Here in Chicago, we’ve been having a civic discussion about the Lucas Museum of Narrative Art. Though a lot of people are confused about the legal principle behind a lawsuit blocking construction, it centers on the public trust doctrine: the rule that the waters of the seas, and land underneath, are held by the sovereign in trust for the people and cannot be transferred to private control for nonpublic use. That principle is said to have its origins in Magna Carta, but it was set out by the Supreme Court in the 1892 case Illinois Central R.R. v. Illinois.
When someone asked “how can we change this law?” it sort of put me on the spot, because the public trust doctrine is neither in the US Constitution nor the Illinois Constitution, nor state or federal statutes. (Indeed, since it limits legislative power, it has to come from some higher authority than a statute.)
For a lay audience, I described it as “federal common law,” but now I wonder if that’s right. After Erie Railroad Co. v Tompkins, we typically say there is no such thing as federal common law. So what is the source of the public trust doctrine? What similar doctrines constrain legislative bodies in the US—even though they’re found nowhere in the Constitution?
It’s just plain old common law. It says so right there in Illinois Central, citing People v. New York & Staten Island Ferry Co. 68 N.Y. 71 as authority for the proposition.
Note that this doesn’t “constrain legislative bodies”. If the legislature wants to legislate in a way which is inconsistent with existing common law, it can do that.
As best I recall, the rule is that states, as sovereign, hold title to land under the water that was navigable at the time statehood was granted. As a general rule, states have held that title “in trust,” for the public use – basically that the public retains a right of easement that cannot be alienated.
But even if a state divests its interest in that land, there is still a concurrent federal interest (assuming the water is “navigable,” which is not a difficult standard to reach.
The federal government also retains title to land that was under water and not navigable at the time statehood was granted.
What does this mean. I have a stream in my backyard that is certainly not navigable by anything bigger than a child’s toy. The federal government owns title to this?
But probably not. First, did the stream exist at the time your state became a state?
At that time, was the stream subject to the ebb and flow of the tide? Was it used then, or could it have been used then, for transport of interstate or foreign commerce?
Probably existed, yes.
No, no tides would reach it.
Certainly couldn’t have been used for any kind of transport.
But this wasn’t at all what your original post implied. It said non-navigable waters were federal and navigable were state owned. So I guess you’re telling me that there are basic conditions that make them privately owned which is what I would have assumed until we get to big ones, but I’d have thought all big ones would be navigable by the standard of 1789.
But I thought that was exactly the holding of Illinois Central: that the Illinois legislature did not have the power to transfer the bed of Lake Michigan to the railroad company.
Bricker has covered this better than I could. Basically, if the watercourse is navigable, both the state and the feds have an interest in it which is subject to the common-law “public trust”. The state legislature can legislate to override the common law trust as it affects the state’s interest, but not as it affects the federal interest.
The state did not transfer the fee simple to the railroad company. It conveyed an easement only for railroad purposes. However, a state supreme court decision found that fee title to the land where the Prudential Building was constructed was in the IC Rrd by reason of estoppel against the state, although the deed stated that the conveyance was for railroad purposes only.
barbitu8, I think you’re inserting your own knowledge about some things that came after Illinois Central, and are in some ways related to it, but weren’t part of the case decided in 1892.
As you’ll read in the case, 146 U. S. at 389:
The Act of the Legislature of Illinois of April 16, 1869, granting to the Illinois Central Railroad Company, its successors and assigns “all the right and title of the State of Illinois in and to the submerged lands constituting the bed of Lake Michigan and lying east of the tracks and breakwater of the Illinois Central Railroad Company, for the distance of one mile, and between the south line of the south pier extended eastwardly and a line extended eastward from the south line of lot twenty-one, south of and near to the roundhouse and machine shops of said company, in the south division of the said City of Chicago,”
Thanks for the cite. The deed itself, IIRC, however, conveyed the land for railroad purposes. There was a much later Ill. Supreme Court decision, circa 1960, that held Prudential acquired the fee simple to the air rights by estoppel, precluding the state to assert its title to the fee simple, citing numerous reasons, such as the paid taxes. That case was brought by a concerned citizen. (I do not have the cite any more.)
I’m confused. If the feds own all land under water (of a certain type), how has San Francisco managed toreclaim land from the sea? I’m pretty sure SF Bay is navigable.
It gets approved. Either directly for a specific project, or implicitly by general legislation that allows such things, sets up under what conditions, and names who’ll be in charge of the nuts and bolts. Plus, the city can argue succesfully that shoring up and expanding the city (and expanding the tax base)*** is*** a public purpose. Also, like it has been said, statute law can override Common Law to to change the status of specific plots of land or waters if it’s in the public interest.
Thanks - I suppose the lesson is to get your paperwork in order first. And be sure that no one else has a prior claim.
We have a similar difficulty here in Stockton. The area was once part of a Spanish Land Grant. The original owner (and his descendents) have sold off or gifted most of it within the city limits. However courts have deemed any land under water to be a remaining remnant of the original Grant. As soon as anyone fills in any part of a body of water, it becomes the property of the family.
That’s why one downtown park has a big water feature, suspended on pilings over the eastern end of the Stockton Channel. As long as it’s hanging over the water, it belongs to the city. Were it to be filled in, if the city wanted to make it part of the park, they’d have to buy it - about 35,000 square feet of downtown/waterfront land.
