Morris v. United States/Opinion of the Court
[Syllabus from pages 196-198 intentionally omitted]
The act of Maryland entitled 'An act to cede to congress a district of ten miles square in this state for the seat of the government of the United States' was in the following terms: 'Be it enacted by the general assembly of Maryland, that the representatives of this state in the house of representatives of the congress of the United States, appointed to assemble at New York, on the first Wednesday of March next, be and they are hereby authorized and required, on behalf of this state, to cede to the congress of the United States any district in this state, not exceeding ten miles square, which the congress may fix upon and accept for the seat of government of the United States.' Kilty's Laws Md. p. 46, c. 2.
On December 3, 1789, by an act entitled 'An act for the cession of ten miles square, or any lesser quantity of territory within this state, to the United States, in congress assembled, for the permanent seat of the general government,' Virginia ceded to the congress and government of the United States a tract of country not exceeding 10 miles square, or any lesser quantity, to be located within the limits of the state, and in any part thereof as congress may by law direct, in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon; providing that nothing therein contained should be construed to vest in the United States any right of property in the soil, or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States; and providing that the jurisdiction of the laws of the commonwealth, over the persons and property of individuals residing within the limits of the said concession, should not cease or determine until congress should accept the cession, and should by law provide for the government thereof under their jurisdiction.
Congress, by an act entitled 'An act for establishing the temporary and permanent seat of the government of the United States,' approved July 16, 1790, accepted a district of territory, not exceeding 10 miles square, to be located on the river Potomac, and authorized the president of the United States to appoint commissioners, who should, under the direction of the president, survey, and, by proper metes and bounds, define and limit, the district, which, when so defined, limited, and located, should be deemed the district so accepted for the permanent seat of the government of the United States. It was further thereby enacted that the said commissioners should have power to purchase or accept such quantity of land on the estern side of said river, within the said district, as the president should deem proper for the use of the United States, and according to such plans as the president should approve, and that the commissioners should, prior to the first Monday in December in the year 1800, provide suitable buildings for the accommodation of congress, and of the president, and for the public offices of the government; and that on the said first Monday in December in the year 1800 the seat of the government of the United States should be transferred to the district and place aforesaid, and that all offices attached to the government should be removed thereto and cease to be exercised elsewhere. The act contained the following proviso: 'That the operation of the laws of the state within said district shall not be affected by this acceptance until the time fixed for the removal of the government thereto, and until congress shall otherwise by law provide.' 1 Stat. 130.
On January 22, A. D. 1791, Thomas Johnson and Daniel Carroll, of Maryland, and Daniel Stewart, of Virginia, were appointed by President Washington commissioners to carry the foregoing legislation into effect.
On March 3, 1791, congress passed an amendatory act, by which, after reciting that the previous act had required that the whole of the district or territory, not exceeding 10 miles square, to be located on the river Potomac, should be located above the mouth of the Esatern Branch, the president was authorized to make any part of the territory below said limit, and above the mouth of Hunting Creek, a part of the said district, so as to include a convenient part of the Eastern Branch and of the lands lying on the lower side thereof, and also the town of Alexandria, and that the territory so to be included should form a part of the district not exceeding 10 miles square for the seat of the government, but providing that nothing contained in the act should authorize the erection of the public buildings otherwise than on the Maryland side of the river Potomac.
On March 30, A. D. 1791, President Washington issued a proclamation, describing the territory selected by him for the location of the seat of government, as follows:
'Beginning at Jones' Point, being the upper cape of Hunting Creek in Virginia, and at an angle, in the outset, of forty-five degrees west of the north, and running in a direct line ten miles for the first line; then beginning again at the same Jones' Point and running another direct line at a right angle with the first across the Potomac ten miles for the second line; then from the terminations of the said first and second lines, running two other direct lines of ten miles each, the one crossing the Eastern Branch aforesaid and the other the Potomac, and meeting each other in a point.'
The commissions were accordingly instructed by the president to have the said four lines run, and to report their action.
In the meantime, intercourse was had between the commissioners and the principal owners of property within the district, looking to the sale and conveyance by the latter of land on which a federal city was to be erected. And the following agreement was signed by the proprietors:
'We, the subscribers, in consideration of the great benefits we expect to derive from having the federal city laid off upon our lands, do hereby agree and bind ourselves, heirs, executors and administrators, to convey in trust, to the president of the United States, or commissioners, or such person or persons as he shall appoint, by good and sufficient deed in fee simple, the whole of our respective lands which he may think proper to include within the lines of the federal city, for the purposes and on the conditions following:
'The president shall have the sole power of directing the federal city to be laid off in what manner he pleases. He may retain any number of squares he may think proper for public improvements, or other public uses, and the lots only which shall be laid off shall be a joint property between the trustees on behalf of the public and each present proprietor, and the same shall be fairly and equally divided between the public and the individuals, as soon as may be, after the city shall be laid out.
'For the streets the proprietors shall receive no compensation, but for the squares or lands in any form which shall be taken for public buildings or any kind of public improvements or uses, the proprietors, whose lands shall be so taken, shall receive at the rate of twenty-five pounds per acre, to be paid by the public. The whole wood on the land shall be the property of the proprietors, but should any be desired by the president to be reserved or left standing, the same shall be paid for by the public at a just and reasonable valuation exclusive of the twenty-five pounds per acre, to be paid for the land on which the same shall remain.
'Each proprietor shall retain the full possession and use of his land, until the same shall be sold and occupied by the purchasers of the lots laid out thereupon, and in all cases where the public arrangements as to streets, lots, etc., will admit of it, each proprietor shall possess his buildings and other improvements and graveyards, paying to the public only one-half the present estimated value of the lands, on which the same shall be, or twelve pounds ten shillings per acre. But in cases where the arrangements of the streets, lots and squares will not admit of this, and it shall become necessary to remove such buildings, improvements, etc., the proprietors of the same shall be paid the reasonable value thereof by the public.
'Nothing herein contained shall affect the lots which any of the parties to this agreement may hold in the towns of Carrollsburgh or Hamburgh.
'In witness whereof we have hereto set our hands and seals, this thirteenth day of March, 1791.'
Among the signers of this agreement were Robert Peter, David Burns, Notley Young, and Daniel Carroll.
Subsequently, in pursuance of the agreement, the several proprietors executed deeds of conveyance to Thomas Beall and John Mackall Gantt, as trustees.
It will be found convenient, in view of the questions that arise in the case, to have the deeds of David Burns and Notley Young transcribed in full:
'This indenture, made this twenty-eighth day of June, in the year of our Lord one thousand seven hundred and ninety-one, between David Burns of the state of Maryland, of the one part, and Thomas Beall (son of George) and John Mackall Gantt of the state of Maryland, of the other part, witnesseth: That the said David Burns, for and in consideration of the sum of five shillings to him in hand paid by Thomas Beall and John Mackall Gantt, before the sealing and delivery of these presents, the receipt whereof he doth hereby acknowledge and thereof doth acquit the said Thomas Beall and John Mackall Gantt, their executors and administrators, and also for and in consideration of the uses and trusts hereinafter mentioned to be performed by the said Thomas Beall and John Mackall Gantt and the survivor of them, and the heirs of such survivor, according to the true intent and meaning thereof, hath granted, bargained, sold, aliened, released and confirmed, and by these presents doth grant, bargain, sell, alien, release and confirm unto the said Thomas Beall and John Mackall Gantt and the survivor of them, and the heirs of such survivor, all the lands of him the said David Burns, lying and being within the following limits, boundaries and lines, to wit: Beginning on the east side of Rock Creek at a stone standing in the middle of the road leading from Georgetown to Bladensburgh, thence along the middle of the said r ad to a stone standing on the east side of the Reedy Branch of Goose Creek, thence southeasterly making an angle of sixty-one degrees and twenty minutes, with the meridian to a stone standing in the road leading from Bladensburgh to the Eastern Branch Ferry, thence south to a stone eighty poles north of the east and west line already drawn from the mouth of Goose Creek to the Eastern Branch, thence east parallel to the said east and west line to the Eastern Branch, Potomack River and Rock Creek, to the beginning, with their appurtenances, except all and every lot and lots of which the said David Burns is seised or to which he is entitled lying in Carrollsburgh or Hamburgh. To have and to hold the hereby bargained and sold lands, with their appurtenances, to the said Thomas Beall and John Mackall Gantt, and the survivor of them, and the heirs of such survivor, forever, to and for the special trusts following, and no other, that is to say, that all the said lands hereby bargained and sold, or such parts thereof as may be thought necessary or proper to be laid out, together with other lands within the said limits, for a federal city, with such streets, squares, parcels and lots as the president of the United States for the time being shall approve, and that the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor, shall convey to the commissioners for the time being appointed by virtue of an act of congress, entitled 'An act for establishing the temporary and permanent seat of the government of the United States,' and their successors, for the use of the United States forever, all the said streets and such of the said squares, parcels and lots, as the president shall deem proper, for the use of the United States, and that as to the residue of the lots into which the said lands hereby bargained and sold shall have been laid off and divided, that a fair and equal division of them shall be made, and if no other mode of division shall be agreed on by the said David Burns and the commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate to the said David Burns, and it shall on that event be determined by lot whether the said David Burns shall begin with the lot of the lowest number laid out on his said lands or the following number, and all the said lots which may in any manner be divided or assigned to the said David Burns shall thereupon together with any part of the said bargained and sold lands, if any which shall not have been laid out in the said city, be conveyed by the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor to him, the said David Burns, his heirs and assigns, and that the said other lots shall and may be sold at any time or times in such manner and on such terms and conditions as the president of the United States for the time being shall direct, and that the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor will, on the order and direction of the president, convey all the said lots so sold and ordered to be conveyed to the respective purchasers in fee simple, according to the terms and conditions of such purchasers, and the produce of the sales of the said lots when sold as aforesaid shall, in the first place, be applied to the payment in money to the said David Burns, his executors, administrators or assigns, for all the part of the lands hereby bargained and sold, which shall have been in lots, squares or parcels, and appropriated as aforesaid, to the use of the United States, at the rate of twenty-five pounds per acre, not accounting the said streets as part thereof, and the said twenty-five pounds per acre being so paid, or in any other manner satisfied, that the produce of the same sales or what thereof may remain as aforesaid in money or securities of any kind shall be paid, assigned, transferred and delivered over to the president for the time being, as a grant of money, and to be applied for the purposes and according to the act of congress aforesaid, but the said conveyances to the said David Burns, his heirs or assigns, as well as the conveyances to the purchasers, shall be on and subject to such terms and conditions as shall be thought reasonable by the president for the time being, for regulating the materials and manner of the buildings and improvements on the lots generally in the said city, or in particular streets or parts thereof for common convenience, safety and order; provided such terms and conditions be declared before the sales of any of the said lots under the direction of the president and in trusts farther, and on the agreement that he, the said David Burns, his heirs and assigns, shall and may continue his possession and occupation of the said land hereby bargained and sold, at his and their will and pleasure until the same shall be occupied under the said appropriations for the use of the United States as aforesaid, or by purchasers, and when any lots or parcels shall be occupied under purchase or appropriations as aforesaid, then, and not till then, shall the said David Burns relinquish his occupation thereon. And in trust also as to the trees, timber and woods on the premises that he, the said David Burns, his heirs or assigns, may freely cut down, take and use the same as his and their property, except such of the trees and wood growing as the president or commissioners aforesaid may judge proper and give notice, shall be left for ornament, for which the just and reasonable value shall be paid to the said David Burns, his executors, administrators or assigns, exclusive of the twenty-five pounds per acre for the land, and in case the arrangements of the streets, lots and like will conveniently admit of it, he, the said David Burns, his heirs and assigns, shall, if he so desire it, possess and retain his buildings and graveyard, if any, on the hereby bargained and sold lands, paying to the president at the rate of twelve pounds ten shillings per acre, of the lands so retained, because of such buildings and graveyards to be applied as aforesaid, and the same shall be thereupon conveyed to the said David Burns, his heirs and assigns, with the lots, but if the arrangements of the streets, lots and the like will not conveniently admit of such retention and it shall become necessary to remove such buildings, then the said David Burns, his executors, administrators or assigns, shall be paid the reasonable value thereof in the same manner as squares or other ground appropriated for the use of the United States are to be paid for. And because it may so happen that by deaths and removals of the said Thomas Beall and John Mackall Gantt, and from other causes, difficulties may occur in fully perfecting said trust by executing all the said conveyances, if no eventual provision is made, it is therefore agreed and covenanted, between all the said parties, that the said Thomas Beall and John M. Gantt, or either of them, or the heirs of either of them, lawfully may, and they at any time, at the request of the president of the United States for the time being, will convey all or any of the said lands hereby bargained and sold which shall not then have been conveyed in execution of the trusts aforesaid to such person or persons as he shall appoint in fee simple, subject to the trusts then remaining to be executed, and to the end that the same may be perfected. And it is further agreed and granted between all the said parties, and each of the said parties doth for himself respectively and for his heirs covenant and grant to and with the others of them that he and they shall, and will, if required by the president of the United States for the time being, join in and execute any further deed or deeds for carrying into effect the trusts, purposes and true intent of this present deed.
'In witness whereof, the parties to these presents have hereunto interchangeably set their hands and affixed their seals the day and year first above w itten.'
The deed of Notley Young is in substantially similar terms.
On December 19, 1791, an additional act was passed by Maryland, ratifying the previous act of cession, and reciting that Notley Young, Daniel Carroll of Duddington, and many other proprietors of the part of the land thereinafter mentioned to have been laid out in a city had come into an agreement, and had conveyed their lands in trust to Thomas Beall and John Mackall Gantt, whereby they subjected their lands to be laid out as a city, given up part to the United States, and subjected other parts to be sold to raise money, as a donation, to be employed according to the act of congress for establishing the temporary and permanent seat of the government of the United States, under and upon the terms and conditions contained in each of said deeds; that the president had thereafter directed to be laid out upon such lands a city, which has been called the 'City of Washington,' comprehending all the lands beginning on the east side of Rock Creek, at a stone standing in the middle of the road leading from Georgetown to Bladensburgh, thence along the middle of said road to a stone standing on the east side of the Reedy Branch of Goose Creek, thence southeasterly, making an angle of 61 degrees and 20 minutes with the meridian, to a stone standing in the road leading from Bladensburgh to the Eastern Branch Ferry, thence south to a stone 80 poles north of the east and west line already drawn from the mouth of Goose Creek to the Eastern Branch, then east parallel to the said east and west line to the Eastern Branch, then with the waters of the Eastern Branch, Potomac river, and Rock Creek, to the beginning.
By section 2, that portion of the 'territory called Columbia,' lying within the limits of the state, there was ceded and relinquished to the congress and the government 'full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon'; but providing that nothing therein contained should be so construed to vest in the United States any right of property in the soil as to affect the rights of individuals therein otherwise than the same shall or may be transferred by such individuals to the United States, and that the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession should not cease or determine until congress should by law provide for the government thereof.
By section 3 it was provided that 'all persons to whom allotments and assignments of lands shall be made by the commissioners, or any two of them, on consent or agreement, or, pursuant to the act, without consent, shall hold the same in their former estate and interest, and as if the same had been actually reconveyed pursuant to the said deed in trust.'
By section 5 it was enacted that 'all the lots and parcels which have been or shall be sold to raise money shall remain and be to the purchasers, according to the terms and conditions of their respective purchase'; and that a purchase, when made from one claiming title, and for five years previous to the statute in possession, either actually or constructively, through those under whom he claimed, was rendered unassailable, and that the true owner must pursue the purchase money in the hands of the vendor.
Section 7 enacted that the commissioners might appoint a clerk for recording deeds of land within the said territory, who shall provide a proper book for the purpose, and therein record, in a strong, legible hand, all deeds, duly acknowledged, of lands in the said territory delivered to him to be recorded, and in the same book make due entries of all divisions and allotments of lands and lots made by the commissioners in pursuance of this act, and certificates granted by them of sales, and the purchase money having been paid, with a proper alphabet in the same book of the deeds and entries aforesaid.
By section 9 it was enacted that the commissioners shall direct an entry to be made in the said record book of every allotment and assignment to the respective proprietors in pursuance of this act.'
By section 12 it was declared that, until the assumption of legislative power by congress, the commissioners should have power to 'license the building of wharves in the waters of the Potomack and the Eastern Branch, adjoining the said city, of the materials, in the manner and of the extent they may judge durable, convenient and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the said waters without a license as aforesaid; and if any wharf shall be built without such license, or different therefrom, the same is hereby declared a common nuisance; they may also, from time to time, make regulations for the discharge and laying of ballast from ships or vessels lying in the Potomack river above the lower line of the said territory and Georgetown, and from ships and vessels lying in the Eastern Branch.' 2 Kilty's Laws Md. c. 45.
While the transactions were taking place bwtween the commissioners and the several proprietors, and which culminated in the deeds of conveyance by the latter to Beall and Gantt, negotiations were going on between the president and the commissioners, on the one hand, and the owners of lots in Carrollsburgh and Hamburgh, on the other. Without following these negotiations in detail, it seems sufficient to say that an agreement, substantially similar to the one of March 13, 1791, was reached with those lot owners, and that the territory of those adjacent villages was embraced in the president's proclamation of March 30, 1791.
By a letter, contained in the record, dated March 31, 1791, from President Washington to Thomas Jefferson, secretary of state, it appears that Maj. L'Enfant was, after the aforesaid agreements had been reached, directed by the president to survey and lay off the city; and the president further stated in that letter that 'the enlarged plan of this agreement having done away the necessity, and indeed postponed the propriety, of designating the particular spot on which the public buildings should be placed until an accurate survey and subdivision of the whole ground is made,' he has left out of the proclamation the paragraph designating the sites for the public buildings.
On August 19, 1791, Maj. L'Enfant presented to the president his plan of the city, accompanied with a letter, describing the plan as still incomplete, and making several suggestions, particularly one to the effect that sales should not be made till the completion of his scheme for the city and the public buildings should be completed.
On December 13, 1791, the president sent to congress a communication in the following terms: 'I place before you the plan of the city that has been laid out within the district, of ten miles square, which was fixed upon for the permanent seat of the government of the United States.'
Afterwards, on February 20, 1797, on the occasion of a complaint by Mr. Davidson of certain deviations from this plan by Maj. Ellicott, who succeeded Maj. L'Enfant as surveyor, President Washington, in a letter to the commissioners, said: 'Mr. Davidson is mistaken if he supposed that the transmission of Major L'Enfant's plan of the city to congress was the completion thereof. So far from it, it will appear by the message which accompanied the same, that it was given as matter of information to show what state the business was in, and the return of it requested; that neither house of congress passed any act consequent thereupon; that it remained, as before, under the control of the executive; that afterwards several errors were discovered and corrected, many alterations made, and the appropriations, except as to the capitol and the president's house, struck out under that authority, before it was sent to the engraver, intending that work and the promulgation thereof were to give it the final and regulating tamp.'
Subsequently dissensions arose between the commissioners and L'Enfant, which resulted in the dismissal of the latter, and the employment of Andrew Ellicott, who, on February 23, 1792, completed a plan of the city and delivered it to the president, who, in a letter to the commissioners, dated March 6, 1792, said: 'It is impossible to say with any certainty when the plan of the city will be engraved. Upon Major L'Enfant's arrival here, in the latter part of December, I pressed him in the most earnest manner to get the plan ready for engraving as soon as possible. Finding there was no prospect of obtaining it through him, at least not in any definite time, the matter was put into Mr. Ellicott's hands to prepare about three weeks ago. He has prepared it, but the engravers, who have undertaken to execute it say it cannot certainly be done in less than two, perhaps not under three, months. There shall, however, be every effort made to have the thing effected with all possible dispatch.'
This so-called Ellicott's plan was engraved at Boston and at Philadelphia; the engraved plans differing, in that the latter did, and the former did not, show the soundings of the creek and river.
Subsequently James R. Dermott was employed to make a plan of the city, which he completed prior to March 2, 1797, and on that day President Washington, by his act, requested and directed Thomas Beall and John M. Gantt, the trustees, to convey all the streets in the city of Washington, as they were laid and delineated in the plan of the city thereto attached, and also the several squares, parcels, and lots of ground appropriated to the use of the United States, and particularly described, to Gustavus Scort, William Thornton, and Alexander White, commissioners appointed under the act of congress.
On July 23, 1798, President Adams, in an instrument alleging that the plan referred to in said request and instruction by President Washington as having been annexed thereto had been omitted, declared that he had caused said plan to be annexed to said writing, and requested the said Thomas Beall and John M. Gantt to convey the streets, squares, parcels, and lots of ground, described in the act of the late president of the United States as public appropriations, to the said Scott, Thornton, and White, and their successors in office as commissioners, to the use of the United States, forever.
Lots and parcels of ground were sold to private purchasers, from time to time, under all three of these plans, and controversies have arisen as to the comparative authenticity of these plans. The particulars wherein those plans differ are stated and considered in the opinion of the court.
On February 27, 1801, congress passed the act concerning the District of Columbia and its government, and providing 'that the laws of the state of Maryland as they now exist shall be continued in force in that part of the said district which was ceded by that state.'
By the act of August 2, 1882 (22 Stat. 198), congress made an appropriation for 'improving the Potomac river in the vicinity of Washington with reference to the improvement of navigation, the establishment of harbor lines, and the raising of the flats, under the direction of the secretary of war, and in accordance with the plan and report made in compliance with the river and harbor act approved March 3, 1881, and the reports of the board of engineers made in compliance with the resolution of the senate of December 13, 1881.'
This act made it the duty of the attorney general to examine all claims of title to the premises to be improved under this appropriation, and to institute a suit or suits at law or in equity 'against any and all claimants of title under any patent which, in his opinion, was by mistake or was improperly or illegally issued for any part of the marshes or flats within the limits of the proposed improvement.'
By subsequent acts of congress, further appropriations were made for continuing the improvement, amounting to between two an three million of dollars, and in the prosecution of the work channels have been dredged, sea walls constructed, and a large area reclaimed from the river.
It appearing that claims to the lands embraced within the limits of the improvement, or to parts of them, were made by the Chesapeake & Ohio Canal Company, and by several other corporations and persons, besides those claiming under the patent referred to in the act of 1882, congress passed the act approved August 5, 1886 (24 Stat. 335), entitled 'An act to provide for protecting the interests of the United States in the Potomac river flats, in the District of Columbia.'
By the first section of this act, it was made the duty of the attorney general 'to institute as soon as may be, in the supreme court of the District of Columbia, a suit against all persons and corporations who may have or pretend to have any right, title, claim or interest in any part of the land or water in the District of Columbia within the limits of the city of Washington, or exterior to said limits and in front thereof toward the channel of the Potomac river, and composing any part of the land and water affected by the improvements of the Potomac river or its flats in charge of the secretary of war, for the purpose of establishing and making clear the right of the United States thereto.'
By the second section, it was provided that the suit 'shall be in the nature of a bill in equity, and there shall be made parties defendant thereto all persons and corporations known to set up or assert any claim or right to or in the land or water in said first section mentioned, and against all other persons and corporations who may claim to have any such right, title or interest. On the filing of said bill process shall issue and be served, according to the ordinary course of said court, upon all persons and corporations within the jurisdiction of said court; and public notice shall be given by advertisement in two newspapers published in the city of Washington for three weeks successively of the pendency of said suit, and citing all persons and corporations interested in the subject-matter of said suit, or in the land or water in this act mentioned, to appear, at a day named in such notice, in said court, to answer the said bill, and set forth and maintain any right, title, interest or claim that any person or corporation may have in the premises; and the court may order such further notice as it shall think fit to any party in interest.'
The third section gives the court 'full power and jurisdiction by its decree to determine every question of right, title, interest or claim arising in the premises, and to vacate, annul, set aside or confirm any claim of any character arising or set forth in the premises; and its decree shall be final and conclusive upon all persons and corporations parties to the suit, and who shall fail, after public notice as hereinbefore in this act provided, to appear in said court and litigate his, her or its claim, and they shall be deemed forever barred from setting up or maintaining any right, title, interest or claim in the premises.'
As to all the defendants, except those claiming under a certain patent issued through the general land office to John L. Kidwell in 1869, the bill states that 'the complainant is not sufficiently informed as to the nature and extent of said claims, or any of them, to set them out with particularity; and the complainant leaves them to present their claims in their answer hereto as they may be advised.'
As to the claims under said patent, the bill avers the patent to be void upon several grounds, and the claims, therefore, unfounded, and prays that the patent may be canceled and annulled.
The bill further states that 'the complainant disclaims in this suit seeking to establish its title to any of the wharves included in the area described in paragraph 3 of this bill, and claims title only to the land and water upon and in which said wharves are built; leaving the uestion of the ownership of the wharves proper, where that is a matter of dispute, to be decided in any other appropriate proceeding.'
The limits of the 'land and water' affected by the improvements are specifically set forth in the third paragraph of the bill of complaint. The beginning of said limits is at the southeast corner of square south of square 12, and they proceed thence along the east line of said square and the west line of Twenty-Sixth street to the line of the Chesapeake & Ohio Canal bank; thence, by several courses and distances, 'along the canal bank, parallel to and about ten feet southwest of a row of sycamore trees,' and following the shore line of the river to the southwest line of Virginia avenue between Seventeenth and Eighteenth streets west; thence southeasterly along the southeast line of said avenue to the east line of Seventeenth street west, being the west line of reservation 3 (known as the 'Monument Grounds'); thence to the crest of the bank forming the southwestern boundary of reservation 3, and along said crest to the southwestern corner of square 233, at the intersection of Fifteenth street west and Water street; thence across Fourteenth street west and Maryland avenue to a point in the middle of E street south; thence to the nearest point in the shore line of the river; thence with said shore line to Greenleaf's Point at the southern extremity of the Arsenal Grounds; the line proceeds thence along the east side of the Washington channel of the Potomac river and across the mouth of the Eastern Branch in a southerly direction to the wharf at Giesboro Point; thence across the main or Virginia channel of the Potomac river in a westerly direction to the west side of that channel; thence along the west side of that channel in a northwesterly direction and following the meanders of the channel to a point opposite the wharf known as Easby's wharf; thence across the channel to the southwest corner of said wharf, and thence along the south side of said wharf to the southwest line of square south of square 12; and thence along said southwest line to the place of beginning at the southeast corner of said square.
The area of actual reclamation of land from the bed of the river within said limits under the above-mentioned legislation amounted to nearly 750 acres.
Claims and pretensions of various kinds to the land and water within said limits, or to portions of the same, are set up in the answers of the parties who were originally made defendants to the bill and of those who have appeared in response to the public notice of the pendency of the suit given in accordance with the terms of the act.
These claims, with respect to the nature of the several issues involved in them, admit of convenient division into classes, viz.:
(1) The claim made by the heirs of James (M.) Marshall and those of his brother, Chief Justice John Marshall, to the ownership of the entire bed of the river from shore to shore (including therein the reclaimed land), under grants from the Crown of England to Lord Culpeper and others, for what is known as the 'Northern Neck of Virginia,' and the deed from Denny Martin Fairfax, as said Culpeper's successor in title, to said James (M. ) Marshall; and the claim made by the said heirs of James (M.) Marshall to such ownership under the patent to Lord Baltimore for the province of Maryland, and the deed to them from Frederick Paul Harford as Lord Baltimore's successor in title.
(2) The claims of ownership made to part of the reclaimed land by certain defendants, who assert title under a patent issued by the United States through the general land office to John L. Kidwell, in the year 1869, for 47 71/100 acres, and to 150 acres of alleged accretion thereto, and to another tract, the area of which is not stated, adjoining the Long Bridge, and extending therefrom southwardly between the Washington and Georgetown channels, of which latter tract they claim to be the equitable owners under an application for a patent made by said Kidwell in 1871.
(3) The claims made by the Chesapeake & Ohio Canal Company and its lessee, Henry H. Dodge, to riparian rights from Easby's Point to Seventeenth street west.
(4) The claims to riparian rights, right of access to the channel of the river, and to accretions, natural and artificial, made by the owners of lots in squares along the river west of Seventeenth street west, namely, squares 148, 129, 89, 63, 22, and square south of square 12.
(5) The claim made by certain of the descendants of Robert Peter, an original proprietor of lands in the city of Washington, to certain land near the public reservation known as the 'Observatory Grounds.'
(6) The claims to riparian privileges and wharfing rights made by owners of lots in squares beginning with square 233 and extending to the line of the Arsenal Grounds.
(7) The claims made by certain persons occupying wharves below the Long Bridge.
The main determination by the court 'of rights drawn in question' in the suit was by a decree passed October 17, 1895. The decree adjudicated nearly all the points in controversy in favor of the United States.
Certain lots and parts of lots in squares 63, 89, 129, and 148, north of their boundaries on Water street and A street, which were subject to the ebb and flow of the tide, were included in the work of reclamation, and as to them the decree held the owners to be entitled to compensation for the taking and inclusion of the same in the improvements.
By the first paragraph of the decree, the claims under class 2-that is, those set forth in the answers of certain defendants founded upon a patent issued to John L. Kidwell, in 1869, for a tract of 47 71/100 acres in the Potomac river, and alleged accretion thereto, and also to a tract adjoining the Long Bridge, founded upon an application for a patent therefor made by said Kidwell in 1871-are held and declared to be 'invalid, void and of none effect,' and the said patent is 'vacated, annulled and set aside.'
By the second paragraph, 'the claims of each and all of the other parties defendants, set forth in their respective answers, to any rights, titles and interests, riparian or otherwise, in the said lands or water,' are held and declared 'to be invalid, void and of none effect,' except as to the parties owning said lots and parts of lots in the squares last mentioned.
By the third paragraph, it is held and declared 'that there does not exist (except as aforesaid) any right, title or interest in any person or corporation, being a party to this cause, to or in any part of the said land or water,' and 'that the right and title of the said United States (except as aforesaid) to all the land and water included within the limits of the said improvements of the Potomac river and its flats, as the said limits are described in the said bill of complaint,' is absolute, 'as against all the defendants to this cause, and as against all persons whosoever claiming any rights, titles or interests therein who have failed to appear and set forth and maintain their said rights, titles or interests as required by said act of congress.'
By the fourth paragraph, it is held that the defendants who are owners of the lots or parts of lots in squares 63, 89, 129, and 148, 'which are included between the north line or lines of the said improvements of the Potomac river and its flats, and the north line or lines of Water street and A street, are entitled to be indemnified for whatever impairment or injury may have been caused to their respective rights, titles or interests in said lots or parts of lots by the taking of the same by the United States; the value of such rights, titles, interests or claims to be ascertained by this court, exclusive of the value of any improvement of the said lots or parts of lots made by or under the authority of the said United States.'
By the fifth and last paragraph of the decree, the taking of further testimony was authorized, on behalf of the owners and on behalf of the United States, as to the respective areas of the said lots and parts of lots, and of and concerning the true ownership and value of the said lots and parts of lots.
Such testimony as to ownership, areas, and values having been taken and returned, the court, upon consideration thereof, and on March 2, 1896, passed a further and supplementary decree, adjudging the values of the said lots and parts of lots so taken to be 10 cents per square foot, and payment was directed to be made to sundry persons whom the court found to be the owners of certain of the parcels; the ownership of the remaining parcels not being, in the opinion of the court, sufficiently established the taking of further testimony with respect thereto was ordered. The total amount of said values found by the court is $26,684.09.
The court having made a report of its action in the premises to congress, agreeably to the requirements of the act of August 2, 1886, an appropriation was made for the payment of the sums so found to be due to the owners of the said lots and parts of lots in said squares; and, with two exceptions, namely, Richard J. Beall and the trustees of the estate of William Easby, deceased, the several owners of the property applied, under said appropriation act, to the court for the payment to them of the respective sums found to be due to them, and the fund has been very largely disbursed under orders of the court passed on said applications.
From the main decree of October 17, 1895, appeals were taken as follows: (1) By all the defendants embraced in class one (1), namely, the heirs of James (M.) Marshall and the heirs of his brother, Chief Justice Marshall.
(2) By all the defendants embraced in class two (2), claiming under the Kidwell patent, etc., namely, Martin F. Morris, Henry Wells, Edward H. Wilson, Catherine A. Kidwell, Emma McCahill, John W. Kidwell, Francis L. Kidwell, Ida Hyde, and George A. Hyde.
(3) By one of the defendants embraced in class (3), namely, the Chesapeake & Ohio Canal Company and its trustees.
(4) By two of the defendants embraced in class (4), namely, the trustees of the estate of William Easby, deceased, and Richard J. Beall.
(5) By all of the defendants embraced in class five (5), namely, certain descendants of Robert Peter.
(6) By certain of the defendants embraced in class six (6), namely: (a) Charles Chauncy Savage et al.; (b) the Washington Steamboat Company, Limited; (c) Avarilla Lambert et al.; (d) William W. Rapley; (e) Mary A. S. Kimmell Gray; (f) James F. Barber et al.; (g) William G. Johnson, assignee of the American Ice Company; (h) Thomas W. Riley; (i) Edward M. Willis; (j) Annie E. Johnson, widow, sole executrix and devisee of E. Kurtz Johnson, deceased, et al.; (k) Elizabeth K. Riley, in her own right and as trustee and executrix of William R. Riley, deceased; (l) the Great Falls Ice Company; (m) Daniel S. Evans; (n) Margaret J. Stone; and (o) Charles B. Church et al.
(7) By certain of the defendants embraced in class seven (7), namely, Annie E. Johnson, widow, sole executrix and devisee of E. Kurtz Johnson, deceased, et al., Charles B. Church et al., Daniel S. Evans, and William W. Rapley.
The reduced copies of the plans on the following pages will assist in applying the reasoning of the opinion.
No. 1 is the city before the conveyances.
No. 2 is the Ellicott plan.
No. 3 is a portion of the Dermott map, sufficient to indicate the river front in part.
A. Leo Knott, for heirs of Jas. M. Marshall.
John Howard and Jas. V. Brooke, for heirs of John Marshall.
George E. Hamilton and Nathaniel Wilson, for Morris and others.
Hugh L. Bond, Jr., John K. Cowen, and C. F. T. Beale, for Chesapeake & O. Canal Co. and others.
Henry Randall Webb and John Sidney Webb, for trustees of estate of Wm. Easby.
J. Holdsworth Gordon, Enoch Totten, and Arthur Peter, for W. L. Dunlop and heirs of George Peter.
John Selden, for heirs of Moncure Robinson, and Washington Steamboat co.
Wm. G. J hnson, Calderon Carlisle, and T. A. Lambert, for Willis and others.
Enoch Totten and Edward A. Newman, for Rapley.
Wm. F. Mattingly, for D. S. Evans.
J. M. Wilson, for R. J. Beall.
T. A. Lambert, for W. M. Easby-Smith.
Hugh T. Taggart and Holmes Conrad, for the United States.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.
The first question for our determination arises out of the claims of the heirs of James M. Marshall and the heirs of John Marshall to the ownership of the entire bed of the Potomac river, from shore to shore, including therein the reclaimed lands.
Their claims are based upon two distinct lines or sources of title, inconsistent with each other,-one originating in the charter granted by Charles I., king of England, on June 20, 1632, to Cecilius Calvert, second baron of Baltimore and first lord proprietary of the province of Maryland; the other, in the charter granted by James II., king of England, on September 27, 1688, to Thomas, Lord Culpeper.
We do not think it necessary to enter at length or minutely into the history of the long dispute between Virginia and Maryland in respect to the boundary line. It is sufficient, for our present purpose, to say that the grant to Lord Baltimore in unmistakable terms included the Potomac river, and the premises in question in this suit, and declared that thereafter the province of Maryland and its freeholders and inhabitants should not be held or reputed a member or part of the land of Virginia, 'from which we do separate both the said province and inhabitants thereof.'
In September, 1688, King James II., by his royal patent of that date, granted to Thomas, Lord Culpeper, what was called the 'Northern Neck of Virginia,' and described as follows:
'All that entire tract, territory or parcel of land situate, lying and being in Virginia in America, and bounded by and within the first heads or springs of the rivers of Tappahannock als Rapahannock and Quiriough als Patawonuck Rivers, the courses of said rivers from their said first heads or springs as they are commonly called and known by the inhabitants and descriptions of those parts and the bay of Chesapeake, together with the said rivers themselves and all the islands within the outermost banks thereof, and the soil of all and singular the premises, and all lands, woods, underwoods, timber and trees, wayes, mountains, swamps, marshes, waters, rivers, ponds, pools, lakes, water courses, fishings, streams, havens, ports, harbours, bays, creeks, ferries, with all sorts of fish, as well whales, sturgeons, and other royal fish. * * * To have, hold and enjoy all the said entire tract, territory or portion of land, and every parts and parcels thereof, * * * to the said Thomas, Lord Culpeper, his heirs and assigns forever.'
Owing to the conflicting descriptions, as respected the Potomac river, contained in these royal grants, a controversy eraly arose between Virginia and Maryland. A compact was entered into in 1785 between the two states, whereby, through commissioner, a jurisdictional line, for the purpose of enforcing the criminal laws and regulating the rights of navigation in the Potomac river, was agreed upon.
Finally, the controversy as to the true boundary still continuing, in 1874 the legislatures of the two states agreed in the selection of arbitrators, by whose award, dated January 16, A. D. 1877, the jurisdictional line and boundary were declared to be the low-water mark on the Virginia shore. This award was accepted by the two states, and, by an act approved March 3, 1879 (20 Stat. 481), congress gave its consent to the agreement and award, but provided that nothing therein contained should be construed to impair or in any manner affect any right of jurisdiction of the United States in and over the islands and waters which formed the subject of the said agreement or award.
It was a mutual feature of the legislation by which this conclusion was reached that the landholders on either side of the line of boundary between the said states, as the same might be ascertained and determined by the said award, should in no manner be disturbed thereby in their title to and possession of their lands as they should be at the date of said award, but should in any case hold and possess the same as if their said titles and possession had been derived under the laws of the state in which, by the fixing of the said line by the terms of said award, they should be ascertained to be. Act Va. Feb. 10, 1876 (Laws 1875-76, c. 48); Act Md. April 3, 1876 (Laws 1876, c. 198).
Whether the result of this arbitration and award is to be regarded as establishing what the true boundary always was, and that, therefore, the grant to Thomas, Lord Culpeper, never of right included the Potomacriver, or as establishing a compromise line effective only from the date of the award, we need not determine. For, even if the latter be the correct view, we agree with the conclusion of the court below that, upon all the evidence, the charter granted to Lord Baltimore by Charles I., in 1632, of the territory known as the 'Province of Maryland,' embraced the Potomac river, and the soil under it, and the islands therein, to high-water mark on the southern or Virginia shore; that the territory and title thus granted to Lord Baltimore, his heirs and assigns, were never devested by any valid proceedings prior to the Revolution, nor was such grant affected by the subsequent grant to Lord Culpeper.
The record discloses no evidence that at any time any substantial claim was ever made by Lord Fairfax, heir at law of Lord Culpeper, or by his grantees, to property rights in the Potomac river, or in the soil thereunder, nor does it appear that Virginia ever exercised the power to grant ownership in the islands or soil under the river to private persons. Her claim seems to have been that of political jurisdiction.
Without pursuing further this branch of the subject, and assuming that the heirs of John Marshall have become lawfully vested with the Fairfax title, we are of opinion that they have failed to show any right or title to the lands and premises involved in this litigation, and that the decree of the court below, so far as it affects them, is free from error.
There remains to consider the claim of the heirs of James M. Marshall as alleged successors to the title of Lord Baltimore to the river Potomac and the soil thereunder, as part and parcel of the grant to him by the patent of Charles I. in 1632.
We adopt, as sufficient for our purposes, the statement of that claim made in the printed brief filed on behalf of the heirs of James M. Marshall:
(1) That Charles I., in his charter of June, 1632, conveyed to the lord proprietary of Maryland, inter alia, full title to the lands under the navigable waters and rivers subject to tidal overflow, within the limits of that charter, with the right to grant such lands to others.
(2) That the king, in said charter, granted to the proprietary of the province of Maryland the whole bed and soil of the Potomac river, from bank to bank, and from its source to its mouth,-the locus in quo of the lands here in controversy.
(3) That the said proprietary held such lands, as he held his other lands, in absolute ownership and propriety, but subject to the public servitudes in and of the waters over them, so long as those waters covered the lands.
(4) But that, when the waters ceased to be or flow over them, these lands were relieved of those servitudes, and his right of seisin or possession attached, and perfected his title; and of this his heirs or assigns could take the benefit and advantage, if holding title at that time.
(5) That by the action of the government of the United States, in reclaiming them into for public purposes, and converting them into firm and fast lands, and passing the act of August 5, 1886, and bringing suit against these appellants and others, the first opportunity was given to these appellants to make or assert their title.
(6) That title was legally derived to them by the devises and deeds set out in the record.
Briefly expressed, the appellants' contention is that the propriety in the soil under the river Potomac passed to Lord Baltimore and his grantees, and that it passed, not as one of the regalia of the crown, or as a concomitant of government, but as an absolute proprietary interest, subject to every lawful public use, but not the less, on that account, a hereditament, and the subject of lawful ownership, and of the right of full and unqualified possession when that public use shall have ceased.
We need not enter into a discussion of this proposition, because the doctrine on which it is based has been heretofore adversely decided by this court in several leading and well-considered cases. Martin v. Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426; Shively v. Bowlby, 152 U.S. 1, 14 Sup. Ct. 548.
The conclusions reached were that the various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under tide waters; that by those charters the dominion and propriety in the navigable waters, and in the soils under them, passed as part of the prerogative rights annexed to the political powers conferred on the patentee, and in his hands were intended to be a trust for the common use of the new community about to be established as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, and not as private property, to be parceled out and sold for his own individual emolument; that upon the American Revolution all the rights of the crown and of parliament vested in the several states, subject to the rights surrendered to the national government by the constitution of the United States; that, when the Revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.
If these principles are applicable to the present case, it follows that upon the Revolution the state of Maryland became possessed of the navigable waters of the state, including the Potomac river, and of the soils thereunder, for the common use and benefit of its inhabitants; and that, by the act of cession, that portion of the Potomac river, with the subjacent soil which was appurtenant to and part of the territory granted, became vested in the United States.
We do not understand the learned counsel for the appellees to controvert the principles established by the cited cases as applicable to the royal grants and territories considered therein. But their contention is that a different doctrine has prevailed in the courts of the state of Maryland, to the effect that lands beneath the tide waters of the Potomac were grantable in fee to private persons, subject only to the public servitudes; and that when, as in the present case, by the action of the government, these lands have ceased to be submerged, the owner of the title, however long that title has been in abeyance, becomes entitled to possession, and to compensation if the land be taken for public purposes.
The soundness of this contention depends upon two propositions: First, that the federal decisions cited do not establish general principles applicable to each and all of the royal charters to the founders of the Atlantic colonies, but are restricted in their scope to the particular grant in question in those cases; and, second, that the law of Maryland, if the sole rule f decision, is to the effect claimed.
In the argument in Martin v. Waddell the decision of the supreme court of New Jersey in the case of Arnold v. Mundy, 6 N. J. Law, 1, in which that court had laid down the rule as contended for by the appellants, was cited as conclusive, and as establishing a rule of property binding on the rederal courts.
In respect to this contention Mr. Chief Justice Taney said:
'The effect of this decision by the state court has been a good deal discussed at the bar. It is insisted by the plaintiffs in error that, as the matter in dispute is local in its character, and the controversy concerns only fixed property, within the limits of New Jersey, the decision of her tribunals ought to settle the construction of the charter; and that the courts of the United States are bound to follow it. It may, however, be doubted whether this case falls within the rule in relation to the judgments of state courts when expounding their own constitution and laws. The question here depends, not upon the meaning of instruments framed by the people of New Jersey, or by their authority, but upon charters granted by the British crown, under which certain rights are claimed by the state, on the one hand, and by private individuals on the other. And if this court had been of opinion that upon the face of these letters patent the question was clearly against the state, and that the proprietors had been deprived of their just rights by the erroneous judgment of the state court, it would, perhaps, be difficult to maintain that this decision of itself bound the conscience of this court. * * * Independently, however, of this decision of the supreme court of New Jersey, we are of opinion that the proprietors are not entitled to the rights in question.'
The subject is barely adverted to in Shively v. Bowlby, where, referring to the case of Martin v. Waddell, it was said by Mr. Justice Gray: 'This court, following, though not resting wholly upon, the decision of the supreme court of New Jersey in Arnold v. Mundy, 6 N. J. Law, 1, gave judgment for the defendants.' Whether, in the controversy between the United States, in the capacity of grantees of the state of Maryland, and the heirs of James M. Marshall, as successors to the property title of Lord Baltimore, involving a construction of the grant of Charles I., the final decision belongs to the federal or to the state court, we do not find it necessary to decide; for, in our opinion, there is no conflict between the views announced by this court in the cases cited and those that prevailed in Maryland, as they appear in the public conduct, and in cases decided prior to and about the time of the act of cession.
It does not appear that in the administration of his affairs as land proprietor Lord Baltimore, or his successors, ever made a sale, or executed a patent, which, upon its face and in terms, granted the bed or shores of any tide water in the province, or ever claimed the right to do so.
The argument to the contrary, as respects the decisions of the courts of Maryland, depends on the case of Browne v. Kennedy, 5 Har. & J. 196, decided in 1821, and following cases. The legal import of that case, and the effect to which it is entitled in the present case, we shall consider in a subsequent part of this opinion.
The case of Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603, is authority for the propositions that Lord Fairfax's title to the waste and unappropriated lands which he devised to Denny Fairfax was that of an absolute property in the soil in controversy in that case, that the acts of ownership shown to have been exercised by him over the whole waste and unappropriated lands vested in him a complete seisin and possession thereof; and that, even if there had been no acts of ownership proved, as there was no adverse possession, and the land was waste and unappropriated, the legal seisin must be considered as passing with the title. But neither Maryland nor any grantee of Maryland was a party to that suit. Nor, even as between he parties, was any actual question made or evidence offered as to the boundary between Maryland and Virginia. The questions adjudicated were, what was the nature, not the extent of territory involved, of Lord Fairfax's title, and what was the character of the title which Denny Fairfax took by the will of Lord Fairfax, he being, at the time of Lord Fairfax's death in 1781, an alien enemy?
Therefore the questions now before us are not affected by that case. Nor do we think it necessary, in view of the conclusion we have reached on other grounds, to consider the legal effect and import of an alleged compromise between the state of Virginia and the devisees of Denny Fairfax, and those claiming under them, and which is referred to in the act of December 10, 1796 (Rev. Code Va. c. 92).
However, even if it be conceded-which we do not do-that the river Potomac and the soil under it were, by virtue of the grant of Charles I., the private property of Lord Baltimore, and that the same lawfully descended to and became vested in Henry Harford, the last proprietary of Maryland, still, by the acts of confiscation passed by the general assembly of Maryland in 1781 (chapters 45 and 49), all the property and estate of the then lord proprietary of Maryland within that state were confiscated and seized to the use of the state, and, as public property belonging to the state at the time of the cession of 1791, passed into the ownership of the United States.
As against this proposition it is argued on behalf of the Marshall heirs that the confiscation acts of Maryland were ineffectual in the present case, because the title to these lands under waters is of such character that they could not be forfeited or confiscated, the owner thereof not having right of possession or right of entry thereon. If, as is elsewhere claimed by the appellants, the soil under the river was the subject of sale and devise, it is not easy to see why it may not be subjected to forfeiture and confiscation. Indeed, it was held in Martin v. Waddell that lands under navigable waters were subject to an action of ejectment. And in the case of Lowndes v. Town of Huntington, 153 U.S. 1, 14 Sup. Ct. 758, an action of ejectment, asserting title to land submerged under the waters of Huntington Bay, was sustained.
It is further claimed that these acts of Maryland were in derogation of the common law and of the express provisions and inhibitions of the constitution and bill of rights of that state adopted four years before the passage of these acts of confiscation; and that the effect of the sixth article of the treaty of 1783 and the ninth article of the treaty of 1794 and of the act of Maryland of 1787 making the treaty of 1783 the law of the state operated to relieve these lands from forfeiture, and restored them to Henry Harford; and that the power to pass acts of confiscation did not inhere as a war power in Maryland.
For an answer to the reasoning advanced by the learned counsel for the appellants in support of these contentions it is sufficient to refer to the case of Smith v. Maryland, 6 Cranch, 286, where it was held, affirming the court of appeals of the state of Maryland, that by the confiscating acts of Maryland the equitable interests of British subjects were confiscated, without office, or entry, or other act done, and although such equitable interests were not discovered until long after the peace.
It is finally urged that, even acceding the validity of the confiscation acts, and that they were effectual to devest the title of Henry Harford and put it in the state of Maryland, and even though it was transferred by the act of cession to the United States, yet the latter took the property under a trust or equity created by the treaties with Great Britain, whereby they are in equity bound to restore it to the Harford heirs or to their assigns, or to make just compensation for subjecting it to public purposes. It is said that, when now the United States find themselves in control o possession of a part of the estate of a subject of Great Britain, they should do what they 'earnestly recommended' should be done by the states, namely, make a restitution of the confiscated estates.
Whatever force, if any, there may be in such suggestions, it is quite evident that they are political in their nature, and appeal to congress, and not to the courts. It cannot be maintained, with any show of plausibility, that congress intended, by the act under which these proceedings are had, that the supreme court of the District of Columbia, or that this court on appeal, should have the right to overturn, after the lapse of a century, rights originating in statutes of Maryland and of the United States, sustained as valid by their courts.
We affirm, therefore, the decree of the court below, in respect to the Marshall heirs, that, in the words of the act of 1886, they have no 'right, title, or interest in any part of the land or water composing any part of the Potomac river, or its flats, in charge of the secretary of war.'
The next claim for consideration is that founded upon a patent issued on December 6, 1869, from the general land office, to John L. Kidwell, for 'a tract of vacant land, containing fifty-seven acres and seventy-one one-hundredths of an acre, called 'Kidwell's Meadows,' and lying in the Potomac river, above the Long Bridge, according to the official certificate and plat of survey thereof, bearing date the tenth and twelfth of October, 1867, made and returned by the surveyor of Washington county, pursuant to a special warrant of survey unto the said surveyor directed on the 26th day of June, 1867, by the commissioner of the general land office aforesaid. in virtue of the authority of congress, under a resolution 'directing the manner in which certain laws of the District of Columbia shall be executed,' approved on the 16th day of February, 1839.'
The resolution of congress referred to was in the following words: 'That the acts of the state of Maryland for securing titles to vacant land which were continued in force by the act of congress of the twenty-seventh of February, 1801, in that part of the District of Columbia which was ceded to the United States by that state, and which have been heretofore inoperative for want of proper officers of authority in the said District for their due execution, shall hereafter be executed, as regards lands in the county of Washington and without the limits of the city of Washington, by the secretary of the treasury, through the general land office, where applications shall be made for warrants, which warrants shall be directed to the surveyor for the county of Washington, who shall make return to the commissioner of the general land office; and payment for said land, according to the said laws of Maryland, shall be made to the treasurer of the United States, whose certificate of such payment shall be presented to the commissioner of the general land office, who shall thereupon issue, in the usual form of patents for lands by the United States, a patent for such land to the person entitled thereto; and the secretary of the treasury shall make such regulations as he may deem necessary, and shall designate the officers who shall carry the said acts into effect: provided, that any land which may have been ceded to or acquired by the United States for public purposes shall not be affected by such acts.' 5 Stat. 365.
The space claimed to be comprehended within the courses and distances of the survey set forth in the patent is now included within the lines of the raised land known as the 'reclaimed flats,' and the claimants under the patent contend that this occupation by the United States is an appropriation of their porperty, for which they are entitled to compensation under the proceedings in this suit.
It is alleged in the bill that the patent to Kidwell was issued without authority of law, and was and is null and void, and several grounds are set forth for each allegation. The main c ntentions on behalf of the government are that the land covered by the patent was, when it issued, within the limits of the city of Washington, and was therefore excepted from the operations of the resolution of 1839; that the land was, at the time of the cession, a part of the bed of the Potomac river, and subject to tidal overflow, and was therefore reserved to the United States for such public uses as ordinarily pertain to the river front of a large city; that said land, as part of the bed of the Potomac river, and subject to overflow by the tides, was not the subject of a patent under the resolution of 1839, and the general land office and its functionaries were without authority to grant a patent therefor; and that the patent was obtained by fraud, and was ineffectual by reason of certain specified irregularities.
By their answers the claimants under the patent denied these several allegations, and under the issues of law and of fact thus raised a large amount of evidence was taken.
In the opinion of the court below the questions involved were elaborately considered, and they have been fully discussed before us in the oral and printed arguments of the respective counsel.
Our examination of the subject has brought us to conclusions which render it unnecessary for us to express an opinion on several of the questions that have been so fully treated.
In our consideration of the questions now before us we shall, of course, assume that the river Potomac with its subjacent soil was included in the grant to Lord Baltimore, and became vested, by the methods hereinbefore considered, in the state of Maryland, and that by the act of cession that part of the river and its bed which is concerned in this litigation passed into the control and ownership of the United States.
Without questioning the power of congress to have made a special sale or grant to Kidwell, in 1869, of the lands embraced in this patent, in the condition that they then were, or even to have provided by a general law for the sale of such lands by the land office, we are of opinion that it was not the intention of congress, by the general resolution of 1839, to subject lands lying beneath the waters of the Potomac, and within the limits of the District of Columbia, to sale by the methods therein provided.
The lands which congress had in view in passing the resolution were stated to be the vacant lands, for securing title to which the laws of Maryland which were in force in 1801 had made provisions, but which laws had remained inoperative, after the cession, for the want of appropriate officers or authority in the District of Columbia for their execution.
The only acts of Maryland which have been brought to our attention as having been in force in 1801, under which a disposition of the lands of the state could be made, are Acts Nov. Sess. 1781, c. 20, and Nov. Sess. 1788, c. 44. The act of 1781 (chapter 20) is entitled 'An act to appropriate certain lands to the use of the officers and soldiers of this state, and for the sale of vacant lands.' The preamble recites that there are large tracts of land within the state 'reserved by the late proprietors which may be applied to the discharge of the engagement of lands made to the officers and soldiers of this state, and that the granting the other vacant lands in this state would promote population and create a fund towards defraying the public burthen.' Sections 3 and 4 provide for a land office, and for issuing 'common or special warrants of vacant cultivation, and for the surveying of any vacant lands, cultivated or uncultivated.'
By Act Nov. Sess. 1788, c. 44, all other vacant lands in the state were made liable to be taken up in the usual manner by warrant.
It would seem evident that the lands whose disposition was contemplated by these acts were vacant lands, which had been cultivated, or which were susceptible of cultivation.
By such terms of description it would not appear that the disposition of lands covered by tide water was cont mplated, because such lands 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.
In the case of State v. Pacific Guano Co., 22 S.C.. 83, the supreme court of South Carolina, in discussing a somewhat similar question, said:
'The absolute rule limiting landowners bounded by such streams to high-water mark, unless altered by law, or modified by custom, accords with the view that the beds of such channels below low-water mark are not held by the state simply as vacant lands, subject to grant to settlers in the usual way through the land office.
'There seems to be no doubt, however, that the state, as such trustee, has the power to dispose of these beds as she may think best for her citizens; but not being, as it seems to us, subject to grant in the usual form under the provisions of the statute regulating vacant lands, it would seem to follow that, in order to give effect to an alienation which the state might undertake to make, it would be necessary to have a special act of the legislature expressing in terms and formally such an intention.'
In the case of Allegheny City v. Reed, 24 Pa. St. 39 it was held by the supreme court of Pennsylvania that the provisions of the general acts in respect to patents for lands did not relate to the foundation of an island whose soil had been swept away by floods. 'The title of the commonwealth to what remained was not gone, but was no longer grantable under the acts of assembly for selling islands. The foundation of the island belongs to the commonwealth still, but she holds it, as she does the bed of the river and all sand bars, in trust for all her citizens, as a public highway. The act of 1806 was not a grant of the state's title, but only a mode prescribed in which titles might thereafter be granted. * * * The jurisdiction is a special one, and, if the subject-matter to which the act of 1806 relates were gone,-had ceased to be,-the board of property had no jurisdiction; no more than they would have over any other subject not intrusted to their discretion.'
In Illinois Cent. R. Co. v. Illinois, 146 U.S. 387, 13 Sup. Ct. 110, it was recognized as the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters or navigable lakes within the limits of the several states belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in such waters, and subject to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce.
In Shively v. Bowlby, 152 U.S. 1, 14 Sup. Ct. 548, the discussion was so thorough as to leave no room for further debate. The conclusions there reached, so far as they are applicable to the present case, were as follows:
'It is well settled that a grant from the sovereign of land bounded by the sea or by any navigable tide water does not pass any title below high-water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention.' 152 U.S. 13, 14 Sup. Ct. 552.
'We cannot doubt that congress has the power to make grants of land below high-water mark of navigable waters in any territory of the United States whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States holds the territory. But congress has never undertaken by general laws to dispose of such lands.' 152 U.S. 48, 14 Sup. Ct. 566.
'The congress of the United States, in disposing of the public lands, has constantly acted pon the theory that those lands, whether in the interior, or on the coast, above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation, and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government.' 152 U.S. 49, 14 Sup. Ct. 566.
'Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory.' 152 U.S. 57, 14 Sup. Ct. 569.
In Mann v. Land Co., 153 U.S. 273, 14 Sup. Ct. 820, it was again held that the general legislation of congress in respect to public lands does not extend to tide lands, that the scrip issued by the United States authorities to be located on the unoccupied and unappropriated public lands could not be located on tide lands, and that the words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.
As against these principles and these decisions the claimants under the patent cite and rely on the case of Browne v. Kennedy, 5 Har. & J. 195, to the alleged effect 'that the bed of any of the navigable waters of the state may be granted, and will pass if distinctly comprehended by the terms of any ordinary patent issuing from the land office, subject only to the existing public uses of navigation, fishery, etc., which cannot be hindered or impaired by the patentee.'
Our examination of this case has not satisfied us that the decision therein went as far as is now claimed. As we read it, the gist of the decision was that by the common law and the law of Maryland proprietors of land bounded by unnavigable rivers have a property in the soil covered by such rivers ad filum mediam aquae, and that, where one holding land on both sides of such a stream had made separate conveyances, bounding on the stream, and the stream had afterwards been diverted, or ceased to exist, the two original grantees took each to the middle of the land where the stream had formerly existed, and that a subsequent grantee of the territory formerly occupied by the stream took no title. Such a decision would have no necessary application here.
But we are bound to concede that the court of appeals, in the subsequent case of Wilson v. Inloes, 11 Gill & J. 352, has interpreted Browne v. Kennedy as establishing the principle that the state has the right to grant the soil covered by navigable water, subject to the public or common rights of navigation and fishery, and, inferentially, that a title originating in a patent issued under general law from the land office attached to the land, and gave a right of possession when the waters ceased to exist.
The decision in Browne v. Kennedy was not made till a quarter of a century after the cession by Maryland to the United States, and seems to have been a departure from the law as previously understood and applied, both during the colonial times and under the state prior to the cession.
Thus, in Proprietary v. Jennings, 1 Har. & McH. 64, an information was filed by the attorney general of the lord proprietor, in 1733, to vacate a patent on the ground that it had been illegally obtained, and the case clearly indicates that land under tide water was not patentable. Smith v. State, 2 Har. & McH. 247, was the case of an appeal from a decree of the chancellor, dated April 27, 1786, vacating and annulling, on the ground of fraud and misrepresentation, a patent granted to Nathaniel Smith, June 2, 1783, for tract of land called 'Bond's Marsh.' It was disclosed in the case that Smith was the owner of a tract of land called 'Bond's Marsh,' which had been granted to one John Bond, September 16, 1766, for four acres; and that on April 20, 1782, Smith, who had become the owner of the tract, petitioned for a warrant of resurvey, stating that he had discovered some vacant land contiguous thereto, and that he was desirous of adding the same to the tract already held by him. Thereupon the surveyor of the county was directed 'to lay out and carefully resurvey, in the name of him, the said Smith, the said tract of land called 'Bond's Marsh,' according to its ancient metes and bounds, adding any vacant lands contiguous thereto,' etc. On May 8, 1782, the surveyor certified to the land office that he had resurveyed the said original tract called 'Bond's Marsh,' and that it contained exactly 4 acres, and that there were 17 1/2 acres of vacant land added. Upon this Smith obtained from the state a grant on the said certificate for 21 1/2 acres under the name of 'Bond's Marsh' resurveyed, and, July 8, 1784, Smith conveyed for a consideration two undivided third parts of said tract to Samuel Purviance. The bill averred that: 'Although the said Smith, by his aforesaid petition, did allege and set forth that he had discovered vacant land adjoining the said tract called 'Bond's Marsh,' there was not any vacant land adjoining or contiguous to the same, but that the whole which by the said grant is granted to the said Smith as vacant land, added to the original tract aforesaid, now is, and at the time of obtaining the said warrant and grant was, part of the waters of the northwest branch of Patapsco river.' The bill also averred that Purviance was not an innocent purchaser, but knew that the pretended vacancy included in the patent 'was not land, but part of the waters of the northwest branch of Patapsco river.' The decree vacating the patent was affirmed.
In the footnotes to Baltimore v. McKim, 3 Bland, 468, the cases of Fowler v. Goodwin and Ritchie v. Sample are referred to. In Fowler v. Goodwin, the chancellor, on May 19, 1809, refused to direct a patent to issue because a large part of the land lay in the waters of Bell's Cove. In Ritchie v. Sample the certificate of survey showed that the tract applied for was a parcel of the Susquehanna river, comprehending a number of small islands, and the chancellor held, July 10, 1816, 'that the land covered by the water cannot be called grantable land, although, possibly, islands may have been taken up together, between which the water sometimes flows.'
Of course, the recent decisions of the courts of Maryland, giving to the statutes of that state a construction at variance with that which prevailed at the time of the cession, cannot control our decision as to the effect of those statutes on the territory within the limits of the District of Columbia since the legislative power has become vested in the United States. Ould v. Washington Hospital, 95 U.S. 303; Russell v. Allen, 107 U.S. 163, 171, 2 Sup. Ct. 327; De Vaughn v. Hutchinson, 165 U.S. 570, 17 Sup. Ct. 461.
At the utmost such decisions can only be considered as affecting private rights and controversies between individuals. They cannot be given effect to control the policy of the United States in dealing with property held by it under public trusts.
This aspect of the question was considered by Mr. Justice Cox of the supreme court of the District of Columbia in a case arising out of the legislation of congress establishing the Rock Creek Park, and wherein the effect of a patent granted by the state of Maryland, in 1803, for a piece of land afterwards included in the park, was in question. It was said in the opinion:
'There is a still more important question, and that is whether the state of Maryland at that period could convey any interest, legal or equitable, in the property. In the act of 1791, ceding this property to the United States, there is this proviso: 'That the jurisdiction of the laws of th § state over the persons and property of individuals residing within the limits of the cession aforesaid shall not cease or determine until congress shall by law provide for the government thereof, under their jurisdiction in manner provided by the article of the constitution before recited.' Now, this continues in force the jurisdiction of the laws of the state of Maryland over the persons and property of individuals residing therein. To make that applicable to the present case, it would be necessary to have extended it to the property held by the state; but it seems to me that it extended no further than to say that the laws which affected private rights should continue in force until proper provision was made by congress. See what the consequences would be if another construction had been given to it. The state of Maryland extended to the Virginia shore, and suppose that after this cession, and before 1801, the state of Maryland had undertaken to cede to the state of Virginia the whole bed or bottom of the Potomac river, from its source to its mouth, including that part in the District of Columbia, doubtless congress could have had something to say about it after the cession had been made. We are satisfied, therefore, that the proviso does not continue in operation the land laws of the state of Maryland, and consequently no title could be derived at the dates of this survey and patent, or at the date when the warrant on which it was based was taken out. We are satisfied that the proviso does not continue in operation the land laws of the state of Maryland as to the public lands owned by the state within the said District, and that, consequently, no title to such lands could be obtained by patent from the state after the act of 1791.'
This decision was adopted, and the opinion approved, by this court in the case of Shoemaker v. U.S., 147 U.S. 307, 13 Sup. Ct. 378.
If any doubt is left as to whether congress intended, by the resolution of 1839, to subject the river and its subjacent soil to the ordinary land laws as administered by the land office, that doubt must, as we think, be removed by a consideration of the express language of the proviso therein contained, withholding lands held by the United States for public purposes from the operation of the acts of Maryland. The language of the proviso is as follows: 'Provided, that any lands which may have been ceded to, or acquired by, the United States, for public purposes, shall not be affected by such acts.' Placed, as this proviso is, at the end of the enactment, the natural implication is that congress did not intend to include the lands which the United States held for public purposes within the scope of the resolution, but added the proviso out of abundant caution. However this may be, the intention expressed is clear that, in the administration of the land laws by the secretary of the treasury through the general land office, the lands that had been ceded to or acquired by the United States for public purposes should not be affected.
What were the lands so held by the United States? Undoubtedly, the squares and lots selected by the president as sites for the president's house, the capitol, and other public buildings, and which had been, in legal effect, dedicated to public use by the grantors, were not meant, because the resolution in terms provides that the lands to be affected were such as were within the county of Washington, and without the limits of the city of Washington.
There may have been other land held by the United States for public purposes outside of the limits of the city of Washington, but surely the Potomac river and its bed, so far as they were embraced in the county of Washington, were included in the terms of the proviso. Indeed, it is not too much to say that they constituted the very land which congress was solicitous to withhold from sale under proceedings in the land office.
It cannot, we think, be successfully claimed that, even if, in 1839, the lands embraced within the Kidwell patent were exempted from the jurisdiction of the land office, yet they were brought within that jurisdiction by the fact that the waters had so far receded in 1869 as to permit some sort of possession and occupancy. Not having been within the meaning of the resolution of 1839, they would not be brought within it by a subsequent change of physical condition, but a further declaration by congress of a desire to open them to private ownership would be necessary.
Besides, the facts of the case show that congress is asserting title and dominion over these lands for public purposes. Whether congress should exercise its power over these reserved lands by dredging, and thus restoring navigation and fishery, or by reclaiming them from the waters for wharfing purposes, or to convert them into public parks, or by subjecting them to sale, could only be determined by congress, and not by the functionaries of the land office.
If, then, there was an entire want of authority in the land office to grant these lands held for public purposes, a patent so inadvertently issued, under a mistaken notion of the law, would plainly be void, and afford no defense to those claiming under it as against the demands of the government.
As was said by this court in Smelting Co. v. Kemp, 104 U.S. 641:
'Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event, be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.'
Similar views were expressed in Doolan v. Carr, 125 U.S. 618, 8 Sup. Ct. 1228, where it was said:
'There is no question as to the principle that where the officers of the government have issued a patent in due form of law, which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law as distinguished from suits in equity, subject, however, at all times to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But, if those officers acted without authority, if the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to exercise such authority, then their act was void,-void for want of power in them to act on the subject-matter of the patent,-not merely voidable; in which latter case, if the circumstances justified such a decree, a direct proceeding, with proper averments and evidence, would be required to establish that it was voidable, and therefore should be avoided. * * * It is nevertheless a clear distinction, established by law, and it has often been asserted in this court, that even a patent from the government of the United States, issued with all the forms of law, may be shown to be void by extrinsic evidence, if it be such evidence as by its nature is capable of showing a want of authority for its issue.'
The further contention on the part of the United States that the lands embraced within the Kidwell patent lie within the limits of the city of Washington, and th t, therefore, they were, for that reason, not grantable by the land office, we have not found it necessary to determine, and we refrain from expressing any opinion upon it.
Nor do we need to enter at any length into the question of fraud attending the issue of the patent. We deem it not improper to say, however, that the allegations imputing fraud to the government officials concerned in the issuance of the patent, or to those who were active in procuring it, or in asserting rights under it, do not appear to us to have been sustained by the evidence.
We therefore conclude this branch of the case by affirming the decision of the court below 'that the proceedings of Kidwell, under the resolution of 1839, to obtain a patent for the 'Kidwell Meadows,' and the issue of that patent, are inoperative to confer upon the patentee or his assigns any title or interest in the property within its limits, adverse to the complete and paramount right therein of the United States.'
It is urged on behalf of those claiming under the Kidwell patent that a court of equity will not set aside the patent at the suit of the United States, unless on an offer by the latter to return the purchase money; that, in granting the relief, the court will impose such terms and qualifications as shall meet the just equities of the opposing party.
As the invalidity of the patent in the present case was not apparent on its face, but was proved by extrinsic evidence, and as the controversy respecting the title was not abandoned by the defendants, they were not, we think, entitled to a decree for a return of the purchase money, or for costs. Piersoll v. Elliott, 6 Pet. 95.
Before considering the remaining claims, it will be necessary to dispose of the question of the river boundary of the city of Washington.
What place should be selected for the permanent seat of government was, as shown by the histories of the times, a matter of long and bitter debate, occupying a large part of the second session of the second congress. After the claims of Philadelphia and Baltimore had been adversely disposed of, the question was reduced to a choice between a site on the Susquehanna river, in Pennsylvania, and one on the Potomac river. And we learn from the recently published journal of William Maclay, senator from Pennsylvania, 1780-91, and who was an earnest advocate for the former, that the allegation that a large expenditure would be required to render the Susquehanna navigable was used as a decisive argument in favor of the site on the Potomac. Maclay, Jour.
The result was the act of July 16, 1790 (1 Stat. 130), whereby the president was authorized to appoint three commissioners to survey, and, by proper metes and bounds, to define and limit, under his direction, a district of territory to be located on the river Potomac. By the same act the commissioners were empowered 'to purchase or accept such quantity of land on the eastern side of the said river, within the said district,' as the president might deem proper for the use of the United States, and according to such plans as he might approve; and were required, prior to the first Monday of December, 1800, to provide suitable buildings for the accommodation of congress and of the president and for the public offices of the government.
It has been the practice in this country, in laying out towns, to have the plat surveyed, and a plan made in accordance with the survey, designating the streets, public squares, and open spaces left for commons, wharves, or any other public purpose. Those streets, squares, and open spaces are thus dedicated to the public by the proprietors of the soil, whether they be the state or private individuals. When a town is situated on a navigable river, it is generally the custom to leave an open space between the line of the lots next the river and the river itself. This was done by William Penn in 1682 in the original plan of the city of Philadelphia on the Delaware river front, and he called it a 'top common'; and in 1784 h § descendants, the former proprietors, in their plan of Pittsburg, adopted a similar measure of leaving such an open space, and they called it 'Water Street.' Birmingham v. Anderson, 48 Pa. St. 258.
In 1789 the proprietors of the land on which the city of Cincinnati is built pursued the same policy, and in their plan the ground lying between Front street and the Ohio river was set apart as a common for the use and benefit of the town forever. City of Cincinati v. White, 6 Pet. 432; Barclay v. Howell's Lessee, Id. 498; Mayor, etc., of New Orleans v. U.S., 10 Pet. 662; Barney v. Keokuk, 94 U.S. 339; Rowan's Ex'rs v. Portland, 8 B. Mon. 232.
Our examination of the evidence has led us to the conclusion that it was the intention of the founders of the city of Washington to locate it upon the bank or shore of the Potomac river, and to bound it by a street or levee, so as to secure to the inhabitants and those engaged in commerce free access to the navigable water; and that such intention has never been departed from.
While, as we have already seen, the United States became vested with the control and ownership of the Potomac river and its subjacent soil within the limits of the District, by virtue of the act of cession by the state of Maryland, it must yet be conceded that, as to the land above high-water mark, the title of the United States must be found in the transactions between the private proprietors and the United States, consisting of the mutual agreements entered into by the proprietors, their deeds of conveyance to the trustees, their concurrence in the action of the commissioners in laying out plats and giving certificates, and their recognition of the several plans of the city made under the direction of the president.
As we have already said, our inquiry is as to the intention of the parties to be affected, but that intention need not be expressed by any particular form or ceremony, but may be a matter of necessary implication and inference from the nature and circumstances of the case.
We cannot undertake to comment upon each and every step of the transactions, but shall briefly refer to those of the most significance.
And, first, in the agreement of March 13, 1791, signed by the principal proprietors, including Robert Peter, David Burns, Notley Young, and Daniel Carroll, are the following recitals:
'We, the subscribers, in consideration of the great benefits we expect to derive from having the federal city laid off upon our lands, do hereby agree and bind ourselves, heirs, executors, and administrators, to convey, in trust to the president of the United States, or commissioners, or such person or persons as he shall appoint, by good and sufficient deeds in fee simple, the whole of our respective lands which he may think proper to include within the lines of the federal city, for the purposes and on the conditions following:
'The president shall have the sole power of directing the federal city to be laid off in what manner he pleases. He may retain any number of squares he may think proper for public improvements, or other public uses, and the lots only which shall be laid off shall be a joint property between the trustees on behalf of the public and each present proprietor, and the same shall be fairly and equally divided between the public and the individuals as soon as may be after the city shall be laid out.
'For the streets the proprietors shall receive no compensation, but for the squares or lands in any form which shall be taken for public buildings or any kind of public improvements or uses, the proprietors, whose lands shall be so taken, shall receive at the rate of twenty-five pounds per acre, to be paid by the public,' etc.
And by an agreement of March 30, 1791, on the part of the proprietors of lots in Carrollsburgh, including Daniel Carroll and Notley Young, it was provided as follows:
'We, the subscribers holding or entitled to lots in Carrollsburgh, agree with each other and with the president of the United States that the lots and land we hold or are entitled to in Carrollsburgh shall be subject to be laid out at the pleasure of the president as part of the federal city, and that we will receive one-half the quantity of our respective lots as near their present situation as may agree with the new plan, and where we may be entitled now to only one lot or otherwise not entitled on the new plan to one entire lot, or do not agree with the president, commissioners, or other person or persons acting on behald of the public on an adjustment of our interest, we agree that there shall be a sale of the lots in which we may be interested respectively, and the produce thereof in money or securities shall be equally divided, one-half as a donation for the use of the United States under the act of congress, the other half to ourselves respectively. And we engage to make conveyances of our respective lots and lands aforesaid to trustees or otherwise, whereby to relinquish our rights to the said lots and lands, as the president or such commisioners or persons acting as aforesaid shall direct, to secure to the United States the donation intended by this agreement.'
A similar agreement was entered into by the owners of lots in the town of Hamburgh.
Following these agreements came the conveyances by the several proprietors to Beall and Gantt, trustees. Without quoting from them at length, and referring to those of David Burns and Notley Young, copied in full in the statement of the case, it is sufficient here to say that the proprietors, by said conveyances, completely devested themselves of all title to the tracts conveyed, and that the lands were granted to the said trustees, 'to have and to hold the hereby bargained and sold lands, with their appurtenances, to the said Thomas Beall and John Mackall Gantt, and the survivor of them, and the heirs of such survivor, forever, to and for the special trust following, and no other, that is to say: That all the said lands hereby bargained and sold, or such part thereof as may be thought necessary or proper, be laid out together with the lands for a federal city, with such streets, squares, parcels, and lots as the president of the United States for the time being shall approve; and that the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor, shall convey to the commissioners for the time being appointed by virtue of an act of congress entitled 'An act for establishing the temporary and permanent seat of the government of the United States,' and their successors, for the use of the United States forever, all the said streets, and such of the said squares, parcels, and lots as the president shall deem proper for the use of the United States. And that as to the residue of the lots into which the said lands hereby bargained and sold shall have been laid out and divided, that a fair and equal division of them shall be made,' etc.
In a suit between the heirs of David Burns and the city of Washington and the United States this court had occasion to pass upon the nature of these grants, and used the following language:
'It is not very material, in our opinion, to decide what was the technical character of the grants made to the government, whether they are to be deemed mere donations or purchases. The grants were made for the foundation of a federal city, and the public faith was necessarily pledged, when the grants were accepted, to found such a city. The very agreement to found a city was itself a most valuable consideration for these grants. It changed the nature and value of the property of the proprietors to an almost incalculable extent. The land was no longer to be devoted to agricultural purposes, but acquired the extraordinary value of city lots. In proportion to the success of the city would be the enhancement of this value, and it required scarcely any aid from the imagination to foresee that this act of the government would soon convert the narrow incom of farmers into solid opulence. The proprietors so considered it. In this very agreement they state the motive of their proceedings in a plain and intelligible manner. It is not a mere gratuitous donation from motives of generosity or public spirit, but in consideration of the great benefits they expect to derive from having the federal city laid off upon their lands. Neither considered it a case where all was benefit on one side and all sacrifice on the other. It was, in no just sense, a case of charity, and never was so treated in the negotiations of the parties. But, as has been already said, it is not, in our view, material whether it be considered as a donation or a purchase, for in each case it was for the foundation of a city.' Van Ness v. City of Washington, 4 Pet. 284.
In Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 686, 3 Sup. Ct. 454, after an elaborate consideration of the agreements and conveyances, it was said:
'Undoubtedly, Notley Young, prior to the founding of the city and the conveyance of his land for that purpose, was entitled to enjoy his riparian rights for his private uses, and to the exclusion of all the world besides. It can hardly be possible that the establishment of the city upon the plan adopted, including the highway on the river bank, could have left the right of establishing public wharves, so essential to a great center of population and wealth, a matter of altogether private ownership.'
Thomas Johnson, Daniel Carroll, and David Stewart were, on January 22, 1791, appointed by President Washington such commissioners; and on March 30, 1791, by his proclamation of that date, the president finally established the boundary lines of the District; directed the commissioners to proceed to have the said lines run, and, by proper metes and bounds, defined and limited; and declared the territory so to be located, defined, and limited to be the district for the permanent seat of the government of the United States.
With the lines of the District thus established, the next important question that presented itself was the location of the federal city, in which were to be erected the buildings for the accommodation of congress, the president's house, and the public offices.
We are here met with a serious controversy as to the place and nature of the river boundary of the city. The record contains a large amount of evidence, consisting chiefly of maps and plans, of correspondence between the president and the commissioners, the deeds of conveyance by the original proprietors, and the testimony of old residents, some of whom had acted as surveyors and engineers during the early history of the city.
We cannot complain of having been left unassisted to examine and analyze this mass of evidence, for we have had the aid of the painstaking opinion of the court below and of a number of able briefs on all sides of the controversy.
As a national city was to be founded, which was to be the permanent seat of the government of the United States, where foreign nations would be expected to be represented, and as the site selected was on a navigable, tide-water river, inviting foreign and domestic commerce, we should naturally expect to find the city located in immediate proximity to the river, with public wharves and landings, and with a municipal ownership and control of the streets and avenues leading to and bounding on the stream.
As we have seen, the agreement of the proprietors provided that 'the president shall have the sole power of directing the federal city to be laid off in what manner he pleases.'
In the exercise of that power the president, at different times, caused several maps or plans of the city to be prepared, the authenticity and effect of which constitute a large part of the controversy in the present case.
The earliest of these plans was that prepared in 1791, by Major L'Enfant, and was by him submitted to the president on August 19th of that year. On October 17, 1791, after advertisement, and under direction by the preside t, the commissioners sold a few lots. On December 13, 1791, by a communication of that date, the president placed before congress this L'Enfant plan. On this plan the squares were unnumbered, and the streets unnamed.
Afterwards differences arose between L'Enfant and the commissioners, which resulted in the removal of L'Enfant by the president early in March, 1792. Thereupon Andrew Ellicott was directed by the president to prepare this plan so that it might be engraved, but Major L'Enfant refused to permit Ellicott to use his original plan, and Ellicott proceeded to prepare a plan from materials in his possession and from such information as he had acquired while acting as surveyor under L'Enfant.
It may be well to mention, though out of chronological order, that in February, 1797, President Washington, in a letter to the commissioners, referring to L'Enfant's plan, and to certain alterations that had been made, stated that Mr. Davidson, a purchaser of lots, 'is mistaken if he supposed that the transmission of Major L'Enfant's plan of the city to congress was the completion thereof. So far from it, it would appear from the message which accompanied the same that it was given as a matter of information only to show what state the business was in; that the return of it was requested; that neither house of congress passed any act consequent thereupon; that it remained, as before, under the control of the executive.'
Ellicott completed his plan, and laid it before the president on February 20, 1792. This plan was engraved at Boston and at Philadelphia, the engraved plans differing in the circumstance that the latter did and the former did not exhibit the soundings on the river front and on the Eastern Branch.
On October 8, 1792, the commissioners, who had been notified that 'about 100 squares were prepared and ready for division,' had a second public sale of lots; a copy of Ellicott's engraved plan being exhibited at the sale. Under the general authority conferred upon them by the president on September 29, 1792, to make private sales at such prices and on such terms as they might think proper, the commissioners, before November 6, 1792, had effected private sales of 15 lots.
Between 1792 and 1797 this plan of Ellicott's, known as the 'Engraved Plan,' was circulated by the commissioners in the United States, and forwarded to European countries from the office of state as the plan of the city, and was referred to as such by the commissioners in their negotiations for loans for the purpose of carrying on the public buildings.
On February 27, 1797, the commissioners addressed a letter to the president, in which, among other things, they said:
'What Mr. Davidson alludes to in his memorial when he says deviations have been made since the publication of the engraved plan, we know not. That plan required the doing of many acts to carry it into effect,-such as the laying out and bounding a water street on the waters which surround the city, and laying out squares where vacant spaces unappropriated were left in several parts of the city. Acts of this kind have no doubt, from time to time, been done, and with the full consent of all interested.'
It appears that the Ellicott plan was, in some respects, incomplete, as it did not show all the squares, or correctly delineate the public reservations, and was made before the completion of the surveys.
The first appearance of the Dermott map that we find in this record was on June 15, 1795, when, as appears in the proceedings of the commissioners of that date, 'Dermott is directed to prepare a plat of the city with every public appropriation plainly and distinctly delineated, together with the appropriation now made by the board for the National University and Mint.'
On March 2, 1797, by an instrument under his hand and seal, President Washington requested Thomas Beall and John M. Gantt, the trustees, to convey to the commissioners all the streets in the city of Washington, as they are laid out and delineated in the plan of the city thereto annexed; and also the several squares, parcels, and lots of ground therein described. Though in this communication President Washington mentioned a plan of the city as annexed thereto, yet it seems that a plan was not so actually annexed. And on June 21, 1798, the commissioners wrote a letter to President Adams in the following terms:
'At the close of the late president's administration he executed an act directing the trustees of the city of Washington to convey to the commissioners the streets of said city and the grounds which were appropriated to public use. In the press of business the plan referred to was not annexed. We now send it by Mr. Nourse, with the original act, and the draft of another act, which appears to us proper to be executed by the present president, in order to remove any objection to a compliance with the late president's request arising from the omission above mentioned. As these acts are the authentic documents of the title of the public to the lands appropriated, we shall write to Mr. Craik, or some other gentleman, to take charge of their return, rather than trust them to the mail.'
Accordingly, on July 23, 1798, President Adams, by an instrument reciting the act executed by his predecessor on March 2, 1797, and the nonannexation to that act of the plan of the city therein mentioned, makes known to Beall and Gantt, trustees, that he has caused the said plan to be annexed to the said act, and requests them to convey to the commissioners, for the use of the United States forever, according to the tenor of the act of congress of July 16, 1790, 'all the streets in the said city of Washington, as they are laid out and delineated in the plan of the said city hereto annexed, and all the squares, parcels, and lots of ground described in the said act as public appropriations.'
The following entry, as of the date of August 31, 1798, appears in the proceedings of the commissioners: 'Mr. William Craik delivered into the office the plan of the city of Washington, with the acts of the late and present presidents.'
Some dispute subsequently arose as to whether the plan which President Washington intended to have annexed to his act was the plan of Ellicott or that of Dermott. Thus, in an opinion delivered on December 16, 1820, by Atty. Gen. Wirt to President Monroe, it was said that 'if President Washington has, as Mr. Breckinridge states, previously ratified Ellicott's engraved plan, this must be considered as the plan he intended to annex, and it was not competent for President Adams to give the instrument of writing a different direction by annexing to it a different plan.'
But this opinion was evidently given in Ignorance of the proceedings of the commissioners on June 21, 1798, already referred to, and in which it appears that, in their letter to President Adams, they mention that the plan sent was 'the last plan of the city, made by Mr. Dermott, and referred to in said instrument of writing,'-the said instrument of writing being President Washington's act of March 2, 1797.
We also find in the record that on January 7, 1799, Atty. Gen. Lee, in an opinion given to President Adams, said:
'Already a plan of the city has been approved and ratified by the president of the United States, who has signed the plan itself, or an instrument referring to the plan, which I presume is a sufficient authentication. If this plan, under the president's signature, varies from the L'Enfant's or Ellicott's essays, they must yield to it, as they are to be considered only as preparatory to that plan which received ultimately the formal and solemn approbation of the president. It is not supposed that this is incomplete in any respect, except in relation to the rights appurtenant to the water lots, and to the street which is to be next to the water courses.'
The record also contains a copy of a report of a committee of the house of representatives, of April 8, 1802, in which it is said, r ferring to the Dermott plan:
'This plan has been signed by Mr. Adams, in conformity with which the trustees were directed by him to convey the public grounds to the United States, and is considered by the commissioners the true plan of the city. The plan has never been engraved or published. * * * Your committee are of the opinion that suffering the engraved plan, which is no longer the true plan of the city, to continue to pass as such, may be productive of great deception to purchasers, and that measures ought to be taken for its suppression.'
On July 14, 1804, President Jefferson, in a communication to Mr. Thomas Monroe, superintendent of public buildings, said:
'The plan and declaration of 1797 were final so far as they went, but even they left many things unfinished, some of which still remain to be declared.'
What would seem to be decisive of the dispute is the fact that in the act or instrument signed by President Washington on March 2, 1797, is contained, by metes and bounds, a specification of the reservations, 17 in number, and those metes and bounds do not coincide with the reservations indicated upon the Ellicott plan, but do accurately coincide with the reservations as indicated in the Dermott plan.
We, therefore, cannot doubt that the Dermott map was the one intended by President Washington to be annexed to his act of March 2, 1797.
But while we regard the Dermott map as sufficiently authenticated, we do not accept the contention that it is to be considered as the completed and final map of the city, and that it alone determines the questions before us.
On the contrary, we think it plain, upon the facts shown by this record, that the president, the commissioners, and the surveyors proceeded, step by step, in evolving a plan of the city. Under each of the plans mentioned, lots were sold and private rights acquired. Changes were, from time to time, made to suit the demands of interested parties, and additions were made as the surveys were perfected. Even the last map approved by President Washington, as was said by President Jefferson in 1804, left many things unfinished, some of which still remained to be declared.
In short, we think that these several maps are to be taken together as representing the intentions of the founders of the city, and, so far as possible, are to be reconciled as parts of one scheme or plan.
Pursuing such a method of investigation, we perceive that, in the first map submitted to congress by President Washington on December 13, 1791, as 'the plan of the city,' there is between the lots fronting on the Potomac and the river itself an open space, undoubtedly intended as a thoroughfare and for public purposes. It is true that this open space is not named as a street. But none of the other streets and avenues on this map are named. And we read in a letter of the commissioners to Major L'Enfant, dated September 9, 1791, as follows:
'We have agreed that the federal district shall be called 'The Territory of Columbia,' and the federal city 'The City of Washington.' The title of the map will therefore be 'A Map of the City of Washington in the Territory of Columbia.' We have also agreed the streets be named alphabetically one way, and numerically the other; the former divided into north and south letters, the latter into east and west numbers from the capitol. Major Ellicott, with proper assistants, will immediately take and soon furnish you with soundings of the Eastern Branch, to be inserted in the map.'
This L'Enfant plan contains all the essential features of the city of Washington as they exist to-day.
Owing to the disputes between L'Enfant and the commissioners, as already stated, the former withdrew, and Andrew Ellicott, who had been acting as an assistant to L'Enfant, proceeded with the work, with the result that about October, 1792, the engraved or Ellicott map was completed and in the hands of the commissioners. This map shows the squares numbered, the avenues named, and the l ttered and numbered streets all designated. It also shows on the front on the Potomac river and on the Eastern Branch, between the ends of the lots and the squares and the water, an open, continuous space or street, extending through the entire front of the city.
But it must be said of this map that it did not show all the squares or correctly place the public reservations, and, indeed, it was made before the completion of the surveys. As was said by the commissioners in their letter of February, 1797, 'that plan required the doing of many acts to carry it into effect, such as the laying out and bounding a Water street on the waters which surround the city.'
Then came, in March, 1797, the Dermott map, which indicated the location and extent of the public reservations or appropriations, and also certain new squares, not shown on the engraved plan, and which were laid out on the open spaces at the intersection of streets appearing on the engraved plan, and also exhibited the progress that had been made since 1792 in laying down the city upon the ground in accordance with the scheme of the previous plans. But, as was said by President Jefferson on July 14, 1804, in a passage previously quoted: 'The plan and declaration of 1797 were final, so far as they went; but even they left many things unfinished, some of which still remain to be declared.'
President Jefferson was probably led to form this opinion by his personal knowledge of the situation, which was intimate. And here may well be quoted a portion of a long communication addressed to him by Nicholas King, surveyor of the city of Washington, dated September 25, 1806, in which the writer, adverting to the several plans and to certain regulations published by the commissioners on July 20, 1795, said:
'Perfecting this part of the plan, so as to leave nothing for conjecture, litigation, or doubt, in the manner which shall most accord with the published plans, secure the health of the city, and afford the most convenience to the merchants, requires immediate attention. * * * The principle adopted in the engraved plan, if carried into effect and finally established in the plan now laid out upon the ground, when aided by proper regulations as to the materials and mode of constructing wharves for vessels to lay at and discharge their cargoes on, seems well calculated to preserve the purity of the air. The other streets will here terminate in a street or key, open to the water, and admitting a free current of air. It will form a general communication between the wharves and warehouses of different merchants, and, by facilitating intercourse, render a greater service to them than they would derive from a permission to wharve as they pleased. The position of this Water street being determined, it will ascertain the extent and situation of the building squares and streets on the made ground from the bank of the river, and bring the present as near to the published plan as now can be done. It will define the extent and privileges of water lots, and enable the owners to improve without fear of infringing on the rights of others. * * * Along the water side of the street, the free current or stream of the river should be permitted to flow, and carry with it whatever may have been brought from the city along the streets or sewers. The wharves permitted beyond this street to the channel may be stages or bridges with piers and sufficient waterways under them; and on the wharves so erected it would seem proper to prohibit the erection of houses or anything obstructing a free circulation of air. * * * The surveying is now so far completed that it can be done with the utmost precision, and every foot of ground within the limits of the federal city, with its appurtenant privileges, may be so defined as to prevent litigation or doubt on the subject. If it is not done at this time, the evils will increase, and every year add to our difficulties. Even now, from the various decisions or neglects, alterations, or amendments which have here ofore taken place, some time an investigation may be necessary in the arrangement of a system which shall combine justice with convenience. If this decision is left to a future period and our courts of law, they can only have a partial view of the subject, and any general rule they may adopt may be attended with serious disadvantages.'
Nicholas King himself prepared a plan or serial map of 16 sheets in 1803. There is evidence tending to show that this was done in pursuance of an order of the commissioners; and in reference to it the record contains the testimony, in the present case, of William Forsythe, who had been connected for many years with the office of surveyor of the city, in subordinate capacities and as the head of it, and who was in 1876 the surveyor of the District of Columbia. He says:
'I can only say that it is the best in point of execution of the early maps of the city, and that it has been acted upon ever since it has been prepared in connection with the affairs of the surveyor's office, and that the lines of wharfing indicated upon the map from Rock Creek to Easby's Point have been followed; in other words, that all the improvements, such as reclamation of land, and the wharves that have been built in that section of the city, were made and built in accordance with the plan of wharfing, etc., indicated on this map. * * * The map of 1803 has always, in my recollection going back forty years in connection with the surveying department of the city, been considered and acted upon as an official map, and, from conversation with those who have preceded me in the surveyor's office, I know that it was always considered by them as an authentic official map of the city. it has in fact been the standard map.'
While it is true that this map of 1803 was never officially approved or authenticated by any president of the United States, as were the earlier maps, and is not therefore of conclusive effect, it is, in our opinion, a legitimate and important piece of evidence.
In connection with the later map of 1803, prepared by King, ought also to be considered a series of plans drawn by him and laid before the commissioners on March 8, 1797, in a communication, as follows:
'I send you herewith a series of plans exhibiting that part of the city which lies in the vicinity of the water, and includes what is called the 'Water Property,' from the confluence of Rock Creek with the Potomac to the public appropriation for the Marine Hospital on the Eastern Branch. What appears to me the most eligible course for Water street, with the necessary alterations in the squares already laid out, or the new ones which will be introduced thereby, are distinguishable by the red lines which circumscribe them, while those already established are designated by two black lines.'
Without pausing to examine the King map and plans in their particulars, to some of which we may have occasion to recur at a subsequent stage of our investigation, it is enough to here state that the existence of a water street in front of the city, and comporting, in the main, with its course as laid down on the engraved plan of the Ellicott plan, is distinctively recognized.
The record also contains a map proposed by William Elliott, surveyer of the city of Washington, in 1835, and adopted in 1839 by the city councils, and approved by President Van Buren, entitled, 'Plan of Part of the City of Washington, exhibiting the water lots and Water street, and the wharves and docks thereon, along the Potomac, from E to T streets south.' This map exhibits Water street as extending in front of that part of the city embraced in the map, and it also shows that what are styled 'water lots' front on the north side of Water street.
We have not overlooked the fact disclosed by the evidence in the record, that, even during the presidency of Gen. Washington, there were complaints made, from time to time, of alleged changes or departures from the L'Enfant and Ellicott plans, and that also eff rts were made, sometimes successfully, to get changes allowed. And on November 10, 1798, a memorial was addressed to President Adams by some of the proprietors of lands within the city, complaining of changes made by the Dermott plan in some of the features of the previous plans, and calling attention to the incompleteness of that plan in omitting a delineation of Water street.
But these complaints appear to have been ineffectual. Nor are we disposed to understand them as meaning more than a call for a perfect delineation of Water street, not as asserting that the Dermott plan was an abandonment of such a street.
In connection with the various maps and plans must be read the regulations issued by the commissioners while they were acting, and their contract and agreements with the proprietors and purchasers.
In July, 1795, certain wharfing regulations were published, containing, among other things, the following: 'That all the proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the Eastern Branch as they may think convenient and proper, not injuring or interrupting the channels or navigation of the said waters, leaving a space, wherever the general plan of the streets of the city requires it, of equal breadth with those streets, which, if made by an individual holding the adjacent property, shall be subject to his separate occupation and use, until the public shall reimburse the expense of making such street, and, where no street or streets intersect said wharf, to leave a space of sixty feet for a street at the termination of every three hundred feet of made ground.' This was certainly an assertion of the control by the public, then represented by the commissioners, over the vast land adjoining the shores and extending to the navigable channels.
Another fact of much weight is that, in the division of squares between the commissioners and Notley Young, the plats of which were signed by the commissioners and by Notley Young in March, 1797, the southern boundary is given as Water street.
It is doubtless true, as argued in the brief filed for those who succeeded to Young's title, that such a division would not, of itself, have the effect of vesting title in fee to the land in the United States; nor, perhaps, would such a transaction operate as a donation by Young to the city of the territory covered by the street, although it might be deemed a dedication thereof to public use as a street.
But the importance of the fact consists in the recognition by Young of the existence of Water street as an existing or projected southern boundary of the squares.
Stress is laid, in the arguments for the appellants, on the use of the term 'water lots,' in the agreement of December 24, 1793, between the commissioners for the federal buildings of the one part, and Robert Morris and James Greenleaf of the other part, and also on the statement made, in that agreement, that Morris and Greenleaf were entitled to the lots in Notley Young's land, and, of course, to the privileges of wharfing annexed thereto.
It should, however, be observed that the term 'water lots,' as used in that agreement, and elsewhere in the proceedings of the commissioners, does not necessarily mean that such lots were bounded by the Potomac river, The lots fronting on Water street were spoken of as 'water lots' because next to that street and nearer to the river than the lots lying behind,-a fact which gave them additional value. That this was the usage in speaking of 'water lots' appears in Elliott's map made in 1835, and approved by President Van Buren in 1839, where the lots abutting on Water street on the south are termed 'water lots.'
As to the statement in the agreement that Morris and Greenleaf, as purchasers from the commissioners of lots in Notley Young's land, would be entitled to the privilege of wharfing annexed thereto, it must be remembered that that language was used in 1793, before the division of squares between Notl y Young and the commissioners was made.
It is true that in the return made by the surveyors, on June 15, 1793, of squares 472, 473, 505, 506, south of 506, and south of south 506, they bounded said lots by the Potomac river. But in a further and subsequent return, made on December 14, 1793, these squares are given, in each instance, a boundary by Water street. And on June 22, 1794, the commissioners adopted the later survey, as shown by an entry on their minutes, as follows:
'The commissioners direct that the surveys and returns made of the part of the city in Mr. Young's land, adjoining the Potomak, leaving Water street according to the design of the plan of the city, be acted on, instead of the returns made by Major Ellicott, in some instances bounded with, and in others near, the water.'
And we learn, from the evidence in the record, that on July 12, 1794, by a letter of that date, Thomas Freeman, a surveyor in the employ of the commissioners, informed them that 'Water street on Potomak river is adjusted and bounded.'
So that Morris and Nicholson, who succeeded to the interest of Greenleaf, took under their contract squares laid off in Notley Young's land, with a boundary in every instance on Water street.
By various ordinances, from time to time passed, the city, from its organization in 1802, exercised jurisdiction over the portions of the Potomac river and the Eastern Branch adjoining the city and within its limits. So, too, congress, by the act of May 15, 1820 (3 Stat. 587), enacted that 'the city should have power to preserve the navigation of the Potomac and Anacostia rivers, adjoining the city, to erect, repair and regulate public wharves, and to deepen creeks, docks and basins; to regulate the manner of erecting and the rates of wharfage at private wharves; to regulate the anchorage, stationing and mooring of vessels.'
Controversies arose, involving the meaning of the agreements between the original proprietors and the United States and the city of Washington, and as to the effect of subsequent acts of congress and ordinances of the city authorities, and these questions found their way into the courts.
Van Ness v. City of Washington, 4 Pet. 232, grew out of an act of congress of May 7, 1822, authorizing the corporation of Washington, in order to improve certain parts of the public reservations and to drain the low grounds adjoining the river, to lay off in building lots certain parts of the public reservations and squares, and also a part of B street, as laid out and designated in the original plan of the city, which lots they might sell at auction, and apply the proceeds to those objects, and afterwards to inclosing, planting, and improving other reservations, the surplus, if any, to be paid into the treasury of the United States. The act also authorized the heirs or vendees of the former proprietors of the land on which the city was laid out, who might consider themselves injured by the purposes of the act, to institute in the circuit court of the District of Columbia a bill in equity against the United States, setting forth the grounds of any claim they might consider themselves entitled to make; the court to hear and determine upon the claim of the plaintiffs, and what portion, if any, of the money arising from the sale of the lots they might be entitled to, with a right of appeal to this court. The plaintiffs, Van Ness and wife, filed their bill against the United States and the city of Washington, claiming title to the lots which had been thus sold, under David Burns, the original proprietor of that part of the city, on the ground that by the agreement between the United States and the original proprietors, upon the laying out of the city, those reservations and streets were forever to remain for public use, and, without the consent of the proprietors, could not be otherwise appropriated or sold for private use; that by such sale and appropriation for private use the right of the United States thereto was determined, or that the original proprietors reacquire a right to have the reservations laid out in building lots for their joint and equal benefit with the United States, or that they were in equity entitled to the whole or a moiety of the proceeds of the sales of the lots. This court held that the United States possessed an unqualified fee in the streets and squares, and that no right or claims existed in the former proprietors or their heirs.
This decision is criticised by the learned counsel of the appellants as founded on an erroneous assumption by the court that Beall and Gantt, the trustees, had made a conveyance, on November 30, 1791, of all the premises contained in the previous agreements, including the squares or lots for public buildings and the land for the streets. And, indeed, it does appear, by the evidence in the present case, that although both President Washington and President Adams did formally request the trustees to convey to the commissioners all the streets in the city of Washington, and also the several squares, parcels, and lots of ground appropriated for public purposes, yet that the trustees, owing to disputes and objections on the part of several of the original proprietors, failed to ever actually execute such a deed of conveyance. Yet even if such an alleged state of facts had been made to appear to the court, namely, that no conveyance of the land in the streets had been actually made by the trustees, we think the conclusion reached by the court in that case could not have been different.
In the act of Maryland, ratifying the cession, and entitled 'An act concerning the territory, of Columbia and the city of Washington,' passed December 19, 1791, was contained the following:
'And be it enacted, that all the squares, lots, pieces and parcels of land within the said city, which have been or shall be appropriated for the use of the United States, and also the streets, shall remain and be for the use of the United States; and all the lots and parcels, which have been or shall be sold to raise money as a donation as aforesaid, shall remain and be to the purchasers, according to the terms and conditions of their respective purchase. * * *'
In August, 1855, Atty. Gen. Cushing rendered to the secretary of the interior an opinion upon the question of the authority of the commissioner of public buildings, as successor of the early commissioners, to sell and convey lots in the city of Washington. Adverting to the act of the legislature of Maryland of December 19, 1791, and citing the section above quoted, he said:
'This provision seems to have been designed to have the legal effect to vest in the United States the fee of all the lots, etc., conveyed for their use, and also to perfect the titles of purchasers to whom sales had been or should be made, according to the terms of the act of congress.' 7 Op. Attys. Gen. 355.
And even if the act of Maryland did not avail, of itself, to convey unto the United States a legal statutory title, the facts show that the United States were entitled to a conveyance from the trustees, and a court of equity will consider that as having been done which ought to have been done.
In point of fact, the trustees did, by their deed of November 30, 1796, on the request of President Washington, convey to the commissioners in fee simple all that part of the land which had been laid off into squares, parcels, or lots for buildings, and remaining so laid off, in the city of Washington, subject to the trusts remaining unexecuted.
In the case of Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 672, 3 Sup. Ct. 445, and 4 Sup. Ct. 15, it was held, following Van Ness v. City of Washington, that the fee of the streets was in the city, and, further, that the strip between the squares and lots and the Potomac river was such a street, and that there were no private riparian rights in Notley Young and those who succeeded to his title.
In the discussion of the evidence that led to such a conclusion, Mr. Justice Matthews said:
'I has been observed that both squares No. 472 and No. 504 are bounded on the southwest by Water street. This street was designated on the adopted plan of the city as occupying the whole line of the river front, and separating the line of the squares from the river for the entire distance from Fourteenth street to the Arsenal Grounds. It is alleged in the bill in respect to this street that there was traced on the map of the city 'but a single line, denoting its general course and direction; that the dimensions of said Water street, until the adoption, on the 22d of February, 1839, of the certain plan of one William Elliott, as hereinafter more particularly mentioned, were never defined by law, and that the said Water street was never, in fact, laid out and made in the city until some time after the close of the recent Civil War; that before the commencement of said Civil War one high bluff or cliff extended along the bank of said river in the city of Washington, from Sixth street west to Fourteenth street west; that to the edge thereof the said bluff or cliff, between the points aforesaid, was in the actual use and enjoyment of the owners of the land which it bounded towards the river; that public travel between the two streets last above mentioned, along the said river, could only be accomplished by passing over a sandy beach, and then only when the tide was low; and that what is now the path of water street, between the two streets aforesaid, was and has been made and fashioned by cutting down the said cliff or bluff and filling in the said stream adjacent thereto.'
'These allegations, in substance, are admitted in the answer to be true, with the qualification that the width of the street was left undefined, because it constituted the whole space between the line of the squares and the river, whatever that might be determined to be from time to time; but that the commissioners, on March 22, 1796, made an order directing it to be laid out eighty feet in width from square 1079 to square east of square 1025, and to 'run out the squares next to the water and prepare them for division,' and that it was so designated on the maps of the city in 1803. If not, the inference is all the stronger that the whole space south of the line of the lots was intended to be the property and for the use of the public. Barclay v. Howell's Lessees, 6 Pet. 498. In Rowan's Ex'rs v. Portland, 8 B. Mon. 239, that inference was declared to be the legal result of such a state of facts.
'It is quite certain that such a space was designated on the official map of the city as originally adopted, the division and sale of the squares and lots being made in reference to it. What the legal effect of that fact is we shall hereafter inquire, and, while we do not consider it to be qualified by the circumstance set forth as to the actual history of the street as made and used, they perhaps sufficiently account for the doubt and confusion in which the questions of right brought to issue in this litigation seem for so long a period to have been involved.
'The transaction between Notley Young and the public authorities, as evidenced by the documents and circumstances thus far set forth, was equivalent in its result to a conveyance by him to the United States in fee simple of all his land described, with its appurtenances, and a conveyance back to him by the United States of square No. 472, and to Greenleaf of square No. 504, bounded and described as above set forth, leaving in the United States an estate in fee simple, absolute for all purposes, in the strip of land designated as 'Water Street,' intervening between the line of the squares as laid out and the Potomac river.'
It is earnestly urged in the present case that the court in that case did not have before it the Dermott map, and was not aware that said map was the one approved by President Washington on March 2, 1797. From this it is reasoned that, if the court had been informed that the Dermott map was the real and only off cial plan, and had seen that Water street was not laid out or designated upon it, a different conclusion as to the ownership of Water street would have resulted.
It is by no means clear that the Dermott plan was not before the court. If it was, as is now contended, the only plan which was approved by President Washington as the official map, it would seem very singular that the able and well-informed counsel who represented the respective parties in that case did not think fit to put it in evidence, and make it the subject of comment.
We are inclined to infer that the Dermott plan was the very one referred to in the bill and answer in that case. Thus, in the bill, in the portion above quoted, it was alleged, in respect to Water street, that there was traced on the map of the city 'but a single line, denoting its general course and direction'; and in the answer it is stated that the width of the street was left undefined, because it constituted the whole space between the line of the squares and the river.
An inspection of the Dermott plan discloses such a single line, extending along the entire river front on both the Potomac and the Eastern Branch, and outside of the line of the squares and lots.
But the Ellicott plan, as engraved in Philadelphia, discloses a well-defined space, of varying width, between the river and the line of the lots and squares, extending along the entire front of the city.
There are expressions used in the opinion of the court, in that case, that show that the attention and consideration of the court were not restricted to a single map. Thus, on page 679, after adverting to the order of the commissioners on March 22, 1796, directing that Water street should be laid out 80 feet in width, the court adds 'that it was so designated on the maps of the city in 1803,'-evidently referring to the King plan.
Even if so unlikely a fact did exist, namely, that in the case in 109 U.S. the Dermott map was not considered, we think that the conclusion of the court would not have been changed by its inspection. It was not understood to set aside or dispense with the important features of the previous maps. It, no doubt, having been made after most of the surveys had been returned, more accurately comported with the lots, squares, and streets as laid out than the previous plans. But, as we have seen, it was not itself complete. The contention that it omitted Water street, with the intention of thereby renouncing the city's claim to a street on the river, does not impress us as sustained by the evidence. The preceding plans exhibited a space for such a street, and the succeeding plans, both that of King, in 1803, and that of Elliott, adopted by the city councils and approved by President Van Buren, in 1839, recognize, and, in part, define, Water street. The Dermott plan itself exhibits the line of a space outside of the line of the squares and lots, and that portion of such space that lies on the Eastern Branch is marked on the Dermott plan as Water street.
The latest reference to the maps that we are pointed to in the reports of this court is in Patch v. White, 117 U.S. 221, 6 Sup. Ct. 710, where Mr. Justice Woods said: 'The devise clearly and without uncertainty designates a lot on Ninth street, between I and K streets, well known on the map of the city of Washington, whose metes, bounds, and area are definitely fixed, platted and recorded. The map referred to was approved by President Washington in 1792, and recorded in 1794. Thousands of copies of it have been engraved and printed. All conveyances of real estate in the city made since it was put on the record refer to it, it is one of the muniments of title to all the public and private real estate in the city of Washington, and it is probably better known than any document on record in the District of Columbia. The accuracy of the description of the lot devised is therefore matter of common knowledge, of which the court might even take judicial notice.'
It is true that in that case there was no controversy respecting the authenticity of the city maps, and that the expressions quoted are found in a dissenting opinion. Still, such statements, made in a closely-contested case, where the parties were represented by leading counsel, residents of the city of Washington, may fairly be referred to as a contribution to the history of the city maps.
Without protracting the discussion, we think, considering the reasonable probability that a public street or thoroughfare would be interposed between the lots and squares and the navigable river; the language and history of the acts of Maryland referred to; the agreements between the original proprietors; the deeds to the trustees; the subsequent transactions between the property holders and the commissioners; the regulations affecting the use of wharves and docks, published by the commissioners; the several acts of congress conferring jurisdiction upon the city over the adjacent waters; the several city maps and plans, beginning with that of L'Enfant, sent by President Washington to congress in 1791, and ending with that of Elliott, approved by President Van Buren in 1839; and the views expressed on the subject in previous decisions of this court,-that the conclusion is warranted that, from the first conception of the federal city, the establishment of a public street, bounding the city on the south, and to be known as 'Water Street,' was intended, and that such intention has never been departed from.
With this conclusion reached, it follows that the holders of lots and squares abutting on the line of Water street are not entitled to riparian rights, nor are they entitled to rights of private property in the waters or the reclaimed lands lying between Water street and the navigable channels of the river, unless they can show valid grants to the same from congress, or from the city under authority from congress, or such a long protracted and notorious possession and enjoyment of defined parcels of land as to justify a court, under the doctrine of prescription, in inferring grants.
With these results in view, we shall now proceed to examine the remaining claims.
The Chesapeake & Ohio Canal Company was incorporated in 1824 by concurrent acts of the legislatures of Virginia and Maryland. The object of the company was the construction of a navigable canal from the tide water of the Potomac to the Ohio river.
By an act approved March 3, 1825 (4 Stat. 101), congress enacted 'that the act of the legislature of the state of Virginia, entitled 'An act incorporating the Chesapeake and Ohio Canal Company,' be, and the same is hereby, ratified and confirmed, so far as may be necessary for the purpose of enabling any company that may hereafter be formed, by the authority of said act of incorporation, to carry into effect the provisions thereof in the District of Columbia, within the exclusive jurisdiction of the United States, and no further.'
That portion of the canal which lies within the boundaries of the city of Washington extends from Twenty-Seventh street in a southeasterly direction to Seventeenth street, and appears to have been opened for navigation in the latter part of 1835. This part of the canal was wholly constructed north of the street designed to run between the squares nearest to the river front and the river itself. The land occupied by the canal company within the city belonged in part to individual owners and in part to the United States.
Entering the city so long after the adoption of the several maps and plans, the canal company must be deemed to have been aware of their contents, and to have been subjected thereto, except in particulars in which the company may have been released or exempted therefrom by the acts of congress, or by the authorities of the city. Consequently the company cannot validly claim riparian rights as appurtenant to those lots or parts of lots which the company purchased from individual owners who held lots north of Water street. Having themselve , as we have seen, no riparian rights, such owners could not convey or impart them to the canal company.
But it is contended, on behalf of the canal company, that riparian rights attached at least to those portions of their land which they acquired by virtue of the legislation of congress, and which were located on the margin of the Potomac river.
If it was, indeed, the persistent purpose of the founders of the city to erect and maintain a public street or thoroughfare along the river front, it would be surprising to find so reasonable a policy subverted by legislation on the part of congress in favor of this canal company. To justify such a contention, we should expect to be pointed to clear and unmistakable enactments to that effect. But the acts of congress relied on are of a quite different character. Let us briefly examine them.
There was, in the first place, the act of March 3, 1825, heretofore quoted, wherein the act of Virginia incorporating the Chesapeake & Ohio Canal Company is ratified and confirmed, so far as may be necessary for the purpose of enabling any company that might thereafter be formed under the authority of that act to carry into effect the provisions thereof in the District of Columbia, within the exclusive jurisdiction of the United States, and no further. Then followed the act of May 23, 1828 (4 Stat. 292), authorizing the connection of lateral canals, constructed under authority of Maryland and Virginia, with the main stem of the canal within the District. By the act of May 24, 1828 (4 Stat. 293), congress authorized a subscription by the United States for 10,000 shares of the capital stock of the company, and made provision for the elevation and width of the section below the Little Falls, so as to provide a supply of water for lateral canals or the extension of the Chesapeake & Ohio Canal by the United States.
It may be conceded that it is clear from these enactments that congress contemplated the location of the Chesapeake & Ohio Canal along the bank of the Potomac river within the District of Columbia; and it may be further conceded that congress acquiesced in the route and terminus of the canal selected by the company. But it does not follow from such concessions, or from anything contained in the legislation referred to, that congress was withdrawing from the city of Washington its rights in Water street, or was granting to the canal company a fee simple in the river margin, with appurtenant riparian rights.
It is further urged that by the act of March 3, 1837 (5 Stat. 303), congress adopted and enacted as a law of the United States the provision of the Virginia act of February 27, 1829, in the following terms: 'That whenever it might be necessary to form heavy embankments, piers or moles, at the mouths of creeks or along the river shore, for basins or other purposes, and the president and directors may deem it expedient to give a greater strength to the same by widening them and constructing them of the most solid materials, the ground so formed for such useful purpose, may by them, when so improved, be sold out or let for a term of years, as they may deem most expedient for the company, on such conditions as may direct the application of the proceeds thereof to useful purposes, and at the same time repay the necessary expense of the formation of such banks, piers or moles; provided, that this power shall in no case be exercised so as to injure the navigation of the canal;' that, by the second section of the act of 1837, penalties were declared against any person who should maliciously injure the canal or its necessary embankments, tow paths, bridges, or drains; and, by the third section, enacted that 'all condemnations of lands for the use and purposes of said canal company, which have heretofore been made by the marshal of the district or any lawful deputy marshal, shall be as valid as though the same had been situated in the state of Maryland, and had been condemned in pursuance of the laws of said tate through the action and agency of a sheriff of any of the counties of said state.'
As the canal had been constructed and opened for navigation within the limits of the city before the passage of this act of 1837, and as it is not claimed or shown that any embankments, piers, or moles were constructed on the route of the canal, within the city, since the passage of the act, it thus appears that no rights were acquired by the company on the strength of the act, which are interfered with by the improvements projected by congress.
It was, indeed, alleged in paragraph 16 of the company's answer that 'the company did construct a gate house at the foot of Seventeenth street, and a pier, embankment, or mole at the foot of Seventeenth street, and extending into the Potomac river; and that said gate house and the made land appurtenant thereto, and part or all of said pier, embankment, or mole at the foot of Seventeenth street, as the same now exists, are the property of this defendant.'
Without stating the particulars of the evidence on this part of the subject, it is sufficient to say that it clearly appears that the basin at the mouth of Tiber Creek, at the foot of Seventeenth street, was constructed by the corporation of the city of Washington, and that the pier or embankment, mentioned in the company's answer, did not extend into the Potomac river, but into this basin, and that the gate house referred to was erected under a permission granted by the city council by an act approved May 20, 1837, in the following terms:
'That permission be and is hereby granted to the Chesapeake and Ohio Canal Company to use and occupy so much of the northwest corner of the wharf erected at the southern termination of Seventeenth street west as they may deem necessary, for the purpose of erecting thereon a house for the keeper of the river lock at that place: provided, the extent thereof shall not exceed sixty feet measured south and thirty feet measured east from the northwest corner of the said wharf.' There is nothing in this or in any other legislation on the part of the city council which can be construed as conferring on the company any rights of property in the land intervening, according to the plans of the city, between the canal and the river.
The fair meaning and effect of the legislation of congress and of the city respecting the Chesapeake & Ohio Canal Company were to permit that company to construct and maintain its canal within the limits of the city, and to approve its selection of the route and terminus. The purpose of the construction of the basin at the foot of Seventeenth street was to provide a commodious harbor, in which were to meet and be exchanged the commerce of the Potomac river and of the Chesapeake & Ohio Canal. But we find, in such legislation, no intimation, much less any clear and distinct declaration, of an intention to set aside the existing plans of the city in respect to its river front.
We do not deem it necessary to enter upon a consideration of the exact nature of the company's title to the lands occupied by its canal within the limits of the city, nor to discuss the legal consequences of a failure by the company to occupy and use such lands for canal purposes. Different conclusions might be reached in respect to lands derived by purchase or condemnation and public lands granted for the public purpose of a navigable highway. But such questions are not before us.
It is sufficient now to hold that the Chesapeake & Ohio Canal Company does not, either as to lots procured from private owners, or as to lands occupied under the permission of congress and of the city authorities, own or possess riparian rights along the line of its canal, within the limits of the city.
Accordingly, the decree of the court below in respect to the claim of the Chesapeake & Ohio Canal Company is affirmed. It was, however, found by the court below that there is a small strip of land north of Water street, and owned by the Chesapeake & Ohio Canal Company, which lies within the limi § of the government improvement, the value of which was determined by the court below at the sum of $353.33. As the United States have not appealed from this part of the decree, and as the Chesapeake & Ohio Canal Company has not excepted to the finding of the value, it follows that the canal company is entitled to that sum out of the appropriation by congress as compensation for the occupation by the government of such strip of land.
The next class of claimants consists of lot owners between Seventeenth street west and Twenty-Seventh street west.
All these lots, with respect to which riparian rights are claimed, lie to the north of Water street, which intervenes between them and the channels of the river. Under the principles already established, no riparian rights belonged to these lots. But some portions of the lots are embraced within the limits of the government plan of reclamation, and for such portions the court below awarded compensation. All of these claimants, save two, have accepted and received the compensation.
Richard J. Beall and the heirs and trustees of William Easby have refused to accept the compensation so awarded them, and have appealed. Their asserted grounds of appeal are-First, their alleged rights to riparian and wharfage privileges on the Potomac river as appurtenant to their lots; and, second, the insufficiency of the compensation allowed by the court below.
An effort is made to distinguish the case of these lots from that of the lots east of Seventeenth street by referring to a book marked 'Register of Squares,' produced from among the records of the city, and wherein squares 63 and 89 are bounded on the north by Water street and on the south by the Potomac river, and square 129 is bounded on the north by B street and on the south by the Potomac river.
It was the opinion of the court below that there was a lack of evidence to prove that the registers of squares were contemporaneous and original books, which it was the duty of the commissioners to keep, that the entries were not in their handwriting nor in that of any person whose handwriting is proved, and that they have not the quality of a public record.
We agree with that court in thinking that, in no point of view, on the evidence adduced in this case, can effect be given to these registers of squares as contradicting or overriding the plans of the city adopted by the president, wherein, as we have seen, the squares in question were bounded by streets interposed between them and the channels of the river.
The second complaint on behalf of these appellants is of the insufficiency of the amount allowed them by way of compensation.
We have read the evidence on this subject contained in the record, and have been surprised by the discrepancy in the values put on these parcels of land by the respective witnesses,-a discrepancy so wide that we find it impossible to reconcile the testimony, or to reasonably compromise between the extremes. In such circumstances we think our proper course is to adopt the conclusions of the learned judge who disposed of this matter in the court below. Acquainted, as he presumably was, with the locality of the lands and with the character and experience of the numerous witnesses, his judgment would be much safer than any we could independently form. The fact that the larger number of those concerned have acquiesced in the valuation and accepted the award is not without significance. The claim of Mr. Beall that he should be allowed interest or rental value for his property which was taken possession of by the United States, in 1882, seems entitled to further consideration by the court below.
The amount awarded to the estate of William Easby was made payable in the decree of the court below to William Easby's heirs. The estate was represented in the appeal to this court by Rose L. Easby and Fanny B. Easby, styling themselves trustees of the estate of said William Easby, and by Wilhelmina M. Easby-Smith, who is described as one of the heirs at law and administratrix de bonis non cum testamento annexo of William Easby, deceased. These parties appear by the record to have taken a joint appeal, but they are represented by different counsel. It is now claimed by the counsel representing Rose L. Easby and Fanny B. Easby, alleged trustees of the estate, that the decree awarding payment to William Easby's heirs should be amended so as to make the award payable to said alleged trustees. It is said that they were the only parties to the record, representing said estate, at the time the said award was made, and apprehensions are expressed that if the award is distributed to the different heirs of William Easby injustice will be done the alleged trustees, because it will enable said heirs to receive their proportionate shares directly from the government without being compelled to share in the expenses of the suit. This controversy does not seem to have been dealt with in the court below, where it properly belongs, and to which, affirming the award in other respects, we shall remit the question.
The next claim is one made by the descendants of Robert Peter to parcels of land included in the government plan of reclamation, and situated near the Observatory Grounds.
In June, 1791, Robert Peter executed and delivered a conveyance of his lands to Beall and Gantt in trust that the federal city should be laid out upon them and other lands similarly conveyed by other proprietors.
Robert Peter was one of the signers of the agreement of March 13, 1791, hereinbefore mentioned, and the terms of his conveyance to Beall and Gantt were substantially similar to those used in the conveyances of David Burns and Notley Young. There, therefore, passed by this deed to the trustees his entire title to the mainland, and all his riparian rights appurtenant thereto.
It is now claimed that, under the terms of the agreement and of the conveyance, such streets, squares, and lots should be laid out as the president might direct, and conveyances be made of them to the United States, and the residue of said lots should be divided between the United States and Robert Peter, and the lots so divided to him, together with any part of said land which should not have been laid out in the city, should be conveyed to Robert Peter in fee by the said trustees; and it is further claimed that certain parts of said land were never laid out as part of the city, nor conveyed either to the United States or Robert Peter, and that the equitable title to such parts, with the riparian rights appurtenant thereto, is in his heirs, for which they are now entitled to compensation. It is not denied that, in pursuance of the agreement and conveyance, the city was laid out, and its streets, squares, lots, and boundaries defined, in the several maps or plans approved by the president, and adopted by the city authorities. Nor has any evidence been adduced that by any act or declaration of the president, or of any one in authority under him, was any portion of the lands conveyed by Peter and the other proprietors to Beall and Gantt, trustees, ever excluded from the city. Nor is it denied that there was division of lots between Peter and the commissioners in pursuance of the agreement and conveyance.
But reliance is placed upon the correspondence between Peter and the commissioners tending to show that lands with riparian privileges remained undivided.
In June, 1798, Nicholas King, in behalf of Mr. Peter, addressed a letter to the commissioners, representing that it was 'an object highly interesting to Mr. Peter to know the bounds, dimensions, and privileges of those parts of the city generally called 'water property,' and assigned to him on the division. * * * The square south of No. 12 has not yet been divided between said Peter and the commissioners. * * * The square No. 22, as at present laid off and divided with the commissioners, does not extend to the channel by several hundred feet. If another square be introduced to the south of it, that square will be covered to a small depth with water, and the proprietors thereof will want earth to wharf and fill it up with. It will perhaps be best, therefore, to redivide square No. 22 and attach the low ground to it.'
Replying on June 28, 1798, the commissioners said:
'When the commissioners have proceeded to divide a square with a city proprietor, whether water or other property, they have executed all the powers vested in them to act on the subject. It appertains to the several courts of the states and of the United States to determine upon the rights which such division may give. Any decision by us on the subject would be extrajudicial and nugatory. Of this, no doubt, Mr. Peter, if applied to, would have informed you. With respect to square No. 22, we do not conceive that it is entitled to any water privilege, as a street intervenes between it and the water; but, as there is some high ground between the Water street and the water, we have no objection to laying out a new square between Water street and the channel, and divide such square, when laid out, so as to make it as beneficial to Mr. Peter and the public as circumstances will admit.'
This suggestion of the commissioners, to lay out and divide a square south of Water street, was never acted on. It is plain that the commissioners would have had no right to disregard the action of the president in establishing Water street as the southern boundary of the city. It also appears from the letter of Mr. King that such a proposed square would have been under the waters of the Potomac, and therefore consisted of territory belonging to the United States, as successor to the sovereignty of Maryland, and not to them as grantees of Mr. Peter.
In November, 1798, Mr. Peter, with other persons, as appears in the record, appealed to the president to have corrections made in the plan of the city, and used the following language:
'We know your excellency will attend to the necessity of defining what water privilege or right of wharfage is attached to the lots on the Eastern Branch, the Potomac river, and Rock Creek; also all such streets as are to be left in wharfing from the shore to the channel of said waters, and the extent to which those wharves are to be carried; and what ground, so made and filled up, shall be considered as subject to occupancy by buildings.'
This memorial was referred by the president to the attorney general, Charles Lee, who, in an opinion dated January 7, 1799, advised against the application to make any departure from the plans of the city already approved by the president.
In May, 1800, Mr. Peter and the commissioners agreed upon a division of square south of square No. 12, by which four of the lots were given to Peter, one of which faced on Water street, and two others facing on Water street were assigned to the United States; and in a note attached to the map of square No. 22, signed in 1800 by Nicholas King, as attorney for R. Peter, it is stated that the commissioners conveyed to Robert Peter the lot No. 6, in square No. 22, in consideration of a balance due him by the public of square feet in the division of lots.
Since the year 1800 to the time of the institution of this suit no attempt to impeach this settlement, and no assertion of title to the land south of Water street, by the descendants of Robert Peter, appear to have been made.
The decree of the court below in respect to this claim is affirmed.
The next class of appellants consists of those who claim rights of property on the river front between the Long Bridge and the Arsenal. They all derive title under Notley Young, and the parcels of land they claim are all situated south of Water street, and fall within the limits of the government improvement.
In so far as the arguments advanced in support of these claims are based on the alleged abandonment of Water street in the Dermott plan, and on the legal consequences supposed to follow from the fact that the trustees nevel formally conveyed the streets or public reservations, they are disposed of by the conclusions already reached.
But it is further contended that, even if we conclude that Water street was designed to be the southern boundary of the city, and that the title to said street passed to the United States, yet the facts disclose such equities between the United States, on the one hand, and the private claimants, on the other, as to justify a decree in favor of these appellants. Those equities are said to arise out of grants made by the United States and the city authorities, from time to time, in respect to wharves and water fronts, under which the appellants and their predecessors acted, and out of the long lapse of time during which they have been in undisturbed possession.
In considering the facts relied on by the appellants, we must not lose sight of the conclusions already reached, namely, that Notley Young, by his agreement with the other proprietors and by his conveyance to the trustees, had parted with his entire title to the lands described and to the riparian rights appurtenant thereto; that all the lots subsequently conveyed to Notley Young were subject to the plans of the city establishing Water street, and did not reinvest him with his original riparian rights.
Hence these appellants, claiming under Notley Young, can only rely, in their contention now under consideration, on transactions that have taken place since the division between the commissioners and Notley Young, and these we shall now briefly examine.
Our attention is first directed to the twelfth section of the Maryland act of December 19, 1791 (Kilty's Laws Md. c. 45), in the following terms:
'That the commissioners aforesaid, for the time being, or any two of them, shall, from time to time, until congress shall exercise the jurisdiction and government within said territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and extent, they may judge durable, convenient and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the said waters without license as aforesaid; and if any wharf shall be built without such license or different therefrom, the same is hereby declared a common nuisance.'
Here we may pause to observe that the only power given to the commissioners was to grant licenses, from time to time, and until congress should assume and exercise its jurisdiction within the territory, and it was declared that any wharf built in the waters of the Potomac, without such license or in disregard of its provisions, was declared to be a common nuisance.
The licenses contemplated, therefore, were temporary, and liable to be withdrawn by congress on assuming jurisdiction. Such legislation certainly cannot be relied on as either conferring or recognizing rights to erect and maintain permanent wharves within the waters of the Potomac and the Eastern Branch.
On July 20, 1795, the commissioners published the following regulations respecting wharves:
'The board of commissioners, in virtue of the powers vested in them by the act of the Maryland legislature to license the building of wharves in the city of Washington, and to regulate the materials, the manner and the extent thereof, hereby make known the following regulations:
'That the proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the Eastern Branch as they think convenient and proper, not injuring or interrupting the channels or navigation of the said waters, leaving a space, wherever the general plan of streets in the city requires it, of equal breadth with those streets, which if made by an individual holding the adjacent property shall be subject to his separate occupation and use, until the public shall reimburse the expense of making such street; and when no street or streets intersect said wharf, to leave a space of sixty feet for a street at the termination of every three hundred feet of ground. The buildings on said wharves to be subject to the general regulations for buildings in the city of Washington as declared by the president. Wharves to be built of such materials as the proprietors may elect.'
It will be seen that, in publishing these regulations, the commissioners claimed no authority in themselves, but professed only to act in virtue of the act of Maryland, and must therefore be understood as having intended to grant temporary licenses, subject to the will of congress when it should take jurisdiction.
It appears in the record that Notley Young himself procured from the commissioners a license to build a wharf on the Potomac river, and that the wharf appears as an existing structure upon the map of 1797. The board of commissioners was abolished by an act of congress approved May 1, 1802 (1 Stat. 175), by the second section whereof it was enacted:
'That the affairs of the city of Washington, which have heretofore been under the care and superintendence of the said commissioners, shall hereafter be under the direction of a superintendent to be appointed by and under the control of the president of the United States; and the said superintendent is hereby invested with all the powers, and shall hereafter perform all the duties, which the said commissioners are now vested with, or are required to perform by or in virtue of any act of congress, or any act of the general assembly of Maryland, or any deed or deeds of trust from the original proprietors of the lots of said city, or in other manner whatsoever.'
This was followed by the act of May 3, 1802, entitled 'An act to incorporate the inhabitants of the city of Washington, in the District of Columbia.' 1 Stat. 195. In it was given to the corporation 'full power and authority to regulate the stationing, anchorage and mooring of vessels,' but no authority to license or regulate the building of wharves is given. Then came the act of February 24, 1804 (1 Stat. 254), wherein was given to the city councils power 'to preserve the navigation of the Potomac and Anacostia rivers adjoining the city; to erect, repair and regulate public wharves, and to deepen docks and basins.'
By the act of May 15, 1820 (3 Stat. 563), entitled 'An act to incorporate the inhabitants of the city of Washington, and to repeal all acts heretofore passed for that purpose,' the corporation was empowered 'to preserve the navigation of the Potomac and Anacostia rivers adjoining the city; to erect, repair and regulate public wharves; to regulate the manner of erecting and the rates of wharfage at private wharves; to regulate the stationing, anchorage and mooring of vessels.'
On July 29, 1819 (Burch's Dig. 126), the city council enacted:
'Section 1. That the owners of private wharves or canals and canal wharves be obliged to keep them so in repair as to prevent injury to the navigation.
'Sec. 2. That no wharf shall hereafter be built, within this corporation, without the plan being first submitted to the mayor, who, with a joint committee from the two boards of the city council, shall examine the same, and if it shall appeal to their satisfaction that no injury could result to the navigation from the erection of such wharf, then, and in that case, it shall be the duty of the mayor to issue a written permission for the accomplishment of the object, which permit shall express how near such wharf shall approach the channel.'
By acts of councils approved January 8, 1831, it was enacted:
'Section 1. That it shall not be lawful for any person or persons to build or erect any wharf or wharves within the limits of this corporation who shall not first submit the plan of such wharf or wharves to the mayor, who, with a joint committee from the two boards of the city council, shall examine the same; and if it shall appear to their satisfaction that no injury could result to the navigation f om the erection of such wharf or wharves, then, in that case, it shall be the duty of the mayor to issue a written permission for the accomplishment of the object, which permit shall express how near such wharf or wharves shall approach the channel and at what angle they shall extend from the street on which they are erected.'
The record discloses a continuous series of acts and joint resolutions of the city councils on the subject of improving the navigation of the Potomac river, the erection and repair of sea walls on the river, granting special permission to named persons to build wharves in front of such walls. The last we shall notice is the act of March 23, 1863, entitled 'An act authorizing the mayor to lease wharf sites on the Potomac river,' etc. By this act the mayor was authorized to lease for any term of years, not exceding 10, wharf sites in front of any sea wall theretofore built by the corporation, or in front of any sea wall that might thereafter be built in pursuance of any enactment for that purpose; and it was provided that at the expiration of 10 years, or sooner, the said sites, and all wharf improvements thereon, should revert to the corporation; and that if the occupants should fail to keep said wharves in good repair, and to comply with all the provisions of the act, the contract should cease, and the mayor should notify them to vacate the premises within 10 days. And this was followed by similar acts in 1865, 1867, 1870, and 1871, all asserting power by the corporation over the wharves on Water street.
We think it impossible to reconcile the succession of acts of congress and of the city councils with the theory that the wharves south of Water street were erected by individuals in the exercise of private rights of property in defined parcels of land to them belonging. The legislation clearly signifies that during the entire history of the city congress and the city authorities have claimed and exercised jurisdiction for public purposes over the territory occupied by these wharves, and that jurisdiction seems to have been recognized and submitted to by the appellants and their predecessors in many instances in which the evidence discloses the nature of the transactions.
It is earnestly urged by the learned counsel of the appellants that possession and enjoyment by successive occupants for so long a period warrant the presumption of a grant, and authorities are cited to show that such presumptive grant may arise as well from the crown or the state as from an individual. As between individuals, this doctrine is well settled and valuable; and it may be that, in respect to the ordinary public lands held by the government for the purposes of sale, occupation, and settlement, there might exist a possession so long, adverse, and exclusive as to justify a court of equity or a jury in presuming a grant. But where, as in the present case, the lands and waters concerned are owned by the government in trust for public purposes, and are withheld from sale by the land department, it seems more than doubtful whether an adverse possession, however long continued, would create a title. However, under the facts disclosed in this record, it is unnecessary to determine such questions; for, as we have seen, at no time have congress and the city authorities renounced or failed to exercise jurisdiction and control over the territory occupied by these wharves and docks.
An effort is made to distinguish the claim of Edward M. Willis, as alienee of A. I. Harvey, defendant, to land lying between Thirteen-and-a-Half street and Maryland avenue, and fronting on the Potomac, by the circumstance that Water street has never been actually constructed and opened as a thoroughfare in front of this land. But it is not perceived that the failure of the city heretofore to open Water street could create any title in Willis to the land and water lying south of the territory appropriated for that street. His occupancy, or that of his predecessors, of such l nd for wharfing or other purposes, may be presumed to have been with the consent of the city authorities, but could not, under the facts shown in this record, avail to raise the presumption of a grant.
Referring to a similar claim, this court said, in Potomac Steamboat Co. v. Upper Pot. S.C.o., 109 U.S. 692, 3 Sup. Ct. 458:
'Disputes undoubtedly arose, some quite early, not so much as to what rights belonged to 'water lots,' nor as to what properly constituted a 'water lot,' but, in regard to particular localities, whether that character attached to individual squares and lots. In part, at least, the uncertainty arose from the fact that the plan of the city, as exhibited on paper, did not accurately correspond at all points with the lines as surveyed and marked on the land. Complaints of that description, and of designed departures from the plan, seem to have been made. It is also true, we think, that mistakes arose, as perhaps in the very case of the lots on the north side of Water street, owing to the fact that the street existed only on paper, and for a long time remained an unexecuted project; property appearing to be riparian, because lying on the water's edge, which, when the street was actually made, had lost its river front. They were thought to be 'water lots,' because appearing to be so in fact, but were not so in law, because they were bounded by the street, and not by the river.' Barclay v. Howell's Lessee, 6 Pet. 505; City of Boston v. Lecraw, 17 How, 426.
There are also defendants who claim the right to hold certain wharf properties on the Potomac between the Long Bridge and the Arsenal, under licenses in writing issued by the chief of engineers for the time being, authorizing the erection of wharves. The power to grant such licenses is attributed to the chief of engineers as the successor of the office of commissioner of public buildings under the act of March. 1867. It was the opinion of the court below that, under the legislation that preceded the act of 1867, jurisdiction with respect to private wharves had been conferred upon the authorities of the city, and that hence the chief engineer was without any lawful authority to issue such licenses. In so holding the court below followed the decision of the supreme court of the District in the case of District of Columbia v. Johnson, 3 Mackey, 110.
We see no reason to doubt the soundness of this conclusion, though, for the reasons already given, even if the power to grant such licenses had belonged to the chief of engineers, they would not have vested any rights in fee in the land and water south of Water street in these appellants.
The contention, on behalf of the Washington Steamboat Company, as successor to the title of the Potomac Ferry Company by a purchase on June 1, 1881, that the act of congress of July 1, 1864, creating the latter company, operated as a release of the title of the government to such land as that company might acquire for its proper purposes, we cannot accept. The legal purport of that enactment was, as we interpret it, to authorize the ferry company to purchase and hold such real estate as should be necessary to carry its chartered powers into effect, but was not intended as a grant of land on the part of congress, or as a legislative admission of the title of private parties. The power to purchase land thereby conferred had room to operate on land north of Water street and on land situated in the state of Virginia.
While, however, our conclusion is that no riparian rights in the waters of the Potomac river belong to the owners of lots lying north of Water street, and that no presumption of grants in fee can arise, in these cases, from actual occupation of lands and water south of that street, we do not understand that it is the intention of congress, in exercising its jurisdiction over the territory in question, and in directing the institution of these proceedings, to take for public use, without compensation, the private property of individuals situated within the lines of the governmen improvement, even where such property may lie south of Water street. Those who, relying, some of them, on express, and others on implied, licenses from the city authorities, have erected and maintained expensive wharves and warehouses for the accommodation of the public, are not to be treated, as we read the will of congress, as mere trespassers.
That such is not the intention of congress we infer, not merely from the fact that, by the act of 1886, the inquiry was submitted to a court of equity and not to a court of law, but from the express language of the act. Thus, by the first section, it is made 'the duty of the attorney general of the United States to institute, as soon as may be, in the supreme court of the District of Columbia, a suit against all persons and corporations who may have or pretend to have any right, title, claim or interest in any part of the land or water in the District of Columbia within the limits of the city of Washington, or exterior to said limits and in front thereof toward the channel of the Potomac river, and composing any part of the land or water affected by the improvements of the Potomac river or its flats in charge of the secretary of war, for the purpose of establishing and making clear the right of the United States thereto.' The second section provides 'that the suit mentioned in the preceding section shall be in the nature of a bill in equity, and there shall be made parties defendant thereto all persons and corporations who may claim to have any such right, title or interest.'
The third section provides that the cause 'shall proceed with all practicable expedition to a final determination by the said court of all rights drawn in question therein; and that the said court shall have full power and jurisdiction by its decree to determine every question of right, title, interest or claim arising in the premises, and to vacate, annul, set aside or confirm any claim of any character arising or set forth in the premises.'
The fourth section provides that if, on the final hearing of said cause, the said court 'shall be of opinion that there exists any right, title or interest in the land or water in this act mentioned in any person or corporation adverse to the complete and paramount right of the United States, the said court shall forthwith and in a summary way proceed to ascertain the value of any such right, title, interest or claim, exclusive of the value of any improvement to the property covered by such right, title or interest made by or under the authority of the United States, and report thereof shall be made to congress.'
It may be well here to mention that it is disclosed in the record that the wharves owned by the Potomac Steamboat Company opposite square 472, and other wharves on the Potomac, were rented by the government during the Civil War, and that rent was paid for them monthly by the government during a period of several years. It is not to be supposed that the United States are now estopped by such conduct, but the fact is worthy of mention, as going to show that the government did not regard those who owned the wharves, and to whom the rent was paid, as trespassers, or that the structures were an obstruction to navigation and unlawfully there.
Such recognition by the government of a right on the part of the wharf owners to receive rent, and the long period in which congress has permitted private parties to expend money in the erection and repair of wharves and warehouses for the accommodation of the public, may be well supposed to have influenced congress in providing for an equitable appraisement of the value of interests or claims thus arising.
In the twelfth section of the bill of complaint the United States 'disclaim in this suit seeking to establish its title to any of the wharves included in the area described in paragraph 3 of this bill, and claim title only to the land and water upon and in which said wharves are built, leaving the question of the ownership of the wharve proper, where that is a matter of dispute, to be decided in any other appropriate proceeding.'
Apparently acquiescing in this allegation or disclaimer, the appellants put in no evidence as to the value of their improvements, and sought no finding on that subject in the court below, but stood, both there and in this court, on their claims of absolute title.
An examination, however, of the language of the act of 1886, hereinbefore quoted, discloses that it was the plain purpose of congress that the court should make 'a final determination of all rights drawn in question,' and should 'in a summary way proceed to ascertain the value of any such right, title, interest, or claim.'
We think it was not competent for the counsel of the respective parties to disregard this purpose of congress and to withhold a part of the controversy from the action of the court.
It is not disclosed in this record whether it is the design of the government, on taking possession of the wharves and buildings belonging to the appellants, to continue them in the use of the public or to supersede them by other improvements. Whatever may be the course pursued in that respect, it should not deprive the appellants of the right conferred upon them by the act of congress to have the value of their respective rights, titles, interests, or claims ascertained and awarded them.
As to the method to be pursued in valuing property of so peculiar a character, the cases of Monongahela Nav. Co. v. U.S., 148 U.S. 312, 13 Sup. Ct. 622, and Hetzel v. Railroad Co., 169 U.S. 26, 18 Sup. Ct. 255, may be usefully referred to.
While, therefore, we affirm the decree of the court below as to the claims of the Marshall heirs, and as to the Kidwell patent, and as to the several claims to riparian rights as appurtenant to lots bounded on the south by Water street, we remand the case to the court below for further proceedings in accordance with this opinion; and it is so ordered.
Mr. Justice GRAY and Mr. Justice McKENNA were not present at the argument, and took no part in the decision.
^1 We the Subscribers holding or entitled to Lots in Carrollsburgh agree with each other and with the president of the United States that the lots and land we hold or are entitled to in Carrollsure shall be subject to be laid out at the pleasure of the president as part of the Federal City and that we will receive one half the Quantity of our respective Lots as near their present Situation as may agree with the new plan and where we may be entitled now to only one Lot or otherwise not entitled on the new plan to one entire lot or do not agree with the president, Commissioners or other person or persons acting on the part of the public on an adjustment of our interest we agree that there shall be a sale of the Lots in which we may be interested respectively and the produce thereof in money or Securities shall be equally divided one half as a Donation for the Use of the United States under he Act of Congress, the other half to ourselves respectively. And we engage to make Conveyances of our respective Lots and lands af'd to Trustees or otherwise whereby to relinquish our rights to the said Lots & Lands as the president or such commrs, or persons acting as af'd shall direct to secure to the United States the Donation intended by this Agreement.
^2 Extracts from act of general assembly of Maryland, dated December 19, 1791:
After reciting the proclamation of President Washington, of date March 20, 1791, declaring the bounds of the territory, since called the Territory of Columbia, it was further recited in the first section as follows:
'And whereas, Notley Young, Daniel Carroll of Duddington, and many others, proprietors of the greater part of the land hereinafter mentioned to have been laid out in a city, came into an agreement, and have conveyed
their lands in trust to Thomas Beall, son of George, and John Mackall Gantt, whereby they have subjected their lands to be laid out as a city, given up part to the United States, and subjected other parts to be sold to raise money as a donation to be employed according to the act of congress for establishing the temporary and permanent seat of the government of the United States, under and upon the terms and conditions contained in each of the said deeds; and many of the proprietors of lots in Carrollsburgh and Hamburgh have also come into an agreement, subjecting their lots to be laid out anew, giving up one-half of the quantity thereof to be sold, and the money thence arising to be applied as a donation as aforesaid, and they to be reinstated in one-half of the quantity of their lots in the new location, or otherwise compensated in land in a different situation within the city, by agreement between the commissioners and them, and in case of disagreement, that then a just and full compensation shall be made in money; yet some of the proprietors of lots in Carrollsburgh and Hamburgh, as well as some of the proprietors of other lands, have not, from imbecility and other causes, come into any agreement concerning their lands within the limits hereinafter mentioned, but a very great proportion of the landholders having agreed on the same terms, the president of the United States directed a city to be laid out. * * *
'Sec. 3. And be it enacted, that all the lands belonging to minors, persons absent out of the state, married women, or persons non compos mentis, or lands the property of this state, within the limits of Carrollsburgh and Hamburgh, shall be and are hereby subjected to the terms and conditions hereinbefore recited, as to the lots where the proprietors thereof have agreed concerning the same; and all the other lands, belonging as aforesaid, within the limits of the said city of Washington, shall be, and are hereby subjected to the same terms and conditions as the said Notley Young, Daniel Carroll of Duddington, and others, have, by their said agreements and deeds, subjected their lands to, and where no conveyances have been made, the legal estate and trust are hereby invested in the said Thomas Beall, son of George, and John Mackall Gantt, in the same manner as if each proprietor had been competent to make, and had made, a legal conveyance of his or her land, according to the form of those already mentioned, with proper acknowledgments of the execution thereof, and where necessary, of release of dower.'
The section then authorized the commissioners, after due notice by advertisement, to allot to the owners one-half of the lots owned by infants, married women, insane persons, or owners absent out of the city. It was then further provided:
'And, as to the other lands within the said city, the commissioners aforesaid, or any two of them, shall make such allotment and assignment,
within the lands belonging to the same persons, in alternate lots, determining by lot or ballot whether the party shall begin with the lowest number: provided, that in the cases of coverture and infancy, if the husband, guardian or next friend will agree with the commissioners, or any two of them, then an effectual division may be made by consent; and, in case of contrary claims, if the claimants will not jointly agree, the commissioners may proceed as if the proprietor was absent; and all persons to whom allotments and assignments of lands shall be made by the commissioners, or any two of them, on consent and agreement, or pursuant to this act without consent, shall hold the same in their former estate and interest, and in lieu of their former quantity, and subject in every respect to all such limitations, conditions and encumbrances as their former estate and interest, and in lieu of their former quantity, and subject in every respect to all such limitations, conditions and encumbrances as their former estates and interests were subject to, and as if the same had been actually recoveyed, pursuant to the said deed in trust.'
'Sec. 12. And be it enacted, that the commissioners aforesaid for the time being, or any two of them, shall from time to time, until congress shall exercise the jurisdiction and government within the said territory, have power to license the building of wharves in the waters of Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and of the extent they may judge durable, convenient and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the said waters without license as aforesaid; and if any wharf shall be built without such license or different therefrom, the same is hereby declared a common nuisance; * * * they may also, from time to time, make regulations for landing and laying materials for building the said city, for disposing and laying earth which may be dug out of the wells, cellars and foundations, and for ascertaining the thickness of the walls of houses.'
^3 Sec. 1. Be it enacted by the general assembly of Maryland that the certificates granted, or which may be granted, by the said commissioners, or any two of them, to purchasers of lots in the said city, with acknowledgment of the payment of the whole purchase money, and interest, if any shall have arisen thereon, and recorded agreeably to the directions of the act concerning the territory of Columbia and the city of Washington, shall be sufficient and effectual, to vest the legal estate in the purchasers, their heirs and assigns, according to the import of such certificates, without any deed or formal conveyance. * * *
Sec. 3. And be it enacted that the commissioners aforesaid, or any two of them, may appoint a certain day for the allotment and assignment of one-half of the quantity of each lot of ground in Carrollsburgh and Hamburg, not before that time divided or assigned, pursuant to the said act concerning the territory of Columbia and the city of Washington, and on notice thereof in the Annapolis, some one of the Baltimore, the Eastern, and Georgetown newspapers, for at least three weeks, the same commissioners may proceed to the allotment a d assignment of ground within the said city on the day appointed for that purpose, and therein proceed, at convenient times, till the whole be finished, as if the proprietors of such lots actually resided out of the state; provided that, if the proprietor of any such lot shall object, in person, or by writing delivered to the commissioners, against their so proceeding as to his lot, before they shall have made an assignment of ground for the same, then they shall forbear as to such lot, and may proceed according to the before-mentioned act.
^4 Building Regulation No. 4.
(Proceedings of Commissioners, p. 408.)
City of Washington, July 20, 1795.
The board of commissioners, in virtue of the powers vested in them by the act of the Maryland legislature to license the building of wharves in the city of Washington, and to regulate the materials, the manner, and the extent thereof, hereby make known to those interested the following regulations:
That all the proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the Eastern Branch as they think convenient and proper, not injuring or interrupting the channels or navigation of the said waters, leaving a space wherever the general plan of the street in the city requires it, of equal breadth with those streets, which, if made by an individual holding the adjacent property, shall be subject to his separate occupation and use until the public shall reimburse the expense of making such street; and, where no street or streets intersect said wharf, to leave a space of sixty feet for a street at the termination of every three hundred feet of made ground; the buildings on said wharves or made ground to be subject to the general regulations for buildings in the city of Washington, as declared by the president, wharves to be built of such material as the proprietors may elect.
By order of the commissioners.
[Signed] T. Johnson, Jr., Sec'y.
^5 Mayor's Office,
Washington, May 26, 1840.
William Easby, of the city of Washington, having made application for permission to erect a wharf in front of square No. 12, and extend a wharf in front of square south of square No. 12, and having submitted to me a plan of said wharves, which plan has been examined by a joint committee of the board of aldermen and board of common council, who have certified that 'no injury will result to the navigation of the river from the erection and extension of the wharves upon said plan.'
Permission is therefore granted to the said William Easby to erect a solid wharf the whole extent of square No. 12, in front thereof, and to extend a wharf in front of square south of square No. 12, thirty feet, fifteen feet of which to be solid, as laid down upon said plan, which exhibits the situation of the wharves aforesaid as proposed to be built by his letter of 3rd of February, 1840.
Which permission is granted on the terms and subject to all the conditions prescribed by the act entitled 'An act to preserve the navigation of the Potomac and Anacostia rivers, and to regulate the anchoring and mooring vessels therein,' approved January 8, 1831, and of any act or joint resolution that may hereafter be passed relating to wharves in the city of Washington.