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 im-
but 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 correct-
such a misapprehension if it was such.
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

Strength is added to this view by considered 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 Maryland 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

"Commissioners' Wharf." Lot 10 was re-
tained for the public. On January 26, 1801,
the proceedings of the commissioners recite
that a "representation," which was set out,
had that day been sent to the President. In
it the public property of the city was enumer-
ated, and in the course of such enumeration
the statement was made that "four wharves
have been built at the expense of $3,221.88,
which remain in a useful state." As I have
heretofore shown, a number of private
wharves had been built prior to 1800, three
of which appear on the Dermott map, but in
the representation no claim is advanced that
such wharves were public property.
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
was given. Presumably, as to private
wharves, the regulations of 1795 were deemed
to be in force.

veyors and the action of the commissioners | square 89 this wharf appeared, on lot 10, as all blend into a harmonious and perfect whole, working from an original conception to a successful consummation of a well-understood result. The contrary view produces discord and disarrangement, and leads [348]*to the supposition either that the plan of a street, cutting off riparian rights, was devised in ignorance of its legal result-and, of course, I have not the audacity to make such suggestion as to Washington and Jefferson and Madison, and Mr. Justice Johnson of this court, and all the other wise men who lent their aid to the establishment of the city or that the plan of the street, in that sense, having been devised it was at once departed 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 have referred ensued. But if the theory that 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.

I pause here to interrupt the chronological 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 Jefferson on the subject of a water street and wharves, simply because this communication is referred to in the opinion of the court. It would thus seem from the events of the It is submitted that on the face of the com-[350] two periods that the riparian rights of the munication, instead of tending to show that" water lotowners were conclusively established, there was question as to the existence of the and that it is unnecessary for me, in consid- wharfing rights, it, on the contrary, expressering the last and final period, to do any-ly asserts their existence and relates only thing 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.

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 wharfing practically constitutes the only The act of February 24, 1804 (2 Stat. at 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 the "City Wharf." On the plat of survey of

wharves, and to deepen docks and basins."
While, under the authority conferred "to
preserve navigation," private wharves could
have been regulated, manifestly no such pow-
er could have been exercised under an au-
thority to "erect and repair and regulate
public wharves."

That private wharves were not regarded

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 naviga-
tion of the Potomac." The act reads as fol-
lows:

"Sec. 1. That it shall not be lawful for any person or persons to build or erect any wharf or wharves within the limits of this corporation, who shall not first submit the plan of such wharf or wharves to the mayor, who, with a joint committee of the two boards of the city council shall examine the same; and if it shall appear to their satisfaction that no injury could result to the navigation from the erection of such wharf or wharves, then, in that case, it shall be the duty of the mayor to issue a written permission for the accomplishment of the object, which permit shall express how near such wharf or wharves`shall approach the channel, and at what angle they shall extend from the street on which they are erected."

Four years after the enactment last referred to a slight controversy was precipitated as to the existence of rights of wharfex-age as attached to water lots on the Potomac river between the Long Bridge to the Arsenal grounds. On April 13, 1835, a resolution to the effect that the city had never attempted, and, without injury to the general interests, could not admit, the existence of "water rights" of individuals, between the Long Bridge and the Eastern Branch, was indefinitely postponed. A Mr. Force, then a member of the lower board of the city council, protested against the action thus taken. We have seen how unfounded was the assumption contained in this proposed resolution. In 1839, however, Mr. Force, as mayor of the city, approved a plan of William Elliott for the establishment of Water street and for the regulation of wharfing thereon. I shall, as briefly as possible, outline the history of the plan:

"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.

"Sec. 2. That no wharf shall hereafter be built, within this corporation, without the plan being first submitted to the mayor, who, with a joint committee from the two boards of the city council, shall examine the same, and if it shall appear to their satisfaction that no injury could result to the navigation from the erection of such wharf, then, and in that case, it shall be the duty of the mayor to issue a written permission for the accom[351]plishment of the object, which permit shall express how near such wharf shall approach the channel."

How and where, may I ask, did the private wharves originate, if no such wharves isted?

That the authority conferred with respect to public wharves was not supposed to vest power over all wharves is also indicated in the act of May 15, 1820 (3 Stat. at L. 583), which expressly distinguished the two classes. The corporation was empowered "to preserve the navigation of the Potomac and Anacostia rivers adjoining the city; to erect, repair, and regulate public wharves; to regulate the manner of erecting and the rates of wharfage at private wharves; to regulate the stationing, anchorage, and mooring of vessels."

The distinctive character of private wharves was still further recognized in the act of the city councils of May 22, 1821 (Rothwell's Laws, D. C. 275), by section 1 of which the mayor was authorized and requested "to appoint three intelligent and respectable citizens, not being wharf owners, as commissioners to examine and report to the two boards a suitable plan to be adopted for the manner of erecting wharves upon the shores of the Anacostia and Potomac rivers."

And, by section 2, the mayor was solicited to wait upon the President, and to request his appointment of such persons as he might deem proper, to co-operate with those commissioners.

Again, by resolution of the councils, approved September 3, 1827, it was enacted "that a committee of two members from each board be appointed to act, in conjunction with the mayor, in regulating the mode of erecting wharves," conformably to section 2 of the act of councils approved July 29,

1819.

in the act of councils, approved January 8,
1831, which, in section 6, repealed the act
of councils of July 19, 1819, and in the first[352}
section enacted as follows:

Similar recognition of private ownership of wharves is contained in the resolution of the councils of March 19, 1823, which established "as fish docks," amongst other sites, "the steamboat wharf on the Potomac, near the bridge over the Potomac, and at Cana's wharf."

That the preservation of navigation was the controlling object in the regulation of private wharves is very distinctly evidenced

As surveyor of the city of Washington in 1833, William Elliott (the subject of "water privileges" then being before the councils of the city) suggested to William A. Bradley, mayor of the city, "that system" which was deemed by the former "best for securing those privileges in the most equitable manner amongst those who own property facing on Water street, as well as securing the public rights." It was proposed by Elliott, in his plan No. 2, that Water street, besides being conformed to certain particular out-[353] lines, be rendered everywhere not less than one hundred feet in width, between the Long Bridge and the then Arsenal grounds, and that the construction of wharves and docks

of wharves, by individuals owning lots on the north side of Water street, and of wharves or docks, by the public, opposite public appropriations, or the ends of streets terminating at the north line of Water street

between that bridge and those grounds, be governed by the principle that the Water street front of any such lot, appropriation, or end of street should furnish it a channel front, only in the proportion existing between the total frontage of Water street, estimated at 5.280 feet, and the chord, estimated at 5,050 feet, measuring the total channel front-between the Long Bridge and

though contemplated, had not been further laid down than by the establishment of the upper boundary or building line, this action manifestly possesses great significance. The fact that action with respect to Water street was incomplete was expressly stated by Attorney General Lee in his opinion to Presi dent Adams on January 7, 1799, when he said, referring to the Dermott map:

the then Arsenal grounds. The plan was
described on its face as of that part of the
city "exhibiting the water lots and Water
street and the wharves and docks thereon,
along the Potomac, from E to T street south."
It assigned, in the ratio proposed by Elliott,
to every square on the north side of Water
street a wharfing site from the south side
of that street to the "edge of the channel"
of the Potomac, and to public appropriations
and the ends of streets terminating at Wa-
ter street, sites for docks or other like uses.
It represented Water street as of varying
width, and reduced, on its southern limits,
to a curve lying parallel to that describing
the edge of the channel; and the squares, on
the north side of Water street, to which
wharfing sites are assigned, are designated As in the President of the United States
as "water lots" on the face of the plan. A therefore was vested the authority to com-
more complete recognition of the pre-exist-plete the plan of the city in any particular
ing riparian rights of the water lotowners
than is shown on and established by this
plan my mind cannot conceive.

On February 22, 1839, the city councils adopted the following resolutions:

"Resolutions in relation to the manner in which wharves shall be laid out and constructed on the Potomac river:

"Resolved, That the plan No. 2, prepared by the late William Elliott, in eighteen hundred and thirty-five, while surveyor of the city of Washington, regulating the manner in which wharves on the Potomac, from the 14]bridge to T Street south, and the plan of Water street, shall be laid out, be, and the same is, adopted as the plan to be thereafter followed in laying out the wharves and the street on the said river: Provided, The approbation of the President of the United States be obtained thereto.

"Resolved, also, That the wharves hereafter to be constructed between the points specified in the said plan shall be so built as to allow the water to pass freely under them; that is to say, they shall be erected on piers or piles from a wall running the whole distance on the water line of Water street." Sheahan's Laws, D. C. 178 (an. 1857). These resolutions were approved by the mayor of the city, Mr. Peter Force.

Before their passage and on February 15, 1839, Secretary of the Treasury Woodbury, afterwards a justice of this court, had referred plan No. 2 of William Elliott to William Noland, Commissioner of Public Buildings, and (intermediately) the successor in office of the commissioners, for the opinion of that commissioner upon the judiciousness of the improvement contemplated in the plan.

On February 21, 1839, the day following the passage of the ordinance, Mr. Noland, acknowledging the receipt of the plan and returning it to the Secretary, reports, "that after due deliberation," he believes "the improvement proposed would be judicious and proper."

On February 23, 1839, the day following the passage of the resolutions, the plan ap•proved by the President, was transmitted by Mr. Woodbury to Mayor Force.

When it is considered that up to the time when the Elliott plan received the approval of President Van Buren, Water street, 174 U.S.

"It is not supposed that this is incomplete in any respect, *except in relation to the[355] rights appurtenant to the water lots and to the street that is to be next to the watercourses. The laying off of Water street, whether done in part or in whole, will stand in need of the sanction of the President."

in which it was defective, the approval of
President Van Buren may properly be re-
ferred to the exercise of that power, and as
entitled to be regarded as a distinct declara-
tion that Water street was not to have the
operation now asserted of devesting the wa-
ter lots fronting towards the river on Water
street of riparian rights. From Washing-
ton, then, to Van Buren, in every form in
which it could be done, the riparian rights
of the lot holders have been continuously and
solemnly sanctioned. I cannot now by any
act of mine destroy them on the theory that
they have never existed.

On May 26, 1840, a permit was issued by
Mayor Force, by virtue of the act of June 8,
1831, to William Easby to wharf in front
of some of the water squares which original-
ly formed part of the land of Robert Peter,
situate on the Potomac river near Rock creek.
I set out in the margint the document re-
ferred to, which exhibits that it was for an[356]
unlimited time, and with no provision that

Mayor's Office,

Washington, May 26, 1840.
William Easby, of the city of Washington,
having made application for permission to erect
a wharf in front of square No. 12. and extend
a wharf in front of square south of square No.

12, and having submitted to me a plan of said
wharves, which plan has been examined by a

joint committee of the board of aldermen and
board of common council, who have certified
that "no injury will result to the navigation of
the river from the erection and extension of
the wharves upon said plan."

Permission is therefore granted to the said
William Easby to erect a solid wharf the whole
extent of square No. 12, in front thereof, and to

extend a wharf in front of square south of

square No. 12, thirty feet, fifteen feet of which
to be solid, as laid down upon said plan which
exhibits the situation of the wharves aforesaid
as proposed to be built by his letter of 3rd of
February. 1840.

Which permission is granted on the terms and
subject to all the conditions prescribed by the
act entitled "An Act to Preserve the Navigation
of the Potomac and Anacostia Rivers, and to
Regulate the Anchoring and Mooring Vessels
Therein," approved January 8, 1831; and of

any act or joint resolution that may hereafter

be passed relating to wharves in the city of
Washington.
Peter Force.

1003

the wharf should revert to the government | being during a part of the period last reas in permits of very recent date. ferred to.

That on May 25, 1846, a committee of police, of the lower part of the city councils, presented to that board a report which in effect denied the existence of private rights of wharfing may be conceded. Like the resolution of 1835 it was based upon a superficial inquiry into the subject, and like its predecessor, the resolution of 1835, was "laid upon the table." Various acts of the city council, one dated March 8, 1850, another September 30, 1860, and the other May 3, 1866, appropriating in the aggregate $2,600.00 for the repair of sea walls along the Potomac at points between the Long Bridge and the Arsenal grounds, are set out as evidence of an assertion by the city of the right of ownership to all the riparian privileges in that locality. I am unable, however, to see that these circumstances are entitled to the weight claimed for them. Under the wharfing regulations of 1795 the ultimate cost of making a Water street was to be borne by the city, and a sea wall may well be treated as part of such street. The evidence in the record also shows that a goodly portion of the sea walls along the Potomac in the locality referred to was built opposite to the water lots on the north side of Water street and by the owners of such lots, and that some of such owners had graded Water street in front of their lots in order to the exercise of their wharfing privilege. There is nothing in the record to support the claim that if the city had at any time constructed a sea wall, it claimed that the wharfing privileges in front of such wall had been taken away from the opposite lots. And the ordinance of the city councils of February 22, 1839, adopting the plan of William Elliott, clearly rebuts such an inference, for it is there provided that wharves thereafter "to be constructed" should "be erected on piers or piles from a wall running the whole distance of the water line of Water street." In [357]other words, although, in the most solemn form, it was declared that the owners of the water lots should enjoy their wharfing rights by extending their wharves from the sea wall towards the channel, yet it is now argued that the construction of the sea wall destroyed the right of the lotowners to the wharves built by them in accordance with the provisions of the ordinance.

That since the act of March 13, 1863, referred to in the opinion of the court, various enactments have been passed by the corporation or its representatives, asserting power in the nature of private ownership over the wharves on Water street, and not merely the possession of power as trustee for the purposes of public regulation or the protection of navigation, may be conceded. But it is not claimed nor does it appear from the evidence that there has been such interference with or disturbance of the actual possession of the rightful occupants as would constitute an adverse possession in the city operative to bar the lawful claims of the real owners of the wharfing privileges. Similar observations are also applicable to the licenses issued by the chief of engineers for the time

It is not necessary to review the evidence showing the unequivocal possession enjoyed by the wharf owners up to this time or to state the proof, as to the expenditures of time, labor, or money by the owners of the water lots along the Potomac river-upon the faith of the wharfing regulations and the possession of riparian privileges-the filling in by them of Water street, the erection of sea walls, the filling in of parts of the bed of the river beyond Water street, as well as various other expenditures. Indeed, so self-evident are these things that the court deems it proper that the defendants should be compensated by the government before being ousted of the possession of such improvements, as wharves and structures thereon. If the demands of equity require that the structures be paid for by the government, far greater and stronger is the reason for concluding that the right of property, on the faith of which the structures were made, should not be denied or taken away without just compensation. Neither equity nor reason are subserved, it seems to me, by protecting the mere *incidental right whilst up-[358] rooting the fundamental principle of property upon which the incident depends.

Having in what has preceded fully expressed my view of the existence of the riparian rights as developed from this record, it remains only to consider certain previous decisions of this court relied upon and referred to in the opinion of the court. Nothing in the views above expressed is in any way affected by the case of Van Ness V. Mayor, etc., of Washington, 4 Pet. 232 [7: 842]. That case determined that the public streets in the city of Washington were public property. But the question in this case lies beyond that, and is, first, Was there a public street proposed around the entire river front or a mere creation of an easement superimposed upon the riparian rights? or, second, Granting there was such public street, in view of the contracts between the original proprietors of the division of the squares and lots, and of all the contracts and dealings, can the government be heard in a case of the character of that before the court, to deny the existence of riparian rights and rights of wharfage in the owners of water lots fronting on the alleged street? True it is that in Potomac Steamboat Co. v. Upper Potomac Steamboat Co. 109 U. S. 672 [27: 1070], the question whether a lot fronting on the Potomac river, lying in that portion of the city formerly constituting the land of Notley Young, had riparian rights, was considered and determined adversely to the lotowner, on the ground that the lots being bounded by Water street on the return and plat of survey, were thereby separated from the river, and hence not entitled to riparian rights. As I have said from the principle of law therein enunciated I do not dissent, but rest my conclusion on the facts as they are disclosed in this record. That many of the. facts which have been considered and stated were not present in the record in the case, is patent from the opinion in that case. Cer