U.S. Supreme Court BORAX CONSOLIDATED v. CITY OF LOS ANGELES, 296 U.S. 10 (1935)

[Page 296 U.S. 10, 26]

lands and submerged lands' situated 'below the line of mean high tide of the Pacific ocean.' [Footnote 4] Petitioners urge that 'ordinary high-water mark' has been defined by the state court as referring to the line of the neap tides. 5 We find it unnecessary to review the cases cited or to attempt to determine whether they record a final judgment as to the construction of the state statute, which, of course, is a question for the state courts.

[Page 296 U.S. 10, 27]

period of time,' and the further observation that 'from theoretical considerations of an astronomical character' there should be 'a periodic variation in the rise of water above sea level having a period of 18.6 years,'7 the Court of Appeals directed that in order to ascertain the mean high-tide line with requisite certainty in fixing the boundary of valuable tidelands, such as those here in question appear to be, 'an average of 18. 6 years should be determined as near as possible.' We find no error in that instruction.

The decree of the Court of Appeals is affirmed.

Decree affirmed.

Mr. Justice McREYNOLDS is of opinion that Knight v. United Land Association, , 12 S.Ct. 258, is controlling and that the decree of the District Court should be affirmed. Footnotes

[Footnote *] Rehearing denied 296 U.S. 664, 56 S.Ct. 304.[ Borax Consolidated v. City of Los Angeles 296 U.S. 10 (1935) ]

Footnote 1 The Act of 1911 (St. 1911, p. 1256) provided: 'There is hereby granted to the city of Los Angeles, a municipal corporation of the State of California, and to its successors, all the right, title and interest of the State of California, held by said state by virtue of its sovereignty, in and to all tide lands and submerged lands, whether filled or unfilled, within the present boundaries of said city, and situated below the line of mean high tide of the Pacific ocean, or of any harbor, estuary, bay or inlet within said boundaries, to be forever held by said city, and by its successors, in trust for the uses and purposes, and upon the express conditions following, to wit.' The conditions which followed are not material here.

The granting clause above quoted is the same in the Act of 1917 (St. 1917, p. 159).

Footnote 2 See 'The Tide.' H. A. Marmer, Assistant Chief, Division of Tides and Currents, U.S. Coast and Geodetic Survey, pp. 9, 10. 'There is generally an interval of one or two days between full moon or new moon and the greatest range of the tide. And a like interval is found between the first and third quarters of the moon and the smallest tides.' Id., p. 11.

The origin of the terms spring and neap tides 'is probably due to the fact that as the moon leaves the meridian of the sun in her orbital transit round the earth and approaches the quarters the tides begin to 'fall off' or are 'nipped,' and neap tides ensue. As she leaves the quarters for the meridian they begin to 'lift,' or 'come on,' or 'spring up,' and when the meridian is reached spring tides ensue.' 'A Practical Manual of Tides and Waves,' W. H. Wheeler, p. 49.

Footnote 3 See, also, Tracey Elliott v. Earl of Morley, Ch. Div. 51 Sol. Journal (1907), 625.

Footnote 4 See note 1.

Footnote 5 See Teschemacher v. Thompson, 18 Cal. 11, 21, 79 Am.Dec. 151; Ward v. Mulford, 32 Cal. 365, 373; Eichelberger v. Mills Land, etc., Co., 9 Cal. App. 628, 639, 100 P. 117; Forgeus v. County of Santa Cruz, 24 Cal.App. 193, 195, 140 P. 1092; F.A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436, 442, 150 P. 62; City of Oakland v. E. K. Wood Lumber Co., 211 Cal. 16, 23, 292 P. 1076, 80 A.L.R. 379; Otey v. Carmel Sanitary District, 219 Cal. 310, 313, 26 P.(2d) 308. In a Number of cases the state court has referred to the limit of the shore as the 'ordinary' high water mark. See Wright v. Seymour, 69 Cal. 122, 126, 10 P. 323; Long Beach Company v. Richardson, 70 Cal. 206, 11 P. 695; City of Oakland v. Oakland Water Front Co., 118 Cal. 160, 183, 50 P. 277; Pacific, etc., Co. v. Packers' Association, 138 Cal. 632, 635, 636, 72 P. 161; People v. California Fish Co., 166 Cal. 576, 584, 138 P. 79. See, also, Strand Improvement Co. v. Long Beach, 173 Cal. 765, 770, 161 P. 975; Miller & Lux v. Secara, 193 Cal. 755, 761, 762, 227 P. 171.

Footnote 6 'Tidal Datum Plane,' Special Publication No. 135, p. 76.

Footnote 7 Id. p. 81.