In the following treatment of the law pertaining to this sitution we will undertake to show:

1. That it was the settled rule in England that the title to the soil under tide and submerged lands belonged to the Crown as an attribute of its sovereignty. 2. That the same rule has been applied by the United States Courts consistently since the formation of the national government; and that these sovereign rights have always lodged in the respective states as distinguished from the Federal Government.

3. That the several state courts, and particularly the California courts, have followed this theory and assumed its correctness ever since they became a part of the United States.

4. That California entered the Union upon an equal footing in every respect with its predecessors and that there is no legal or practical distinction between California's title to its tide and submerged lands and that of any other state.

It is our contention that the original thirteen states themselves possessed the fee title to their tide and submerged lands and that they retained the same when they joined together to form a national government. In forming the national government they delegated such powers of a political nature as were necessary to enable it to properly function as an independent sovereign power. However, at no time and in no way did they part with the fee to the lands under navigable waters. They delegated certain express rights to the Federal Government as specified in the Constitution, together with such incidental rights as were necessary to carry out and effectuate those particularly specified.

Among these rights were the right to regulate interstate and foreign commerce, to provide for national defense, and to provide and maintain a navy. When other states entered the union they did so in each instance upon the express provision that they should be upon the same footing as other states. In individual instances there were certain qualifications and reservations pertaining to such matters as the public domain. In no instance that we have found, however, does it appear that there was any reservation as to the title to lands under navigable waters. So far as we have been able to ascertain, the common understanding at the time of such reservation and ever since then has been that the public domain consisted of territory which was subject to use for purposes of agriculture, habitation, and similar domestic uses.

Each of the states appears after their admission to have understood that there was no reservation of any kind to the Federal Government as far as the title to tide lands is concerned. Each of the states proceeded to administer its water front, to enact legislation with respect thereto, to make grants to individuals and local authorities looking to the development and improvement of harbor facilities, and in all their actions they demonstrated an abiding faith in their right to have and dispose of such lands. Indeed, they had the example of all their predecessor states and also, what is more pertinent here, they had the full acquiescence and cooperation of the Federal Government acting through its three branches of government.

The highest court of our land has repeatedly and unqualifiedly affirmed the titles of the states, the administrative agencies of the government have accepted state ownership as a fact and Congress has legislated in conformity with it. No serious objections have ever been raised to this state of affairs, until now after a century and a half of national existence the astounding proposal encompassed by these resolutions disturbs the happy relationship between the United States Government and the several States.

We believe that the following authorities will establish beyond doubt legal and equitable title to the coastal States to the submerged tide lands along their respective shore lines.

I. AT COMMON LAW TITLE TO ALL TIDELANDS WAS IN THE KING

In Shively v. Bowlby, 152 U. S. 1, Mr. Justice Gray stated:

"By the common law, both the title and dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows and of all lands below the high-water mark, within the jurisdiction of the Crown of England, are in the King."

The opinion proceeds to state that insofar as the title for proprietary purposes was concerned it belonged to the King as the sovereign, and that the political dominion over such area vested in the King as the representative of the nation and for the public benefit.

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In Free Fisheries of Whitstable v. Gann, 144 English Reports 1003, decided by the House of Lords in 1865, it was held that title to the soil stretching for three miles from the beach vested in the King.

In Hall's Essay on the Right of the Crown in the Seashores of the Realm, Third Edition (appearing at p. 668 of Stuart A. Moore's "History of the Foreshore and the Law Relating Thereto") it is stated:

"Over the British seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world.

*

* *

"This dominion and ownership over the British seas, vested by our law in the King, is not confined to the mere usufruct of the water, and the maritime jurisdiction, but it includes the very fundum or soil at the bottom of the

* * * * * *

"This dominion not only extends over the open seas, but also over all creeks, arms of the sea, havens, ports, and tide-rivers, as far as the reach of the tide, around the coasts of the Kingdom. This is abundantly proved by the cases hereinafter referred to "Lord Hale, in the treatise ascribed to him, aptly compares the King's property in the sea and tide-rivers, creeks, etc., to the ownership of lords of manors in the common or waste lands of the manor. The soil and freehold of the waste belong to the lord, but subject to certain rights of the manorial tenants; * * So the king is lord of the great waste of the sea, subject to certain beneficial rights and privileges of fishing, navigation, etc., immemorially enjoyed by his subjects therein, by the custom of the realm, which is the common law."

*

In Angell on Right of Property in Tide Waters (second edition) the author states, page 20:

"To the King of England is, therefore, not only assigned the sovereign dominion of the sea adjoining the coasts * * but in him is also vested

the right of property in the soil thereof."

*

II. WHAT THE KING HAD WAS TRANSFERRED BY THE REVOLUTION TO THE COLONIES WHICH BECAME THE ORIGINAL THIRTEEN STATES

In Mumford v. Wardwell, 6 Wallace (73 U. S.) 423, a case involving a waterfront lot situated below high-water mark in San Francisco, the Court said (p. 436):

"When the Revolution took place, the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them, subject only to the rights since surrendered by the Constitution."

And in Hardin v. Jordan, 140 U. S. 371, 381, it was said:

"This right of the States to regulate and control the shores of tide waters, and the land beneath them, is the same as that which is exercised by the Crown in England."

Incidentally, in the case of Mumford v. Wardwell, above cited, it was specifically held that California is in exactly the same position in this respect as the original thirteen, in the following language (6 Wall. 435-6):

"California was admitted into the Union, September 9th, 1850, and the act of Congress admitting her declares that she is so admitted on equal footing, in all respects, with the original States. Settled rule of law in this court is, that the shores of navigable waters and soils under the same in the original States were not granted by the Constitution to the United States, but were reserved to the several States, and that the new States since admitted have the same rights, sovereignty, and jurisdiction in that behalf as the original States possess within their respective borders.

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"Necessary conclusion is, that the ownership of the lot in question, when the State was admitted into the Union, became vested in the State as the absolute owner, subject only to the paramount right of navigation."

III. IT IS THE SETTLED RULE OF THE UNITED STATES COURTS THAT TITLE TO THE SOIL UNDERLYING NAVIGABLE WATERS EXTENDING TO THE THREE-MILE LIMIT BELONGS TO THE STATES

The opinion of Mr. Justice Gray in Shively v. Bowlby, above referred to, traces the source of the states' rights in this regard in reference to lands below high-water mark in the State of Oregon. It is said (152 U. S. 26):

"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 below the high-water mark, within their respective jurisdictions."

The Court in this case quotes with approval from Knight v. United States Land Association, 142 U. S. 162, as follows (152 U. S. 43):

"These cases related to tide water, it is true; but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief, 12 How. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water."

The opinion then proceeds to point out that Congress has consistently acted upon the theory that coastal lands above high water mark may be taken up and settled, but that the soil under navigable water, whether above or below the ebb and flow of the tide, should be retained by the federal government as public highways, in trust for the future states when such states should be carved out of federal territory.

Following this idea, we note the case of Weber v. Commissioners, 18 Wall. 57, 65 (a case involving tide lands in California), where it was said:

"Although the title to the soil under the tidewaters of the bay was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future State. Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the general government."

This passage was quoted in United States v. Mission Rock Co., 189 U. S. 391. The latter was an action in ejectment, brought in the United States Circuit Court for the Northern District of California. A patent from the State of California to the grantor of a party to the suit was involved. The Circuit Court of Appeals confined plaintiff's recovery to the rocks or land itself and awarded the submerged lands to the defendant. After quoting the foregoing passage from the Weber case and a similar passage from Shively v. Bowlby, the Court said (p. 404) :

"This right is an attribute of the sovereignty of the State, and it follows that in the exercise of the right, as said by Mr. Justice Gray, the State may 'dispose of its tide lands free from any easement of the upland proprietor.'"

Knight v. United States Land Association, 142 U. S. 161, was an action in ejectment involving lands in San Francisco. The Court there stated (page 183):

"It is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original states were reserved to the several States, and that the new States since admitted have the same rights, sovereignty, and jurisdiction in that behalf as the original States possess within their respective borders. Martin v. Waddell, 16 Pet. 367, 410; Pollard v. Hagan, 3 How. 212, 229; Goottitle v. Kibbe, 9 How. 471, 478; Mumford v. Wardwell, 6 Wall. 423, 436; Weber v. Harbor Commissioners, 18 Wall. 57, 65. Upon the acquisition of the territory from Mexico the United States acquired the title to tide lands equally with the title to upland; but with respect to the former they held it only in trust for the future States that might be erected out of such territory. Authorities last cited."

In Illinois Central Railroad Company v. Illinois, 146 U. S. 387, an action involving the title to lands on the lake front of Lake Michigan, in Chicago, the Court stated (page 463):

"It follows from the views expressed, and it is so declared and adjudged, that the State of Illinois is the owner in fee of the submerged lands constituting the bed of Lake Michigan, which the third section of the act of April 16, 1869, purported to grant to the Illinois Central Railroad Company, and that the act of April 15, 1873, repealing the same is valid and effective for the purpose of

restoring to the State the same control, dominion, and ownership of said lands: that it had prior to the passage of the act of April 16, 1869."

The foregoing case again contains an analysis and history of the title to the bed of navigable waters with many apt quotations and applies these rules to the Great Lakes.

The Constitution of the State of California (Article XXI, Section 1) places the boundary of this State "three English miles" into the Pacific Ocean. That this method of fixing the boundary is authorized by law is shown by Manchester v. Massachusetts, 139 U. S. 240, where it is said:

"Within what are generally recognized as the territorial limits of States by the law of nations, a State can define its boundaries on the sea and the boundaries of its counties;

The Court in deciding that case, also says, at page 259:

In McCready v. Virginia, 94 U. S. 391, the question involved was,. whether the State of Virginia could prohibit the citizens of other States from planting oysters in Ware River, a stream in Virginia where the tide ebbed and flowed, when her own citizens had that privilege. In that case it was said, that the principle had long been settled in this court, that each State owns the beds. of all tidewaters within its jurisdiction, unless they have been granted away;' In that case the Court quotes with approval language from Smith v. Maryland, 18 Howard, 71, as follows:

* * Whatever soil below low-water mark is the subject of exclusive property and ownership, belongs to the State on whose maritime border and within whose territory it lies, subject to any lawful grants of that soil by the State, or the sovereign power which governed its territory, before the declaration of independence."

Hardin v. Jordan, 140 U. S. 371, was an action in ejectment to recover possession of certain land covered by waters of Lake Michigan. The court said: (page 381):

"With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to highwater mark, and that the title to the shore and lands under water in front of lands so granted enures to the State within which they are situated, if a State has been organized and established there. Such title to the shore and lands under water is. regarded as incidental to the sovereignty of the State-a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery and cannot be retained or granted out to individuals by the United States. Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Weber v. Harbor Commissioners, 18 Wall. 57. Such title being in the State, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and commerce. The State may even dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them, and granting fisheries in particular localities; also, by the reclamation of submerged flats, and the erection of wharves and piers and other adventitious aids of commerce. Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce. See Manchester v. Massachusetts, 139 U. S. 240; Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 U. S. 391; Martin v. Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426.

"This right of the States to regulate and control the shores of tide waters, and the land under them, is the same as that which is exercised by the Crown in England."

In Pollard v. Hagan, 3 Howard (44 U. S.) 212, the Court construed an act of Congress admitting Alabama to the Union. This action was one of ejectment to recover some reclaimed land that had become a city lot in the City of Mobile. The act in that case provided:

"that all navigable waters within the said State shall for ever remain publichighways, free to the citizens of the said State, and of the United States, without any tax, duty, impost or toll therefor, imposed by said State, * *

The Court held that this provision of the act conveys no more power over navigable waters in Alabama to the Government of the United States than the latter possesses over the navigable waters of other states under the provisions of the Constitution.

By way of explaining the transfer of title to the lands in suit from the State of Georgia to the United States, and thereafter to the State of Alabama, the Court said (page 222):

"Taking the legislative acts of the United States, and the states of Virginia and Georgia, and their deeds of cession to the United States, and giving to each, separately, and to all jointly, a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the Unied Sates with the eminent domain of the country ceded, both national and municipal, for the purposes of temporary government, and to hold it in trust for the performance of the stipulations and conditions expressed in the deeds of cession and the legislative acts connected with them."

The Court further held that if the act of Georgia conferring title upon the Federal Government were to be construed as vesting title in the latter permanently, after the territory concerned had become a part of the new state, then such act would be unconstitutional.

The Court said (page 223):

"When Alabama was admitted into the union, on an equal footing with the original states, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the temporary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained to the United States, according to the terms of the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative; because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted."

And at page 224 it is said:

"We, therefore, think the United States hold the public lands within the new states by force of the deeds of cession, and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess, or have reserved by compact with the new states, for that particular purpose. The provision of the Constitution above referred to shows that no such power can be exercised by the United States within a state. Such a power is not only repugnant to the Constitution, but it is inconsistent with the spirit and intention of the deeds of cession."

More recently, in a suit by the City of Los Angeles to quiet title to Mormon Island, in Los Angeles Harbor, an opinion written by Mr. Justice Hughes contains the following observations (Borax Consolidated v. City of Los Angeles, 296 U. S. 10):

"The soils under tidewaters within the original states were reserved to them respectively, and the states since admitted to the Union have the same sovereignty and jurisdiction in relation to such lands within their borders as the original states possessed. Martin v. Waddell, 16 Pet. 367, 410, 10 L. Ed. 907; Pollard v. Hagan, 3 How. 212, 229, 230, 11 L. Ed. 565; Goodtitle v. Kibbe, 9 How. 471, 478, 13 L. Ed. 220; Weber v. State Harbor Commissioners, 18 Wall, 57, 65, 66, 21 L. Ed. 798; Shively v. Bowlby, 152 U. S. 1, 15, 26, 14 S. Ct. 548, 38 L. Ed. 331. This doctrine applies to tidelands in California. Weber v. State Harbor Commissioners, supra; Shively v. Bowlby, supra, 152 U. S. 1, pages 29, 30, 14 S. Ct. 548, 38 L. Ed. 331; United States v. Mission Rock Co., 189 U. S. 391, 404, 405, 23 S. Ct. 606, 47 L. Ed. 865. Upon the acquisition of the territory from Mexico, the United States acquired the title to tidelands equally with the title of the upland, but held the former only in trust for the future states that might be erected out of that territory. Knight v. United Land Association, 142 U. S. 161, 183, 12 S. Ct. 258, 35 L. Ed. 974. There is the established qualification that this principle is not applicable to lands which had previously been granted by Mexico to other parties or subject to trusts which required a different dispositiona limitation resulting from the duty resting upon the United States under the Treaty of Guadalupe Hidalgo (9 Stat. 922), and also under principles of international law, to protect all rights of property which had emanated from the Mexican government prior to the treaty. San Francisco v. Le Roy, 138 U. S. 656, 671, 11 S. Ct. 364, 34 L. Ed. 1096; Knight v. United Land Association, supra, Shively v. Bowlby, supra."