Mr. KEECH. In many instances the States have statutes which provide for such transactions.

Mr. KEFAUVER. Does the city pay the State any compensation? Mr. KEECH. It would be by either a grant from the State or by some taxing method.

Mr. BRYSON. Or by purchase?

Mr. KEECH. Yes, sir.

Mr. SPRINGER. It is practically an act of the legislature, is it not?

Mr. KEECH. That is correct, sir; the city acting as an agent of the State.

Mr. MICHENER. It depends on where the legal title is?

Mr. KEECH. That is correct.

Mr. MICHENER. In many States lands formerly owned by the Federal Government are now owned by an individual.

Mr. KEECH. In the latter instance, of course if a railroad were coming it would look to the individual to get the right-of-way or easement.

Mr. MICHENER. I know that in my State we do have a lot of that. If a railroad wants to acquire title to an improvement along the water it gets an abstract of title. That abstract of title shows in whom the title is vested, and the railroad determines to purchase from the holder of the fee as shown by the abstract of title.

Mr. KEFAUVER. Can you tell us how long the States have had legislation on their statute books authorizing cities or municipalities to build ports or to use lands of this kind?

Mr. KEECH. I can say that there are many States that do have such legislation.

Mr. MICHENER. I do not know whether this is relevant or not. My colleague has just suggested that this discussion was apparently irrelevant. I want to get at the facts. I sat with this committee through weeks of hearings, together with the chairman, on submerged lands and tidewater lands, largely in connection with California and Texas, where many of the same points were involved that are involved here. To me, it is more than just a question about who says they own it. I think we naturally would make application to the fellow that thought he owned the property. But there is a difference of opinion as to who does own it. That is why we are here. I think this matter should be gone into so that we can go on the floor of the House and have something definite rather than just a chance as to who does own it.

Mr. BRYSON. There is no difference of opinion in the courts as to the ownership of this land, is there?

Mr. KEECH. It is our position that there is not any question as to who owns this land. Our position before you gentlemen is to prevent harassment of that which we believe is clearly the right of the States. Mr. MICHENER. Your action is reverse action to that which we considered some years ago?

Mr. KEECH. In 1937 and 1938 yes, sir. It is in conformity with the uniform determinations of the Supreme Court of the United States. Mr. BRYSON. It is a matter of res judicata.

Mr. KEECH. Notwithstanding the fact that there have been 54 determinations by the Supreme Court, all in favor of the States' position, we are still having suits.

Mr. Hancock. The Southeastern Underwriters case followed an unbroken line of decisions since 1866.

Mr. KEECH. Thank you, Mr. Chairman and gentlemen.

(The documents referred to and submitted by the witness are as follows:)

Hon. HATTON W. SUMNERS,

Chairman of Judiciary Committee,

CITY OF BALTIMORE, DEPARTMENT OF LAW, Baltimore, Md., June 13, 1945.

House of Representatives, Washington, D. C.

DEAR MR. SUMNERS: Your committee has before you several resolutions intended to quiet the titles of the respective States, and their subdivisions, to lands beneath tidewaters and navigable waters.

A brief on behalf of the States has been filed by the attorneys general of 46 States, including the State of Maryland.

However, I am writing on behalf of the city of Baltimore to urge favorable consideration of the resolutions. The city is vitally interested, because a determination that the National Government, and not the States, owns these tidewaters and lands under navigable waters would destroy the title to the Baltimore Harbor, which were granted by the State of Maryland to Baltimore City. Such a result would be disastrous to this community, whose welfare and prosperity are largely dependent on activities in the Baltimore Harbor.

Very truly yours,

SIMON E. SOBELOFF, City Solicitor.

STATEMENT OF THE CITY SOLICITOR OF PHILADELPHIA

Upon the American Revolution lands under tidewaters were vested in the original States within their respective borders subject to the rights surrendered by the Constitution 'to the United States.

In Pennsylvania the foregoing doctrine has been sustained in the cases of Rundle v. Delaware & R. Canal Co. (55 U. S. 14 How. 80, 90); Gilman v. Phila. (70 U. S. 3 Wall. 713, 726).

By the established law of the State the owner of lands bounded by navigable water has a title in the soil between high- and low-water mark subject to the public right of navigation and to the authority of the legislature to make public improvements upon it and to regulate his use of it: Tinicum Fishing Co. v. Carter (61 Pa. 21, 30, 31); Wainwright v. McCullough (62 Pa. 66, 74); Zug v. Comm. (70 Pa. 138); Phila. v. Scott (81 Pa. 80, 86); Wall v. Pittsburgh Harbor Co. (152 Pa. 427).

Pursuant to these decisions and many others, millions of dollars have been invested in water-front improvements over the last 200 years. These rights, it is true, are held subject to the controls released to the people of the United States by the Constitution. Nothing appears in the Constitution of the United States, however, which in any way would permit Congress under its legislative power to confiscate the basic ownership of such lands for the general welfare. No benefit could be conferred upon the people of the United States by the confiscation of such rights and any assertion of title by the Federal Government would be in a strictly proprietary capacity without any color of an exercise of governmental power. It is hardly necessary to state that all essential governmental control of the waters over tidal lands is already vested in the Federal Government and exercised by it through the Army engineers and other agencies.

The city of Philadelphia is in favor of the passage of some one of the resolutions now pending before the Congress declaring any pretension by the Federal Government to the beneficial ownership of the lands under tidal waters to be without legal or constitutional sanction and declaring the policy of Congress in recognition of the rights of the sovereign States and their grantees. Respectfully submitted.

FRANK F. TRUSCOTT,

City Solicitor of the City of Philadelphia.

The CHAIRMAN. I believe Mr. Freed is the next witness.

STATEMENT OF HIRSH FREED, ASSISTANT CORPORATION
COUNSEL, BOSTON, MASS.

Mr. FREED. My name is Hirsh Freed, and I am assistant corporation counsel of the city of Boston.

I believe that the witness, Shelley, this morning said that there would be filed with the committee copies of these maps. I have here a plat which shows in red those portions of the city of Boston, that is, of the metropolitan district, which consist of filled land.

Mr. SPRINGER. Who filled that in?

Mr. FREED. I can point that out to you in this way. This plat represents about 100 years of history of filling. This portion here [indicating] is almost the entire Back Bay section of the city of Boston. If you were to visit Boston you would visit our public library, which is on filled land. The Copley Plaza Hotel is on filled land. The South Station terminal is on filled land, as is the North Station. In fact, very few of the younger residents of the city of Boston realize that more than 50 percent of the city of Boston is on filled land. Mr. SPRINGER. Who did it?

Mr. FREED. The Back Bay section was filled by the Commonwealth of Massachusetts itself. It conveyed or made grants in fee to charitable or public institutions. For example, the Massachusetts Institute of Technology is entirely located on land filled in from the Charles River, granted by the Commonwealth of Massachusetts. Copley Square in Boston is similarly on filled land.

Mr. SPRINGER. Was that all done within the original boundary of the State of Massachusetts?

Mr. FREED. Yes, sir. These outer portions [indicating on plat] represent installations in the river. Right here [indicating] is the new Logan Airport on which our legislature has just appropriated a hundred acres and spent $15,000,000 for expansion right into the harbor. There are large installations. I was amazed, myself, in analyzing this plat, to find that it represents probably $500,000,000 of valuation, now locally taxed for the most part.

Which leads me to the chief point that I would like to make, which is that it is entirely possible that a cloud on a title can be more expensive than an actual defect. A person who has a defective title has no title.

Mr. SPRINGER. He does not have a marketable title?

Mr. FREED. No, sir. A cloud is far more difficult to remove than a defect.

The principal value, it seems to me, of this joint resolution is not in having the Federal Government actually convey something to the States which they do not now have. I regard this joint resolution as declaratory of an existing state of affairs, namely, to quiet or, rather, to remove from the area of doubt any question as to where title to these submerged lands is.

In Boston, of course, we do not have any great problem as they have in California. However, it occurs to me that if these clouds on the various titles throughout the land are permitted to exist, eventually you are going to have "sharpshooters" destroying the title of the State or title which private parties may claim to have derived from the State, and seeking to have Federal Government rights paramount

to and superior to the rights of those who are grantees of the State. Eventually, if this situation is not cured at the present time, there may be a movement to reserve unto the Federal Government the right to tax such lands.

In Boston, as I pointed out, in the Back Bay section, probably the most valuable single business and residential area for local taxation within the city of Boston would be affected. It would be disquieting, to say the least, to have any possibility of doubt as to the right of the State to tax such lands.

Mr. HANCOCK. After this suit was filed did that cause any confusion with regard to that filled land?

Mr. FREED. No; but I would like to point out that although this litigation is relative to California, the Boston Herald had an editorial on the subject. That is a very well-known and conservative newspaper

The CHAIRMAN. Is it your understanding that if the Federal Government is successful in its suit in the California case it would in effect establish the fact that title to submerged land is in the Federal Government?

Mr. FREED. Yes, sir. If the California litigation results in favor of the Federal Government, I suppose that our port authority, which is about to receive $15,000,000 for the purpose of constructing new port facilities would have the devil of a time in floating its bonds, because it would require some new money or the guaranty as to the title.

The CHAIRMAN. In a not too remote sense, there is involved in the California suit the question of title between the Federal Government and the people who occupy that land?

Mr. FREED. That is correct, sir. I believe that the question is of Nation-wide scope. I think it affects every city or State which has either navigable rivers or harbors or coast line which has been improved for convenience or for commercial interest of the public.

The CHAIRMAN. The committee gets clearly your view with reference to that point. Is there anything else?

Mr. FREED. No, sir. That is all I have to present.

The CHAIRMAN. We are very much obliged. It is a very clear succinct statement.

Mr. FREED. Thank you, sir.

Mr. KENNY. Mr. Chairman, Mr. Orrin G. Judd, the solicitor general of the State of New York, was not able to arrive here today. There are a few attorneys general here who wish to make very brief presentations and leave statements with the committee. Some of those gentlemen would like to leave Washington today, if possible. Would it be permissible to take them out of order now?

The CHAIRMAN. I think the committee would be perfectly willing and glad to hear these gentlemen. I think you have already given the committee a complete picture, but if these gentlemen can supplement the statements that are made-I do not mean to try to limit them at all, but you are all busy and we are pretty busy-I think it would be well.

Mr. KENNY. I personally hope to return to California tonight. The first gentleman I would like to call is the attorney general of Mississippi.

STATEMENT OF HON. GREEK L. RICE, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI

Mr. RICE. Mr. Chairman, with the permission of the committee I will file this statement and not read it.

We claim we own the Mississippi Sound south of our border, our southern boundary line; and that boundary was fixed in the enabling act that authorized us to form our government. It is the same boundary line that was fixed in our State constitution. We have had that property for 128 years. The Federal Government has never questioned our title except perhaps as it was questioned in the old Nye resolution of 1939. Congress heard that, debated it, and did nothing about it. It has not done anything yet. We have had that land, as I say, for 128 years.

The CHAIRMAN. To what use do you subject that land?

Mr. RICE. It is just a part of our shore, our coastal region down there. I might say, sir, that we have leased it twice since 1939. At one time we received a bonus of $25,000 and at another time $6,000. Our lessees did not question our title..

Mr. SPRINGER. Have they put it to such use as it is susceptible to? Mr. RICE. Yes.

Mr. SPRINGER. And have always claimed the right to use it as the property of the State of Mississippi?

Mr. RICE. Yes. It is within our borders which were fixed by the Congress in the Enabling Act of 1817.

The CHAIRMAN. In negotiating with those parties with reference to that land did any of them raise any question?

Mr. RICE. No, sir. Our "Uncle" had been quiet for so long and had not said anything about it for 128 years, that we didn't believe they would raise a question when we leased that land to those people, and that they would go to the Federal Government to get a permit before they would go out to shoot and explore that they would go to the Federal Government and tell them what they were going to do, that "We want to explore for oil here and shoot in this region," and that our "Uncle" would give them a permit to do that, acquiescing in the title.

Mr. HANCOCK. Down in Mississippi do you have the doctrine that obtains in most of the States of the Union that when a party to a controversy stands by and uses property as his own for years and years and nobody makes any protest, sees him put valuable improvements on it and makes no claim to the property, such a man is estopped by his acquiescence

Mr. RICE (interposing). That is exactly what I am trying to say right now. For 130 years we have had it, and nobody has ever questioned it yet but Mr. Ickes and Mr. Biddle. They put a little question on our title, and it is a little embarrassing. We have taken the lessees' money. Governor Kerr, of Oklahoma, had a lease the last time. We took his money. He thought the title was good, and it always has been good. Nobody has ever said anything. They could get up in Congress, either now or then. They always wind up by taking the question out to California.

Mr. MICHENER. In this lease to which you have referred did the State in any way interfere with the problems of the Federal Government?