Sidebilder
PDF
ePub

lying on one of the best Harbours in the Country, must have an immediate value, and are therefore the most proper plans to confine the first sales to."

On the same day, also, L'Enfant was instructed by the commissioners that the Federal district should be called "the Territory of Columbia," and that the Federal city should be named the City of Washington; and that the title of the map should be "A Map of the City of Washington in the Territory of Columbia."

How can it be that Ellicott, the surveyor engaged with Major L'Enfant in laying off the plan of the city, would have suggested that the lots fronting on the water would obtain the best price because of an advantageous situation, if it had been supposed that those lots should be, by the effect of the plan of the city, stripped of their riparian rights, especially when the Peter letter is borne in mind and the construction of the contracts which arise therefrom is taken into consideration.

parian rights in front of his lots, and the pub- to Funks Town; or generally on the Eastern Îic on the other in the exercise of its riparian Branch; the proximity of the first to a tradrights in front of its own lots and the pub-ing town and good navigation, and the second lic land. It is worthy of note that the letter of Peter states that he wrote the President under the inspiration and at the suggestion of Major L'Enfant. If it be true that L'Enfant, who was then engaged in making the plan under Washington's orders, had conceived the project of cutting off all the riparian rights of the lots fronting on the river by a proposed street, how can it be conceived, in consonance with honesty or fair dealing, that he would suggest to Peter the making of a proposition absolutely inconsistent with the very plan which he was then supposed to be carrying out? How can it be thought that if President Washington entertained the idea, that the engineer employed by him had such an intention, could he consistently have favorably indorsed the proposition which would destroy the very plan which it now is decided was then adopted and in process of actual execution? The scrupulous honor, the marvelous accuracy of detail and precision of execution as to everything which he supervised or undertook, which were the most remarkable characteristics of President Washington, exclude the possibility of any other construction being placed upon his acts with reference to Peter's letter than that which I have thus given. But the reasoning is yet more conclusive. Mr. Jefferson's letter shows that before the meeting of the commissioners was held where Peter's letter was acted upon, the plan of Major L'Enfant had been laid before the President and by him transmitted to Mr. Jefferson. With this plan in his possession, do the proceedings at the meeting of the commissioners at which Mr. Jefferson and Mr. Madison were present in conference with the commissioners disclose the slightest repudiation by them or the commissioners of the construction put by Peter upon the contract? Emphatically no, for the sole reason ascribed It is obvious from a glance at this plan, for not entering into an arrangement with as contained in the record, that it projected Peter is the minute entry, "Must wait for an open space along the water front, and money." showed at various localities separate [805] *At the time this meeting of the commis- wharves extending beyond the open way. sioners with Mr. Jefferson and Mr. Madison That L'Enfant never contemplated, however, was held advertisement had been made of an that the effect of this was to cut off the riintended sale of some lots at public auction parian rights of the lot holders, and cause in the following October. In a letter of An- the water privileges to be merely appurtedrew Ellicott, a surveyor who had been as- nant to the street, is shown by his suggestion sisting L'Enfant, which letter was addressed to Peter and the contemporaneous circumto the commissioners under date of Septem-stances which have been already adverted to, ber 9, 1791, he offered suggestions with reference to the contemplated sale of lots, remarking that three things appeared necessary to be attended to:

"First, those situations which will be considerably increased in value when the public improvements are made; secondly, those situations which have an immediate value from other considerations; and, thirdly, those situations whose real value must depend upon the increase and population of the city."

With respect to the second of these considerations he further stated as follows:

"Secondly, it is not probable that the Pub lic Improvements will considerably affect either the value of the Lots from Geo. Town

*On October 17, 1791, a first partial divi-[306] sion of squares or parts of squares was made with one or more of the former proprietors; and on the same day and on the two days following a small number of lots were sold. At this sale plats of that portion of the city in which the lots offered for sale were situated were shown to those in attendance. As none of these appear to have been near the water, no further attention need be given to them.

On October 25, 1791, in his third annual address, President Washington informed Congress that "a city has been laid out agreeably to a plan which will be laid before Congress," and the plan prepared by L'Enfant was transmitted to Congress on December 13, 1791.

and will be moreover shown hereafter. A vivid light on this subject is derived from an additional occurrence which took place at the meeting of the commissioners with Mr. Jefferson and Mr. Madison.

At that meeting it is recited that a letter was written by the commissioners to the general assembly of Maryland, in which occurs this passage:

"That it will conduce much to convenience

[ocr errors]

and use, as well as beauty and order, that
wharfing should be under proper regulations
from the beginning.
Your memori-
alists therefore presume to submit to your
honors whether it will not be proper to
enable the commissioners or some

fact that in the same act in which was given
the power to license and regulate wharves
there was also conveyed the authority to li-
cense excavations and the erection of build-

other corporation, till Congress assumes the
government, to license the building of
wharves of the materials, in the manner, and
of the extent they may judge desirable and
convenient, and agreeing with general or-ings, shows that it was considered that the

der."

The request embodied in the memorial [307]thus submitted implied that in the judgment of those by whom it was drawn riparian rights, embracing the privilege of wharfage, were attached to the lots fronting on the river, and authority was deemed necessary to regulate the exercise and enjoyment of such existing rights. There is not a word in the memorial which can lead to the supposition that the commissioners desired power to originate rights of wharfage, for the memorial asks for authority to license the building of wharves "of the materials, in the manner, and of the extent they may judge desirble and convenient, and agreeing with general order." Indeed, if all the riparian rights as to the lots facing on the river had been destroyed by the effect of the drawing of the L'Enfant plan, then the requested authority was wholly unnecessary, for in that case all the riparian rights would have been appurtenant to a street which belonged to the public, and no one would have had the right to enjoy them without consent of the commissioners, and consequently they would have had the power, in giving their assent to such enjoyment, to affix any condition they deemed proper, without legislative authority for that purpose. The mere fact that the right of a riparian owner to erect wharves is subject to license and regulation in nowise implies the nonexistence of riparian rights and rights of wharfage, for all ownership of that character is held subject to control, as to the mode of its enjoyment, by the legislative authority. I do not stop to make any copious citation to authority on this subject, but content myself with referring to the opinion of Chief Justice Shaw, where the whole matter is admirably considered, in Commonwealth v. Alger, 7 Cush. 53.

act did not originate a right, but merely con-
trolled its exercise. For, can it be said that
because a lot holder was obliged to obtain a
license before erecting a building on his lot,
that therefore his ownership of his building
was destroyed, and that he held it at the will
of the commissioners? If it cannot be so
said in reason as to buildings, how can it
be thus declared as to the wharves, which
were placed by the act in exactly the same
category? The act of the Maryland legis-
lature in which the foregoing provisions were
contained embraced, besides, other subjects.
It subjected to división lands in Hamburgh
and Carrollsburgh, not yet conveyed, for the
purposes of the Federal city, and provided
legal means to accomplish the division of
such lands belonging to persons who, on ac-
count of mental or other incapacity, had not
hitherto conveyed their rights. The act con-
tained a provision as to building liens. pro-
vided for the existence of party or common
walls between contiguous owners, for a rec-
ord book, etc. Annexed in the margint *are [309]

Extracts from act of general assembly of
Maryland, dated December 19, 1791:
After reciting the proclamation of President
Washington, of date March 20, 1791, declaring
the bounds of the territory, since called the
Territory of Columbia, it was further recited
in the first section as follows:

"And whereas, Notley Young, Daniel Carroll
of Duddington, and many others, proprietors of
the greater part of the land hereinafter men-
tioned to have been laid out in a city, came into

an agreement, and have conveyed their lands in trust to Thomas Beall, son of George, and John Mackall Gantt, whereby they have subjected their lands to be laid out as a city, given up part to the United States. and subjected other parts to be sold to raise money as a donation to be employed according to the act of Congress for establishing the temporary and permanent seat The argument, then, that, because the ri- of the government of the United States. under parian right was subject to license and regand upon the terms and conditions contained in each of the said deeds: and many of the ulation, it could not have pre-existed amounts to saying that no riparian right burgh have also come into an agreement, subproprietors of lots in Carrollsburgh and Hamcan ever exist. This follows from an analy.jecting their lots to be laid out anew. giving up sis of the contention. which may be thus stated: Riparian rights exist as rights of property and are ever subject to lawful legislative regulation. If, however, they are regulated. the necessary result of the regulation is to take away the right. I do not here further consider this question, because, [308]as will hereafter be shown by a statement of

the commissioners, which was in effect ap-
proved by President Washington, it was ex-
pressly declared that the sole object and pur-
pose of the desired regulations was to compel
the owners, in the enjoyment of their exist-
ing riparian rights as to wharfage, to conform
to some general plan of public convenience.
On December 19, 1791, the general as-
sembly of Maryland passed an act complying
with the above request and conferring au-
thority to license the building of wharves,
as well as excavations and the erection of
buildings within the limits of the city. The

one half of the quantity thereof to be sold, and the money thence arising to be applied as a donation as aforesaid, and they to be reinstated in one half of the quantity of their lots in the new location or otherwise compensated in land in a different situation within the city, by agreement between the commissioners and them, and, in case of disagreement, that then a just and full compensation shall be made in money yet some of the proprietors of lots in Carrollsburgh and Hamburgh, as well as some of the proprietors of other lands, have not, from imbecility and other causes. come into any agreement concerning their lands within the limits hereinafter mentioned, but a very great proportion of the landholders having agreed on

the same terms, the President of the United

States directed a city to be laid out.

"Sec. 3. And be it enacted, That all the lands belonging to minors, persons absent out of the state, married women, or persons non compos mentis, or lands the property of this state, within the limits of Carrollsburgh and Hamburgh,

impaired, a new water lot was given to the owner to enable him to have the full enjoyment of his water and wharfage privilege. But that to give the owner another allotment to secure him an existing right is utterly incompatible with the conception that the right did not exist, seems to me too clear for anything but statement.

platting the surveys of the division, that "similar regulations had taken place through the rest of the city. The whole of this met the approbation of the commissioners under the regulations of the 10th of April, 1793." This, then, is the situation. An official concerned with duties respecting divisions with lotowners solemnly declares that throughout the whole city the lotowners had been assured that the riparian privright of wharfage would extend by east and "In running a water street on the south-west lines across the proposed street to the east of Carrollsburgh on the bank and establishing the right of wharfing to be governed by the parallel (or east and west streets to the channel). This latter part is not considered as a difference, but an establishment of right, to regulate the privilege by at all times. This was done in order to accommodate the original proprietors of lots in that town already established by law. With out this there was no mode known at the time to do it. Similar regulations had taken place through the rest of the city, of which the returns of the surveyors in the office can "None that I know of after the first artestify. The whole of this met the approba-rangements had taken place, in 1793, respecttion of the commissioners under the regulations of the 10th of April, 1793."

5] *Dermott also communicated the following as alterations made after the Ellicott plan had been published, having respect to the ex-ileges attached to their water lots, which ercise of wharfing privileges:

This explains the presence on the Dermott map at this locality of a number of new squares, in the water, with the river side of the squares open towards the channel. As Dermott declares, they were designed to mark the direction for wharfing, and the evidence establishes that lots thus situated in the water were regarded as appurtenant to the water squares, or squares bounded towards the water by an apparent street, and of which squares an equal division was to be

made.

May I again pause to accentuate the fact that every statement thus made by Dermott to the commissioners of the changes in the Ellicott plan are absolutely inconsistent with the assumed nonexistence of wharfing rights and, indeed, as I understand them, are irreconcilable with honesty on the part of Dermott or the commissioners if the riparian rights had been obliterated. Remember that the lotowners had a right to have the share of the lots coming to them in "a like or as good situation" as before, and if not satisfied with the share given to them, had the power to cause the sale of the whole. To satisfy them and induce them to accept the allotment, here is the final declaration that in considering the question of wharfage the lot holders were assured that their rights would extend across the proposed street by parallel east and west lines to the channel. Can it be believed that Mr. Justice Johnson, then a member of this court, and all the 316] other honorable *men concerned in the division of the lands, would have given such assurances to the proprietors to cause them to accept the allotment, if they knew or believed that the rights of the lot owners were cut off by the proposed street, and that there could be no extension of the east and west lines across the street to the channel? Mark, moreover, the express declaration of Mr. Dermott, upon whom the duty had been cast of

channel, and that this declaration was approved by the commissioners; but yet it is now decided that at the time all this was done there were no riparian rights to extend across the proposed street by east and west lines to the channel, because they had all been cut off by the street in question.

Dermott replied to the question: "Were any difficulties ever suggested as to the direction of the wharves or rights of purchasers until the time of Nicholas King?" as follows:

ing Carrollsburgh, Hamburgh, and other parts of the city. Sometimes purchasers of water property could not at the first view understand their privileges, but when explained to them were generally satisfied; and I know of no one closing a bargain until fully convinced of their rights of wharfage."

Evidently the "first arrangements" referred to were those made on the initial division or sale of water property. "Privileges" and "rights of wharfage" are here also used as synonymous in meaning.

The government having succeeded in selling, at an enhanced price, lots fronting on the river only after convincing the purchasers of their rights to wharfage, it seems to[317] me that, after all these years, it cannot in equity be allowed to hold on to the result of the sales and deny the right of wharfage, by giving positive assurance as to the existence of which the sales were alone made possible.

Mr. Dermott also alluded to the fact that variations had been made in the published plan of Ellicott "in order to compensate original proprietors of lots in Carrollsburgh with lots on the plan of the city upon the principles established by law, and as near the original situation as could be."

In December, 1793, Ellicott addressed another letter to the commissioners, from which it is clearly inferable that the advantages attached to the lots having riparian rights were deemed to give to those lots a higher value than those not possessing such rights.

Dermott, in enumerating the sales of "public water squares, in lots on navigable waters," which were sold before a date stated, mentioned among other property: "The public water property from squares No. 2 to 10, inclusive." The above squares were on land which formerly belonged to Mr. Peter, and was part of the land in front of which the negotiations were had in 1791, already

8, 1792, and the plan of the city engraved at Boston was exhibited. During 1792 some squares were divided with the proprietors, among others Nos. 4, 8, 160, 728, and 729. Nothing else of material importance, requisite to be noticed, transpired in 1792. On March 12, 1793, Major Ellicott, who had been in charge of the surveying department, left the service of the commissioners. Two days afterwards Dermott, who had prepared a plan of that part of the city which is covered by Hamburgh, and who had laid down the lines of Hamburgh in different ink, was requested to do the like with respect to Carrollsburgh, so that each might be ready for division with the proprietors in April.

after the 10th of April, 1793, on which date Ellicott returned to the service of the city. On June 17, 1793, Andrew Ellicott forwarded to the clerk of the commissioners three sheets of different parts of Washington, with the returns of the bounds and dimensions of the several squares represented on the sheets. Sheet 2 contained the part which was formerly Hamburgh-the interferences between the new and old locations being delineated in different colors-Hamburgh, as formerly, being represented in red. Sheet No. 3 contained the town called Carrollsburgh drawn in yellow, so that the interferences, as in the case of Hamburgh, might be rendered conspicuous.

ary of the lower range of water lots. Squares 63 and 89 were subsequently made to embrace the water lots, those squares being bounded on the north by the south line of the old Water street, while in the return and plat of survey they are bounded on the south by the Potomac river.

The map of Hamburgh showing interferOn April 9, 1793, a number of lotowners in ences is contained in the record. No city Hamburgh and Carrollsburgh joined in a squares are shown nearer to the water than formal conveyance of lots owned by them, Nos. 62 and SS. They abut on the south to the trustees named in the deeds of the pro- line of what was named Water street in Hamprietors of the farming tracts, for the pur-burgh, which street was the northerly boundposes of the Federal city. This was after, it will be remembered, both the L'Enfant and Ellicott plans had been prepared, and the latter extensively circulated. It was 'stipulated in this deed that on the allotment and division to be made by the commissioners, "one half the quantity of the said lots, pieces, and parcels hereby bargained and sold shall be assigned and conveyed as near the old situation as may be to them, the said Thomas Johns, James M. Lingan, William Deakins, Jun., Uriah Forrest, and Benjamin Stoddard, respectively, in fee simple, so that each respective former proprietor shall have made up to him one half of his former quantity and in as good a situation."

If the L'Enfant and Ellicott plans had destroyed all riparian rights, as it is now held, it is obvious that the provisions of this conveyance could not be carried out if the water lotowners were to receive half of their lands in the same or as good a situation.

On April 9, 1793, regulations were promulgated by the commissioners relative to the subject of surveys by the surveying department, prescribing forms of returns to be made, etc., adding: "The work is from [313]time to time to be added on the large plat, which, on being finished, is to be considered

as a record."

On April 10, 1793, James R. Dermott was appointed to lay off squares into lots, and regulations were prescribed with respect to the performance of his duties. He was to take minutes of the squares from the certificates of surveys returned to the office of the clerk of the commissioners, and, from this, plat the squares by a scale of forty feet in an inch and divide the squares into lots, and in one corner of the paper containing the plat of the squares he was to write down the substance of the certificate from which it was made, giving the boundaries. Mr. Dermott, in answers to questions propounded by the commissioners on February 28, 1799, enumerates thirty squares that were surveyed in the summer of 1792, having been in a manner bounded and a small ditch cut around them, but the dimensions were not noted on any document. He said that Mr. Ellicott's return of their survey and measurement was

*A partial division was made with some of[314] the lot owners of Hamburgh and Carrollsburgh in 1793. Concerning this, Dermott, in a report to the commissioners made on February 28, 1793, answering the question as to whether he knew of any instance when the right of wharfage in the city had been so claimed or exercised as to raise a dispute, or was likely to do so, said:

"The commissioners in 1793, when dividing Carrollsburgh and Hamburgh, had the subject of wharfage under consideration. There were only two places where any difficulty could arise, against which every precaution was taken. The one place was square south of 744. In compensating for what was termed water property of Carrollsburgh, which lay on that ground, there were some lots laid out in that square to satisfy claimants. Upon an investigation of the business it was found that that square must bind on Canal street to the east, and not the channel, and that it could have no privilege south, therefore the new locations of water property made in it were withdrawn (except one) and placed in square 705, in a much more advantageous situation than could be expected from the original location; to this the original proprietors acquiesced."

Three things are evident to me from this First, that the commissioners statement: had considered wharfing and found no difficulty in recognizing it in every case but the instances mentioned, a condition of things impossible to conceive of if no wharfing rights existed and they had all been vested in the public; second, that the privilege in the water or water lots was treated by Dermott and the commissioners as synonymous with the right of wharfing, in other words, with riparian rights; and, third, that as by the peculiar location of one of the squares which was entitled originally to the water privilege, such privilege was by the new plan

impaired, a new water lot was given to the platting the surveys of the division, that owner to enable him to have the full enjoy. "similar regulations had taken place through ment of his water and wharfage privilege. the rest of the city. The whole of But that to give the owner another allotment this met the approbation of the commissionto secure him an existing right is utterly in-ers under the regulations of the 10th of compatible with the conception that the April, 1793." This, then, is the situation. right did not exist, seems to me too clear for An official concerned with duties respecting anything but statement. divisions with lotowners solemnly declares [315] Dermott also communicated the following that throughout the whole city the lotownas alterations made after the Ellicott plan ers had been assured that the riparian privhad been published, having respect to the ex-ileges attached to their water lots, which ercise of wharfing privileges: right of wharfage would extend by east and "In running a water street on the south-west lines across the proposed street to the east of Carrollsburgh on the bank and establishing the right of wharfing to be governed by the parallel (or east and west streets to the channel). This latter part is not considered as a difference, but an establishment of right, to regulate the privilege by at all times. This was done in order to accommodate the original proprietors of lots in that town already established by law. With out this there was no mode known at the time to do it. Similar regulations had taken place through the rest of the city, of which the returns of the surveyors in the office can "None that I know of after the first artestify. The whole of this met the approba-rangements had taken place, in 1793, respecttion of the commissioners under the regulations of the 10th of April, 1793."

This explains the presence on the Dermott map at this locality of a number of new squares, in the water, with the river side of the squares open towards the channel. As Dermott declares, they were designed to mark the direction for wharfing, and the evidence establishes that lots thus situated in the water were regarded as appurtenant to the water squares, or squares bounded towards the water by an apparent street, and of which squares an equal division was to be made.

channel, and that this declaration was approved by the commissioners; but yet it is now decided that at the time all this was done there were no riparian rights to extend across the proposed street by east and west lines to the channel, because they had all been cut off by the street in question.

Dermott replied to the question: "Were any difficulties ever suggested as to the direction of the wharves or rights of purchas ers until the time of Nicholas King?" as follows:

ing Carrollsburgh, Hamburgh, and other parts of the city. Sometimes purchasers of water property could not at the first view understand their privileges, but when explained to them were generally satisfied; and I know of no one closing a bargain until fully convinced of their rights of wharfage."

Evidently the "first arrangements" referred to were those made on the initial division or sale of water property. "Privileges" and "rights of wharfage" are here also used as synonymous in meaning.

The government having succeeded in selling, at an enhanced price, lots fronting on the river only after convincing the purchasers of their rights to wharfage, it seems to[317] me that, after all these years, it cannot in equity be allowed to hold on to the result of the sales and deny the right of wharfage, by giving positive assurance as to the existence of which the sales were alone made possible.

with lots on the plan of the city upon the
principles established by law, and as near the
original situation as could be."

May I again pause to accentuate the fact that every statement thus made by Dermott to the commissioners of the changes in the Ellicott plan are absolutely inconsistent with the assumed nonexistence of wharfing rights and, indeed, as I understand them, are irreconcilable with honesty on the part of Dermott or the commissioners if the riparian rights had been obliterated. Remember that the lotowners had a right to have the share Mr. Dermott also alluded to the fact that of the lots coming to them in "a like or as variations had been made in the published good situation" as before, and if not satis- plan of Ellicott "in order to compensate fied with the share given to them, had the original proprietors of lots in Carrollsburgh power to cause the sale of the whole. To satisfy them and induce them to accept the allotment, here is the final declaration that in considering the question of wharfage the lot holders were assured that their rights would extend across the proposed street by parallel east and west lines to the channel. Can it be believed that Mr. Justice Johnson, then a member of this court, and all the [316] other honorable *men concerned in the division of the lands, would have given such assurances to the proprietors to cause them to accept the allotment, if they knew or believed that the rights of the lot owners were cut off by the proposed street, and that there could be no extension of the east and west lines across the street to the channel? Mark, moreover, the express declaration of Mr. Dermott, upon whom the duty had been cast of

In December, 1793, Ellicott addressed another letter to the commissioners, from which it is clearly inferable that the advantages attached to the lots having riparian rights were deemed to give to those lots a higher value than those not possessing such rights.

Dermott, in enumerating the sales of "public water squares, in lots on navigable waters," which were sold before a date stated, mentioned among other property: "The public water property from squares No. 2 to 10, inclusive." The above squares were on land which formerly belonged to Mr. Peter, and was part of the land in front of which the negotiations were had in 1791, already

« ForrigeFortsett »