Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1900-1911, 1908-02-23

The state can no more abdicate Its trust
over property III which the whole people are
interested, like navigable waters and soils
under them, as to leave them entirely
under the use and control Of private parties
except in the instance of parcels mentioned
for the improvement of the navigation and
use Of the waters, or when parcels oan be dls-
posed of without impairment Of the public
interest in what remains, than 1t can abdicate
its police powers IN the administration or
government and the preservation OF peace
In Shively VS.. Bowlby, 1862 U. s., l.,
the court said, at page 81:
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 purpose OF
commerce, navigation and fishing Their i'm
provement by individuals, when permitted, Is
incidental or subordinate to the public use
and right. Therefore. the title and the con-
troll of them are vested in the sovereign for
the benefit of the whole people.
In West Chicago Railroad VS.. Chi
cago, POI U. s., 506, 524, the court said:
In addition to these considerations we may
suggest the important one that the rights
of the company, as the owner of the fee of
land on either side Of the river or In Its bed,
we're subject to the paramount right of navi.
cation over the waters Of the river.
The principle is thus declared by leading
text writer: 1.-THE privilege of navigation upon
all waters which are capable Of such use In
their natural condition and are accessible
without trespassing upon private lands, Is a
common and paramount right. At
common law the right of navigating public
stream is paramount to the right of passage
across the stream by means OF bridge"
In Gibson VS.. United States. 1855 u.
S., 269, 271, 276, the court said:
All navigable waters are under the control
- TTx.NAA t,R the nj
regulating and improving navigation, and al
though the title to the shore and submerged
soil is in the various states and individual
owners under them, 1t is always subject to
the servitude in respect of navigation created
in favor of the federal government by the
Ir short. the damage resulting from the
prosecution of this improvement Of navi-
gable highway, for the public good, was not
the result of a taking of appellants property,
and was merely incidental to the exercise Of
a servitude to which her property had always
been subject
The state of California, by virtue of
her sovereignty, has and exercises the
dominion and control of the navigable
waters and soils under them, below the
line of high tide, always subject, how
ever, TO the paramount power and
authority of congress to regulate inter.
state and foreign commerce.
AS California entered the Union under
the operation of the commerce clause
of the national constitution the effect
was to transfer to the United States
the paramount dominion, power and
control which the state, when an in
dependent state. might have exercised
over such waters and the soil under
them.
The transfer of this jurisdiction and
authority to the national government
is coextensive with and as complete
as the power which would have existed
in the state as an independent nation.
This is illustrated in
Gilman VS.. Philadelphia, WALL,
724 quoted with approval in subsequent
cases. including South Carolina VS..
Georgia, so. U. s., 4, 10, in which the
court said:
Commerce includes navigation. The power
to regulate commerce comprehends the con-
troll for that purpose, and to the extent neces-
sary of all the nayigable rivers OF the United
States which accessible from state
other than those in which they lie For this
purpose they are public property Of the ma
ton, and subject to all the requisite iegisla-
tion by congress. This necessarily includes
the power to keep these open and free from
any obstruction to their navigation interposed
by the states. or otherwise; to remove such
Instructions where they exist; and to provide,
by such sanctions as they may deem proper,
against the occurrence Of the evil and for
the punishment Of the Offenders. For these
purposes congress possesses all the powers
which existed in the states before the adop-
ton of the national constitution, and which
have always existed in the parliament In
England.
There is no part of the navigable
waters or the soils under them, below
the line of high tide, which is left
within the control of the state, the same
being completely transferred to the
United States by virtue of the COM
merce clause.
The state cannot say: 1--WE gave to
the United States, by virtue of the
commerce clause, only that part of the
waters which we treat as navigable,
and we reserve to the state the exclu-
sive ownership and control of another
part lying between the line of high
tide and the water which the state
calls navigable.'
The jurisdiction of the national gov
eminent extends entirely and COM
pletely to the whole tidal prism.
In the great case of Scranton vs..
Wheeler, 179 u. s., 141, recently decided
by the United States supreme court, In
which the Identical question under con-
sideration was involved, 1t appears
from the statement OF the case Q79 u.
s., 149) as follows:
The United States government took possess
sion Of the submerged land OF the plaintiff for
the immense navigation upon the Great Lakes
and the rivers connecting them. That the
improvements made were necessary to aid
and protect this navigation is established be-
yond dispute. Had the government the right
to make these improvements upon the sub
merged land without compensation to the adj
joining owner? 1t is conceded that under
the law of Michigan the title to submerged
land is in the adjoining owner to the thread
OF the stream. It is insisted in behalf Of
the plaintiff that the government possesses no
right TO so use his land, although submerged.
and although necessary to so use 1t In aid Of
navigation, as to cut off his access to the
open water. 1t is contended on the other
hand that this title to submerged lands along
navigable waters, and the right of access
thereto, are subject to the paramount right
of the United States to use this land in such
manner as they will determine TO be necessary
in aid of navigation.
All the cases concur in holding that the
pcwer of congress to regulate commerce. and
therefore navigation, is paramount, and is
unrestricted except by the limitations upon its
authority by the constitution. OF course.
every part of the constitution Is as binding
upon congress upon the people. The guaran-
tees prescribed by 1t for the security of pri-
yate property must be respected by all. But
whether navigation upon waters over which
congress may exert its authority requires Inn
proyement at ALL Improvement in a par
ticular way, are matters wholly within its
discretion; and the judiciary is without power
10 control or defeat the will of congress. so
long as that branch OF the government does
not transcend the limits established by the
supreme law of the land. Is the broad power
with which congress is invested purdened with
the condition that a riparian owner whose
land borders upon a navigable water of the
limited States shall be compensated for his
right of access to navigability whenever such
right ceases to be OF value solely in conse-
o,ience OF the Improvement Of navigation by