# Opposition Brief — United States v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0168%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 889 ## Text ot Ae Oe lett ee Se er we FILE TORY -e 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 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 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 erro [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0168%3A16. Public record. Not legal advice.