"The policy of the common law is to assign to everything capable of occupancy and susceptible of ownership a legal and certain proprietor, and accordingly makes those things which from their nature cannot be exclusively occupied and enjoyed, the property of the sovereign."

And on 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." [Italics ours.]

In the light of these authorities, there is no room to argue that the lands below low-water mark are ownerless. On the contrary, title to such lands and to the minerals therein is vested in the sovereign, and the title of the sovereign to the minerals is of such a beneficial nature that the right to mine such minerals can be granted to private persons or corporations.

Moreover, as pointed out in our original memorandum, the Thirteen Original States succeeded to the rights of the Crown to these lands upon the signing of the Treaty of Paris. The Republic of Texas had similar sovereign rights when it became independent from Mexico. As to the other States, the Supreme Court has held that they have similar rights upon the doctrine of equality between States.

THE 3-MILE LIMIT

We doubt whether anyone will question that the territorial limits of each of the Thirteen Original States extended to at least the 3-mile limit at the time of the signing of the Treaty of Paris. In Regina v. Keyn (The Law Reports, Exchequer Division, vol. 2, p. 63) (1876), the court said at page 193:

66 * * * I am of opinion that it is proved that, by the law of nations made by the tacit consent of substantially all nations, the open sea within 3 miles of the coast is a part of the territory of the adjacent nation, as much and as completely as if it were land, a part of the territory of such nation."

In Angell on Right of Property in Tide Waters (2d ed. 1847), at page 1, it is said:

"The dominion of a nation is allowed, however, to extend so far from the land as is necessary for its own safety. The writers upon maritime and international law admit that every nation has jurisdiction to the distance of cannon shot, or maritime league, over the waters of its adjacent shores."

In Manchester v. Massachusetts, 139 U. S. 240, at page 257, the Supreme Court of the United States said:

"We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tidewaters is a marine league from its coast; *

*

It should, however, be pointed out that the 3-mile limit is, in the words of the Supreme Court, a "minimum limit." In other words, while the territorial limits extend at least 3 miles from the coast, they may extend farther. As is known, in the case of Alaskan waters, the United States claims sovereign rights for a considerable distance beyond the 3-mile maximum.

This point is mentioned because of the situation which exists with respect to Texas. On December 19, 1836, the Republic of Texas by article 257 of Sayles, Early Laws of Texas, declared that the boundaries of the Republic were as follows:

"Beginning at the mouth of the Sabine River, running west along the Gulf of Mexico three leagues from land to the mouth of the Rio Grande, thence up this stream to its source, thence due north to the 42° of north latitude, thence along the boundary line as defined in the treaty between the United States and Spain in 1819, to the place of beginning." [Italics ours.]

It is apparent that the territorial limits of the State of Texas extend beyond the 3-mile minimum. We have not attempted to check the situation as to any other States. Perhaps if this were done, other situations would be found where the territorial limits of the State extend beyond 3 miles.

It may be added that there seems to be no doubt as to the power of the United States to preempt and appropriate lands under water beyond the territorial limits of a State-whether such limits be 3 miles or a greater distance from the shore. Such lands, if not occupied by some other nation, would be ownerless lands and could be preempted by the United States exactly as it has preempted Canton Island and Enderbury Island by virtue of the Executive order of the President of March 3, 1938. As to such lands beyond the territorial boundaries of a State, the reasoning of the Navy Department in its letter to the Senate Committee on Public Lands and Surveys would seem to apply.

The act of preemption would be of a political nature, and would not be questioned by our courts.

The error into which the proponents of the proposed joint resolution have fallen is the assumption that the rules of international law applying to waters outside of the territorial waters of any state or nation apply to the waters within territorial limits. As demonstrated by the authorities cited above, an entire different situation exists as to waters and lands under water within the territorial limits of a State.

TIDEWATERS

The phrase "tide waters" or similar phrases is frequently used by the Supreme Court. Thus in McCready v. Virginia, 94 U. S. 391, at page 394, it was said: "The principle has long been settled in this court that each State owns the bed of all tide waters within its jurisdiction, unless they have been granted away."

In Shively v. Bowlby (152 U. S. 1), at page 11, it was said:

"By the common law, both the title and the 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." [Italics ours.]

and at page 57:

"The new states admitted into the Union since the adoption of the Constitu tion have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions." [Italics ours.]

In Borax Consolidated v. Los Angeles (296 U. S. 10), at page 15, it was said: "The soils under tide waters within the original States were reserved to them respectively, and the States since admitted to the Union have the same sover eignty and jurisdiction in relation to such lands within their borders as the original States possessed." [Italics ours.]

While in the authorities cited in the preceding sections of this memorandum we have attempted to confine ourselves to cases where it clearly appears that the lands in controversy were below low-water mark, nevertheless, it must be emphasized that in using the phrase "tide waters" in the cases last cited, the Supreme Court apparently does not intend to draw any distinction between lands above low-water mark and those below low-water mark. The waters below low-water mark are "tide waters," as well as those above. This clearly appears from the quotation given above from Manchester v. Massachusetts (139 U. S. 240). The Court speaks of territorial jurisdiction "over tide waters" and says that it extends a marine league from the coast. The phrase "tide waters" is used to refer to all waters within the 3-mile limit-below as well as above the low-water mark. It is to be assumed that the Court intends the same meaning when it uses the same phrase in other cases.

THE ACT ADMITTING CALIFORNIA TO THE UNION

At the hearing before the committee on February 23, the proponents of the joint resolution suggested that, whatever the situation might be with respect to other states, lands below low-water mark off the California coast might be the property of the United States upon the theory that title thereto was reserved to the Federal Government in the act admitting California to the Union (9 Stat. L. 452; ch. 50 of Laws of 1850). This act provides that California is admitted into the Union

"upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and the right to dispose of, the same shall be impaired or questioned."

The proponents' argument is that title to lands below low-water mark was vested in the United States by virtue of its sovereignty prior to the act of admission, and that they are therefore "public lands" within the meaning of the act.

Obviously, this is no argument for the adoption of the proposed joint resolu tion. As pointed out by various members of the committee, if the United States already has title to these lands, the Attorney General needs no further legislative authority to enable him to take appropriate steps to protect the rights of the United States. He can bring suit without further ado.

Moreover, there is no validity to this argument advanced by the proponents. The sovereign has title to lands between low-water mark and high-water mark and to the beds of navigable streams, by virtue of sovereignty, equally with title to lands below low-water mark. In each case title flows from the same source. If the proponents' theory was correct, the lands between high- and lowwater mark and the lands underlying navigable streams would also be "public lands" within the meaning of the act admitting California to the Union, and title thereto would be in the United States and not in the State of California. That this is not the fact is demonstrated by the Borax case, in which the Supreme Court said:

66* * * if the land in question was tide land, title passed to California at the time of her admission to the Union in 1850."

and by the case of Silas Mason Co. v. Tax Commissioner of Washington, decided by the Supreme Court on December 6, 1937, in which the Court said with respect to lands under navigable rivers in the State of Washington:

66* * * the title to the river bed * * * was in the State." In this connection, it will be borne in mind that the act admitting the State of Washington to the Union (25 Stat. L. 677) paralleled the act admitting California in that it provided:

* * That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof."

The precise effect of this reservation to the United States of "public lands" was passed upon by the Supreme Court in Mann v. Tacoma Land Co. (153 U. S. 273), and after giving the above quotation from the act admitting the State of Washington, the Court said:

"No one can for a moment suppose that it was the thought of Congress to change the whole policy of the Government and reserve to the Nation the title and control of the soil beneath the tide waters and those of navigable streams." As appears from the Mann case, and the authorities cited therein, the phrase "public lands" as used in the various acts of Congress, refers only to the lands (on dry land) which have been the subject matter of the homestead acts and other legislation opening up Government lands to settlers.

FEDERAL POWER OVER NAVIGABLE WATERS

In the Navy Department letter to the Senate committee, it is said: "The United States makes full and free use of the submerged lands for sites of its anchorages, buoys, piers, lighthouses, and other aids to navigation, and it otherwise exercises proprietary dominion over such submerged lands by requiring that no such improvement shall be placed thereon without express authority of Congress."

At the House committee hearing, a representative of the Navy Department cited the following cases: Hawkins Point Lighthouse case (39 Fed. 77), Greenleaf-Johnson Lumber Co. v. Garrison (273 U. S. 751), Lewis Bluepoint Oyster Cultivation Co. v. Briggs (229 U. S. 82), Bailey v. United States (62 C. Cls. 77). He also referred to the act of May 22, 1917 (18 U. S. C., sec. 96).

The Lewis Bluepoint Oyster Cultivation Co. case involved the power of the United States to dredge channels in navigable waters. The Greenleaf-Johnson Lumber Co. case involved the power of the Government to remove obstructions to navigation. The Hawkins Point Lighthouse case involved the power to build a lighthouse upon submerged lands, which the court characterized as "a use as strictly necessary to safe navigation as the improved channel itself." The Bailey case involved the power of the Government to build a bulkhead to improve channel conditions, but turned upon the fact that in constructing the bulkhead and interfering with the plaintiff's oyster beds, the United States officers were acting wholly without authority-statutory or otherwise. The Court held:

"No officer of the United States can create an obligation against the United States to pay for property taken unless he had authority to take it."

Section 96 of title 18 of the United States Code (Criminal Code, sec. 44, amended) establishes penalties for willfully trespassing upon or injuring certain kinds of Government property or violating orders or regulations of the President governing persons or vessels within the limits of defensive sea areas. There is nothing in this statute whereby the Government lays claim to any property which it has not acquired by purchase, grant or condemnation, and it is difficult to see its pertinency.

Nor are the cases cited by the Navy Department in point. They are but illustrations of the undeniable power of Congress to regulate commerce between the several States and with foreign nations. In the exercise of the same power, Congress may regulate the railroad use of railroad property, but this does not mean that it can take the property and use it for its own purposes. By analogy, when an easement for highway purposes exists, the municipality may grade, pave, and otherwise improve the highway, but this does not mean that it can mine and appropriate the minerals beneath it. Congress may make improvements for navigation purposes, but this does not mean that it can expropriate submerged petroleum deposits without just compensation. It must not be forgotten that the fifth amendment to the Constitution provides that private property shall not be taken for public use, without just compensation, and that this amendment protects the property of the States as well as property of individuals.

In the cases cited by the Navy Department, there was no "taking" within the meaning of the Bill of Rights. It must be emphasized that such a taking is contemplated by the proposed resolution. Avowedly, the purpose of the resolution is not to improve navigation-either by dredging channels, removing obstructions, or otherwise. The admitted purpose is purely and simply to take property from its rightful owners and appropriate it to the exclusive use of the United States. No one can deny but that this is precisely the type of thing against which the constitutional provision was designed as protection. Nor does the fact that the petroleum deposits are desired for war purposes make any difference. In United States v. New River Collieries Co., (262 U. S. 341), at page 343, it was said:

"Section 10 of the Lever Act, in obedience to the fifth admendment provides for just compensation. The war or the conditions which followed it did not suspend or affect these provisions (United States v. L. Cohen Grocery Co., 255 U. S. 81, 88, 65 L. ed. 516, 520, 14 A. L. R. 1045, 41 Sup. Ct. Rep. 298)." Similarly, in United States v. McIntosh, 2 Fed. Supp. 244, at page 251, it was said:

"The necessity and propriety of taking private property for public use, and the extent to which it shall be taken and the procedure to be followed therein, are legislative questions, subject only to the constitutional limitation that just compensation must be made (Shoemaker v. United States, 147 U. S. 282, 298, 13 S. Ct. 361, 37 L. Ed. 170; Secombe v. Milwaukee & St. P. R. Co., 23 Wall. 108, 23 L. Ed. 67; Lewis on Eminent Domain, 3d Ed., sec. 255). While the state of war in this case doubtless determined the legislative policy to take the land more summarily than could have been done by following the ordinary general condemnation procedure, it is clear that the war did not suspend the operative force of the fifth amendment as to the determination of just compensation (United States v. L. Cohen Grocery Co., 255 U. S. 81, 88, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; United States v. New River Collieries Co., 262 U. S. 341, 343, 43 S. Ct. 565, 67 L. Ed. 1014; United States v. McFarland, 15 F. (2d) 823, 826 (C. C. A. 4)), which necessarily remained a judicial question." See also Russian Volunteer Fleet v. United States, 282 U. S. 481.

The proposition that the United States can take property without just compensation either under its powers over interstate and foreign commerce or under its war powers carries its own refutation. If that were true, then the Federal Government could confiscate any property within this country, on dry land as well as below low-water mark, upon the theory that it was convenient to do so either to facilitate interstate commerce or to aid the national defense. As pointed out in our original memorandum, the Supreme Court has held that these grants of power to the Federal Government were not grants of property or territory.

PRACTICAL CONSIDERATIONS

At the hearing before the committee, various members of the committee questioned a representative of the Navy Department as to the necessity of including these particular petroleum deposits in the naval oil reserve. It will be recalled that the Navy Department representative replied to the effect that there was nothing about these particular oil deposits that made them particularly desirable from the standpoint of the naval oil reserve, and that in urging the resolution, the Department was motivated by a feeling that they might be needed at some time in the future.

If this correctly represents the attitude of the Department, then there is nothing to the idea (upon which our original memorandum was based) that

141082-39-ser. 2-17

there was some imperative need for obtaining these oil deposits at the present time for national-defense purposes. Under these circumstances, there seems to be not the slightest excuse for the adoption of a resolution which would cast a serious cloud upon the titles to all reclaimed lands and all existing water-front improvements, and which would seriously hamper the various ports of this country in effectuating further port improvements. In this connection, it will be recalled that the proponents of the resolution admitted at the hearing that their theory attacked the title to piers at Atlantic City, N. J., extending below lowwater mark, equally with title to petroleum deposits off the coast of California. The American Association of Port Authorities has no doubts as to the ultimate outcome of any litigation with respect to the title to lands below low-water mark. As indicated, title thereto rests in the States or their grantees or the grantees of their predecessor sovereigns. The association feels it unnecessary to repeat in this supplemental memorandum the practical considerations set forth in its original memorandum which have led it to oppose the adoption of the resolution. The association, however, does urge most strongly that the proposed resolution be rejected.

Dated: New York, N. Y., March 16, 1938.
Respectfully submitted.

JULIUS HENRY COHEN, Chairman,

D. A. SIMMONS, Vice Chairman,
MARKELL C. BAER,
RENE CLERC,

GEORGE D. LAROCHE,

WILBUR LA ROE, Jr.,

Committee on Law and Legislation.

Mr. TOLAN. Mr. Gilman, of New York.

STATEMENT OF HON. WARREN H. GILMAN, ASSISTANT ATTORNEY GENERAL OF THE STATE OF NEW YORK

Mr. GILMAN. I will be as brief as I can, Mr. Chairman. At the committee hearing last year, in opposition to Senate Joint Resolution 208, very inadvertently I suggested that California's case be considered alone, separately, and I suggested that she not be the 1-inch tail waggng a 47-inch dog. By that I meant that she be not made the subject of a separate resolution, but that the matter be judicially determined as to California. Now it seems, thanks to Mr. Hobbs and his resolution, that we have California that 1-inch tail wagging the 47-inch dog, and New York being the extreme north end of the animal, we find ourselves flying through the air but not with the greatest of ease, either.

You have before you two resolutions, one asserting title to the tidewaters, within the 3-mile limits of all States where oil deposits will be found or may be found. The other is confined to California. Personally, we do not think that there is any necessity for either of these resolutions.

If you have the title to these lands-and when I say "you" I mean the United States-you are the owner, and there is neither rhyme nor reason for asserting title; nor will any assertion of the title add anything to your title. On the other hand, if you have not the title, if you have no title, all of the assertions in the world will not give it to you.

Now, even granting that you do pass this resolution, asserting title, do you think for a minute that the various States are going to sit by without a court fight? Not if the temper of the gentlemen on the other side of the rail is any criterion, and all of the resolutions that you may pass from now on to doomsday will not add one iota to