Opposition Brief — United States v. California
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FILE TORY
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IN THE
Supreme Court of the United States
Octorer TERM, 146.
No. |: oa
UNITED STATES OF AMERICA,
Plaintiff.
VS.
STATE OF CALIFORNIA,
Defendant.
Brief for the State of California in Opposition to
Motion for Judgment.
FRED N. Howser,
Attorney General of California,
~ Winnivam W. Crary.
cissistant .Ittorney General,
/C. Roy Siti.
Yo cdssistant Attorney General,
State Capitol, Sacramento, Calif.,
Counsel.
CUMMINGS & STANLEY.
HomMER CUMMINGS,
- Max O’RELL Trvitt.
O’MELVENY & Myers.
-Loutis W. MyYErRs.
~ Jackson W. CHANCE,
Sipney H. WALL,
Of Counsel.
Parker & Company, Law Printers, Los Angeles. Phone TR. 5206.
GLASER LEI LI | PE GEIL, A aL EE
eee Te
ee
IN THE
Supreme Court of the United States
OcToBEer TERM, 1946.
No. 12, Original.
UNITED STATES OF AMERICA,
Plaintiff,
US.
STATE OF CALIFORNIA,
Defendant.
Brief for the State of California in Opposition to
Motion for Judgment.
FOREWORD.
In order to enable the Court to obtain an over-all view
of California’s case and the basic grounds in support there-
of without breaking the main thread of the argument, we
have submitted the brief in two parts. The first part con-
tains the basic argument on all points. The second part
contains a series of appendices setting forth the sup-
porting authorities and data as to those points which
require more detailed treatment.
The brief filed by plaintiff herein contains not only argu-
ments upon the pleadings but is a presentation of its entire
case, both upon the law and the facts. The State of Cali-
YES DES yk Sete HA Pe PENS ENS CEOS EE LIG IN REE RN EAL RENATO CT eM ee
——
fornia in its brief has met all the legal and factual issues
ii.
presented by plaintiff and has also set forth the affirmative
basis of California’s title. The briefs and the oral argu-
ment, therefore, constitute the subject matter of an original
trial of the cause on all issues, both of fact and law. The
material contained in the appendix constitutes, in the main,
the factual data which, in a case on appeal, would be con-
tained in a transcript of the evidence.
Win at ar avd oa Gi Saeed ate Shed ee Re eR ea kt Tk Beton Se ath ie wo
ees
ill,
TOPICAL INDEX.
PAGE
Foreword ae
I iiiicttetceetn teed eniitattnccreminccsiccmes Xxiii
) a
Nature and scope of plaintiff’s claims.......................-c.ssseeeeeees+ 1
Physical improvements 4
Ny MINE isc siesidietaeenncineibenandndnaniianpercninideictinnnsens 7
II.
Jurisdiction on
There is no case or controversy under article III, section 2 of
the Constitution 11
A. There is no controversy in a legal sense, but only a
difference of opinion between federal and state officials 11
B. It is impossible to identify the subject matter of the
action : 13
III.
The Attorney General is not authorized to bring or maintain
this proceeding oe
IV.
pe ee 16
V.
The basis of California’s title. 20
A. The rights of the English Crown under the common
law .. 20
1. The common law as it existed in England in and
prior to 1776 governs in this country regardless
of variations in England subsequent to that date.... 20
BS age gay TES RRC SSS RST ESN TRL OT NE AEM
|
PAGE
iv.
2. Decisions of American courts as to the English
I TO ~ vrecctrernnbiceriaiieesennttabinniiatmncttinnieiaee 21
3. English court decisions and treatises...............0.0.... 27
Queen v. Keyn . 28
B. The original states in 1776 succeeded to all rights and
property of the English Crow2..............ccccsecesecseeeseeeeees 31
C. Colonies and original states claimed and exercised
rights of ownership in the marginal sea...............0...0.04.. 35
D. The original states never ceded to the Federal Govern-
ment the lands beneath navigable waters within their
I I ocertaadtenreescatiisdacentetiaianieniieianna eins 43
1. Confederated states collectively owned no land.... 43
2. The Constitution contained no cession of territory 44
E. Original states own all lands within their respective
jurisdictions (not previously granted) including all
lands beneath navigable waters 47
1. Original and ultimate ownership is in the states.... 47
2. Jurisdiction, territory and ownership are coex-
ND ccenicnscerencieapnstitinsibcntannientineretinarnientiniigwiiiceeciiees 50
(a) New York v. Connecticut, 4 Dall. 1 (1799)... 51
(b) United States v. Bevans, 3 Wheat. 336
(1818) oe
(c) Corfield v. Coryell, 6 Fed. Cas. No. 3,230, p.
546 (1823) on
(d) Rhode Island v. Massachusetts, 12 Pet. 657
SUED: csschinieieiesesidiasadhbbieiicesiiadediebaicadsimonineakcdcossaineon 55
(e) Martin v. Waddell, 16 Pet. 366 (1842)........ 56
(f) Pollard’s Lessee v. Hagan, 3 How. 212
SEED: -sistninessusnamuatehcscneionaceshimastaihsacicainaplaviniveacae 57
PAGE
(g) Dunham v. Lamphere, 69 Mass. (3 Gray)
Se LINO D schcsntiteiiierinviintcentsintctttannindinlinniosessin 58
(h) Commonwealth of Massachusetts v. Man-
chester, 152 Mass. 230, 9 L. R. A. 236
(1890). ....... sitheathcisteiticellidicedcin cdot libiseiectaa 59
(i) Manchester v. Massachusetts, 139 U. S. 240
EGED: . sccenipeinienniansbisitenainesidenadabadaeteien: 62
(j) Smith v. Maryland, 18 How. 71, 74 (1855) 64
(k) McCready v. Virginia, 94 U. S. 391, 394
COE ecko ee aon eS 65
F. Lands beneath navigable waters are held by the states
by virtue of, and as an incident to, state sovereignty... 66
Federal grants in territories not inconsistent with
Se TORE I censcntiennicscrprntncsinaitniitcilctinnatentiiteviotiipa 73
There is no “bizarre distinction” as to nonnavigable
waters ... 74
Traditional interests of states focus upon ownership as
well as police powers. a fe
G. New states have the same rights of ownership of lands
beneath navigable waters as the original states............ 78
1. The United States holds title to beds of all
navigable waters within territories in trust for the
I I a cccisatnntsinicinditnidint cette ee 78
2. Rule of equality... siiiiliatietiahiaisahiaiiadonans 80
3. Under the rule of equality, title to beds of
navigable waters vests in new state upon admission
Se a Scetiteiticcntbacdieiacinndae 82
ui
Pollard’s Lessee v. Hagan, 3 How. 212 (1845).... 85
WLS IH ME LUE ARINC ES IOLA ILS I LR MRE CSW ON IE
vi.
PAGE
6. Lands beneath navigable waters are not ‘public
ge 8 RL ETO! 89
7. Congress intended that the act admitting California
should reserve only “public lands” as that term
had been construed by this COuTt.............c00ccseeeeseeees 95
8. California owns all land beneath navigable waters
within its jurisdiction (except lands previously
TEED scrnicicnnenciinnenieancintneneniuiniiinticonetnimnaeninias 99
H. Decisions and authorities upholding state ownership of
bed of sea out to the three-mile limit............0..0000.00........ 101
United States Supreme Court..............0..-c:scsescesseseseseeeeees 101
(a) The Abby Dodge v. United States, 223 U. S. 166
IE SUPE - caicosspbecieneninticmbadeuidiabcpieniacablensiaisiiAahdaitadetaliatidamemidlteds 101
(b) New Jersey v. Delaware, 291 U. S. 361 (1934).
Decree 295 U. S. GB4 (1938) annencencecccncecerecvecssoreeeees 105
(c) Louisiana v. Mississippi, 202 U. S. 1 (1906).......... 108
(d) Illinois Central R. R. Co. v. Illinois, 146 U. S.
Se CD snitninictanttansniniarslechndicsiedionaaienssniacsoes 110
(e) Massachusetts v. New York, 271 U. S. 65 (1926)..111
California and other state court decisions................00........ 112
IED a cicaisrecnncharcncnienntinicincictinnsiamanadeninininieamsesin 114
Ba a eR iatieiciretrcnerrericticeeicentcsinninnaninrtonentanis 117
1. Rationale of the rule of state ownership.................... 117
eI I inietiicsenntiiniereiintinecenstnprstniimnipisnide 120
Pe IE IND «sth stnctltiiegiesrinenstiheiecanicghecnscnandits 127
4. Principle of law—not dictum..............cccccccesseeeneeeeees 128
PAGE
VI.
SPINOIIIIIINS is jicirsicsnicinninedainapnaonaancrvectanernitabinattioneiianaanamnigionsidénenives
(Third affirmative defense)
A. Rule of law
1. General rule of prescription between states and
I i eciesscrhscepsineestssltinniccioivanincsiiieasinitienataidiapoisiniciniaiuan
2. Period of time required
3. Character of evidence required..........0.....c00000cc000
4. Rule of constructive possession..................2.:c000-+
B. Acts establishing California’s prescriptive title................
1. Legislative and constitutional declaration of state’s
ownership
2. Grants by state to coastal municipalities of large
portions of three-mile belt... .........-.ccscs.ecseseseseeees
3. Constructions of piers, wharves and breakwaters....144 :
4. Construction of groins, jetties and sea walls............ 145 :
5. Oil and gas leases of submerged lands................... 145 &
6. Assessment and collection of taxes on submerged
lands 146
7. Fishing industry 146 §
;
8. Leasing of kelp beds in three-mile belt 146 c
9. State and county boundaries cover entire three-
mile belt EN 148
10. Expenditure of capital and labor by st. © and its
grantees, lessees and licensees 148
11. Nonassertion of claim of ownership by United
ek MIRAE tRNA AER 149
C. Law and facts show clear prescriptive title in state
CUO | cenienenistsnepinitanceisntiiimbniniasimnisieiielcnanen 150
OAS BRU AIS OM oy ARLIT a vo THOT SAY ae ee
Acquiescence 152
(Second affirmative defense) 152
Bn I Oe i ietertctcctatidinimntincecltcarisatiinatahsatatinniciinemisivoverce 152
B. Facts establishing acquiescence and recognition by the
United States in state’s dominion, sovereignty and own-
ership of submerged lands. paheinieerae 154
(1) Policy of Congress 154
(II) Grants of submerged lands to the United States
from the state of California. 158
1. From the state of California...............20-00:00-0+- 158
(III) Grants from California municipalities to the
United States 161
(IV) Grants from other coastal states to the United
States 163
(V) Judicial declarations and departmental rulings
and acts recognizing state ownership of sub-
merged lands 166
1. By the judiciary ; 166
2. By the United States Attorney General........ 166
3. By the Secretary and Department of the In-
terior 169
4. By the War and Navy Departments.............. 170
(VI) Conclusion on acquiescence. 172
VIII.
Estoppel—laches—res judicata z 173
SSE ETE LE ANEW SEIT ISR RNS BERLINER YT ODUSE NEA a ata
PAGE
IX.
International law 174
A. By 1776 it was established in international law that
a belt of the sea is a part of the territory of every
coastal state 175
1. Acceptance of the range-of-cannon limit.................. 177
_ 2. The marginal sea was recognized as territorial in
character by 1776 181
International law conferred no property rights on the
Federal Government 186
The actions of the Federal Government in recognizing
the three-mile belt did not constitue an annexation of
territory 188
Conclusion 192
x
TABLE OF AUTHORITIES CITED.
CasEs. PAGE
Abby Dodge v. United States, 223 U. S. 166
101, 105, 123, 156, 157
Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 13
Ann, The, 1 Fed. Cas. 926 184
Appleby v. City of New York, 271 U. S. 364 32, 123
Arkansas v. Tennessee, 310 U. S. 563 140, 142, 153
Armour & Co. v. City of Newport, 110 Atl. 645 26
Arnold v. Mundy, 6 N. J. L. (1 Halst.) 1 26
Ashwander v. Tennessee Valley Authority, 297 U. S. 288.......... 124
Atchison v. Peterson, 87 U. S. (20 Wallace) 507..................0.-+ 153
Balzac v. Porto Rico, 258 U. S. 298 : 188
Bankline Oil Co. v. Comm., 90 F. (2d) 899.0000.0.......-0cece0--+ 113, 126
Barney v. Keokuk, 94 U. S. 324 90, 117
Benest v. Pipon, 1 Knapp 60, 12 Eng. Rep. 243. 47
Boone v. Kingsbury, 206 Cal. 148. 70, 112, 128
Borax Consolidated v. Los Angeles, 296 U. S. 10....................
.--80, 83, 89, 124
Bosarge v. State, 121 So. 427, cert. den. 280 U. S. 568........37, 114
Brewer-Elliott Oil Co. v. United States, 260 U. S. 77.............0:0++ 125
Broward v. Mabry, 50 So. 826 91
Brown v. Clements, 3 How. 650. 134
Buford v. Houtz, 133 U. S. 320 153
Burnet v. Coronado Oil & Gas Co., 285 U. S. 393....---...:0-sese0e0 133
Buttimer v. Detroit etc. Co., 39 F. Supp. 222 148
California v. Deseret Water etc. Co., 243 U. S. 415........:cccccsecese 132
Camfield v. United States, 167 U. S. 518.020.2202. 2---eeee- 104
Cardwell v. American Bridge Co., 113 U. S. 205...-.-.-----::.2s:ss000++ 81
Carpenter v. Walker, 140 Mass. 416 133
Carr v. Kingsbury, 111 Cal. App. 165 113
Cathcart v. Robinson, 5 Peters 264. 21
5 IGRI MEMES I ENR MRI ANAT PREG RENCE conn
PAGE
Church v. Hubbart, 2 Cranch. 187... 41, 184
Churchill Co. v. Kingsbury, 178 Cal. 554 127
City of Long Beach v. Marshall, 11 Cal. (2d) 609... 70
City of Hoboken v. Penn. R. Co., 124 U. S. 656..0...00..ccceceeseeee 124
Commonwealth v. Alger, 61 Mass. (7 Cush.) 53.................... 24, 33
Commonwealth v. Boston Terminal Company, 70 N. E. 125........ 114
Commonwealth v. Roxbury, 75 Mass. (9 Gray) 451.................... 25
Commonwealth of Massachusetts v. Manchester, 152 Mass. 230,
9L.R. A. 236.. 59, 60, 61
Corfield v. Coryell, 6 Fed. Cas. No. 3,230, p. 546..... 54, 55
County of St. Clair v. Lovingston, 90 U. S. 46................ 32, 45, 124
Coyle v. Oklahoma, 221 U. S. 559. 81
Cummings v. Kingsbury, 111 Cal. App. 763..000..0.......c.c.cccccc0eccee 113
Dean v. City of San Diego, 275 Fed. 228 as 126
Den v. Jersey Company, 15 How. 426 124
Deering v. Martin, 116 So. 54 113
Donnelly v. United States, 228 U. S. 243.000... eee cceseseeneeseeeceeeees 125
Dorr v. United States, 195 U. S. 138.....000002........ 188
Dunham v. Lamphere, 69 Mass. (3 Gray) 268
‘ ‘ 37, 58, 60, 61, 101, 114
Dunn v. Micco, 106 F. (2d) 356.. 132
Escanaba & Lake Michigan Transportation Company v. City
of Chicago, 107 U. S. 678. 81
Fairfield v. County of Gallatin, 100 U. S. 47 135
Farry v. King, 120 Cal. App. 118 113
Feisthamel v. Kingsbury, 111 Cal. App. 762 ooh AS
Fisher v. Pickwick, 42 Cal. App. (2d) Supp. 823...........0.0.0.0...... 107
Fleming v. Page, 9 How. 602 188
Forestier v. Johnson, 164 Cal. 24 128
Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525.000.0000... 46
Foster v. Neilson, 2 Pet. 253 188
xii.
PAGE
Fox River Company v. Railroad Commission, 274 U. S. 651........ 125
Freed v. Miami Beach Pier Corporation, 112 So. 841................ 113
Furman v. City of New York, 7 New York Sup. Ct. 17.............. 26
Fe aa ee 134
General Pet. Corp. v. Hobson, 23 F. (2d) 347 113
Genesee Chief, The, 12 How. 443 136
Georgia v. Stanton, 6 Wall. 50. 48
Goodtitle v. Kibbe, 9 How. 470 87, 124, 137
Gough v. Bell, 22 N. J. L. (2 Zab.) 441. 26
Greenleaf Lumber Co. v. Garrison, 237 U. S. 251..........22.2...-2-+ 125
Grisbadarna case, The, between Norway and Sweden, Oct. 23,
1909, Scott, “The Hague Court Reports” (1916), pp. 121-
130 139
Gruber v. Pac. States Sav. & Loan Co., 13 Cal. (2d) 144.......... 107
BRascourt wv. Gatibard, 12 Watt. Si hncecccecccececceenscsscomrecesceeseenveneceres 42
Hardin v. Jordan, 140 U. S. 371 112, 124, 128, 169
Hardin v. Shedd, 190 U. S. 508....... i ...122
Helvering v. Bankline Oil Co., 303 U. S. 362 113
Helvering v. Fitch, 309 U. S. 149. 129
pe Sk ee eee 128
Hollister v. Kingsbury, 129 Cal. App. 420...00.0...2...2....ccescececeeceeeoes 113
Humbolt Lumber Mfg. Assn. v. Christopherson, 73 Fed. 239.... 29
Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387.000.0000...
25, 31, 69, 71, 74, 110, 112, 118, 125, 127
Indiana v. Kentucky, 136 U. S. 479...................... 140, 141, 142, 153
Inland Finance Co. v. Standard Salmon Packers, 7 Alaska 131.... 90
Johnson v. McIntosh, 8 Wheat. 547 ; 19, 48
Joyner v. Kingsbury, 97 Cal. App. 17 113
Joyner v. Kingsbury, 111 Cal. App. 764 113
Kean v. Calumet Canal Co., 190 U. S. 452.00.........-cccscscsssseceseseseeeees 132
LE LLO LE IGLOS ELA DNL AO EAE LE LADLE MTG OT LE DOLE LEED LSI ART SSN
xiii
PAGE
Kee v. Becker, 54 Cal. App. (2d) 466. ; 107
Kelley v. Kingsbury, 210 Cal. 37 113
Knight v. United States Land Association, 142 U. S. 161........
; 31, 79, 83, 122
Lazell v. Boardman, 69 Atl. 97 148
Lipscomb v. Gialourakis, 133 So. 104.220.2002... eceeceeeeeeeeeee 36, 113
Logan, Re, 29 L. D. 395 90
Louisiana v. Mississippi, 202 U. S. 1............ 108, 123, 140, 142, 153
Lux to Haggin, 69 Cal. 255 127
Manchester v. Massachusetts, 139 U. S. 240
ens ene cane sessesncasesereeedO, 34, 36, 62, 75, 76, 101, 104, 109, 110, 124
Maggart v. Kingsbury, 111 Cal. App. 765 113
Mann v. Tacoma Land Company, 153 U. S. 273.................. 89, 154
Marianna Flora, The, 11 Wheat. 1 185
Martin v. Waddell, 16 Peters 367
23, 31, 39, 56, 57, 67, 71, 87, 104, 120, 127
Maryland v. West Virginia, 217 U. S. 1 140, 142
Massachusetts v. New York, 271 U. S. 65
; 18, 32, 36, 68, 125, 142, 153
McCloskey v. Pacific Coast Co., 160 Fed. 794 126
McCready v. Virginia, 94 U. S. 391
65, 76, 102, 104, 109, 110, 121
McMichael v. Murphy, 197 U. S. 304 , 132
Michigan v. Wisconsin, 270 U. S. 295.................. 140, 142, 151, 153
Miller v. Stockburger, 12 Cal. (2d) 440 ..0.........ececcccccecesesseeseseeeee 113
Minnesota Company v. National Company, 3 Wall. 332............ 131
Missouri v. Illinois, 200 U. S. 496 141
Mobile Transportation Co. v. Mobile, 187 U. S. 479......0.0......... 125
Mumford v. Wardwell, 6 Wall. 423 80, 82, 121
Narragansett Real Estate Co. v. McKenzie, 82 Atl. 801............ 26
New Jersey v. Delaware, 291 U. S. 361 105
BBE PARLOR LE AYR OO LOT PLO TL IAT TD
Xiv.
PAGE
New Mexico v. Texas, 275 U. S. 279..........cccscecsseosoees 140, 142, 153
New York v. Connecticut, 4 Dall. 1 51
New York, B. H. & H. R. Co. v. Horgan, 56 Atl. 179................ 26
Northern Pac. Rwy. Co. v. Hirzel, 161 Pac. 854...........22..2..22.--+- 90
Ocean Industries, Inc. v. Superior Court, 200 Cal. 235................ 148
Oklahoma v. Texas, 258 U. S. 574..0.0000.02020.00020-.. -hSS, 153
Peabody v. United States, 175 U. S. 546............ 140
People v. California Fish Co., 166 Cal. 576...00.0.2...0.....ccccceseseseseeeee 127
Se We I Gi I SR crrctccensercnsitibnivcnnnnetinicivernadinnonninivente 128
People v. New York & S. I. Ferry Co., 68 N. Y. 71.00000000000..... 25
People v. Reilly, 14 N. Y. S. (2d) 589.000.0000... ceeceesseeeeeeeee 37, 114
eS | Oe 2
People v. Trinity Church, 22 N.Y. 44.0.0.....c.cccccccceseeececeeseeees 33, 49
People ex rel. Mexican Telegraph Co. v. State Tax Commis-
sion, 220 N. Y. S. 8. saapasniiascajanscday:. aan
Porky Properties v. Peltom, 151 So. G02 ccececevescceeseseeeeeeen 4 LZ
PRE He IID, WF By Bi iiicenccnessccesesccinstocvesioonevecvimevensennvsucecsens
caielintinictanial 45, 57, 58, 59, 67, 78, 81, 87, 88, 91, 95, 100, 120, 137
Pope v. Blanton, 10 Fed. Supp. 18 (reversed 299 U. S. 521)....
eon 36, 114, 126
Queen v. Keyn, L. R. 2 Exch. Div. 63...............0000.... 21, 28, 29, 63
Rhode Island v. Massachusetts, 12 Pet. 657...00...0......0.ccccceeccceseeeoees 55
Rhode Island v. Massachusetts, 45 U. S. (4 How.) 590............ 153
Rogers v. Jones, 9 N. Y. Com. L. (1 Wend.) 237.000.000.000... 26
Ross v. Burkhard Investment Co., 90 Cal. App. 201.......00000000..... 128
San Francisco v. LeRoy, 138 U. S. 656 79, 83, 122
San Francisco Savings Union v. R. G. R. Petroleum & Min.
Co., 144 Cal. 134 127
Scott v. Lattig, 227 U. S. 229 76, 125
DW. TIN TIO, TI, Be scecsiesccccecetececttctnveccneevveveesevves 128
a
PAGE
Secretary of State for India v. Chelikani Rama Rao, 43 L. R.
Ind. App. 192 30
Sewall & Co. v. Boston Water Power Co., 147 Mass. 61............ 133
Shively v. Bowlby, 152 U. S. 1
...21, 24, 31, 39, 73, 74, 90, 91, 112, 122, 154
Simmons v. French, 25 Conn. 345 26
Skiriotes v. Florida, 313 U. S. 69 187
Smith v. Maryland, 18 How. 71.................. 55, 63, 64, 76, 110, 124
Southlands Co. v. City of San Diego, 211 Cal. 646........0000000000.2.... 128
Spalding v. United States, 17 Fed. Supp. 957....................-. 113, 125
Spalding v. United States, 97 F. (2d) 697 113
Sparrow v. Strong, 70 U. S. (3 Wallace) 97 153
St. Anthony Falls Water Power Co. v. St. Paul Water Commrs.,
168 U. S. 349 81, 125
State v. Pollock, 239 Pac. 8..... 114
State v. Ruvido, 15 Atl. (2d) 293 37
Stockburger v. Jordan, 10 Cal. (2d) 636.............cscece-ceccecsseseeseseesess 113
Stone v. City of Los Angeles, 114 Cal. App. 192 113
Suttori v. Peckham, 48 Cal. App. 88 114
The De Fortuyn (1760), Marsden’s Admiralty Cases, p. 175....179
Town of Concord v. Portsmouth Savings Bank, 92 U. S. 625....135
United States v. Arredondo, 6 Pet. 691 ....188
United States v. Beebe, 127 U. S. 338.
United States v. Bevans, 3 Wheat. 336
45, 51, 52, 53, 61, 65, 75
United States v. Carrillo, 13 F. Supp. 121..... 7
United States v. Chandler-Dunbar W. P. Co., 209 U. S. 447....
70, 71, 112, 123
United States v. Chavez, 175 U. S. 509................ 140
United States v. Coronado Beach Co., 255 U. S. 472....80, 83, 125
<
a 2
de SS RRA SON EER CORE ALITTLE IEEE ENTE TN
Xvi.
PAGE
United States v. Curtiss-Wright Export Corporation, 299 U. S.
304 33, 34
United States v. Midwest Oil Company, 236 U. S. 459.............. 153
United States v. Guaranty Trust Company, 33 F. (2d) 533,
affirmed 280 U. S. 478 130
United States v. Holt Bank, 270 U. S. 49.00.0000 125, 154
United States v. Mission Rock Co., 189 U. S. 391...
72, 80, 83, 125, 131
United States v. O’Donnell, 303 U. S. S501... eee 83, 125
United States v. Oregon, 295 U. S. 1 36, 68, 124
United States v. Stone, 69 U. S. 525 153
United States v. Texas, 162 U. S. 1 x 140, 153
United States v. Title Insurance and Trust Co., 265 U. S.
472 132
United States v. Utah, 283 U. S. 64...0....cc ccc ccc ccc cece ee eeee es 44, 81
United States v. West Virginia, 295 U. S. 463 eekly
Van Brocklin v. Tennessee, 117 U. S. 151....... 95
Vermont v. New Hampshire, 289 U. S. 593 142
Virginia v. Tennessee, 148 U. S. 503.................000 140, 141, 142, 153
Ward v. Race Horse, 163 U. S. 504. 81
Weber v. Board of Harbor Comm., 85 U. S. 57........ 23, 70, 79, 83
Weber v. Harbor Commissioners, 18 Wall. 57 121
Webster v. Detroit, etc. Co., 131 F. (2d) 222 148
Western Pac. Ry. Co. v. So. Pac. Co., 151 Fed. 376.................... 128
Weston v. Sampson, 62 Mass. (8 Cush.) 346....0.0.00...2.02..0:000000- 25, 37
Williams v. Arlington Hotel Co., 22 F. (2d) 669 4h
Willing v. Chicago Auditorium, 277 U. S. 274 12
Withers v. Buckley, 20 How. 84. 81
a ee aA Tt as
XVvii.
MISCELLANEOUS PAGE
American State Papers, Class I, Foreign Relations, Vol. 1, p.
147 190
American State Papers, Class I, Foreign Relations, Vol. 1, p.
183 (Letter to French Minister) 190
Appendix to Congressional Globe, 31st Congress, Ist Sess., pp.
960, 1001, June 24, 1850 95
Bacon’s Abridgment Edition by Bouvier (Philadelphia, 1869),
Vol. 8, p. 13 47
Fish Bulletins Nos. 59 and 63....... 9
Fisheries Resources of the United States, 79th Congress, Sen-
ate Document 51 10
Joint Hearings House Judiciary Committee, June 18-20, 1945.... 10
7 Journals of Congress, p. 187....... 180
7 Journals of Congress, p. 226 180
Scott, Hague Court Reports (1916), p. 122; 4 A. J. I. L. 226.... 36
CONSTITUTIONS AND STATUTES ;
Act of Admission of Oregon, 1859, 5 Thorpe, p. 2996................ 72
Articles of Confederation (Art. IX) 43
California 1879 Constitution, Art. XV, 2 Thorpe, p. 961............ 72
California Government Code, Sec. 125 100
California Political Code, Sec. 3907 183
Constitution of the United States, Art. I, Sec. 7, Clause 17........ 45
Criminal Code, Sec. 20. 129
I I, I SiihrernricieresseruiiauneinconnsaNeniasinsabaivahiinscoueoniie’ 100
South Carolina 1868 Constitution, Art. I, Sec. 40, 6 Thorpe,
American Charters, Constitution and Organic Laws (1909),
p. 3284 72
Xvili.
TEXTBOOKS PAGE
40 American Journal of International Law, pp. 53, 56, Bor-
chard, Resources of Continental Shelf (Jan. 1946)................ 177
4 American Journal of International Law, pp. 133, 141, Ral-
ston, “Prescription” (1910) 13°
Angell, Tide Waters (2d Ed., 1847), pp. 53, 55, 57........--ccescc0----- 116
Azuni, Sistema Universoli dei Principii del Diritto Marittimo
(1795), English translation (New York 1806), I, p. 205.
Joseph Story’s copy of the latter is now in the Harvard Law
Library 189
2 Batchellor, Laws of New Hampshire, Province Period, 1702-
1745, pp. 493-7 179
Boroughs, the Sovereignty of the British Seas (Edinburgh,
1920) 174
Cardozo, The Growth of the Law, p. 121 136
Cardozo, The Nature of the Judicial Process (1921), pp. 150-
a 136
Crocker, The Extent of the Marginal Sea, p. 630 184
De Martens, Precis de Droit des Gens (1789), p. 196................ 189
Donaldson, The Public Domain (1880 Ed.), p. 155 85
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(London, 1888), p. 667 20, 47
Fenn, Origin of the Right of Fishery and Territorial Waters
(1926), p. 221 176
Fulton, Sovereignty of the Sea (1911), pp. 544-546... 177
Fulton, Sovereignty of the Sea (1911), p. 558 20.0.0... eeeeeeeeee 178
Fulton, Sovereignty of the Sea (1911), p. 566 222... eeeeceeeeeeeee 179
Coe, Prebere GEE TE, TERE), De. Fiiccwcecccccwincsnentcstcascccasimmevinaens 116
Galiani, De Doveri de Principi Neutrali (1782) 189
Gentili, De Jure Belli, Book 3, p. 629 (1612 Ed.), as translated
by Rolfe in Classics of International Law, p. 384........0.00.0...... 175
EAE ERED REIS GAO RL RET OORT aiieieiseadaneiiiameeaeeanaee
PAGE
Grotius, De Jure Belli ac Pacis, Book 2, Chap. 3, Sec. 13, p. 130
(1646 Ed.), as translated by Kelsey in Classics of Interna-
tional Law, p. 214 176
Grotius, “De Jure Belli ac Pacis,” Book II, Chap. IV, Sec. 9......139
Grotius’ Mare Liberium (1609), p. 29 175
Hackworth, “Digest of International Law” (1940), pp. 432-
442 ; 139
1 Hackworth, “Digest of International Law” (1940), p. 439
(Decision of Permanent Court of Arbitration in Matter of
Maritime Boundary Dispute between Norway and Sweden,
Oct. 23, 1909).. 139
Hackworth, “Digest of International Law” (1940), pp.
439-441 (Arbitral Award in Island of Palmas case between
the United States of America and the Netherlands, April
4, 1928) 139
1 Hackworth, “Digest of International Law,” p. 441 (Chami-
zal Arbitration Award Between the United States of America
and Mexico, June 15, 1911) 139
Hall, “International Law” (4th Ed.), Sec. 36, p. 123................ 139
Hurst, 4 British Yearbook of International Law (1924), p. 43....176
4 Kent's Commentaries, p. 470 (llth Ed. edited by Oliver
—
Wendell Holmes) 48
Lauterpacht, “Private Law Sources and Analogies of Inter-
national Law” (1927), p. 229 141
2 Lindley on Mines (3rd Ed., 1914), pp. 1015-1016............ 90, 114
Magoffin, “The Freedom of the Seas” (Carnegie Endowment,
1916) 175
Maine, International Law, p. 77 176
1 Martens, Recueil des Traités, pp. 68, 72.........222...-.ec--e-ccececeeeee 179
2 Milller’s Treaties, p. 153 183
2 Miller’s Treaties, p. 7 180
2 Miller’s Treaties, p. 64..............cccescseceeseeees 180
Sy eae ue
XX.
PAGE
2 Miller’s Treaties, p. 167 180
2 Miller’s Treaties, p. 323 (Treaty with Spain of 1795, Art.
6) 180
2 Miller's Treaties, p. 262 (Treaty with Tripoli of 1796, Art.
7, and Treaty of Tunis of 1797, Art. 10) 180
5 Miller’s Treaties, Art. 5, p. 214 a 183
1 Moore, “Digest of International Law” (1906), Sec. 88, pp.
293-297 139
1 Moore, “International Law Digest” (1906), p. 294................ 139
1 Moore, International Law Digest (1906), pp. 296, 297....141, 142
1 Moore, “International Law Digest” (1906), pp. 294-295......139
1 Moore’s Digest, p. 702 (Letter to British Minister)................ 190
1 Oppenheim, “International Law” (5th Ed.), pp. 359, 383.... 36
Oppenheim’s “International Law” (Lauterpacht’s 5th Ed.)
1947), Sec. ...... ~ eo 139
Oppenheim, “International Law” (McNair Ed. 1928, 4th Ed.),
SD eeescicinnicitininitactesniiieeeitiattanninhannipiitnenioninmimetiienianmemians 139
Oppenheim, “International Law” (MecNair’s 4th Ed., 1928),
p. 470 142
Patton, Titles, p. 577 90
1 Phillimore’s “International Law” (1854), p. 212........00.00.0.... 139
1 Phillimore’s “International Law” (3rd Ed. 1879), pp. 353-
366 .. ae 139
Raestad, La Mer Territoriale (1913), pp. 108-109... 179
5 Revue Générale de Droit International Publique (1898),
p. 269, De La Pradelel, as transalated in Crocker, Extent of
iO RE FUR, Di Bi itincnesteitereescteremnesinsintnecscnmnanien 177
Scott, Hague Court Reporters, pp. 121, 127.............0..cscceccsecseeeoes 182
25 Texas Law Review (Jan., 1947), pp. 262, 269..........20.....2::c000+ 129
The Collected Papers of John Bassett Moore, Vol. 7, p. 294........ 30
1 Thorpe, American Charters, Constitutions and Organic Laws
(1909), p. 94... 85
MRL EMO EIB EEE RES ORIOL LOE EES UT AME LEE REO ON I SOP EBON IES PE SRS TB ONES _—
PAGE
2 Thorpe, American Charters, Constitutions and Organic Laws
(1909), p. 663 - 72
2 Thorton, Oil and Gas (Willis, 5th Ed., 1932), Sec. 476, p.
I aE eS me REA tra ye WN RP REN Es eg a 115
3 Tiffany, Real Property (3rd Ed., 1939), p. 638.......02000200...... 115
2 Valin, Nouveau Commentarie sur l’Ordonnance de la Marine
(1760), p. 638. ipdadeadigaechanshian 178
van Bynkershoek, Cornelius, De Dominio Maris Dissertatio,
Chap. 2, as translated by Magoffin in Classics of Interna-
EE Bs i ititetiscerrrecicieicnes 178
Vattel, “Law of Nations,” Book II, Chap. XI, Sec. 149......000....... 139
Vattel, Le Droit des Gens (1758), pp. 250-251, as translated by
Fenwick in Classics of International Law, p. 109...................... 178
1 Westlake, “International Law” (1904), pp. 92-94.................- 139
Wheaton, “Elements of International Law” (1836 Ed.), Part
II, Chap. IV, Sec. 4 139
Wilson, G. G., “International Law” (1910), pp. 79-85.................. 139
Wilson, G. G., “International Law” (1939 3rd Ed.), pp. 79-80....139
Ziegler, “The International Law of John Marshall” (1939), p.
58 seadbeseeticadbiolasenaaans 139
TREATIES
American-Morocco Treaty of 1786... ; 190
British-Algiers Treaty of 1762...............0.0.000. cee 190
British-French Treaty of 1786 190
British-Tunis Treaty of 1762.............. 190
French-Russian Treaty of 1787 190
4 SGI E LEP ATE ILL ENTE ILOH. P RELIES LIEN DEAL
BE PLR CN 2 AS ORGAN NUE SEN SEO ETE A TEN
Outline of Argument.
Point I contains a general statement of the nature and
scope of plaintiff’s claims.
Point II deals with the jurisdiction of the Court and
with the question whether there is a case or controversy
under Article III, Section 2, of the Constitution. The
brief contains only a summary of these points. The
supporting authorities and a more complete statement of
the points are contained in Appendix A.
Point III presents the question whether the Attorney
General is authorized to bring or maintain this proceeding.
Supporting data on this point are in Appendix B.
Point IV sets forth the alleged source of plaintiff’s title
and states very briefly plaintiff’s chief arguments in sup-
port thereof. This is done to bring into clear focus the
issues which we are called upon to meet in the argument
that follows.
Point V sets forth the historical and legal basis of Cali-
fornia’s title (not including special affirmative defenses).
The subject is developed under the following subheads:
A. The rights of the Crown of England with
respect to the marginal sea, as determined by both
English and American courts and authorities. A com-
plete summary of the English authorities is contained
in Appendix C.
B. The rights of the original States as successors
of the Crown.
C. The affirmative acts and claims of the Colonies
and of the original States with reference td the mar-
ginal sea. The details of the Colonial Charters and
legislative acts are contained in Appendix E.
XXiv.
D. Under this head we have shown that the
original States never ceded to the Federal Govern-
ment lands beneath navigable waters within their
respective jurisdictions.
E. Under this head we have set forth the basic
legal principles under which the original States were
and are the owners of all lands beneath navigable
waters within their respective jurisdictions (except
lands previously granted).
F. Under this head we have shown the historical
and factual basis and the legal authorities for the
principle that lands beneath navigable waters were
held by the original States by virtue of and as an
incident to State sovereignty.
G. Under this head we have shown that:
(1) In territory acquired by the Federal Gov-
ernment, both from the original States and by
conquest and purchase from other nations, all
lands beneath navigable waters were held only in
trust for the future States which were to be
created out of such territory;
(2) There is a constitutional principle which
requires that new States must be admitted to the
Union on an equal footing with the original
States as to all matters incident to State sov-
ereignty ;
(3) Hence, new States upon their admission
‘sto the Union are vested with the same rights
of ownership of lands beneath their navigable
waters as the original States; and
XXV.
(4) The reservation of the primary disposal
of the public lands in the various Acts admitting —
new States was not and could not have been a
reservation of lands beneath navigable waters,
for the reason that such a reservation would
have violated the constitutional rule of the
equality of States.
H. Under this head we have set forth a series
of decisions of this and other Courts which uphold
State ownership of the bed of the sea within the
State’s jurisdiction. These cases are an answer to
the argument advanced by plaintiff that this Court
has never dealt with this question.
I. Under this head we have shown that the long
line of decisions of this and other Courts, holding that
the States are the owners of all lands beneath the
navigable waters within their boundaries, have estab-
lished a fundamental principle of public law; that this
principle of law so often repeated in the Courts’
decisions is not dictum but is a basic principle which
has established a rule of property. We have shown,
also, that this Court has never in its history over-
ruled a rule of property upon which titles to real
estate have generally been predicated.
Point VI presents the argument that California has
good title by prescription. The authorities are set forth
showing that this Court has uniformly held that as be-
tween States, or as between a State and the Federal Gov-
ernment, the doctrine of prescription is in full force. We
have shown that the acts of the State of California, from
the time of its admission, have been far more than suffi-
XXVvi.
cient to comply with every requirement of the rule of
prescription.
Point VII deals with the law and facts relating to the
long acquiescence by the Federal Government in the exer-
cise of ownership and jurisdiction over all lands beneath
navigable waters within the State of California. It has
been necessary to place a large part of the factual data of
acquiescence and also the detailed answers to plaintiff's
arguments with respect to specific instances of acquies-
cence in Appendix G.
Point VIII deals briefly with estoppel, laches and res
judicata. The supporting material on these subjects is in
Appendix H.
Under Point IX we have discussed the questions raised
in plaintiff’s brief as to the development in international
law of the marginal sea doctrine and have shown that the
Federal Government, as against the States, could not have
acquired any property rights in the marginal sea by reason
of its course of action in international affairs.
A number of other incidental matters are included in
the appendix.
NOTE AS TO ITALICS:
Italics used in this brief and in the appendices thereto
have been supplied by counsel for defendant except where
otherwise specified.
te seine aide eaieceeensc Sa
IN THE
Supreme Court of the United States
Octoser Term, 1946.
No. 12, Original.
UNITED STATES OF AMERICA,
Plaintiff,
US.
STATE OF CALIFORNIA,
Defendant.
Brief for the State of California in Opposition to
Motion for Judgment.
I.
NATURE AND SCOPE OF PLAINTIFF'S
CLAIMS.
The claims of plaintiff against the State of California
are set forth in Paragraph II of the complaint as follows:
“At all times herein mentioned, plaintiff was and
now is the owner in fee simple of, or possessed of
paramount rights in and powers over, the lands,
minerals and other things of value underlying the
Pacific Ocean, lying seaward of the ordinary low
water mark on the coast of California and outside of
the inland waters of the State, extending seaward
three nautical miles and bounded on the north and
south, respectively, by the northern and. southern
boundaries of the State of California.”
i
The prayer is for a decree
“. . . declaring the rights of the United States
as against the State of California in the area claimed
by California and enjoining the State of California
and all persons claiming under it from continuing to
trespass upon the area in violation of the rights of the
United States.”
It is clear from Paragraph II and is admitted in plain-
tiff’s brief (pp. 4, 5 and 217) that the lands attempted to
be described are wholly within the constitutionally estab-
lished boundaries of the State of California. Plaintiff also
admits that these boundaries were approved by the Con-
gress of the United States (p. 61).
The California coast line extends from Mexico to Ore-
gon, a distance of approximately 1,000 miles, not allowing
for the smaller curves and sinuosities of the shore. Plain-
tiff is claiming title to, or paramount rights in, about 3,000
square miles of territory wuolly within the boundaries of
California.
It is important to note that, although California has
been selected as the only defendant in this case, plaintiff’s
claim, in reality, extends to the marginal sea’ adjacent to
all the twenty-one coastal States in the Union. Plaintiff
has not claimed that California is under any special dis-
abilities or is in any less favorable position than other
‘The term “marginal sea,” as we shall show later (App. A, pp. 14
et seq.) does not describe any specific area of water, and is not sus-
ceptible of use in a court decree to identify any particular tract or
area of submerged land. The plaintiff has used this loosely descrip-
tive term to characterize the indefinite area of submerged land which
is the subject of its claim. We shall continue the use of the term in
that sense, merely for the purpose of reference to the plaintiff's
claim.
dinaliinies
coastal States. The rights of every coastal State to its
submerged lands are under attack in this proceeding.
Even though in a technical sense a judgment herein would
not be res judicata against other States, it is obvious
that if the Court holds in this case that California has no
property rights in the marginal sea, it will, in reality,
decide the question for all coastal states. Such a ruling
would create a legal duty on the Attorney General of
the United States to institute similar original proceedings
against the other States, which proceedings would be
predicated on the judgment in this case. It has, in fact,
been publicly stated by the Attorney General that in the
filing of this action there was no intention to discriminate
against California but that the object of the case was to
“settle” the question for all coastal States.?
The arguments in the opening brief make it clear
that as a result of this case plaintiff hopes to acquire
title or paramount rights in a 3 mile belt of sub-
merged land around the entire coast line of the United
States from Maine to Washington. This fact is
important as a background to the consideration of the
basic constitutional problems presented in plaintiff’s brief,
for these problems, as we have said, do not involve merely
California’s relation to the Federal Gover» nent; they also
2Speech of Honorable Tom C. Clark before National Association
of Attorneys General, Jacksonville, Florida, November 27, 1945.
Mr. Clark’s statement was as follows: “In ‘filing the action in the
Supreme Court against the State of California alone, there was, of
course, no intention to discriminate against that State. There are
many other coastal states of the Union as well as thousands of
individuals and corporations who assert claims in the marginal sea
area under authority of the states. The decision of the Supreme
Court, we hope, will settle the question as to all the coastal states
of the Union.”
par /2e
involve the relation of all States to the Federal Govern-
ment.
Plaintiff claims “lands, minerals and other things of
value underlying the Pacific Ocean below low water mark
and outside inland waters.”* Viewed in terms of the entire
coast line of the United States, this is an extremely revo-
lutionary and far-reaching claim.
“Things of value” seaward of low-water mark fall gen-
erally into two classes: (1) physical improvements and
(2) natural products.
Physical Improvements.
It is implied throughout plaintiff’s brief that plain-
tiff is claiming only vacant and unoccupied land along
an open and barren coast line. Such, of course, is not the
case. Large sections of the open coast both in California
and elsewhere, are built up with expensive improvements
which exist either wholly or partially below low-water
mark. In many instances the open coast line has been ex-
tended seaward below low-water mark by filling, and on
such filled lands highways, railroads, commercial struc
tures and innumerable other improvements have been
made—not to mention recreation beaches and public parks.
Likewise, there are hundreds of piers, wharves, docks,
breakwaters and other structures which actually extend out
into the ocean below low-water mark on the open coast.
*The term “inland waters” is subject to the comment made as to
“marginal sea” (Footnote 1). It describes no specific area of water
but, in connection with the terms “ports, bays and harbors,” is
loosely descriptive of the undefined portions of the submerged lands
within the State which plaintiff asserts are not claimed in this action.
We use these terms in the same sense. (See discussion of these
terms, Appendix A, pp. 14 et seq.)
MAP IS TOO LARGE TO BE FILMED
_—
_
Furthermore, it is impossible to know what is meant by
the “open coast.” All commercial harbors necessarily
have improvements extending below low-water mark.
Many such improvements may extend into the “open sea.”
Likewise many harbors are artificially constructed by
breakwaters extending into the open sea. Within such
harbors enormously valuable improvements such as ship-
yards, warehouses, factories, fish canneries and terminals
frequently exist.‘ Plaintiff says (Br. p. 143) that there
is “a strong public policy in favor of safeguarding prop-
erty rights which have long been established by judicial
decision...” But plaintiff would have the Court believe
that if there are any property rights at all involved in the
marginal sea, they are merely nominal. Plaintiff says these
“possible equities” are so relatively “insignificant” (Br. p.
165) that the Court need feel no compunction in declining
to apply its past decisions to this area. Yet plaintiff as-
serts (Br. pp. 228, 231) that it is doubtful whether San
Pedro Bay and Santa Monica Bay come within the cate-
gory of “inland waters” or “open sea,” thus reserving its
claim to everything of value below low-water mark in these
bays and harbors. The value of the improvements below
the original low water mark in San Pedro Bay alone
which would be lost to the owners if the Court resolved
this doubt in plaintiff’s favor, would be in excess of
$100,000,000.00. What this value would amount to in
all the “ports, bays, harbors and inland waters” as to
the status of which plaintiff is in doubt is impossible
to estimate, but it would run into many hundreds
4See Map of Los Angeles and Long Beach Harbors opposite this
page. The area colored red represents filled land and improvements
below the original mean high tide line. Most of it is below the
original low water line.
pare
of millions of dollars. So long as plaintiff reserves
the right to claim these enormously valuable properties it
cannot be said that they are not claimed in this action and
it cannot, therefore, be said that the equities involved are
so insignificant as not to merit the application of settled
rules of property law. Even below low water mark in the
open sea “the equities” are not insignificant, but if they
could all be computed would reach enormous figures.
Plaintiff has repeatedly asserted, in its brief (pp. 1
and 2) and elsewhere, that the Federal Government is
not claiming title to lands beneath ports, bays and har-
bors in this case. Indeed, the President of the United
States positively so stated to the people of California
and the United States in his official message (dated
August 1, 1946) vetoing an Act of Congress which
would have quieted the title of all the States to all lands
beneath their navigable waters. In this message he said:
“cc
Contrary to widespread misunderstand-
ing, the case does not involve any tidelands, which
are lands covered and uncovered by the daily ebb
and flow of the tides; nor does it involve any lands
under bays, harbors, ports, lakes, rivers or other in-
land waters. Consequently the case does not con-
stitute any threat to or cloud upon the titles of the
several States to such lands, or the improvements
thereon. Sn
Notwithstanding the public statement of the President,
plaintiff in this case reserves its claim to two of the most
important bays in California, namely, San Pedro and
Santa Monica Bays,° including some hundreds of millions
of dollars of improvements within those bays. Plaintiff
5Plaintiff’s Brief, pp. 228 and 231.
ais
is apparently not willing to accept the decision of the
highest court of California,’ which holds that Santa
Monica Bay is a bay, and the decision of the Federal
District Court,” which holds that San Pedro Bay is a
bay. Incidentally, plaintiff likewise reserves its claim to
Massachusetts Bay.*® In view of these reservations, the
statement on page 2 of plaintiff’s brief that “This case
is limited strictly to lands within the three-mile belt on
the open sea,” seems hardly in accordance with the facts.
The case is not “limited” at all, but left wide open for
the plaintiff to claim that any important bay is not what
plaintiff calls (Br. pp. 228, 231) a “true bay.”
Natural Products.
The natural products underlying the ocean below low-
water mark include fish, both “free swimming” and
those found upon or attached to the soil, such as oysters,
clams, lobsters, abalone and similar sea life sometimes
called ‘‘sedentary fish”. Also of great value below low-
water mark are sponges and kelp, the latter used exten-
sively in the manufacture of potash and iodine. In three
States, California, Texas and Louisiana, oil is produced
from below low-water mark. Numerous other minerals
are found in and under the sea along the coasts of the
various states.
The Federal Government now claims “everything of
value” below low-water mark. It makes this claim on the
theory that it owns, or has paramount rights over, the
marginal sea in the same sense that it owns the uplands
known as “public lands.” It is obvious that if this claim
*People v. Stralla, 14 Cal. (2d) 617 (1939).
7United States v. Carrillo, 13 F. Supp. 121 (S. D. Cal. 1935).
8Plaintiff’s Brief, p. 254.
seen SUS
a
were upheld plaintiff would control the taking of fish and
all other products of the sea just as it controls the taking
of game, minerals or timber in the national forests, not-
withstanding that the states have from time immemorial
been held to have not only full control but exclusive owner-
ship of all fish and other products of the sea within their
respective boundaries. (Jnfra, pp. 58-65.)
The fishing industry is one of the largest in California.
The value of all types of fish taken from the marginal sea
within the State’s boundary and under State control
greatly exceeds the value of all petroleum and other
minerals taken from the sea. If the Federal Government
*The value of the fish (exclusive of crabs, abalone, clams and
lobsters) caught in California waters, in terms of money paid to
fishermen, for the years 1942 to 1945, inclusive, is as follows:
Value
Year to Fishermen
1942 $26,100,000.00
1943 31,900,000.00
4S 36,100,000.00
1945 38,830,400.00
The value of canned fish produced in California for the same
years is:
Year Value
1942 $67 432,689.00
1943 70,496,100.00
Last 79,074,776.00
1945 79,755,151.00
(Footnote continued on next page)
SOBER A 85 BROIL LVS POLLY RE AERATINL OG LOL EG NOE ELLIE
ha
Fo
should assume control, regulation and ownership of the
fish within the boundaries of the several coastal States, the
resulting dislocation in the economic and political life of
the States would be far-reaching in the extreme and
would constitute the greatest shift of political and economic
power from States to Federal Government at any one
time since the adoption of the Federal Constitution.
The value of fish meal and fish oil produced in California for
the same years is:
Year Value
1942 $13,998,542.00
1943 ; 15,386,369.00
1944 19,694,321.00
1945 13,557,169.00
Of the total production of fish from California during the war
years, from 40% to 75% was delivered to the United States for
the Armed Services and other government uses. In the years 1942
to 1945, inclusive, 310,311 tons of fish taken from California waters
were delivered to the United States Government.
The value of California’s canned fish, meal and oil is over 40%
of the total value of all canned fish, meal and oil produced in the
entire United States and Alaska.
Fish Harbor at Los Angeles (see map, p. 5) is constructed on
filled land, wholly below the original low-water mark. In 1945
more fish were landed at Los Angeles than in any other port in the
United States——Monterey, California ranking second, Gloucester,
Massachusetts third, San Francisco fourth, and Boston, Massa-
chusetts fifth. There are 19 modern fish canneries in Los Angeles
Harbor, most of which are built on filled land below the original
low-water mark and subject to plaintiff’s claims if it should resolve
its present “doubts” in favor of Federal ownership.
(The above figures and data taken from Fish Bulletins Nos. 59
and 63 and Statistical Reports of California Division of Fish and
Game.)
The total income from California’s fisheries to fishermen, manu-
facturers, wholesalers and retailers for the year 1945 is
pe
a
The institution of this suit represents an effort by the
Federal Government, now being made for the first time
in our national history, to invade and to usurp the long-
established territorial rights, not of California alone,
but of all our coastal States. It is an attack on a
policy and practice followed consistently by every coastal
State of the United States from the beginning of its his-
tory as a State—by some of our coastal States since
colonial times—in which the Federal Government has al-
ways heretofore acquiesced. It is an attempt to over-
throw and reverse a rule of property which has been ap-
plied and followed by this Court throughout a hundred
years.
$147,000,554.00 calculated on basis used in Fisheries Resources of
the United States, 79th Congress, Senate Document 51.
The total value of all petroleum produced from below the line of
mean high tide on the California coast for the years 1942 to 1945,
inclusive, is as follows:
Year Value
1942 $11,234,180.00
1943 15,381,220.00
1944 23,511,138.75
1945 25,308,163.75
These figures are supplied by the California State Lands Divi-
sion and Long Beach Harbor Department. In California about
15 miles of its 1000 miles of coast line contain oil wells which
extend below low-water mark. (Joint Hearings House Judiciary
Committee, June 18-20, 1945.) See Map, infra, p. 146.)
ae; eve
II.
JURISDICTION.
We believe there is grave doubt as to whether the
Court has jurisdiction of the case as presented in plain-
tiff’s complaint and opening brief. And since the juris-
diction of the Court must of necessity be the initial
inquiry in every original proceeding, we shall deal with
that subject before presenting our affirmative arguments
as to California’s title.
There Is No Case or Controversy Under Article III,
Section 2 of the Constitution.
The following is merely.a summary of the points on
which we base the assertion that plaintiff has presented
no case or controversy within the constitutional power of
the Court to adjudicate. The factual data and legal au-
thorities which fully support these points are set forth in
detail in Appendix A, pp. 1-31.
A. There Is No Controversy in a Legal Sense, But
Only a Difference of Opinion Between Federal
and State Officials.
This action is the result of doubts which arose in the
mind of the former Secretary of the Interior with regard
to his power to issue federal oil leases of submerged coastal
lands in California. By reason of his doubts on this ques-
tion he
“stopped all action in the Department which was
based on the assumption that the States owned these
submerged lands, and began to press for a judicial
solution of the debated issue of law.”
1°Testimony of the Secretary before the Senate apes Com-
mittee, set forth more fully in Appendix A, pp. 4-5.
oa aR
No federal official has ever attempted to take any
action to enforce the alleged rights or powers of the Fed-
eral Government and Congress has passed no statute au-
thorizing Federal officials to take any action with respect
to submerged lands.
Neither the Secretary nor any other Federal official
has ever been frustrated or interfered with in the attempt
to exercise any alleged Federal powers. The only thing
that prevented the Secretary from acting was his own
doubts. This Court said in Willing v. Chicago Audito-
rium, 277 U. S. 274, 289 (1927):
“The fact that plaintiff’s desires are thwarted by
its own doubts, or by the fears of others, does not
confer a cause of action.”
No issue exists as to the exercise of any specific gov-
ernmental power. The Court is simply asked for an ab-
stract opinion on “the debated issue of law.”
The prayer of the complaint, which asks the Court to de-
clare “the rights of the United States as against the State
of California in the area claimed,” would require an ad-
judication in the abstract of innumerable questions which
would deal with hypothetical situations only. It is not
within the constitutional power of the Court to render such
a decree.
In United States v. West Virginia, 295 U. S. 463
(1935), this Court said (p. 474):
“General allegations that the State challenges the
claim of the United States . . . and asserts a right
superior to that of the United States . . . raise
an issue too vague and ill-defined to admit of judicial
determination.”
=
B. It Is Impossible to Identify the Subject Matter
of the Action.
The basic requirement of a judicial controversy is that
it “must be definite and concrete,” it cannot be predicated
upon a “hypothetical state of facts.”
It is impossible to ascertain from the complaint or brief
what lands are the subject of plaintiff’s claim. The
complaint describes no lands which can be identified. A
decree purporting to adjudicate ownership of the area re-
ferred to in the complaint and to enjoin the State and
those claiming under it from trespassing thereon would
be purely hypothetical. Such a decree would quiet title
to no particular land and would enjoin no trespassers.
No alleged trespasser would know upon what land he was
forbidden to trespass. The decree would serve no pur-
pose except for the guidance of plaintiff in bringing sub-
sequent actions in which specific relief could be granted.
The question of title or ownership of land cannot be
determined in the abstract before it is determined what
land is to be the subject of the decree.
There are hundreds of curves and indentations in the
California coast which may or may not constitute bays
and harbors or “inland waters.” Plaintiff itself cannot
specify what constitutes a bay or harbor or “inland waters”
and reserves its claims to such bays as San. Pedro Bay
and Santa Monica Bay, on the ground that it is in doubt
whether they are “true bays.””* No legal or factual defini-
tion of a “true bay” exists and the question what con-
Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240 (1937).
12Br. pp. 228, 231.
a
stitutes a “true bay” is not susceptible of adjudication
under any statute or rule of decision but can only be ar-
bitrarily defined by legislative action or by a decree in
a particular case when all the facts are before the Court.
No criterion exists by which the Court can define a
property line between “inland waters,” ports, bays and
harbors on the one hand and the marginal sea on the
other.
Plaintiff admits that certain bays are “historic bays”
and thus come within the category of “true bays.” It is
impossible to predicate land titles on this basis because to
do so would mean that title to real property would pass
from one sovereign to the other whenever a bay becomes
established as an “historic bay.”
It is likewise impossible to predicate land titles on the
assumption that lands are within or beneath ports or
harbors because ports or harbors have no fixed legal mean-
ing, may be artificially created and changed from time
to time as a result of artificial factors or legislative action,
and.may exist in the open sea, as well as in a natural bay.
For these (and other reasons stated in Appendix A) it
would be impossible in this case to render a decree which
could be made to apply to any particular land. Plaintiff
does not ask the Court to adjudicate title to any particu-
lar land. It merely asks the Court to advise it as to
whether there are any principles of law under which it
could be the owner of submerged lands and, if so, what
those principles are. Such an opinion is not within the
constitutional power of the Court to render.
ERS RS UB REY LoS BRIE LED IE POLED TEE ABIL INE TE
_
ITT.
THE ATTORNEY GENERAL IS NOT AUTHOR-
IZED TO BRING OR MAINTAIN THIS PRO-
CEEDING.
There is a serious question as to whether or not the
Attorney General is authorized to commence or maintain
this proceeding.
This question arises by reason of the policy of Con-
gress, followed by it for over 100 years, of affirmatively
recognizing and declaring the ownership of the States in
the submerged lands underlying the marginal seas as well
as under their “inland waters.” This policy of Congress
has been recognized by this Court and other courts in many
decisions.
The supporting data establishing this policy of Con-
gress is set forth in the chapter on “Acquiescence” (infra,
pp. 154-157).
The office of Attorney General was created by Act of
Congress and his authority emanates from Congress.
Twice in the last eight years specific authorization has
been requested of Congress for the Attorney General to
file a proceeding such as the instant one. On each occa-
sion Congress has refused to grant the requested author-
ization or to change or alter its policy with respect to
State ownership of submerged lands.
The present suit was, therefore, brought by the Attor-
ney General not only without any specific authorization
from Congress but in direct conflict with the established
policy of Congress on the subject and in disregard of
Congress’ refusal to authorize such action.
A proceeding filed without authority should be dis-
missed. The decisions and the factual circumstances
on this subject are set forth in Appendix B to this Brief.
ea eS
IV.
ALLEGED SOURCE OF PLAINTIFF'S TITLE.
Plaintiff claims that it acquired title or rights to lands
beneath the marginal sea of California from Mexico un.
der the Treaty of Guadalupe Hidalgo in 1848. (Br. p.
7.) Plaintiff’s assumption apparently is that Mexico had
proprietary title to the lands within the three-mile belt
which passed to the United States by that treaty. Noth-
ing is said as to how Mexico acquired this title but the
assumption appears to be that Mexico’s title “emerged” un-
der international law at some unspecified date prior to
February 2, 1848. Since plaintiff’s position is that prop-
erty rights in the three-mile belt did not become recognized
in international law until after 1789, it must follow under
plaintiff’s theory that Mexico acquired title under interna-
tional law between 1789 and 1848.
The lands thus acquired from Mexico are (accordinz
to plaintiff’s theory), still the property of the United
States for the sole reason that neither the Act of Ad-
mission nor any other statute expressly granted these
lands to California. This is the affirmative basis of plain-
tiff’s case.
In claiming that lands beneath the marginal sea did not
pass to California, plaintiff relies on the general rule that
“grants of public property, . . . must be expressed in
clear and explicit language” and are not to be implied.
(Br. p. 63.) Yet plaintiff is forced to concede that the
lands beneath “inland waters,” ports, bays and harbors
and between high and low water have been held by this
Court to be so closely identified with State sovereignty
that they did vest in California without any grant at all
— > a
except as the Act of Admission might be considered as
having the effect of a grant. Plaintiff’s entire brief is
taken up with the attempt to explain why lands within the
State’s boundaries lying seaward of low water mark and
outside of “inland waters,” ports, bays and harbors did
not likewise vest in California on the same grounds.
In order to explain this inconsistency plaintiff advances
two main theories:
(1) That the original States never owned any
lands below low-water mark and outside bays and
harbors, and, hence, the equality rule dia not require
that such lands vest in California.
(2) That in any event ownership of lands beneath
navigable waters, whether “inland waters” or mar-
ginal sea, is not an attribute of sovereignty at all, and
hence did not vest in California by virtue of its
sovereignty under the equality rule.
In order to maintain the proposition that the original
States did not own any lands below low-water mark and
outside bays and harbors, plaintiff adopts the following
line of argument :
(1) That the rights of the English Crown in the
bed of the sea, which were admittedly asserted in the
16th and 17th centuries,"* were abandoned in the
18th century. From some undesignated date prior
to 1776 until some undesignated date after 1789 (but
before 1848) there was a hiatus in ownership of the
marginal sea, during which time there was no owner
at all.
18Br. p. 24, et seq.
niin
(2) That during this hiatus in ownership the
Federal Government was established as the National
sovereign. —
(3) That the three-mile belt of marginal sea is a
creature of international law sponsored by the Fed-
eral Government and hence, when rights of owner-
ship did become recognized under international
law, such rights, so far as the original States were
concerned, “emerged” in the National sovereign.
Under plaintiff’s theory this must have occurred
between 1789 and 1848."*
In order to maintain the alternative proposition that
ownership of lands beneath navigable waters was not an
attribute of sovereignty at all, plaintiff is forced to re-
pudiate as “patently unsound” the whole body of juris-
prudence which has grown up in England and America
for hundreds of years and which is predicated upon the
doctrine that title to lands under navigable waters is
governmental in its nature and is “so identified with the
sovereign powers of government’”” as to be considered
necessarily incidental thereto.
In the endeavor to support the theory that neither the
Crown nor the original States had any property rights
in the three-mile belt during the interim from 1776 to
1789, but that such rights “emerged” subsequently in the
14Since the marginal sea of California is claimed by plaintiff as
successor to the Republic of Mexico, plaintiff must assume that
proprietary rights in California’s marginal sea “emerged” in the
Republic of Mexico by virtue of international law at some date
between 1789 and 1848. If such rights had emerged before 1789,
presumably they would have likewise emerged on the Atlantic
coast and in such case would have vested in the original States
or in the Crown.
15 Massachusetts v. New York, 271 U. S. 65, 89 (1926).
=~ =
National Government, plaintiff devotes more than one-
third of its brief to a review of the development of the
marginal sea idea in international law. It is our view
that this entire subject is wholly irrelevant to the issues
in this case. This is not an international law case and
the issues cannot be decided by the application of any
principles of international law. —
International law does no more than create the condi-
tions under which a littoral state may be free from for-
eign interference in the exercise of the powers of owner-
ship in the marginal sea which are conferred upon it by
its own law. International law does not create any pro-
prietary interest in the marginal sea and is not a source
of land titles. Proprietary ownership of land never did
“emerge” and never could have “emerged” and become
vested in any state or country under international law. In-
ternational law could not affect the “distribution of rights
and powers” as between States and Federal Government.
That is determined only by the Constitution.
The United States cannot acquire proprietary rights in
land for itself as against the States through the perform-
ance of its constitutional duties in the conduct of foreign
affairs.
The true rule as to what law governs this case was stat-
ed by Chief Justice Marshall in Johnson v. McIntosh, 8
Wheat. 543, 572 (1823), as follows:
. . title to lands, especially, is, and must
be, admitted, to depend entirely on the law of the na-
tion in which they lie.”
However, since plaintiff’s case is based on the theory
that Federal ownership of the three-mile belt is “derived
exclusively from the position of the national sovereign in
international affairs” (Br. p. 89), we intend, at the close
of this brief, to set forth in more detail the authorities
which will show that this theory is wholly fallacious.
(Infra, p. 174 et seq.) We desire, first, however, to pro-
ceed with an affirmative showing of the historical and
legal basis of California’s title.
“cc
—
V.
THE BASIS OF CALIFORNIA’S TITLE.
California’s title to all lands beneath navigable waters
within its boundaries is predicated upon the rule that the
original thirteen States acquired all lands of this charac-
ter from the Crown of England, that such lands were
held by the original States in trust for the public as an
incident to their sovereignty and that upon the admission
of California to the Union on an equal footing with the
original States, not only the lands beneath bays and har-
bors and between high and low tide, but all lands beneath
navigable waters vested in California as a sovereign State.
As above stated, plaintiff, in order to support its theory
that the original States had no title, has been forced to
attack the common law principle that lands beneath the
marginal sea were the property of the English Crown
prior to 1776. We, therefore, take up the authorities
on the common law of England.
A. The Rights of the English Crown Under
the Common Law.
1. The Common Law as It Existed in England in and Prior
to 1776 Governs in This Country Regardless of Variations
in England Subsequent to That Date.
The rights of the Crown of England as against its
subjects in the new world cannot be determined by inter-
national law. That question can be determined only by
the law of England as it existed in and prior to 1776.
This principle is stated by Hall,"* as follows:
“Over the British seas, the King of England claims
an absolute dominion and ownership, as Lord Para-
Essay on the Rights of the Crown in the Sea-Shores of the
Realm (first published in 1830), 3d ed., reprinted in Moore,
Stuart A., History and Law of the Foreshore and Sea Shore
(London, 1888), p. 667.
ii
mount, against all the world. Whatever opinions for-
eign nations may entertain in regard to the validity
of such claim, yet the subjects of the King of Eng-
land do, by the common law of the realm, acknowl-
edge and declare it to be his ancient and indisputable
right.”
The rights of the original States vested under the com-
mon law as it existed in 1776. Up to that time it had
been declared in all the English decisions that the King
was the owner of a belt of land below low-water mark.
(Appendix C.) Even if this common law rule had been
abandoned in England in the 19th century, as claimed by
plaintiff on the strength of the overruled dicta in Queen
v. Keyn, L. R. 2 Exch. Div. 63 (1876), (which is not the
case), it would have no bearing in this case for the rule
is that the common law of this country is the common
law of England as it existed in that country in and prior
to the year 1776 modified only by our constitutions and
statutes. Shively v. Bowlby, 152 U. S. 1, 14 (1894),
states that: |
“The common law of England 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 modi-
fied by the charters, constitutions, statutes or usages
of the several colonies and states, or by the Consti-
tution and laws of the United States.”
To the same effect: Cathcart v. Robinson, 5 Peters 264,
280 (1831).
2. Decisions of American Courts as to the English
Common Law.
The common law basis of the Crown’s ownership was
and is the doctrine that the King is the lord paramount
and the original owner of all land under his dominion.
Land that never had an individual owner belongs to the
az,
sovereign within whose territory it is situated. This doc-
trine covered water.territory as well as land territory.
No distinction was or is made by the common law as
to the nature or character of the Crown’s ownership of the
bed of the sea on the one hand, and the foreshore and beds
of inland tidal waters on the other. In fact, the Crown's
ownership of the sea bed was the basis upon which it was
held that the Crown owned the foreshore and the beds
of rivers so far as they partook of the nature of
the sea by being subject to the flow of the tide. [Appen-
dix C, pp. 39-41, 63. |
The Crown’s ownership of the sea bed and of the fore-
shore and beds of tidal rivers, although proprietary
in its nature, has been, at least since Magna Charta, sub-
ject to the public trust for navigation and fishing. There
was thus a double right in the Crown. There was the
strictly governmental right (jus publicum) under which
the Crown held the submerged lands and the foreshore as
a public common for navigation and fishery, and the pre-
rogative right (jus privatum) under which the Crown held
proprietary title to the submerged lands. The nature of
the Crown’s ownership of tide and submerged lands was
therefore entirely different from its ownership of dry
lands which were subject to no governmental trust. The
public trust could not be destroyed by the Crown, and a
grant by the King of his jus privatum in submerged lands
could only be made subject to the jus publicum, or public
rights of navigation and- fishing. For that reason the own-
ership of lands under navigable waters was always held
to be a necessary incident of sovereignty.
1™ Foreshore” in English law means the lands between high and
low water marks. [App. C.]
_—
This Court and the courts of our States have repeatedly
declared what the common law of England was in 1776
with regard to those rights of the Crown to which the
original States succeeded. The following are a few of the
leading cases on this subject:
Martin v. Waddell, 16 Pet. 367, 412 (1842), by Mr.
Chief Justice Taney:
“It is said by Hale, in his treatise de Jure Maris,
Harg. Law Tracts 11, when speaking of the navigable
waters, and the sea on the coasts within the jurisdic-
tioa of the British crown, ‘that although the king
is the owner of this great coast,’* and as a conse-
quent of his propriety, hath the primary right of
fishing in the sea, and creeks and arms thereof, yet
the common people of England have, regularly, a lib-
erty of fishing in the sea, or creeks or arms thereof,
as a public common of piscary, and may not, without
injury to their right, be restrained of it, unless in
such places, creeks or navigable rivers, where either
the king or some particular subject hath gained a
propriety exclusive of that common liberty.’ ”
Weber v. Board of Harbor Comm., 85 U. S. “37, 65
(1873), by Mr. Chief Justice Field:
“By that law [the common law] the title to the shore
of the sea, and of the arms of the sea, and in the
soils under tidewaters” is, in England, in the king,
and, in this country, in the State.”
18The word used by Hale is “waste,” here misquoted as “coast.”
1®Tidewaters” obviously includes the waters of the oceafi, all
of which are affected by the tides. This Court held in Manchester
v. Massachusetts, 139 U. S. 240, 258 (1891):
“. . . the minimum limit of the territorial jurisdiction
of a nation over tidewaters is a marine league from its coast
(Footnote continued on next page)
Shively v. Bowlby, 152 U. S. 1, 13 (1894), by Mr. Jus-
tice Gray: |
“In England, from the time of Lord Hale, it has
been treated as settled that the title in the soil of the
sea, or of arms of the sea, below ordinary high water
mark, ts in the King,\except so far as an individual
or a corporation has acquired rights in it by ex-
press grant, or by prescription or usage; [citing
cases] and that this title, jus privatum, whether in
the King or in a subject, is held subject to the public
right, jus publicum, of navigation and fishing.”
Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 65
(1851), by Chief Justice Shaw:
“By the common law of England, as it stood long
before the emigration of our ancestors to this coun-
try and the settlement of the colony of Massachusetts,
the title to the land or property in the soil, under the
sea, and over which the tide waters ebbed and flowed,
including flats, or the sea-shore, lying between high
and low water mark, was in the king, as the repre-
sentative of the sovereign power of the country. But
it was held by a rule equally well settled, that this
right of property was held by the king in trust, for
public uses, established by ancient custom or regu-
lated by law, the principal of which were for fishing
and navigation.”
See, also, H. A. Marmer, Assistant Chief of the Division of Tides
of the United States Coast and Geodetic Survey, The Tides (1926),
pp. 132, 133.
The term “tidewaters” is not to be confused with “tidelands”
which sometimes, but by no means always, is used to refer to the
narrow strip of land between high and low tide. See note, Ap-
pendix F, p. 118, where “tidelands” is construed hy a California
court to include submerged lands below low-water mark.
-
Weston v. Sampson, 62 Mass. (8 Cush.), 346, 351-
352 (1851), by Chief Justice Shaw:
“ . . the king ts held to be owner of the soil
under the sea, which royal right, by the common
law of England, extends over the shore where the
tide ebbs and flows to ordinary high water mark.”
Commonwealth v. Roxbury, 75 Mass. (9 Gray), 451,
482 (1857), by Chief Justice Shaw:
“We had considered it settled beyond controversy
that, by the common law of England, the right of
soil, not only in the sea, the fundus maris, was in the
king, but also in the sea shore, the land between high
and low water mark .
* . * * . - * *
at the time of the granting of the colony
charters herein before stated, the king held the sea
shores as well as the land under the sea; . . . he
held the same publici juris for the use and benefit of
all the subjects, for all useful purposes, the principal
of which were navigation, and the fisheries.”
People v. New York & S. I. Ferry Co., 68 N. Y. 71,
76 (1877) :*
“The title to lands ur ‘er tide-waters, within the
realm of England, were, by the common law, deemed
to be vested in the king as a public trust, to subserve
and protect the public right to use them as common
highways for commerce, trade and _ intercourse.
; In the treatise De Jure Maris (p. 22) Lord
Hale says: “The jus privatum that is acquired to the
subject, either by patent or prescription, must not
prejudice the jus publicum, wherewith public rivers
and arms of the sea are affected to public use;’ . . .”
“é
2°Quoted with approval by Mr. Justice Field in Jilinois Cent.
R. R. Co. v. Iitinois, 146 U. S. 387, 458 (1892).
aii.
Rogers v. Jones, 9 N. Y. Com. L. (1 Wend.) 237, 256
(1828) :
“In Reston, it hath always been holden that the
King is lord of the whole shore. He has the prop-
erty tam aqua quam soli and all profits in the sea,
and all navigable rivers.”
Gough v. Bell, 22 N. J. L. (2 Zab.) 441, 455 (1850):
“The ancient rule of the common law is, that the
; title to the shore between ordinary high and
low water mark, as well as the title to the soil under
the water, belongs, prima facie, to the sovereign. Hale
de Jure Maris, part 1, cap 4; case of the River Banne,
Davies 152; Woolrich on Waters, 20;
Arnold v. Mundy, 6 N. J. L. (1 Halst.), : at 74
(1821):
“Lord Hale says, ‘the sea, and the arms of the
sea, and the navigable rivers in which the tide ebbs
and flows, are of the dominion of the king, as of his
proper inheritance; and that this dominion, embraces,
also, the shores, . . .’”
Narragansett Real Estate Co. v. McKenzie, 82 Atl. 801,
at 810 (R. I, 1912):
“Tt is well settled in England that the title in the
bed of the ocean is in the sovereign, subject to the jus
publicum—the right of navigation and fishery of
which the public cannot be deprived. Jn this coun-
try, where the people are sovereign, the title to the
bed of the ocean is in the state, which represents the
sovereign power ; Mans
71Other cases containing similar statements as to the com-
mon law of England are: New York, B. H. & H. R. Co. v-’
Horgan, 56 Atl. 179, at 180 (R. I., 1903); Armour & Co. v. City
of Newport, 110 Atl. 645, at 646 (R. i 1920); Simmons v.
French, 25 Conn. 345, at 351 (1856) ; Furman v. City of New
York, 7 New York Superior Court 17, at 33 (1851). There are
no authorities to the contrary.
yy So
3. English Court Decisions and Treatises.
In view of the numerous, decisions of the American
courts declaring what the common law of England was
as it pertains to the rights of the original thirteen States
to lands under navigable waters, it would hardly seem
necessary to refer to English authorities on the subject.
However, because plaintiff has placed so much stress on
English law, we have prepared (Appendix C) a complete
summary of the law as developed in cases and by commen-
tators from the time of Sir Thomas Digges, in 1569, to
Lord Shaw of Dunfermline, in 1916. This summary
shows that throughout the entire history of England every
court decision in which the question of the ownership of
the Crown to the bed of the sea below low-water mark
was involved, has upheld the Crown’s ownership. This
summary also shows that all the great commentators on
English law, including Digges, Callis, Coke, Selden, Hale,
Blackstone, Chitty, Hall and Sir Cecil Hurst,” have un-
equivocally declared the Crown to have been at all times
the owner of the bed of the sea, at least out to the three-
mile limit.
The principle of the Crown’s ownership has been con-
tinuously followed and applied in England from the Six-
teenth Century to the present day, with no hiatus. The
development of the international law concept of the cannon
range or three-mile limit on territorial waters is re-
flected in some of the English decisions in the Nineteenth
Century only in the sense of fixing a seaward limit upon
the extent of the ocean bed which is owned by the Crown.
No new rights emerged, and there was no change in the
nature or quality of the Crown’s rights in the sea, as a
result of the growth of international law.
*2Formerly President, Permanent Court of International Justice.
= =
QUEEN v. Keyn.
Plaintiff relies on the dicta of some of the judges in the
case of Queen v. Keyn, L. R. 2 Exch. Div. 63 (1876),
as the primary support for its contention that the English
Crown in 1776 had no title to the bed of the marginal
sea which could be transmitted to the original thirteen
States.
The Keyn case is not relevant to the issues in the in-
stant proceeding because:
(a) The sole question there presented was whether the
Central Criminal Court of England had jurisdiction to
try a foreigner for manslaughter committed on board a
foreign ship sailing within three miles of the English
coast. Counsel for plaintiff admit that the issue before
the court in the Keyn case did not require a decision on
the territorial limits of England. (Br. p. 47.)
(b) The majority decision in the Keyn case was that
the crime was not committed “within the body of the
county” as that term was used in English law. The
“body of the county” doctrine has no application in Ameri-
can law because the counties of California (and of other
coastal States) extend out to the State’s boundary in the
sea. This precise distinction was made in Manchester
v. Massachusetts, 139 U. S. at 263-4.¥
28In the Manchester case the Court said:
“It is also contended that the jurisdiction of a State as be-
tween it and the United States must be confined to the body
of counties; that counties must b2 defined according to the
customary English usage at the time of the adoption of the
EEN EHR PE IIRONE cP or ROR OSLER SEER, PEPE RSS? PRE
ay:
(c) This Court, in Manchester v. Massachusetts, supra,
held the Keyn case inapplicable for the further reasons
that:
“* * * there [in The Queen v. Keyn] the question
was not as to the extent of the dominion of Great
Britain over the open sea adjacent to the coast, but
only as to the extent of the existing jurisdiction of the
Court of Admiralty in England over offenses com-
mitted on the open sea; and the decision had nothing
to do with the right of control over fisheries in the
open sea or in bays or arms of the sea. In all the.
cases cited in the opinions delivered in Reg. v. Keyn,
wherever the question of the right of fishery is re-
ferred to, it is conceded that the control of fisheries,
to the extent of at least a marine league from the
shore, belongs to the nation on whose coast the
fisheries are prosecuted.”™*
(d) Immediately after the decision of the Keyn case
the English Parliament “considered it imperative to adopt
Constitution of the United States; that by this usage counties
were bounded by the margin of the open sea; and that, as to
bays and arms of the sea extending into the land, only such
or such parts were included in counties as were so narrow
that objects could be distinctly seen from one shore to the
other by the naked eye. But there is no indication that the
customary law of England in regard to the boundaries of
counties was adopted by the Constitution of the United States
as a measure to determine the territorial jurisdiction of the
States.”
24A similar distinction of the Keyn case was made by the Ninth
Circuit Court of Appeals in Humbolt Lumber Mfgrs. Assn. v.
Christopherson, 73 Fed. 239, 246 (C. C. A. 9, 1896).
a
legislation nullifying its effect for the future, besides de-
claring it wrong as to the past.””
(e) Finally, the Privy Council, in the case of Secretary
of State for India v. Chelikani Rama Rao, 43 L. R. Ind.
App. 192 (1916), a case in which the rights of the Crown
to the bed of the sea within the three-mile belt were
squarely in issue, upheld the Crown’s title and repudiated
the dicta of the Keyn case. The decision of Lord Shaw
leaves no doubt but that the Crown of England had always
owned the bed of the sea to the extent of at least three
miles.
[A more detailed analysis of this case is included in
Appendix C, pp. 65-73.]
Reference to Appendix C will also show (if, indeed,
it needs to be shown) that in the decisions cited under the
last head this Court and the State courts have interpreted
correctly the meaning and effect of the common law of
England.
25The Collected Papers of John Bassett Moore, Vol. 7, p. 294.
a
B. The Original States in 1776 Succeeded to All
Rights and Property of the English Crown.
In the previous section it has, we submit, been dem-
onstrated that the English Crown did own lands below
low-water mark and outside “inland waters” prior to
1776. The extent of the sovereign’s ownership will be
discussed later. (Jnfra, pp. 174 et seg.) We are concerned
here only with the principle that such ownership existed.
This Court has repeatedly held that all the rights and
properties of the Crown (not theretofore granted) passed
on July 4, 1776 to the thirteen States as separate and in-
dependent states. Each state succeeded to all the rights
and properties of the Crown within its own jurisdiction
and territory.
A few of the leading cases holding that the States,
independently, succeeded to all rights of the Crown are:
Martin v. Waddell, 16 Pet. 367, 410 (1842):
“For when the Revolution took place, the people
of each state became themselves sovereign; and in
that character hold the absolute right to all their
navigable waters and the soils under them, for their
own common use, subject only to the rights since
surrendered by the Constitution to the general gov-
ernmen ”
The above statement is quoted with approval in Mum-
ford v. Wardwell, 6 Wall. 423, 436 (1867) and also in
Illinois Central Ry. Co. v. Illinois, 146 U. S. 387, 456
(1892).
Shively v. Bowlby, 152 U. S. 1, 14-16 (1894):
“And upon the American Revolution, all the rights
of the Crown and of Parliament vested in the sev-
niles
eral States, subject to the rights surrendered to the
national government by the Constitution of the
United States.”
Appleby v. City of New York, 271 U. S. 364, 381
(1926) :
“Upon the American Revolution, all the proprietary
rights of the Crown and Parliament in, and all their
dominion over, lands under tidewater vested in the
several States, subject to the powers surrendered
to the National Government by the Constitution
of the United States.”
County of St. Clair v. Lovingston, 90 U. S. 46, at
68 (1874):
“By the American Revolution the people of each
State, in their sovereign character, acquired the
absolute right to all their navigable waters and the
soil under them. The shores of navigable waters
and the soil under them were not granted by the
constitution to the United States, but were reserved
to the States respectively.”
Massachusetts vw. New York, 271 VU. S. 65, 85-86
(1926) :
“The English possessions in America were claimed
by right of discovery. The rights of property and
dominion in the lands discovered by those acting un-
der royal authority were held to vest in the Crown,
which under the principles of the British Constitu-
tion was deemed to hold them as a part of the public
domain for the benefit of the nation. Upon these
principles rest the variov's English royal charters and
grants of territory on the Continent of North Amer-
ica. Johnson v. McIntosh, 8 Wheat. 543, 577 et seq.,
595. As a result of the Revolution, the people of each
lin
State became sovereign and in that capacity acquired
the rights of the Crown in the public domain (Mar-
tin v. Waddell, 16 Peters 367,410), . . .”
Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 82
(1851):
“This right of dominion and controlling power over
the sea and its coasts, shores, and tide waters, when
relinquished by the parent country, must vest some-
where; and, as between the several states and the
United States, whatever may have been the doubts
on the subject, it is settled that it vested in the sev-
eral states, in their sovereign capacity, respectively,
and was not transferred to the United States by the
adoption of the constitution intended to form a more
perfect union.”
People v. Trinity Church, 22 N. Y. 44, 46 (1860):
“When, by the Revolution, the Colony of New
York became separated from the Crown of Great
Britain, and a republican government was formed,
the People succeeded the King in the ownership of
ali \ands within the State which had not already been
granied away, e
It would hardly seem that more authority is needed
to establish the fact that the States did succeed to all
rights of the Crown in navigable waters and the soils
under them. Whether some elements of “external sover-
eignty” may have passed direct to the “United States”
as an entity separate from the individual States as claimed
by plaintiff, is a different question. Plaintiff makes this
assertion (Br. pp. 76-78) upon the authority of obiter dicta
in United States v. Curtiss-Wright Export Corporation,
299 U. S. 304 (1936).
ee
Even if it should be conceded that “external sover-
eignty” passed from the Crown over the heads of the
States to the “United States,” it would be immaterial in
this case because of the incontrovertible fact that the
vesting of external sovereignty in the central government,
from whatever source, was entirely unaccompanied by any
cession of territory. The authorities supporting this
proposition will be set forth infra, pp. 44 et seq.
However, in view of the fact that plaintiff places great
reliance on the Curtiss-Wright case, it should be said that
the dictum announced therein, that rights of a sovereign
character passed directly from the Crown over the heads
of the original States to the incipient Federal Union, is
not borne out by the Articles of Confederation or by the
contemporary decisions of this Court or the com-
ments of those who took part in the drafting of the Fed-
eral Constitution. Inasmuch as we believe the question
irrelevant in this case, we do not wish to break the thread
of our argument by discussing it at this point. We have,
however, cited in Appendix D (pp. 75-78) the author-
ities which we believe demonstrate that the dictum of
Mr. Justice Sutherland is contrary to historical fact and
legal authority.
There is no justification whatever for plaintiff’s asser-
tion (Br. pp. 75-77, 157, n. 23) that the decision of this
Court in Manchester v. Massachusetts, supra, is overruled
by the Curtiss-Wright case. The former dealt with the
rights of the State within its own boundaries; the latter
with powers of the Federal Government in a matter
wholly external to the States. (This matter is discussed
infra, pp. 62 et seq.)
=
C. Colonies and Original States Claimed and Exer-
cised Rights of Ownership in the Marginal Sea.
It is argued by plaintiff that the original States never
asserted any claims to the marginal sea prior to 1789.
(Br. p. 93.) This argument is baséd largely on the as-
sertion that no part of the marginal sea was expressly
included within the boundaries of the original States as
defined by their statutes or constitutions prior to the
Massachusetts Act of 1859.
Plaintiff has set forth in its brief (p. 93, et seg.) ex-
cerpts from the constitutions and statutes of a number of
the original States purporting to show that these States did
not include the marginal sea within their boundaries. We
will show that plaintiff’s treatment of them is wholly inade-
quate and the conclusions drawn therefrom are wholly un-
warranted.
It is, of course, true that the precise extent of the sea-
ward boundary of the States was not frequently called
into question in the early years of the Republic, but the
fact remains that in every instance where that question
has arisen, the States have asserted and the courts have
held that the territory of the original States extended at
least three miles from shore.
In reviewing maritime boundaries and assertions of
ownership of the adjacent sea by the colonies and the orig-
inal States, it is necessary to go back to the colonial char-
ters. To ascertain the significance of those charters as
placing the boundaries some distance in the adjacent sea,
there are four rules or principles of law that must be borne
-
in mind—to none of which have counsel for plaintiff given
any attention:
1. The marginal sea is an “‘appurtenance” of the ad-
joining land territory so that a conveyance of one neces-
sarily conveys the other.”
2. Charter grants and government cessions which are
bounded “to the ocean” or “along the ocean,” etc., im-
pliedly grant the adjoining maritime territory.”
3. A Crown grant of “prerogatives” and “royalties”
includes the Crown’s ownership of maritime territory or
adjacent sea.”
26“The dominion over navigable waters and property in the
soil under them, are so identified with the exercise of the
sovereign powers of government that a presumption —
their separation from sovereignty must be indulged,
It follows that, wherever there is a grant by a State
of the rights and title of government and sovereignty over a
specified territory, . . . the grant . . . carries with
it, as an incident, title to lands under navigable waters.”
Massachusetts v. New York, 271 U. S. 65 (1926).
To the same effect: United States v. Oregon, 295 U. S. 1, 14
(1935) ; Manchester v. Massachusetts, 139 U. S. 240, 256 (1891);
The Grisbadarna (quoted infra, p. 182); Scott, Hague Court Re-
ports (1916), p. 122; 4 A. J. I. L. 226; I Oppenheim, /nterna-
tional Law (5th Ed.), pp. 359, 383.
27Pope v. Blanton (D. C. Fla. 1935), 10 Fed. Supp. 18 (reversed
on another point 299 U. S. 521); Lipscomb v. Gialourakis (Fla.
1931), 133 So. 104; State v. Pollock (Wash., 1925), 239 Pac.
8; Massachusetts v. New York, 271 U. S. 65, 89 (1926); United
States v. Oregon, 295 U. S. 1, 14 (1935).
*8 “By those [colonial] charters . . . 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 po-
litical powers conferred . . . the lands under the navigable
waters passed to the grantee as one of the royalties incident
to the power of government; . . .” Shively v. Bowlby,
152 U. S. 1, 16 (1894).
= =
4. Even in the absence of a statute, a State’s boundary
and jurisdiction automatically include the marginal sea.”
With these four rules in mind, it is immediately appar-
ent from a study of the language of the colonial charter
grants that the “adjoining sea” was conveyed to the
colonies both expressly, by inclusion, and as well by legal
implication. When the original States succeeded to the
rights of the colonies, a number of those States claimed
and asserted their rights and titles directly under the early
charter grants.
The language in many of the colonial charters and
patents expressly conveyed the “adjoining seas.”” Further-
more, in each colonial charter and patent the ‘‘prerogatives”
and “royalties” of the Crown were expressly conveyed.
For example, the 1584 Raleigh grant conveyed the
“Royalties . . . as well marine as other within
the saide landes . . . or the seas thereunto adjoyn-
ing.”
The 1609 Virginia charter conveyed the
“Royalties . . . both by sea and land.”
2@ ~“Such a statute, however, would be only declaratory of the
law . . . the legislature by its act cannot extend the
jurisdiction of the state beyond the limits generally recognized
by law. The sovereignty over territorial waters exists even
though the state has never seen fit to define their limit. The
State of Maine has exercised this authority as to portions of
these waters. . . . There is no reason why it may not
assume control over all.” State v. Ruvido (Maine, 1940), 15
Atl. (2d) 293, 297.
To the same effect: People ex rel. Mexican Telegraph Co. v.
State Tax Commission (App. Div. 1927), 220 N. Y. S. 8 18;
People v. Reilly (1939), 14 N. Y. S. (2d) 589, 592; Dunham v.
Lamphere (1855), 69 Mass. (3 Gray) 268; Weston v. Sampson
(1851), 62 Mass. (8 Cush.) 346, 351-353; Bosarge v. State (Ala.
1929), 121 So. 427, cert. den. 280 U. S. 568.
PNG PERE BEE EOI PORES OES mh aint us PT QELS IRR SS RTOS BE whine
= =
The 1611 Virginia charter granted the soils, minerals, etc.
“both . . . upon the main, and also within said
islands and seas adjoining.”
Each of the other colonial charters and patents did like-
wise.*° (The details of these colonial charters, patents and
grants are set forth in Appendix E to this Brief, pages
79-85.)
The American courts have uniformly held that the col-
onial charters and patents vested the marginal seas in the
*°The 1620 Plymouth Company Charter granted the territory
“with all the seas . . . royalties . . . within the said
islands and seas adjoining.”
The 1629 Charter of the Massachusetts area expressly conveyed
“the seas thereunto adjoining” as well as the “royalties.”
The 1639 Maine grant expressly conveyed dll “prerogatives, roy-
alties . . . as well by the sea as by the land.”
The 1635 New Hampshire grant expressly conveyed “the seas
and islands” and the “royalties . . . within . . . ye
Islands & Seas Adjoyning.”
The 1662 Connecticut Charter granted all ‘Royalties
and Islands.”
The 1663 Rhode Island Charter reserved to British subjects the
right to fish on the Rhode Island coast “in any of the seas there-
unto adjoining.”
The 1663 Charter of the New York-New Jersey-Delaware area
expressly conveyed all islands, waters and other °
“Royalties . . . belonging and appertaining with theire
and every of theire appurtenances and all our estate
in and to the said lands and premises.”
The 1632 Maryland Charter expressly conveyed all ‘“Preroga-
tives, Royalties . . . as well by Sea as by Land.”
(Footnote continued on next page)
=— oe
colonies and their successor states. For example, this
Court in 1894 said that:
“Various charters granted by different monarchs
of the Stuart dynasty for large tracts of territory on
the Atlantic coast conveyed to the grantees both
the territory described and the powers of government,
including the property and dominion of lands under
tide waters.”
In addition, the constitutions and statutes of some of
the original States expressly declared their continuing
right and title derived from their respective Crown char-
ters or patents. For example, the 1776 North Carolina
Constitution declares that all the
“seas . . . agreeable to the said Charter of King
Charles, are the right and property of the people of
this state to be held by them in sovereignty.’”
Furthermore, there is a substantial body of colonial legis-
lation exercising rights of ownership and jurisdiction over
the adjoining seas. An illustration is found in the 1671
The 1663 Carolina Charter conveyed the “royalty of the sea
upon the coast.”
The 1691 Massachusetts Bay Charter conveyed all the “Roy-
alties . . . upon the Main and also within the Islands and
Seas adjoyning.”
The 1732 Georgia Charter conveyed the land area and also
“the islands on the sea” within twenty leagues of the coast as
well as all “gulfs and bays” and “royalties . . . in any sort
belonging or appertaining . . . and in as ample manner .
as we . . . have hitherto granted to any company.”
Shively v. Bowlby, 152 U. S. 1, 14 (1894); see also Martin v.
Waddell, 16 Peters 367, 412 (1842).
82The details of these constitutions and statutes are set forth in
Appendix E hereto,
eee SSP ORFS RE ORR ORIEN BE TEE NE a a
—_— a
Plymouth General Court enactment that all whales cast
up within the boundaries of a township or floating
“within a Mile of the Shoar”’
belong to the township.”
Immediately following the formation of the original
States, each of them commenced and continued to enact
legislation exercising rights of ownership and jurisdiction
in the marginal sea, one example being a 1798 Act of the
Rhode Island General Assembly prohibiting any person
from keeping more than two lobster pots
“upon or within three miles of any of the shores of
this state.’’**
Both in colonial legislation and in early State legislation,
county and town coastal boundaries in many of the States
were set forth, most of them bounded “by the sea” or
“along the sea” and also “including all islands” adjoining
the coast.*° When these county and town coastal boun-
daries are read in the light of the accepted rules of inter-
pretation mentioned above, it is readily seen that the boun-
daries thereof included the adjoining sea.
88Further examples of and citations to this body of colonial legis-
lation are set forth in Appendix E to this Brief.
Other examples of and citations to typical legislation of this
character are set forth in Appendix E to this Brief.
%5Citations to and details of these coastal county and town bound-
aries are set forth in Appendix E hereto.
a
In addition, there are three-mile statutes in every coastal
Original State.**
The inescapable conclusion from an examination of the
relevant historical facts is that the American colonies and
the original States from earliest times claimed and con-
tinued to assert their ownership of their adjoining sea,
ultimately in each instance defining the extent of the ad-
jacent sea at the three-mile limit.
As early as 1804 this Court recognized that a belt of
the sea within range of a cannon-shot was a part of the
“territory” of the United States. In Church v. Hubbart,
2 Cranch. 187, 234 (1804), Chief Justice Marshall, in
his monumental opinion, stated:
“The authority of a nation, within its own terri-
tory, is absolute and exclusive. The seizure of a ves-
sel, within the range of its cannon, by a foreign force,
is an invasion of that territory, and is a hostile act
which it is its duty to repel.””*”
36Five of the eleven coastal Original States have specific boundary
statutes extending into the sea one marine league or three miles
from the coast, being Massachusetts (1859), Rhode Island (1872),
New Hampshire (1901), New Jersey (1906), Georgia (1916),
(and Maine (1916) might be added, as it was a part of Massa-
chusetts until 1820).
All the other coastal Original States have specific 3-mile statutes
regulating fishery rights within three miles of their respective coasts,
being North Carolina (1911), New York (1925), Delaware (1931),
Virginia (1936), South Carolina (1924), and Maryland (1945). ~
The details of and citations to these three-mile statutes are set
forth in Appendix E hereto.
37See other authorities under section on Development of Mar-
ginal Sea Doctrine, infra, pp. 174 et seq.
PELE POTSLE LIEIS, EE F EE
ORAL I EAE BORE NTP
ie al RES oo aie
OOS
3
err mare LN SEETR
— =
In this statement the Court was not laying down any
new law or annexing any territory. It was simply declar-
ing the then well accepted principle that a belt of the sea
was part of the territory of the littoral state.
At the time of the Declaration of Independence
“There was no territory within the United States
that was claimed in any other right than that of some
of the confederated states; . . .”™
When the Court said in 1804 that a belt of the sea was
a part of the territory of the United States, it follows
that it was also part of the territory of the original States.
No other conclusion is possible unless it be assumed that
after its creation in 1789 the United States annexed a
belt of territory below low-water mark which was not
within the boundaries of the original States. But no
such annexation could have been made either by court de-
cisions or by declarations of the President or Secretary of
State. Territory cannot be annexed to and made part of
the United States except by Act of Congress. Congress
never has passed such an act. This point is fully dis-
cussed and authorities set forth infra, pp. 188-191.
It is, therefore, definitely established both by the acts
of the States themselves and by the decisions of this Court
that the territorial jurisdiction of the original States ex-
tended at least a cannon-shot from their shores.
Harcourt v. Gaillard, 12 Wheat. 523 (1827).
~
D. The Original States Never Ceded to the Federal
Government the Lands Beneath Navigable
Waters Within Their Respective Boundaries.
1. Confederated States Collectively Owned No Land.
When the Confederation was formed it owned no
land either within or without the jurisdiction or terri-
tory of the thirteen States. Indeed, the Articles of Con-
federation (Art. IX) specifically provided that
“. . , mo state shall be deprived of territory for
the benefit of the United States.”
Commencing in 1781, various States executed deeds
conveying to the “congress of the Confederation” large
areas of land known as ‘The Northwest Territory.”” It
is important to note that the original deeds of cession
3%®Appendix to Answer, pp. 59-64.
As to the Appendix to Answer counsel for the United States
have failed to mention what is perhaps the most important part of
the stipulation entered into between plaintiff and defendant result-
ing from the pre-trial conference mentioned in note 2 on pp. 5-6
of their Brief and approved by Court order. This omitted part
reads as follows:
“Provided, further, that the Court may consider all matters
and facts alleged in said Appendix to the extent permissible
by judicial notice, with opportunity on the part of the plain-
tiff to object at any stage of the litigation to the correctness
or relevancy of any of the matters and facts set forth in said
Appendix, and with further opportunity on the part of both
parties to prove such facts or any other facts which the Court
may determine to be material and not susceptible of judicial
notice.”
It will be observed that counsel for plaintiff have in this brief
discussed substantial portions of the facts alleged in the Appendix
to Answer and have not objected to the relevance of any of the
facts alleged in the Answer. The Appendix to Answer therefore
constitutes the factual basis upon which the case is now beins
presented to the Supreme Court.
—44—
conveyed “title, ownership and jurisdiction” over the areas
described, thus indicating that the original States acted
upon the assumption that in the first instance ownership
was united with jurisdiction, a basic principle uniformly
upheld by this Court (infra, pp. 50 et seq.)
These deeds of cession were “for the benefit of future
states.” With this end in view the Continental Congress
enacted the Resolutions of 1784 and 1787 [App. to Ans.
pp. 62-63] providing for the government of the North-
west Territory and for the admission of new States “on
an equal footing with the original States,” a clause subse-
quently to be included in the Act of Admission of every
new State. Indeed, this clause expresses one of the basic
principles of the Federal Union—a principle described by
this Court as “The constitutional principle of the equality
of states.”
2. The Constitution Contained No Cession of Territory.
It may be safely said that at the time of the
adoption of the Constitution the framers were of the
opinion that the Federal Government owned no land within
the jurisdiction and territory of any State. If title to
lands had passed directly from the Crown to the Union in
1776, the framers of the Constitution were not aware of
United States v. Utah, 283 U. S. 64, 75 (1931).
LL AEP TERPSTRA NOTES OE ANE BR ARE I ESAT EEE EE STONE RET
~~
it. They viewed the United States as being composed
solely of the territory of the original thirteen States.
“The shores of navigable waters, and the soils
under them, were not granted by the Constitution
to the United States, but were reserved to the States
respectively”
Pollard v. Hagan, 3 How. 212, 230 (1845). County
of St. Clair v. Lovingston, 90 U. S. 46, 64 (1874).
United States v. Bevans, 3 Wheat. 336, 338 (1818).
(See further discussion on this point infra, pp. 51 et seq.)
The framers of the Constitution of course realized that
the Federal Government would need to own land within
the territory of the States. It was because of this
. fact that they found it necessary to provide for the acquisi-
tion of territory in Article I, Section 8, Clause 17 of the
Constitution, which reads:
“The Congress shall have power
“To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding ten
Miles square), as may, by Cession of particular
States, and the Acceptance of Congress, became the
Seat of the Government of the United States, and to
exercise like Authority over all Places purchased by
the Consent of the Legislature of the State in which
the Same shall be, for the Erection of Forts, Maga-
zines, Arsenals, Dockyards, and other needful Build-
ings ;
es 2 remanent RE ROCIO aR SRT
ae
So far as we can discover, there are only four possible
ways by which the Federal Government can acquire land
within a state. Two of these are mentioned in Clause
17, 4. @.:
(1) Cession by the States of a district 10 miles square
as the seat of Government;
(2) Purchase of land by the consent of the State in
which the same shall be.
In addition to these, the courts have recognized that the
Federal Government has implied power to acquire land
within a State in two other ways, namely:
(3) Purchase (including condemnation) from individ-
ual owners without the consent of the State; and
(4) In case of new States created out of territory held
by the United States, by reservation in the Acts
of Admission of specific land not incident to State
sovereignty.
That these are the only methods by which the Federal
Government can acquire land within a State is borne out
by several decisions which discuss and interpret Clause
+ Popa
It is obvious that the Federal Government did not ac-
quire any lands beneath the three-mile belt of the original
States in any of the ways above mentioned.
40Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525 (1885):
Williams v. Arlington Hotel Co., 22 F. (2d) 669 (C. C. A. 8,
1927).
within
E. Original States Own All Lands Within Their Re-
spective Jurisdictions (Not Previously Granted)
Including All Lands Beneath Navigable Waters.
1. Original and Ultimate Ownership Is in the States.
The ownership by the sovereign of all land (not previ-
ously granted) within its jurisdiction is one of those prin-
ciples of law so elementary that it may be easily over-
looked. Yet it is fundamental in this case. The original
States adopted the English common law as their law. The
common law rule is stated in Bacon’s Abridgement :*
“The king by our law is universal occupant, and all
property is presumed to have been originally in the
crown =
The principle is expressed by Hall,’ as follows:
“*The title of the King of England to the land or
soil aqua maris cooperata, is similar to his ancient
title to all the terra firma in his dominions, as the
first and original proprietor and lord paramount. It
is a fundamental principle of our laws of property in
land, that all the lands in the realm belonged origi-
nally to the King; . . .”
The principle was applied to submerged lands in the
English case of Benest v. Pipon® in which the Privy
Council stated:
*1Edition by Bouvier (Philadelphia 1869), Vol. 8, p. 13.
“Essay on the Rights of the Crown in the Sea-shore of the
Realm, reprinted in Moore, supra, pp. 670-671.
43] Knapp 60, 12 Eng. Rep. 243 (1829).
fee ison imeem nen BN SLY
— me
“What never has had an individual owner belongs to
the sovereign. within whose territory it is situated
”
This Court recognized that principle in the case of
Johnson v. McIntosh, 8 Wheat. 543, 595 (1823), where
it is said:
“According to the theory of the British constitu-
tion, all vacant lands are vested in the crown,
this principle was as fully recognized in America as
in the islands of Great Britain.”
Again, in Georgia v. Stanton, 6 Wall. 50, 73 (1867),
this Court makes the following succinct statement:
“The right of property was undoubtedly involved;
as in this country, where feudal tenures are abolished,
in cases of escheat, the State takes the place of the
feudal lord, by virtue of its sovereignty, as the
original and ultimate proprietor of all the lands
within its jurisdiction,”
The decision in Georgia v. Stanton follows very closely
the statement in Kent’s Commentaries :**
“cc
as the feudal tenures do not exist in this
country, there are no private persons who succeed
to the inheritance by escheat; and the state steps in
the place of the feudal lord, by virtue of its sov-
ereignty, as the original and ultimate proprictor of
all the lands within its jurisdiction.”
*#Vol. 4, p. 470 (11th ed. edited by Oliver Wendell Holmes).
-—
This principle is embodied in the constitutions and stat-
_
utes of many of our States. For example, the New
York Constitution declares that
“The People of this State in their right of sovereignty
are deemed to possess the original and ultimate prop-
erty in and to all lands within the jurisdiction of the
es + x:
This is quoted in People v. Trinity Church, 22 N. Y. 44,
46 (1860). In commenting upon this provision the New
York Court of Appeals said:
‘“. . . The People ‘are deemed, . . . to pos-
sess the original, and ultimate property, &c; in other
words, all private titles are held from them as the
political sovereignty, as in England ali lands are held
under the Crown in the same sense.”
The court pointed out that this constitutional provision
was not a new enactment but
STRIATE TAN I Ng
“simply declaratory of these principles as fixed and
unalterable rules of public law.” (p. 47.)
Se
eS a
It is important to bear in mind that the court is talking
about the People of the State. The fundamental mean-
ing of this principle is stated by the court as follows (p.
47):
sete NV SLT EO
“cc
BAP NAD MOLD
By .whatever name we may call the
highest estate of an individual known to our laws,
there is a theoretical title in the State of a still |
higher nature, to which the right of possession and _
enjoyment become annexed on the failure of the in- —
heritance. This is the ‘original and ultimate prop-
erty spoken of in the Constitution.”
ARETE
‘5Italics are the court’s.
-_ we
2. Jurisdiction, Territory and Ownership Are Coextensive.
The application of the principle above set forth is espe-
cially clear in-the case of the original thirteen States be-
cause these States existed before the Federal Government
was formed. It is, of course, true that large areas of land
within these States had been granted by the prior sov-
ereign and remained in the possession of their owners
under the new sovereign. But no questions are raised as
to the Original States such as those raised in connection
with the Acts admitting new States to the Union. When
the original States became independent there was no res-
ervation to anyone of the primary disposal of the public
lands. Persons holding land under valid grants continued
to hold such land, but all other lands necessarily vested in
the new sovereign whose ownership was, therefore (except
as to such prior grants) fully co-extensive with its terri-
torial jurisdiction. Since it has been demonstrated that the
territorial jursdiction of the original States included a belt
of the sea, it follows indubitably that the original States
must have owned the bed of this belt of marginal sea.
And since, as we have shown, they did not cede it to the
Federal Government, they must continue to own it.
The principles we have been discussing, namely, (1)
that the ownership of the original States in the bed of
the sea was and is co-extensive with their territorial juris-
dictions, and (2) that such lands were not ceded to the
Federal Government, have been expressly stated by this
Court in many decisions and are implicit in the rulings of
PEE AGING REDE EY EI oe ny woe SET PASTE R haat Peery EE
=
the Court in all its decisions dealing with the ownership of
lands beneath navigable waters.
We propose now to take up a series of decisions illus-
trative of the application of both these principles by this
Court.
(a) New York v. Connecticut, 4 DALL. 1 (1799).
This case involved title to a strip of land claimed by
both States, and both States had made grants to individ-
uals within the disputed territory. In other words, the land
had, in the first instance, belonged either to one or the
other of the two States. The attorney general for New
York argued that the case involved not only the question
of the jurisdiction of the respective states but
“6
it involves the right of soil, which, in re-
lation to a great part of New York, results from the
right of jurisdiction; so that, deciding the latter, is
virtually a decision of the former.” (p. 4.)
There was no final decision in the case but the reported
decision quotes Justice Patterson as stating in the course
of the argument that
“Generally speaking, the proposition is true, that
as to states, jurisdiction and the right of soil go
together.” (p. 4, note (b).)
(b) Unitep States v. BevAns, 3 WHEAT. 336 (1818).
This case involved the jurisdiction of Massachusetts
to prosecute for the crime of murder committed on a ship
in Boston Harbor some distance from the land. The de-
cision is of vital importance as showing the relationship
2 ESLER a ate
pon ee
between jurisdiction, territory and ownership. The court,
by Chief Justice Marshall, held (pp. 386-387) :
“ce
What then is the extent of jurisdiction
which a state possesses? We answer, without hesi-
tation, the jurisdiction of a state is co-extensive with
its territory; co-extensive with its legislative power.
The place described is unquestionably within the
original territory of Massachusetts. It is, then, with-
in the jurisdiction of Massachusetts, unless that
jurisdiction has been ceded to the United States.”
The argument made in the Bevans case was basically
the same as that advanced by plaintiff in the present case,
namely, that there is something inherent in the distri-
bution of powers under the Constitution between the
States and the Federal Government (Br. pp. 72 et seq.)
which gives the Federal Government title to the lands be-
neath navigable waters. In the Bevans case the argument
was that the vesting of admiralty and maritime jurisdiction
in the Federal Government was an actual cession of the
waters of the State which would have given the Federal
Government exclusive jurisdiction over the offense
charged. In response to this Chief Justice Marshall said
(p. 388):
“Can the cession of all cases of admiralty and
maritime jurisdiction be construed into a cession of
the waters on which those cases may arise? This is
a question on which the court is incapable of feeling
a doubt. The article which describes the judicial pow-
er of the United States 1s not intended for the ces-
sion of territory, or of general jurisdiction. It is
obviously designed for other purposes. It is in the
‘Ss
a
bai.)
Bsr
a
8th section of the 2d article, we are to look for ces-
sions of territory and of exclusive jurisdiction. .. . It
is observable, that the power of exclusive legislation
(which is jurisdiction) is united with cession of
territory, which 1s to be the free act of the states.”
It is clear from the above quotation that the owner-
ship of territory and general jurisdiction of the State
were, in the first instance, co-extensive.
The reason Chief Justice Marshall said that the consti-
tutional grant of admiralty and maritime jurisdiction to the
Federal Government was not a cession of territory was to
negative the claim that the United States had general po-
litical jurisdiction over the area in question. The holding
that the territory had not been ceded to the United States
was, therefore, not dictum, but was necessary to the deci-
sion of the case. If Boston Harbor belonged to the United
States, it would have had jurisdiction. The Court had to
determine that there was no ownership in the United
States in order to determine that the United States had
no jurisdiction.
It is of course true that, in the words of the decision,
the offense in the Bevans case took place within a harbor.
In view of the fact that plaintiff in this case does not
concede that Massachusetts Bay is a “true bay” (Br.
p. 254), plaintiff is certainly not in a position to say that
the effect of this decision is limited to “inland waters.”
However, for the purpose of this discussion we may as-
sume that the offense in the Bevans case was committed
within a “true” harbor. The fact remains that the
6The reference to the 2d article is obviously a textual error;
the article referred to is the Ist article.
p
F
&
:
ec
i
Be
=
decision was not predicated upon any distinction be-
tween inland waters and marginal sea. The essence
of the decision is that constitutional grants of power
involve no cession of territory. If this principle is ap-
plicable in Boston Harbor it must be applicable anywhere
within the State’s territorial jurisdiction. And if this
principle is applicable to grants of admiralty and maritime
jurisdiction, it must also be applicable to grants to the
Federal Government of other powers, whether external
or internal in character. Furthermore, when Chief Justice
Marshall said that there had been no cession of territory
by the State, he must have believed that the State could
have made a cession. If the State had no title to cede, the
statement that it had made no cession would have been
meaningless. Implicit in this decision is the basic proposi-
tion above stated, that the State of Massachusetts owned
all the lands within its territorial jurisdiction not previously
granted to other parties.
(c) CorFIELD v. CorYELL, 6 Fep Cas. No. 3,230, p. 546
(1823).
The principle thus announced by Chief Justice Marshall
has been followed with respect to other powers vested in
the Federal Government by the Constitution. An early
decision on this point is Corfield v. Coryell, 6 Fed. Cas.
No. 3,230, p. 546. This case involved the validity of a
statute of New Jersey regulating the taking of oysters
within the waters of the state.
Again, in this case, argument similar to that made by
plaintiff here was advanced, namely, that constitutional
grants of power to Congress to regulate interstate and
foreign commerce gave the Federal Government para-
mount power over the waters within the State of New
RE IRS AE NEEL LEI GSE OE ETI LOT LR IEE ROPER MD ee A rena
eel
. >
—55—
Jersey. It was in regard to this point that Mr. Justice
Washington said (p. 551):
“ . . The grant to congress to regulate com-
merce on the navigable waters belonging to the several
states, renders those waters the public property of the
United States, for all the purposes of navigation and
commercial intercourse; subject only to congressional
regulation. But this grant contains no cession, either
express or implied, of territory, or of public or
private property.”
In this case, as in the Bevans case, the ground of the
decision was not that the act was committed in a bay,
but that it was committed within the territory of the State
and that there had been no cession of that territory to
the Federal Government.
(d) RuopE Istanp v. MassacHuseTts, 12 Pet. 657
(1838).
An important application of the principles of the
Bevans and Corfield cases was made by this Court in the
case of Rhode Island v. Massachusetts, which appears in
the Supreme Court reports eight times. In the third
reported decision, 12 Pet. 657, 733 (1838), the argument
was advanced that ownership of land by the State de-
pended on whether or not the land was within the State’s
jurisdiction which, in turn, depended on the location of
*"Followed with approval by this Court on several occasions:
Smith v. Maryland, 18 How. 71, 74 (1855) ; Manchester v. Massa-
chusetts, 139 U. S. 240, 262 (1891).
*8In Corfield v. Coryell (p. 546) the Attorney General of New
Jersey asserted that the “territorial jurisdiction” of New Jersey ex-
tended “‘on the sea, to at least a marine league,” and the Act under
consideration applied to all the “waters of the state.”
eet
eee IS RRL PEA ee ELE NOR OPT LEE OREN NN eI NE TN
we
~~
the State’s boundary. On this question the court said,
relating to the disputed boundary line (pp. 733-734) :
“The locality of that line is matter of fact, and
when ascertained, separates the territory of one from
the other; for neither state can have any right be-
yond its territorial boundary. It follows, that when
a place is within the boundary, it is a part of the
territory of a state; title, jurisdiction and sovereignty
are inseparable incidents, and remain so, till the state
makes some cession. The plain language of this
court in the United States v. Bevans, 3 Wheat. 386
et seqg., saves the necessity of any reasoning on this
subject * * * Title, jurisdiction, sovereignty, are,
therefore, dependent questions, necessarily settled,
when boundary is ascertained, which, being the line
of territory, is the line of power over it; . . .”
This decision demonstrates that the principles of the
Bevans case govern the question of ownership as well as
jurisdiction. Thus, the ownership of lands by a State (ex-
cept as they have been granted out) is co-extensive with
the State’s jurisdiction.
(e) Martin v. WADDELL, 16 Pet. 366 (1842).
In this case the Court explicitly applied the principle
under discussion, that all lands within the jurisdiction of
the State not previously granted belong to the State.
“'. . According to the theory of the British
constitution, all vacant lands are vested in the crown,
as representing the nation, and the exclusive power to
grant them is admitted to reside in the crown, as a
branch of the royal prerogative. It has been already
shown, that this principle was as fully recognized in
America as in the island of Great Britain.” (p. 410.)
ER RIE SASTRY ROR _
~ =
Upon this fundamental ground the Court held that the
people of the State of New Jersey (p. 410)“
*. . hold the absolute right to all their navigable
waters, and the soils under them, for their own com-
mon use, subject only to the rights since surrendered
by the constitution to the general government.”
(f{) Pottarp’s Lessee v. Hacan, 3 How. 212 (1845).
We shall discuss this case later in connection with the
discussion of the effect of the reservation in the Acts ad-
mitting new States to the Union of the “primary disposal
of the public lands.” At this point we desire to refer only
to the fact that the decision in this case is predicated on
the same fundamental principle that ownership by the
State is co-extensive with its jurisdiction. On this point
the Court said (p. 228):
“Alabama, is, therefore entitled to the sovereignty
and jurisdiction over all the territory within her
limits, =
Sovereignty and jurisdiction were held to include owner-
ship and upon this principle the Court held, on the au-
thority of Martin v. Waddell (p. 229) that
sé
.
to Alabama belong the navigable waters,
”
and soils under them
“This case involved land in Raritan Bay, but it is doubtful
whether Raritan Bay is a “true bay” as that term is used by plain-
tiff. However, assuming it to be a “true bay,” the decision was
not predicated on that fact but on the fundamental fact that the
land was under navigable waters within the territory of the State.
= DE ETE EE, EEE LS FOI Ee PEELE, OPTI ney NT Oe PRIA ae CR EE Lae
=—
(g) DunHAm v. LAMPHERE, 69 Mass. (3 Gray) 268
(1855).
This case involved the validity of a Massachusetts
statute regulating the taking of fish in “the open sea,”
“within one mile of Gravel Island.” The first question
was whether the act took place within the territory of the
State. On this question the court said, by Shaw, Chief
Justice (p. 269):
“Being within a mile of the shore puts it beyond
doubt that it was within the territorial limits of the
State, although there might in many cases be some
difficulty in ascertaining precisely where that limit is.
We suppose the rule to be, that these limits extend
a marine league, or three geographical miles, from
the shore; er
The court then considered the question whether
“ . , the right both of property and dominion
over the sea-shore, within the territorial limits of a
sovereign state, and all its incidents—navigation,
fishing and all other incidental benefitt— . . . be-
long properly to the general government or remain
with the state government” (pp. 271-2).
The court answered this question unequivocally by
holding that dominion and control over these waters, when
relinquished by the government of Great Britain, did
“fully and absolutely vest in the several states. This
had been definitely settled by the supreme court of
the United States.” (Citing Pollard v. Hagan.)
It is vitally important to note that here the court ap-
plied the principle that ownership is co-extensive with jur-
5°Decided four years before Massachusetts statute fixing seaward
boundary of Massachusetts at 3 miles from shore.
any 34
Raw)
=
isdiction in lands beneath the open sea within the three-
mile belt, basing its decision on the authority of Pollard
v. Hagan.
The question at once arises: Why did the court cite
Pollard v. Hagan, which is a case involving only the ques-
tion of ownership, as authority in a case involving only
the question of jurisdiction? And the answer is that jur-
isdiction and ownership by a state of land within its.
boundaries are based on the same fundamental principle.
If the state owned the property it had jurisdiction. Pollard
v. Hagan was cited to show that the state did own the area
in question.” But the converse is equally true. If the
state has jurisdiction it likewise has ownership (except
as it has been granted away.) And since the state has
jurisdiction to the limits of its territorial boundaries, so
it has ownership to the same limits. The inland waters
and the high and low tides are false quantities in the
problem. The controlling factors are (1) that the land
in question is within the boundaries of the state, and (2)
such land has not been granted or ceded to the Federal
Government.
(h) COMMONWEALTH OF MASSACHUSETTS Vv. MANCHES-
TER, 152 Mass. 230, 9 L. R. A. 236 (1890).
This case involved the validity of a statute regulating
the use of nets or seines for taking fish in the waters of
"The reference to Pollard v. Hagan, shows that the Massachu-
sets court did not consider that the principle of Pollard v. Hagan
was limited to “inland waters.”
521t must be borne in mind that we are now considering the own-
ership of lands beneath the marginal sea within the original States,
so no question is involved of the effect of a reservation of lands
over which the State might have jurisdiction without ownership.
The effect of such a reservation will be considered in connection
with the Act of Admission of California and other new States.
NECA NR YY NR RE RL a te
nls a a el hak ee
—6o—
Buzzard’s Bay.” The decision was rendered in 1890 by a
unanimous court, of which Mr. Justice Holmes was then
a member, the opinion being written by Chief Justice
Field.
The court was asked to overrule Dunham v. Lamphere
but refused to do so. The principle of Dunham v. Lam-
phere was followed as the controlling authority.
It is important to note that the arguments of defendant
in the Manchester case were strikingly similar to those of
plaintiff in the present case, both as to the rights derived
from “the position of the national sovereign” and also as
to the superior right of the Federal Government to control
the fisheries. Plaintiff in the present case asserts (Br. p.
87) that
“. . the exlusive right to take the fish found
in the waters bordering the littoral nation is, for its
full enjoyment, largely dependent upon the powers of
the United States.”
This is one phase of plaintiff’s argument that the United
States, by performing its constitutional duties, can acquire
rights for itself as against the States. The argument in
the Manchester case was essentially the same. Manches-
ter’s position and the court’s answer to it are set forth in
the following quotation (9 L. R. A. 241):
“But it is argued that if the fisheries of Buzzard’s
Bay are within the control of either the State of Mas-
sachusetts or of the United States, this control by the
Constitution of the United States is exclusively with
the United States. The question is therefore whether
583We may assume, for the purpose of this discussion, that Buz-
zard’s Bay would be classed as “inland water” although it was
strenuously ‘argued that Buzzard’s Bay was, in a legal sense, “open
sea.”
ae es
the Statutes of Massachusetts which have been cited
are repugnant to the Constitution and laws of the
United States. There is no belt of land under the sea
adjacent to the coast which is the property of the
United States and not the property of the States.”
Here we have a definite and unqualified statement by a
Court comprised of such able jurists as Chief Justice Shaw
and Justice Holmes that the United States owns no belt
of land adjacent to the coast of any State. It is difficult to
believe that this Court did not know what it was talking
about when it made this statement. Furthermore, this
statement was not obiter dictum, for the same reasons that
Chief Justice Marshall’s statements regarding the cession
of territory in United States v. Bevans were not obiter
dicta. The statement was made as an answer to Man-
chester’s contention that the control of fisheries was vested
in the Federal Government by the Constitution. There-
fore, although the Manchester case is a jurisdictional case,
the court had to find that the United States did not own
the land under the sea in order to negative the possibility
that jurisdiction was in the United States.
The fact that the case of Dunham v. Lamphere involved
the open sea, whereas the Manchester case involved Buz-
zard’s Bay, is vitally important when it is seen that both
cases are decided upon the same principle, namely, that
the offense was committed within “the territorial limits
of the State, ” The ruling which pertained to the
open sea was used as authority for the case which arose
in Buzzard’s Bay. It would be hard to find stronger
evidence of the proposition that there are no “pivotal’’ or
“crucial” distinctions between these waters by reason of
‘4Plaintiff’s Br. pp. 9, 66.
reo ote eeer ranean Sad
—
which one is vested in the Federal Government and the
other in the State, as asserted by plaintiff in this case.
(i) MANCHESTER v. MassacHuseETTs, 139 U. S. 240
(1891).
In the above case this Court affirmed in all particulars
the decision of the Massachusetts court just discussed.
Again, the striking similarity between the contention of
Manchester and those of plaintiff in the present case will
be observed. The Court sums up the arguments for Man-
chester in the first paragraph of the decision, as follows
(p. 254):
“The principal contentions in this court on the
part of the defendant are that, . . . when she [ Massa-
chusetts] became one of the United States, she sur-
rendered to the general government her right of con-
trol over the fisheries of the ocean, and transferred
to it her rights over the waters adjacent to the coast
and a part of the ocean; that, as by the Constitution,
article 3, section 2, the judicial power of the United
States is made to extend to all cases of admiralty and
maritime jurisdiction, it is consistent only with that
view that the rights in respect of fisheries should be
regarded as national rights, and be enforced only in
national courts; that the proprietary right of Massa-
chusetts is confined to the body of the county; that the
offense committed by the defendant was committed
outside of that territory, in a locality where legisla-
tive control did not rest upon title in the soil and
waters, but upon rights of sovereignty inseparably
connected with national character si
Further to see the significance of these contentions, it
is important to quote from the brief of plaintiff in error,
SePeT Sean ae ore PRESET ARES Oe OO OT ha OSs Es ORS wee
a
apparently written by Joseph H. Choate. From this brief
we quote the following (pp. 8-9):
“Our argument is that the territory of Massachu-
setts was defined under the law of England, and that
when she adopted the Constitution her domain was
limited, as far as proprietary title is concerned, by
the body of the county, in accordance with the estab-
lished principles of that law.
“It was without this territory that the offense with
which Manchester is charged took place, in a locality
where legislative control did not rest upon title in the
soil and waters, but upon rights of sovereignty in-
separably connected with national character . . .”
This Court rejected the entire argument that Federal
control rested upon rights “inseparably connected with
national character’ and applied the principle of United
States v. Bevans and other decisions which hold that the
vesting of sovereign powers in the Federal Government
did not constitute a cession of territory (139 U. S. pp.
260, 261, 263, 264).
In support of the argument that Massachusetts had no
jurisdiction below low-water mark, Mr. Choate also relied
on the case of Queen v. Keyn. As we have stated, (supra,
pp. 28-29), this Court in the Manchester case held the Keyn
case to be wholly inapplicable.
Two important cases relied upon by the Court in the
Manchester case were Smith v. Maryland and McCready
v. Virgima. The following brief quotations from these
cases show that in both of them the Court applied the
principle that the original States own the beds of all
navigable waters within their limits.
=
(j) SmitH v. Marytanp, 18 How. 71, 74 (1855):
“Whatever: soil below low-water mark 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 gov-
erned its territory before the declaration of independ-
dence. Pollard’s Lessee v. Hagan, 3 How. 212; Mar-
tin v. Waddell, 16 Pet. 367; Den v. The Jersey Co.,
15 How. 426.
“But this soil is held by the State, not only sub-
ject to, but in some sense irt trust for, the enjoyment
of certain public rights, among which is the common
liberty of taking fish, as well shellfish as floating
fish. Martin v. Waddell; Den v. Jersey Co.; Corfield
v. Coryell, 4 Wash. R. 376; Fleet v. Hagemen, 14
Wend. 42; Arnold v. Munday, 1 Halst. 1; Parker v.
Cutler Milldam Corporation, 2 Appleton (Me.) R.
353; Peck v. Lockwood, 5 Day. 22; Weston et al.
v. Sampson, et al., 8 Cush. 347. The State holds
the propriety of this soil for the conservation of the
public rights of fishery thereon, and may regulate the
modes of that enjoyment so as to prevent the destruc-
tion of the fishery. In other words, it may forbid all
such acts as would render the public right less valu-
able, or destroy it altogether. This power results
from the ownership of the soil, from the legislative
jurisdiction of the State over it, and from its duty
to preserve unimpaired those public uses for which
the soil is held. Vattel, b. 1, c. 20, s. 246; Corfield
v. Coryell, 4 Wash. R. 376. It has been exercised by
eer eee nS eae oo eS re aa se _ ‘
BS att, = TENE RR LEE ES NARS CE NE EBON SAE EMRE ATMS Se ag: .
S en ee RRR Se as Se ee Oe ag ae
seilllie
many of the States. See Angell on Tide Waters,
145, 156, 170, 192-3.”
(k) McCreapy v. Vircinia, 94 U. S. 391, 394 (1876):
“The principle has long been settled in this court,
that each State owns the beds of all tide-waters with-
in its jurisdiction, unless they have been granted away.
Pollard’s Lessee v. Hagan, 3 How. 212; Smith v.
Maryland, 18 How. 74; Mumford v. Wardwell, 6
Wall. 436; Weber v. Harbor Commissioners, 18 id.
66. In like manner, the States own the tide-waters
themselves, and the fish in them, so far as they are
capable of ownership while running. For this pur-
pose the State represents its people, and the owner-
ship is that of the people in their united sovereignty.
Martin v. Waddell, 16 Pet. 410.”
We submit that plaintiff’s contention that the original
States did not own lands within the three-mile belt at the
time of the formation of the United States has been con-
clusively answered by the foregoing authorities. They
also furnish a conclusive answer to plaintiff’s argument
“that ownership of the submerged lands . . . if an
attribute of sovereignty, is an attribute of national rather
9955
than local sovereignty. This argument, as we pointed
out, was rejected by this Court in United States v. Bevans,
Manchester v. Massachusetts, and other cases previously
discussed.
55Plaintiff’s Br. pp. 9-19; 72-73; 89.
LIES EMRE EIN TS RTO EL LY EIEIO NLA NI
a
F. Lands Beneath Navigable Waters Are Held by
the States by Virtue of, and as an Incident to,
State Sovereignty.
We pass now to the alternative argument of plaintiff
(Br. p. 143, et seg.) that “ownership of the submerged
lands is not an attribute of sovereignty at all within the
meaning of the equal footing clause.”
It is of course true that in the broadest sense every act
of the sovereign is done by virtue of its sovereignty and
all property which the sovereign possesses is held by it
as sovereign, or, in other words, as the governing power.
When it is said that a State holds some property in a
proprietary capacity and other property as an attribute of
sovereignty, it is a convenient way of saying that the
legal results (1. e., obligations and duties) which flow from
the ownership of one type of property are different from
the legal results which flow from ownership of the other
type of property. The real question is whether such dif-
ferences do exist and whether they are based on valid
and substantial grounds. If so, it is immaterial whether we
describe one type of legal result by calling it an attribute
of sovereignty and the other by calling it proprietary, al-
though this has been the practice of the courts from time
immemorial, as we shall show.
There are many instances in which the governmental
ownership of dry land does not involve any treatment
that is substantially different from that required for simi-
lar land held by private individuals, and hence it is said
that the sovereign owns such land “as a proprietor.” But
the ownership of navigable waters, because of their nature
as highways of commerce and as the source of the com-
mon right of fishery, calls for the exercise of govern-
PRET OR FY TEE ENO Me AL RE PO A IE IS AO EES BI IE RT
ae
mental powers and duties which are different both in kind
and degree from those powers which need to be exercised
in relation to dry land. It was this doctrine which gave
rise to the terminology jus privatum and jus publicum,
used by Lord Hale [ Appendix C, pp. 45-46], which simply
meant that although the King owned the land as a proprie-
tor, he held it subject to the public trust and that the ad-
ministration of this trust was a necessary governmental
duty or function.
This principle that lands beneath navigable waters are
subject to these common rights of fishery and navigation
has been consistently applied by the English courts from
the earliest times to the present, as we show in the out-
line of the English decisions [see App. C, pp. 39-65].
The same principle of course applied when the original
States succeeded to the rights of the Crown. They suc-
ceeded to the Crown’s proprietary right in the bed of the
sea but they also assumed, as sovereigns, the governmental
function of protecting and regulating the public trust,
that is, of protecting and regulating the rights of the pub-
lic in the use of the navigable waters for fishery and com-
merce. That is the factual and historical basis of the
rule that the ownership of navigable waters vests in the
State by virtue of its sovereignty.
The cases already cited show that the States’ own-
ership of lands beneath navigable waters is in the capacity
of sovereign in a sense different from its ownership of
dry land. This was stated in Martin v. Waddell, Pollard
v. Hagan, and, indeed, in all the cases cited supra, pp.
51-65. No better statement of the principle can be
found than that in the opinion of this Court by Mr. Jus-
Py Say —_ . .
Bee EES PRE PEL TLR RIP ERIN SPR OI ee
—
tice Stone in Massachusetts v. New York, 271 U. S. 65,
89 (1926) :
“ec
The dominion over navigable waters, and
property in the soil under them, are so identified with
the exercise of the sovereign powers of government
that a presumption against their separation from
sovereignty must be indulged, o
The same statement appears in United States v. Ore-
gon, 295 U. S. 1, 14 (1935).
It is important to note that in these decisions the Court
held that the dominion over navigable waters was identi-
fied with the sovereign powers of state government, not
of the Federal Government. Yet plaintiff cites these very
cases as holding that:
“The presumption would be against any intention
of Congress to sever the title from the sovereignty
of the United States to which it was annexed. Cf.
Massachusetts v. New York, 271 U. S. 65, 89; United
States v. Oregon, 295 U. S. 1, 14.” (Br. p. 73.)
What this Court holds to be a presumption against the
separation of dominion over lands under navigable waters
from state sovereignty, plaintiff advances 2s an argument
against the separation of such lands from the sovereignty
of the United States.
The Massachusetts case is also of importance because
it deals with the bed of Lake Ontario, the center of which
constitutes the international boundary between the United
States and Canada. The State is held to be the owner
of the bed of that lake to the international boundary.
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If there was any national interest which called for Federal
ownership of lands beneath the three-mile belt of the
ocean, it would seem such interest would apply even more
strongly to the bed of a lake in which the boundary be-
tween this country and a foreign nation is located. Yet,
as above stated, the Court held that the ownership of the
bed of this lake was so closely identified with sovereignty
of the State that a presumption against their separation
must be indulged.
In the case of Illinois Central R. R. Co. v. Illinois, 146
U. S. 387 (1892), involving the title to the soil berieath
Lake Michigan within the boundaries of the State, this
Court described fully the different legal results which flow:
from ownership of lands beneath navigable waters as
compared with dry land. On this point the Court said
(p. 452):
“That the State holds the title to the lands under
the navigable waters of Lake Michigan, within its
limits, in the same manner that the State holds title
to soils under tide water, by the common law,
* * * But it is a title different in character
from that which the State holds in lands intended
for sale. It is different from the title which
the United States holds in the public lands which are
open to preemption and sale. It is a title held in trust
for the people of the State that they may enjoy the
navigation of the waters, carry on commerce over
them, and have liberty of fishing therein freed from
the obstruction or interference of private parties.
The interest of the people in the navigation of the
waters and in commerce over them may be improved
in many instances by the erection of wharves, docks
and piers therein, for which purpose the State may
grant parcels of the submerged lands; and, so long
oes
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BEE SR ARI OE EEE ORIG EE IRENE S RETESET OL TNT ESTEE
a:
= =
as their disposition is made for such purpose, no
valid objections can be made to the grants. Gen-
eral language sometimes found in opinions of the
courts, expressive of absolute ownership and control
by the State of lands under navigable waters, irre-
spective of any trust as to their use and disposition,
must be read and construed with reference to the spe-
cial facts of the particular cases. A grant of all the
lands under the navigable waters of a State has never
been adjudged to be within the legislative power; and
any attempted grant of the kind would be held, if not
absolutely void on its face, as subject to revocation.
The State can no more abdicate its trust over prop-
erty in which the whole people are interested, like
navigable waters and soils under them, so as to leave
them entirely under the use and control of private
parties, except in the instance of parcels mentioned
for the improvement of the navigation and use of the
waters, or when parcels can be disposed of without
impairment of the public interest in what remains,
than it can abdicate its police powers in the admin-
istration of government and the preservation of the
peace.”’*®
An example of the application of this rule is found in
United States v. Chandler-Dunbar W. P. Co., 209 U. S.
447 (1908). The case involved the character of the State
of Michigan’s ownership of land beneath navigable waters
5ePlaintiff cites this case (Br. p. 151) in support of its argument
that the State may convey title to lands beneath navigable waters
“free of any public trust”. Obviously the case does not support
plaintiff’s statement. Plaintiff ignores the fact that this case holds
that grants by the State of submerged lands are valid only when
they can be made without impairing the public trust. This was the
holding in Weber v. Board of Harbor Commissioners, 18 Wall. 57,
66 (1873); Boone v. Kingsbury, 206 Cal. 148 (1928) and City of
Long Beach v. Marshall, 11 Cal. (2d) 609, 614-615 (1938), also
cited by plaintiff at this point.
=
in the bed of the St. Mary’s River. Incidentally, the
center of this river was the boundary between the United
States and Canada. If the Federal Government could ac-
quire a proprietary right in the bed of navigable waters
by reason of the national interest, it would seem that the
Court would have so declared in this case, in view of the
existence of the international boundary line in the bed of
the river. Nevertheless, the Court, through Mr. Justice
Holmes not only upheld the State’s title, but said (pp. 451-
452):
“ . . The right of the State to grant lands cov-
ered by tide waters or navigable lakes and the quali-
fications, as stated in Shively v. Bowlby, 152 U. S. 1,
47, are that the State may use or dispose of any por-
tion of the same ‘when that can be done without sub-
stantial impairment of the interest of the public in
such waters, oe
The principle as expressed by Mr. Justice Holmes is
invariably applied in the development of a harbor. Ships
cannot land on a beach between high and low tide. Land
must be filled and often leased or disposed of into private
ownership for purposes of docks, wharves, warehouses
and other uses incidental to navigation and fisheries. (See
map of Los Angeles and Long Beach Harbors, p. 5.)
It would take too long to list all the cases of this
Court which announce and rely upon this principle, but
we respectfully submit that the statements of Mr. Chief
Justice Taney in Martin v. Waddell, and of Mr. Justice
Field in Jilinois Central v. Illinois, and of Mr. Justice
Holmes in Untted States v. Chandler-Dunbar W. P. Co.,
and of Mr. Chief Justice Stone in Massachusetts v. New
aa
Be OI ee ce —— ——— 7 . — -
RIS SOMES TS LG RAI ERE EERE SONY ERITREA IGE GIR RA a
a
York, and of many other of the justices of this Court, are
not “patently unsound.”
This public trust doctrine is embedded in the constitu-
tional and statutory law of the various States as well as in
the common law. Congress has followed a consistent
course ever since the enactment of the Ordinance of 1787
for the government of The Northwest Territory. This
Ordinance required that:
“all navigable waters within the said State shall fore-
ever remain public highways, free to the citizens of
said State and of the United States, without any tax,
duty, impost, or toll, therefor, imposed by the said
State.”
This language in the Ordinance of 1787 governed the
States formed out of The Northwest Territory, namely,
Illinois, Indiana, Ohio, etc. This language was then em-
bodied in the Acts of Admission of other newly admitted
States such as Alabama, Mississippi, Louisiana, Oregon,
Florida, California, etc. Likewise, Congress required the
Southern States, when they were readmitted into the
Union after the Civil War, to embody this same phrase in
their State Constitutions or statutes.™
'This Court unanimously applied the public trust doctrine to
navigable waters in California in United States v. Mission Rock
Co., 189 U. S. 391, 407 (1903), citing many cases.
58Examples of the doctrine in State Constitutions are found in
the South Carolina 1868 Constitution, Article I, Section 40, 6
Thorpe, American Charters, Constitution and Organic Laws (1909),
page 3284; California 1879 Constitution, Article XV. Statutory
examples originate in the 1787 Northwest Territory Ordinance,
2 Thorpe, supra, page 961, carried into the Enabling Acts of every
newly admitted State outside the Northwest Territory area. See
Pollard v. Hagan, 3 How. 212 (1845). For example, the 1859 Act
of Admission of Oregon, 5 Thorpe, supra, page 2996; Florida, 2
Thorpe, supra, page 663. (Appendix to Answer, pp. 67-78.)
EE EIDE EN IRS BEIT
=_——
This consistent policy of Congress demonstrates that the
distunction between land under navigable water and dry
uj md ts not predicated on a “legal fiction.” Congress,
itself, has not only recognized that such lands are subject
t» a public trust but has imposed mandatory conditions by
which every new State must protect and preserve this
trust.
FepERAL GRANTS IN TERRITORIES Not INCONSISTENT
Witu Fustic Trust Doctrine.
Plaintiff further argues that the rule that ownership
of lands beneath navigable waters is an attribute of State
sovereignty is fallacious because the United States may
make grants of such lands within a territory, which would
deprive the future State of the ownership thereof
upon its admission to the Union. In support of this argu-
ment plaintiff cites Shively v. Bowlby and several other
decisions (Br. p. 150). But the citations do not support
plaintiff’s argument. What the Court said on this sub-
ject in Shively v. Bowlby is as follows (152 U. S. 1, 48):
“By the Constitution, as is now well settled, the
United States, having rightfully acquired the Terri-
tories, and being the only government which can im-
pose laws upon them, have the entire dominion and
sovereignty, national and municipal, Federal and
state, over all the Territories, so long as they remain
in a territorial condition.
“We cannot doubt, therefore, that Congress has
the power to make grants of lands below high water
mark of navigable waters in any Territory of the
United States, whenever it becomes necessary to do
so in order to perform international obligations, or
to effect the improvement of such lands for the pro-
motion and convenience of commerce with foreign
ho ‘
BS SEI II EN TS ST ELIT APE RE ER RR RR NE ET PRE
—
nations and among the several States, or to carry out
other public purposes appropriate to the objects for
which the United States hold the Territory.”
It will be seen that this holding is merely an applica-
tion of the same principle laid down in the Jilinois case
and other cases above cited as to the enforcement of the
governmental trust by the States. Since a State can dis-
pose of its submerged lands in aid of the public trusts
under which they are held, obviously the Federal Govern-
ment, while exercising the entire sovereignty of a ter-
ritory, both national and municipal, can administer
the trusts in the same way and under the same limita-
tions as a State can do. That is all the Court holds in
this case. It does not hold that the Federal Government
may destroy the public trust or withhold from the future
State its lands beneath navigable waters. The other cases
cited by plaintiff on this point simply reiterate what was
said in Shively v. Bowlby.
TuHereE Is No “Bizarre DIsTINcTION” As TO Non-
NAVIGABLE WATERS.
Plaintiff further argues that the doctrine that owner-
ship of navigable waters is an incident to State sover-
eignty “has led to a bizarre distinction, whereby the lands
under inland navigable waters are attributed to the States
whereas the lands under non-navigable waters are attrib-
uted to the United States...” (Br.-. 149.) This state-
ment indicates a misapprehension of the character and
legal status of non-navigable waters. Lands beneath
non-navigable waters are not attributed to the United
States. They are simply part of the upland within which
they are situated and belong to whoever happens to be the
owner of such upland. Non-navigable water on privately
=
owned lands belongs to the private owners, on State owned
lands belongs to the State, and on public lands of the
United States belongs to the United States. Non-navi-
gable water usually consists of shallow swamps, ponds,
creeks, and, in the west, of intermittent streams which
may be used for irrigation purposes by the riparian own-
ers. They are not incidental to sovereignty at all. There
are no public trusts and no public aspects of any kind
connected with such waters. They are simply part of
the land and may be drained or otherwise dealt with by
the owner of the land itself. There is nothing bizarre
about the fact that such waters belong to the owner of
the land on which they are situated. It is merely the
natural result of the fact that the public has no special
interest in them.
Navigable waters, however, as we have shown, are
subject to public trusts which must be enforced by the
sovereign. The question here does not involve non-navi-
gable waters at all, but, rather, to which sovereign, State
or Federal, is the ownership of beds of navigable waters
incidental ?
TRADITIONAL INTERESTS OF STATES Focus Upon Owner-
SHIP AS WELL AS POLICE PowERs.
Plaintiff asserts (Br. p. 149) that “the traditional
interests of
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