« ForrigeFortsett »
of the Potomac river and the Eastern Branch
Controversies arose, involving the mean-
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, As to the statement in the agreement that planting, and improving other reservations, Morris and Greenleaf, as purchasers from the the surplus, if any, to be paid into the Treascommissioners of lots in *Notley Young's ury of the United States. The act also auland, would be entitled to the privilege of thorized the heirs or vendees of the former wharfing annexed thereto, it must be remem- proprietors of the land on which the city was bered that that language was used in 1793, laid out, who might consider themselves inbefore the division of squares between Not-jured by the purposes of the act, to institute ley Young and the commissioners was made. in the circuit court of the District of Columbia 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 Washington, 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 appropriated 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 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.
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 street, although it might be deemed a dedication thereof to public use as a street. But the importance of the fact consists in the recognition by Young of the existence of Water street, as an existing or projected southern boundary of the squares.
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."
"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 instance on Water street.
By various ordinances, from time to time passed, the city, from its organization in 1802, exercised jurisdiction over the portions
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 nade 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:
"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 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
"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 be accomplished by passing over a sandy an opinion upon the question of the author-beach, and then only when the tide was low; ity of the Commissioner of Public Buildings, and that what is now the path of Water  as successor of the early commissioners, to street, between the two streets aforesaid, sell and convey lots in the city of Washing- was and has been made and fashioned by ton. Adverting to the act of the legisla- cutting down the said cliff or bluff and filling ture of Maryland of December 19, 1791, and in the said stream adjacent thereto.' citing the section above quoted, he said:
"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
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 so laid off in the city of Washington, subject to the trusts remaining unexecuted.
to such a conclusion Mr. Justice Matthews
"It has been observed that both squares
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 curately 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 exhibited a space for such a street, and the succeeding 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 fixed, 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 conveyances 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 common 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 Elliott, approved by President Van Buren in 1839; and the views expressed on the subject in previous decisions of this court, that the conclusion is warranted, that, from the first conception of the Federal city, the establishment of a public street, bounding the eity on the south, and to be known as Water street, was intended, and that such intention has never been departed from.
But it is contended, on behalf of the canad company, that riparian rights attached at least to those portions of their land which they acquired by virtue of the legislation of Congress, and which were located on the margin of the Potomac river.
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.
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 a 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 States.
Entering the city so long after the adoption 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
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
shore, for basins or other purposes, and the president and directors may deem it expedient to give a greater strength to the same by widening them and constructing them of the most solid materials, the ground so formed for such useful purpose may by them, when so improved, be sold out or let for a term of years, as they may deem most expedient for the company, on such conditions as may direct the application of the proceeds thereof to useful purposes, and at the same time repay the necessary expense of the formation of such banks, piers, or moles; provided, that this power shall in no case be exercised so as to injure the navigation of the canal;" that by the second section of the act of 1837, penalties were declared against any person who should maliciously injure the canal or its necessary embankments, tow paths, bridges, or drains; and, by the third section, enacted that "all condemnations of lands for the use and purposes of said canal company, which have heretofore been made by the marshal of the District or any lawful deputy *marshal, shall be as valid as though the same had been situated in the state of Maryland, and had been condemned in pursuance of the laws of said state through the action and agency of a sheriff of any of the counties of said state."
As the canal had been constructed and opened for navigation within the limits of the city before the passage of this act of 1837, and as it is not claimed or shown that any embankment, piers, or moles were constructed on the route of the canal, within the city, since the passage of the act, it thus appears that no rights were acquired by the company on the strength of the act, which are interfered with by the improvements projected by Congress.
It was, indeed, alleged in paragraph 16 of the company's answer that "the company did construct a gate house at the foot of Seventeenth street, and a pier, embankment, or mole at the foot of Seventeenth street, and extending into the Potomac river; and that said gate house and the made land ap: purtenant thereto, and part or all of said pier, embankment, or mole at the foot of Seventeenth street, as the same now exists, are the property of this defendant."
Without stating the particulars of the evidence on this part of the subject, it is sufficient to say that it clearly appears that the basin at the mouth of Tiber creek, at the foot of Seventeenth street, was constructed by the corporation of the city of Washington, and that the pier or embankment, mentioned in the company's answer, did not extend into the Potomac river, but into this basin, and that the gate house referred to was erected under a permission granted by the city council by an act approved May 20, 1837, in the following terms:
tent thereof shall not exceed sixty feet measured south and thirty feet measured east from the northwest corner of the said wharf."
"That permission be and is hereby granted to the Chesapeake & Ohio Canal Company to use and occupy so much of the northwest corner of the wharf erected at the southern termination of Seventeenth street west as they may deem necessary, for the purpose of erecting thereon a house for the keeper of the river lock at that place: Provided, The ex974
*There is nothing in this or in any other legislation on the part of the city council which can be construed as conferring on the company any rights of property in the land intervening, according to the plans of the city, between the canal and the river.
The fair meaning and effect of the legisla tion of Congress and of the city respecting the Chesapeake & Ohio Canal Company were to permit that company to construct and maintain its canal within the limits of the city, and to approve its selection of the route and terminus. The purpose of the construction of the basin at the foot of Seventeenth street was to provide a commodious harbor, in which were to meet and be exchanged the commerce of the Potomac river and of the Chesapeake & Ohio Canal. But we find, in such legislation, no intimation, much less any clear and distinct declaration, of an intention to set aside the existing plans of the city in respect to its river front.
We do not deem it necessary to enter upon a consideration of the exact nature of the company's title to the lands occupied by its canal within the limits of the city, nor to discuss the legal consequences of a failure by the company to occupy and use such lands for canal purposes. Different conclusions might be reached in respect to lands derived by purchase or condemnation and public lands granted for the public purpose of a navigable highway. But, such questions are not before us.
It is sufficient now to hold that the Chesapeake & Ohio Canal Company does not, either as to lots procured from private owners, or as to lands occupied under the permission of Congress and of the city authorities, own or possess riparian rights along the line of its canal within the limits of the city.
Accordingly, the decree of the court below in respect to the claim of the Chesapeake & Ohio Canal Company is affirmed. It was, however, found by the court below that there is a small strip of land north of Water street and owned by the Chesapeake & Ohio Canal Company, which lies within the limits of the government improvement, the value of which was determined by the court below at the sum og $353.33. As the United States have not appealed from this part of the decree, and as the Chesapeake & Ohio Canal Company has not excepted to the finding of the value, it follows that the canal company is entitled to that sum out of the appropriation by Congress as compensation for the occupation by the government of such strip of
The next class of claimants consists of lot owners between Seventeenth street west and Twenty-Seventh street west.
All these lots, with respect to which ripar ian rights are claimed, lie to the north of Water street, which intervenes between them and the channels of the river. Under the principles already established, no riparian rights belonged to these lots. But some portions of the lots are embraced within the 174 U. S.