Nebraska Law Review Volume 57 | Issue 3 Article 4 1978 State Ownership of Beds of Inland Waters—A Summary and Reexamination Peter N. Davis University of Missouri School of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Peter N. Davis, State Ownership of Beds of Inland Waters—A Summary and Reexamination, 57 Neb. L. Rev. 665 (1978) Available at: https://digitalcommons.unl.edu/nlr/vol57/iss3/4 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. By Peter N. Davis* State Ownership of Beds of Inland Waters-A Summary and Reexamination I. INTRODUCTION States rely on state ownership of the beds of streams, rivers, and lakes for various regulatory and proprietary purposes. These include licensing of bed use, leasing of underlying miner- al rights, protection of public use rights, assertion of public trust powers, and location of boundaries of abutting privately-owned land. The extent of this state ownership in states created from federal territories is determined by a conjunction of the follow- ing: (1) the "equal footing rule," (2) the law of federal land patent interpretation, (3) state rules on incidents to title to abutting uplands, (4) federal and state definitions of navigability, and (5) the law of implied grants of land from the sovereign. States have asserted title to the beds of many streams, rivers, and lakes by assuming the correctness of certain interpretations of these rules of law. This article will reexamine those interpretations. This reexamination is timely for two reasons. First, there is no clear authority on the question whether states created from federal territories have title to the beds of inland waters de- clared to be nonnavigable under federal law for bed title pur- poses. Second, the basic structure of bed title law itself was thrown into question in 1973 by a decision of the United States Supreme Court.1 The Court corrected its position in 1977 and restored the former bed title law. 2 This article will summarize the basic structure of bed title law and will examine its current status under the recent Supreme Court decisions. It will then analyze the cases to determine the location of title of beds of * Associate Professor of Law, University of Missouri-Columbia. B.A. 1959, Haverford College; LL.B. 1963, University of Wisconsin; S.J.D. 1972, Uni- versity of Wisconsin-Madison. 1. Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973). 2. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977). 666 NEBRASKA LAW REVIEW-VOL. 57, NO. 3 (1978) federally nonnavigable inland waters when a state created from a federal territory asserts such title. II. SUMMARY OF THE LAW OF BED OWNERSHIP A. Equal Footing Doctrine The common law recognized that title to beds of navigable 3 4 waters was in the Crown, both in England and in the colonies. At that time navigable waters were defined as those affected by the ebb and flow of the tide.5 The thirteen original states ac- quired title6 to the beds of navigable waters as successors to the Crown. The United States acquired title to the beds of navigable waters of federal territories because it was the territorial sovereign prior to the creation of new states.7 Territorial sovereignty was the origin of all bed titles in the Midwestern and Western states, including Nebraska. The United States held title to such beds in trust for the future states to be created out of the federal territories. 8 It also held title to the beds of nonnavigable waters incident to its proprietorship of the public domain be- 3. See Shively v. Bowlby, 152 U.S. 1, 11-13,57 (1894); Martin v. Waddell, 41 U.S. (16 Pet.) *367, *410 (1842). 4. Massachusetts v. New York, 271 U.S. 65, 85-86 (1926); Morris v. United States, 174 U.S. 196, 226-27 (1899); Shively v. Bowlby, 152 U.S. 1, 48-49, 57 (1894); Martin v. Waddell, 41 U.S. (16 Pet.) *367, *410 (1842). 5. See Shively v. Bowlby, 152 U.S. 1, 11, 57 (1894); Packer v. Bird, 137 U.S. 661, 667 (1891); Barney v. Keokuk, 94 U.S. 324, 337 (1876) (dictum). 6. See Borax Consol. v. Los Angeles, 296 U.S. 10, 15, rehearingdenied, 296 U.S. 664 (1935); Massachusetts v. New York, 271 U.S. 65, 86,89 (1926); Morris v. United States, 174 U.S. 196, 226-27 (1899); Shively v. Bowlby, 152 U.S. 1, 15-18, 49, 57 (1894); Knight v. United States Land Ass'n, 142 U.S. 161, 183 (1891); Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 436 (1867); Martin v. Waddell, 41 U.S. (16 Pet.) *367, *410, *416 (1842). See also Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 317-18 (1973) (title was not acquired at time of ratification of the federal Constitution as the Court indicates, but at the time of the Revolution). 7. See Borax Consol. v. Los Angeles, 296 U.S. 10, 15, rehearing denied, 296 U.S. 664 (1935); United States v. Oregon, 295 U.S. 1, 25 (1935); Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 87 (1922); Oklahoma v. Texas, 258 U.S. 574, 583 (1922); Donnelly v. United States, 228 U.S. 243, 259 (1913); Shively v. Bowlby, 152 U.S. 1, 48-49, 57 (1894); Knight v. United States Land Ass'n, 142 U.S. 161, 183 (1891); Weber v. Board of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 65 (1873). 8. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 373 (1977); United States v. Holt State Bank, 270 U.S. 49, 58-59 (1926); United States v. Mission Rock Co., 189 U.S. 391, 404 (1903); Shively v. Bowlby, 152 U.S. 1, 49-50, 57 (1894); Knight v. United States Land Ass'n, 142 U.S. 161, 183 (1891); Weber v. Board of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 65 (1873). BED OWNERSHIP cause such bed titles were incidents to title in the abutting up- lands under the common law.9 When new states were created from federal territories and admitted to the Union, they were admitted on an equal basis with the thirteen original states. This is the so-called "equal footing rule"'10 mandated by the federal Constitution.1 The new states acquired title to the beds of navigable waters upon admis- sion to the Union because the thirteen original states held such title.12 Only title to the beds of waters navigable at the time of 9. See United States v. Oregon, 295 U.S. 1, 6-7 (1935); Oklahoma v. Texas, 258 U.S. 574, 595-96 (1922); Hardin v. Jordan, 140 U.S. 371, 383-84 (1891). 10. The term "equal footing" is derived from language appearing in the compact between the original states and the people and states within the Northwest Territory as enacted in the Northwest Territory Ordinance of 1787, 1 Stat. 51, 53 n.(a) (1845). Article V provides: "[Sluch State shall be admitted... into the Congress of the United States, on an equal footing with the original States, in all respects whatever. ." Id. at lxii. Similar "equal footing" language also appears in subsequent acts establishing ter- ritories and in acts of admission. The equal footing rule applies only to new states which were created out of federal territories. Therefore, the rule has no application in the thirteen original states, in their derivatives (Maine and West Virginia), in states which formerly were independent nations (Hawaii and Texas), or in pres- ent federal territories (District of Columbia). 11. Oregon ex rel. State Land Bd.v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977). See U.S. CONST. art. IV, § 3. 12. See Pollard's Lessee v. Hagan, 44 U.S. (3 How.) *212, *223, *229-30 (1845); Goodtitle v. Kibbe, 50 U.S. (9 How.) *471, *478 (1850); Mumford v. Wardwell, 73 U.S. (6 Wall.) 423,436 (1867); Weber v. Board of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 65-66 (1873); Barney v. Keokuk, 94 U.S. 324, 338 (1876); Knight v. United States Land Ass'n, 142 U.S. 161, 183 (1891); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 434 (1892); Shively v. Bowlby, 152 U.S. 1, 26-28, 57 (1894); St. Anthony Falls Water Power Co. v. St. Paul Water Comm'rs, 168 U.S. 349, 358-60, 365 (1897); Mobile Transp. Co. v. Mobile, 187 U.S. 479, 483 (1903); United States v. Mission Rock Co., 189 U.S. 391,404-05 (1903); United States v. Chandler-Dunbar Water Power Co., 209 U.S. 447, 451 (1908); Scott v. Lattig, 227 U.S. 229, 242-43 (1913); Donnelly v. United States, 228 U.S. 243, 259-60 (1913); Port of Seattle v. Oregon & Wash. R.R., 255 U.S. 56, 63 (1921); Oklahoma v. Texas, 258 U.S. 574, 583 (1922); Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 83 (1922); United States v. Holt State Bank, 270 U.S. 49, 55 (1926); United States v. Utah, 283 U.S. 64,75 (1931); United States v. Oregon, 295 U.S. 1, 6, 14 (1935); Borax Consol. v. Los Angeles, 296 U.S.