The evening times. [volume] (Washington, D.C.) 1895-1902, 1901-08-10
TO REMOVE A PROJECTION.
An Opinion Concerning Private Use
Of Public Space.

Ar. DuyaII Advises the Commission
ers Rs Co the Mode of Procedure 10
Obvinte EncrOachmcntS - Present
Case Involves Two Bay windows.
Andrew b. DuvaII. the Attorney for the
District. today submitted 10 the Commits
sioners an opinion relative to the en-
CroaChment Of the house of Barbara
Clements upon the public space at the ir-
tcrsectiou Of Maryland Avenue and IA
streets northeast. The matter was refer
red 10 the Attorney FOR advice as to the
proper legal procedure in this and SINH
lar cases Of unauthorized occupancy Of
public space by buildings or parts thereof.
10 app ars that the case under cousidera-
tion arose through an application of the
owner for a permit for a projection. The
Attorney says.
"On May To. 1850. the inspector notified
the owner as follows. The two bay-win-
dows erected by YOU under permit 1867.
April g. 1880. have been discovered by an
official survey TO be in excess of the Iimi-
tation allowed in the permit The en-
croachment upon public space is ten feet
more or less from the building line of
Mary Hand Avenue. You are. therefore. no
titled etc. Following this she was prose
cutcd IL the Police Court upon the charge
of constructing two bay windows without
permit. and 10y the verdict Of a jury she
was acquitted.
From the enclosed statement Of the
Inspector. il appears that at the trial
evidence Of a rather indefinite character
was introduced; that more than twenty
years ago the property lines had been
furnished by the Surveyor for this house
or other houses on the same building line.
this was claimed as the origin Of the
mistake. If this was the fact the evil
dence Of IL would be the certificate Of
the Surveyor as provided in section 4S5,
Revised Statutes. District Of Columbia,
OF the record Of it as in section $50 As
Stunning, however. that such certificate
was given, while il might constitute a
defence TO a criminal charge involving
knowledge or intent on the part Of the
owrar, il would not affect the right to
continue the encroachment-
The only right TO continue such an
encroachment on public space must be
by prescription or estoppeI. But there
can be no right by prescription TO main
tain public nuisance. II any right by
prescription has been acquired II is a Ii
tie I'm fee TO the land encroached upon
The title TO the street. however. is in the
United States; and no use however long
permitted by the municipal authorities
could take the title out Of the United
States
There are, in my judgment two sufi-
cieut reasons Why there could be no es-
tOppel in this case first the knowledge
OF the true line was open 10 the owner as
well as TO the District. and where both
parties stand on equal footing there can
be no estoppel; second. the municipal au-
thOrities could not deprive either the
United States OF the public OF title 20
public street OF the right 20 use the same.
II is plain that the act Of Congress. ap-
proved March 3. 1891, confirming certain
permits for extensions can have no ap-
pIication in this case. because no permit
10 extend beyond the building lines. ex-
cept as TO the bay windows. Is claimed
The extension, It seems to me. resulted
from "a mistake as to the location Of the
true building line
II had the h0sOr on May o. 1901 TO ad-
wise geeurally on the subject Of illegal oc-
cuuatlou or public space and the charac-
ter and effect OF a mere license therefor
from the municipal authorities. and i beg
lsaEt TO call your attention 10 the discus
sion OF the matter contained in the opin-
ion then rendered.
AS TO the procedure in such a case as
the one under consideration where the
occupation Of public space is by a build
Inc OF part of a building which has eX-
. lsted TOT several years, the preferable
course would be 10 file q bin ia equity
FOR a mandatory injunction requiring the
owner 20 remove the structure from the
public space. The decree in such case
would provide for the removal Of the
. structure by the public authorities unless
removed by the owner. Whether such a
Tin should be filed in the name Of the
Commissioners or by the United States
IS matter Of some doubt
81 am inclined to the opinion that
bin I'm the name Of the Commissioners in
behalf Of the public. would be- maintain
. able. In the case Of the occupation of
street by a structure erected under a
license from the Commissioners in terms
revOcabie the Court Of Appeals. District
Of Columbia, in Mcbride vs.. Ross. Il al
said
" They have the power 20 maintain this
suit as Commissioners and the governing
. officers OF the District Of Columbia be-
. cause they are. by existing laws. as We
have seen. invested with the control and
regulation Of the public streets Of the
city of Washington. with certain excep-
tious i'm which the street in question is
not Included. In addition TO this a re-
. cent act Of Congress expressly transfers
70 and vests in the Commissioners the
jurisdiction and control Of the street park
ing In the streets and avenues 80 Stat
$50
Marine Band Concert.