« ForrigeFortsett »
general rule they may adopt may be attended with serious disadvantages."
Nicholas King himself prepared a plan or serial map of sixteen sheets in 1803. There is evidence tending to show that this was done in pursuance of an order of the commissioners; and in reference to it the record contains the testimony, in the present case, of William Forsythe, who had been connected for many years with the office of surveyor of the city, in subordinate capacities and as the head of it, and who was in 1876 the surveyor of the District of Columbia. He says: "I can only say that it is the best in point of execution of the early maps of the city; and that it has been acted upon ever since it has been prepared in connection with the affairs of the surveyor's office, and that the lines of wharfing indicated upon the map from Rock Creek to Easby's Point have been followed; in other words, that all the improvements, such as reclamation of land, and the wharves that have been built in that section of the city, were made and built in accordance with the plan of wharfing, etc., indicated on this map. The map of 1803 has always, in my recollection going back forty years in connection with the surveying department of the city, been considered and acted upon as an official map, and from conversation with those who have preceded me in the surveyor's office, I know that it was always considered by them as an authentic official map of the city. It has in fact been the standard map."
While it is true that this map of 1803 was never officially approved or authenticated by any President of the United States, as were the earlier maps, and is not therefore of conclusive effect, it is, in our opinion, a legitimate and important piece of evidence.
In connection with the later map of 1803, prepared by King, ought also to be considered a series of plans drawn by him and laid before the commissioners on March 8, 1797, in a communication, as follows:
"I send you herewith a series of plans exhibiting that part of the city which lies in the vicinity of the water, and includes what is called the water property, from the confluence of Rock creek with the Potomac to the public appropriation for the Marine Hospital on the Eastern Branch. What appears to me the most eligible course for Water street, with the necessary alterations in the squares already laid out, or the new ones which will be introduced thereby, are distinguishable by the red lines which circumscribe them, while those already established are designated by two black lines."
Without pausing to examine the King map and plans in their particulars, to some of which we may have occasion to recur at a subsequent stage of our investigation, it is enough to here state that the existence of a water street in front of the city, and comporting, in the main, with its course as laid down on the engraved plan of the Ellicott plan, is distinctly recognized.
The record also contains a map proposed by William Elliott, surveyor of the city of Washington, in 1835, and adopted in 1839 by the city councils and approved by President
Van Buren, entitled "Plan of part of the City
We have not overlooked the fact disclosed
But these complaints appear to have been ineffectual. Nor are we disposed to under. stand them as meaning more than a call for a perfect delineation of Water street-not as asserting that the Dermott plan was an abandonment of such a street.
In connection with the various maps and plans must be read the regulations issued by the commissioners while they were acting, and their contract and agreements with the proprietors and purchasers.
In July, 1795, certain wharfing regula
were published, containing, among
wharf and build as far out into the river of
Another fact of much weight is that, in the division of squares between the commissioners and Notley Young, the plats of which were signed by the commissioners and by Notley Young in March, 1797, the southern boundary is given as Water street.
It is doubtless true, as argued in the brief filed for those who succeeded to Young's title, that such a division would not, of itself, have the effect of vesting title in fee to the land in the United States. Nor, perhaps, would such a transaction operate as a donation by Young to the city of the territory covered by
the street, although it might be deemed a | of the Potomac river and the Eastern Branch
Stress is laid, in the arguments for the appellants, on the use of the term "water lots," in the agreement of December 24, 1793, between the commissioners for the Federal buildings, of the one part, and Robert Morris and James Greenleaf, of the other part, and also on the statement made, in that agreement, that Morris and Greenleaf were entitled to the lots in Notley Young's land, and, of course, to the privileges of wharfing annexed thereto.
It should, however, be observed that the term "water lots," as used in that agreement, and elsewhere in the proceedings of the commissioners, does not necessarily mean that such lots were bounded by the Potomac river. The lots fronting on Water street were spoken of as "water lots" because next to that street and nearer to the river than the lots lying behind a fact which gave them additional value. That this was the usage in speaking of "water lots" appears in Ellicott's map made in 1835, and approved by President Van Buren in 1839, where the lots abutting on Water street on the south are termed "water lots."
As to the statement in the agreement that Morris and Greenleaf, as purchasers from the commissioners of lots in *Notley Young's land, would be entitled to the privilege of wharfing annexed thereto, it must be remembered that that language was used in 1793, before the division of squares between Notley Young and the commissioners was made. It is true that in the return made by the surveyors, on June 15, 1793, of squares 472, 473, 505, 506, south of 506, and south of south 506, they bounded said lots by the Potomac river. But in a further and subsequent return, made on December 14, 1793, these squares are given, in each instance, a boundary by Water street. And on June 22, 1794, the commissioners adopted the later survey, as shown by an entry on their minutes, as follows:
"The commissioners direct that the surveys and returns made of the part of the city in Mr. Young's land, adjoining the Potomak, leaving Water street according to the design of the plan of the city, be acted on instead of the returns made by Major Ellicott in some instances bounded with and in others
near the water."
And we learn, from the evidence in the record, that on July 12, 1794, by a letter of that date, Thomas Freeman, a surveyor in the employ of the commissioners, informed them that "Water street on Potomak river is adjusted and bounded."
So that Morris and Nicholson, who succeeded to the interest of Greenleaf, took under their contract squares laid off in Notley Young's land with a boundary in every in
stance on Water street.
By various ordinances, from time to time passed, the city, from its organization in 1802, exercised jurisdiction over the portions
Controversies arose, involving the meaning of the agreements between the original proprietors and the United States and the city of Washington, and as to the effect of subsequent acts of Congress and ordinances of the city authorities, and these questions found their way into the courts.
Van Ness and Wife v. The City of Washington and the United States, 4 Pet. 232 [7: 842], grew out of an act of Congress of May 7, 1822, authorizing the corporation of Washington, in order to improve certain parts of the public reservations and to drain the low grounds adjoining the river, to lay off in building lots certain parts of the public res ervations and squares, and also a part of B street, as laid out and designated in the original plan of the city, which lots they might sell at auction, and apply the proceeds to those objects, and afterwards to enclosing, planting, and improving other reservations, the surplus, if any, to be paid into the Treasury of the United States. The act also an thorized the heirs or vendees of the former proprietors of the land on which the city was laid out, who might consider themselves injured by the purposes of the act, to institute in the circuit court of the District of Colum bia a bill in equity against the United States, setting forth the grounds of any claim they might consider themselves entitled to make: the court to hear and determine upon the claim of the plaintiffs, and what portion, if any, of the money arising from the sale of the lots they might be entitled to, with a right of appeal to this court. The plaintiffs, Van Ness and wife, filed their bill against the United States and the city of Washing ton, claiming title to the lots which had been thus sold, under David Burns, the original proprietor of that part of the city, on the ground that by the agreement between the United States and the original proprietors, upon the laying out of the city, those reservations and streets were forever to remain for public use, and without the consent of the proprietors could not be otherwise appropri ated or sold for private use; that by such sale and appropriation for private use the right of the United States thereto was determined, or that the original proprietors reacquired a right to have the reservations laid out in building lots for their joint and equal benefit with the United States, or that they were in equity entitled to the whole or a moiety of the proceeds of the sales of the 265] lots. This court held that the United States possessed an unqualified fee in the streets and squares, and that no right or claims existed in the former proprietors or their heirs.
This decision is criticised by the learned counsel of the appellants as founded on an erroneous assumption by the court, that Beall and Gantt, the trustees, had made a conveyance, on November 30, 1791, of all the premises contained in the previous agree ments, including the squares or lots for public buildings and the land for the streets. And, indeed, it does appear, by the evidence in the present case, that although both President Washington and President Adams did formally request the trustees to convey to the commissioners all the streets in the city of Washington, and also the several squares, parcels, and lots of ground appropriated for public purposes, yet that the trustees, owing to disputes and objections on the part of several of the original proprietors, failed to ever actually execute such a deed of conveyance. Yet even if such an alleged state of facts had been made to appear to the court, namely, that no conveyance of the land in the streets had been actually made by the trustees, we think the conclusion reached by the court in that case could not have been different.
In the act of Maryland, ratifying the cession, and entitled "An Act Concerning the Territory of Columbia, and the City of Washington," passed December 19, 1791, was contained the following:
"And be it enacted, That all the squares, lots, pieces, and parcels of land within the said city, which have been or shall be appropriated for the use of the United States, and also the streets, shall remain and be for the use of the United States; and all the lots and parcels, which have been or shall be sold to raise money as a donation as aforesaid, shall remain and be to the purchasers, according to the terms and conditions of their respective purchase
In August, 1855, Attorney General Cush-mentioned, along the said river, could only ing rendered to the Secretary of the Interior an opinion upon the question of the authority of the Commissioner of Public Buildings, 6]as *successor of the early commissioners, to sell and convey lots in the city of Washington. Adverting to the act of the legislature of Maryland of December 19, 1791, and citing the section above quoted, he said:
"This provision seems to have been designed to have the legal effect to vest in the United States the fee of all the lots, conveyed for their use, and also to perfect the title of purchasers to whom sales had been or should be made according to the terms of the act of Congress." Ops. Atty. Gen. p. 355. And even if the act of Maryland did not avail, of itself, to convey unto the United States a legal statutory title, the facts show that the United States were entitled to a conveyance from the trustees, and a court of equity will consider that as having been done which ought to have been done.
In point of fact the trustees did, by their deed of November 30, 1796, on the request of President Washington, convey to the commissioners in fee simple all that part of the land which had been laid off into squares, parcels, or lots for buildings and remaining 80 laid off in the city of Washington, subject to the trusts remaining unexecuted.
In the case of Potomac Steamboat Co. v. Upper Potomac S. B. Company, 109 U. S. 672 [27: 1070], it was held, following Van Ness v. City of Washington, that the fee of the streets was in the city, and further that the strip between the squares and lots and the Potomac river was such a street, and that there were no private riparian rights in Notley Young and those who succeeded to his title.
In the discussion of the evidence that led to such a conclusion Mr. Justice Matthews said:
"It has been observed that both squares No. 472 and No. 504 are bounded on the southwest by Water street. This street was designated on the adopted plan of the city as occupying the whole line of the river front, and separating the line of the squares from the river for the entire distance from Fourteenth street to the Arsenal grounds. It is alleged in the bill in respect to this street that there was traced on the map of the city 'but a single line denoting its general course *and direction; that the dimensions of said Water street, until the adoption, on the 22d of February, 1839, of the certain plan of one William Elliott, as hereinafter more particularly mentioned, were never defined by law; and that the said Water street was never, in fact, laid out and made in the city until some time after the close of the recent civil war; that before the commencement of said civil war one high bluff or cliff extended along the bank of said river in the city of Washington, from Sixth street west to Fourteenth street west; that to the edge thereof the said bluff or cliff, between the points aforesaid, was in the actual use and enjoy. ment of the owners of the land which it bounded towards the river; that public travel between the two streets last above
be accomplished by passing over a sandy beach, and then only when the tide was low; and that what is now the path of Water street, between the two streets aforesaid, was and has been made and fashioned by cutting down the said cliff or bluff and filling in the said stream adjacent thereto.'
"These allegations in substance, are admitted in the answer to be true, with the qualification that the width of the street was left undefined because it constituted the whole space between the line of the squares and the river, whatever that might be determined to be from time to time; but that the commissioners, on March 22, 1796, made an order directing it to be laid out eighty feet in width from square 1079 to square east of square 1025, and to 'run out the squares next to the water and prepare them for division,' and that it was so designated on the maps of the city in 1803. If not, the inference is all the stronger that the whole space south of the line of the lots was intended to be the property and for the use of the public. Barclay v. Howell's Lessees, 6 Pet. 498 [8: 477]. In Rowan's Exers. v. Portland, 8 B. Mon. 239, that inference was declared to be the legal result of such a state of facts.
"It is quite certain that such a space was designated on the official map of the city as
originally adopted, the division and sale of the squares and lots being made in reference to it. What the legal effect of that fact is we shall hereafter inquire, and while we do not consider it to be qualified by the circumstance, set forth as to the actual history of the street as made and used, they perhaps sufficiently account for the doubt and confusion in which the question of right brought to issue in this litigation seem for so long a period to have been involved.
"The transaction between Notley Young and the public authorities, as evidenced by the documents and circumstances thus far set forth, was equivalent in its result to a conveyance by him to the United States in fee simple of all his land described, with its appurtenances, and a conveyance back to him by the United States of square No. 472, and to Greenleaf of square No. 504, bounded and described as above set forth, leaving in the United States an estate in fee simple, absolute for all purposes, in the strip of land designated as Water street, intervening between the line of the squares as laid out and the Potomac river."
It is earnestly urged in the present case that the court in that case did not have before it the Dermott map, and was not aware that said map was the one approved by President Washington on March 2, 1797. From this it is reasoned that, if the court had been informed that the Dermott map was the real and only official plan, and had seen that Water street was not laid out or designated upon it, a different conclusion as to the ownership of Water street would have resulted. It is by no means clear that the Dermott plan was not before the court. If it was, as is now contended, the only plan which was approved by President Washington as the official map, it would seem very singular that the able and well-informed counsel who represented the respective parties in that case did not think fit to put it in evidence, and make it the subject of comment.
We are inclined to infer that the Dermott plan was the very one referred to in the bill and answer in that case. Thus, in the bill, in the portion above quoted, it was alleged, in respect to Water street, that there was traced on the map of the city "but a single line, denoting its general course and direction;" and in the answer it is stated that the width of the street was left undefined, because it constituted the whole space between the line of the squares and the river.
An inspection of the Dermott plan discloses such a single line, extending along the entire river front on both the Potomac and the Eastern Branch, and outside of the line of the squares and lots.
But the Ellicott plan. as engraved in Philadelphia, discloses a well-defined space, of varying width, between the river and the line of the lots and squares, extending along the entire front of the city.
There are expressions used in the opinion of the court, in that case, that show that the attention and consideration of the court were not restricted to a single map. Thus, on page 679 [27: 1072], after adverting to the order of the commissioners on March 22,
1796, directing that Water street should be laid out eighty feet in width, the court adds "that it was so designated on the maps of the city in 1803"-evidently referring to the King plan.
Even if so unlikely a fact did exist, namely, that in the case in 109 U. S. the Dermott map was not considered, we think that the conclusion of the court would not have been changed by its inspection. It was not understood to set aside or dispense with the important features of the previous maps. It, no doubt, having been made after most of the surveys had been returned, more accurately comported with the lots, squares, and streets as laid out, than the previous plans. But, as we have seen, it was not itself complete. The contention that it omitted Water street, with the intention of thereby renouncing the city's claim to a street on the river, does not impress us as sustained by the evidence. The preceding plans exhib ited a space for such a street, and the sueceeding plans, both that of King in 1803, and that of Elliott, adopted by the city councils and approved by President Van Buren in 1839, recognize and, in part, define Water street. The Dermott plan itself exhibits the line of a space outside of the line of the squares and lots, and that portion of such space that lies on the Eastern Branch is marked on the Dermott plan as Water street.
The latest reference to the maps that we are pointed to in the reports of this court is in Patch v. White, 117 U. S. 221 [29: 864], *where Mr. Justice Woods said: "The devise clearly and without uncertainty designates a lot on Ninth street, between I. and K. streets, well known on the map of the city of Washington, whose metes, bounds, and area are definitely fixea, platted, and recorded. The map referred to was approved by President Washington in 1792 and recorded in 1794. Thousands of copies of it have been engraved and printed. All con veyances of real estate in the city made since it was put on the record refer to it; it is one of the muniments of title to all the public and private real estate in the city of Washington, and it is probably better known than any document on record in the District of Columbia. The accuracy of the description of the lot devised is, therefore, matter of com mon knowledge, of which the court might even take judicial notice."
It is true that in that case there was no controversy respecting the authenticity of the city maps, and that the expressions quoted are found in a dissenting opinion. Still, such statements made in a closely contested case, where the parties were represented by leading counsel, residents of the city of Washington, may fairly be referred to as a contribution to the history of the city maps.
Without protracting the discussion, we think, considering the reasonable probability that a public street or thoroughfare would be interposed between the lots and squares and the navigable river: the language and history of the acts of Maryland referred to; the agreements between the original proprie tors; the deeds to the trustees; the subse quent transactions between the property
holders and the commissioners; the regula- | company cannot validly claim riparian rights tions affecting the use of wharves and docks, as appurtenant to those lots or parts of lots published by the commissioners; the several which the company purchased from indiacts of Congress conferring jurisdiction upon vidual owners who held lots north of Water the city over the adjacent waters; the several street. Having themselves, as we have seen, city maps and plans, beginning with that of no riparian rights, such owners could not L'Enfant, sent by President Washington to convey or impart them to the canal company. Congress in 1791, and ending with that of But it is contended, on behalf of the canal Elliott, approved by President Van Buren in company, that riparian rights attached at 1839; and the views expressed on the sub- least to those portions of their land which ject in previous decisions of this court, that they acquired by virtue of the legislation of the conclusion is warranted, that, from the Congress, and which were located on the marfirst conception of the Federal city, the es- gin of the Potomac river. tablishment of a public street, bounding the Jeity on the south, and to be known as Water street, was intended, and that such intention has never been departed from.
With this conclusion reached, it follows that the holders of lots and squares abutting on the line of Water street are not entitled to riparian rights; nor are they entitled to rights of private property in the waters or the reclaimed lands lying between Water street and the navigable channels of the river, unless they can show valid grants to the same from Congress, or from the city under authority from Congress, or such a long protracted and notorious possession and enjoyment of defined parcels of land as to justify a court, under the doctrine of prescription, in inferring grants.
With these results in view, we shall now proceed to examine the remaining claims. The Chesapeake & Ohio Canal Company was incorporated in 1824 by concurrent acts of the leigslatures of Virginia and Maryland. The object of the company was the construction of a navigable canal from the tide water of the Potomac to the Ohio river.
By an act approved March 3, 1825 (4 Stat. at L. 101, chap. 52), Congress enacted "that the act of the legislature of the state of Virginia, entitled 'An Act Incorporating the Chesapeake & Ohio Canal Company,' be, and the same is hereby, ratified and confirmed, so far as may be necessary for the purpose of enabling any company that may hereafter be formed, by the authority of said act of incorporation, to carry into effect the provisions thereof in the District of Columbia, within the exclusive jurisdiction of the United States, and no further."
That portion of the canal which lies with in the boundaries of the city of Washington extends from Twenty-Seventh street in southeasterly direction to Seventeenth street, and appears to have been opened for navigation in the latter part of 1835. This part of the canal was wholly constructed north of the street designed to run between the squares nearest to the river front and the river itself. The land occupied by the canal company within the city belonged in part to individual owners and in part to the United
Entering the city so long after the adop 2]tion of the several maps and plans, the canal company must be deemed to have been aware of their contents, and to have been subjected thereto, except in particulars in which the company may have been released or exempted therefrom by the acts of Congress, or by the authorities of the city. Consequently the
174 U. S.
If it was, indeed, the persistent purpose of the founders of the city to erect and maintain a public street or thoroughfare along the river front, it would be surprising to find so reasonable a policy subverted by legislation on the part of Congress in favor of this canal company. To justify such a contention we should expect to be pointed to clear and unmistakable enactments to that effect. But the acts of Congress relied on are of a quite different character. Let us briefly examine them.
There was, in the first place, the act of March 3, 1825, heretofore quoted, wherein the act of Virginia incorporating the Chesapeake & Ohio Canal Company is ratified and confirmed so far as may be necessary for the purpose of enabling any company that might thereafter be formed under the authority of that act to carry into effect the provisions thereof in the District of Columbia within the exclusive jurisdiction of the United States, and no further. Then followed the act of May 23, 1878 (4 Stat. at L. 292, chap. 85), authorizing the connection of lateral canals, constructed under authority of Maryland and Virginia, with the main stem of the canal within the District. By the act of May 24, 1828 (4 Stat, at L. 293, chap. 86), Congress authorized a subscription by the United States for ten thousand shares of the capital stock of the company, and made pro- vision for the elevation and width of the section below the Little Falls, so as to provide a supply of water for lateral canals or the extension of the Chesapeake & Ohio Canal by the United States.
It may be conceded that it is clear from these enactments that Congress contemplated the location of the Chesapeake & Ohio Canal along the bank of the Potomac river within the District of Columbia; and it may be further conceded that Congress acquiesced in the route and terminus of the canal selected by the company. But it does not follow from such concessions, or from anything contained in the legislation referred to, that Congress was withdrawing from the city of Washington its rights in Water street, or was granting to the canal company a fee simple in the river margin with appurtenant riparian rights.
It is further urged, that by the act of March 3, 1837 (5 Stat. 303), Congress adopted and enacted as a law of the United States the provision of the Virginia act of February 27, 1829, in the following terms: "That whenever it might be necessary to form heavy embankments, piers, or moles, at the mouths of creeks or along the river