The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right
![handle is hein.journals/davlr14 and id is 207 raw text is: The Public Trust: A Sovereign's
Ancient Prerogative Becomes
the People's Environmental
Right
By JAN S. STEVENS*
I. THE PUBLIC TRUST: CIVIL AND COMMON LAW ORIGINS
As long ago as the Institutes of Justinian, running waters, like
the air and the sea, were res communes-things common to all and
property of none.'
The real title, of course, must be vested in some person.'
These two quotations illustrate the tension in the attitude of
our legal system toward navigable waters. We are pulled in one
direction toward common ownership by a tradition as old as the
Roman Empire, and in another by precepts of common law and
private enterprise requiring that virtually everything have an
owner. This same tension is apparent in the recent challenges to
the assertion of public rights to water held in the public
trust. s
For reasons largely historical, this public trust has commonly
* Deputy Attorney General, State of California. A.B. 1955, J.D. 1958,
University of California, Berkeley. The opinions set forth are those of the
author and do not necessarily reflect those of the Attorney General.
United States v. Gerlach Live Stock Co., 339 U.S. 724, 744 (1950).
' Smith v. Andrews, [1891] 2 Ch. 678, 707.
3 The term public trust has been widely used and misused in this country.
It has been used to describe the nature of ownership of the public lands by the
federal government. E.g., United States v. Trinidad Coal Co., 137 U.S. 160
(1890); United States v. Ruby Co., 588 F.2d 697, 704-05 (9th Cir. 1978). It has
been applied to the duties of the United States in holding lands for the future
states. Knight v. United States Land Ass'n, 142 U.S. 161, 183 (1891); Pollard v.
Hagan, 44 U.S. (3 How.) 212, 221-23 (1844). It has also been used by candi-
dates to describe the nature of the public office to which they aspire. For the
purposes of this discussion, however, public trust is limited to the duties of
sovereign states to hold navigable waters for their people and to protect certain
uses for which these waters are needed.
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The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right
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