The public trust relates not only to ownership of 

 tidelands and submerged lands, but also provides a 

 rationale for public regulation of their use, regard- 

 less of ownership, which we discuss in Section II 

 of this chapter. 



Cautioning that care is necessary in applying 

 precedents in one State to cases arising in another 

 because there is no universal and uniform law 

 upon the subject and that each State has dealt 

 with the lands under the tide waters within its 

 borders according to its own views of justice and 

 pohcy, the United States Supreme Court stated in 

 Shively v. Bowlby: 



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 the 

 lands below high water mark, within the jurisdic- 

 tion of the Crown of England are in the King. 

 Such waters, and the lands which they cover, 

 either at all times, or at least when the tide is in, 

 are incapable of ordinary and private occupation, 

 cultivation and improvement; and their natural 

 and primary uses are public in their nature, for 

 highways of navigation and commerce, domestic 

 and foreign, and for the purpose of fishing of all 

 the King's subjects. Therefore the title, jus pri- 

 vatum, in such lands, as of waste and unoccupied 

 lands, belongs to the King as the sovereign; and the 

 dominion thereof, jus publicum, is vested in him 

 as the representative of the nation and for the 

 public benefit. . . . ' * 



The Court further stated that: 



the common law of England upon the subject . . . 

 is the law of this country, except so far as it has 

 been modified by the charters, constitutions, 

 statutes or usages of the several colonies and 

 states, or by the constitution and laws of the 

 United States. ' '^ 



"The title and rights of riparian or littoral 

 proprietors in the soil below high water mark of 

 navigable waters are governed by the local laws of 

 the several States."'* Where the Federal Govern- 



ment was the initial proprietor, any claim by a 

 State or by others must derive from the Federal 

 title;" the riglits conveyed by a Federal patent 

 are determined by Federal law.^" In some cases, 

 however, private parties may claim title by succes- 

 sion to concessions or grants antedating creation 

 of the Union, and in one such case the applicable 

 local law governing the extent of title was that of 

 the antecedent Spanish sovereign.^ ' 



The States may reUnquish to riparian and 

 Uttoral proprietors rights which properly belong to 

 the States in their sovereign capacity.^ ^ Among 

 the 13 original States, Rhode Island, Connecticut, 

 New York, New Jersey, North Carolina, and South 

 CaroUna followed the common law rule that the 

 owner of land adjacent to waters in which the 

 tides ebbed and flowed owned to the high water 

 mark; while Massachusetts,^' Maine ,^'* New 

 Hampshire,^ ^ Delaware,^* Pennsylvania,^' 

 Virginia,^* and Georgia^' modified the common 

 law practice to permit the upland owner to hold 

 title to the low water mark, subject to the pubUc 

 rights of navigation and fishing, and certain other 

 modifications peculiar to each State. 



'^152 U.S. 1, 11 (1893). 



''152 0.5.31 14. 



^^Shively v. Bowlby, 152 U.S. 1, 40 (1894); Hardin v. 

 Jordan. 140 U.S. 371, 382; Port of Seattle v. Oregon & 

 Washington R.R., 255 U.S. 56, 63. 



1 9 



United States v. Grand River Dam Authority, 363 

 U.S. 229, 235; Shively v. Bowlby, supra, note 18, at 

 50-51. 



20 



Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 

 10, 22, and cases cited therein. Cf. Hughes \. Washington, 

 389 U.S. 290(1967). 



^^Joy V. St. Louis, 201 U.S. 322 (1906). 



^^Bamey v. Keokuk, 94 U.S. 324, 338 (1876). 



See Michaelson v. Silver Beach Imp. Ass'n, 342 Mass. 

 251, 173 N.E. 2d 273, 275 (1961). The ordinance itself 

 has ceased to be in force, but the rule remains as part of 

 the common law of Massachusetts. See 1 Fainham 193 

 (1904). 



^'*See Sinford v. Watts. 123 Me. 230, 122 Atl. 573 

 (1923). 



See Shively v. Bowlby, supra note 18, at 20; also 

 Nuddv.Hobbs. 17 N.H. 524, 526-27 (1845). 



See State ex rel. Buckson v. Pennsylvania R. Co., 223 

 A. 2d 537, 597-98 (1967). This is a lower court case 

 presently on appeal. 



^'n/c« V. Pittsburgh Harbor Co.. 152 Pa. 427, 25 Atl. 

 647(1893). 



^^Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875 

 (1904). See also Code of Virginia, 1950, §62-2. 



^^Georgia, Constitution of 1945. art. I, §6: "The Act 

 of the General Assembly (approved Dec. 16, 1902), which 

 extends the title of ownership of lands abutting on tidal 

 water to low water mark is hereby ratified and con- 

 firmed." 



Ill-Ill 



