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The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water

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The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water Florida State University Law Review Volume 3 Issue 4 Article 1 Fall 1975 The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water Glenn J. MacGrady Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Admiralty Commons, and the Water Law Commons Recommended Citation Glenn J. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don't Hold Water, 3 Fla. St. U. L. Rev. 511 (1975) . https://ir.law.fsu.edu/lr/vol3/iss4/1 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW VOLUME 3 FALL 1975 NUMBER 4 THE NAVIGABILITY CONCEPT IN THE CIVIL AND COMMON LAW: HISTORICAL DEVELOPMENT, CURRENT IMPORTANCE, AND SOME DOCTRINES THAT DON'T HOLD WATER GLENN J. MACGRADY TABLE OF CONTENTS I. INTRODUCTION ---------------------------- . ...... ..... ......... 513 II. ROMAN LAW AND THE CIVIL LAW . ........... 515 A. Pre-Roman Legal Conceptions 515 B. Roman Law . .... .. ... 517 1. Rivers ------------------- 519 a. "Public" v. "Private" Rivers --- 519 b. Ownership of a River and Its Submerged Bed..--- 522 c. N avigable R ivers ..........................................- 528 2. Ownership of the Foreshore 530 C. Civil Law Countries: Spain and France--------- ------------- 534 1. Spanish Law----------- 536 2. French Law ----------------------------------------------------------------542 III. ENGLISH COMMON LAw ANTECEDENTS OF AMERICAN DOCTRINE -- --------------- 545 A. Ownership of the Foreshore --------------------- - 547 B. Navigability and the Tidewater Concept ------------ 569 1. Navigable Waters in England-------- -------- 570 2. Locational Admiralty Jurisdiction in England ---------575 3. Fishing Rights and Submerged Bed Ownership: The Merger of the Navigability and Tidewater Concepts -------------------------------------------------577 IV. THE CONCEPT OF NAVIGABILITY IN AMERICA -........---. 587 A. Navigability at the Federal Level -------------- 588 1. Navigability and Title to Submerged Beds -- 588 a. The Supposed Common Law "Public Trust Doctrine" --------......................589 b. The Federal"Title Test" of Navigability-------..... 591 512 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol.3:511 2. Navigability and Federal Regulatory Power .........- 593 3. Navigability and Locational Admiralty Jurisdiction 595 B. Navigability at the State Level ------------------- 596 1. State Title Tests v. The Federal Title Test: A Functional Analysis of Their Respective Roles -------596 a. Pre-Statehood Patent from the United States to 0 -..----.... ---------....-.-.--.---.- .....---------599 b. Post-Statehood Patent from the United States to 0 -....- ....-------------.-.------......------------ - 600 c. Post-Statehood Patent from the United States to Ames, and then from Ames to 0 -----------603 2. Navigability at the State Level as a Mechanism To Allocate Public and Private Usufructuary Interests ------------------------------------------------------ --------- - 604 V. SUMMARY AND CONCLUSIONS ------.........................--------------- 605 THE NAVIGABILITY CONCEPT IN THE CIVIL AND COMMON LAW: HISTORICAL DEVELOPMENT, CURRENT IMPORTANCE, AND SOME DOCTRINES THAT DON'T HOLD WATER GLENN J. MACGRADY* The division of waters into navigable and nonnavigable is but a way of dividing them into public and private waters,-a classification which, in some form, every civilized nation has recognized; the line of division being largely determined by its conditions and habits. -Lamprey v. Metcalf, [W]hat are navigable waters? Will it be proper to adopt . an etymological derivation from navis, and to designate, as navigable waters, those only on whose bosoms ships and navies can be floated? Shall it embrace waters of which sloops and shallops, or . river craft, can swim; or shall it be extended to any water on which a batteau or a pirogue can be floated? These are all . navigable in a certain sense. -Jackson v. The Steamboat Magnolia2 I. INTRODUCTION In 1893 the Minnesota Supreme Court, using the words first quoted above, aptly summarized the general rationale which, historically, has underlain the concept of navigable waters. The latter words, angrily uttered in 1857 by a dissenting Justice Daniel, summarize with equal aptness the inherent difficulty in defining the meaning, scope, and effect of the navigability criterion. The underlying rationale of the navigability concept is of ancient origin. All recorded legal systems of the western world, at least since the time of Rome, have recognized some sort of distinction between "private" water bodies and "public" water bodies. Historically, this distinction has served two different but related-and often confused- legal purposes. First, the distinction has served to determine whether public or private proprietary rights attach to the bed of a given water body. Secondly, it has served to allocate public and private usufructu- * Member, Florida Bar. Attorney, IBM Corporation, Armonk, New York. A.B., Columbia University, 1966; J.D., Florida State University, 1974; LL.M., Harvard University, 1975. This article was submitted in partial fulfillment of the requirements for the LL.M. degree awarded the author by Harvard University. 1. 53 N.W. 1139, 1143 (Minn. 1893). 2. 61 U.S. (20 How.) 296, 320 (1857) (Daniel, J., dissenting). 514 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol.3:511 ary3 rights in the superjacent waters. History reveals that the concept of navigability has always been related in some manner to this public waters/private waters distinction. But, contrary to the Minnesota Su- preme Court's assertion in Lamprey v. Metcalf, navigability has not necessarily been the distinction-for history also reveals that navigable waters and public waters have never been coextensive concepts in the civil or common law. The general purpose of this article is to analyze the historical development of the distinction between public and private waters, and of the role played by the related navigability concept, in the civil law and common law. Because all legal systems have conceived the sea itself to be in some sense "public,"' the discussion of the civil law and of the English common law will focus on two historically problematic areas: rivers and the foreshore. Part II of this article examines the law relating to navigability, public waters, and the foreshore in primitive society, Rome, Spain, and France. The discussion is largely of antiquarian and comparative in- terest because although the civil law influenced early English writers such as Bracton and early works such as Fleta and Britton,5 and although it has had lingering effects in states such as Texas and Louisiana, it did not survive long in the feudal common law jungle. To this author's knowledge, however, nothing substantial has ever been written on the Roman law of public waters and navigability, and much of what has been written is either inadequate or somewhat misleading. Part III explores the common law roots of two "doctrines" that have purportedly sprung from English legal soil. The first "doctrine"- now commonly known as the public trust doctrine-is that the shores and submerged beds of all navigable waters were held in trust by the English Crown for the benefit of all the people of the realm. The 3. In Roman law a usufruct was a rather technically defined type of servitude. Throughout this article, "usufructuary" is used in a more general sense as the adjectival form of the noun "use." Thus a right to use something is a usufructuary right. 4. E.g., "[b]y natural law . the sea . [is] common to all," INSTITUTES 2.1.1, translated in R. LEE, THE ELEMENTS OF ROMAN LAW 110 (3d ed. 1952) [hereinafter all citations to the INSTITUTES will be from the translation given in R. LEE, supra, at 110-11, except where otherwise indicated]; "[t]he things which belong in common, to all the living creatures of this world, are . the sea," LAS SIETE PARTIDAS 3.28.3, translated in E. WARE, ROMAN WATER LAW § 395 (1905) [hereinafter cited as WARE]; "the sea, &c. according to the provisions of the common law, are as public and common, as they were among the Romans," J. ANGELL, A TREATISE ON THE RIGHT OF PROPERTY IN TIDE WATERS 17 (1826). 5. Bracton is discussed at pp. 555-57 infra. The more modest works known as Fleta and Britton, written somewhere around 1290-1292, were based primarily on Bracton's treatise, see T. PLUCKNETr, A CONCISE HISTORY OF THE COMMON LAW 265-66 (5th ed. 1956), and thus will not be referred to hereinafter. 1975] NAVIGABILITY CONCEPT second "doctrine" is that navigable waters in England were factually and legally coextensive with tidewaters. Although these "doctrines" have become conventional wisdom in America, it will be demonstrated that they are misconceptions and oversimplifications of English common law that were imported into American law on the most tenuous of authority by creative nineteenth century American treatise writers and judges. The inherent difficulty in defining the meaning, scope, and effect of the navigability criterion is well illustrated by the judicial develop- ment of the concept of navigable waters in America. Today the im- portance of the navigability criterion in America is pervasive. On the federal level, a determination of
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