1890 Germany recognized a British protectorate over Zanzibar and Pemba, and in return Great Britain ceded to Germany the island of Heligoland in the North Sea. A state may cede its own domain, in order to become a part of another state, as in the case of the annexation of the Republic of Hawaii to the United States in 1898.10

MARITIME AND FLUVIAL DOMAIN.

29. Maritime and fluvial domain includes the water area within the boundaries of a state and within conventional limits of its shores.

The Roman Law early provided that the aërial, maritime, and fluvial domain was of a less absolute character than territorial domain, stating that, unlike territory, the use of such things is common to mankind under certain limitations.17

Domain over certain water area is incident to the possession of the territorial domain, and passes to the holder of the land, though the sea and land are regarded as distinct in Great Britain. 18

islands as will best promote the interests of the United States and the inhabitants of said islands."

16 For relations between United States and Hawaii, 1820 to 1893, see Foreign Relations U. S., 1894, Appendix II.

17 "Et quidem naturali jure communia sunt omnium hæc, aër, aqua profluens, et mare et per hoc litora maris. Nemo igitur ad litus maris accedere prohibetur, dum tamen villis et monumentis et ædificiis abstineat: quia non sunt juris gentium, sicut et mare." Digest, 1, 8, 2, I.

18 Molloy maintains that: "The right to the sea ariseth not from the possession of the shores; for the sea and land make distinct territories, and by the laws of England, the land is called the realm, but the sea the dominion; and as the loss of one province doth not infer that the prince must resign up the rest, so the loss of the land territory doth not by concomitancy argue the loss of the adjacent sea." De Jure Martino, c. 5.

In the discussion as to relative rights of parties to minerals under the sea above and below low-water mark in the sea adjoining Cornwall, there was no question that the land under the sea was within the domain of Great Britain and "a part of the soil and territorial possessions of the Crown." See remarks thereon in Regina v. Keyn, L. R. 2 Ex. Div. 63, 121, 155, 199.

.

(a) Waters wholly within the territorial domain of a state are under the exclusive dominion of the state. This applies particularly to inland seas, lakes, and the rivers discharging into them.

(b) Rivers flowing wholly within the territorial domain of a state are regarded as the property of that state. Domain in rivers which form the boundary line of two states, in default of other evidence, extends to the middle of the navigable channel, or thalweg. Title to the entire river may be acquired, as in cases of territorial domain.19

(c) The coast waters of the open sea to the distance of three miles from the low-water mark are for certain purposes within the maritime domain. The title to this domain goes with the title to the coast. The three-mile limit of domain has gradually received favor, though much more extended claims have been made.20

19 "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created state extends to the river only. The river, however, is its boundary. Even when a state retains its dominion over a river which constitutes the boundary between itself and another state, it would be extremely inconvenient to extend its dominion over the land on the other side, which was left bare by the receding of the water. And this inconvenience is not less where the rising and falling is annual than where it is diurnal. Wherever the river is a boundary between states, it is the main, the permanent, river which constitutes that boundary; and the mind will find itself embarrassed with unsurmountable difficulty in attempting to draw any other line than the low-water mark." Handly v. Anthony, 5 Wheat. 374, 5 L. Ed. 113.

20 Selden, Mare Clausum, published in 1635, opposed Grotius' Mare Liberum, published 1609, and maintained that British sovereignty over the coast sea extended even to the North Pole, and that the sea might properly be private property. Many writers also followed Selden's claim that the fundus maris, or the sea bottom, was a "part of the waste and demesnes and dominions of the King of England.” Till the decision in Regina v. Keyn [1876] L. R. 2 Ex. Div. 63, the British limits of maritime domain were subject to dispute. This decision was followed by an act of Parliament, "Territorial Waters Jurisdiction Act, 1878," which provided: "The territorial waters of

(d) Gulfs, bays, and other arms of the sea, whose openings toward the sea do not exceed six miles in width, are uniformly regarded as within the maritime domain of the state which holds the coast land. There are various claims to more extended domain.

AËRIAL DOMAIN.

30. Aërial domain includes the atmosphere above the territorial, maritime, and fluvial domain of a state.

The dominion over the air has received consideration for many years. Some would date the discussion from the first chapter of the book of Genesis, when man is given "dominion over the fish of the sea and over the fowl of the air." Of this Pufendorf in 1672 says: "We cannot conceive any supremacy and rule over animals, without a right of using the element which they inhabit, according as the nature of it will allow. Indeed, mention is likewise made of the fowls of the air, yet since we cannot move and support ourselves in that element alone, therefore we are unable to exercise dominion over the air any further than we can reach while we stand on the earth." 21 Early writers, however, recognize certain rights in the atmosphere, as the right to the wind for mills depending upon currents of air for power, as later mills depended upon the force of water. The early writers usually referred to the Roman law principle that by the law of nature the air, running water, the sea, and shores of the sea were common to mankind.22

Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offense declared by this act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions."

21 Pufendorf, The Law of Nature and Nations (Kennet's Trans.) bk. IV, c. V, § V.

22 Institutes, lib. II, tit. I, 1. See, also, Nys, Droit et Aërostats Rev. de Droit Int. et de Leg. Comparée (2e série) IV, p. 510.

The atmosphere above the state is within its domain, and this is generally recognized in the unquestioned appropriation of the space above the state area for the erection of buildings, monuments, bridges, etc., as well as in the ordinary use of the atmosphere. It would not be reasonable to attribute to a state property rights in the atmosphere. Such rights would neither be consistent with the nature of the atmosphere itself nor with the rights of others. Yet, with the increasing use of the atmosphere for aërial transportation both of messages and persons, it is evident that it cannot be regarded as in all respects res nullius.

With the development of modern war balloons and of wireless telegraphy, there would naturally be a corresponding development of dominion over the atmosphere. The war balloons would bear a close resemblance to war ships in certain respects; e. g., the war ship might sink if its buoyancy were reduced through the entrance of water, while the balloon might sink if its buoyancy were reduced through the entrance of air. In time of peace, unregulated use of the atmosphere by wireless telegraphy might destroy the efficiency of this means of communication. Photographing of or observations upon fortifications from any means of aërial transportation would be no less objectionable, because made from above, rather than on the surface of a state. States have already begun to make agreements upon the subject of wireless telegraphy. The Institute of International Law at its session in 1906 declared that, while the air was free, a state had the right to regulate the use of the atmosphere above its territorial and maritime domain for the transmission of wireless messages, whether from public or private stations on land, or sea, or in the air.23 The United States has in recent years asserted that the atmosphere was within the domain of the state.

In the case of Georgia v. Tennessee Copper Co., in 1906, the Supreme Court of the United States said that, while the state itself owned very little of the property alleged to have been damaged by the discharge of gases into the air, yet in its capacity of quasi sovereign "the state has an interest, independ

23 21 Annuaire de l'Institut, p. 327. See post, p. 122, note 52, chapter IV.

ent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air." 24

In 1907 the Supreme Court of the United States said. that: "It is recognized that the state, as quasi sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory, irrespective of the assent of the private owners of the land most immediately concerned." 25

The German Civil Code, which came into effect January 1, 1900, announces certain principles in regard to the rights of the owner of land in the atmosphere:

"904. The owner of a thing has not the right to prohibit the interference of another with the same, if the interference is necessary to avert a present danger and the threatened damage compared to the damage arising to the owner from the interference is disproportionately great. The owner may demand indemnity for the damage to him.

"905. The right of the owner of a piece of land extends to the space above the surface and to the earth under the surface. However, the owner cannot prohibit interferences which take place at such height or depth that he has no interest in their exclusion.

"906. The owner of a piece of land cannot prohibit the incoming of gases, steam, odors, smoke, soot, heat, noises, shocks and similar interference coming from another piece of land in so far as the interference does not, or only inconsiderably, affect the use of his land, or so far as it is caused by a use of the other piece of land, which under the local condition, is usual with land in such situation. The introduction through a special channel is not permissible." 26

Other codes enunciate similar principles, showing that the owner of the land has a right to demand that the use of the atmosphere above the land may not be to his serious detriment.

24 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038.

25 Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828.

26 Loewy, German Civil Code, Nos. 904-906.