The Washington times. (Washington [D.C.]) 1901-1902, 1901-08-11
AFFAIRS OF THE DISTRICT
The Attorneys Opinion on Bay
Window Projections.
The Comm issioners Advised Upon IL
legal Use of Parking Space-An EN-
tension of Sand Contracts Re
fused - Opening of Swami Street.

Andrew Il. Duvall. the Attorney for the
District yesterday submitted TO the Com
missioners an opinion relative to the en-
croachment of the house of Barbara
Clements upon the public space at the in
tersection of Maryland Avenue and IL
streets northeast, The matter was refer
red to 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
1t appears that the case under considera-
ton arose through an application of the
owner for permit for a projection. The
Attorney says:
ION May It, 1890, the inspector notified
the owner as follows: The two bay-win-
dows erected by you, under permit 1891,
April 80 1900. have been discovered by an
official survey to be in excess of the limi-
tation allowed in the permit. The en-
croachment upon public space is ten feet
more or less from the building line of
Maryland Avenue. You are, therefore, no
tilted, etc. Following this she was prose
cuted in the Police Court upon the charge
of constructing two bay windows without
permit, and by the verdict of a jury she
was acquitted.
From the enclosed statement of the
Inspector, it appears that at the trial
evidence of 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 Vas claimed as the origin Of the
mistake. If this was the fact, the evil
dence of it would be the certificate of
the Surveyor as provided in section 4S5,
Revised Statutes. District Of Columbia,
suming, however. that such certificate
was given, while it might constitute a
defence to a criminal charge involving
knowledge 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
encroaciHnent on public space must be
by prescription or estoppel. But there
can be no right by prescription to main
tain public nuisance. If any right by
prescription has been acquired it is til
tie If 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 suffi-
Gent reasons why there could be no es-
TOPPED 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
b. no est3ppel; second. the municipal au-
thorities could not deprive either the
United States or the public of title to
public street or the right to use the same.
II is plain that the act of Congress APP
proved March 3. 1881. confirming certain
plication in this case, because no permit
TO extend beyond the building lines. ex-
cept as to the bay windows. is claimed.
The extension, ii seems to me, resulted
from mistake to the location Of the
true building line.
Il had the honor on May 81 1901. to ad-
wise generally on the subject Of Illegal &C.
cupation of public space and the ctlsrac-
ter and effect of a mere license therefor
from the municipal authorities; and | beg
leave to call your attention to the discus
sion Of the matter contained in the o9in-
ion then rendered.
As TO the procedure in such a case as
the one under consideration where the
occupation of public space is by build
ing or part of a building which has eX-
listed 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
removed by the owner. Whether such
lii should be filed in the name of the
Commissioners or by the United States
is a matter of some doubt.
Il am inclined TO the opinion that
bill in the name of the Commissioners in
behalf OF the public, would be maintain
able. In the case of the occupation of
street by structure erected under
license from the Commissioners. in terms
revocable. the Court of Appeals, District
OF Columbia, in Mcbride VS.. Ross, ct al,
said
e They have the power to 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-
tons n which the street in question is
not included. In addition to this, a re-
cent act of Congress expressly transfers
to and vests in the Commissioners the
jurisdiction and control Of the street park
ing in the streets and avenues. 30 Stat.
SO "
The Columbia National Sand Dredging
Company a few days ago forwarded to
the Commissioners a request that the
lule osta blished for the unloading of sand
and gravel in the District property yards
be modified The company stated that
during the warm weather it was difficult
to get men to work. and that the rate
of wages allowed did not satisfy the men
The matter was referred to the Engineer
Department, and Capt. Chester Harding
was instructed to examine the matter per-
sonally and report to the Engineer Com
missioner. He has now reported as fol-
lows:
Il see no reason for modifying the rule
now In force with respect to the hours of
delivery Of sand and gravel at the District
property yards under the contract with
the Columbia National Sand Dredging
Company. An extension of the hours OF
delivery as requested would entail over
time work on the part of the District en-
nloyes which would be justified only in
case OF emergency in which such over
time work would be necessary in the in
tereSts of the District
Il am informed that there is at present
on hand at the District property yard a
stock of 800 cubic yards Of sand. and
800 cubic yards OF gravel The cousump-
ton Of these materials In the various
works of the District during the months
of August and September. 1900 was ST.
and So cubic yards, respectively. There
l., therefore, no emergency existing and
j do not see that the convenience of the
contractor IL a sufficient cause for requir-
Ing overtime work
The Commissioners have approved the
report, and the company will be inform
ed in accordance Herewith.
Andrew b. Duvail. the Attorney for the
District. yesterday called the attention of
the Commissioners to the filing of a sup
Elemental petition with reference TO the
extension of Fifth Street, and he stated
that public notice had been given as pro-
vided for in the statute, requiring all per-
sons interested TO appear on August 26.
The Attorney states that 1t is his inten-
ton on that day to procure an order for
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