# Appendix — United States v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0168%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1965 - **Citation:** 382 U.S. 889 ## Text 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. 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 . TEXTBOOKS 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 Ist Am. Ed., 1871, from 3rd London Ed., p. 13............. see 64 2 Blackstone’s Commentaries (1765), p. 262......22...2....c:cscesecsee 50 Boroughs, The Sovereignty of the British Seas (Wade's Ed., Se Wb Dewricientenrecietccimninnemninnnntiniconseciala 44 Callis, The “Reading” Upon the Statutes of Sewers. (4th Ed., UREN EIS ERE ee eae ne CN 41, 42 Chitty, Prerogatives of the Crown (London, 1820), p. 173........ 62 Coke, The Fourth Part of the Institutes of the Lawes of Eng- land (4th Ed., London, 1669), pp. 140-142... eee 43 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 Fifth London Ed., 1825), pp. 166, 167 has, 49 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 Fenn, The Origin of the Right of Fishery in Territorial Waters (1926) : 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, 38 jn 39 Holmes, The Common Law, p. 211 al 14 Hurst, ‘“‘Whose Is the Bed of the Sea?” 4 British Year Book of Sebenentianiel Fsptiy THe: Di Pi bccinvencintenvinecsicreteintanirensiatiiainsiecaial 64 Jerwood, A Dissertation on the Rights to the Sea Shores (Lon- Gams, SOBD), Oar FS, OEE, Bo ioeicccseintrcnrenrnreccnnciontniennivncnncianinn 64 Lauterpacht, “Private Law Sources and Analogies of Interna- gt. ge SO Fee 304 Lauterpacht, “Private Law Sources and Analogies of Interna- tional Law” (1927), pp. 224, 232, 248, 253-255, 259, 268- 269, 280 ..... . miei 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., a iinicieseinieeenctereniieniemadeniiieeacee 64 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- CR OE a I CI i aicerterererncenniceninnetisiticictamianannan 48 Moore, History and Law of the Foreshore and Sea Shore (Lon- don, 1888) : 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 (1878), PoC crenonenvesensene-snoesnienrennternvencesngasirineenenemenemtonentarsossueg 83 1 Poore, Federal and State Constitutions of the United States (1878), p. 373 85, 114 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 (1878), pp. 1379-1382 cinsiadhineeiaetiiiaitatomebituaiduaial 79 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 CR, Bh Se ernndnticinsecdnicintatitiaamamatiigiiaiainman 79 2 Poore, Federal and State Constitutions of the United States Reisenfeld, lrotection of Coastal Fisheries Under International Se CEs BR Pe iieccscenntirenecseniehcinsinessiencuiadinccacmaiancts 40 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 r [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0168%3A17. Public record. Not legal advice.