HUGHES v. WASHINGTON
Argument of Charles B. Welsh
Chief Justice Earl Warren: Number 15, Stella Hughes, petitioner, versus the State of Washington.
Mr. Charles B. Welsh: Yes, Your Honor.
May it please the Court.
Chief Justice Earl Warren: Yes.
Mr. Charles B. Welsh: After many years and many miles, we approach this Honorable Court with depreciation for the permission granted.
The problem submitted to you, we deem, to be of basic simplicity whether federal law continues to govern the title to imperceptible accretions added to uplands acquired from the United States Government by patent.
Petitioner, Mrs. Hughes, is the owner of a small unimproved track of land of the western coast of the State of Washington bordering the Pacific Ocean.
She, on the other hand, represents in essence many hundreds of individual and municipal ownerships not only in the State of Washington but in all other similar situated owners and properties and all public land states of this union.
We submit that the problem before you is not academic, it is real, it is substantial.
We're dealing with land basically title to land.
Justice John M. Harlan: This is not a titled land.
Mr. Charles B. Welsh: In effect it is, Your Honor.
Justice John M. Harlan: Now that I know --
Mr. Charles B. Welsh: Not as such, no.
Justice John M. Harlan: Why?
Mr. Charles B. Welsh: No.
Justice John M. Harlan: I know you got a certain time before us.
Mr. Charles B. Welsh: Right, Your Honor.
Now, in a short time ago in 1966, these owners were advised and informed by judicial fiat that the physical characteristics of their waterfront property had been changed.
Likewise, the theory of the law under which this land was purchased by the Government has been changed.
Now, the theory of the law of accretion antedates the commonly law, probably enter dates of the Justinian Code.
It is -- it has been the law of nations.
We complain bitterly, the Supreme Court of the State of Washington changed this law 75 years after the fact and hundred years after the time of acquisition.
Now, at the time of acquisition at until statehood in 1889, counsel freely admits that this law, this theory bound the United States as grantor and us as grantee.
Our line were clearly established by a judicial precedent.
Our western or seaward boundary line is the line of being high tide and that is established by the only known and a certain method that's been advanced to date.
That is the theory or the formula of the United States Coast and Geodetic Survey.
Now, to us, it is not a belated action.
It is an action grounded without precedent.
Certainly, the counsel freely admit also that there is no federal case in any federal court lending support to this theory of the Hughes case even by inference.
In our opinion, there is no case previous to Hughes in the State of Washington that lends any support or credence to the theory of the Hughes case.
The Hughes case says not now but in 1889, we took your property.
The property is no longer bounded by an ambulatory boundary line as fixed by the natural movements of the tide of the Pacific Ocean.
This is fixed and immovable as of 1889 because we say so.
Now the formula that we have it up is this.
It is the line of ordinary high tide.
Now, the Honorable Justice Weaver, the writer of the majority opinion in Spencer a page and a half of defining this line of ordinary high tide.
I submit Your Honor, his definition follows no judicial precedent and is based upon no scientific or no formula.
This is his own.
There is no engineer can lay out a line based upon that formula nor any lawyers advise his plan under this judicial formula where that line will lie.
The Honorable Justice equates this line with the line of vegetation.
The line of vegetation has never been known in the history of the world to be equated with the line of being high tide on titled boundaries where the reason is natural.
The reason is common sense.
Your winter Europe, high tides, your storm tides wash away any vegetation that is apparent and consistent on lakes for example, none tidal water boundary.
Chief Justice Earl Warren: Mr. Welsh, what is the purpose of the line of vegetation as stated in other precedents?
Mr. Charles B. Welsh: The purpose of the line of vegetation, Your Honor, it is unchangeable and fairly accurate.
It remained so in all water boundaries of inland lakes or rivers that are unaffected by the tidal flow.
The tidal flow is so vast that this accretion or this vegetation land simply will not remain static.
Now, this is a scientific truth.
This is an actual, visual matter of observation on these ocean beaches.
In one tide, it will wash away miles of that sort of vegetation to the depth of several hundred feet.
The vegetation was there the day before it has not existed today, therefore it becomes inaccurate.
It is not used.
Now, I do not propose to argue our position.
I shall simply try to explain.
We bought to the United States Government the deed ran to the Pacific Ocean and to our areas it assigns forever.
We understood in any layman, any patent deed well understood, he was buying property bounded by the Pacific Ocean and not subject to an intervening title on upland subject to sale, lease, commercial use by some agency of the State of Washington.
We believe we can rely with confidence on the wisdom of this Court.
We believe that it will follow its own precedent particularly the Borax case and particularly this case refusal to review the Circuit Court of Appeals and the Ninth Circuit, United States versus Washington.
Justice Hugo L. Black: Can I ask you how much actual land is involved in this case?
Mr. Charles B. Welsh: Your Honor, this varies from probably a minimum of 500 feet to three quarters of a mile in depths between your dry, sandy beach land to your vast hard sands uncovered by the flux and influx of the tide.
Justice Hugo L. Black: What do you mean?
The boundary line has became that much -- it is recognized by accretion for 500 feet?
Mr. Charles B. Welsh: Under as a minimum.
Justice Hugo L. Black: As a minimum.
Mr. Charles B. Welsh: As a minimum sir.
Chief Justice Earl Warren: Is the federal patent, the release of federal patent is on explicit reference to accretion.
Mr. Charles B. Welsh: It is not sir.
Chief Justice Earl Warren: So that's a constant.
Mr. Charles B. Welsh: As an attribute of its title.
Chief Justice Earl Warren: Mr. Weisl.
Argument of Edwin L. Weisl, Jr.
Mr. Edwin L. Weisl, Jr.: Mr. Chief Justice and may it please the Court.
The United States is in this case by invitation of this Court at the time of the filing the petition for writ of certiorari when our views were asked to be submitted to the Court on this question.
Our examination of this case and the issue presented shows a very substantial federal interest in its outcome which I would like to elucidate for you for a moment.
First of all and most important, the Federal Government is perhaps the largest grantor of lands on the Pacific Coast as this Court well knows his republic land states and much of the land indeed the substantial part of it was at one time in federal ownership prior to statehood.
Therefore, the integrity and the interpretation of federal patents of land is here in question and has been placed in substantial question by the decision of the court below.
Secondly, the Federal Government is the owner at the present time of considerable waterfront coastal property, literal property in the State of Washington some 200 miles.
Most important of all in this connection is that we hold much of this land and trust for Indian tribes and under the policies of the Federal Government as they now exist to a lot lands to Indians over the years and make them the actual fee owners.
The fact that a right that we maintain they have to future accretions is taken away by this case or will be when the allotment is made constitutes an important federal problem with the Federal Government here as trustee.
In addition, acquisitions of land for private purposes from private citizens are contemplated if the rule of the court below obtains the Federal Government will not be able to get these future accretions without purchasing them or condemning them for the state for what I am sure is a not inconsiderable sum of money in view of the historic nature of this coast line which seems to be characterize by daily imperceptible accretions building up over many years to quite sizeable amounts of land.
The law, I submit, is quite clear as to whether these accretions, the right thereto can be taken away by state action when they derive from a federal patent or other form of grant.
This Court has taken up this issue in its various forms on many occasions.
First, let me say that this Court has considered the question of whether a right to a future accretion is a vested right, one that continues and cannot be taken away.
In an ancient case, the County of St. Clair cited in our brief that this decision has made a right to future accretions of the imperceptible kind is deemed to be an inherent right of the ownership of property as to what law obtains this Court in the Borax case cited many times in all briefs before you has decided quite clearly that when a federal grant is being interpreted whether or not the Federal Government remains the owner of any of the land in question, the measuring line as between tidal waters and upland waters is determined by federal law.
And in Borax, that measuring line was held to be the line of being high tide determined in accordance with proper geological measurement which is I submit quite capable of being ascertain under current practice.
I add parenthetically that Borax need not be the rule forever if more accurate scientific measurement are being developed.
I'm sure that Mr. Chief Justice Hughes in that case simply selected this rule because it was the best scientific one then available.
Borax simply fixed that line as between an upland owner and the state as owner of tide lands.
It wasn't on an accretion case.
However, I can see no distinction between accretions and the mere fixing of the line between the upland owner and the state as the owner of the tide lines.
The consequences to each party in both Borax and an accretion case are large and a considerable body of land would have gone to the upland owner under his contention in Borax had the line not been fixed where it was in accordance with federal principles.
I think one of the important arguments that the state makes contrary to our rule is that these accretions lie in the future and that many things can intervene so that these accretions will never occur.
They're trying to equate the petitioner Mrs. Hughes with an ordinary riparian owner and they are talking about riparian rights and I think it is most important in making the legal distinction in deciding this case to realize that accretion is not a riparian right for this reason.
The riparian right is a right in an owner bordering on stream, bordering on a body of navigable water to make some use of that water of his location as against other private owners.
He can build here, work out so to speak.
He has a right to use water from the stream.
He has the right to use it for navigational purposes but this right, it has long been held, always been held in common law countries, this right can be taken away when the sovereign can demonstrate some overriding public need for these waters.
It is as Mr. Justice Holmes said, a permissive right he said that in a case called Stevens against Arnold cited in our brief and he makes this very important distinction which is now very important in the Hughes case, in Stevens against Arnold for it distinguishes these riparian rights of which I have spoken as permissive rights as opposed to right to accretion which is indicia of property.
Another point strongly favoring the Federal Government's position here and the application of federal law to the accretions is the fact that this is a federal patent, a federal instrument and it's long been held by this Court that in respect to federal instruments, federal law applies as cited in that law review article, Professor Corker has cited again in all of our briefs.
He realizes that there is certainly a clear field of trust aspect to a federal patent.
Justice John M. Harlan: May I ask you a question?
Mr. Edwin L. Weisl, Jr.: Yes, Mr. Justice Harlan.
Justice John M. Harlan: By the readings of the State Constitution you relied on, accretion can be an abrogation to riparian rights, isn't it?
Mr. Edwin L. Weisl, Jr.: Well Mr. Justice Harlan, I must say that I do not -- although I think this Court is foreclosed from going into the interpretation of the State Constitution since we have heard from their highest court.
I do not read that constitution to deprive an upland owner of the right to future accretion as I --
Justice John M. Harlan: That can construe by the way --
Mr. Edwin L. Weisl, Jr.: Yes.
Justice John M. Harlan: -- from the state court and we are bound by that but what I'm getting at is with what the state has said here is that you recognize and appreciate the clean indicated patent and the day that the state has the right to (Inaudible) recognizing though that it will not recognize (Inaudible), isn't that the essence of it?
Mr. Edwin L. Weisl, Jr.: That is the essence of their position and I think Mr. Justice Harlan that in this instance, it may come about because of a desire to extend this riparian rights concept to something that is not actually such a right.
No one questions the state's right to do lake water to prevent future accretions.
No one questions the state right to deny owner's access to navigable waters.
This can be done in pursuance of a public purpose.
Here, however, they are simply saying we're redefining a boundary which in the federal deed was expressed as the Pacific Ocean which federal law has interpreted to mean high tide.
That line is simply moved and in accordance with the very ancient principles that everywhere else in the United States except Washington continues to obtain, they are saying that they can cut it off.
This, I submit, they cannot do and one of their justifications for cutting off or attempting to cut off this right is they say that the state have tide lands and that because of accretions, these tide lands have been taken away from them.
This has deprived the state of their equal footing with other states to own their own tide lands.
This is wrong and it's wrong for a very simple reason.
The state has lost no tide lands whatsoever as a result of these accretions.
Tide lands are the line between mean high tide and low tide as they exist at any given moment.
Picture if you will a moveable -- a belt consisting of the tide lands as accretion comes to the shore, this belt simply moves seaward.
Low tide doesn't stay where it is just because the land on the land where we cited accreted, low tide is probably just as far from the high tide line as it was before.
This belt has simply moved out to sea.
And I submit that the accretions may have resulted in the state making very substantial and important gains to its title because as that line of low water moved seaward as a result of the accretions, the three-mile limit of that state as defined in the Submerge Lands Act moves that further out to sea.
In accordance with what we all know of the developing exploration for and discovery of the valuable minerals in this three-mile belt of territorial sea of a state.
These accretions may result in the state gaining until it reaches for itself as a result thereof.
The State by this case in Hughes is merely asking to obtain more at both ends on the seaward and the landward side of its tide lands.
This is not something contemplated by Pollard against Hagen which simply confirmed to the states their tide lands.
Their tide lands I submit still exist.
Their tide lands have not been in any way diminished by the accretions and the state here has attempted to obtain valuable shorefront property in a late date in history because of some public purpose in acquiring such shorefront.
It is an excellent way of doing it -- to do it by judicial decree rather than the payment of just compensation by condemnation.
Justice Byron R. White: Could you tell me Mr. Weisl what the practice was or what the law -- the federal law was in connection with the grant by the United States in a territory before that territory became a state, the grant of land on a navigable stream by any kind of the description of what did that federal patent carry with it with respect to (a) accretions, (b) title to the streambed?
Mr. Edwin L. Weisl, Jr.: As to accretions, the law was that the upland owner was entitled thereto.
The question of ownership to the bed of the navigable stream was one that really was not resolved until Pollard against Hagan.
I believe that the Federal Government in certain cases thought that it could convey to upland owners the streambed and I think the Brewer-Elliott case which we cite indicates an attempt give in, in as part of the streambed.
In point of fact that Pollard came along, the United States covered that it was holding the bed of navigable streams entrust for the new states as they came into the union and that they could not in fact convey it to private owner.
Justice Byron R. White: Well, and I gather that a good number of cases in this Court indicating a federal grant of land located within the state.
Are they construed in accordance of the law in the state with respect to riparian right?
Mr. Edwin L. Weisl, Jr.: Yes, Your Honor.
Justice Byron R. White: And you do then -- this have to distinguish between these cases and the cases of accretion.
Mr. Edwin L. Weisl, Jr.: I think it is necessary that they'd be distinguished.
I don't think we're under any difficulty in so doing.
Riparian rights really are akin to zoning rights and the whole bundle of permissive rights that a property owner is allowed to do provided it does not interfere with some greater public use.
Accretion really is a boundary question.
It's not a question of what the owner may do with his property.
Not a question to what extent he may invade tide lands for the purposes valuable to him.
It is really quite a different thing.
The state very ingeniously in the court below I think try to equate accretion with normal riparian rights but I think that is not the case.
I -- I earnestly commend Mr. Justice White your attention to Stevens against Arnold where Justice Holmes makes that very distinction.
The mere fact that an accretion also maybe cut off by the exercise of the state's paramount right to the use of its own tide lands, I don't think obtains here.
The state has not chosen to do that.
They have not built the major public improvements for example of considerable extents so as to cut off Mrs. Hughes and her co-owner to similar property from the Pacific Ocean.
What they have done is made it very possible for some new private owner who might buy from the state to build in front of her despite the fact that her boundary is suppose to be in her grant, in her federal grant of the pacific ocean.
I thank the Court.
Chief Justice Earl Warren: Mr. Hartinger.
Argument of Harold T. Hartinger
Mr. Harold T. Hartinger: Mr. Chief Justice and may it please the Court.
The case that's before the Court today is unusually complicated by the fact that it's hard to communicate in understanding of the problem that the Washington Supreme Court was attempting to solve.
What we have in the State of Washington is a westerly boundary line which borders on the Pacific Ocean.
Now, the State of Washington neighbor to the south is the State of Oregon, the Columbia River divides Oregon from Washington.
Then from the Columbia River north, we have a long sliver, a long piece of land which runs almost directly north called the Long Beach Peninsula and it's separated from the mainland via Bay, Willapa Bay.
Then you proceed north to another stretch of ocean beach until you come to Grays Harbor which is another inlet and then the beach continues north until the Straits of Juan de Fuca.
Now the strait is the entrance to the Great Puget Sound and Hood Canal, the large and internal waterway of the State of Washington.
Now, the area we're talking about is that area of the state which borders the Pacific Ocean and the reason we're talking about it is that from the Columbia River to the tip of the Long Beach Peninsula and then that little beach between Willapa Bay and Grays Harbor and then a portion of the beach north along the Olympic Peninsula has been building up by a slow imperceptible accretion.
Alluvium has been deposited along the shore.
What -- well, I suppose the boundary no longer is the boundary.
The boundary is moving to the west.
It's moving seaward.
Justice William O. Douglas: Are there areas along the coast further north for the -- under the movement of the east.
Mr. Harold T. Hartinger: The -- Your Honor knows the northern part of the coast is the Olympic Peninsula and the coastal area is part of the Olympic National Park.
Justice William O. Douglas: The state domain of whom?
Mr. Harold T. Hartinger: And in this area where the Olympic National Park is concerned, the accretion problem does not exist.
The accretion then commence --
Justice William O. Douglas: What I'm getting is what are the landing zone -- the high tide of moving east and the high tide line?
Mr. Harold T. Hartinger: Oh!
I -- in the area adjacent to the Olympic Peninsula, the boundary has remained constant so far as I know.
Inside some of the bays as for instance inside Port Willapa in an area that we're not concerned with there has been eroded.
Justice William O. Douglas: But if the tides -- the toning of the water was carrying the lands away and established a new high tide line to the east and that land was privately owned, would that just take from those?
Mr. Harold T. Hartinger: No, it wouldn't as I will explain the state law, it calls for a fixing of a permanent line so that the state either loses when there is accretion moving the line westerly nor gains when there is an erosion moving a line easterly.
Now, I -- now the reason that this case is so important to the state is that this is the ocean beach for the State of Washington.
This is the ocean recreational area for the State of Washington.
This is the part of the state where the people have always used the ocean and since 1901, the beach has been formally dedicated to the public.
Now, I have on the board a large diagram.
Justice Hugo L. Black: Can I ask you.
This seemed nothing with the accretion that goes all around the United States or is it peculiar to the State of Washington at this time at the Atlantic.
Do they have --
Mr. Harold T. Hartinger: If it is --
Justice Hugo L. Black: -- the problem of this kind.
Mr. Harold T. Hartinger: Well, this will be one of the problems that the Court will want to -- can turn itself with.
Now, we're going to be talking about state law and then the question is, is there some federal reason, is there some federal ground whereby this Court without a statute directing it to do it without a constitutional provision compelling it to do it.
Whether this Court is going to step in and change the state law.
Now, if the same thing happened on the --
Justice Hugo L. Black: I really wanted to have it further but other than that district problem is peculiar to the State of Washington, this place is this accretion going east.
Mr. Harold T. Hartinger: I think probably for such extensive areas, it might be unique but I'm sure that there is the problem of accretion.
But if there were a problem of accretion --
Justice Hugo L. Black: Whether there is not a problem of accretion eastward or westward when you get to the East Coast.
Mr. Harold T. Hartinger: Well of course, if it would be the same principle that we have here, the land would be building out to sea, it would be building east on the Atlantic whereas it builds west on the Pacific where we are.
But as we will find out, no one contends that this Court would have any concern at all with that eastern boundary and this will be part of our problem to explain to the Court.
Justice Hugo L. Black: Why?
Why is it different?
Mr. Harold T. Hartinger: Well, the position that's raised by the petitioner and supported by the Solicitor General is that the rule that they're asking this Court to intervene solely on the ground that Washington is a public land state solely on the ground that the property we're talking about here today was owned by the Government until 1866 but not since.
The Government is private with all title to this property in 1866.
Justice William O. Douglas: Is there any problem that would be common with the last two Oregon and California?
Mr. Harold T. Hartinger: If -- if perhaps could be common with Alaska or Oregon.
It will not -- the Government's or the Solicitor's position and petitioner's position would not affect California.
It would not affect Texas.
It will not affect the Gulf States.
It will just be the states that I mentioned.
Now I --
Chief Justice Earl Warren: Suppose the use of the states tide lands affected the erosion one way or the other, would you still say that the accretion belonged to the state?
Mr. Harold T. Hartinger: Yes, I would Your Honor.
This is not the fact but --
Chief Justice Earl Warren: No, but it could happen in any place along that coast --
Mr. Harold T. Hartinger: Yes, and --
Chief Justice Earl Warren: And it has happened along that coast hadn't it?
Mr. Harold T. Hartinger: Not to the consequence of the State.
Chief Justice Earl Warren: Well, I have in mind two cities in California along the coast.
One in Santa Monica and the other Redondo Beach and one the city who with the help of the state put in a breakwater which caused an accretion, that's in Santa Monica caused an accretion very similar and that which we have in this state now.
Now the high tide is almost quarter of a mile while they're out to see than it was 30 years ago.
Mr. Harold T. Hartinger: I suspect --
Chief Justice Earl Warren: I've -- then I have in mind the Redondo Beach situation where the city and the State put in breakwater and it tore away the land and tore away most of the buildings that were facing on the waterfront before that.
Now, with that change does the state gain that land as accreted?
Mr. Harold T. Hartinger: Yeah, under Washington law which may not be a general law.
Under Washington state law, if obstructions are placed in a navigable stream so as to carry away a bank that constitutes an unconstitutional damage in taking the property.
It's a -- if this is Washington state law under the Washington State Constitution so then if the state would build a bulk head to divert the stream and to carry away land that would -- the state would have to pay for it.
Now, there are two issues in the case and I can best illustrate the two issues with the large diagram which is on the board and I want to digress for a moment, the large diagram is a picture.
It's -- it's not drawn to scale.
I'm using it simply because the exhibit that is before the Court is down below there and it's not large enough for me to see it and I'm sure the Court can't read it.
Now, Mr. Miller is with me here, Mr. Miller point to -- on a large diagram a line which represents in the underlined.
Now, what we're dealing with is property which would be to the right or the east of the underlined as originally surveyed by the surveyor general for the United States, well, those lands were public lands.
From that point to the west, Mr. Miller -- the next line that's marked on there represents a point to which the build up of the land had proceeded from the time of original meandering to the date of Washington statehood which was 1889.
From that line then, we move to the next line where we still represent an area of build up by accretion.
The area between the last two lines represents the build up that took place during statehood or after 1889.
Then from the point Mr. Miller is pointing to now, we can go west to the -- to a line which represents the line of mean high tide, calculated according the U.S. Coast and Geodetic and then of course westerly of that line is simply a beach.
Now, in this case, we have a title dispute and it concerns the lands which were formed by accretion since statehood that is the area that's been pointed out now.
We also have a dispute over the top portion of the beach proper, the area between the line there and the line up above.
The line on the left again is the U.S. Coast and Geodetic mean high tide.
The line on the right is the line of vegetation.
Now these two lines are different.
Greatly, when we talk about the vegetation line which is the top line, which is the line which marks the limits of tide lands according to Washington law.
We're talking about a line which the water impresses upon the soil by covering it for sufficient periods of time to destroy vegetation and to make the lands value this for agriculture.
This definition is the same definition which the State of Washington uses to locate water boundaries of lakes, and rivers of streams, it's the same definition which the United States uses when it measures the extent of its navigational servitude.
It's a commonly understood concept.
It's a commonly applied concept and that marks the limits of tidelands according to Washington Law.
The second line, the U.S. Coast and Geodetic line is a mathematical computation on the west coast of the United States we have tides -- high tides twice daily.
I understand that this is the situation similar phenomenon on the Atlantic side of the United States whereas in the Gulf of Mexico there is but one high tide and low tide per day according to the classifications of the U.S. Coast and Geodetic.
Now, twice a day then the tides flow from the left to the right up the beach.
One of these tides is higher than the other tide.
So we have one higher high tide, one lower high tide.
And these high tides then that we have actually flowing on the beach are converted to mathematical calculations by the U.S. Coast and Geodetic which eliminates any action on the water by spacious, by winds, by storms, by run on the beach, it reduces tide level to a mathematical representation of the forces which the sun and the moon exert upon the water.
It's a theoretical concept so then this is what Professor Corker calls the waveless ocean from which they start to work their formula.
Now, then they take the -- they take the changes in the tides, their formulas and spread them over a year, a period of 19 years and then they calculate an average so they will have these averages.
They will have mean higher high tide with --
Justice Byron R. White: With this including with the part of the case all of these would be irrelevant.
Mr. Harold T. Hartinger: No, no.
The -- as a matter of fact, the difference between -- the difference between mean high tide and the line of vegetation is the major difference between us.
The area of the beach that --
Justice Byron R. White: You mean the accretion is saying is really no --
Mr. Harold T. Hartinger: Well, the accretion matter is a major issue but it involves a 175 feet of -- above the beach.
Justice Byron R. White: Yes, but it's still going on with --
Mr. Harold T. Hartinger: Yes, it is.
Yes, it is and if we don't, we do not wait.
But if --
Justice Byron R. White: The vegetation line is really -- if you want it to be a permanent line that will go wherever put it into accretion.
Mr. Harold T. Hartinger: Yes, I -- the vegetation --
Justice Byron R. White: The way of saying accretion -- the rule of accretion is out of the window.
If we do -- if we did say that the rule of accretion is not out the window whether the land that has the -- the owner does have the right of accretion then --
Mr. Harold T. Hartinger: Your Honor is that -- Your Honor is right.
The -- if we're sustained on accretion then the matters that we're talking about now are taken into consideration only when we determine that 1889 dividing line.
Justice Byron R. White: And does your -- it doesn't really matter the fact that the actual vegetation line came?
Mr. Harold T. Hartinger: Yes, it does.
Justice Byron R. White: And it has -- that you want to have it a permanent --
Mr. Harold T. Hartinger: Well, when we talk about the beach proper, when we talk about the vegetation line, we talk about a line that changes as the reach of the water changes because it's a line which the water establishes.
Justice Hugo L. Black: At what rate has this accretion change in growth?
Mr. Harold T. Hartinger: In --
Justice Hugo L. Black: What the defendant state?
Mr. Harold T. Hartinger: In -- on this property here, the growth of the beach has been 175 feet.
The case before the Court, it has been 175 feet.
There are cases --
Justice Hugo L. Black: An average amount each year.
Mr. Harold T. Hartinger: I think the growth rate has been constant.
Yes, Your Honor.
Justice Potter Stewart: 175 feet since when?
Mr. Harold T. Hartinger: Since 1889 which is the date of Washington statehood.
Justice Potter Stewart: Yes, and how about the -- the patent was in what, 1866?
Mr. Harold T. Hartinger: The patent was in 1866.
The meander line was established in my recollection is approximately 1858 between the meander line and the 1889 line.
Now this --
Justice Potter Stewart: It could be even more.
Mr. Harold T. Hartinger: There is approximately 350 feet of accretion prior to statehood.
Justice Potter Stewart: To the prior -- 350 feet between 18 -- about 1860 and 1889 --
Mr. Harold T. Hartinger: And the --
Justice Potter Stewart: -- and 175 feet since.
That would seem to be slowing down the rate of accretion with those figures --
Mr. Harold T. Hartinger: Yes, Your Honor.
At this particular respondent, yes, Your Honor.
Justice Abe Fortas: Are you suggesting that if we should decide that federal law controls -- we could nevertheless accept the vegetation line for purposes of demarcation?
Mr. Harold T. Hartinger: Yes, Your Honor.
This is precisely the position we take.
Justice Abe Fortas: Well, at first you take the position of federal law that should not control it, is that right?
Mr. Harold T. Hartinger: We take the position that number one, wash on -- first of all, we should divide this between the accretion problem and the beach problem.
Both questions I must necessarily accreted both of them but in argument I must divide them to make my position understandable.
On the accretion problem, we recognize that the common law prior to Washington became a state, then our Constitution destroyed riparian rights, all of them.
The right of --
Justice William J. Brennan: If you come to the (Inaudible) and you still recognize that United States has accreted the lands to its riparian land.
Mr. Harold T. Hartinger: This is right, Your Honor.
Justice Byron R. White: Well, how do you -- how can you make that provision?
Mr. Harold T. Hartinger: No.
Justice Byron R. White: Your Constitution says that once you became a state, the accretion rights end.
Mr. Harold T. Hartinger: Your Honor, the explanation is this.
We assert that the state has the power to change the common law as it affects privately owned lands but our Washington Supreme Court denies that Washington law has the power to change the common law as it pertains to the lands owned by the United States.
Justice Byron R. White: If the United States expressly in the deed, if this deed that we have in this case had expressed those, reported the grant of accretion, you wouldn't be here?
Mr. Harold T. Hartinger: We have a constitutional problem then which would be another problem.
The ownership of the beach, the ownership of the tidelands of the State of Washington, the property it acquired at the time it became a state was a property it acquired as an incident of its sovereignty, it was not by granting the Federal Government.
Under Pollard versus Hagan we learned that ownership of tidelands goes with sovereignty and the sovereignty it goes with is state sovereignty just as we learned in United States versus California that the ownership of offshore lands is an incident of sovereignty but in that case, it's an incident of national or federal sovereignty.
And then the question would be under the equal footing doctrine, constitutional doctrine whether the United States which is borrowed by the equal footing doctrine from subtracting from the state, that sovereignty which other -- the original 13 states had whether -- because the original 13 states would have the right to change the common law whether the Federal Government could have denied the state that right.
I wouldn't know how to answer the question but that is not the problem here because the patent does not say anything about this.
As a matter of fact, this Court --
Justice Byron R. White: Although, you concede that although the patent didn't say anything about it nevertheless the landowner had the right to all the accretions up to the date that Washington became a state and that is by virtue of that his deed which did not say anything about accretion.
Mr. Harold T. Hartinger: No, Your Honor.
It was by virtue of the common law which was in existence at that time.
Not a --
Justice Byron R. White: Yes, but the common law in connection with this grant.
Is the common law applied to the grant -- that common law is applied to that grant as it would have been the same as though the grant had said so expressly?
Mr. Harold T. Hartinger: Well, the difference is that the common law control -- the right to accretion has been held by this Court in Joy versus St. Louis, a case which must be read and must be understood on the question of accretion, Joy versus St. Louis in Volume 203 of United States reports.
The Court explicitly said that the right to accretion under the patent given by the Government was riparian right.
The Court specifically said that an issue over that accretion was not a federal question and --
Justice Abe Fortas: I suppose your position is that if this had always been -- let's just assume somehow rather that this would always been private land and that date when they had in here an issue instead of a federal patent issuing, there had been a transfer to another individual, now from that date to the date when the stated doctrine it's conflicting land policy by virtue of the common law, the new owner would have done it prior to accretions, it would have been entitled to acquisition is that right?Mr.
Mr. Harold T. Hartinger: Yes, Your Honor.
Justice Abe Fortas: And you're saying that the state could come in and then say that as of 18 -- what was it, ‘89?
Mr. Harold T. Hartinger: 1889.
Justice Abe Fortas: As of 1889, the accretion will no longer go to the private owner but will go to the state, isn't that right?
Mr. Harold T. Hartinger: That's right, Your Honor.
Justice Abe Fortas: And you're saying that once a Federal Government issued the patent and divested itself here saying of all of its interest then the land for all purposes including this purpose should be treated as private land, isn't that right?
Mr. Harold T. Hartinger: Yes, Your Honor.
There -- we do concede that there are limits beyond which the state cannot go but we are not exceeding them here.
Now the right of this --
Justice Abe Fortas: Yes, but the purposes of this problem anyway, you're saying that the land once the Federal Government issued its patent the land ought to be treated like any other private land.
Mr. Harold T. Hartinger: Or put it better yet, once the Federal Government gave its patent.
The land ought to be treated the same as if that patent had been given by Great Britain or Spain, by Mexico or by the state subject to general law.
Now, the power of a state to --
Justice William J. Brennan: Well, I don't quite understand that.
What do you think the rule was followed with respect to accretion?
Mr. Harold T. Hartinger: The --
Justice William J. Brennan: I thought the rule was -- I know the state law will make the law eventually varied common law was preparing --
Mr. Harold T. Hartinger: Under common law until it's changed, the riparian owner will get the accretion --
Justice Byron R. White: Well, how do you say if the law that you were saying is as bad it could be (Inaudible) --
Mr. Harold T. Hartinger: So far as the federal question is concerned, Your Honor --
Justice Byron R. White: What about in Great Britain, what's the rule of Great Britain (Inaudible)?
Mr. Harold T. Hartinger: That would have been the rule but nobody would challenge the state law if we had a grant from Great Britain.
The arguments made that this Court should intervene.
In this case for the simple and sole and the only reason that the patent was given by the Government over a hundred years ago and we think that it makes no sufficient case for --
Justice Byron R. White: What the United States say, they think the same argument today if the grant is made today?
Mr. Harold T. Hartinger: The --
Justice Byron R. White: And in this case, that should turn on the grant has been made before what it became a mistake.
Mr. Harold T. Hartinger: And -- no, it does not accept that if it's made after statehood, of course the accretions that have formed after the date of patent would go to the patent deed.
Justice Byron R. White: How about after.
Mr. Harold T. Hartinger: Because I'm speaking about after statehood, Your Honor.
Prior to statehood, the accretions that had formed --
Justice Byron R. White: Would the United States position with regard to the accretion would be the same today -- you were saying that this grant had been weighed after the statehood?
Mr. Harold T. Hartinger: Yes, it would.
Justice Byron R. White: Alright.
Mr. Harold T. Hartinger: Now, I want to have Mr. Miller point out at present time the beach.
In 1901, this beach was dedicated to the public and we've illustrated the area that the public had their rights in up to the top of the beach and administratively it was construed that this beach included that a 175 feet of accretion, that portion there, our Supreme Court leaves us in doubt.
The legislature after the decision of the Court then comes in and speaks unmistakably, we gave a seashore conservation area which extends from extreme low tides or else we can get up to the vegetation line and that is a public beach now.
The accretion between the public deeds is held for the benefit of the seashore conservation area access and other things that can be used in connection with the beach.
Now, when we talk -- the question about changing the common law doctrine of accretion, now that question has been before the Ninth Circuit Court of Appeals in a case construing a California statute.
The California statute was subsequently reinterpreted by the California court in a different way than the Court of Appeals had it interpreted it.
But nonetheless, the Western Pacific case, Western Pacific Railroad versus Southern Pacific Company is the California case which delves into the problem and justifies the state's power to change accretion if for instance you have a sloping beach and the state fills along the top of the beach disregarding the accretion problem.
But if our -- yes, if the state builds across the top of the beach, that fixes the line.
The state can do any number of things, it could put those bulkheads which would cause the beach to build up and this would fix the property line and all we're doing here is accomplishing the same thing by a law rather than sending a man out that would pick and shovel to pick the dirt up to fix the line, you do it by law.
Justice Hugo L. Black: Has any of this accretion is settled on land that is privately owned that time.
Mr. Harold T. Hartinger: In the area that we are primarily interested in, the adjacent lands are almost entirely privately own.
Justice Hugo L. Black: Is that the ones that the accretion was settled on?
Mr. Harold T. Hartinger: Yeah, in front of those.
We -- the tide lands that built up so that once lands which were tidelands are raised above the level of the ocean by the deposit of alluvium and --
Justice Hugo L. Black: What happened then I guess what you say is that the Government probably gotten more land out in the open ocean than it had have before but it's gotten to the expense of private owned lands right on the coasts?
Mr. Harold T. Hartinger: No, we do not take land at the expense of the private owners.
Justice Hugo L. Black: How could you say that some of that accretion had settled on land and owned by private owners.
Mr. Harold T. Hartinger: No.
It settles on the tide lands.
Justice Hugo L. Black: I mean the new accreted land that comes to your land by accretion.
Mr. Harold T. Hartinger: No, it always settles on tidelands and builds the tidelands up so that the tidelands are raised above the level of the ocean.
It does not deprive the private owner of any property.
What the private owner insists on in this case is a rule of law which will let in acquired title to the lands which once were tidelands.
Lands which concededly once were state owned.
He wants to acquire tideland property.
He wants to acquire it or he wants to acquire it when the alluvium deposit raises the level of the tideland above the level of the ocean.
It's not a question of the state taking property away.
It's a question of the property owner enhancing its ownership by extending it.
Now, we believe that this common law doctrine by which the property owner could do that can be modified by the state in the same way that the state modifies the common law owner's right to take water from a stream, this riparian right to take water.
Justice Hugo L. Black: Do you think the provision the Government did not own that before the accretion was set alone therefore she can't own it now.
Mr. Harold T. Hartinger: The state most definitely did own it before the --
Justice Hugo L. Black: The state did?
Mr. Harold T. Hartinger: Yes, the state not --
Justice Hugo L. Black: State or private owner.
Mr. Harold T. Hartinger: The state owned the land before the accretion settled on.
Justice Hugo L. Black: All of it?
Mr. Harold T. Hartinger: Yes, Your Honor.
And the private owner seeks a principle of law which lets him extend his ownership, widen his ownership.
That's the case that we have.
Now, the interesting thing that we speak about accretion if you look at the --
Justice Hugo L. Black: What does the Federal Government hace to do with the questions below on the land of that kind?
But you say it has nothing --
Mr. Harold T. Hartinger: I don't think that this Court has any right to pass --
Justice Hugo L. Black: Isn't that in the statute?
Is there any statute?
Mr. Harold T. Hartinger: No statute.
No, Your Honor.
I don't think that this Court has the right to review the wisdom of a state law.
I think that it's foreclosed and I think that there's a federal interest which lets this Court step into this area.
Justice Hugo L. Black: And you conceded that the land was owned by the state before the accretion was settled on it?
Mr. Harold T. Hartinger: Yes, it is Your Honor.
Justice Hugo L. Black: Now, how did the Federal Government claim that it's got no ownership?
Mr. Harold T. Hartinger: The Federal Government has had no ownership that's affected by this case --
Justice Hugo L. Black: Are any of its successors entitled?
Mr. Harold T. Hartinger: The -- this -- the Government's successors acquired their title in 1866 and under a principle of law that applied until the State of Washington changed it, they were able to extend their ownership westward.
Then the State of Washington change this ownership -- change this rule of law and said that henceforth, the titled state is right where it was, the boundary will not move.
Now, on both of the issues --
Justice John M. Harlan: Now, what you're saying in essence of -- it was a little bit mistake.
But what the scope that the patent itself, it is not its origin (Inaudible) --
Mr. Harold T. Hartinger: That's right
Justice John M. Harlan: -- the law it has in fact --
Mr. Harold T. Hartinger: That's right, Your Honor.
Justice John M. Harlan: (Inaudible)
Mr. Harold T. Hartinger: That's our position, Your Honor.
Justice Abe Fortas: If I may try to put it in another way what you're saying is that the force of the patent was exhausted and there was issue, isn't that right?
Mr. Harold T. Hartinger: On this point, yes, Your Honor.
Now, the state's position and the state's right to do what the State of Washington has done is not a startling proposition.
When for instance the line of vegetation versus the mean high tide line, the State of Washington is doing nothing more than develop the common law and they're developing it from the decision of this Court in San Francisco versus Le Roy which was decided about the time Washington became a state.
San Francisco versus Le Roy, the vegetation line rule is still the rule which the Secretary of Interior instructs his own employees to follow and Section 520 of the manual of instructions.
As a matter of fact, the same manuals speaks of the problem of accretion and the Bureau of Land Management is instructed to serve an accretion in front of the public domain only if that accretion would be privately owned if it were in front of private uplands.
In other words, the recognition is found by the national government's land administrator of the possibility of the state rules of the kind that we're talking about here.
Justice Potter Stewart: And this is with respect to the Pacific Coast?
Mr. Harold T. Hartinger: To both questions.
This would be to find --
Justice Potter Stewart: It's not confined to rivers or something like that?
Mr. Harold T. Hartinger: No.
This Court -- I think that the accretion language has been directed primarily to rivers, however, we follow the moving boundary on rivers in Washington.
Justice Potter Stewart: But your -- but your regulations of the secretary I'd understood were perhaps confined to rivers and didn't have anything to do with the --
Mr. Harold T. Hartinger: No, the --
Justice Potter Stewart: -- coast of the Pacific Ocean along the west coast of --
Mr. Harold T. Hartinger: No, it includes the Pacific Ocean because these instructions primarily relate to the -- they relate to the public domain which is the western state primarily.
Now, the situation that we've got here --
Justice Byron R. White: Could you say that the pacific rundown (Inaudible).
Mr. Harold T. Hartinger: Washington law recognizes moving boundaries on rivers.
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: By a reason of accretion and erosion.
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: We have no man's land.
We have -- we know what the law is on rivers and streams.
We know what the law is on the ocean.
It's a matter of dispute frankly as to how this law will be applied to the anterior waterways.
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: I think it's by accident.
When we deal with -- when we deal with property law, we're very much concerned with the certainty and definiteness and we want to know what's happened before.
For instance, in this area of the public beach on that Long Beach Peninsula that I was telling --
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: That's what the Washington Supreme Court said in a --
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: The --
Justice Byron R. White: What do you have -- did you say that it might be under the law that the --
Mr. Harold T. Hartinger: It's not --
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: It's not logical, Your Honor, but that is the Washington law and we cannot -- we must accept it and the Court -- the Court I think will adhere to this prior river case and go forth and recognize the accreted title because of the rules of property.
Just as in the cases that we have here in the vicinity of this lawsuit, there have been a series of 73 cases affecting over 3 --
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: Yes, definitely.
Justice Byron R. White: (Inaudible)
Mr. Harold T. Hartinger: Yes, the same rule.
But rules of property are very important and it's important that they'd be conducted and formulated at a local level.
Professor Corker who is cited by -- we all cite him.
Professor Corker is very upset with the Washington Supreme Court in what it did.
But the way he puts it is this, he said, if they're wrong, they have the right to be wrong.
Now, I don't agree with him about his judgment of Washington law but I do agree with him about the fact that it's a state matter and that --
Justice Abe Fortas: Does the state of Oregon dealt with this problem?
Mr. Harold T. Hartinger: The State of Oregon so far as I know has no appellate decisions.
But the State of Oregon has a statute which has deprived the upland owners of a title to accretion or reliction formed after 1917 along navigable lakes.
We have cited the statute.
Justice Abe Fortas: Just along navigable lakes?
Mr. Harold T. Hartinger: Just along navigable lakes.
Justice Abe Fortas: And is there any -- is Alaska have any law on this?
Mr. Harold T. Hartinger: Alaska has no law.
I would -- no, there is nothing that I can report either in their statutes or in the decisions of the courts.
Justice Hugo L. Black: What was this land that could not possibly -- being 500 feet in 10 miles a large number of owners of property about ten miles divided or subdivided under the Government claim of his own land and the land somehow I'd like to hear and I'd like that he can show?
Mr. Harold T. Hartinger: Yes, --
Justice Hugo L. Black: If you can -- should do that?
Mr. Harold T. Hartinger: That -- there was a suggestion that at the time of the Government's patent, there may have been so much land between the meander line and the ocean that the Government's patent would not appear a title to the ocean but that was merely a suggestion offered by the solicitor in order to round out the body of the law and that is not a problem in this case as I understand the solicitor's prefound the merits.
Justice Hugo L. Black: Now what -- I thought this is a logic of reasoning --
Mr. Harold T. Hartinger: Well, it's very --
Justice Hugo L. Black: -- would the Government get control of them and they can become a federal question?
Nearly because 10 miles has been covered by --
Mr. Harold T. Hartinger: Well, the theory would be that when the Government gave its patent it expected the land that it would convey to be approximately the acreage shown in the Government survey.
If that meander line was grossly out of place, the Government would take the position that it could not have intended to give 10 miles of land.
They simply intended to give the acreage on the survey and they cite a decision of the Interior Department and I believe there is a judicial authority which would support them but that is not a problem in our particular case.
Justice Hugo L. Black: But it's a problem isnt?
This is 500 feet and that they could not.
Mr. Harold T. Hartinger: No.
The -- we're talking here about something that it's all together different.
We're talking about beach in front of the property.
We're not -- we don't have the problem where the Government, the national government or the Federal Government has any claim.
Justice Hugo L. Black: Oh, I understand you.
But how would if -- if that he own this, how would the Federal Government gain anything.
Mr. Harold T. Hartinger: They would not -- they would not except under that one distinction, that one convincing problem that I just spoke to.
The Federal Government has no interest in any of this land that we're talking about today and it owns very little land in the southern part of the ocean beach, the southerly part where the bulk of the accretions have gone.
Chief Justice Earl Warren: Mr. Hartinger, may I ask you if the United States Government stood in the place of Stella Hughes in this Court today on the same facts, would you be here?
Mr. Harold T. Hartinger: I'd be here on the ocean beach issue.
I would not be here on the accretion issue.
I'd be here on the definition of the --
Chief Justice Earl Warren: Where is -- now, let's talk about the issues in this case, you would not be here?
Mr. Harold T. Hartinger: On the accretion issue.
Chief Justice Earl Warren: -- on the accretion, yes.
Mr. Harold T. Hartinger: I would be here on the disagreement for the top part of the beach because we can turn --
Chief Justice Earl Warren: Well, who owns it, that's what I'm trying to --
Mr. Harold T. Hartinger: We would contend that the state owned it and we would contend that that boundary line again is located by a legal rule or a common law rule.
We adopted our rule which was this Court's rule.
We adopted this Court's rule at about the time of statehood and what we say is that since it's a reasonable and more rational and more logical extension or development, if you will, of the common law that this Court ought to accept it that this Court ought not to attempt to follow a rule like the Borax rule theoretical rule which fixes through a mathematical formula which fixes a boundary in this case, 386 feet below the bottom of the beach as one attorney remarked to me, it's not the wisdom of Solomon to cut the beach in half.
We think that the state has the freedom to develop the common law concept of what's the ordinary limit of the tidelands which the state would own irrespective of the accretion issue.
Justice Byron R. White: This involved overruling Borax that argument.
Mr. Harold T. Hartinger: I don't think it does but Professor Corker in this article disagrees with me and I have stated in the brief for that reason, I have stated that if it does, I would ask this Court to say that the State of Washington can adopt any rule it wishes.
It can adopt the Borax rule, it can adopt the vegetation line rule, it could adopt the Californian mean high tide line rule and -- but the Borax case and how I have construed it.
In Borax, the problem of the argument was different in Borax, dealing without a record, dealing on the basis of the assumptions of counsel, the purpose of the impression that the line of vegetation, that the line that we're seeking here was below the line of mean high tide.
Now, the normal way to resolve an issue such as that would have been for this Court to say that if that's the case, it's no concern of ours but the Court went on and said that the rule that was devised by the Court of Appeals ought to be applied as a federal rule and on its face, the case simply says hat a state may not disclaim interest in land below the mean high tide line.
That's what it said on its face and --
Justice Abe Fortas: And one of the vegetation that would contend for is an ambulatory line, is that right?
So it depend -- let me see if I can get this clear in my own mind.
If the Federal Government following the Chief Justice's question, the Federal Government still own this land, you would not claim that the service state claim to the accretions against the Federal Government?
Mr. Harold T. Hartinger: We would not, Your Honor.
Justice Abe Fortas: But you would say that the demarcation line is not mean high tide which the federal rule I take it, generally regardless to this federal rule but that the line of demarcation is the line of vegetation as it exists at the time the state may -- at the termination.
Mr. Harold T. Hartinger: Yes, Your Honor.
Yes, Your Honor.
Justice Byron R. White: Isn't that the changing line?
Mr. Harold T. Hartinger: If United States Your Honor, we would have a changing line, an ambulatory line.
Justice Byron R. White: The United States --
Chief Justice Earl Warren: Well, I suppose if it belonged to the United States, it could sell it, couldn't it?
Mr. Harold T. Hartinger: The United States could sell --
Chief Justice Earl Warren: Everything that it has?
Mr. Harold T. Hartinger: It could sell it, yes.
Chief Justice Earl Warren: Suppose -- then the United States sold some of its waterfront property tomorrow, it would take up to the present mean high tide line, would it?
Mr. Harold T. Hartinger: We would say vegetation line, Your Honor.
Chief Justice Earl Warren: Well, suppose the Government we adopt the federal rule only to say that it's a mean high tide line.
Mr. Harold T. Hartinger: If this Court nullifies the state law then this Court will have to --
Chief Justice Earl Warren: No, but let's put it in practical term not nullifying anything.
I will just deal with the facts.
If we were to say that the federal rule of mean high tide applied then the Government could sell everything it has, couldn't it, to someone else?
Mr. Harold T. Hartinger: Yes, it could.
Chief Justice Earl Warren: And the mean and anyone to whom it sold the present time would have -- would own up to the mean high tide line, wouldn't it?
Mr. Harold T. Hartinger: It could.
Chief Justice Earl Warren: But now does that mean that because Mrs. Hughes has owned this property since how long back, I don't know, that she would be deprived of her land in that area but that some new purchaser who came from the Federal Government would be entitled to it?
Mr. Harold T. Hartinger: The new purchaser would own more land than Mrs. Hughes because they -- well, the Government is owner -- the accretion rule can't be changed by the state and therefore the Government acquires state land to the doctrine of accretion whereas Mrs. Hughes who is subject to state law does not acquire it.
One would have a boundary that would be seaward to the other.
When the Government if today made a conveyance, its patentee would take the same land that the Government had but of course the Government's patentee would take subject to the right of the state change the law and of course state law does become operative at that point and the owner who took today would not then be able to extend his ownership through accretion in the future but the --
Chief Justice Earl Warren: Those who get -- does the state own the tidelands affirmed upon the grant owned by the United States?
Mr. Harold T. Hartinger: Yes, Your Honor and that --
Chief Justice Earl Warren: If they do own it, why wouldn't they be entitled to it just as much is it that was implied with ownership?
Mr. Harold T. Hartinger: I argue that question to the Ninth Circuit and the Ninth Circuit ruled against us and that is the case that's cited to the Court as Washington versus United States.
Because of that case, the Washington Supreme Court gave -- the Washington Supreme Court said that that case binds them.
They construe that case as announcing a federal law, announcing federal law that the state couldn't change the rule of accretion and the Washington Supreme Court then acknowledged this federal case, this Ninth Circuit case.
That's the --
Chief Justice Earl Warren: By what principle did it distinguish that case from this?
Mr. Harold T. Hartinger: On the basis that -- well, the Federal Government is the owner of the property.
The State is powerless to change the law which affects the federal ownership.
Under the federal constitution the Congress has the power to make all needful rules and regulations concerning the public domain, the Congress and not the state.
So this is the distinction.
Justice Abe Fortas: Well, if the Federal Government today saw some land which he has owned today, I suppose the logic of your position would require to think about.
But I suppose the logic of your position was referring to say that the purchaser acquires that land with the seaward boundary defined by federal law as of today.
Mr. Harold T. Hartinger: Federal law which incorporate state law as --
Justice Abe Fortas: Well, that's your argument but --
Mr. Harold T. Hartinger: Yes.
Justice Abe Fortas: -- I don't say you square that with the position you've been taking in your discussion with the Chief Justice.
Mr. Harold T. Hartinger: No.
Most definitely, we can square that.
I do not mean to be inconsistent, no.
The -- you have a problem of putting a line between the federal ownership and the state ownership.
We're assuming that the federal owner today and the state tideland owner today have to have a boundary between them.
What we insist is that since we all agreed that this is a common law concept, the federal law should follow the state law and --
Justice Abe Fortas: Well, what you're -- that's precisely the difficulty of it which what it was trying is that the federal law is between sort of functus officio because as soon as the state adopted it its law and I don't see how you can say that the federal law will have vitality so long as against -- the federal law have vitalities so long as the Federal Government own the land but only if the federal, only as of the date when the state adopted its law.
Mr. Harold T. Hartinger: In one case, we're talking about a change in law applicable to the Federal Government.
In the other case, we're talking about the development of real property law.
It's not a change of law.
We have a state rule which is founded directly on the rule of the Supreme Court that was decided in about 1890, very close to statehood and we followed that rule and we are simply asking that this Court not force us to change its mind if this Court now decides there it should be a better rule for fixing the boundary and the reason why we think that this Court ought to say that the boundary follows the state law is because if this Court goes to all the trouble of formulating a rule to divide uplands from tidelands, the rule will apply in Alaska, Washington and Oregon.
It won't apply in California because they don't make the claims we make.
It won't apply in Texas because they're not a public land state.
It won't apply in the Gulf if there's one tide a day because that would lead to a different formulation and it won't apply in the other 13 states because they were the original states.
So we don't think that this Court should be making real property law for one state or three states.
Chief Justice Earl Warren: We'll recess now.
Rebuttal of Charles B. Welsh
Mr. Charles B. Welsh: Thank you, Mr. Chief Justice.
A few pause in rebuttal, first, Justice Douglas asked the question if there is any land in this vicinity, ocean frontage that was eroding just north of this property in question.
There has been nearly five miles of it erode and the erosion had been nearly a quarter, I mean a mile and a quarter in depth as Justice Hill said in the dissenting opinion, the State of Washington and the public must swim out a mile and a quarter, dive down to about 45 meters in order to enjoy their tideland under the Hughes opinion.
Now, counsel has mentioned that the State of Washington since 1929 has sold 90% of the water frontage in Grays Harbor County, the adjoining county to the north.
All of the state deeds containing an ambulatory boundary line stating, first to call second class tidelands.
Such an appellation doesn't exist either in law or fact.
There's no such thing.
They are uplands but the deed reached to the line of ordinary high tide as the same now or hereafter may exist.
After this property has all been solved about 30 miles of it, the states run out on erosion frontage.
The Supreme Court has generated more in the Hughes case for the state to sell.
Now, the counsel has said that the Hughes decision is not startling, I agree.
To us it's incredible.
As a result of this decision, we have five rules concerning water boundaries in the State of Washington, one concerning navigable rivers and streams.
This is an ambulatory boundary following the common law concept.
Next is the ocean and probably bay frontage water bounded which under the Hughes case adopts a new completely changed theory.
Then we have a no man's land.
These waters in between the amounts of your rivers, your bays, your ocean, no one knows what that law is except that it's bound to be under any future decisions something different.
Then we have another boundary line concept if the present owner is the United States Government.
Justice Hugo L. Black: What do you intend to take (Inaudible)?
Mr. Charles B. Welsh: If I follow counsel's interpretation with Hughes and fully admit that I can't interpret Hughes logically.
The state was saying to the United States Government, you own all of the land that you originally owned to the November the 11th, 1889.
Justice William J. Brennan: Even as to the lands that they disposed of only now?
Mr. Charles B. Welsh: This as my understanding of the counsel's position or I could be mistaken.
He may have said that Government's line would depend upon the line of vegetation.
In any event --
Justice William J. Brennan: That is where that is now?
Mr. Charles B. Welsh: No, as I think it's or it would be as of 1889.
I don't know at least the position of the Government as owner selling now would be different than the United States Government selling to a private individual now.
There would be two different concepts.
It is then an applied rule governing navigable waters.
Now, I don't know that any criticism would be more just or perhaps cruel that Justice Harlan in his dissent.
He said Your Honors that there has been a new circuitous and rather devious root rarely explored followed by the majority.
I think if I will conclude, in our opinion Justice Hill is a wise man.
I thank you.
Chief Justice Earl Warren: Yes, you have some more time.
Use some more of your time Mr. Weisl.
Rebuttal of Edwin L. Weisl, Jr.
Mr. Edwin L. Weisl, Jr.: Chief Justice, I thank you and the Court for this additional opportunity to state that I am very, very surprised that what is essentially a simple issue, has become deceivingly so difficult when the Government's position in this case simply is that they vested right to accretions that in this case happens to arise where a federal patent cannot be taken away by legislative fiat such as the Constitution of the State of Washington as recently interpreted by the Supreme Court of Washington in Hughes.
Justice John M. Harlan: But it argues that this power doesn't go right through the patent (Inaudible).
Mr. Edwin L. Weisl, Jr.: I do not say that there is any magic in the fact that this land derives from a federal patent, Your Honor.
There is no question that upland owners had as an indicia of their ownership of land, their right to a boundary defined in the Pacific Ocean.
Now, whether this is with the federal patent or not, it isn't in this instance so important and it might well be ownership of land in one of the 13 original states on the seashore.
The state then by Constitution comes and takes this away which has been long held to be a vested right of ownership in your land.
Your own land on the Pacific Ocean under the rule of the Hughes case in the State Supreme Court of Washington, you no longer do own land on the ocean you own land quite a considerable way back not at all what you have bought, not at what you are patented.
Justice Byron R. White: But suppose that that is the consequence that if you apply the common law rule why the common law does all have land on the Pacific Ocean that the state may change the common law why not certainly the result that perhaps you might not any longer own land on the Pacific Ocean.
Mr. Edwin L. Weisl, Jr.: Well, I certainly think that if the state purports to do that legislatively that it involves to something quite different than a mere change in law.
It amounts to a taking a confiscation of property which the Fifth Amendment requires payment for.
It does not merely change the rule -- yes, this is not -- this is an alternative approach to the Hughes case if you might say land can be taken, we never quarrel with that.
Justice Abe Fortas: But you're saying aren't you that it doesn't -- it is of no significance here that this title was acquired by a federal patent, that it end that federal patent has been -- the legal consequences would be the same that is if the rule as of the time the predecessors in title acquired this land.
If the rule at that time was that the accretion belonged to the uplands up to this line and then you'd say that the state can never take that away and it's not a correction of the supremacy of the federal law, is that your position now?
Mr. Edwin L. Weisl, Jr.: Well, I think that first of all because it's a federal patent, we do have a federal question involved but I say even if that were not, I think the same rule would apply in that while the state can't take it away.
They can take it away only under circumstances where just compensation is due and wholly and this is something which Stella Hughes owns.
She owns her rights to have her boundary on the Pacific Ocean.
The extent that the state now said, we own the land between the Pacific Ocean and some of the line that pick out -- I'm not sure what the Supreme Court of Washington picked out here.
I think I know these lines of vegetations.
You own -- you do no longer own on the Pacific Ocean.
Your property is no longer the same property that you bought and paid for acquired by patent.
Therefore, Mrs. Hughes has been deprived that a substantial indicia of her ownership.
The value of her property was no doubt that it wasn't on the Pacific Ocean.
That I think is the sound underlying basis for the common law of accretions which is applied universally as far as I can tell in common law countries except the State of Washington since Hughes which was a holding that was not sound and based in the interpretation of its own Constitution.
Justice Abe Fortas: Well, what you're saying is that common law of accretions is nothing more than -- it is nothing less rather I'm going to say than the statement of that I'm outwitting essential constitutional principle?
Mr. Edwin L. Weisl, Jr.: I would say this.
The property is acquired and owned because of its location and value.
You buy property that abuts upon a river, that abuts upon an ocean.
Your key describes it as such.
Imperceptible accretions really do not adversely affect anyone else to that extent therefore you have a right to keep your property abutting upon that body of water.
Justice Byron R. White: The common law also gave riparian owners the access to water.
Mr. Edwin L. Weisl, Jr.: Yes.
This line --
Justice Byron R. White: And yet you wouldn't suggest that the state has to pay compensation for cutting off access to the water.
Mr. Edwin L. Weisl, Jr.: No.
This is a different matter Mr. Justice White.
Justice Byron R. White: What's the difference?
You just said it's a different result.
Mr. Edwin L. Weisl, Jr.: No, I think it's a different matter that these rights are rights to use something that belongs to someone else.
The flow of the stream, the depth of the stream, the water in the stream doesn't inherently belong to you.
It is in essence sovereign property that under riparian law principles, you are allowed to use as long as the sovereign doesn't come in and apply to a higher public use.
Riparian rights are somewhat like what you are permitted to do under zoning laws that if the public permits you to do this until such time that the public has a greater and higher use.
These very points that we assume will soon be before this Court in the case of diagrams I believe against the United States whether the compensation must be paid for the riparian rights.
But the courts in dealing with these two questions, is accretion a vested property right?
Is it like Riparian rights that almost universally and this reached the conclusion that a right to accretion is not the same thing as the permissive riparian right and I again invite -- earnestly invite this Court's attention to Stevens and Arnold in which Mr. Justice Holmes drew that distinction.
Justice Potter Stewart: Mr. Weisl, as I understand your statement now, you think this case basically boils down to a due process, Fourteenth Amendment case that this property included the right to any accretions as a property right and for the state to take that away whether by exchanging its law, however, it cannot do so without just compensation, is that it?
And that would be true, however, the property were acquired whether by federal patent or private purchase.
Mr. Edwin L. Weisl, Jr.: I say that indeed that would be true whether or not it was the federal patent, however, I will say that I believe it is the fact that this is a federal patent, it creates a somewhat greater compulsion to ensure that the patentee preserves their ownership in these accretions.
Justice Potter Stewart: Well, it doesn't -- it wouldn't make any difference with respect to that Fourteenth Amendment claim, wouldn't it?
Mr. Edwin L. Weisl, Jr.: No, I don't believe it does and I think when you look at a clear field principle that a federal deed carries with it federal law and federal interpretations of the scope and extent of that deed, it is not in this instance do similar to a federal check which was held to be subject to federal law principles in clear fields.
We have this additional factor of the federal grant but I really do feel that at this title and derived elsewhere with the same principle would indeed upon.
Justice Abe Fortas: Well, you told us of the cases coming but even so, what is the logic of your position as applied to the Court from the compensations?
Suppose the state owns a breakwater and the result of it is to inundate some of the upland land to this tideland.
Mr. Edwin L. Weisl, Jr.: Well, in either they -- excuse me.
Justice Abe Fortas: Does the state suppose it takes away some of this accretion to fill in the land that's previously accreted, thus the state takes compensation?
Is that the logic of your position?
Mr. Edwin L. Weisl, Jr.: Upland that is taken away by sudden movements such as installation of breakwater, dredging and what have you ordinarily does not affect the change in title.
This type of change is calling -- (Voice Overlap).
Justice Abe Fortas: You're taking the position -- you're taking the position that the land that has accreted --
Mr. Edwin L. Weisl, Jr.: Yes.
Justice Abe Fortas: -- is protected by the Constitution it belongs to the land to the upland landowner.
Now, the state deliberately in knowing what's going to happen builds a breakwater and so that land by reason of the state's act is taken away.
Is there a state that have a servitude or how do you reconcile the position that the state doesn't have to pay compensation, maybe you don't, maybe you said does it concede.
Mr. Edwin L. Weisl, Jr.: This -- the state servitude extends to the use of the waters and access to the waters alone to the extent that uplands are inundated or suddenly washed away.
The upland owner would continue to have title down to the point where its uplands originally went.
This would be -- if they are swept away suddenly a so-called evulsive change.
Justice Abe Fortas: I understand that -- I think I understand that doctrine but I don't understand how to describe it with your position on accretions.
Mr. Edwin L. Weisl, Jr.: Well, accretions are first of all these imperceptible and gradual workings of the natural courses of the sea that slowly deposit land on the beach and it didn't accept --
Justice Abe Fortas: I understand that too but it's a little hard to find this kind of statement in the constitutional theory, isn't it?
Mr. Edwin L. Weisl, Jr.: Well, I don't know that I have this difficulty Mr. Justice Fortas because of this long belief that the rights to accretions have vested the property right whereas these riparian rights to use the water to take it for drinking and agricultural purposes to build up here out into what you do not own but into the bed of a navigable stream.
Of all this would be held to be a permissive right because you may at some point in exercising this permissive right be interfering with a higher and more important sovereign use for the navigable water.
That came -- that issue is not presented here but we're talking about the sovereign trying to use uplands not part of its tidelands, uplands which under any traditional view of just compensation and sovereign -- imminent on the law must be bought and pay for if it is to be taken from a private owner.
I admit that the state that extinguished the value to Mrs. Hughes of being on the Pacific Ocean by building the breakwater, by putting up signs saying Mrs. Hughes -- no one permits Mrs. Hughes traveling bays in the Pacific.
In general, however, when the state does such a thing involves large expenditures of public fund, the legislative decision to go forward with major projects, a clear and manifest intent of the state to dedicate its tidelands to a present and impressive private deed.
Justice Byron R. White: I suppose we're concerned with something more than the area of deductions from some by the different rights.
What difference really does it make for United States Government whether it's private grantees land, grantees from the 19th Century, what difference could make United States whether that's grantee boundary is determined by the state or the federal law.
Why can't you just leave it between the citizens of the state and let it be the question of compensation.
Mr. Edwin L. Weisl, Jr.: Well, I think there are three answers to your question, Mr. Justice White.
First in the case of Hughes against Washington as Mrs. Hughes' land disregarding all others, I think the Federal Government has some obligation as grantor to see that its grantees receive what the Government in fact gave them that it may be a moral and not of legal obligation.
That I think would justify our views to this Court --
Justice Byron R. White: Now if there are some limits to what you can purport to give a private grantee all of that?
Mr. Edwin L. Weisl, Jr.: Of course -- of course.
Justice Byron R. White: Into that direction.
Mr. Edwin L. Weisl, Jr.: Of course, but we want to make sure that they get everything that at that time they were entitled to have.
Our second interest is perspective.
We are the owner, the United States of considerable uplands on the Pacific Ocean and not as I stated in my principal argument, some of this land has owned in trust for Indians.
Eventually, this land will be patented or allotted to these Indians and they will then become the private owners.
We want to ensure now that these Indians will receive what they presently have as beneficial owners when they become the legal owners with the right of these accretions which the workings of the Pacific have demonstrated will occur.
Justice Byron R. White: That's an -- I suppose if you concur private ownership to reach the public line.
Mr. Edwin L. Weisl, Jr.: Not at all.
We simply say that whoever owns the beach must acquire it through legal proper means if it is by a public body and the public body should pay for it under an imminent domain principle, if under the law they do not own it.
Justice Byron R. White: Well, if you had your choice.
You definitely could make a choice I suppose in granting the patents to limit -- make it clear that the limit of its grant, the limit of its grant is for example the vegetation line or it means high water as of the certain day.
You could limit it that way and then the -- and give the rest of the land of the state I suppose.
What was your third point?
You had two --
Mr. Edwin L. Weisl, Jr.: My third point is that the Government is making substantial park and recreation land acquisitions on the Pacific Coast.
Justice William O. Douglas: Well, could I suggest the fourth one?
Mr. Edwin L. Weisl, Jr.: Yes, Mr. Justice Douglas.
Justice William O. Douglas: You own 35 miles just north along the ocean the government zone.
Mr. Edwin L. Weisl, Jr.: Yes, I did mentioned that Mr. Justice Douglas.
I said some of that was Indian land where we might have a future problem that is already dedicated to the governmental use which is very important with United States and the present law.
I thank the Court.
And I trust that I have not added to the confusion with this very difficult point.