Appendix — United States v. California
Supreme Court brief1965
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PE Soren: Oeurt Ud
- OP Y FILED
MAR 4 1947
IN THE CRANLIY ELKORE cori gy
il
Supreme Court of the United-States--~
OctoBerR TERM, 1946.
No. | an
{ q
Unirep STATES OF AMERICA,
Plaintiff,
US.
STATE OF CALIFORNIA,
Defendant.
Appendices”A to I to Brief for the State of California
in Opposition to Motion for Judgment.
Frep N. Howser,
Attorney General of California,
Wiriitiam W. Crary,
Assistant Attorney General,
C. Roy SMITH,
Assistant .1ttorney General,
State Capitol, Sacramento, Calif.,
Counsel.
CumMMINGS & STANLEY,
HoMER CUMMINGS,
Max O’RELL TRUITT.
O’MELVENY & Myers,
Louis W. MyErs,
Jackson W. CHANCE,
Sipney H. WALL,
Of Counsel.
Parker & Company, Law Printers, l.os Angeles. Phone TR. 5206.
TOPICAL INDEX.
PAGE
Appendix A 1
There is no case or controvérsy under article III, section
2 of the Constitutions. 1
A. There is no cont oversy in a legal sense, but only a
difference of opition between federal and state officials 2
B. It is impossible to identify the subject matter of the
. action 10
(a) Plaintiff has failed to identify the lands claimed.... 12
(b) It would be impossible to render a decree in this
case which could be made to apply to any particu-
Be I eiccininiirscrcvcpindpiiepinatesctpenincsbtseninnaitiinineonneieatiit 14
(i) When does a bay become a “true bay’’?........ 20
(ii) What constitutes a port ?......cceeecseeeeeeeeeee 22
(iii) When does a bay become open sea?............. 23
(iv) What law governs ?............ccccccescsssssesesceeeeeees 27
Appendix B ............ SETA A aL Tt 33
The Attorney ‘seneral is not authorized to bring or main-
tain this » ‘ooeeding........... 33
Ee ai ctasieicnaalecicagartcarataiccitaditsncoiintailansnnenmeiectahentactied 39
English court decisions and treatises...............0...csce-sssceeeeseseeeeeees 39
1. The Crown's title to the bed of the sea for some distance
below low-water mark was established by the English
common law authorities prior to 1776.................:.c0:se0ce0-+- 39
2. The English common law authorities after 1776 con-
firm the Crown’s title to the bed of the marginal sea.:.. 50
(a) The cases 3
(b) Treatises 61
(c) The dicta in the Queen v. Keyn...................eccececeeeeee 65
(d) Summary 74
Appendix D. United States v. Curtiss-Wright Export Corpora-
tion, 299 U. S. 304 (1936)
Appendix E
) &
Crown charter grants to American colonies in 16th and 17th
centuries conveyed “adjoining seas” along the Atlantic
coast
Eee °
Original states both in colonial times and since statehood
have always maintained their ownership of the marginal
seas
(a) Massachusetts .....:.:
(i) Colonial charters ...
(ii) Colonial legislation ..
(iii) County and town coastal boundaries
(iv) Three-mile boundary statute
(v) Fishery statutes
(b) Rhode Island
(i) Colonial charter and patent
(ii) Colonial statutes
(iii) Fishery statutes
(iv) Three-mile boundary statute
(v) Grants to United States
(c) New Hampshire
(i) Colonial charters
(ii) State Constitution
(iii) Colonial legislation
(iv) Three-mile boundary statute
(v) Leasing of beds of coastal waters
(d) New York ...
(i) Charter and Constitution
(ii) Colonial legislation
iii.
(iii) County boundaries
(iv) Court declarations
(v) New York-New Jersey boundary
(vi) Three-mile statute
(vii) State ownership of fish
(e) New Jersey
(i) Colonial charter
(ii) Colonial legislation
(iii) Early declarations of three-mile belt.
(iv) State coastal boundary statute
(f) Delaware
(i) Colonial charter ...
(ii) Three-mile statute
(iii) Court decree
(g) Maryland
(i) Charter and Constitution
(ii) Three-mile statute ....
(h) Virginia
(i) Colonial charters ...
(ii) Constitution and statutes.
(iii) Three-mile statute
(i) North Carolina
(i) Constitution
(ii) Three-mile statute
(j) South Carolina
(i) Boundary statutes ..
(ii) Three-mile statute
(iii) Grants to United States
made 113
gs" pea sidisiepeniinsvnbadantiiatictie 113
a clin deiaelneaidenmnanieidsancaninkenth 114
nee EECA 115
PN Fr wicanistetnteweisinctnnminiinn iandlaaaiatasdaibalisisekniasiahcleitivdaonigeuniadastdinccthiand 117
INNIS sc ssestcstesinstscuecsioniodnstinetoosesdiemesinpenniaiaiinniiaiibedinivedeioeesshininicinbs choy 117
gE, ea ee ne 117
I.
Facts establishing California's prescriptive title.................. 117
1. Declarations of state’s ownership............... isdehibbiecieenies 117
2. Acts of occupation, possession and use........0.0............... 121
(a) Grants by state to coastal municipalities of large
portions of three-mile belt... 121
(b) Construction of piers, wharves, and breakwaters..121
(c) Construction of groins, jetties and sea-walls........ 123
(d) Oil and gas leases of submerged lands.................... 124
(e) Assessment and collection of taxes on sub-
I IN renrrereccrrnnnpncternercctimeemmrnesrtienncinenionccnrtiins 131
Te asc caineniestinetpesartmennavonesonenel 131
eS Sg RRP eee ener 137
(h) State and county boundaries cover entire 3-mile
belt—exercise of state's jurisdiction and sover-
ID" ssssasih slic deetelildiphataainscdaialipainleinimosstineiyicccosointied 141
3. Expenditures of capital and labor by state and _ its
I UII, MI rensetnccinineetatinisreisancincoivcscoa 142
II.
Cases cited by counsel for plaintiff are not in point.......... 143
RTE NG sevecevcrnesecctnticasicesinrsnitnicetbibelsaieatnssninittainatinridatananainiontetin 149
AcquieseENCe ........-....--0-- ecicenyeniipie wisi hntasasiesiisinapiipbiinandindr 149
CSecemmnd wllirmamtive Gabeane ) ann nccenscccccecvessnessesvenseseseeteseenee 149
(1)
Policy of Congress 149
(11)
Grants of submerged lands to the United States from the
state of California 169
1. 1897 California statute granting submerged lands in
open sea ..174
(a) Plaintiff concedes at least 3 of 17 grants under
Act of March 9, 1897, were submerged lands
IE NE IU visicscnidomctaedinnrneintonsnns 176
(b) Illustrated by San Diego Military Reservation
submerged land grant....... 177
(c) Illustrated by Zuninga Shoal Tract submerged
IE I eccesicitenceannniincesaaipnisbidesnunainicambamaniost 178
(d) Illustrated by Lime Point submerged land
grant ae 179
(e) Illustrated by Presidio Military Reservation
submerged land grant........... ..180
(f) Illustrated by Deadman’s Island submerged
I I sincere ict amnectensciecearcenraveneninleniieccien 182
(g) Illustrated by Ft. McArthur Military Reserva-
tion submerged land grant......................:-::ce0- 184
(h) The remaining eleven submerged land grants
SE See FUE ere enna cae 185
(i) Congress itself specifically recognized the
grants to the United States under the 1897
FID | siesancndescncnieleanabinictel a ataicaeicinsaiinscratiaitaaias 186
Mi OS RIE EET NE NN OA SER ES BOT ERM
vi.
PAGE
(j) The United States Attorney General has ren-
dered opinions declaring validity of grants to
United States under 1897 Act.......22...0.222-.000000.
(k) Secretary of War and various officers in War
Department have uniformly asserted validity of
grants to United States under 1897 Acct............
(1) Comments of counsel for plaintiff on 1897
California statute granting submerged lands in
CIE GD sceceenesntnvinnnennsinsnianennnintamontinnaseniatedincetniin
2. North Island grant of submerged lands in marginal
CI i ccsiscncctioscenscecsinnictattetindenentimidvniinnnnitin
4. Catalina Island Pebbly Beach easement......................
5. Catalina Island Rock Loading Plant easement..........
6. Saltwater pipe line easement in Pacific Ocean and
Bay of Santa Monica
Numerous other grants of submerged lands from
California to the United States...
a |
(IIT)
Grants from California municipalities to United States......
1. City of Newport Beach grant of approximately 11
SUS. Si I CT iii ccincerereensirtetnennninnerrnmncnrsn s
2. Newport Beach dredge deposit easement..................
3. City of Long Beach grants to the United States of
submerged lands in the Pacific Ocean and Bay of
CS IEE sitenicerisaenniaenioniadicialaiaiatinnabaabanterncsentckere
(a) Long Beach oceanward boundary........................
(b) Submerged land grant from the state to city....221
(c) Outer Harbor of Long Beach......................
5.
PAGE
(d) Victory Pier lease to the United States............ 223
(e) Four additional leases or permits from City of
RANI MRIs conceecectencepsetas-cniteaintinciititbiailebcienespictinedsed 225
(f) Long Beach offshore petroleum development—
with full knowledge of Congress........................ 226
(g) Comments of counsel for plaintiff on City of
Long Beach submerged land grants.................... 227
City of Los Angeles grants to the United States of
submerged lands in the Pacific Ocean and Bay of
San Pedro 230
(a) Los Angeles oceanward boundary 230
(b) Legislative grant of submerged lands to the
City of Los Angeles.. mw)
(c) Outer Harbor of Los Angeles............................ 231
(d) 1903 easement to War Department.................... 232
(e) Four leases of Municipal Pier No. 1.............. 233
(f) Outer Harbor Dock and Wharf Company
lease to the United States.. 234
(g) 9.75-acre grant to the United States................ 235
(h) 61.98-acre exchange ..238
(i) Submarine base site... esc 240
(j) Two “Area D” permits 243
(k) Reeves Field leases.. 244
(1) Navy landing permit—former submarine base
site .. ..246
(m) Other submerged land grants and leases from
the City of Los Angeles to the United States..247
City of Santa Barbara grants and leases to the
United States of submerged lands in the Pacific
Ocean and Santa Barbara Channel.............................. 248
PERRIS ES ILENE IF PIL Ee Oe
on
(a) Oceanward boundary of Santa Barbara............ 248
(b) Grant of tide and submerged lands from state
to city .-.248
(c) Construction of breakwater..............22.2--::s1eee 249
(d) Four grants and leases to the United States....249
6. Grants from the Cities of San Diego, Oakland and
San Francisco ........ 253
(IV)
Grants from other coastal states to the United States......254
3.
ur
Grant of State of Washington to United States in
marginal sea ae
Grants from Texas to the United States.................. 257
(a) Grant of Galveston South Jetty area................ 257
(b) Mustang Island grant _ 258
Mississippi grant to the United States of submerged
lands surrounding Ship Island in the Gulf of
PINE ithcsicinicasvcdintesanelaeageltnsdateamiamanandpivcbaeaunosonienreenica 260
Grants from Florida to the United States................ 265
(a) St. John’s River Jetty, extending about two
miles into the Atlantic Ocean.............202.2..0.00-4. 265
(b) Crystal River spoil area permit.........0..2020.0....... 271
Grants from South Carolina to the United States....272
(a) Outside entrance to Winyah Bay........................ 272
(b) Grant of submerged lands around Fort
Moultrie Military Reservation.............................- 273
(c) Grant of submerged lands in front of the town
Oe I icciecleniccirsiasieslinseniacieindichrcieneasccasaa 274
PAGE
(e) Third grant of submerged lands in marginal
sea adjoining Fort Moultrie Military Reserva-
tion ..2/6
6. Delaware grants of submerged lands to the United
States ...276
7. Grants from Rhode Island to the United States of
submerged lands in the marginal sea.......................- 277
(a) Grant at the mouth of Seaconnet River............ 277
(b) Grants around Block Island... 278 j
8. Grant by Massachusetts of Minot’s Rock.................... 279 ;
9. Numerous other grants from coastal states to the 4
United States ...280
(V)
Judicial, congressional and departmental rulings and acts
recognizing states’ ownership of submerged lands.......... 281
Ee EB SRR Nana nN eee TOT 281
(B) By the legislative branch........................c-ccccsceesececeeees 282
(C) By United States Attorney General............0........... 283
(D) By the Secretary and Department of the Interior..285 .
(E) By the War and Navy Department.......................... 297 3
SIG. DW asin cai sapinciniaeaiinagadirstadebimncaamnticnianiontinneemitentaial 303
Estoppel—laches—tres judicata -..............-.ceccssesseeseeseeessseseseseececess 303
I, q
RUIPNIIEE suc cussiosmnadsusiaeeriiasadiaocaasnacentaateinieabbiniiiagausasasicotinc nas 303 E
1. Estoppel runs against the United States in favor of a
OE csicoscipas eed ccneenvindenicinoninmaisndnthandcaiaiiah dace ccnasiacunae 304
2. Counsel's argument that the representations were un-
authorized is unsound
a
PAGE
3. Counsel’s argument that there has been no reliance by
the state is groundless..................-cesno-rscscsecenrerersnseeerereeeass 310
II.
R75 sciencsonensssseseerebenasintodatisinsaabiuccnlaniaiciobatuamieennionienemamneniie 312
ITI.
Res judicata -.......-....-..cscccesecnseserevenserenensnreseseresenserneneeeenseeneenseeees 315
Appendix I 317
Department of Commerce U. S. Coast and Geodetic Survey....317
TABLE OF AUTHORITIES CITED
Cases PAGE
Abby Dodge, The 223 U. S. 166.................... 133, 158, 159, 160, 265
Aetna Life Ins. Co. v. Haworth, 300 U. S. 277.000.000.000... 9, 11, 14
Alaska Gold Mining Co. v. Barbridge, 1 Alaska 311........0000.... .. 151
Alaska Gold Recovery Company v. Northern Mining and Trad-
ing Company, 7 Alaska Reports 386..................-...000+0- eden 287
Anna, The, 5 C. Rob. 373, 165 Eng. Rep. 809 (1805)................ 51
ee eee 9
Arkansas v. Tennessee, 310 U. S. S63... .--.-c-cecsecereeeeceesore-cee 146
ee ae ee, Oe ke See Re 308
Attorney General v. Chambers, 4 De G. M. & G., 206, 43 Eng.
Rep. 486 (1854)... 56, 57, 61
Attorney General v. Emerson, L. R. [1891], A. C. 649............. .. 61
Attorney General v. Hanmer, 4 Jur. N. S. 751 (1858)................ 56
Attorney General v. Johnson, 2 Wilson Ch. 87, 37 Eng. Rep.
OD CRIIR IED seickisencsisiiciesiensitiotemnannaceneciaiinsiteansicatniniiensinnbineinntaiignned es 61
Attorney General v. Parmeter, 10 Price 378, 147 Eng. Rep. 345
COREE D . ciceseipenesininhiteeniininliiniaiindneedinciiisinaansciganiaihinaniniibniiapnanipsiaiedinticin 61
Attorney General v. Richards, 2 Anst. 603, 145 Eng. Rep. 980
(1794) 61
Attorney General for British Columbia v. Attorney General for
Canada [1914], A. C. 153....... aa eatasnihaeeipabidlaiiaiicmen 29, 71
Ayer & Lord Co. v. Kentucky, 202 U. S. 409.0000... cece 22
Bayside Fish Flour Co. v. Gentry, 297 U. S. 422... 132, 137
Bayside Fish Flour Co. v. Zellerbach, 124 Cal. App. 564......132, 137
Benest v. Pipon, 1 Knapp 60, 12 Eng. Rep. 243-..0000000000000000000...... 55
Blundell v. Catterall (1821), 5 B. & Ald. 268, 106 Eng. Rep.
AIRE NE OR AIRE eI tee eT OR MI ae Oe REELS 53. 61
Boone v. Kingsbury, 206 Cal. 148; cert. den. 280 U.S. 517...
sinsclulcesidtshessiieiemaialinenguntidiciasaaieaahintin weiss codpdbiciseds 118, 120, 126, 281, 310
Brant v. Virginia Coal & Iron Co., 93 U.S. 326.000.0000. coconee 308
rere ecormezs megs
er,
2 ya pte Tee > SORA ROBIE,
a A OS te DIRE OD eS 4 ae ”
vam Tre he
We,
th
Bulstrode v. Hall & Stephens, 1 Sid. 148, 82 Eng. Rep. 1024
IE IRIUIP IF 1 coceussacitsipsiinbiekanensipsairinsaresinaeih asedeneaiauhaciommennnietetaniinoeettainan
Burgess v. Gray, 16 How. 48......
Carpenter v. City of Santa Monica, 63 Cal. App. (2d) 772........252
Carter v. Murcot, 4 Burr. 2162, 98 Eng. Rep. 127 (1768)......49, 54
Case of The Royal Fishery of the River Banne, Dav. 55, 80
Eng. Rep. 540
re We CNR FT, i cic aici sicecrntitirnnnsentavctenievensiercininesiieh
City of Hoboken v. Pennsylvania Railroad Company, 124 U. S.
656 :
City of Los Angeles v. Anderson, 206 Cal. 662........:.2:::cc0--:c00m
ee
Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Case No. 3230.......1600
County of St. Clair v. Lovingston, 23 Wall. 46...........0.0000.00.02- 252
Cramer v. United States, 261 U. S. 219
IN, DRI UP 0 Bi sesuncreeversintenennenatnntcniiemmonseniicnenasebainah
Dana v. Jackson Street Wharf Company, 31 Cal. 118.......0.......... 252
Darbee Oyster and Land Co. v. Pacific Oyster Co., 150 Cal.
TINE. <scsadchasiicimesnicedeneeniiieatiainesrntaeiaiatininaanaatinninnsieninesediia
Davis v. Corona Coal, 265 U. S. 219.
DeLongumere v. N. Y. Fire Ins. Co., 10 Johns 120..........0........... 22
De Lovio v. Boit, 7 Fed. Cas. 418, Case No. 3776.............. RIN
Dunham v. Lamphere, 3 Gray 268.............02....--ccocsecsscccsesesere
SS RS ener ern NUN eEE
Free Fishers and Dredgers of Whitstable, The, v. Gann, 20 C.
B.. (N.S) F, P40 Hem. Rep. BOS CiGB) ncaa ceecsresncccscessrwrorsoies
PAGE
Gammell v. Her Majesty’s Commissioners of Woods and For-
ests, 3 Macqueen’s Appeals 419 (1859) ooo... cecccceceeeeeeceeeeeeeee 57
ice: 6. I, Be I Sl erste einen enicccenstaes 144
Guaranty Trust Company v. United States, 304 U. S. 126........
Te abdanincaetangucmntimencetian ee 145, 146, 306, 312
Hardin v. Jordan, 140 U. S. 371............. —
Hartwell Lumber Co. v. United States, 128 Fed. 306 (C. C.
N. D. Ill, 1904)... 22
Hays v. United NE, re Ae, ae a ecttecicticncitlliciedee dee ee 144
a, WN We CRN Si hhnccs ceticcteoncrtntteretnedehiceesuuek 33, 151
Illinois Central Railroad v. Illinois, 146 U. S. 387.0.00000000000000.2... 150
Ipswich Dock Commissioners v. Overseers of the Parish of St.
Peter, Ipswich, 7 B. & S. 310 (1866)......0....0cc.ccceceecccscceccesoeee 58
8 ee eee 286
Jeems Bayou Club v. United States, 260 U. S. 561.0000... 307
Johnson v. Barret, Aleyn 10, 82 Eng. Rep. 887........20...000000002.... 44, 45
ee Wi SIR I Fae Be stcincicracitinennicdees tices 308
OI WRENN: AO IIIs icles esennseethicsscatescemsmnspstnbtotinocaniassdentanemeae 144
Kern River Company v. United States, 257 U. S. 147.000.0000... 35
mw ee A AREER ip en me ED 118
RU WN, Fe Fn Fi: Si eccesiesncreinmsiticaenndenversieiiccoeatsrics 308
Lee Wilson & Co. v. United States, 245 U. S. 24.0000... 307
Logan, Re, 29 L. D. 396.........:... sa hsaalllesibinahanttalaadamngnatintae 150, 151
Los Angeles Athletic Club v. City of Santa Monica, 63 Cal.
PD Ce iw tiaetlncectseccetmnnttitoneabeia igaoontenignmediibcsicestanee
Sea DO ee eee 164
Lord Advocate v. Trustees of the Clyde Navigation, 19 Rettie
174 (1891) 2... ec rr Ronee ee ce se RE es RT 59, 72
Lord Advocate v. Weymss, 1900 A. C. 48 (1899) 000000000... 60, 73
Lord Fitzhardinge v. Purcell (1908), 2 Ch. 139000000000. 60, 72
Louisiana v. Mississippi, 202 U.S. 1.........ccecsssscssesccesssceseescseseees ...260
xiv.
PAGE
Mahler v. The Norwich and New York Transportation Co.,
Be Bil ee, Ae acniteeteheeciccscseltiacegenintnesnsdnnanaiiceientitieebisaeiplabeMenman 99
Manchester v. Massachusetts, 139 U. S. 234............ 69, 73, 133, 160
Mann v. Tacoma Land Co., 153 U. S. 273............-:.:es00 33, 150, 152
Marincovich, In re, 48 Cal. App. 474..00.0........:ceccsssseseeeseeeees 132, 136
Marshall v. City of Long Beach, 11 Cal. (2d) 609, 82 P. (2d)
362 s scesadltanatbadstlbdeasnibaiasiipiounenaniale 221
McCready v. Virginia, 94 U. S. 39)... sssseeeseeeeeees 133, 160
Mirkovich v. Milnor, 34 Fed. Supp. 409.202.000.222... 132, 137
Morris v. United States, 174 U. S. 196..0..0..02-2cecccceececececeeesceeee 150
ST A | ee een 144
Murphy v. Ryan, Ir. R. 2 C. L. 143 (1868)... eeeeeee 59
Muskrat v. United States, 219 U. S. 346.0000... eee eeceeeeeees 10, 14
New Jersey v. Delaware, 294 U. S. S61..............-.-.0...ceesersscees-csces 106
ee RE ee 14
No. 34 Case, The, 11 F. (2d) 287, later opinion 13 F. (2d)
CE TUE ainsdacaiinievsnaliesmaiapiieimaiantes aie udiiaketiamspnibbtaimaaeaedaieoind 314
Northern Pacific R. R. Co. v. McComas, 250 U. S. 387................ 145
Oaksmith’s Lessee v. Johnston, 92 U. S. 343.0... ceeeeeceeeeeee 143
Ocean Industries, Inc. v. Greene, 15 F. (2d) 862.................. 132, 137
Ocean Industries, Inc. v. Superior Court, 200 Cal. 235.......... 18, 137
to Se. a ee A Se. ee ee 308
Osborne v. United States Bank, 9 Wheat 737......0.00.000000000000.-0-- 27
Paladini v. Superior Court, 178 Cal. 369.000... 132, 136
Patton v. City of Los Angeles, 169 Cal. 520.0... eeeeeeeeeeeeeee 252
A ine a en ee 77
People v. Monterey Fish Products Co., 195 Cal. 548........... 132, 137
Pee ©. Be OF Fe. Be Bh, TI Be ieccierttrctntiveesctinenmenniaa 9
People v. Stafford Packing Company, 193 Cal. 719.............. 132, 137
ne ais. ee Se Se icesnnicecdlinnibicecincncinninsnenenicniean accent 228
People v. Truckee Lumber Co., 116 Cal. 397....0.........e.ececsceseeseees 132
PAGE
People ex rel. Mexican Telegraph Co. v. State Tax Commis-
Saas SIU SG, * I. eerste cen eeneleaial ellea 99
Petrel Guano Co. v. Jarnette, 25 Fed. 675................cc.ccecceceeceeeceseees 22
Pine River Lodging Co. v. United States, 186 U. S. 279.000... 307
Pollard v. Hagan, 3 How. 212...........0000........ TORENT ES SEER PN 20
Port of Seattle v. Oregon and Washington Railroad Company,
I TD, Ge i iteniccthentipcnntestaitnisiscer een thivseinsiabaneceavidlan 152
Queen, The, v. Keyn, L. R. 2 Exch. Div. 63 at 155-158 (1876)
57, 65, 66, 68, 69, 70, 72. 73
Queen, The, v. Musson, 8 El. & BI. 899, 120 Eng. Rep.
366 (1858) ieee
Reynolds, C. B. Jr., 56 I. D. __ SCORER ERT Pac Tee ar 297
Rex v. Lord Yarborough, 3 B. & C. 91, 5 Bing 163, 1 Eng.
Ss ning NU Pe there oa oles neice asked aeeaevaaieogaie sie 54
Rhode Island v. Massachusetts, + How. 91-.2.220-0200.0..........146
Royal Indemnity Co. v. United States, 313 U. S. 289.0000... 307
San Pedro, Los Angeles and Salt Lake Railroad Company v.
RE WI icicle tntacharrneicnnncipniiatinninlictanidepeiuiecciaaiele 118
Sanitary District of Chicago v. United States, 266 U.S. 405... 148
Santa Cruz Oil Corp. v. Milnor, 55 Cal. App. (2d) 56........ 132, 137
en 297
I Wis: AIR SIN Ss © ag Sant aiceade enmcansintenonieheckinaseiaebe 150
Secretary of State for India v. Cheiikani Rama Rao, 43 L. R.
ee ST ee 51, 53, 60, 66, 71, 73
Shively v. Bowlby, 152 U. S. 1L..............20, 33, 45, 47, 50, 66, 285
Shooters Island S. Co. v. Standard Shipbuilding Corporation,
SE PD UND dattiehiietinn ccc Soe nateele lel seoseaiidin taejans yeh aa 315
Sioux Tribe v. United States, 316 U. S. 317.000.0000. 308
Smith v. Earl of Stair, 6 Bell App. Cas. 487 (House of Lords,
MMUTE | <estuuasdesidienhuielaubdemuns aeaulioniige cence aunda nied 61
Smith v. Maryland, 18 Howard 71.00.0000... dsiccps ag.
ee Vi Pe A Os ee 144
»> a
Se i
Be Ss 2 ERIN $0 RRS ree nen
xvi.
PAGE
Standard Oil Company of California v. United States, 107 F.
I; iiorcccsisnsnlbchptasasienteetusibeeenpennheeniooesiioentetinactcnnintaennveiidaddaaaalne 305
ce 2 a ee - SeenON EE Ee, 305
Stevens v. Patterson & Newark Railroad Company, 34 N. J.
8 ere eee eC 102
EE NR, TEE ihe, tk I vhs elaierhintscdeacbicminaunsootigimlainadeiced 14
Suttori v. Peckham, 48 Cal. App. 288..............--.-cscsesscccsesssees 132, 136
Twee Gebroeders, The, 3 C. Rob. 162, 165 Eng. Rep. 422
NRE oe 5 ve Rene A a ES Ne Rel 51
United States v. Ashton, 170 Fed. 509.20... ccecccceceeeeeeeeeee 151
RAMONE Taube ¥. TRUER, BF FO, Diiiececcercscesviterneserverecssnirseseeerscit 315
United States v. Beebee, 127 U. S. 338..0.........ccce cee ceeecccesceeeccececee 315
United States v. Carillo, 13 F. Supp. 121...0000000000..2... 27, 228
United States v. Chandler-Dunbar Water Power Co., 152 Fed.
25, affd. 209 U. S. 447............ SS ne ee MSE GDR NEE 305
United States v. Curtiss-Wright Export Corporation, 299 U.
hee ucticcnnleeitinniontnae ty tty Oe
United States v. Denver & R. G. W. R. Co., 16 F. (2d) 374....305
United States v. Fitzgerald, 15 Peters 407.000.0000... ceececeeccseeeee 307
United States v. Grimaud, 220 U. S. 506.0000... eceeceessceseseeees 164
United States v. Holt State Bank, 270 U. S. 49.................... 33, 150
United Seates v. Insley, 190 U. S$. 268.2. -u....-.cccccccccecoveeseocesseseees 312
United States v. Kirkpatrick, 9 Wheat. 720...0..000000000.0 ccs 312
United States v. Knight, 14 Pet. S01 ............-cccccscccvoccseseessesesesesese 145
United States v. McElroy, 25 Fed. 804..2..0.0.0......0.20..cccscssesssseseeees 314
United States v. Michigan, 190 U. S. 379..................--ccc-csesesseeeees 313
United States v. Mission Rock Company, 189 U. S. 391.............. 316
United States v. Nashville, etc., R. R. Co., 118 U. S. 120.......... 145
United States v. Newark Meadows Improvement Company, 173
BN I iiiiesieensantinnsiretatiiienrertil 19, 103, 104
United States v. Pan-American Petroleum Company, 55 F.
pe ee te e+ ERs Oaeeee she 35
PAGE
United States v. Pennsylvania and Lake Erie Dock Co., 272
Fed. 839 on 09
United States v. San Francisco, 310 U. S. 16...........00......... 296, 307
United States v. San Jacinto Tin Co., 125 U. S. 273.............. 35, 38
United States v. Schwalby, 147 U. S. 508. 145
United States v. Standard Oil Co. of California, 20 F. Supp.
427, affd. 107 F. (2d) 402, cert. den. 309 U. S. 673.............. 307
United States v. Stinson, 197 U. S. 200.0000 ee 305, 315
United States v. Summerlin, 310 U. S. 414.0000. 145, 312
United States v. Stinson, 125 Fed. 907.000.0000. ceccceceeeeeeeeeee 315
Tied Semen. “Tes, O08 Oe S, Gi ried ae 147
coo ge BS eB Se CR erences eenen ree 147
United States v. Thompson, 98 U. S. 486 2000... ccceceeee eee 145
United States v. United States F. & G. Co., 106 F. (2d) 804
(reversed on other grounds 309 U. S. 506) ..0.2.2..2.22-cceececeee econ 35
United States v. Utah, 283 U. S. 64 (1931)... eects 3, 13
United States v. Wallamet, etc., Co., 44 Fed. 234.0000... 314
United States v. West Virginia, 295 U. S. 463.000.000.000... 6, 7, 10
United States ex rel. Roughton, 101 F. (2d) 248.0000... 297
Utah v. United States, 284 U. S. 534. ..307
Utah Power & Light Co. v. United States, 230 Fed. 328............ 305
Utah Power & Light Company v. United States, 243 U. S.
[oe n = 296, 307, 308, 312
Van Camp Sea Food Company v. Dept. of Natural Resources,
30 F. (2d) 111 132
Warren v. Matthews, 6 Mod. 73, 87 Eng. Rep. 831 (1704)...... 48
Weber v. Harbor Commissioners, 18 Wall. 57.20000.00.0000.00.0.0.----- 295
Whiteside v. United Slates, 93 U. S. 247. ....:....ecccececcceccececseeeees 308
Wilber National Bank v. United States, 294 U. S. 120.000.0000... 308
Willing v. Chicago Auditorium, 277 U.S. 274.0..00..2cccesceceecceecee 5
%
my
ed
eA
re , r SPORT LOL IO AEE RIS LL LEE IEE IIE IGEN Sei 8
Serres eer ee ER SERRE INS RORY TRING TE NE ee Meee
OS data ta ° , ina ,
xx.
PAGE
ererems: ins e ROL, wi I ric esrtetersciecnld 154
California Statutes of 1923, p. 593 125, 156
California Statutes of 1925, p. 181......-....2........-..scsccscsesescece 119, 142
ee 8 ee 221
rer SU I, Tne sees ccetew te secreveeenrtrivrtnemia 135
California Statutes of 1925, p. 944 2... cececeeeseeee eee: 156
California Statutes of 1929, p. 11 127, 156
California Statutes of 1929, pp. 11, 117, 254.000 119
California Statutes of 1929, p. 901 137
California Statutes of 1929, p. 944 120
California Statutes of 1929, p. 1085 231
California Statutes of 1929, p. 1182 135
California Statutes of 1929, p. 1691 212
California Statutes of 1931, p. 86 156
California Statutes of 1931, p. 846 127
California Statutes of 1931, p. 925................... 123
California Statutes of 1933, p. 394 02... 137
California Statutes of 1933, p. 4840 cccccsccccecsesinvieneneteine 137
California Statutes of 1955, Champ. 773 neces even ccecevwescnececs 135
California Statutes of 1933, p. 15923 22.20 -s0eceeee 127, 16
SE 8 een. 221
Nn INI GI I GO FR a rvnescitterireecttvntarvevervonvitwervssousnont 142
California Stautes of 1938, Extra. Sess., Chap. 5, p. 23......128, 156
nn NINE 0 UP WR I prcccticonersnenciniminievesecenctnseroveneasal 250
eS Se ee eT? 123
ND CHUN E UND, BA UE oa csrccecvrencerevseevecesevsesentnaled 156
California Statutes of 1941, p. BODO... ...-eccesecevveceveoresceeneen 202
California Statutes of 1943, p. 1294... iaeeahs ae
Code of Virginia (1849), Title 1, Chap. 1 1, Sec. 1, pp. 48, 49........108
Declaratory Judgment Statute of 1934 (48 Stat. 955)...
PAGE
Delaware Laws of 1931, p. 761........... 105
Se et I Re NS MM i cssescsciccectndscuiveceshinehciccronennepnaedinectannien 135
See ee So ee ee ee 135
General Laws of Rhode Island, 1909, Title 1, Chap. 1, Sec. 1.... 93
General Laws of Rhode Island (1938), Title XXIV, Sec. 12,
p. 242 ; 92
Ganepal Senteen: SEU, Clmmey 1, Bete. Daciccrcec cic csccicecteitceceertcinis 89
General Statutes of Rhode Island, 1872, Title I, Chap. 1, Sec. 1.. 93
Georgia Act No. 410 (1916),; Amended Code (1916), Sec. 16....114
Georgia Laws (1924) p. 116...0........esseeceeseeeee 115 E
Georgia Political Code, Sec. 17..............ssscesssescseceeeoes ee Seay eS 114 q
Harbor and Navigation Code, Sec. ee 122 4
House Document No. 552, 75th Cong., 3rd Sess., pp. 3, 7, 8, q
AE BRE EEE. TB ar EEE Ree OPN Cn ERE CERIO 249 4
House Document No. 1390, 62nd Cong., 3rd Sess., p. 6.............. 257 4
Laws of Maryland (1831), Chap. 249, Sec. 1a... eee 107 7
2 Laws of New Hampshire Province, 1702-1745 (Concord E
Ss IE sree vecechlacsiaebsoedasnaid eb irnceselaitei ces eed Seitanee 96 7
1917 Laws of Oregon, Chap. 276, p. 516..0.............:.cceccecesesees 154, 155 ‘4
1920 Laws of Oregon, Title 32, Chap. 10, Sec. 5659, Vol. II, 7
Se Bien eae 154,155
Laws of the Commonwealth of March 1822, Chap. 97, p. 712, :
SaNRNE DON i I ho osacos a cn races Aes ea cans aioe 90 4
Maine Pub. Laws of 1945, Chap. 248.....::ccccccsccccsssscssssessessecesee 155 q
Maine Revised Statutes 1916, Chap. 133, Sec. 3, p. 1514....0......... 88 q
Maine Revised Statutes 1930, Chap. 143, Sec. 3, p. 1640.......... 88 :
Meryem’ Cometitation, 1776, Art. 10%. -.nccsccieccececncesecseseeierensececwens 106 a
Maryland Senate Bill No. 538, approved April 23, 1945........... 107,
Massachusetts Acts and Laws of 1760, Chap. II, pp. 523-526...... 87 :
prmmmmcmnnnatts Acta TT, Co, BI esa scsevccesccvevincrsnsnmphscnsvevene 89 :
Massachusetts Acts 1881, Chap. 196, p. 518...0..00.000.cccccceceeceeceeeseeee 89
7 PAIRS ARES J
Massachusetts General Laws 1921, Chap. 42, Sec. 1.0...
Piementiemattn Lewes BIO, Wi FF cnc ceecerensisenintateiincinininvceiiaiil
Massachusetts Laws of 1812, Chap. 27 (Laws of Massachusetts,
Vol. VI, 1812-1815, p. 39) approved June 22, 1812.........000000...
Massachusetts Province Laws 1692-3, Chap. 32 (Act of Nov.
ab, 1656, Sete. 1, EZ) ne
Massachusetts Province Laws 1702, Chap. 12 (Act of Nov. 21,
SE soccancistionaistcnriciesesevcstaccsbstblabaticenbiadniccasaahensihaciatteplemiatiniennicaae
Massachusetts Public Statutes 1882, Chap. 27, Sec. 2......200200000.....
Massachusetts Revised Laws 1902, Chap. 25, Sec. 1.....0.02..02200000...
New Hampshire Constitution, 1792, Art. VID.0...2..eeeececeeene
New Hampshire Constitution, 1902, Art. VII...
New Hampshire Laws, 1901, Chap. 115, p. 620................
New Hampshire Laws 1941, Chap. 221 -0.00...eeeeeeeeeeceeeeee
2 New Hampshire Province Laws, pp. 389-526............2..20020000
3 New Hampshire Province Laws, pp. 336, 524-526...................
New Jersey Laws 1703-1799, p. 262........
New Jersey Laws of 1896, Chap. 103, Sec. 1, p. 15)...
New Jersey Laws, 1906, Chap. 260, p. 542......0.0.....eeeceececsseseseeesee
New Jersey Laws, 1919, Chap. 94, Sec. 1, p. 214.0202... eects
New Jersey Province Act of 1719 (Nevill), pp. 86-88..................
23 New Jersey Statutes Annotated (1940), Sec. 41, p. 29........
23 New Jersey Statutes Annotated (1940), Sec. 46, p. 31...........1
New York Laws of 1779, Chap. 25, Sec. XIII (1 Laws of New
i, ey I By I rreitcchincerincitrienichocaschairemicceonnciglal
Die Tents Tawa, TRG VO. By a Di acccesvcseeevssccerszteveseceseneessouans
Be ta Oe Wisecrcterrrenicictenspenticienccaitnrsnnincearioccatias
New York Laws of 1912, Chap. 318, Sec. 175 ..00.0.0.00.0.cccceccceccceeeee
New York Laws, 1912, Chap. 318, Sec. 300.....0000.........
New York Laws, 1925, Chap. 350, Sec. 1
xxiii,
PAGE
North Carolina Constitution (1776), Art. X XV... cece 110
North Carolina General Statutes, Secs. 113-242..0000000000ccccceteeceee 111
North Carolina Public Laws (1911), p. 268....0.0.0020.-c.cecccceseeeeeeees 111
North Carolina Public Laws (1931) p. 35 .......ecececeececeeeeeeeees 111
tn Ok" - S 134
a TI Tae: ii cntctassertanicitinnied-sraattaticoemsienn ; 136
Plymouth Colony Laws, Part I, pp. 96-97.....02.0.2.-e.ceeceescceseeseeeeoees 86
Plymouth Colony Laws (Brigham), Part II, pp. 205, 282, 283-4
(Rev. Laws 1671, Chap. X, Secs. 3, 4).........-.--cescesescescoee-soseeevere 87
Plymouth Colony Laws, Part III, p. 282 (Rev. Laws 1671, Chap.
Fils: 2D a atectnincisictensinsinaanigttenaias 86
OD SUI SCION, “ieteiecinschancets oisessctheahevtchsidepcaeecccnebin acstanbescoushesaethanid 117
ies Cade, Bee Oe... ee 127, 204
PE SE, ie Ce eccrecrcectncerquathadiceniisatliceasan mbt matnceatencn 123
Re SN, - i: GI areeseiecernsrrcinicnmarnivationigtiohamisbineiniad uae 122
Public Laws of Rhode Island and Providence Plantations, 1798
(H & O Farnsworth Ed.), pp. 3-4
Public Laws of Rhode Island and Providence Plantations, 1844
(Rmowles & ‘Voue Td.), See. D, w. Fab nccccvcsciscesecereccesneneenceuses 92
Pablic Rewosrees Code, Sec. GIG) nnn eveccmsenersvecsvesesostenses 123
A, See TE 129
Public Resources Code, Secs. 6871-6878, Cal. Stats. 1941, p. 1902
CR EI PUN IE TI Ria ascetaitncticascestscsconisnststntsbnsntaituabcsctnalade 129
a . Se ee ee END e 283
Revised Statutes of Maine, 1944, Chap. 1, Sec. 24.00.0000... 155
Revised Statutes of New York, 1829, Part II, Chap. I, Title I,
Tens 20! xspte dudes daouintpeagaipnaiataadbapnaacieblacdmainecaas meena es 98
Rhode Island Acts and Laws (1730), p. Q.........csscccesecesessceseeeeseeee- 83
Rhode Island Acts and Laws 1730-1736 (James Franklin’s
ee A es
Senate Bill No. 6385 of the 62nd Congress.........0.0.00c0c0.cccececeeeeeooeee 159
ELSA AT GIES OE RELI OTS OI RP RD wth
EEE RL Tee Ee RO ENO, Se a ae me itn i, oust,
ws iow
Bees FE RELL EL R ORI O e N e eae e
‘
sy
PAGE
South Carolina Civil Code (1902), Part I, Title I, Chap. I,
PU Te as asedapoue itil bcecieennninenl egenapiadoneibaeiseiiaaiitastinaeialelons 113
South Carolina Civil Code (1912), Part I, Title I, Chap. I,
Bs“ windiatechcmedhchicdancednecneteninindocunieniniegbecnwinntipiebianiacinniagitnriennbeipibatoeniiael 113
South Carolina Civil Code (1933), Sec. 1016.22.22... 113
South Carolina Civil Code (1942), Volume II, Sec. 3300............ 113
South Carolina Constitution (1868), Art. I, Sec. 40............00020... 112
South Carolina Constitution (1868), Art. VI, Sec. 3.......... oe 112
South Carolina Revised Statutes (1873), Part I, Title I, Chap.
wee. 3 112
South Carolina General Statutes (1882), Part I, Title I,. Chap.
3, See. 3 saicbiasiiaebiuiaanialepinabiawsidlaindianonianea 112
State of Washington Constitution, Art. XVII, Sec. 1.......... 151, 152
Territorial Waters Jurisdiction Act (1878), 41 and 42 Vict.
c. a ‘ican
United States Code Annotated (38 Stats. 692), Sec. 781............ 159
United States Code, Annotated, Title 5, Sec. 309 (R. S., Sec.
399) .... 35
United States Code Annotated, Title 16, Sec. 632......0.000000000000... 161
United States Code Annotated, Title 16, Secs. 761-769.................. 161
United States Code Annotated, Title 30, Sec. 181.000.0000... 297
United States Code, Annotated, Title 33, Sec. 151-2... 19
United States Code, Annotated, Title 34, Sec. 520...00.0000000000000.... 283
United States Code, Annotated, Title 40, Sec. 255.0000... 283
United States Code, Annotated, Title 50, Sec. 175.000.000.000. 283
United States Code, Annotated, Sec. 291 (R. S., Sec. 346)........ 35
United States Constitution, Art. I, Sec. 8, Clause 17.00.0000... 8
United States Constitution, Art. 1V, Sec. 3.0.2.2... cceeeeceeeeeeeeeee 38
|. ne ee 141
Be RE SR TNE Bi, Dit iceritccsvcctncciicnincnrervccceivimecvmsancvei 22
Viegmia Code, Tit. 27, Clamp. 127, Sec 317G..........00.-ccescssosesaseevoeve 109
Ts TI COTE) anna cssincccsineervcoceees 109
xXv.
MISCELLANEOUS PAGE
Annual Reports of the Chief Engineers, 1890, United States
ee | ene 174
Bulletin No. 321 of the Department of Interior, United States
Geological Survey (Government Printing Office, 1907)............ 156
29 Geographical Review (1939), pp. 358-382, Griswold, Hunt-
ing Boundaries With Car and Camera in the Northeastern
United States 96
Georgia Colonial Records of the State, Part II, p. 214.................. 114
Hearings before Committee on Public Lands and Surveys,
United States Senate, 76th Congress, Ist Sess., S. J. Res. 83
and S. J. Res. 92, of March 27-30, 1939, pp. 281-330....157, 158
6 Opinions of Attorney General, 326, 330, 335......0...22..2..200-220-+- 34
30 Opinion of Attorney General, p. 428.0... .cecsecececeeeceeeseeees 255
EO Fe ry NO Ce retitticicncigteninincieresneniieecthcieeninn 39
2 Roll. Abr. 170... eoeeeseeeesoesees 47 ‘
Rot. Parl, 8 Hen. 5, n. 6 inaienaehacm anaes a |
Senate Document 190, 62nd Cong., 2nd Sess., transmitted by
President Taft to the Senate and House of Representatives of
Congress on Dec. 18, 1911 ctppetineticadsabeatadslnsihabaitiaabag tian te 152
Senate Document No. 190, 62nd Cong., 2nd Sess., pp. 40, 44;
also pp. 6, 7, 19.. 152
Senate Document No. 190, Letter of Oct. 5, 1911, from the De-
partment to its Solicitor, pp. 43, 129...2.2..2.ceeccteteececeeeeeeeeeeee 153
Senate Report No. 904, 62nd Cong., 2nd Sess., reporting Senate
Bill No. 6385, which was revived in the 63rd Cong. as Senate
Bill No. 5313, which then became the Act of August 15, 1914.
See Senate Report No. 488 of Senate Committee on Fisheries,
SFE Clee, BR BiB ace ccrcencernenevenepreeeicinstieiineaneticoreresictnaiiie 160 5
Senate Joint Resolution 83, 92 (76th Cong., Ist Sess. )............2 34, 37 S
Senate Joint Resolution 208 (75th Cong., 3rd Sess.)................34, 37
NTA OREO RISE POL | «— - OCR aes
PAGE
United States Department of Agriculture, Department Bulletin
1191, dated December, 1923, entitled “Potash from Kelp,” by
R. P. Brandt and J. W. Turrentine, p. i —
United States Department of Agriculture Report No. 100, “Pot-
ash from Kelp,” by Frank K. Cameron, issued April 10, 1915,
a SR een 154, 155
Webster’s Dictionary 24
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24 American Jurisprudence Int. L. (1930), p. 541, Boggs, De-
limitation of the Territorial Sea 23
EE a RCN 19
Angell, The Right of Property in Tide Waters (1826), pp. 17-
18) 62
Angell, The Right of Property in Tide Waters (1826), pp. 37-
Fe moins sestnipsansieniomapuenntechindnaiiarintinimnaaaiteitincacbiieniieminiamninael 41
Bacon, New Abridgment of the Law (1736) -......0.2.2......:c-c2ceceseso0e aN
Bacon, A New Abridgment of the Law (Bouvier’s Ed., Phila-
i a: Ne ee Oe Re nercternectncseinsindeveteneenrseriereteicecsisbel 49
Bainbridge, Mines and Minerals (1st Ed., London, 1841), see
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2 Blackstone’s Commentaries (1765), p. 262......22...2....c:cscesecsee 50
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Chitty, Prerogatives of the Crown (London, 1820), p. 173........ 62
Coke, The Fourth Part of the Institutes of the Lawes of Eng-
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Colonial Laws of New York, p. 122................-ssecseseseeee-- es
1 Colonial Laws of New York, pp. 409, 845 .......... eS Fe asa %8
2 Colonial Laws of New York, pp. 311-312, 655, 1067................ 98
PAGE
Comyns, Digest of the Laws of England (First Am. Ed. from
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Crocker, The Extent of the Marginal Sea (1909), p. 98......00....... 70
Diggs, “Arguments Proving the Queenes Maties Propertye in
the Sea Landes and Salt Shores Thereof,” p. 187...................... 39
3 Documentary History of the Constitution, p. 137.................... 77
Donaldson, The Public Domain (1888), p. 32.....022020.0.222-20-.-0000---- 79
Donaldson, The Public Domain (1888), p. 43....................... 84
Drayton, “Views of South Carolina” (1802), II Code of So.
Cy I Be criictieeetepetieciminns sonsvecenceeennecseesnenece 111
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NIE Th © sarccitspbeesastsinnnstadhdiiesniatectsbwicaeecnncessieandidtenbisteelaiiedalsuatoneedeisloanoocs 39
I Sire, ee asc ciisterceecistee ieseiatonnirnpccineenntiactandcsertcahmods 40
PRE St irae ncetntanvecitiniciovestcitidtentnsinin iiteabaninereinveaniDucainneotimdons 42
Pages 180-181, 362-363 spnplbesandaamtousdedintnitomittaanee 43
PE. FR sciariespresientegacckerelsinannasinsscisichnsibinetepiasstniaiccseonnentinnimosians 44
Fulton, Sovereignty of the Sea (1911):
Pages 16-17 . sscdsnceaetnicbinid diabetes 39, 40
Pages 19, 364-366, 369-374 .. 44
Pages 357, 358 40
Pages 362-363 43
PRI SEEN" iscicetlctnapsesnaaseiliveniiapsiliaslonibatinhdeitabiaiedipa onceabodemoesdeumbiobierdieesnne 47
BE TIN ececrcercistgeneencnsinnasnntinesnsniintiinanssteninitpemeiisennpeininioasitbionn 48
1 Hackworth, “Digest of International Law” (1940), pp. 654,
655 287
5 Hackworth, “Digest of International Law” (1940), pp. 495,
RSE a A ene ena Nee LP A Cae 304
Hale, De Jure Maris (Manuscript, circa 1667) ....0.0.0.0000.0.00....- 46, 50
Halleck, International Law (4th Ed., London, 1908) 0000000000 0... 70
Hargrave & Butler's Coke on Littleton (1853), p. 26la.....000....... 48
2 Stee . — -
RN SR ie Pe TER ARIE YE EA Le RC OL EIS IOI IR
PAGE
Higgins & Colombos, International Law of the Sea (1943), p,
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Holmes, The Common Law, p. 211 al 14
Hurst, ‘“‘Whose Is the Bed of the Sea?” 4 British Year Book of
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Jerwood, A Dissertation on the Rights to the Sea Shores (Lon-
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Lauterpacht, “Private Law Sources and Analogies of Interna-
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Lauterpacht, “Private Law Sources and Analogies of Interna-
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2 Lindley, Mines (3rd Edition, 1914), pp. 1015-1016.............. 151
2 Lindley on Mines (3rd Ed., 1914), p. 1097.00.00. cceeenee 287
3 Lindley on Mines (3rd Ed., 1914), p. 2401.00... eee ccecccecccceeeee 287
Macswinney on Mines (lst Ed., London, 1884), see 5th Ed.,
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Mallory, De Jure Maritimo et Navali, or a Treatise of Affaires
Maritime and of Commerce (London, 1676)..............cc:cc00e+000 47
Malynes, Consuetudo: vel, Lex Mercatoria (London, 1656), pp.
nae ee
10 McKinney's Consolidated Laws of New York, Sec. 150.......... 101
10 McKinney's Consolidated Laws of New York, Sec. 300........ 100
McNair, “The Legality of the Occupation of the Ruhr” (1924),
The British Book of International Law, pp. 17, 34-36.............. 304
Meadows, Observations Concerning the Dominion and Sov-
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Moore, History and Law of the Foreshore and Sea Shore (Lon-
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ERE SNE EE PERE ANCL Mem No OO en EE snail
Pages 318, 370, 413.........
£8 fe eee
Pate GBB ccccceccrcssene
ee
PAGE
Patton on Titles (1938), p. 577.2... 151
Plucknett, Concise History of the Common Law (1929), p.
205... sn 4S
Plucknett, Concise History of the Common Law (1929), p. 207 50
1 Poore, Federal and State Constitutions of the United States
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1 Poore, Federal and State Constitutions of the United States
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1 Poore, Federal and State Constitutions of the United States
(1878), pp. 775, 1271 82
1 Poore, Federal and State Constitutions of the United States
(1878), pp. 783-784 ; 84
1 Poore, Federal and State Constitutions of the United States
(1878), pp. 811-812 84, 106
1 Poore, Federal and State Constitutions of the United States
COG), i Tee riccintniiciciscsnsittpeniematiinibaciniapiiiaiiniasiaataiasitais 80
1 Poore, Federal and State Constitutions of the United States
CORD, PR. Fe eenienerciinntenssenccbtiniainibtiinnnsintiatinaihiiaisinin 81
2 Poore, Federal and State Constitutions of the United States
CSD, tk Ca te ee rrteitrernttatcnentaieinaesieateiaiines 8&4
2 Poore, Federal and State Constitutions of the United States
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2 Poore, Federal and State Constitutions of the United States
CRETE) Pe RAR Peiecnietesceireninneieveiintidaneapbiiztitaccnimencattialaiicte 109
2 Poore, Federal and State Constitutions of the United States
CRED Be Ba cienssavininncenvensincoiamniciittintieiaiatiplinitininiaiasindeidiiasipiel 110
2 Poore, Federal and State Constitutions of the United States
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2 Poore, Federal and State Constitutions of the United States
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PAGE
Reisenfeld, Protection of Coastal Fisheries Under International
BAe CTs Bi Be csnsiccesseennivinwinsinnnisicesieeniniinnisiensiaievonniidieiitel 48
2 Rhode Island Colonial Records, p. 128..............::.scecscesececsessoe 9}
Robertson & Kirkham, Jurisdiction of the Supreme Court of the
I Te: Sra 100 HP erentimnerniciliecncsscnehnenesichinttnterinentchintsias 10
Rogers on Mines (1st Ed., London, 1864), see 2d Ed., 1876,
CTF EC erecta erencsinastinintcemetnivianetinminnnnninaatntivigais 64
The Collected Papers of John Bassett Moore, Vol. VII, p. 294.... 71
The Public Laws of the State of Rhode Island and Providence
Plantations, 1798 (Carter and Wilkinson, 1798 Ed.), p. 496.... 92
2 Thorpe, American Charters, Constitutions and Organic Laws
i FE OE i riiicencncseeesiennsiniqninsiosepseetitenssctnnaitienaniiinnantatimmmnneciaath 85
2 Thorpe, American Charters, Constitutions and Organic Laws
pp. 771, 794 aiaieliasiaadiianineasaumciensnicon 114
3 Thorpe, American Charters, Constitutions and Organic Laws
Ce. i ee iectinentaseenccniesttncetcncnanttinmnicinieienenensiiciint 80
3 Thorpe, American Charters, Constitutions and Organic Laws
COTY i Fe icticnncrccrniereintcininicinnimniinnininieliin 84, 106
3 Thorpe, American Charters, Constitutions and Organic Laws
(1909), p. 1870...... coed astailbbianainintiniesiliniieniaumicddiineduaninisatiatel 81
4 Thorpe, American Charters, Constitutions and Organic Laws
(1909), pp. 2434, 2454, 2472, DADS ..ceccccssecssecasesoscccsssecesesenesscenees OM
4 Thorpe, American Charters, Constitutions and Organic Laws
CIR), BR BR ivcieeninitennniteriemeentnnnmmmnninaienienteniain 82
5 Thorpe, American Charters, Constitutions and Organic Laws
COR ak I Ry I reeidcerinnestininccsseniinmnneciessintvicmsbieticenciatay 101
5 Thorpe, American Charters, Constitutions and Organic Laws
COE Da Bi Se arncestceecinchcahininncihiteiinstiaiaiiiliiieniicemmmniicbentatothaencatall 109
5 Thorpe, American Charters, Constitutions and Organic Laws
CR Si Gy Bi etecenetneneteentceemnicnuntnien ies. 110
& Thorpe, American Charters, Constitutions and Organic laws
Te en neencee Ie. 91
PAGE
6 Thorpe, American Charters, Constitutions and Organic Laws
LURID), i: Ti ccsscitcericwvninctseniniapainmetinnnanastntnnbiviisviaacmipreianiaas 83
6 Thorpe, American Charters, Constitutions and Organic Laws
(1909), pp. 3284-3285, 3297, 3342............-..ccceccecsscesesseeceeceeeeee- 112
7 Thorpe, American Charters, Constitutions and Organic Laws
(1909), pp. 3804, 3818, 3819 .108
4 Tiffany, “Real Property” (3rd Ed., 1939), Sec. 959.0000... 190
Tomasevich, “International Agreements on Conservation of
Marine Resources” (1943), pp. 21-23, 42.00.00000.0.cccceccccccscececeeeees 161
Welwood, An Abridgment of the Sea Laws (London, 1636), p.
188.9 40
Woolrych, Treatise on the Law of Waters and Sewers (lst
Ed. 1830), Ist Am. Ed. from 2d London Ed. (1853), pp. 32,
47 . 39, 63, 64
55 Yale Law Journal (April, 1946), p. 467.0.020....cccccccccccccceccseoee 78
tide oar eee Wee en %
* fs Pea ta PEGA PORTE ENT NT OUR TRI BRS NE IIR REN Re
APPENDIX A.
There Is No Case or Controversy Under Article III,
Section 2 of the Constitutions
We are concerned here, not with the technical form of
this proceeding, but only with the fundamental question
whether it presents a case or controversy within the con-
stitutional power of the Court to adjudicate.
_ The alternative allegations of the complaint leave the
a question in doubt as to whether plaintiff seeks a declara-
tion by the Court of the respective governmental powers
of plaintiff and defendant or some form of real property
decree in the nature or quiet title or ejectment.
Plaintiff asserts (Br. p. 207, note) that “the Com-
plaint seeks merely a declaration of rights and relief
looking to the future; . . .” The prayer of the com-
plaint is for a decree “declaring the rights of the United
States as against the State of California in the area
claimed . . .” and for an injunction to prevent the State
and “all persons claiming under it from continuing to tres-
pass upon the area ba
We make no point as to the uncertainty in the form of
the action. We propose to show that no case or con-
troversy exists because the only decree which could be
rendered herein would be an advisory opinion upon an ab-
stract and hypothetical state of facts. We will discuss
this question under two heads:
A. There is no controversy in a legal sense, but only
a difference of opinion between Federal and State
officials.
B. It is impossible to identify the subject matter of
the action.
a LI PY OE eh EAMES DALE TIL IENS B
a
A. There Is No Controversy in a Legal Sense, But Only
Difference of Opinion Between Federal and State Of.
ficials.
This action is the result of doubts which exist in the
minds of certain Federal officials as to the rights and pow.
ers of the Federal government with respect to the marginal
sea. These doubts culminated in the filing, in May, 1945,
of the suit entitled United States v. Pacific Western Oil
Corporation, in which the United States asserted rights in
the marginal sea superior to those of the State of Cali-
fornia. This action was dismissed when the present suit
was filed.
Some assertions of Federal rights were made by Federal
officials in connection with pioposed joint resolutions in-
“troduced into Congress in 1938 and 1939, which were
designed to instruct the Attorney General to file an action
similar to the present one.’ So far as we know, these
are the only assertions by officers of the United States
prior to the filing of this action of ownership or para-
mount rights in the marginal sea. None of these asser-
tions was ever Officially communicated to the State of
California.
It is important to note that although Federal officials
have expressed doubts and have, in the instances above
mentioned, asserted superior powers, they have neither
taken nor attempted to take any action to enforce the
1Congress refused to pass any such legislation.
eae.
rights or powers which they say belong to the Federal
Government. Nor has Congress ever passed any statute
authorizing or directing that Federal officials take any ac-
tion with respect to these asserted Federal powers.
This is not a case like United States v. Utah, 283 U. S.
64 (1931) wherein the complaint showed that the Secre-
tary of the Interior had issued prospecting permits cover-
ing the “riparian and river bed lands” and the permittees
of the United States were in actual possession of the prop-
erty which was the subject of the action. The State of
Utah had also issued prospecting permits covering the same
lands. There was, therefor, an actual exercise of the
claimed Federal powers which was interfered with and
contravened by State action. In the present case there
is absolutely nothing before the Court except the asser-
tions of the Federal officials on the one hand and the fact
that the State officials deny the validity of those assertions
on the other. Such a dispute does not present a justiciable
controversy.
More specifically, this suit arises out of the fact that
for some eight years the Secretary of the Interior has
been in doubt as to his power to issue Federal oil and
gas leases of submerged lands off the coast of Southern
California. During that period some 200 such applica-
tions have been filed in his office. But none of these has
been acted upon. There has been nothing to prevent the
Secretary from acting except his own doubts. It is these
doubts which the Supreme Court is now asked to resolve.
ee
At the hearings before the Senate Judiciary Committee
on February 5, 1946 (referred to in Plaintiff’s Brief pp
144 and 145, the former Secretary testified that prior to
1937 he had denied all applications for Federal oil and gas
leases off the California coast on the ground (among
others)? that “the several states owned this land beneath
the waters. . . .” The Secretary then explained his
change of policy as follows:
“But applicants and their lawyers continued to
insist that the United States does own the land and
the oil and that the Department does have the power
to grant them oil and gas leases. So we began to
have doubts. At the same time, Congress had before
it proposed legislation,® which would in one way or
another have resulted in judicial proceedings to de.
cide the issue.
“Consequently, since 1937, action on all of these
applications, of which there are about 200, has been
suspended, pending a judicial determination.‘ It is
true that I have on occasion considered the issuance
of a single oil lease on submerged coastal lands as a
*There is doubt also whether the Leasing Act of 1920 as
amended applies even if the lands belonged to the Federal Govern-
ment.
®The legislation referred to was designed to instruct the At-
torney General to file an action similar to the present one. Con-
gress refused to pass any such legislation. See Appendix B, infra,
pp. 33-37.
*Many of these applications describe enormously valuable and
highly improved filled lands which lie below the original low-water
mark in Long Beach Harbor (see map in Brief, p. 5). The ap
plicants ask the Secretary to give them Federal leases on these lands
and by his inaction since 1937 title to these valuable public and pri-
vately owned lands has remained clouded for ten years. It was
these applicants and their lawyers who caused the Secretary to
have doubts.
ERLE LR I TALL MG TE LLIN OE YM TE IUPRIER TRD, CONG PI cae a
an
possible way of precipitating a test suit to settle the
issue, but the pending Government suit has made any
such device unnecessary.
“So as soon as I realized that there were substan-
tial doubts as to the validity of the States’ claim to
submerged coastal lands below low-water mark, /
stopped all action in the Department which was based
on the assumption that the States owned these sub-
merged lands, and began to press for a judicial solu-
tion of the debated issue of law. This, I most readily
concede, was a change from the earlier action of my-
self and of the Department.”
It is important to note here that the Secretary was
not frustrated or interfered with by the State in the
performance of any of the duties of his office or in the
exercise of any alleged Federal powers. On the contrary,
he simply ‘stopped all action.” The only thing that pre-
vented him from acting was his own doubts. This Court
said in Willing v. Chicago Auditorium, 277 U. S.. 274,
289 (1928) :
“The fact that plaintiff’s desires are thwarted by its
own doubts, or by the fears of others, does not con-
fer a cause of action.”
An examination of the complaint and brief will show
that in so far as the claim of paramount powers is con-
cerned there is nothing before this Court but a conflict of
official opinion. No issue exists as to the exercise of any
specific governmental power. The Court is simply asked
for a “judicial solution of the debated issue of law.”
; a cag" oars — — . - '
ED LS Oe RL TLS RET RAEN II DED KR Ry I
ins
A situation very much like that presented here was
before the Court in United States v. West Virginia, 295
U. S. 463 (1935), wherein it was held that “rival claims
of sovereign power made by the national and a state gov-
ernment” do not create a justiciable controversy. In that
case State officials asserted a right superior to that of the
Federal Government to license the use of certain navigable
rivers within the State for the production and sale of
hydro-electric power. State officials had actually issued
licenses and permits under State laws for that purpose,
Federal officials denied the asserted State power and
claimed that Federal power was paramount. This court
was asked to settle this debated question of law.
So, in the present proceeding, the complaint asserts
that the United States owns or has paramount powers
over the marginal sea. It is alleged that California has
denied these assertions and has issued leases permitting
the exploitation of minerals in the marginal sea, just as
in the West Virginia case the State officials had issued
permits and licenses on the assumption that the State's
power was paramount.
In the West Virginia case the court said (p. 474):
“General allegations that the State challenges the
claim of the United States that the rivers are naviga-
ble, and asserts a right superior to that of the United
States to license their use for power production,
raise an issue too vague and ill-defined to admit of
judicial determination. They afford no basis for an
injunction perpetually restraining the State from as-
serting any interest superior or adverse to that of
the United States. . . .”
This holding would appear to be particularly applicable
to the “general allegation” in Paragraph VIII of the
catia
present complaint regarding California’s challenge to the
Federal claims. Paragraph VIII reads, in part:
“The State has frequently and publicly denied the
rights, powers and title of the United States in the
area and has claimed fee simple title to the area for
itself and, unless the rights of the United States
are established and declared by this Court, the State
will continue to claim such title for itself and to
exercise the rights incident to such title through its
officers, agents and employees, hy
In the West Virginia case there was a Federal statute,
ie., the Federal Water Power Act, under. which Congress
had actually asserted the right and power of the Federal
Government to deal with the navigable waters in ques-
tion. But the Court nevertheless held that the opposing
assertions and acts of ownership by West Virginia consti-
tuted no actual invasion of or interference with the rights
of the United States. The present case is even stronger
because the Congress has never passed any statute as-
serting any right or claim over the marginal sea and,
as we have said, no attempt has ever been made by Fed-
eral officials to exercise the asserted Federal powers.
Instead, the Secretary of the Interior has declined to act
on applications for Federal leases, or otherwise to take
any action at all looking toward enforcement of the
claimed Federal rights, and has merely expressed his
doubts as to the extent of his statutory and constitutional
powers. The acts and assertions of the State of Cali-
fornia, therefore, as said in the West Virginia case,
constitute no invasion of or interference “with the exer-
cise of authority claimed by the United States.” That the
State’s acts contravene the opinions of Federal officials
as to the rights of the United States is the most that can
SIRO RID AERA NPE REL AIEEE IN IOI
a
be said, and this clearly does not present a case or con-
troversy.
Furthermore, the practical impossibility of adjudicating
the respective governmental rights and powers of the
United States and California in the marginal sea is illus. .
trated by the fact that plaintiff does not and apparently
cannot define the paramount rights and powers which it
claims. And while plaintiff admits that California has
some rights in the marginal sea (Complaint par. VII), it
is impossible to determine what they are. The assertion
in Paragraph VII that California has the same govern-
mental powers over the marginal sea “which it has with
respect to other lands of the United States within the ter.
ritorial jurisdiction of the State” means nothing, be
cause in some instances California has ceded exclusive jur-
isdiction to the Federal Government (under Art. I, Sec. 8,
Clause 17, Const.) and in other instances retains complete
legislative powers. The Federal Government owns still
other lands in California over which partial or limited jur-
isdiction has been ceded by the State. The governmental
powers of California and hence of the Federal Government
differ as to each of these types of land. Under these vague
and uncertain allegations plaintiff asks the Court, in the
prayer of the complaint, to declare “the rights of the
United States as against the State of California in the
area claimed .”’ If this means what it says, plain-
tiff is asking this Court to define and declare all the re-
spective governmental powers of the State and the Fed-
eral Government in the marginal sea. We submit that
such a declaration would be a practical impossibility—and
even if it could be done, would be an adjudication in the
abstract of innumerable questions affecting navigation,
=
fisheries, minerals and innumerable other interests which
are involved in the coastal waters of the State.
Such an adjudication would fill volumes and would deal
with hypothetical situations only. Obviously, such a de-
cree should await cases presenting particular facts. The
courts have never undertaken to declare the limit of the
respective powers of the States and the Federal Gov-
ernment by any general over-all pronouncement, but have
established these limits point by point in actual cases pre-
senting specific facts. A decree such as that asked in the
prayer in this case would be advisory in the most
extreme sense. ;
It might be urged that the relief sought is proper
under the Declaratory Judgment Statute of 1934 (48
Stat. 955), although the action was not brought under
that statute. Assuming that this Act is applicable to
original proceedings in the Supreme Court,® the Court is,
nevertheless, without jurisdiction unless a case or con-
troversy in the constitutional sense is presented. In the
case of Aetna Life Ins. Co. v. Haworth, 300 U. S. 227
(1937), this Court held that in an action for declaratory
relief there must be a “controversy admitting of specific
relief through a decree of a conclusive character” as dis-
tinguished from an advisory opinion.
5In Arizona v. California, 283 U. S. 423, 464 (1931), decided
prior to the enactment of the Declaratory Jugment Statute, the
Court said: “This Court cannot issue declaratory decrees.” It does
not appear whether this statement was predicated upon the ab-
sence of constitutional power or upon the fact that Congress had
provided no procedure for declaratory judgments in original
proceedings.
SPR AVAL Ete akes ran oto nr hac hate oto, cS
_ oe
In the West Virginia case the court said, regarding the
declaratory judgment statute (p. 475):
“ , . . that act is applicable only ‘in cases
of actual controversy.’ It does not purport to alter
the character of the controversies which are the sub-
ject of the judicial power under the Constitution.”
The abstract character of the controversy attempted to
be presented here would not be altered by calling it a
proceeding for declaratory relief. The question before
the Court still remains only a debated question of law as
to which Federal officials seek an advisory opinion before
proceeding to act upon matters pending before them.
It has been determined by this Court from the begin-
ning of its history that it has no constitutional power to
render advisory opinions to Federal officers. Not even the
President can properly ask the Supreme Court to resolve
his doubts as to his constitutional powers.°
B. It Is Impossible to Identify the Subject Matter of the
Action.
Plaintiff has predicated its entire case upon the theory
that distinctions exist between inland waters and mar-
ginal sea which can furnish the basis for an adjudication
of rights in real property as between State and Federal
Governments. In its brief (pp. 9 and 66) it states that
there are “pivotal” and “crucial” distinctions between the
three-mile belt on the one hand and bays, harbors and “‘in-
®See letter of Chief Justice Jay declining to render an advisory
opinion to President Washington set out in Robertson & Kirkham,
Jurisdiction of the Supreme Court of the United States (1936),
p. 417. See also Muskrat v. United States, 219 U. S. 346, 354
(1911).
lh la La LL Be nT on ae
bay . . ~ ’ ¥
wilithins
land waters” on the other hand. Plaintiff concedes that
the State is the owner of the “inland waters,” ports, bays
and harbors and lands between high and low water. Ob-
viously, then, if the distinction claimed does not exist as a
basis for adjudicating titles to real property, plaintiff has
not stated a case or controversy.
The only ground advanced by plaintiff in support of this
alleged distinction is the argument that the three-mile belt
is a creature of international law and for this reason pro-
prietary rights in the three-mile belt vested in the Federal
Government, whereas, the rights in inland waters which
are vested in the States were not created: by international
law. This is the “crucial” and “pivotal” distinction upon
which plaintiff’s entire case hinges. We shall show at the
proper time that this distinction is totally unfounded and
that proprietary rights as between States and Federal Gov-
ernment never were and never could be predicated on in-
ternational law. (Brief, pp. 186-191.) But, for the purpose
of determining whether a case or controversy is presented,
we shall assume (without admitting it) that the distinction
alleged by plaintiff could exist. We propose to show that,
even under this assumption, it would be impossible to
render a decree which could be made applicable to any
particular land.
The basic requirement of a justiciable controversy is
that it “must be definite and concrete, . . . It must be
a real and substantial controversy admitting of specific re-
lief through a decree of a conclusive character, as distin-
guished from an opinion advising what the law would be .
upon a hypothetical state of facts.”
"Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (1937).
7 on aimnget AAPG IY BLAGE LSP IRENE Te OE Pe 9
Pe re emncegyey ARYAN YI CEI ATTRA NO AT LED EI EGE
Vy Ne ied 2
a= | 2
(a) PuaintirF Has FarLep To IDENTIFY THE LANps
CLAIMED.
In the present case plaintiff seeks to obtain a decree ad-
judicating rights in an undefined area of land “lying sea-
ward of ordinary low water mark . . . and outside of
inland waters” of California. In its brief plaintiff asserts
(p. 2) that “No claim is here made to any lands under
ports, harbors, bays, rivers, lakes, or any other inland
waters; . . .” It must be assumed, therefore, that
ports, bays and harbors are included within the term “in-
land waters” and that the area claimed is a three-mile strip
lying outside of such waters. Plaintiff does not and can-
not define what is meant by ports, bays and harbors and
“inland waters,” and as to several of the most important
ports, bays and harbors in California plaintiff asserts that
it is in doubt whether they constitute “inland waters” or
“open sea.”
No description or identification of the lands which are -
the subject of this action, other than that quoted in the
preceding paragraph, can be found anywhere in plaintiff’s
complaint or brief, except that the area claimed is also
referred to in the brief as being “the marginal sea.” The
marginal sea is described as being a three-mile strip meas-
ured seaward “from the mean low water mark or from
the seaward limit of a bay or river-mouth.” (Br. p. 18.)
Inland waters are described as being inside the marginal
sea, that is, “landward of mean low-water mark and of the
seaward limit of bays and mouths of rivers.” (Br. p.
18.) The essence of the matter is that the marginal sea
is a belt of sea which is seaward of inland waters,
and inland waters are those waters which are landward of
the marginal sea.
DUNE WAN EET NOY RON SANA BR aie yy fe NOSSO CMEN RIO
—13—
We submit that these terms describe no lands which can
be identified—they merely refer to the existence of an un-
described and unidentified area somewhere near the Cali-
fornia coast. A decree purporting to adjudicate owner-
ship of such an area and to enjoin the State and those
claiming under it from trespassing thereon would be purely
hypothetical. Such a decree would not adjudicate rights
in any particular tract or area of land and no alleged tres-
passer would know upon what land he was forbidden to
trespass. Such a decree would merely declare abstract
principles which could be used for the guidance of the
Secretary of the Interior and as the basis for subsequent
actions in which specific relief could be granted.
This is not a case of a technical uncertainty in a
description. It is a failure to present a claim as to any
area which is susceptible of a description in a judicial
decree.®
The basic fallacy of plaintiff’s case is that it assumes
that ownership of land can be determined in the abstract
before it is determined what land is to be the subject of
the decree. In other words, plaintiff asks the Court to
render a decree adjudicating title to land independently
emia’
‘If it should be urged that the case of United States v. Utah, 283
U. S. 64 (1931), supplies a precedent for the present action, refer-
ence to the complaint in that case (paragraphs II, III and IV) will
to known geographical features. It was further alleged that the
river bed not claimed were described by Section and Township
numbers. None of the uncertainties created by the attempt to
describe lands as “outside inland waters” were present in that case.
The identity and description of the disputed lands were accurately
set forth and were admitted in the answer.
’ COIL PROMS gM APETC AIRY S OTT INT ORIY OR PAE RE ae
RATES acetate te a ee, ee,
*
of any identification of the land to which that decree is
to be applied. Such a procedure would be wholly outside
the judicial power. Unless the decree could be applied
to particular land it would necessarily be abstract. As
the court said in the Aetna case, it would be an opinion
“upon a hypothetical state of facts.”
It might, indeed, be convenient for plaintiff to. have
the question answered in the abstract as to who owns
the bed of the marginal sea and who owns the bed of
“inland waters,” leaving the plaintiff free to select which
bays and harbors it will claim to own. For the Court
to issue such an abstract advisory opinion before the
lands to which it is to be applied are identified, would,
we submit, be an unconstitutional exercise of judicial
power.”
(b) Ir Wou tp Be ImpossiBLE TO RENDER A DECREE IN
Tuis Case Wuicu Coutp Be MapeE To AppPpty To
Any ParticuLar LANp.
“The first call of a theory of law is that it should fit
the facts.’”"° The theory (even if it were tenable) that
title to lands beneath the marginal sea outside bays, ports
and harbors vested in the Federal Government under in-
ternational law does not furnish any test by which it
can be determined where the dividing line is to be placed
between ports, bays and harbors and marginal sea. The
truth is, as we shall show, that neither international law
nor any other law supplies any rule or principle by
*Muskrat v. United States, 219 U. S. 346 (1911); New Jersey
v. Sargent, 269 U. S. 328 (1926); In re Summers, 325 U. S. 561
(1945).
10Holmes, The Common Law, p. 211.
willie
which ports, bays and harbors can be defined and de-
limited so as to set them apart from the marginal sea.
Plaintiff’s theory that such a distinction can be made the
basis of establishing titles to real property is totally
at variance with the physical facts and practical prob-
lems involved.
It must be remembered that we are dealing with titles
to real property, hence exact boundaries would have to be
fixed. The dividing line between bays, ports and harbors
and marginal sea would have to be established by court
decree before anyone could buy, sell, lease, mortgage, im-
prove or otherwise deal in any lands adjacent to this
line or before the cities or the State could levy taxes and
adjust their tax rolls to the new findings of ownership.
Plaintiff’s theory apparently assumes that the coast line
of California is readily divisible into open coast on the
one hand and “inland waters,” including ports, bays and
harbors on the other. The California coast, though not as
irregular as the coast of Maine, has very few stretches
which can be definitely classified as “open coast.” The
coast line is a succession of curves, indentations, coves
and inlets, separated by sharp points or rounding head-
lands. These indentations are of every conceivable shape
and size and there are literally hundreds of them. Which
of these indentations constitute “bays and harbors” or
inland waters under plaintiff’s theory that legal title to
real estate depends on their status, cannot be determined.
Plaintiff itself cannot apply its theory in particular
instances and for that reason does not know and cannot
inform the Court and the defendant what land it is
claiming. Plaintiff is “doubtful” whether such historic
bays as Santa Monica and San Pedro Bays are “inland
Pa
waters” or “open sea.””* As to San Pedro Bay plaintiff
says (Br. p. 228):
*“It is not clear whether San Pedro Bay is to be
regarded as a true bay, or as open sea. However,
the area has been held to be inland waters in United
States v. Carrillo, 13 F. Supp. 121 (S. D. Cal.)’”
As to Santa Monica Bay plaintiff says (Br. p. 231):
“in view of the configuration of the coast . . . it
is not clear whether this area should be regarded as
a true bay, notwithstanding that it has been held to
be such for other purposes. See People v. Stralla,
14 Cal. (2d) 617 (1939).””*
What is said by plaintiff about “the configuration of
the coast” which forms Santa Monica Bay can be said
of hundreds of other configurations of the coast line.
Each of the hundreds of configurations of the Cali-
fornia coast has its own peculiar characteristics and local
history. Many of these are shown on official maps as
bays or harbors. For illustration, we might mention:
San Diego Bay Morro Bay
Mission Bay Monterey Bay
Laguna Bay Half Moon Bay
Newport Bay San Francisco Bay
Anaheim Bay Bodego Bay
Alamitos Bay Bolinas Bay
San Pedro Bay Drake’s Bay
Hueneme Harbor Humboldt Bay
Santa Monica Bay
"In this connection plaintiff apparently uses the term “open
sea” as synonymous with “marginal sea.’
12In this case San Pedro Bay was defined as extending a dis-
tance of 14 miles from Point Firmin to Huntington Beach. See
map in Brief, p. 5. It was held to be a bay largely on “historic”
grounds.
18Santa Monica Bay lies between headlands 25 miles apart. It
was also held to be a bay on “historic” grounds.
ETSI ID LEBEN PEI TE ETRE IE SEE DAP EET MS
aniiiice
The impossibility of laying down any general rule which
could form the basis of a decree adjudicating for title pur
poses which of these bays are inland waters and which are
part of the marginal sea is shown by the comment in plain-
tiff’s brief, where it is said (p. 18, footnote 8):
“cc
There has been some disagreement over
the proper classification of large bays and gulfs, i. ¢.,
whether they are ‘inland waters’ or whether they are
a part of the ‘marginal sea’ or of the ‘open sea’.
When they are less than ten miles in width at their
entrance, they are generally deemed to be inland
waters. But certain ‘historic bays,’. like the Dela-
ware, Chesapeake, and Conception bays, are admit-
tedly inland, even though more than ten miles across
at their mouth. There has also been some conflict
about how lines should be drawn where a number of
islands along the coast extend outward several miles
from, and somewhat parallel with, the mainland.
Since each island is entitled to a marginal belt of
three miles, these interlocking belts may enclose a
small portion of what would otherwise be a part of
the open sea. If these enclosures are not too large,
they are generally deemed to be a part of the mar-
ginal sea of the adjacent state.”
All the problems above outlined exist along the Cali-
fornia coast. There are, for example, a number of islands
along the coast which extend outward from and somewhat
parallel with the mainland. The waters between these
islands and the mainland are commonly known, and are
designated on official maps, as “San Pedro Channel” and
“Santa Barbara Channel,” respectively. These channels
have the characteristics of “inland waters” but whether they
are “inland waters” in the sense used in plaintiff’s complaint
FES ya sarees Ronee mE ICE NEES SEH RRO REE
ondiies
has never been determined and no rule or principle
exists from which such a determination can be made.
The situation on the California coast is even more com-
plicated than that described by plaintiff, for there is not in
California any law or rule of decision that indentations in
the coast line must be less than 10 miles in width at their
entrance in order to constitute bays.* In fact we know of
no such law anywhere except as found in certain treaties
relating to fisheries. In Massachusetts the distance is fixed
at “two marine leagues” by the Statute of 1859. In Cali-
fornia the courts have, in three important instances, held
that bays having headlands which are more than 10
miles apart constitute “bays”.”*
Furthermore, it appears from the reservations expressed
as to San Pedro and Santa Monica Bays that not all bays
are exempted from plaintiff’s claim, but only “true bays.”
We respectfully submit that the question of what con-
stitutes “a true bay” is not susceptible of adjudication
under any statute or rule of decision.
A legislature may arbitrarily define what shall constitute
a bay, as was done by the Massachusetts statute. Or
Congress may delegate similar powers to an administrative
agency for certain specific purposes. An example of
this is the statute under which the Secretary of Com-
merce is authorized “from time to time to designate and
define by suitable bearings or ranges with lighthouses,
14The California Constitution and statutes include all bays and
harbors, within the State’s boundary, but do not define these terms
and no minimum width at the entrance is specified.
15San Pedro and Santa Monica Bays (supra) and Monterey
Bay, which was held to be a bay on “historic” grounds in Ocean
Industries, Inc. v. Superior Court, 200 Cal. 235 (1927), although
the headlands are 18 miles apart.
=
light vessels, buoys or coast objects; the lines dividing the
high seas from rivers, harbors and inland water.” (33
U. S. C, A. 151.)
The phrase “inland water,” as used in this statute re-
fers only to those waters which happen to be designated
by the Secretary from time to time and marked by buoys,
lighthouses or other objects for the purpose of preventing
collision of vessels."* When new harbors are developed or
old ones are changed by breakwaters or other structures,
the Secretary will designate new lines for the purpose of the
application of the pilot rules. Obviously this can have
no relation to land titles. It cannot be supposed that rights
in real property beneath the waters will pass from one
sovereign to the other as the result of the decision of the
Secretary to move the location of a line of buoys. The way
in which this statute has been applied by the Secretary is
illustrated by maps of certain harbors published by the
United States Coast Guard, entitled Rules to Prevent Col-
lisions of Vessels and Puot Rules for Certain Inland
Waters, United States Government Printing Office, March
1946. A copy of these maps is inserted at this point. Ref-
erence to such instances as Galveston Bay and the Colum-
bia River will be of interest as illustrating the impossibility
of adjudicating land titles on the basis of any arbitrary
definition of harbors or inland waters.
Ports, bays and harbors may be and frequently are ar-
bitrarily designated and marked for a variety of particu-
lar purposes, but for the Court to make an overall pro-
nouncement declaring, for title purposes, what constitutes
ports, bays, harbors and inland waters, and distinguishing
ee
United States v. Newark Mcadows, 173 Fed. 426, 428 (1909).
—_— =
“historic bays” and “true bays” from bays in general,
would be, we submit, not only abstract and nonjusticiable
but a practical impossibility. This can be readily demon-
strated by reference to some of the specific problems that
would be involved in attempting such a declaration.
(i) When does a bay become a “true bay’?
Plaintiff concedes that a body of water which, in its
natural state, does not constitute a “true bay” may, never-
theless, become a “true bay” by virtue of history or tradi-
tion. Delaware and Chesapeake Bays are admittedly true
bays on “historic grounds,” although more than 10 miles
across at their mouths. Being “true bays,” these bays
presumably come within the category of inland waters,
the beds of which are vested in the adjacent States.
This conception of how “inland waters” may be estab-
lished leads to some startling results when applied to real
estate titles.
It must be borne in mind that the critical date for the
determination of the title or rights of the State to the
lands under its navigable waters is the date of the State’s
admission to the union.” It would thus be necessary, in
order to determine what lands are the subject of the action,
to ascertain which of the many indentations on the Cali-
fornia coast constituted “true bays” on September 9,
1850. Not only would physical conditions have to be
ascertained as of that date, but the state of the history
and tradition with regard to any particular body of water
on September 9, 1850 would have to be determined.
Will it be plaintiff’s position that the legal status and
title of all bays were irrevocably fixed either by nature or
Pollard v. Hagan, 3 How. 212 (1845); Shively v. Bowlby,
152 U. S. 1 (1894).
SBIR SE REL SOE LE FEMS POE IED POE E NED RESIS IOUS RRS Oo eae ee ganas
—20-a—
PILOT RULES FOR INLAND WATERS
WELLES AEA BE a pas rman
= \
PILOT RULES FOR INLAND WATERS
—20-c—
UNITED STATES COAST GUARD
33135/PP0 S0uNm
EE LT OIA LTTE RR MEI oY ABST SRILA TORR gs tere ema
by history on September 9, 1850? If plaintiff takes this
position, its repeated assertions that it is not claiming
ports, bays and harbors in this action are illusory and to
a large extent untrue, for it is certain that many ports,
bays and harbors, both in old and new States, have been
developed and become generally recognized since the ad-
mission of the particular State into the Union.
If it is not plaintiff’s position that the legal status and
title of all bays were irrevocably fixed on September 9,
1850, then (under plaintiff’s theory of the case) it would
have to be determined, as to each traditional port, bay
and harbor and as to every indentation in the coast line,
whether it has become a true bay since that date and, if
so, at what time. If a body of water which did not con-
stitute a “true bay” on the date the State was admitted to
the Union has subsequently, by reason of artificial works
or historical factors, become a “true bay,” then it must
follow, since plaintiff concedes that the States own the
beds of “true bays,” that title passes from the Federal
Government to the State upon the date when the transi-
tion from marginal sea to a “true bay” occurs. If this is
plaintiff’s position, plaintiff will be forced to admit that a
State may acquire title as against the United States by
long usage—for an “historic” bay is nothing more than
a bay by long usage. But plaintiff argues strenuously
in its brief (pp. 163, et seq.) that titles or rights in land
cannot be acquired by a State as against the United
States by long usage, acquiescence or any related- sen
trine. What, then, is its position?
Furthermore, if it should be held that title changes
hands when a bay or harbor is artifically created, no judg-
ment that any particular piece of coast line is not now
rote peugeiiee tears
Lee Ap PRL RR RAT LENORE LOL MET CM
=
a “true bay” would ever be final. "For whenever the
growth of a community resulted in the creation of a new
harbor the question would have to be determined as to
when and to what extent title or rights passed from the
Federal Government to the State.
The utter confusion which would be produced by at-
tempting to predicate land titles on any such shifting and
uncertain base as the distinction between “true bays” and
“marginal sea” not only illustrates the impossibility of
granting specific relief in this case but also demonstrates
the complete unsoundness of plaintiff’s claims.
(ii) What constitutes a port?
Still further confusion arises from the use of the term
“ports.” Plaintiff says it is not claiming “ports.” (Br. p.
2.) Buta port may exist entirely outside “inland waters.”
A “port,” although it has a variety of meanings, is com-
monly used to denote a place of destination. This may be
a wharf projecting into the “open sea” or a roadstead
in the “open sea” where goods and passengers are un-
loaded in small boats.”*
18For the purposes of marine insurance an open roadstead has
been held to be a port. (DeLongumere v. N. Y. Fire Ins. Co.
10 Johns. 120, 123 (1813)). The limits of a port are, in some
instances, fixed statute. (Devato v. 823 Barrels of Plumbago,
20 Fed. 510, 51 (1884).) A Federal statute defines the word
“port” as meaning “either the port where the vessel is registered
or enrolled, or the place in the same district where the vessel was
built or where. one or more of the owners reside.” (23 Stat.
53, 58, applied in Ayer & Lord Co. v. Ky., 202 U. S. 409, 420
(1905).) The term “port” as used in Rev. Stat., Sec. 4347, has .
been held to include an island without a port of entry. Petrel
Guano Co. v. Jarnette, 25 Fed. 675, 677 (C. C. N. C. 1885). In
Hartwell Lumber Co. v. U. S., 128 Fed. 306, 308 (C. C. N. D. II.
1904), the Court said: “What constitutes a port for the purposes
of the revenue act must of necessity be a matter of proof in each
case.” The terms bays and harbors have equally diverse meanings.
(See Words and Phrases.)
ani GGone
-As an illustration of the problem thus created, men-
tion might be made of the “Long Wharf” formerly ex-
isting in Santa Monica Bay but which has now been
removed. Prior to the construction of the first breakwater
in San Pedro Bay a large amount of commercial shipping
was conducted at the Long Wharf above mentioned.
This wharf undoubtedly constituted a “port” (irrespec-
tive of whether Santa Monica Bay is a “true bay”).
Numerous similar “ports” exist on all coast lines. How
can the existence of such a port have any bearing on
Federal or State ownership of land? If the State owns
the land beneath “ports,” what land would it own in
relation to a commercial wharf projecting into the open
sea? Would the land in which the piles were embedded
change hands when the wharf is built and revert again
to the Federal Government when the wharf is removed or
destroyed ?
(iti) When does a bay become open sea?
The problem of defining bays and harbors is discussed
in Delimitation of the Territorial Sea, by S. Whittemore
Boggs, Geographer, Department of State, 24 Am. J. Int.
L. 541 (1930). Regarding bays and harbors Mr. Boggs
says (pp. 548-9):
“There is no other aspect of the problems of delimit-
ing territorial waters which has occasioned as much
difficulty as the determination of the particular inden-
tations of the coast—whether called bays, gulfs, estu-
aries, or anything else—whose waters constitute na-
tional or interior waters rather than territorial
waters. The North Atlantic Fisheries Arbitration
Tribunal, for example, decided that
“In case of bays, the three marine miles are
to be measured from a straight line drawn across
—24—
the body of water at the place where it ceases to
have the configuration and charactertistics of a
bay.’
“There is as yet, however, no established rule by
which to determine what bodies of water ‘have the
configuration and characteristics of a bay.”
The essence of the matter is that the difference between
a bay and the open sea is only a difference in degree and
not in kind. There is no generic distinction—and no basis
on which a rule of law can be predicated. One of the defini-
tions of the word “bay” given in Webster’s Dictionary is:
“An inlet of the sea, usually smaller than a gulf, but of
the same general character. The name is loosely used,
often for large tracts of water, around which the land
forms a curve, or for any recess or inlet between capes or
headlands.”
A bay may widen gradually until it is merged in the
sea. When does it cease to be a “bay” and become “open
sea”? No answer is possible except a purely arbitrary
one. So far as the State of Massachusetts is concerned,
Massachusetts Bay ceases to be a “bay” at a line where
the headlands are two marine leagues apart. This is not
because of any principle or formula of general application
but simply because the legislature has declared it to be so.
Public maps show Massachusetts Bay as extending to a
line from Cape Cod to Cape Ann, a distance of 42 miles.
Is the area between the 6-mile line and the 42-mile line a
“true bay”?
Plaintiff is “doubtful” whether Massachusetts bay is to be
treated as “open sea” or an “historic bay” (Br. p. 254).
—25—
Obviously, such questions cannot be answered by any
decree which could be rendered in advance of a determina-
tion of the status of each particular port, bay, harbor or
indentation in California’s coast line.
It is true that the Complaint purports to describe one
parcel of property (Par. V1) which is alleged to be under
lease from the State to Pacific Western Oil Corporation.
Although that Company is clearly an indispensable party,
it is not named as a defendant. This one parcel is re-
ferred to merely as an example of an instance in which the
State has leased submerged lands for the development of
oil. It should be noted, incidentally, that this land lies
within what is described on official maps as the “Santa
Barbara Channel” and one of the issues as to this par-
ticular parcel would be as to whether or not the Santa
Barbara Channel is “inland water.” Even as to this par-
cel there would be special issues not presented by the plead-
ings in this suit. It would seem to us extremely doubtful
whether the reference to one small parcel of property de-
scribed as being below “low tide” is sufficient to obviate
the constitutional objection that the relief sought, which is
a declaration of rights as between the United States and
California in the entire marginal sea of the State, is no
more than an advisory opinion. And, obviously, the Court
could not, on the basis of a finding as to this one parcel,
issue any injunction “against all persons claiming under
it [the State of California] from continuing to trespass
upon the area in violation of the rights of the United
States.”
willie
It may be argued by plaintiff that the Court might enter
a preliminary decree which, if it held that the United
States owned the marginal sea, could then be followed by
the appointment of a Master who would take specific evi-
dence as to each of the bays and harbors in California, and
the location of the mean low-water line on the State’s
thousand miles of coast. But this would not meet the
fundamental constitutional objection, for the reason that,
as we have already shown, such a preliminary decree would '
merely be the pronouncement of an abstract principle made
without reference to the particular land to which it is to
be applied. An advisory opinion on an abstract principle
is not rendered constitutional by calling it a preliminary or
interlocutory decree.
Furthermore, if a Master were called upon to take evi-
dence as to the status of each of the ports, bays, harbors
and coves on the California coast, specific and separate
defenses, and different issues not involved in the pres-
ent Complaint would certainly be raised in each instance.
It would also be necessary to name the parties, if any, who
are in possession or who assert adverse claims to the par-
ticular lands under investigation. Such a procedure
would, in legal effect, be a series of independent lawsuits
involving separate issues and additional parties.
Thus, the questions here submitted to the Court remain
non-justiciable until specific issues are raised as to the
actual exercise of powers over identified lands and the
parties in possession of such lands are before the Court.
; -~27—
(iv) What law governs?
Finally, if this Court is to decide, with the aid
of a Master or otherwise, whether or not Santa Monica
and San Pedro and all tlie other bays and curves in the
coast line of California are “true bays,”’ it is, we believe,
pertinent to ask, what law will be applied? International
law furnishes no guide. There is no Federal law on the
subject except court decisions as to specific cases, such as
United States v. Carrillo, supra, which plaintiff declines to
accept. Plaintiff also rejects the decisions of the State
Courts. So far as we know, Massachusetts is the only
State having a statute which defines bays in terms of the
distance between headlands. Would plaintiff accept this
statute as binding even in Massachusetts? If it would,
then why not accept the decision of the California Supreme
Court? If not, what is the rule of decision?
We mention this uncertainty merely to illustrate the
non-justiciable character of the questions before the Court.
The court cannot in the abstract define “true bays,” ports,
harbors and inland waters and marginal sea because they
have no legal status. They are not legal subdivisions of
either land or water. They are, as we said at the outset,
merely loosely descriptive terms which have only the
meaning attributed to them by the person using them.
They present nothing upon which “the judicial power is
capable of acting.””°
Osborne v. United States Bank, 9 Wheat. 737 (1824).
—22—
In the early case of Cohens v. Virginia, 6 Wheat. 264
(1821), the Court defined what is meant by “a case”
under the Constitution.
“. . What is a suit? We understand it to be
a prosecution or pursuit of some claim, demand or
request; in law language, it is the prosecution of
some demand in a court of justice. The remedy for
every species of wrong is, says Judge Blackstone,
‘the being put iw possession of that right whereof
the party injured is deprived.” There must be
“the lawful demand of one’s right; -
Plaintiff’s complaint in this proceeding does not meet
this test for the simple reason that it is impossible to
determine from it of what rights or of what property
plaintiff claims to have been deprived. The present suit
contains no “lawful demand of plaintiff’s right.” No
rights are asserted or defined of which plaintiff could be
put in possession. It is merely asserted that plaintiff
either owns or has some undefined right in some undefined
area outside of some undefined waters. Plaintiff does not
ask the Court to adjudicate title to any land. In reality,
what it asks is that the Court will advise it as to whether
there are any general principles of law upon which it
could be the owner of lands and, if so, what those prin-
ciples are. It can then apply those principles to any par-
ticular area which it may think they will fit.
That the questions here submitted to the Court are
abstract and hypothetical in character (and hence outside
the judicial power under our law) is very clearly shown
by the decision on similar questions submitted to the
Judicial Committee of the Privy Council on appeal from
the Canadian case cited as Attorney General for British
—29.—
Columbia v. Attorney General for Canada, [1914] A. C.
153. In Canada there is statutory authority under which
the Supreme Court of Canada may be asked for an ad-
visory opinion on certain questions of law and this case
arose under that statute. Two of the questions submitted
to the Supreme Court of Canada were quite similar in
character to those upon which the plaintiff asks the Court
to advise in the present case. These questions were (p.
163) :
“2. Is it competent to the Legislature of British
Columbia to authorize the Government of the Prov-
ince to grant by way of lease, license, or otherwise,
the exclusive right, or any right, to fish below low
water mark in or in any or what part or parts of
the open sea within a marine league of the coast of
the Province?
“3. Is there any and what difference between
the open sea within a marine league of the coast of
British Columbia and the gulfs, bays, channels, arms
of the sea, and estuaries of the rivers within the
Province or lying between the Province and the
United States of America, so far as concerns the
authority of the Legislature of British Columbia to
authorize the Government of the Province to grant
by way of lease, license, or otherwise, -he exclusive
right or any right to fish below low water mark in
the said waters or any of them?”
As to the advisory character of the proceeding and
the reluctance of the court, even when authorized by
statute, to pass on abstract questions the court said
(pp. 161-2):
“Viscount Haldane L. C. This is the appeal of
the Government of British Columbia from answers
— on
given by the Supreme Court of Canada to certain
questions submitted to it by the Canadian Govern-
ment, under the authority of a Statute of the Do-
minion Parliament. The questions did not arise in
any litigation, but were questions of a general and
abstract character relating to the fishery rights of
the Province.
“Tt is clear that questions of this kind can be
competently put to the Supreme Court where, as in
this case, statutory authority to pronounce upon
them has been given to that Court by the Dominion
Parliament. The practice is now well established,
and its validity was affirmed by this Board in the
recent case of Attorney-General of Ontario v. At-
torney-General of the Dominion.” It is at times
attended with inconveniences, and it ts not surprising
that the Supreme Court of the United States should
have steadily refused to adopt a similar procedure,
and should have confined itself to adjudication on
the legal rights of litigants in actual controversies.
But this refusal is based on the position of that
Court in the Constitution of the United States, a
position which is different from that of any Canadian
Court, or of the Judicial Committee under the statute
of William IV. The business of the Supreme Court
of Canada is to do what is laid down as its duty hy
the Dominion Parliament, and the duty of the Judi-
cial Committee, although not bound by any Canadian
statute, is to give to it as a Court of review such
assistance as is within its power. Nevertheless, under
this procedure questions may be put of a kind which
it is impossible to answer satisfactorily. Not only
eee
21[1912] A. C. 571.
ae ESS
may the question of future litigants be prejudiced
by the Court laying down principles in an abstract
form without any reference or relation to actual
facts, but it may turn out to be practically impossible
to define a principle adequately and safely without
previous ascertainment of the exact facts to which
it is to be applied. It has therefore happened that
in cases of the present class their Lordships have
occasionally found themselves unable to answer all
questions put to them, and have found it advisable
to limit and guard their replies.”
We have here the considered opinion of the Judicial
Committee that
1. Answers to questions, without the previous
ascertainment of the facts to which the answers
would be applied, are abstract;
2. Principles laid down in abstract form without
reference to actual facts, would prejudice future liti-
gants; and
3. It would be practically impossible for an-
swers to such questions to define any principle ade-
quately and safely.
Even with statutory power to give an advisory opinion,
the Judicial Committee was extremely hesitant and it
narrowly confined the opinion expressed. It is not with-
out interest to note that the Judicial Committee referred
to the non-justiciability of such questions in the Supreme
Court of the United States.
=
APPENDIX B.
- The Attorney General Is Not Authorized to Bring or
Maintain This Proceeding.
' Congress has consistently followed a policy for over
q one hundred years of not asserting ownership in the
tide or submerged lands underlying either the marginal
~~ sea or the so-called “inland waters”. This policy has
been confirmed by affirmative action on the part of Con-
"gress on a number of occasions, declaring and asserting
the ownership of the States in the submerged lands under-
lying the marginal seas as well as their “inland waters.”
“ . . the United States early adopted and
constantly has adhered to the policy of regarding
lands under navigable waters in aquired territory,
while under its sole dominion, as held for the ultimate
benefit of future states, and so has refrained from
% making any disposal thereof, save in exceptional
instances. =
This policy of Congress has been recognized by this Court
and other courts in many decisions.’
The supporting data with additional affirmative acts
- showing this to be the policy of Congress are set forth in
detail in Appendix G on “Acquiesence”’.
Congress on two recent occasions has refused to change
or alter this policy upon being requested by certain officers
10). S. v. Holt State Bank (1926), 270 U. S. 49, 55.
*For example: Shively v. Bowlby (1894), 152 U. S. 1, 43, 48—
Z “settled policy” ;
Mann v. Tacoma Land Co. (1894), 153 U. S. 273, 284—“the
_ whole policy” ;
Heine v. Roth (D. C. Alaska, 1905), 2 Alaska 418, 424—“the
policy of the United States.”
insite
of the Executive Department to do so. In 1938 and 1939
Congress rejected proposed joint resolutions presented to
‘ it whereby the ownership of the coastal waters of Cali-
fornia and other coastal States would have been asserted
on behalf of the United States and the Attorney General
would have been directed to file proceedings similar to
the instant one.*
In 1946 the Senate and the House of the 79th Con-
gress both passed a joint resolution quitclaiming to the
States respectively all lands below ordinary high water
mark underlying all navigable waters within State boun-
daries except only those the United States had acquired
by purchase, condemnation or donation.‘ While the
President vetoed this joint resolution on August 1, 1946,
its passage by both branches of Congress evidenced the
continued adherence to this policy by Congress.
The present suit was, therefore, brought by the Attorney
General not only without any specific authorization from
Congress but in direct conflict with the established policy
of Congress on the subject. The question is whether
the Attorney General has authority to do so in view of this
Congressional policy. |
The office of the Attorney General was created by
Congress by Act of September 24, 1789, fixing his
duties as including the prosecution and conduct of suits on
behalf of the United States.° Thus the power of the
Attorney General emanates from Congress. He has
8S. J. Res. 208, 75th Congress, 3rd Session; S. J. Res. 83, 92,
76th Congress, 1st Session.
4S. J. Res. 225, 79th Congress, Ist Session.
56 Opinions of Attorney General 326, 330, 335.
fio
been given general authorization from Congress to bring
all proceedings in which the United States is interested.®
On the other hand, the Attorney General has no authority
to bring suits which Congress has directed he shall not
institute.”
The question here is whether the Attorney General
has the right to institute a proceeding on behalf of the
United States which is contrary to the established policy
of Congress. We believe that he does not have this
authority. In United States v. Pan-American Petroleum
Company, 55 Fed. (2d) 753, 774 (C. C. A. 9, 1932),
cert. den. 287 U. S. 612, where the court, in reviewing
the authority of the Attorney General to institute and
maintain a suit to set aside certain oil leases included
within Naval Petroleum Reserve No. 1, said:
“But it might well have been said, if Congress had
given ‘charge and control’ of litigation as to certain
named leases to special counsel, and had expressly
6 U.S.C. A, Sec. 291, R. S. §346; 5 U. S.C. A, Sec. 309,
R. S. §359.
'Kern River Company v. United States (1921), 257 U. S. 147,
155, states that:
“In the absence of some legislative direction to the contrary,
and there is none, the general authority of the Attorney Gen-
eral in respect of . . . litigation which is necessary to es-
tablish and safeguard its [the United States’] rights affords
ample warrant for the institution and prosecution by him of
a suit such as this.”
United States v. United States F. & G. Co. (C. C. A. 10, 1939),
106 F. (2d) 804, 807 (reversed on other grounds 309 U. S. 506),
states that :
“In the absence of a controlling statute, the Attorney Gen-
eral of the United States is authorized and empowered to in-
stitute . . . proceedings deemed necessary to safeguard or
enforce the rights of the United States.”
a United States v. San Jacinto Tin Co. (1888), 125 U. S. 273,
=
ratified all other leases not specifically condemned,
that Congress had indeed deprived the Office of
Attorney General of any jurisdiction as to the un-
named leases. It would not be supposed that Con-
gress would expect that the Attorney General would
file suits to cancel the ratified leases, only to be met
by the defense of Congressional ratification. The
Department of Justice could not be presumed to in-
dulge in such idle gestures.”
It seems apparent that the Attorney General has no
power to reverse a policy of Congress intentionally adopted
and maintained by it. It would seem equally true that he
has no such right to reverse a Congressional policy by
indirection through the institution of a proceeding which
is inconsistent with the established Congressional policy.
It is beyond doubt, we submit, that he has no power to
bring a proceeding where specific authorization has been
sought from Congress and denied by direct affirmative
action.
As the Attorney General is the agent of the United
, States, obtaining his authority from Congress, he, like
i any other agent, may not act contrary to his authorization,
An agent having general authorization from his principal
is powerless to act for his principal in direct opposition
to the will of the principal as expressed to the agent ona
specific matter even though otherwise included within the
previous general authorization.
That, we believe, is the instant case. The specific
authorization to file a proceeding similar to the instant
one was sought from Congress in 1938 and again in
Be ee MBit SE es MRM. ROGUE. eC er ey BE Le : :
ea OR. eC Ema ad POMPE AICTE ATER IO NS gaan eee
=
1939, but Congress refused to grant this specific author-
jzation on each occasion.°
Extremely significant is the fact that both in 1938 and
1939 the Secretary of the Navy, his representatives, the
Office of the Judge Advocate General of the Navy and
representatives of the Attorney General’s Office asserted
both in writing and orally that no action could be brought
by the Attorney General to have the «itle to the sub-
merged lands adjudicated unless Congress adopted a joint
resolution declaring the ownership and directing that suit
be brought. The Secretary of the Navy in 1939 asserted
to Congress the necessity of such a declaration and
authorization by stating: .
“Before the issue between those claiming adverse
rights in these petroleum deposits and the Govern-
ment may be settled by the courts, there must be
asserted in behalf of all the people of the United
States their right to conserve the oil therein for
national need. Under the Constitution the authority
for such an assertion or claim of right or declaration
8Hearings before the Committee on the Judiciary, House of
Representatives, 75th Congress, 3rd Session, on S. J. Res. 208,
February 23, 24 and 25, 1938, entitled “Title to Submerged Oil
Lands,” page 59.
Hearings before Committee on Public Lands and Surveys, United
States Senate, 76th Congress, Ist Session, on S. J. Res. 83 and
S. J. Res. 92, held March 27, 28 and 29, 1939, entitled “Title to
Submerged Lands,” pages 1-2.
*Hearings before the Committee on Public Lands and Surveys,
United States Senate, 76th Congress, Ist Session, on S. J. Res. 83
and S. J. Res. 92, supra, page 22. The need for this declaration
of policy by Congress is reiterated throughout the Committee hear-
ings reported on S. J. Res. 83 and S. J. Res. 92, particularly
Transcript, pp. 26, 27, 29, 30, 31, 37, 44, 57, 65, 71, 74, 89, 125
and 430.
Transcript of hearings before Committee on the Judiciary, House
of Representatives, 75th Congress, 3rd Session, on S. J. Res. 208,
aa February 23, 24 and 25, 1938, pages 44, 45, 46, 47, 50, 58,
-66.
a.
of policy in behalf of the people is lodged exclusivel
in Congress. Neither the executive nor the judicig
branches of our Government may legally or properk
assert such right, declare such policy or take auth Ori
tative action in the premises in the absence of a posi
pronouncement by the Congress.’’° 4
There is a sound reason why a joint resolution of
other appropriate action of Congress was necessary ag
a condition precedent to the institution of this proceeding
by the Attorney General. Article IV, Sec. 3, of th
Constitution gives Congress the power to “dispose of am
make all needful Rules and Regulations respecting th
territory or other property belonging to the Units
States.” Hence, Congress is the only branch of &
Government having the policy-making power concerniry
territory or property of the United States or which the
United States may desire to claim. With Congress having
an established policy against asserting ownership to ¢
submerged lands in the marginal ‘sea or in the so-call d
“inland waters”, it seems clear that no other branch
of the Government has the power to reverse that Cot
gressional policy and to undertake the establishment of a
new policy with respect thereto.
We submit, therefore, that the Attorney General
no authority to bring or maintain this proceeding.
being the case, like any other proceeding filed by counsel
having no authority to do so, the suit should be dig
missed whenever that fact is shown to exist." |
10Supra, note 9. x
11See United States v. San Jacinto Tin Company, 125 U. S. 27%
284 ( 1888), where the court by way of dictum said:
. . and in the two cases first mentioned the court vi
lated its duty in sustaining the Government and setting
the patents if there existed in its judgment no right in th
Attorney General to institute such suits.” 4
a Pe eee + ee eee ea ee lee Te ee
ee
APPENDIX C.
English Court Decisions and Treatises.
1. The Crown’s Title to the Bed of the Sea for Some Dis-
tance Below Low-water Mark Was Established by the
English Common Law Authorities Prior to 1776.
In this review, we will not go back of the Sixteenth
Century, but all recorded English authorities from at least
as early as the Tenth Century uphold the sovereignty and
dominion of the English Kings over the sea.’
The most important treatise in the Sixteenth Century
on the ownership of submerged lands was written by
Thomas Digges during the reign of Queen Elizabeth in
1568 or 1569. His treatise was entitled “Arguments
Proving the Queenes Maties Propertye in the Sea Landes
and Salt Shores Thereof.” Digges stated, in part:
“And in this estate regall of Englande wee see that
the Kings of most auncient times haue in the right of
theire crowne helde the seas abowte this Ilande so
proper and entire unto them bea
¢; + 2 © 2 © 8 &@
“For yt is a sure Maxime in the Common Lawe
that whatsoever lande there is wth in the kinges
dominion whereunto no man cann justly make prop-
ertye yt is the kinges by his prerogative.’”*
1See Higgins and Colombos, International Law of the Sea
(1943), p. 38; Fulton, Sovereignty of the Sea (1911), pp. 16-17;
% Woolrych, Treatise on the Law of Waters and Sewers (1st ed.
1830), 1st Am. ed. from 2d London ed., 1853, pp. 32, 47; 1 Roll.
Abr. 258, 1. 13; Rot. Parl. 8 Hen. 5, N. 6.
*Reprinted in Moore, History and Law of the Foreshore and
Sea Shore (London, 1888), pp. 185-202; also quoted in Fenn,
The Origin of the Right of Fishery in Territorial Waters (1926),
p. 171.
*Digges, op. cit. supra, reprinted in Moore, supra, p. 203.
‘Id. at p. 187.
ETB SO AMOI IEE, TOLL PIE INL SL RY LOE TSE EP RYE IO
—0— .
The plaintiff apparently admits the existence in 1776
of the title of the English Crown to the foreshore. How-
ever, Digges treated the foreshore and marginal sea
exactly alike and, in fact, used the Crown’s ownership
of the sea as a stepping stone in his argument for the
Crown’s ownership of the foreshore. Digges first dealt
with the sea, saying that as the chief of all waters it
should belong to “the cheefe the Kinge himself.” He tien
dealt with the salt shore, citing the civil law which treated
islands arising in the sea as being of the same nature,
right and interest as the salt shore, and citing Bracton to
the effect that such islands belonged to the King, from
which Digges reasoned that the salt shore should likewise
belong to the King. He concluded that the King owned
the property in the sea and its shore “not only from the
lowe watermarck downward but also upwarde to the full
sea, =
At about the same time, other English writers sup-
ported the doctrine that the dominion and ownership of
the seas adjoining the coasts was vested in the King.
These included Thomas Craig* and William Welwood,'
both English lawyers, and Gerard Malynes,® a merchant
and writer on economics.
57d. at pp. 185, 187, 191-192.
See Fenn, supra, pp. 172-173; Fulton, supra, p. 357. Fenn
says that Craig is the first British lawyer to make the general
statement that a sovereign is the proprietor of the fisheries found
in his waters. Craig lived 1538-1608.
TWelwood, An Abridgment of the Sea Lawes (London, 1636),
p. 188.9; quoted in Fenn, supra, pp. 174-175. See Reisenfeld,
Protection of Coastal Fisheries Under International Law (1942),
pp. 9-12; Fulton, supra, p. 352. Welwood’s treatise, first published
in 1590, is said to be the earliest legal work on maritime juris-
prudence printed in England.
8Malynes, Consuetudo: vel, Lex Mercatoria (London, 1656),
pp. 130-134; Fenn, supra, pp. 177-178; Fulton, supra, p. 358.
Malynes lived 1586-1641.
ae
In 1610 in The Case of The Royal Fishery of the River
Banne, Dav. 55, 80 Eng. Rep. 540, the Privy Council, in
determining the ownership of a fishery in a tidal river, re-
lied upon the Crown’s ownership of the bed of the sea as
the basis for holding that the King owned the beds of
navigable rivers so far as they partook of the nature of
the sea by being subject to the ebb and flow of the tide,
saying :
“The reason for which the king hath an interest
in such navigable river, so high as the sea flows
and ebbs in it, is, because such river participates of
the nature of the sea, and is said to be a branch of
the sea so far as it flows; 22 Ass. p. 93, 8 Ed. 2,
Fitz. Coron. 399, and the sea is not only under the
dominion of the king (as is said 6 R. 2, Fitz. Protect.
46. The sea ts of the ligeance of the king as of his
Crown of England;) but it is also his proper inher-
itance; and therefore the king shall have the land
which is gained out of the sea, Dyer 15 Eliz. 226,
b. 22 Ass. p.93 . . . And that the King hath the
same prerogative and interest in the branches of the
sea and navigable rivers, so high as the sea flows
and ebbs in them, which he hath in alto mari, is mani-
fest by several authorities and records.”
This is a decision of England’s highest court.
In his lectures on the Statute of Sewers delivered at
-Gray’s Inn in 1622, Serjeant Robert Callis stated that by
the common law of England the seas around the British
*The Case of the Royal Fishery of the River Banne (1610),
Dav. 55, 80 Eng. Rep. 540, translated in Angell, The Right of
— in Tide Waters (1826), pp. 37-38. The italics are those
the court.
eatin
Isles, together with the shores, belonged in property to
the King.’® Callis stated in part:
“First, touching our Mare Anglicum, . . . the
King hath therein these powers and properties, vide-
licet,—
1. Imperium Regale.
. Potestatem legalem.
2
3. Proprietatem tam soli quam aquae.
4
. Possessionem et profituum tam reale quam per-
sonale.
And all these he hath by the common laws of Eng-
land. In the 6th of Richard the Second, Fitz. Prot.
46. it is said, That the sea is within the legiance of
the King, as of his Crown of England; this proves
that on the seas the King hath dominationem et im-
perium ut Rex Angliae, and this by the common law
of England.” (pp. 45-46.)
a a . + . + + +
“So I take it I have proved the King full lord
and owner of the seas, and that the seas be within
the realm of England; and that I have also proved
it by ancient books and authorities of the law, and by
charters, statutes, customs, and prescriptions, that the
government therein is by the common laws of this
realm . . . But the King hath neither the prop-
erty of the sea nor the real and personal profits there
10Robert Callis, The Reading Upon the Statute of Sewers (4th
ed. 1824); Fenn, supra, pp. 178-179. Callis has been accepted as
a real authority by the judges of England. Best, J., in Blundell
v. Catterall (1821), 5 B. & Ald. 268, 106 Eng. Rep. 1190, at 1195,
stated: “* * * Callis quotes it [a passage from Bracton] as
English law, and I have often heard Lord Kenyon speak with great
respect of that writer [Callis].”
—-
arising, but by the common laws of England,
for no law gives the King any soil but only the com-
mon laws of England.” (pp. 48-49.)
Lord Edward Coke in the early Seventeenth Century
expressed the doctrine of the King’s ownership of the sea
in his Institutes," as follows:
“Now for the great prerogative and interest that
the King of England hath in the Seas of England,
and for the antiquity of the Court of the Admiralty
of England, and of the name of the Admiral,”
Coke then quotes a document which he had found in the
Tower of London and which he said was made “long be-
fore the reign of E. III. in whose dayes some have
dreamed it began,” containing an account of a cause in
or about the twenty-second year of Edward I, the import-
ant words being:
“. . . that as the kings of England, by reason
of said Kingdom have since time immemorial been
in peaceful possession of the sovereign Lordship
of the sea of England and of the islands situate
therein _
“Lord Coke lived 1552-1634. Fenn, supra, p. 180, note 2.
Fulton, supra, p. 363, gives 1628 as the date of publication of
Coke’s First Institute.
Coke, The Fourth Part of the Institutes of the Lewes of Eng-
land (4th ed., London, 1669), pp. 140-142 (first published in
1644) ; see Fenn, supra, pp. 180-181. :
Coke, supra, p. 142. See Fenn, supra, pp. 362-363; Fulton,
supra, pp. 362-363. The untranslated text is: “que come les
roys d’Engliterre per raison due dit Royalme du temps dont il ny
ad memoire du contrarie eussent este en paiceable possession de
la soveraigne Seignurie de la mer d’Engliterre et des Isle isteants
en ycele.”
a
In 1635 Selden’s Mare Clausum was published. Where.
as Digges’ treatise and Callis’ lectures had dealt entirely
with the common law of England as an internal matter,
Selden’s work was primarily a political document present-
ing an international argument in answer to the conten-
tions in Grotius’ Mare Liberum, which had been published
in 1609. Selden’s work was sponsored by and dedicated
to Charles I of England, and it forcefully presented the
case for the sovereignty of the English Crown in the
British seas. It was based upon facts and arguments
gathered from extensive research in the ancient records
of the realm, and it partially defined the English seas as
“that which flows between England and the opposite
shores and ports.’”"* Although primarily a political work,
Selden’s Mare Clausum became in effect a law book in
England, and copies were ordered by Charles I to be
kept permanently in the Court of Exchequer and in the
Court of Admiralty.”
Similar arguments in support of the King’s exclusive
property in and sovereignty over the surrounding seas
were set forth in 1633 by Sir John Boroughs, the Keeper
of His Majesty’s Records at the Tower, in his treatise The
Sovereignty of the British Seas,* and in 1661 by John
Godolphin in his A View of the Admiral Jurisdiction."
In 1646 the King’s Bench Division decided the case of
Johnson v. Barret, Aleyn 10, 82 Eng. Rep. 887, in which
4Fulton, supra, p. 19.
157d. at pp. 369-374.
Boroughs, The Sovereignty of the British Seas (Wade's ed.,
Edinburgh, 1920), p. 43. See Fenn, supra, pp. 182-183; Fulton,
supra, pp. 364-366.
11See Fenn, supra, pp. 197-198.
~ =
it was agreed that submerged lands below low-water mark
were owned by the King. The entire report is as follows:
“In an action of trespass for carrying away soil
and timber, &c. Upon trial at the Bar the question
arose upon a key that was erected in Yarmouth, and
destroyed by the bailiffs and burgesses of the town;
and Rolle said, that if it were erected between the
high-water mark and low-water mark then it belonged
to him that had the land adjoyning. But Hale did
earnestly affirm the contrary, viz.: that it belonged to
the King of common right. But it was clearly agreed,
that if it were erected beneath the low-water mark,
then it belonged to the King. It was likewise agreed
that an intruder upon the King’s possession might
have an action of trespass against a stranger; but he
could not make a lease, whereupon the lessee might
maintain an ejectione firmac.””®
About the year 1667 Lord Chief Justice Hale wrote his
famous treatise De Jure Maris.”° Lord Hale wrote of
the common law of England im its municipal or internal
sense. He made no attempt to define the exterior boun-
daries of the so-called Sea of England, and thus his views
can hardly be said to be “extravagant” as they are termed
by counsel for plaintiff. (Br. p. 112.) However, Hale
18Plaintiff’s Br. p. 113, note 69, mentions Johnson v. Barret as a
case in point but erroneously gives it the date of 1681. The case
was decided in 1646, the twenty-second year of the reign of
Charles I. Indeed, Hale was counsel in this case, and he went on
the bench in 1654 and died in 1676. See Plucknett, Concise His-
tory of the Common Law (1929), p. 205.
"The authorship of De Jure Maris, sometimes questioned, has
been put beyond doubt. See Moore, supra, pp. 318, 370, 413;
see also Mr. Justice Gray in Shively v. Bowlby, 152 U. S. 1 at 11
(1894).
nated
did consider Selden’s work to have satisfactorily estab.
lished the King’s sovereignty over the seas, and he said
that the King had both jurisdiction over and property in
the narrow sea adjoining the coast of England. Lord
Hale said:
“The narrow sea, adjoining to the coast of Eng-
land, is part of the wast and demesnes and dominions
of the king of England, whether it lie within the
body of any county or not.
“This is abundantly proved by that learned treatise
of Master Selden called Mare Clausum; and there-
fore I shall say nothing therein, but refer the reader
thither.
“In this sea the king of England hath a double
right, viz, a right of jurisdiction which he ordinarily
exerciseth by his admiral, and a right of propriety or
ownership. The latter is that which I shall meddle
with.”
The subservience of the King’s jus privatum in sub-
merged lands to the public rights which the King had no
power to destroy, was expressed by Lord Hale as fol-
lows:
“But though the King is the owner of this great
waste, and as a consequent of his propriety hath the
primary right of fishing in the sea and the creeks and
arms thereof; yet the common people of England
have regularly a liberty of fishing in the sea or creeks
or arms thereof, as a publick common of piscary, and
may not without injury to their right be restrained of
it, unless in such places or creeks or navigable rivers,
where either the king or some particular subject hath
gained a propriety exclusive of that common liberty.”
20Hale, De Jure Maris (Manuscript, circa 1667), reprinted in
Moore, supra, pp. 370 et seq.
—
Lord Hale cited many early authorities in support of
his statements and sought to portray the common law of
England as it existed at the time of his writing. He has
since become recognized as the primary authority in the
law of England upon the ownership of submerged lands.”
Chief Justice Rolle in his Abridgment, first published
in 1668, said:
“So if a river, so far as there is a flux of the sea,
leaves its channel, it belongs to the king; for the Prg-
lish sea and channels belong to the king; and he hath
a property in the sotl, having never distributed them
out to his subjects.” .
The doctrine that the Crown’s right of property, sub-
ject to the public rights, extended only to the furthest
reach of the tide was followed in Bulstrode v. Hall &
Stephens, 1 Sid. 148, 82 Eng. Rep. 1024 (1674), where
it was said:
“.. . the bed of all rivers as high as there is
flux and reflux of the Sea, is in the King and not in
the Lords of the Manors etc., except by prescrip-
tion.”™
In 1676, Molloy wrote a book on the maritime law of
England,“ in which he sturdily proclaimed the King’s
ownership of the sea.
See Shively v. Bowlby, 152 U. S. 1 at 11 (1894). See Brief,
pp. 21-26, for United States cases relying upon Lord Hale as
such an authority. toss
222 Roll. Abr. 170.
*The untranslated text is: “* * * le soil de touts rivers cy
haut que la est fluxum & refluxum maris est in le Roy & nemy in
les seigneurs de mannors &c. sans prescription.” .
*De Jure Maritimo et Navali, or A Treatise of Affaires Maritime
and of Commerce (London, 1676.) Later editions were published
in 1682, 1690, 1744, 1769, etc. For a long time it was considered
the standard work on the maritime law of England. See Fulton,
supra, p. 514.
— =
In 1689, Sir Phillip Meadows asserted the King’s own-
ership of the adjoining sea but argued for reducing the
scope of the claims of ownership, saying that all agreed
that a nation was entitled to some marginal sea, but that
there was variance as to how much.”
In 1700, Alexander Justice, in his General Treatise of
the Dominion of the Sea, likewise supported the sov-
ereignty, dominion and propriety of the British Crown in
the’seas surrounding the Island.
The uniformity of treatment of the sea and navigable
rivers so far as the tide ebbs and flows, both as respects
the public right of fishing and the Crown’s ownership,
is shown in Warren v. Matthews, 6 Mod. 73, 87 Eng.
Rep. 831 (1704), where the court said:
“Per Curiam. Every subject of common right may
fish with lawful nets, &c. in a navigable river, as
well as in the sea, and the King’s grant cannot bar
them thereof; nag
Matthew Bacon in his New Abridgment of the Law,
first published in 1736, said:
“Tt is universally agreed, that the king hath the
sovereign dominion in all seas and great rivers; which
is plain from Selden’s account of the ancient Saxons,
who dealt very successfully in all naval affairs, and
2*5Meadows, Observations Concerning the Dominion and Sover-
eignty of the Seas (1689), quoted in Riesenfeld, supra, p. 20, note
80. See Fulton, supra, p. 525. Parker, Chief Baron of the Ex-
chequer, wrote in 1774: “Sir Philip Medow’s rules for ascertaining
the limits of the sea, seem to be founded on more solid and pru-
dential reasons, than Mr. Selden has offered, in his book.” Har-
grave and Butler’s Coke on Littleton (1853), p. 26la.
RENAE PSEA SRY TET EH SNORE LE AIT, SABLE IONE ITE FORA TN ea gin a
nulls
therefore the territories of the English seas and rivers
always resided in the king.”
And in Carter v. Murcot, 4 Burr. 2162, 98 Eng. Rep.
127 (1768), it was held by Lord Mansfield that navigable
rivers and arms of the sea belong to the Crown and that
the right of fishing therein is prima facie common and
public.
The last two English writers to deal with the subject
prior to 17~6 were two of the most distinguished authori-
ties in English legal history. Sir John Comyns in 1762
wrote his Digest of the Laws of England, in which he
stated :
“The king has the property tam aquae quam soli,
and all profits in the sea, and all navigable rivers.
Cal. 17. Dav. 56, 57.
* . . * ~ * *
“And every arm of the sea, or navigable river so
high as the sea flows and reflows, belongs to the
king, and he has the same property therein as in
alto mari. Dav. 56. 2 Rol. 170, 1. 20.”
_ Sir William Blackstone in 1765 recognized the King’s
ownership of lands under the sea, saying: |
‘“* * * But, if the alluvion or dereliction be
sudden and considerable, in this case it belongs to
the king: for, as the king ts lord of the sea, and sole
owner of the soil while it is covered with water, it
Bacon, A New Abridgment of the Law (Bouvier’s ed., Phila-
delphia, 1869), vol. 8, p. 18.
**Comyns, Digest of the Laws of England (First Amer. ed. from
fifth London ed., 1825), pp. 166, 167 [pp. *152, *153].
ni
is but reasonable he should have the soil, when the
water has left it dry.””
The above review of the English cases and treatises
prior to 1776 demonstrates that the Crown of England has,
since long prior to 1776, been recognized under the com-
mon law as the owner of the bed of the sea for some
distance seaward from low-water mark around the coasts
of England, as well as of the foreshore and the arms of
the sea and rivers to the extent that they are subject to the
ebb and flow of the tide, the Crown’s title to all this land
being subject to the public rights of navigation and fishing
(jus publicum).”
2. The English Common Law Authorities After 1776 Con-
firm the Crown’s Title to the Bed of the Marginal Sea.
After 1776 neither the English courts nor the English
text writers departed from the basic principles laid down
by Callis and Hale as to the Crown’s ownership, subject
always to the public rights of navigation and fishing, of
the bed of the sea, of arms of the sea and navigable rivers
so far as the tide flows and reflows, and of the foreshore
bordering on such waters. With the development of the
‘ cannon-shot rule in international law, which began to be
282 Blackstone’s Commentaries (1765), p. 262. “The Commen-
taries had a tremendous sale in this country . . . served as
the principal means of the colonists’ information as to the state of
the English law.” Plucknett, Concise History of the Common
Law (1929), p. 207.
29While the case law on the subject prior to 1776 is not volumi-
nous, the implication of the comment in the plaintiff's brief, (p.
113, note 69) that “a few very early cases” contained references to
Hale’s views or those of Selden, is entirely unjustified, the im-
portant point being that each and all of the decided cases during
the period coincided precisely with the principles laid down by
Lord Hale in De Jure Maris, and there was no decision to the
contrary.
isi
recognized by the English Admiralty Courts by 1760,”
the common law cases began to place the outer limit of the
Crown’s ownership of the sea bed at the distance of a
cannon-shot or three miles from low-water mark. But that
international law doctrine had no effect whatever upon the
internal common law of England as to the ownership of
the submerged lands within that limit.
(a) THe Cases.
The continuity in the common law from the Sixteenth
Century to the Twentieth is perfectly demonstrated by the
application, in 1916, of the principles announced by Hale
and Callis to the question of the ownership of the bed of
the open sea near the coast of India. In the case of
Secretary of State for India v. Chelikani Rama Rao, 43
L. R. Ind. App. 192 (1916), (a case which is given only
the most cursory mention by counsel for the plaintiff) ,”
the Judicial Committee of the Privy Council, the highest
court in the British Empire for the determination of ques-
tions arising in the dominions and colonies, held squarely
that islands formed on the bed of the sea within three miles
of the coast of India belonged in property to the British
In 1760, the High Court of Admiralty in England decided that
a captured French vessel was not good prize because taken within
a port of the King of Spain “within reach of his cannon.” The
De Fortuyn (1760), Marsden’s Admiralty Cases, p. 175. And
see The Twee Gebroeders, 3 C. Rob. 162, 165 Eng. Rep. 422
(1800), where it was held that the capture of Dutch ships by an
English ship effected within three miles of the Prussian coast,
Prussia being neutral, was made within the limits to which neutral
immunity was conceded; The Anna, 5 C. Rob. 373, 165 Eng.-Rep.
809 (1805), where it was held that a capture made by a British
ship within three miles of certain mud islands off the mouth of the
Mississippi River was made within the boundaries of the United
States, 2 neutral nation. (It is to, be noted that the coast at that
point was then a part of the Louisiana Territory, the State of
Louisiana not yet having been adrritted into the Union.)
‘Plaintiff's Br. pp. 45, 50, 115.
—
Crown. In delivering the unanimous judgment of the
court, Lord Shaw of Dunfermline said (pp. 189-199) :
“Upon the undisputed facts as to the formation of
these islands in the sea and in the situation described,
the case would appear to be the ordinary one de-
scribed by Hale, ‘De Jure Maris.’ He describes how
‘the king hath a title to maritima incrementa or in-
crease of land by the sea; and this is of three kinds,
viz. :—
‘l. Increase per projectionem vel alluvionem.
‘2. Increase per relictionem vel desertionem.
‘3. Per insulae productionem,’ |
“The lands in dispute fall under the third category,
which is thus dealt with by Hale:—
“3. The third sort of maritime increase are
islands arising de novo in the king’s seas, or the
king’s arms thereof. These upon the same account
and reason prima facie and of common right belong
to the king; for they are part of that soil of the sea,
that belonged before in point of propriety to the
king; for when islands de novo arise, it is either by
the recess or sinking of the water, or else by the
exaggeration of sand and slubb, which in process of
299
time grow firm land environed with water’.
It is plain that the court did not consider that it was
applying any new doctrine based upon any recently de-
veloped rules of international law, for not only did the
court rely upon Lord Hale but it also stated (p. 199):
“The date of formation of these islands is not cer-
tain. Plans have been produced showing that from
the forties to the sixties of last century they or the
larger part of them appeared above the surface of
pala
the water. At what date soever they appeared, they
were in the high seas at a point thereof not far from
the shore of the mainland, and in these circumstances,
in the opinion of the Board, they were Crown prop-
erty.
“The case is not complicated by any point as to
geographical situation, or by the question whether a
limit from the shore seawards should be beyond three
miles, should be the extreme range of cannon fire,
or should be even more if the locus be claimed to be
intra fauces terrae—no such questions arise here.
The point is geographically within even three miles of
British territory; at that point islands have arisen
from the sea. Are those islands no man’s land? The
answer is, they are not; they belong in property to
the British Crown.”
No clearer answer to the contentions of the plaintiff in
this case could be formulated.
The common law principles relied on by Lord Shaw in
the Secretary of State for India case were repeatedly ap-
plied and confirmed by the English courts between 1776
and 1916.
The first case dealing with the subject that arose after
1776 was Blundell v. Catterall, 5 B. & Ald. 268, 106 Eng.
Rep. 1190 (1821). All four of the judges who wrote
opinions relied upon the authority of Lord Hale, with
respect not only to the ownership of submerged lands
by the Crown but also to the public trusts to which
that ownership is subject. Holroyd, J., said in his opin-
ion:
“
as he [Hale] also there lays it down, in
the main sea itself, adjacent to his dominions, the
— os
King only hath the propriety, but a subject hath
ane a
* * * * * * * *
“By the common law, though the shore, that is to
say the soil betwixt the ordinary flux and reflux
of the tide, as well as the sea itself, belongs to the
King; yet it is true that the same are also prima facie
publici juris, or clothed with a public interest. But
this jus publicum appears from Lord Hale to be the
public right in all the King’s subjects, of navigation
for the purposes of commerce, trade, and intercourse;
and also the liberty of fishing in the sea or the creeks
or arms thereof . . .” (106 Eng. Rep. at 1199.)
Here it will be seen that the English court was not an-
nouncing any new doctrine but was simply applying the
settled common law on the authority of Lord Hale. The
fact that there were no court decisions between 1768
(Carter v. Murcot, supra) and this case did not mean
that there was a hiatus in the law during that period.
In Rex v. Lord Yarborough, 3 B. & C. 91, 5 Bing 163,
1 Eng. Rul. Cas. 458 (1828), the old principles
of Callis and Hale were reaffirmed by Best, C. J., speak-
ing the unanimous opinion of the eleven judges who
heard the case in the House of Lords, as follows:
“All the writers on the law of England agree in
this: that as the King is lord of the sea that flows
around our coasts, and also owner of all the land to
which no individual has acquired a right by occupa-
tion and improvement, the soil that was once covered
by the sea belongs to him.” (1 Eng. Rul. Cas. at
471.)
, We: EES ERLE * BSR a ete Neh er Bl ee guia
=
In 1829 in the case of Benest v. Pipon, 1 Knapp 60,
12 Eng. Rep. 243, the Privy Council considered the prop-
erty right to cut sea-weed (vraic) growing on the rocks
called ““L’Isle Percee” which were located in a bay on the
Isle of Jersey. Lord Wynford, speaking for the court,
said (12 Eng. Rep. at 246-247):
“The sea is the property of the King, and so its
the land beneath tt, except such part of that land as
is capable of being usefully occupied without prejudice
to navigation, and of which a subject has either had
a grant from the King, or has exclusively used for
so long a time as to confer on him.a title by pre-
scription: . . . This is the law of England and
the cases referred to prove that it is the law of Jer-
sey. . . . This rule of law is derived from a
universal principle of convenience and justice. What
never has had an individual owner belongs to the
Sovereign within whose territory it is situated. . . .
“The Islands of Jersey and Guernsey were parts of
the duchy of Normandy. The laws of Normandy
were introduced into this kingdom by William the
First, and superseded the Saxon laws, which before
that period were the laws of England. This circum-
stance accounts for the laws of England and Jersey
being precisely the same with regard to land that ts
below the ordinary tides, dealing with such land as
a part of the vottom of the sea, and vesting the
original right to it in the King.” .
This decision conclusively negatives plaintiff’s theory
that property rights in the marginal sea “emerged” under
international law after 1776. Such rights have existed
in the sovereign continuously since 1066.
on
In Attorney-General v. Chambers, 4 De G. M. & G
206, 43 Eng. Rep. 486 (1854), the Attorney General
filed an information against the owners and lessees of a
certain district abutting on the seashore in the County
of Carmathen, alleging that by royal prerogative, all mines
and minerals lying under the sea, seashore and arms of
the sea, belonged and had at all times belonged to the
Kings and Queens of England. The Court’s decision
was premised upon the following statement of Mr,
Baron Alderson (43 Eng. Rep. at 489):
“The Crown is clearly in such a case, according to
all the authorities, entitled to the ‘littus maris’ as
well as to the soil of the sea itself adjoining the coasts
of England.”
In Attorney-General v. Hanmer, 4 Jur. N. S. 751
(1858), a case in Vice-Chancellor Stuart’s Court involv-
ing the construction of a royal grant of coal mines, Mr.
Baron Watson, speaking for the court, relied on Lord
Hale as follows (p. 753):
“Lord Hale says that the main sea is the waste and
demesne of the kings of England, and the king is the
owner of that great waste the sea.”
In 1858 an arbitration proceeding was conducted to de-
termine the respective property rights of the Queen of
England and the Prince of Wales, who was also Duke
of Cornwall, in minerals lying under the seashore of the
Duchy of Cornwall both above and below low water-
mark. The arbitrator, Sir John Patteson, decided that
the right to all mines and minerals lying below low water-
82See Plaintiff’s Br. pp. 45-47.
—
mark under the open sea adjacent to the County of Corn-
wall was vested in the Queen, although the Duke was in
fact the first occupier of those mines and it was contended
for the Duke that he owned them as first occupier. The
argument for the Queen, however, was founded on the
proposition that the bed of the sea below low water-mark
- belonged in property to the Crown,” and such was the de-
cision of the arbitrator. The arbitrator’s decision was
confirmed and ratified by Parliament in the Cornwall Sub-
marine Mines Act, 1858, 21-22 Vict., Ch. 109, which de-
clared that the mines and minerals lying below-water
mark under the open sea were vested in the Queen in
right of her Crown “as part of the soil and territorial
possessions of the Crown.” In the words of Lord Chief
Justice Coleridge, “Parliament did but apply . . . that
which is and always has been the law of this country.’™
In Gammell v. Her Majesty's Commissioners of Woods
and Forests, 3 Macqueen’s Appeals 419 (1859), the
%8See opinion of Lord Coleridge, C. J. in The Queen v. Keyn, L.
R. 2 Exch. Div. 63 at 155-158 (1876). Lord Chancellor Cran-
worth was counsel for the Crown in this arbitration, having then
recently participated in the decision in Attorney-General v. Cham-
bers, supra. Callis, Selden, Hale and other common law authorities
reviewed above were presented to the arbitrator, Sir John Pat-
teson, and in his award he stated that he had reviewed them tare-
fully in formulating his conclusions. Copies of the submission,
briefs and award in the Cornwall Mines Arbitration are lodged,
concurrently herewith, with the Clerk for the convenience of the
Court.
“In The Queen v. Keyn, L. R. 2 Exch. Div. 63, at 158 (1876).
it.
House of Lords held that the salmon fisheries in the open
sea around the coast of Scotland, unless parted with by
grant, belonged exclusively to the Crown and formed part
of its hereditary revenue. In speaking of the limits of the
fisheries in question, Lord Wensleydale said (pp. 465-
466) :
‘“* * * it would be hardly possible to extend it
seaward beyond the distance of three miles, which by
the acknowledged law of nations, belongs to the coast
of the country, that which is under the dominion of
the country by being within cannon range, and so
capable of being kept in perpetual possession.”
In The Free Fishers and Dredgers of Whitstable »,
Gann, 20 C. B. (N. S.) 1, 144 Eng. Rep. 1003 (1865),
Lord Chelmsford in the House of Lords quoted with
approval the following statement of Lord Chief Justice
Erle of the Common Pleas in his opinion on the case
in the lower court (144 Eng. Rep. at 1011-1012):
“The soil of the sea-shore to the extent of three
miles from the beach is vested in the Crown
* * *”
In Ipswich Dock Commissioners v. Overseers of the
Parish of St. Peter, Ipswich, 7 B. & S. 310 (1866), the
Exchequer Chamber through Blackburn, J., said (p. 344):
“In Reg. v. Musson it was rightly decided that
what Lord Hale calls the main sea is prima faci
extra-parochial, and in the absence of evidence that
it forms part of a parish it must be taken that it
does not; and the same reason, that it is part of the
waste and demesnes and dominions of the Crown,
TPIT oer ELLIOTT ELLE LILIES VIG NOR BIG (IER
—59—
would apply to an estuary or arm of the sea; it is a
part of the great waste, both land and water, of
which the king is lord.”
In Murphy v. Ryan, Ir. R. 2 C. L. 143 (1868), the court
said through O’Hagan J. (p. 149):
“But whilst the right of fishing in fresh water
rivers, in which the soil belongs to the riparian own-
ers, is thus exclusive, the right of fishing in the sea,
and in its arms and estuaries, and in its tidal waters,
wherever it ebbs and flows, is held by the common
law. to be publict juris, and. to belong to all the sub-
jects of the Crown—the soil of the sea, and its arms
and estuaries, and tidal waters being vested in the
Sovereign as a trustee for the public,”
In Lord Advocate v. Trustees of the Clyde Navigation,
19 Rettie 1/4 (1891), the Court of Session of Scotland
held through ord Kyllachy (p. 177):
‘“* * * there is no distinction in legal character
between the Crown’s right in the foreshore, in tidal
and navigable rivers, and in the bed of the sea with-
in three miles of the shore. In each case it is of
course a right largely qualified by public use. * * *
but nonetheless is it, in my opinion, a proprietary
wn ¢ * 3
In the same case, Lord Young said (p. 183):
‘* * * T have no objection to indicate my own
view * * * that the Crown has a right of prop-
erty within the three mile limit.”
Again the three mile doctrine shows its influence, but only
as a seaward boundary for rights already well established
and unaltered in quality.
In Lord Advocate v. Weymss, 1900 A. C. 48 (1899),
the House of Lords, through Lord Watson, said (p. 66):
“TI see no reason to doubt that, by the law of Scot-
land, the solum underlying the water of the ocean,
whether within the narrow seas, or from the coast
outward to the three mile limit, and also the minerals
beneath it, are vested in the Crown * * *,”%°
In Lord Fitzhardinge v. Purcell (1908), 2 Ch. 139,
the court treated tidal rivers and the bed of the sea
alike. Parker, J. said (p. 166): .
“Clearly the bed of the sea, at any rate for some
distance below low-water mark, and the beds of tidal
navigable rivers, are prima facie vested in the Crown,
and there seems no good reason why the ownership
thereof by the Crown should not also, subject to the
rights of the public, be a beneficial ownership.”
85Quoted with approval by Lord Shaw in Secretary of State for
India v. Chelikans Rama Rao, 43 L. R. Ind. App. 192 (1916),
discussed supra, pp. 51-53. Lord Shaw said of the Wemyss case
(p. 201): “The action had reference to the ownership of min-
erals in the bed of the sea and below low-water mark. This, of
course, was entirely a question, not as to rights upon or over that
portion of the bed of the sea, but as to the actual ownership of
the corpus or thing itself—of which corpus the minerals formed
a part.”
%6Quoted with approval by Lord Shaw in Secretary of State for
India v. Chelikanit Rama Rao, 43 L. R. Ind. App. 192 (1916),
discussed supra, pp. 51-53. Lord Shaw said of this case (p. 200):
“It is true that the case cited dealt merely with the right of fowl-
ing, but it was necessary in the determination of that right to
settle the true nature of the right in the land itself.”
alii
During the period since 1776 the English cases have
followed Digges’ principle that the Crown prima facie
owns the foreshore between the high- and low-water marks,
subject to the public right of navigation and fishing.**
It is clear that the development of the Crown’s right to the
foreshore, which plaintiff apparently concedes to have
been established in 1776, did not precede the establish-
ment of the Crown’s right to the bed of the sea. On the
contrary, the establishment of the Crown’s prima facie
right to the foreshore under Digges’ doctrine was de-
veloped from the earlier doctrine of the Crown’s ownership
of the bed of the sea.
(b) TREATISsEs.
The doctrine of the common law cases cited above is
likewise reflected in treatises on the English common law
written since 1776. Henry Schultes in his Essay on
Aquatic Rights (London, 1811), stated the law to be sub-
stantially as laid down by Lord Hale more than a century
before him. Schultes said (pp. 109-110):
“By the common law, the king hath the sovereign
dominion over the sea adjoining the coasts, and over
the navigable rivers; and hath also the right of
property in the soil thereof, and is consequently en-
titled to all maritima incrementa. But the crown has
3'Cases dealing with the ownership of the foreshore are Attor-
ney-General v. Richards, 2 Anst. 603, 145 Eng. Rep. 980 (1794) ;
Attorney-General v. Parmeter, 10 Price 378, 147 . Rep: 345
(1811) ; Attorney-General v. Johnson, 2 Wilson Ch. 87, 37 Eng.
Rep. 240 (1819) ; Blundell v. Catterall, 5 B. & Ald. 268, 106 7
Rep. 1190 (1821); Smith v. Earl of Stair, 6 Bell App. Cas.
(House of Lords, 1849) ; Attorney-General v. Chambers, 4 De G.
M. & G. 206, 43 Eng. Rep. 486 (1854); The Queen v. Musson,
8 El. & Bl. 899, 120 Eng. Rep. 336 (1858) ; and Attorney-General
v. Emerson, L. R. [1891] A. C. 649.
—$3—
not an exclusive right of fishery, nor can it grant an
exclusive right to another . . . The sea and
navigable streams are public for all the king’s sub-
jects to fish indiscriminately, without interruption of
common right.”
Chitty® in his Prerogatives of the Crown (London,
1820), stated (p. 173):
“Under this head it may also be mentioned, that
the King possesses the sovereign dominion in all the
narrow seas, that is, the seas which adjoin the coasts
of England, and other seas within his dominions.
This prerogative power is vested in the King, as the
protector of his people, and guardian of their rights.
It is subservient, however, to those jura communia,
which nature and the principles of the constitution re-
serve for his Majesty’s subjects. It can neither pre-
vent them from trading or fishing.”
Joseph K. Angell, in his The Right of Property in Tide
Waters, published in 1826 (an American work which is
mentioned here because it deals largely with the common
law of England), said (pp. 17-18):
“In this respect, it will appear, that the Roman
law has been very much surpassed, by the common
law of England. For although, as will presently be
shewn, the sea, &c. according to the provisions of
the common law, are as public and common, as they
were among the Romans; yet it is not only the policy
of the common law to assign to every thing capable
of occupancy and susceptible of ownership a legal
and certain proprietor—but also to make those things
88Chitty was one of the most famous editors of Blackstone's
Commentaries.
SO tem os et or ~ - a
SRS RARE URE ee awe atetetety
—
which from their nature cannot be exclusively occupied
and enjoyed, the property of the sovereign.
x * * * * * * *
“To the king, therefore, is not only assigned the
sovereign dominion over the sea adjoining the coasts,
and over the arms of the sea; but in him is also vested
the right of property in the soil thereof.”™
In short, such ownership is an “incident of sovereignty.”
Hall, in his essay on The Rights of the Crown in the
Sea-Shores of the Realm, first published in 1830,
emphasized the idea that the Crown’s ownership of
the beds of inland navigable waters was derived from the
Crown’s ownership of the sea, saying:
“This dominion not only extends over the open
seas, but also over all creeks, arms of the sea, havens,
ports and tiderivers, as far as the reach of the tide,
around the coasts of the kingdom. All waters, in
short, which communicate with the sea, and are within
the flux and reflux of its tides, are part and parcel of
the sea, itself, and subject, in all respects, to the like
ownership.’
Woolrych in his Treatise on the Law of Waters and
Sewers, first published in 1830, based the King’s original
title to the beds of the sea adjoining the coast and of
navigable rivers upon the common law principle that all
the soil of the realm was originally vested in the King
as lord paramount and universal occupant, and he traced
Italics are those of the author.
3rd ed., reprinted in Moore, supra, pp. 667-892. See quota-
tion from Hall, Brief, pp. 20-21.
“Td. at p. 669. Italics are those of the author.
STEER PRED EOE I
a
the King’s ownership of the foreshore and the beds of
navigable rivers to their similarity to the sea within the
tidal flow.”
Among the other writers who similarly stated the law
of the ownership of the bed of the sea and of navigable
rivers are Bainbridge in 1841,“° Jerwood in 1850,** Rogers
in 1864,“° Macswinney in 1884, ** and Moore in 1888"
Sir Cecil J. B. Hurst, President of the Permanent
Court of International Justice, writing in 1923, said:
“So far as the law of this country is concerned, the
rights of the Crown were fixed long before the doc-
trine of the three-mile limit was thought of, and yet
it seems to be agreed that nowadays these property
rights do not in general extend beyond the three-mile
limit.’’*
The cases and treatises cited above covering the period
from 1776 to the present day all proceed on the basis of
the same common law rules as those announced by Callis
*2Woolrych, Treatise on the Law of Waters and Sewers (lst
Am. ed. from 2d London ed., 1853), pp. 47, 52, 394-399.
*8Bainbridge on Mines and Minerals (1st ed. London, 1841), see
lst Am. ed., 1871, from 3d London ed., p. 13.
*4Jerwood, James, A Dissertation on the Rights to the Sea Shores
(London, 1850), pp. 13, 40-41, 43-45.
*8Rogers on Mines (\st ed. London, 1864), see 2d ed., 1876,
pp. 178 et seq.
*6VMacswinney on Mines (1st ed. London, 1884), see 5th ed.,
1922, p. 33.
47Moore, Stuart A., History and Law of the Foreshore and Sea
Shore (1888), p. 653.
*8Hurst, Sir Cecil J. B., “Whose Is the Bed of the Sea?,” 4
British Year Book of International Law, 1923, p. 34.
a
and Hale in the Seventeenth Century. They indicate no
change whatsoever in the common law after 1776 by
which the Crown acquired any rights in the bed of the sea
which it did not have prior to 1776.
(c) THe Dicta In THE QUEEN v. KeEyn.
Statements of some of the judges in the case of The
Queen v. Keyn, L. R. 2 Exch. Div. 63 (1876), are relied
upon by the Attorney General as the primary support for
his 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 state-
ments relied upon not only constituted pure obiter dictum,
but they are entirely out of line with the earlier and later
English authorities cited above. They have, therefore,
been reserved for special treatment.
The issue before the court in the Keyn case did not re-
quire a decision on the territorial limits of England, as
plaintiff's counsel admit (Br. p. 47). The sole ques-
tion there presented was whether the Central Crim- |
inal Court of England had jurisdiction to try a for-. ©
4
eigner for a crime, as defined by English law, which was
committed on board a foreign ship sailing within three ©
miles of the English coast. The decision was that prior to :
the statute of 28 Hen. VIII, c. 15, the jurisdicton of the
Lord High Admiral did not extend to a crime committed ©
by a foreigner on board a foreign ship, either within or ©
without the limit of three miles from the English coast; :
that by virtue of that and subsequent statutes, the Central |
Criminal Court had merely succeeded to the jurisdiction of
the Admiral; and hence, iw the absence of a statute extend-
ing its jurisdiction, the Central Criminal Court had no
= =
jurisdiction in the case at bar. It is clear that no question
of title to submerged lands was involved.”
The case was heard before thirteen judges, seven of
whom held that there was no jurisdiction and six of whom
were of the opinion that jurisdiction existed. Of the seven
judges comprising the majority of the court, only five
(Cockburn, C. J., Kelly, C. B., Field, J., Pollock, B., and
Sir Robert Phillimore) expressed any doubt that the
marginal sea, at least to the extent of three miles from
the coast, constituted English territorial waters in the
sense necessary to give the court jurisdiction without an
Act of Parliament.
This doubt was based upon the fact that in England
the “body of the counties,” to which the jurisdiction of
the common law courts was limited, did not extend below
low-water mark, and upon the dual meaning of the word
“realm” in English law. In this connection Chief Justice
Cockburn said (L. R. 2 Exch. Div. at 197-198):
“To come back to the subject of the realm, I can-
not help thinking that some confusion arises from the
term ‘realm’ being used in more than one sense. Some-
times it is used, as in the statute of Richard II, to
mean the land of England, and the internal sea with-
49The statement in plaintiff's brief (p. 113) that the opinion of
Cockburn, C. J. in the Keyn case “is perhaps the most exhaustive
English judicial opinion on the question” is incorrect. The opin-
ion is not “on the question” of ownership of the bed of the sea
but of criminal jurisdiction in admiralty over a foreigner. Per-
haps the most exhaustive English judicial opinion on the question
of the Crown’s ownership is that in the case of Secretary of State
for India v. Che
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