Amicus Curiae Brief — Phillips Petroleum Co. v. Mississippi
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Bupreme Court, U.S.
\ FILED
No. 86-870 | Je 13 B67
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IN THE l CLERK
Supreme Court of the Qnited States
OCTOBER TERM, 1986
On Writ of Certiorari to the Supreme Court of
Mississippi
BRIEF AMICUS CURIAE of the THIRTEEN ORIGINAL
STATES:
NEW YORK, NEW HAMPSHIRE, MASSACHUSETTS,
CONNECTICUT, NEW JERSEY, PENNSYLVANIA,
DELAWARE, MARYLAND, VIRGINIA, NORTH
CAROLINA, SOUTH CAROLINA, GEORGIA, and RHODE
ISLAND
Joined by the
COASTAL STATES ORGANIZATION
IN SUPPORT OF RESPONDENTS.
Davip C. SLADE, ESQ.
Counsel of Record
COASTAL STATES ORGANIZATION
Suite 312
444 N. Capitol Street, NW.
Washington, D.C. 20001
202-628-9636
Of Counsel:
Jane K. Stahl, Esq.
State of Connecticut
nA
PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203
STATE OF NEW YORK
ROBERT ABRAMS
Attorney General
State Capitol
Albany, N.Y. 12224
STATE OF MARYLAND
J. JOSEPH CURRAN
Attorney General
Tawes State Office Building
Annapolis, MD 21401
STATE OF CONNECTICUT
: JOSEPH I. LIEBERMAN
Attorney General
30 Trinity Street
Hartford, CT 06106
STATE OF RHODE ISLAND
JAMES E. O’NEIL
Attorney General
72 Pine Street
Providence, R.1. 02903
COMMONWEALTH OF
VIRGINIA
MARY SUE TERRY
Attorney General
101 N. 8th Street, 5th Floor
Richmond, VA 23219
STATE OF SOUTH CAROLINA
T. Travis MEDLOcCK
Attorney General
P.O. Box 11549
Columbia, $.C. 29211
COMMONWEALTH OF
PENNSYLVANIA
LEROY S. ZIMMERMAN
Attorney General
Strawberry Square
Harrisburg, PA 17120
STATE OF DELA
CHARLES M. {
Attorney General
820 N. French St
Wilmington, DE 19801
T
STATE OF NEW [LAMPSHIRE
STEPHEN E. MERRILL
Attorney General
State House Annex
25 Capitol Street
Concord, N.H. 03301-6397
STATE OF NEW JERSEY
W. Cary EDWARDS
Attorney General
Justice Complex, CN 112
Trenton, N.J. 08625
STATE OF NORTH CAROLINA
JAMES G. MARTIN, JR
Governor
State Capitol
Raleigh, N.C. 27611
COMMONWEALTH OF
MASSACHUSETTS
: JAMES M. SHANNON
Attorney General
One Ashburton Place, 1902
Boston, MA 02108-1698
STATE OF GEORGIA
MICHAEL J. BOWERS
Attorney General
132 State Judicial Building
Atlanta, GA 30334
COASTAL STATES
ORGANIZATION
RicHARD F. DELANEY, CHMN
444 N. Capitol Street, N.W
Washington, D.C. 20001
202-628-9636
TABLE OF CONTENTS
TR OF NTIS cg. cccccncsceccoscccececosscscsccosvseeses
STATEMENT OF INTEREST OF AMICI CURIAE ..........
RA CP DUGEIIIEE occeccccccscccessccevsvcncccsesccssceces
ARGUMENT .cccccccccccsccscccsccccsccccccccccsccsccssensessosccscccccees
A. At the time of the adoption of the Consti-
°
tution, the thirteen original States reserved .
those lands subject to the ebb and flow of
the tide, regardless of the navigability of the
adjacent waters, at least up to the mean high
tide line. As the corpus of this trust was
originally funded by the thirteen original
States, so has it been perpetuated by the
Equal Footing Doctrine to the 37 States that
have since joined the Union. ..........:::eeeee
_ The shorelands reserved by the States at the
time of adoption of the Constitution were
defined and delimited by the uses of the
shorelands, and not solely by the criterion of
whether the adjacent water was navigable.
The public uses were not limited to naviga-
tion, but also included fishing, hunting, fowl-
ing, and bathing, among others. .................
. Each new State upon entering the Union
possessed the sovereign authority to define
both the nature of her sovereignty over, and
the physical boundaries of, her trust shore-
lands to the same extent as the thirteen orig-
aris cerccngunsmnnetoosoresecceeses
Ee . enncpuuiennnssenovcecoooce
TABLE OF AUTHORITIES
CASES: Page
Adams v. Pease, 2 Conn. 481 (1818). ........eeeeeeeees 1]
Allen v. Allen, 19 R.1. 114 (1895). ....eee eee eeeeeeeeeee 9
Arnold v. Mundy, 6 N.J.L. (1 Hal.) 1
CETEIED, cccocesesvcscnsoocenenscsssssnasesesucseenenesantesensosees 15, 24, 25
Attorney General v. Chambers, 4 De G.M. & G. 206
CFE, —_cencscecersseccssesesonscnennsresepesenonenecsssessanesssess )
Attorney General v. Delaware & Bound Brook R.R.
Co., 27 N.J. Eq. 631 (E & A 1876). wees. 16
Bailey v. Burges, 11 R.1. 330 (1876). ......eeeeeeeeeees 9
Ball v. Slack, 2 Whart. 508 (Pa. 1837). .............. 17
Baltimore v. McKim, 3 Bland 453 (18381). _.......... 18
Barnes v. Midland R.R. Terminal Co., 193 N.Y.
PD CR, weniivsesctsnccnsnsecccwinnnaniantesinccesceseseses 28
Barney v. Keokuk, 94 U.S. 324 (1876). .....eeeeeeeees 28
Bickel et al. v. Polk, 5 Del. (Harr.) 325 (1851) 17
Board of Public Works v. Larmar Corp., 262 Md.
TR pie Rl: cp | ee 18, 19
Borax Consolidated, Ltd. v. Los Angeles, 296 U.S.
RO CAG. ccoccccesecccesccccccsccccccnscenesessovesecesescsceseosesense
Bradford v. Nature Conservancy, 224 Va. 181
TRIED: —_ccacececscunconsntneneseuneconsennictemnesasbabensectuennons
Brown v. Goddard, 13 R.I. 76 (1880). — .................
Browne v. Kennedy, 5 H. & J. 195 (Md. 1821).
Butler v. Attorney General, 195 Mass. 79
CRETE, nccececstsnsusesnnsdssonnsdsscadduiquammaneninnsetainasveeee
Carolina Beach Fishing Pier, Inc. v. Town of Car-
olina Beach, 277 N.C. 297, 177 S.
E. 2d 513
(1970). ......ceccecccccccccccccesccesccceresecacssonccscncscsoseees
Carson v. Blazer, 2 Binn. 475 (Pa. 1810). — ..........
Chapman v. Kimball, 9 Day 38 (1831). ......eeeeeeee
Cinque Bambini Partnership v. State, 491 So. 2d
i Gee. Eee. oc cunaseseneneinnseenenesanenens
>. Ze
Table of Authorities Continued
Cobb v. Davenport, 32 N.J.L. 369 (1867)... 15
Collins v. Benbury, 25 N.C. (8 [red.) 277
(1842). ...cecccceccecccsscccccccsccceececssecccsereceraseseeesseoes 20
Commonwealth v. Alger, 61 Mass. (7 Cush.) 959
(1851). — ...ceccccccocsccescccccecccccceserssscccseresseesseeessesoes 6
Common wealth } (he rlestown. 1S Mass. (] Pick.)
180 (1822). J anaseneenennnninntin 5,6
Commonwealth v. Vincent, 108 Mass. 441
(1871). — ccccccccccccccccccccsccsssvcccccccccesssccccrscosscoesseoess 7
Concord Manufacturing Co. v. Robertson, 66 NH 1
(DBD .cccocceccscococcocescccecsccocssonsecssesensescsenssossons 7.8,9,24
Core v. State, 144 N.Y. 396, 396 N.E. 400
(RDB). .ccccccccccccccccccccsccssccscccccverscssssccrcoscsessoseoes 13
Day v. Day, 22 Md. 530 (1865). ....ssseeseeeeeeetees 18
Dept. of Natural Resources v. Ucean City, 274 Md.
1. 332 A.2d 630 (1975). ..ceceseeceeereeeeeeeeeeeeeees 19
Dolphin Lane Association v. Town of Southampton,
72 Misc. 2d 868, 339 N.Y.S. 2d 966
(1971). — cececcccccccccccccccccccccccccsecscccccocoscesesonsossceoees 12
East Haven v. Hemingway, 7 Conn. 186 (1828). 10
Folsom v. Freeborn, 13 R.1. 200 (1881). «..eeeeeeeee 9
Garrison v. Hall & als., 75 Va. 150 (1881) ....... 19,25,27
Gerhard et ux. v. Seekonk River Bridge Commis-
sioners, 15 R.1. 334 ‘} |.) ee 7)
Groton v. Hurlburt, 22 Conn. 178 (1852)... 1]
Hughes v. Washington, 389 U.S. 290 (1967). _ ...... 27
Ingram v. Threudgill, 14 N.C. (8 Dev.) 59
COURT), § —.__. ccconceccnbeceouchnonsecssonsnsesecsessnsoosonssacoonees 20)
Jackvony v. Powel, 67 R.I. 218 (1941) ....8.....-e eee 910,25
Johnson v. State, 114 Ga. 790, 490 S.E.
(1901). — .cacccccccccercccccsscccsccccccccscorsenessseccscocscosses 21
Table of Authorities Continued
Page
Kerpelman v. Board of Public works, 261 Md. 436,
276 A.2d 56 (1971). cert. denied, 404 U.S. 858
CEPT) © \sesevinerpndidiiagsctinasiasagndiinibapnbiccbasdonainiiaen 18
Knight v. U.S. Land Association, 142 U.S. 161
SEES: ‘auliidiiindehethaitidderbidibemmindetniiensanbbnaietanntines 4
Lansing v. Smith, 4 Wend. 9 (N.Y. 1829). 00.0... 12
Marcus Sayre Co. v. Newark, 60 N.J.Eq. 361 (E.
ie ty SEEEED ~tctsdsnienmndidabeiadeneaiapaibutinesiniipiniine 16
Martin v. Waddell, 41 U.S. (16 Pet.) 367
I “sehdacentedibiniatitslceiac aioe aca aac 9,13,15,25
Montana v. United States, 450 U.S. 544 (1981). 4
Mumford v. Wardwell, 73 U.S. (6 Wall.) 423
sR TIE cL Ny AD OEE aN dt SO 4
New Orleans v. The United States, 35 U.S. (10 Pet.)
RS A RL CT 7
Nichol’s v. Lewis, 15 Conn. 137 (1842). oo... 10
Oemler v. Green, 134 Ga. 198, 67 S.E. 433
gE et aed Pn An oSe aA KER Fe A a PO 22
Phillips v. State, Ex Rel. Department of Natural
Resources, 449 A.2d 250 (1982). wo... 17,18
Pollards’ Lessee v. Hagan, 44 U.S. (3 How.) 212
ETETEED:. < ssidcebashemtigeinnpnanenindiianimndiempinadisanbiiiasiiailateadine 4,7
Schultz v. Wilson, 44 N.J. Super. 591 (1957). .... 16
Shepard’s Point Land Co. v. Hotel, 132 N.C. 517
RSE Rs I Sa ie ER he Re 20
Shively v. Bowlby, 152 U.S. 1 (1894) wo... passim
Sibson v. State. 110 N.H. 8. 259 A.2d 397
eae De a 7,8,9
Simons v. French, 25 Conn. 346 (1856). _............. 10
State v. Bishop, 359 N.Y.S. 2d 817, 46 A.2d 654
I a ea 12
State v. Glen, 52 N.C. (7 Jones) 321 (1859). _...... 20
Table of Authorities Continued
State v. Pennsylvania Railroad Company, 225 A.2d
587 (1967) affd 267 A.2d 455 (1969). .........
State v. Pinckney, 22 S.C. Rep. 484 (1884). _ .......
State v. Twiford, 136 N.C. 603, 48 S.E. 586
CAGED, ccscocccccccnssnsccscscesesssesssconssocncesccsscesoosussees
State of New Jersey v. State of Delaware, 291 U.S.
T). ii
Stevens v. Paterson & Newark R.R. Co., 34 N.J.L.
f,
Storer v. Freeman, 6 Mass. 435 (1810). .......eeeeee
Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 136
NE. 224 (1GZZ). — cnccescccccesccccevccccsceccecserccseescees
Tinicum Fishing Co. V. Carter, 61 Pa. 21
SEL, cxakctatinisntciunsenserbadrapeasantentoneninaiasercanneiuens
lnited States v. Mission Rock Co., 189 U.S. 391
(DGD, cccoceccccccccccscsccccccccccessccccoscssscossesssoscsoscses
United States v. Pacheco, 69 U.S. (2 Wall.) 587
Ct. sasbaeenpnmnnenetahedenenssenobanededneces
United States v. Riverside Bayview Homes, Inec.. 106
a rr F Sw eats
Van Ruymbeke v. Patapsco Industrial Park, 261
Md. 470, 276 A.2d G1 (1971). — ..........ceceeeeeeees
Ward v. Willis. 51 N.C. (6 Jones) 183 (1858).
Weber Vv. Board of Harbor Commissioners. 5 LS.
R/) Ue: ee
West v. Baumgartner, 124 Ga. App. 318, 184 S.E.
FF: 4)
Weston v. Sampson, 62 Mass. (8 Cush.) 347
|) |)
Wethersfield v. Humphrey, 20 Conn. 218 (1850).
Wilson v. Forbes, 13 N.C. (2 Dev.) 30 (1842).
Wismall v. Hall, 3 Paige Ch. 313 (N.Y. 1882).
Pay
vl
Table of Authorities Continued
CONSTITUTIONS AND STATUTES:
Rhode Island Constitution Article I. section 17
9 Del. Law 454 (1843). wooo cccccccccccccccccccceccc ccc.
Ga. Code Ann. sec. 44-8-8 oooccoooooocecececcceeecccccc.
N.J. Stat. Ann. 12:3-4, 10, 12, 17, 18. 19. 26. 28,
NOI aia i
OE SU ia
Virginia Act of 1870 (10 Hen. Stat. at Large, p
SIE Ssssaptbcienrieandeiaiaiedesldclaenitii a
TREATISES AND PERIODICALS:
Angell, Joseph K.., A Treatise on the Right of Prop-
erty in Tide Waters, Little and Brown. Boston
SUITED. <” demuieiineisiitditcineibmiciiaainnianintan aati ta
Coquillette, Mosses from an Old Manse: Another
Look at Some Historic Property Cases About
the Environment. 64 Cornel] L. Rev. 761. 80]
DEY) iteeieeliniedictiaete et
Dunbar, Gary S., Historical Geography of North
Carolina Outer Banks (1958) ooo... eecccccecccee-s..
Matter of Tidal High-Water Line, 33 New York
State Dept. Repts. 415 (1925). oo...
L Swift Digest 109 (1822). ooeeeeccecccccececcecececeseeee.
2 Tiffany, Real Property, sec. 659 (3rd ed.) .......
26
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1986
No. 86-870
PHILLIPS PETROLEUM COMPANY et al.
Petitridners.
versus
STATE OF MISSISSIPPI et al..
Re spondents.
On Writ of Certiorari to the Supreme Court of
Mississippi
BRIEF AMICUS CURIAE of the ORIGINAL THIRTEEN
STATES:
NEW YORK, NEW HAMPSHIRE, MASSACHUSETTS,
CONNECTICUT, NEW JERSEY, PENNSYLVANIA,
DELAWARE, MARYLAND, VIRGINIA, NORTH
CAROLINA, SOUTH CAROLINA, GEORGIA, and RHODE
ISLAND
Joined by the
COASTAL STATES ORGANIZATION
IN SUPPORT OF RESPONDENTS.
STATEMENT OF INTEREST OF AMICI CURIAE
IN THE OUTCOME OF THIS CASE
This case presents the question of what Public Trust -
shorelands Mississippi received when she entered the Union
in 1817 on an equal footing with the thirteen original
States. The Mississippi Supreme Court concluded that the
shorelands so received and held in trust are those lands
subject to the ebb and flow of the tide and below the
mean high tide line as it existed in 1817. This ruling is
based on the Equal Footing Doctrine; when Mississippi
entered the Union she did so on an equal footing with the
thirteen original States, ‘viz, as each one of the thirteen
held its tidelands and navigable waters in public trust
Cinque Bambini Partnership v. State, 491 So. 2d 508,
512 (Miss. 1986).
The question of how ‘each one of the thirteen held its
tidelands and navigable waters in public trust”’ is one that
the thirteen original States are in the best position to
answer. This question is not a simple one, for the thirteen
original States were not uniform in the extent and manner
to which they held their shorelands in trust for all the
people. “[T]he nature and degree of such rights and priv-
ileges [in the shorelands] differed in the different Colonies,
and in some were created by statute, while in others they
rested upon usage only.” Shively v. Bowlby, 152 U.S. 1,
18 (1894). Nonetheless, it is fundamental to answer this
question in order to ascertain what the remaining 37 “new”
States received by force and effect of the Equal Footing
Doctrine. Answering this question is the central focus of
this brief.
The Coastal States Organization, a representative or-
ganization of the Governors of the coastal States, recog-
nizes the importance of this case to all of its member
States. The Coastal States Organization, having no vested
interests in the outcome of this case, has served to facil-
itate the development of this brief amicus curiae among
the thirteen original States.
The outcome of this case is of major importance to all
coastal States. Indeed, the Court is dealing here with an
issue directly related to the constitutional sovereignty of
the States. A reversal of the Mississippi Supreme Court
decision could affect the interests of all coastal States in
thousands upon thousands of acres of their tidelands, here-
tofore understood to be held either in sovereign ownership,
or subject to the public shoreland trust servitude.
Petitioners state, and we agree, that ‘[T]he 13 original
states are the divining rods of the equal footing doctrine.”
Petitioners’ Brief at 23. Because of the obvious truth of
the statement, we, as the thirteen original States that
reserved their shorelands when adopting the Constitution
of the United States 200 years ago, submit this brief ami-
cus curiae to present our view with one voice as to the
nature and extent of our reserved shoreland trusts which
were, by force and effect of the Equal Footing Doctrine,
perpetuated as each new State entered the Union.
SUMMARY OF ARGUMENT
The thirteen original States, upon adoption of the United
States Constitution 200 years ago, reserved a public trust
‘interest in. at a minimum, all of their shorelands subject
to the ebb and flow of the tide below the mean high tide
line. and held them in trust for the benefit of all the
people. The States held these trust shorelands not only
for the public’s use for navigation, but for other purposes,
including commerce, land transportation, fishing, fowling,
sustenance and bathing. Entering the Union upon an equal
footing with the thirteen original States, each of the new
States received in trust those shorelands subject to the
ebb and flow of the tide, regardless of the navigability of
the adjacent waters. Each new State, in its own trustee
capacity, upon entering the Union had the authority to
define both the nature of her sovereignty over, and the
physical boundaries of, her trust shorelands to the same
extent as the thirteen original States.
ARGUMENT
A. At the time of the adoption of the Constitution, the
thirteen original States reserved those lands subject
to the ebb and flow of the tide, regardless of the
navigability of the adjacent waters, at least up to
the mean high tide line. As the corpus of this trust
was originally funded by the thirteen original States,
so has it been perpetuated by the Equal Footing
Doctrine to the 37 States that have since joined the
Union.
“The original States withheld their tidelands and navig-
able waters from the United States at the time of adoption
of the Constitution.” Cinque Bambini Partnership v. State,
491 So. 2d 508, 512 (Miss. 1986). See also Pollards’ Lessee
v. Hagan, 44 U.S. (3 How.) 212, 228 - 230 (1843); Mumford
v. Wardwell, 73 U.S. (6 Wall.) 423, 436 (1867); Weber v.
Board of Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65
66 (1873); Knight v. U.S. Land Association, 142 U.S.
161, 183 (1891); Shively v. Bowlby, 152 U.S. 1, 26 (1894):
United States v. Mission Rock Co., 189 U.S. 391. 404 (1903).
As each one of the thirteen original States held its tide-
lands and navigable waters in trust the United States cre-
ated like trusts in each new State. Montana v. United
States, 450 U.S. 544, 551 (1981). Thus, the question of the
extent, and the nature of the public uses, of the shorelands
withheld in trust by the thirteen original States at the
time the United States Constitution was adopted must be
answered in order to determine with any assurance what
the 37 “‘new”’ States, such as Mississippi, received by force
and effect of the Equal Footing Doctrine.
To answer this question it is necessary to look at the
English common law, because “the common law of Eng-
land upon this subject, at the time of the emigration of
our ancestors, is the law of this country, except so far as
it has been modified by the charters, constitutions, statutes
or usages of the several Colonies and States, or by the
Constitution and the laws of the United States.” Shively
v. Bowlby, 152 U.S. 1, 14. In other words, “upon the
American Revolution, all the rights of the Crown and Par-
liament vested in the several States, subject to the rights
surrendered to the national government by the Constitu-
tion of the United States.”” Jd. 14 - 15. See also Martin
v. Waddell, 41 U.S. 367, 410 (1842); Tinicum Fishing Co.
vy. Carter, 61 Pa. 21, 30 (1869). However, ‘‘since the rev-
olution, no part of the common law has been adopted
except that which was proper for our country.’’ Carson v.
Blazer, 2 Binn. 475, 477 (Pa. 1810). Thus, because it pro-
vided the foundation for colonial law but was subject to
change by the colonies after the Revolution, the English
common law is of central, but not controlling, importance.
This Court focused on the English common law of the
tidelands in the case of Borax Consolidated, Ltd. v. Los
Angeles, 296 U.S. 10 (1935), looking specifically at the
“extent of the right of the Crown to the seashore.” Dis-
cussing the case of Attorney General v. Chambers, 4 De
G.M. & G. 206 (1789), this Court noted the conclusion of
Lord Chancellor Cranworth that “the medium high tide
between the springs and the neaps’’ must be treated ‘‘as
bounding the right of the Crown.” Borax Consolidated,
Ltd. v. Los Angeles, supra at 25.
The Chambers case, decided two years after the United
States Constitution was ratified, suggests that the thirteen
colonies also held sovereign control over their seashores
up to the mean high tide line. As noted, however, after
the Revolution each colony was free to modify the common
law as necessary with respect to the uses and physical
character of her shorelands. The Chambers case further
suggests that the colonies determined what shorelands they
held according to the tidal influence on those lands, and
not according to the “‘navigability’’ of the adjacent waters.
These suggestions withstand scrutiny when the thirteen
original State laws and decisions are reviewed with an eye
towards establishing what shorelands they reserved at the
time the Constitution was adopted.
Massachusetts: The Massachusetts Bay Colony modified
by ordinance in 1641 its common law of the shorelands.
Prior to this ordinance, the colony abided by the English
common law that “all arms of seas, coves, creeks, &c.,
where the tide ebbs and flows, are the property of the
sovereign...’’ Commonwealth v. Charlestown, 18 Mass. (1
Pick.) 180, 182 (1822) (emphasis added). “[T]his mght of
the sovereign extends to ordinary high-water mark, so that
the shore, which is the space between high-water and low-
water, belongs also to the sovereign.’ Jbid. See also Storer
v. Freeman, 6 Mass. 435, 437 (1810). Thus, by the common
law “he to whom a house lot was granted which wus
bounded upon the sea, would be the proprietor only as far
as high water mark,’ for below this all lands subject to
the ebb and flow of the tide were public lands. Common-
wealth v. Charlestown, 18 Mass. at 182.
In order to induce private parties to erect wharves be-
low the high water mark, the colonial legislature passed
the ordinance of 1641 amending the common law. Storer
v. Freeman, 6 Mass. at 437. This ordinance granted to
adjacent upland owners title to the shore down to the
mean low tide mark or one hundred rods (about 1650 feet)
from the mean high tide mark, whichever was less. /d.
Public rights to fishing, fowling, and navigation in the
intertidal zone were, however, reserved from the grant.
Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 67-68
(1851). Thus, the public retained a direct proprietary in-
terest in the intertidal zone in addition to its sovereign
power to regulate private use of this area for the common
good. Jd. at 82-88. ,
The public’s proprietary and sovereign rights in the in-
tertidal zone vested in the Commonwealth at the time of
the Revolution, and were not transferred to the United
States by the subsequent adoption of the Constitution. /d.
at 82, citing New Orleans v. The United States, 35 U.S.
(10 Pet.) 662, 737 (1836); Pollards’ Lessee v. Hagan, 44
U.S. (3 How.) 212 (1843). Since that time, Massachusetts
courts have consistently upheld the public’s rights to fish-
ing, fowling and navigation in the intertidal zone. Thus,
for example, a private party cannot exclude the public
from taking shellfish on land in the intertidal zone, irre-
spective of whether he holds title to such land. Weston v.
Sampson, 62 Mass. (8 Cush.) 347, 355 (1851). See also
Butler v. Attorney General, 195 Mass. 79, 84, 80 N.E. 688,
689 (1907) (upholding the public’ right to “fishing and
free fowling’’ in the intertidal zone).
The Commonwealth's dominion over the public rights in
tidal waters is not dependent on whether the waters are
navigable-in-fact. See Commonweaith v. Vincent, 108 Mass.
441. 447 (1871) recognizing ‘“‘no restriction upon [the Com-
monwealth’s] authority to regulate the public right of fish-
ing’ in the tide waters and great ponds that “‘are not
navigable from the sea for any useful purpose”
New Hampshire: In New Hampshire, “ijt is well es-
tablished law” that “tide waters are public waters. As such
they are within the power of the Legislature to make such
laws as the public good may require.”’ Sibson v. State, 110
N.H. 8. 10, 259 A.2d 397, 399 (1969) (cases cited therein
omitted). See also Concord Manufacturing Co. v. Robertson,
66 N.H. 1. 4, 25 A. 718, 719 (1889). According to New
Hampshire case law, tidewaters ‘“‘are those in which the
tide ordinarily ebbs and flows, including the sea, and also
bays, rivers, and creeks, so far as they answer this de-
scription. A body or stream of water cannot be considered
as tidal merely because, under unusual circumstances, the
level of the water is affected by the tide, nor is the amount
of salt in the water material.’’ Sibson v. State, 110 N.H
at 10, quoting 2 Tiffany, Real Property sec. 659 (3rd ed.).
While navigability-in-fact is the appropriate test to deter-
mine whether freshwater lakes and streams are public
waters, since New Hampshire’s earliest days the action of
— ‘ + " +. 7s " " .? ‘ q ff ‘ "
tne jae nas i irnisneda a convenien means OL ic ating ne
. } } : . ea '% , : , 7 a a ’ .
boundary of the largest reservoir of public water. Conco?
Manufacturing Co. v. Robertson, 66 N.H. at 5
~~
2 al : 7} ré od ‘ ry) ,] » re I '
Resides recognizing ewaters aS pubDiic waters, tne New
Hampshire Supreme Court confirmed a century ago the
long-standing common law rights of the public in New
Hampshire’s shoreland extending seaward from the mean
high-water mark. In 1889, Chief Justice Doe wrote in Con
yey V nmufacturing f Rk Mertson,. supra, as rollows
In Nudd v. Lamprey {an unreported case} decided
n the county of Rockingham at the December
term, 1847, it was held that the provision of
Massachusetts ordinance [of 1641] relating to the
shore of tide-waters has not been adopted and is
not in force n this state: ana there is no ground
m whnicn tnat case can ve overruled. The intro
juction of any other line than high-water mark
1s the marine Doundarv would overturn common
iw ments that nad Deen estaplusned here, DY |
Tl I
ice neo ry: iT} : iercranniing f Ty
imsae t Aii\A i 1d ional ius rstandaing : Wi
. - > . ’ - > 7 .
inarea ears aLravion DelLore ne vere les
.
ned y \ j sy ly ai, i re j
y - - = <> - .
‘ , ’ + . +> . Ton? 7 rr ¥
id : ks | aot) \ | ‘ We i pi As . ‘ eXvel 2 rit wWUMILIT
2 . ~ . . . ; . " eit + “+
trus tne ‘ irt in Concord Manufacturing conciuded that
+) . . ; , , : > " ’ - ‘ . : mir ry) « .) “fT |
. SalTie lk avtv©esS | ASLILE il 2 eason —W Livi manaated
> > > . " ‘ 7 > . P's >
na he shores and arms oI the sea De neid in tee Dy ne
> > > : > ‘ . . . 7?
state Io! ymmon use—aisS ested a private mgn i rea
; eo t the ; i) t |
sonable use lI wners of e adjoining land. /d. at 18
: - .
Sibson v. State, 110 N.H. at 10, 259 A.2d at 400. This
’ i t? ’ OT ~ T ir]
, . > , *?} . ¥ ys YY “? rmoriht > *> . ~ + > >
Siu Tet . Ja Al i 4 : . at
+ )?f . ‘ .« . an ,toroa >
nv! pupiic waters; reasonabiy ll le INLerests
> “* ryt -_ mince ange +, no r\nTe 7. ¥ -y
—f navigation. tisning and otner pudiic purposes
. :
. > . - > -* + > > . . .
I ner words ne mgnts or tnese owners are
™ + -—mtyy " a . + ++ . . ‘
iraenea W 1 a servitude in tavor or tne Stalk
vhict mes into operation when the State prop
erly exercises its power to control, regulate. and
utilize such waters.
Sibson v. State, supra, citing State v. Stafford Co., 99 N.H.
92 97, 105 A.2d 569, 573 (1954); see Concord Manufac-
turing Co. v. Robertson, supra at 5.
Rhode Island: Rhode Island case law consistently es-
tablishes that title to shorelands below the high water
mark, and subject to the ebb and flow of the tide, lies in
the State. “in this state, at common law, the fee of the
soil in tide waters below high water-mark: is in the state.”
Bailey v. Burges, 11 R.I. 330, 331 (1876); Brown v. God-
dard, 13 R.I. 76, 81 (1880); Folsom v. Freeborn, 13 R.I.
200, 204 (1881); Gerhard et ux. v. Seekonk River Bridge
Commissioners, 15 R.1. 334, 335 (1886); Allen v. Allen, 19
R.I. 114, 115 (1895); Jackvony v. Powel, 67 R.I. 218, 226
(1941). “This right of the State is held, however, by virtue
of its sovereignty, and in trust for all the inhabitants, not
as a private proprietor. The public rights secured by this
trust are the rights of passage, of navigation and fishery,
and these rights extend ... to all land below high water
unless it has been so used, built upon or occupied, as to
prevent the passage of boats, and the natural ebb and flow
of the tide.”’-(Emphasis added). Allen v. Allen, 19 R.I. at
116; Jackvony v. Powel, 67 R.I. at 226.
Rhode Island’s Constitution, ratified in 1843, protects
certain rights of the public in the use of the State's ex-
tensive shores, most prominent of which are the shores
along Narragansett Bay. Article I, section 17 of the Rhode
Island Constitution provides: “The people shall continue
to enjoy and freely exercise all the rights of fishery, and
the privileges of the shore, to which they have heretofore
been entitled under the charter and usages of this state.”
The shores held in trust in Rhode Island, and upon
which the public’s ‘privileges’ are constitutionally pro-
tected. are those “shores bordering on tidewaters and lying
between the lines of mean high tide and mean low tide
10
... Jdackvony v. Powel, 67 R.I. at 225. The fact that the
waters adjacent to the shoreland are or are not navigable
has never been a requisite criteria for determining what
tidelands of Rhode Island are held by the State in trust.
Connecticut: By the Charter of 1662, Charles II granted
to the Colony of Connecticut title to the shores of the sea.
The physical extent of this grant and the competency of
the king to make such a conveyance were undoubted.
‘A river, where the tide ebbs and flows, is an
arm of the sea; and the shore is that space of
ground, which is between ordinary high water
and low water mark. The title of the king, prima
facie, to all ports and arms of the sea to high
water mark, and to the soil thereof, has long
been established law; and ... it is settled, that he
may grant the property of the soil between high
and low water mark to a subject or corporation.”’
East Haven v. Hemingway, 7 Conn. 186, 198 (1828).
Adoption of the English common law regarding public
ownership of all lands below “‘high water mark’’ has been
continually reaffirmed in Connecticut case law. ‘“‘The doc-
trine of the common law is, that the right to the soil of
proprietors of land on navigable rivers extends only to
high water mark; all below is publici juris - in the king,
in England. That is the law in Connecticut; for we have
no statute abrogating it."” Chapman v. Kimball, 9 Day 38,
40 (1831). See also Nichol’s v. Lewis, 15 Conn. 137, 143
(1842) (‘‘land between high and low water mark belongs
to the public’’); Simons v. French, 25 Conn. 346, 352 (1856)
(‘In Connecticut, it is now settled that the public, rep-
resenting the former title of the king, is the owner in fee
of such flats up to the high water mark’’). This same line
of early cases established that the owner of adjoining up-
land had the right to wharf out upon or otherwise occupy
11
the land beyond high water provided he did not interfere
with navigation.
As evidenced by the writings of a leading State jurist
of the times, Connecticut subscribed to the “‘legal’’ defi-
nition of navigability. That is, arms of the sea and rivers
were considered navigable ‘‘as far as the sea flows and
re-flows.” 1 Swift Digest 109 (1822). Within the context
of colonial times, navigable waters as discussed in Con-
necticut case law referred to tidal influence rather than
navigability-in-fact. For example, in Adams v. Pease, 2
Conn. 481, 484 (1818), the court stated that ‘‘every river,
where the sea ebbs and flows, is by the common law,
considered as navigable; and all rivers not thus distin-
guished, are not navigable.’
Thus, In Connecticut, title in the lands subject to the
ebb and flow of the tide and below the high water mark
was held by the State. It is these tidally influenced shore-
lands she reserved upon adoption of the Constitution.
New York: It has been long established that New York’s
shoreland rights were defined without reference to navig-
ability, but rather to the tidal influence on the lands. Thus,
the power of the State extends over waters which ‘‘though
not navigable in fact are deemed navigable in law
It must be noted that petitioners cite two Connecticut cases for the
proposition that not all tidal streams are navigable. See Petitioners
Brief, at 26. Both Wethersfield v. Humphrey, 20 Conn. 218 (1850) and
Groton v. Hurlburt, 22 Conn. 178 (1852), however, were concerned not
with navigable waters, per se, nor with a determination of public tide-
lands, but with obstructions to navigation which would interrupt com-
merce. Navigability, navigable waters and the standards by which they
are defined have always varied depending on the application of such
determinations. It is no more appropriate to apply the narrower com-
merce clause/navigable water standard to the determination of public
tidelands, than it would be to apply the broader regulatory/navigable
water standard enunciated by this Court in defining navigable waters
under the Clean Water Act. See United States v. Riverside Bayview
Hones, Inc., 106 S. Ct. 455 (1985).
12
Over such waters the power of the State extends.” State
v. Bishop, 359 N.Y.S. 2d 817, 820, 46 A. 2d 654, 656
(1974).
As early as 1829 an appellate court of New York held
that the navigable rivers and arms of the sea where the
tide regularly ebbs and flows belong to the people. Lansing
v. Smith, 4 Wend. 9 (1829). An 1832 decision held that
“as a general rule, a grant of lands bounded on tide waters
extends only to ordinary high-water mark.’ .Wismall v.
Hall, 3 Paige Ch. 313, 315 (N.Y. 1832). In a review of
the law in 1925, the New York State Attorney General
advised that the people have common-law rights, consti-
tuting a public trust, to the land below the mean high
water line over which the tide ebbs and flows. Matter of
Tidal High-Water Line, 33 New York State Dept. Repts.
415 (1925).
It is also well established in New York “that a convey-
ance by a governmental agency of land fronting on a na-
vigable body of water conveys title only to the high water
line.” Do'phin Lane Association v. Town of Southampton,
72 Mise. 2d 868, 882, 339 N.Y.S. 2d 966, 981 (1971). “‘The
foreshore, or land under the waters of the sea and its
arms, between high and low-water mark, is subject, first,
to the jus publicum - the right of navigation, and when
the tide is out, the right of access to the water for fishing,
bathing and other lawful purposes to which the right of
passage over the beach may be a necessary incident.’
Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 20, 136 N.E.
224, 225 (1922).
The authority of the State of New York to convey land
under the tide waters is accordingly limited. ‘‘The title of
the state to the seacoast and the shores of tidal rivers is
different from the fee simple which an individual holds to
an estate in lands. It is not a proprietary, but a sovereign
right, and it has frequently been said that a trust is en-
grafted upon this title for the benefit of the public of which
13
the state is powerless to divest itself.’’ Coxe v. State, 144
N.Y. 396, 405-406, 39 N.E. 400, 402 (1895). This case
overturned an act of the Legislature which gave a cor-
poration authority to reclaim and drain wetlands and tide-
water marshes on or adjacent to Staten Island and Long
Island. The court noted that this restriction, although not
enumerated in the State Constitution, was inherited di-
rectly from the State’s colonial predecessor.
It has often been said that the legislature of this
state is clothed with all the powers of the British
Parliament, except as restrained by the express
or implied provisions of the Constitution. When
the general doctrines of the English courts on
this subject are given full scope, the conclusion
is inevitable that the Parliament and the Crown
together were not competent to grant to a pri-
vate corporation, for private purposes, the sea-
coast around the island below the shore line,
without violating established principles of law.
(Martin v. Waddell, 16 Peters, 367). While I am
not aware of any such restriction to be found in
the Constitution of this state, in terms, yet, from
the very nature of the question, it must be
deemed to be inherent in the title and power of
disposition. The title which the state holds and
the power of disposition is an incident and part
of its sovereignty that cannot be surrendered,
alienated or delegated, except for some public
purpose, or some reasonable use which can fairly
be said to be for the public benefit.
Id. at 406, 39 N.E. at 402.
New Jersey: New Jersey has consistently asserted that
her sovereignty over her shorelands extended to those
lands subject to the ebb and flow of the tide. Navigability
was never a deciding factor. In fact, New Jersey does not
assert title claims to the beds of non-tidal, though navig-
14
able, waterways. Statutes passed by the New Jersey leg-
islature from 1804 to the present, and New Jersey case
law, confirm this.
In 1804 “An Act to Incorporate ‘The Associates of the
Jersey Company’ ” conveyed certain submerged lands un-
der the tidal waters of the Hudson River. New Jersey
Laws of 1804, page 367. The 1851 Wharf Act permitted
a property owner of lands “situate along or upon tide
waters” to build wharves or other structures out to the
ordinary low water line, as long as they did not interfere
with the public’s right of navigation. Between 1804 and
1851, there were numerous conveyances by the Legislature
of State tidal lands. In each instance the lands conveyed
were described either originally, or at the time, as being
“under water.” In no case were the lands described as
“navigable.” In 1869, a comprehensive riparian statute was
enacted that carefully distmguished between tidewaters, to
which the State claimed title, and navigable waters.
N.J.S.A. 12: 3-2 to 12: 3-9.2
Hence, from statehood 200 years ago to the present,
the New Jersey legislature continuously referred to lands
See also N.J.S.A. 12:3-4 (as first enacted in 1869), that prohibited
the filling in any land under water below mean high tide; N.J.S.A.
12:3-10 (1871), that permitted any riparian owners on tidewaters to
obtain a conveyance of thé submerged lands in front of their lands:
N.J.S.A. 12:3-12 (1871), that permitted the conveyance of lands under
tidewater to riparian owners from the original high water line; N.J.S.A.
12:3-17 (1875), that permitted the State to conduct surveys of State
claims over the tidewaters; N.J.S.A. 12:3-18 (1877), that providea con-
demnation rights for owners adjacent to tidelands: N.J.S.A. 12:3-19
(1891) that states that “there are islands situate in the tidal waters
of this State, the lands below mean high water adjoining to which are
the property of this State’; N.J.S.A 12:3-26 (1910), that prohibited the
laying of pipes under tidal waters without the State’s consent: N.J.S.A.
12:3-28 (1927), regulating the construction of bridges over ‘“‘any lands
of this State flowed by the tidal waters thereof’: and N.J.S.A. 12:3-
35 and 12:3-36 (1916) that permitted the State to convey lands of the
State “now or formerly under tidewaters” for public parks. (Emphasis
added in all references).
15
under tidewaters, or tidal lands, and has described the
boundary between State and private lands as the “mean
high water” line. When the legislature wished to reference
navigable waters, it did so. When it spoke in terms of
title to sovereign shorelands, it referred only to tidally
influenced land.
The case law supports this conclusion as well. An early
assertion of ownership of the State of New Jersey to the
beds of non-navigable waters led to the decision of this
Court in Martin v. Lessee of Waddell, 41 U.S. 367 (1842).
The introduction to Martin notes that the jury “found the
premises in dispute are situated beneath the waters of the
Raritan River and Bay, where the tide ebbs and flows,”
without any reference to its navigability. Martin v. Lessee
of Waddell, 41 U.S. at 368. The Court upheld the power
of the State to convey such lands, and found a con’ -yance
from the East New Jersey Proprietors to be without ef-
fect. See also Arnold v. Mundy, 6 N.J.L. 1 (1821).
In an 1867 case, the New Jersey Supreme Court held:
“The test by which to determine whether waters
are public or private, is the ebb and flow of the
tide. Waters in which the tide ebbs and flows -
so far only as the sea flows and reflows, are
public waters; and those in which there is no ebb
and flow of the tide, are private waters.” Codd
v. Davenport, 32 N.J.L. 369, 378 (Sup. Ct. 1867).
This decision was reaffirmed in 1876 by the New Jersey
Court of Errors and Appeals, which held:
“In Cobb v. Davenport ... the notion that actual
navigability was the criterion of public or private
ownership in the bed of waters was distinctly
repudiated, and the doctrine that the ebb and
flow of the tide furnished such criterion was ex-
pressly adopted as a principle of the common law
so well settled that a citation of authorities was
16
deemed unnecessary.” (Emphasis added).
Attorney General v. Delaware & Bound Brook
R.R. Co., 27 N.J. Eq. 631, 689 (E & A 1876).
The inescapable conclusion reached by an examination
of the statutory and case law of New Jersey is that there
was a consistent assertion of title by the State to its
shorelands subject to the ebb and flow of the tide from
the earliest times. These State claims were made in leg-
islation starting in the early 1800s, and were strongly
upheld by the New Jersey courts as conforming with the
common law or English rule of title.
Pennsylvania: The Pennsylvania Supreme Court ex-
pressed its view in 1837, that “{I]}t seems agreed, that
between low water and ordinary high water of the ocean,
and wherever the tide ebbs and flows, is part of the com-
In their amicus curiae brief, the City of Elizabeth et al. make the
assertion that the State of New Jersey abruptly and retroactively
changed its claim of ownership to tidal lands in the late 1950s. They
cite several cases in support of their position that New Jersey sub
stantive property law required a dual test of navigability and tidal ebb
and flow for State sovereign owneiship until the late 1950s. Amici
brief of City of Elizabeth, at 18. ‘An examination of those cases reveals
that the word ‘navigable’ was either used in connection with a body
of water concededly navigable, or that the word was employed gra
tuitously as an additional word of description.” Schultz v. Wilson, 44
N.J. Super. 591, 602, 131 A. 2d 415, 422 (App. Div. 1957). Another
leading case in which certain language refers to navigability is Stevens
Paterson & Newark R.R. Co., 34 N.J.L. 5382, 3 Am. Rep. 269 (E
& A. 1870), which upheld a State riparian conveyance along a navigable
river. Any confusion that remained after the Stevens case was resolved
n Marcus Sayre Co. v. Newark, 60 N.J.Eq. 361, 369 (E. & A. 1900)
where the court heid
‘The title to a tidal stream below ordinary high tide is in the
State as absolute owner. The decision of this court in Stevens
placed the law on this subject on a firm foundation as a finality
Thus, the position taken by the amici City of Elizabeth et al. is un
tenabie, being unsupportable by either the substantive law or case law
tf New Jersey
17
mon highway. ... In England, this is said to be vested in
the king; here it is in the State.” Ball v. Slack, 2 Whart
508, 539 (Pa. 1837). By various acts of the legislature,
however, the owner of lands bounded by navigable water
could also hold title to the tidelands between high and low
water mark, subject to the public right of navigation, and
to the authority of the legislature to make public improve-
ments upon it, and to regulate his use of it. See Shively
v. Bowlby, 152 U.S. at 22.
Deiaware: In a boundary dispute case involving Jands
below tidal water, this court has stated that, in Delaware,
“The title to the soil, which was subject to jus publicum
while it was vested in the king and his grantees, is subject
to the same restrictions in the ownership of Delaware”.
State of New Jersey v. State of Delaware, 291 U.S. 361,
372, 373, (1933). As noted in an early Delaware Supreme
Court decision, the restrictions of this jus publicum in
Delaware were summarized as follows:
In all navigable waters, where the tide ebbs and
flows, the people have of common right the priv-
ilege of fishing, and of navigation, between high
and low water mark, though it be over private
soil.
Bickel et al. v. Polk, 5 Del. (Harr.) 325, 326 (1851). Fur-
ther, “the public have the right to take fish below high
water mark, though upon soil belonging to an individual,
and would not be trespassing in so doing ...’’ Jbid. Thus,
though a riparian owner can hold title down to the low
water mark in Delaware, the riparian owner’s title is sub-
ject to the public’s jus publicum rights that exist below
the highwater mark. It has also been stated that the tide-
lands in Delaware, which are subject to the public’s trust
rights, is not “limited to that appurtenant to an ocean.
On the contrary, foreshore can be found along any tidal
water”. Phillips v. State, Ex. Rel. Department of Natural
Resources, 449 A.2d 250, 255 (1982), citing State v. Penn-
18
sylvania Railroad Company, 228 A.2d 587 (1967) aff'd 267
A.2d 455 (1969).
Delaware also gave special statutory protection to its
tidelands. Until 1843 adverse possession against the State
was prohibited. In that year, however, the legislature au-
thorized adverse possession against State land “‘other than
salt marsh”. 9 Del. L. 454 (1843). In 1852 this law was
amended to exclude not only salt marsh, but also ‘‘beach
or shore”’ lands.
Thus, although Delaware allowed private ownership of
tidelands down to the low water mark, the public rights
to use the tidelands, emanating from the English Common
Law, were preserved. Tidelands impressed with the trust
servitude at the time the Constitution was adopted,
whether publicly or privately held, were not only those
shorelands in Delaware adjacent to waters that were na-
vigable-in-fact, but were those shorelands ‘‘found along any
tidal water,”’ Phillips v. State, 449 A.2d at 255; i.e., wher-
ever the tide ebbed and flowed.
Maryland: In Maryland, the shorelands between mean
high water and mean low water passed by grant of the
1632 Charter of Maryland (Article IV) by Charles I to
Caecillius Calvert, Baron of Baltimore. Thus at that time
the tidelands were owned by the Crown. Browne v. Ken-
nedy, 5 H. & J. 195 (Md. 1821). After the Revolution, the
tidelands were held by the State for the benefit of the
public by virtue of Article 5 of the Declaration of Rights
in the Maryland Constitution. Board of Public Works v.
Larmar Corp., 262 Md. 24, 277, A.2d 427 (1971); Ker-
pelman v. Board of Public works, 261 Md. 436, 276 A.2d
56 (1971), cert. denied, 404 U.S. 858 (1971). See also Day
v. Day, 22 Md. 530 (1865); Baltimore v. McKim, 3 Bland
453 (1831).
Prior to the enactment of the Act of 1862 (now Mary-
land Code Art. 54, sec. 48) there were instances where
the State issued patents for land under navigable water,
lY
defined by Maryland cases as ‘“‘water where the tide ebbs
and flows,” with the patents being subject to the public
rights to navigation and fishery. Board of Public Works
vy. Larmar Corp., supra at 47, 277 A.2d at 438; Dept. of
Natural Resources v. Ocean City, 274 Md. 1 332, A.2d 630
(1975); Van Ruymbeke v. Patapsco Industrial Park, 261
Md. 470, 475, 276 A.2d 61, 64 (1971).
Virginia: In Virginia, the law at the time of adoption
of the Constitution was a codification of the English com-
mon law, the Act of May 1780 (10 Hen. Stat. at Large,
p. 226). This Act reserved “{AJll unappropriated lands on
the Bay of the Chesapeake, or the sea shore, or the shores
of any river or creek’’ for use “‘as a common to all of the
good people’ of the Commonwealth. Garrison v. Hall &
als., 75 Va. 150, 160 (1881). The object of this Act was
held to be “‘to reserve the right of fishing,...fowling and
hunting, being only coextensive therewith, as a common
right of the people of the State, as an aquatic right on
the public waters, which embraced the shores and the lands
adjacent to them, so far as necessary for the enjoyment
of those rights .. .’’. Jd. at 163. Most noticeable about this
statutory language is that the shorelands held in trust “for
all the good people’’ of Virginia were not delimited from
the high water mark down, but included all the adjacent
lands “so far as necessary for the enjoyment of those
rights.”
A Virginia Legislature Act of 1819 extended to the low
water mark the seaward boundary of an upland owner's
property, if the grant was made prior to 1780. However,
even though title was in the upland owner, the shoreland
remained subject to the public’s right to fish, fowl and
hunt. See Bradford v. Nature Conservancy, 224 Va. 181
(1982). Thus, any grant of the shorelands made after 1780
was “void,”’ and such lands today are “held as a common’
as they were 200 years ago. [bid.
North Carolina: The Supreme Court of North Carolina
has long established that where the waters covering lands
are ‘‘navigable in law,”’ those lands are held in trust by
the State for the benefit of the public. See Wilson v. Forbes,
13 N.C. (2 Dev.) 31 (1828): Shepard's Point Land Co
Hotel, 132 N.C. 517 (1903). Waters that were “navigable
at law’ under the common law of England were those
waters ‘“‘where the tide flows and ebbs.”’ Wilson v. Forbes
13 N.C. at 38
The Supreme Court of North Carolina has regularly ap
plied the rule of public trust ownership of the bed to tidal
and non-tidal but navagable-in-fact, waters. See Jngram
Threadgill, 14 N.C. (3 Dev.) 59 (1831): State Twwford
136 N.C. 603, 48 S.E. 586 (1904). In the seminal case of
State v. Glen, 52 N.C. (7 Jones) 321 (1859), the court
reviewed its prior decisions and reaffirmed the primary
classes of waters which continue to be recognized pubil
trust beds and private beds. The Glen court recognized
that public trust ownership of the bed extends both to all
lands subject to the ebb and flow of the tides to the far
thest influx of salt water. Collins v Benbu ry, 25 N.C 3
lred.) 277 (1842), and to all waters navigable by “‘sea ves
sels’ as defined in Wilson Forbes, supra
[he boundary of the reserved submerged lands in Nort}
(arolina has aiways Deen the margin of the water body
1.e. the line of ordinary high water. Ward W s, 5]
N.C. (6 Jones) 183 (1858). More recently, the Supreme
Court of North Carolina has defined the boundary of pri
vate/pubDlic trust ownership, in areas subject to lunar tides
as the high water line of the foreshore. The foreshore is
further described as an area where the public can walk
when the tide is iow, and mde in Doats wher tC 1S nigi
(‘ar rid? Beach KF Shi? qd P rT Ine T i” ; f‘éwr ;
Beach, 277 N.C. 297, 177 S.E. 2d 513 (1970)
Accordingiv, North Carolina held her shorelands at the
time of the adoption of the Constitution. and continues t
hold today, the bed of tidal waters, whether such lands
are navigable or non-navigable, including mudflats and
other areas exposed at low tide, in its trust capacity. Thus
the law of North Carolina is consistent with the law as
decided by the Supreme Court of Mississipp
South Carolina: In South Carolina, in accordance with
the common law, the title to land under tide waters was
in the State, and a grant of land bounded by such waters
passed no title below high water mark. Thus, in 1884, the
South Carolina Supreme Court, relying on the expression
of the common law in United States v. Pacheco, 69 U.S
(2 Wall.) 587, 590 (1864), ruled that title to several hundred
acres of salt water marshland ‘below the line of high
water-mark, and subject to the daily ebb and flow of the
tides’’ was held by the State. State Pinckney, 22 S.C
Rep. 484, 508 (1884)
The Pinckney court closely examined the common law
on shorelands in order to answer the question presented
to the court. “But finding it incumbent upon us to decide
’
the question, seeing clearly the rule of the common law
and failing to find any authoritative decision which changes
that rule, we must hold that it is now [in 1884], as it
always has been, the law of the State.’’ Jd. at 509. Thus
at the time of statehood when the United States Const
tution was adopted, South Carolina applied the common
aw to its shorelands, that is, those lands below the line
f high water-mark, and subject to the daily ebbD and flow
he tides’ were held by the State
Georgia: Georgia adopted the general common iaw ruk
“4 : “4
that the Doundary oO! private iandowners abutting on tne
- - ." , ‘ ‘ . . ,
sea ‘or upon any estuary, tidal stream, or arm of the sea
+ | : rliavw we . \ ,
where there was a regular rise and [aii OF tne tide ex
tended miy to ngn water mark, the sol DdDetween Nig!
water mark and iow water mark Delng tne property I
77 . ; . oe
tne state J ANsOT State 114 (7a i
207 808 (1901). The Ceorgia ~ ipreme Court noted in 190]
tnat tn
United
nN LS&6
nciuae
ne
>
histo
SULGLULE
Wacvers
*
Ss ruve Nad Deen aimost universally foliowed in the
Statoc *” J} Whil = a Cad
States. /bid. While the first Georgia Code adopted
. Qn . thea , Or) : io . tye .
expanded the concept or State-owned waters to
nose tresnhwater rivers which are navigabDie-in-fact
Georgia Supreme Court concluded that the Georgia
’ ,
ped
whicn accorded to the adjacent iandowner titie to
i non-navigabie stream did not apply to tide
yect to the ebb and flow of the tide
Lan
even if not navigable-in-fact, remained publicly-owned tide
inas Hria
With rare exceptions, grants along the coast of Georgia
made ring the colonial pemod and the eariv vears of
Statehood did not convey any adjacent tidelands, whether
navigabie-in-fact or not. In a dispute over oyster rights in
rT
eraying
>
AS \
= >
| —
LL ASV
. .
WI
’ rr
~
| a my
. * ‘
raf Yr
VaLliO}rni
’
, ‘
’
’
. a’
subject to the ebb and flow of the tide and not
ie-in-fact, the Supreme Court of Georgia heid that
navigabie streams and adjacent marshes were not
in the Grant from King George II: the non-na
reeks and marsnes were pubDiic lianas subject t&
' Tear ) (iew ,° (or ; 124 +f 1Qs vi
VSLE ease ‘ > rreen 164 Wa wt Di
> (iZ7iV). AS a result, in the apsence or a specinic
m the Crown or the State private ownership in
extends oniy to the upper limit of the salt marsh
extensive with the upper reach of the reguiar
tlow of the tide. Because of the tidal range av
seven feet and the gyentiy sioping snore aiong the
Veorgia, the upper limit Of the Sait marsh extends
wove the point f navigability-in-fact, but als:
re elevation I mean niegn water
there Nave deen specific orTants if title and other
anas covered DOV tidewaters. sucn private owT
remains subject to the public trust rights of navi
transportation and public passage, regardless of
lity-in-fact of the adjacent waters. Ga. Laws, 1902
™ . : . . 5 ‘>
Ga. Code Ann. sec. 44-8-8 (1982). In addition. the
nh? ; hich " i} . ' sy r\y : .
ent to TSN in ail waters subject to the
TLOW I the tide, whether navigabie or non-navig
23
able. West v. Baumgartner, 124 Ga. App. 318, 184 S.E.
2d 533 (1971), reversed on other grounds, 228 Ga. 671
(1972).
As stated by this Court in Shively v. Bowlby, “[T]he
foregoing summary of the laws of the original States shows
that there is no universal and uniform law upon the sub-
ject; but that each State has dealt with the lands under
the tide waters within its borders according to its own
views of justice and policy, reserving its own control over
such lands, or granting rights therein to individuals or
corporations, whether owners of the adjoining upland or
not, as it considered for the best interests of the public.”
Shively v. Bowlby, 152 U.S. at 26. Nonetheless, some char-
acteristics are common to all thirteen of the original States.
First, all thirteen original States, in their individual
“views of justice and policy’’ have determined that they
retain a public trust interest in their shorelands subject
to the ebb and flow of the tide, regardless of the navig-
ability of the adjacent water. Second, each of the thirteen
original States, based on its own law, has determined the
extent of their public trust shorelands. That is, each has
individually defined, either legislatively or judicially, what
the term “high water mark’’ means for its State. Most
have determined this term to mean the ‘‘mean high tide
line,” in accordance with the Lord Chancellor Cranworth’s
interpretation of the English common law, while Georgia
and Virginis based on their laws, geography and usage,
have determined that their trust shorelands extend up
above the mean high water mark.
It is clear that each and every one of the thirteen orig-
inal States made clear and definitive claims of ownership,
or control, over the lands subject to the ebb and flow of
the tide, without regard to the navigability of the adjacent
water, at the time the Constitution was adopted. Thus, all
shorelands subject to the ebb and flow of the tide, and at
least up to the mean high tide line, whether owned out-
24
right by the States or privately held subject to the trust
servitude, formed the corpus of the shoreland trust at the
time the Constitution was adopted. As this trust was
funded at the time of adoption of the Constitution, so has
it been perpetuated by the Equal Footing Doctrine to the
other 37 States that have since joined the Union.
B. The shorelands reserved by the States at the time
of adoption of the Constitution were defined and
delimited by the uses of the shorelands, and not
solely by the criterion of whether the adjacent water
was navigable. The public uses were not limited to
navigation, but also included fishing, hunting, fowl-
ing, and bathing, among others.
Petitioners assert that a State’s public trust shorelands,
acquired upon admission to the Union on an equal footing
with the original 13, include only those shorelands of
waterways that are navigable-in-fact. To the contrary, in
addition to tidality, the colonial shorelands imbued with
the public trust were defined and delimited by the uses of
the shorelands, and not solely by the criterion of whether
the adjacent water was navigable-in-fact or not.
The uses of the shorelands 200 years ago by the citizens
of the thirteen original States clearly included more than
just navigation. The public trust doctrine traditionally pro-
vided that trust property was for the benefit of the public
for navigation, commerce and fishing. See Coquillette,
Mosses from an Old Manse: Another Look at Some Historic
Property Cases About the Environment, 64 Cornell L. Rev.
761, 801 (1979). But the shoreland uses ‘‘common to all
the people’ have been recorded as including “passing and
repassing, navigation, fishing, fowling, sustenance, and all
other uses of the water and its products ...”. Arnold v.
Mundy, 6 N.J.L. (1 Hal.) 1, 76 - 77 (1821). The floating
of logs from timbering operations was a recognized public
use of tidewaters in New Hampshire. See Concord Man-
ufacturing Co. v. Robertson, 66 N.H. 1, 5 (1889). Bathing,
< be ee lee i es, eee
bo
ql
the grazing of live stock, and transportation by high-
wheeled carts pulled by “‘beach ponies’ are recorded public
uses of the shorelands in North Carolina around the end
of the Revolution. See Dunbar, Gary S., Historical Geog-
raphy of North Carolina Outer Banks (1958), at 20. The
gathering of seaweed for fertilizer was commonplace in
Connecticut 200 years ago, and was a protected public use
of the tidelands. See Chapman v. Kimball, 9 Day at 38.
In Rhode Island, ‘‘among the common-law rights of the
public in the shore .. . are rights of fishing from the shore,
taking seaweed and drift-stuff therefrom, going therefrom
into the sea for bathing, and also as necessary for the
enjoyment of any of these rights, and perhaps as a sep-
arate and independent right, that of passing along the
shore.” Jackvony v. Powel, 67 R.I. 218 (1941). As noted
supra, Virginia recognized “fishing, hunting and fowling”’
as recognized uses in 1780 that were afforded trust pro-
tection, and defined the extent of these reserved shore-
lands as including all the adjacent lands “so far as
necessary for the enjoyment of those rights.’’ Garrison v.
Hall and als., 75 Va. at 163.
Fishing, as the term was understood in this country
prior to the adoption of the Constitution, included the har-
vesting of shell fish as well as ‘‘floating fish.’’ Martin v.
Waddell, 44 U.S. (16 Pet.) 367, 413. The harvesting of
this source of food was of great importance to the early
settlors. ‘‘The men who first formed the English settle-
ments, could not have been expected to encounter the
many hardships that unavoidably attended their emigration
to the new world, and to people the banks of its bays and
rivers .. if the settlor on the fast land thereby was ex-
cluded from this enjoyment, and unable to take shell-fish
from its bottom, or fasten there a stake, or even bathe
in its waters ...”. Id. at 414; ef. Arnold v. Mundy, 6
N.J.L. at 92. The harvesting of shellfish, by the very na-
ture of clams, oysters, mussels and the like, quite com-
26
monly occurred in tidelands bordering waters that were
not navigable-in-fact.
Obviously a waterway must be navigable-in-fact for it
to be used for navigation. But what was considered a
navigable waterway 200 years ago may not be so consid-
ered today. Indeed, historically, navigability was legally
defined by the “flowing of the tide;’’waterways upstream
from the ‘“‘flow of the tide’’ were by legal definition non-
navigable. See, Angell, Joseph K., A Treatise on the Right
of Property in Tide Waters, Little and Brown, Boston,
1847, Chapter III, at 73, citing The Case of the Royal
Fishery, Davies’s R. 149; Hale, De Jure Maris; Sir Henry
Constable’s Case, 5 Co. R. 107. See also, 1 Swift Digest
109 (1822), Ch. III, Of the Right to the Ocean, Navigable
Rivers, and Rivers not Navigable. In addition, navigable
watercraft two centuries ago included shallow draft, flat
bottom vessels that were designed to be hauled up the
beaches for stowage or repair, or manually propelled
through very shallow marshes for fishing, hunting, or the
discharge of passengers and cargo. Clearly, for these type
of vessels, the shallow tidal creeks and streams in marshes
and salt meadows were considered navigable waters.
But navigability was not a requisite for the thirteen
original States to hold their tidal shorelands in trust. Many
of the uses commonly made of the trust shorelands by the
citizens of the thirteen original States 200 years ago were
not physically or logically dependant upon whether the
adjacent waters to the shorelands were navigable-in-fact.
Many tidal wetlands good for fowling 200 years ago un-
doubtedly were worthless for navigation. Bathing in tidal
waters was not limited to where the adjacent waters were
navigabie. The harvesting of clams, seaweed and the like
on vast tidal mudflats certainiy occured on non-navigable
waters. Land transportation along the naturally obstruc-
tion-free upper shorelands undoubtedly was very important
200 years ago for the simple reason that the adjacent
waters were not always navigable-in-fact.
One can only conclude that Petitioners’ assertion—that
only those shorelands adjacent to waters that were navig-
able-in-fact were reserved by the thirteen original States
when the Constitution was adopted—is unfounded when
the historical uses of these shorelands by our ancestors
200 years ago is considered. To hold that the thirteen
original States only reserved shorelands adjacent to na-
vigable-in-fact waters would be to ignore the States’ rec-
ognition of the other legitimate public uses of the trust
shorelands that are independent of the navigability of the
adjacent waters: such as passing and repassing, fowling,
hunting, shell fishing, land transportation, gathering seaw-
eed and “drift stuff,’ and bathing. Not only did the thir-
teen original States collectively reserve their tidal shores
for these purposes, but the extent of the shorelands so
reserved was delimited by the uses. That is, the tidal sho-
relands were reserved ‘“‘so far as necessary for the enjoy-
ment of those rights.’’ Garrison v. Hall & als., 75 Va. at
160.4
C. Each new State upon entering the Union possessed
the sovereign authority to define both the nature of
her sovereignty over, and the physical boundaries of,
her trust shorelands to the same extent as the thir-
teen origina! States.
The rules of property to be employed by a State over
its shorelands are for each State to determine as an ad-
junct of its sovereignty over these lands. “[A]s a general
proposition, the law of real property is, under our Con-
stitution, left to the individual States to develop and ad-
minister.’’ Hughes v. Washington, 389 U.S. 290, 295 (1967)
‘Amici do not imply that the existence of a public trust in the
tidelands at issue is dependent upon whether ownership of that land
passed to the state upon statehood. If the Court should rule that title
to these tidelands remained in the federal government upon Mississip-
pi’s statehood and subsequently passed to the private parties, that land
would still be impressed with a public trust. The extent of that trust
is not presented in this case.
28
(Stewart, J., concurring). See also Barney v. Keokuk, 94
U.S. 324, 338 (1876). “Rights and interests in the tideland,
which is subject to the sovereignty of the State, are mat-
ters of local law.’’ Borax Consolidated, Ltd. v. Los Angeles,
296 U.S. at 22. Thus, it is within a State’s sovereign power
to adopt, modify or reject common law rules. Incident to
this sovereign power is a State’s right to determine the
boundaries of its shoreland trust, and the public uses for
which the shorelands are held in trust. “{T]he rigid rules
of the common law of England relating to littoral and
riparian rights are not adoptable in every particular to our
political and geographical conditions; that in adopting the
common law of the mother country we did not incorporate
into our system of jurisprudence any principals which are
essentially inconsonant with our circumstances or repug-
nant to the spirit of our institutions ...’’ Barnes v. Midland
R.R. Terminal Co., 193 N.Y. 378, 384, 85 N.E. 1093, 1096
(1908).
“The new States admitted into the Union since the adop-
tion of the Constitution have the same rights as the orig-
inal States in the tide waters, and in the lands below the
high water mark, within their respective jurisdictions.”’
Shively v. Bowlby, 152 U.S. at 26. Thus, as each new State
entered the Union, she acquired the same rights and
authorities as the thirteen original States to deal “with
the lands under the tide waters within its borders ac-
cording to its own views of justice and policy.’ Shively v.
Bowlby, 152 U.S. at 26. Each new State, in its own trustee
capacity, upon entering the Union had the authority to
define both the nature of her sovereignty over, and the
physical boundaries of, her trust shorelands to the same
extent as the thirteen original States.
Nonetheless, Petitioners assert that Mississippi would
acquire a “‘more-than-equal’’ footing by claiming as public
trust shorelands those lands “‘subject to the ebb and flow
of the tide’’ below the mean high tide line. Petitioners’
Petition for a Writ of Certiorari, at 9. But as has been
29
shown, the colonial law, and the law of the individual
States at the time of the adoption of the Constitution,
clearly provided that the shorelands withheld by the thir-
teen original States were defined by the ebb and flow of
the tide, without regard to the navigability-in-fact of the
adjacent waters. Thus the remaining coastal States that
have joined the Union, such as Mississippi, acquired the
same trust corpus as did the thirteen original States—
those land subject to the ebb and flow of the tide, re-
gardless of the navigability-in-fact of the adjacent water,
and at least up to the mean high tide line.
CONCLUSION
Reviewing the statutory and case law of the thirteen
original States, and examining the usages that their citi-
zens made of the tidal shorelands 200 years ago affirms
that Petitioners’ assertion—that only those shorelands ad-
jacent to waters that were navigable-in-fact were reserved
by the thirteen original States when the Constitution was
adopted—is unfounded.
All of the thirteen original States, in their individual
views of justice and policy determined what waters and
tidelands they reserved 200 years ago when the Consti-
tution was adopted. Each of the thirteen original States,
based on its own law as it evolved from the English com-
mon law, determined the extent of their public trust sho-
relands as those lands subject to the ebb and flow of the
tide up to the “high water mark.’’ Each individually de-
fined, either legislatively or judicially, what the term “high
water mark” meant for its State. At the time the Con-
stitution was adopted; most determined this tern. to mean
the “‘mean high tide line.”” Some, however, based on their
laws, determined that their shorelands extended above the
mean high water mark.
Many of the uses commonly made of the trust shore-
lands by the citizens of the thirteen original States 200
years ago were not physically or logically dependant upon
whether the adjacent waters to the shorelands were na-
vigable-in-fact. The thirteen original States reserved those
shorelands to the extent necessary to assure their citizens
the enjoyment of those nghts.
As each new State entered the Union, she acquired the
same rights and authorities as the thirteen original States
had. Each new State, in its own trustee capacity, upon
entering the Union had the authority to define both the
nature of her sovereignty over, and the physical boundaries
of, her trust shorelands to the same extent as the thirteen
= a! +o +
riginai states
Thus, all shorelands subject to the ebb and flow of the
tide, and at least up to the mean high tide line, whether
owned outright by the States or privately held subject to
the trust servitude, formed the corpus of the trust at the
time the Constitution was adopted. As this trust was
funded by the thirteen orginal States at the time of adop
tion of the Constitution, so has it been perpetuated by the
Equal Footing Doctrine to the other 37 States that have
_ ' . ‘ — azal ae Cease - ’
oined the Union. As a result, each new State that has
entered the Union, such as Mississippi, received in trust
: : . '
those shorelands subject to the ebb and flow of the tide
" > ? . . | ‘ > ? ‘ -, + , . +
up to, at the very least, the mean high tide line
For these reasons. we urge this Honorable Court
affirm the decision of the Mississippi Supreme Court
Respectfully submitted
)A ( » }: | |
i i? Ls ; Re y* ]
COASTAL STATES ORGANIZATION
Suite 312
i144 N. Capitol Street, NW
Washington DC. 20001
20? 698-9636
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.