REGARDING
NAVIGABLE RIVERS:
Stated Justice Baldwin in his assenting opinion in Proprietors of Charles River Bridge
v. Proprietors of, 36 U.S. 420 (1837) 36
REGARDING NON-NAVIGABLE WATERWAYS
In Lux v Hagin, 69 Cal. 255 (1886) the court established that: "The statute of April 13, 1850, adopts the common law of England, not the civil law, nor the 'ancient common law' of the civilians, nor the Mexican law..." Further, the court stated: "The act of 1850 adopts the common law of England; not the civil law; nor the jus commune antiquum, or Roman 'law of nature' of some of the civil-law commentators, (Braly v. Reese, 51 Cal. 464, note;) nor the Mexican law; nor any hybrid system; and the expression 'common law of England' designates the English common law as interpreted, as well in the English courts as in the courts of such of the states of the Union as have adopted the English common law."
The Court stated, "Since, if not before, the admission of
California into the Union, the United States has been the owner of all innavigable strcams
on the public lands of the United States within our borders, and of their banks and beds.
"A grant of public land of the United States carries with it the common-law rights to
an innavigable stream thereon, unless the waters are expressly or impliedly reserved by
the terms of the patent, or of the statute granting the land, or unless they are reserved
by the congressional legislation authorizing the patent or other muniment of title.
"The original states only retained property in the navigable
rivers, (subject to their free navigation by the citizens of all the states,) and the
subjacent soils, because, by the common law, which prevailed in those states, innavigable
streams were private, and their beds the property of riparian proprietors. By the Mexican
law, however, innavigable streams were public property. It might be claimed that, as this
property of the Mexican nation in non-navigable rivers and their beds was an incident to
the sovereignty, it became vested in the state of California when the state was admitted
into the Union. If this were admitted, it would follow that the United States has had no
property in innavigable streams, their beds, and waters, and all attempts to deraign a
title from the United States to waters appropriated on public lands, under the act of
congress of 1866, or otherwise, must fail.
"It may be maintained, at least plausibly, that the admission of California into the
Union 'on an equal footing with the original states' of itself operated an immediate
transfer of the property in the innavigable rivers to the federal government, so that the
property of the state was momentary. However this may be, on the thirteenth of April,
1850, the legislature of California had passed an act 'adopting the common law,' which
reads: 'The common law of England, so far as it is not repugant to or inconsistent with
the constitution of the United States, or the constitution or laws of the state of
California, shall be the rule of decision in all the courts of this state.' St. 1850, p.
219. The validity of the acts of the first legislature of California, or of rights
acquired under them even prior to the admission of the state, has never been questioned.
Certainly, when constitutional, those acts became valid, and in operation for every
purpose, from the date of the admission of the state into the Union."
The court stated, "It has often been held by this court and its
predecessors that a grant of a tract of land bounded by a river or creek not navigable,
conveys the land to the thread of the stream; and from a very early day the courts of this
state have considered the United States government as the owner of such running waters on
the public lands of the United States, and of their beds. Recognizing the United States as
the owner of the lands and waters, and as therefore authorized to permit the occupation or
diversion of the waters as distinct from the lands, the state courts have treated the
prior appropriator of water on the public lands of the United States as having a better
right than a subsequent appropriator, on the theory that the appropriation was allowed or
licensed by the United States. It has never been held that the right to appropriate waters
on the public lands of the United States was derived directly from the state of California
as the owner of innavigable streams and their beds; and, since the act of congress
granting or recognizing a property in the waters actually diverted and usefully applied on
the public lands of the United States, and such rights have always been claimed to be
deraigned by private persons under the act of congress, from the recognition accorded by
the act, or from the acquiescence of the general government in previous appropriations
made with its presumed sanction and approval.
"If the United States since the treaty with Mexico has been the owner of the
innavigable streams and their beds, (in trust for the state, or absolutely,) or has been
the owner thereof as a consequence of the act admitting the state into the Union, or of
the state act of 1850, or as a consequence of both those statutes taken together, the same
is true as to other riparian proprietors; at least since the date of the first-named act.
They have been recognized as such owners by our courts. Prior and subsequent to the
enactments of the Civil Code with respect to appropriations of water, the rights to the
use of water by private riparian proprietors, as between themselves, have repeatedly been
judicially determined by reference to the common-law rules on the subject, which, as is
said by counsel, differ somewhat from those of the Mexican law. And if the United States
since the date of the admission of the state has been the owner of the innavigable streams
on its lands, and of the subjacent soils, grants of its lands must be held to carry with
them the appropriate common-law use of the waters of the innavigable streams thereon,
except where the flowing waters have been reserved from the grant. To hold otherwise would
be to hold, not only that the lands of the United States are not taxable, and that the
primary disposal of them is beyond state interference, but that the United States, as a
riparian owner within the state, has other and different rights than other riparian
owners, including its own grantees.
"The government of the United States has the absolute and perfect title to its lands.
U. S. v. Gear, 3 How. 120; Jourdan v. Barrett, 4 How. 185; U. S. v. Hughes, 11 How. 568;
Irvine v. Marshall, 20 How. 561; Bagnell v. Broderick, 13 Pet. 450; U. S. v. Gratiot, 14
Pet. 526. Unless, therefore, running waters are reserved, they pass by grant or patent of
the United States. It was so held in Vansickle v. Haines, supra. The supreme court of
Nevada cite Cook v. Foster, 2 Gilman, 652, Wilcoxon v. McGhee, 12 Ill. 381, and Colvin v.
Burnet, 2 Hill, 620; and quote with approval the language of Mr. Angell, who says:
'The only mode by which a right of property in a water-course above tide- water can be
withheld from a person who receives a grant of the land is by a reservation directly
expressed or clearly implied to such effect. If the intention of the grantor is not to
convey any interest in the water, he can exclude it by the insertion in the instrument of
conveyance of proper words for the purpose of doing so; but in the absence of such words,
the bed, and consequently the stream itself, passes by the conveyance.' 7 Nev. 266.
"Whatever may be the weight, as authority, of Vansickle v. Haines in other respects,
the statement that the grantee or patentee acquires from the United States--the absolute
and unqualified owner of the public lands--common-law rights in the waters flowing through
the land granted (except where the waters, or a portion of them, are reserved) has never
been disputed."
In Hardin v. Jordan, 140 U.S. 371 (1891,) the Court cited the decision of the supreme court of Illinois in Middleton v. Pritchard, qua supra:
'Where the government has not reserved any right or interest that might pass by the grant, nor done any act showing an intention of reservation, such as platting or surveying, we must construe its grant most favorably for the grantee, and that it intended all that might pass by it. What will pass, then, by a grant bounded by a stream of water? At common law, this depended upon the character of the stream or water. If it were a navigable stream or water, the riparian proprietor extended only to high-water mark. If it were a stream not navigable, the rights of the riparian owner extended to the center thread of the current . ... At common law, only arms of the sea, and streams where the tide ebbs and flows, are deemed navigable. Streams above tidewater, although navigable in fact at all times, or in freshets, were not deemed navigable in law. To these, riparian proprietors bounded on or by the river could acquire exclusive ownership in the soil, water, and fishery, to the middle thread of the current; subject, however, to the public easement of navigation. And this latter, Chancellor Kent says, bears a perfect resemblance to public highways. The consequence of this doctrine is that all grants bounded upon a river not navigable by the common law entitle the grantee to all islands lying between the main-land and the center thread of the current. And we feel bound so to construe grants by the government, according to the principles of the cmmo n law, unless the government has done some act to qualify or exclude the right . ... The United States have not repealed the common law as to the interpretation of their own grants, nor explained what interpretation or limitation should be given to or imposed upon the terms of the ordinary conveyances which they use, except in a few special instances; but these are left to the principles of law, and rules adopted by each local government, where the land may lie. We have adopted the common law, and must therefore apply its principles to the interpretation of their grant.' these views are preferred to with strong approval by Chancellor Kent in a note to the third volume of his Commentaries, p. 427, (6th Ed.,) being the last edition prepared under his own wupervision. We do not think it necessary to discuss this point further. In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.
Also ' Packard v. Bird, 137
Again, in Water Power Co. v. Water Commissioners, 168 U.S. 349 (1897) the Court recited the numerous presvious decisions concerning land ownership bordering on navigable and non-navigable streams. One of these was Kaukauna Water-Power Co. v. Green Bay & M. Canal Co., 142 U.S. 254, 12 Sup. Ct. 173
" Mr. Justice Brown, in delivering the opinion of the court, said at page 271: 'It is the settled law of Wisconsin, announced in repeated decisions of its supreme court, that the ownership of riparian proprietors extends to the center or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels. [Citing cases.] In City of Janesville v. Carpenter, 77 Wis. 288, 300, 46 N. W. 128, it is said of the riparian owner: 'He may construct docks, landing places, piers, and wharves out to the navigable waters, if the river is navigable in fact, but if it is not so navigable he may construct anything he pleases to the thread of the stream, unless he injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes . ... Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property under the protection of the constitution, and it cannot be taken, or its value lessened or impaired, even for public use, 'without compensation,' or 'without due process of law,' and it cannot be taken at all for any one's private use.' With respect to such rights, we have held that the law of the state, as declared by its supreme court, is controlling as a rule of property.'
In Hardin v. Shedd 190 U.S. 508 (1903), it was explained:
"...When land is conveyed by the United States bounded on a non-navigable lake belonging to it, the grounds for the decision must be quite different from the considerations affecting a conveyance of land bounded on navigable water. In the latter case the land under the water does not belong to the United States, but has passed to the state by its admission to the Union. Nevertheless, it has become established almost without argument that in the former case, as in the latter, the effect of the grant on the title to adjoining submerged land will be determined by the law of the state where the land lies. In the case of land bounded on a non-navigable lake the United States assumes the position of a private owner subject to the general law of the state, so far as its conveyances are concerned. Hardin v. Jordan, 140 U.S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U.S. 1, 45, 38 S. L. ed. 331, 347, 14 Sup. Ct. Rep. 548; Grand Rapids & I. R. Co. v. Butler, 159 U.S. 87, 90, 93 S., 40 L. ed. 85-87, 15 Sup. Ct. Rep. 991; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U.S. 349, 363, 42 S. L. ed. 497, 502, 18 Sup. Ct. Rep. 157. Such cases are not affected by Rev. Stat. 2476, 5251, U. S. Comp. Stat. 1901, pp. 1567, 3522. When land under navigable water passes to the riparian proprietor, along with the grant of the shore by the United States, it does not pass by force of the grant alone, because the United States does not own it, but it passes by force of the declaration of the state which does own it that it is attached to the shore. The rule as to conveyances bounded on non-navigable lakes does not mean that the land under such water also passed to the state on its admission or otherwise, apart from the swamp land act, but is simply a convenient, possibly the most convenient, way of determining the effect of a grant. We are particular in calling attention to this difference, because we fear that there has been some misapprehension with regard to the point.
Ownership of the bed and banks of non-navigable streams was retained
in private land ownership by adjacent landowners through the land patent. As stated by
Justice Van DeVanter in Scott v.
Lattig, 227 U.S. 229 (1913):
"Coming to the effect to be given to the admission of Idaho as a
state and to the disposal of the fractional subdivisions on the east bank, it is well to
repeat that Snake river is a navigable stream, for there
is an important difference between navigable and non-navigable waters in such a
connection. Thus, Rev. Stat. 2476, U. S. Comp. Stat. 1901, p. 1567, which is but a
continuation of early statutes on the subject (Acts May 18, 1796, 1 Stat. at L. 464, chap.
29, 9, U. S. Comp. Stat. 1901, p. 1567; March 3, 1803, 2 Stat. at L. 229, chap. 27, 17),
declares: 'All navigable rivers within the
territory occupied by the public lands shall remain and be deemed public highways; and, in
all cases where the opposite banks of any streams not navigable belong to different
persons, the stream and the bed thereof shall become common to both;' and of this
provision it was said in St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 288, 19 L.
ed. 74, 78, 'the court does not hesitate to
decide that Congress, in making a distinction between streams navigable and those not
navigable, intended to provide that the common-law rules of riparian ownership should
apply to lands bordering on the latter, but that the title to lands bordering on navigable
streams should stop at the stream, and that all such streams should be deemed to be and
remain public highways.'
"Besides, it was settled long ago by this court, upon a
consideration of the relative rights and powers of the Federal and state governments under
the Constitution, that lands underlying navigable waters within the several states belong
to the respective states in virtue of their sovereignty, and may be used and disposed of
as they may direct, subject always to the rights of the public in such waters and to the
paramount power of Congress to control their navigation so far as may be necessary for the
regulation of commerce among the states and with foreign nations, and that each new state,
upon its admission to the Union, becomes endowed with the same rights and powers in this
regard as the older ones. St. Clair County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59,
63; Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228; Illinois C. R. Co.
Illinois, 146 U.S. 387, 434-437, 36 L. ed. 1018, 1035-1037, 13 Sup. Ct. Rep. 110;
"Bearing in mind, then, that Snake river is a navigable stream, it
is apparent, first, that on the admission of Idaho to statehood the ownership of the bed
of the river on the Idaho side of the thread of the stream-the thread being the true
boundary of the state-passed from the United States to the state, subject to the
limitations just indicated, and, second, that the subsequent disposal by the former of the
fractional subdivisions on the east bank carried with, it no right to the bed of the
river, save as the law of Idaho may have attached such a right to private riparian
ownership. This is illustrated by the statement in Hardin v. Shedd, 190
..."In accordance with the constitutional principle of the
equality of states, the title to the beds of rivers within Utah passed to that state
when it was admitted to the Union, if the rivers were then navigable; and, if they were
not then navigable, the title to the river beds remained in the United States. The
question of navigability is thus determinative of the controversy, and that is a federal
question...."
This principle was brought to the American colonies and applied to
land patents later issued by the United States. As stated in Shively v. Bowlby, 152 U.S. 1
(1894):
"By the acts of congress for the sale of the public lands...it is provided 'that all
navigable rivers within the territory to be disposed of by virtue of this act shall be
deemed to be and remain public highways; and that in all cases where the opposite banks of
any stream not navigable shall belong to different persons, the stream and the bed thereof
shall be common to both.' Acts May 18, 1796, c. 29, 2, 9; 1 Stat. 464; May 10, 1800, c.
55, 3; March 3, 1803, c. 27, 17; March 26, 1804, c. 35, 6; Feb. 11, 1805, c. 14; 2 Stat.
73, 235, 279, 313; Rev. St. 2395, 2396, 2476.
..."The court [Railroad Co. v. Schurmeir] also expressed an unhesitating opinion that
'congress, in making a distinction between streams navigable and those not navigable,
intended to provide that the common-law rules of riparian ownership should apply to lands
bordering on the latter, but that the title to lands bordering on navigable streams should
stop at the stream, and that all such streams should be deemed to be and remain public
highways.'
[As further clarified in Shively]..."The later judgments of this court clearly
establish that 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, subject, of course, to the rights granted to the United States by the
constitution."
The rules regarding non-navigable streams were applied in California. For instance Rubel
v. Peckham, 94 Calif. App.-2d-834, 837, 211 Pac.-2d-883 (1949); relied on the earlier
decision of Lux v. Haggin (1886) that confirmed that a grant to a tract of land bounded by
a nonnavigable river or creek conveyed the land to the thread of the stream. The appellate
court stated:
"It is sufficient to observe that a conveyance of land which refers to and uses a
nonnavigable water course as one of its boundaries conveys the rights of the grantor to
the center line of such water course unless such conveyance indicates a different
intention by terms expressly limiting the grant."
The rules regarding non-navigable streams were applied in California. For instance Rubel
v. Peckham, Rubel v. Peckham, 94 Calif. App.-2d-834, 837, 21 1 Pac.-2d-883 (1949), relied
on the earlier decision of Lux
v. Haggin (1-1886) that confirmed that a grant to a tract of land bounded by a
nonnavigable river or creek conveyed the land to the thread of the stream. The appellate
court stated:
"It is sufficient to observe that a conveyance of land which refers to and uses a
nonnavigable water course as one of its boundaries conveys the rights of the grantor to
the center line of such water course unless such conveyance indicates a different
intention by terms expressly limiting the grant.
CALIFORNIA CODES CODE OF CIVIL PROCEDURE SECTION 2074-2077
(2077.) Section Two Thousand and Seventy-seven. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it: One--Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars. Two--When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount. Three--Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both. Four--When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title. Five--When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance. Six--When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.
CALIFORNIA CODES CIVIL CODE SECTION 829-834
(830.) Section Eight Hundred and Thirty. Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide water, takes to ordinary high-water mark; when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.
LAND PATENT
The chronological point
of determination of "navigability" of rivers and lakes in
JUSTICE STEWART: “There can be little doubt about the impact of that change upon Mrs.
Hughes: The beach she had every reason to regard as hers was declared by the state court
to be in the public domain. Of course the court did not conceive of this action as a
taking. As is so often the case when a State exercises its power to make law, or to
regulate, or to pursue a public project, pre-existing property interests were impaired
here without any calculated decision to deprive anyone of what he once owned. But the
Constitution measures a taking of property not by what a State says, or by what it
intends, but by what it does. Although the State in this case made no attempt to take
the accreted lands by eminent domain, it achieved the same result by effecting a
retroactive transformation of private into public property - without paying for the
privilege of doing so. Because the Due Process Clause of the Fourteenth Amendment forbids
such confiscation by a State, no less through its courts than through its legislature, and
no less when a taking is unintended than when it is deliberate, I join in reversing
the judgment. “
Held: “California cannot at this late date assert its
public trust easement over petitioner's property, when petitioner's
predecessors-in-interest had their interest confirmed without any mention of such an
easement in the federal patent proceedings. The interest claimed by
NOTE: HISTORIC DESCRIPTION OF THE SCOTT:
1836: Stephen Meek traps in Scott Valley and describes it as "all one swamp, caused by the beaver dams." (Van Orsdel, Dorothy; A Brief History of Siskiyou County, c1960. pg.16
1854: Alexander Parker came to Scott Valley in 1854 and lived for 2 years on the H.C. Cory Ranch (later J.R. Estes, C. Ball.) His cattle did not do well in the swampy land in the valley because of the leeches, so he was determined to go to the hills. The Siskiyou Pioneer - Cattle Raising Issue; Vol. 3, Number 6; Co-Editors Charlotte Davis and Evelyn Carter; Siskiyou County Historical Society; Yreka; c1963. pages 54, 55 & 57 - E. Wendell)
CALIFORNIA CODES PUBLIC RESOURCES CODE SECTION 7551-7556
7552.5. Where lands above the ordinary high-water mark, granted to the state by the Arkansas Swamp Lands Act, Act of September 28, 1850, have been conveyed into private ownership by the State of California pursuant to an act authorizing the sale and conveyance of swamp and overflowed lands, such swamp and overflowed lands, by definition, are taken free of the common law public trust for commerce, navigation, and fisheries. Where a private owner, deriving title by virtue of such a conveyance of swamp and overflowed lands, dredges or has dredged such lands pursuant to then existing law, and such dredging results or has resulted in the navigable waters of the state flowing over such lands, such acts shall not operate to create or impose the common law public trust for commerce, navigation, and fisheries with respect to such lands. Such acts shall operate to create a navigational easement, in favor of the public, upon the waters which flow over the affected real property. The navigational easement so created may be extinguished only upon the lawful removal of the navigable waters from the real property.
DESIGNATION
Donnelly v.
"By act of
the same act it was provided 'that the said state of California is admitted into the Union
upon the express condition that the people of said state, through their legislature or
otherstate, shall never interfere with the primary mary disposal of the public lands
within its limits, and shall pass no law and do no act whereby the title of the United
States to, and right to dispose of, the same, shall be impaired or questioned; . . . and
that all the navigable waters within the said state shall be common highways, and forever
free, as well to the inhabitants of said state as to the citizens of the United States,
without any tax, impost, or duty therefor.'
"It is insisted that the Klamath is a navigable river; and there
is evidence in the record tending to show that the stream is navigable in fact, at certain
seasons, from Requa (near its mouth) up to and above the locus in quo. But, in the view we
take of the present case, the question of its navigability, in fact or in law, is
immaterial except as it bears upon the title of the
"In passing upon the effect of the act admitting
"The doctrine thus enunciated has since been adhered to. Packer v.
Bird, 137
"The question of the navigability in fact of nontidal streams is sometimes a doubtful
one. It has been held in effect that what are navigable waters of the United States,
within the meaning of the act of Congress, in contradistinction to the navigable waters of
the states, depends upon whether the stream in its ordinary condition affords a channel
for useful commerce. The Montello, 20 Wall. 430, 22 L. ed. 391; Leovy v. United States,
177 U.S. 621, 632, 44 S. L. ed. 914, 919, 20 Sup. Ct. Rep. 797; United States v. Rio
Grande Dam & Irrig. Co. 174 U.S. 690, 698, 43 S. L. ed. 1136, 1139, 19 Sup. Ct. Rep.
770; South Carolina v. Georgia, 93 U.S. 4, 10, 23 S. L. ed. 782, 783; The Robert W.
Parsons (Perry v. Haines) 191 U.S. 17, 28, 48 S. L. ed. 73, 78, 24 Sup. Ct. Rep. 8.
But it results from the principles already referred to that what shall be deemed a
navigable water within the meaning of the local rules of property is for the determination
of the several states. Thus, the state of California, if she sees fit, may confer upon the
riparian owners the title to the bed of any navigable stream within her borders.
Now, a California Statute of April 23, 1880, chap. 122, declared the Klamath river to be
navigable from its mouth to the town of Orleans Bar, which is above the locus in quo. But
this was repealed by act of February 24, 1891, chap. 14; and by an act of March 11, 1891,
chap. 92 (Political Code, 2349), an enumeration was made of all the navigable rivers of
the state. This is held by the supreme court of that state to be exclusive, so that no
other rivers are navigable under the laws of California. Cardwell v. Sacramento County, 79
Cal. 347, 349, 21 Pac. 763. The Klamath river is not among those thus enumerated, and it
must therefore be treated as not navigable in law. And it will be observed that it was
thus placed in the category of non-navigable streams prior to President Harrison's order
of October 16, 1891, by which the Extension of the Hoopa Valley Reservation was
established.
In the important case of Lux v. Haggin (1886) 69 Cal. 255, 335, 337, 10 Pac. 674, the
supreme court of California, after pointing out that upon the admission of that state into
the Union 'upon an equal footing' with the original thirteen states, she became seised of
all the rights of sovereignty, jurisdiction, and eminent domain which those states
possessed, and that under 3 of the act of admission (9 Stat. at L. 452, chap. 50) the
lands of the United States not reserved or purchased for fortifications, etc., are held as
are held the lands of private persons, with the exception that the state cannot interfere
with the primary disposal of them nor tax them, and that the navigable waters are common
highways, free to the inhabitants of the state and to citizens of the United States, -proceeded
to declare that whether this act did or did not operate as an immediate transfer of the
property in non-navigable rivers to the Federal government, the legislature of the state,
on April 13, 1850, passed an act adopting the common law of England, so far as not
repugnant to or inconsistent with the Constitution of the United States or the
Constitution or laws of the state of California, as the rule of decision in all courts of
the state, and that in view of the subsequent judicial history of the state this act must
be held to have operated, at least from the admission of the state into the Union, as a
transfer to all riparian proprietors, including the United States, of the property of the
state, if any she had, in the non-navigable streams and the soil beneath them. The
authority of this decision was recognized in Packer v. Bird, 137 U.S. 669, 34 L. ed. 820,
11 Sup. Ct. Rep. 210. We are not able to find that the doctrine declared in it has since
been departed from by the courts of the state.
It thus appears, from the course of legislation and adjudication by the appropriate
authorities of California, not only that the Klamath river has been placed in the category
of non-navigable streams, but that the title of the United States to the bed of it where
it runs through the public lands has been distinctly recognized. In short, by the acts of
legislation mentioned, as construed by the highest court of the state,-(a) ( a) the
act of 1850, adopting the common law, and thereby transferring to all riparian proprietors
(or confirming in them) the ownership of the non- navigable streams and their beds, and
(b) the acts of February 24 and of March 11, 1981, declaring in effect that the Klamath
river is a nonnavigable stream,-California has vested in the United States, as riparian
owner, the title to the bed of the Klamath, if in fact it be a navigable river. If in fact
it be non-navigable, it is obvious hat the same result flows from the mere adoption of the
common law.
A subsequent case or some event apparently determined the Klamath to be navigable in fact
and it is now so listed in the California Codes – Harbors and Navigation Code Section
103. (Note that mining property rights established in the bed of the river are
specifically recognized )
100. Navigable waters and all streams of sufficient capacity to transport the products of the country are public ways for the purposes of navigation and of such transportation. However, the floodwaters of any navigable river, stream, slough, or other watercourse while temporarily flowing above the normal high-water mark over public or private lands outside any established banks of such river, stream, slough, or other watercourse are not navigable waters and nothing in this section shall be construed as permitting trespass on any such lands. For the purposes of this section, "floodwaters" refers to that elevation of water which occurs at extraordinary times of flood and does not mean the water elevation of ordinary annual or recurring high waters resulting from normal runoff.
103. The following streams and waters are also navigable and are public ways: Johnson's Creek, from its mouth at San Francisco Bay to Simpson's Landing. Keys Creek, also known as the Arroyo de San Antonio, in Marin County, from its mouth at Tomales Bay to the warehouses on the point at Keys embarcadero. Klamath River, from its mouth in Del Norte County to its confluence with the Shasta River in the county of Siskiyou; but this shall not abrogate or infringe upon mining rights or the rights of locating or operating mining claims on the Klamath River, existing on August 21, 1933, otherwise than by being made subject to the public rights of way herein declared. Arroyo del Medo, in the county of Santa Clara, from its mouth to the upper line of the town of New Haven. Mission Creek, in the county of San Francisco. Mokelumne River, between its mouth and the first falls. Moro Cojo Slough, in Monterey County, from Salinas River to tidewater.
OTHER APPLICABLE CA CODES
CA Gov Code 66478.4.
(a) No local agency shall approve either a tentative or a final map of any proposed subdivision to be fronted upon a public waterway, river, or stream which does not provide, or have available, reasonable public access by fee or easement from a public highway to that portion of the bank of the river or stream bordering or lying within the proposed subdivision.
(b) Reasonable public access shall be determined by the local agency in which the proposed subdivision is to be located. In making the determination of what shall be reasonable access, the local agency shall consider all of the following:
(1) That access may be by highway, foot trail, bike trail, horse trail, or any other means of travel.
(2) The size of the subdivision.
(3) The type of riverbank and the various appropriate recreational, educational, and scientific uses, including, but not limited to, swimming, diving, boating, fishing, water skiing, scientific collection, and teaching.
(4) The likelihood of trespass on private property and reasonable means of avoiding these trespasses.
(c) A public waterway, river, or stream for the purposes of Sections 66477.2, 66478.4, 66478.5 and 66478.6 means those waterways, rivers and streams defined in Sections 100 through 106 of the Harbors and Navigation Code, any stream declared to be a public highway for fishing pursuant to Sections 25660 through 25662 of the Government Code, the rivers listed in Section 1505 of the Fish and Game Code as spawning areas, all waterways, rivers and streams downstream from any state or federal salmon or steelhead fish hatcheries. (My Note: The Scott and the Shasta do not qualify. I don't see that the Upper Sacramento or McCloud do either.)
In regards to the
(a) Does not lie within or run through cultivated land lying within the
county.
(b) Is stocked or supplied in whole or in part with fish by the state or
counties.
(c) Has not been declared by law to be navigable and in fact is not navigable
for commercial purposes.
From the time the ordinance becomes effective, the slough, river, or stream is a public highway for such purpose, subject only to the reservations contained in this article.
GOV. CODE 25661. If any owner of land adjacent to or across which the slough, river, or stream declared to be a highway for fishing flows does not consent to its use for such purpose with the right to pass along the banks for the purpose of fishing and on application refuses to grant the right of passage to the county by suitable instrumentin writing, the board may contract for and purchase any such rights.
GOV. CODE 25662. If the right of passage cannot be purchased at a satisfactory price, the board may authorize condemnation proceedings to be commenced to procure the right.
CALIFORNIA CODES WATER CODE SECTION 8125-8129 8125. "Non-navigable streams," as used in this article, means streams and washes in a county which are not declared by law to be navigable and which are not in fact navigable for commercial purposes. 8126. The board of supervisors may provide for widening, deepening, straightening, removing obstructions from, and otherwise improving non-navigable streams the overflow of which interferes with highways, and for protecting the banks and adjacent lands from overflow of non-navigable streams. 8127. The board may make regulations for the use of the streams and the repair and control of the works. 8128. No regulations of the board nor improvements directed by it to be made shall in any manner interfere with the private rights or privileges of riparian owners, miners, or others. 8129. Whenever, in the opinion of the board of supervisors, the general fund is insufficient to defray the cost of the improvements provided for under this article, the board may levy a tax or contract a bonded indebtedness therefor in the manner provided by Title 3 of the Government Code.
The State Lands Commission appears to have no jurisdiction over
non-navigable streams:29307. CALIFORNIA CODES PUBLIC RESOURCES CODE SECTION 29300-29308(a)
The State Lands Commission shall have the primary responsibility, in accordance with the
provisions of Division 6 (commencing with Section 6001), for carrying out the management
recommendations in the protection plan on lands owned by the state and under the
jurisdiction, control, or supervision of the State Lands Commission, including tidelands,
submerged lands, swamp and overflowed lands, and beds of navigable rivers and streams. (b)
Prior to approval by the San Francisco Bay Conservation and Development Commission
pursuant to Chapter 5 (commencing with Section 29400), the State Lands Commission shall
review, and may comment on, the proposed local protection program, or any component
thereof, that could affect state lands. (c) No power granted to any local government or
district under this division, shall change the authority of the State Lands Commission
over granted or ungranted lands within its jurisdiction or change the rights and duties of
its grantees, lessees, or permittees. (d) Boundary settlements between the State Lands
Commission and other parties and any exchanges of land in connection therewith shall not
be a development within the meaning of that term as used in this division. (e) Nothing in
this division shall amend or alter the terms and conditions in any legislative grant of
lands, in trust, to any local government or district; except, that any development on such
granted lands shall, in addition to the terms and conditions of such grant, be subject to
the regulatory controls provided by Chapter 6 (commencing with Section 29500).
Justice Gray in his extensive review of the "Equal Footing
Doctrine" as applies to tide-lands, submerged lands, (including the Great Lakes,) and
navigable streams, stated in Shively v. Bowlby, 152 U.S. 1 (1894):
"The conclusions from the considerations and authorities above stated may be summed
up as follows:
"Lands under tide waters are incapable of cultivation or improvement in the manner of
lands above high-water mark. They are of great value to the public for the purposes of
commerce, navigation, and fishery. Their improvement by individuals, when permitted, is
incidental or subordinate to the public use and right. Therefore, the title and the
control of them are vested in the sovereign, for the benefit of the whole people. At
common law, the title and the dominion in lands flowed by the tide were in the king for
the benefit of the nation. Upon the settlement of the colonies, like rights passed to the
grantees in the royal charters, in trust for the communities to be established. Upon the
American Revolution, these rights, charged with a like trust, were vested in the original
states within their respective borders, subject to the rights surrendered by the
constitution to the United States.
"Upon the acquisition of a territory by the United States, whether by cession from
one of the states, or by treaty with a foreign country, or by discovery and settlement,
the same title and dominion passed to the United States, for the benefit of the whole
people, and in trust for the several states to be ultimately created out of the territory.
The new states admitted into the Union since the adoption of the constitution have the
same rights as the original states in the tide waters, and in the lands under them, within
their respective jurisdictions. The title and rights of riparian or littoral proprietors
in the soil below high-water mark, therefore, are governed by the laws of the several
states, subject to the rights granted to the United States by the constitution.
"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
disposition 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.
Grants by congress of portions of the public lands within a territory to settlers thereon,
though bordering on or bounded by navigable waters, convey, of their own force, no title
or right below high-water mark, and do not impair the title and dominion of the future
state, when created, but leave the question of the use of the shores by the owners of
uplands to the sovereign control of each state, subject only to the rights vested by the
constitution in the United States."
As stated by Justice Kennedy in Idaho et al. v. Coeur d'Alene Tribe of Idaho et al.
certiorari to the united states court of appeals for the ninth circuit No. 94-1474. Argued
October 16, 1996. Decided June 23, 1997:
"As we stressed in Utah Div. of State Lands v. United States, 482 U.S. 193, 195-198
(1987), lands underlying navigable waters have historically been considered 'sovereign
lands.' State ownership of them has been 'considered an essential attribute of
sovereignty.' Id., at 195. The Court from an early date has acknowledged that the people
of each of the Thirteen Colonies at the time of independence 'became themselves sovereign;
and in that character hold the absolute right to all their navigable waters and the soils
under them for their own common use, subject only to the rights since surrendered by the
Constitution to the general government.' Martin v. Lessee of Waddell, 16 Pet. 367, 410
(1842). Then, in Lessee of Pollard v. Hagan, 3 How. 212 (1845), the Court concluded that
States entering the Union after 1789 did so on an 'equal footing' with the original States
and so have similar ownership over these 'sovereign lands.' Id., at 228-229. In
consequence of this rule, a State's title to these sovereign lands arises from the equal
footing doctrine and is 'conferred not by Congress but by the Constitution itself.' Oregon
ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977). The
importance of these lands to state sovereignty explains our longstanding commitment to the
principle that the United States is presumed to have held navigable waters in acquired
territory for the ultimate benefit of future States and 'that disposals by the United
States during the territorial period are not lightly to be inferred, and should not be
regarded as intended unless the intention was definitely declared or otherwise made very
plain.' United States v. Holt State Bank, 270 U.S. 49, 55 (1926)."
"The Court in Shively v. Bowlby, 152 U.S. 1, 13 (1894), summarizing English common
law, stated:
'In England, from the time of Lord Hale, it has been treated as settled that the title in
the soil of the sea, or of arms of the sea, below ordinary highwater mark, is in the King;
except so far as an individual or a corporation has acquired rights in it by express
grant, or by prescription or usage . . . and that this title, jus privatum, whether in the
King or in a subject, is held subject to the public right, jus publicum, of navigation and
fishing.'
..."American law, in some ways, enhanced and extended the public aspects of submerged
lands. English law made a distinction between waterways subject to the ebb and flow of the
tide and large enough to accommodate boats (royal rivers) and nontidal waterways (public
highways). With respect to the royal rivers, the King was presumed to hold title to the
river bed and soil while the public retained the right of passage and the right to fish.
With public highways, as the name suggests, the public retained the right of passage, but
title was typically held by a private party. See J. Angell, A Treatise on The Common Law
in relation to Water Courses 14-18 (1824). The riparian proprietor was presumed to hold
title to the stream to the center thread of the waters (usque ad filum aquae) which
accorded him the exclusive right of fishery in the stream and entitled him to compensation
for any impairment of his right to the enjoyment of his property caused by construction.
The State's obligation to pay compensation could result in substantial liability. Shrunk
v. Schuylkill, 14 Serg. & Rawle 71, 80 (Pa. 1826). State courts, however, early on in
Pennsylvania, South Carolina, Alabama, and North Carolina rejected the distinction and
concluded the State presumptively held title regardless of whether the waterway was
subject to the ebb and flow of the tide. See, e.g., Carson v. Blazer, 2 Binn. 475 (Pa.
1810); Cates v. Wadlington, 1 McCord 580 (S. C. 1822); Bullock v. Wilson, 2 Port. 436
(Ala. 1835); Collins v. Benbury, 3 Iredell 277 (N. C. 1842); but see Hooker v. Cummings,
20 Johns. 90 (N. Y. 1822). And this Court in describing the concept of sovereign lands
rejected the requirement that navigable waters need be affected by the tides. Barney v.
Keokuk, 94 U.S. 324, 337-338 (1877); cf. Propeller Genesse Chief v. Fitzhugh, 12 How. 443
(1852).
"American law, moreover, did not recognize the sovereign's rights of private property
(jus privatum) that existed in England, apart from the public's rights to this land (jus
publicum). In England, for instance, the Crown had the exclusive right to hunt the
"grand fishes," e.g., whales and sturgeons, of the sea. J. Angell, A Treatise on
the Right of Property in Tide Waters and in the Soils and Shores Thereof 18-19 (1847).
There was a particular aversion to recognizing in States the Crown's jus privatum right to
seize private structures on shores and marshes reclaimed from tidewaters. See J. Gould, A
Treatise on the Law of Waters including Riparian Rights, and Public And Private Rights In
Waters Tidal And Inland Section 32 (2d ed. 1891). All these developments in American law
are a natural outgrowth of the perceived public character of submerged lands, a perception
which underlies and informs the principle that these lands are tied in a unique way to
sovereignty."