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 Water 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 "water lots" on the face of the plan. A more complete recognition of the pre-existing 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 [354]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 approved 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,

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 President Adams on January 7, 1799, when he said, referring to the Dermott map: "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."

As in the President of the United States therefore was vested the authority to complete the plan of the city in any particular in which it was defective, the approval of President Van Buren may properly be referred to the exercise of that power, and as entitled to be regarded as a distinct declaration that Water street was not to have the operation now asserted of devesting the water lots fronting towards the river on Water street of riparian rights. From Washington, 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 originally formed part of the land of Robert Peter, situate on the Potomac river near Rock creek. I set out in the margint the document referred 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 sald William Easby to erect a solid wharf the whole extent of square No. 12, in front thereof, and to


extend 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 February, 1840. as proposed to be built by his letter of 3rd of

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.

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 po- It is not necessary to review the evidence lice, of the lower part of the city councils, showing the unequivocal possession enjoyed presented to that board a report which in ef- by the wharf owners up to this time or to fect denied the existence of private rights state the proof, as to the expenditures of of wharfing may be conceded. Like the reso- time, labor, or money by the owners of the lution of 1835 it was based upon a super- water lots along the Potomac river-upon ficial inquiry into the subject, and like its the faith of the wharfing regulations and predecessor, the resolution of 1835, was "laid the possession of riparian privileges-the upon the table." Various acts of the city filling in by them of Water street, the ereccouncil, one dated March 8, 1850, another tion of sea walls, the filling in of parts of September 30, 1860, and the other May 3, the bed of the river beyond Water street, as 1866, appropriating in the aggregate $2,600.- well as various other expenditures. Indeed, 00 for the repair of sea walls along the Po- so self-evident are these things that the court tomac at points between the Long Bridge and deems it proper that the defendants should the Arsenal grounds, are set out as evidence be compensated by the government before beof an assertion by the city of the right of ing ousted of the possession of such improveownership to all the riparian privileges in ments, as wharves and structures thereon. that locality. I am unable, however, to see If the demands of equity require that the that these circumstances are entitled to the structures be paid for by the government, far weight claimed for them. Under the wharf- greater and stronger is the reason for coning regulations of 1795 the ultimate cost of cluding that the right of property, on the making a Water street was to be borne by faith of which the structures were made, the city, and a sea wall may well be treated should not be denied or taken away without as part of such street. The evidence in the just compensation. Neither equity nor rearecord also shows that a goodly portion of son are subserved, it seems to me, by prothe sea walls along the Potomac in the lo-tecting the mere *incidental right whilst`up-[358] cality 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

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

Court of the Territory of New Mexico

tainly, however, it is not contended that the Argued April 28, 1899. Decided May 15, defendants in this record were either par1899. ties or privies to the case there decided. A conclusion on one condition of fact is not APPEAL from a decree of the Supreme binding as to another condition of fact between different parties in a subsequent law-reversing the decree of the District Court of suit. I cannot bring my mind to adopt the of warrants issued by the town of Raton, Colfax County for the specific performance inferences deduced by the court in the case [359]just *referred to, in view of what I conceive etc., in a suit in equity brought by the Raton to be the absolutely conclusive proof estab- Waterworks Company against the town of favor of the owners of water lots in the city Court of the Territory reversed, and case relishing the existence of riparian rights in Raton, and directing the District Court to dismiss the suit. Decree of the Supreme of Washington. To deny them, it seems to manded to that court with directions to amend me, in view of the record now here, as was its decree by directing the District Court to said at the outset, would be an act of con- dismiss the bill without prejudice to the fiscation. Of course this is said only as conveying my appreciation of the facts. right of plaintiff to his action at law.

As it is beyond my power by this dissent to enforce the rights of the owners of water lots to riparian and wharfing privileges, it would serve no useful purpose for me to measure the claims of such owners by the principle which I have endeavored to demonstrate, that is, the existence of the riparian rights. Suffice it for me to say, therefore, that in my judgment, even granting that such rights exist, the owners thereof would not be entitled to compensation if the right was impaired or destroyed as the consequence of work done by the government in the bed of the river for the purpose of improving navigation, for all riparian rights are held subject to this paramount authority. As a consequence, if injury resulted to riparian rights in the exercise of this controlling governmental power, such injury would be damnum absque injuria. But I think that where it is simply proposed, as is the case with many if not all the lots between the Long Bridge and the Arsenal grounds, to appropriate the riparian rights simply by an arbitrary line running along the edge of the water on the map, thereby cutting off all wharves and buildings thereon upon the theory that none of the riparian rights segregated by the line were private property, this is but an appropriation of private property requiring just compensation. By these general principles, in my judgment, the rights of the parties should be determined.

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See same case below, 9 N. M. —, 49 Pac. 898.

Statement by Mr. Justice Shiras:

In August, 1895, the Raton Waterworks Company, a corporation organized under the laws of the territory of New Mexico, filed, in the district court of the county of Colfax, territory of New Mexico, a bill of complaint against the town of Raton, a municipal corperation of that territory.

It was narrated in the bill that a contract had been entered into, in July, 1891, between the waterworks company and the town of Raton, whereby the company agreed to erect and maintain waterworks and to supply the town and its inhabitants, and the town agreed to pay rental for the use of hydrants in certain amounts during a period of twenty-five years; that the waterworks company had fully performed and complied with the contract on its part, at an expenditure of $115,000; that the town, from time to time, made certain payments of rental for hydrants furnished; that on January 1, 1895, the town, in pursuance of ordinances, issued to the waterworks company in payment warrants of said town, of that date, and falling due one every six months, and aggregating several thousand dollars. Each of said warrants[361 was duly drawn on the treasurer of the town of Raton, signed by the mayor and countersigned by the recorder of said town; that in pursuance of law it was the duty of the treasurer of the said town to have and keep in his office a book to be called "The Registry of Town Orders," wherein should be entered COMPANY, and set down, at the date of the presentation thereof, each of said warrants, and to pay out of the funds of said town, in his hands for disbursement, the amount of each of said warrants, in the order in which the same were presented to him for payment; said town wrongfully and without authorthat, subsequently, the board of trustees of ity of law, and in disregard of the contract rights of the waterworks company, undertook to repeal the ordinance in which the terms and method of payment for the rent of hydrants were prescribed, and to pass certain other ordinances in conflict with the preceding ordinances under which the rights of the company had accrued; that, in pursuance of the latter ordinances, the town treasurer refused to register warrants held by the company and presented for registration; that, in addition to the amount of said war

(See S. C. Reporter's ed. 360-364.)

A suit in equity cannot be sustained for a
legal cause of action.

Warrants of a town in the form of drafts drawn
on the treasurer of the town, signed by the
mayor and countersigned by the recorder of
the town, are, if valid. legal causes of action,
enforceable in a court of law; and it is error
in a court to consider and determine such
legal controversy in a suit in equity for spe-
cific performance and for an injunction, but
It should dismiss the sait without prejudice
to the right to bring an action at law.
[No. 272.]

rants, there will accrue and become due to the company semi-annually during the continuance of said contracts the sum of $1,962.50; that said town refuses to pay the said several amounts heretofore accrued and payable, and refuses to pay the said several amounts which will hereafter accrue, and gives out and pretends that the said contract is inoperative and invalid, and refuses to perform the same on its part, although in the possession, use, and enjoyment of the said water plant under said contract.

The bill prayed that the town of Raton should be decreed specifically to perform the said contract, and to pay the amounts of said rental which had theretofore accrued and become payable, and might thereafter accrue and become payable, in pursuance of the terms of the contract, and should be enjoined from enforcing said repealing ordi


The defendant, in its answer, admitted the making of the contract, the performance thereof by the company; that the board of trustees issued to the company the several warrants, drawn in manner. amount, and [362]number as alleged in the bill; *that it was the duty of the treasurer of the town to keep in his office a book of registry, but denied that it was the duty of the treasurer to enter and set down, at the date of the presentation thereof, each of said warrants, and to pay out of the funds of the town in his hands for disbursement the amount of each of said warrants in the order in which the same were presented, or in any other order, said warrants being illegal, null, and void. Also admitted the passage of the original ordinance prescribing the method of payment of rental by the issuance of warrants, and the passage of the repealing ordinance complained of, and that it has been and now is in the possession, use, and enjoyment of the water plant of the waterworks company.


The answer likewise admitted that it has

given out that said contract, so far as it calls for the payment of $1,962.50 semi-annually, is inoperative and invalid, and that it has refused to pay said sum semi-annually. By way of defense, the answer alleged that defendant, as a municipal corporation of the territory of New Mexico, is authorized by law to levy each year and collect a special tax sufficient to pay off the water rents agreed to be paid to the complainant, provided that said special tax shall not exceed the sum of two mills on the dollar for any one year; that said alleged semi-annual rental of $1,962.50 claimed by the complainant is far in excess of the amount derivable from a two-mill tax levy on the assessed value of property subject to taxation within said town of Raton, and that said rental, so far as it is in excess of the proceeds of such a tax levy, is illegal; that said original ordinance, so far as the same imposes upon the defendant the obligation to pay complainant an annual sum greater than the proceeds of a twomill tax, or to impose a tax levy greater than said rate, was and is null, void, and inoperative, the same having been made and entered into by defendant's trustees in vio

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lation of law and in excess of the powers conferred upon them by the statutes of New Mexico; and that the warrants issued to complainant were and are null and void, because issued in excess of the amount deriv. able from a two-mill tax levy on each dollar of taxable property.

Having thus answered, the defendant[363) pleaded "that all and every the matters the complainant's bill mentioned and complained of are matters which may be tried and determined at law, and with respect to which the complainant is not entitled to any relief from a court of equity, and this defendant asks that it shall have the same benefit of this defense as if it had demurred to the complainant's bill."

The cause was heard on bill and answer, and in September, 1896, the said district court entered a decree in accordance with the prayer of the bill, decreeing that the said original ordinance, contract, and agreement should in all things be specifically performed by and on the part of the town of Raton, and that the town should issue and pay the warrants out of any funds or moneys in the treasury of the town, whether derived from general or special taxes. From this decree an appeal was taken to the supreme court of the territory, where the decree of the lower court was reversed and an order was entered directing the lower court to dismiss the bill at the costs of the waterworks company. The cause was then brought to this court on an appeal from the decree of the supreme court of the territory.

Mr. Henry A. Forster, for appellant: The bill made out a proper case for equitable relief.

National Waterworks Co. v. Kansas City,

27 U. S. App. 165, 62 Fed. Rep. 853, 10 Č. C. A. 653, 27 L. R. A. 827; Fazende v. Houston, 34 Fed. Rep. 95.

tained in ordinance No. 10, at least to the Specific performance of the contract conextent of declaring it a valid and subsisting contract, binding and obligatory on the town, and ordering the town to pay the hydrant rentals, should have been granted.

National Waterworks Co. v. Kansas City, 27 U. S. App. 165, 62 Fed. Rep. 853, 10 C. C. A. 653, 27 L. R. A. 827.

further breaches of the contract. The town should have been enjoined from

Boston Water Power Co. v. Boston & W.

R. Corp. 16 Pick. 525; St. Louis R. Co. v. Northwestern St. Louis R. Co. 69 Mo. 65; Newburgh & C. Turnp. Road v. Miller, 5 Johns. Ch. 101, 9 Am. Dec. 274.

A court of equity should restrain the enforcement of an invalid ordinance, whenever vested rights granted by a prior ordinance would be thereby impaired.

New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 683, 29 L. ed. 525, 528; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 673,29 L. ed. 524; Walla Walla City v. Walla Walla Water Co. 172 U. S. 1, ante, 341; Foster v. Joliet, 27 Fed. Rep. 899; Quincy v. Bull, 106 Пl. 337; Baltimore v. Radecke, 49 Md. 217, 33

n. Rep. 239; People, Davis, v. Sturtevant, | 423 [24: 1061]; Rogers v. Durant, 106 U. S.
N. Y. 263, 59 Am. Dec. 536.
644 [27: 303].
Mr. N. B. Laughlin, for appellee:
There is not any equity in complainant's
11 because the principal object sought is
ecific performance; and on the allegations,
therein averred, the court has no jurisdic-
on to enforce the relief prayed for.
Phyfe v. Wardell, 2 Ed. Ch. 47; Pierce v.
lumb, 74 Ill. 326.

There was nothing to act on in the case bar but the validity of the warrants isled under the contract, and that can be etermined in an action at law.

State, Great Falls Waterworks, v. Great alls, 19 Mont. 518.

Appellant has not exhausted his remedy t law.

Leadville Illuminating Gas Co. v. Leadille, 9 Colo. App. 400; Leadville Water Co. Leadville, 22 Colo. 297.

This court should affirm the decree of disnissal with costs, with the modification that the dismissal is without prejudice to the ights of the appellant or the legal holders of aid warrants to bring an action at law.

Lacassagne v. Chapuis, 144 U. S. 119, 36 L. ed. 368; Sanders v. Devereux, 19 U. S. App. 630, 60 Fed. Rep. 311, 8 C. C. A. 629; 3 Enc. Pl. & Prac. 895.

*Mr. Justice Shiras delivered the opinion of the court:

The waterworks company, when it filed its

Accordingly, and without expressing or implying any opinion of our own on the merits of the controversy, the decree of the Supreme Court of the Territory is reversed, and the cause is remanded to that court with directions to amend its decree by directing the. District Court to dismiss the bill without prejudice to the right of the complainant to sue at law.

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Decided May 15, 1899.

ERROR States Circuit

bill in this case, was in possession of war- Argued and Submitted January 20, 1899.
rants that had been issued to it by the town
of Raton in pursuance of the provisions of a
contract existing between the company and
the town. Those warrants were in the form
of drafts drawn on the treasurer of the town,
signed by the mayor and countersigned by
the recorder of the town. They were for
specific sums of money, payable at fixed
periods, bearing interest from date, and
some of them past due when the bill was

*In short, the warrants, if valid, were legal causes of action enforceable in a court of law. The defendant did not waive the question, but averred in its answer that the matters complained of in the bill were matters which could be tried and determined at law. And the supreme court of the territory in its opinion says: "If the warrants upon which payment is sought here are valid, an action at law is the proper remedy to enforce their payment. They have been issued, and are claimed to be outstanding obligations against defendant town, and it says they are void, and therefore declines to pay them. Then, if in any action at law judgment should be entered in favor of the legal holders, and defendant's trustees should decline to provide for their payment, mandamus would be the proper remedy to compel the necessary levy." [9 N. M. 49 Pac. 898.]

In this state of facts we think the courts below erred in considering and determining the legal controversy in a suit in equity, but should have dismissed complainant's bill without prejudice to its right to bring an action at law. Barney v. Baltimore, 6 Wall. 280 [18: 825]; Kendig v. Dean, 97 U. S.

Court of Appeals for the First Circuit to review a judgment of that court affirming the judgment of the Circuit Court of the United States for the District of New Hampshire in favor of Edward Hawkins, receiver of the Indianapolis National Bank, against the First National Bank of Concord for the recovery of an assessment on the stock of the Indianapolis bank held by the First National Bank of Concord; said assessment being ordered by the Comptroller to enforce the individual liability of stockholders. Judg. ment of the Circuit Court of Appeals and of the Circuit Court reversed, and cause remanded to the Circuit Court, with directions to enter a judgment in accordance with the opinion of this court.

See same case below, 33 U. S. App. 747, 79
Fed. Rep. 51, 24 C. C. A. 444.

Statement by Mr. Justice Shiras: *In May, 1895, Edward Hawkins, as receiv-[365] er of the Indianapolis National Bank, brought a suit, in the Circuit Court of the United States for the District of New Hampshire, against the First National Bank of Concord. At the trial a jury was waived, and the court found the following facts:

"The plaintiff is receiver of the Indianapolis National Bank of Indianapolis, which bank was duly organized and authorized to do business as a national bank association. The bank was declared insolvent and ceased to do business on the 24th day of July, 1893; the plaintiff was duly appointed and qualified

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