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Coastal Improvements in the USA: The Consequences for Public Navigation Rights of the Decision in Kaiser Aetna v US1

Coastal Improvements in the USA: The Consequences for Public Navigation Rights of the Decision in... 67 Coastal Improvements in the USA: The Consequences for Public Navigation Rights of the Decision in Kaiser Aetna v US1 Sheila E. Foster Principal Lecturer in Law, Department of Legal Studies, Trent Polytechnic, Nottingham, UK "... not all economic interests are property rights; only those economic advantages are 'rights' which have law at the back of them.... "2 Under English common law, the term "navigable" was confined to the high seas and rivers in so far as they were subject to the ebb and flow of the tide,3 tidal waters being determined not by their salinity but by whether or not they were subject to the thrust of tide from the sea :4 if as it flowed inland it caused the level of the rel- evant waters to rise, and to fall when it receded, then such waters were presumed to be navigable at common law 5 However, while the American concept of navigability is based on this ancient English legal definition, the American judges soon recognized6 that legal navigabi- lity in the United States at any rate was not dependent upon tidality. Thus, while most tidal waters are legally navigable, some non-tidal ones may be similarly navig- http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Estuarine and Coastal Law (in 1993 continued as The International Journal of Marine and Coastal Law) Brill

Coastal Improvements in the USA: The Consequences for Public Navigation Rights of the Decision in Kaiser Aetna v US1

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Publisher
Brill
Copyright
© 1987 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0268-0106
eISSN
1875-2993
DOI
10.1163/187529987X00103
Publisher site
See Article on Publisher Site

Abstract

67 Coastal Improvements in the USA: The Consequences for Public Navigation Rights of the Decision in Kaiser Aetna v US1 Sheila E. Foster Principal Lecturer in Law, Department of Legal Studies, Trent Polytechnic, Nottingham, UK "... not all economic interests are property rights; only those economic advantages are 'rights' which have law at the back of them.... "2 Under English common law, the term "navigable" was confined to the high seas and rivers in so far as they were subject to the ebb and flow of the tide,3 tidal waters being determined not by their salinity but by whether or not they were subject to the thrust of tide from the sea :4 if as it flowed inland it caused the level of the rel- evant waters to rise, and to fall when it receded, then such waters were presumed to be navigable at common law 5 However, while the American concept of navigability is based on this ancient English legal definition, the American judges soon recognized6 that legal navigabi- lity in the United States at any rate was not dependent upon tidality. Thus, while most tidal waters are legally navigable, some non-tidal ones may be similarly navig-

Journal

International Journal of Estuarine and Coastal Law (in 1993 continued as The International Journal of Marine and Coastal Law)Brill

Published: Jan 1, 1987

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