TIDE WATERS. Waters subject to the ebb and flow of the tides. The term is of legal sig nificance because synonymous in the common law with 'navigable waters,' in relation to which were developed the system of rules defining the rights and obligations of transportation and commerce thereon. The open sea is the common property of all nations (see Thou SEAS) and the rights of a particular nation thereon are restricted to the marginal belt of a marine league. (See TER RITORIAL WATERS.) By the rules of the common law still prevailing in England, both the title and dominion of the sea. and of all rivers and arms of seas where the tide ebbs and flows, and of all lands below high-water mark, including both the shore and the soil under such waters, are vested in the Crown for the public benefit. Tidal waters are public highways, but non-tidal waters, though actually navigable, are subject to private ownership, the riparian owners hold ing title to the middle of the stream, subject to the paramount right of the public use for navi gation. In the United States the physical fea tures of the country and its dual political organ ization rendered a strict application of the com mon-law rule inexpedient, and the law in regard to inland streams not subject to tides varies some what in this regard in the different State juris dictions. Prior to the adoption of the Constitu tion, the colonies existing as separate political entities had exercised full sovereignty. While under the Constitution the Federal Government possesses exclusive jurisdiction over dealings with foreign nations and in the regulation of inter state commerce (Article I. § viii. sub. 3), yet the title and dominion of tidal waters and lands remains prima facie vested in the several States abutting thereon for the public benefit, subject only to the paramount right of navigation, which, whether of foreign or interstate commerce, is under the governance of the general Government. In this respect also the rights of the original thirteen States and of those later admitted are the same, and as to the territory acquired subsequent to the adoption of the Con stitution, the title and dominion of such tidal lands and waters passes to the United States for the benefit of the whole people, but impressed with a trust for the several States ultimately created out of said territory, except in cases where grants have been made by the sovereignty exercising jurisdiction prior to its acquisition by the United States, or where said lands are subject to trusts requiring other disposition. Such were the rules
laid down in regard to the territory of California acquired from .Mexico. Yet it has been some times held that. Congress has the power, whenever necessary and proper, to grant lands below high water mark in tidal waters in territories belong ing to the United States.
In Canada it has been decided that the Saint Lawrence River and the Great Lakes are public navigable waters and are not subject to the common-law rule applying to non-tidal waters. which vests title to the middle of the stream in the riparian owners, but that title and dominion thereto belong to the Crown for the use and benefit of the public. Further, by the English law the power of legislation over both tidal and non-tidal waters is vested in Parliament. Private rights to shores and to lands beneath tidal waters can be acquired only by express grant, prescription, or usage. In England the recipient of such grant cannot sus tain a claim prejudicial to the public user. In the United States the right of State legislatures to alienate this right of public domain has not been accurately defined. The Supreme Court of the United States has recognized this right so far as it does not substantially impair the in terests of the public. Instances of such valid grants are those made to a municipality for docks and like commercial facilities, grants to railroads for right of way, and grants to owners of uplands for beneficial enjoyment or commercial purposes. Impediments to navigation in tidal waters unless authorized by a competent power are nuisances and may be abated. When by un avoidable accident a vessel is sunk and the owner abandons control, he is not liable for injuries caused thereby, though navigation is obstructed.
See such articles as RIPARIAN RIGHTS; HIGH SEAS; MARE CLAUSCM, etc., and consult Gould, The Law of Waters (3d ed.. Albany, 1900) ; Coul son and Forbes, The Law Relating to Waters (2d ed., London, )902).