Can The State Of California "Declare" The Rivers of Siskiyou County as "Navigable"?
January 17, 2000
From: Marcia H. Armstrong
Siskiyou County Farm Bureau
809 S. Fourth St.
Yreka, CA 96097
Re: Comments regarding Ken Maurer's Request to the State of California (State Land Commission) to have the Scott River declared "navigable"
The determination of the "navigable" status of a river can have a far deeper significance than might, at first, meet the eye. The following is a compilation of the historic/legal context surrounding the issue of "navigability." It should be noted that the compiler is not an attorney and no statement or information provided in this compilation should be construed as legal counsel.
It is the author's opinion that the Scott, Shasta and Klamath Rivers in Siskiyou County were determined to be non-navigable in law by the State upon statehood. The property rights associated with a non-navigable status have become fully vested and the obligations of contract/grant/patent have long been executed. At this point, the State lacks the capacity to impose a public servitude upon these lands by mere declaration. It is only under its power of eminent domain that the State has the capacity to condemn these riparian lands. Such condemnation must be for a legitimate public purpose and would require the payment of just compensation to the owners.
As stated by Justice Pitney in U S v. Cress , 243 U.S. 316 (1917):
"Many state courts, including the court of appeals of Kentucky, have held, also, that the legislature cannot, by simple declaration that a stream shall be a public highway, if in fact it be not navigable in its natural state, appropriate to public use the private rights therein without compensation..."
As stated by Chief Justice Taft in Brewer-Elliott Oil & Gas Co. v. U.S., 260 U.S. 77 (1922):
"...It is not for a state by courts or legislature, in dealing with the general subject of beds of streams to adopt a retroactive rule for determining navigability which would destroy a title already accrued under federal law and grant or would enlarge what actually passed to the state, at the time of her admission, under the constitutional rule of equality here invoked."
On March 11, 1891, chap. 92 (Political Code, 2349), an enumeration was made of all the navigable rivers of the state. This was held by the California supreme court to be exclusive, so that no other rivers are navigable under the laws of California. (See Cardwell v. Sacramento County, 79 Cal. 347, 349, 21 Pac. 763z.). Neither the Klamath, nor the Scott nor the Shasta were among these enumerated State navigable rivers. In fact, the U.S. Supreme Court in Donnelly v. U.S., 228 U.S. 243 (1913,) found the Klamath to be non-navigable.
The California Harbors and Navigation Code Section 100-107 currently identifies "waters navigable in law" as 'Navigable waters and all streams of sufficient capacity to transport the products of the country are public ways for the purposes of navigation and of such transportation...."
Today, we find under the current list of "waters navigable in law," the Klamath River from its mouth in Del Norte County to its confluence with the Shasta River. [The major tributaries of the Scott and the Shasta River are not listed as navigable in law or "public ways."]
CALIFORNIA CODES: HARBORS AND NAVIGATION CODE:
SECTION 101. The following streams and waters are declared navigable and are public ways:
Klamath River, from its mouth in Del Norte County to its confluence with the Shasta River in the county of Siskiyou; but this shall not abrogate or infringe upon mining rights or the rights of locating or operating mining claims on the Klamath River, existing on August 21, 1933, otherwise than by being made subject to the public rights of way herein declared.
It is the author's opinion that the State of California lacks the capacity to impair an executed contract (land patent or grant) by imposing a public servitude upon private property in which property rights have already become vested. The Klamath, Scott and Shasta Rivers must forever remain non-navigable in law. The State lacks the capacity to declare a river merely "navigable in fact" without impairing contract. (This is in contrast with a determination of commercially navigable in fact by the federal government. The federal determination is by virtue of its power under the Commerce Clause to regulate navigation as commercial interstate activity.) The question, at this late date, is not whether these rivers are navigable, but whether they can (could) and should be appropriated for public use with just compensation payable.
ENGLISH ADMIRALTY LAW
English Admiralty Law was a legal heritage passed to the United States of America. In England the word "maritime" referred to cases arising upon the high seas, while "admiralty" referred to cases arising upon the "arms of the sea" or "royal rivers" - navigable waters and submerged lands affected by the ebb and flow of the tides. [Shively v. Bowlby, 152 U.S. 1, 13 (1894)]
Under the English common law, the "arms of the sea" or "royal rivers" where sovereign lands, the title to which vested in the king as the sovereign representative of the nation. These sovereign lands included the waterways as well as the underlying submerged lands beneath Royal Rivers - those falling below the ordinary high-water mark of the tide. The responsibility of the sovereign as trustee over these places was to act in the best interests of the public as custodian of certain of their customary or "common" use rights. These rights of use extended to: (1) common /shared right of commercial use as a highway; and (2) the common/shared right of a fishery or "common piscary."
In this land area below the high water mark, the Crown also reserved certain royal prerogatives for the increase of the "public treasure." These included the right to claim all admiralty "droits: "great fish" found within the beach zone below high water mark; all beach "deodands"; "wreck of the sea"; "flotsam" (goods floating on the water); "jetsam" (goods jettisoned by a crew); and "lagan" (jettisoned goods tied with buoys.)
These sovereign lands were in the nature of a "commons," "res communes," or a "thing common to all," which could never be appropriated or taken into exclusive private ownership. To attempt to appropriate the use of such a place into private ownership was considered a "prepresture," an encroachment that could never ripen into prescription, but could be tolerated as long as it did not interfere with the public right. Geer v. Connecticut, 161 U.S. 519 (1896) explained the nature of this type of public ownership:
"This community was not a positive community of interest, like that which exists between several persons who have the ownership of a thing in which each have their particular portion. It was a community, which those who have written on this subject have called 'a negative community,' which resulted from the fact that those things which were common to all belonged no more to one than to the others, and hence no one could prevent another from taking of these common things that portion which he judged necessary in order to subserve his wants. Whilst he was using them, others could not disturb him; but when he had ceased to use them, if they were not things which were consumed by the fact of use, the things immediately re-entered into the negative community, and another could use them."
The common rights or "liberties" of public use (jus publicum) in regard to the "royal rivers" was to navigate the waters for commercial purposes; to fish from the banks and in the overlying waters; and to use the river's banks to the high water mark for purposes of access, cleaning fish or towing barges by draft animals. [ See discussions citing Lord Hale as authority by both Justice Taney and Justice Thompson in the case Martin v. Waddell's Lessee, 41 U.S. 367 (1842)] Regulation over the customary use of Royal Rivers and other activities, (such as bridge-building,) which might effect the customary public use was in the nature of discharging a public trust.
In contrast, grants of lands riparian to any river not navigable or navigable and not affected by the ebb and flow of the tide were considered to include private title to the lands underlying the river to its midpoint or center thread, as well as the exclusive fishery. As was stated by Lord Mansfield in 4 Burr. 2163, the rule of law is uniform. "In rivers not navigable, the proprietors of the land have the right of fishing on their respective sides, and it generally extends ad filum medium aquoe...."
"In rivers, not navigable, that is, where there is no flux or reflux of the tide, the right of fishing is incident to the owner of the soil, over which the water passes, and to the riparian proprietors, when a stream is owned by two or more. 6 Cowen's R. 369; 5 Mason's R. 191; 4 Pick. R. 145; 5 Pick. R. 199.
With the 1783 "Treaty of Paris," England recognized the separate political and territorial sovereignty of each individual State. As stated by Justice Taney in Martin v. Waddell's Lessee:
"...For when the revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government...."
Essentially, trusteeship over the so-called tidally influenced and submerged "sovereign lands," to which the public trust over common rights of navigation and fishery attached, passed from the Crown to the States. The prerogative of Admiralty droits ceased to be as the new government lacked the Constitutional capacity to receive them.
Justice Gray in his extensive review of the "Equal Footing Doctrine" as applies to tide-lands, submerged lands, and navigable streams, stated in Shively v. Bowlby, 152 U.S. 1 (1894):
"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 purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore, the title and the control of them are vested in the sovereign, for the benefit of the whole people. At common law, the title and the dominion in lands flowed by the tide were in the king for the benefit of the nation. Upon the settlement of the colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders, subject to the rights surrendered by the constitution to the United States."
In England, great tidally-influenced navigable rivers stretched far inland. In the eastern United States, however, there were many important inland fresh-water rivers and lakes that were bavigable. The judiciary expanded recognition of the common public trust in navigable waterways to include these great freshwater inland rivers. In his review of the subject in Shively v. Bowlby, 152 U.S. 1 (1894), Justice Gray stated:
"The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susquehanna river, in which Chief Justice Tilghman, in 1807, after observing that the rule of the common law upon the subject had not been adopted in Pennsylvania, said:
'The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation which has not a flow of the tide, but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.' Carson v. Blazer, 2 Bin. 475, 477, 478.'
So, in the early eastern United States, the precedent was established recognizing a public trust interest in the traditional tidally influenced navigable streams and submerged lands, as well as the non-tidally influenced navigable streams. Most states (including California) adopted the rule whereby the bed and banks of tidal navigable waterbodies up to the ordinary high water mark; and bed and banks on nontidal navigable streams up to the low water mark, were retained in ownership by the State and held as a public trust. Lands above or "upland to" the ordinary high or low water mark of a navigable stream were are not subject to any public servitude. The level of water mark was to be established as of conditions of "natural flow" unimpaired or burdened by dams or other artificial impacts.
Stated Justice Pitney, U.S. v. Cress, 243 U.S. 316 (1917):
"...the public right is to be measured by the capacity of the stream for valuable public use in its natural condition; that riparian owners have a right to the enjoyment of the natural flow without burden or hindrance imposed by artificial means, and no public easement beyond the natural one can arise without grant or dedication save by condemnation, with appropriate compensation for the private right...."
Ownership of the bed and banks of non-navigable streams fell to adjacent riparian owners to the midpoint or "thread" of the stream.
The California Civil Code sets forth the private riparian ownership interest in a waterbody based on its status as "tidewater," "navigable" lake or stream, or non-navigable lake or stream:
The sovereign people of the State of California are the owners of all land below the tidewater within the state; likewise, of all the land below the water of a navigable lake or stream; (Calif. Civil Code Sec 26 Calif. Jur 315-316, sec. 532.) (1) When the upland borders on tidewater, a private owner takes to ordinary high-water mark; (2) when it borders on a navigable lake or stream, low-water mark; (3) when it borders on any other water, the owner takes to the middle of the lake or stream (Calif. Civ. Code. sec. 830)
The qualified common law rights of a riparian owner below the ordinary high water mark of tidally influenced navigable stream and below the low water mark of a non-tidal navigable stream are called "littoral" rights. These are property rights burdened with a superior public servitude. The rights of an owner riparian to a non-navigable river are not so constrained.
Littoral rights are explained by Justice Field in Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892):
"The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, 10 Wall. 497, 504, to access to the navigable part of the water on the front of which lies his land, and for that purpose to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public. In the case cited the court held that this riparian right was property, and valuable, and, though it must be enjoyed in due subjection to the rights of the public, it could not be arbitrarily or capriciously impaired. It had been held in the previous case of Dutton v. Strong, 1 Black, 23, 33, that, whenever the water of the shore was too shoal to be navigable, there was the same necessity for wharves, piers, and landing places as in the bays and arms of the sea; that, where that necessity existed, it was difficult to see any reason for denying to the adjacent ownerthe right to supply it; but that the right must be understood as terminating at the point of navigability, where the necessity for such erections ordinarily ceased."
As cited by Justice Peckham in Water Power Co. v. Water Commissioners, 168 U.S. 349 (1897):
"[I]n Brisbine v. Railroad Co... in speaking of some of the riparian rights of an owner upon the banks of a navigable stream, the court said:
'What these rights are, especially in regard to land acquired originally from the United States, and bordering, as this does, upon the Mississippi river, we regard as fully and correctly settled by the federal supreme court. Dutton v. Strong, 1 Black, 23; Railroad Co. v. Schurmeier, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497. According to the doctrine of these decisions the plaintiff possessed the right to enjoy free communication between his abutting premises and the navigable channel of the river, to build and maintain, for his own and the public use, suitable landing places, wharves, and piers, on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even though beyond low-water mark, and to this extent exclusively to occupy, for such and like purposes, the bed of the stream, subordinate and subject only to the navigable rights of the public and such needful rules and regulations for their protection as may be prescribed by competent legislative authority. The rights which thus belong to him as riparian owner of the abutting premises were valuable property rights, of which he could not be devested without consent, except by due process of law, and, if for public purposes, upon just compensation. Yates v. Milwaukee, 10 Wall. 497.'"...
"The same general statement of the rights of riparian owners is made in Hanford v. Railroad Co., supra. That case treats of the rights of a riparian owner in the bed of the stream above low-water mark as subject to the right of the public to use the same for the purposes of navigation, and adds that, 'restricted only by that paramount public right, the riparian owner enjoys valuable proprietary privileges, among which we shall consider particularly the right to the use of the land itself for private purposes. ... Subject only to the limitation that he shall not interfere with the public right of navigation, he has the unquestionable and exclusive right to construct and maintain suitable landings, piers, and wharves into the water and up to the point of navigability for his own private use and benefit. [Citing cases.] And it is obviously immaterial, if the public interests be not prejudiced, whether the submerged land be covered with wharves of timber or stone, or be reclaimed from the water by filling in with earth so that it becomes dry land. The land may be so reclaimed.' It is also said in the course of the opinion: 'The limit to the private right is imposed by the public right, and the private right exists up to the point beyond which it would be inconsistent with the public right.' All this was said in regard to the case then under discussion, which related to the right of a riparian proprietor to reclaim the submerged land to the point of navigability, and to alienate the same so that the alienee might have the rights of the riparian owner, although having no interest in the original riparian estate..."
Riparian rights in "navigable waters" are subordinate to the public's common right of navigation. This is called a "navigational servitude." Riparian rights on non-navigable waters are not subordinate to any public interest or servitude.
As explained by Justice Harlan in West Chicago St. R. Co. v. People of State of Illinois Ex Rel City, 201 U.S. 506 (1906):
"... 'the title to land under a navigable river is not the same as the title to the shore land:' that 'in a navigable stream the public right is paramount, and the owner of the soil under the bed of such a stream can only use and enjoy it in so far as is consistent with the public right, which must be free and unobstructed;' that 'the title to the upland is absolute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navigation;' and that 'the city could not, if it would, grant the right to obstruct the navigation of the river, or bind itself to permit anything which has become an obstruction to be continued.' 214 Ill. 9, 20, 21, 73 N. E. 393, 397..."
"Again, in Scranton v. Wheeler, 179 U.S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48, the question arose with respect to the riparian owner whose access from his land to navigability was permanently lost by reason of the construction by the United States of a pier resting on submerged lands in front of his upland. The court said in its opinion (p. 163):
'The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.'
Stated Justice Burton in United States v. Kansas City Ins. Co., 339 U.S. 799 (1950):
"... When the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone. The owner's use of property riparian to a navigable stream long has been limited by the right of the public to use the stream in the interest of navigation. See Gould on Waters, c. IV, 86-90 (1883); I Farnham, Waters and Water Rights, c. III, 29 (1904). This has applied to the stream and to the land submerged by the stream. There thus has been ample notice over the years that such property is subject to a dominant public interest. This right of the public has crystallized in terms of a servitude over the bed of the stream. The relevance of the high-water level of the navigable stream is that it marks its bed. Accordingly, it is consistent with the history and reason of the rule to deny compensation where the claimant's private title is burdened with this servitude but to award compensation where his title is not so burdened."
WESTERN STATES AND EQUAL FOOTING
The "equal footing doctrine" established that all States would be admitted to the Union on an equal footing with the original 13. Justice Gray in his extensive review of the "Equal Footing Doctrine" as applies to tide-lands, submerged lands, and navigable streams, stated in Shively v. Bowlby, 152 U.S. 1 (1894):
"Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory. The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the constitution.
"...Grants by congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mark, and do not impair the title and dominion of the future state, when created, but leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the constitution in the United States."
As stated by Justice Kennedy in Idaho et al. v. Coeur d'Alene Tribe of Idaho et al. certiorari to the united states court of appeals for the ninth circuit No. 94-1474. Argued October 16, 1996. Decided June 23, 1997:
"As we stressed in Utah Div. of State Lands v. United States, 482 U.S. 193, 195-198 (1987), lands underlying navigable waters have historically been considered 'sovereign lands.' State ownership of them has been 'considered an essential attribute of sovereignty.' Id., at 195. The Court from an early date has acknowledged that the people of each of the Thirteen Colonies at the time of independence 'became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.' Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). Then, in Lessee of Pollard v. Hagan, 3 How. 212 (1845), the Court concluded that States entering the Union after 1789 did so on an 'equal footing' with the original States and so have similar ownership over these 'sovereign lands.' Id., at 228-229. In consequence of this rule, a State's title to these sovereign lands arises from the equal footing doctrine and is 'conferred not by Congress but by the Constitution itself.' Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977). The importance of these lands to state sovereignty explains our longstanding commitment to the principle that the United States is presumed to have held navigable waters in acquired territory for the ultimate benefit of future States and 'that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' United States v. Holt State Bank, 270 U.S. 49, 55 (1926)."
EFFECTS ON LAND PATENTS
In recognition of the equal footing doctrine, a patent issued to land riparian to a river would assume the riparian attributes of ownership embraced by local State law. As stated by Justice Shiras in Eldridge v. Trezevant, 160 U.S. 452 (1896):
"In Packer v. Bird, 137 U.S. 662, 11 Sup. Ct. 210, where a similar question arose, and where it was claimed that the fact that the title was derived by a grant from the United States afforded a reason for decision, Mr. Justice Fields states the question as follows:
'The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; but whatever rights or incidents attach to the ownership of property conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. As an incident of such ownership, the rights of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the state, either to low or high water mark, or will extend to the middle of the stream.'
The general common law rule was stated in Shively v. Bowlby, 152 U.S. 1 (1894):
"By the acts of congress for the sale of the public lands...it is provided 'that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways; and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall be common to both.' Acts May 18, 1796, c. 29, 2, 9; 1 Stat. 464; May 10, 1800, c. 55, 3; March 3, 1803, c. 27, 17; March 26, 1804, c. 35, 6; Feb. 11, 1805, c. 14; 2 Stat. 73, 235, 279, 313; Rev. St. 2395, 2396, 2476.
The rules regarding non-navigable streams were applied in California. For instance Rubel v. Peckham, 94 Calif. App.-2d-834, 837, 211 Pac.-2d-883 (1949); relied on the earlier decision of Lux v. Haggin (1886) that confirmed that a grant to a tract of land bounded by a nonnavigable river or creek conveyed the land to the thread of the stream. The appellate court stated:
"It is sufficient to observe that a conveyance of land which refers to and uses a nonnavigable water course as one of its boundaries conveys the rights of the grantor to the center line of such water course unless such conveyance indicates a different intention by terms expressly limiting the grant."
Exceptions to the general common law rule regarding nonnavigable streams were presumed to require written reservation through the terms of a specific treaty, statute or wording of the patent. As stated by Chief Justice Taft in Brewer-Elliott Oil & Gas v. U.S. 260 U.S. 77 (1922):
"We said in Oklahoma v. Texas, decided May 1, 1922:
'Where the United States owns the bed of a nonnavigable stream and the upland on one or both sides, it, of course, is free when disposing of the upland to retain all or any part of the river bed; and whether in any particular instance it has done so is essentially a question of what is intended. If by a treaty or statute or the terms of its patent it has shown that it intended to restrict the conveyance to the upland or to that and a part only of the river bed, that intention will be controlling; and, if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies. Where it is disposing of tribal land of he Indians under its guardianship the same rules apply.' In government patents containing no words showing purpose to define riparian rights, the intention to abide the state law is inferred. Mr. Justice Bradley, speaking for the court in Hardin v. Jordan, 140 U.S. 371, 384, 11 S. Sup. Ct. 808, 813 (35 L. Ed. 428), said:
'In our judgment, the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.'
As stated in Chitty's Prerogatives of the Crown, page 132:
"It is a principle of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges."
Barring specific reservation and subject to pre-established servitudes, a government land patent to an individual vests legal title and right to the located property to the extent it was held by the State or United States. It is considered in the nature of a compact and is an executed contract. It is a covenant that cannot be resumed, annulled or later modified by the grantor through legislation or otherwise. (A right vested, cannot be divested. Cited, 2 Dall. 297, 304; 9 Cranch 52; Green v. Biddle, 8 Wheat. 1; Fletcher v. Peck, 6 Cranch 136.)
In U. S. v. Title Insurance & Trust Co., 265 U.S. 472 (1924,) the Court cited the case of Minnesota Co. v. National Co., 3 Wall. 332, (page 334 [18 L. Ed. 42]) as ruling in matters of patented title:
"'Where questions arise which affect titles to land, it is of great importance to the public that, when they are once decided, they should no longer be considered open. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws, without injury, as they affect the future only; but where courts vacillate, and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective, and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change.'
The case of Fletcher v. Peck, 6 Cranch 135 affirmed title issued to a private individual by the State of Georgia, disposed of to others and then rescinded by a subsequent legislature as fraudulently issued. Chief Justice Marshall stated:
"A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the governor. A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant."
In another early case, Proprietors of Charles River Bridge v. Proprietors, 36 US 420 (1837,) Justice McClean spoke to the issue of exertion of legislative acts of ownership, such as disposal, over land that had already been granted:
"When land is granted, the state can exercise no acts of ownership over it, unless it be taken for public use; and the same rule applies to a grant for a bridge, a turnpike-road, or any other public improvement.
"... An executed contract is the evidence of a thing done; and it would seem, does not necessarily impose any duty or obligation on either party to do any act or thing. If a state convey land which it had previously granted, the second grant is void; not, it would seem to me, because the second grant impairs the obligation of the first, for, in fact, it does not impair it; but because, having no interest in the thing granted, the state could convey none. The second grant would be void in this country, on the same ground that it would be void in England, if made by the king. This is a principle of the common law; and is as immutable as the basis of justice....
In the same case, Justices Wilde and Morton concurred, stating:
"....The principle is admitted, that the grantor can do nothing that shall destroy his deed; and this rule applies as well to the state as to an individual."
Justice Baldwin, in his dissenting opinion in the same case, was in agreement on this general point:
"...'No man shall be taken,' 'no man shall be disseised,' without due process of law, is a principle taken from magna charta, infused into all our state constitutions, and is made inviolable by the federal government, by the amendments to the constitution.
"No new principle was adopted, in prohibiting the passage of a law by a state, which should impair the obligation of a contract; it was merely affirming a fundamental principle of law, and by putting contracts under the protection of the constitution, securing the rights and property of the citizens from invasion by any power whatever..."
"Such were the principles of our ancestors, in both revolutions; they are consecrated in the constitution framed by the fathers of our government, in terms intended to protect the rights and property of the people, by prohibiting to every state the passage of any law which would be obnoxious to such imputations on the character of American legislation. The reason for this provision was, that the transcendent power of parliament devolved on the several states by the revolution (4 Wheat. 651), so that there was no power by which a state could be prevented from revoking all public grants of property or franchise, as parliament could do. Harg. L. Tr. 60-61; 4 Wheat. 643, 651. The people of the states renounced this power; and as an assurance that that they would not exercise it; or if they should do so inadvertently, that any law to that effect should be void; the constitution embraces all grants, charters and other contracts affecting property, places them beyond all legislative control, and imposes on this court the duty of protecting them from legislative violation. 6 Cranch 136; 4 Wheat. 625. In the same sovereign capacity in which the people of each state adopted the constitution, they pledged their faith that the sanctity of the obligation of contracts should be inviolable; and to insure its performance, created a competent judicial power, whom they made the final arbiter between their laws and the constitution, in all cases in which there was an alleged collision between them. These principles have been too often, and too solemnly, affirmed by this court, to make any detail of their reasoning or opinions necessary..."
For this purpose, the chronological point of determination of "navigability" of rivers and lakes in California as regards rights of property ownership (use, disposal, etc.) was established to be at the time California was admitted into the Union and adopted the Common Law. "Navigable" bodies of water must have been capable of navigation in their natural state for the purpose of commerce at that point in time. If the watercourse was "not navigable" in 1850, the title of the bed and banks was to be held in trust by the General Land Office of the United States to pass into private ownership with the land patenting procedure.
On March 11, 1891, chap. 92 (Political Code, 2349), an enumeration was made of all the navigable rivers of the state. This was held by the California supreme court to be exclusive, so that no other rivers are navigable under the laws of California. (See Cardwell v. Sacramento County, 79 Cal. 347, 349, 21 Pac. 763z.) Neither the Klamath, nor the Scott nor the Shasta were among these enumerated State navigable rivers