The times. [volume] (Washington [D.C.]) 1897-1901, 1901-04-04
AFFAIRS OF THE DISTRICT
The Attorneys Opinion on a Per-
nit TO Fence a Street.
An Application to Replace Houses in
the Line of Certain Tboroughfares
ALLEY in square 651 Is Public
Arrears of Taxes Since 1851.

Andrew B. Duvall, the Attorney for the
District yesterday submitted to the Com
missioners his opinion upon the applica-
ton of j. Maury Dove for permit to re-
place certain frame structures and TO re-
build fence on the line of Street
northwest all of which were recently de-
stroyed by fire. This application was re-
ferred to the Attorney at the instance Of
the Inspector of Buildings. In his state
ment it was set forth that the buildings.
if erected, would occupy part of Twenty
seventh Street and G Street extended to
the Potomac River. The Attorney gives
the following outline of the case for the
information of the Commissioners:
'.The applicant is the lessee of these
premises; his landlords are the heirs of
Samuel Stott, deceased, who claim to
have acquired the property with its i'm
provements, water rights, privileges, etc,
In 1877 at a sale by Mcclellan & Dodge,
trustees, under deed of trust executed
by Morgan & Rinehart. II is recited in
the deed from the trustees. which was re-
corded in Liber sec. folio 81, of the Land
Records, that the ground conveyed was
taken up and filed up, and reclaimed
from the river in front Of their proerty
by the said Morgan & Rinehart in or
about the year 1858, in accordance with
building regulation No. of July 20, 1I9o,
pertaining thereto, said property having
been held, used, and occupied by them
and their assigns since that date, and the
margin of the river being at that date in
side of the aforesaid lots.
."Twenty-seventh Street is laid out on
the original plat of the city of Washing
ton as a public street
Mr.. Duvall reminds the Commissioners
that prior to 1865 portion of lots and g.
in square 3, and land within the lines Of
Twenty-seventh Street, were filed in and
reclaimed by Morgan & Rinehart under
the supposed authority of the Building
Regulations After quoting regulation
No. 4 the Attorney continues:
THE present application raises the
question of the authority and power of
the Commissioners TO grant a permit to
erect a fence across Twenty-seventh
Street and TO build structures within the
lines of the said street. a
1T is claimed by the attorneys for
Mr. Dove and the Stott heirs, that the
Commissioners have authority under the
circumstances of this case to issue such
a permit: that until the public inter-
ests require the actual extension of
Twenty-seVent. Street and until the pub
lie is ready to pay the expense of the
making Of so much of the made land as
may be required for the street, the Com
missloners have no authority to refuse
the desired permit.
1T appears that from 1871 to 1899 the
entire area of the reclaimed land west
of square 8 including the area within the
lines of TWenty-seVenth Street, was as
sessed in the name of Samuel Stotts
heirs, and that they had paid taxes there
on during that time; but since 1890, the
area OF the land within the lines of
Twenty-seVenth Street has beea eX-
empted from taxation.
THE contention is that the rights of
these occupants are as great as those of
the occupants of the wharf property in
volved in the Potomac Flats case-United
States against Morris ct al, ia L. s.,
Ig5-wherein the Supreme Court of the
United States held that the occupants
having been in possession Of Government
land under license they were not to be
treated as trespassers. and that the Com
missioners seemed disposed to grant per-
mits to repair wharf structures en-
braced within that case in order to re-
move condition Of danger.
But the Supreme Court in that case
based its decision In reference to such oc-
cupants upon the express terms of the
act of Congress approved August 8, 1856
ga Stat, 1855, under which the proceed
ings were taken. 1T said:
% Those who, relying, some of them, on
express and others on implied licenses
from the city authorities, have erected
and maintained expensive wharves and
warehouses Tor the accommodation OF the
public. are not to be treated, as we read
the will of Congress. as mere trespassers.
That such is not the intention OF
Congress we infer, not merely from the
fact that. by the act Of 1856, the enquiry
was submitted to a court of equity and
not court of law. but from the express
language of the act.
The basis OF the claim OF the occu-
pants IN this case. 1t seems, Is building
regulation No. above quoted. The Su-
preme Court in the case cited said in ref
erence to that regulation:
e 1t will be seen that. In publishing
these regulations. the Commissioners
claimed no authority in themselves, but
professed only to act in virtue Of the act
of Maryland and must therefore be I'M
dorstood as having intended to grant tenn
porary licenses, subject to the viii of
Congress when il should take jurisdic-
ton
The court then proceeded to show how
Congress did take Jurisdiction thereafter
by abolishing the Board of Commission
ers and appointing superintendent etc.
From this il follows in my opinion, that
at the date OF the filing In Of the streets
involved in this application the regulation
under which the supposed owners acted
was no longer In force.
Il am, therefore, of the opinion that
the Commissioners are without authority