subsequently find that the trust no longer serves 

 the purposes for which it was created, or that 

 circumstances have so changed that its con- 

 tinuance would be unwise. Thus, California de- 

 clared "free from the public trust" under the grant 

 to tide and submerged lands in Long Beach, taking 

 one half of the oil revenues and all "dry gas" 

 revenue derived by Long Beach from lands so 

 granted. CaUfornia did so, stating in the Act of 

 June 6, 1951 that expenditure of more than the 

 sums left remaining subject to the trust "would be 

 economically impracticable, unwise and unneces- 

 sary."" « 



The common law rights with respect to owner- 

 ship of tidelands and submerged lands were de- 

 signed for and amenable to the needs of 

 commerce, navigation, and the fisheries, and have 

 in the past proved to be adaptable to economic 

 development uses. But new interests have devel- 

 oped in the tidelands and submerged lands. Valu- 

 able mineral resources have increased the need for 

 precise boundaries and sound regulatory practices. 



New awareness of the biological, recreational, 

 and aesthetic value of marshes, swamps, and 

 tidelands, previouciy considered waste lands 

 "incapable of ordinary and private occupation, 

 cultivation and improvement," have particularly 

 tested the effectiveness of the common law public 

 trust in which the States have held title to 

 tidelands and submerged lands. 



The imaginative interpretation of the common 

 law public trust by State courts, extending the 

 trust to the conservation of natural resources, has 

 been helpful, but only comprehensive planning, 

 legislation, and flexible administrative action have 

 proven effective in managing the increasingly 

 diverse, often conflicting uses in the coastal zone. 



E. The Federal Navigation Power 



Early in U.S. history the control of navigation 

 was determined to be one enumerated power of 

 the Federal Government under the Commerce 

 Clause of the U.S. Constitution.'*' 



The power over navigation is frequently de- 

 scribed as a "dominant right," or a "right of a 



plenary nature," or a "superior power" to which 

 States and private rights have always been "subor- 

 dinate."'" Included in the power over navigation 

 is a unique power known as the "navigational 

 servitude," which is an expression for the rule that 

 certain private property rights in navigable waters 

 are subject to a preexisting, continuing right to use 

 such waters and the beds of such waters in aid of 

 navigation,' ' including rights in non-navigable 

 streams which affect navigability of navigable 

 streams, extending to the ordinary high water 

 mark.' ^ The right to use navigable waters in aid of 

 navigation is not a right to take title, but a right to 

 use; exercise of the servitude interferes with the 

 enjoyment of riparian rights without impairing 

 their legal status. However, in the exercise of the 

 right, improvements placed in navigable waters by 

 private parties may be removed in exercise of the 

 servitude, without compensation to the owner of 

 the improvement. Such power is unique among the 

 constitutional powers granted to the Federal Gov- 

 ernment. One explanation is that all private 

 property extending below the ordinary high water 

 mark of navigable streams and coastal waters is 

 placed there with "notice" of the servitude.' ' 



A prime example of the exercise of the naviga- 

 tion power is found in the Rivers and Harbors Act 

 of 1899,'^* administered by the Corps of Engi- , 

 neers, which, among other things, governs the 

 building of structures in U.S. navigable waters, and 

 provides for the authorization by permit of dredg- 

 ing and filling in navigable waters.' ' 



Federal power over navigation is a great poten- 

 tial asset to the management of certain coastal 

 zone water uses, but one pressing current issue is 

 control of activities, such as dredging and filling, 

 with no adverse effect on navigation, where other 

 values are sought to be preserved. 



"^See Mallon v. City of Long Beach, 44 Cal. 2d 199, 

 282 P.2d 481 (1955); Twombley v. City of Long Beach, 

 333 F. 2d 685 (C.A. 9, 1964), cert denied, 379 U.S. 904, 

 reh. denied. 379 U.S. 984. 



'^'^ Gibbons v. Ogden. 22 U.S. (9 Wheat.) 1 (1 824). 



^^United States v. Grand River Dam Authority, 363 

 U.S. 233 (1960). United States v. Twin City Power Co., 

 350 U.S. 222(1956). 



^^ United States v. Commodore Park. Inc.. 324 U.S. 

 386 (1945); Greenleaf-Johnson Lumber Co. v. Garrison, 

 IZl U.S. 251 (1915); Lewis Blue Point Oyster Culture 

 Co. V. Briggs. 229 U.S. 82 (1913); United States v. 

 Chandler-Dunbar Water Power Co.. 229 U.S. 53 (1913). 



^^ Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 

 313 U.S. 508, 525-26 (1941); United States v. Grand 

 River Dam Authority, supra note 50. 



'^Claik (ed), 2 Waters and Water Rights 16 (1967). 



'"Act of March 3, 1899, 30 Stat. 1151, as amended, 33 

 U.S.C. 401-416(1964). 



"33U.S.C. 403. 



III-114 



