Motion for Leave to File Brief — United States v. California

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. Ces ohne Qour, U. :

LIBRARY of FEED

SUPREME COURT, U.S. Mar 5

Supreme Court of the United States

OcToBER Tex —

o. gina S

(oe. x Orcas 57

UNITED STATES OF AMERICA,

Plaintiff,

STATE OF CALIFORNIA,

| Defendant.

MOTION FOR LEAVE:TO FILE BRIEF

) AND

‘BRIEF ON BEHALF OF THE AMERICAN ASSOCIATION

7 OF PORT AUTHORITIES, AS AMICUS CURIAE —

: LEANDER I. SHELLEY,

Attorney for The American Association

of Port Authorities, Amicus Curiae.

With him on the Brief:

GEORGE D. LA ROCHE,

WILBUR LA ROE, JR.,

ELDON 8. LAZARUS, ,

REUBEN SATTERTHWAITE,

DANIEL B. GOLDBERG, ~—

ALBERT J. BUCKLEY.

jupictaL Paintine Co., Inc., 82 Beekman St., N. Y.—BArctay 7—3648-9 gi 182

AIT AREY YR, pre ern ge TREO NR

goes ’ .

> ge ee

INDEX

_ Motion FOR LEAVE TO FILE A BRIEF AS Amicus San 1 -

BRIEF ON BEHALF OF THE AMERICAN AssoctaTIon Port Av-

THORITIES,. AMICUS CURIAE sssvvescnanssseonsnssssncoustecesnnnesssssenesseessne 8.

Statement - initindad alas ' aia elbnen aienagloleediaiiatantel: 5

Definitions ea oe sai ee nen inane anialnatie 12

Summary of Argument _—- ieiebiiebiiainas ~ sataninies indeinicaaialainan 12

— I—The act admitting California, was ee in ae"

light of contemporaneoys Supreme Court- decisions holding

that similar language in an earlier act of admission passed R

‘title: to lands under. navigable waters to the new state....,... 14 1 |

Pot II]—The intention of Congress to — to .Cali- : oe, oe %

fornia title to lands under navigable waters is apparent

also from the fact that Congress: specifically reserved title

to all lands except. those under navigable waters, and in-

serted with respect to. navigable waters only a condition .

that they should remain free common —e peseaineboce eesene 1 7

_ Pot II—To interpret’ the California act of slbleitin as

reserving the lands beneath navigable waters to the federal

government would be inconsistent ins the settled policy of

Congress seianisieiliiiond Se Ca itenenninlbeneneieasiintbetimguetenesntin mm. .

Pont IV—The conclusion that Congress intended to convey

title to lands under navigable waters to. the State of Cali-

fornia is further supported by the fact that the state is the

dominant sovereign insofar as real property is concerned

~ and that: there is a presumption against severance of title

to real property from local BOVEFEIZDEY screenees Vidormiamenes 22

Poort V—The ‘decisions ‘of ‘this, Court witli respect to the

ownership of lands —— nayigable wate make no. dis-

; \

, m Pains cierg om apa ces Te PEIN. Feet

AA OLR Se I MGCL Hy Gh ATS ate ’ . iad a

v1 ‘

r ,

ii . INDEX

PAGE

tinction between lands under the marginal sea and lands

under other navigable waters. The sole test has been navi-

qotinty cestiindninatiioaamasiininDbigetiaaniieahiatitiereneniiansnminamnnnniaiainintnnamniiie 32

1. The ‘test established by this Court hes been navigability

and not location sccccnescosesececssoasceoneses svsesecoressencessrnesesesessesene 33

2. The difficulty in distinguishing between bays and the

MAPGINAl SEAS ........sccsseeeeseeseereeseteeenseceseanenstnesssenersseneeneeneennens 39

3. There are no differences between the marginal seas and

other navigable waters which distinguish the decisions

af this Court and which prevent the application to

lands under marginal seas of the decisions regarding

lands beneath other navigable Waters .........cisssseseeseseneees «42

Powt VI—The elaine ‘states acquired title to all lands

under the marginal seas upon: the Revolution except for

possible previous grants by or under the authority of pred-

", cessor SOVETCIQNS ....cesesesesesetessseseseseeenenenensnansecnseceenensnsnenee: enenens 46

Point VII—The United States must base its case upon the

strength of its own title, and not upon the alleged weakness

in the title of Califormia............ccccccsseesseeeesseneeeenensrersneeeenees 54

Powt VIII—The hareh effects of the, Plaintiff’s attempt to

upset the states’ title to lands under navigable waters.. vance 58

CONCLUSION ...sesssererseeeees esninjnaaenasnasaeesaon scncsiasiadintines hesitanbsnans sition 63

INDEX iii

TABLE OF CASES

PAGE

Alleganean, The (Ct. of Commrs. of Alabama Claims), 32 Alb. Law J.

Oe EE cick vchadherubeas PR ear SNE Dart 41

American Loan & Trust Co. v. Grand Rivers Co., 159 Fed. 775

CRBS 0 6.0 cepecccocvensnsscoceccevecepeacedsosesesavcoosess 26n, 27, 32

_ Anna, The, 5 C. Bob. 373 (1805) ..............000- © Oe seeecnseseesece _ 50

Appleby v. New York, 271 U. 8. 364 (1926) ............ ccc ccceceeeees 37n

Attorney-General v. Chambers, 4 De G. M. & G. 206 (1854)............ 50

Barney v. Reskuh, 06 U. ©. BG (IBTT)...ccccctecccccercccccccccssees 34,38 .

Borax Consolidated, Ltd. v. Los Angeles, 296 U. 8. 10 (1935)..... 18, 33, 37n, 38

Clark v. Graham, 6 Wheat. 577 (1821).................45. vedeceeens 26n

Golumbia Land Co. v. Van Dusen, 50 Ore. 59 (1907)................4. 50n.

County of St. Clair v. Lovingston, 23 Wall. 46 (1874)................. 37

Den v. The Jersey Company, 15 How. 426 (1853).................. gue 36

Direct U. 8. Cable Co., Ltd. v. Anglo-American Telegraph Co., 2 App.

Cas. 394 (1877) ...... becpesetsesescoescasovasac’ Po enscesse Coecete 41

Donnelly v. United States, 228 U. S. 243 (1913)....... pesdasvclencoses 37, 38

Duchess of Sutherland v. Watson, 6 Macph. 199 (1868) .~.............. 50

Foster and Elam v. Neilson, 2 Pet. 253 (1829).............ccneeecces 48

Fox River Paper Co. v. Railroad Commission of Wisconsin, 274 U. 8.

GER CORSE) cocccncccicccccces TYTTITTTO TTT TTT TTT Tee Sececoes reeeee 37

Gammell v. Commissioner of Wood and Forests, 3 Mac. 419 (1859)...... 50

Goodtitle v. Kibbe, 9 How. 471 (1845) .........ccccccccccccccccceces 16,17

Greene v. Biddle, 8 Wheat. 1 (1823)..................0.0. eee e eee. 25, 26n

Hamilton v. Brown, 161 U. 8. 256 (1896) .......... ccc ccc cece cece cece 26n

Harcourt v. Gaillard, 12 Wheat. 523 (1827)...........6....cccceeee " 44

- Hardin v. Jordan, 140 U. 8. 371 (1891)-.......... 0. cece eee eee 28, 37n, 38, 54

Hardin v. Shedd,.190 U. 8. 508 (1903)...............0.-. OR Se eH: 37, 38

Helvering v. Griffiths, 318 U. S. 371 (1943).......... Luan caeuaiae . 17,61

Illinois Central R. Co. v. Illinois, 146 U. 8. 387 (1892).......... 24n, 33, 37, 38

Mare v.deem, © What. GOS (9GBE)... cc cccccccccccoccestcccecccces 26n

Klein v. Brodbeck, 15 F. Supp. 473 (1934)......... gas edeosevcecnce 26n

Knight v. United Land Association, 142 U: 8. 161 (1891).............. 37n

Lord Advocate v..Wemyss (1899), A. C. 48... 0.0.0... ccc cece ee eeece 51

Lord Fitzhardinge v. Purcell (1908), 2 Ch. 139.............0 00000505 51

Mager v. Grima, 8 How. 490 (1850) ............ cc ccccccccccccecces 25n

Magoun v. Illinois Trust & Savings Bank, 170, U. 8. 283 (1898).......: 25n

Manchester v. Massachusetts, 139 U. 8. 240 (1891)....... ob sevewsed 37, 40, 51

Mann v. Tacoma Land Co., 153 U. S. 273 (1894)......... Sassenbene 18, 20, 37 .

Martin v. Waddell, 16 Pet. 367 (1842)..........0.2....... 23, 32, 34, 36, 44, 46

Massachusetts v. New York, 271 U. 8. 65 (1926)................ 23, 24, 28, 37

M ’Cormick v. Sullivant, 10 Wheat. 192 (1825)............. 0. cece cu eee 26n

McCready v. Virginia, 94 U. 8. 391 (1877) ........ 00. c cece cece ce uunee 33, 37n

Mobile Transportation Company v. City of Mobile, 187 U. 8. 479 (1903) | 37

Montgomery v. Samory, 99 U. 8. 482 ( DPV Shs bab nev dueensonnuwes n

Mumford v. Wardwell, 6 Wall. 423 (1867)... 0.0.0... ccc cccccceceeee 32, 36

iv _ INDE

; PAGR

Oukley v. Bennett, 11 Mow. 39 CUINS0) ee Pee ceasencas von

Ocvan Industries, Inc. ¥. Superior Court, 200 Cal, 235, 262 Pac, 722

1997) ee “ee ewenee ee sae 41

Oklahoma ¥. Toxna, 258 11,8, 574 (MEE) cece eee eee vevee 87,38

“Packer ¥. Bird, 187 UROL CIBPD) occ cce cee een es pea Ae 94,98

Poople vy. Adderaon, 30 Cal. App. S42 CIPI) ee peaccecece “40n

People vy. Rector & C. of Trinity Church, 28 N.Y. 44 (IRO0) 6... ' 28

ee ee rrr 2hn

Pollard vy. Hagan, 3 How, 212 CIN45). 00.00... 14, 14n, 15, 10, 17, 24n, 28, 35, 48

Queen v. Keyn, L. R. 2 Exot, Div, €3 (1R78) 0... cece eo. M1, Bn, 61, 64

Royal Fishery of the Hanne, Davie's Report (Lreland) 149 (1604-1012) .. 47

Ran Francisco vy. Le Roy, 198 U8. O50 (IRDG) 0... cece ee eee ee Tn, 38

omen Ty Cette, Gee WG GD CODER). ww ncn cccccsccccsesscccccces 33,37, 38°

Secretary of State for badia vy, Chellikant Rama Rao, L. R. 43 Ind. App.

tL EE

Shively +. Bowlby, 152 U8, 1 (CURVE) eee eee eee 19, 22, 87, 37n,

: 38, 44, 47

* Smith vy. Maryland, 18 How, 71, (1855)... ........ Seesecscaccesees or AT

State v. Gilmanton, 14 N. 1H. 407 (1843). ...... peseeSeeseseecccewenss a 2

Sullivan v. Burnett, 105 U.S. 384 CURRL) eee eens census 2hn, 26n

Sunderland +. United States, 260 US. 880 (1PE4) oe poosec Lon

_ Tree Gebroeders, 3. C, Rob. BGLIBOT) cece (icinasthins ee

United States v. Bevana, 3 Wheat, 886 (1818)... .. piaes eichekatesceos 30n

Vuited States vy. Chandler-Dunhar W, P. Co, 220 UL 8.53 (IMTS). ..... 8B

United States v. Crosby, 7 Craneh 115 (1812)... 0.0... er re 26, 26n.

United States v. Fox, 94 UL 8. 315 (I877)....... Ses eeheceoncenceses 25n, 26

United States vy. Holt State Bank, 270 U. 8, 49 (1926)....... 20, 24n, 33, 37, 38

United Statee v. Mission Rock Company, 189 U. 8. 301 (1908)........ 37n, 38

United States v. Oregon, 295 U.S. 1 (1985)... eee eee 24, 28, 37,38

United States v, Perkins, 163 U. 8. 695 (1896) .............. cccccccecdely Oe

“United States v. Utah, 283 U.S. G4 (19381)... cece eee es » »..24n, 38

Weber ¥. Harbor Commissioners, 18 Wall. 57 (1873)...... TET . 38, 37n, 44°

Whitstable v. Gann, 20 C. B. (NS) 1 (1865), Rev'd 11 H.-L. Cas. 192

ST Lied Aacnbharkenerabandesdheieeessanoese kconbinnenns 60

INDEX’ ; v

ek ate —

OTHER AUTHORITIES

. . PAGE

“Amorican Morchant Marine Conference, The Propeller Club of the United

Mtutos, 1046 procowdings, p. IG1... 6)... kee c cece ec cec cee. Kn

Ballentine Law Dictionary, WN Oacesceserveccess Beseeeee se eeeeens - ay

‘Black's Law Dictionary, 2nd Ed., 1910............. Matensecsenbhecsae a9

Hluckatone, Commentaries ..................5... oeehwesessadeen 49, 60, 50n

_ , Bouvior's Law Dictionary, 3rd Kd., 1914..................50..5..... ay

Californin Conntitution of 1849, Article XI1................ geececces 31n

Cong. Globo, dist Cong, Int Sons, pp. 1578, 1772..... see6dsensensanat l6n

21 Cong. Globo 708............. WARES CUSED SO es R0 a6besrdeeee ceases 16

Fodoral Constitution, 10th Amondmont.......................:...... 25n

Fodoral Constitution, Arte l, woe. 10............----- Fewas 40

Funk and-Wagnalls Now Standard PN Ran deshsebackesehnredas ay

H..J. Ros. 226 and 8. J. Res. 48—79th Cong., 2d Bens, .............., 21n

Ilull, Enany on tho Rights of the Crown and the ae of the Kubjecta

_ in the Soa-shoros of the Realm (1430) contained in Stuart Moure's

IHatory of Law of the Foreshore (4rd Ed. 1868, p. 667)............ 50, 50m

Honrings before the Committee on the Judiciary, House of Represen- .

tativon, 75th Congronsn, 3rd Sonsion, pp. 66, 260................4..... 9n

Hourings Before the Committee on Public Lands and Surveys, U. 8.

Senuto, 76th Cong., 1st Sension, p. 59...... ‘eevee Qo eccecccccede ‘cere =) n

Hoarings before the Committee on the Judiciary, United States Benate, |

7th Cong, 2nd Hoas., on 8. J. Res, 48 and H. J, Res. 225, p. 4 (1046) 20n

Kent's Commentaries ...........:..... TYTTT TT TT | Cgevecrscvecessoc 32, 40

New York Real Property Law, Art.3................ a6 dipenssecnses 25n

Public Aids to Domestic anmgertation, 79th Congress, lst Bession,

House Document No, 159, p. 379................- \eeeeeeeeess. 7M, Sn, Gln

, RB.N. J. 46;8......... aren inisatachaes peeusabes peer touneese 25n

‘8. J. Res. 208, 75th Congress (1937-8)........... iad tee .9n, 21n

8. J. Res. Nos. 83 and 92—76th Cong. (1939-40)............... ».-10n,21n

POMP EEE #828 e0ssasseevervecesssesssrecesacivercccccn 15n

9 Stat. 108 SAPSRESAREO APSE ceoesessenseeeeesssveseccesensconseg iD

SE MUGEDNA RAC OH 0056s ensnivnevvnrscasceccccce cs 15n

BE EY PNGB esi seccisiscccorccsescrscccce lin

SEINE SAGcbsteesssresivsissrarrsccisecccsccs tn 23n

SEE Srnntensarerssatisssetecscssstrtecccce cee 24n

OMA ei steetsecessesrscscevessiccetccin 20n

Webster's Dictionary, 998 B@. oo... 2... vecceceeceeedecess. 5. 39

3/47—89119

PAGE

‘Supreme Court of the Anited States

| Ocroszr Term—1946 . “ |

No. 12, Original

———> > aa

UNITED Srates or AMERICA,

Plaintiff, .

" Srats oF CALIFORNIA, aire

| } | _ Defendant.

————_> >a

Motion for Leave to File a Brief as Amicus Curiae

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

Comes now The American Association of Port Author-

ities, by its Attorney, Leander I. Shelley, and petitions this

Honorable Court for leave to appear herein-as Amicus

Curiae and to file the subjoined brief in behalf of the posi-

tion’of the defendant, and in a thereof respectfully

shows:

1. Your petitioner is an Association, the corporate mem-

bership of which consists of public and governmental de-

partments,- boards, agencies or bodies having jurisdiction

with respect to the development and operation of ports and

port facilities. It includes the state and municipal port

authorities at the great majority of United States ports,—

among others, Portland (Maine), Boston, New York, Balti-

more, Miami, Mobile; New Orleans, Chicago, Milwaukee,

Houston, San Francisco, Tacoma and Portland (Oregon).

In addition its corpgrate membership includes certain Cana-

dian and Latin American port authorities but in accordance

with its by-laws, only port authorities of this country and

- their representatives have participated in the proceedings

culminating inthis application.

_ 2. The issue presented is whether the State of Cali-

fornia or the United States owns submerged or reclaimed

lands below the original high water mark of navigable

waters off the coast of California. The United States

Attorney General has stated in Plaintiff’s brief herein that

the decisions of this Honorable Court which establish the

title of the states to submerged and reclaimed lands below

the original high water mark of navigable bays, harbors

and rivers were incorrectly decided. Thus, although the

Plaintiff’s brief does not ask that these cases be overruled,

it directly challenges and beclouds the title of the states

and their grantees to the lands upon which the members

of the Association, your petitioner, have erected port im-

provements at a cost in excess of $860,000,000 and upon

which they plan the erection of further improvements at

a cost of many millions of dollars. Since the decision in ©

this case may well affect the title of the.members of the

Association, your petitioner, to.the improvements already

so erected, and to the lands upon which they have been ~

erected, the interest of your petitioner in the outcome is

patent.

In lieu of submitting a separate memorandum in sup-

port of this motion setting forth more fully its interest,

your petitioner. respectfully refers to the opening state- _

ment (pp. 5 to 11, inclusive) in the subjoined brief, which

statement, this Honorable Court permitting, is nes

herein by teference.

The undersigned has been orally suthedued by the

Attorney General of California, attorney for the Defendant.

_ herein, to state that he has no objection to the granting

% 6

—

of leave to your petitioner to appear and file « a brief herein

as Amicus Curiae.

Waererorz, The American Association of Port Author-

ities, by the undersigned, prays leave to appear herein as

Amicus Curiae to file the subjoined brief in behalf of the

position of the defendant.

Dated: March 5, 1947.

Leanver I. SHELLEY

Attorney for the American Association ©

; of Port Authorities.

The undersigned, attorney for the Plaintiff herein,

raises no objection to the granting of leave to The American

Association of Port Authorities to file a brief herein as

Amicus Curiae.

« @

_ Attorney Gnd of the United States,

Attorney for seeariead

™ 4 - =

apelin (en pte ) pases Seg PON rer RS ay cA EES PERS a ~

eR bate ts SRE SORE oy a ‘ ; RESIN OS ah etree iy aie ” iis , " .

. me

— Court uf the Ruited Gttis

ait Ocréser Term—1946

No. 12, Original

> ><

Untrep States or AMERICA, . |

Plaintiff,

Strate or CaLirorni, sree oa

| _.. Defendant.

>> a

BRIEF ON BEHALF OF THE AMERICAN ASSOCIATION

OF PORT AUTHORITIES, AS AMICUS CURIAE .

Statement |

The present suit is to oust the state of California and |

its lessees from lands underlying the so-called marginal ©

sea from which according to the complaint they have been

producing petroleum ‘‘for a long time past.’’ Since this

Court has consistently held that lands under navigable

water's. within the territorial limits\of a state are the prop-

erty of. such'state (or of its grantees, or the grantees of its” 7

_- predecessor sovereigns), the suit is in effect an attempt to

‘expropriate real property. without the ‘aes ns of just com-

pensation.

The subject matter of the suit is aon however, confined:

_ to petroleum lands, and the relief sought is not confined to -

5] sean

the state of California and the persons leasing petroleum

lands from it. The subject matter is the entire marginal

sea within the territorial limits of California, and relief is

sought against all persons whatsoever claiming title therein

. from the state.

The suit, moreover, is not confined to: bonis which are

presently submerged. The claim is made that the state

never did have title to lands below low water mark. The re-

lief sought, therefore, extends to lands- which were formerly

submerged but which have since been reclaimed or ‘filled

under state grants. | c

In addition, the Plaintiff’s brief. attacks the titles of all

other coastal states to the lands underlying the marginal

seas along their coasts, including by necessary implication

lands reclaimed or filled and wharves and similar structures

constructed pursuant to state grants.

The Plaintiff’s brief does state that no question i is ‘‘here

' presented’’ as to rights in lands between high and low

water mark or in bays, harbors or other inland waters.

Nevertheless, the same brief states that the decisions of

this Court upholding the title of the states and their

grantees in such lands. between low and high water mark

and in bays, harbors and other inland waters, have ‘‘pro-

ceeded upon a false premise’’ and are ‘‘erroneous’’ and

‘‘ynsound’’ (pp. 11, 72 and 143). Although the Plaintiff

does not ask that these cases be overruled, nevertheless,

it argues that they are not sound law.

The Plaintiff’s brief, at pages 197 and 206, asserts that

a federal officer is not bound by a ruling or interpretation

which he has made, and that he can and should reverse.

his position if he believes that it was erroneous. Upon this

‘basis, if the Plaintiff should succeed in the present suit |

after having challenged the soundness of decisions uphold-

ing. state title to lands under the waters of bays and har- |

- bors, it would then become the duty of the Attorney Gen-

SN cer er

eral’s office to reverse its present recommendation that. the

cases dealing with bays and harbors be affirmed despite

their aNeged error, and to bring a subsequent proceeding

requesting this Court to reverse its prior decisions on that:

‘point. , ot cp

The American Association of. Port Authorities is an

association, the corporate membership of which consists

‘of ‘‘public and governmental departments,. boards, com-

missions, agencies, authorities, organizations or: bodies,”’

exercising powers, jurisdiction or authority with respect —

to the planning, development or operation of one or more

ports or harbors, or with respect to the construction, opera-

tion, or maintenance of piers, wharves, terminals or other

port or harbor facilities or improvements (By-Laws of the

American Association of Port Authorities).

The corporate members of the Association include the

great majority of United States ports,—among others such

. Mmajor ports as Boston, New York, Baltimore, Chicago,

New Orleans, Houston, Milwaukee, Philadelphia, Toledo .

and Portland (Oregon). A list of the United States corpo-

rate members is annexed hereto as Appendix I.

. For the most part, the corporate members of the Asso-

ciation in this country are charged with the construction, de-

velopment and operation of publicly owned piers, wharves,

docks, transit sheds and other waterfront facilities in their .

respective ports.

The state and municipal investment in waterway ter- .

minals in this country was estimated in 1932 by the Federal

Coordinator of Transportation at $810,000,000.2 According

to the Board of Investigation and Research established by.

1. The menibership of the Association includes certain governmental agen-

cies of the Dominion of Canada and of the Latin American countries, as -

well as of this country, but in accordance with its by-laws, only United States

members of the Association or representatives of such members have partici-

pated in the proceedings leading to this brief. See Appendix II.

2. Public Aids to Domestic Transportation, 79th Congress, 1st Session,

House Document No. 159, p. 379. , ’ .

~ the Transportation Act of 1940, the total historical invost- -

nient in such facilitios as of 1941 was $861,000,000." This

figure did not include ‘publicly ownod lands on which ter-

minals are located, where such lands not involving any

expenditure of funds have boon dedicated to torminal use,

sometimes for many yoars.’’ Tho Board reported a total

capital cost of such terminal facilities in New York City

alone in the amount of $340,000,000,

To this total investment in port facilities it is pro-

posed to add $150,000,000 in the near future.*| Tho prosont

and prospective state and municipal investment in port

facilitios thus exceeds one billion dollars, Many of the port

terminal improvements included in this figure oxtond out:

over navigable waters or are constructed upon filled or re-

claimed lands, They have been constructed in reliance -

upon titles to submerged or reclaimed lands held by or de-

‘riyed from the respective states,

The ‘investment. of public moneys in port: facilities in

the United States is many times-greater than the value

of the oil lands which are in controversy in this case. Ac-

cording to the California State Division of Lands,* the total

estimated future production from all the known oil bearing ©

lands off the coast of California amounts to approximately.

184,000,000 barrels, having a current market value of ap-

‘proximately $265,000,000. This figure does not, however,

represent the value of the petroleum in its natural situs

. since it must be reduced by the expenditure required to ex-

tract the oil therefrom. The value of the oil-land here jn

controversy is only a smail fraction of the value of the im-

provements made by state and municipal agencies upon sub-

merged and reclaimed lands.

3. Publie Aids to Domestic Transportation, 79th: Congress, 1st Session,

House Document No. 159; p. 379. ,

: 4 1945 proceedings of the American More}ant Marine Conference, The

Propeller Club of the United States, p. 151.

5. Information furnished at the request of your Amigu# by the Attorney

General of Calpe.

>. .

- Tho active interest of your Amicus in the question here

at issue, predates the commencement of this litigation. In-

doed, it predates the participatign of the State of Cali-

fornia, The controversy was precipitated in 1987 by an at-

tempt by various federal executive departments to secure

action by Congross resolving that ‘‘submerged lands along

the coast of the United States and below low water mark

and within a distance of three miles under the ocean below

such low water mark *° * * are asserted to be the property

of the United States.’” This resolution sought to direct

the United States Attorney General to assert. and establish

such title and to eject the occupants of such lands. There

was no exception as to bays and harbors.

Your Amicus appeared at the hearing upon this resolu-

tion before the House Committee on the Judiciary and ob-

jected to the passage thereof. At the hearing, an Assist-

ant Solicitor of the Department of the Interior was asked

what the position ‘‘of these various port authorities’? would

_ be if the resolution was adopted. He did not deny that the

bill would apply to them, but merely said that the question

should be settled.’ At the same hearing, a representative —

of the Navy Department supported his arguments for the

passage of the resolution by citation of cases dealing with

submerged lands within bays and harbors.°

This resolution failed to pass the House of Representa-

tives, and at the next Congress, a renewed but unsuccess-

ful attempt was made by various federal executive depart-

ments to secure the passage of' legislation directing the

United States Attorney General to assert and establish the

right arid interest of the United States in ‘‘petroleum de-

posits underlying submerged lands adjacent to and along

the coast of the State of California, below low water mark .

and under the ‘territorial waters = the United States of

6. ‘8. J. Res. 208, 75th Congress (1937-8).

7. Hearings before the Committee on the J anata ‘House of Representa-

tives, 75th Congress, 3rd Session, p. 65.

8. Id. at p. 259.

America.’” Again no exception was made for lands under

bays and harbors, and the restriction to petroleum deposits

did not serve to answer the objections of the port authori-

ties since the United States could have title to such deposits

only if it owned the lands in which they lie.

Your Amicus, therefore, appeared at the Congressional

hearings and resisted the efforts to sceure the passage of

such legislation. It is noteworthy that at these hearings,

a proponent of the bill, representing the Office of the Judge

Advocate General, for the Navy Department, actually ques-

tioned the power of this Court to determine title to lands

between high and low water marks, and stated:

“Under: the Constitution it belongs to the Con-

s and not to the — Court of the United

Stat ae

He, too, cited cases dealing with lands under bays and har-

bors, ,

On May 29, 1945, at the time United States Attorney ©

General Biddle initiated asuit, subsequently discontinued, |

_ in the United States Federal District Court at Los Angeles

against the same lessee of the State of California as is

named in the complaint herein, he issued a public statement,

saying:

‘The suit dogs not involve public lands or lands

under inland waters, though the status of these will,

no doubt, be clarified fo some extent by the dectston. 93

(Italics ours. )

In the light of the past history of this controversy, as

well as the attack herein upon the soundness of the deci-

sions upholding state title to lands under bays and har-

bors and the argument made that federal executive officers

should not consider themselves bound by their previous

rulings, the Court will perceive the anxiety with which the

S. J. Res. Nos. 83 and 92—76th Cong. (1939-40). .

10. Hearings before the Committee on Public Lands and Siiin, U. a

Senate, 76th Cong., Ist Session, p. 59.

~ ° °

outcome of the present suit is awaited by the public port

agencies of the country. The Court will also understand.

their complete inability to take comfort from the statement

‘that their title is not directly challenged in this case.

The basic allegation in the Plaintiff’s complaint, and

the major. premise in its argument, is that the federal gov-

ernment is ‘‘the ownor in fee simple of’’ or in the alter-

nate ‘‘ possessed of paramount rights in and powers over’’

the lands under the marginal sea off the California coast.

Curiously enough, the Plaintiff’s brief contains little ma-

terial on this vital point. It cites no cases holding that

_ it has title to lands under the marginal sea and no cases

holding that it is possessed of paramount rights in such

lands, and of course there are no such cases to-cite. It

makes only the untenable argument that the national boun-

daries along the coast are not established by the nation but

by international law and that there are ‘‘primary govern-

mental aspects’’ of the so-called marginal ‘sea which are

predominantly to be associated with the federal “ged

ment rather than the state government (pp. 10, 82-88).

_ lieu of a serious effort to establish the fundamental ae

gations of the complaint, the Plaintiff’s brief is primarily’

devoted to an attempt to attack the title of California to

the submerged lands,—an attempt which, even if success-

ful, would not justify a decision in the» federal govern-

ment’s favor if it fails to establish the basic allegations in

its complaint. ;

So far as this attempt is concerned, the federal gov-

ernment faces these unescapable facts,—that the western

boundary of California is- three miles seaward from its

coast, and that this Court has repeatedly held that title to

submerged lands uhder navigable waters within the terri-

torial limits of a state-belong to the state (or to its grantees

or the grantees of its predecessor sovereigns), whether the

state be one of the original a states or be a subse-

quently admitted state.

Definitions

In this brief, lands between high and low water marks

will be called the ‘‘foreshore.’’ The term ‘‘tidelands’’ sug-

gested by the Government to describe these lands is likely

to be confused with the phrase ‘‘soils under tide waters’’

and similar phrases -which have been frequently used by

this Court to describe lands below low water mark as well.

_-~ ©. We shall use the terms ‘‘bays’’ and ‘‘harbors’’ without

~ explicit definition. The terms have always been used to

denote indentations of the coast between definite headlands,

no agreement as to the distance between head- .

of indentations which distinguishes a bay

r irregularity of the coast (see

lands or the

or harbor from

pp. 39-41, infra).

The term ‘‘margiual sea’’ will be used to describe the

belt of waters measured outward from the mean low water

mark (or fromthe seaward limit of a bay or river mouth)

to the territorial limit of the state. .

Summary of Azgument Herein

- The arguments herein will take the following lines:

Points I to V hereof are in support of the proposition.

that title to submerged lands within her beundaries passed

to California at the time of her admission to. the Union.

The proposition that it did so as a matter of constitutional

necessity because of the peculiar nature of lands under

navigable waters, is fully discussed in the Defendant’s brief.

No attempt is made to repeat that argument herein. In-

stead, we will demonstrate that regardless of any consti-

tutional necessity, the act of admission clearly and unmis-

takably evinces the intent of Congress to vest California

with title to all latids under navigable waters within her

boundaries, including lands under the marginal sea, subject .

- only to grants made by California’s predecessor sovereigns.

- The basis for this conclusion is that the act of admission

was adopted by Congress in light of contemporaneous deci- _

sions ofthis Court interpreting a similar act as conveying

land under navigable waters to the new state (Point I);

that the condition imposed upon California by the act of

admission to maintain navigable waters as free common

highways is inconsistent with any intent on the part of Con-

gress to retain title thereto, as is also the reservation in the

act of title to uplands (Point II) ; that an interpretation of

the act of admission as reserving lands beneath navigable

waters to the federal government would be inconsistent with

the settled policy of Congress to hold such lands in trust

for future states (Point III) ;. that there is a presumption

against the severance of ownership of unappropriated real

property from local sovereignty and that since the state is

the dominant sovereign so far as real estate. is concerned

_ and the ultimate owner of all real property within its limits,

title to all unappropriated real property is presumed to

pass to the state in the absence of an express reservation

(Point IV); and that the many opinions of this Court up-

holding state title make no distinction between lands under

navigable waters of bays, harbors and other inland waters,

and lands under navigable waters of the marginal sea, and

‘that the ratio decidendi of those cases 8 applies ane to

he marginal sea (Point V).

\ In light of the attack made in the Plaintiff’s brief upon

‘the original thirteen states, their territorial limits and their

rights to property therein, Point VI will be devoted to a

discussion of the status of title in the marginal sea in these

original states, and will demonstrate that the attack is

wholly without foundation.

Point VH hereof will be devoted to the gvepesities that

the Plaintiff must succeed, if at all, upon the strength of its |

own case and not upon the basis of any alleged weakness

in California’s case, and that it has failed to sustain this

burden. ary

_ Finally, Point VIII will be devoted to’ the disastrous ef-

fects which would result from the doctrine advocated by the

Plaintiff.

- > POINT I

The act admitting California was adopted in the

light of contemporaneous Supreme Court decisions

holding that similar language in an earlier act of ad-

mission passed title to lands under navigable waters to

_ the new state. 7 ;

The question whether an act admitting ‘a new state

passed title to lands under navigable waters was first de-

cided in this Court-only five years before California was

admitted into the Union. In Pollard v. Hagan, 3 How. 212 .

' (1845), Alabama’s act of admission was considered in this

connection. The language in that act was similar in all

material respects to the language employed by Congress in

admitting California. ‘The three provisions of substance

were:

_ (a) Admission of the state into the Union on an equal

footing with the original states. |

_°(b)- Reservation in the United States of title to certain

lands within the state’s boundaries, described in the case

of Alabama as ‘‘waste and unappropriated lands,’’ and in

the case of California as ‘“public lands.’

11. That both these phrases were intended to have the same meaning is

clear from the use by this Court in Pollard v. Hagan, 3 How. 212, 230 (1845),

of the words ‘‘ public lands’’ to describe the ‘‘ waste and unappropriated lands’’

- reserved to the federal government in the Alabama act.

bn eee E =

= ys

said state shall forever remain free public highways.

The Alabama act of admission received detailed con-.

sideration from the court in the Pollard case in 1845. The

importance of the question was recognized at the outset of

the opinion (3 How. 212, 220):

‘‘And we now enter into its examination ‘with a just

sense of its great importance to all the States of the

Union, and particularly to the new ones.’’

i? F "

The decision of the court was that Alabama, upon its ad-

- mission, succeeded to title to ‘‘the navigable waters and the

soils under them’’ within her boundaries. The-opinion con-

tains no hint of a distinction between navigable waters in-

side and outside of Mobile Bay.

_ The Pollard decision was handed down on February 18, .

1845. On that date there was pending in Congress the bill

to admit Florida and Iowa into the Union. Although Con-

gress was thus on notice that the language employed in the

Alabama act” would be interpreted by this Court to pass

title to a new state to all-lands under all navigable waters’

within its boundaries, Congress, on March 1st, adopted an

act admitting Florida finally and Iowa provisionally,” and .

employed the same basic language as had been interpreted

in the Pollard case. ‘The act was approved March 3, 1845,

within a fortnight of the Pollard decision. It is inescapable

that Congress intended FJorida and Iowa to succeed to lands

under all navigable waters within their boundaries. In

rapid succession, similar language was used in admitting

Texas" on December 29, 1845, Iowa finally on December 28,

1846** and Wisconsin provisionally on March 3, 1847 and

finally on May 29, 1848." es ,

. 12, 8 Stat. 489; 3 Stat. 608,

13, 5 Stat. 742. | ’

14. 9, Stat. 108, ,

15. -9 Stat. 117.

16. 9 Stat. 178; 9 Stat. 233.

The bill for the admission. of California was before Con- -

gress in the spring of 1850. After the amendments of April

23, 1850, (21 Cong. Globe 798), the bill contained the same

three essential elements as the earlier act admitting Ala-

bama. | : |

While the California bill was before Congress, this

Court, on May 28, 1850, in Goodtitle v. Kibbe, 9 How. 471,

again passed upon the effect of such language in the Ala--

_bama act and specifically reaffirmed its 1845 decision in

_ Pollard v. Hagan, which held that such language passed to

the new state all title to land under ‘‘navigable waters.’’

On August 13, 1850, two and one-half months after the .

Goodtitle v. Kibbe. decision, the Senate passed. the Cali-

fornia act of admission.” ‘The. House adopted it on Sep-

tember 7, 1850," and it was approved on veal 9,

1850.”"*

In the light of this history, the conclusion is Senet

that Congress intended to give California (as well as Flor- '

ida, Texas, Iowa and Wisconsin) the same title to lands

under navigable waters as this Court decided had passed

to Alabama as a result of parallel language. This result

follows whether or not the Pollard and Goodtitle. cases

were decided rightly or wrongly. Even if this Court should

today be convinced that those two cases should have’ been.

decided differently, nevertheless the fact would remain that

Congress acted in light of these two decisions when it used

substantially the same language in the California act of

‘admission as it did in the Alabama act, and that it obvyi-

ously did. so with the intent to produce the same result in.

California as this Court said had been produced in Ala-

bama.

An act of Congress passed after a decision by this Court

must be held to have intended the result reflected in the

; Cue. Globe, 31st Cong., Ist Sess., p. 1573.

18. Id, p.1772. /

»® 9 Stat. 452.

y, ee

ee ee ate

BBR oe ED UR Oe oe

-. Court’s decision as of the time of the enactment regardless

of a possible change in this Court’s opinion at a later me,

Helvering v. Griffiths, 318 U. 8. 371 (1943).

It must be emphasized that in the Pollard case this Court

said that Alabama’s act of admission passed title to lands

within her territorial limits under ‘‘navigable waters,’’

—it did not limit its decision to lands under ‘‘bays, har-

bors and other inland waters.’’ This decision was reaf-

firmed in the Goodtitie case: It is apparent, therefore, that

’ in immediately thereafter using substantially the same lan-

guage in the California act of admission, Congress intended

to pass to that state title to lands under all navigable

waters within her boundaries,—those under. the marginal

- _gea as well as those under bays, harbors and inland waters.

In such a connéction Congress cannot be presumed to have

distinguished between ee and dictum, if dictum it be.

POINT It

The intention of Congress to transfer to California

title to lands under navigable waters is apparent also

from the fact that Congress specifically reserved title.

to‘all lands except those under navigable waters, and

inserted with respect to navigable waters only a con-

dition that they should remain free common highways.

The act admitting California contains intrinsic evidence

_to prove the Congressional intent to vest in the new state

title to all lands under navigable waters. The act was not

- silent onthe reservation of property to the United States—

but the only reservation was of ‘‘public lands.’’ The proto-

type of this reservation was that-in the Alabama admission

act in which Congress reserved title to all ‘waste and un-

appropriated lands’? within the boundaries of Alabama.”

In Pollard v. Hagan, 3 How. 212 (1845), shortly before

20. 3 Stat. 489; 3 Stat. 608.

California’s admission, such — had been described as

“public lands’’ and the phrase had already been interpreted

as including only the uplands. ‘Later cases have reached .

the same result regarding the statutory reservation of

‘‘public lands.’? Mann v. Tacoma Land Co., 153 U. 8. 273,

284 (1894); Borax Consolidated, Ltd. v. Les Angeles, 296 =

U. S. 10; 17 (1935). In other words, while ceding local Sov-

eel ty over the whole territory of California to the new,

state\within her boundaries, which included the marginal

sea, Congress elected to reserve specifically only title to the

uplands. The implication is obvious that there was no in-

tention\to reserve title to the navigadle waters and soils

beneath \them.

This conclusion is the more itiaee because Congress

was not silent upon the quéstion of navigable waters them-

' selves. It'specifically inserted in the act a condition that

such waters ‘‘shall be common highways, and forever free,

as well as to the inhabitants of the said State as to the citi-

zens of the United States, without any tax, impost or duty

therefor’ (Sec. 3, Act of California’s admission, 9 Stat.

452). This condition is-wholly inconsistent-with an intent

to reserve title to the federal government.

POINT III |

To interpret: the California act of aifiaiiaie as re-

serving the lands beneath navigable waters to fed-

eral government would be inconsistent with the settled

policy of Congress. | .

With the exception of Vermont, Kentucky, Maine, Texas

‘and West Virginia, each state admitted into the Union sub- |

_ sequent.to the original thirteen was, prior to its admission,

a territory exclusively within the control of the United

States., During the territorial status, Congress freely

granted uplands to sain persons. But exactly the op-

enn = ID a > all § ace =

a ie

posite course was pertaok with regard to =e sin navi-

gable waters. As to the latter lands, Congress imposed

| upon itself a policy of holding them in trust for the newly

. admitted States.

In Shively v. — 152 U. S. 1, 48-50 oe this

Court said:

“We enn doubt, therefore, that teens has

the power to make grants of lands below high water

mark of mavigable waters in any territory of the

United States, whenever it becomes necessary to do

80 aa

“But Congress has never undertaken by general

laws to dispose of such lands. And the reasons are

not far to seek. * * *

‘The Congress of the United States, in dimes

‘of the public-lands, has constantly acted upon the

theory that those laiids, whether in the interior, or

on the coast, above high water mark, may be -taken

up by actual occupants, in order to encourage the.

settlement of the country; but that the navigable

waters and the soils under them, whether within or

‘above the ebb and flow of the tide, shall be and re- ~~

main public highways; and, being chiefly valuable

_. for the public purposes of commerce, navigation and

fishery, and for the improvements necessary to se-

“cure and promote those purposes, shall not be

‘ granted away during the period of territorial gov-

ernment; but,, unless in case of .some international

duty or public exigency, shall beheld by the United

States i in trust for the future states, and shall vest

in the several states, when organized and admitted

into the Union, with all the powers and prerogatives —

appertaining to the older states in regard to such -

waters and soils within their respective jurisdictions ;

‘in short, shall not be disposed of piecemeal to indi-

viduals as private property, but shall be held as a

- whole for the purpose of beingultimately adminis- |

teréd and dealt with for the public benefit by the

. state, after it shall have sipcaoee a completgly organ-

ized community."’ e

cinema iinet pranitinsncaraaeitemmaainaas eimmeaiaamiaaiaeemaaaaes eee ia

. = .

The importance: of this Congressional policy is appar-.

ent. Even assuming Congress had a power'to reserve to the

United States lands under navigable waters within the

boundaries of a newly admitted state, it nevertheless has

consistently restrained itself from granting such lands dur-

ing the territorial status.. Such restraint is consistent only

with a policy to turn over to the new states intact title to

all lands under navigable waters within their boundaries.

In Mann v. Tacoma Land Company, 153 U. 8S. 273,, 284

| (1894), this. Court again pointed out that such a policy ‘of

restrairit was followed by Congress. In referring to the

act providing for the admission of Washington, Montana

and the two Dakotas,” the Court said:

“No. one can for a moment 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 soil beneath the tidewaters and

those of navigable streams. ”

: United States v. Holt State Bank, 276 U. S, «*, 55

| (1926), the Court said:

“the United States early adopted and constantly

has adhered to the policy of regarding lands under

navigable waters in acquired territory, while under

its sole dominion, as held for the ultimate benefit of

future states, and so has refrained from making any

disposal thereof, save in exeeptional instances when

impelled to particular disposals ous some interna- -.

tional duty or public exigency. =

The most: recent evidense of this policy of Congress

| was its action regarding the recent bills dealing with title

to lands beneath the marginal seas. In the opening State-

ment of this Brief wé pointed to the attempts in two con-

secutive Congresses, made by various federal executive de-

partments, to secure an assertion by Congress that the

—

21. 25 Stat. 677.

- *..,

en ebtvaghare Pe SO AE re cl te Nee on Nn OO ala tls Shp ale

United States is the owner of lands beneath the marginal

seas. Congress refused to adopt such a resolution 3 in each

mar: ° - _-—_—

The attacks, however, thus ‘eit by federal officers upon

state and local titles, prompted the introduction in the 79th

Congress of legislation™ to quiet the title of the respective

states and their. grantees to. lands beneath all navigable

waters, including the marginal seas, by releasing and quit-

claiming to the states any claim of the United States to

such lands. The resolutions recited that they were ‘in

recognition of the title and interest of the several states’’

in such lands. Both houses of Congress passed this legis-

lation. When the President, on August 1, 1946, vetoéd the

bill, he stated that he did so because of the pendency of the

present suit.

' Despite the fact that the release and quitelaim vente.

tions failed to become law, there is no doubt as tothe atti-.

tude and policy of Congress with respect to the title of the

states in lands under navigable waters, including the mar-

ginal ‘seas, consistent with its century old policy, as being

against any ownership of such lands by the United mates

within the boundaries of a state‘of the Union.

‘22. S. J. Res. 208—75th Cong. (1937- 8); 8. J. Res. Nos. 83 and 92—76th

=. (1939-40).

. H. J. Res. 225 and 8. J. Res. sii cneceae

“oy cn imac ence tn nai An A aati i

POINT IV

‘

‘The conclusion that Congress intended to “convey ‘

title to lands under navigable waters to the State of

California is further supported by the fact that the state _

is the dominant sovereign insofar as real property is

concerned and that there is a presumption against sev-

_erance of title to real property from local sovereignty.

This Court has repeatedly held that under the doctrine

of equality between states, subsequently admitted states

have the same rights to lands beneath navigable waters as

did the original thirteen states, and that therefore they are ~

-vested with title thereto and ownership thereof. There is

language in certain of these cases that suggests that this

is a constitutional doctrine resulting from the inherent re-

% lationship between the states and the federal government.

This doctrine ig discussed at length in the Defendant’s brief,

and we will not burden the court with a repetition here. |

Prescinding, however; from the question whether title

to submerged lands must as a matter of law pass to a newly

created state upon its creation, it is clear that the state gov-

ernment is the dominant sovereign insofar as real property

is concerned and that there is a presumption against sev-

erance of title to real property from the local sovereignty.

_ Whenever one sovereign makes a cession of territory .

to another without reserving the ownership of any prop- -

erty within the territory, the presumption must be against

any such reservation. Thus the court said in Shively v.

Bowlby, 152 U. S. 1, 57 (1894):

‘“‘Upon the acquisition of a teriitery by the United

States, whether by cession from one of the states, or

by a treaty with a foreign country, or by discovery

and settlement, the same title and dominion pass to

the United States, for the benefit of the whole peo-

ple, ‘and in trust for the several states to be ulti-

mately created out of the territory.’

For example, the Treaty of Guadalupe Hidalgo,™ upon .

which all claims of the United States and California to

lands within the boundaries of the state merely

delineated a new territorial boundary byten te Sepa

lic of Mexico and the United States of America. There was

no specific deed to the United States of the Mexican gov-

ernment’s title in unappropriated and waste lands or to

lands under navigable waters, including those under mar-

ginal seas. Nevertheless, in the absence of any reserva-

tion of such title by Mexico, it was obvious that it was the

intention of both parties that all such title theretofore held

by Mexico passed to the United States. Certainly, the

treaty could have provided that the outgoing sovereign

should nevertheless retain property rights in the territory

ceded (cf. Massachusetts v. New York, 271 U.S. 65 [1926]).

But such a situation between coordinate sovereigns is so

bizarre that it would take most — language to- accom-.

plish that result.

This. presumption applies equally to uplands, the fore-

shore of and lands under navigable waters, whether bays,

harbors, rivers, lakes or the marginal seas. The applica-

tion of the presumption to lands under navigable waters

has been expressed several times by this Court. Thus, in

Martin v. v. Waddell, 16 Pet. 367, 416 (1842), the Court said:

.. And if the. great. right of dominion and owner-

ship in the rivers, bays, and arms of the sea, and

the soils under ‘them, were to have been severed

_ from the sovereignty, ° * * the design to make this

important change in this particular territory would

have been clearly indicated by appropriate terms;

and would not have been left for inference from am-

biguous language.’’

24. 9 Stat. 922.

24 °

See aleo Massachusetts v. N ew York, 271 U. S. 65, 89 (1926) ; .

United States v. Oregon, 295 U. S. 1, 14 (1935).

Where the cession of sovereignty is between the United

States and a state, the same presumption must be indulged.

Thus, when Texas ceded territory to the United States in

1850," the United States succeeded to all title theretofore

held by the state of Texas to lands within the ceded terri-

tory, including lands under navigable waters therein. —

‘Where the cession of sovereignty is, however, as in the ,

instant case, by the United States to a new state, the cession

is not of complete sovereignty. Both the United States

and California, since September 9, 1850, have been sovereign

within California’s boundaries. But, as between the na-

- tional and local sovereignties, this Court has already stated

that the presumption is that title to lands under navigable

waters passes to tlie possessor of local sovereignty,—#. e. the

State. Massachusetts v. New York, 271 U. S. 65, 89 (1926) .

and United States v. Oregon, 295 U.S. 1, 14 (1935) (both per

Strong, J.).% = | ae ;

This result is nat only established by these recent unan-

imous decisions but. follows from the nature 6f the na-

tional and state governments under our Federal Constitu-

‘tion. The state of California was admitted into the Union

‘Con an equal footing with the original states,’’—a result

not only inténded by Congress but required by the Consti- :

tution.” Whatever else such admission ‘entailed, it re-

sulted in a political, governmenta] and sovereign parity

between California and the.original states. This the plain- -

tiff concedes (Br., pp. 69, fn. 5; 92). Included in this equal

25. 9 Stat. 108; 9 Stat., app. 10. - :;

26. The same presumption would apply, in the absence of specific reserva-

' tion, to uplands. There has been no occasion, however, for the Court to include ~

such lands within the presumption of transfer ‘to the local sovereign since every,

specially reserved the right of primary disposal to such lands _

act of admission

to-the United States. .§_-—s—i“g

97. Pollard v. Hagan, 3 How. 212, 229, (1845); Illinois Central R. Co. v.

. MMinois, 146 U. 8. 387, 434 (1892) ; United States v. Holt State Bank, 270 U. 8.

49, 55 (1926); United States v. Utah, 283 U. 8. 64, 75 (1931).

ie i 1. | ‘| |

aaah Maro |

sovereignty, jurisdiction and political standing: is Calif-

ornia’s right, within her own borders, to exercise all the

powers of government possessed by the original states.

The federal government is a government of delegated

and limited powers. The states are the possessors of

the residual sovereignty.” California, by reason of her ad-

mission on an equal footing, is on a parity with the original

states in this respect. In keeping with the concept of the na- -

tional government as a limited ‘sovereign, the presumption

against severance of title to lands under navigable waters

from sovereignty would naturally have no application in

favor of the federal government.

It is unquestionable that in this country the states are

the source of rights in real property and that California,

having, both by statute and as a constitutional requirenient,

been admitted on a political, governmental and sovereign

parity with the original states, shares their rights in this

respect. ar

2 :

‘Under our Constitution, the transfer of property at

death by will or sucéession is a privilege derived from the

_.State and which the state may withhold absolutely.” Even

where succession and devise are permitted, the rules of .

succession and the formalities of will’ are matters of state

_ law, and in the absence of a valid will or lawful heirs, it is

to the state as dominant sovereign in the field of real prop-

erty and not to the United States that title escheats.”

Under our Constitution, the question of the nature of the

permissible estates in real estate,” the formalities necessary |

to transfer title, the form and effect of deeds, mortgages,

28. 10th Amendment-to Federal Constitution.

29. Mager v. Grima, 8 How. 490 (1850); United States v. For, 94-U. 8. .

315, 320 (1877).; United States v. Perkins, 163 U. 8. 625, 627 (1896); Magoun

v. Illinois Trust ¢ Savings Bank, 170 U. 8. 283 (1898) ; Plummer v. Coler,

178 U. 8. 115, 134, 137 (1900). ;

30. Sullivan v. Burnett, 105 U. 8. 334 (1882) ; Greene v. Biddle, 8 Wheat.

1, 12 (1823); Mager v. Grima, 8 How. 490, 493 (1850) ; United States v. Foz,

94 U. S. 315, 320 (1877). See also other cases cited in previous footnote.

31. See, e. g. New York Real Property Law, Art. 3; R. 8. N. J. 46:3.

Se ; e 7) | | | 7m ' |

ina \¢ fa ; .

a sales

| 26 3

‘

leases and other insfruments conveying real property or

interests therein, within the limits of the several states, are

-. matters of state and not federal law." These rules of law

are familiar and undisputed.

The subordination of the United States itself to the

dominance of the states in this field is shown in a few dra-

matic cases. In United States v. Crosby,'7 Cranch 115

(1812), the United States sought to recover lands in Maine

which had been deeded to the United States by an instru-

ment executed in the West Indies, without ‘seal, and valid

at the place of execution.. The laws of Massachusetts, under

whose sovereignty Maine was in 1812, required a sealed

instrument to pass title to realty. The Cotrt held against

the claim of the United States, holding in an opinion by

Justice Story (7 Cranch 115, 116):

“<The court entertain no doubt on the subject; and

are clearly of the opinion that the title to land can

* be acquired and lost only in the manner _prescribed

by the law of the place where. such land is situate.’’

In United States v. ‘Fox; 94 U.S. 315 (1877), the decedent

: willed all his real and personal property to the United

, States. The decedent’s heirs contested the validity ofthe

will. The New York courts held that the will was void as

to real property but valid as to personalty since the New

York statute permits only natural persons. to succeed to

lands at death. On error to this Court, the New York de-

cision was upheld and the attempted devise to the United

States stricken down. The Court stated (94 U.S. 315, 320) :

“The power of the State to regulate the tenure of

real property within her limits, and the modes of |

32. Sullivan v. Burnett, 105 U. 8S. 334 (1882); Hamilton v. Brown, 161

UT. S. 256 (1896) ; American Loan & Trust Co. v. Grand Rivers Co., 159 Fed.

775, 778 (1908); v. Brodbeck, 15 F. Supp. 473 (1934) ; United States

v. Crosby, 7 Craneé 115, 116 (1812); Clark v. Graham, 6 Wheat. 577, 579

(1821) ; Greene v. Biddle, 8 Wheat. 1, 12 (1823); Kerr v. Moon, 9 Wheat. 565,

570 (1824); M’Cormick v. ‘Sullivant, 10 Wheat. 192, 202 (1825); Oakey v.

Bennett, Pw How. 33, 44 (1850); Montgomery v. Samory, 99 U. 8. 482, 483

) (1879) 5 nderland v. United “th 2668U. 8. ws ae _ 233 (1924). “

gS p oe Hef 3 - | ae ee

| | | | i. : } ee

_ its acquisition and transfer, and the rules of its

‘ descent, and the extent to’which a testamentary dis-

position of it may be exercised by its owners is un- .

doubted * ° .*. The power of the State in this

respect follows from her sovereignty within her

limits, as to all matters over which jurisdiction has

not been « expressly or byt necessary implication trans-

ferred to t the Federal Government. The title and

‘modes of disposition of ‘reat property within the

State, whether inter vivos or testamentary, are not

.matters placed under the control of federal authority.

- Such control would be foreign to the purposes for

which the Federal ‘Government was created, and

— seriously embarrass the landed interests of the

. States.’’

See also U’ nited States v. Perkins, 163 U. S. 625, 627 (1896).

-° In American Loan & Trust Co. v. Grand Rivers Co.,

159 Fed. 775 (1908), the United States sought to secure

certain proceeds of a mortgage foreclosure sale of prop-

erty located in Kentucky. The sale was under the authority

of a federal court and: the claim of the United States was

pursuant to a federal statute requiring money deposited

into court which is unclaimed for ten years or longer to be

deposited. ‘‘to the credit of the United States.’’. The Court

said (159 Fed. 775,778,780): °

‘‘To maintain this right it is contended that the

United States, as parens patriae, is entitled to have

the court do what the statute in question has author-

‘ized. ‘This proposition demands consideration, and"

_ nonetheless, that it is altogether new as applied to

any right of escheat in the United States outside of

the territories and the District,of Columbia. * * °

‘‘These authorities inevitably lead to the conelu-

sion that the national government is:not in any case

parens patriae to which ownerless —, of Bout -

sort in any state of the Union reverts. W

that within the states respectively it is the state

which exclusively is parens patriae, and this result

cannot be affected by the fact that the proper might

happen to be in the regisiry of a federal court.’

' |

ee 28

This conclusion is in line with the nature of the reserva-

tion made by the United States in California’s act of ad-

mission with regard to the uplands. What was reserved

was only ‘‘a primary right of disposal.’’ The United States

did not purport to retain that ultimate‘ownership of all real

proper ty which belongs toghe sovercign and which is su-

. perior even to a fee “~~ absolute. See People v. Rector,

éc. of Trinity Church, 22 N. ¥. 44, 47 (1860); Pollard v.

Hagan, 3 How. 212, 221 (1845) ; Mardin v. Jordan, 140 U.S

371, 381 (1891). -By the same token, even if a primary right

of disposal in navigable waters had been reserved by the

United States in the lands underlying navigable, waters

- within the boundaries 6f California, nevertheless, the ulti-

mate ownership would still have passed to California upon

her admission and, after the exercise of the primary right

of disposal by the United States to an individual, California”

would still have power to forbid the transfer of that prop-

erty at death and to acquire the same by escheat.

There can be no doubt, therefore, that in the field of —

ownership of property , particularly real property, the domi- .

nant sovereignty is state sovereignty, and in the absence

of a specific reservation by the United States of any title

to lands under navigable waters, the presumption must

be that title to lands under such navigable waters passed

to the state of California.

The Plaintiff argues that ownership of lands under

navigable’ waters is so closely identified with national sov-

ereignty that the presumption must be indulged

gress intended to reserve title in the United States to such

lands, citing Massachusetts v. New York, 271 U,/S. 65, 89

(1926) and United States v. Oregon, 295. U. 8. T, 14 (1935)

(Br., p. 73). The citation is indeed anomalous. since each

of these cases states that the presumption is against the

_ severance of such title from local sovereignty.

The Plaintiff suggests that the purposes of the federal

o government to ‘‘insure domesti¢ tranquility,’’ and to ‘‘pro-

iy tii] PT 7 i

Pop Me EP ae

i i ees

° -

' vide for the common defence”’ and the obligation to protect

the states from invasion, and related powers, somehow

involve title to lands under the marginal ‘seas in the United

States as the only government with adequate power to pro-

tect the security of the coasts (Br., pp. 83-84). It is anoma- —

‘ lous in yiew of such lofty grounds for the claim of title, that

of all the lands under the marginal.seas along the coast of

the United States, the Plaintiff*should have chosen to raise .

the question regarding revenue producing oil lands. The

'. purpose of this suit apparently is to secure the oil or reve-

_ nues from the lease of oil lands which now accrue to the

State of California, and not to-effectuate any of the purposes —

_or powers upon which the Plaintiff makes he claim of tech-

; nical title.

In this connection it is interesting that fener Secretary

of the Interior Ickes, in testifying against the legislation

to release to the states any claim of the United States to —

lands under navigable waters,” attributed to oil company

lawyers his conversion from his earlier view that the states’

title to such lands was unimpgachable. The oil company

lawyers to whom he referred were ‘‘applicants’’ for federal

leases of the lands which CalifOrnia had theretofore leased.

/ The Plaintiff’s argument from the power and duty. of —

the United States to protect the security of the coasts proves

too much. Of course, it is true that the central government

has power to make war and to‘maintain an army. But in

delegating these powers to. it, the states certainly did not

_ give up title to their property which they obligated the

United States to protect. If the Plaintiff’s argument is.

sound as applied to lands under the marginal seas, it would

apply equally well to the lands under bays and ‘harbors,

and it would also constitute a basis claim of title by the

United States to all uplands as well as lands beneath navi-

gable waters. A policeman on the’ beat does not own the

house on the corner because of his duty to protect it. -

33. Hearings béfore the Committee on the Judiciary, United |Stated

79th Cong. 2nd "ond Bees., on 8. ian 48 and H. J. Res. 225, p. 4 (1946).

iy es @

ECAR ANS oe PELE LG

Moreover 1€ Constitution: does not allocate the defense

of the coasts: exclusively to the federal government. The ~

several states may repel invasions (U.S. Constitution, Art.

I, sec. 10).

Furthermore, if the Plaintiff’s argument that its obliga- x

“tion to protect the borders of the United States entails own- —

ership of the lands along such borders is sound, then it must .

claim title not only to the lands in the marginal seas along

the ocean borders of the country, but also the lands beneath

the river boundaries of the St:‘Lawrence and Rio Grande

Rivers and the lake boundaries of the Great Lakes, to say

nothing of other lands along the boundaries with Canada

and Mexico. :

Nor does ownership of lands nies marginal seas follow

from the federal government’s power to regulate interstate _

and foreign commerce upon such waters. The federal

power to regulate interstate and foreign commerce is not

restricted to the marginal seas, but extends to all navigable

waters, including bays and harbors, and to all uplands as

well. Yet, no claim of title to such uplands in the original

states has been or can be advanced on the basis of such —

power with regard to commerce upon them.

Nor is the ownership of real property within the bounda-

ries of a state any matter of international law or external

sovereignty within the sphere of the federal government.

It may be admitted that the federal government is dominant —

in the field of external sovereignty, but we cannot see how

it is the concern of any foreign government whether title

\. to lands in California belongs to the federal or state govern-

ment. The question is clearly domestic and local.

In the local and domestic ‘field of ownership of ‘we

property, the states are the dominant sovereigns, ‘and as the

ultimate owners of. all real property within their boundaries,

the presumption against severance of title to such property

from local sovereignty results in the passage of such title

to them upon their admission into ithe Unign. ©

Even. if the United States’ position=as ‘‘paramount”’.

sovereign over the lands in question should. be conceded

for argument’s sake, this suit is nonetheless an attempt at

expropriation without just compensation. By the fifth and

fourteenth amendments to the Federal Constitution, the -

- paramount sovereign, whether the federal or state govern-

| ment, has no right to take lands of oth Ts without payment.

A related difficulty with Plaintiff ’s theory is that it

' requires the untenable conclusion that lands admittedly

within the territorial boundaries of a state were and per-

haps still are ownerless. Whatever the territorial limits

' of the United States may have been prior to California’s

admission into the Union in 1850, there can be no doubt

that the admission of that state with boundaries ‘* extending

_* * © three miles’? into the Pacific Ocean was an assertion

‘: both: by the state and the United States that the three mile

belt off California’s coast was within the territorial limits

of both of them. S .

If Plaintiff jaa that title then oussed to or remained

in the federal government, we should understand the argu-.

ment although it is erroneous. But the Plaintiff’s citation

of Queen v. Keyn, L. R. 2 Exch. Div: 63 (1876) as denying

‘national ownership of the marginal seas (Br., p. 47),

coupled with fle _vague talk of ‘‘emergence’’ of rights .

‘susceptible ¢f possession and ownership,”’ (Plaintiff’s

Memorandum §h Support of Motion for Leave to File Com-

plaint, p. 4) tnust mean that such rights had not ‘‘emerged’’

by 1850, indeed not even by 1876 “when the Keyn case was

decided.

The result is-an assertion that land within the bound-

aries of both state and nation after 1850 were completely —

ownerless for many years. But this theory falls afoul of

the basic rule that no property within the territorial limits

38a, Article XII of California Constitution of 1849, referred to in Act of

Admission, 9 Stat. 452. Plaintiff ’s brief, pages 4-5, 217.

33b. The dictum of the Keyn case on this point, discredited in both Ameri-

' can and nn law, is discussed mote fully.below at page | 1 and footnote 44,

| ‘ ! hy, : =

= oeaeiaeb samen:

< 32

—~

‘of any state or of the United States can be ownerless (Mar-

tin v. Waddell, 16 Pet. 367, 410 (1842). If no onc else owns

a parcel of property, it belongs to the sovereign. As Chan-

cellor Kent said (¢ Kent’s Commentaries 426 [12th ed., by

Holmes] [1873]) :

**It is a principle which lies at the foundations

of the right of property; that if ownership becomes

‘ vacant, the right must ne¢essarily subside into the

whole community, in whom it was originally vested

when society first assumed the elemerits of order and

subordination.’’ :

See also Johnson~-and. Graham’ s Lessee v. M ’Intosh, 8

Wheat. 543, 595 (1823).

If the property is within the temnfesion of a state, it

belongs to the-state as‘ parens patriae (American Loan &

Trust Co. v. Grand Rivers Co., 159 Fed. 775 [1908]. Title

could not be held in abeyance awaiting the ripening of the

emergent claims of the federal government.

POINT Vv

) “The decisions of this Court with respect to the own-

ership of lands under’ navigable waters make no dis-

_ tinction between lands under the marginal sea and

lands under other navigable waters. The sole test has

been navigability. ;

As early as 1867, this Court said in Mumford v. Ward-

well, 6 Wall. 423, 436:

“‘Settled rule of law -in this court is that the

shores of navigable waters and the soils under the

same in the original states were not granted, by the

Constitution, to the United States, but were reserved

to the several states; and that the new states since

admitted have the same rights, sovereignty and juris-

diction in that behalf as the original states possess

within their respective borders.’’ (Italics added.)

In 1877, the Court said in McCready v. Virginia, 94

U. 8. 391, 394: '

“The principle has long been settled in this court,

that each state owns the beds of all tidewaters within

its jurisdiction, unless they have been granted .

‘away.”’ ('talics added. ) e :

Similar statements not only expounding the.rule, but stress-

ing the uniformity with which it:has been accepted by this

Court over the years, appear in Illinois Central R. Co. v.

Illinois, 146 U. S. 387, 435 (1892) ; Scott v. Lattig, 227 U.S.

229, 242 (1913), and United States v. Holt State Bank, 270

U. 8. 49, 55 (1926). In the most recent case on the subject, —

Boraz Consolidated, Ltd. v. Los Angeles, 296 U. 8.10, 15

(1935), Mr. Chief Justice Hucues, speaking for a unani-

mous. Court,” again applied “settled principles’’ and held

that:

‘‘The soils ‘under tidewaters within the original

States were reserved to them 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. |

* * This doctrine applies to tidelands in Cali:

fornia.’’

No hint of even the sheerest obiter dictum to the con-

trary has ever appeared in an opinion of this Court. Rarely

-has the Court adhered. so consistently and for so long to

any principle of law. ' : .

1. The Test Established by This Court Has Been Naviga-

. bility and Not Location.

The Plaintiff attempts to dismiss this long line of con-

sistent rulings by arguing that in each of those cases the

lands in controversy were not beneath the marginal seas

but were foreshores or beneath other navigable waters—

34. Mr. Justice MCREYNOLDS may have concured in the result only.

>»

fact..

bays, harbors, rivers and lakes. Aakguieg the truth of

this statement,** nevertheless these cases establish the

title of the states to the lands berieath the marginal seas.

The Plaintiff chooses to look at the facts of these cases .

while ignoring the reasoning completely. Not-one of

these cases, deciding title to.the land in question, ever

turned upon the question whether it was beneath a bay, a

river, a lake, a harbor; an arm of ‘the sea. In every single

case the sole question pertinent to this inquiry was whether

the waters under which the lands lay were navigable in

' This Court has so consistently, for over a century, used:

the test of navigability of the covering waters as the decid- _ ,

ing test of a state’s title to submerged and reclaimed lands,

that it has effectively decided that all lands beneath all

navigable watérs belonged to the states upon their creation

unless they were granted-by a predecessor sovereign. The

policy beliind the rule was expressed in ‘Barney v. Keokuk, :

94 U. S. 324, 338 (1877), and repeated in Packer v. Bird,

137 U. S. 661, 671 (1891):

‘‘In our view of the subject, the correct principle

was laid down in Martin v. Waddell, 16 Pet., 367,

Pollard v. Hagan, and Goodtitle v. Kibbe, 9 How.,

471. These cases related to tidewater, it is true; but

they enunciate principles which are equally appli-

cable to all navigable waters. oe _ (en added.)

‘At the threshold of the long line of cases on the subject,

in Martin v. Waddell, 16 Pet. 367, 407 (1842), the Court

mentions the location of the lands in controversy only in

connection with the statement ‘‘that the land claimed lies

_ beneath the navigable waters of the Raritan River and Bay,

where the tide ebbs and flows.’’ In stating the rights which

| the people. of a state acquired upon the Revolution i in con-

35. The difficulty of drawing a line between the waters of a —_ or tidal

, estuary and the marginal seas proper, makes us hesitant to concede that none

of the decided cases dealt with lands under the marginal seas in the absence

of maps showing the location of the lands in controversy.

< 35

nection with their. newly acquired sovereignty, the Court

said that they ‘‘hold the absolute right to all their naviga

waters and the soils under them fox their own common use.”

The question of interpreting the Charter to the Duke of

York. was ‘‘Whether the dominion and propriety in the

navigable waters, and in the soils under them, passed as a -

part of the prerogative rights annexed to the political

powers conferred on the duke’’ (16 Pet. 367,411). Through-. .

out, it is clear that the opinion applies to all lands under all

navigable waters within the boundaries of one of the origi- *

nal states, and that whenever rivers, bays and arms of the

sea are referred to, it is nie as — of re

' waters,

_. The same holds true for the first case in this field deal-

ing with a new state. In Pollard v. Hagan, 3 How. 212

(1845), the reference is made over and over again to lands ©

under ‘‘navigable waters.’’ The entire controversy there

__arose as to the admissibility of evidence offered, by the de-

fendants ‘‘that the premises in question, between the years

1819 and 1823, were covered by water of the Mobile River

at common high tide’’ (3 How. 212, 220). The question

» was stated to be ‘‘whether Alabama is entitled to the shores

of the navigable waters, and the soils under them, within

her limits’? (3 How. 212, 225). And the conclusion of the

Court is (3 How. 212, 230):

, ‘‘First. The shores of navigable waters, and the

sotls under them, were not granted by the Constitu- .

- tion of the United States, but were reserved to the

States respectively. Second. The new States have

the same rights, sovereignty and jurisdiction over

this subject as the original States.’’ _ (Italics added.)

It will be noted that the reference here was not only to the

‘*shores of navigable waters’’ but also. to ‘‘the soils under

them.’’ Such a dichotomy, obviously including within the

meaning of the word ‘‘shores’’ lands between low and high

-water mark, necessarily requites that ‘‘soils under’’ navig-

able waters includes the lands below low water mark.

Similarly, in Smith v. Maryland, 18 How. 71, 74 (1855),

the decision is in terms of ‘‘land below low water. mark.’’

The Court said:

‘*Whatever soil below low water in is the sub-

ject of exclusive propriety and ownership, belongs”

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

governed its territory before the Declaration of

Independence.”’ : |

There is a clear implication ‘that the Court had in mind the

tnarginal seas as well as other navigable waters when, in .

_ attributing to the state the ownership of ‘‘soH below low

water mark,’’ it included such soil on the ‘‘maritime border’”’ |

_ of the state as well'as ‘‘within (its) territory.”

In Den v. The Jersey Company, 15 Haw. 426, 432 (1853),

the plaintiffs claimed title to reclaimed lands on the ground —

that-““the fee of the soil under the navigable waters of that

part of the State was conveyed to them,’’ The Court re-

peated its opinion in Martin v. Waddell, supra, ‘‘that the \

soil under the public,navigable waters of East New Jersey

belonged to the State.’ ~=— >

- We have already quoted the language om M umford

v. Wardwell, 6 Wall. 423, 436 (1867), in which the Court _ a

has applied the general 1 rule to California in terms of

‘‘navigable waters.’

The statement of the rule in Weber Vv. Retins Commis-

sioners, 18 Wall. 57, 65 ara), | is that by. the common. law

‘‘the title to the. shore of the sea, and of the arms

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

Englan in the —_ and in this country, in the

state.

Elsewhere in the opinion the Court ruled that upon Cali-

- fornia’s admission into the Union, she acquired absolute

property in ‘‘all soils under the tide-waters within her

A oo 6 AM es i Bs DAP at tae RIE Oana it ee Be on

ar}

limits’” (18 Wall. 57, 66). The lands in question-were below

low water mark, and the Court described them as being

‘funder the tide-waters of the bay.’’ Therefore, when, in

stating the general rule, California’s title was asserted to

‘fall soils under the tide-waters within her limits,’’ the

Court obviously included all lands below low water mark

within the boundaries of California, without exception.

- Such’ statements’ of the rule in terms of ‘lands ‘under

navigable waters” are made over and over again by this -

Court down through the: years.” - County of St. Clair v. °

Lovingston, 23 Wall. 46, 68 (1874) ; Manchester v. Massa-

chusetts, 139 U. S. 240, 259, 260 (1891) ; Illinois Central R.

Co..v. Illinois, 146 U, S. 387, 437 (1892) ; Shively v. Bowlby,

(152 U. S. 1 (1894); Mann v. Tacoma Land Co., 153.U.-S.

273, 283, 284 (1894); Mobile Transportation Company v.

City of Mobile, 187°U.S. 479, 482 (1903) ; Hardin v. Shedd,

190 U. S. 508, 519 (1903) ; Scott v. Lattig, 227 U. S. 229, 242

(1918) ; Donnelly ¥. United States, 228 U.S. 243, 260 (1913) ;

Oklahoma v. Texas, 258 U. S. 574, 583 (1922) ; United. States -

v. Holt State Bank, 270 U. S..49, 55 (1926); Massachusetts

v. New York, 271 U. S. 65, 89 (1926). Fox River Paper Co.

y. Railroad Commission of Wisconsin, 274 'U: S. 651, 655

' (1927) ; United States v. Oregon, 295 U.S. 1, 14 (1935).

—Tn addition to the instances. already pointed out, the |

eames | in several other cases must of necessity have ap- ~

plied the general rule to lands under the marginal seas.

Thus, in Illinois Central R. Co. v. Illinois, 146 U. S. 387,

437 (1892),;\the Court asserts the state’s. ‘ownership ‘‘of

lands under tide waters on the borders of the sea.’ Again,

but in such cases that term is obviously intended to mean the same thing as

_. - some of the cases, the rule is phrased in “terms of ‘‘tide waters’’ |

‘*navigable waters’’, inasmuch as the cases which talk in terms of ‘‘ navigable ©

waters’’ are cited. See, e. g., Weber v. Harbor Commissioners, 18 Wall.

. 57, 65 (1873); McCready V. Virginia, 94 U. 8. 391, 394 (1877); San Francisco

“v. Le Roy, 138. U. 8. 656, 670 (1891) ; Hardin v. ’ Jordan, }40 U. 8. 371, 381

(1891); Knight v. United Land Association, 142 U. 8. 161, 183 (1891);

‘Shively v. Bowlby, 152 U. 8. 1, 15 (1894); United States v. Mission Rock Com-

pany, 189 U. 8. 391, 404 (1903) ; Appelby v. New York, 271 U. 8S. 364, 381

(1926) ; Borax Consolidated, Ltd. v. Los — 296 U. & 10, 15 (1935).

\ os,

38 . 7 >

in Shively v. Bowlby, 152 U.S: 1, 11 (1894), the Court refers

to. the common law rule regarding ‘‘the title and the do-

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

the tide ebbs and flows, end of all the lands below high water a ne

mark.’’ By referring to ‘‘the sea’’ in addition to-“‘Tivers.

and arms of tlie sea,’’ the Court could only. have intended

‘the marginal seas. a

Particularly tnformative is the group of cases dealing

_——with lands beneath waters in new states, where, in order -.

to decide whether a‘ title claimed by or under the United.

States must yield to a title claimed by or under a state, this

Court has stated that the sole question for determination

was whether the waters in question were, at the time of the

state’s admission, in fact navigable or not. If the waters

were navigable, ‘every such case ‘upheld the title, claimed

. by or under the state. Only where the waters were non-

navigable did the Court uphold title claimed by: or under

the United States, and in such cases the Court regularly

included a statement that if the waters were in fact navig-

' able, the result would have been the other way. . See, e: g.,_

Barney v. Keokuk, 94 U..S. 324 (1877) ; San Francisco v.

Le Roy, 138 U. S. 656, 661 (1891) ; Packer v. Bird, 137 U.S.

‘661 (1891) ; Hardin v. Jordan, 140 U. S. 371 (1891) ; Illinois

Central R. Co. v. Illinois, 146 U. S. 387 (1892) Shively v.

Bowlby, 152 U. 8. 1 (1894) ; United States v. Mission Rock

Company, 189 U. S. 391 (1903) ; Hardin v. Shedd, 190 U. S.

. 508 (1903) ; Scott v. Lattig, 227 U. S. 229 (1913); Donnelly

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

Chandler-Dunbar W. P. Co., 229 U. S. 53 (1913) ; Oklahoma

v.. Texas, 258 U.-S. 574 (1922) ; United States v. Holt State

Bank, 270 U. S. 49 (1926) ; United States v. Utah, 283 U.S.

64 (1931); United States v. Oregon, 295 U. S. 1 (1935); .

Borax” Consolidated, ‘Ltd. v. Los Angeles, 296 U.-S. 10

(1935). |

Nothing ‘i in the decided cases justifies a “distinction be-

tween navigable waters in the marginal seas and all other

B . 89

. navigable waters. Indeed, the entire logic of the cases

supports the states’ title to ‘ungranted Jands under both .

alike. :

2. The Diiculty in Distinguishing Between Bays and the

* Marginal Seas. °

One of the reasons which militates against a distinction

between the marginal seas and other navigable waters along

, the coast is the extreme. difficulty of making any valid dis-

tinction between such waters. Plaintiff itself, in Appendix

B of its brief, in attempting to classify locations between

‘inland waters or tidelands’’ and ‘‘open sea,’’ is unable to

reach a deeision i in 22 cases — as “doubtful.” - .

Bays have been defined by various } lexicographers as -

follows: | ,

A body of water around which the lapd forms a -

- curve; a recess or inlet between capes and head- .

| lands” (Ballentine Law Dictionary, 1930). -

“A bending’ or curving of the shore of the sea or of

a lake, so as to form a more or less inclosed body of

water’’ (Bouvier’ s Law Dictionary, 3rd Ed., 1914).

‘*An opening into the land where the water is ies

in-on all sides except at the entrance’’ (Black’ s Law

Dictionary, 2nd Ed., 1910).

Tract of water, around which the land forms a

‘curve, or any recess or inlet between capes or head-

lands’’ (Webster’s Dictionary, 2nd Ed.).

_ “An indentation ‘of the shore line of a body of water;

’ the water between two projecting headlands; some-

times an arm of the sea connecting with the ocean’?

(Funk and Wagnalls New Standard Dictionary).

. Various judicial decisions give the following defini-

tions: ‘‘inclosed parts of the sea’’;* ‘‘sheltered bodies of

37. United States v. Bevans, 3 Wheat. 336, 387 (1818).

—

‘ lands.” 9939

40.

wohen”? ;3* “‘an expanse of water between two. capes | or head-

But nature has not drawn our coast lines with a straight-

edged ruler. - The eoast line is a continuous series of in-—

dentations and projections, and it is literally true that no °

_ point on the coast is not either on a headland or between

two other projections which may be called headlands. Thus,

a distinction between lands within bays and arms: of the

sea.and lands. under the marginal seas ‘‘along the open

_ eoast”? is a distinction without a difference. -

The futility of the distinction is seen from another: point :

of view as well. The entire Gulf of Mexico is one-huge bay.

Similarly, Chancellor Kent, in his Commentaries (Vol. 1,

p. 30, 12th ed., by Holmes [1873]), would draw lines which

would place practically the entire American coast line -

within a few relatively enormous bays:

hend to assume, for domestic purposes: connected

*-with our safety and welfare, the control of waters -

on our coasts, though included within lines stretched

from quite distant headlands, as, for instance, from

Cape Ann to Cape Cod, and from Nantucket to

Montauk Point, and from that point to the capes of .

Delaware, and from the south cape of Florida to the

Mississippi. ' ,

: Resguising the absurdity of using a simple. definition

of indentation between headlands, there is frequently added

to the definition a requirement that the headlands be not —

less than a specified distance apart. See, e. g., Manchester

v. Massachusetts, 139 U. 8.240 (1891) (six miles).

However, definitions-in terms of distance appear to’ be

honored more often in the breach: than in the observance,

and the legal nature of bays has been recognized in the

38. Columbia Land Co. v. Van Dusen, 50 Ore. 59, 62 (1907).

39. People v. Anderson, 30 Cal. App. 542, 546 (1916),

nail ——

it would not be unreasonable, as I appre-_

: 41

ease of the following: Bay of Monterey (eighteen miles), —

Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 :

- Pace. 722, 724 (1927); Chesapeake Bay: (twelve miles), The,

“ Alleganean’’ (Ct. of Commrs. of Alabama Claims), 32

Alb. Law J. 484 (1885); Delaware Bay (sixteen miles), 1

Op. A. G. 32 (1793); Conception Bay, Newfoundland (forty

miles) ; Direct U. S. Cable Co, Ltd. v. Anglo-American Tele- °-

graph Co., 2 App. Cas. 394 (1877). : ,

- Sometimes the Court is impressed by the fact that ‘the

body of water is generally called ‘a ‘‘bay,’’ Qcean Indus-

tries, Inc. v. ‘Superior Court, 200 Cal. 235, 252 Pace. 722, 724

(1927), but elsewhere it has been said: “The question can-

not be determined by ascertaining what appellations have

been given to it.’’ State v. Gilmanton, 14 N. H. 467. (1843).

A few frank commentators have admitted that there is

no law on the question at all. Thus, in the Ocean I adustries

case, supra, the Court said (252 Pac. 722, 726):.-

“Sit cannot be said that there is any rule of dition.

national law upon the subject; the whole matter

resting in the undisputed assertion of ‘jurisdiction

‘by the power possessing fhe enclosing shore line of -

the bay or inlet in question. aii

And i in the Direct U. S. Cable Co. case, supra:

**We find an universal agreement that harbors, es-

-tuaries and bays landlocked belong to the territory -

of the nation which possess the shores around them,

but no agreement as to what-is the rule to determine ~

what is a ‘bay’ for this purpose.’’ .

‘Unless the Court is willing to open the Pandora’s Box

of a multiplicity of litigation on this vexing point, it will

reject. the attempted distinction by the Plaintiff between

navigable waters under ‘‘bays’’ and ar seas.’’

42.

3.. There Are No Differences Between the Marginal Seas

, and Other Navigable Waters Which Distinguish the De-

_ cisions of this Court and Which Prevent the Application

" to Lands Under Marginal Seas of the Decisions Regard-

me Lands Beneath Other eaten Waters.

The Plaintiff. seeks to. avoid the ‘foree ‘of precedent ~ j

suggesting that there are ‘*pivotal distinctions’’ between

the three-mile belt on the one hand: and the tidelands and

inland waters on the other hand:(Br., p. 9). Each so-

called distinction is either a distinction without a differ-

ence or else no distinction at all but merely a disagreement

with the authorities even as they apply to ‘‘tidelands and

‘ inland waters.’’

~—--

(a) The: false attempt to associate the marginal seas

with national sovereignty—We have already disposed of

‘the attempt to claim that ownership of lands beneath the

_ marginal seas is more closely identified with national sov-

ereignty than with state sovereignty. Congress thought

otherwise and intended a different result. Moreover, the

ownership of land within the boundaries of a state has

nothing to do with external sovereignty. The state, as the

sovereign from whom all rights in property are held within

its borders, is the owner of lands under all navigable

waters, including the marginal seas. An attempt to deduce

federal title from the federal duty to protect the coasts

and regulate interstate and foreign commerce offers no

distinction at all, since there is an equal federal duty to

protect the bays: and harbors and regulate interstate and

foreign commerce within them.

(b) The utterly fallacious siieuitien that there is a dis-

tinction between lands under the marginal. seas and under

bays because of some imagined international law aspect of ©

the former.—We cannot state too strongly our opinion that

international law does not have a single thing to do with

the ownership of any lands within the United States of

as . . r at : . ‘ oe

, de i x Ee ee ae Lee OE See eS "sey Sl be rae wwe y

. ° . *

‘ .

-- America, whether they be the uplands, the foreshore of |

lands beneath rivers and bays or beneath the marginal

seas. This argument, however, is more pertinent to estab-

lishing the error of the Plaintiff’s assertion that the origi-

nal states had no title to lands under the marginal sea at

_ the Revolution, which will be treated in Point VI, infra.

At this point, it is sufficient to say that international

law has just as much and just as little to do with the terri- '

torial rights of any state to waters inside its bays as with .

waters in the marginal seas; and international law has just

De Candy gage hatte Ses ect

as much and just as little to do with the ownership of lands - .

underlying waters of both types. ‘Territorial rights in bays

is a constant matter of international law concern and has

been the subject of treaties just as much as has the extent

of the marginal seas.“ Indeed, the only workable definition

of a bay has been in conjunction with the extent of the

marginal seas. And if the three-mile width of the latter

is a matter of international law, the twice three-mile dis-

tance between headlands of the former is no less so.

(ec) The fallacy of the attempted distinction by denying

the original states’ title to lands under the marginal seas.—

Here the so-called distinction is really not a distinction but

a disagreement with this Court’s opinions. The true basis

of the original ‘states’ title to lands under the marginal .

séas will be dealt with at length in Point Vi. At-this _

however, we submit the following :

The argument against the original states’ title derived |

from the absence of statutory boundary definitions is not

sound. If it required a statutory definition to assert title

to marginal seas, then the United States has not included |

the marginal seas within its boundaries, either as against

the states or as against foreign sovereigns because there

is no statutory definition of the boundaries of the United

States except thése with Canada and Mexico.

40. See the authorities cited supra in sub-point 2 6f this Point,’ pp. 39-41.

tn Tees

> °

In addition, almost every colonial and state statute

which the Plaintiff quotes (Br., pp. 94-97) contains no.

more specific assertion of title to lands within bays than

to lands beneath the marginal seas. Thus, if the Plain-

tiff is correct and the boundaries are to be construed

as having literally followed the coastline, then again the

Plaintiff has suggested a distinction without a difference

since the original states would then have as little right

to lands under the water within bays. Here also, there is

utter failure to shdw any ‘‘pivotal distinction’’ of the many

eases in which this Court has upheld the original states’

ownership of submerged lands within bays.

The same fallacy runs throughout the Plaintiff’s argu-

ment which attempts to construe the Treaty of 1783 (Br., pp.

109-111) as defining a boundary of the original thirteen

states which literally followed the coastline and did not.

include the marginal sea.

The attempt to construe the dias British Crown

charters and grants as excluding the marginal seas is fruit-

less. If the Crown did not grant such waters to the Colonies,

then the rights remained in the British Government; and

then the states, succeeded to the rights of the Crown and |

Parliament upon the Revolution. (See Martin v. Waddell,

16 Pet. 367, 410 [1842] ; Harcourt v. Gaillard, 12 Wheat. 523,

526 [1827]; Weber v. Board of Harbor Commissioners, 18

Wall. 57, 65 [1873]; Shively v. Bowlby, 152 U. S. 1, 14-15

[1894].) It matters little whether the original states se-

cured their rights to lands under the marginal seas as suc-

cessors to the Colonies or to the British Government di-

rectly.

(d) The attempted distinction on the ground that owner-

‘ship of lands under the marginal seds is not an. attribute

of sovereignty.—We have attempted not to use the phrase

‘attribute of sovereignty’’ which fhe Plaintiff finds ob-

jectionable, in explaining in Point IV why the presumption

> an

againsi severance of title to lands under navigable waters,

including the marginal seas, is a presumption against sever-

ance from local sovereignty. However, even as the Plain-

_ tiff frames the ‘‘attribute of sovereignty’’ argument for

purposes of demolishing it, it is clear that here again no

‘‘pivotal distinction”’ is offered. The essence of this argu-

ment (Br., pp. 143-153) does not even purport to be a dis-

tinction of the, many decided cases of this Court dealing

with ‘‘bays, harbors and inland navigable waters.’’ It is

merely an out and out disagreement with the Court’s rea-

soning even' as rem to “‘bays,’ harbors and inland

waters.’’.

_ In summary of this Point we submit that the ratio

decidendi of the many cases in this field applies with full -

and equal force to establish the ownership of the states to

lands beneath the marginal seas. The test universally.

employed was whether the lands were under navigable

waters or not. The reasoning applied to all navigable

waters, with no possible exception of the marginal seas.

An attempt to substitute for the clear test of navigable

waters a new test based on ‘location of such waters would

_run afoul of the prodigious difficulty of arriving at a work-

able definition of a bay and would entail a disheartening

multiplicity of litigation to decide the title of every single

piece of land below low water mark off the coast.

Nor has the Plaintiff submitted any real «pivotal dis-

tinction’’ between bays on the one hand and the marginal

seas on the other which serves to distinguish the many

decided cases of this Court in this field.

, : rs AG

POINT VI

The original states acquired title to all lands under

the marginal seas upon the Revolution except for pos-

sible previous grants by or under me authority of prede-

cessor sovereigns.

"We have shown heretofore in this brief that whether or

not Congress had the power to reserve title to lands under

the marginal seas in the United States it actually intended

to pass such title to the newly admitted states. It would

therefore appear unnecessary in this brief to establish

also the title of the original states to such lands off their

coasts. Yet the errors of the Plaintiff. on this question

' should not go unanswered. The basic theory-of the Plaintiff

is spun from a few foreign and domestic text writers

on international law whose statements the Plaintiff some-

how prefers to the opinions of this Court. We would as-

sume that even a dictuni of this Court would be entitled

to somewhat more, standing than those of foreign and

domestic text book writers.

The theory seems to be that there were no territorial

rights in the British Government to the marginal seas off

the coasts of the American colonies and that, therefore,

the original states could not have succeeded to the owner-

ship of lands within such seas upon the Revolution as this

Court held in Martin v. Waddell, 16 Pet. 367, 410 (1842) and

in many subsequent cases. The Plaintiff argues that there

was a convenient hiatus in the claims of the British and

American Governments to the marginal seas between some

unspecified date after the establishment of the Colonies and

some unspecified time after 1793. This hiatus is necessary

to its argument because if the British Government had title

in 1776, there is no doubt that the Declaration of Indepen-

dence and the successful Revolution transferred its title

to the sovereign states. That the termination of the alleged

hiatus should have begun in 1793, so soon after the new

nation was finally established is enough to invite sus-

picion of the Plaintiff’s contention that the rights of the

British Crown and the successor sovereign states were sus-

pended until after the formation of the United States.

And therein lies the entire fallacy of the argument.

The British Government, at least from the beginning of

the era of Colonial settlement consistently asserted title

to all the. marginal seas off the coasts of its homeland and

colonial possessions.

The earliest judicial decision on the en was Royal

Fishery of .the Banne, decided, between 1604 and 1612 and

reported in Davie’s Reports (Ireland) 149, 152. There the

Court said:

“a © © Ge reason for which the King hath an in-

terest in such navigable river so high as the sea

flows and ebbs in it, is,: because such river partici-

pates of the nature of the sea so far as it flows; and

the sea is not only under the dominion of the King,

but it is also his proper inheritance, and therefore

- the King shall have ass land which is gained out of -

me” * rr:

"The reasoning of this statement throws an interesting light

upon the Plaintiff’s attempted distinction between ‘‘inland’’

navigable waters and the marginal seas. Historically, it

appears the sovereign’s title to.the navigable rivers and

the soils beneath them was derived from his title to the

sea and the sea bed.

We need not repeat the statements of law made by Lord

Hale in the seventeenth century which have always been

accepted as stating the common law rule that the title to

lands under the marginal seas off British and British colon-

ial territory is in the British Crown. Shively v. ete

152 U.S. 1, 11 (1894). , |

The Plaintiff attempts to dismiss this authority as an

‘‘extravagant and pretentious’’ claim which was abandoned

before the Declaration of Independence... The basis on which

“* the authority is dismissed is an attempt to show that it was

opposed to international law as it developed through the

seventeenth and eighteenth | centuries.

The Plaintiff has fallen into the error of supposing that

‘as between the government of England (or any other gov-

ernment) and its subjects and citizens, international law

determines the boundaries of the country or of any colony

or state and of property rights therein. —

It is settled in this Court that when the United States

of America asserts title to any property, even though the.

assertion might be a clear violation of international law,

the citizens of the United States, and the states, and this

very Court itself,-are foreclosed from challenging the as- |

sertion.. If that were’not so, then Attorney General Clark

is under a duty- to advise President Truman that the Presi-

dential Proclamation of September 28, 1945 asserting the

ownership of this country to natural resources within the

sea bed of the continental shelf was invalid as a flagrant

violation of the international law of this day which, accord-

ing to Plaintiff’s brief, limits the territorial rights ofa

sovereign nation to three marine miles from its coast.

The law of this country was early stated by this Court

by Chief Justice MarsHax in Foster and Elam v. Neilson,

2 Pet. 253, 309 (1829) (quoted in Pollard v. Hagan, 3 How.

212, 228) as follows: .

‘*Tf those departments which are entrusted with the

foreign intercourse of the nation, which assert and

‘maintain its interests against foreign powers, have

unequivocally asserted its rights of dominion over a

country of which it is in posséssion, and which it

claims under a treaty; if the Legislatute has acted

on the construction thus asserted, it is not in its own

courts that this construction is to be denied.”?

'-x this were not 80, then Congress would have grossly

exceeded its powers when it established boundaries of the .

states bordering on. the Gulf of Mexico, and therefore the

boundary of the United States, at distances of three leagues

_. frenrthe coast, as against Plaintiff’s assertion that inter-

national law limits territorial rights to one league into the

sea. ; Poy .

International law establishes no boundaries and creates ©

_ ho rights in territories within those boundaries vis-a-vis the |

citizens, political subdivisions and component divisions of |

_any'Nation. Those rights are wholly a matter of domestic ~

” law.

Thus, no matter how “pretentious” the Plaintiff, with —

its advantage of hindsight as to the course of the develop-

ment of international law, may deem the assertions of the

British Crown in the seventeenth century and no matter

how ‘‘extravagant”’ they might have appeared to other na-

tions at that. time or even to the subjects of the British

Crown including the American colonists, the fact remains

that those assertions conclusively bound every British sub-

ject whether in Great Britain or in the Americar colonies.

Regardless of the opinion of the foreign critics, it was the -

law of Great Britain and-her American colonies in the seven-

teenth century that title to the marginal seas with an extent

far beyond any three mile limit belonged to. the British

Government.

‘It may be that Great Britain prior to the tattian

had retreated from the full extent of her original claim of

ownership of the seas. But we find no evidence of any sur-

render of claim to a belt of marginal seas, at least three

miles wide prior to the American Revolution. Indeed,

Blackstone, a respectable authority on English law, wrote

in 1768, just before the Revolution, i in connection with the

Crown’s title to a newly risen island in the sea:

‘*for, as the king is the lord of the sea, and so owner

of the soil while it is covered with water, it is but -

reasonable he should have the soil when the water

has left it dry.’’*:

‘The Plaintiff is thus driven to the impossible bar-

den of proving that the claims of the British Crown, still

asserted to be the law in 1768, suddenly disappeared before

1776, and that no territorial rights in the marginal sea ex-

isted until they ‘‘emerged’’. beginning with the diplomatic

actions of the United States Department of State in 1793.

The burden becomes all the more. impossible’ to sus-

tain because throughout the nineteenth century, after the

Revolution, .English law. adhered to the rule of ownership

by the, Crown of title to lands beneath the marginal seas.

Recognition in English law of territory iri'the marginal

seas appears soon after the American Revolution in Twee

Gebroeders, 3 C. Rob.. 336, 339 (1801), which set a limit at

‘*the reach of common shot.’’

Shortly afterwards, in-1805, in The dies 5 C. Rob. 373,

the British court recognized that the territorial limits of

| _ the United States extended three miles outward. from Mud

- Islands at the mouth of the Mississippi River. The terri-

- torial limits of the United States,.so recognized, were used.

to defeat the claim of a British privateer which had eap-

tured a ship flying the American colors, over three miles

from the mainland, but “_ one and one-half miles beyond

' the Mud Islands.

In 1830, Hall stated the English. law to be:.

-.“"In England, from the time of Lord Hale it has

been treated as settled that the title to the soil of

the sea, or of arms of the sea below ordinary high-

water mark is in the King 7

Hall’s statement admits of no hiatus.

@. Biackstone’s Commentaries, Chase Ed. (1877), Vol. 1, p. 417.

42. ‘‘Essay on the Rights of the Crown and the Privileges of the Subjects

_in the Sea-shores of the Realm’’ (1830) (contained in Stuart Moore’s ‘‘ History

of Law of the Foreshore’? [3rd. Ed. 1888, p. 667]).

. Both the territorial nature of the marginal seas to an

extent of at least three miles from the coast and the owner-

ship by the Crown of the lands underlying such marginal

seas were consistently recognized by the English courts over

the next century. See Attorney-General v. Chambers, 4 DeG.

. M. &G., 206, 213 (1854) ; Gammell v. Commissioner of Wood

and Forrests, 3 Macq. 419 (1859); Whitstable v. Gann, 20

C. B. (NS) 1 (1865) ;** Duchess of Sutherland v. Watson,

6 Macph. 199, 213 (1868) ; Lord Advocate v. Wemyss (1899),

A. C. 48, 66; Lord Fitzhardinge v. Purcell (1908),-2 Ch.

139, 166; Secretary of State for India v. Chellikani Rama

- Rao, L. R. 43 Ind. App. 192, 32 T. L. R. 652 (1916).

It is symptomatic of the almost complete absence of any

judicial authority to support Plaintiff’s claim that it relies

.. 80 heavily on the discredited case of Queen v.. Keyn, L. R.

‘2 Exch. Div. 63 (1876). Plaintiff cites this case twelve —

times in its brief. Yet, the dictum of the Keyn case“ on

this subject was considered and discredited in this country

in Manchester v. Massachusetts, 139.U. 8. 240, 257 (1891).

‘ It was considered .nd discredited in the Britisl Empire by

the House of Lo.ds in Secretary of State for India v.

Chellikani Rama Rao, L. R. 43 Ind. App. 192, 32'T. L. R. 652

(1916). Hg |

So far as the English law is concerned, then, we find

the rights of the Crown in the bed of the marginal seas

- asserted from 1604 through 1916 and the evidence is di-

rectly against Plaintiff’s suggestion that there is a break

43. ‘‘The soil of the seashore to the extent of three miles from the beach -

is vested in the Crown.’’ Rev’d on other grounds, 11 H. L. Cas. 192 (1865).

44. The decision was by a vote of 7-6 against the admiralty jurisdiction

of the Central Criminal Court on a charge of manslaughter arising out of a

collision between a German ship and a British ship two and one-half miles

from the English coast. The dictum which appears in some of the majority

opinions denying that the offence charged was committed within the territorial

limits of Great Britain was disputed in others of the numerons

opinions filed. The decision was with regard to jurisdiction of the court, and °

tory in the marginal seas. Indeed, even the actual decision, narrow as it was,

was shortly afterward undone by statute which enlarged thé court’s jurisdiction .

(41 and, 42 Vict. «. 73) ¢1878). v

“52

in the line of laaihlaln just before the Américan ns

tion. Nevertheless, Plaintiff offers the novel idea that the

concept of the marginal seas along the coast of the United

States ‘‘emerged’’ beginning in 1793. But its evidence on

this point defeats its own purpose. The note addressed by

Secretary of State Jefferson to the British Minister on

November 8, 1793 (see Pltf.’s Br., pp. 130,.131) shows that /

the United States, in the field of international law, did not

purport to create any new zone of ferritorial waters but

- merely purported to declare a pre- existing right. Thus, Mr.

Jefferson said:

‘You are ) sensible that very different opinions. and

claims have been heretofore advanced on this subject.

The greatest distance to which any respectable assent

P among nations has been at any time given, has been

the extent of the human sight, estimated at upwards

of twenty miles, and the smallest distance, I believe,

claimed by any nation whatever, is the utmost range

of a cannon ball, usually stated at one sea league.”’

(Italics added.) —

‘The absolute right of the United States in its marginal seas

is not questioned by Secretary Jefferson ; it is asserted. The

sole question is whether the United States should restrict

itself to the minimum claims made by other nations or toa _

maximum. The decision is given ‘‘as restrained for the

present to the distance of one sea league or three geographi-

cal miles from the seashore. This distance can admit of no

opposition, as it is recognized by treaties between some of

the powers with whom we are connected in commerce and |

navigation, and is as little, or less, than i is claimed by any of

them on their own coasts.’” | .

And at the other end of American history, ane Presi-

America, including the states, of thé minerals in the con-

tinental shelf underlying the seas far beyond any three-mile

limit, again the assertion is stated to be in terms of a pre-

existing right. Thus, President Truman stated that the ex-

ercise of jurisdiction over such natural resources by the

contiguous nation ‘‘is reasonable and just”; ; and that it was .

‘‘naturally appurtenant to it.’’**

While the many pages of international law discussion —

in Plaintiff’s brief are interesting, they have nothing to do

‘with the question of ownership of lands admittedly within

the boundaries of the state of California and the United

States of America. Certain it is that the British govern- |

ment has always claimed ownership of the lands beneath the

marginal seas and has retreated only in the extensiveness of

. its claim, never abandoning the claim to the innermost three

mile belt. Certain it is, that this was the law of the Ameri-

‘ean colonies upon the Revolution; no matter how ‘‘extrava-

gant and pretentious”’ the claim may have appeared or may

now appear to others, it was the law of Great Britain bind-

ing upon British subjects in the American colonies before

the American Revolution.

Certain it is that even in the international law field there

is a continuity of law conceding the territorial. rights of:

every nation to a marginal belt off its coasts and that while

the width of the belt claimed may have varied over the cen-

turies, there is no. ‘‘emergence”’ of a new concept in this re-

spect after the American Revolution; whatever assertion the

United States of America has made, on behalf of itself;-in-

cluding its component ‘states, since the American Revoluv- '

tion, has been by virtue of pre- -existing a which arose

-upon the Revolution,

The result is ‘that the prelorns of the —s beneath

the marginal seas, at least to the extent of three miles below

low water mark, belonged to the British government. prior

to the Revolution and upon the Revolution passed directly

to the sovereign states. As successor sovereigns to the

British government, the original states succeeded to all the.

45. Supra, p. 48.

2 NO he Sty

~ ness in the title 6f California...

54.

rights of government and all the rights of property within

the erstwhile American colonies, whether uplands, fore-

shores, lands under bays and arms of the sea or lands be-

‘neath the marginal seas themselves.

POINT VII

The United States must base its case upon the

strength of its own title, and not upon any —— weak-

r 4

A person aero an interest in real property, includ-—

- ing submerged lands, must succeed, if at all, upon the

strength of his own title and not upon the basis of any weak-

ness in that of his opponent. Hardin v. Jordan, 140 U. S.

371, 379 (1891). -Upon analysis it is seen that the federal

brief makes no serious effort: to sustain this burden.

If the federal government asserted that it had title to

and ownership of the lands under the marginal sea at the

time of the admission of California to the Union, the issue

would be simple. The federal government would sustain

its burden of proof if it succeeded in showing that title to

' these lands did not pass to California upon its admission.

Plaintiff’s brief, however, makes na clear claim that

the federal government owned the lands under the mar-

ginal sea prior to California’s admission. It does state

(p. 59) that by the Treaty of Guadalupe Hidalgo the fed-

eral government acquired ‘‘complete — in the sub-

merged lands from Mexico.’’

While it might be hastily assumed -that shaadi

rights’? should include title and ownership, nevertheless at

page 47, Plaintiff cites the case of Queen v. Keyn, L. R. 2

Exch. Div. 63 (1876), as casting ‘‘much doubt *.* * upon

the right of the Crown to the bed of the sea,”’ ona as sug-

gesting that beyond low water mark the bed of the sea might

be said to be unappropriated. This case was decided in

1876, and its citation for these propositions would seem to

be inconsistent ‘with any claim by ‘the federal government

that it owned title to the marginal sea a quarter of a cen-: .

tury before at the time California was admitted to the

Union.

Finally, in the“ very complaint j in the present case the

allegation is that the federal government is ‘‘the owner

. in fee simple of,’’ or in the alternate is ‘‘possessed of para-

mount rights in and powers over’”’ the lands under the mar-

ginal sea along the California Coast.

Even today, it appears that the office of the federal At-

torney General does not know whether or not the United

States claims to own the submerged lands.

What is meant by ownership in fee simple is of course

clear, On-the other hand, what the Plaintiff intends by

_ its alternate allegation to the effect that it may not own

the property in fee, but nevertheless has paramount rights

therein and powers thereover, is by no means clear.

It may be assumed that the complaint does not refer

-to the ‘‘paramount’’ powers which are mentioned at pages - — |

82-88 of the Plaintiff’s brief.. At that point, the brief as-

serts as undisputably paramount the powers of the federal

government with respect to safeguarding the security of

the coasts and safety of the nation, protecting it and ad-

vancing commerce, controlling immigration, enforcing the

customs and revenue laws and sustaining the Population.

Certainly no one would deny that the powers of the

federal government to provide for the common defense,

to maintain an army and navy, to make war, to regulate

interstate and foreign commerce, to enforce the revenue

_laws and to make treaties are paramount. No one, more-

‘over,.can deny that with respect to these powers the fed-

eral government is paramount on land as well as ‘upon the

_ sea. Its powers in this respect are by no means confined to

navigable waters,—much less to the marginal sea.

The fact, however, that the federal government may

maintain an army upon dry land, that it may maintain

naval establishments upon the-shore, that it may wage war

upon the uplands and repel invasion of interior states, that

it may regulate commerce by rail and motor vehicle as

well as by water, and that it may enter into treaties affect-

ing things above high watermark, can obviously never lead

to the conclusion that the federal government is entitled

to an order of this Court ousting all and sundry from the

places at which these paramount national powers may

‘ constitutionally be exercised. Even the exercise by the

federal government of its treaty-making power to protect

fisheries finds its parallel in the exercise of that power to

‘protect migratory birds, but no one has yet claimed that

this leads to the conclusion that the states and&heir grantees

should be-ousted from lands over which migratory birds fly .

- or in which they nest.

It seems quite clear, therefore, that the. assertion of —

‘*paramount rights in and powers over’’ lands and min-

erals underlying the marginal sea to which reference is

- made in the complaint are not those of the type mentioned.

If ‘they were, the complaint would be nothing more or less

than an allegation that the. Plaintiff may not own title in

‘fee simple of those lands, but it does have the paramount

right to exercise the above mentioned powers therein,—

powers which it exercised at each and every other place

within the territorial limits of the United States and of the |

several states. If this is what the complaint intends to

allege, it is obvious that the Plaintiff is not alleging facts

which justify the relief which is sought, and therefore that

‘judgment should be rendered in favor of the Defendant.

Unless the Plaintiff has thus pleaded itself out of court,

it must be assumed that the ambiguous phrase, ‘‘ paramount ,.

rights in and powers over’’ lands, minerals and other

a7 ™~

‘things of value underlying the marginal sea, refers to

rights and powers of a type entirely different from those

just discussed.

It is, of course, notorious that the purpose of the

present suit is to enable ‘the Plaintiff to abstract the

petroleum from the lands in question, and either to con-

sume it itself or to market it, and to do so either directly |

or through leases i eon permits granted to others, all

without paying compensation to the state or other owners.

It is also the purpose of the present suit to prevent the

state or other owners from themselves extracting petro-

The paramount powers and rights which the Plaintiff .

alleges in its complaint’ must of necessity be the paramount

. right and power to take and use minerals, shell fish and

‘other things of value from the marginal sea within the

territorial limits of California. But these are nothing more

nor less than the rights and powers possessed by owners of

submerged lands. In this connection it must be borne in

* mind-that the Plaintiff claims at page 59 of its brief that

the United States acquired ‘‘complete rights in the sub-

merged lands’’ by the Treaty of Guadalupe Hidalgo. Also

that it claims never to have ceded these rights to Cali-

fornia.

If these allegations were true, it would mean that -

the United States alone had power to take minerals and

other things of value from the submerged lands and to ex-

clude all other ‘persons therefrom (subject only to the pub-

lic easement of navigation and fishing), and that no one

else whomsoever had any rights therein,—unless and to

the extent that the Plaintiff or its predecessor sovereign '

. had granted such rights. As indicated, this is nothing

more nor less than a statement of the rights of ownership

in and to lands underlying navigable waters.

If that be the case, then the alternate allegation of

. ‘paramount rights and powers”’ simply serves to confuse

the issue. The Plaintiff is alleging’ ownership, and if it

fails to establish this allegation, its entire case fails.

The federal government has the heavy burden of estab-

lishing its ownership without question, even though it is

not itself sure what its claims may be. It may be because

~ of those doubts that in lieu of such proof its brief is largely

devoted to an attempt'to attack the title of California,—an

_ attempt which even if it could be successful, would not en-

title it to judgment in this case.

POINT VIII

- The harsh effects of. the Plaintiff's attempt to upset -

. the states’ title to lands under navigable waters.

‘ Plaintiff is forced to recognize that whatever rights of

ownership have been exercised in lands under the marginal.

seas have always been exercised on the basis of titles as-

sumed to be in or derived from the states. Therefore, a

holding in favor of the Plaintiff in this.case would upset

all existing titles to lands underlying the marginal seas be- .

low the original low water mark. Plaintiff is forced to

' admit that this would result in great hardahip, but it at-

tempts:

1. To belittle the number of cases where long-accepted

titles would be destroyed;

2. To suggest that the result of the decision could be

undone in such cases by Congressional aetion; and

3. To assert that “in the present case” the Plaintiff

seeks merely a declaration of rights as to the future

and does not ask for an accounting with regard to

past profits.**

46. Brief, page 207, fn. 52. -

= aii

oo eee eee 2

1S Re e-

‘In connection with the first statement, the Plaintiff does |

not favor us with any evidence of the amount: actually at

stake. We have been unable to make a statistical study of.

the cost of improvements erected upon lands below low .°

water mark in the marginal seas on the strength of titles

from the states. The value of the oil lands off the California

coast is itself considerable. The market, value of the oil,

without allowance for the cost of extraction, has been esti--

. mated at $265,000,000.7 The great piers extending into |

the ocean at Atlantic City, New Jersey, are nationally fa-

mous and must have Veen erected at the expense of great

sums of money. The expenditures in reliance upon state

title to lands below low water mark along the ‘‘open coast’’

are not restricted to water front terminal facilities.

Lacking precise information as te the location of the

original low water marks, we could not estimate the value

of reclaimed lands, the validity of the titles to which de-

pends upon the outcome of this case. However, it is likely

that the values of such lands up and down the coasts would

add up to an enormous sum—a sum which is a matter of

economic life or death to many of the private owners

- thereof.

Of course the most tremendous destruction of property

rights would occur not along the ‘‘open coast’’ but in bays,

- harbors, and tidal estuaries. The statement is made by the

Plaintiff that those titles are not involved and the Court

is asked to reaffirm ‘‘erroneous’’ decisions with regard to

them. However, the damage cannot be so easily undone.

- If the federal government should succeed in this suit upon

the reasoning it has advanced, it would have shaken the

basis for every title to submerged or reclaimed lands under

the original high water mark of bays and ‘harbors. The

implication might be unavoidable that the decisions upon

. which those titles rest are ‘‘unsound.’’ The vexing ques-

47. Information furnished at the request of your Amicus by the Attorney

pg poe of California according to information furnished by the State Division

of Lands. . °'

_ tion whether any single parcel of land was in fact within a

bay or along the ‘open coast’’ would confront every owner

of property of this class. .

To escape from the natural consequences of the fact

that federal officers have always acted upon the assump-

tion that the states and their grantees owned title to lands

under all navigable waters, the federal. Attorney General

asserts the duty of a federal officer to repudiate his own

prior rulings which he has reason to believe were incorrect

(Br., p. 197). But he thereby undermines any confidence

that property owners might have that they can rely in the

future upon his disclaimers in this case of intention to seek

a reversal of the cases upon which their basic titles depend.

Even though the decision in this case might deal only

with lands in the marginal seas, a holding for the Plain-

tiff, in the light of the arguments made by the federal At-

torney General, will cast a cloud upon title to every par-

cel of submerged or reclaimed land below the original high

water mark of navigable waters regardless of its location.

within or without a bay or harbor. Title companies can-

not be expected to gamble upon: a statement of policy which

the federal Attorney General insists is not binding upon’

his offiee or upon the United States. Prospective pur-

chasers cannot be expected to advance the sums necessary

. to purchase lands whose titles are so beclouded and to im-

prove them upon such a gamble or upon the hope that Con-

gress will accord them relief. |

Whatever the value of the land and improvements di-

rectly located below the original low water mark in the mar-

ginal seas, the value of the lands and improvements within. ~

bays and harbors which would thus be affected by a vic-

tory for the Plaintiff in this case is enormous. We have

already pointed to the valuation of $860,000,000 placed

upon public waterfront. terminal facilities "by the Board of

4s. Until arguments raised by oil company attorneys seeking federal

leases convinced Mr. Ickes to the contrary. See page 29, supra.

BLANK

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capital costs upon such facilities incurred by individual

cities, headed by $340,000,000 éxpended by New York City.

- This figure, however, represents only the cost of water.

way terminal facilities. It does not even include, in all

‘cases, the value of the lands upon which the improvements

are built. In addition, there is the tremendous value of all

the reclaimed lands and the er which have been

erected upon them.

The Port of New York Authority as made a study of

such lands within the Port of New York District. A map

showing lands enclosed between the original and the pres-

ent high water lines, representing reclaimed lands in the

New York Port area is enclosed herewith. It will be seen

that if this Court accepts Plaintiff’s argument that the de-

bee cisions upholding state title to lands below the original high

water line were incorrectly decided, then the titles which

will have been undermined would include lands along the

entire perimeter of Manhattan Island, the entire waterfront

of the Borough of Brooklyn, the entire waterfront of the —

cities of Bayonne, Jersey City, Newark, Elizabeth and Ho-

boken. In addition to the waterfront, huge areas in north-

ern New Jersey have been reclaimed. There are blocks

upon blocks of reclaimed land above the original high water

mark in lower Manhattan, containing some of the most

valuable real property in the world.

Plaintiff’s second suggestion to avoid the impact upon

the Court of these consequences of its argument, is to the

effect that the result of this-Court’s decision can be undone

by Congressional legislation. The answer to such a sugges-

tion was made by this Court i in H elvering v. sidetiaa 318

U. S. 371, 403, 404 (1943) :

‘‘The Goverment acknowledges the hardship

which would be incident to the rule We are now asked

49. * ‘‘ Public Aids to Domestic Transportation, ?? 79th Cong., Ist Sess., House

Doc. No. wii page 7 a

€ 62

to.declare, and promises its assistance in obtaining

legislative correction. * * * This assurance that if we

will but find that Congress has intended to lay the tax

it will be asked to declare that it doés not intend it to

- \ be collected is hardly reassuring that the decision

4 contended for. would ‘be what Donavdia intended.

Since it is acknowledged that legislation would be re-

quired to adjust equities that are beyond judicial

- power and to prevent our decision’s being used to

harass taxpayers, we may well inquire why the legis-

| lation should not precede the judicial decision.”’

_ Results which must.be undone’ by congressional act do

not commend themselves to this Court.

The third attempt made by the Plaintiff to sugarcoat

the bitter pill of title destruction which all its arguments

involve is the.suggestion: that this suit looks to future rights

only and seeks he accounting of past profits. The sugges-

tion is hardly reassuring when it is’in such close proximity

with the assertion that the federal government is not bound.

by such representations made-by government officers and

that they have a duty to correct erroneous rulings. If’the. .

United States should be held by this Court to own the

specific lands in question, let alone all the submerged and

reclaimed lands within the limits ‘of bays and harbors,

might not the federal Attorney General or his successor

deem it his duty to press for the collection of all of the

rentals and profits derived from the use of the lands ad-

judged to belong to the United States? ‘And since it is

alleged that the statute of limitations does not run against

.the United States in this connection, might the claim not

be for decades of use?

/- —

CONCLUSION

For reasons iia set forth, we respectfully

urge that the complaint of the United States herein

should be dismissed.

Dated: March 5, 1947.

Respectfully submitted,

Leanper I. SHELLEY,

Attorney for The American Association

of Port Authorities, Amicus Curiae.

With him on the Sitate

Georce D. La Rocue,

Wisvur La Roz, Jr.,

Expon 8. Lazarus,

Revusen SaTTERTHWAITE, -

Apert J. Buck.ey.

[APPENDICES FOLLOW]

‘PAGE

APPENDIX] = - .

United States Members of The American: Association

of Port Authorities, Inc.

Ports Over 250,000 Population

Baltimore, City of

Bureau of Harbors,

Broadway Pier,

Baltimore, Maryland

' Boston Port Authority, |

16th fioor, Custom House,

Boston 9, Mass.

Board of State Harbor Commrs.,

Ferry Bldg.,

San Francisco 11, Calif.

Chicago, City of

Commissioner of Public Works,

Room 406, City Hall,

Chicago 2, Ill.

Houston, Port of

5th floor, Court House, _

Houston 2, Texas _

Los Angeles, Board of

Harbor Commissioners, -

Room 189, City Hall, :

Los Angeles 12, Calif. .

Massachusetts Department _

of Public Works,

_ State House, 100 Nashua St. -

_ Boston 14, Mass.

Milwaukee Board of Harbor

-Commrs.,

Room 710, City Hall,

Milwaukee 2, Wisconsin

State of New Jersey Board of

Commerce & Navigation,

1060 Broad Street,

Newark 2, New Jersey

New Orleans, Board of Commis-

sioners of the Port of

2 Canal Street,

New Orleans 6, Louisiana

The Port of New York Authority

111 Eighth Avenue,

New York 11, N. Y.

City of Newark

Office of the Mayor 3

City Hall + 8

Newark 2, New Jersey

City of Oakland,

Harbor Department

Grove Street Pier,

Oakland.7, California

City of Philadelphia,

Dept. of Wharves, Docks & Ferries,

Pier No. 4 South, |

Philadelphia 6, Pennsylvania

[65]

Portland Commission of Public

Docks,

Foot of N. W. Front Avenue,

_ Portland 9, Oregon.

City of Providence;

City Engineer,

. City Hall, .

- Providence, Rhode Island

Rhode Island Port Authority

605 Union Trust Bldg.

Providence 3, R. I°

Port of Seattle,

P. O. Box 1878,

Seattle 11, Washington

South Jersey Port Commission,

Foot of Beckett Street,

_ Camden, New Jersey —

City of Toledo.

City Manager

' 310 Safety Building

Toledo, Ohio

The State Port Authority of:

Virginia,

1203 Royster Building,

Norfolk 10, Virginia

Ports Over 100,000 and Under 250,000 Population

Albany Port District Commission,

Administration Building,

Port of Albany,

Albany 2, New. York

Greater Miami Port Authority,

- P. O. Box 1861,

Miami 30, Florida

Honolulu Board of Harbor

‘Commissioner, —

Honolulu, T. H.

_ Long Beach Board of Harbor

Comfnissioners,

P.O. Box 318,

Long Beach 1, California

Norfolk Port-Traffic Commission, |

308 City Hall Bldg.,

Norfolk 10, Virginia -

Port of Tampa,

Tampa, Florida —

Port of Tacoma, ‘

P. O. Box 1612,

Tacoma, Washington

City of Trentor

- Trenton, New Jersey

City of Wilmington

- Board of Harbor Commissioners,

P. O. Box 1191,

Wilmington 99, Delaware

67 -

Ports Over 50,000 and Under 100,000 Population

Alabama State Docks & Terminals, Port of Savannah Authority,

P. O. Drawer 721, "

Mobile 4, Alabama

Port of Beaumont

Dock & Wharf Commission,

Beaumont, Texas

218 Middle Street, .

Portland 3, Maine

Galveston Wharves,

Galveston, Texas

P. QO. Box 768 .

Savannah, Georgia

South Carolina State Ports

Authority,

+5 Exchange Street,

. | Charleston 3, S. C.

The Port of Portland Authority,

City of St. Petersburg,

Port Authority,

Room 222, Municipal Bldg.,

St. Petersburg 1, Florida

Ports Under 50,000 Population

Baton Rouge Municipal Docks,

Terminals & Warehouses,

P. O. Drawer 1030,

- Baton Rouge 2, Louisiana

_ Broward County Port me

Port Everglades Station,

. Fort Lauderdale, Florida

City of Newport News,

Newport News, Virginia

Port of Olympia,

P. O. Box 827, ,

Olympia, Washington

Brownsville Navigation,

P. O. Box 231, .

Brownsville, Texas

The Brunswick Port Authority -

P. O. Box 394,

Brunswick, Georgia

Port of Corpus Christi,

Neuces County Navigation Dist.,

P. O. Box 1541,

Corpus Christi, Texas .

Fort ‘Pierce Port District,

Fort Pierce, Florida

Gulfport Port Commission,

Gulfport, Mississippi

- Lake Charles Harbor & Terminal —

District,

Lake Charles, Louisiana

Monroe Port Commission, Stockton Port District,

‘Monroe, Michigan P. O. Box:2089,

on ‘Stockton, -California

Harbor & Dock Commission of Texas City Terminal Railway Co.

_ Oswego, Texas City, Texas

Oswego, New York ne)

Pensacola Port Authority, Port of Vancouver,

Pensacola, Florida. Vancouver, Washington

Port of Pascagoula Port

Commission,

Pascagoula, Mississippi

Port Isabel-San Benito Navigation,

District of Cameron County,

Port Isabel, Texas

shall be made or any opinion express

APPENDIX Il

Extract From By-Laws of The American Association

- of Port Authorities, Inc.

Matters Involving National Policy

(19) If it shall be or become necessary to take a vote

of the membership to determine, the action to be taken by

the Association with respect to any legislative proposal

pending before the Congress of the United States or with

respect to any other matter which involves the policy of

Congress or the governmental policy of the United States,

only the votes cast by or on behalf of corporate members

from the United States (including its territories, posses-

sions and dependencies) shall be counted. Similarly, if it

shall be or become necessary to take a vote of the Board of

Directors or of any committee with respect to any such ~

_ matter, only the votes of such members of the Board or of

such committees as are citizens and residents of the United

States shall be counted.

If as a result of any such vote, | recommendation

on behalf of the

Association with respect to any such matter (whether to

Congress’ or to any officer or agency of the United States

or to the public press or. otherwise), it shall also be stated

that only United States ports, or United States citizens,

as the case may be, voted upon such recommendation or

expression of opinion.

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.