sion 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." [340] *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."

conceive that it is entitled to any water priv-
ileges as a street intervenes between it and
the water; but, as there is some high ground
between the Water street and the water, we[341]
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 riparian 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 would-be 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 commissioners, 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 1067, 1079, 1080 and east of 1025, 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.

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 The examination of the events which tranattached to a lot when separated from the spired in the second period is concluded with water by a street. But this inference, in view mentioning that the commissioners, at vaof all the circumstances, is unwarranted. Mr. rious times, made reports to the President, King left the employ of the city in Septem- by whom they were transmitted to Congress. ber, 1797, and thereafter looked after the in- In each of these reports they gave a stateterests of some of the original proprietors. ment of the public property in the *city of[342] As representing Robert Peter, he wrote to the Washington, distinguishing between "upcommissioners on June 27, 1798, urging in land" and "water" property, describing the substance that the wharfing regulations latter by the number of feet frontage on the should be made more definite and complete. water, and stating the average price which He enumerated a number of water squares had been realized on the sales of water lots owned by Mr. Peter as entitled to riparian in the past by the front foot. This latter privileges, and without expressly declaring was a criterion which Dermott had previousthat square 22 was a water square, suggest-ly declared to the commissioners was one of ed that the dimensions of that square as then platted should be enlarged rather than that a new square should be fo from the low ground on the south, t square as enlarged water side by a communication t reference to squal "With respect

that f

the conclusive tests for determining whether a lot was entitled to be classed as a water lot, possessed of riparian rights and wharfing vileges. In none of these reports was the made that the public possessed all ight as appurtenant to an exist? street. Certainly such & In advanced especially

'ion were made with a

1898

MORRIS V. UNITED STATES.

view to legislation authorizing the borrow-
ing of money on the security of all the pub-
lic 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 Am-
sterdam, through whom the representatives
of the city were endeavoring to negotiate a
loan. The public property was marked up-
on 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, that 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 or-
der to aid in the consummation of the de-
sired loan?

The facts which I have reviewed are not
the only ones establishing the universal ad-
mission and acceptance of the existence of
riparian rights as attached to water lots
during the period examined. Many 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 presump-
tion 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 con-
ceded by the court, but it is held that the
[343]*book ought not to be treated as controlling.
Grant this to be so, yet the power of the im-
plications resulting from the book when con-
sidered 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 es-
tablishment 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 con-
siderations arise by necessary implication
from them. Either that all parties con-
cerned in the foundation of the city contem-
space should separate the
plated that a
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, ig-
norant of the legal consequence of such a
street, proceeded to dispose of the greater
part of the water lots upon the express un.
derstanding that riparian rights would at-
tach across the street just as if the street
had not been contemplated, and that upon
this understanding everybody contracted and

"I ac

the rights of everyone were adjusted and
finally settled. For the purpose of this dis-
sent it becomes wholly immaterial to deter-
mine which of these propositions is true, be
cause 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 hypothe-
sis 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 French-
It is in evidence that he requested Mr.
man.
Jefferson to send him plans of European
cities, and that his request was complied[344]
with. Thus Mr. Jefferson wrote:
cordingly send him by this post plans of
Frankfort-on-the-Main, Carlsruhe, Amster-
dam, Strasburg, Paris, Orleans, Bordeaux,
Lyons, Montpelier, Marseilles, Turin, and
Milan, on large and accurate scales, which
I procured while in those towns respective-
ly." The fair presumption is that L'Enfant's
request of Mr. Jefferson was the result of a
previous communication to him by Mr. Jef-
ferson that he possessed the desired informa-
tion, 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 plans of which he had forwarded, were
on the continent of Europe, that is, were sit-
uated in countries governed by the general
a navigable
principles of the civil law. By that law,
whilst lotowners fronting on
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 com-
pelled to leave around the entire river front
an open space or way in order to afford con-
venient access to the water by the public.
Whilst this open way may be used by every-
body, it does not cut off the riparian rights,
but is simply superimposed upon those
rights, the lotowner having the enjoyment
of the rights, but being obliged to furnish
the open space which the public may use.
Civil Code of Louisiana, art. 665; Dubose v.
Levee Commissioners, 11 La. Ann. 166; Code
Napoleon, art. 650, and note to the article[345]
in question in the Annotated Code by Fuz-
ier-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

999

Lim and of the knowledge which Mr. Jeffer- other cities of Europe." This must have son had acquired of these plans, and by the been derived from an antecedent knowledge personal investigation which he had made of the purposes of the plan. It must have in procuring them, that the L'Enfant plan been approved by Washington, for it is imbut exhibited the principle of legal service possible to believe that with this important as embodied in the civil law? When one explanation made to the Secretary of State looks at the L'Enfant plan and bears in mind for submission to the President, when he the civil-law rule, it strikes me that the plan was considering whether he would approve but illustrates and carries out that rule. the regulations, he should not have correctStrength is added to this view by considered such a misapprehension if it was such. ing 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 Mary. land 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 three hundred feet a space of sixty feet should be left for new streets. There is an analogy between the regulations in question and section 38 of [346] 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 erection 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 is the case in Bordeaux and some

Besides, the general conditions involved in
the foundation of the Federal city persua-
sively indicate why Washington and Jeffer-
son 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 proprie-
tors required an equal division, those with
the lotowners in Carrollsburgh and Ham-
burgh an allotment of one half the quantity
of their former land in a like or as good a
situation. As the laying off of a street so
as to take away the riparian privileges of
former water lotowners would be incompati-
ble with an equal division or one in like situ-
ation, there was a serious difficulty in so
doing. On the other hand, not to keep an[347]
open way for public access might well have
been conceived as injurious to the public in-
terests. The theory of an easement furnished
a ready solution for this otherwise insuper-
able difficulty. It afforded an apt means of
protecting all the rights of the water lotown-
ers 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 exer-
cise of riparian rights, but in no way in-
terfering with public utility. Another con-
sideration 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 Washing
ton'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 ob-
tained, 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 sur

1898.

MORRIS V. UNITED STATES.

re

veyors and the action of the commissioners | square 89 this wharf appeared, on lot 10, as all blend into a harmonious and perfect "Commissioners' Wharf." Lot 10 was whole, working from an original conception tained for the public. On January 26, 1801, to a successful consummation of a well-un- the proceedings of the commissioners recite derstood result. The contrary view pro- that a "representation," which was set out, duces discord and disarrangement, and leads had that day been sent to the President. In [348]*to the supposition either that the plan of it the public property of the city was enumera street, cutting off riparian rights, was de- ated, and in the course of such enumeration vised in ignorance of its legal result-and, the statement was made that "four wharves As I have of course, I have not the audacity to make have been built at the expense of $3,221.88, number of private such suggestion as to Washington and Jef- which remain in a useful state." ferson and Madison, and Mr. Justice John- heretofore shown, a son of this court, and all the other wise men wharves had been built prior to 1800, three who lent their aid to the establishment of the of which appear on the Dermott map, but in city or that the plan of the street, in that the representation no claim is advanced that sense, having been devised it was at once de- such wharves were public property. parted from because it was discovered that it was not only in conflict with the rights of the lotowners, but also would destroy the sale of the water lots, hence all the contracts and dealings and declarations to which I But if the theory that have referred ensued. 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, I submit, that the contracts and dealings and representations and admissions, upon which the lotowners 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 lotowners 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 lotowners abandoned or were legally deprived of their rights. But, from abundant precaution, let me, in condensed form, refer to the events of the third period, simply to show that the riparian rights of water lotowners 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.

The act of Congress of May 1, 1802 (2
Stat. at L. 175, chap. 41), abolished the com-
missioners and vested their powers in a su-
perintendent. The act of May 3, 1802 (2
Stat. at L. 195, chap. 53), 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 pub-
lic. While authority was given to the corpo-
ration of Washington, by the act of May 3,
1802, to "regulate the stationing, anchorage,
and mooring of vessels," no authority to li-
cense or regulate the building of wharves
as to private
was given. Presumably,
wharves, the regulations of 1795 were deemed
to be in force.

I pause here to interrupt the chronologi-
cal 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 Jeffer-
water street and
son on the subject of a
wharves, simply because this communication
is referred to in the opinion of the court.
It is submitted *that on the face of the com-[350]
munication, instead of tending to show that'
there was question as to the existence of the
wharfing rights, it, on the contrary, express-
ly 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 build-
ing on their wharves. And all this becomes
very clear when it is considered that Sur-
veyor King, by whom the letter was written,
was the same person who in previous years
had avowedly asserted the existence of ripa-
rian rights in favor of a former proprietor,
Robert Peter, and made claim in relation
thereto.

3. Events subsequent to March 2, 1797. The legislation by Congress and the mu[349]nicipality of Washington with respect to The act of February 24, 1804 (2 Stat. at wharfing practically constitutes the only facts necessary to be considered in any re- L. 254, chap. 14), gave the city councils view of this period. That legislation, I sub-power to "preserve the navigation of the Pomit, until a comparatively recent date, in tomac and Anacostia rivers, adjoining the nowise imported a denial of private owner-city; to erect, repair, and regulate public ship 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 On the plat of survey of the "City Wharf."

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 1001

as public wharves is clearly evidenced in the | ordinance of July 29, 1819 (Burch's Dig. 126), passed under the authority grant ed by the act of 1804 "to preserve the navigation of the Potomac." The act reads as follows:

"Sec. 1. That the owners of private wharves or canals, and canal wharves, be obliged to keep them so in repair as to pre vent injury to the navigation.

How and where, may I ask, did the private wharves originate, if no such wharves ex-age as attached to water lots on the Potomac isted?