accretion, and the artificial changes made by 

 man . . . } 



State ownership of tidelands derives from 

 English common law.^ However, English cases 

 were not precise as to exact location of the upper 

 boundary of tideland, and not until 1854, in the 

 case of Attorney-General v. Chambers'^ did the 

 English courts define "ordinary" high water as 

 "the line of the medium higli tide between the 

 springs and the neaps," which is a close approxi- 

 mation of the rule later laid down by the United 

 States Supreme Court when it definitively estab- 

 lished the Federal rule for interpretation of the 

 term "ordinary high water mark," in Borax Con- 

 solidated, Ltd. v. Los Angeles.^ In the Borax 

 Consolidated case, the Court said that "it is 

 necessary to take the mean high tide line, 

 which ... is neither the spring tide nor the neap 

 tide, but a mean of all the high tides."* In so 

 defining the ordinary high water mark, the Court 

 chose a test recommended by the U.S. Coast and 

 Geodetic Survey, and rejected the tests used in a 

 number of States.^ Certain recent State cases, 

 however, have adopted the Federal rule.* 



A third interpretation of "mean high tide line" 

 is the vegetation line, such as found in the State of 

 Washington: 



The line of ordinary high tide is that line which 

 the water impresses on the soil by covering it for 

 sufficient periods to deprive the soil of vegetation 

 and destroy its value for agricultural purposes. ^ 



^Shalowitz, op. cit, p. 89. 



^See Shively v. Bowlby, 152 U.S. 1, 57-58 (1893). 



'*4 DeG., M & G 206, 217-218, 43 Eng. Reps. 486, 

 490 (1854). 



^296 U.S. 10(1935). 



*296 U.S. at 26. 



E.g.. Tischemacher v. Thompson, 18 Cal. 11, 21 

 (1861); Otey v. Carmel Sanitary District, 219 Cal. 310, 26 

 P. 2d 308, 310 (1933); Peop/ev. William Kent Estate Co. , 

 51 Cal. Rep. 215, 219, 242 C.A. 2d, 156 (Ct. App., 1st 

 Dist, 1966); Miller V. Bay-to-Gulf, Inc., 141 Fla. 452, 193 

 So. 425, 428 (1940); iVa/rows Realty Co. Inc. v. State of 

 Washington, 52 Wash. 2d 843, 329 P. 2d 836, 837 (1958). 



Cf. O'Neill V. State Highway Department of New 

 Jersey, 50 N.J. 307, 235 A. 2d 1, 9 (1967). The Supreme 

 Court recently followed the Borax Consolidated case in 

 Hughes V. Washington, 389 U.S. 290 (1967). See also 

 United States v. Washington, 294 F. 2d 830 (1961), cert 

 denied, 369 U.S. 290. 



^Harkins v. Del Pozzi, 50 Wash. 237, 310 P. 2d 532, 

 534 (1957). See also Shelton Logging Co. v. Gosser, 26 

 Wash. 126, 66 Pac. 151 (1901). 



Although some States do not make the distinction, 

 the line-of-vegetation rule is properly applicable 

 only to nontidal waters, where no absolute high- 

 water level can be established.*" Other variations 

 on determination of the high water mark are 

 found in Louisiana, where the boundary is the line 

 reached by the highest winter tide,' ' and those 

 parts of Texas covered by Spanish land grants, 

 where the line is that of mean higher high tide.' ^ 



The adoption of different rules for determining 

 the "ordinary" high tide means that in those 

 States that follow the common law rule that 

 private property extends only to the "ordinary 

 high water mark" there may be a substantial 

 difference between the boundary that would be 

 found under the Federal rule and that found under 

 a different State rule. However, where the prior 

 sovereign has not created private titles, and the 

 State was created from Federal territory, the 

 coastal boundary will be determined by the 

 Federal rule unless the State chooses to adopt a 

 rule more generous to the upland owner than the 

 Federal rule. 



Assuming continued ^reUance upon the tides in 

 order to determine shore boundaries, the Federal 

 rule in the Borax Consolidated case appears to be 

 the most precise and accurate method available. 

 While the Federal test is appHed in determining the 

 boundaries of Federal grants, we believe there is 

 much value to be gained by the States in adopting 

 •the test in controversies between the States and 

 private interests. 



B. Tidelands Ownership 



At common law, the sovereign owned tidelands 

 and lands under navigable waters and his (its) title 

 stopped at the line of ordinary high water, as 

 modified from time to time by gradual accretion, 

 erosion, or reliction. When the Union was created, 

 sovereignty was divided between the States and 

 the Nation. The States retained ownership of the 



^^ See Borough of Ford City v. United States, 345 F. 2d 

 645 (C.A. 3), cert, denied, 382 U.S. 902. 



^^ Morgan v. Negodick, 40 La. Ann. 246, 3 So. 636 

 (1887); La. Rev. Civ. Code, art. 451. 



^^Luttes V. State, 159 Tex. 500, 324 S.W. 2d 167, 187 

 (1958). 



III-109 



