The States follow different rules in determining 

 ownership. Some rest title on the fact of navigabil- 

 ity, asserting state ownership of land under navi- 

 gable waters regardless of whether the tide ebbs 

 and flows, ^ ° but in some jurisdictions the test of 

 ownership in tidelands hinges on the fact of the 

 ebb and flow of the tide.^ ' 



Along flat, low-lying coasts the determination 

 of the boundary line with precision and accuracy 

 is of considerable importance, inasmuch as in some 

 flat areas, a difference of one inch in elevation can 

 make a difference of several hundred feet of 

 submerged land lost or gained at high tide, on 

 which may hinge the revenues of substantial oil, 

 gas, or other mineral claims.^ ^ The choice of test 

 for determining the boundary also will have a 

 substantial impact. If the definition of "mean high 

 tide" is stated in terms of level or elevation, the 

 title to certain interior lands not naturally reached 

 by the mean high tide but lying below the mean 

 high tide level might be deemed to belong to the 

 State, as was contended by New Jersey in O'Neill 

 V. State Highway Department.^ ^ The New Jersey 

 Supreme Court rejected the State's contentions, 

 and chose the test adopted by the United States 

 Supreme Court in the Borax Consolidated case. 



C. Limits of the Public Trust in Tidelands 



As noted in the preceding section, tideland 

 traditionally is held by the State in trust for its 

 people for commerce, navigation, and fishing.^'' 

 Among the States, however, there is no unanimity 

 regarding the limits of the trust. In some States, 



navigation is the sole or principal criterion for 

 allowing dredging or filling in tidelands.^ ^ 



Other States have extended the trust to include 

 pubUc rights other than navigation, commerce, and 

 fishing. For instance, Connecticut protects fowling 

 and hunting, the taking of seaweed and sedge, 

 bathing, and swimming, but these rights can be 

 extinguished either by the exclusive occupation of 

 the soil below high-water mark by the riparian 

 owner, or by the paramount pubhc right of free 

 and unobstructed use of navigable waters for 

 navigation.^* 



The trust concept also has been expanded by 

 increasing recognition of park and recreational 

 uses, and the conservation of natural resources, by 

 the courts and particularly by certain State 

 legislatures.^' California permits municipalities to 

 lease tidelands for park, recreational, residential, or 

 educational purposes when they deem industrial 

 uses to be inimical to the best interests of the 

 city.^* The State of Washington places statutory 

 limitations on the sale of certain parts of the 

 foreshore of the Pacific Ocean, emphasizing recrea- 

 tional values.^' Florida's recent amendments to its 

 Code are important for their precedent in recog- 

 nizing conservation of natural resources as a pubhc 

 trust: 



Any bulkhead line when so fixed or ascertained 

 and established shall represent the line beyond 

 which a further extension creating or filling of 

 land or islands outward into the waters of the 

 country shall be deemed an interference with the 

 servitude in favor of commerce, navigation, and 

 conservation of natural resources, with which the 



^°Brickell v. Trmnmell. 77 Fla. 544, 82 So. 221; Home 

 Real Est. Loan and Ins. Co. v. Parmele, 235 N.C. 689, 71 

 S.E. 2d 474 (1952);' North CaroUna General Statutes 

 §146-64 (1954). Alabama, California, Mississippi, 

 Oregon, Pennsylvania, Texas, Virginia, and Washington 

 are among the coastal States that have followed this rule. 



^^Bailey v. Driscoll, 19 N.J. 363 (1955); O'Neill v. 

 State Highway Department of New Jersey, 50 N.J. 307, 

 235 A. 2d 1 (1967). Georgia, llUnois, Maine, Maryland, 

 Michigan, New York, and South Carolina also have 

 followed this rule. 



32 



F. J. Hortig, Executive Officer, California State 

 Lands Commission, "Administrative and Technical Prob- 

 lems Related to Establishment of California Coastal and 

 Offshore Boundaries," Third Annual Law of the Sea 

 Institute, June 1968. 



^^50 N.J. 307, 235 A. 2d 1, 9 (1967). 



^"^Illinois Central R.R. v. Illinois, 146 U.S. 387, 452 

 (1892). 



^'Cf., Ala. Stats., tit. 38, §122; Del. Code Ann., tit. 

 23, §1507; Va. Code, §62-2.1 (1966 Supp.). 



^^Orange v. Resnick, 94 Conn. 573, 580-81, 109 Atl. 

 864, 866 (1920). See also Butler \ . Attorney-General, 195 

 Mass. 79, 80 N.E. 688, 689 (1907); Collins v. Gerhardt, 

 237 Mich. 38, 211 N.W. 115 (1926); /4/Zen v. /4//en, 19 

 R.I. 114, 32 Atl. 166, 167 (1895); Treuting v. Bridge and 

 Park Commission of the City of Biloxi, 199 So. 2d 627, 

 632 (Miss. 1967). 



Muench v. Public Service Commission, 261 Wis. 492, 

 511-12, 53 N.W. 2d 514, 522 (1952); California, 33 Ops. 

 Atty. Gen. 152 (City of Long Beach permitted to use 

 tidelands oil income to maintain and operate public 

 beaches on granted tidelands). 



^^Califomia Government Code, §37387. 



^'See Washington, R.C.W.A. 79.16.170-.171; Wash. 

 Laws 1963, ch. 212; Wash. Laws. 1967, ch. 120. 



III-112 



