tion, but a further declaration by Congress
of a desire to open them to private owner-
ship would be necessary.

Besides, the facts of the case show that Congress is asserting title and dominion over these lands for public purposes. Whether Congress should exercise its power over these [243]reserved *lands by dredging, and thus restoring navigation and fishery, or by reclaiming them from the waters for wharfing purposes, or to convert them into public parks, or by subjecting them to sale, could only be determined by Congress, and not by the functionaries of the Land Office.

If, then, there was an entire want of authority in the Land Office to grant these lands held for public purposes, a patent so inadvertently issued, under a mistaken notion of the law, would plainly be void, and afford no defense to those claiming under it as against the demands of the government. As was said by this court in St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 641 [20: 876]:

"Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the depart ment would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was compe

tent to act."

Similar views were expressed in Doolan v. Carr, 125 U. S. 618 [31: 844], where it was said:

a decree, a direct proceeding, with proper
averments and evidence, would be required
to establish that it was voidable, and there-
fore should be avoided.
It is never-
theless a clear distinction, established by
law, and it has often been asserted in this
court, that even a patent from the govern-
ment of the United States, issued with all
the forms of law, may be shown to be void by
extrinsic evidence, if it be such evidence as
by its nature is capable of showing a want
of authority for its issue."

The further contention on the part of the
United States, that the lands embraced with-
in the Kidwell patent lie within the limits
of the city of Washington, and that therefore
they were, for that reason, not grantable by
the Land Office, we have not found it neces-
sary to determine, and we refrain from ex-
pressing any opinion upon it.

Nor do we need to enter at any length into the question of fraud attending the issue of the patent. We deem it not improper to say, however, that the allegations imputing fraud to the government officials concerned in the issuance of the patent, or to those who were active in procuring it, or in asserting rights under it, do not appear to us to have been sustained by the evidence.

We therefore conclude this branch of the case by affirming the decision of the court below, "that the proceedings of Kidwell, under the resolution of 1839, to obtain a patent for the 'Kidwell Meadows,' and the issue of that patent, are inoperative to confer upon the patentee or his assigns any title or interest in the property within its limits, adverse to the complete and paramount right therein of the United States."

It is urged on behalf of those claiming un-
der the Kidwell *patent that a court of equity[245]
will not set aside the patent at the suit of
the United States, unless on an offer by the
latter to return the purchase money; that,
in granting the relief, the court will impose
such terms and qualifications as shall meet
the just equities of the opposing party.

As the invalidity of the patent in the pres-
ent case was not apparent on its face, but
was proved by extrinsic evidence, and as the
controversy respecting the title was not
abandoned by the defendants, they were not,
we think, entitled to a decree for a return
soll v. Elliott, 6 Pet. 95 [8: 332].
of the purchase money, or for costs. Peir-

will be necessary to dispose of the question
Before considering the remaining claims it
of the river boundary of the city of Washing-•

ton.

"There is no question as to the principle that where the officers of the government have issued a patent in due form of law, which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law as distinguished from suits in equity. subject, manent seat of government was, as shown by What place should be selected for the per[244]*however, at all times to the inquiry whether the histories of the times, a matter of long such officers had the lawful authority to and bitter debate, occupying a large part of make a conveyance of the title. But if those the second session of the second Congress. officers acted without authority, if the land After the claims of Philadelphia and Baltiwhich they purported to convey had never more had been adversely disposed of, the been within their control, or had been with question was reduced to a choice between a drawn from that control at the time they site on the Susquehanna river in Pennsylundertook to exercise such authority, then vania and one on the Potomac river. And their act was void-void for want of power we learn from the recently published jourin them to act on the subject-matter of the nal of William Maclay, Senator from Pennpatent-not merely voidable; in which lat-sylvania, 1780-91, and who was an earnest ter case, if the circumstances justified such advocate for the former, that the allegation

the United States must be found in the transactions between the private proprietors and the United States, consisting of the mutual agreements entered into by the proprietors, their deeds of conveyance to the trustees, their concurrence in the action of the comtificates, and their recognition of the several plans of the city made under the direction of the President.

The result was the act of July 16, 1790 (1 Stat. at L. 130, chap. 28), whereby the Pres-missioners in laying out plats and giving cerident was authorized to appoint three commissioners to survey and, by proper metes and bounds, to define and limit, under his direction, a district of territory, to be located on As we have already said, our inquiry is as the river Potomac. By the same act, the to the intention of the parties to be affected, commissioners were empowered "to purchase but that intention need not be expressed by or accept such quantity of land on the east- any particular form or ceremony, but may ern side of the said river, within the said be a matter of necessary implication and district," as the President might deem prop-inference from the nature and circumstances er for the use of the United States, and ac- of the case. cording to such plans as he might approve, and were required, prior to the first Monday of December, 1800, to provide suitable [246] buildings for the accommodation of Congress and of the President and for the public offices of the government.

We cannot undertake to comment upon each and every step of the transactions, but shall briefly refer to those of the most significance.

And, first, in the agreement of March 13, 1791, signed by the principal proprietors, including Robert Peter, David Burns, Notley Young, and Daniel Carroll, are the following recitals:

It has been the practice in this country, in laying out towns, to have the plat surveyed, and a plan made in accordance with the survey, designating the streets, public squares, "We, the subscribers, in consideration of and open spaces left for commons, wharves, the great benefits we expect to derive from or any other public purpose. Those streets, having the Federal city laid off upon our squares, and open spaces are thus dedicated lands, do hereby agree and bind ourselves, to the public by the proprietors of the soil, heirs, executors, and administrators, to con whether they be the state or private individ-vey in trust to the President of the United uals. When a town is situated on a naviga- States, or commissioners, or such person or ble river it is generally the custom to leave persons as he shall appoint, by good and an open space between the line of the lots sufficient deeds in fee simple, the whole of next the river and the river itself. This was our respective lands which he may think done by William Penn in 1682 in the orig-proper to include within the lines of the Fedinal plan of the city of Philadelphia or the eral city, for the purposes and on the conDelaware river front, and he called it a top ditions following: common; and in 1784 his descendants, the former proprietors, in their plan of Pittsburgh, adopted a similar measure of leaving such an open space, and they called it Water street. Birmingham v. Anderson, 48 Pa. 258.

"The President shall have the sole power of directing the Federal city to be laid off in what manner he pleases. He may retain any number of squares he may think proper for public improvements, or other publie uses, and the lots only which shall be laid off shall be a joint property between the trustees on behalf of the public and each present proprietor, and the same shall be fairly and equally divided between the public and the individuals as soon as may be after the city shall be laid out.

In 1789 the proprietors of the land on which the city of Cincinnati is built pursued the same policy, and in their plan the ground lying between Front street and the Ohio river was set apart as a common for the use and benefit of the town forever. City of Cincinnati v. White, 6 Pet. 432 [8: 453]; "For the streets the proprietors shall re Barclay v. Howell's Lessee, 6 Pet. 498 [8: ceive no compensation, *but for the squares or[245] 477]; New Orleans v. United States, 10 Pet. lands in any form which shall be taken for 662 [9: 573]; Barney v. Keokuk, 94 U. S. public buildings or any kind of public im339 [24: 228]; Rowan's Executors v. Port-provements or uses, the proprietors, whose land, 8 B. Mon. 232.

Our examination of the evidence has led us to the conclusion that it was the intention of the founders of the city of Washington to locate it upon the bank or shore of the Potomac river, and to bound it by a street or levee, so as to secure to the inhabitants and those engaged in commerce free access to the navigable water, and that such intention has never been departed from.

While, as we have already seen, the United States became vested with the control and ownership of the Potomac river, and its subjacent soil, within the limits of the District, by virtue of the act of cession by the state of Maryland, it must yet be conceded that, as to [247]the land above high-water *mark, the title of

iands shall be so taken, shall receive at the rate of twenty-five pounds per acre, to be paid by the public," etc.

And by an agreement of March 30, 1791, the proprietors of lots in Carrollsburgh, including Daniel Carroll and Notley Young, it was provided as follows:

"We, the subscribers holding or entitled to lots in Carrollsburgh, agree with each other and with the President of the United States that the lots and land we hold or are entitled to in Carrollsburgh shall be subject to be laid out at the pleasure of the President as part of the Federal city, and that we will receive one half the quantity of our respective lots as near their present situation as may agree with the new plan, and where we may be en

titled now to only one lot or otherwise not | the public faith was necessarily pledged,
entitled on the new plan to one entire lot, or
do not agree with the President, commis-
sioners, or other person or persons acting on
behalf of the public on an adjustment of our
interest, we agree that there shall be a sale
of the lots in which we may be interested
respectively, and the produce thereof in
money or securities shall be equally divided,
one half as a donation for the use of the
United States under the act of Congress, the
other half to ourselves respectively. And we
engage to make conveyances of our respect-
ive lots and lands aforesaid to trustees or
otherwise whereby to relinquish our rights
to the said lots and lands, as the President
or such commissioners or persons acting as
aforesaid shall direct, to secure to the Unit-
ed States the donation intended by this
agreement."

when the grants were accepted, to found such a city. The very agreement to found a city was itself a most valuable consideration for these grants. It changed the nature and value of the property of the proprietors to an almost incalculable extent. The land was no longer to be devoted to agricultural purposes, but acquired the extraordinary value of city lots. In proportion to the success of the city would be the enhancement of this value; and it required scarcely any *aid[250] from the imagination to foresee that this act of the government would soon convert the narrow income of farmers into solid opulence. The proprietors so considered it. In this very agreement they state the motive of their proceedings in a plain and intelligible manner. It is not a mere gratuitous donation from motives of generosity or pubA similar agreement was entered into by lic spirit; but in consideration of the great the owners of lots in the town of Hamburgh. benefits they expect to derive from having Following these agreements came the con- the Federal city laid off upon their lands. veyances by the several proprietors to Beall Neither considered it a case where all was and Gantt, trustees. Without quoting from benefit on one side and all sacrifice on the them at length, and referring to those of other. It was in no just sense a case of David Burns and Notley Young, copied in charity, and never was so treated in the nefull in the statement of the case, it is suffi- gotiations of the parties. But, as has been cient here to say that the proprietors, by already said, it is not in our view material said conveyances, completely devested them- whether it be considered as a donation or a selves of all title to the tracts conveyed, and purchase, for in each case it was for the [249] that the lands were granted to the said trus- foundation of a city." Van Ness v. City of tees, "to have and to hold the hereby bar-Washington and United States, 4 Pet. 284 gained and sold lands with their appurtenances to the said Thomas Beall and John Mackall Gantt, and the survivor of them, and the heirs of such survivor, forever, to and for the special trust following, and no other, that is to say, that all the said lands "Undoubtedly Notley Young, prior to the hereby bargained and sold, or such part founding of the city and the conveyance of thereof as may be thought necessary or prop- his land for that purpose, was entitled to er, be laid out together with the lands for enjoy his riparian rights for his private uses a Federal city, with such streets, squares, and to the exclusion of all the world besides. parcels, and lots as the President of the Unit-It can hardly be possible that the established States for the time being shall approve; and that the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the Leirs of such survivor, shall convey to the commissioners for the time being appointed by virtue of an act of Congress entitled 'An Act for Establishing the Temporary and Permanent Seat of the Government of the United States,' and their successors, for the use of the United States forever, all the said streets, and such of the said squares, parcels, and lots as the President shall deem proper for the use of the United States. And that as to the residue of the lots into which the said lands hereby bargained and sold shall have been laid out and divided, that a fair and equal division of them shall be made," etc.

In a suit between the heirs of David Burns and the city of Washington and the United States this court had occasion to pass upon the nature of these grants, and used the following language:

[7: 860].

In Potomac Steamboat Co. v. Upper Potomac 8. B. Co. 109 U. S. 686 [27: 1075], after an elaborate consideration of the agreements and conveyances, it was said:

ment of the city upon the plan adopted, in-
cluding the highway on the river bank, could
have left the right of establishing public
wharves, so essential to a great center of
population and wealth, a matter of altogeth-
er private ownership."

Thomas Johnson, Daniel Carroll, and
David Steuart were, on January 22, 1791,
appointed by President Washington such
commissioners; and on March 30, 1791, by
his proclamation of that date, the President
finally established the boundary lines of the
District; directed the commissioners to pro-
ceed to have the said lines run, and, by prop-
er metes and bounds, defined and limited;
and declared the territory, so to be located,
defined and limited, to be the district for the
permanent seat of the government of the
United States.

With the lines of the District thus established, the next important question that presented itself was the location of the *Federal[251] city, in which were to be erected the build"It is not very material, in our opinion, ings for the accommodation of Congress, the to decide what was the technical character President's house, and the public offices. of the grants made to the government; We are here met with a serious controwhether they are to be deemed mere dona-versy as to the place and nature of the river tions or purchases. The grants were made boundary of the city. The record contains for the foundation of a Federal city, and a large amount of evidence, consisting chief

ly of maps and plans, of correspondence be-gress passed any act consequent thereupon;
tween the President and the commissioners, that it remained as before under the control
the deeds of conveyance by the original pro- of the Executive."
prietors, and the testimony of old residents,
some of whom had acted as surveyors and en-
gineers during the early history of the city.
We cannot complain of having been left
unassisted to examine and analyze this mass
of evidence, for we have had the aid of the
painstaking opinion of the court below and
of a number of able briefs on all sides of the
controversy.

As a national city was to be founded, which was to be the permanent seat of the government of the United States, where foreign nations would be expected to be represented, and as the site selected was on a navigable, tide-water river, inviting foreign and domestic commerce, we should naturally expect to find the city located in immediate proximity to the river, with public wharves and landings, and with a municipal ownership and control of the streets and avenues leading to and bounding on the stream.

As we have seen, the agreement of the proprietors provided that "the President shall have the sole power of directing the Federal city to be laid off in what manner he pleas

es.

In the exercise of that power the President, at different times, caused several maps or plans of the city to be prepared, the authenticity and effect of which constitute a large part of the controversy in the present

case.

Ellicott completed his plan and laid it before the President on February 20, 1792. This plan was engraved at Boston and at Philadelphia-the engraved plans differing in the circumstance that the latter did and the former did not exhibit the soundings on the river front and on the Eastern Branch.

On October 8, 1792, the commissioners, who had been notified that "about 100 squares were prepared and ready for divisicn," had a second public sale of lots-a copy of Ellicott's engraved plan being exhibited at the sale. Under the general authority conferred upon them by the President, on September 29, 1792, to make private sales at such prices and on such terms as they might think proper, the commissioners, before November 6, 1792, had effected private sales of fifteen lots.

Between 1792 and 1797, this plan of Ellicott's known as the "engraved plan," was circulated by the commissioners in *the Unit-[253] ed States, and forwarded to European countries from the Office of State, as the plan of the city, and was referred to as such by the commissioners in their negotiations for loans for the purpose of carrying on the public buildings.

On February 27, 1797, the commissioners addressed a letter to the President, in which, among other things, they said:

"What Mr. Davidson alludes to in his me

made since the publication of the engraved plan, we know not; that plan required the doing of many acts to carry it into effect— such as the laying out and bounding a water street on the waters which surround the city, and laying out squares where vacant spaces unappropriated were left in several parts of the city. Acts of this kind have no doubt from time to time been done, and with the full consent of all interested."

The earliest of these plans was that pre-morial, when he says deviations have been pared in 1791, by Major L'Enfant, and was by him submitted to the President on August 19 of that year. On October 17, 1791, after advertisement, and under direction by the President, the commissioners sold a few lots. On December 13, 1791, by a communication of that date, the President placed before Congress this L'Enfant plan. On this plan the squares were unnumbered and the streets unnamed. [252] *Afterwards differences arose between L'Enfant and the commissioners, which resulted in the removal of L'Enfant by the President early in March, 1792. Thereupon Andrew Ellicott was directed by the President to prepare this plan so that it might be engraved, but Major L'Enfant refused to permit Ellicott to use his original plan, and Ellicott proceeded to prepare a plan from materials in his possession and from such information as he had acquired while acting as surveyor under L'Enfant.

It may be well to mention, though out of chronological order, that in a letter of February, 1797, President Washington, in a letter to the commissioners, referring to L'Enfant's plan and to certain alterations that had been made, stated that Mr. Davidson, a purchaser of lots, "is mistaken if he supposed that the transmission of Major L'Enfant's plan of the city to Congress was the completion thereof; so far from it, it would appear from the message which accompanied the same that it was given as a matter of information only to show what state the business was in; that the return of it was requested; that neither house of Con

It appears that the Ellicott plan was, in some respects, incomplete, as it did not show all the squares or correctly delineate the public reservations, and was made before the completion of the surveys.

The first appearance of the Dermott map, that we find in this record, was on June 15, 1795, when, as appears in the proceedings of the commissioners of that date, "Dermott is directed to prepare a plat of the city with every public appropriation plainly and distinctly delineated, together with the appropriation now made by the board for the National University and Mint."

On March 2, 1797, by an instrument under his hand and seal, President Washington requested Thomas Beall and John M. Gantt, the trustees, to convey to the commissioners all the streets in the city of Washington, as they are laid out and delineated in the plan of the city thereto annexed; and also the several squares, parcels, and lots of ground therein described. Though in this communication President Washington mentioned a plan of the city as annexed thereto, yet it seems that a plan was not so actual an nexed. And on June 21, 1798, the commi

which I presume is a sufficient authentica
tion. If this plan, under the President's
signature, varies from the L'Enfant's or El-
licott's essays, they must yield to it, as they
are to be considered only as preparatory to
that plan which received ultimately the for-
mal and solemn approbation of the Presi-
dent. It is not supposed that this is incom-
plete in any respect, except in relation to
the rights appurtenant to the water lots, and
to the street which is to be next to the wa-
tercourses."

sioners wrote a letter to President Adams | self, or an instrument referring to the plan, in the following terms: "At the close of the late President's admin[254]istration he executed an act directing the trustees of the city of Washington to convey to the commissioners the streets of said city and the grounds which were appropriated to public use. In the press of business the plan referred to was not annexed. We now send it by Mr. Nourse, with the original act and the draft of another act, which appears to us proper to be executed by the present President, in order to remove any objection to a compliance with the late President's request arising from the omission above mentioned. As these acts are the authentic documents of the title of the public to the lands appropriated, we shall write to Mr. Craik, or some other gentleman, to take charge of their return rather than trust them to the mail."

Accordingly, on July 23, 1798, President Adams, by an instrument reciting the act executed by his predecessor on March 2, 1797, and the non-annexation to that act of the plan of the city therein mentioned, makes known to Beall and Gantt, trustees, that he has caused the said plan to be annexed to the said act, and requests them to convey to the commissioners for the use of the United States forever, according to the tenor of the act of Congress of July 16, 1790, "all the streets in the said city of Washington, as they are laid out and delineated in the plan of the said city hereto annexed, and all the squares, parcels, and lots of ground described in the said act as public appropriations."

The following entry, as of the date of August 31, 1798, appears in the proceedings of the commissioners: "Mr. William Craik delivered into the office the plan of the city of Washington, with the acts of the late and present Presidents."

Some dispute subsequently arose as to whether the plan which President Washing ton intended to have annexed to his act was the plan of Ellicott or that of Dermott. Thus, in an opinion delivered on December 16, 1820, by Attorney General Wirt to President Monroe, it was said that "if President Washington has, as Mr. Breckinridge states, previously ratified Ellicott's engraved plan, this must be considered as the plan he intended to annex, and it was not competent [255]for President *Adams to give the instrument of writing a different direction by annexing to it a different plan."

But this opinion was evidently given in ignorance of the proceedings of the commissioners on June 21, 1798, already referred to, and in which it appears that, in their letter to President Adams, they mention that the plan sent was "the last plan of the city, made by Mr. Dermott, and referred to in said instrument of writing"-the said instrument of writing being President Washington's act of March 2, 1797.

We also find in the record that, on January. 7, 1799, Attorney General Lee, in an opinion given to President Adams, said:

"Already a plan of the city has been approved and ratified by the President of the United States, who has signed the plan it

The record also contains a copy of a report
of a committee of the House of Representa-
tives, of April 8, 1802, in which it is said,
referring to the Dermott plan:

"This plan has been signed by Mr. Adams,
in conformity with which the trustees were
directed by him to convey the public grounds
to the United States, and is considered by
the commissioners the true plan of the city.
The plan has never been engraved or pub-
lished.
Your committee are of the
opinion that suffering the engraved plan,
which is no longer the true plan of the city,
to continue to pass as such, may be product-
ive of great deception to purchasers; and
that measures ought to be taken for its sup-
pression."

On July 14, 1804, President Jefferson, in a communication to Mr. Thomas Monroe, Superintendent of Public Buildings, said:

"The plan and declaration of 1797 were final so far as they went, but even they left[256] many things unfinished, some of which still remain to be declared."

What would seem to be decisive of the dis

pute is the fact that in the act or instrument signed by President Washington on March 2, 1797, is contained, by metes and bounds, a specification of the reservations, seventeen in number, and those metes and bounds do not coincide with the reservations indicated upon the Ellicott plan, but do accurately coincide with the reservations as indicated in the Dermott plan.

We, therefore, cannot doubt that the Dermott map was the one intended by President Washington to be annexed to his act of March 2, 1797.

But while we regard the Dermott map as sufficiently authenticated, we do not accept the contention that it is to be considered as the completed and final map of the city, and that it alone determines the questions before

us.

On the contrary, we think it plain, upon the facts shown by this record, that the President, the commissioners, and the surveyors proceeded, step by step, in evolving a plan of the city. Under each of the plans mentioned lots were sold and private rights acquired. Changes were, from time to time, made to suit the demands of interested parties, and additions were made as the surveys were perfected. Even the last map approved by President Washington, as was said by President Jefferson in 1804, left many things unfinished, some of which still remained to be declared.

In short, we think that these several maps are to be taken together as representing the

967