There are two types of property ownership recognized by law, jus privatum and jus publicum. Everybody’s familiar with jus privatum, also known as fee simple ownership. It means that you have title to a parcel of property, which confers upon you certain rights with respect to that property. Historically, private property rights have been defined as:
The right to control the use of your property.
The right to the benefits that accrue from your property.
The right to sell or transfer your property.
The right to exclude others from access to your property.
On the other hand, few people are familiar with jus publicum, also known as the public trust. Jus publicum ownership is always vested in the state, never in a private party. Unlike jus privatum, jus publicum is not transferrable. Furthermore, in any case where jus publicum can be established, it overrides jus privatum. Therein lies the rub. That enables the state to use jus publicum to abrogate your private property rights, without your consent and without compensation, in any situation where jus publicum can be established.
The idea of public trust goes back to English Common Law.
“Both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the crown of England, are in the King. Such waters and the lands which they cover either at all times or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King’s subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king, as the sovereign; and the dominion thereof, jus publicum, is vested in him, as the representative of the nation and for the public benefit.”
— U.S. Supreme Court, Shively v. Bowlby (1894)After the American Revolution, the thirteen former colonies that made up the newly formed Union assumed the title and rights of the King to all navigable rivers within their respective territories. The jus publicum was held to be non-transferrable, acting as a permanent public easement on the jus privatum title for purposes of navigation, commerce, and fishing, as originally designated under English Common Law. At a time when rivers were the most practical means of transporting people and goods over long distances, the free use of navigable waterways was considered essential for the development of local and interstate economies.