A grant from the government for land bordering on a navigable stream (i. e. one that is navigable in fact) can extend no farther than the edge of the stream.1 The state may, if it choose, resign to a riparian proprietor rights which properly belong to it in its sovereign capacity, but this does not sanction a conveyance from the general government which would operate to divest the rights of the state. A mining claim located upon public lands traversed by a watercourse which is navigable in fact could only extend to the edge of the stream at its high-water stage. The beds of such streams are not public lands.3 While congress exercises legislative control over the territories and other political subdivisions not organized as states, it holds lands under the navigable streams in the public domain in trust for the future state, and it has always been the policy of the general government not to impair the right of the ultimate beneficiary by any permanent encumbrance or transfer of this class of lands. The rule on this subject is the same as that applied to lands below ordinary high tide in the case of tidal waters, a subject discussed in the next section. The state may grant temporary privileges, or perhaps permanent rights, of dredging or carrying on other mining operations in the beds of navigable waters; provided, that such operations do not interfere with the public rights of navigation or the private rights of riparian owners. But this is a subject which is not necessary to be here discussed.* Packer v. Bird, 137 U. S. 661, 669, 11 Sup. Ct. Rep. 212. Argillite Ornamental Stone Co., 29 L. D. 585; In re Fitten, 29 L. D. 451, 453. * Consult Coosaw M. Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. Rep. 689; State v. Black River Phosphate Co., 32 Fla. 82, 13 S. 640. See article by Dr. Rossiter W. Raymond in Engineering and Mining Journal, vol. 65, p. 276. As to the beds of non-navigable streams, there is no reason why the gravel deposits lying on them may not be appropriated,' as the banks may (for it is there that placers are usually found), if the title to the bed resides in the general government and is clear of prior appropriations. No subsequent appropriation of the bed of a non-navigable stream can interfere with the rights of a prior riparian proprietor. In other words, the question to be considered is whether the bed sought to be appropriated is a part of the public domain or not. As to what rights accrue to a placer locator to the water of a non-navigable stream found within the limits of the location, no definite rule can be stated. It will depend upon the locality in which the claim is situated. If in a state where the ultra doctrine of the common law prevails, his rights to the water would be limited to those of a riparian proprietor. If in a state where the riparian doctrines are abrogated or declared never to have been adopted, his right to use the water would depend upon its proper appropriation for that purpose, and the mere location of the placer claim would not of itself confer any right to the water. Judge Hallett has said, with regard to a case arising in Colorado, that "a placer location ex vi termini imports an appropriation of all waters covered by it "in so far as such waters are necessary for working "the mine. This is true, especially when the location "covers both banks of the stream, because there is a "reasonable presumption that the locator intends to work the channel and the banks wherever he may "find pay dirt. A placer claim cannot be worked with"out water. . . . The title to the water is the same as "the title to the land." And the land department has said that the rights of the placer locator to the water 2 'Rablin's Placer, 2 L. D. 764. Schwab v. Bean (Colo.), U. S. Cir. Ct. 1898, 1 Leg. Adv. 489. This question, in such case is simply "usufructuary." however, is hardly germane to the subject presently under consideration. Its solution can only be arrived at from a careful investigation of the water laws of the various states. For this purpose treatises on the law of water should be consulted. 8429. Lands under tide-waters.-There is no principle involved in the consideration of the public land system better settled or more clearly enunciated than that lands under tidal waters, and below the line of ordinary high tide, are not "public lands." When a state bordering upon these waters is admitted into the union it becomes, by virtue of its sovereignty, the owner of all lands extending seaward so far as its municipal dominion extends,-i. e. in landlocked bays from headland to headland and from the line of ordinary high tide on the shore of the open ocean seaward to the distance of three miles, or a marine league. This same rule applies to islands off the coast which are within the municipal control of the state. This ownership, however, is subject to the public right of navigation. As to lands of this character forming a part of the territory acquired by the federal government under treaties of cession and purchase which for the time being are not included within the boundaries of any state, but are either within territories (such as Hawaii and Porto Rico), districts (as Alaska), or insular dependencies with a temporary form of government specially devised to meet the exigencies of the occasion (such as the Philippine islands), the United States holds them in trust for the benefit of such states as may be ultimately carved out of them. With reference to 1 Rablin's Placer, 2 L. D. 764. this class of lands occupying this status, the supreme court of the United States has expressed itself as follows: 66 "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 disposi"tion 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."1 It follows from this doctrine that tide-lands bordering a territory cannot be acquired in private ownership under any of the general laws providing for the disposal of public lands, in which category are the federal mining laws. A mining claim cannot be so located as to extend below the line of ordinary high tide.2 The discovery in 1898 of the auriferous sands on the southern shore of the Seward peninsula in Alaska, washed by the Bering Sea, attracted an army of fortunehunters, and the beach in the immediate vicinity of Cape Nome was the scene of great mining activity. The federal mining laws had been extended to Alaska, but as the gold-bearing sands were found to exist below the line of ordinary high tide, there was practically no law which permitted their appropriation or exploitation below that line. As in the case of the discovery of gold in California at a time when there was no federal law whatever on the subject of acquiring public mineral 1 Shively v. Bowlby, 152 U. S. 1, 58; 14 Sup. Ct. Rep. 548. lands, the miners adopted rules and regulations defining the manner of acquiring, possessing, and enjoying mining privileges on beach claims. As it was conceived that a license could be obtained from the secretary of war, whose permit was necessary as a prerequisite to the maintenance of structures in the navigable waters of the United States, such license was asked and in many instances obtained. These licenses, of course, conferred no rights save immunity from prosecution for carrying on mining operations in navigable waters. The roadstead was an open one, there were no harbor lines, and the permit was granted whenever applied for. These conditions were recognized by congress, and provisions were inserted in the Alaska code1 governing the exploration and mining of these beach deposits between low and mean high tide on the shores, bays, and inlets of Bering Sea, and authorizing mining below the line of low tide under such regulations as might be prescribed by the secretary of war. This statute is, of course, local in its application. The code specifically sanctioned the adoption of local rules governing the size of the claims, and other details not necessary to be here noted. The act does not contemplate that these beach claims below the line of ordinary high tide shall be patented, the privilege being limited to exploration and mining for gold. Off the coast of California, at Summerland, in Santa Barbara county, petroleum wells are bored in the ocean below the line of ordinary high tide, and large quantities of crude oil are produced. The secretary of war has granted the same class of permits as noted in the case of Cape Nome, which are, as heretofore observed, ineffectual as conferring any rights. The title to the soil is in the state of California. There is no permission granted by the state, but it has not interfered, and the 1§ 26. See Appendix. |