The Odd Clauses by Jay Wexler Page A

getting some more representation in Congress, and so the state that thinks it should have more property sues the other state. A few examples: Rhode Island sued Massachusetts in the 1830s over land next to Narragansett Bay; Indiana sued Kentucky over something called the Green River Island in the late nineteenth century; Missouri sued both Nebraska and Kansas over various pieces of land in the early twentiethcentury, and then Kansas sued Missouri over a different piece of land in the middle of the twentieth century. In 1913 New Mexico sued Texas over their boundary. Both states agreed that the border was defined by where the Rio Grande was in 1850, but they disagreed about exactly where this was. New Mexico put forth the testimony of witnesses who claimed to know where the river had traveled back then, but the testimony was rejected as unreliable, since the witnesses were “old men, some very old,” who hadn’t been on the river for sixty years, and even then had generally traveled in the dark because “in those years the country was wild and infested with hostile Indians.” In the early 1970s, in what
Time
magazine referred to as a “boiling dispute,” Maine patrol officers arrested a New Hampshire lobsterman for fishing in Maine waters. Believing that Maine had overstepped its boundaries, New Hampshire’s governor announced that “Maine has declared war on us!” and brought suit in the Court, which ended up ruling (sort of) for Maine.
    A second big group of cases involve water rights of various types. Many of the cases are about which state gets to use some body of water. Wyoming once sued Colorado over the Laramie River; Wisconsin once sued Illinois over parts of Lake Michigan; Connecticut sued Massachusetts over the Connecticut River; New Jersey sued New York over the Delaware River; and so on. A dispute between Nebraska and Wyoming over certain rights to the North Platte River went in and out of the Court for over sixty years. Other cases involve pollution. Did New Jersey have the right to throw sewage into New York harbor and cause “offensive odors”? Did New York have the right to create a giant sludge bed in Lake Champlain, or did this violate Vermont’s sovereignty?
    One of the most fascinating state-versus-state cases of all time took place at the very beginning of the twentieth century, when the Sanitary District of Chicago reversed the flow of the Chicago River in order to send its contaminatedsewage water down the Mississippi River rather than into Lake Michigan. This was great for the residents of Chicago, but not so terrific for the citizens of St. Louis, where it was alleged that the arrival of “1500 tons of poisonous filth per day” had caused a typhus epidemic. Missouri sued Illinois, on the theory that the Sanitary District was an agent of the state. The first question was whether the Court would even entertain a suit like this; on that question, the Court said absolutely. In Justice Holmes’s words: “The nuisance set forth in the bill was one which would be of international importance—a visible change of a great river from a pure stream into a polluted and poisoned ditch. The only question presented was whether, as between the states of the Union, this court was competent to deal with a situation which, if it arose between independent sovereignties, might lead to war. . . . [T]he jurisdiction and authority of this court to deal with such a case as that is not open to doubt.” At the same time, though, the Court was worried about opening its doors to every claim that one state had polluted the waters of another state; it decided, therefore, that before it would intervene, “the case should be of serious magnitude, clearly and fully proved.” Examining the evidence before it in great detail—not only the typhoid statistics from St. Louis over the relevant period, but also experiments regarding the likelihood