanne v. State , 106 Ark. 286 ( 1913 )

Kirby, J.,

(after stating the facts). It is contended the testimony is insufficient to show the keeping of a dramshop without license, there being only a single sale proved and that the court erred in the giving and refusing of instructions relative to the boundary line between the States of Arkansas and Tennessee.

It is true that the testimony does not show but that one sale of whiskey was made, nor was there any attempt to prove others, but it is undisputed that this sale was made in a regularly equipped barroom upon a steamboat, where whiskey of many kinds and beer was kept and exposed for sale and there was no necessity for showing other sales. Blackwell v. State, 45 Ark. 90; Mazzia v. State, 51 Ark. 177.

The next assignment is that the court erred in its declaration of law as to the boundary line between the States of Arkansas and Tennessee. The testimony shows that the sale occurred about 350 yards from the Arkansas shore in the stream of the river used for navigation. That from this point to a sandbar opposite the Arkansas bank is a half to three-quarters of a mile, to the island a mile and to the Tennessee bank of the river a mile and a half or two miles; one witness thinking the island .was the Tennessee 'Shore. The island is submerged at a good stage of water.

This court in a well-considered opinion has already declared- the law relating to our eastern boundary upon the Mississippi River, after reciting that the Act of Congress admitting the State into the Union, approved June 16,1836, designated the eastern boundary as “the middle of the main channel of the Mississippi River,” which description is also embodied in our Constitution since that time, and, after a discussion of the meanings of the words “channel” and “main channel,” said: “The middle of the main channel then must mean the point or line along' the river bed equidistant between the permanent and defined banks of the ascertained channel on either side * * * it seems that the largest channel determines which is the river and the central line of that makes the State boundaries # * # where there are several channels the principal one is considered the river and in this the medium filum makes the boundary.” Cessill v. State, 40 Ark. 505.

The Supreme Court of Tennessee has also considered and determined the matter of its western boundary, which is the eastern boundary of our State, in the case of Tennessee v. Muncie Pulp Co., 119 Tenn. 47. It considered the boundary line fixed by the treaty of 1763, the middle of the Mississippi River and the boundaries of the two States as fixed by the acts of Congress admitting them into the Union, and, in a well-considered and exhaustive opinion, after reviewing this court’s decision in Cessill v. State, supra, said: “The decisions of all the courts of last resort of the several states, as well as those of the United States involving this boundary line, with the exception of those of Buttenuth v. St. Louis Bridge Co. and Iowa v. Illinois, 147 U. S. 1; 202 U. S. 59, have been favorable to the contention that the line runs midway between the banks of the river and it is only at a late day by those cases that a doubt was suggested or arose as to the true and correct line which formerly separated the British possessions in America from those of France and Spain, and subsequently a number of the largest and most influential States of the Union. The former construction has become a rule of property and should not be disturbed. * * * Where a navigable river constitutes the boundary between two States, the middle of the channel separating their respective jurisdictions both are presumed to have free use of the whole of it for the purposes of commerce. # * * The reasons for having a fixed, certain and visible line, such as the middle of the channel as measured from the respective banks of the river, we think, greatly outweigh those advanced in support of the decision of the case of Iowa v. Illinois. * * * But the question has been settled by the duly constituted authorities of Tennessee and Arkansas by judicial decisions, legislation and other authorized official actions, long acquiescence, the exercise of jurisdiction unchallenged, and other acts amounting to an agreement or convention. The highest court of Arkansas, in a case to which the State was a party, and at its instance, in the assertion of its sovereignty and jurisdiction has defined the limit between the two States to be the line midway between the visible banks of the river, and enforced the criminal laws of the State up to that line. # * * Both States agree upon it as the true and correct line separating their territories, and others can not be heard to complain. ’ ’

See also St. L., I. M. & S. R. Co. v. Ramsey, 53 Ark. 314; Jones v. Soulard, 24 How. 41; Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23; Myers v. Perry, 1 La. Ann. 372; Morgan v. Reading, 3 S. & M. (Miss.), 366; Bridge Co. v. Dubuque Co., 55 Iowa, 558.

The instruction given by the trial court was in accordance with the law as already declared by our court in the case of Cessill v. State, supra, and the boundary thus defined has been recognized and acquiesced in by the State of Tennessee, as the western boundary of that State, and the court did not err in giving said instruction.

The undisputed evidence shows that from the Arkansas shore of the river to the sandbar opposite, which confined the stream upon which the boat was operating was a distance of half to three-quarters of a mile, that it was half a mile further to the island and á mile from there to the Tennessee bank and that the sale was made not more than 350 yards from the Arkansas bank of the river.

Unquestionably, it occurred within the jurisdiction of this State and the judgment of the lower court is affirmed.