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Show 66 GENERAL footing was held to mean equality in governmental power, and since State ownership of tidelands and tidewaters was an aspect of sov- ereignty the new States were given proprietary ownership of the beds and shores of navigable waters and public trust jurisdiction over them. The new States ordinarily were carved out of Federal public domain, and such ownership thus passed from the United States to the respective States at the date of statehood by virtue of the equal footing clause. However, Texas, as a sovereign republic prior to statehood, owned such waters and beds prior to statehood and thus did not derive title thereto from the United States. As a matter of fact, in 1950 the Su- preme Court held that the United States had automatically (and unknowingly) acquired from Texas at its admission into the Union the bed of the marginal sea adjacent to its shores. This ruling was based on the rationale that the original States did not own any part of the marginal sea; therefore, subsequently admitted States ac- quired no part of the bed of the marginal sea under the equal foot- ing doctrine; and that Texas could not have a greater-than-equal foot- ing, and so she must be deemed to have surrendered her claim to the marginal seabed upon her admission into the Union. It has been seen that the U.S. Supreme Court rejected the English tidal test of navigability in 1851, and that the substitute test of navigability-in-fact was articulated by the Court in 1870, so far as Federal admiralty jurisdiction and regulatory authority over navi- gation were concerned. But there remained the question as to whether State title in navigable waters-and therefore the public trust-was to be similarly extended to inland navigable waters as well as tide- waters and tidelands. In 1876 the Supreme Court said that it was, and said that it would be up to the individual States to decide whether they wished to re- tain full proprietary jurisdiction or whether they wished to recog- nize certain riparian rights in the shores and beds of such inland navigable waters. This, of course, laid the foundation for a rather wide variation in the approaches which the respective States took toward administering the public trust over inland navigable waters and adjacent shorelands. (c) For State regulation of public trust The foregoing discussion explains why the States own the beds and the shorelands of navigable waters within their borders, and whv they administer a trust in favor of the public for navigation, fishing, and other public uses. It is to be remembered that this trust extends to all navigable waters, whether interstate or intrastate; and that the test of navigability since 1870 (as further clarified in 1876) has been one of navigability-in-fact, so that all waters are deemed navigable if they are physically capable of supporting waterborne traffic in the customary modes of trade and travel on water. While the test of navigability for the purpose of determining whether a State acquired title to the bed of a particular watercourse at statehood is a Federal question to be determined by uniform principles of Federal decisional law, the States have applied their own local law in a variety of other circumstances relating to these lands and waters. On the one hand, some States have in varying de- |
