Unmistakable Marks: Is There Trouble Brewing On The Waterfront?
In the numerous disputes over lands condemned and obtained by the state through the process of eminent domain, arguments often arise over public trust issues. Litigants may claim that a given tract is not necessary for the public welfare, or that the proposed use unfairly benefits one select group at the expense of the larger public interest. The missing link in many of these arguments is a clear understanding of the many ways in which property rights may become intertwined with public trust issues. In fact, there are several categories of land that can become entangled in a public trust argument:
- Submerged lands in littoral areas (areas adjacent to oceans, seas or the Great Lakes.) These are generally protected by the “public trust doctrine.”
- Riparian lands adjoining smaller rivers and streams capable of supporting limited navigation.
- Tracts related to National Parks or other preserves created by various acts of the United States government.
- Land associated with constitutional restrictions, such as the “forever wild” clause as recorded in Section One, Article XIV, New York State Constitution.
- Tracts purchased by the state subject to restriction or reversion clauses. In these circumstances, the state is essentially a trustee for the tract by terms recorded in the deed.
- Strips of land dedicated voluntarily for public easements.
- Land dedicated to railroad use or for other public infrastructure.
This article focuses on the first item of this list; later articles will address the remaining items.
Protections against certain uses or unauthorized sale of submerged lands in littoral areas are distinct from restrictions on use of lands described in items 2 through 7. Major areas of submerged land have been the property of various states since their admission to the Union; therefore no action is necessary for those states to legitimately claim title. Some exceptions to this general principle may be found in states where grants from the sovereign were made prior to the formation of the United States. These grants may include extensive rights to submerged coastal areas; many of these have been catalysts for lawsuits between the state governments and private landowners.
Another distinction exists between limits imposed by the “public trust doctrine” and those protections that might affect other lands that have been dedicated for various public uses. The public trust doctrine as recognized by United States common law is derived from specific principles previously established by the English courts, and protects the rights of the public regarding certain categories of submerged lands. On the other hand, properties purchased and/or condemned by government agencies and dedicated to public use fall under a different category of public trust that has different origins, rules and restrictions.
The origins of the public trust doctrine can be traced back through English sources to the laws of imperial Rome. Discussion of Roman law on this issue is somewhat confusing; some authorities conclude that the shore was the property of the Roman people, while others insist that no ownership of the shore by any entity was recognized.
England was a hotbed for arguments over the extent of Crown rights below the high water mark, as described in an early article from Columbia Law Review. This tug-of-war extended from the 16th through the 18th centuries and culminated with the posthumous publication of “De Jure Maris” by Lord Hale. In his treatise, Lord Hale summarizes the then-current common law of England. The lands between the ordinary high and low water mark: “… doth prima facie and of common right, belong to the King, both in the shore of the sea and the shore of the arms of the sea. It is admitted that ‘de jure communi’ between high-water and low-water mark doth prima facie belong to the King, … Although it is true, that such shore may be and commonly is parcel of the manor adjacent, and so may be belonging to a subject, as shall be shown, yet prima facie it is the king’s…” 1
In a more recent (and recognizable) form, this principle from English law was affirmed, as described in Martin v. Waddell: The country mentioned in the letters patent, was held by the king in his public and regal character as the representative of the nation, and in trust for them.” 2
After the conclusion of the American Revolution and the early development of the United States common law, significant portions of the previously existing English law remained in force. Ironically, even though some states repudiated English law, American attorneys would still invoke it at times because they had no other precedent to apply. Recognition of the responsibilities of the English sovereign (supplanted by the United States government and by the various state governments) became the basis of the public trust doctrine: “For when the Revolution took place, the people of each state 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…
The dominion and property in navigable waters, and in the lands under them, being held by the king as a public trust, the grant to an individual of an exclusive fishery in any portion of it, is so much taken from the common fund intrusted to his care for the common benefit. In such cases, whatever does not pass by the grant, still remains in the crown for the benefit and advantage of the whole community. Grants of that description are therefore construed strictly…3
Claiming “public trust doctrine” as a defense is far from a universal remedy to prevent the unwanted sale of waterfront land to a private corporation, or to prevent unwelcome activities on a given tract of state land. Nor does this doctrine prevent substantial interruption of the public right of navigation.
The limitations of the effect of the public trust doctrine are admirably illustrated by the U.S. Supreme Court ruling Illinois Central Railroad v. Illinois.4 This decision describes an initial grant by legislative act of a major portion of the Chicago port district to a railroad company. As written, the grant seems to convey fee simple ownership of the bed of Lake Michigan for a distance of one mile out from the shore of the lake.
The area conveyed included a major portion of the commercial docking facilities for the city. The railroad company also claimed the right to fill major portions of the submerged area and to sell the tracts of land created by reclamation to private parties. While this complex ruling deals with many issues other than the public trust doctrine, it remains a benchmark decision on the state responsibility to protect certain public interests in land.
Illinois Central considers several historic definitions of “navigable waterway” to determine the limits on lands affected by the public trust doctrine in this country. Earlier U.S. Supreme Court rulings had already discounted the “lunar-tide test” of navigability formerly in force in England.5 The court for Illinois Central concluded that the tide test was equally inapplicable for determining the physical limits of the public trust doctrine.
This court concedes that the ownership of submerged lands covered by tidewaters belong to the state in which it lies. Each state retains the right to use or sell any portion of the submerged land, subject to an important caveat: “…when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States…” 6 This ruling recognizes the sovereign control to lands under navigable waterways where those rivers and lakes form a continuous link with other states or nations. The Great Lakes including Lake Michigan adjacent Chicago are included in this expanded version of the old English definition of navigable waters. Although the Great Lakes are essentially without recognizable tides and filled with fresh water, they are considered by the court to be “inland seas.”
Justice Field emphasizes the unique nature of state ownership of submerged land: But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.6
There is no absolute moratorium on all sales of property rights within areas protected by the public trust doctrine. Grants of limited rights for the construction of piers and other infrastructure related to shipping are considered acceptable as long as they do not unreasonably infringe of the rights of the public for navigation. Any grant that conforms to this caveat is considered a legitimate act of the legislative body.
Where will the court draw the line between acceptable acts of legislature and unreasonable infringement on public rights of navigation? The state government should not sanction: “…the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public.” 6
Illinois Central concludes that this government responsibility cannot be relinquished by sale or by grant. In certain situations, however, the state may make legitimate grants of specific and limited areas. In some circumstances, specific tracts may be granted if they will be used in such a manner as to promote the public interest. In addition, some tracts that serve no useful public purpose may be disposed of as long as the sale does not “impair the public interest.”
This court concludes: But the decisions are numerous which declare that such property is held by the State, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining. …
The sovereign power, itself, therefore, cannot consistently with the principles of the law of nature and the constitution of a well-ordered society, make a direct and absolute grant of the waters of the State, divesting all the citizens of their common right.6 Many of the principles enunciated in Illinois Central Railroad were reinforced two years later in Shivley v. Bowlby.7
Given the nature of the title retained by state and federal governments, and the mandate to protect the rights of the public, what uses can be made of submerged lands that fall into this category? Some answers can be found in Milwaukee v. State.8
The Wisconsin court quotes with approval a previous ruling in which title to a portion of the bed of a navigable river was transferred in order to expedite a drainage scheme that was intended to promote public health. Based on previous precedent, this court concluded that shorelines can be altered when necessary. In addition, the court recognizes the legitimacy of “vast enterprises purely public in nature” that are designed to promote the profitable use and navigation of major rivers and the Great Lakes.
This conclusion was upheld despite significant impairment of the rights of some individuals to fish, hunt and navigate within the area to be altered. Building on several previous rulings, this court held that the responsibility of the state is not limited to a passive role in maintaining the shores of Lake Michigan in the same condition in which it existed prior to western colonization. Rather, the responsibility of the government in these circumstances is an active one: …designed to aid and promote navigation and commerce, which lies at the very foundation of the trust theory in this and other state. …this court was thoroughly impressed with the idea that the trust reposed in the State was an active, administrative, and governmental trust, and one which should be administered to promote not only navigation but the public health and welfare generally.8
Submerged lands may be granted by act of legislature, but grants of this type will generally be construed narrowly and the subject parcel may still be subject to reasonable use by the public.
Within all of this complexity, it is easy to see why private landowners may come into conflict with state or federal governments when disputes arise over the appropriate uses of coastal land. Disputes over the limits and rights associated with upland riparian ownership are becoming more common. The surveyor is more likely than ever before to be called in to identify the delimiters between the upland and submerged land. Knowing the underlying basis of the existing rights is critical to determining the limits of those rights.
- Columbia Law Review, Vol. 12, No. 5 (May, 1912), pp. 395-421. Royal E.T. Riggs
- Martin v. Waddell: 41 U.S. 367; 10 L. Ed. 997 (1842)
- Martin v. Waddell: 41 U.S. 367; 10 L. Ed. 997 (1842)
- Illinois Central Railroad Company v. Illinois: 146 U.S. 387; 13 S. Ct. 110; 36 L. Ed. 1018 (1892)
- (Genessee Chief v. Fitzhugh: 53 U.S. 443; 13 L. Ed. 1058; 1851)
- Illinois Central Railroad Company v. Illinois: 146 U.S. 387; 13 S. Ct. 110; 36 L. Ed. 1018; 1892
- Shivley v. Bowlby: 152 U.S. 1; 14 S. Ct. 548; 38 L. Ed. 331 (1894)
- Milwaukee v. State: 193 Wis. 423; 214 N.W. 820 (1927)
Kris Kline is president of 2Point Inc., Alexander, N.C. Kline teaches several classes on boundary retracement but remains a student of the discipline. He can be reached at firstname.lastname@example.org. More information on Kline’s available continuing education courses can be found at www.2point.net. Kline’s first book, “Rooted in Stone: The Development of Adverse Possession in 20 Eastern States and the District of Columbia,” is available from the author.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.