Petitioner's predecessor in title received from the Federal
Government a grant of ocean-front realty in what is now the State
of Washington. The State asserts that, when it acquired statehood
in 1889, its new constitution denied ocean-front property owners
any further rights in accretion that might be formed between their
property and the ocean. The trial court upheld petitioner's
contention that the right to accretion remained subject to federal
law, and that she was the owner of the accreted lands. The State
Supreme Court reversed, holding that state law controlled, and that
the State owned the lands.
Held: This question is governed by federal law, under
which a grantee of land bounded by navigable water acquires a right
to accretion formed along the shore, and the petitioner, who traces
her title to a federal grant prior to statehood, is the owner of
these accretions. Pp.
389 U. S.
291-294.
67 Wash. 2d
799,
410 P.2d
20, reversed and remanded.
MR. JUSTICE BLACK delivered the opinion of the Court.
The question for decision is whether federal or state law
controls the ownership of land, called accretion, gradually
Page 389 U. S. 291
deposited by the ocean on adjoining upland property conveyed by
the United States prior to statehood. The circumstances that give
rise to the question are these. Prior to 1889, all land in what is
now the State of Washington was owned by the United States, except
land that had been conveyed to private parties. At that time,
owners of property bordering the ocean, such as the predecessor in
title of Mrs. Stella Hughes, the petitioner here, had under the
common law a right to include within their lands any accretion
gradually built up by the ocean. [
Footnote 1] Washington became a State in 1889, and Article
17 of the State's new constitution, as interpreted by its Supreme
Court, denied the owners of ocean-front property in the State any
further rights in accretion that might in the future be formed
between their property and the ocean. This is a suit brought by
Mrs. Hughes, the successor in title to the original federal
grantee, against the State of Washington as owner of the tidelands
to determine whether the right to future accretions which existed
under federal law in 1889 was abolished by that provision of the
Washington Constitution. The trial court upheld Mrs. Hughes'
contention that the right to accretions remained subject to federal
law, and that she was the owner of the accreted lands. The State
Supreme Court reversed, holding that state law controlled and that
the State owned these lands.
67 Wash. 2d
799,
410 P.2d 20
(1966). We granted certiorari. 385 U.S. 1000 (1967). We hold that
this question is governed by federal, not state, law, and that,
under federal law, Mrs. Hughes, who traces her title to a federal
grant prior to statehood, is the owner of these accretions.
While the issue appears never to have been squarely presented to
this Court before, we think the path to decision
Page 389 U. S. 292
is indicated by our holding in
Borax, Ltd. v. Los
Angeles, 296 U. S. 10
(1935). In that case, we dealt with the rights of a California
property owner who held under a federal patent, and in that
instance, unlike the present case, the patent was issued after
statehood. We held that
"[t]he question as to the extent of this federal grant, that is,
as to the limit of the land conveyed, or the boundary between the
upland and the tideland, is necessarily a federal question. It is a
question which concerns the validity and effect of an act done by
the United States; it involves the ascertainment of the essential
basis of a right asserted under federal law."
296 U.S. at
296 U. S. 22. No
subsequent case in this Court has cast doubt on the principle
announced in
Borax. See also United States v.
Oregon, 295 U. S. 1,
295 U. S. 27-28
(1935). The State argues, and the court below held, however, that
the
Borax case should not be applied here, because that
case involved no question as to accretions. While this is true, the
case did involve the question as to what rights were conveyed by
the federal grant, and decided that the extent of ownership under
the federal grant is governed by federal law. This is as true
whether doubt as to any boundary is based on a broad question as to
the general definition of the shoreline or on a particularized
problem relating to the ownership of accretion.
See United
States v. Washington, 294 F.2d 830, 832 (C.A. 9th Cir.1961),
cert. denied, 369 U.S. 817 (1962). We therefore find no
significant difference between
Borax and the present
case.
Recognizing the difficulty of distinguishing
Borax,
respondent urges us to reconsider it.
Borax itself, as
well as
United States v. Oregon, supra, and many other
cases, makes clear that a dispute over title to lands owned by the
Federal Government is governed by federal law,
Page 389 U. S. 293
although, of course, the Federal Government may, if it desires,
choose to select a state rule as the federal rule.
Borax
holds that there has been no such choice in this area, and we have
no difficulty in concluding that
Borax was correctly
decided. The rule deals with waters that lap both the lands of the
State and the boundaries of the international sea. This
relationship, at this particular point of the marginal sea, is too
close to the vital interest of the Nation in its own boundaries to
allow it to be governed by any law but the "supreme Law of the
Land."
This brings us to the question of what the federal rule is. The
State has not attempted to argue that federal law gives it title to
these accretions, and it seems clear to us that it could not. A
long and unbroken line of decisions of this Court establishes that
the grantee of land bounded by a body of navigable water acquires a
right to any natural and gradual accretion formed along the shore.
In
Jones v.
Johnston, 18 How. 150 (1856), a dispute between two
parties owning land along Lake Michigan over the ownership of soil
that had gradually been deposited along the shore, this Court held
that
"[l]and gained from the sea either by alluvion or dereliction,
if the same be by little and little, by small and imperceptible
degrees, belongs to the owner of the land adjoining."
18 How. at
59 U. S. 156.
The Court has repeatedly reaffirmed this rule,
County of
St. Clair v. Lovingston, 23 Wall. 46 (1874);
Jefferis v. East Omaha Land Co., 134 U.
S. 178 (1890), [
Footnote
2] and the soundness of the principle is scarcely open to
question. Any other rule would leave riparian owners continually in
danger of losing the access to water, which is often the most
valuable feature of their property, and continually
Page 389 U. S. 294
vulnerable to harassing litigation challenging the location of
the original water lines. While it is true that these riparian
rights are to some extent insecure in any event, since they are
subject to considerable control by the neighboring owner of the
tideland, [
Footnote 3] this is
insufficient reason to leave these valuable rights at the mercy of
natural phenomena which may in no way affect the interests of the
tideland owner.
See Stevens v. Arnold, 262 U.
S. 266,
262 U. S.
269-270 (1923). We therefore hold that petitioner is
entitled to the accretion that has been gradually formed along her
property by the ocean.
The judgment below is reversed, and the case is remanded to the
Supreme Court of Washington for further proceedings not
inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
Jones v
Johnston, 18 How. 150 (1856);
County of
St. Clair v. Lovingston, 23 Wall. 46 (1874).
[
Footnote 2]
In
Ker & Co. v. Couden, 223 U.
S. 268 (1912), Mr. Justice Holmes, writing for the
Court, held that, under the governing Spanish law, lands added to
the shore by accretion in the Philippines belonged to the public
domain, rather than to the adjacent estate.
[
Footnote 3]
It has been held that a State may, without paying compensation,
deprive a riparian owner of his common law right to utilize the
flowing water,
St. Anthony Falls Water Power Co. v. Water
Comm'rs, 168 U. S. 349
(1897), or to build a wharf over the water,
Shively v.
Bowlby, 152 U. S. 1 (1894).
It has also been held that the State may fill its tidelands, and
thus block the riparian owner's natural access to the water.
Port of Seattle v. Oregon & W. R. Co., 255 U. S.
56 (1921).
MR. JUSTICE STEWART, concurring.
I fully agree that the extent of the 1866 federal grant to which
Mrs. Hughes traces her ownership was originally measurable by
federal common law, and that, under the applicable federal rule,
her predecessor in title acquired the right to all accretions
gradually built up by the sea. For me, however, that does not end
the matter. For the Supreme Court of Washington decided in 1966, in
the case now before us, that Washington terminated the
Page 389 U. S. 295
right to oceanfront accretions when it became a State in 1889.
The State concedes that the federal grant in question conferred
such a right prior to 1889. But the State purports to have reserved
all post-1889 accretions for the public domain. Mrs. Hughes is
entitled to the beach she claims in this case only if the State
failed in its effort to abolish all private rights to seashore
accretions.
Surely it must be conceded as a general proposition that the law
of real property is, under our Constitution, left to the individual
States to develop and administer. And surely Washington or any
other State is free to make changes, either legislative or
judicial, in its general rules of real property law, including the
rules governing the property rights of riparian owners. Nor are
riparian owners who derive their title from the United States
somehow immune from the changing impact of these general state
rules.
Joy v. St. Louis, 201 U. S. 332,
201 U. S. 342.
For if they were, then the property law of a State like Washington,
carved entirely out of federal territory, would be forever frozen
into the mold it occupied on the date of the State's admission to
the Union. It follows that Mrs. Hughes cannot claim immunity from
changes in the property law of Washington simply because her title
derives from a federal grant. Like any other property owner,
however, Mrs. Hughes may insist, quite apart from the federal
origin of her title, that the State not take her land without just
compensation.
Chicago, B. & Q. R. Co. v. Chicago,
166 U. S. 226,
166 U. S.
236-241.
Accordingly, if Article 17 of the Washington Constitution had
unambiguously provided, in 1889, that all accretions along the
Washington coast from that day forward would belong to the State,
rather than to private riparian owners, this case would present two
questions not discussed by the Court, both of which I think
exceedingly difficult. First: does such a prospective change in
state
Page 389 U. S. 296
property law constitute a compensable taking? Second: if so,
does the constitutional right to compensation run with the land, so
as to give not only the 1889 owner, but also his successors --
including Mrs. Hughes -- a valid claim against the State?
The fact, however, is that Article 17 contained no such
unambiguous provision. In that Article, the State simply asserted
its ownership of
"the beds and shores of all navigable waters in the state up to
and including the line of ordinary high tide, in waters where the
tide ebbs and flows, and up to and including the line of ordinary
high water within the banks of all navigable rivers and lakes."
In the present case, the Supreme Court of Washington held that,
by this 1889 language, "[l]ittoral rights of upland owners were
terminated."
67 Wash. 2d
799, 1816,
410 P.2d
20, 29. Such a conclusion by the State's highest court on a
question of state law would ordinarily bind this Court, but here
the state and federal questions are inextricably intertwined. For
if it cannot reasonably be said that the littoral rights of upland
owners were terminated in 1889, then the effect of the decision now
before us is to take from these owners, without compensation, land
deposited by the Pacific Ocean from 1889 to 1966.
We cannot resolve the federal question whether there has been
such a taking without first making a determination of our own as to
who owned the seashore accretions between 1889 and 1966. To the
extent that the decision of the Supreme Court of Washington on that
issue arguably conforms to reasonable expectations, we must, of
course, accept it as conclusive. But to the extent that it
constitutes a sudden change in state law, unpredictable in terms of
the relevant precedents, no such deference would be appropriate.
For a State cannot be permitted to defeat the constitutional
prohibition against taking property without due process of law by
the simple
Page 389 U. S. 297
device of asserting retroactively that the property it has taken
never existed at all. Whether the decision here worked an
unpredictable change in state law thus inevitably presents a
federal question for the determination of this Court.
See
Demorest v. City Bank Co., 321 U. S. 36,
321 U. S. 42-43.
Cf. Indiana ex rel. Anderson v. Brand, 303 U. S.
95. The Washington court insisted that its decision was
"not startling."
67 Wash. 2d
799, 814,
410 P.2d
20, 28. What is at issue here is the accuracy of that
characterization.
The state court rested its result upon
Eisenbach v.
Hatfield, 2 Wash. 236, 26 P. 539, but that decision involved
only the relative rights of the State and the upland owner in the
tidelands themselves. The
Eisenbach court declined to
resolve the accretions question presented here. This question was
resolved in 1946, in
Ghione v. State, 26 Wash. 2d 635, 175
P.2d 955. There, the State asserted, as it does here, that Article
17 operated to deprive private riparian owners of post-1889
accretions. The Washington Supreme Court rejected that assertion in
Ghione and held that, after 1889 as before, title to
gradual accretions under Washington law vested in the owner of the
adjoining land. In the present case, 20 years after its
Ghione decision, the Washington Supreme Court reached a
different conclusion. The state court in this case sought to
distinguish
Ghione: the water there involved was part of a
river. But the
Ghione court had emphatically stated that
the same "rule of accretion . . . applies to both tidewaters and
fresh waters." 26 Wash. 2d 635, 645, 175 P.2d 955, 961. I can only
conclude, as did the dissenting judge below, that the state court's
most recent construction of Article 17 effected an unforeseeable
change in Washington property law as expounded by the State Supreme
Court.
There can be little doubt about the impact of that change upon
Mrs. Hughes: the beach she had every
Page 389 U. S. 298
reason to regard as hers was declared by the state court to be
in the public domain. Of course, the court did not conceive of this
action as a taking. As is so often the case when a State exercises
its power to make law, or to regulate, or to pursue a public
project, preexisting property interests were impaired here without
any calculated decision to deprive anyone of what he once owned.
But the Constitution measures a taking of property not by what a
State says, or by what it intends, but by what it does. Although
the State in this case made no attempt to take the accreted lands
by eminent domain, it achieved the same result by effecting a
retroactive transformation of private into public property --
without paying for the privilege of doing so. Because the Due
Process Clause of the Fourteenth Amendment forbids such
confiscation by a State, no less through its courts than through
its legislature, and no less when a taking is unintended than when
it is deliberate, I join in reversing the judgment.