Kansas brings this original suit against Missouri to have determined their common boundary from the mouth of the Kaw or Kansas River northwardly, over a distance of approximately 128 miles, along the channel of the Missouri River to its intersection with Kansas' north boundary line.
At the time of Kansas' admission to the Union, January 29, 1861, the western boundary of Missouri followed the thread of the Missouri River, that is, the middle line of its main navigable channel, between these points. This line then became the common boundary of the two states. The bill of complaint was filed in 1940. It alleged that the thread of the stream had shifted frequently, sometimes suddenly, sometimes gradually, and that these changes had caused controversies concerning the true boundary. When the proceeding began it was in dispute at a number of places. But during pendency of the suit the parties have settled all differences except one. This relates to the section of the boundary in the Forbes Bend region.
After the filing of the suit a master was appointed. Extensive hearings were held. Both documentary and oral evidence was presented. The master has filed his report, which makes findings and conclusions in favor of Missouri. Kansas says these are contrary to the law and to the weight of the evidence.
The land in dispute consists of about 2000 acres. This now lies on the Missouri side of the river toward the lower end of Forbes Bend. Kansas claims this land was at one time soil accreted to the Kansas bank, which an avulsive change in the course of the main channel has put back on the Missouri side; or, in the alternative, that the tract formed as an island on the Kansas side of the main channel and, as a result of a sudden shift in that channel to the other side of the island and the drying up of the old course, it has become physically attached to Missouri. In either event, Kansas urges, it follows that the boundary remains at the center of the river's former main channel. Missouri denies that the land accreted to Kansas, that there was avulsion, or that the island ever lay on the Kansas side of the main channel.
The states are not in dispute about the applicable law. They agree that when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel's course. Likewise, they agree that a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run.
However, the parties are sharply at odds over the facts and the conclusions to be drawn from the evidence. In view of this and since we think the facts as presented by the evidence are conclusive of the controversy, it becomes necessary to sketch them and to refer to portions of the evidence in order to give an understanding of the issues and the basis for our conclusions.
Forbes Bend lies between Doniphan County, Kansas, and Holt County, Missouri. The disputed boundary, according to the master's findings, extends along the main channel of the river as it now flows for a distance of about five miles bending southeasterly from Channel Mileage Station 515 to Station 510 (as measured and marked in 1890). As the river enters Forbes Bend from the north it flows east of south. Near the point of entrance it is joined by Wolf Creek. This comes into the river from the Kansas side in an easterly direction. The mouth of Wolf Creek is roughly adjacent to Station 515. From this point the Kansas bluffs swing in a gradual convex curve southeasterly until they reach a point above Station 510. On the Missouri side the bluffs run, as they do on the Kansas side, generally southeasterly. Throughout the Forbes Bend region the distance as the crow flies from the Kansas bluffs to the Missouri bluffs is four miles more or less. Adjacent to and parallel with the Missouri bluffs, but between them and the river, lie tracks of the Burlington Railroad.
The Missouri River is a vagrant, turbulent stream. Its name reflects this character. The Big Muddy is said to carry more silt than any other river except the Yellow River in China. It is constantly changing its course within the region between its bluffs, shifting from side to side as natural forces work upon its flow. Expert testimony is that a change of conditions in one bend produces changes as great, or nearly so, in the next bend below.