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Show GENERAL 65 accorded limited privileges in the tidelands for such purposes as access to the water, and for constructing docks, wharves, and piers- so long as there was no material interference with public use of the tidewaters. (2) AMERICAN MODIFICATION (a) For Federal regulatory purposes In 1824 the U.S. Supreme Court ruled that navigation was an element of commerce within the meaning of the commerce clause of the Federal Constitution. One year later the Court was required to consider which navigable waters were included within Federal ad- miralty jurisdiction, and it held that the framers of the Constitution intended the same distinction between navigable and nonnavigable waters as was then known in the common law. It thereupon became clear that Federal admiralty jurisdiction and congressional power to regulate navigation extended only to tidewaters. This view continued until 1851, when the Court overruled its prior decisions and held that navigable waters which were subject to admiralty jurisdiction and within the reach of the commerce clause included all navigable waters, whether or not they were affected by the ebb and flow of the tide. This decision effectively rejected the English tidal test of navigability, but left unclear what new test was to determine navigability. That answer came in 1870, when the Court ruled that all waters which were navigable-in-fact were navigable in law. Waters were said to be navigable-in-fact when they were used, or were suscepti- ble of being used, in their ordinary condition, as highways of com- merce over which trade and travel could be conducted in the cus- tomary modes of trade and travel on water. The Court explained that navigable waters would thus fall into two categories: (1) those waters which formed a continuous link in interstate or foreign com- merce were the navigable waters of the United States and were thus subject to Federal admiralty jurisdiction and to Federal regulation of commerce; and (2) those waters which were navigable intrastate only were the waters of the States and were subject to regulation by the respective States. (b) For purposes of State title Navigability for purposes of State title has been an important element in the development of the distinction between navigable and nonnavigable waters. As a result of the American Revolution, the 13 original colonies, within their respective boundaries, succeeded to all of the sovereign powers and prerogatives that had previously been held by the English Government. The original colonies thus acquired proprietary ownership of, and regulatory authority over, the tide- lands and tidewaters, subject to the public trust for navigation and fishing. When the Federal Union was formed, these 13 States delegated to the Federal Government the superior power to regulate interstate commerce (which in 1824 was held to include navigation). As new States subsequently came into the Union, they were admitted on an equal footing with each other and with the original States. Equal |
