# Morris v. United States/Dissent White

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United States Supreme Court
174 U.S. 196
Morris v. United States
Mr. Justice WHITE (dissenting).
The court holds that the owners of lots fronting on the Potomac river who are impleaded in this record have no riparian rights appurtenant or attached to such lots, and that they never possessed rights of that description.
This conclusion rests primarily upon a finding of fact; that is, that it was the intention of the founders of the city that a street should bind the city on the entire water front, which street should be the exclusive property of the public, thus cutting off all the lot owners facing the river from connection therewith. Applying to this premise of fact the legal principle that, where property is separated from the water by land belonging to some one else, no riparian rights attach to the land of the former, it is held that the lot owners before the court have no riparian privileges which the government of the United States is in any way bound to respect.
Lest the precise theory may not be accurately conveyed, the clear statement thereof contained in the opinion is quoted, viz.:
'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.'
Again, at the end of the review of the evidence following the above extract, the court states as follows:
'The conclusion is warranted that, from the first conception of the federal city, the establishment of a public street bounding the city on 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 o 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.'
From the legal proposition that, where property is separated from a stream by land belonging to another person, such property is not abutting property, and hence not entitled to riparian rights, I do not dissent. I cannot, however, bring my mind to the conclusion that it was ever contemplated in the foundation of the city of Washington that there should be established a street on the water front so as to cut off the riparian rights of the lot holders. On the contrary, my examination of the record has forced me to the conclusion that, from the legislation by which the city of Washington was founded, from the nature of the contracts made by the owners of the land upon which the city is situated, and from the subsequent statutory provisions relating to the foundation of the city, and their practical execution, it was understood and agreed that riparian rights should attach to the lots fronting on the river, and that any proposed street actually projected, or which it was contemplated might ultimately be established, was designed to be subordinate to the riparian rights of the lot holders, and was in no wise intended injuriously to impair or affect the same. It also, in my opinion, clearly appears that this result was understood by the lot owners, was contemplated by the founders, was approved by legislation, and was sanctioned by a long course of administrative dealing ripening into possession in favor of the lot holders, to such a degree that to now hold that they are not entitled to riparian rights would, as I understand the record, amount to a denial of obvious rights of property. Indeed, to disregard the riparian rights of the lot owners as shown by the record, it seems to me, will be equivalent to confiscation, and that in reason it cannot be done without imputing bad faith to the illustrious men who so nobly conceived and so admirably executed the foundation of the federal city. Of course, I say this with the diffidence begotten from the fact that the court takes a different view of the record, which therefore admonishes me that, however firm may be my convictions on the subject, there is some reason which has escaped my apprehension.
Even if it be conceded that the record established that the intention of the founders was to bind the city towards the water by a street which would separate the land of the lot holders from the river, and that the fee of such street was to be in the public, such concession would not be conclusive in this case; for the record, as I read it, establishes such conclusive equities arising from the conduct of the government in all its departments, in its dealings with the lot holders and the grantees of the government, and those holding under them, as to conclusively estop the government from now asserting any real or supposed technical rule of law so as to cut off rights of private property which the government itself has solemnly avouched, upon the faith of which persons have dealt with it, and from which dealings the nation has reaped an abundant reward.
Before approaching the facts, I eliminate propositions which seem irrelevant, and the consideration of which may serve to confuse the issue. Let it be at once conceded, arguendo, as found by the court, that whether riparian rights exist does not depend upon deciding whether one or the other of the particular maps or plans of the city is to be controlling; for, in my view of the record, the riparian rights of the lot holders will be clearly shown to exist, whatever plan of the city may be considered. For the purposes, then, of this dissent, it is not at all questioned that the several plans of the city, referred to in the opinion of the court, are to be treated each as progressive steps in the evolution of the original conception of the city, and therefore are each entitled to be considered, without causing one to abrogate the efficacy of the other, except where there is an essential conflict. It is also deemed unnecessary to refer to the events which led up to the selection of the sites of other cities (for instance, Philadelphia, New Orleans, Pittsburgh, and Cincinnati, decisions respecting which have been referred to), because, in my judgment, the existence of the riparian rights in the city of Washington depends upon the proceedings and legislation with reference to the city of Washington, and not to wholly dissimilar proceedings in relation to the foundation of other cities.
I come, then, to an examination of the record as to the foundation of the city of Washington. In doing so,-in order to avoid repetition, and subserve, as far as I can, clearness of statement,-the subject is divided into three distinct epochs: First, that involving the conception of the city, and the steps preparatory to its foundation, with the cessions by Maryland and Virginia of sovereignty over the land which was to form the federal district, down to and including the 19th of December, 1791, when the general assembly of Maryland passed an act ratifying the previous cession and conferring certain powers upon the commissioners, etc.; second, the formative period of the city, in which the initial steps taken in the period just stated were in a large measure carried into execution, and this embraces the period from the Maryland act of 1791 down to and including the actual transfer and establishment of the seat of government in the city of Washington; and, third, the events subsequent to the last stated period.
1. Events connected with the conception of the city, and the steps preparatory to its foundation, down to and including the statute of Maryland of December 19, 1791.
The cessions by Maryland and Virginia, in 1788 and 1789, of the territory intended for the seat of government of the United States, need not be recapitulated, as they are fully stated in the opinion of the court. The acceptance by congress, in 1790, of the cessions just mentioned, is also stated fully in the opinion of the court. It is important, however, in considering this, to bear in mind a few salient facts: First, that, while accepting the cessions, it was provided that the seat of the Federal government should not be removed to the proposed capital until more than 10 years thereafter,-that is, the first Monday of December in the year 1800; second, that, 'until the time fixed for the removal thereto,' and until congress should by law otherwise provide, the operation of the laws of the state within the district should not be affected by the acceptance by congress; third, while the act empowered the president to appoint three commissioners, who should, under his direction, define and limit the district, and conferred upon the commissioners authority to purchase or accept such quantity of land as the president might deem proper, and to provide suitable buildings for the occupation of congress and of the president, and for the public offices of the government, no appropriation was contained in the act for these essential purposes. On the contrary, the only means provided by the act was the authority conferred to accept grants of money or land for the purposes designated in the act.
The controversy which preceded the selection by congress of the district ceded by Virginia and Maryland, in order to establish therein the capital of the nation, is portrayed in the opinion of the court, and, indeed, if it were not, it is mirrored in the provisions of the act of acceptance already referred to; for, weighing those provisions, the conclusion cannot be escaped that an acceptance by congress which left the territory ceded under the control of the ceding states for a period of 10 years, and made no provision whatever, by appropriation of money, for the establishment of the city, affixed to the act of acceptance a provisional character depending upon the successful accomplishment by Washington of the plan for the oundation of the capital which he had so fervently advocated,-in other words, that the accepting act devolved upon President Washington the arduous duty of bringing into being, within 10 years, the establishment of the capital, and of securing the means for constructing therein all the necessary buildings for the use of the government, without the appropriation of one dollar of the public money. To the great responsibility thus imposed upon him, Washington at once addressed himself with that intelligence and foresight which characterized his every act. On January 17, 1791, he appointed as the commissioners to execute the provisions of the act of congress, Thomas Johnson, Daniel Carroll, and David Stuart. The first two were owners of land within the limits of the proposed city. Mr. Johnson, after his designation as a commissioner, was, in 1791, appointed an associate justice of this court; and, although he qualified as such, he still continued to serve as commissioner during and until after he had resigned his judicial office.
By the spring of 1791 the president had finally determined upon the precise situation of the proposed capital, locating it on the banks of the Potomac, within the ceded district, at the point where the city of Washington is now situated. The exact position of the land where the city was to be established is shown by the map annexed to the opinion of the court.
A casual examination of this map discloses that the proposed city began on the banks of the Potomac, at Rock Creek, separating it at that point from Georgetown, following along the course of the river to where the Eastern Branch emptied into the Potomac, and extending some distance along the banks of the Eastern Branch. It also shows that all the land fronting on the water within the designated limits was farming land, except at two points,-the one, where the town of Hamburgh (sometimes called 'Funkstown') was located, not far from Georgetown, and the other, where the town of Carrollsburgh was situated, on the Eastern Branch. All the farming land fronting on the river and eastern Branch was owned by Robert Peter, David Burns, Notley Young, Daniel Carroll, William Prout, Abraham Young, George Walker, and William Young.
It is conceded that, at the time the city was located on the territory thus selected, the owners of all the farming land fronting on the water were entitled, under the law of Maryland, to riparian privileges, as appurtenant to their ownership, and that the same right belonged to the owners of lots fronting on the water in the two towns of Hamburgh and Carrollsburgh. It is, moreover, indisputably established that, at the time the selection was made, some of the owners, by wharves or otherwise, were actually enjoying the riparian rights appurtenant to their property. Indeed, an inspection of the map already annexed makes it clear that the lots in Hamburgh and Carrollsburgh ran down to the water's edge, and in some instances extended into the water.
A few months after the appointment of the commissioners, in March, 1791, in order to aid in the establishment of the city, and to procure the funds wherewith to execute the duties imposed by the act of congress, through the influence of President Washington most of the larger proprietor of the land embraced within the limits of the city executed an agreement, binding themselves to convey their lands, for the purposes of the federal city, to such persons as the president might appoint,-expressly, however, excepting from the operation of the agreement any lots which the subscribers might own in the towns of Hamburgh and Carrollsburgh. The main purposes of this contract were concisely expressed by President Washington in a letter to Mr. Jefferson, then secretary of state, of date March 31, 1791, inclosing the proclamation fixing the boundary lines of the federal district. He said:
'The land is ceded to the public on condition that, when the whole shall be surveyed and laid off as a city (which Major L'Enfa t is now directed to do), the present proprietors shall retain every other lot,-and for such part of the land as may be taken for public use, for squares, walks, etc., they shall be allowed at the rate of twenty-five pounds per acre,-the public having the right to reserve such parts of the wood on the land as may be thought necessary to be preserved for ornament. The landholders to have the use and profits of all the grounds until the city is laid off into lots, and sale is made of those lots, which, by this agreement, become public property. Nothing is to be allowed for the ground which may be occupied as streets or alleys.'
Subsequently, in order to carry out the agreement, the lot owners conveyed their lands to trustees. The draft of the conveyances, which were executed on June 28, 1791, there is every reason to believe was prepared by Commissioner Johnson.
Several of the conveyances are set out in full in the opinion of the court. Suffice it to say that the land was conveyed to the trustees by described boundaries, with the appurtenances. Besides embodying the provisions contained in the previous agreement, the deeds also contained other provisions material to be noticed. Thus, in effect, the portion of the land conveyed which was to inure to the benefit of the public was divided into two classes: First, the public reservations, streets, and alleys, not intended to be disposed of for purposes of profit, but retained for the public use; second, the share of the public in the building lots (one-half) intended as a donation. The land embraced in the first class was to be conveyed by the president to the commissioners for the time being appointed under the act of congress of 1790, 'for the use of the United States forever.' The lands included in the second class were stipulated to be sold, and the proceeds applied as a grant of money, etc., but the trustees were to retain the title, and themselves execute deeds to purchasers of the public lots.
As already stated, in the preliminary agreements, and the conveyances to trustees executed by the larger proprietors, their lots situated in Carrollsburgh and Hamburgh were excepted. On February 21, 1791, a portion of the proprietors of lots in Hamburgh executed an agreement binding themselves to sell their lots in that town to the president of the United States or to such commissioners as he might appoint. None of these lots would seem to have been situated on or near the river, and the agreement may be dismissed from view. On March 30, 1791, an agreement was executed by certain lot owners in Carrollsburgh, Commissioners Johnson and Carroll being among the number. It was stipulated that the lots of the subscribers should be subject to be laid out as part of the federal city, each subscriber donated one-half of his lots, and stipulated that his half should be assigned to him in like situation as before; it being moreover provided that, in the event of a disagreement between the owners and the president as to the allotments made to them, a sale should be made of the lots, and the proceeds be equally divided. A copy of the agreement is set out in the margin.
The contracts just referred to embraced all the territory included within the proposed city, except certain lots in Carrollsburgh and Hamburgh, the owners of which had entered into no contract, and also certain lots in these towns owned by nonresidents and others who were incapable, from infancy, coverture, or imbecility, to consent to a sale or division of their lots.
I submit that the contracts in question clearly point out the difference between a city laid out as was the city of Washington and a city laid out as the result of a plat made by a proprietor, in which lots are located on a street fronting on the river, and intervening between the lots and the water. The president and the commissioners, in dealing with the land embraced within the proposed federal city, were not acting as owners in their own right, but were acting under the terms and according to the covenants contained in the contracts between the parties. What was to be given by the proprietors was plainly specified, and what was to be retained by them was also clearly stated. Riparian rights having been vested in the owners at the time the contract was made, it cannot, it seems to me, with fairness be said that the former proprietors were to receive, as an equal division, one-half of their lots, if in making that division the government was to strip all the lots, as well those assigned to the public as those retained by the proprietors, of the riparian privileges originally appurtenant to the land. The intention of the contracting parties is plainly shown by the provisions for the transfer of the property in Carrollsburgh, where the owners stipulated that they should retain one-half of the lots 'in like situation,' and where the plan to which reference has been made shows that many of the lots abutted on the bank of the water in the Eastern Branch.
But, if there be doubt as to the agreements from which it could be implied that the lot owners intended to give, not only one-half of their lots, but all the riparian rights appurtenant to the lots which they were to retain, the official conduct of the commissioners, the action of President Washington, and of all concerned, including the former proprietors, demonstrates that the understanding of everybody concerned in the transaction was that the half of the lots which were to remain to the lot owners should preserve their riparian privileges, and that they should be continued to be exercised, even although it was proposed, on a plan of the city, that there should be a street on the entire river front. And it seems to me it equally conclusively appears that it was plainly understood that the lots which were donated to the nation, and which were to be sold, for the purpose of raising money to erect the necessary buildings for the establishment of the government, should, so far as those lots fronted on the water, have attached to them the riparian rights which were originally appurtenant; and the fact that they had such original rights formed the basis upon which it was hoped that as to these lots a higher price would be obtained, because of the existence of the riparian rights which were intended to be conveyed, and, as will be shown, were actually conveyed, along with the water lots which the government sold.
It cannot be, in reason, successfully denied that the construction of the agreements between the parties contemporaneously made by all concerned, and followed by long years of official action and practical execution, furnishes the safest guide to interpret the contracts, if there be doubt or ambiguity in them.
In March, 1791, President Washington intrusted the prepa ation of a plan of the proposed city to Major L'Enfant. On April 4, 1791, that officer requested Secretary of State Jefferson to furnish him with plans of leading cities, and maps of the principal 'seaports or dock yards and arsenals,' and in a letter to President Washington, dated April 10, 1791, Mr. Jefferson alluded to the fact that he had sent by post to L'Enfant the plans of a number of continental European cities. Mr. Jefferson mentioned that he had himself procured these plans when he was visiting the named cities. The serious import of the plans thus sent, and the significance resulting from them, I shall hereafter comment upon.
Among the proprietors who joined in the agreement, and had actually conveyed his land to the trustees, was Robert Peter. His property was situated abutting on Rock Creek, and on the river from the mouth of Rock creek to the Hamburgh line. The record shows the following letter to the commissioners from President Washington:
'Philadelphia, July 24, 1791.
'I have received from Mr. Peter the inclosed letter proposing the erection of wharves at the new city, between Rock Creek and Hamburgh. My answer to him is that the proposition is worthy of consideration, and that the transaction of whatever may concern the public at that place in future being now turned over to you, I have inclosed the letter to you to do therein whatever you may think best, referring him at the same time to you for an answer.
'The consequences of such wharves as are suggested by Mr. Peter will, no doubt, claim your first attention; next, if they are deemed a desirable undertaking, the means by which the work can be effected with certainty and dispatch; and, lastly, the true and equitable proportion which ought to be paid by Mr. Peter towards the erection of them.'
The pertinent portions of the letter of Mr. Peter which President Washington transmitted are as follows:
'Georgetown, July 20, 1791.
'Sir: Colonel L'Enfant, I understand, has expressed a wish that I should make propositions to join the public in the expense of erecting wharves to extend from the mouth of Rock Creek to the point above Hamburgh, called 'Cedar Point,' being about three thousand feet. * * * That the wood should be furnished by me on the same terms that it could be had from others, and that the whole expense should be divided between the public and me in proportion to the property held by each on the water. The streets I consider as belonging to the public, and onehalf the lots, so that I suppose somewhere about one-third of the expense would be mine, and about two-thirds the public's.'
On August 28, 1791, Mr. Jefferson wrotefrom Philadelphia to the commissioners, acknowledging the receipt of a letter from them to the president, and adding: 'Major L'Enfant having also arrived here, and laid the plan of the federal city before the president, he (the president) was pleased to desire a conference of certain persons in his presence on these several subjects.'
Further along in his letter, Mr. Jefferson stated that Mr. Madison and himself 'will be in George Town on the evening of the 7th or morning of the 8th of next month, in time to attend any meeting of the commissioners on that day.'
In accordance with this suggestion, on September 8, 1791, the records show a meeting of the commissioners, and it is recited that 'the Hon. Thomas Jefferson, secretary of state, and the Hon. James Madison, attended the commissioners in conference.'
It is further recited: 'The following queries were presented by the secretary of state to the commissioners, and the answers thereto, with the resolutions following, were given and adopted: * * * Whether ought the building of a bridge over the Eastern branch to be attempted, canal set about, and Mr. Peter's proposition with respect to wharves gone into now, or postponed until our funds are better ascertained and become productive.'
In the margin is this notation: 'Must wait for money.'
The foregoing letter of Mr. Peter t President Washington clearly conveyed that his (Peter's) construction of the deed of conveyance which he made to the trustees was that the lots to be assigned to him along the river should preserve their riparian rights, since he proposed, as such owner, to exercise his riparian rights by building wharves, under a joint agreement with the commissioners, by which the work should be done between the commissioners and himself as joint proprietors, he of his lots, and they of their share of the building lots, and as owners of the intersecting streets and reservations. That such, also, was the view of President Washington, necessarily follows from the fact that he transmitted Peter's letter to the commissioners with what amounted to an express approval of Peter's construction of the contract, cautioning the commissioners only to be circumspect as to the consequences of constructing the wharves, and the proper equitable proportion of the cost of construction between the respective parties,-this is, Peter, on the one hand, in the exercise of his riparian rights in front of his lots; and the public, on the other, in the exercise of its riparian rights in front of its own lots and the public land. It is worthy of note that the letter of Peter states that he wrote the president under the inspiration and at the suggestion of Major L'Enfant. If it be true that L'Enfant, who was then engaged in making the plan under Washington's orders, had conceived the project of cutting off all the riparian rights of the lots fronting on the river by a proposed street, how can it be conceived, in consonance with honesty or fair dealing, that he would suggest to Peter the making of a proposition absolutely inconsistent with the very plan which he was then supposed to be carrying out? How can it be thought that, if President Washington entertained the idea that the engineer employed by him and such an intention, he could consistently have favorably indorsed the proposition which would destroy the very plan which it now is decided was then adopted and in process of actual execution? The scrupulous honor, the marvelous accuracy of detail and precision of execution as to everything which he supervised or undertook, which were the most remarkable characteristics of President Washington, Exclude the possibility of any other construction being placed upon his acts with reference to Peter's letter than that which I have thus given. But the reasoning is yet more conclusive. Mr. Jefferson's letter shows that, before the meeting of the commissioners was held where Peter's letter was acted upon, the plan of Major L'Enfant had been laid before the president and by him transmitted to Mr. Jefferson. With this plan in his possession, do the proceedings at the meeting of the commissioners, at which Mr. Jefferson and Mr. Madison were present in conference with the commissioners, disclose the slightest repudiation by them or the commissioners of the construction put by Peter upon the contract? Emphatically, no; for the sole reason ascribed for not entering into an arrangement with Peter is the minute entry, 'Must wait for money.' At the time this meeting of the commissioners with Mr. Jefferson and Mr. Madison was held, advertisement had been made of an intended sale of some lots at public auction in the following October. In a letter of Andrew Ellicott, a surveyor who had been assisting L'Enfant, which letter was addressed to the commissioners under date of September 9, 1791, he offered suggestions with reference to the contemplated sale of lots, remarking that three things appeared necessary to be attended to:
'First, those situations which will be considerably increased in value when the public improvements are made; secondly, those situations which have an immediate value from other considerations; and, thirdly, those situations whose real value must depend upon the increase and population of the city.'
With respect to the second of these considerations, he further stated as follows:
'Secondly, it is not probable that the public improvements will considerably affect either the value of the lots from Geo. Town to Funks Town; or generally on the Eastern Branch; the proximity of the first to a trading town and good navigation, and the second, lying on one of the best harbours in the country, must have an immediate value, and are therefore the most proper plans to confine the first sales to.'
On the same day, also, L'Enfant was instructed by the commissioners that the federal district should be called the 'Territory of Columbia,' and that the federal city should be named the 'City of Washington,' and that the title of the map should be 'A Map of the City of Washington in the Territory of Columbia.'
How can it be that Ellicott, the surveyor, engaged with Major L'Enfant in laying off the plan of the city, would have suggested that the lots fronting on the water would obtain the best price because of an advantageous situation, if it had been supposed that those lots should be, by the effect of the plan of the city, stripped of their riparian rights, especially when the Peter letter is borne in mind, and the construction of the contracts which arise therefrom is taken into consideration.
On October 17, 1791, a first partial division of squares or parts of squares was made with one or more of the former proprietors; and on the same day, and on the two days following, a small number of lots were sold. At this sale, plats of that portion of the city in which the lots offered for sale were situated were shown to those in attendance. As none of these appear to have been near the water, no further attention need be given to them.
On October 25, 1791, in his third annual address, President Washington informed congress that 'a city has been laid out, agreeably to a plan which will be laid before congress,' and the plan prepared by L'Enfant was transmitted to congress on December 13, 1791.
It is obvious from a glance at this plan, as contained in the record, that it projected an open space along the water front, and showed at various localities separate wharves extending beyond the open way. That L'Enfant never contemplated, however, that the effect of this was to cut off the riparian rights of the lot holders, and cause the water privileges to be merely appurtenant to the street, is shown by his suggestion to Peter and the cotemporaneous circumstances which have been already adverted to, and will be moreover shown hereafter. A vivid light on this subject is derived from an additional occurrence which took place at the meeting of the commissioners with Mr. Jefferson and Mr. Madison.
At that meeting it is recited that a letter was written by the commissioners to the general assembly of Maryland, in which occurs this passage:
'That it will conduct much to convenience and use, as well as beauty and order, that wharfing should be under proper regulations from the beinning. * * * Your memorialists therefore presume to submit to your honors whether it will not be proper to * * * enable the commissioners or some other corporation, till congress assumes the government, to license the building of wharves, of the materials, in the manner, and of the extent they may judge disirable and convenient, and agreeing with general order.'
The request embodied in the memorial thus submitted implied that, in the judgment of those by whom it was drawn, riparian rights, embracing the privilege of wharfage, were attached to the lots fronting on the river, and authority was deemed necessary to regulate the exercise and enjoyment of such existing rights. There is not a word in the memorial which can lead to the supposition that the commissioners desired power to originate rights of wharfage; for the memorial asks for authority to license the building of wharves, 'of the materials, in the manner, and of the extent they may judge desirable and convenient, and agreeing with general order.' Indeed, if all the riparian rights, as to the lots facing on the river, had been des royed by the effect of the drawing of the L'Enfant plan, then the requested authority was wholly unnecessary; for in that case all the riparian rights would have been appurtenant to a street which belonged to the public, and no one would have had the right to enjoy them without the consent of the commissioners, and consequently they would have had the power, in giving their assent to such enjoyment, to affix any condition they deemed proper, without legislative authority for that purpose. The mere fact that the right of a riparian owner to erect wharves is subject to license and regulation in no wise implies the nonexistence or riparian rights and rights of wharfage, for all ownership of that character is held subject to control, as to the mode of its enjoyment, by the ligislative authority. I do not stop to make any copious citation to authority on this subject, but content myself with referring to the opinion of Chief Justice Shaw, where the whole matter is admirably considered, in Com. v. Alger, 7 Cush. 53.
The argument, then, that, because the riparian right was subject to license and regulation, it could not have pre-existed, amounts to saying that no riparian right can ever exist. This follows from an analysis of the contention, which may be thus stated: Riparian rights exist as rights of property, and are ever subject to lawful legislative regulation. If, however, they are regulated, the necessary result of the regulation is to take away the right. I do not here further consider this question, because, as will hereafter be shown by a statement of the commissioners, which was, in effect, approved by President Washington, it was expressly declared that the sole object and purpose of the desired regulations was to compel the owners, in the enjoyment of their existing riparian rights as to wharfage, to conform to some general plan of public convenience.
On December 19, 1791, the general assembly of Maryland passed an act complying with the above request, and conferring authority to license the building of wharves, as well as excavations and the erection of buildings within the limits of the city. The fact that, in the same act in which was given the power to license and regulate wharves there was also conveyed the authority to license excavations and the erection of buildings, shows that it was considered that the act did not originate a right, but merely controlled its exercise; for, can it be said that, because a lot holder was obliged to obtain a license before erecting a building on his lot, therefore his ownership of his building was destroyed, and he held it at the will of the commissioners? If it cannot be so said, in reason, as to buildings, how can it be thus declared as to the wharves, which were placed by the act in exactly the same category? The act of the Maryland legislature in which the foregoing provisions were contained embraced, besides, other subjects. It subjected to division lands in Hamburgh and Carrollsburgh, not yet conveyed, for the purposes of the federal city, and provided legal means to accomplish the division of such lands belonging to persons who, on account of mental or other incapacity, had not hitherto conveyed their rights. The act contained a provision as to building liens, provided for the existence of party or common walls between contiguous owners, for a record book, etc. Annexed in the margin are extracts from the act, and, without stopping to analyze its text, it seems to me that it evinces the clear intention of the legislature that the lot owners should receive, in all and every respect, an equal division of their property, upon the allotments authorized to be made by the commissioners, and that thereby it rebuts the assumption that, by the effect of allotments or the plan of the city, the lots fronting on the river were stripped of their riparian rights, and that all such riparian rights were vested in the public as the owners of a projected street binding on the river. In passing, attention is directed to the fact that some of the very lots in controversy in this cause, and as to which riparian rights are now denied, were allotted by the commissioners upon a division of water lots owned by persons incapable of acting for themselves, under the proceedings provided for in the Maryland statute, which clearly, as to such persons, negates the conception that their riparian rights had been or could be destroyed by the involuntary surrender of their property under the operation of the statute.
I am thus brought to a consideration of the second epoch.
2. The formative period of the city, in which the initial steps in the previous period were in a large measure carried into execution, which extends to the actual establishment of the seat of government in Washington.
The L'Enfant plan was not engraved and put into general circulation, owing to the withdrawal of that gentleman from the employment of the city, in consequence of differences with the commissioners, and his retention of the plan which he had prepared. In consequence, Andrew Ellicott was employed, about the middle of February, 1792, to prepare another plan of the city for engraving. A proof sheet of a plan by him made, which had been engraved at Boston, but which omitted to indicate the soundings of the Eastern Branch and the Potomac river, was received by the secretary of state early in the following July. Proof from a plate of the same plan engraved in Philadelphia, which indicated the soundings, was, however, received by the commissioners about the middle of November, 1792. Copies of both of the above plans were largely distributed throughout this county and abroad. The Ellicott plan, in its general features, was similar to that of L'Enfant, being practically based thereon. It indicated an open space along the water front, and wharves projecting from the further side thereof. A reduced copy of this plan is a part of the opinion of the court.
Incidentally it may be stated that a project of the secretary of state for obtaining a loan upon the public property to meet the expenditures connected with the establishment of the new city was transmitted to the commissioners on March 13, 1792, but action thereon was suspended owing to a financial crisis which occurred soon afterwards.
On September 29, 1792, President Washington transmitted to the commissioners an order authorizing a public sale of lots on the 8th day of October, 1792, and conferring authority upon the commissioners to di pose thereafter of lots by private sale. The second public sale of lots was held on October 8, 1792, and the plan of the city engraved at Boston was exhibited. During 1792 some squares were divided with the proprietors, among others Nos. 4, 8, 160, 728, and 729.
Nothing else of material importance, requisite to be noticed, transpired in 1792.
On March 12, 1793, Major Ellicott, who had been in charge of the surveying department, left the service of the commissioners. Two days afterwards, Dermott, who had prepared a plan of that part of the city which is covered by Hamburgh, and who had laid down the lines of Hamburgh in different ink, was requested to do the like with respect to Carrollsburgh, so that each might be ready for division with the proprietors in April.
On April 9, 1793, a number of lot owners in Hamburgh and Carrollsburgh joined in a formal conveyance of lots owned by them to the trustees named in the deeds of the proprietors of the farming tracts, for the purposes of the federal city. This was after, it will be remembered, both the L'Enfant and Ellicott plans had been prepared, and the latter extensively circulated. It was stipulated in this deed that, on the allotment and division to be made by the commissioners, 'one-half the quantity of the said lots, pieces and parcels hereby bargained and sold shall be assigned and conveyed as near the old situation as may be to them, the said Thomas Johns, James M. Lingan, William Deakins, Jun., Uriah Forrest and Benjamin Stoddard, respectively, in fee simple, so that each respective former proprietor shall have made up to him one-half of his former quantity and in as good a situation.'
If the L'Enfant and Ellicott plans had destroyed all riparian rights, as it is now held, it is obvious that the provisions of this conveyance could not be carried out, if the water lot owners were to receive half of their lands in the same or as good a situation.
On April 9, 1793, regulations were promulgated by the commissioners relative to the subject of surveys by the surveying department, prescribing forms of returns to be made, etc., adding: 'The work is from time to time to be added on the large plat, which, on being finished, is to be considered as a record.'
On April 10, 1793, James R. Dermott was appointed to lay off squares into lots, and regulations were prescribed with respect to the performance of his duties. He was to take minutes of the squares from the certificates of surveys returned to the office of the clerk of the commissioners, and, from this, plat the squares by a scale of 40 feet in an inch, and divide the squares into lots, and in one corner of the paper containing the plat of the squares he was to write down the substance of the certificate from which it was made, giving the boundaries. Mr. Dermott, in answers to questions propounded by the commissioners on February 28, 1799, enumerates 30 squares that were surveyed in the summer of 1792, having been in a manner bounded, and a small ditch cut around them, but the dimensions were not noted on any document. He said that Mr. Ellicott's return of their survey and measurement was after the 10th of April, 1793, on which date Ellicott returned to the service of the city.
On June 17, 1793, Andrew Ellicott forwarded to the clerk of the commissioners three sheets of different parts of Washington, with the returns of the bounds and dimensions of the several squares represented on the sheets. Sheet 2 contained the part which was formerly Hamburgh,-the interferences between the new and old locations being delineated in different colors,-Hamburgh, as formerly, being represented in red. Sheet No. 3 contained the town called 'Carrollsburgh,' drawn in yellow, so that the interferences, as in the case of Hamburgh, might be rendered conspicuous.
The map of Hamburgh, showing interferences, is contained in the record. No city squares are shown nearer to the water than Nos. 62 and 88. They abut on the south line of what was named 'Water Stre t,' in Hamburgh, which street was the northerly boundary of the lower range of water lots. Squares 63 and 89 were subsequently made to embrace the water lots, those squares being bounded on the north by the south line of the old Water street, while in the return and plat of survey they are bounded on the south by the Potomac river.
A partial division was made with some of the lot owners of Hamburgh and Carrollsburgh in 1793. Concerning this, Dermott, in a report to the commissioners made on February 28, 1799, answering the question as to whether he knew of any instance when the right of wharfage in the city had been so claimed or exercised as to raise a dispute, or was likely to do so, said:
'The commissioners, in 1793, when dividing Carrollsburgh and Hamburgh, had the subject of wharfage under constideration. There were only two places where any difficulty could arise, against which every precaution was taken. The one place was square south of 744. In compensating for what was termed 'water property' of Carrollsburgh, which lay on that ground, there were some lots laid out on that square to satisfy claimants. Upon an investigation of the business, it was found that that square must bind on Canal street to the east, and not the channel, and that it could have no privilege south; therefore the new locations of water property made in it were withdrawn (except one), and placed in square 705, in a much more advantageous situation than could be expected from the original location. To this the original proprietors acquiesced.'
Three things are evident to me from this statement: First, that the commissioners had considered wharfing, and found no difficulty in recognizing it in every case but the instances mentioned,-a condition of things impossible to conceive of if no wharfing rights existed, and they had all been vested in the public; second, that the privilege in the water or water lots was treated by Dermott and the commissioners as synonymous with the right of wharfing,-in other words, with riparian rights; and, third, that as, by the peculiar location of one of the squares which was entitled originally to the water privilege, such privilege was by the new plan impaired, a new water lot was given to the owner to enable him to have the full enjoyment of his water and wharfage privilege; but that to give the owner another allotment to secure him an existing right is utterly incompatible with the conception that the right did not exist seems to me too clear for anything but statement.
Dermott also communicated the following, as alterations made after the Ellicott plan had been published, having respect to the exercise of wharfing privileges:
'In running a water street on the southeast of Carrollsburgh on the bank and establishing the right of wharfing to be governed by the parallel (or east and west streets to the channel.) This latter part is not considered as a difference, but an establishment of right, to regulate the privilege by at all times. This was done in order to accommodate the original proprietors of lots in that town already established by law. Without this there was no mode known at the time to do it. Similar regulations had taken place through the rest of the city, of which the returns of the surveyors in the office can testify. The whole of this met the approbation of the commissioners under the regulations of the 10th of April, 1793.'
This explains the presence on the Dermott map at this locality of a number of new squares, in the water, with the river side of the squares open towards the channel. As Dermott declares, they were designed to mark the direction for wharfing, and the evidence establishes that lots thus situated in the water were regarded as appurtenant to the water squares, or squares bounded towards the water by an apparent street, and of which squares an equal division was to be made.
May I again pause to accentuate the fact that every statement thus made by Dermott to the commissioners of the changes in the Ellicott plan are bsolutely inconsistent with the assumed nonexistence of wharfing rights, and, indeed, as I understand them, are irreconcilable with honesty on the part of Dermott or the commissioners, if the riparian rights had been obliterated? Remember that the lot owners had a right to have the share of the lots coming to them in ' a like or as good situation' as before, and, if not satisfied with the share given to them, had the power to cause the sale of the whole. To satisfy them, and induce them to accept the allotment, here is the final declaration that, in considering the question of wharfage, the lot holders were assured that their rights would extend across the proposed street by parallel east and west lines to the channel. Can it be believed that Mr. Justice Johnson, then a member of this court, and all the other honorable men concerned in the division of the lands, would have given such assurances to the proprietors to cause them to accept the allotment, if they knew or believed that the rights of the lot holders were cut off by the proposed street, and that there could be no extension of the east and west lines across the street to the channel? Mark, moreover, the express declaration of Mr. Dermott, upon whom the duty had been cast of platting the surveys of the division, that 'similar regulations had taken place through the rest of the city. * * * The whole of this met the approbation of the commissioners, under the regulations of the 10th of April, 1793.' This, then, is the situation: An official concerned with duties respecting divisions with lot owners solemnly declares that, throughout the whole city, the lot holders had been assured that the riparian privileges attached to their water lots, which right of wharfage would extend by east and west lines across the proposed street to the channel, and that this declaration was approved by the commissioners; but yet it is now decided that, at the time all this was done, there were no riparian rights to extend across the proposed street by east and west lines to the channel, because they had all been cut off by the street in question.
Dermott replied to the question, 'Were any difficulties ever suggested as to the direction of the wharves or rights of purchasers until the time of Nicholas King?'-as follows:
'None that I know of after the first arrangements had taken place, in 1793, respecting Carrollsburgh, Hamburgh, and other parts of the city. Sometimes purchasers of water property could not at the first view understand their privileges, but, when explained to them, were generally satisfied; and I know of no one closing a bargain until fully convinced of their rights of wharfage.'
Evidently the 'first arrangements' referred to were those made on the initial division or sale of water property. 'Privileges' and 'rights of wharfage' are here also used as synonymous in meaning.
The government having succeeded in selling, at an enhanced price, lots fronting on the river only after convincing the purchasers of their rights to wharfage, it seems to me that, after all these years, it cannot in equity be allowed to hold on to the result of the sales, and deny the right of wharfage, by giving positive assurance as to the existence of which the sales were alone made possible.
Mr. Dermott also alluded to the fact that variations had been made in the published plan of Ellicott, 'in order to compensate original proprietors of lots in Carrollsburgh with lots on the plan of the city, upon the principles established by law, and as near the original situation as could be.'
In December, 1793, Ellicott addressed another letter to the commissioners, from which it is clearly inferable that the advantage attached to the lots having riparian rights was deemed to give to those lots a higher value than those not possessing such rights.
Dermott, in enumerating the sales of 'public water squares, in lots on navigable waters,' which were sold before a date stated, mentioned, among other property, 'The public water property from squares No. 2 to 10, inclusive.' The above squares were on land which formerly belonged to Mr. Peter, and was part of the land in front of which the negotiations were had in 1791, already referred to, for the erection of wharves in conjunction with the city. They were all bounded on the Ellicott map on the water side by a street. Square No. 3, appearing as a small triangular piece of ground and as abutting directly on the river street, was separated by a street on the west from square No. 8. Though appearing on the plan, square No. 3 had not been platted or officially admitted as a square. On December 22, 1793, John Templeman offered to buy one-half-presumably the public half-of square 8 (which square had been divided October 8, 1792) and one-half of the square back of it, 'provided that the slip of ground which lays between the water and street is given in, * * * and oblige myself to build a good wharf and brick store immediately.' The proceedings of the commissioners in January, 1794, recite the sale to Templeman of nine lots in square No. 8, and the delivery to him of a certificate with the following indorsement thereon: 'It is the intention of this sale that the ground across the street next the water, with the privilege of wharfing beyond the street in front, and of the breadth of the lots, pass with them, agreeably to the general idea in similar instances.'
It will be observed that the conveyance, in the body of the certificate, was of lots in square 8, the indorsement evidently being designed to indicate what was to be regarded as appurtenant to those lots.
It seems hardly necessary to suggest that riparian rights that is, rights of wharfage-could not possibly have been certified as existing in the land sold to Templeman, 'agreeably to the general idea in similar instances.' if all such rights had been already cut off by the effect of the L'Enfant and the Ellicott maps; for it must be borne in mind that the property certified, in effect, as appurtenant to the lots in square 8 and sold to Templeman, was delineated on the map as being bounded on the water side by a proposed street.
Let me for a moment consider the consequences of the above transaction. When it took place, it is not denied by any one that the commissioners were sedulously engaged in an effort to dispose of the public lots for the purpose of obtaining the money to carry out the great object of establishing the city. The property sold to Templeman was unquestionably separated from the water by a street on the proposed plans, which had been distributed and were known; but more than this, partially in front of it, on the further side of the street, lay a small strip of land, also bounded on the plan on the river side by an apparent street, and that such square was marked on the plan as a numbered square, though not actually platted. Templeman desired to buy the platted square, but he was unwilling to do so lest it might be claimed that the small piece of unplatted land on the opposite side of the street might cut him off from the river, and thereby deprive him of his riparian rights. That he needed the riparian rights and intended to use them results from the fact that his proposition contained a guaranty to erect a wharf. It is patent from such proposition that it entered into the mind of no one to conceive of the fact that a street laid down on the plan as in front of the square would cut off riparian rights. Now, what did the commissioners do? They accepted the proposition and sold square 8, expressly declaring that riparian rights should exist in front of the square, across the street, 'agreeably to the general idea in similar instances.' Put side by side the decision now made and the declaration of the commissioners. There were no riparian rights across the street because they had all been destroyed and taken away from the owners and given to the public by the L'Enfant and Ellicott plans. So, now, it is held. Riparian rights exist across the street, incl ding wharfage, in all similar cases; that is, in all cases where the property substantially abuts upon the river, but is bounded by a proposed and projected street, is the declaration which the commissioners made in the execution of the great trust reposed in them.
When the effect of this declaration is considered in connection with the previous acts of the commissioners and the contracts and negotiations of the proprietors, and when the flood of light which it throws upon subsequent dealings is given due weight, my mind refuses to reach the conclusion that riparian rights did not attach to the water lots. Can it be doubted that this formal and official declaration of the commissioners became the guide and the understanding for the sales thereafter made by the commissioners, and which they were then contemplating and endeavoring to consummate? Will it be said that the members of the commission and all those associated in the work would have allowed a declaration so delusive and deceptive to have been made and entered on the minutes of the commission, if it had in the remotest degree been conceived that riparian rights did not exist?
The sale to Templeman, as stated, was not consummated until January. 1794. No sales in the city took place, deserving attention, until the 23d of December, 1793, when a contract was made with Robert Morris and James Greenleaf for the sale of 6,000 lots (to be selected), averaging 5,265 square feet, at the rate of 30 per lot, payable in seven annual installments, without interest, commencing on the 1st of May, 1794, and with condition of building 20 brick houses annually, two stories high, covering 1,200 square feet each, and with further condition that they should not sell any lots previous to the 1st of January, 1796, but on condition of erecting on every third lot one such house within four years from the time of sale. It was expressly stipulated that 4,500 of the lots should be to the southwest of Massachusetts avenue, and that of those lots 'the said Robert Morris and James Greenleaf shall have the part of the city in Notley Young's land.' Certain squares were next specifically excepted from the operation of the agreement, as also 'the lots lying in Carrollsburgh, and * * * the water lots, including the water lots on the Eastern Branch, and also one-half of the lots lying in Hamburgh; the lots in that part of the city and belonging to it, other than water lots, being to be divided by alternate choice between the said commissioners and the said Robert Morris and James Greenleaf.' Immediately thereafter was contained this proviso: 'Provided, however, and it is hereby agreed by and between the parties to these presents, that the said Robert Morris and James Greenleaf are entitled to the lots in Notley Young's land, and of course to the privilege of wharfing annexed thereto.'
The word 'lots' in the proviso manifestly meant 'water' lots, as there had been previously an express agreement that Morris and Greenleaf should 'have the part of the city in Notley Young's land.' As stated, the proviso followed a stipulation excepting 'water lots' generally from the operation of the agreement. Evidently, therefore, the proviso was inserted out of abundant caution, to leave no room for controversy as to the right of Morris and Greenleaf to the 'water' lots in Notley Young's land; and therefore clearly imported that the lots in Notley Young's land fronting on the river, and which had been bounded at that time by both the L'Enfant and the Ellicott plan and by the return of surveys by Water street, were notwithstanding water lots, and entitled to wharfage as a matter of course.
My mind fails to see that there were no riparian rights or rights of wharfage attached to the lots bounded by the proposed Water street, in view of the express terms of the above contract. How could it have been declared that 'of course' the water privilege and consequent right of wharfage went with the water lots, when it had been long determined, as the court now holds, t at there were no water lots and no wharfing privileges to be sold? True, it has heretofore been suggested that this provision in the Morris and Greenleaf contract may have referred to lots in Notley Young's land which might be water lots other than those on the Potomac river,-as, for instance, lots in Carrollsuburgh or on the Eastern Branch. But all lots in Carrollsburgh and the water lots on the Eastern Branch were excluded from being selected by Morris and Greenleaf by the express terms of the contract, and besides there were no lots in the land conveyed by Notley Young which could be considered as water lots, other than those fronting on the Potomac river and on that portion of the Eastern Branch which the government had already taken as a public reservation for an arsenal. The fact is, then, that at the very time when it is now decided that all riparian rights had been wiped out, and that no wharfing privilege existed as appurtenant to water lots, in order to accomplish the successful foundation of the city an enormous number of lots were sold under the express guaranty of the existence of water lots, and under the unambiguous stipulation that such lots should, of course, enjoy the wharfing privilege. That this sale to Morris and Greenleaf was submitted to President Washington before its consummation no one can doubt, in view of the deep interest he took in the foundation of the city, and of the manifest influence which the making of the sale was to have on the accomplishment of his wishes. Can it be said of Washington that he would have allowed a stipulation of that character to go into the contract if he believed that there were no water lots and no wharfing privileges, because, under his direction, they had all ceased to exist? If this were a controversy between individuals, and it were shown that a conveyance had been made with statements in it as to the existence of water lots and rights of wharfage, would a court of equity be found to allow the person who had reaped the benefit of his assurance by selling the property to alter his position and assert, as against the purchaser, the nonexistence of the very rights which he had declared, 'of course,' existed, in order to consummate the conveyance? If a court of equity would not allow an individual to take such a position, my conception is that a nation should not be allowed here to avail itself of an attitude so contrary to good faith and so violative of the elementary principles of justice and equity, and, especially, where the statute on which this controversy is based imposes upon the court the duty of administering the rights of the parties according to the principles of equity.
It is true that some time after the Morris and Greenleaf contract was made, a certificate was issued by the commissioners, giving more formal evidence of the title to the land, and describing the lots by reference merely to the numbers in the squares, without repeating the assurance that the lots were water lots, and that, 'of course,' the rights of wharfage attached as stated in the previous contract. But neither did the certificate reiterate or re-express the obligations assumed by the purchasers to erect buildings, and so on. Can the certificate be treated as changing the covenants of the contract, as against Morris and Greenleaf, so far as the water lots and wharfing privilege are concerned, because it was silent on this subject, and yet be not held to have discharged them from the burdens of the contract, as to which also the certificate was silent? Can it be imputed to the commissioners that after the contract was made, and they had duly reaped the benefits arising from it, that, of their own accord, by the mere fact of the issue of the certificate, they could discharge themselves from the burdens of the contract and hold on to the benefits? Can a court of equity recognize such a principle or enforce it? If not, how in consonance with equity can such a principle be applied here? But the record in my judgment entirely relieves the mind of the possibility of imputing any such inequitable conduct to the commissioners; for it shows beyond dispute that, after the consummation of the allotments to Morris and Greenleaf and to Notley Young, both these parties or their grantees applied to the commissioners for license to erect wharves in front of their 'water lots,' and that licenses were issued as a matter of course. It should also be remembered that the expression 'water lots' and 'the wharfing privileges,' which were, of course, attached 'thereto,' used in the contract with Morris and Greenleaf, affirmatively shows what was the signification of the words 'water lots' as previously made use of by the commissioners in dealing with other persons. As there were no lots in Notley Young's land embraced within the terms of the contract which were not separated from the river by the proposed street on the L'Enfant of Ellicott plan, it follows conclusively that the words 'water lots' could only have referred to the lots fronting on the river and facing on the projected street, which were deemed water lots because of their situation, and which were, of course, entitled in consequence to the privilege of wharfage. It cannot be gainsaid that at the time the contract with Morris and Greenleaf was made the L'Enfant plan was known and the Ellicott reproduction of it had been engraved and was extensively circulated. Dealing with this ascertained and defined situation, the covenants in the contract with Morris and Greenleaf were, in reason, it seems, susceptible alone of the construction which I have placed upon them. The importance with which the Morris and Greenleaf contract was regarded at that time, and the influence which it was believed it would exert upon the successful accomplishment of the foundation of the city, are amply shown by a report of the commissioners made to President Washington, inclosing, on December 23, 1973, a copy of the Morris and Greenleaf contract. The commissioners said:
'A consideration of the uncertainty of settled times and an unembarrassed commerce weighed much with us, as well as Mr. Morris' capital, influence, and activity. The statement of funds inclosed may enable the prosecution of the work even in a war, in which event we should [be?] without this contract have been almost still.'
This summary of the events of the year 1793 is concluded with a reference to the Maryland act of December 28, 1793, passed as supplementary to the statute of December 19, 1791. By the first section, it would seem to have been designed to vest in the commissioners the legal title to the lands which had been conveyed to the trustees, while the third section provided for division and allotment by the commissioners of the lots within the limits of Carrollsburgh not yet divided. In the margin the sections referred to are inserted.
As further evidence that the commissioners regarded the special value of 'water lots' to consist in the wharfing privilege, and that a water lot was not devested of riparian rights because the lots were bounded towards the water (either on the plat of survey or on the plan of the City) by a street, attention is called to the minutes of the commissioners in March, 1794, with respect to squares 771 and 802, which, on both the Ellicott and Dermott maps, were separated from the water by Georgia avenue. Return of survey of square 802 was dated September 3, 1793, and bounded the square on all sides by streets.
'A copy of the following proposition was delivered Mr. Robert Walsh, of Baltimore: Mr. Carroll will sell only half of his half of the water lots in square 771 and 802. He will divide so that the purchaser may have his part adjoining.
'The commissioners have for the public a right in one-half of these water lots. They are willing to dispose of that part.
'Mr. Greenleaf by his contract has a right to choose the public part in squares 770, 771, 801, and 802, except the water lots.
'The commissioners have advised Mr. Greenleaf that they were in treaty for the public water lots in squares 771 and 802, and some adjoining lots, and expected that Mr. Greenleaf would have waived his right of choice in the back lots. He has not done so, but desired, in case the contract for the water lots was not finished, that they might be reserved as a part of twelve. The commissioners had promised to reserve for him to accommodate his friends, under terms of speedy improvement. So circumstanced, the commissioners can positively agree for the public interest in the water lots only, which they offer at the rate of 200 pounds each, and the public interest in the rest of the lots in the four squares at 100 pounds each, to take place in case Mr. Greenleaf does not fix his choice on them.
'But the commissioners, conceiving there is room on three-fourths of the water line for wharfage sufficient to gratify both, and that the views of all would be promoted by the neighborhood and efforts of both interests, would wish rather that on Mr. Greenleaf coming here, from 10 to 15th of next month, the two interests might be adjusted. The commissioners would have a pleasure in contributing all in their power, and assure themselves there would be no difficulty if all were met together.'
These squares, because they were 'water lots in the Eastern Branch,' could not have been selected by Greenleaf under the large contract already referred to, and therefore the purchase of these lots was a separate transaction. The fact that the respective parties referred to in the communication were contending for the acquisition of the water lots separated from the river by Georgia avenue, because they wanted the water privileges, clearly shows that it was deemed that such privilege was appurtenant; and that the commissioners thought that on three-fourths of the water line there was wharfage room suflicient to gratify both makes it plain that it did not occur to the mind of anybody that the contemplated street would cut off the water lots from the possession of riparian rights or destroy the wharfing privilege.
As already stated, a division of the water lots in Hamburgh was not made until June, 1794. Without stopping to analyze these divisions, suffice it to say that, in my opinion, they affirm the fact that it was not intended to c t off the water privileges of the owners whose water lots were divided. It is clear from the proceedings as to the allotments in squares 63 and 89 (which embraced most of the former water lots) that some of these divisions in Hamburgh, as already mentioned, were made as against owners incapable of representing themselves, and that allotments were made by the commissioners by virtue of the authority conferred by the Maryland act, which commanded, as I have already shown, that the allotments should be in a like situation, and that the division should be equal. The acts of the commissioners in the division of the squares referred to manifest, as understood by me, an effort and purpose to comply, not only with the terms of the contracts for the division of Hamburgh, but with the commands of the statute, and show the preservation of whatever rights were appurtenant to the water lots before the division took place. It may be worthy of note that one of the lots in square 63 which was so divided and fell to the public was sold contemporaneously with the transaction as a water lot by the front foot.
I have already referred to the fact that Dermott, in 1799, enumerated the public water property previously sold, as part of 'the public water property from squares Nos. 2 to 10, inclusive,' formerly land of Robert Peter, and part of the water lots in front of which L'Enfant, in 1791, had proposed that Peter and the city should jointly erect wharves. On November 7, 1794, the commissioners wrote to Gen. W. Stewart, in part, as follows:
'* * * With respect to the water lots, the squares are also not yet divided, and the commissioners can only sell you the part of the said two squares [referring to squares 2 and 10] which shall belong to the public on making divisions. Such we have no objections to sell you at 16 dollars the foot in front.'
And on November 11th following, the commissioners again wrote Gen. Stewart:
'* * * No. 2 contains at the termination of the wharf 317 feet. This is to be paid for by the number of feet in front, but it includes square No. 7 [a small square on the east], 15,444 square feet, not taken into any other calculation. No. 10 contains in front, at high-water mark, 176 feet. At the termination of the wharf, 246. Medium, on account of the vicinity of the channel.
'N. B. It must be remembered that only one-half of these squares belong to the public.'
This shows that at the time of these negotiations wharves existed in front of the squares, and that though the squares were bounded on the plan, towards the water, by a street, yet that the squares lay partly in the water, and that the negotiations were conducted on that basis and with reference to the wharfing privileges. No other inference is possible, in view of the fact that an actual charge was made for land beyond the street and out to the end of the wharf.
A sale was made to Gen. Stewart on December 18, 1794.
At what was formerly Carrollsburgh, as already stated, a variation was made from the Ellicott map by running a water street on the southeast on the bank, and establishing the right of wharfage to be governed by the parallel (or east and west streets) to the channel. Dermott, in his report to the commissioners, represented that 'the public water squares, or lots on navigable water what fell to the public after satisfying original proprietors of lots in Carrollsburgh from square 611 round to square 705, both inclusive,' except four lots in squares 610 and 613, were sold by a date named. The main portion of the water lots in front of Carrollsburgh would seem to have been allotted to former water lot owners. The evidence in this record, however, as to sales of public water lots in this locality, clearly exhibits the fact that apparent squares shown on the Dermott map as lying wholly or almost entirely in the water, outside of the line of the assumed street, were sold simply as a part of the water lots on the other side of the projected street; that is to say, the con eyances were of those lots by the front foot, in some instances adding, 'with the water privileges east of the same,' showing clearly that what lay east of the street was considered as simply a part of the property fronting on the street, and as necessarily following it in order not to impair its value. Instances of this kind are shown by the record in connection with squares 667 and east of 667, squares 665 and 666, and squares 662 and 709. And in the case of squares s. s. 667, lying to the south of the street, which consisted of considerable fast land, a sale was made of a lot in that square with the privilege east of the same, being an unnumbered square lying in the water.
It is worthy to be mentioned, although out of the order of its date, that lots in one of the very squares above referred to (No. 667) were conveyed to Gen. Washington himself, together with the appurtenant lots lying in the water beyond the street, and that Gen. Washington, in his will (1 Sparks' Writings, 582, 585), referred to the lots fronting towards the river on the street as water lots, and made no mention of the lots in the water.
Illustrations like unto those above made abound in the record, showing that lots which were separted from the river by a street delineated upon the plan of the city, and also by the return of actual survey, were yet sold by the commissioners for an increased price as water lots, which imported, as has been shown and will hereafter further appear, that riparian privileges was attached to the lots. The record also cites instances where application was made to the commissioners by the owner of a water lot for a license to wharf in front of his lot, and such license issued. I do not stop to refer in detail to all such cases, because those already enumerated adequately show the conception of the situation entertained by all the parties at the time and on the faith of which they dealt. No single instance to the contrary has been found; nor has a case been pointed to where the commissioners sold, or offered to sell, a water privilege or riparian right of any kind, including the right of wharfage, as appurtenant to a public street. The importance of this fact cannot be overestimated. The history of the times leaves no doubt of the solicitude of President Washington and of the commissioners, whose hopes were enlisted in the permanent establishment of the capital, to avail of every resource to obtain the means wherewith to erect the public buildings, so that the capitol might be ready for occupancy at the time designated in the act of congress. If it be true that the riparian rights were cut off by the intention to make a street along the river, then all such rights along the whole river front belonged to the United States, and were at the disposal of the commissioners for sale. Seeking, as they were doing, to make use of every resource by which funds could be procured, can it be doubted that, if they had deemed this to be the case, there would not have been mention of the fact on the plans which were put in circulation, and that there would have been effort made to sell these available rights in order to obtain the much-desired pecuniary aid? It is certain that the minds of the commissioners were addressed to the importance and value of the water lots and of wharfage, because of the many contracts referring to this subject from the very beginning. The only inference to my mind permissible from this is that, as the commissioners were seeking to obtain the highest possible price for the water lots, because they enjoyed riparian and wharfing privileges, the thought never entered their mind of destroying the sale of the water lots by stripping them of that attribute which gave peculiar value to them.
Let me come now to a circumstance which seems to throw such copious light on the situation that it is even more conclusive than the facts to which reference has heretofore been made.
In September, 1794, Messrs. Johnson and Stuart were succeeded as com issioners by Messrs. Scott and Thornton. In May, 1795, Commissioner Stuart was succeeded by Commissioner White. The views of the new commissioners on the subject of wharfage were expressed by them in a communication to the president, dated July 24, 1795, the communication being one transmitting for the president's approval regulations formulated by the commissioners as the result of their consideration of 'the subject of regulating the building of wharves.' In the communication it was expressly declared that the regulations had been prepared 'with respect to the private property on the water.' Referring to the Maryland act of December 17, 1791, which conferred the power to regulate wharfing, the commissioners said:
'Had the legislature of Maryland been silent on the subject, the holders of water property in the city would have had a right to carry their wharves to any extent they pleased under the single restriction of not injuring navigation. The law of the state is therefore restrictive of that general right naturally flowing from the free use of property, and ought not to be construed beyond what sound policy and the necessity of the case may require.'
Adverting to the importance of so drafting the regulations as not to impose restrictions calculated to discourage those intending to purchase water lots with their appurtenant privileges, the commissioners said:
'Our funds depend in some measure on sales, and sales on public confidence and opinion. Any measure greatly counteracting the hopes and wishes of those interested would certainly be injurious, and ought not to be adopted without an evident necessity.'
Does not the declaration that the rules were adopted with respect to private property on the water rebut the contention now advanced that there was no such property on the water, because all riparian rights and rights of wharfage were exclusively the property of the public?
Are these statements of the commissioners not a complete answer to the contention that the Maryland act was intended to originate rights of wharfing, and not merely to regulate the exercise of existing rights? At the outset, attention was called to the fact that the Maryland law was passed at the request of the commissioners, preferred at a meeting where Mr. Jefferson and Mr. Madison were present, and that the very terms of the request implied that the commissioners desired power to regulate the riparian rights which they thought were then existing. Now, with all the intervening transactions, comes the letter to the president, showing beyond peradventure the construction and interpretation affixed to the Maryland act by those to whom it was addressed. Could Washington, could Jefferson, have remained silent if the letter of the commissioners was an incorrect statement of the understood law on the subject? The declaration of what the rights of the water lot owners were as to wharfage is as full and complete, it seems to me, as human language could make it.
The draft of the proposed regulations adopted by the commissioners, and which was submitted by them to the president, is not in the record, although the communication to the president indicates its character. Correspondence, however, on the subject ensued between the president, represented by the secretary of state, and the commissioners. It is to be inferred that the draft of the regulations sent to the president contained a provision forbidding water lot owners, in the construction of their wharves, from erecting on the wharves any buildings whatever; the intent appearing to be that the warehouses would be built on the water lot to which the wharfing privilege was attached. This would indicate that the commissioners intended by their regulations to so arrange that any projected street would not cut off the water rights and right of wharfage, but would serve merely as a building line.
Complaint on this subject was made by a Mr. Barry, and such complaint was thus referred to in a letter of Commissioners Scott and Thornton to Secretary of State Randol h on May 26, 1795:
'Mr. Barry had purchased on the Eastern Branch, under an idea of immediately building, and carrying on trade, but refuses to build, on being informed of the restrictions to which every one must be subject in support of a Water street, which we presume it was the intention of the executive to keep open to the wharves, as is the case in Bordeaux and some other cities in Europe. The inconvenience pointed out by Mr. Barry is that in unlading vessels it would be necessary to go through three operations: 1st, taking out the load; 2d, conveying it across the wharves and Water street to the warehouses; 3dly, by taking it up into the warehouses. Whereas, if the stores or warehouses were to stand on the water edge of the wharves, the unlading into the warehouses would only be one operation, and it would save five per centum, and the same in loading.'
Observe that there is not an intimation in this communication that the commissioners or anybody else had the faintest conception that the right to wharf did not exist in favor of the owner of the water lot because of a proposed street, but there was simply a question as to whether the regulations should restrict the water lot owner from building warehouses on his wharves. The wharfing regulations, as adopted, are annexed in the margin. As approved, they contained no restriction on the right of water lot owners to erect warehouses on their wharves; thereby clearly implying that the complaint of Barry was treated by President Washington as well founded, and that the regulations were corrected in that respect before final approval. Comment at much length upon the regulations is unnecessary, but their perusal refutes the idea that a street marked upon the plan of the city as running in front of water lots operated to deprive such water lots of riparian privileges. The regulations warrant the inference that the right of wharfage was intended to attach to such lots at the boundary of the lot on the water side, and that the Water street was designed to be superimposed upon the water privileges. The requirement was that, when the proprietor of the water lot wharfed out in front of his lot, he should leave a space for the street, which, upon the plan of the city, appeared as bounding the lot on the water, and if in so wharfing it became necessary to fill up and make the street he was to have the exclusive right of occupancy until reimbursed 'the expense of making such street.'
It will also be observed that in the regulations the right is recognized, without qualification or reservation of any kind, of ll proprietors of water lots to wharf into the river and the Eastern Branch.
While President Washington had under consideration the proposed wharfing regulations, Commissioners Scott and Thornton addressed a letter to Commissioner White on August 12, 1795. A sentence in this communication illustrates the important nature of the riparian privileges, and refutes the thought that any one then supposed that such a right was received as a favor, and was a mere temporary license, revocable at the pleasure of the commissioners or of congress. The letter discussed the advisability of not requiring a space of 60 feet to be left between the termination of the wharves and the channel, and, in the course of the comments, it was said: 'Mr. Hoban Agent for Mr. Barry, says the intended wharf in his case, which he estimates to cost upward of twenty thousand dollars, will terminate in four feet water.' The regulations, as finally approved, were sent to the commissioners on September 18, 1795, by President Washington, with the following communication:
'Mount Vernon, 18 September, 1795.
'Gentlemen: The copy of the letter which you wrote to the secretary of state on the 21 ult., inclosing regulations relative to the wharves and buildings in the federal city, came to my hand yesterday.
'If the proprietors of water lots will be satisfied with the rules therein established for the extension of wharves and buildings thereon, the regulations will meet my entire approbation, and of their ideas on this head you have no doubt made some inquiries and decided accordingly. * * *'
Can this letter be reconciled with the theory that proprietors of water lots had no riparian privileges and no right to extend their wharves because of a proposed street? Does not the letter declare the existence of such rights in unequivocal terms, and also clearly point out that the words 'water lots' meant property fronting on the river, to which riparian rights and consequently rights of wharfage attached, despite the presence of the proposed street?
Mark the declaration of President Washington that he considers the regulations as relating to the extension of wharves and buildings thereon, clearly implying the right to extend out the wharves from in front of the water lots, and also showing that he had in his mind the change which had been made in the regulations in consequence of the complaint of Mr. Barry, allowing buildings to be erected by the owners of water lots on the wharves which they were entitled to construct. In addition to these considerations, however, there is one of much greater import which arises from the letter of Washington,-that is, the great importance which he attached to doing nothing to impair the riparian rights of the owners of water lots,-for he expressly says: 'If the proprietors of water lots will be satisfied with the rules therein established for the extension of wharves and buildings thereon, the regulations will meet my entire approbation.'
If the rights of the owners of water lots were not deemed by him a matter of grave importance, why should one so scrupulously careful as Washington always was have declared, in a public document, that the satisfaction of the lot owners with the regulations constituted one of the moving causes for affixing his approval to them? Can it be said that Washington would have subordinated the execution of a public duty to the approval of private individuals who had no especial rights in the matter?
It seems to me that this declaration on his part obviously implied that, as by the results of the contracts made with the former proprietors, under his influence and at his suggestion, they had given up their property upon the condition of an equal division, he was unwilling that anything should be done to deprive them of a part of their equal rights, and therefore he would not approve any regulation which he considered had such an effect. In other words, from reasons of public honor and public faith, he deemed it his duty to protect the rights of the owners of water lots. This obligation of public honor and public faith thus, it seems to me, expressly declared by Washington, rests, in my judgment, upon the nation to-day, and should be regarded. As I see the facts, it ill becomes the nation now, when the rights have been sanctified by years of possession, to treat them as if they had never existed, and thus disregard the obligations of the public trust which Washington sought so sedulously to fulfill.
Mr. Barry, whose proposal to build a wharf has been above set forth, and at whose complaint the regulations were presumably amended so as to allow the building of a warehouse on the wharves, it would seem, after the adoption of the regulations, feared another difficulty. Certain lots situated in square No. 771, which had been sold by the commissioners to Greenleaf under the express statement that they were entitled to the wharfing privilege, had been conveyed to Barry as the assignee of Greenleaf. The regulations, as I have observed, provided that the wharf owner should, where the plan of the city exhibited a street and at every 300 feet, leave a space for a street. Barry, conceiving the idea that a projected street (Georgia avenue), which would run across his wharf, would, under his complaint previously made, impair the utility of his wharf, entered into negotiations with the commissioners on the subject. The majority of the commissioners addressed him the following letter:
'City of Washington, 5th October, 1795.
'Sir: We have had your favor of the 3d inst., too late on that day to be taken up, as the board were about rising.
'It will always give us the greatest pleasure to render every possible aid to those who are improving in the city, especially on so large a scale as you have adopted. We think with you that an imaginary continuation of Georgia avenue through a considerable depth of tide water, thereby cutting off the water privilege of square 771 to wharf to the channel, too absurd to form a part of the plan of the city of Washington; that it never was a part of the plan that such streets should be continued through the water; and that your purchase in square 771 gives a perfect right to wharf to any extent in front or south of the property purchased by you not injurious to the navigation, and to erect buildings thereon agreeably to the regulations published.'
In other words, the commissioners agreed to relieve him from the effect of the wharfing regulations. Because, in the letter of the commissioners, the words are used, 'thereby cutting off the water privilege of square 771 to wharf to the channel,' it has been argued that the commissioners must have thought that the existence of a street in front of a water lot, between it and the water, would technically operate to deprive the lot of its riparian privileges. But this overlooks the entire subject-matter to which the letter of the commissioners related. They were dealing with the operation which a projected street would have, as complained of by Barry, on a wharf when built, and not with the riparian right to wharf to the channel, which was conceded. Indeed, this becomes perfectly clear when it is considered that the square referred to had been the subject not long before of express representations by the commissioners to various would-be purchasers that it possessed wharfing privileges. This letter of the commissioners also contains a statement which shows their estimate of the theory that a merely projected street in front of a water lot should cut off riparian privileges, since they declare that such an effect to be given to an imaginary street was, to use their language, 'too absurd' to be considered. The period following the approval of the wharfing regulations by Gen. Washington affords other illustrations of the sale of water lots and the granting of licenses to lot owners to wharf across the street in front of their property-in other words, to enjoy their riparian rights which I do not de m it essential to enumerate in detail, as they are simply cumulative of the examples which I have already given.
There is an interval of about 15 months during this time where the records of the commissioners no longer exist, and therefore approach is at once made to the Dermott map, which was transmitted by the commissioners to the president on March 2, 1797. The court has inserted a reduced reproduction simply of that portion of this map on which is delineated the water front from the Long Bridge up the Eastern Branch, and this will answer the purpose of elucidating what I have to say in connection with the map.
On June 15, 1795, Dermott had been 'directed to prepare a plat of the city with every public appropriation plainly and distinctly delineated.' In consequence of departures made from the Ellicott map, resulting from changes in the public reservations or corrections of mistakes which were developed as existing by subsequent surveys, as well as from the creation of new squares and the obliteration of some old ones, it resulted that the Ellicott plan no longer accurately portrayed the exact situation of the city, and the Dermott map, when completed, exhibited the result of all such changes.
It was strenuously claimed in argument that this map was the final and conclusive plan of the city, and that an inspection of it disclosed that the proposed Water street marked on the plans of L'Enfant and Ellicott was omitted. The court finds that this map was only one step in the evolution of the city, and that, while it is true that it did not mark Water street along the whole front of the city, it nevertheless delineated a line binding the front, which the court considers indicates that a Water street was either then projected or contemplated in the future to exist in accordance with the face of the L'Enfant and Ellicott maps. While to my mind the line in question is but a demarkation of the tide line, this is immaterial; for it is conceded arguendo that the plan is what it is now decided to be.
One thing, however, is plainly noticeable on the Dermott map, viz. that, while the line which it is now held indicates the fixed purpose to there locate a street is patent, Water street is not named upon the map at that locality, and such a street is only named in a short space from square 1079 to square east of square 1025. How the Water street came to be delineated and named at this particular locality by Dermott is shown by an order made by the commissioners on March 22, 1796, directing the surveyor to 'run Water street to eighty feet wide from square 1079 to square east of square 1025, and run out the squares next to the water and prepare them for division.' In other words, at the one place on Dermott's map where a Water street is specifically stated to exist it is shown that it was the result of a precise order to that effect given by the commissioners. That the commissioners could not have considered that this order cut off riparian rights from the water lots within the area in question is shown by the evidence in the record, which establishes that the lots there abutting on Water street were sold by the commissioners as water lots subsequent to the order referred to, and with water privileges attached. (Square 1067, August 15, 1798; 1079 and 1080, November 9, 1796, and October 24, 1798; east of 1025, December 5, 1798.)
On the Dermott map was noted, as already mentioned, the changes and corrections which had taken place in the intervening time to which I have referred.
The Dermott map also makes clear this fact: That, as by the result of the surveys, in most instances, the measurement of the squares-certainly in front of Notley Young's land-carried them down to, or substantially to, the water line along the river bank, the projected Water street, taking the line as delineating such street, was proposed to be established, in great part at least, in the water.
It seems to me, after what has been said, nothing further is required to show that, granting that the line on the Dermott map was intended to indicate a proposed street, it was not thereby the intention to abolish the distinctive characteristics of water lots and the riparian privileges which were appurtenant to them. Dermott himself was familiar with all the previous transactions, having been in the service of the city from early in 1792. He had made changes as reported in the situation of particular pieces of property, in order to preserve the riparian rights, and give them fruition. He stated to the commissioners in 1799 (long after it is alleged his plan was approved by Washington) that riparian rights had been the basis of purchases, and that assurances and explanations as to their existence had caused purchases to be made which otherwise would not have taken place. He had supervised the division in Carrollsburgh, which preserved the riparian rights. In other words, he had dealt with the whole matter, as an officer of the city, upon the assured assumption of the existence of the riparian rights attached to water lots. In no instance, except in a few cases of an exceptional character, had he questioned such rights. And when, in 1799, he gave a summary of the prior dealings of the commissioners in relation to water property,-as to which, as stated, he was personally familiar,-he observed, after stating that in some special instances squares touching or binding upon the water were not given the privilege of wharfing, in which case they were sold, and divided as upland lots, he said as a sure criterion that a lot was a 'water lot,' and, as a corollary, was entitled to 'water privileges'; that, 'where squares were entitled to water privileges, in the sales these were sold by the front foot, or the privilege generally mentioned to the purchasers.' Under these circumstances, to suppose that the line drawn, on Dermott's plan, along the river, whether it indicated a projected street or the line of tide water, was intended to cut off the riparian rights, would attribute to him a conduct so inconsistent, not to use harsher words, as to be beyond explanation. And when the approval by President Washington of the Dermott plan is weighed, it strikes me as an express sanction by him of the existence of the riparian rights and wharfing privileges, as attached to water lots, especially in view of all the transactions to which reference has been made, and particularly in view of his language in approving the wharfing regulations, in which he said: 'If the proprietors of water lots will be satisfied with the rules therein established for the extension of wharves and buildings thereon, the regulations will meet my entire approbation.'
During this period occurred the controversy between Nicholas King and the commissioners, which led to a communication on June 25, 1798, which it is claimed contains language importing generally that the commissioners denied that wharfing privileges attached to a lot when separated from the water by a street. But this inference, in view of all the circumstances, is unwarranted. Mr. King left the employ of the city in September, 1797, and thereafter looked after the interests of some of the original proprietors. As representing Robert Peter, he wrote to the commissioners on June 27, 1798, urging, in substance, that the wharfing regulations should be made more definite and complete. He enumerated a number of water squares owned by Mr. Peter as entitled to riparian privileges, and, without expressly declaring that square 22 was a water square, suggested that the dimensions of that square as then platted should be enlarged, rather than that a new square should be formed from the low ground on the south; thus implying that the square as enlarged would be bounded on the water side by a street. In answering this communication, the commissioners said, in reference to square 22:
'With respect to square No. 22, we do not conceive that it is entitled to any water privileges, 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.'
That the commissioners did not intend to assert that a merely projected street appearing on a plan of the city would take a square adjacent to the water out of the category of water property is evident from the fact that they did not dispute Mr. King's assertion that the other squares enumerated in his letter which were bounded, on the plan of the city, on all sides by streets, were possessed of ripariau privileges. The commissioners evidently assumed that there was fast land of the entire dimensions of a street south of square 22, and also other fast land between that street and the water, and that the particular locality justified treating square 22 as upland property, and called for the creation of a new square to the south. It is to be remarked, also, that the commissioners were dealing, not with wouldbe purchasers, but with the representative of the former proprietor, with whom it was competent to agree that, in view of circumstances, such as stated, a square might be laid partly in the water below a street, which square should be the 'water square' to which the riparian privileges should attach. As these very commissiners, about this very time, sold lots as possessed of riparian privileges where a street was contemplated towards the water, and where some fast land existed (as in the case of squares 1,067, 1,079, 1,080, and east of 1,025, to which we have already referred as facing that portion of Water street expressly named on the Dermott map), it is evident that the statement in question was not meant as a general declaration in the broad sense which might be ascribed to it if the circumstances under which it was made were not considered.
The examination of the events which transpired in the second period is concluded with mentioning that the commissioners at various times made reports to the president, by whom they were transmitted to congress. In each of these reports they gave a statement of the public property in the city of Washington, distinguishing between 'upland' and 'water' property, describing the latter by the number of feet frontage on the water, and stating the average price which had been realized on the sales of water lots in the past by the front foot. This latter was a criterion which Dermott had previously declared to the commissioners was one of the conclusive tests for determining whether a lot was entitled to be classed as a water lot possessed of riparian rights and wharfing privileges. In none of these reports was the claim made that the public possessed all riparian rights as appurtenant to an existing or proposed street. Certainly, such a claim would have been advanced, especially as the reports in question were made with a view to legislation authorizing the borrowing of money on the security of all the public property. The same remarks also apply to the forwarding of a copy of the plan of the city, in the same period, to a firm in Amsterdam, through whom the representatives of the city were endeavoring to negotiate a loan. The public property was marked upon that plan, but no intimation was given of the existence of riparian rights distinct from the squares appearing upon the plan. Can it be considered that, when all the public property was being tendered as a security for money proposed to be borrowed, so valuable a right as the entire wharfing privileges and riparian rights of the city, if believed to be concentrated in its hands as appurtenant to a proposed street, would not even have been referred to or tendered in order to aid in the consummation of the desired loan?
The facts which I have reviewed are not the only ones establishing the universal admission and acceptance of the existence of riparian rights as attached to water lots during the period examined. any others tending in the same direction are found in the record, and are not referred to because they are merely cumulative. Among one of the facts not fully reviewed is the presumption which it seems to me arises from the book described as the 'Register of Squares,' The importance and sustaining power of the results of this book are substantially conceded by the court, but it is held that the book ought not to be treated as controlling. Grant this to be so, yet the power of the implications resulting from the book, when considered in connection with the other proof to which I have adverted, seems unquestionable. The book, however, is not reviewed at length, since it simplifies examination to refer only to such matters of proof as are unquestioned in the record, and are undenied in the opinion of the court; and all the facts which I have above stated come under this category.
By these means, which have been merely outlined, the difficulties which beset the establishment of the city were overcome, and the seat of government at the time provided in the act of congress was transferred to its present location.
Before passing to the third period of time, it seems to me well for a moment to analyze the situation as resulting from the events which have been narrated. One or two considerations arise by necessary implication from them: Either that all parties concerned in the foundation of the city contemplated that a space should separate the building line from the wharves, so as to have free communication along the river front, without impairing the rights of the owners of the water lots; or that they contemplated a street, the fee of which would be in the public along the whole river front, and, ignorant of the legal consequence of such a street, proceeded to dispose of the greater part of the water lots upon the express understanding that ripalian rights would attach across the street just as if the street had not been contemplated, and that upon this understanding everybody contracted, and the rights of every one were adjusted and finally settled. For the purpose of this dissent it becomes wholly immaterial to determine which of these propositions is true, because, if either be so,-as one or the other must be,-then the riparian rights, in my opinion, should be adjudged to exist. It seems to me, however, that the first hypothesis is the one naturally to be assumed. It must be borne in mind that L'Enfant, the engineer selected by President Washington to draw the plan of the city, was a Frenchman. It is in evidence that he requested Mr. Jefferson to send him plans of European cities, and that his request was complied with. Thus Mr. Jefferson wrote: 'I accordingly send him by this post plans of Frankfort-on-the-Main, Carlsruhe, Amsterdam, Strasburg, Paris, Orleans, Bordeaux, Lyons, Montpelier, Marseilles, Turin, and Milan, on large and accurate scales, which I procured while in those towns, respectively.' The fair presumption is that L'Enfant's request of Mr. Jefferson was the result of a previous communication to him by Mr. Jefferson that he possessed the desired information, for it is impossible to conceive, with all this information in his possession, that Mr. Jefferson, who must have come in contact with L'Enfant, would not have stated to him the fact. It is also fairly to be assumed that, as Mr. Jefferson had procured in person, when abroad, the plans of all these foreign cities, that he was looking forward to them as means of information and guidance to be used for the future federal city; otherwise, he would not have undertaken such a labor. That Mr. Jefferson was familiar with the plans is, of course, manifest, for with his phenomenal faculty of reaching out for sources of information on all subjects, and storing his mind therewith for future use, it is impossible to conceive that he had not vividly before him the method by which the cities in question were laid out. Now, it is especially to be remembered that every one of the cities mentioned by Mr. Jefferson, the p ans of which he had forwarded, were on the continent of Europe; that is, were situated in countries governed by the general principles of the civil law. By that law, while lot owners fronting on a navigable river have the enjoyment of riparian rights, this right vested in them is subject to what the civilians denominate a 'legal servitude'; that is, an easement, by which they are compelled to leave around the entire river front an open space or way, in order to afford convenient access to the water by the public. While this open way may be used by everybody, it does not cut off the riparian rights, but is simply superimposed upon those rights, the lot owner having the enjoyment of the rights, but being obliged to furnish the open space which the public may use. Rev. Civ. Code La. art. 665; Dubose v. Commissioners, 11 La. Ann. 166; Code Nap. art. 650, and note to the article in question in the Annotated Code by Fuzier-Herman (Paris, 1885) p. 880.
Is it not natural to presume, in view of the country from which L'Enfant came, in the light of the plans which Mr. Jefferson sent him, and of the knowledge which Mr. Jefferson had acquired of these plans, and by the personal investigation which he had made in procuring them, that the L'Enfant plan but exhibited the principle of legal service as embodied in the civil law? When one looks at the L'Enfant plan, and bears in mind the civil-law rule, it strikes me that the plan but illustrates and carries out that rule.
Strength is added to this view by considering the Maryland law of 1791 conferring authority upon the commissioners to regulate wharfage, and giving other directions as to the city. That law was passed at the request of the commissioners, preferred at a meeting held when Mr. Jefferson and Mr. Madison were present. It may properly be assumed that the draft of so important a law was, before its passage, submitted to President Washington and his advisers. Now, the Maryland statute contains two provisions, then and now existing in substantially all civil-law countries, but at that time not usual in countries controlled by the common law; that is, a provision for a builder's lien, and one directing that houses or buildings should be erected in accordance with the rule of party walls. Was this then new departure discovered by a member of the Maryland legislature, or was it not rather suggested because it prevailed in the continental cities, the mind of Jefferson being then directed to the rule in those cities, as it was upon the plans prevailing in them that the proposed capital was to be laid out? This view is greatly fortified by the wharfing regulations, which were formulated by the commissioners and approved by the president. It will be seen that they provided that, when a wharf was to be extended by the proprietor of a water lot, a space should be left for a street wherever the general plan of the city required it, and at intervals of 300 feet a space of 60 feet should be left for new streets. There is an analogy between the regulations in question and section 38 of the French ordinance of 1669 on the same subject. Code Civil, by Fuzier-Herman (Paris, 1885) p. 880, note 1 to article 650, where the text of the French ordinance is stated in full.
But we are not left to mere resemblance on this subject, for there exists the express declaration of the commissioners to the effect that they considered that the continental rule governed in the plan of the city as to the wharves, which declaration was, in effect, approved by Washington himself. After the proposed wharfing regulations had been submitted to the president, and while they were under consideration, the complaint of Mr. Barry was made, to which reference has been made, and the letter was written by the commissioners to the secretary of state regarding such complaint, and explaining the nature thereof. Now, in that letter, in giving their reasons why, by the regulations which they finally submitted, the commissioners had restricted the erect on of buildings on the wharves, they referred to the open space, and added, 'Which we presume it was the intention of the executive to keep open to the wharves, as in the case in Bordeaux, and some other cities of Europe.' This must have been derived from an antecedent knowledge of the purposes of the plan. It must have been approved by Washington, for it is impossible to believe that with this important explanation made to the secretary of state for submission to the president, when he was considering whether he would approve the regulations, he should not have corrected such a misapprehension, if it was such. Besides, the general conditions involved in the foundation of the federal city persuasively indicate why Washington and Jefferson and Madison should have established the city upon the continental plans, with which not only Jefferson, but L'Enfant, was familiar. The contracts with the proprietors required an equal division, those with the lot owners in Carrollsburgh and Hamburgh an allotment of onehalf the quantity of their former land in a like or as good a situation. An the laying off of a street so as to take away the riparian privileges of former water-lot owners would be incompatible with an equal division or one in like situation, there was a serious difficulty in so doing. On the other hand, not to keep an open way for public access might well have been conceived as injurious to the public interests. The theory of an easement furnished a ready solution for this otherwise insuperable difficulty. It afforded an apt means of protecting all the rights of the water lot owners by preserving their riparian rights and wharfing privileges, and at the same time it afforded full protection to the rights of the public by keeping an open space on the water front, subject, it is true, to the exercise of riparian rights, but in no way interfering with public utility. Another consideration bears this view out. That it was hoped that the means for establishing the city to be derived from the sale of lots would be readily aided by the purchase of lots by residents of France and Holland is shown by the record, for among the first uses made of the engraved plan was to send copies thereof to the continent, in the hope of stimulating there a desire to purchase; and the record shows that a member of the Amsterdam firm heretofore referred to actually purchased lots in the city with reference to the plan. Now, the sagacious men who were Washington's advisers must have seen at once that the plan preserving the riparian rights, and giving access at the same time to the river front, in accordance with the system which, it may be assumed, existed in the countries where it was hoped that money would be obtained, was much more likely to accomplish the desired result than the adoption of a contrary plan.
But the strongest argument in support of this theory of the purpose of Washington and the object contemplated by the plan is that, if it be adopted, all the facts in the record are explained, and rendered harmonious, one with the other. The plans over which controversy has arisen all then coincide. The reason why so much of Water street was laid in the water becomes apparent. The contracts for the sale of water lots with riparian rights attached, the reports of the surveyors, and the action of the commissioners, all blend into a harmonious and perfect whole, working from an original conception to a successful consummation of a well-understood result. The contrary view produces discord and disarrangement, and leads to the supposition either that the plan of a street, cutting off riparian rights, was devised in ignorance of its legal result, and, of course, I have not the audacity to make such suggestion as to Washington and Jefferson and Madison, and Mr. Justice Johnson of this court, and all the other wise men who lent their aid to the establishment of the city,-or that the plan of the street, in that sense, having been devised, it was at once departed from because i was discovered that it was not only in conflict with the rights of the lot owners, but also would destroy the sale of the water lots; hence all the contracts and dealings and declarations to which I have referred ensued. But if the meory that the plan of establishing an easement was adopted be not true, and it be conceded that it was the intention to lay out a street, in the fullest sense of that word, which would cut off the riparian rights, such conclusion, in my judgment, would not at all change the result in this case, for in that event of submit that the contracts and dealings and representations and admissions upon which the lot owners dealt, and upon which everybody acted in changing their respective positions, brings into play the principle of estoppel, and compels, in accordance with the elementary principles of equity, that the riparian rights and rights of wharfage which were bought and paid for, and which were solemnly declared to exist in every conceivable form, should now be respected.
It would thus seem from the events of the two periods that the riparian rights of the water-lot owners were conclusively established, and that it is unnecessary for me, in considering the last and final period, to do anything more than to state that nothing therein occurred by which the water-lot owners abandoned, or were legally deprived of, their rights. But, from abundant precaution, let me, in a condensed form, refer to the events of the third period, simply to show that the riparian rights of water-lot owners continued to be recognized down to so recent a period as the year 1863, and were not thereafter interfered with in such manner as to give even color to the contention that the rights were transferred to the government.
3. Events subsequent to March 2, 1797.
The legislation by congress and the municipality of Washington with respect to wharfing practically constitutes the only facts necessary to be considered in any review of this period. That legislation, I submit, until a comparatively recent date, in no wise imported a denial of private ownership of wharfing rights as attached to water lots, but, on the contrary, establishes their existence.
I first premise as to the existence of public wharves.
On one of the water lots of Hamburgh there existed in June, 1794, what was termed the 'City Wharf.' On the plat of survey of square 89 this wharf appeared, on lot 10, as 'Commissioners' Wharf.' Lot 10 was retained for the public. On January 26, 1801, the proceedings of the commissioners recite that a 'representation,' which was set out, had that day been sent to the president. In it the public property of the city was enumerated, and in the course of such enumeration the statement was made that 'four wharves have been built at the expense of $3,221.88, which remain in a useful state.' As I have heretofore shown, a number of private wharves had been built prior to 1800, three of which appear on the Dermott map, but in the representation no claim is advanced that such wharves were public property.
The act of congress of May 1, 1802 (1 Stat. 175), abolished the commissioners, and vested their powers in a superintendent. The act of May 3, 1802 (1 Stat. 195), incorporated the inhabitants of the city. In 1802, as we have seen, there were at least four, and perhaps five, wharves, which were owned by the public. While authority was given to the corporation of Washington, by the act of May 3, 1802, to 'regulate the stationing, anchorage, and mooring of vessels,' no authority to license or regulate the building of wharves was given. Presumably, as to private wharves, the regulations of 1795 were deemed to be in force.
I pause here to interrupt the chronological review of the legislation as to wharfing, to call attention to a report bearing date September 25, 1803, made by Nicholas King, as surveyor of the city, to President Jefferson, on the subject of a Water street and wharves, simply because this communication is referred to in the opinion of the court. It is submitted that on the face of the communication, instead of tending to show that there was question as to the existence of the wharfing rights, it, on the contrary, expressly asserts their existence, and relates only to their definition and regulation. Indeed, the main purpose of the communication seems to have been a complaint that the wharfing regulations as originally proposed should have been approved by President Washington without striking out the clause which forbade the wharf owners from building on their wharves. And all this becomes very clear when it is considered that Surveyor King, by whom the letter was written, was the same person who in previous years had avowedly asserted the existence of riparian rights in favor of a former proprietor, Robert Peter, and made claim in relation thereto.
The act of February 24, 1804 (1 Stat. 254), gave 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.' While, under the authority conferred 'to preserve navigation,' private wharves could have been regulated, manifestly no such power could have been exercised under an authority to 'erect and repair and regulate public wharves.'
That private wharves were not regarded as public wharves is clearly evidenced in the ordinance of July 29, 1819 (Burch, Dig. 126), passed under the authority granted by the act of 1804 'to preserve the navigation of the Potomac.' The act reads as follows:
'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 appear 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.'
How and where, may I ask, did the private wharves originate, of no such wharves existed?
That the authority conferred with respect to public wharves was not supposed to vest power over all wharves is also indicated in the act of May 15 1820 (3 Stat. 563), which expressly distinguished the two classes. 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.'
The distinctive character of private wharves was still further recognized in the act of the city councils of May 22, 1821 (Rothwell's Laws D. C. 275), by section 1 of which the mayor was authorized and requested 'to appoint three intelligent and respectable citizens, not being wharf owners, as commissioners to examine and report to the two boards a suitable plan to be adopted for the manner of erecting wharves upon the shores of the Anacostia and Potomac rivers.'
And by section 2 the mayor was solicited to wait upon the president, and to request his appointment of such persons as he might deem proper, to co-operate with those commissioners.
Again, by resolution of the councils approved September 3, 1827, it was enacted 'that a committee of two members from each board be appointed to act, in conjunction with the mayor, in regulating the mode of erecting wharves,' conformably to section 2 of the act of councils approved July 29, 1819.
Similar recognition of private ownership of wharves is contained in the resolution of the councils of March 19, 1823, which established 'as fish docks,' among other sites, 'the steamboat wharf on the Potomac, near the bridge ov r the Potomac, and at Cana's wharf.'
That the preservation of navigation was the controlling object in the regulation of private wharves is very distinctly evidenced in the act of councils approved January 8, 1831, which, in section 6, repealed the act of councils of July 19, 1819, and in the first section enacted as follows:
'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 of 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 from 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.'
Four years after the enactment last referred to, a slight controversy was precipitated as to the existence of rights of wharfage as attached to water lots on the Potomac river between the Long Bridge to the Arsenal Grounds. On April 13, 1835, a resolution to the effect that the city had never attempted, and, without injury to the general interests, could not admit, the existence of 'water rights' of individuals between the Long Bridge and the Eastern Branch, was indefinitely postponed. A Mr. Force, then a member of the lower board of the city council, protested against the action thus taken. We have seen how unfounded was the assumption contained in this proposed resolution. In 1839, however, Mr. Force, as mayor of the city, approved a plan of William Elliott for the establishment of Water street, and for the regulation of wharfing thereon. I shall, as briefly as possible, outline the history of the plan:
As surveyor of the city of Washington in 1833, William Elliott (the subject of 'water privileges' then being before the councils of the city) suggested to William A. bradley, mayor of the city, 'that system' which was deemed by the former 'best for securing those privileges in the most equitable manner amongst those who own property facing on Water street, as well as securing the public rights.' It was proposed by Elliott, in his plan No. 2, that Water street, besides being conformed to certain particular outlines, be rendered everywhere not less than 100 feet in width between the Long Bridge and the then Arsenal Grounds, and that the construction of wharves and docks-of wharves, by individuals owning lots on the north side of Water street, and of wharves or docks, by the public, opposite public appropriations, or the ends of streets terminating at the north line of Water street-between that bridge and those grounds be governed by the principle that the Water street front of any such lot, appropriation, or end of street should furnish it a channel front only in the proportion existing between the total frontage of Water street, estimated at 5,280 feet, and the chord, estimated at 5,050 feet, measuring the total channel front, between the Long Bridge and the then Arsenal Grounds. The plan was described on its face as of that part of the city 'exhibiting the water lots and Water street and the wharves and docks thereon, along the Potomac, from E to T street south.' It assigned, in the ratio proposed by Elliott, to every square on the north side of Water street a wharfing site from the south side of that street to the 'edge of the channel' of the Potomac, and to public appropriations and the ends of streets terminating at Water street sites for docks or other like uses. It represented Water street as of varying width, and reduced, on its southern limits, to a curve lying parallel to that describing the edge of the channel; and the squares on the north side of Water street, to which wharfing sites are a signed, are designated as 'water lots' on the face of the plan. A more complete recognition of the pre-existing riparian rights of the water-lot owners than is shown on and established by this plan my mind cannot conceive.
On February 22, 1839, the city councils adopted the following resolutions:
'Resolutions in relation to the manner in which wharves shall be laid out and constructed on the Potomac river:
'Resolved, that the plan No. 2, prepared by the late William Elliott in eighteen hundred and thirty-five, while surveyor of the city of Washington, regulating the manner in which wharves on the Potomac, from the bridge to T street south, and the plan of Water street, shall be laid out, be, and the same is, adopted as the plan to be hereafter followed in laying out the wharves and the street on the said river: provided, the approbation of the president of the United States be obtained thereto.
'Resolved, also, that the wharves hereafter to be constructed between the points specified in the said plan shall be so built as to allow the water to pass freely under them; that is to say, they shall be erected on piers or piles from a wall running the whole distance on the water line of Water street.' Sheahan's Laws D. C. 178 (an. 1857).
These resolutions were approved by the mayor of the city, Mr. Peter Force.
Before their passage, and on February 15, 1839, Secretary of the Treasury Woodbury, afterwards a justice of this court, had referred plan No. 2 of William Elliott to William Noland, commissioner of public buildings, and (intermediately) the successor in office of the commissioners, for the opinion of that commissioner upon the judiciousness of the improvement contemplated in the plan.
On February 21, 1839,-the day following the passage of the ordinance,-Mr. Noland, acknowledging the receipt of the plan, and returning it to the secretary, reports 'that after due deliberation' he believes 'the improvement proposed would be judicious and proper.'
On February 23, 1839,-the day following the passage of the resolutions,-the plan, approved by the president, was transmitted by Mr. Woodbury to Mayor Force.
When it is considered that up to the time when the Elliott plan received the approval of President Van Buren, Water street, though contemplated, had not been further laid down than by the establishment of the upper boundary or building line, this action manifestly possesses great significance. The fact that action with respect to Water street was incomplete was expressly stated by Atty. Gen. Lee in his opinion to President Adams on January 7, 1799, when he said, referring to the Dermott map:
'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 that is to be next to the water courses. * * * The laying off of Water street, whether done in part or in whole, will stand in need of the sanction of the president.'
As in the president of the United States, therefore, was vested the authority to complete the plan of the city in any particular in which it was defective, the approval of President Van Buren may properly be referred to the exercise of that power, and as entitled to be regarded as a distinct declaration that Water street was not to have the operation now asserted of devesting the water lots fronting towards the river on Water street of riparian rights. From Washington, then, to Van Buren, in every form in which it could be done, the riparian rights of the lot holders have been continuously and solemnly sanctioned. I cannot now, by any act of mine, destroy them on the theory that they have never existed.
On May 26, 1840, a permit was issued by Mayor Force, by virtue of the act of June 8, 1831, to William Easby, to wharf in front of some of the water squares which originally formed part of the land of Robert Peter, situate on the Potomac river, near Rock Creek. I set out in the margin the document referred to which exhibits that it was for an unlimited time, and with no provision that the wharf should revert to the government as in permits of very recent date.
That on May 25, 1846, a committee of police, of the lower part of the city councils, presented to that board a report which, in effect, denied the existence of private rights of wharfing, may be conceded. Like the resolution of 1835, it was based upon a superficial inquiry into the subject, and, like its predecessor, the resolution of 1835, was 'laid upon the table.' Various acts of the city council, one dated March 8, 1850, another September 30, 1860, and the other May 3, 1866, appropriating in the aggregate $2,600 for the repair of sea walls along the Potomac at points between the Long Bridge and the Arsenal Grounds, are set out as evidence of an assertion by the city of the right of ownership to all the riparian privileges in that locality. I am unable, however, to see that these circumstances are entitled to the weight claimed for them. Under the wharfing regulations of 1795 the ultimate cost of making a Water street was to be borne by the city, and a sea wall may well be treated as part of such street. The evidence in the record also shows that a goodly portion of the sea walls along the Potomac in the locality referred to was built opposite to the water lots on the north side of Water street, and by the owners of such lots; and that some of such owners had graded Water street in front of their lots, in order to the exercise of their wharfing privilege. There is nothing in the record to support the claim that, if the city had at any time constructed a sea wall, it claimed that the wharfing privileges in front of such wall had been taken away from the opposite lots. And the ordinance of the city councils of February 22, 1839, adopting the plan of William Elliott, clearly rebuts such an inference, for it is there provided that wharves thereafter 'to be constructed' should 'be erected on piers or piles from a wall running the whole distance of the water line of Water street.' In other words, although in the most solemn form it was declared that the owners of the water lots should enjoy their wharfing rights by extending their wharves from the sea wall towards the channel, yet it is now argued that the construction of the sea wall destroyed the right of the lot owners to the wharves built by them in accordance with the provisions of the ordinance.
That since the act of March 13, 1863, referred to in the opinion of the court, various enactments have been passed by the corporation or its representatives, asserting power in the nature of private ownership over the wharves on Water street, and not merely the possession of power as trustee or the purposes of public regulation or the protection of navigation, may be conceded. But it is not claimed, not does it appear from the evidence, that there has been such interference with or disturbance of the actual possession of the rightful occupants as would constitute an adverse possession in the city operative to bar the lawful claims of the real owners of the wharfing privileges. Similar observations are also applicable to the licenses issued by the chief of engineers for the time being during a part of the period last referred to.
It is not necessary to review the evidence showing the unequivocal possession enjoyed by the wharf owners up to this time, or to state the proof as to the expenditures of time, labor, or money by the owners of the water lots along the Potomac river, upon the faith of the wharfing regulations and the possession of riparian privileges,-the filling in by them of Water street, the erection of sea walls, the filling in of parts of the bed of the river beyond Water street, as well as various other expenditures. Indeed, so self-evident are these things that the court deems it proper that the defendants should be compensated by the government before being ousted of the possession of such improvements as wharves and structures thereon. If the demands of equity require that the structures be paid for by the government, far greater and stronger is the reason for concluding that the right of property, on the faith of which the structures were made, should not be denied or taken away without just compensation. Neither equity nor reason are subserved, it seems to me, by protecting the mere incidental right while uprooting the fundamental principle of property upon which the incident depends.
Having, in what has preceded, fully expressed my view of the existence of the riparian rights as developed from this record, it remains only to consider certain previous decisions of this court relied upon and referred to in the opinion of the court. Nothing in the views above expressed is in any way affected by the case of Van Ness v. City of Washington, 4 Pet. 232. That case determined that the public streets in the city of Washington were public property. But the question in this case lies beyond that, and is: First, was there a public street proposed around the entire river front, or a mere creation of an easement superimposed upon the riparian rights? or, second, granting there was such public street, in view of the contracts between the original proprietors of the division of the squares and lots, and of all the contracts and dealings, can the government be heard, in a case of the character of that before the court, to deny the existence of riparian rights and rights of wharfage in the owners of water lots fronting on the alleged street? True it is that in Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 672, 3 Sup. Ct. 445, and 4 Sup. Ct. 15, the question whether a lot fronting on the Potomac river, lying in that portion of the city formerly constituting the land of Notley Young, had riparian rights, was considered and determined adversely to the lot owner on the ground that the lots being bounded by Water street on the return and plat of survey were thereby separated from the river, and hence not entitled to riparian rights. An I have said, from the principle of law therein enunciated I do not dissent, but rest my conclusion on the facts as they are disclosed in this record. That many of the facts which have been considered and stated were not present in the record in the case, is patent from the opinion in that case. Certainly, however, it is not contended that the defendants in this record were either parties or privies to the case there decided. A conclusion on one condition of fact is not binding as to another condition of fact between different parties in a subsequent lawsuit. I cannot bring my mind to adopt the inferences deduced by the court in the case just referred to, in view of what I conceive to be t e absolutely conclusive proof establishing the existence of riparian rights in favor of the owners of water lots in the city of Washington. To deny them, it seems to me, in view of the record now here, as was said at the outset, would be an act of confiscation. Of course, this is said only as conveying my appreciation of the facts.
As it is beyond my power by this dissent to enforce the rights of the owners of water lots to riparian wharfing privileges, it would serve no useful purpose for me to measure the claims of such owners by the principle which I have endeavored to demonstrate; that is, the existence of the riparian rights. Suffice it for me to say, therefore, that, in my judgment, even granting that such rights exist, the owners thereof would not be entitled to compensation if the right was impaired or destroyed as the consequence of work done by the government in the bed of the river for the purpose of improving navigation, for all riparian rights are held subject to this paramount authority. As a consequence, if injury resulted to riparian rights in the exercise of this controlling governmental power, such injury would be damnum absque injuria. But I think that where it is simply proposed, as is the case with many, if not all, the lots between the Long Bridge and the Arsenal Grounds, to appropriate the riparian rights simply by an arbitrary line running along the edge of the water on the map, thereby cutting off all wharves and buildings thereon upon the theory that none of the riparian rights segregated by the line were private property, this is but an appropriation of private property, requiring just compensation. By these general principles, in my judgment, the rights of the parties should be determined.
Mr. Justice PECKHAM, concurs.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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