Evening star., 1901-08-10
ALLEGED ENFORCEMENT
DWELLING SAID TO OCCUPY PUBLIC
SPACE.
Attorney DuvalPs Opinion Respecting
the Legal Procedure In
Such Cases.

Some time ago the D1StT1ct COMMISSIONERS
became aware Of the fact that the house
of Barbara Clements, at the intersection Of
Maryland avenue and H street northeast,
encroached upon Maryland avenue to a
considerable extent. The matter was re-
ferred to Mr.. A. B. Duvall, the attorney for
the District, for advice as to the proper
legal procedure in this and similar cases OF
alleged unauthorized occupancy of public
space by buildings or parts thereof. Mr..
Duvall says:
''The case under consideration arose
through the application of the owner for
permit for projection. May 16, 1900, the
inspector notified the owner as follows:
The two bay windows erected by you, un-
der permit 1907. April %, 1900, have
been discovered by an official survey to be
in excess Of the Limitation allowed In the
permit. The encroachment upon public
space is ten feer, more or less, from the
building line of Maryland avenue. You are
therefore notified etc.
Following this sne was prosecuted in
the Police Court upon the charge OF con-
strueting two bay windows without permit,
and by the verdict of jury she was ac-
quilted.
From the statement of the inspector It
appears that at the trial evidence of a
rather indefinite character was introduced
that more than twenty years ago the prop
veyor 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 evidence Of it would be the Ger
tifcate Of the surveyor as provided in sec
t1on 4S5, II. s., d. c., or the record Of 1t as
In section 1856.
Would Not Affect Right.
Assuming. however, that such certificate
was given, while it might constitute de-
tense to criminal charge involving knowl-
edge or intent on the part of the owner, it
would not affect the right to continue the
encroachment.
The only right to continue such an en-
croachment on public space must be by
prescription or estoppel. But there can be
no right by prescription to maintain a pub
lie nuisance. If any right by prescription
has been acquired it is title in 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 suff1-
c1ent reasons why there could be no estOp-
pei in this case; first, the knowledge of the
true line was open to the owner as well as
to the District, and where both parties
stand on equal footing there can be no
estOppel; second, the municipal authorities
could not deprive either the United States
or the public of title to public street or
the right to use the same.
1T is plain that the act of Congress ap-
proved March 3, 1891, confirming certain
permits for extensions, can have no appli-
cation in this case because no permit to
extend beyond the building lines, except as
to the bay windows, is claimed The ex-
tension, it seems to me, resulted from a
mistake as to the location of the true
building line. I had the honor on May 81,
1901. to advise generally on the subject Of
illegal occupation of public space, and the
therefor from the municipal authorities;
and l beg leave to call your attention to
the discussion of the matter contained in
the opinion then rendered.
Procedure in Similar Cases.
'As to the procedure in such q case as
the one under consideration where the oc-
cupation of public space is by building or
part of building which has existed for
several years, the preferable course would
be to file bill in equity for mandatory
injunction requiring the owner to remove
the structure from the public space. The
decree in such case would provide for the
removal of the structure by the public au-
thorities unless removed by the owner
Whether such bill should be filed in
the name of the Commissioners or by the
United States is matter of some doubt. I
am inclined to the opinion that bill in
the name Of the Commissioners, in be-
half Of the public, would be maintainable.
In the case Of the occupation of the
parking of a street by a structure erected
under license from the Commissioners, in
terms revocable, the Court of Appeals, Dis
trict Of Columbia in Mcbride VS.. Ross and
others, said:
They have the power to maintain this
suit as Commissioners and the governing
officers of the District Of Columbia, because
they are, by existing laws, as we have
seen, invested with the control and regu-
lation of the public streets of the city Of
Washington with certain exceptions in
which the street in question is not included
In addition to this, recent act of Con-
gress expressly transfers to and vests in
the Commissioners the Jurisdiction and con-
ii Of the street parking in the streets and
avenues"