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-10- wildlife habitat as those needs are identified? If so, this would mark a dramatic change in the way the water allocation system has operated for the last century. PUBLIC TRUST DOCTRINE Historical Roots in Ancient Rome While the eastern riparian doctrine has its roots in English history, most westerners assume that western water law can be traced back only to 1849 when gold miners first descended upon California. In fact, the roots of both eastern and western water law reach back over 1,400 years. In the year 533 A.D., Emperor Justinian handed down his "Institutes" which codified a thousand years of Roman law and articulated the concept of what is now known as the "public trust doctrine". Justinian's words were simple: Thus, the following things are by natural law common to all--the air, r~nn»g water, the sea, and consequently the sea-shore. No one is therefore forbidden access to the sea- shore .... On the other hand, all rivers and harbours are public, so that all persona have a right to fish therein." The central premise of the public trust doctrine is that water, and the land under water, are of such vital importance to the public that they must be treated differently from other property. Unlike ordinary property, these resources cannot be rendered entirely private; they always retain a public aspect. In legal terminology, they are "impressed with a public trust". This idea was taken from Roman law by the English, and from English law by early American courts. (It also followed a route via Spain to the southwestern United States.) Today the concept that certain resources inherently have public trust values remains deeply ingrained in the law of water allocation throughout the United States- -though controversy over its application continues. The first American application of the public trust doctrine came in the last century's In 1869, the Illinois legislature, in an act of unbridled generosity, deeded away virtually the entire lakefront of the city of Chicago to the Illinois Central Railroad. Four years later the legislature thought better of its profligacy and repealed the grant. Central Illinois then sued the state claiming it had no right to take back its ~• The U.S. Supreme Court sided with Illinois, declaring that the submerged land handed over to the railroad was impressed with a public trust, and declared, "[T]he State holds the title to the lands under the navigable waters of Lake Michigan, .. . [b]ut it is a title different in character from that which the State holds in lands intended for sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties."~ Thus was born the modern public trust doctrine. "The Institutes of Justinian. book II, title 1, at D2 (J.B. Moyle trans. 6th ed. 1928). "Alinois Central Railroad Co. v. Illinois. 146 U.S. H87 (1892). "Id. at 452.