during the Civil War, and that rent was paid for them monthly by the government during a period of several years. It is not to be supposed that the United States are now estopped by such conduct, but the fact is worthy of mention as going to show that the government did not regard those who owned the wharves, and to whom the rent was paid, as trespassers, or that the structures were an obstruction to navigation and unlawfully there. Such recognition by the government of a right on the part of the wharf owners to receive rent, and the long period in which Congress has permitted private parties to expend money in the erection and repair of wharves and warehouses for the accommodation of the public, may be well supposed to have influenced Congress in providing for an equitable appraisement of the value of interests or claims thus arising. In the twelfth section of the bill of complaint the United States "disclaim in this suit seeking to establish its title to any of the wharves included in the area described in paragraph 3 of this bill, and claim title only to the land and water upon and in which said wharves are built, leaving the question of the ownership of the wharves proper, where that is a matter of dispute, to be decided in any other appropriate proceeding." Apparently acquiescing in this allegation or disclaimer, the appellants put in no evidence as to the value of their improvements, and sought no finding on that subject in the court below, but stood, both there and in this court, on their claims of absolute title. An examination, however, of the language of the act of 1886, hereinbefore quoted, dis[291]closes that it was the plain purpose of *Congress that the court should make "a final determination of all rights drawn in question," and should "in a summary way proceed to ascertain the value of any such right, title, interest, or claim." We think it was not competent for the counsel of the respective parties to disregard this purpose of Congress and to withhold a part of the controversy from the action of the court. It is not disclosed in this record whether it is the design of the government, on taking possession of the wharves and buildings belonging to the appellants, to continue them in the use of the public or to supersede them by other improvements. Whatever may be the course pursued in that respect, it should not deprive the appellants of the right conferred upon them by the act of Congress to have the value of their respective rights, titles, interests, or claims ascertained and awarded them. As to the method to be pursued in valuing property of so peculiar a character, the cases of The Monongahela Nav. Co. v. United States, 148 U. S. 312 [37: 463], and Hetzel v. Baltimore & O. R. R. Co. 169 U. S. 26 [42: 648], may be usefully referred to. purtenant to lots bounded on the south by Water street, we remand the case to the court below for further proceedings in accordance with this opinion; and it is so or dered. While, therefore, we affirm the decree of the court below as to the claims of the Marshall heirs, and as to the Kidwell patent, and as to the several claims to riparian rights as ap Mr. Justice Gray and Mr. Justice McKenna were not present at the argument, and took no part in the decision. Mr. Justice White and Mr. Justice Peckham dissented. Mr. Justice White, with whom concurs Mr. Justice Peckham, dissenting: The court holds that the owners of lots fronting on the Potomac river, who are impleaded in this record, have no riparian rights appurtenant or attached to such lots, and that they never possessed rights of that description. This conclusion rests primarily upon & finding of fact, that is, that it was the intention of the founders of the city that a street should bind the city on the entire water front, which street should be the exclusive property of the public, thus cutting off all[292] the lotowners facing the river from connection therewith. Applying to this premise of fact the legal principle that where property is separated from the water by land belonging to someone else, no iparian rights attach to the land of the former, it is held that the lotowners before the court have no ri parian privileges which the government of the United States is in any way bound to respect. Lest the precise theory may not be accurately conveyed the clear statement thereof contained in the opinion is quoted, viz.: "Our examination of the evidence has led us to the conclusion that it was the intention of the founders of the city of Washington to locate it upon the bank or shore of the Potomac river, and to bound it by a street or levee, so as to secure to the inhabitants and those engaged in commerce free access to the navigable water, and that such intention has never been departed from." From the legal proposition that where property is separated from a stream by land belonging to another person, such property is not abutting property, and hence not entitled to riparian rights, I do not dissent. I cannot, however, bring my mind to the conclusion that it was ever contemplated in the foundation of the city of Washington that there should be established a street on, clearly shown to exist, whatever plan of the the water front so as to cut off the riparian city may be considered. For the purposes rights of the lot holders. On the contrary, then of this dissent, it is not at all ques[293]my examination *of the record has forced me tioned that the several plans of the city, reto the conclusion that from the legislation ferred to in the opinion of the court, are to by which the city of Washington was found-be treated each as progressive steps in the ed, from the nature of the contracts made by evolution of the original conception of the the owners of the land upon which the city city, and therefore are each entitled to be is situated, and from the subsequent statu- considered without causing one to abrogate tory provisions relating to the foundation of the efficacy of the other, except where there the city, and their practical execution, it is an essential conflict. It is also deemed was understood and agreed that riparian unnecessary to refer to the events which led rights should attach to the lots fronting on up to the selection of the sites of other cities, the river, and that any proposed street ac- for instance Philadelphia, New Orleans, tually projected or which it was contem- Pittsburgh, and Cincinnati, decisions respect plated might ultimately be established was ing which have been referred to, because in designed to be subordinate to the riparian my judgment the existence of the riparian rights of the lot holders, and was in nowise rights in the city of Washington depends upintended injuriously to impair or affect the on the proceedings and legislation with refersame. It also, in my opinion, clearly ap- ence to the city of Washington and not to pears that this result was understood by wholly dissimilar proceedings in relation to the lotowners, was contemplated by the the foundation of other cities. founders, was approved by legislation, and I come, then, to an examination of the recwas sanctioned by a long course of admin- ord as to the foundation of the city of Washistrative dealing ripening into possession in ington. In doing so-in order to avoid repefavor of the lot holders to such a degree that tition and subserve, as far as I can, clearness to now hold that they are not entitled to ri- of statement-the subject is divided into parian rights would, as I understand the three distinct epochs: First, that involving record, amount to a denial of obvious rights the conception of the city and the steps preof property. Indeed, to disregard the ripar-paratory to its foundation, with the cessions ian rights of the lotowners as shown by the by Maryland and Virginia of sovereignty over record it seems to me will be equivalent to the land which was to form the Federal dis confiscation, and that in reason it cannot be trict, down to and including the 19th of De done without imputing bad faith to the il- cember, 1791, when the general assembly of lustrious men who so nobly conceived and so Maryland passed an act ratifying the pre-] admirably executed the foundation of the vious cession and conferring certain powers Federal city. Of course, I say this with upon the commissioners, etc.; second, the the diffidence begotten from the fact that the formative period of the city, in which the court takes a different view of the record, initial steps taken in the period just stated which therefore admonishes me that, how were in a large measure carried into execuever firm may be my convictions on the sub- tion, and this embraces the period from the ject, there is some reason which has escaped Maryland act of 1791 down to and including my apprehension. the actual transfer and establishment of the seat of government in the city of Washington; and, third, the events subsequent to the last stated period. Even if it be conceded that the record established that the intention of the founders was to bind the city towards the water by a street which would separate the land of the lot holders from the river, and that the fee of such street was to be in the public, such concession would not be conclusive in this case. For the record, as I read it, establishes such conclusive equities arising from the conduct of the government in all its departments, in its dealings with the lot holders and the grantees of the government [294]and those holding under them, as to conclusively estop the government from now asserting any real or supposed technical rule of law so as to cut off rights of private property which the government itself has solemnly avouched, upon the faith of which persons have dealt with it, and from which dealings the nation has reaped an abundant reward. Before approaching the facts I eliminate propositions which seem irrelevant, and the consideration of which may serve to confuse the issue. Let it be at once conceded, arguendo, as found by the court, that whether riparian rights exist does not depend upon deciding whether one or the other of the particular maps or plans of the city is to be controlling. For in my view of the record the riparian rights of the lot holders will be 1. Events connected with the conception of the city and the steps preparatory to its foundation down to and including the statute of Maryland of December 19, 1791. The cessions by Maryland and Virginia, in 1788 and 1789, of the territory intended for the seat of government of the United States need not be recapitulated, as they are fully stated in the opinion of the court. The ac ceptance by Congress, in 1790, of the cessions just mentioned is also stated fully in the opinion of the court. It is important, however, in considering this, to bear in mind a few salient facts: First, that whilst accepting the cessions, it was provided that the seat of the Federal government should not be removed to the proposed capital until more than ten years thereafter, that is, the first Monday of December in the year 1800; sec ond, that "until the time fixed for the removal thereto," and until Congress should by law otherwise provide, the operation of the laws of the state within the district should not be affected by the acceptance by Congress; third, whilst the act empowered the President to appoint three commissioners, who should, under his direction, define and limit the district, and conferred upon the commissioners authority to purchase or accept such quantity of land as the President might deem proper and to provide suitable buildings for the occupation of Congress and of the President and for the public offices of the government, no appropriation was contained in the act for these essential purposes. On the contrary, the only means provided by the act was the authority conferred to accept grants of money or land for the purposes designated in the act. The controversy which preceded the selection by Congress of the district ceded by Vir[296]ginia and Maryland, in order to establish therein the capital of the nation, is portrayed in the opinion of the court, and, indeed, if it were not, it is mirrored in the provisions of the act of acceptance already referred to. For, weighing those provisions, the conclusion cannot be escaped that an acceptance by Congress which left the territory ceded under the control of the ceding states for a period of ten years, and made no provision whatever, by appropriation of money, for the establishment of the city, affixed to the act of acceptance a provisional character depending upon the successful accomplishment by Washington of the plan for the foundation of the capital which he had so fervently advocated. In other words, that the accepting act devolved upon President Washington the arduous duty of bringing into being, within ten years, the establishment of the capital and of securing the means for constructing therein all the necessary buildings for the use of the government, without the appropriation of one dollar of the public money. To the great responsibility thus imposed upon him, Washington at once addressed himself with that intelligence and foresight which characterized his every act. On January 17, 1791, he appointed as the commissioners to execute the provisions of the act of Congress, Thomas Johnson, Daniel Carroll, and David Stuart. The first two were owners of land within the limits of the proposed city. Mr. Johnson, after his designation as a commissioner, was, in 1791, appointed an Associate Justice of this court, and although he qualified as such, he still continued to serve as commissioner during and until after he had resigned his judicial office. By the spring of 1791 the President had finally determined upon the precise situation of the proposed capital, locating it on the banks of the Potomac, within the ceded district, at the point where the city of Washing ton is now situated. The exact position of the land where the city was to be established is shown by the map annexed to the opinion of the court. burgh (sometimes called Funkstown) was located, not far from Georgetown, and the other where the town of Carrollsburgh was situated, on the Eastern Branch. All the farming land fronting on the river and Eastern Branch was owned by Robert Peter, David Burns, Notley Young, Daniel Carroll, William Prout, Abraham Young, George Walker, and William Young. It is conceded that at the time the city was located on the territory thus selected that the owners of all the farming land fronting on the water were entitled under the law of Maryland to riparian privileges as appur tenant to their ownership and that the same right belonged to the owners of lots fronting on the water in the two towns of Hamburgh and Carrollsburgh. It is, moreover, indis putably established that at the time the selection was made some of the lotowners, by wharves or otherwise, were actually enjoying the riparian rights appurtenant to their property. Indeed, an inspection of the map already annexed makes it clear that the lots in Hamburgh and Carrollsburgh ran down to the water's edge, and in some instances extended into the water. A few months after the appointment of the commissioners, in March, 1791, in order to aid in the establishment of the city and to procure the funds wherewith to execute the duties imposed by the act of Congress, through the influence of President Washington most of the larger proprietors of the land embraced within the limits of the city executed an agreement, binding themselves to convey their lands, for the purposes of the Federal city, to such persons as the President might appoint, expressly, however, excepting from the operation of the agreement any lots which the subscribers might own in the towns of Hamburgh and Carrollsburgh. The main purposes of this contract were concisely expressed by President Washington in a let-[298] ter to Mr. Jefferson, then Secretary of State, of date March 31, 1791, enclosing the proclamation fixing the boundary lines of the Federal district. He said: A casual examination of this map discloses that the proposed city began on the banks of the Potomac at Rock creek, separating it at that point from Georgetown, following along [297]*the course of the river to where the Eastern Branch emptied into the Potomac, and extending some distance along the banks of the Eastern Branch. It also shows that all the land fronting on the water within the designated limits was farming land, except at two points the one where the town of Ham "The land is ceded to the public on condition that when the whole shall be surveyed and laid off as a city (which Major L'Enfant is now directed to do) the present proprietors shall retain every other lot-and for such part of the land as may be taken for public use, for squares, walks, etc., they shall be allowed at the rate of twenty-five pounds per acre-the public having the right to reserve such parts of the wood on the land as may be thought necessary to be preserved for ornament. The landholders to have the use and profits of all the grounds until the city is laid off into lots, and sale is made of those lots which, by this agreement, become public property-nothing is to be allowed for the ground which may be occupied as streets or alleys." Subsequently, in order to carry out the agreement, the lotowners conveyed their lands to trustees. The draft of the convey. ances, which were executed on June 28, 1791, there is every reason to believe was prepared by Commissioner Johnson. Several of the conveyances are set out in full in the opinion of the court. Suffice it to | fancy, coverture, or imbecility to consent to say, that the land was conveyed to the trus- a sale or division of their lots. tees by described boundaries, with the ap- I submit that the contracts in question purtenances. Besides embodying the provi- clearly point out the difference between a sions contained in the previous agreement, city laid out as was the city of Washington the deeds also contained other provisions ma- and a city laid out as the result of a plat terial to be noticed. Thus, in effect, the por-made by a proprietor in which lots are lo tion of the land conveyed which was to inure cated on a street fronting on the river and to the benefit of the public was divided into intervening between the lots and the water. two classes: First, the public reservations, The President and the commissioners, in dealstreets, and alleys, not intended to be dis- ing with the land embraced within the proposed of for purposes of profit but retained posed Federal city, were not acting as ownfor the public use; second, the share of the ers in their own right, but were acting unpublic in the building lots (one half) in- der the terms and according to the covenants tended as a donation. The land embraced in contained in the contracts between the parthe first class was to be conveyed by the Pres- ties. What was to be given by the propriident to the commissioners for the time being etors was plainly specified, and what was appointed under the act of Congress, 1790, to be retained by them was also clearly "for the use of the United States forever." stated. Riparian rights having been vested The lands included in the second class were in the owners at the time the contract was stipulated to be sold and the proceeds ap- made, it cannot, it seems to me, with fairness [299]plied as a grant of money, etc., but the trus- be said that the former proprietors were to tees were to retain the title and themselves receive as an equal division, one half of their execute deeds to purchasers of the public lots. lots, if in making that division the governAs already stated in the preliminary agree- ment was to strip all the lots, as well those ments and the conveyances to trustees exe- assigned to the public as those retained by cuted by the larger proprietors, their lots the proprietors, of the riparian privileges situated in Carrollsburgh and Hamburgh originally appurtenant to the land. The inwere excepted. On February 21, 1791, a por- tention of the contracting parties is plainly tion of the proprietors of lots in Hamburgh shown by the provisions for the transfer of executed an agreement binding themselves the property in Carrollsburgh, where the to sell their lots in that town to the Presi- owners stipulated that they should retain dent of the United States or to such commis- one half of the lots, in like situation; and sioners as he might appoint. None of these where the plan to which reference has been lots would seem to have been situated on or made shows that many of the lots abutted near the river, and the agreement may be on the bank of the water in the Eastern dismissed from view. On March 30, 1791, Branch. an agreement was executed by certain lotowners in Carrollsburgh, Commissioners Johnson and Carroll being among the number. It was stipulated that the lots of une subscribers should be subject to be laid out as part of the Federal city; each subscriber donated one half of his lots, and stipulated that his half should be assigned to him in like situation as before; it being, moreover, provided that in the event of a disagreement between the owners and the President as to the allotments made to them, a sale should be made of the lots and the proceeds be equally divided. A copy of the agreement is set out in the margin.† [300] *The contracts just referred to embraced all the territory included within the proposed city, except certain lots in Carrolls-clusively appears that it was plainly underburgh and Hamburgh, the owners of which stood that the lots which were donated to had entered into no contract, and also cer- the nation, and which were to be sold, for tain lots in these towns owned by nonresi- the purpose of raising money to erect the necdents and others who were incapable from in-essary buildings for the establishment of the 2 [1] But if there be doubt as to the agreements from which it could be implied that the lot. owners intended to give, not only one half of their lots, but all the riparian rights appurtenant to the lots which they were to retain, the official conduct of the commissioners, the action of President Washington and of all concerned, including the former proprietors, demonstrates that the understanding of[301] everybody concerned in the transaction was that the half of the lots which were to remain to the lotowners should preserve their riparian privileges, and that they should be continued to be exercised, even although it was proposed, on a plan of the city, that there should be a street on the entire river front. And it seems to me it equally con †We the Subscribers holding or entitled to Lots in Carrollsburgh agree with each other and with the president of the United States that the lots and land we hold or are entitled to in Carrollsburgh shall be subject to be laid out at the pleasure of the president as part of the Federal City and that we will receive one half the Quantity of our respective Lots as near their present Situation as may agree with the new plan and where we may be entitled now to only one Lot or otherwise not entitled on the new plan to one entire lot or do not agree with the president, Commissioners or other person or persons acting on the part of the public on an adjustment of our interest we agree that there shall be a sale of the Lots in which we may be interested respectively and the produce thereof in money or Securities shall be equally divided one half as a Donation for the Use of the United States under the Act of Congress, the other half to ourselves respectively. And we engage to make Conveyances of our respective Lots and lands af'd to Trustees or otherwise whereby to relinquish our rights to the said Lots & Lands as the president or such Commrs. or persons acting as af'd shall direct to secure to the United States the Donation intended by this Agreement. government, should, so far as those lots fronted on the water, have attached to them the riparian rights which were originally appurtenant, and the fact that they had such original rights formed the basis upon which it was hoped that as to these lots a higher price would be obtained, because of the existence of the riparian rights which were intended to be conveyed, and as will be shown were actually conveyed along with the water lots which the government sold. It cannot be in reason successfully denied that the construction of the agreements between two parties contemporaneously made by all concerned, and followed by long years of official action and practical execution, furnishes the safest guide to interpret the contracts, if there be doubt or ambiguity in them. In March, 1791, President Washington intrusted the preparation of a plan of the proposed city to Major L'Enfant. On April 4, 1791, that officer requested Secretary of State Jefferson to furnish him with plans of leading cities and maps of the principal "seaports or dock yards and arsenals," and in a letter to President Washington, dated April 10, 1791, Mr. Jefferson alluded to the fact that he had sent by post to L'Enfant the plans of a number of Continental European cities. Mr. Jefferson mentioned that he had himself procured these plans when he was visiting the named cities. The serious import of the plans thus sent and the significance resulting from them I shall hereafter comment upon. Among the proprietors who joined in the agreement and had actually conveyed his [302]land to the trustees was Robert Peter. His property was situated abutting on Rock creek, and on the river from the mouth of Rock creek to the Hamburgh line. The record shows the following letter to the commissioners from President Washington: erecting wharves to extend from the mouth of Rock creek to the point above Han.burgh called Cedar Point, being about three thousand feet. . . . That the wood should be furnished by me on the same terms that it could be had from others, and that the whole expense should be divided between the public and me in proportion to the property held by each on the water. The streets I consider as belonging to the public and one half the lots, so that I suppose somewhere about one third of the expense would be mine, and about two thirds the public's. Georgetown, July 20, 1791. Sir:-Colonel L'Enfant, I understand, has expressed a wish that I should make propositions to join the public in the expense of On August 28, 1791, Mr. Jefferson wrote from Philadelphia to the commissioners, acknowledging the receipt of a letter from[303] them to the President, and adding: "Major L'Enfant having also arrived here and laid the plan of the Federal city before the President, he (the President) was pleased to desire a conference of certain persons in his presence on these several subjects." Further along in his letter Mr. Jefferson stated that Mr. Madison and himself "will be in George Town on the evening of the 7th or morning of the 8th of next month, in time to attend any meeting of the commissioners on that day.' In accordance with this suggestion, on September 8, 1791, the records show a meeting of the commissioners, and it is recited that "the Hon. Thomas Jefferson, Secretary of State, and the Hon. James Madison attended the commissioners in conference." It is further recited: "The following queries were presented by the Secretary of State to the commissioners, and the answers thereto, with the resolutions following, were given and adopted: Whether ought the building of a bridge over the Eastern Branch to be attempted, canal set about, and Mr. Peter's proposition with respect to wharves gone into now or postponed until our funds are better ascertained and become productive?” In the margin is this notation: "Must wait for money." The foregoing letter of Mr. Peter to President Washington clearly conveyed that his (Peter's) construction of the deed of conveyance which he made to the trustees was that the lots to be assigned to him along the river should preserve their riparian rights, since he proposed as such owner to exercise his riparian rights by building wharves under a joint agreement with the commissioners, by which the work should be done between the commissioners and himself as joint proprietors, he of his lots and they of their share of the building lots, and as owners of the intersecting streets and reservations. That such also was the view of President Washington necessarily follows from the fact that he transmitted Peter's letter to the commissioners with what amounted to an express approval of Peter's construction of the contract, cautioning the commissioners only to be circumspect as to the consequences* of con-[304] structing the wharves and the proper equitable proportion of the cost of construction between the respective parties; that is, Peter on the one hand in the exercise of his ri |
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