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During 1980, the Year of (below) the line of mean low water. review of the hitsorlcal background ol the law and summaries .t1 the rules of law pertaining to the title to and houndanes of lands within Ihe lone. The Civil Law and related topics Since it is an overflew, ,some of the hbroad statements In i I are inapplicable in -nme i! The stews cprecssd in the articles do nttl net.c-sarli; reflectblo the fuee of the Altorney Gencral. or t,l an other The Mediterranean Sea, an important avenue of agency of the tate of California. (1970) [hereinafter cited as The Public Trust in Tidal reasl 35. Government Printing Office, gov] The Law of the Coast in a Clamshell' Part 1: Overview of an Interdisciplinary Approach BY PETER H. Tidelands, or those lands lying between the lines of mean high and mean low water, referred to in T n HE COASTAL ZONE-that fragile strip of the earth England and some states as the foreshore. Submerged lands, or those lands lying seaward mankind for centuries. the coastal waters (including the lands Although legal scholars traditionally have cited ear- therein and thereunder) and the adjacent shorelands lier laws and customs as the bases for contemporary (including the waters therein and thereunder), rules of law, the important role that science and strongly influenced by each other and in proximity technology play in the application of these current to the shorelines of the several coastal states, and rules-particularly those governing the determination [including] transitional and intertidal areas, salt of tidal boundaries-is sometimes overlooked or un- marshes, wetlands, and beaches. ncluding a hnre 13 original states and most later-admitted states.
Each state is free to adopt its own rules of real property.
Generally, questions of title to and the legal boundaries of lands within the coastal zone are determined under the appropriate state con- stitution, statutes and case law. Impact of the Subsequently Admitted States' Rights UInder the Equal-Footing Doctrine ____________, ~ ~ ~ In 1845 the United States Supreme Court declared that as new states are subsequently admitted to the Union. Sir Matthew Haole (From Fourteen with title to all lands underlying tidal waters. The after-admitted states' sovereign title to tide- OCTOBER 1980 15 lands, except for those lands previously granted, is Another major controversy has been over what line absolute, although subject to the public trust easement constitutes the proper boundary between the sub- and the Federal Government's paramount navigational merged lands subject to the Federal (iovernment's servitude and admiralty jurisdiction.
they are deemed to have the same sovereignty and property rights as the original 13 states.'" This i - F~ concept is known as the equal-footing doctrine. Upon creation of a new sovereign state from such acquired areas. exclusive jurisdiction and control and the adjoining state-owned lands. Massachusetts, Maine, New Hampshire, Pennscl- Dunham & Jennings, The Great Charrter (1965): 2 American vania and Virginia.
are examining the coastline of the United States as 2. How many of our present legal concepts are and waters in that zone. rules of law concerning the coastal zone may be traced The term is defined differently in the federal Coastal back at least to the time of the Roman Empire. Early Roman law proclaimed that the sea and Digges' theory in the treatise De Jure Manris. or "common to circa 1666-67' all," and not subject to private ownership.) Louisiana. Application of the English Common Law in the France by the Louisiana Purchase. the civil law governs The early American colonists generally had been boundaries of littoral lands conveyed by the Spanish exposed to the English common law through their and Mexican governments before the founding of the heritage.
derived from the customs or practices of the early I. The Zone Management Act of 1972 (CZMA)' than in the Institutes of Justinian, the Roman emperor (483-565 several state coastal management statutes. D.), are the foundation of the public trust doctrine, defines the coastal zone, in part, as: which assures Americans' rights to fish and swim in and otherwise enjoy U. but "'t] he remoteness of England coupled Republic of Texas.- with the inadequacy of early English administrative machinery for colonial affairs. IThe English Common Lmai largely free from external impositions of the common Conventional wisdom is that under the English law for a substantial period of time ...."2 common law, which evolved in that seafaring island However. application of the kingdom over many centuries, the crown owns the English common law became more widespread.
The articles in this series use "coastal zone" to HISTORICAL BACKGROUND OF THE LAW refer to that area consisting of three categories of land: A. Uplands, or littoral lands lying landward of Contemporary United States law relating to the (above) the line of mean high water, including (for coastal zone stems from principles developed in two this purpose) swamp and overflowed lands and the majorsystemsofjurisprudence: (I) the civil law, which dry-sand portion of beaches.
This tidc and submerged lands.' But this statement is development "... In fact, there is evidence that early English product of (1) the English Government's desire to kings granted favored lords title to and exclusive unify the colonies for purposes of the empire's com- private rights of fishery in many tidal areas.' mercial gain: and (2) the colonists' desire to gain While the Magna Carta (1215) expressly addresses freedom from tyranny and exploitation by asserting navigational and fishing rights only briefly, some legal the inherited 'rights of Englishmen.' "'3 commentators believe that it was a turning point in English coastal law.' Subsequently. Effect of the American Revolution and the Indepen- the public in tidal waters was given greater legal dence of the Former Colonies protection in England. by virtue of their new sovereignty, succeeded to the is credited with developing the theory that the crown rights of the English crown and Parliament in colonial owns the lands underlying tidal waters. Absolute title to all tidelands was vested during the reign of Queen Elizabeth I.
With the American Revolution, the former colonies, Thomas Digges. he wrote a in the original states, in trust, except for those lands treatise entitled Proofs of the Queen's Interest in Lands that had been previously and validly granted into lefi bh the Sea and the Salt Shores thereof. 4 English legal scholar stated: "By this treatise was In 1789 the original states surrendered to the Federal first invented and set up the claim of the Crown to Government some of their rights in the tidelands by the foreshore. salt marsh, and derelict adopting the United States Constitution.
which pro- land in right of the prerogative."' vides the bases of the Federal Government's com- Although the English courts did not immediately merce clause powers and its admiralty jurisdiction.' embrace Digges' theory.
the doctrine of the crown's The term "federal navigational servitude" refers prina facie title in tidelands was generally accepted to the Federal Government's paramount authority to under English common law within the following cen- control and regulate the navigable waters of the United tury. I), an influential jurist States under the commerce clause.
Due to this nation's dual legal system, jurisdiction is divided between the federal courts and the various states' courts. note 201 6, at 23-25: Note, The Public Trust in Tidal .