Whereas a cloud upon the title of the city of Los Angeles in and to any and all of the tide and submerged lands lying within its boundaries, in both San Pedro and Santa Monica Bays, over which tide and submerged lands, the State of California and the city of Los Angeles have exercised all rights of sovereignty, ownership, and control since 1850, in reliance upon decisions of the Supreme Court and acts and conduct of Congress and of departments and officials of the United States, has been created by the policies recently adopted by the Attorney General of the United States and by other Federal departments and bureaus; and Whereas the future and further development and improvement by the city of Los Angeles of the tide and submerged lands within its boundaries in the interests of commerce, navigation, fishery, and recreation has been and will continue to be impeded and hindered, and local and civic interests have been and will continue to be adversely affected, until the uncertainties of title and ownership engendered by said decision of the Supreme Court and said policies adopted by the Attorney General and other Federal departments and bureaus have been dispelled; Now, therefore, be it

Resolved, That the Congress of the United States is hereby memorialized and earnestly urged to adopt and pass S. 1988 and H. R. 4999, being bills to confirm and establish the titles of the States to lands and resources in and beneath navigable waters within State boundaries and to provide for the use and control of said lands and resources, or similar legislation; and the Committee on the Judiciary of the House of Representatives of the United States are hereby earnestly urged and requested to report favorably upon S. 1988 and H. R. 4999, respectively, or upon similar legislation; and be it further

Resolved, That Arthur W. Nordstrom, assistant city attorney, be and he is hereby authorized and empowered to represent and speak for this council and the city of Los Angeles in behalf of such legislation before said committees on the Judiciary and any subcommittees thereof that may hold hearings relative thereto. Senator MOORE. Of course, I cannot tell you exactly what direction this hearing will take from here on. We have made a tentative promise to the Government Saturday that we would take up the Government witnesses, we thought, on Tuesday, and I think we will adhere to that if it is possible at all.

It might be something like the afternoon that we will take up the Government witnesses.

Mr. JOHNSON. Tuesday afternoon?

Senator MOORE. Tuesday afternoon; yes. That is not altogether firm, but I think we can adhere to it.

Now, who is the next witness?

Did you have something else you wanted to say?

Mr. JOHNSON. Provided it would meet with your satisfaction, we will hold Miss Burr up for the time being.

Senator MOORE. Yes.

Mr. JOHNSON. Mr. Chairman and members of the committee, at this time I would like to present James J. McCarthy, of Newark, N. J., who is chairman of the Federal legislative committee of the American Title Association.

STATEMENT OF JAMES J. MCCARTHY, CHAIRMAN, FEDERAL LEGISLATIVE COMMITTEE, AMERICAN TITLE ASSOCIATION, NEWARK, N. J.

Mr. MCCARTHY. Mr. Chairman and gentlemen of the committee, I appear before you on behalf of the American Title Association. I have just come from the annual midwinter conference of our association held at Memphis, Tenn., February 19-21, at which I was authorized to appear here and speak on behalf of the association.

The American Title Association is a national organization composed of 2,016 members from all parts of the country. Our membership includes title insurance companies, title abstracting companies, title abstractors, and title attorneys.

The function of the members who make up the association is to determine, certify, or insure the title to or ownership of various real property interests.

At our recent meeting at Memphis, the decision of the United States Supreme Court in the case of the United States v. California was the principal topic of discussion. I wish to emphasize that our association as such has no interest in the controversy between the States and the Federal Government. As a political question, it is of no concern to us who owns or administers any particular area of land. The sole interest of our association is in the sound establishment, the stability and the accurate determination of real property titles. In this we have a very vital interest. The membership of our association is expected by the public to be in a position to certify or insure titles.

Our certification and our policies of insurance are relied upon by the property owners throughout the Nation. Anything which undermines the certainty and stability of real property titles affects not only the entire title industry, but weakens the faith of property owners everywhere in the integrity of the derivation of titles.

With regard to lands under navigable waters along our coast lines within State boundaries and also lands under inland navigable waters it has been the belief of title companies and title attorneys in the association throughout the United States that prior to the recent Supreme Court decision these titles were vested in the States and our members have insured and certified titles upon that assumption. That assumption was based upon many decisions of the United States Supreme Court commencing with the two leading cases of Martin v. Waddell and Pollard v. Hagan.

It is also based in many instances, on State decisions which in turn relied upon decisions of the United States Supreme Court. These are the decisions which the Supreme Court in the California case seems to disregard.

I do not wish to argue or question the correctness of the Supreme Court's view. I only wish to bring to the attention of this committee that title companies have, as I said a moment ago, always believed that these cases were controlling and that the question of State ownership was settled beyond any question of doubt. Their belief was so strong that they were willing to certify and insure titles to property in cases where the title was derived through grants from the State.

As an example of our practice, I may mention that in my own State, which is the State of New Jersey, it has never been doubted, prior to the California decision, that New Jersey was the owner of the submerged lands along our coast out to the 3-mile limit.

We have statutes and decisions in New Jersey to that effect. In New Jersey the legislature has in numerous instances, as in the case of other States, authorized grants of land below low-water mark for various. purposes. Relying on the Court decisions which I have mentioned, these titles have been certified or insured subject only to the paramount right of the United States of America to fix pierhead lines, and to exercise control of commerce and navigation.

At our convention in Memphis, it was the unanimous opinion that the decision of the United States Supreme Court in the California case has cast doubt on the validity of all grants made by States or under the authority of States to lands beneath navigable waters and consequently has clouded the titles of all lands which were acquired in good faith under these grants, leaving titles in a state of confusion and uncertainty.

No one can tell under this decision who is the owner of these lands or whether they have any owner. If the matter is not clarified, endless litigation is likely to result.

The decision of the California case is by its terms limited to submerged lands along the coast lines of the States. It does not purport to apply to lands beneath inland waters. Nevertheless, by referring to the fact that the title of the States to such lands is a qualified title, the decision has raised a doubt in the minds of some even as to lands beneath inland navigable waters.

Furthermore, the decision leaves wholly unsettled the question of what constitutes inland waters, and where the inland waters are, and until those questions are clarified, the title to lands under a great many inland waters will be clouded.

The interest of our association, as I said at the outset, lies in restoring stability to titles to submerged lands and the removal of the clouds that have been created by this decision. Our association decided to support Senate bill 1988 because it believes that this bill will accomplish that purpose. We are not concerned as a title association in disputes over Federal or State sovereignty.

We do believe because of the universal practice that had grown up under the authority of the Supreme Court decisions and of the practices of the State; and of the Federal Governments, seeming to recognize State titles; and because titles have generally vested and in many cases have been certified or insured upon that assumption; that the proper way to remove the cloud cast upon these titles by the Supreme Court decision is to enact legislation contemplated by Senate bill 1988 which stabilizes the title in the States where we always believed it to be.

Senator DONNELL. Mr. McCarthy, that plan, that is to say, the passage of this act would greatly simply matters for the title examiners: would it not?

Mr. MCCARTHY. Yes.

Senator DONNELL. That is the reason why you are primarily advocating this bill; is that correct?

Mr. MCCARTHY. Primarily to stabilize titles in the States where we thought the titles were.

Senator DONNELL. Yes.

Now, do you agree that under the case of the United States v. California the State of California is not the owner of the 3-mile marginal belt along its coast?

Mr. MCCARTHY. That seems to be the effect of the decision; yes, sir. Senator DONNELL. Then there is no doubt in your mind that regardless of what title, if any, the Federal Government has, California under that decision is not the owner of the 3-mile marginal belt along its coast?

Mr. MCCARTHY. That is right, sir.

Senator MOORE. That would apply also to all other coastal States? Mr. McCARTHY. That is the way we understand, Senator; yes, sir. Senator DONNELL. Have you examined into the claims of Texas and Louisiana to ascertain whether there is any difference between those States and California?

Mr. MCCARTHY. I have not personally, sir; no, sir.

Senator DONNELL. So you would not undertake to pass on that question that Senator Moore just presented to you except as a matter of general information?

Mr. McCARTHY. Only as a matter of general information.

Senator DONNELL. You would not issue a certificate or write a letter insuring that your statement is correct, that you made as a matter of general information.

Mr. McCARTHY. My company operates only in New Jersey. I would not be in a position to do that.

Senator MOORE. The association comprises representatives from other States, including the State of Texas, I assume?

Mr. McCARTHY. That is right, Senator, and I am speaking for the association.

Senator DONNELL. Now, Mr. McCarthy, insofar, therefore, as this decision decides and insofar as the decree of the Court does say, quoting from the decree:

The State of California has no title thereto or property interest therein;

there is no doubt of the fact that the State of California does not have title to the property. That is correct, is it not?

Mr. MCCARTHY. That is correct.

Senator DONNELL. Now, Mr. McCarthy, on page 2 of your written statement from which you have read, you refer to the leading cases of Martin v. Waddel and Pollard v. Hagan.

Then you refer also to State decisions which in turn relied upon decisions of the United States Supreme Court. Then there occurs this sentence:

These are the decisions which the Supreme Court in the California cases seems to disregard.

What do you mean by the word "these" as used in that sentence? Mr. MCCARTHY. These cases, to begin with Martin v. Waddel and Pollard v. Hagan and the line of cases following those cases.

Senator DONNELL. You are familiar, are you not, with the fact that at page 8 of the decision in the case of the United States v. California, the Court mentions the contention of California that its ownership follows from the rule originally announced in Pollard's Lessee v. Hagan (3 Howard 212), and that the Court then says:

See also Martin v. Waddel (16 Peters 367, 410).

You recall that is in the decision?

Mr. MCCARTHY. Yes.

Senator DONNELL. So it is obvious that the Supreme Court of the United States in the California case, at any rate, did not overlook those two cases; that is correct, is it not?

Mr. MCCARTHY. That is correct.

Senator Donnell, we know they are aware of those two cases, but they seem to disregard, as far as we can understand the reading of it, what was thought to be the law.

Senator DONNELL. However, regardless of whether you are right or whether the Supreme Court is right, the Court did consider certainly the Pollard case, and analyzed it and distinguished it; did it not in the California case?

Mr. MCCARTHY. It did.

Senator DONNELL. Mr. McCarthy, you say at page 3 of your

statement:

No one can tell under this decision who is the owner of these lands or whether they have any owner.

You adhere to that opinion, do you?

Mr. MCCARTHY. Yes.

Senator DONNELL. Do you think that the term "paramount rights in and full dominion and power over" does not include, among other things, fee simple title?

Mr. MCCARTHY. That is my thought of it, because in reading these cases, Senator, we find that invariably the Court speaks of ownership and dominion.

Senator DONNELL. Do the decisions speak of paramount rights in the property also?

Mr. MCCARTHY. The decisions speak of paramount rights which we have understood to mean those rights which were given by the Constitution to control navigation and commerce.

Senator DONNELL. The word "paramount" generally speaking means something higher than which there is none such, is that not correct?

Mr. MCCARTHY. That is right, sir.

Senator DONNELL. And more comprehensive than there is none such. That is the general meaning of paramount?

Mr. MCCARTHY. That is right, but not quite fee simple if I might suggest it.

Senator DONNELL. If that be true, then fee simple will be higher than paramount.

Mr. MCCARTHY. It would be the ultimate in ownership.

Senator DONNELL. Fee simple would be the ultimate. So, if fee simple is not included in the term "paramount," you think fee simple is higher in degree of property rights than is a paramount right. Mr. McCARTHY. In property rights, I would think so, sir; yes. Senator DONNELL. I am not quite clear from your answer. Perhaps it is due to my own faultiness in stating the question. Do you consider, as a matter of law, that paramount right is or is not greater than fee simple?

Mr. MCCARTHY. I think it might be distinguished, and I might give this illustration:

In New Jersey we thought that fee simple, the highest right of ownership to the land under the water, was vested in the State, subject to the paramount right of the United States of America to fix pierhead lines and to control navigation.

That right to fix pierhead lines and to control navigation was paramount to any right that the State might have to do the same thing. Senator DONNELL. Is a fee simple title subject to the right of condemnation?

Mr. McCARTHY. Oh, yes.