"Arms" of the Sea
Justice Gray in his extensive review of the "Equal Footing Doctrine" as applies to tide-lands, submerged lands, (including the Great Lakes,) and navigable streams, stated in Shively v. Bowlby, 152 U.S. 1 (1894):
"The conclusions from the considerations and authorities above stated may be summed up as follows:
"Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high-water mark. They are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore, the title and the control of them are vested in the sovereign, for the benefit of the whole people. At common law, the title and the dominion in lands flowed by the tide were in the king for the benefit of the nation. Upon the settlement of the colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders, subject to the rights surrendered by the constitution to the United States.
"Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory. The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the constitution.
"The United States, while they hold the country as a territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high-water mark of tide waters. But they have never done so by general laws, and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the territories were acquired, of leaving the administration and disposition of the sovereign rights in navigable waters, and in the soil under them, to the control of the states, respectively, when organized and admitted into the Union. Grants by congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mark, and do not impair the title and dominion of the future state, when created, but leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the constitution in the United States."
As stated by Justice Kennedy in Idaho et al. v. Coeur d'Alene Tribe of Idaho et al. certiorari to the united states court of appeals for the ninth circuit No. 94-1474. Argued October 16, 1996. Decided June 23, 1997:
"As we stressed in Utah Div. of State Lands v. United States, 482 U.S. 193, 195-198 (1987), lands underlying navigable waters have historically been considered 'sovereign lands.' State ownership of them has been 'considered an essential attribute of sovereignty.' Id., at 195. The Court from an early date has acknowledged that the people of each of the Thirteen Colonies at the time of independence 'became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.' Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). Then, in Lessee of Pollard v. Hagan, 3 How. 212 (1845), the Court concluded that States entering the Union after 1789 did so on an 'equal footing' with the original States and so have similar ownership over these 'sovereign lands.' Id., at 228-229. In consequence of this rule, a State's title to these sovereign lands arises from the equal footing doctrine and is 'conferred not by Congress but by the Constitution itself.' Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977). The importance of these lands to state sovereignty explains our longstanding commitment to the principle that the United States is presumed to have held navigable waters in acquired territory for the ultimate benefit of future States and 'that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' United States v. Holt State Bank, 270 U.S. 49, 55 (1926)."
"The Court in Shively v. Bowlby, 152 U.S. 1, 13 (1894), summarizing English common law, stated:
'In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary highwater mark, is in the King; except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage . . . and that this title, jus privatum, whether in the King or in a subject, is held subject to the public right, jus publicum, of navigation and fishing.'
..."American law, in some ways, enhanced and extended the public aspects of submerged lands. English law made a distinction between waterways subject to the ebb and flow of the tide and large enough to accommodate boats (royal rivers) and nontidal waterways (public highways). With respect to the royal rivers, the King was presumed to hold title to the river bed and soil while the public retained the right of passage and the right to fish. With public highways, as the name suggests, the public retained the right of passage, but title was typically held by a private party. See J. Angell, A Treatise on The Common Law in relation to Water Courses 14-18 (1824). The riparian proprietor was presumed to hold title to the stream to the center thread of the waters (usque ad filum aquae) which accorded him the exclusive right of fishery in the stream and entitled him to compensation for any impairment of his right to the enjoyment of his property caused by construction. The State's obligation to pay compensation could result in substantial liability. Shrunk v. Schuylkill, 14 Serg. & Rawle 71, 80 (Pa. 1826). State courts, however, early on in Pennsylvania, South Carolina, Alabama, and North Carolina rejected the distinction and concluded the State presumptively held title regardless of whether the waterway was subject to the ebb and flow of the tide. See, e.g., Carson v. Blazer, 2 Binn. 475 (Pa. 1810); Cates v. Wadlington, 1 McCord 580 (S. C. 1822); Bullock v. Wilson, 2 Port. 436 (Ala. 1835); Collins v. Benbury, 3 Iredell 277 (N. C. 1842); but see Hooker v. Cummings, 20 Johns. 90 (N. Y. 1822). And this Court in describing the concept of sovereign lands rejected the requirement that navigable waters need be affected by the tides. Barney v. Keokuk, 94 U.S. 324, 337-338 (1877); cf. Propeller Genesse Chief v. Fitzhugh, 12 How. 443 (1852).
"American law, moreover, did not recognize the sovereign's rights of private property (jus privatum) that existed in England, apart from the public's rights to this land (jus publicum). In England, for instance, the Crown had the exclusive right to hunt the "grand fishes," e.g., whales and sturgeons, of the sea. J. Angell, A Treatise on the Right of Property in Tide Waters and in the Soils and Shores Thereof 18-19 (1847). There was a particular aversion to recognizing in States the Crown's jus privatum right to seize private structures on shores and marshes reclaimed from tidewaters. See J. Gould, A Treatise on the Law of Waters including Riparian Rights, and Public And Private Rights In Waters Tidal And Inland Section 32 (2d ed. 1891). All these developments in American law are a natural outgrowth of the perceived public character of submerged lands, a perception which underlies and informs the principle that these lands are tied in a unique way to sovereignty."
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