limits of the government plan of reclama | The estate was represented in the appeal to
tion, and for such portions the court below
awarded compensation. All of these claim-
ants, save two, have accepted and received
the compensation.

Richard J. Beall and the heirs and trustees of William Easby have refused to accept the compensation so awarded them, and have appealed. Their asserted grounds of appeal are, first, their alleged rights to riparian and wharfage privileges on the Potomac river as appurtenant to their lots, and, second, the insufficiency of the compensation allowed by the court below.

An effort is made to distinguish the case of these lots from that of the lots east of Seventeenth street by referring to a book marked "Register of Squares," produced from among the records of the city, and wherein squares 63 and 89 are bounded on the north by Water street and on the south by the Potomac river, and square 129 is bounded on the north by B street and on the south by the Potomac river.

It was the opinion of the court below that there was a lack of evidence to prove that the registers of squares were contemporaneous and original books which it was the duty of the commissioners to keep, that the entries were not in their handwriting, nor in that of any person whose handwriting is proved, and that they have not the quality of a public record.

We agree with that court in thinking that, 1277]in no point of view, on the evidence adduced in this case, can effect be given to these registers of squares as contradicting or overriding the plans of the city adopted by the President, wherein, as we have seen, the squares in question were bounded by streets interposed between them and the channels

of the river.

The second complaint on behalf of these appellants is of the insufficiency of the amount allowed them by way of compensation.

We have read the evidence on this subject contained in the record and have been surprised by the discrepancy in the values put on these parcels of land by the respective witnesses a discrepancy so wide that we find it impossible to reconcile the testimony, or to reasonably compromise between the extremes. In such circumstances we think our proper course is to adopt the conclusions of the learned judge who disposed of this matter in the court below. Acquainted, as he presumably was with the locality of the lands and with the character and experience of the numerous witnesses, his judgment would be much safer than any we could independently form. The fact that the larger number of those concerned have acquiesced in the valuation and accepted the award is not without significance. The claim of Mr. Beall that he should be allowed interest or rental value for his property which was taken possession of by the United States in 1882 seems entitled to further consideration by the court below.

The amount awarded to the estate of Will-
iam Easby was made payable in the decree of
the court below to William Easby's heirs.

this court by Rose L. Easby and Fanny B.
Easby, styling themselves trustees of the
estate of said William Easby, and by
Wilhelmina M. Easby-Smith, who is de-
scribed as one of the heirs at law and
administratrix de bonis non cum testamen-
to annexo of William Eashy, deceased.
These parties appear by the record to have
taken a joint appeal, but they are rep-
resented by different counsel. It is now
claimed by the counsel representing Rose
L. Easby and Fanny B. Easby, alleged trus-
tees of the estate, that the decree awarding
payment to William Easby's heirs should be
amended so as to make the award payable to[278]
said alleged trustees. It is said that they
were the only parties to the record, repre-
senting said estate, at the time the said
award was made, and apprehensions are ex-
pressed that if the award is distributed to
the different heirs of William Easby injus-
tice will be done the alleged trustees, because
it will enable said heirs to receive their pro-
portionate shares directly from the govern-
ment without being compelled to share in the
expenses of the suit. This controversy does
not seem to have been dealt with in the court
below, where it properly belongs. and to
which, affirming the award in other respects,
we shall remit the question.

The next claim is one made by the descendants of Robert Peter to parcels of land included in the government plan of reclamation, and situated near the Observatory grounds.

In June, 1791, Robert Peter executed and delivered a conveyance of his lands to Beall and Gantt in trust that the Federal city should be laid out upon them and other lands similarly conveyed by other proprietors.

Robert Peter was one of the signers of the

agreement of March 13, 1791, hereinbefore mentioned, and the terms of his conveyance to Beall and Gantt were substantially similar to those used in the conveyances of David Burns and Notley Young. There therefore passed by this deed to the trustees his entire title to the main land and all his riparian rights appurtenant thereto.

It is now claimed that, under the terms of the agreement and of the conveyance, such streets, squares, and lots should be laid out as the President might direct, and conveyand the residue of said lots should be divided ances be made of them to the United States, between the United States and Robert Peter, and the lots so divided to him, together with any part of said land which should not have been laid out in the city, should be conveyed to Robert Peter in fee by the said trustees; and it is further claimed that certain parts of said land were never laid out as part of the city, nor conveyed either to the United States or Robert Peter, and that the equitable title to such parts, with the riparian rights appurtenant thereto, is in his heirs, for which they are now entitled to compensation. It is not denied that, in pursuance of[279] the agreement and conveyance, the city was laid out, and its streets, squares, lots, and boundaries defined, in the several maps or

plans approved by the President and adopted by the city authorities. Nor has any evidence been adduced that by any act or declaration of the President, or of anyone in authority under him, was any portion of the lands conveyed by Peter and the other proprietors to Beall and Gantt, trustees, ever excluded from the city. Nor is it denied that there was a division of lots between Peter and the commissioners in pursuance of the agreement and conveyance.

But reliance is placed upon the correspondence between Peter and the commissioners tending to show that lands with riparian privileges remained undivided.

In June, 1798, Nicholas King, in behalf of Mr. Peter, addressed a letter to the commissioners, representing that it was "an object highly interesting to Mr. Peter to know the bounds, dimensions, and privileges of those parts of the city generally called water property, and assigned to him on the division. The square south of No. 12 has not yet been divided between said Peter and the commissioners. The square No. 22 as at present laid off and divided with the commissioners does not extend to the channel by several hundred feet. If another square be introduced to the south of it, that square will be covered to a small depth with water, and the proprietors thereof will want earth to wharf and fill it up with. It will perhaps be best therefore to redivide square No. 22 and attach the low ground to it."

Replying on June 28, 1798, the commissioners said:

"When the commissioners have proceeded to divide a square with a city proprietor, whether water or other property, they have executed all the powers vested in them to act on the subject. It appertains to the several courts of the states and of the United States to determine upon the rights which such division may give; any decision by us on the subject would be extrajudicial and nugatory; of this, no doubt, Mr. Peter, if applied to, would have informed you. With respect to square No. 22, we do not conceive that it [280]is entitled to *any water privilege, as a street intervenes between it and the water; but as there is some high ground between Water street and the water, we have no obiection to laying out a new square between Water street and the channel, and divide such square, when laid out, so as to make it as beneficial to Mr. Peter and the public as circumstances will admit."

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This suggestion of the commissioners, to lay out and divide a square south of Water street was never acted on. It is plain that the commissioners would have had no right to disregard the action of the President in establishing Water street as the southern boundary of the city. It also appears from the letter of Mr. King that such a proposed square would have been under the waters of the Potomac, and therefore consisted of territory belonging to the United States as successor to the sovereignty of Maryland, and not to them as grantees of Mr. Peter.

In November, 1798, Mr. Peter, with other persons, as appears in the record, appealed to the President to have corrections made in

the plan of the city, and used the following language:

"We know your excellency will attend to the necessity of defining what water privilege or right of wharfage is attached to the lots on the Eastern Branch, the Potomac river, and Rock creek, also all such streets as are to be left in wharfing from the shore to the channel of said waters, and the extent to which those wharves are to be carried; and what ground, so made and filled up, shall be considered as subject to occupancy by buildings."

This memorial was referred by the President to the Attorney General, Charles Lee, who, in an opinion dated January 7, 1799, advised against the application to make any departure from the plans of the city already approved by the President.

In May, 1800, Mr. Peter and the commissioners agreed upon a division of square south of square No. 12, by which four of the lots were given to Peter, one of which faced on Water street, and two others facing on Water street were assigned to the United States; and in a note attached to the map of square No. 22, signed in 1800 by Nicholas King, as attorney for R. Peter, it is stated[281] that the commissioners conveyed to Robert Peter the lot No. 6 in square No. 22, in consideration of the balance due him by the public of square feet in the division of lots.

Since the year 1800 to the time of the institution of this suit no attempt to impeach this settlement, and no assertion of title to the land south of Water street, by the descendants of Robert Peter, appear to have been made.

The decree of the court below in respect to this claim is affirmed.

The next class of appellants consists of those who claim rights of property on the river front between the Long Bridge and the Arsenal. They all derive title under Notley Young, and the parcels of land they claim are all situated south of Water street, and fall within the limits of the government improvement.

In so far as the arguments advanced in support of these claims are based on the alleged abandonment of Water street in the Dermott plan, and on the legal consequences supposed to follow from the fact that the trustees never formally conveyed the streets or public reservations, they are disposed of by the conclusions already reached.

But it is further contended that, even if we conclude that Water street was designed to be the southern boundary of the city, and that the title to said street passed to the United States, yet the facts disclose such equities between the United States, on the one hand, and the private claimants, on the other, as to justify a decree in favor of these appellants. Those equities are said to arise out of grants made by the United States and the city authorities, from time to time, in respect to wharves and water fronts, under which the appellants and their predecessors acted, and out of the long lapse of time during which they have been in undisturbed possession.

In considering the facts relied on by the

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"That the commissioners aforesaid, for the time being, or any two of them, shall, from time to time, until Congress shall exercise the jurisdiction and government within said territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and extent, they may judge durable, convenient, and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in said waters without license as aforesaid; and if any wharf shall be built without such license or different therefrom, the same is hereby declared a common nuisance."

Here we may pause to observe that the only power given to the commissioners was to grant licenses, from time to time, and until Congress should assume and exercise its jurisdiction within the territory, and it was declared that any wharf built in the waters of the Potomac without such license or in disregard of its provisions was declared to be a common nuisance.

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 occupation and use, until the public shall reimburse the expense of making such street; and when 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 ground. The buildings on said wharves to be subject to the general regulations for buildings in the city of Washington as declared by the President. Wharves to be built of such materials as the proprietors may elect."

It will be seen that, in publishing these regulations, the commissioners claimed no authority in themselves, but professed only to act in virtue of the act of Maryland, and must therefore be understood as having intended to grant temporary licenses, subject to the will of Congress when it should take jurisdiction.

It appears in the record that Notley Young himself procured from the commissioners a license to build a wharf on the Potomac river, and that the wharf appears as an existing structure upon the map of 1797. The board of commissioners was abolished by an act of Congress approved May 1, 1802 (2 Stat. at L. 175, chap. 41) by the second section whereof it was enacted:

"That the affairs of the city of Washington, which have heretofore been under the care and superintendence of the said commissioners, shall hereafter be under the direction of a superintendent to be appointed[284 by and under the control of the President of the United States; and the said superintendent is hereby invested with all the powers, and shall hereafter perform all the duties, which the said commissioners are now vested with, or are required to perform by or in virtue of any act of Congress, or any act of the general assembly of Maryland, or any deed or deeds of trust from the original proprietors of the lots of said city, or in other manner whatsoever."

【283] *On July 20, 1795, the commissioners published the following regulations respecting wharves:

The licenses contemplated therefore were temporary, and liable to be withdrawn by Congress on assuming jurisdiction. Such legislation certainly cannot be relied on as either conferring or recognizing rights to erect and maintain permanent wharves within the waters of the Potomac and the East-ulate the stationing, anchorage, and moorern Branch. ing of vessels," but no authority to license or regulate the building of wharves is given. Then came the act of February 24, 1804 (2 Stat. at L. 254, chap. 14), wherein was given to the city councils power "to preserve the navigation of the Potomac and Anacostia rivers, adjoining the city; to erect, repair, and regulate public wharves, and to deepen docks and basins."

"The board of commissioners, in virtue of the powers vested in them by the act of the Maryland legislature to license the building of wharves in the city of Washington, and to regulate the materials, the manner and extent thereof, hereby make known the following regulations:

This was followed by the act of May 3, 1802, entitled "An Act to Incorporate the Inhabitants of the City of Washington, in the District of Columbia." (2 Stat. at L. 195, chap. 53). In it was given to the corporation "full power and authority to reg

By the act of May 15, 1820 (3 Stat. at L. 583, chap. 104), entitled "An Act to Incorporate the Inhabitants of the City of Washington, and to Repeal All Acts Heretofore Passed for That Purpose," the corporation was empowered "to preserve the navigation of the Potomac and Anacostia rivers adjoining the city; to erect, repair, and regulate public wharves; to regulate the manner 977

"That the proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the Eastern Branch as they think convenient and proper, not injuring or interrupting the channels or navigation of the said waters, leaving a space, wherever the general plan of streets in the U. S., Book 43.

174 U. S.


of erecting and the rates of wharfage at pri- | south of Water street were erected by indi-
vate wharves; to regulate the stationing, viduals in the exercise of private rights of
anchorage, and mooring of vessels."
property in defined parcels of land to them
belonging. The legislation clearly signifies
that during the entire history of the city
Congress and the city authorities have
claimed and exercised jurisdiction for public
purposes over the territory occupied by these
wharves; and that jurisdiction seems to have
been recognized and submitted to by the ap
pellants and their predecessors in many in-
stances in which the evidence discloses the
nature of the transactions.

It is earnestly urged by the learned counsel of the appellants that possession and enjoyment by successive occupants for so long a period warrant the presumption of a grant, and authorities are cited to show that such presumptive grant may arise as well from the Crown or the state as from an individual. As between individuals, this doctrine is wellsettled and valuable; and it may be that, in respect to the ordinary public lands held by the government for the purposes of sale, occupation, and settlement, there might exist a possession so long, adverse, and exclusive as to justify a court of equity or a jury in presuming a grant. But where, as in the present case, the lands and waters concerned are owned by the government in trust for public purposes, and are withheld from sale by the Land Department, it seems more than doubtful whether an adverse possession, however long continued, would create a title. However, under the facts disclosed in this record, it is unnecessary to determine such questions; for, as we have seen, at no time have Congress and the city authorities renounced or failed to exercise jurisdiction and control over the territory occupied by these wharves and docks.

On July 29, 1819 (Burch's Dig. 126), the city council enacted:

"Sec. 1. That the owners of private wharves or canals and canal wharves be obliged to keep them so in repair as to pre vent injury to the navigation.

"Sec. 2. That no wharf shall hereafter be built, within this corporation, without the plan being first submitted to the mayor, who, with a joint committee from the two boards of the city council, shall examine the same, and (285]if it shall appear to their satisfaction that no injury could result to the navigation from the erection of such wharf, then, and in that case, it shall be the duty of the mayor to issue a written permission for the accomplishment of the object, which permit shall express how near such wharf shall approach the channel."

By acts of councils approved January 8, 1831, it was enacted:

"Sec. 1. That it shall not be lawful for any person or persons to build or erect any wharf or wharves within the limits of this corporation who shall not first submit the plan of such wharf or wharves to the mayor, who, with a joint committee from the two boards of the city council, shall examine the same; and if it shall appear to their satisfaction that no injury could result to the navigation from the erection of such wharf or wharves, then, in that case, it shall be the duty of the mayor to issue a written permission for the accomplishment of the object, which permit shall express how near such wharf or wharves shall approach the channel and at what angle they shall extend from the street on which they are erected."

The record discloses a continuous series of acts and joint resolutions of the city councils, on the subject of improving the navigation of the Potomac river, the erection and repair of sea walls on the river, granting special permission to named persons to build wharves in front of such walls. The last we shall notice is the act of March 23, 1863, entitled "An Act Authorizing the Mayor to Lease Wharf Sites on the Potomac River," etc. By this act the mayor was authorized to lease for any term of years, not exceeding ten, wharf sites in front of any sea wall theretofore built by the corporation, or in front of any sea wall that might thereafter be built in pursuance of any enactment for that purpose; and it was provided that at the expiration of ten years, or sooner, the said sites and all wharf improvements thereon should revert to the corporation, and that if the occupants should fail to keep said wharves in good repair and to comply with all the provisions of the act, the contract should cease, and the mayor should notify them to vacate the premises within ten days. And this was followed by similar acts in [286]1865, 1867, 1870, and 1871, all *asserting power by the corporation over the wharves on Water street.

We think it impossible to reconcile the succession of acts of Congress and of the city councils with the theory that the wharves

An effort is made to distinguish the claim of Edward M. Willis, as alienee of A. I. Harvey, defendant, to land lying between Thirteen-and-a-half street and Maryland avenue, and fronting on the Potomac, by the circumstance that Water *street has never[287] been actually constructed and opened as a thoroughfare in front of this land. But it is not perceived that the failure of the city heretofore to open Water street could create any title in Willis to the land and water ly ing south of the territory appropriated for that street. His occupancy, or that of his predecessors, of such land for wharfing or other purposes may be presumed to have been with the consent of the city authorities, but could not, under the facts shown in this record, avail to raise the presumption of a grant.

Referring to a similar claim this court said, in Potomac Steamboat Co. v. Upper Potomac S. B. Co. 109 U. S. 692 [27: 1077]:

"Disputes undoubtedly arose, some quite early, not so much as to what rights belonged to 'water lots,' nor as to what property constituted a 'water lot,' but, in regard to particular localities, whether that character attached to individual squares and lots. In part, at least, the uncertainty arose from the fact that the plan of the city, as exhibited on paper, did not accurately correspond at all points with the lines as surveyed and

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marked on the land. Complaints of that de- | tion, and in directing the institution of these scription, and of designed departures from proceedings, to take for public use, without the plan, seem to have been made. It is also compensation, the private property of inditrue, we think, that mistakes arose, as per-viduals situated within the lines of the govhaps in the very case of the lots on the north ernment *improvement, even where such[289] side of Water street, owing to the fact that property may lie south of Water street. the street existed only on paper, and for a Those who, relying, some of them, on express long time remained an unexecuted project; and others on implied licenses from the city property appearing to be riparian, because authorities, have erected and maintained exlying on the water's edge, which, when the pensive wharves and warehouses for the acstreet was actually made, had lost its river commodation of the public, are not to be front, they were thought to be 'water lots,' treated, as we read the will of Congress, as because appearing to be so in fact but were mere trespassers. not so in law, because they were bounded by the street, and not by the river." Barclay v. Howell's Lessee, 6 Pet. 505 [8: 480]; City of Boston v. Lecraw, 17 How. 426 [15: 118]. There are also defendants who claim the right to hold certain wharf properties on the Potomac between the Long Bridge and the Arsenal, under licenses in writing issued by the Chief of Engineers for the time being, authorizing the erection of wharves. The power to grant such licenses is attributed to the Chief of Engineers as the successor of the office of Commissioner of Public Buildings [288]under the act of *March, 1867. It was the opinion of the court below that, under the legislation that preceded the act of 1867, jurisdiction with respect to private wharves had been conferred upon the authorities of the city, and that hence the Chief Engineer was without any lawful authority to issue such licenses. In so holding the court below followed the decision of the supreme court of the district in the case of The District of Columbia v. Johnson, 3 Mackey, 120.

We see no reason to doubt the soundness of this conclusion, though, for the reasons already given, even if the power to grant such licenses had belonged to the Chief of Engineers, they would not have vested any rights in fee in the land and water south of Water street in these appellants.

The contention, on behalf of the Washing ton Steaboat Company, as successor to the title of the Potomac Ferry Company by a purchase on June 1, 1881, that the act of Congress of July 1, 1864, creating the latter company, operated as a release of the title of the government to such land as that company might acquire for its proper purposes, we cannot accept. The legal purport of that enactment was, as we interpret it, to authorize the ferry company to purchase and hold such real estate as should be necessary to carry its chartered powers into effect, but was not intended as a grant of land on the part of Congress, or as a legislative admis

The fourth section provides that if, on the "shall be of opinion that there exists any final hearing of said cause, the said court right, title, or interest in the land or water in this act mentioned in any person or corporation adverse to the complete and para-[290] sion of the title of private parties. The pow-mount right of the United States, the said er to purchase land thereby conferred had court shall forthwith and in a summary way room to operate on land north of Water proceed to ascertain the value of any such street and on land situated in the state of right, title, interest, or claim, exclusive of Virginia. the value of any improvement to the property covered by such right, title. or interest made by or under the authority of the United States, and report thereof shall be made to Congress."

It may be well here to mention that it is disclosed in the record that the wharves owned by the Potomac Steamboat Company opposite square 472, and other wharves on the Potomac, were rented by the government

While, however, our conclusion is that no riparian rights in the waters of the Potomac river belong to the owners of lots lying north of Water street, and that no presumption of grants in fee can arise, in these cases, from actual occupation of lands and water south of that street, we do not understand that it is the intention of Congress, in exercising its jurisdiction over the territory in ques

That such is not the intention of Congress we infer, not merely from the fact that, by the act of 1886, the inquiry was submitted to a court of equity and not to a court of law, but from the express language of the act. Thus, by the first section, it is made "the duty of the Attorney General of the United States to institute, as soon as may be, in the supreme court of the District of Columbia, a suit against all persons and corporations who may have or pretend to have any right, title, claim, or interest in any part of the land or water in the District of Columbia within the limits of the city of Washington, or exterior to said limits and in front thereof toward the channel of the Potomac river, and composing any part of the land or water affected by the improvements of the Potomac river or its flats in charge of the Secretary of War, for the purpose of establishing and making clear the right of the United States thereto." The second section provides "that the suit mentioned in the preceding section shall be in the nature of a bill in equity, and there shall be made parties defendant thereto all persons and corporations who may claim to have any such right, title, or interest."

"shall proceed with all practicable expediThe third section provides that the cause court of all rights drawn in question theretion to a final determination by the said in; and that the said court shall have full power and jurisdiction by its decree to deest, or claim arising in the premises, and to termine every question of right, title, intervacate, annul, set aside, or confirm any claim of any character arising or set forth in the premises."

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