Amicus Curiae Brief — United States v. California

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“' _ LIBRARY . Olles - Sucreme Ouurt, UL 8.

SUPREME COURT. U.S. . FIND

Supreme Court of the United States.

' OcToBER Tea, 27 5 x

6 No. r% Original EG

Unrrep States oF AMERICA,

Plaintiff,

vs. .‘e ;

Ean ‘Strate or Cairornia,

hs me : . Defendant.

BRIEF OF THE. NATIONAL ASSOCIATION OF

ATTORNEYS GENERAL, AMICUS CURIAE

THE NATIONAL ASSOCIATION OF

ATTORNEYS GENERAL.

COMMITTEE ON THE BRIEF:

\ aon R. JOHN -;

7 4. — oe = 7

chusetts

? «

PRICE DANIEL,

Attorney General of eed

= S. JENKINS, :

Attorney General. of Ohio,

FORD 3. ae,

Attorney General, of Lowisiono, |

‘EDWARD F. ARN,

Attorney General of Kansas

Dated: February 24, 1947 Seatno”

INDEX

‘ Introduction to PDE ais Kuswinactabededanenen

Point 1—Plaintiff’s complaint: sets forth no ‘Winatie

basis for any claim of title to submerged lards .

Point II—The development of the law shows that the

States have title to submerged lands within their

” boundaries, including lands under coastal waters

A.—The common law conception of dominion of

submerged lands under coastal waters .....

—Textwriters . be GNM Se avian Nhe a

—Colonial charters and statutes ........ aa

B.—The States acquired the title, of the Crown

' to’submerged lands .........0.........0055 :

-C.—The doctrine of State ownership of lands un-:

. der all navigable waters, including coastal

waters, is definitely established hy repeated »

pronouncements of this Court .............

D.—California and other States subsequently “d-

mitted entered the Union on an equality with

the original States ...... Mutwk upecieaneee

Pornt I1I—The States’ ownership of the bed of the

sea out to the limit of their jurisdiction has been —

‘asserted, and acquiesced in by the Federal Gov-

ernment, for over 150 years, and is binding o on the

Federal Government ................. rer ;

A.—State constitutions, statutes and decisions . . '

B.—Federal acceptance of grants from the States

C,—The Federal policy not to deprive the States

. of their subme WL sp wadswwesy ean oe |

Pont IV—The doctrine of State ownership of lands

under coastal waters is an established rule of

property, which this Court should not GateRD

eo rey ee errr rer rer T Se ee ee

ae INDEX

Cases Crrep

The Abby Dodge, 223 U. S. 166 (1912) .......... ". 022, 30

The Anna (1805) 5 C. Rob. 373, 385; 165. Eng. Rep. 809 13

~~ Armour & Co. v. City of Newport, 43 R. I. 211,110 Atl.

RE LO RTE eS ary 18, 26

Arnold v. Mundy, 1 Halst. (6 N. J. L.) 1, 91-92 (1821) 18

Atkinson v. State Tax Commission, 303 U. S. 20 (1938) 8

Baer v. Moran Bros. Co., 153 U. S. 287 RNR 25

Barker v. Bates, 13 Pick. "255 (Mass. 1832) .......... 26

Barney v. Keokuk, 94 U. S. 324 (1876). ............. 38, 58

Benest v. Pipon (1829), 1 Knapp 60, 12 Eng. Rep. 243 39

. Best.v. Polk, 18 Wall. (85 U. 8.) 112 a

Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. ~

re oe ee 34, 41, 43,58

,, Bosarge v. State, 23 Ala. App. 18, 121 So. 427 (1928),

_ cert. den., 219 Ala. 154, 121 So. 428 (1929), cert.

~‘den., 280 U. S. 568 (1929) chamisau bev ehedeeas? 17, 51

Brewer Oil Co. v. United States, 260.U. 8S. 77 (1922) 41

Burnham v. _ Webster, 5 Mass. 266 (1809) .......... 52

‘Catheart.v. Robinson, 5 Pet. (30 U. S.) 264 (1831)... 40

Charles River Bridge v. Warren Bridge, 11 Pet. (36

Wii Me Me GED Src ncceccsccscvcntoeseorcsss

Commonwealth v. Boston Terminal Co., 185 Mass. 281

SE VLE eV neko ba Cie been k FAs tanke ce ekes® 52

Commonwealth v. Manchester, 152 deen. 230 (1890).. 53

Commonwealth v. Newport News, 158 Va. 521, 164

SED 66 50045000 46600b4oenne Shene os 26

Corfield v. Coryell, Fed. Cas. No. 3230 (C. C. Pa.,

| | eer ics nd awenks chee ee tunseseis>

County of St. Clair v. ‘Lovingston, 23 Wall. (90 U.S.)

sy dine cena eh les ohes be beads e.4 7,38 |

Coxe v. State, 144 N, Y. 396 (1895)..............-5- 26

Den v. The Jersey Co., 15 How. (56'U. S.) 426 (1853) 30

Donnelly v. United States, 228 U. S. 243 (1913) ..... 58

Dill v. Inhabitants of Warehafn, 7 Mete. (48 Mass.)

ES SRE eee A Sr eee

‘Dunham v. Lamphere, 3 Gray 268 ( Mass. 1855)..:.. 26, 51.

Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So.

DOE GREE) save mmevyecivisscescsccenecseoocss 52

INDEX bs ili

PAGE

The Genesee Chief, 12 How. (53 v. S.) 443 (1851) . 32

Goodtitle v. Kibbe, 9 How. (50 U. S.) 471 (1850) . 60

Gough v. Bell, 21 N. J. L. 156 (1847) ...........--: 26

Hamburg American Steamship Co. v. Grube, 196 U. S.

fo ee ern oe 6, 7

Harcourt v. Gaillard, 12 Wheat. (25 U. S.) 523 (1827 ) - 24

Hardin v. Jordan, 140 U. S. 371 (1891) cncavesbesed 38

Mllinois Central R. Co. v. Minois, 146 U: S. 387

EPO rrr re ee ee ee 31, 32, 38

International Paper Co. v. United Stafes, 282 U. 8.

399 ( 1931) deme ames ivbcdaeieeenehebes ees 45 -

James v. Dravo Contracting Co., 302 U. S. 134 (1937) 8

Kennedy v. The Sloop Mary & Margaret Thomas,

Fowles Reclaimant, 6 O’Callaghan, Documents

Relative to the Colonial History of New York

fg | Peery oer rete 19

Knight v. United States Land Association, 142 U.S. :

161. ( 1891) ‘Pica daa bawe kaw as beeine be heeeenkes 41

Lazell v. Boardman, 103 Me. 292, 69 Atl. 97 (1907) . 19

Lipscomb v. Gialourakis, 101 Fla. 1130, 133 So. 104

Ne ee ee 51

The Lottawanna, 21 Wall. (88 U.S, ) 558 (1874) eee 60

Louisiana: v. cllock Oe 202 U.S. 1 (1906) ........ 33, 44

Lubetich v. Pollock (2d) 237 (W. D. Wash, 1925). 49

Manchester v. Massachusetts, 139 U. S. 240 (1891) . .18, 25,

28, 29, 35, 45, 51, 61-62

Mann vy. Tacoma Land Co., 153 U. 8. 273 (1894). : ae "42, 58

Marincovich, Ex Parte, 48-Cal. App. 474, 192 Pac. 156

ERE sthneseccadrneckstuseseumtnaessyass 17

Martin v. Waddell, 16 Pet. (41 U. 8.) 367 (1842)... .24, 29,

30, 34, 35, 37

Masenchusstts v. New York, 271 .U. S. 65. (1926) ... .33, 38

McCready v. Virginia, 94 U. S. 391 (1876). .18, 27, 29, 31, 35

McKeen v. Delancy’s Lessee, 5 Cranch 22 (1809) © "59

Michigan v. Wisconsin, 270 U. S, 295 (1926) ........ . 59

‘ Missouri v. Iowa, 7 How. (48 U.S.) 660 (1849) ...... 59

Mumford v. Wardwell, 6 Wall. (73 U.S. ) 423 — oe” ae

iv se INDEX

PAGE

Narragansett Real Estate Co. v. Mackenzie, 34 R. L.-

a ss ceibaeh eds s creees 52

The Nereide, 9 Cranch (13 U.S.) 388 (1815) ........ 12

New Mexico v. Colorado, 267 U. 8. 30 (1925) ......... 59

Niagara Falls Power Co. v. Water Power & Control |

Commission, 267 N. Y. 265 (1935) ; cert. den. 296

Se es a aks esl ae cave os aa ae

Nichols v. Boston, 98 Mass. 39 DE i chieecee 64 26

Ocean Industries, Inc. v. Superior Court, 200 Cal.

235, 252 Pac. 722 ed cok wee ews 51

Oklahoma v. Texas, 258 U. S. 574 (1922) Sa aa : ‘@

People v. Steeplechase Park Co., 218 N. Y. 459 (1916) 52

People v. Trinity Church, 22 N. Y. 44 (1860) ....:... 26

Pollard v. Hagan, 3 How. (44 U. S.) 212 (1845) .37, 41, 43, 58

Pope v. Blanton, 10 F. Supp. 10 ‘ D. Fla. , 1935) . 48

Port of Seattle v. Oregon & W. R. R. Co., 255 U. 8. 56

ST APCCUARARS SOG Ug PANGS ERASE SS Oban we 00s 33

* Rogers v. Goodwin, 2. ae. oe eee ae 189

San Pedro R. R. Co. v. Hamilton, 161 Cal. 610; 119

PMC. MOIS (TOIL) 2.2... s ces ce eases ecesceenss 25

Scott v. Lattig, 227 U. S. 229 (1913) ............ 38, 41, 43

Secretary of State for India v. Sri Rajah Chelikani

Rama Rao, L. .R. 43 Ind. App. 192, 3 T. L. R. 652

(P. C. 1916) 9 SLES LR Oe, OPTS ee ae oe

Shively v. Bowlby, 152 U. S. 1 (1894) . .25, 31, 34, 40, 41, 58.

Simpson v. Moorhead, 65 N. J. Eq. 623 ( 1904) bekeene my

Skiriotes v. Florida, 313 U.S. 69 | eae 34, 48

Smith v. Maryland, 18 How. (59 U. S.) 71 (1855) . 30, 35

State ex rel. Commissioners v. Capdeville, 146 La. 94,

83 So. 421 (1919) ; cert. den. 252 U. S. 581 (1920) 38

‘ State-ex rel. McKenzie v. Forrest, 11 Wash. 227, 37

: OTe RRS Re ere 25

State ex rel. Luketa v. Pollock, 136 Wash. 25, 239

EE ee Se 52 .

State v. Brown, 3 Dutcher (27 N. J.-L: ) % (1858) . 52

State v. Kofines, 33 R. I. 211 (1911) ../...... pasnies > Ot

State v. Medbury, 3 R. I. 138 (1855) } SPORE, 49

- State v. Ruyido, 1 137 Me. 102 4940) ike wale ered og & 2 17, 51

State v. Stewart, 184 Miss. 202, 184 So. 44 (1938)..... 52

Stuart v. Laird, 1 Cranch (5 U. S.) 299 (1803) ...... 59 |

INDEX ar | Vv

; PAGE

The Queen v. Keyn (1876), L. R. 2 Exch. Div.63..... 39

United States v. Bevans, 3 ‘Wheat. (16 U. 8.) 336

DT its sc cucneeeenhak achitsntsdeneekeueas 7, 35

United States v. Chandler-Dunbar Co., 229 U. S. 53°

EE ere ere eer ey re errr 38

United States v. Curtiss-Wright Export Corp., 299

i 8 fF, reer erry re 23, 44, 59

United States v. Guaranty. Trust Co., 33 F. (2d) 533,

aff’d. 280 U. S. 478 (1930) ane dpeeuks wawie

United States v. Holt State Bank, 270 U. S. 49

EE eich dies cia eae bard hes been dake 34, 38, 58

United States v. Mission Rock Co., 189 U. 8. 391.

ST cic6s sue ebadne bd bake one cbbndes usd shee 33, 42

United States v. Oregon, 295 Rae. eee 38, 43, 58

United States v. Rodgers, 150 U. S. 249 (1893) ...... 32

United States v. Utah, 283 U.S. 64 (1931) .......... 38, 43

Walker v. State Harbor Commissioners, 17 Wall. (84

Rf | Ue rrr 7 ope 25

-Weber v.-Board of State Harbor Commissioners, 18 ~

Wall. (85 U. 8.) 57 (1873) .............. 25, 30, 33, 41

Weston v. Sampson, 8 Cush. 347 (Mass. 1851) ...... 48

Wilton v. Van Hessen, 249 Ill. 182, 94 N. EK. 134 (1911) 48

Winston Bros. Co. v. Galloway, 168 Ore. 109, 121

| F. ff RR Sree se eee eee Ge 55

TEXTBOOKS AND ARTICLES

-_ Angell on Right of Property in Tide Waters, and in

the Soil and Shores Thereof (Boston 1826) . .13, 16, 36

Bacon’s Abridgement (Sth ed., 1786) Bk. I, 623n . 10

Blackstone’s Commentaries (3d ed., 1768), Book IL

i SE 0s AN 540.00 ngs Ghesakanieaeeetanenss 10, 17

Bracton, De Legibus et Consuetudinibus Angliae

ds fF SEES 8 fy Peer ee . 10

Burnett, The Continental Congress (1941) 250, 341 . 21

Bustamante, The Territorial Sea (1930) 6 ......... 10

Bynkershoek, De Dominio Maris (1703) 364 (trans. °

of 1744 ed. in Classics of Int. Law, 1923, p. 44).: - 13

Bynkershoek, Quaestionum Juris Publiot (1737) lib. 1,

Oi ae WF 5c ign bans cheeeek dees 60404 cece 5 13

‘vi INDEX

Callis on Sewers (2d ed. 1685) 39, 41-42, 44, 53 ...... 10

Farrow, History of Islesborough, Maine (1893) ....1, 2,19

‘Fraser, The Extent and Delimitation of Territorial

Waters (1926), 11 Corn. L. Q. 455 ...........4. 13

Fulton, The Sovereignty of the Sea (London 1911)

25- 517, De « baducdisbiiahard centanbeseeeeseks t0

- Gentili, De Jure Belli (1598) 629 (trans. from 1612 ed.

in Classics of Int. Law, 1058, D. GOB)... ccssccss 11

Griswold, Hunting Boundaries with Car and Camera - |

in the Northeastern United States (July 1939),29

Geographical Rev. 353, 372-82 ................. 6

.. Grotius, De Jure Belli ac Pacis (1625) Book II, ec.

III, § XIII, pp. 128, 130 (Kelsey trans. of 1646

ed. in Classics of Int. Law, 1925, pp. 210, 214) . 11

Hale, De Jure Maris (Cire. 1676),.c. IV, pp. 10-11, -

ce. VI, p. 31, in Hargrave’s Law Tracts (1787) . 10, 12

Hall, International Law (1880), Sec. 40, pp. 125- 27;

id. (Sth ed. 1924) pp. 189-92 .........ccceecenes "10, 12

Hall, Rights of the Crown, in the Seashores of the

Realm (1830). OCTET POT TS TET Te CET CTT errr 10, 17

I Hargrave’s Law Tracts (1787) Or Vig BEE 2 oe ee ae: oe

Moore, Digest of: International Law, 7 ol. I, p. 671.

(House Doe. 551, 56th Cong. 2d Sess.) ......... 36

Nelson’s Pérpetual Loose-Leaf es uaa under -

eg ll, eS eee

8 O’Callaghan, Documents Relative to. the Colonial

History of New York (1855) 434, 438 .......... ~ 19

Poore, Federal and State Constitutions (1878) ...... 15, 16

Pufendorf, Elementarium Jurisprudentiae Univer-

salis (1660), SE AMEE occ buncsstekerseaness . &

- Pufendorf, De Jure Naturae et Gentium (1672), Book-

IV, ¢. V, PD. SSS-GG ... ce ccsencccccccccvcves 11, 12

-Raestad, La Mer Territoriale (1913) c. i VIII passin 13

Reeves, "The Influence of the Law of Natiire ve

3 Am. J. of Int. Law 547, 549- Ot rin Gcbednweye 12

1 Rolles Abr. ean cs bask ue ees Kanan sss - 10

Selden, Dominion of the Sea (2d ed. 1652) Book I, c..

x ™ p. 141 anbe Fags Fer ET re ae pee cer ree 12

‘INDEX

Selden, Dominion of the Sea (1652) Book II, ‘PP. 251,

A EE a. tic idénceckecabe keuccnxe wea

Vattel, Law of Nations (1758) Book I, e. XXIII, § 287

(Fenwick trans. in Classics of Int. Law, 1916)

Ven Mibatuan kaw ty (1789) ¢. IV, § 10, i.

Ast oc, t.. | 1 Sree

— ConstTITUTION AND STATUTES

Act of Congress, April 30, 1802 (2 Stat..173), Ohio

EE iodine cp i okdcdewbnenanadoeeee bas

Act of Congress, February 20,1811 (2 Stat. 641),

ee EET ee

Act $ ek Mat March 1, 1817 (3 Stat. 348), Missis-

li SEG TRG I pa nie .

_ Act of ongress, April 18, 1818 (3 Stat. “428), Illinois

EE SELES AER URE ile MRRP a

Act of Congress, March 2, 1819 (3 Stat. 489, 490),

‘ Alabama Enabling | Beart nage ae aera

Act of Congress, June 15, 1836 (5 Stat. 49), Michigan

kid ai ceed wen eens cue ss asics

Act of Congress, August 6, 1846 (9 Stat. 56), Wiscon-

ee ROPER aR angen

Act of Congress, September 7, 1850. (9 Stat. 452),

GID 6 v0 evn ccccnncccesccccdses

_ -Aet of Congress, February 14, 1859 (11 Stat. 383),

EE ih knees cen aknaeencdseanies syd

PAGE

Act of Congress, June 25, 1868 (15 Stat. 73), re- -

es iccnd tnd cesknch cht aakeee.s

Act of Congress, February 2, 1889 (25 Stat. 676, 679),

Washington Enabling pataepinginie Senne and

Articles of Confederation, Art. IT ...... tes tebe

J — My the Continental Congress, Vol. 5, pp. 681.2)

Proclamation, Nov. 8, 1889 (26 Stat. 1552), Washing-

RS REESE ia PEP Mie ae ea

- United States Constitution, ‘Art. I, See. 8, cl. 17 ...... |

United States Constitution, Art. I, Sec. 9, el. 16 pacaee.

hrs

viii ' INDEX

> , PAGE .

United States Constitution, Amendment II .......... 6

‘United States Constitution, Amendment X .......... 21

I I UU on oc cc cccceee aces qaeeseese a4

ss 5's vendo nabesdeesead 55

ey hs ee ae le I TE oc ke Se saeeencs Me eat cae 57 |

STATE AND CoLOoNIAL ConstituTIONS AND STATUTES

Alabama Constitution of 1819 .............0..0000. 47

California Constitution of 1849 ................ er

Florida Constitution of 1868, Art. I ..............5. 48

Florida Laws of 1913, ec. 6532, See. Ds aria ni nik 48

Georgia Act 410 of Ep apesaaaeatinga EE FT CEE 48

Georgia am of Laws to 1800, pp. 35, 258, 264 46

Georgi ‘* ines) of Laws to 1800, p. Md (Act of March -

Cosagih Lawe. § SS FRRrrrrerrrirce i *

Louisiana eee of 1812 ......... ceakecandas 47

~ Louisiana Act 106 of 1886 ...............6 0088. ‘chew ae

Louisiana Act 121 of 1896 ........... Ser ery ee 50

ee Te ree rere ree 50

Louisiarfa Act 30 of 1915 (Extra tion of Legis.) . 50

vt 5. eee eee 48

Massachusetts Acts Oe eee ee 47

Massachusetts Province Laws 1692-3, ec. 32 (Act. of

. £ § ° & Serer 18

Massachusetts Province Laws 1702, ¢. 12 (Act of Nov.

21, 1702) ..... Pash: hideiSedenesene okies 18

I Acts and Resolves of Province of “Massachusetts

7) 2... Serre iene wk % 14, 20

Mississippi Act-of 1858 .......... KANkUNASKSREASREA 55

Mississippi Constitution of = Sashes seis nsaakes 47

Mississi ipPi Oe eee 50 -

I New Hampshire Laws OT fo of June 1, 1687) . 18

II New Hampshire Laws 389, 526 ......:.....2..,. 18

_ IIT New Hampshire Laws 336, 525, 525.96 (Act of

RS Ei a Ra REN 19, 20

_V New Hampshire Laws 766 (Act of Fone 16, 1791) ” 46

TI Nevill 86, N. J. Acts 1718, c. XXX ..............., 18, 48

‘New Jersey Act of June 9, 1820, Sec. Il (N. J. Digest

I nwo it bad ce ncds o56a%ga ds

New Jersey Act of heerine 10, 1825—Comp, Laws

a PLC edn ck des be4cGaee hese tan Nese

INDEX ix

PAGE

New Jersey Act of May 17, 1906 (P. L., p. _ rere 48

New Jersey Laws of 1851, p. 335 ................ ie

New Jersey Stats. penta 2 ot eh iekaenék Mina eel 50, 51

I ~~ Colonial Laws, p. 845 (Act of’ May 19,

y ee ee eer ete ee Te TTT

II New York Colonial Laws, p. 1067 (Act of Dee. 16,

SRS eS RCE ee eek ape er eee —+18

New York Laws of 1912, ¢. 318 ..... 2.0... eee eee oe

New York Laws of 1945, <2 Serre 53

Oregon Laws of 1917, ec. 276, p >: ae re - §0°

Pennsylvania Act of J une 15, P 836 (5 Stat. 49) . ree 45

Pennsylvania Act of June 25, ES Aare 53

Plymouth Colony Laws, Part ios. s 04 dhe 18

Plymouth Colony Laws, Part Il, p 2 ee eye 18

Plymouth Colony Laws, Part Iii, 282 (Revised Laws, ~—

1671), c. XI, "96 2 Tere eee a

Acts and Laws of Rhode Island (1730) 7 Seer 15, 16

_ Rhode Island Digest of Laws, 1844, p. 533, Sec. 6 . 49

Rhode Island General Stats. 1872, Tit. > @ & Sec.1 48

Rhode Island General Laws, 1909, c. 203 ........... 50

South Carolina Acts of.1896 ....:........... 0.0000 —— «6

Texas, Republic of, Act,of December 19, 1836 ........ 47

Texas Laws of 1913, RP OTIYT eT T rere Te 53

Texas. Laws of*1925 ‘(1936 Rev. Civ. Stats. Art 4026, |

ons y occ cane ees awonees 50

Virginia Code, 1887, ee gnc ws ade 49, 50

Washington Act 225 of 1927, Sec. 142 ........... oa

‘Washington Constitution, Art. og SO Pree 47

Washington Constitution of 1889, Att. XXIV, See. ‘yy 49

“MisceLLanzous

House Doc. 804, 66th Cong. 2d Sess. .............65. 57

_—— Joint Res. 225, 79th Cong. 2d Session, 29 L. D. -

DE Rates pea Rect h a LAheenanesbaaes saean see’

Northwest Territory Ordinance (adopted by Congress

- __ of Federation on July 13, 1787) ...........5.604. 42

7 Op. A. = eee Lei Shoe ba Shen wh eR he A 57

8 Op | Ne eee bende pants sessess 57

34 Oo. AG. 498 ere renee posteessedocecsives- > a

Seetie ieanoet SS Fears ce ceadaba was eit 58

ee ee ED So ic kn dudes tas endscesnecenas 21

Webster’s New International Dictionary (1938 ed. a 33

In THE

Seaman Court of the united States

OcToBER TERM, 1945

No. 12, Original

Unrrep States on- Anamnava,

ea Plaintiff,

vs.

State or Cairornn,

- Defendant.

ati. >

BRIEF OF THE NATIONAL ASSOCIATION OF -

ATTORNEYS GENERAL, AMICUS CURIAE

_ Statement

The N athends ‘Acveitetin of Attorneys General is an

_ organization composed of the Attorney General of each

State. One of the cardinal purposes of said Association

is that of enabling its, members, through cooperative and

concurrent effort, to carry out their sworn duty of de-

fending and protecting the interests of the States they

respectively serve.

- Notwithstanding the fact that the icin purpose

of this litigation is limited to establishing ‘‘the rights .

of ‘the United States in the bed ‘of the Pacific Ocean |

adjacent to the coast of California beginning at low-water

mark and extending seaward a Oyse- neers miles’’,*

* See Motion for Leave to F ile Complaint and Complaint, p. 2.

we observe on page 4 of the Statement in Support of

‘Motion to-file-the complaint the startling assertion -that

neither the original thirteen States nor* those subse-

yg admitted into the Union on an equal footing with

e original thirteen, ever owned the lands underlying the

three-mile belt; and the Government’ s brief repeats this

contention (p. 10).

a e assertion that the several States never wah the

underlying their coastal waters is of sufficient im-

portnes in itself and in its implications to challenge the

‘grave concern of all of the States and the Attorneys

General representing them.

This action attempts. in effect to. force the uncompen-

sated transfer to Federal ownership by judicial decree

of a considerable portion of the resources of a State.

Plaintiff evidently intends, even though the complaint |

describes only one State, to undertake to establish title

‘to the submerged coastal lands of all of the States. For

that reason this Association has requested permission to

= present its views on the i issues involved.

The surprise, and even alarm, which have followed the

Government’s assertion that none of the States ever

owned the submerged lands underlying their coastal

waters,” has not been mitigated by the pronouncement

found on page 2 of the Statement in Support of Motion,

‘that this suit does not involve any bays, harbors, rivers

or other inland waters; for, in attacking the title of the

States to lands beneath coastal waters, the Plaintiff is at

the same time attacking the authority of the cases in

which this Court has recognized the title of the States to

* We shall use the sn “submerged lands” in. y ee to land

below low-water mark, and specifically those lands claimed by

- Plaintiff in its Complaint, and “coastal waters” in referring to -

waters sometimes described as within the maritime belt, the three-

mile limit, or the marginal sea.

_ submerged lands underlying inland navigable waters. In-

deed, the Government now asserts that this long line of

-<@ases is unsound! (Brief, pp: 11, 72)... |

To support its theory, Plaintiff begins by isidene this |

Court to sever the principle governing coastal waters

from the broad principle of law laid down by this Court

in humerous decisions affirming title in the littoral States

to lands underlying all navigable waters. Yet halfway

through its brief Plaintiff admits that it is attacking the

_ whole principle which has up to the present time recog-

- nized State ownership of navigable waters and the lands

underlying them as an incident of State sovereignty. Ac-

ceptanee of Plaintiff’s views would impair even the legal

basis which has hitherto. supported the title of both coastal

» and inland States to the beds of navigable. waters in bays,

harbors and rivers.

To obviate the prolixity of pointing out those recog-

nized differences among the several States in matters

affecting the inception of sovereignty or relating to. the

proprietorship of lands within their boundaries, the Na-

. tional Association of Attorneys General will *restrict

itself, insofar as it is reasonably possible, to legal prin-

ciples and facts of uniform application to all of the

States, without prejudice to any State’ or States that may

have additional grounds for establishing title.

Introduction to Argument

Since the present case is before the Court at this stage ‘

“fon the pleadings’’ (Govt. Br., p, 6), we shall show first.

that the complaint sets forth no tenable basis for a claim _

of Federal ownership of submerged lands (Point I, infra).

We shall next show the early origins of the title of the

States, and of the colonies before-them, to the lands under

navigable waters, including coastal waters, and the re-

peated assertion of that title in legislative acts, treatises

and judicial opinions (Point II, infra). This will make

plain the error of the Government’s contentions that the

theory of ownership within coastal waters is a new concept

_ (Govt. Br., p. 7) and that the Original Thirteen Colonies

never ‘claimed ownership in the submerged lands under

coastal waters (Govt. Br., p. 10). —

We shall next show fat the Federal Government has

acquiesced in-the States’ ownership in coastal waters for

so long that the point is no longer open to dispute (Point

Ill, infra). This is not simply a claim of estoppel,. as

the Government seems to treat it (Govt. Br., p. 12), but

an instance of practical: construction and long-continued. .

recognition evidencing an established rule of property that.

should not be overturned.

Finally, we shall show. that an attempt to lay down a

-new rule for submerged lands under coastal waters, dif-

ferent from that which the Government concedés has al-

ways been applied in bays, harbors and inland navigable.

waters, would open a Pandora’s box of complexity and

trouble (Point IV, merey:

. ARGUMENT

POINT I

Plaintiff’ a complaint sets forth no suiaiibe basis for

any claim of title to submerged lands. |

Plaintiff’s. claim that. it. has title to silane lands

- under coastal waters of California and the other. States,

including the Original Thirteen, States, is not based on

any deed or cession from the States. It is not based on

.. ease law, for the cases all hold that title to. submerged

lands is in the States. -It is not based} on statute, for Con- |

gress has passed. no. statute purporting to give the Fed-

eral Government. any title to submerged lands. Nor, as

we shall show, is there any basis for the Federal Govern-

'ment’s sesh in the United States Constitution:

| Pare inh ae

| |: “a -

The lack of informing avermentsin’the present com- °

plaint, relative to the origin and nature of Plaintiff’s title,

leads us to question whether it has any foundation at all

for the claim it makes.: To justify position in making .

this statement, we make the follo ohservations:

1. Plaintiff says in its Statement (p. 3) that its rights

in submerged lands under coastal waters have never been

adjudicated by this Court. This really is an admission

that, even if all the cases asserting State title to sub-

merged lands were explained away (which clearly cannot.

be done), there still is no decision which affirms Federal

ownership of lands in coastal waters. ;

Were it true that this Court: in the course of a century

_and a half had made no such adjudication, it would not

help Plaintiff’s case. It would only afford additional evi-

dence that State ownership is the established rule and

thus still.further discredit. Plaintiff’s present claim. See

Point III, infra. In other words, the Federal Govern-

ment has been unconcerned or resigned to the property

' Tule of State ownership for a period long enough to

clothe its present assertion of title with a fair degree of:

skepticism.

_ 2, Plaintiff’s claim of title cannot be founded upon the

assertion in its Statement in Support of Motion to file

-_ Complaint (p. 4), that it is the function of the Federal.

Government to establish and vindicate rights in the three-

-mile belt ‘‘against the possible claims of other nations.”’

In its brief, the Government similarly urges that rights in

~ the ‘‘three-mile belt’’ ‘‘may be vindicated as against other

nations only by the national government”’ (p. 10).

“This proves nothing unless the coastal seas are different

-in‘this respect from bays, harbors and inland waters,

they

tains forts within harbors for the defense of the States’

re not different. The national government main-

ong Eagar the States * the soil. It is clear -that__| |

territory, and ‘‘vindicates’’ the rights of the States in

‘boundary rivers. In fact, even matters of disputed

- boundaries on dry land are ‘‘vindicated’’ by treaties ne-

gotiated by the national government.*

The States delegated to the Federal deivsninient the

defense of all their territory, upland as well as submerged

lands, although reserving rights with respect to their

own militia. (See United States Constitution, Art. I, Sec:

9, cl. 16; Am. II.) Yet'the fact that the Federal Govern-

- ment.defends the uplands cannot be said to afford a basis

for a Federal claim of title.to territory within a State.

By the same reasoning, the fact that it may be within the

power of the Federal Government to ‘vindicate the rights °

of the\States within coastal waters against the possible

.claims of other nations is no basis for claiming title

thereto in the Federal Government. In fact, the Consti- <<

tution recognizes that the Federal Government must de-

. pend on cessions from the States to obtain land even for

forts and other buildings needful to accomplish Federal

purposés. (United States. Constitution, Art I, §8, cl. 17.)

A cession of oceanfront land to. the Federal Government

for military purposes does not give the United States title

to the adjoining lands under the sea, nor does its use of

such waters impair the State’s-rights and jurisdiction in

the territorial waters. Hamburg American Steamship Co.

_ Vv. Grube, 196 U. S. 407 (1905).

3. Instead of alleging definitely fee a title, Plain-

tiff avers alternatively in its complaint (Par. II) that it is

either the owner of fee title to ‘‘or possessed of para-

mount rights in and powers over’’ the lands. The

Federal government’ $s paramount rights in certain specific

fields are in no wise inconsistent with State ownership.

is See, e. g.| riewold! | Hunting Boundaries with Car and Cameta in

the Northeastern Uni ed tates (1939) 29. Geographical saat

333, a 3 ¥en )

eS cet

a | iS | .

l | | wit i | pg of | | A

The United States Constitution, while giving the Congress

certain powers of regulation of interstate and foreign

commerce, confers no title on the “United States to. any

lands under coastal waters or elsewhere:

Recognizing that the Constitution did not transfer to the

United States any of the lands under navigable waters

belonging to the original States, this Court held in Mum-

ford v. Wardwell, 6 Wall. (73 U. S.) 423, 436 (1867) :

‘‘Settled rule of law in this Court is, that the shores

of navigable waters and the soil under the same in the

original States-were not granted by the Constitution

to the United States, but were reserved to the several -

. States’’.

This settled rule was again repeated in County of: St.

Clair v. Lovingston, 23 Wall. (90 U.S.) 46, 68 (1874).

‘Paramount rights’’ and fee title are not equivalent

claims. -The power to regulate commerce and improve navi-

gation, and the power to adjudicate cases in admiralty,

are both ‘‘paramount’’, but the delegation of these powers

is not and cannot be construed as a cession of the lands

underlying navigable waters. This was specifically ruled

in United States v. Bevans, 3 Wheat_(16 U. 8S.) 336, 388

ee (1818), wherein this Court held that the United States

unless Massachusetts had ceded the harbor, and that

-eession could not be deduced from the grant of admiralty

and maritime jurisdiction in the Constitution. ‘‘This’’, _

said Chief Justice Marshall, ‘‘is a question on which the

court is incapable of feeling a doubt. The article which

describes the judicial power of the United States is not -

intended for the cession of territory or of general juris-

diction.’’ The same ruling was made as to. the defense ©

powér|in-the Hamburg-American ease, (supra, p. 6).

In G@orfield v. Coryell, 6 Fed. wie No. 3280 ¢. C..

Pa. 1 ), Washington, Circuit Ju

Sane 3 |

° | , | |

could not have exclusive jurisdiction in Boston Harbor

, held that .the fcom-

8 gp o

merce power did not interfere with New J ersey’s right to

regulate oyster fishing in New Jersey waters, and gave -

the same reason (p. 551):

‘*The grant to congress to regulate commerce on the

navigable waters belonging to the several states * * *

contains no cession, either express or implied, of ter-

ritory. or of public or private Property. o

Regulatory powers granted to the Federal Government

are applicable throughout a State’s territory, and have no

relation to Federal ownership of land. Even when the

United States exercises its control over navigation by

building a dam in the bed of a navigable river, the bed of

the river thus used by the Federal Government does not

become Federal property unless the State cedes it. (James

v. Dravo Contracting Co., 302 U. S. 134, 140-1 (1937);

Atkinson v. State Tax Commission, 303 U. S. 20, 22 (1938).)

Moreover, the commerce power and the other powers cited

by the Government (Br., p. 85) operate within harbors and

on dry land, and: are not peculiar to coastaf waters or the.

soil under them. -

Not only is the complaint sendiaeinh to support a claim

of Federal ownership, but we shall go on to show affirma-

tively that the Original Thirteen States and’ those ad-

mitted into the Union later ‘‘on an equal footing’’ have

an irrefragable title to-the land under all théir navigable

waters, inland or coastal. (Points II and III ‘belew.)

POINT Il

The Pa an of the law shows that the States

- have title to submerged lands within their boundaries,

including lands under coastal waters. :

At common law, before the Revolutidh, oes .

lands under navigable waters, including coastal waters, be-|

— to the Crown, despite Plaintiff’s attempts to explain

Boe eT eat a ele

3 ie | | : y Lae, tecese

away the repeated declarations of the rule. By the Dec-

laration of Independence, the original thirteen colonies

acquired ownership of these lands from the Crown. All

States subsequently admitted have come into the Union on

an equal footing with the Original Thirteen, including own-

ership of submerged lands under their coastal waters and:

- other navigable waters. The course of decisions in Federal .

- and State Courts for a muy and a half uniformly sup- .

ports this rule.

A. The common law conception of dominion of oub-

merged lands under coastal waters.

_ Plaintiff is forced to admit that authorities prior to the

_ Revolution quite generally asserted title in the-Crown to

the lands under coastal waters (Govt: Br., pp. 7, 24-25,

116-17), and ‘that most publicists in modern times recog-

nize the littoral state’s ownership of the subsoil of

coastal waters (Govt. Br., pp. 31-32). In order to justify

. its argument that the Original Thirteen States did not

succeed to the King’s ownership of such submerged lands,

Plaintiff is forced to argue that the present recognition of

ownership is based on a different theory from the old

* claims, and that the present concept, is: ‘‘wholly- inde-

pendent’’ of the old claims (Govt. Br., p. 26)—although

this ‘‘modern’’ doctrine stems back to 1702 (ibid).

This is a fallacious distinction. Rights within coastal

waters today are the same rights asserted long before ts

Revolution, and are based-on the same basic concepts of

possessory control and appropriation of the products of

~ the°adjacent sea and of the land under it. The definition

of the width’ of coastal waters as three miles (a temporary

manifestation, not uniformly applied at any time) is merely

a limit in space imposed upon the wider claims of earlier

times.; The gdoptign of this| limit for certaih purposes

| cannot operate to transfer to, he. Federal Government ithe

” own rship of the soil which béen first in the _

uN hen in the Colonies and States. | |

eos . a7 |

} :

€

Textwriters

The fact that sovereignty over the sea is now more lim-

ited than was once claimed does not mean that ownership

of coastal waters is something new. Judge Bustamante

has pointed out that ‘‘There was territorial sea when high

seas were not free. * * * It is very important that this

historical truth be not lost sight of * * *’’. The Terri-

torial Sea (1930) 6.

Until: the Seventeenth Century, nations laid claim to

great expanses of sea.‘ Later, the tendency was to limit

_ the breadth of coastal water by the extent of actual pos-

' session effected by physical control through coast artil-

lery.’ This limitation later crystallized into a rule of

thumb under which independent states were recognized as

the owners of submerged lands extending three miles from

their coast. Still later, the doctrine became severed from

its original factual basis, and the three-mile limit’ was

retained as a convenient measure for certain purposes

even after the range of- cannon increased.

All pre-revolutionary English textwriters uniformly as-

serted the King’s ownership of the bed of.the ocean sur-

rounding the British Isles,* sometimes described as the

“narrow seas’’.’ In making these assertions of title, they -

‘ Hall, International Law 1880) See. 40, pp. 125-27, id. (8th ed

2S 189-92; Fulton, The Sovereignty bas the Sea 7

1 ’ .

- § Fulton, supra, pp. 537, et seg.

* Bracton, De Legibus et Consuetudinibus Angliae (1569), lib. 2, c.

2, fol. 9b (I Swiss ed. 71, 73); Selden, Dominion of the Sea

(1652) 2, Bk II, pp. 251, 274-75, 365-66, 384-85; Callis on

oa gt 2d ed. 1685) pp. 39, "41-42, 44, 53; Bacon’s Abr. (3d ed.’

) Bk. 1, 623n.; Bk. 4, 153, 156, 157; 2 Blackstone’s Comm.

a d ed..1768) 261-2. See also Hall (R. G.), Right of the Crown

“in the Sea-shores of e — ( _ in A ‘to Answ., pp.

28-31. !

" Hale, De ie Maris, (qirc. 1676), c. IV, pp. i“ 1, ¢&. VI, p. 31,

oT Hargrave’s Law Tra¢ts (1787) ; 1 Roll. ‘Ab (1668) J |

i | | ae |

;

| it

were fully consistent with the views then Laaal later ap-

proved by writers on international law..

As early as 1598, Albertico Gentili, an eminent contempo-

rary of Francis Bacon and the precursor of Grotius, clearly

expressed the concept that a maritime nation owns its

coastal waters.*

‘‘The Argives oncé expostulated with the Athenians, .

because the Athenians had allowed the Spartans, who

- were enemies of the Argives, to pass over their sea,

although it’ was provided in the treaties, that neither

should allow the enemy to pass. through the places

which were under their control. The remonstrance was

justified, since the sea is a portion of the land, * * °

as our jurists admit. The adjacent part of a sea be-

longs to one’s dominion, and the term ‘territory’ (ter-

ritorium) ts used both of land and water.’’*

A quarter of a century later Grotius, in expounding the

freedom of the seas, yet conceded that ‘‘sovereignty over a

part of the sea is acquired * *** in so far as those who sail

over the part of the sea along the coast may be constrained —

from the land no less than if they should be 7 the land

itself * @ #)) 2° ;

The reasons for the sliowiinn of ownership in the mar-

ginal sea were stated by Pufendorf in 1660 and 1672: as

being based on fishing and the —— ~ region.”

* Gentil, De Jure Belli (1598) 1 Bk. III, c. XVI 629. (Trans of 1612

ed. in Classics of International Law, ‘1933, p. 384.).

* Italics throughout the brief are ours,-unless otherwise noted. -

1° Grotius, De Jure Belli ac Pacis (1625) Book II, c. III § XIII,

p. 130 (Kelsey trans. of 1646 ed. in Classics of Int. oh 1925,

_' p. 214) ; id. § IX, pp. Sars trans. p. 210.

" Elementarium Jurisprudence Universalis (1660). Book I, p ql

(Trans. ‘of 1672 ed. in Classics of Int.. Law, 1931, p. 28) ; De Jure ;

Naturae et Gentium (1672) Book IV, c. V, |pp. 383-84, 385 (Trans.

of 1688 ed. ini, Classics of Int. an pp. 562,565). | |

~ |

| ly

F 12

Quantihe was more than once attributed to the possi-

bility of exclusive appropriation ’by the littoral state,” and:

justified because of the possibility that the resources of

the ocean-bed might otherwise be exhausted.” We shall

show hereinafter (pp. 17, 44, et seg.) that the colonies be-

fore the Revolution and the States immediately afterward

_ repeatedly exerted their ownership in coastal waters for

the preservation of fisheries, pursuant to the same prin-

ciple set forth by Pufendorf.** ‘

In 1703 Cornelies ‘Van Bynkershoek suggested that the

extent of effective appropriation in his day was the ex-

tent of cannon range. That, he said, ‘‘is as far as we -

seem to have both command and possession. I am speak- —

.ing, however, [he warned] of our own times, in which we

. ™ Vattel, Law of Nations (1758) Book I, c. XXIII, § 289 (Fenwick.

- “ trans. in Classics of Int. Law, 1916) pp. 108-09; Selden, Dominion ~

of the Sea-(2d ed. 1652) Bk. II, pp. 288, 298, 357, 363-70, 373-75,

441-42; Hale, De Jure Maris, supra, note 7, p . 10; Von Martens, ;

Law of Nations (1789) c. IV, § 10, id. (Ast yo ed. 1795) p. 165.

Hall (W.E.), International Law (8th ed. 1924) 189 states the =

proposition in-modern terms. He treats the disappearance of “

travagant pretensions” as based on recognition that possession aa

vast seas was found to be unreal, but asserts that the marginal sea

is capable of appropriation and “is always appropriated” (p. 190).

*8 See, e. g., Vattel, Law of Nations (London, 1758; Fenwick trans.

in Classics of International Law, 1916) Book’ I, c. XXIII, § 287.

“The various uses to which the sea near the coasts can be

put render it a natural object of ownership. Fish, shells,

pearls, amber, etc. may be obtained from it. ow with respect

-to all those things, the resources-of coast seas are not inex-

haustible, so that the Nation to which the shore belongs may

claim for itself. an. advantage thus .within its reach and may

- make use of it, just as it has taken possession of the lands

which its people inhabit.” (p: 107 of Fenwick transl.) -

See also’ Selden, Dominion of the Sea (2d ed. .1652). Book I,

c. XXII, p. 141; Pufendorf, De Jure Naturae et Gentium, supra,

~ note 11) pp. 383-84.

ue bn works: 0 Nadagl Grotius, Pufendorf ond ve were among ‘the

‘of gee lawyers Revolution.

(E cs, The Influence 0 a ot, wre'( 3 Am Jot

Int. Law 547, 549-52.)

. Chief Justi d i stice peony refe to Bynker-

| . shoek, Groti fendorf and |Vattel as familia oew m..

‘| early cases, a _— 9 |Crancl isis) | |

use those engines of war; otherwise I should have to say

in general terms that the ‘control of the land ends where

the power of men’s weapons ends; for it is this, as we

have said that guarantees possession’.

By the time of the Revolution, the range of guns actu-

ally in place on the shore was approximately one marine

league and the distance within which the State could

then assert control over its coastal waters formed the

original basis for the present minimum three mile do-

minion of coastal“water.** It furnished, indeed, the legal

- foundation for Lord Stowell’s decision in The Anna

where, after paraphrasing Bynkershoek’s formula, he said

that since the introduction of firearms, the boundary of

territorial waters ‘‘has usually been recognized to be

about three miles from the shore’’.” This assimilation

of the cannon shot range to the three mile distance of

coastal waters persisted—fg thé nations that adopted it— |

long after the science of grdnance had considerably ex-.

tended the range of artillery.

Ownership of the bed of coastal waters ‘is confirmed

‘by the treatises most nearly contemporary with the

Revolution. Von Martens i in 1795 declared :”

%° De Dominio Maris (1703) 364 (trans. of 1744 ed. in Classics of

Int. Law, 1923, p. 44); see also. his Quaestionum Juris Public

(1737) lib. 1, ¢. VIM, p. 59: “imperium terrae finiri, ubi finitur

armorum potestas.” ;

The history of the doctrine of. cannon range, and the owner-_

ship of subsoil by the littoral state is also discussed in Raestad, ~

La Mer. Territoriale (1913) c. I-VIII passim; Fraser, The Extent

as, a of Territorial Waters (1926) 11 Corn. L. Q.

) 457.

%®Von Meyer, The Extent of Jurisdiction in Territorial Waters.

(1937), shows the variety of widths adopted by various nations

at various times for various purposes. -

17 (1805) 5 C. Rob. 373, 385, 165 Eng. Rep. 809.

i Von! Martens, rl of Nations (Cobbett transl., || Philadelphia

). 165-66. so Angell, Right of. in Uys Waters,

and in the Soil hdres Theres (Boston, 1826). 18-20, 37-38;

1 ices New York, 1826) 29; Hall i, -), Rights

aos EB 31; Wheaton, Elements’ of . International‘ Law

1 } 142-3. \ |

‘of the re e Sea-Shores of the Realm (1830) 1:7, Apdx. to

_ "The sea surrounding the coast, as well as those

parts of it which are land-locked, such as the roads,

- little bays, gulphs, ete., as those which are situated

within cannon shot of ‘the shore (that is, within, the

distance of three leagues), are so.entirely the prop-

erty, and subject to ‘the dominion, of the master of .

the coast, that he lias the exclusive right to all the.

produce ‘of it, whether ordinary or accidental, as far

as relates to things unclaimed by any other lawful

proprietor. * * * In short, these parts of the sea

surrounding the coast, ought to be looked upon as

forming a part of the territory of the sovereign who

' ° #8 master of the shore.” 7

Colonial charters and statutes

Examination of colonial charters and statutes show an

. awareness of the rights in coastal waters, quite contrary

+ to the assertion of the Government that ‘‘in none of them

is there any reference to the marginal sea’’ (Br. p. 141).

The Plymouth Colony charter of 1620 granted:

‘all the Main Lands from Sea to Sea together also

with all-the firme Lands Sotles. Grounds Havens

Ports Rivers Waters Fishirigs * * * and all and singu-

‘ lar other Comodities Jurisdicions. Royalties Privileges

Franchises and Preheminences both within the said —

Tract. of Land upon the Main and alsoe within the

Islands and Seas Adjoining * * *’? (I Aets and

Resolves of Province of Massachusetts Bay 1; Apdx. .

to Answ., pp. 40-41).” eee: |

bo - fy dba df 29 Cali ornia’s drigi three-volune answer is iréfett 1 to{in this | |

Answ. ‘. my an ayn wages a De s

| |, | ‘ I

| ‘With respect to this charter, which shows the pattern of

maoat of the other colonial charters,” Gould on Waters (3d

ed. 1900) states that (pp. 70-71) : |

* “the other words employed, and expecially. the word

‘royalties’, in connection with the manifest. purpose ~

of the grant, were held to convey to the colonial gov-

ernments the right and jurisdiction of the Crown

in the shores of navigable waters, and in, the soil un-

der such waters’’.

| The Rhodé Island davies granted by Charles’ II in 1663

_ follows the same principle, in that it reserves ‘to British

| — “full and free power and liberty to continue and

20 This common Bters is is followed in the Virginia dl charters of 1609

-Poore, p.-

and 1611-12 (2 Poore, Federal and State Constitutions ‘(1878)

1897, 1903; Apdx. to Answ., p. 39); New Hampshire grant of

1629 and New Hampshire charter of 1635 (2 Poore, pp. 1271,

1273; Apdx. to Answ., pp. 46-7) ; Maryland’ charter of 1632 al

Poore, p . 812; Apdx. ‘to Answ., p. 50) ; Connecticut charter of

1662 a ‘Poore, p. 257; Apdx. to Answ., p. 48); Rhode Island

(2 Poore, p. 1602) ; Carolina charters of 1663 and

1665: (2 Pqore,: pp. 1383, 1390-1; Apdx. to Answ., pp. 51-2) ;

49-50) ; 1674 grant to James, ‘Duke of Vor al

Georgia charter of 1732 (1 Poore, p: 373; Apdx. to Answ., PP.

53-4). A variant, with even greater emphasis on ow nership. in

séa areas, is the. Maine grant of 1639 (1 Poore; p. 775, partly in

Apdx. to Answ., pp. 43-4) :

“Alsoe the north half of the Isles of Shoales together with the

Isles of Capawock and Nawtican neere Cap Cod as also all the

islands and iletts lyeing within five leagues of the Mayne all

along the aforesaid Coasts * * * with all and singular the

Soyle and Grounds thereof aswell drye as covered with water

. and all waters Portes Havens and Creeks of the Sea and Inletts

of the said Province of Maine * * * ise a with the Fising of.

ver kinde as well Pearle

ounde within the said Province. n a oe * and ts

f\th nie aivil

7 ay er

orlady. any other either in nthe Sea en rane nd all |

ilver, Pearle Precious Stones a hich shall ae

| d [Pr

baie ius | A ete a

; mentioned, Apdx. to Answ., p. 50) ; Massachusetts .

_ Bay charter of 1691 (1 Poore, p947; Apdx. to Answ., p. 43);

‘|

16 A

use the Trade of Fishing upon the said Coast im any of _

the Seas thereunto adjoining * * *’’, and provides ‘‘that

if any of the inhabitants of said Colony * * * be indus-

' trious in the Discovery of Fishing Banks in and about the

said Colony, we will from time to time give and allow all

due and fitting Encouragement: therein, as to others in

eases of like’ Nature * * *’’ (Acts and Laws of Rhode

Island (1730) p: 9). The Connecticut charter of 1662 and

the Massachusetts Bay charters of 1629 and 1691 contained |

the same reservation (1 Poore, Federal and State Con-

stitutions [1878]- 256, 941-42, 947).

With respect to wih reservations of the right of fish-

ery, Angell said i in his treatise on Tide Waters ( 1826) : |

on oe By a reservation of this kind, it is clear. that

‘the king considered himself as the undoubted and

legal proprictor of the tide waters; for if he had not

thus considered, then to qualify. his grants by such

a reservation was manifestly absurd’’ (p. 38).

Other colonial charters, set forth in the appendix to_

California’s answer, likewise contain specific mention of

the adjoining seas, or of lands, soils, waters, fishings,

royalties, and other provisions designed to convey the

king’s title in the beds of coastal waters.”

- The charters granting all islands within a specified dis-

tance of land are also relevant, for the common law based

the ownership of islands upon the ownership of the ocean

" 1584 charter to Sir Walter Raleigh (Apa. to Answ., pp. 36-37

1629 Massachusetts charter (Apdx. to Answ., PP 41e42) ; 1

- charter of Maryland (Apdx. to Answ., pp. 50-51) ; 1662 charter

of Connecticut (Apdx. to Answ., 5 Pi 48) ; 1663 and 1665 Carolina

charters (Apdx. to Answ., pp. 51-52) ; 1732 charter of Georgia

(Apdx. to Answ., Ric 53- ). The 1691. Massachusetts Bay

, charter fixes limits that take in coastal waters (1 Poore, p. 947).,

bed. The 1691 charter of Massachusetts Bay Colony

granted all islands within ‘‘tenn Léagues directly opposite -

-to the Main Land’’ (Apdx. to Answ., p. 43). Similarly,

the Virginia charter of 1609 grants all islands ‘‘within

one‘hundred miles along the Coast’’ (Apdx. to Answ., p,

32), the New Hampshire charter of 1635 all islands within

‘*five leagues distance’’ (Apdx,-to Answ., p. 47), and the

Georgia charter all islands ‘‘within twenty ledgues’’

(Apdx. to Answ., p. 54), to cite but a few examples. The

‘inclusion of these islands necessarily included sea areas.” —

. An early statute expressing the same principle of owner-

_ship within coastal waters is the enactment of the Plymouth

General Court in June 1652 that:

‘@ ¢ © if any man take a drift whale of att the sea and

bring or tow it to the shore, it [shall] be accounted his

owne goods; but tf within a harbour or mile of the

*™ See Blackstone's Commentaries (3d ed. 1768) Bk. II, 261-62:

“in case.a new island rise in the sea, though the civil law

ives it to the first occupant, yet ours gives it to the king.

d as to lands gained from the Sea, either by alluvion * * *

or by dereliction * * * if the alluvion or dereliction be sud-

den or considerable, in this case it belongs to the king; for,

as the king is lord of the sea, and so owner of the soil while

it is covered with water, it is but reasonable that he should

have the soil, when the water has left it dry.”.

See also Hall, Rights of the Crown in-the Sea-Shores of the.

Realm (Apdx. to Answ:, pp. 28-31) ; Secretary of State for India

v..Chelihkani Rama Rao, L. R. 43 Ind. App. 192, 32:T. L. R. 652

(P. C. 1916).

-**See the modern calculations of a State’s three mile limits where

islands are involved. Bosarge v. State, 23 Ala. App. 18, 121 So.

427 (1928), cert. den., 219 Ala. 154, 121 So. 428 (1925), cert.

den., 280 U.-S. 568 Co, ; Ex parte Marincovich, 48 Cal. App.

474, 192 Pac. 156 (1 ; State v. Ruvido, 137 ‘Me. 102-(1940).

/ shore they be taken they be reputed the townships

where they are brought on shore.’’™ .

An act of the General Court of Plymouth Colony, in .

' July, 1684, took.note of the damage done from catching .

mackerel with seines ‘‘att Cape Codd or else where near .

any shore in this Colonie’, and enacted that no person

should ‘‘catch or draw on sliore any mackerell, with nett

or netts, sayne or saynes in any parte of this Colonie.”’ |

(Plymouth Colany Laws (1836) Part II, p.-205).. Many

- other colonial fishing regulations” testify to the. impor-

tance which that industry had in early times, and thus

- to the reality of the colonies’ concern with jurisdiction of .

coastal waters.

. These fishing regulations take on_ added importance in

the light of this Court’s statement that control over fish-

eries is part of the ‘‘territorial jurisdiction’”’ of a State

(Manchester v.. Massachusetts, 139 U. S. 240, 258), and

that it is founded upon ownership of the underlying land

(McCready v. Virginia, 94 U. S. 391, 394).

- There are examples of other exercises of jurisdiction in

coastal waters during colonial times. A grant made un-

der a 1707 Rhode Island statute, referred to in Armour

‘& Co. v. City of Newport, 43 R. I. 211, 110 Atl. 646

* Plymouth Colony Laws, Part I, 96-97. See also id., Part III,

282 ( Revised Laws, 1671, c. XI, § 2):

“* * * all such Whales as are cast up within the Bounds of

any particular Township, or floating upon the stream, within

a’ Mile of the ‘Shoar, against the said Bounds of any. Town-

ship, shall be amas the respective Towns falling within —

their Bounds as aforesaid * * *.”. :

° % Plymouth Colony Laws (1836), Part III, pp. 282, 283-4, Revised

Laws 1671, ch. XI, §§3, 4; I-N. H. Laws, (1679-1702) 207,

Law of June 1, 1687; Mass. Province Laws 1692-3, c. 32, Act of

Nov. 26, 1692, §§ 1, 2; Mass. Province Laws 1702, c..12, Act of

Nov. 21, 1702; 1- Nevill 86, N. J. Acts, 1718, c. XXX; IN. Y.

Colonial Laws, p. 845, Act of May 19, 1715; II N. Y. Colonial

Laws, p. 1067, Act of Dec. 16, 1737; see Arnold v. Mundy, 1

Halst. (6 N. J. L.) 1, 91-92 (1821).

(1920), conferred the right to build a wharf for eight

huridred feet beyond low water mark.

To combat erosion on an exposed beach at Rye, New.

Hampshire, the General Assembly of that colony in 1763

passed ‘‘An Act to Enable the owners of a Piece of Marsh

or thatch ground lying in the: Parrish of Rye Called

Sandy Beach, to Finish a Wharfe to Prevent the Tide

from carrying away said Beach’’ (III N. H. Laws (1745-

74) 336). The Muscongus grant of March 13, 1629, made

by the New England Council under the 1620 Plymouth

charter covered lands on the coast of Maine, ‘‘together

with all Sd land yt ly & be within ye Space of Three miles

within ye Space of Sd land & Prmisses or any of them”’.

This grant_included islands within the three-mile space —

from the mainland. See Lazell v. Boardman, 103 Me. 292,

294, 69 Atl. 97, 98. (1907); Farrow, History of Isles-

borough, Maine (1893) 1-2.

A square ruling that the province of New York included

coastal waters outside the. harbor was made by the co-

lonial Supreme Court in the case of Kennedy v. The Sloop

Mary & Margaret Thomas, Fowles Reclaimant ‘in 1739.”

The sloop had transferred foreign gunpowder and mo-

lasses to a pilot boat at a point between Sandy Hook and .

the Narrows. The goods having been seized on the pilot

boat and a libel filed against the shop in the Court of ~

Admiralty, the owner of the sloop applied for a writ of

prohibition on the ground that the offence was committed

within a county and the Admiralty Court therefore had

nv jurisdiction. His argument that ‘‘the whole Colony

of New. York is divided into twelve counties and that

there is no part of said Colony but is contained in the

said Counties or one of them’’, was sustained by . the

_Supreme Court, as-against the Advocate General’s argu-

26 See 6 O'Callaghan, Documents Relative to the Colonial History

of New York (1855) 154-55. It is also of interest .that the south-

westetn corner of the province of New York was in the waters of

Lake Erie, 8 id. 434, 438. :

20 5 ‘

ment that the counties nearest to the place where the .

illegal transfer took place were ‘‘bounded by the waters’’.

In other words, the court held that the county wenene

includéd waters outside the harbor. :

‘Some of the boundaries fixed by the colonies specifically

included water” and nearby islands.” —

It will thus be seen that sovereign ownership in the .

coastal seas has always been part and parcel of the law

of sea rights. The freedom of the seas’has not affected

this right, but only curtailed any extravagant exten-

‘sions of it. When we-turn from International Law to the

“law of England and the English colonies up to the time

of the Revolution, . we find the proprietary right of the

Crown in the coastal waters and the bed of the sea was

likewise firmly established.

B. The States _ the title of the Crown to sub-

“merged lands.

_ Under English rule the Wasi colonies were free and

independent of each other. In separating from England:

they maintained their character as separate independent

states, and each acquired the King’s former title to all

lend within its boundaries, including ceecedte lands

\ under coastal waters.

By the Declaration of Setinalenns, in July i776, the

several colonies, united for purposes of common defense,

asserted their new character as ‘‘Free and Independent —

States.’’ As’ such states, they succeeded to all rights.

. which the British Crown had ever possessed. Their owner- |

ship of land was confirmed by ‘the treaty which ended the

Revolution, and was never surrendered to the Federal

*7T Acts and Resolves of the Province of Massachusetts Bay 6 642

(Province Laws 1709-10, c. 4). ;

28 IJ New Hampshire Laws (1745-74) 524, 525- (Act of Apet

29, 17683. a Dig. of Laws to 1800, p. 114 ‘(Act of March »

25, 1 |

Government. When the thirteen States formed the Union

they had already existed as sovereign States, and in form-

ing the. Union they brought. with them the ‘sovereignty

that they had enjoyed, reserving all of the same except

| _ that which was surrendered to the Federal itl

. The Articles of Confederation, which ‘were re adopted only:

one year later, provided in Article II thereof:

“Bach State retains its sovereignty, freedom and

independence, and every power, jurisdiction and right,

which is not by this confederation expressly delegated

to the United States, in Congress assembled.”’

These Articles, atebilihins the conditions on which the

_ independent colonies joined their efforts for mutual de-

fense, thus expressly restated the reservation by the in-

dividual States of their respective “‘agversignty, freedom

and independence.’’”

The Treaty: of Peace with Great Britain in 1783, gen-

erally refgrred to as the Treaty of Paris, followed by.

several years the Declaration of Independence, and in it

we find this language:

“His | Britannic ' Majesty ideaciiilans’ the - oate

United States, viz... New Hampshire, Massachusetts

Bay, Rhode Island and Providence Plantations, Con-

necticut, New York, New Jersey, Pennsylvania, Dela-

ware, Maryland, Virginia, North Carolina, South |

Cafolina, and Georgia to be free, sovereign, and in-

dependent states; that.he ‘treats with them as such,

and for himself, his heirs, and successors, relinquishes

all claims to the Government;'propriety and territorial

rights of the same, and every part, thereof.”’ - —

- 2° Provisions which would bisa authorized the Congress to limit

or ascertain the bounds of any Colony were expressly rejected

(5 Journals of the Continental Congress 681-82; 9.id. 806-09;

Burnett, The Continental Congress (1941) 250, 341), thus empha-

sizing the States’. retention of their ey in the absence of

voluntary cession.

oe |

This Treaty reiterated the separate sovereignty of’ the

individual States and a definite intention to deal with

these ‘‘free, sovereign and miGepentent states * * * as

such.”’ :

The boundary in the Treaty, wiieiiiia all islands with-

in twenty leagues of.the shore (Govt. Br., p. 110), cer-

' tainly relinquished all the King’s rights i in coastal waters.

Since we have seen that sovereign ownership of coastal

waters had been definitely established before the Revolu-

tion, the King’s relinquishment to the ‘‘frge, sovereign

' and independent States” -of ‘‘all claims to° the govern-

ment, propriety and territorial rights of the same’’ clearly

gave the Original Thirteen States fnll tights in their

‘ coastal waters and the lands beneath them. Those rights

_ had already been fully established both in international

law and by English law. |

With even greater care and caution hen that exercised

in drafting the Articles of Confederation; the original

thirteen States spoke their will and determination, relative _

‘to the reservation. of sovereignty, when the Constitution

of the United States was adopted. -Pursuant to requests |

by the conventions of the States which ratified the Con-

stitution, ten amendments were offered at the session of

the First Congress in 1789, expressly designed to show

the reservation of state rights and sovereignty, except

such as were specifically granted. by them to the United

States in the Constitution. Amendment X is illustrative:

‘‘The powers not delegated to the United-States by

the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the

‘people.’’ ,

The preamble to the first ten amendments jeilienten’ that

these amendments expressed views pronounced by.a num- |

ber of the States at the time they adopted the original

‘Constitution, in order to prevent ‘migconstruction of the

Federal Government’ 8 powers.

We recognize that the States entrusted certain external

powers to the central government even under the Articles

of Confederation,” and that broad powers with reference

to foreign affairs weré granted in the Constitution. Never-

theless the fact remains that such grants of power were

not cessions of territory and the Federal Government ac-

quired no title to land within any State’s boundaries by

either .of ‘these documents or under any other grants from

the individual States,-except the cessions of the, North-

west Territory to-the Congress of the Confederation and —

except grants made specifically under Article I, Section 8

of the Constitution.

For title sources thus we see that the several States (1)

asserted complete sovereignty in the Declaration of Inde-

pendence; (2) expressly reserved that sovereignty in the

Articles of Confederation; (3) received a veritable quit-

claim of all of Great Britain’ s territorial rights by the

treaty of peace; and (4) again reserved: their poenanty

and ownership i in the Constitution,

There -was no interval after the nvasbitin during

which coastal waters were without an owner and claims

thereto lay dormant, to emerge later in a new and inde-

pendent form, as the Government’s theory assumes.

‘Jefferson’s note in 1793, announcing that the United - -

- States. would exercise. its territorial. protection for three

Seographical miles from the seashore, and interpreting

“that as the utmost range: of a cannon ball, was in no way

31 This is all that the Court said i in United States v. Curtiss Wright

Export Corp., 299 U, S. 304 (1936), which the Government cites.

_ repeatedly (Br., pp. 75, 76, 78, 90, 157). Ownership of submerged

‘lands under coastal waters does not depend upon external sov-

ereignty. It is a rule of property law, as recognized in the long

wom Aa of decisions in this Court cited —— (Pp. 27-35,

infra >

oS : .

e’

inconsistent with the States’ territorial ownership, as the

Government vainly contends (Br., pp. 130-34). He based

his conclusion upon the previous authorities, which we

have seen recognized ownership in coastal waters; his note

merely fixed for the time being the limits of the claims

‘which this country. would protect, just‘as it protects

islands, shore and upland. It had become a rule of law

by this time, regardless of the historic ba nig reason,”

that a State had territorial dominion lover submerged

lands lying seaward from the shore to a djstance of at

least three miles, just as the British Crown had held title

to the beds of all navigable waters within the jurisdiction

of the Crown. Se Ne .

This Court from an early. time has recognized. and af-

~ firmed that the States and not the Federal Government.

acquired as a result of. the Revolution whatever title the .

Crown had ever possessed. As was said in’ Harcourt v.

Gaillard, 12 Wheat. 523, 526 i in 1827 : .

“‘There was no territory within the United States

that was.claimed in any other right than that of

some one of the confederated States. e

In Martin v. Waddell, 16 Pet. (41 U. S.). 367, 410

(1842), in dealing with oyster fisheries under the navig-

able waters of Raritan Bay, and below low water mark,"

the Court stated:

‘‘when the Revolution took ’ slniies .the people of

each State became themselves sovereign; and in that

*° The range of cannon ‘fio longer determined dominion. Cleavage - |

had occurred between the rule and the reason.

*2 It is apparent that the land involved in the Martin case was below

the low-water mark, not alone by the use of the words “navigable

waters,” but also by the fact that oysters are grown only under

salt water arid not on the foreshore where they would be subject

to exposure at low-tide. See Nelson’s Perpetual Bpone Lane En-

cyclopedia under heading. — r

agen 25 ee ee

. ce : ~ 3 s

a. diguities held the absolute right to all their aavigible |

waters and the soil under them for their own. com!

mon use, ‘subject only to the rights since surrendered

k by the Constitution to the general government. ———

In referring to the soil under navigable - waters, ' this f

Court clearly included. lands below low water mark.

‘a

3 The Court further held: . *-

‘‘when the pedple of New J ersey took possession of

the reins of government, and took into their own

hands the powers of sovereignty, the prerogatives —

and regalities which before belonged either to the

-erown or, the ‘Par)jament, became immediately and

rightfully vested in the State” (16 Pet. at 416). a

. To the same effect Mr: Justice Field stated in Weber |

v. Board .of State Marbor Commissioners, 18 Wall. (85...

U.S.) 57, 65: (1873) that by the common law: ~~ 7.

“the title to the shore of the sea, and of fhe arms

of the sea, and in the soils under . tide waters, is, in

England, in the King, and in _ ne in the

+ state. 99 - . ;

Thereafter, i in Shively v. Bowlby, 152 U. s. 1, 14 (1894),

the Court sustained a State grant of tidelands® as against

83 Tide lands are not festricted to lands above low-water mark, as

the Federal Government asserts (Br."p. 19). That détinition was

not endorsed by this‘Court in Walker v. State Harbor Commis-

Sioners (17 Wall. at 651), nor does the othier case that the Govern-

ment cites (Gov. Br.,.p. 19), Baer v. Moran Bros. Co., 183 U.S.

. 287, indicate that the term cannot properly include " submerged .

lands. ‘In the constitutions and statutes of California and Wash-

ington, the States where the Walker and Baer cases arose, “tide -

lands” has been used at Veast five times with the obvious intention -

of including submerged lands. San Pedro R. R. Co. v. Hamilton,

16i Cal. 640, 616, 119 Pac. 1073, 1074 (1911); State ex rel. Mc-

Kenzie v. Forrest, 11. Wash. 227, 230-34, 37. Pac. 684, 685-86 -

(1895). j —

' “Tide waters,” of course; include all coastal waters. See, e. g-, '

Munchester v. Massachuse s, 139 U. S. 240, 258 (1891). —

one — under a Federal grant, and stated:

‘‘upon the American Revolution, all the rights of

the Crown and of Parliament vested in the several

States, subject to the rights surrendered to the na- °

tional government by the Constitution of the United

States,”

This Court in that same case recognized the scope of

the colonial charters. we have described above, stating

(152 U. S. at 14):

“The various charters granted by different mon-

archs of the Stuart dynasty for large tracts of terri-

tory on the Atlantic coast-conveyed to the grantees

both the territory described and the powers of govern-

ment, including the property and the dominion of

lands under tide water.”’

Numerous state cases pronounced the same deviates: of

State succession to the rights of the ‘Crown i in land under

navigable waters.”* -

The States continued to exercise various rights of own-

ership in the coastal waters, just as the Colonies had be-

fore the Revolution. Some examples of State action will

be cited below in Point ITI.

C. The doctrine of State ownership of lands under all

navigable waters, including coastal waters, is definitely

established by repeated pronouncements of this Court.

It would be difficult to find any rule of law more clearly

and. uniformly settled than the rule which recognizes the

* Banker v. Bates, 13 Pick. 255 (Mass. 1832); Dunham v. Lam-

‘ phere, 3 Gray 268 (Mass. es Nichols v. Boston, 98 Mass. 39,

42 (1867) ; Gou h v. Bell, 21 N. J. L. 156, 160 Noa F ; People

v. Trinity Church, 22 N. Y. 44 (1860) ; Coxe v. State, 144 N. Y.

396, 406 (1895) ; Armour & Co. v. City of Newport, 43 R. I.

211, 213, 110 Atl. 646 (1920) ; Commonwealth v. Newport News,

158 Va. 521, 541. 164 S. E. 689 (1932). ©

title of the individual States to all lands under navigable

waters within their boundaries. This is derived from and

consistent with the English common law rule, that the

King’s ownership of the beds of coastal waters extended

inland as far as high-water mark:- We have been unable

to find a case which even expresses a doubt concerning .

the ownership of such submerged lands, whether within

rivers, bays and harbors, or within coastal waters.

An example of a square holding on the States’ owner-

ship of land beneath coastal waters is The Abby —

“223 U. S. 166 (1912).

In The Abby. Dodge, this Court held that the Federal

government cannot regulate sponge fishing in the Gulf

of Mexico within the territorial waters of a State™ and that

an indiciment for violation of a federal law prohibiting

the use of diving apparatus in sponge fishing must nega-.

gs possibility that the offense occurred in State

rs. It based this ruling (p. 174) on the principle

that ‘‘each State owns the beds of all tide-waters within .

‘its jurisdiction’’ and quoted its formulation of that prin-

ciple from McCready v. Virginia, 94 U. S. 391 (1876), dis-

cussed below.

‘The Government .attempts to distinguish the Abby

Dodge case on the ground that no contention was made

that the United States owned the sponges within the

three-mile belt (Br., p. 161)..° The argument for the

United States in that..case, however, unsuccessfully ad-

vanced (223 U.S. at 170-71) the same contention respect-

** The argument before this.Court showed that the territorial waters

of Florida, there in question, extended three leagues from shore,

in the Gulf of Mexico (223 U. S. at 169).

°° The Government contended there, in order to show that the

sponges were taken outside territorial limits of the State, that the

sponge-beds in question were “from fifteen to sixty and sixty- -five

miles out” (223 U.'S. at 177).

ing the emeations | nature of the three-mile belt upon

which the Government here relies. Since sponges grow

attached to the bed of the ocean far beyond low-water

mark, it is inconceivable that this Court would have held

the Federal statute inapplicable to the taking of sponges,

if the bed of the ocean belonged to the United States.

That the States retained their ownership within the

three-mile limit is established also by this Court’s deci-

sion in Manchester v. Massachusetts, 139 U. S. 240 (1891).

A Massachusetts statute of December 28, 1859, had. pro-

claimed that ‘The territorial limits of the Commonwealth

extend one marine league from its seashore at low-water

mark.’’ Manchester was convicted in the State Court of

illegal fishing within the State’s territorial waters, but

declared that the locus was on the high seas and there-

fore within the exclusive jurisdiction of the Federal

Courts. The Supreme Court upheld the State Court.

The Supreme Court said that:-

“‘sf Massachusetts had continued to be an independent ,

nation, her boundaries. on the sea, as defined by her

statutes, would unquestionably be acknowledged by all

foreign nations, and her right to control the fisheries

within those boundaries would be conceded. The

limits of the right of a nation to control the fisheries

on its seacoasts, and in the bays and arms of the sea

within its territory, have never been placed at less

than a marine league from the coast on the open sea;

* °° (139 U. S. at 257).

“The extent of the territorial jurisdiction of Massa-

chusetis over the sea adjacent to tts coast is that

of an tndependent nation; and, except so far as any

right of control over this territory has been granted’

to the United States, this control remains with the

State * * * Within what are generally recognized

as the territorial limits of States by the law of na-

tions, a State can define. tts boundaries on the sea

ee @» (p. 264).

The Government now suggests that because the offense

occurred in Buzzard’s Bay, the Manchester opinion has no

bearing on rights within the three-mile belt (Br., pp. 156-

157). The important point dealt with by the Court in

that case was not that the offense occurred in a bay, but

that the illegal fishing for which Manchester was_con-

victed occurred within the three-iile limit. The State’s

ownership of the bay was based upon its ownership of.

the lands within three miles of its shore. The Court

said (139 U. S. at 258):

“*We think it must be regarded as established that,

as between nations, the minimum limit of the terri- | .

torial jurisdiction of a nation over tidewaters is

a marine league from its coast; that bays wholly

within its territory not-exceeding two marine leagues

in width at the mouth are within this limit ait tg

In other words, the holding of State title within a bay 5

of ‘two marine leagues in width at the mouth’’ is merely

a means of applying the general principle of State owner-

ship of submerged lands within a marine league of the

coast. Its application to Bozzard’s Bay therefore consti-

tutes acceptance of the general principle, and does—not:

represent’ any special rule designed only: for bays and

harbors.

The numerous statements by this Court of State owner-

ship of coastal waters, which we shall now discuss, take

added significance from the nature of the — in the

two cases we have just analyzed.

The McCready case was not the first to announce the

doctrine of state ownership of submerged lands. It was

set forth in Martin v. Waddell, 16 Pet. (41 U. S.) 367

(1842), from which we have already quoted (supra, PP.

- 24-25).

Exactly the same language was used in the case of.

Mumford v. Wardwell, 6 Wall. (73 U. S.) 423 (1867),

as had previously noe eel in. the case of Martm v.

Waddell.

' Continuing chronologically, in Den v. The Jersey Co.,

15 How. (56 U. S.) 426 (1853), the Court had under

consideration land which was formerly under the tide

waters of the Hudson River below low water mark. In

that case the Court held that the decision. in Martin ve

' Waddell governed and that: .

. “the soil under the public navigable waters of East

New J ersey. belonged to the State’’ (15 How.; at 432). .

In Smith v. State of Maryland, 18 How. (59 U.S.) 71,

74 (1855), this Court: held: —

‘*Whatever soil below low water mark is the sub- ~

_ ject of exclusive propriety and ownership, helongs to —

the state on whose maritime border, and within whose

territory, it lies, subject to any lawful grants of that

soil by the state, or the sovereign power which: gov-

erned its territory before the Declaration of Inde-

pendence.’” |

Plaintiff’s present contention, that part of the land below .

low-water mark belongs to the Federal Government, is

directly contrary to the statement above that ‘‘whatever

_soil below low-water mark is the subject of exclusive

propriety and ownership belongs to the State.’’

Again in Weber v. Board of State Harbor Commis- .

stoners, 18 Wall. (85 U. S.) 57, 65 (1873), this Court held:

‘*By that law the title to the shore of the sea, and

of the arms of the sea, and in the soils wnder tide

waters, is, in England, in the King, and in this

_ country, in the state.’’ ei }

Here the Court refers to (1) shore of ‘the sea, (2) arms

of the sea and (3) soils. undeyp-tidewaters. It is quite

—— es

evident that these phrases do not -all mean the same

thing. Thus the decision is. not limited solely to the

strip of land between high and.low water; on the contrary.

the Court is stating a rule which applies to all lands

beneath the waters of the sea or any part thereof within

a state’s boundaries. .

The decisions on the subject are so numerous " so

uniform in affirmance of the doctrine that Chief Justice

White observed in 1876 in McCready v. Virginia, 94 U. S.

391, 394, that:

‘*The principle has long been settled in this court,

that each State owns the beds of ali tide-waters

within its enesstatiie unless they have been ee

away.’

In Shively v. Bowlby, 152 U.S. 1, il (1894), it is stated:

“By the common law, both the title and the do-

minion of the sea, and of rivers and arms of the sea,

where the tide ebbs ‘and flows, and of all the lands

below high-water mark, within the jurisdiction of the

Crown of England, are in the King. * * *”?

In its considered pronouncement of this doctrine it is

quite evident that the Court has applied the same legal

rule to those lands ‘‘where the tide ebbs and flows’’ and

also to ‘‘all lands below’ the high-water mark’’, which

necesarily includes the ‘submerged lands lying below low-

water mark and underlying the coastal waters.. The -

Court went on to hold that the soils under navigable

waters, including tide waters, ‘‘were not granted by the

Constitution to the United. States, but were reserved to

the States respectively’’ (p. 36).

- In Illimois Central R. Co: v. Minois, 146 U. S. 387, 435

(1892), this Court likewise stated, with respect to lands

under the waters of. Lake Michigan: 2

320

“St isthe settled law of this country that the own-

~~ ership of and dominion and sovereignty over -lands

covered by tide waters, within the limits of the sev-

eral States, belong to the. respective States within

_ which they are found. * * *?"

The fact that the Illinois Central case related to one of ©

the Great Lakes is by no means a distinguishing feature,

in spite of plaintiff’s attempt to classify the Great Lakes

as inland waters (see Govt. Br., pp. 257 (Ohio grant) and

258 (Wisconsin grant)). The ownership of the bed by the

State of Illinois was not based upon any doctrine peculiar

to the Great Lakes, but was pronounced as an application

_ of the doctrine of State ownership of lands under navi-

gable waters. This Court said (146 U. S. at 435):

‘“‘The same doetrine: is in this country held to be

applicable to lands covered ‘by, fresh water in the

‘Great Lakes over which is conducted ,an extended

commerce with different States and foreign nations.

These lakes possess all the general characteristics of

_ open seas, except in the freshness of their waters,

and in the absence of the ebb and flow of the tide. In

other respects they are inland seas, and there is no

reason or principle for the assertion of dominion ~

and sovereignty over and ownership by the State of

lands covered by tide waters that is not equally ap-

, plicable to its ewnership of the dominion and sover-

‘ eignty over lands covered by the fresh waters of

these lakes.” .

The pertinence of cases and statutes relating to the

Great Lakes is further emphasized by this Court’s ruling

that the Detroit River, connecting Lake Huron with Lake .

Michigan, is part of the ‘“‘high seas.”’ United -States v.

Rodgers, 150 U. S. 249, 256 (1893); cf.. The Genesee

Chief, 12 How. 443 (1851).

In United States v. Mission’ Rock Company, 189 U. 8S.

891, 404 (1903), this Court held, quoting from Weber v.

Commissioners, supra, 18 Wall. at 65, that California was

vested with the ‘‘absolute property in * * * all soils

under the tide waters within her limits.” :

_ - iz Louisiana v. Mississippi, 202 U.S. I, 52 (1906), this

Court: stated : | |

‘‘The maritime belt, that. part of the sea which, in’

contradistinction to the open sea, is under the ‘sway

"of the riparian States.’ = ¢

‘*Sway’’ is defined in Webster’s Now International. Dic- —

tionary (1938 ed.) as meaning ~ ‘sovereign power;

dominion. * * *”’ This Court considered the gulfward

_ boundary of Louisiana as having been fixed at a distance

of three leagues from the coast upon her admission to the

— Union by the Acts. of Congress providing therefor. .

In Port of Seattle v. Oregon and Washington Railroad .

Company, 255 U. 8. 56 (1921), this Court. in an opinion

by Mr. Justice Brandeis, stated (p. 63): |

“The right of the United States in.the navigable

waters within the several ‘States is limited to the con-

trol thereof for purposes of navigation. Subject to

that right Washington became, upon. its organization

as a State, the owner of the navigable waters within

«. its boundaries and of the land under the same.’

In Massachusetts v. New York, 271 U. 8. 65 (1926),

in dealing with a strip of land formerly submerged in |

Lake Ontario, this Court stated (p. 89): — e

‘It is a principle derived from the English common

law and firmly established in this country that the ©

+ 88 See pp. 48-49, inro, for the Pacific boundary of the State of Wash-

ington.

title to the soil under navigable waters is in the

sovereign, except so far as private rights in jt have

been acquired by express grant or prescription.

Shively -v. Bowlby, 152 U.S. 1. The rule is applied

both to the territory of the United States (Shively v.

Bowlby, supra) and to land within the confines of the —

States whether they are original States (Johnson v.

McIntosh, supra; Martin v. Waddell, supra) or States

- admitted into the Union since the adoption of the

Constitution, United States v. Holt State Bank, 270

US S. 49. ” - ,

A recent and decisive application of the doctrine was in

Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10

(1935), where the Court held that a patent from the Fed-.-

eral Government of an island in Los Angeles Harbor did

not. give title below high-water mark. The City of Los

Angeles claimed under a later grant from the California

Legi .ature covering ‘*tide lands and submerged lands.’’

- (p. 12). In an opinion by Chief Justice Hughes, the

Court. said (p. 15):

_ “The -controversy is limited by. settled principles

‘governing the title to tide lands. The soils under

tide-waters within the original States were reserved

tothem respectively, and the States since admitted to

the Union have the same sovereignty and jurisdiction

in relation to such lands within their borders as the.

original States possessed.’’ ,

In Skiriotes v. Florida, 313 U. S. 69 (1941), this Court

affirmed a conviction for violation of a Florida statute

prohibiting the use of certain fishing apparatus ‘‘at a

point approximately two marine leagues from mean low

tide oh the West shore line of the State of Florida and

within the territorial limits of the County of Pinellas.”

The Florida Court had-held that the marine boundary of ©

a state might be fixed at a distance farther than one ma- .

rine league from the shore. This Court stated:

‘Tt is also clear that Florida has an interest in the

proper maintenance of the sponge fishery and that

the statute so far as applied to conduct within the

_territorial waters of Florida, in the absence of con-

flicting federal legislation, is within the police Power

of the State.”’ |

As we have already pointed out, this Court earlier had . ;

upheld: the regulation by States of oyster culture (Mc-

Cready v. Virginia, 94 U. 8. 391), fishing (Manchester. v.

Massachusetts, 139 U. S. 240), and sponge fishing (The

Abby Dodge, 223 U. 8. 166), over the adjoining coastal

waters. The States have this right to. regulate fishing be-

cause they hold the ew’ of the soil’ (Smith v. Mary-

land, 18 How. (59 U. 8.) 71).

These decisions affirm the States’ ownership of sub-

merged lands underlying coastal waters, for ‘‘the jurisdic-

tion of a State is coextensive with its territory; coexten-

sive with its legislative power’” (United States v. Bevans,

‘3 Wheat. (16 U. S.) 336, 386-87, supra, p. 7).

Thus we find that the Supreme Court in at least fifteen .

decisions from Martin v. Waddell to Skiriotes v. Florida, °

has repeated the rule of State ownership of the bed of.

navigable waters within State boundaries as above de-

- fined. Plaintiff would now have us believe that all these.

statements are only dicta, and erroneous dicta, which this

Court should ‘repudiate under the guise of a distinction

~ between coastal waters and other navigable waters.

There-is no valid distinction of the foregoing cases, and

we have seen that many of them are square holdings.

The suggested distinction between lands under coastal

waters and Jando under nevigaiie — Tas | no basis in

»}

law. We have seen above (11 A) that the common law

recognized the King’s ownership in coastal waters on the

same basis. as his ownership of the beds of navigable

_ waters generally.

Angell on Right of Property in Tide Waters, oe in the

Soil and Shores Thereof (Boston, 1826), one of the first

treatises on water rights published.in this eountry, stated

the rule clearly Ap: xili) :

‘In the arms and inlets of the sea, and sin in the ‘ .

__ 8ea itself, so far_as the right of national dominion ex-

tends, the sovereign power not only exercises a right

( of jurisdiction, but also a right of property or owner- .

_ ship.”’ (Ttalics from original.)

. Angell, whose work was familiar to the Supreme Court .

a century ago,” stated definitely that the King had been

the proprietor of tide waters in this country (pp. 37-38),

that the Atlantic colonies had the same ‘rights therein

'_ which the King had had, and that they never relinquished

this right to the Federat government (pp. 50-51).

In John Bassett Moore’s Digest of International. Law —

‘(House Doc. 551,- 56th Congress, 2d Sess.), the author

quoted (at Vol. I, p. 671) as an authoritative statement of

the law the following portion of this Court’s opinion in

' [Uinois Central R. Co. v. Illinois, 146 U. S. 387, 437 (1892) :

‘*So also, by the common law, the doctrine of the

dominion over and ownership by the Crown of lands

within the realm under : tide waters is not founded —

‘upon the existence of the tide over the lands) but upon

’ the fact that the waters are navigable, tide waters and

_ navigable waters, as already sajd, . ae ed as

synonymous terms in England.”” A

8 See Charles. River Bridge v. Warren Bridg e, 11 Pet. 420, 557

(1837) ; Smith v. Maryland, 18 How. 71, 75 (1855).

° }

: |

37° |

Plaintiff’s case is \lsamaeatl upon the einboinut as-

- sumption that a different, legal principle governs the ques-

- tion of title to submerged lands in coastal waters from that

which admittedly determines title to lands underlying in-

‘land navigable waters. If this were true, it is inevitable that

. the Supreme Court, in the hundred years in which it has

dealt with: these problems, would have indicated: some such |

distinction and would have placed some limitation upon the |

broad principle which it‘ has so many times announced.

On the contrary, the Court has been at pains to use lan-

guage which states the broad rule that the States own all

lands beneath their navigable waters, regardless of the

location of the-waters or whether they be salt or fresh. The

fact that no such distinction hay ever been recognized or

even suggested heretofore, taken in consideration with the

- rationale underlying this general principle, is, we. submit,

conclusive of the proposition that ownership of land under-

lying both inland navigable waters and coastal waters is.

governed by the same legal principle.

For example, in Martin v. Waddell, 16 Pet. (41 U. 8. )

367 (1842), the ownership of submerged lands in Raritan

Bay was at issue, but the court made specific reference

_ to ‘‘all navigable waters and the soil under them * * *”’

in upholding state ownership. (See pp. 24-25, supra.)

In the leading case of Pollard v. Hagan, 3 How. (44U. 8.)

212 (1845), lands under all navigable waters were empha-.

‘sized ‘in the decision, although the title to lands under °

_ water at the mouth of the Mobile’ River was specifically 1 in

contest.

The Court stated (p. 230) :

The shores of savigable waters, and the soils wader

them, were not granted by the Constitution to the

United States, but were, reserved to the States respec-

tively.’ é

It is obvious from this language that the Court is deliber-

ately laying down an all-inclusive rule which applies (1) to

the shores of navigable waters and (2) to the soils under

navigable waters. This phraseology necessarily includes

all navigable waters within a state’s territorial boundaries

and shows all lands beneath such waters to be governed by

the same rule. Careful analysis of the language used in

the many other cases shows the same application of the

basic principle to all navigable waters within the state’s

jurisdiction.

The rationale is clear. If the lands underlie navigable

waters and are situated within the boundaries of a State,

title to such lands is vested in the State. Tt was not for-

tuitous that the language used in the last mentioned cases,

and many others, was broad. It was necessarily broad,

‘because the principle applied was broad. The principle was

never divided, for it was the one governing rule supporting

State ownership and was vastly more important than title

issues over divers segments of submerged lands. To state

the rule was to adjudicate ownership in all cases..

The same principle which applies to submerged lands

under coastal waters controls the ownership of lands be-

neath the Great ae (See Illinois Central R. Co. v.

IUinois, 146 U. S. 387 (1892), & 32, supra; Massachu-

‘setts v. New tnd 271 U. 8. 65 (1926), p. 33, supra).

The same principle is salderwly applied to lands under

other navigable lakes,” and to the beds of navigable

rivers.” é' :

* United States v. Holt State Bank, 270 U. S. 49 (1926) ; State ex

rel. Com’rs v. Capdeville, 146 La. 94, 83 So 421 (1919), cert. den.

252 U. S. 581 (1920) ; See also United States v. Oregon, 295 U. S.

1, 14 (1935) ; Hardin v. Jordan, 140 U. S. 371, 381-82 (1891).

** County of St. Clair v. Lovingston, 23 Wall. 46 (1874) ; Barney v.

Keokuk, 94 U. S. 324 (1876) ; Scott v. Lattig, 227 U. S. 229, 243

(1913) ; United States v. Chandler-Dunbar Co., 229 U.S. 53, £0

(1913) ; United States v. Utah, 283 U. S. 64 (1931).

The statements that we have quoted from Supreme Court

cases affirming State ownership of submerged lands were

not made without careful consideration or without reason.

One poignant basis for the doctrine was set forth in

Pollard v. Hagan, 3 How. (44 U. S.) 212, 230 (1845), as

follows:

**To give to the United States the right to transfer

toa citizen the title to the shores and the soils under

the navigable waters, would be placing in their hands

a weapon which might be wielded greatly to the injury

of State sovereignty, and deprive the States of the

power to exercise a numerous and important class of

police powers.”’

This reasoning is applicable to the beds of all ‘‘navigable

waters,’’ both inland and coastal.

To bolster its argument that the on and repeated

pronouncements of this Court concerning State ownership

of coastal waters are unsound, the Government cites (Br.

pp. 47-48) The Queen v. Keyn [1876], L. R. 2 Exch. Div.

63, a case of extremely doubtful authority. It is strange

that the government, which accuses this Court of dictum

on the subject, should rely on dicta so patently unneces-

' sary as those of Cockburn, C. J., in that case, where the

only issue was the jurisdiction of admiralty court to try

an offense committed by a foreign vessel exercising the

privilege of navigation in British coastal waters. The de-

cision was reached by a vote of seven to six, with such

distinguished judges as Coleridge, C. J., and Lindley, J.,

declaring the three-mile belt to be part of English terri-

tory. ‘The decision—as to admiralty jurisdiction—was.

promptly corrected by statute (41 & 42.Vict., ¢. 73). The

dicta concerning ownership were inconsistent with earlier

cases, such as. Benest v. Pipon, 1 Knapp 60, 67, 12 Eng.

Repr. 243 (1829), where the Privy Council had held that

: 40

the sea and the land beneath it are the property of the

King.” In the later case of Secretary of State for India

v. Chelikani Rama Rao, L. R. 43 Ind. App. 192, 199, 32

T..L. R. 652 (P. C. 1916), where the emergence of an

‘island near Ceylon raised squarely the question of owner-

. ship of the ocean floor, the dicta in the Keyn case were

criticized as contrary to the common law rule of Crown

ownership, and the Keyn dicta were not followed.

Even if all the statements we have quoted from this

Court's decisions were dicta (as the government would

like to assume) they would still be controlling evidence of

the American law, for - |

‘*Reannouncement”’ of a ‘‘doctrine repeatedly over

a period of more than 100 years serves to establish

it, not only as the consistent view of the gourt,. but

also as a rule of property upon which practical trans-

actions have been, and are being, based.’’

United States v. Guaranty Trust Co., 33 F. (2d)

533, 537 (1929), aff'd, 280 U. 8. 478 (1930). -

In the face of the repeated and uniform recognition by ©

this Court of State title to submerged lands underlying

coastal waters, there is no justification for claiming that

any different rule or rationale should be applied in the

present action.

: ** The Government is forced to confess (Br. p. 50) that the large

majority of English cases have always favored the rule of the

King’s es land. under coastal waters. Even if this rule

had Lows ] in the nineteenth century (which was not the

case), it would not be material, for the common law’as accepted

in this country is the common law as it existed in England at the

time of our separation from the mother country with only such |

modifications as have been made by our courts or legislatures. See

Shively v. Bowlby, 152 U.S. 1, 14 (Govt. Br. p. 115); Cathcart

v. Robinson, 5 Pet. 264, 280 (1831). ;

D. California and other States subsequently admitted en-

tered the Union on an equality with the original States. —

No distinction has been or can be drawn between the

original thirteen States and those later admitted, with re-

spect to the ownership of submerged lands. |

Upon acquisition of the territory ceded by: Mexico in .

1848, the United States acquired title to lands underlying

navigable waters, including tide lands,“ but these sub-

merged lands were held in trust for futwre States to be

created out of such territory. Title to these lands. passed

to California at the time of her admission into the Union.

in 1850.“

California, like other States, entered the Union ‘‘upon -

equal footing with the original States, in all respects what-

ever,’™* particularly with absolute property in and do-

minion over the beds underlying her navigable waters,

including tho8e lands under coastal waters. This Court

has stated the reason for recognizing State ownership of

such submerged lands (see p. 39, supra). No one can

‘suppose that it was the thought of Congress to change the

whole policy of the government and reserve to the nation

the title and control of the - beneath the navigable and

“ * Knight Vv. United States Land Association, 142 U. Ss. 161, 183

. ta citing cases,

The princi applicable to tide lands are applicable to lands

underlying all navigable waters. Shively v. Bowlby, 152 U. S. 1

(1894). To California then belong her navigable waters and the

- goils under them. See Pollard v. Hagan, 3 How. (44 U. S.) 212,

229 (184$).

« Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10, 16 (1935) ;

Mumford v. Wardwell, 6 Wall, 423 (1867).

“ Weber v. Board of State Harbor Commrs., 18 Wall. 57 (1873) ;

Pollard v. ie~ 2 How. 212 (1845) ; Brewer Oi Co. v. United

. States, 260 U.S. 77 (1922) ; Scott v. Lattig, 227 U. S. 229, 242 .

(1913). :

-—~ 42

tide waters," nnenS submerged ends underlying coastal

waters..

This Court has er that the sovereignty of California

and the rights and powers dependent upon it are as com-

plete as those of the original States (United States v.

Mission Rock Co., 189 U. S. 391, 404 (1903). Entering the

Union ‘‘upon equal footing with the original States,’’ Cali-

fornia was entitled to define her boundaries in the sea, and

did so with Congressional sanction.

_ By her Constitution, adopted i in 1849, California defined

her boundaries as running ‘‘to the Pacific Ocean and ex:

tending therein three English miles; thence, running in a

northwesterly direction and following the direction of the -

Pacific coast.’’** This Constitution was approved and rati-"

fied by the President and reported by him to the Congress,

which referred to it in the Act of Admission adopted on

September 9, 1850.7.

The other States admitted after the original thirteen

each had the same rights as California. From the earliest

times, when the Congress began to create States out of the

Northwest: Territory given to the United States by certain

of the original States, it provided that each one should be

admitted ‘‘on equal footing with the — States,’’**

in all respects. whatever.

In decisions relating to the submerged lands of other

States, this Court as well as State Courts have frequently

“5 Compare this Court’s statement in Mann v. Tacoma Land Co.,

153 U. S. 273, 284 (1894), in referring to the Act ne the

State of Washington.

«6 Article XII, Sec. I, quoted in Apdx. to Answ., Part I, page 22.

‘T9 Stat. 452; See Apax. to Answ., pages 16-24.

-“* See Northwest Territory Ordinance, adopted by the Continental

Congress on July 13, 1787, quoted in Apdx. to Answ., pp. 63-64.

‘ 43

referred: to them as having been admitted ‘‘on an equal

footing’’ with the original States.“

Were it not for the vigor with which the oxgument is

pressed bythe Government, it would seem idle to take any

Space to defend a doctrine which has been so frequently

and so recently reiterated as the ownership of land be-

neath navigable waters under the ‘‘equal footing’’ rule.

This doctrine. was announced over a century ago in Pol-

lard v. Hagan, 3 How. 212, 228-29 °(1845), holding that

Alabama must have the same right of ownership in the

- goils under navigable waters «as the original: thirteen

States. Any rule which impaired the equality or uni-

formity of such. ownership? as among States would be

unjustified and confusing. Chief Justice Stone again

expressed the doctrine ‘forcefully in 1935 in a case of

original jurisdiction, United States v. Oregon, 295. U. S.

1, 14 (1935):

‘‘the title of the United States to lands sndhatying

“navigable waters within the State passes to it, as in-.

cident to. the transfer to the State of local sover-- -

eignty’’.

To overcome such definite pronouncements, the Govern- -

ment again relies on fanciful distinctions, and asserts that.

navigable coastal waters are to be differentiated from

' navigable bays, harbors and inland waters and attributed

to Federal rather than State sovereignty. We deny this

_ assertion, which has no support in any decided case.

State economy is. just as much-concerned with the regu-

lation and development of the soils which underlie the ad-

or mineral development, as with the soils under other

navigable waters. :

#° See Shively v. Bowlby, 152 U. S. 1, 26 (1894); Scott v. Lattig, 227

U. S. 229, 242-43 (1913) ; Oklahoma v. Texas, 258 U. S. 574, 583.

(1922) ; United States v. Utah, 283 U. S. 64, 75 (1931) ; Borax

Consolidated, Lid. v. Los Angeles, 296 U.S. 10, 15 (1935) ; Wilton

_ Vv. Van Hessen, 249 Ill. 182, 94 N. E. 134 (1911).

In reality, the Government's theory is extracted from

a distortion of Mr. Justice Sutherland’s reasoning on an

entirely different point in United States vy. Curtiss-Wright

Export Corp., 299 U. S. 304 (1936), cited at pages 76-78 —

of the Government brief. The case had nothing whatever

to do with the title to land or with any navigable waters.

It involved the validity of a joint resolution of Congress

which authorized the’ President to prohibit the sale of

arms and munitions of war to the countries engaged in

. fighting in the Chaco, and punished violation as a crime.

The resolution was atfacked as constituting an illegal dele-

gation of powers. The complete absence of any real sup-

port for the Federal Government’s position in the present

ease is shown by their having to rely, on the question of

title, on a case whicli has not the remotest connection with

title questions. |

We lave alrgady disposed of the argument that rights

in coastal waters are different from other rights because

they are vindicated by the national government (pp. 5-6,

supra).

Nor is there any force in the argument that rights in

edastal waters are the ‘‘creatures’’ of international law.

It is significant that the first official pronouncements of

this Government upon the rights in coastal, waters, the

1793 opinions referred to in the Government Brief (pp.

128-132), were made with respect to an incident occurring

in Chesapeake Bay. The Government concedes that this:

‘thistoric bay’? is to be treated as inland waters (Br.,

p. 18), and that it does not seek to overthrow State

ownership of lands under inland waters (Br., p. 143),

but the rule which recognizes title to bays is just as

much (and just as little) a matter of international law

. as the rule of ownership in coastal waters. Again it is

a Tale of international law, that of the thalweg, which

_ was the basis of decision in Louisiana v. Mississippi,

202 U. S. 1, 49 (1906); yet the Government seeks to

-. distinguish that case as.one involving me waters (Br.,

p. 158). .That same rule of international law fixes the

boundary between New York and Ontario in the middle of

the channel of the Niagara River; yet it is clear that the

State of New York owns the bed of the river out to the

international boundary (International Paper Co. v. United

States, 282 U. S. 399, 404 (1931); Matter of Niagara Falls

‘Power Co. v. Water Power & Control Commission, 267

N. Y: 265, 270, 196 N. KE. 51 (1935), cert. den. 296 -U. 5.

. 609 (1935)).

None of the arguments _—_— by the United States,

therefore, constitutes any convincing reason for denying

to any State any of the rights which the Original Thirteen

States had in their coastal waters.

One right of the States was to fix their boundaries in

the sea:

‘Within what are generally recognized as the terri-

torial limits of States by the law of nations, a State

can define its boundaries on the sea’’.

Manchester v. Massachusetts, 139 U. S. 240, 264

(1891).

Therefore each State which was admitted ‘‘on.an equal

footing’’ with the original thirteen acquired, first, the same

- Ownership of submerged lands under its coastal waters as

the original thirteen, and, second, the same right as the

original thirteen States to define its boundaries on the

sea within the limits fixed by the law of nations.

POINT Ill

' The States’ ownership of the bed of the sea out to

the limit of their jurisdiction has been asserted, and

acquiesced in by the Federal Government, for over 150

years, and is binding on the Federal Government.

A. State constitutions, statutes and decisions.

‘ The answer originally filed by the State of California

recites numerous examples of assertion by the States of

title to lands under navigable waters, including areas with-

in the coastal waters. The list is necessarily incomplete,

but it: nevertheless constitutes an. impressive record of

statutes, decisions and grants, showing continued ex- .

ercise of the same proprietary rights in coastal waters

which the colonies had asserted before the Revolution. —

Plaintiff would now have this Court not only repudiate

(under the guise of distinguishing) its previous decisions

concerning the title of ‘the States, but also brand the

State decisions of the past century as incorrect and search

for some non-proprietary theory to support the State

Statutes, despite the fact that both weré in harmony with .

all the statements of this Court during the intervening

years concerning State title to lands under coastal waters..

Exercise of ownership has ‘taken niany forms, and it is

entirely fallacious for the Government to assert (Br., pp.

72, 77) that some of the original thirteen States never

have claimed the marginal sea as being within their boun-

daries. On the contrary, all have claimed it, and no re-

—— person ever imagined that the Federal Govern-

ment had any adverse claim thereto until shortly prior to

the filing of the present suit.

A first’ category of State acts asserting title to lands.

under coastal waters is found in the provisions of statutes

and constitutions fixmg State boundaries so as to include

islands, or waters within a given distance from the coast.

Georgia, by Act of February, 1783, claimed all islands

within twenty leagues of-the coast (Georgia Dig. of Laws

to 1800, pp. 258, 264; id., p. 35, 1798 Const. Art. I § 23),

and New Hampshire, in fixing its boundary ‘“‘by ‘the .

Sea’’, specifically included the Isle of Shoals (V. N. H. °

pa (1784-92) 766, Act of June 16, 1791; Appdx. to

Answ., p. 716).

Congress early recognized that coastal seas are e paits of

the States. In the Ohio Enabling Act of April 30, 1802-~

(2 Stat: 178), it declared that the northern boundary

(Apdx. to Answ., p. 724). The Louisiana Enabling Ac

passed by Congress in.1811 {2 Stat, 641), as well as th

Louisiana Constitution of 1812 (Apdx. to Answ., p. 604),

both include all islands within three leagues of the coast,

while the similar Mississippi Enabling Act (3 Stat. 348)

_and Constitution of 1817 mention #ix leagues from shore

~ (Apdx. to Answ., p. 611).” The Illinois Enabling Aet

of 1818 (3 Stat. 428) fixed the hoindary of that .new

state as ‘‘the middle of Lake Michigan,’

of Ohié was in the water of Lakes Michigan and re

Texas, when it became independent in 1836, nearly a

-decade before its annexation; established its boundary at

three leagues from land (Apdx. to Answ., p. 58). —

Further Federal approval of boundaries embracing

coastal waters in the- open sea is found in the case of

California and Oregon, as well as some of the Btates

admitted later.

The California Constitution of 1849 hens already been |

mentioned (supra, p. 42), while. Congress itself in the

Act admitting Oregon (February 14, 1859), fixed the

boundary as ‘‘Beginning one: marine league at sea due

west * * * from the line of the coast’’ (11 Stat. 383;

Apdx. to Answ.,. P. 578).

Massachusetts later in that.same year fixed its terri-

torial limits as ‘‘one marine league from its seashore at -

. extreme low-water mark’’ (Mass. Acts 41859, ¢. 289;

sm. to damm; P. 708). This Act merely confirmed an

” See also Alabama Enabling Act (3 Stat. 489) and Constitution of °

1819 (Apdx. to Answ., p. 616).

"t See also Act providing for admission of Michigan, June 15, 1836

(5 Stat: 49; Apdx. to Answ., p. 733). and Wisconsin Enabling

Act of Aug. 6, 1846 (9 Stat. 56; Apdx. to Answ., p..736) ; Penn-

sylvania’s northern boundary extends into Lake Erie (5 Stat. 49,

Act of June 15, 1836; Apdx. to Answ., p. 686).

ae? 48

ownership which had been asserted in various ways pre-

viously. Chief Justice Shaw had said, for instance, con-

cerning. the Massachusetts Charters from Charles I and

James I that: :

“all the right, both to the soil under the sea, as:

conceded to hold an exclusive. right to the sea-coasts,

and to the shores and arms of the sea, where the tide .

. ebbs and flows, did vest in the grantees under —_

charters ° * °,”? -

Weston v. Sampson, 8 ‘Cush. 347, 353 ‘in:

1851).

_. The eastern we of Florida was described in the

State Constitution of 1868 (Art. I) as ‘‘along the edge of

the Gulf Stream’’ and its gulf boundary as three marine

leagues (nine nautical miles) from. the shore (Apdx. to

Answ., pp. 627-28).. This was the Constitution to

which the. Act of Congress had referred in readmitting the: - |

- State of Florida to representation in Congress. Act ‘of:

June 25, 1868, 15 Stat. 73. (See Skirtotes v. Florida, 313

U. S. 69, 70 [1941]; Pope v. Blanton, 10 F. Supp. 15

-(N. D. Fla. 1934].)

Rhode Island described its boundary as ‘‘one marine

league from. its sea-shore, at high water mark’’ (R. I.

Gen. Sfats. 1872, c. I. §1). Similar statutes; using

- boundaries at three miles or more from shore, but gen-

_ erally measured from low-water mark, nave been passed

by other States.

“The aii 3 under the Washington Enabling Act of

1889 (25 Btat. 676, 697); on rouse the Constitution of

82Ga. Act 410 of 1916, Apdx. to havi. p. 647; Maine Acts 1915,

c: 330 (“to the extreme limit of the waters under the jurisdiction

of this State”), Rev. Stat. 1930, c. 143, § 3, p. 1640; N. J. Act of

May 17, 1906 (P. L., p- 542). ;

‘. oo 7

Washington. (26 Stat. 1552), which described its boundary

as inthe Pacific Ocean ‘‘oné marine league offshore”’

(Art. XXIV, $1; Apdx. to Answ., pp. 541-42).

Washington by her cohstitution (Art. XVII, §1; Apdx.

to Answ., p. 542), Florida by statute in 1913 (1913 Laws, .

C: 65, 32; §1; Apdx. to Answ., p. 628), ‘and Texas by stat-

ute in 1925 (1936 Rev. Civ. Stats., Art 4026, Acts 1925, p. ;

438) expressly declared their ownership of all- submerged

_ lands within their jurisdictions. (See also Va. Code [1887]

§§ 1338, 1339). *

. A State’s ownership of ‘the: bed of its coastal waters |

- does not depend, however, upon express marking of a

boundary by statute or otherwise. Its assertion by stat- ~

-ute is merely the assertion of a pre-existing title, rather

than being itself the source of title.. This is illustrated.

by the fact that State. jurisdiction had been exercised “in

. Many cases before the precise boundaries in the ocean

had been expressly described.

A second category of State acts based on ownership

of submerged lands under coastal waters is found in the

statutes relating to the regulation or leasing of fisheries,

oyster beds and other marine life or resources. Thus

New Jersey early forbade ‘non-residents to take clams or

oysters in any of the rivers, bays or waters of the State

(Act of December 10, 1825—Comp. Laws (1833) 124), and

‘Rhode Island had a similar regulation’against taking shell-

fish within the waters or on the shores of this State (Dig.

_ 1844, p. 533, $6; see State v. Medbury, 3 R. I. 138—1855).

- It has been impossible to assemble all the fishing laws

of the States, but it is clear that control of fisheries in

the open sea continued to be a matter of concern to the

- States. Mississippi granted to the upland owners the ex-

clusive right to plant oysters in the waters of the Gulf. of

‘88 Cf. Lubetich'v. Pollock, 6 F. (2d) 237 w. D. Wash. 1925) enc

ing no Federal question presented by State prosecution of fishing

within three-mile belt).

Mexico in front of their lands (1886 Miss, Laws, p. 180;

| Apdx. to Answ., p. 614); Louisiana by a series of acts

beginning in 1886" declared its title to all oyster beds un-

derlying the navigable waters of the Gulf of Mexico with-

in its territorial limits, and provided for leases thereof to

individuals upon the payment of specified rentals to the

State; Virginia claimed ownership of oyster-be

‘‘whether the said bed * * * shall ebb bare or not’’ (Va.

Code 1887, § 1338); Georgia gave to upland owners. the

exclusive rights to oysters and clams in the tide waters of

the State, which were defined to include waters below low

tide (1902 Ga. Laws,.p. 108; Apdx. to Answ., pp. 648-49), ~

but forbade the use of dredges within 1000 feet of ordi-

nary mean-tide (1905 Laws 73; Apdx. to Answ., p. 650);

Rhode Island authorized State leases for oyster culture of

land ‘‘covered by four feet of tidewater at mean low tide’’.

(General Laws 1909, c. 203; Apdx. to Answ., p. 706);

the New York Conservation Law fixed the marine district

as including ‘‘all tidal waters within three nautical miles

of the State coast’’ (L. 1912, ce. 318); Oregon has author-

ized the State Land Board to lease land between low tide

and three miles seaward therefrom for the harvesting of

kelp and other seaweed (1917 Laws of Ore., c. 276, p. 516;

Apdx. to Answ., p. 586) ; Texas has asserted: its ownership

of the bed of the Gulf of Mexico within its jurisdiction and

vested the Game, Fish and Oyster Commission with control

of fishing therein (Acts 1925, p. 438; Rev. Civ. Stat. [1936]

Art. 4026) ; New Jersey has exercised jurisdiction over fish;

ing in its Atlantic Waters (23 N. J: S, A. §§5-241, 5-24.2(e),

3-43); and Washington provided for leases of oyster beds .

lying below extreme low tide under navigable waters (Act

255 of 1927, Sec. 142, Apdx. to Answ., p. 557).

The long continuous nature of this jurisdiction is illus-

trated by New Jersey’s current, Shellfish us: and espe-

"84 Acts 106 of 1886, 121 of 1896 and 159 of 1900 (Apex. to Answ.,

p. 004).

cially Chapter 4, ‘‘Regulations applicable to Atlantic

Coast.’” The imposition of a seasonal restriction on

oyster gathering (N. J. S. A. § 50:41) and the exclusion

of non-residents (4 50:4-2 and §§ 50:2-1, 50:2-2) go back to

the colonial regulations of 1718 (I Nevill 86, supra, p. 18),

while the restriction on the use of dredges, ete. (§ 50:4-2)

goes back at least to the prohibition in the New Jersey

Act of June 9, 1820, § IT (1838 Digest N. J. Laws, p. 372). -

In addition to the statutes cited abdve, there are nu- .

merous State decisions upholding State regulation of

fisheries in the qoastal waters. For instance, in Bosarge

v. State, 23 Ala. App. 18, 121 So. 427 (1928), cert. den., -

219 Ala. 154, 121 So. 428 (1929), cert. den., 280 U. S. .568,

(1929), the Alabama Court, in reliance on this Court’s

holding in Manchester v. Massachusetts (139 U. S. 240,

previously referred to at pp. 18, 28-29,-45, supra), held

that an Alabama statute regulating the trolling for shrimp

could be applied at a point within the Gulf of Mexico

three-fourths of a mile beyond the beach of one of the

outermost islands and that such point was within the

‘*territorial jurisdiction’’ of the State of Alabama. .

In the early case of Dunham v. Lamphere, 3 Gray 268

(Mass. 1855), Chief Justice. Shaw sustained a Massachu-

setts statute forbidding the use of seines within one mile

of the shores of Nantucket Island and Gravel Island.

In Lipscomb v. Gialourakis, 101 Fla. 1130, 133 So. 104

- (1931), the Florida Court upheld a conviction for using

diving apparatus to take commercial sponges from the

Gulf. of Mexico within the territorial limits of Florida.

Other State cases dealing with fishing regulations and

other questions of ownership of submerged coastal lands

are listed in the footnote.*

. , fe)

55 Ocean Industries, Inc. v. Su “Coyrt, 200 Cal. 235, 252 Pac.

722 (1927) (enforcing tion against sardine reduction plant

on ship anchored off shore) ; State v. Ruvido, 137 Me. 102 (1940)

(Continued on following page)

A third category of State acts in the coastal sea re-

lates to express grants of land under water or rights to

extract products therefrom. An example of the exercise

of such jurisdiction in coastal waters is a New Jersey

statute entitled: ‘‘An act to authorize the owners of

land upon tidewaters. to build wharves in front of the

same”, which authorized ‘‘the owners of lands situated

along and upon tidewaters to build docks or wharf on

the shore in front of his lands beyond the limits of

ordinary low water * * *’’ subject to license and to the

preservation of public navigation (N. J.. Laws 1851, p.

335).**

The right-of-way of the Florida East Coast Railway

was largely on submerged lands granted by the State of

Florida (Apdx. to. Answ., pp. 641-45).

The New York Land Office, acting under longstanding

statutory authority, gave a grant of land under water in

1897 extending 1500 feet from mean high water line into |

the Atlantic Ocean (see People v. Steeplechase Park Co.,

218 N. Y. 459, 113 N, BK. 521—1916). The right to make

(Continued from preceding page) .

' (fishing regulation within three-mile limit) ; Derthen. v. Webster,

5 Mass. 266 (1809) (penalty for taking bass in the sea near

. mouth of river); Dill v. Inhabitants of areham, 7 Metc. (48 ~

Mass.) 438 (1844) (King’s ownership of fisheries passed to

oy; * Commonwealth v. Boston Terminal Co., 185 Mass. 281,

282 (1904) (State has title to land within one league of shore) ;

State v. Stewart, 184 Miss. 202, 184 So. 44 (1938) (removal of

sand from bed of a tidal inlet) ; Simpson v. Moorhead, 65 N. J.

Eq. 623 (1904) (holding that State owns tidal meadows below

high water mark) ; State v. Brown, 3 Dutcher (27 N. J. L.) 13

(1858) (right to build wharf beyond low water mark) ; State v

Kofines, 33 R. I. 211 (1911) (license for lobster fishi ng); Narro-

gansett Real Estate Co. v. Mackensie, 34 R. I. 103 (1912) (hold-

ing that State has title to the bed of the Ocean) ; State ex rel.

Luketa v. Pollock, 136 Wash. 25, 239 Pac. 8 (1925) (permitting

enforcement of State fishing regulations within three-mile limit).

%¢ Cf. Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841

(1927) (right of littoral owner to build wharf on soil of marine

belt, owned by State). 7

similar grants is one of the basic assumptions in New

York’s recent anti-erosion statute, permitting grants to

municipalities of State owned land under water along the

“Atlantic Ocean, for the construction of jetties and- other

works to arrest erosion (N. ¥. Laws 1945, ¢. 535).

Among other examples, Pennsylvania has authorized

the Water and Power Resources Board to permit the —

dredging of sand and gravel from the bed of Lake Erie. -

(Act of June 25, 1913; Apdx. to Answ., p. 687), and Ohio

has authorized municipalities to lease land under water in

Lake Erie for docks and wharves (Apdx. to Answ., p. 725).

Texas, beginning as early as 1913, authorized the

Commissioners of the General Land Office to lease that

portion of the Gulf of Mexico within its jurisdiction,

for the production of oil and gas (1913 Texas Laws, p.

409; Apdx. to Answ., pp. 595-96). Act 30, Extra Session

of thé Legislature of Louisiana of 1915, and subsequent

acts, authorized the execution of oil, gas and mineral

leases covering State-owned lands, including submergéd

lands. (See also Apdx. to Answ., pp. 608-10.)

Grants of submerged lands in bays and harbors by the

various States are too numerous to recite, but the States’

ownership of such lands is based on the same principle as

their ownership of lands under coastal waters. The Gov-

ernment recognizes the unity of the principle, and also

that reliance on ownership of so-called inland waters has

been of too great proportion to permit any senna of

change (Br., p. 143).

Reference should also be made to the State cases deal-

ing generally with the territorial limits of the States. A

typical example is Commonwealth v. Manchester, 152

Mass. 230 (1890), wherein the Court upheld the statu-

tory definition of the territorial limits of Massachusetts

as extending ‘‘one marine league from its seashore at’

low-water mark.** (Aff’d, 139 U. S. 240, supra, p. 28.)

54 .

In speaking for the Massachusetts Court, Field, C. J.,

made the terse statement of the principle of law (p. 241):

‘‘There is no belt of land under the sea adjacent:

to the coast which is the property of the United States

and not the property of the States.’’

In all of the above cases the Courts based the powers

of the States to regulate on the ownership by the States

of the soils beneath their territorial waters.

These many. State acts and decisions recognizing State —

title to submerged lands furnish strong additional reason

for adhering to the rule, even apart from. the decisions

of this Court mentioned in Point II. As this Court said

in Best v. Polk, 18 Wall. 112, 117 (1873), with respect to~

claims of title based on United States treaty with Indians:

a Tee decisions, furnishing a rule of prop-

erty on this subject in Mississippi, were not brought

to this court for review, as they could have been, but

have been acquiesced in for a quarter of a century.

To disturb them now would unsettle titles bond a

acquired.”’

B. Federal acceptance of grants from. the States.

The repeated rulings and declarations of this Court —

sustaining and emphasizing the States’ ownership of all

lands under tidal waters within their boundaries have

always been accepted and acted upon by the other branches

of sthe Federal Government. ‘The rule has thus been

treated as a settled one. Whenever the Federal Govern-

ment has required sites under coastal waters for defense

cession, by purchase, or b¥ condemnation proceedings.

For instance, when the Federal Government built jetties

in the Ocean, it has frequently: obtained grants from the |

States covéring the land on which the jetties were built.

Such grants were obtained in 1899 from South Carolina,

covering a jetty extending 500 feet into the Atlantic Ocean

(Apdx. to Answ., p. 653); from Florida in 1938, for a

jetty at the mouth of the St. Johns River extending 2

miles into the Atlantic Ocean (Apdx. to Answ., p. 193f) ;

and from Texas in 1912, for a strip extending . 2 miles

into the Gulf of Mexico from the City of Galveston

(Apdx. to Answ., p. 592).

Other grants of land under water, below low-water

mark, are set forth in the Appendix to California’s An-

swer. See, for instance, the. Acts of Mississippi in 1858

(Apdx. to Answ., p. 612); Delaware in 1871, 1873 and

- 1899 (Apdx. to Anew. pp. 681-84); South Carolina in

1896 and 1900 (pp. 654 to 656); Washington in 1909 (pp.

- §43-44); Virginia in 1922 (p. 667); and Florida in 1939

(Apdx. to Answ., p. 639). The foregoing list does not

include the more numerous grants in bays and harbors,

such as Alabama’s 1919 grant of 12 acres of submerged

land in Mobile Bay (Apdx. to Answ., pp. 618-19), .al-

though we have seen that the same rule sustains State title

to submerged lands in bays as applies in coastal waters.

Special mention should be made of lighthouse sites,

for the Federal Government has always recognized that

’ these must be obtained from the States. The ‘Federal

_ statute provides (33 U.S.C. A. §727): | ;

**No lighthouse, beacon, public piers, or landmark,

shall be built or erected on any site until cession of

jurisdiction over the same has been made to the

United States.’’

*7 In the absence of such. a grant, the jetty remains "within State

jurisdiction. [Winston Bros. Co. v. Galloway, 168 Ore. 109, 121

P. (2d) 457 (1940) (sustaining State tax on profits from work

done on jetty beyond low-water mark).

The States and the United States have acted on the

‘principle set forth in this statute, that deeds from a State

are necessary for lighthouse sites, whether they be above

1887 made’a grant of lands under water in Quoddy: Roads

(Apdx. to Answ., . 719); New York in 1874 ceded juris-

diction over a number of sites in New York Harbor and

Long Island Sound (Apdx. to Answ., pp. 692-96); and

general statutes have been enacted by Alabama in 1875

-(Apdx. to Answ,, pp. 617-18), Maryland. in 1874 (Apdx. to

Answ., pp. 671-72), Massachusetts in 1880 (Apdx. to Answ,, ’

pp. 709-10), Michigan in 1874 (Apdx. to Answ., p. 734),

Ohio in 1875 (Apdx. to Answ., p. 726), South Carolina in

1874 (Apdx. to Answ., p. 658), and Vitginia in 1874 and

later (Apdx. to Answ., pp. 664-65).

Similarly, grants have been obtained covering lands

under water required by the Federal Government for

forts." .

The Government attempts to belittle thins grants by‘

eliminating all those in Harbors or bays, eliminating the |

Great Lakes as inland waters and then finding some ex-

euse for each of those which it admits covered coastal

. waters. We have shown earlie? in this brief (Point II C,

supra) that bays and the Great Lakes are all subject to

the same rules as coastal waters. Even apart from that, —

the fact remains that the United States has repeatedly ac-

cepted State deeds, made upon the assumption that the

State held title to land under coastal waters, and that the

Government has been unable to point to a single claim of

Federal ownership prior to Mr. Ickes’ reversal of his own

earlier position in 1937. .

The Federal Government, through its various agencies,

‘ has recognized the State ownership | of these submerged |

** South Carolina Act of 1896 (Apdx. to Answ., pp. 65455): Cali-

_ fornia statutes of 1897 and later ( Apdx. to Answ., pp. 91 to 116).

lands, not simply by requesting and accepting esars from

the States, but by other affirmative rulings.

) The Atsovacy General has been required ‘to pass on the _

validity of the title of the State in each instance where

a deed was received (R. 8. § 355;40 U.S. C.-A. § 255). An

- illustration is the opinion of the Attorney General of the

United States’ affirming Washington’s title to tide-lands

and waters in the Pacific Ocean, surrounding the Fort

’ Canby Military Reservation, .rendered March 20, 1925 (34

Op. A. G. 428; Apdx. to: Answ., pp. 545-46).

The Commissioner of the United States General Land

Office, in 1910, in rejecting an application for submerged

lands east of Key West, Florida, ruled that title thereto

belonged to the State by its right of sovereignty (Apdx.

to ‘Answ., p. 637). Other rulings relating to submerged

lands in Washington (13 L. D. 299, Apdx. to Answ., p.

565) and Texas (Navy Dept. Report of 1917, Apdx. to

Answ., pp. 596-602) and lands in Lake Ontario within the

State of New York (7 Op. A. G. 314; Apdx. to Answ., p.

699) and in Lake ‘Michigan within the State of Illinois

(8 Op. A. G. 172; Apdx. to Answ., p. 728) and within the

State of Wisconsin (House Doc. 804, 66th Cong,, 2d Sess.;

Apdx. to Answ., p. wh likewise recognize State title

thereto.”

T The Federal policy not to deprive the States of their

submerged lands.

The policy of Congress in administering the area ac-

quired by the United States from which subsequent States

were formed also shows undeviating acquiescence in the

5% A similar principle is applied in Alaska, where submerged lands in

the Behring Sea were deemed reserved from grant, to be left -to

the disposition of the new State when organized (29°L. D. 395,

Apds. to Answ., pp. 531, 534).

~ §8

principle of State ownership of the beds of all navigable

waters including coastal waters. No grants of land under

navigablo waters were to be made that would rob the

State of this feature of State sovereignty.”

Similarly, where the United States has reserved public

lands when: admitting a new State to the Union, it has

uniformly been held that lands under navigable wators

are not part of the public lands so reserved. As this

Court stated in Mann v. Tacoma Land Co., 163. U.S. 273,

2S4 (1S): R

“No one can fort & moment suppose that it was the

thought of Congress to change the whote policy of the |

government and - ‘reserve td the nation the title and

control of the soil beneath the tide waters and those

of navigable atreams, —

In the presént case, there is no suggestion that. Con-

gress has sanctioned any such far-reaching change as the

United States Attorney General now seeks in respect. to

ownership of submerged lands. On the contrary, both

houses of Congress have by positive action expressed |

their belief that the coastal waters and the lands under —

them rightfully belong to the States and have belonged to

—— since the Declaration of Independence (H. J. Res.

225, 79th Congress, 2d Session; see Senate Report No.

1260). The President’s- refusal to sign the bill was not

based’ on the merits, but in recognition of the existence

of this litigation. :

There has therefore been no hesttaliere revocation of the.

policy of continued acquiescence in the age-old State title,

v. Keokuk, 94 U. S. 324, 338 (1876) ; Shively v. Bowlby,

152 U. S. 1, 49-50 (1894) ; Donnelly v. United States, 228 U. S.

243, 262 (1913) ; United States v. Holt State Bank, 270 U.S. 49,

55 (1926).

10 (1935); United States. v. Oregon, 295 U. S. 1, 14 (1935);

Pollard v. Hogan, 3 How. (44 U. S.) 212 (1845). } |

. &

-e

nw was true in instances mentioned by the Government re-

lating to private titles (Govt. Br., pp. 212-14).

This history of recognition by the Federal Government

of State title to submerged lands adds to the binding

force of the rule we have set forth, for the United States,

the same as a natural person, ix hound by its aequiescence

in territorial claims.

Missouri v. Iowa, 7 How, 660, 670-73 (1849) ; .

New Mezico v. Colorado, 267 VU. 8. 30, 40.41 (1925) ;

~ Michigan v, Wisconsin, 270 U. 8, 295, 308 (1926).

Or to put it in another way—ever xince the Constitution

was adopted the legislatures and officials of the States .

and the United States have acted on the theory that the

States, under the Constitution,own. the soil. of coastal

waters. - This uniformity: in practice, continuing for 160

years, is a ‘‘construction of the most forcible nature’’

(Stuart v. Laird, 1 Cranch -299, 309 (1803); Rogers v

Goodwin, 2 Mass. 475, 477 (1807); McKeen v. Delancy’s

Lessee, 5 Cranch 22, 23-3 (1809); United States v. Cur-

tiss-Wright Export Corp., 299 U.S. at 322-29). A practical

construction establishing a rule of property could not be

successfully challenged at this late date, even if no judicial ~

rulings on the point had ever heen made. |

The Government has attempted to do a lot of explain-

ing in its brief. It explains away the admitted. general

assertions of ownership of lands beneath coastal waters,

both in the eighteenth century and today, by assuming.a .

gap at the time of the Revolution, during which the

States did not make the claim; we have seen that this

is a false assumption. It explains away twenty or more

decisions of this Court. It brushes aside Vattel- as. re-

flecting only his own opinion. It explains away Jefferson’s

note of 1793. It explains away a dozen or more grants

of land under coastal waters accepted from the States.

It explains away Congress’ fixing of State boundaries

‘\three miles from shore. And it does -not hesitate to call

this Court unsound in long lines of. decisions. One may:

say with the Queen in Hamlet, ‘‘The lady doth protest too

. much, methinks’’ (Act ITT, ‘Se. 2, 1. 242).

The only true explanation of this litigation is that the

Government, having found that portions of the coastal

“waters are valuable (Govt. Brief, p. 144), covets’ what is

not its own, and seeks to repudiate a century and more

of history in order to obtain that value without paying

for it.

POINT IV

: The ‘deeb of State ownership of lands under

coastal waters is an established rule of property, which.

this Codirt should not disturb.

Plaintiff’s demand for judgment in this action implies

_ that the doctrine upon which the people of the United:

States and the several States have relied for a great num-

“ber of years is incorrect and unfounded. A doctrine es-

tablished.as a rule of property. since before the creation

of the separate States, like that of State ownership of

submerged lands, should hot be overthrown. The Lotta-—

wanna, 21 Wall. (88 U. S.) 558 (1874) ; Goodtitle' v. Ktbbe,

9. How. (50 U. S.) 471 (1850). A consideration of some

of the problems whick would be raised by judicial re-

pudiation of that doctrine emphasizes the wisdom of -

plying the rule: just mentioned.

Recognition of Plaintiff’s claim would not ‘be a- mere

matter of upsetting one line of former jurisprudence to

adopt and accept another, but this Honorable Court would

be called upon to re-examine the whole range and stope

of submerged land. ownership, step by step and in frag-

mentary succession, over a long and indeterminate number -.

of years.

Numberless miles of coastline would have to be con-

tested separately. Any rule approaching uniformity would

necessarily face numerous exceptions and qualifications —

which the’ several agreeménts of cession with former —

sovereigns, and different acts admitting the several States.

into the Union, would produce. Not only distinctions be-

tween. States, but the need for detailed definitions of -‘‘in-

land waters,’’ and. questions as to the limits of State po-

lice power, would create uncertainties affecting many

A number of specific questions occur to us as we con- -

sider the-status of jurisprudence, if the property rule of

State ownership were to be snanitiog by -a decision for |

the plaintiff. |

If the Federal Government owns part of the ‘submerged

_ lands within the coastal waters of a-State, where do the

lands start in their seaward extension? Do they begin:

at. the present, low-water mark, or where that mark was.

when a littoral State was admitted into the Union? Who

would own ‘natural accretions? . Of equal importance,

_who would own the many square miles of coastal lands

which have become submerged after coastal States were -

admitted into the Union? We must not be. unmindful of

_ the fact that one or more States have undergone substan-

tial recessions of their coastlines since they were admitted

to Statehood..

The- diversity of coastlines, with respect to indentations,

would also present a problem. Definitions of such water

bodies as bays, harbors, sounds and straits would have to

be made by the Courts in an approach to some uniformity

of the title issues between the United -States and the

| ‘several States. The application of the headland-to-head-

. land rule referred to in- Manchester v.. Massachusetts, |

\ 139 U. S. 240, 257 (1891), supra, p. 29,-is by no means a

\ simple problem. The Government’s own brief shows some

of. these uncertainties. I¢>refers with apparent. approval

‘ 3 . .

. : 2 ®

to proposals which would treat a bay ten miles or more

in width at its entrance as inland waters (Br. p. 18n.), al-

though this Court in the Manchester case gave ‘‘two

marine. leagues in width at the mouth’’ as the ‘standard.

In its analysis of the Answer it is unable to say ‘with

certainty whether Santa Monica Bay (Br., p. 231) and

Massachusetts: Bay (Br., p. 254) are to be treated as ‘in-

‘land waters or open sea.

Quite evidently acceptance of the Government’s thesis

would require this Court to determine under the individ-

ual facts, the status of almost every wharf, roadstead,

breakwater, cove, inlet, bayou or indentation on the entire

coast, to ascertdin whether it ene to the State or the

nation.

An additional class of problems which would arise » from

a holding of Federal title to submerged coastal lands re-

late to the commercial fishing industry. This industry,

one of the earliest and still an important branch of the

economy, has been built up under State regulation, sus-

tained on the basis of State ownership of the sub-soil.

Denial of that ownership would put im -jeopardy. the

States’ presént power to retain for their own citizens the

produce of the sea, and would cloud the basis for existing

fishery. regulations.

Recognition by the plaintiff ‘that success in this suit

may lead to attempts at further inroads on State owner-

ship and control ‘of . ‘Submerged lands is found in the

language of the Statement in Support of Motion, that:

“this case is sharply to be. distinguished from thase

decisions which are thought to’ hold that the State

has property interests in bays, harbors, rivers and

other inland waters as well as the so-called tide-

ands’’. (p. 3).

ly | ‘yt

,erowning J sdbnde of - the i th e Govern-

8 position. is |the fact is it is d to admit

(Br., pp. 14, 144) that, if it persuades this Court to ac-

cept its views, it will then have to go to Congress to

correct the inequity of the situation which will have been

created. -Observance of the general rule of respecting

‘previous decisions on real property law will avoid the

creation of any such inequity.

Conclusion

We respectfully urge that the assertion of title by the .

colonies and States, subsequent Congressional approval

and long recognition of title in the littoral States by the

Federal Government preclude the assertion of title by the

Federal Government before this Court.

We. also submit that the issue has been previously

adjudicated by this Court; that this Court’s long stand-

ing decisions and the uniform course of conduct by the

executive and legislative departments of the Federal and

State Governments have ‘resulted in an established and

long settled rule of property law—the ownership by the

- State of California and other States of their’ navigable.

waters, including — lands underlying coastal

waters. o

The complaint should be dismissed.

Respectfully submitted,

THE Natrona ASSOCIATION: OF

ATTrorRNEYS GENERAL.

CoMMITTER ON THE Brier:

Water R. Jonnson,

En ‘ *Chairman, I

aii | he vl

Ajtorney General of Nebraska, oe

1 aan:

vi tueke ir nye | | ! \.

a 3 64

Cuargncs A, Banwss,

Attorney General of Massa- —

chusetts,

Price Danis,

Attorney General of se

Hvuex S. Jenxnys,

Attorney General of Ohio,

Frev S. LsBriano,

Attorney General of Lowisi-

Epwarp F. Ary,

Attorney General of Kansas.

Also of counsel :

NatHan B. Browst1, |

Grorcg P. Drury, =)

Assistant Attorneys General of. Massachusetts,

Exton M. Hypsr, Jr,

Assistant Attorney General of Texas,

Orrin G. Jupp,

New York City,

JOHN Lp Mappgn,

‘ Special Assistant Attorney General of Louisiana,

A. B. MrrcHety, :

. Lately Attorney General of —

Lately Attorney General of 2 Texas.

Dated: February 24, 1947.

\ . a4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.