
215 U.S. 70 (1909)
McGILVRA AND BRESSLER,[1]
v.
ROSS, STATE LAND COMMISSIONER OF THE STATE OF WASHINGTON.
No. 328.
Supreme Court of United States.
Argued October 19, 20, 1909.
Decided November 15, 1909.
APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
*76 Mr. Charles K. Jenner and Mr. O.C. McGilvra for appellant.
Mr. Walter P. Bell, Attorney General for the State of Washington, and Mr. John W. Roberts for appellee.
MR. JUSTICE McKENNA, after stating the case as above, delivered the opinion of the court.
The appellants are citizens of the State of Washington, and rely, therefore, upon the existence of Federal questions to sustain the jurisdiction of the Circuit Court. These questions are asserted to be (and we give the language of counsel): "(1) the validity and effect of the several patents of the United States in respect to the claim of ownership thereunder, as set forth in the bill of complaint; (2) the invocation of the protection of the Fourteenth Amendment of the Federal Constitution by these plaintiffs against the threatened taking of their property" by "the several acts of the legislature of the State of Washington and the procedure directed thereunder."
It is manifest that the first is the primary question. If the appellants did not derive the rights contended for by the patents, they have no rights to be impaired, even assuming, as we have assumed in this discussion, that the action of the State has proceeded far enough to be a trespass upon or an impairment of them. But whether such rights passed involves the construction of the acts of Congress under which the patents issued and necessarily of the effect of the patents, and presents a Federal question, if prior decisions have not defined *77 such rights and removed them from controversy. This is contended by appellees, and Shively v. Bowlby, 152 U.S. 1, is cited. And, as we have seen, the Circuit Court of Appeals took this view. Appellants attack it and contend that the facts of Shively v. Bowlby are so far different from those in the case at bar as to make that case inconclusive of the questions presented in the latter. A determination of the scope of Shively v. Bowlby becomes necessary. The controversy in that case was between a title by United States patent under the Oregon Donation Land Law, so called, being the act of Congress, September 27, 1850 (and the same law under which the title in the Bressler case is derived), to lands bounded by the Columbia River, and a title derived under the act of the State of Oregon, entitled "An act to provide for the sale of tide and overflowed lands on the seashore and coast" to lands below high-water mark on that river. The issue, therefore, was accurately presented between a title under a patent of the United States and one conveyed by a State in the exercise of its dominion over lands below high-water mark. The issue in the case at bar is exactly the same. But a distinction is pointed out, and on that distinction appellants' contentions and arguments are based. The Shively case was concerned with shore lands within the ebb and flow of the tide. In the case at bar the lands border on navigable waters, but not on tidal waters. The Shively case, it is therefore contended, as we have said, is not applicable, for, it is said, that whenever the "court in deciding said cause used the term `navigable waters' in discussing the case then before it said term meant tidal waters, for the question of rights upon tidal waters was the only question therein presented."
The argument to sustain the contention is not confined to an analysis of the case, but goes beyond, and by the citation of many cases seeks to determine the riparian rights of appellants by the common law test of navigability, to wit, the ebb and flow of the tide. The contention is that when the patents were issued to the respective appellants "the common law of England *78 in relation to riparian ownership was in full force in the Territory of Washington, and, in the absence of statutes passed by the United States, changing, modifying or varying the common law in regard to grants of land," such grants carried, unless there was an express reservation, as "appurtenances thereunto belonging" such riparian ownership, and from this it is contended that appellants "received with their several patents a grant in fee to the waters" of Lakes Union and Washington, respectively, "in front of the several tracts of land to the middle of said lakes." We will not review the reasoning by which this contention is attempted to be supported. It is enough to say that the test of navigability of waters insisted on has had no place in American jurisprudence since the decision in the case of The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, and is therefore no test of riparian ownership. This is the effect of Shively v. Bowlby, 152 U.S., supra. The whole doctrine is there displayed, and the court declared (152 U.S., p. 11), that on account of the "diversity of view as to the scope and effect of the previous decisions of this court upon the subject of public and private rights in lands below high-water mark of navigable waters," it appeared "to be a fit occasion for a full review of those decisions and a consideration of other authorities upon the subject." And the term "navigable waters," as there used, meant waters which were navigable in fact. The definition was not inadvertent or unnecessary. It was that to which the reasoning conducted and which became the test of the dominion of the national and state governments over shore lands and the rights which they had or could convey. Hence this conclusion by the court (p. 57): "The title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several States, subject to the rights granted to the United States by the Constitution." It was observed that the United States, while it held the country as a Territory, having all the powers of national and of municipal government, might have granted for appropriate purposes rights and titles below high-water *79 mark. See United States v. Winans, 198 U.S. 371; Prosser v. Northern Pacific R.R., 152 U.S. 59. But, it was said, that they had never done so by general laws, but had considered it "as most in accordance with the interest of the people and with the object for which the Territories were acquired of leaving the administration and disposition of the sovereign rights in navigable waters, and in the soil under them, to the control of the States respectively, when organized and admitted into the Union." This policy, it was remarked, as "to navigable waters and the soils under them, whether within or above the ebb and flow of the tide," has been "constantly acted upon." And hence it was further said: "Grants by Congress of portions of the public lands within a Territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mark, and do not impair the title and dominion of the future State when created, but leave the question of the use of the shores by the owners of uplands to the sovereign control of each State, subject only to the rights vested by the Constitution in the United States." The conclusion necessarily follows, as expressed by the court, that the State may dispose of its lands under navigable waters "free from any easement of the upland proprietor."
Joy v. St. Louis, 201 U.S. 332, is to the same effect. See also Scranton v. Wheeler, 179 U.S. 141, 190; United States v. Mission Rock Co., 189 U.S. 391; Kansas v. Colorado, 206 U.S. 46-93. In the latter case it was said, as a deduction from many previous cases, including Shively v. Bowlby, "that each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters." Barney v. Keokuk, 94 U.S. 324, 338, was quoted from as follows: "And since this court, in the case of The Genesee Chief, 12 How. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters and amenable to the admiralty jurisdiction, there seems *80 to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water."
It follows from these views that the Circuit Court of Appeals rightly decided that the questions presented by the bill are no longer open to discussion, and that the Circuit Court was without jurisdiction. But the Circuit Court of Appeals, overlooking the fact that the decree was not of dismissal simply, but on the merits, affirmed it. To correct this inadvertence the decree of the Circuit Court of Appeals must be reversed and the cause remanded to the Circuit Court with directions to set aside the decree on the merits and sustain the demurrer for want of jurisdiction, and on that ground dismiss the suits. This will enable appellants to litigate in the state courts whatever riparian rights they may have under the laws of the State and the constitutional provisions hereinbefore set out.
So ordered.
MR. JUSTICE HOLMES concurs in the result.
NOTES
[1]   In the Circuit Court separate cases were instituted by McGilvra and Bressler, respectively.
