titled now to only one lot or otherwise not | the public faith was necessarily pledged, A similar agreement was entered into by the owners of lots in the town of Hamburgh. Following these agreements came the conveyances by the several proprietors to Beall and Gantt, trustees. Without quoting from them at length, and referring to those of David Burns and Notley Young, copied in full in the statement of the case, it is sufficient here to say that the proprietors, by said conveyances, completely devested themselves of all title to the tracts conveyed, and [249] that the lands were granted to the said trustees, "to have and to hold the hereby bargained 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 hereby bargained and sold, or such part thereof as may be thought necessary or proper, be laid out together with the lands for a Federal city, with such streets, squares, parcels, and lots as the President of the United States for the time being shall approve; and that the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs 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: "It is not very material, in our opinion, to decide what was the technical character of the grants made to the government; whether they are to be deemed mere donations or purchases. The grants were made for the foundation of a Federal city, and 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: "Undoubtedly Notley Young, prior to the founding of the city and the conveyance of his land for that purpose, was entitled to enjoy his riparian rights for his private uses and to the exclusion of all the world besides. It can hardly be possible that the establishment of the city upon the plan adopted, including 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 altogether 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 proceed to have the said lines run, and, by proper 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-" ings for the accommodation of Congress, the President's house, and the public offices. We are here met with a serious controversy as to the place and nature of the river boundary of the city. The record contains a large amount of evidence, consisting chief ly of maps and plans, of correspondence between the President and the commissioners, the deeds of conveyance by the original proprietors, and the testimony of old residents, some of whom had acted as surveyors and engineers 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. 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 As a national city was to be founded, squares were prepared and ready for diviwhich was to be the permanent seat of the sicn," had a second public sale of lots-a government of the United States, where for- copy of Ellicott's engraved plan being exhibeign nations would be expected to be repre-ited at the sale. Under the general authori sented, and as the site selected was on a nav- ty conferred upon them by the President, on igable, tide-water river, inviting foreign and September 29, 1792, to make private sales domestic commerce, we should naturally ex- at such prices and on such terms as they pect to find the city located in immediate might think proper, the commissioners, beproximity to the river, with public wharves fore November 6, 1792, had effected private and landings, and with a municipal owner- sales of fifteen lots. ship and control of the streets and avenues leading to and bounding on the stream. 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. 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. gress passed any act consequent thereupon; 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. The earliest of these plans was that prepared 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 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 memorial, when he says deviations have been made since the publication of the engraved plan, we know not; that plan required the doing of many acts to carry it into effectsuch 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." On March 2, 1797, by an instrument under his hand and seal, President Washington re quested 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 actually annexed. And on June 21, 1798, the commis "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." sioners wrote a letter to President Adams | self, or an instrument referring to the plan, 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 record also contains a copy of a report of a committee of the House of Representatives, 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 published. 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 productive of great deception to purchasers; and that measures ought to be taken for its suppression." On July 14, 1804, President Jefferson, in a communication to Mr. Thomas Monroe, Superintendent of Public Buildings, said: 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 Washington 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 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 dispute 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 intentions of the founders of the city, and, so far as possible, are to be reconciled as parts of one scheme or plan. Pursuing such a method of investigation, we perceive that, in the first map submitted to Congress by President Washington on December 13, 1791, as "the plan of the city," there is between the lots fronting on the Potomac and the river itself an open space, undoubtedly intended as a thoroughfare and for public purposes. It is true that this open space is not named as a street. none of the other streets and avenues on this map are named. And we read in a letter [257] of the commissioners to Major L'Enfant, dated September 9, 1791, as follows: But "We have agreed that the Federal district shall be called 'The Territory of Columbia,' and the Federal city "The City of Washington;' the title of the map will therefore be 'A map of the City of Washington in the Territory of Columbia.' We have also agreed the streets be named alphabetically one way, and numerically the other; the former divided into north and south letters, the latter into east and west numbers from the capitol. Major Ellicott, with proper assistants, will immediately take and soon furnish you with soundings of the Eastern Branch to be inserted in the map." This L'Enfant plan contains all the essential features of the city of Washington as they exist to-day. Owing to the disputes between L'Enfant and the commissioners, as already stated, the former withdrew, and Andrew Ellicott, who had been acting as an assistant to L'Enfant, proceeded with the work, with the result that about October, 1792, the engraved or Ellicott map was completed and in the hands of the commissioners. This map shows the squares numbered, the avenues named, and the lettered and numbered streets all designated. It also shows on the front on the Potomac river and on the Eastern Branch, between the ends of the lots and the squares and the water, an open, continuous space or street, extending through the entire front of the city. veys. But it must be said of this map that it did not show all the squares or correctly place the public reservations, and, indeed, it was made before the completion of the surAs was said by the commissioners in their letter of February, 1797, "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." they went; but even they left many things unfinished, some of which still remain to be declared." Then came, in March, 1797, the Dermott map, which indicated the location and extent of the public reservations or appropriations, and also certain new squares, not shown on the engraved plan, and which were laid out on the open spaces at the intersection of streets appearing on the engraved plan; and also exhibited the progress that had been [258]made since 1792, in laying down the city upon the ground in accordance with the scheme of the previous plans. But, as was said by President Jefferson on July 14, 1804, in a passage previously quoted, "The plan and declaration of 1797 were final so far as President Jefferson was probably led to form this opinion by his personal knowledge of the situation, which was intimate. And here may well be quoted a portion of a long communication addressed to him by Nicholas King, surveyor of the city of Washington, dated September 25, 1806, in which the writer, adverting to the several plans and to certain regulations published by the commissioners on July 20, 1795, said: "Perfecting this part of the plan, so as to leave nothing for conjecture, litigation, or doubt, in the manner which shall most accord with the published plans, secure the health of the city, and afford the most convenience to the merchants, requires immediate attention. The principle adopted in the engraved plan, if carried into effect and finally established in the plan now laid out upon the ground, when aided by proper regulations as to the materials and mode of constructing wharves for vessels to lay at and discharge their cargoes on, seems well calculated to preserve the purity of the air. The other streets will here terminate in a street or key, open to the water, and admitting a free current of air. It will form a general communication between the wharves and warehouses of different merchants, and, by facilitating intercourse, render a greater service to them than they would derive from a permission to wharve as they pleased. The position of this Water street being determined, it will ascertain the extent and situ ation of the building squares and streets on the made ground, from the bank of the river, and bring the present as near to the published plan as now can be done. It will de fine the extent and privileges of water lots, and enable the owners to improve without fear of infringing on the rights of others. Along the water side of the street, the free current or stream of the river should be permitted to flow and carry with it whatever may have been brought from the city along the streets or sewers. The wharves[259] permitted beyond this street to the channel may be stages or bridges with piers and sufficient waterways under them. And on the wharves so erected, it would seem proper to prohibit the erection of houses or anything obstructing a free circulation of air. The surveying is now so far completed that it can be done with the utmost precision, and every foot of ground within the limits of the Federal city, with its appurtenant privileges, may be so defined as to prevent litigation or doubt on the subject. If it is not done at this time the evils will increase and every year add to our difficulties. Even now, from the various decisions or neglects, alterations, or amendments which have heretofore taken place, some time an investigation may be necessary in the arrangement of a system which shall combine justice with convenience. If this decision is left to a future period and our courts of law, they can only have a partial view of the subject, and any 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 sur[260]veying *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." Van Buren, entitled "Plan of part of the City of Washington, exhibiting the water lots and Water street, and the wharves and docks thereon, along the Potomac, from E to T streets south." This map exhibits Water street as extending in front of that part of[261] the city embraced in the map, and it also shows that what are styled "water lots" front on the north side of Water street. 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 We have not overlooked the fact disclosed by the evidence in the record that, even during the presidency of General Washington, there were complaints made, from time to time, of alleged changes or departures from the L'Enfant and Ellicott plans, and that also efforts were made, sometimes successfully, to get changes allowed. And on November 10, 1798, a memorial was addressed to President Adams by some of the proprie tors of lands within the city, complaining of changes made by the Dermott plan in some of the features of the previous plans, and calling attention to the incompleteness of that plan in omitting a delineation of Water street. 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 regulations were published, containing, among other things, the following: "That all the proprietors of water lots are permitted to wharf and build as far out into the river of Potomac and the Eastern Branch as they may think convenient and proper, not injuring or interrupting the channels or navigation of the said waters; leaving a space, wherever the general plan of the streets of the city requires it, of equal breadth with those streets; which, if made by an individual holding the adjacent property, shall be subject to his separate ocupation and use, until the public shall reimburse the expense of making such street; and where no street or streets intersect said wharf, to leave a space of sixty feet for a street at the termination of every three hundred feet of made ground." This was certainly an assertion of the control by the public, then represented by the commissioners, over the *fast land adjoining the[262] shores and extending to the navigable chan-" nels. 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 |
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