"Navigable Waters" of the States

As will be recalled from the section on "equal footing" in Part II, a waterbody determined to be "navigable in fact" at the time of statehood was considered to be "sovereign land." Subsequent federal land patents were construed accordingly, unless specified otherwise. In accordance with the English common law, most states adopted the rule whereby the bed and banks of tidal navigable waterbodies (influenced by the ebb and flow of the tides) to the high water mark; and bed and banks on nontidal navigable streams to the low water mark, were retained in ownership by the State and held as a public trust. Ownership of the bed and banks of non-navigable streams fell to (public or private) riparian owners to the "thread" of the stream. Not all States adopted the system, however, California was among those that did.

As stated by Justice Van DeVanter in Scott v. Lattig, 227 U.S. 229 (1913):

"Coming to the effect to be given to the admission of Idaho as a state and to the disposal of the fractional subdivisions on the east bank, it is well to repeat that Snake river is a navigable stream, for there is an important difference between navigable and non-navigable waters in such a connection. Thus, Rev. Stat. 2476, U. S. Comp. Stat. 1901, p. 1567, which is but a continuation of early statutes on the subject (Acts May 18, 1796, 1 Stat. at L. 464, chap. 29, 9, U. S. Comp. Stat. 1901, p. 1567; March 3, 1803, 2 Stat. at L. 229, chap. 27, 17), declares: 'All navigable rivers within the territory occupied by the public lands shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both;' and of this provision it was said in St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 288, 19 L. ed. 74, 78, 'the court does not hesitate to decide that Congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.'

"Besides, it was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and state governments under the Constitution, that lands underlying navigable waters within the several states belong to the respective states in virtue of their sovereignty, and may be used and disposed of as they may direct, subject always to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations, and that each new state, upon its admission to the Union, becomes endowed with the same rights and powers in this regard as the older ones. St. Clair County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59, 63; Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228; Illinois C. R. Co. Illinois, 146 U.S. 387, 434-437, 36 L. ed. 1018, 1035-1037, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 U.S. 1, 48-50, 58, 38 L. ed. 331, 349, 350, 352, 14 Sup. Ct. Rep. 548; McGilvra v. Ross, 215 U.S. 70, 54 L. ed. 95, 30 Sup. Ct. Rep. 27.

"Bearing in mind, then, that Snake river is a navigable stream, it is apparent, first, that on the admission of Idaho to statehood the ownership of the bed of the river on the Idaho side of the thread of the stream-the thread being the true boundary of the state-passed from the United States to the state, subject to the limitations just indicated, and, second, that the subsequent disposal by the former of the fractional subdivisions on the east bank carried with, it no right to the bed of the river, save as the law of Idaho may have attached such a right to private riparian ownership. This is illustrated by the statement in Hardin v. Shedd, 190 U.S. 508, 519, 47 S. L. ed. 1156, 1157, 23 Sup. Ct. Rep. 685. 'When land is conveyed by the United States, bounded on a non-navigable lake belonging to it, the grounds for the decision must be quite different from the considerations affecting a conveyance of land bounded on navigable water. In the latter case the land under the water does not belong to the United States, but has passed to the state by its admission to the Union. . . . When land under navigable water passes to the riparian proprietor, along with the grant of the shore by the United States, it does not pass by force of the grant alone, because the United States does not own it, but it passes by force of the declaration of the state which does own it that it is attached to the shore.' United States v. Chandler-Dunbar Water Power Co. 209 U.S. 447, 451, 52 S. L. ed. 881, 887, 28 Sup. Ct. Rep. 579, is to the same effect..."

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