referred to, for the erection of wharves in wharf. It is patent from such proposition conjunction with the city. They were all that it entered into the mind of no one to bounded on the Ellicott map on the water conceive of the fact that a street laid down side by a street. Square No. 3, appearing as on the plan as in front of the square would[319] a small triangular piece of ground and as cut off riparian rights. Now, what did the abutting directly on the river street, was commissioners do? They accepted the propseparated by a street on the west from osition and sold square 8, expressly declarsquare No. 8. Though appearing on the ing that riparian rights should exist in front plan, square No. 3 had not been platted or of the square, across the street, "agreeably officially admitted as a square. On Decem- to the general idea in similar instances." ber 22, 1793, John Templeman offered to buy Put side by side the decision now made and one half-presumably the public half-of the declaration of the commissioners. There square 8 (which square had been divided were no riparian rights across the street, beOctober 8, 1792), and one half of the square cause they had all been destroyed and taken back of it, "provided that the slip of ground away from the owners and given to the pubwhich lays between the water and streets is lic by the L'Enfant and Ellicott plans. So, given in, and oblige myself to now, it is held. Riparian rights exist across build a good wharf and trick store immedi- the street, including wharfage, in all similar ately." The proceedings of the commission- cases; that is, in all cases where the propers in January, 1794, recite the sale to Tem-erty substantially abuts upon the river, but pleman of nine lots in square No. 8, and the delivery to him of a certificate with the following indorsement thereon: "It is the in[318] tention of this sale that the grounds across the street next the water, with the privilege of wharfing beyond the street in front, and of the breadth of the lots, pass with them agreeably to the general idea in similar instances."

.

It will be observed that the conveyance, in the body of the certificate, was of lots in square 8, the indorsement evidently being designed to indicate what was to be regarded as appurtenant to those lots.

It seems hardly necessary to suggest that riparian rights, that is, rights of wharfage, could not possibly have been certified as existing in the land sold to Templeman, "agreeably to the general idea in similar instances," if all such rights had been already cut off by the effect of the L'Enfant and the Ellicott maps, for it must be borne in mind that the property certified, in effect, as appurtenant to the lots in square 8 and sold to Templeman was delineated on the map as being bounded on the water side by a proposed street.

Let me for a moment consider the consequences of the above transaction. When it took place it is not denied by anyone that the commissioners were sedulously engaged in an effort to dispose of the public lots for the purpose of obtaining the money to carry out the great object of establishing the city. The property sold to Templeman was unquestionably separated from the water by a street on the proposed plans, which had been distributed and were known; but more than this, partially in front of it, on the further side of the street, lay a small strip of land, also bounded on the plan on the river side by an apparent street, and that such square was marked on the plan as a numbered square, though not actually platted. Templeman desired to buy the platted square, but he was unwilling to do so lest it might be claimed that the small piece of unplatted land on the opposite side of the street might cut him off from the river, and thereby deprive him of his riparian rights. That he needed the riparian rights and intended to use them results from the fact that his proposition contained a guaranty to erect a

is bounded by a proposed and projected
street, is the declaration which the commis-
sioners made in the execution of the great
trust reposed in them.

When the effect of this declaration is con-
sidered in connection with the previous acts
of the commissioners and the contracts and
negotiations of the proprietors, and when the
flood of light which it throws upon subse-
quent dealings is given due weight, my mind
refuses to reach the conclusion that riparian
rights did not attach to the water lots. Can
it be doubted that this formal and official
declaration of the commissioners became the
guide and the understanding for the sales
thereafter made by the commissioners, and
which they were then contemplating and en-
deavoring to consummate? Will it be said
that the members of the commission and all
those associated in the work would have al-
lowed a declaration so delusive and deceptive
to have been made and entered on the min-
utes of the commission, if it had in the re-
motest degree been conceived that riparian
rights did not exist?

The sale to Templeman, as stated, was not consummated until January, 1794. No sales in the city took place deserving attention until the 23d of December, 1793, when a contract was made with Robert Morris and James Greenleaf for the sale of 6,000 lots (to be selected), averaging 5.265 square feet, at the rate of thirty pounds per lot, payable in seven annual instalments, without interest, commencing the 1st of May, 1794, and with[320] condition of building twenty brick houses annually, two stories high; covering 1,200 square feet each; and with further condition that they should not sell any lots previous to the 1st of January, 1796, but on condition of erecting on every third lot one such house within four years from the time of sale. It was expressly stipulated that 4,500 of the lots should be to the southwest of Massachu setts avenue, and that of those lots "the said Robert Morris and James Greenleaf shall have the part of the city in Notley Young's land." Certain squares were next specifically excepted from the operation of the agreement, as also "the lots lying in Carrollsburgh, and the water lots, including the water lots on the Eastern Branch, and also one half of the lots lying

.

in Hamburgh, the lots in that part of the
city and belonging to it, other than water
lots, being to be divided by alternate choice
between the said commissioners and the said
Robert Morris and James Greenleaf." Im-
mediately thereafter was contained this pro-
viso: "Provided, however, and it is hereby
agreed by and between the parties to these
presents, that the said Robert Morris and
James Greenleaf are entitled to the lots in
Notley Young's land, and of course to the
privilege of wharfing annexed thereto."

The word "lots" in the proviso manifestly
meant "water" lots, as there had been pre-
viously an express agreement that Morris
and Greenleaf should "have the part of the
city in Notley Young's land." As stated,
the proviso followed a stipulation excepting
"water lots" generally from the operation of
the agreement. Evidently, therefore, the
proviso was inserted out of abundant cau-
tion, to leave no room for controversy as to
the right of Morris and Greenleaf to the "wa-
ter" lots in Notley Young's land; and there-
fore clearly imported that the lots in Notley
Young's land fronting on the river, and
which had been bounded at that time by both
the L'Enfant and the Ellicott plan and by
the return of surveys by Water street, were
notwithstanding water lots, and entitled to
wharfage as a matter of course.

dation of the city and of the manifest influ-
ence which the making of the sale was to
have on the accomplishment of his wishes.
Can it be said of Washington that he would
have allowed a stipulation of that character
to go into the contract if he believed that
there were no water lots and no wharfing
privileges because under his direction they
had all ceased to exist? If this were a con-
troversy between individuals, and it were
shown that a conveyance had been made with
statements in it as to the existence of water
lots and rights of wharfage, would a court
of equity be found to allow the person who
had reaped the benefit of his assurance by[322}
selling the property, to alter his position and
assert as against the purchaser the nonexist-
ence of the very rights which he had declared
"of course" existed, in order to consummate
the conveyance? If a court of equity would
not allow an individual to take such a posi-
tion, my conception is that a nation should
not be allowed here to avail itself of an at-
titude so contrary to good faith and so vio-
lative of the elementary principles of justice
and equity, and, especially, where the stat-
ute on which this controversy is based im-
poses upon the court the duty of administer-
ing the rights of the parties according to the
principles of equity.

It is true that some time after the Morris My mind fails to see that there were no and Greenleaf contract was made a certifiriparian rights or rights of wharfage at- cate was issued by the commissioners, giving tached to the lots bounded by the proposed more formal evidence of the title to the land, [321] Water street, in view of the express terms of and describing the lots by reference merely the above contract. How could it have been to the numbers in the squares, without redeclared that "of course" the water privilege peating the assurance that the lots were waand consequent right of wharfage went with ter lots, and that, "of course," the rights of the water lots, when it had been long deter- wharfage attached as stated in the previous mined, as the court now holds, that there contract. But neither did the certificate rewere no water lots and no wharfing privi-iterate or re-express the obligations assumed leges to be sold? True, it has heretofore by the purchasers to erect buildings, and so been suggested that this provision in the on. Can the certificate be treated as changMorris and Greenleaf contract may have re-ing the covenants of the contract as against ferred to lots in Notley Young's land which Morris and Greenleaf so far as the water lots might be water lots other than those on the and wharfing privilege are concerned, bePotomac river, as, for instance, lots in Car- cause it was silent on this subject, and yet rollsburgh or on the Eastern Branch. But be not held to have discharged them from the ali lots in Carrollsburgh and the water lots burdens of the contract, as to which also the on the Eastern Branch were excluded from certificate was silent? Can it be imputed to being selected by Morris and Greenleaf by the commissioners that after the contract the express terms of the contract, and be- was made, and they had duly reaped the bensides there were no lots in the land conveyed efits arising from it, that, of their own acby Notley Young which could be considered cord, by the mere fact of the issue of the ceras water lots, other than those fronting on tificate, they could discharge themselves the Potomac river and on that portion of the from the burdens of the contract and hold Eastern Branch which the government had on to the benefits? Can a court of equity already taken as a public reservation for an recognize such a principle or enforce it? If arsenal. The fact is, then, that at the very not, how in consonance with equity can such time when it is now decided that all riparian a principle be applied here? But the recrights had been wiped out and that no wharf- ord in my judgment entirely relieves the ing privilege existed as appurtenant to wa- mind of the possibility of imputing any ter lots, in order to accomplish the successful such inequitable conduct to the comfoundation of the city an enormous number missioners, for it shows beyond dispute of lots were sold under the express guarantee that after the consummation of the alof the existence of water lots and under the lotments to Morris and Greenleaf, and unambiguous stipulation that such lots to Notley Young, both these parties or their should, of course, enjoy the wharfing privi- grantees applied to the commissioners for[323] lege. That this sale to Morris and Green- license to erect wharves in front of their leaf was submitted to President Washington "water lots," and that licenses were issued before its consummation no one can doubt, in as a matter of course. It should also be review of the deep interest he took in the foun- | membered that the expression "water lots"

deemed that such privilege was appurtenant; and that the commissioners thought that on three fourths of the water line there was wharfage room sufficient to gratify both makes it plain that it did not occur to the mind of anybody that the contemplated street would cut off the water lots from the possession of riparian rights or destroy the wharfing privilege.

As already stated, a division of the water lots in Hamburgh was not made until June, 1794. Without stopping to analyze these divisions, suffice it to say that in my opinion they affirm the fact that it was not intended to cut off the water privileges of the owners whose water lots were divided. It is clear from the proceedings as to the allotments in squares 63 and 89 (which embraced most of the former water lots) that some of these divisions in Hamburgh, as already mentioned, were made as against owners incapable of representing themselves, and that allotments were made by the commissioners by virtue of the authority conferred by the Maryland act, which commanded, as I have already shown, that the allotments should be in a like situation and that the division should be equal. The acts of the commissioners in the division of the squares referred to manifest, as understood by me, an effort and purpose to comply, not only with the terms of the contracts for the division of Hamburgh, but with the commands of the statute, and show the preservation of whatever rights were appurtenant to the water lots before the division took place. It may be worthy of note that one of the lots in square 63 which was so divided and fell to the public was sold contemporaneously with the transaction as a water lot by the front foot.

I have already referred to the fact that Dermott in 1799 enumerated the public water property previously sold, as part of "the public water property from squares Nos. 2 to 10, inclusive," formerly land of Robert Peter, and part of the water lots in front of which L'Enfant in 1791 had proposed that [327]* Peter and the city should jointly erect wharves. On November 7, 1794, the commissioners wrote to General W. Stewart in part as follows:

With respect to the water lots,
the squares are also not yet divided, and
the commissioners can only sell you the part
of the said two squares" (referring to
squares 2 and 10) which shall belong to
the public on making divisions. Such we
have no objections to sell you at 16 dollars
the foot in front."

And on November 11 following the com-
misioners again wrote General Stewart:
No. 2 contains at the termi-

nation of the wharf 317 feet. This is to be paid for by the number of feet in front, but it includes square No. 7" (a small square on the east), "15,444 square feet, not taken into any other calculation. No. 10 contains in front, at high-water mark, 176 feet. At the termination of the wharf 246. Medium, on account of the vicinity of the channel.

"N. B.-It must be remembered that only one half of these squares belong to the public."

This shows that at the time of these ne-
gotiations wharves existed in front of the
squares, and that though the squares were
bounded on the plan, towards the water, by
a street, yet that the squares lay partly in
the water, and that the negotiations were
conducted on that basis and with reference
to the wharfing privileges. No other infer-
ence is possible in view of the fact that an
actual charge was made for land beyond the
street and out to the end of the wharf.

A sale was made to General Stewart on
December 18, 1794.

At what was formerly Carrollsburgh, as
already stated, a variation was made from
the Ellicott map by running a water street
on the southeast on the bank, and establish-
ing the right of wharfage to be governed
by the parallel (or east and west streets) to
the channel. Dermott, in his report to the
commissioners, represented that "the public
water squares, or lots on navigable water
what fell to the public after satisfying origi-
nal proprietors of lots in Carrollsburgh from
square 611 round to square 705, both inclu-
sive," except four lots in squares 610 and
613, *were sold by a date named. The main[328]
portion of the water lots in front of Carrolls-
burgh would seem to have been allotted to
former water lotowners. The evidence in this
record, however, as to sales of public water lots
in this locality, clearly exhibits the fact that
apparent squares shown on the Dermott map
as lying wholly or almost entirely in the
water, outside of the line of the assumed
street, were sold, simply as a part of the
water lots on the other side of the projected
street; that is to say, the conveyances were
of those lots by the front foot, in some in-
stances adding "with the water privileges
east of the same," showing clearly that what
lay east of the street was considered as sim-
ply a part of the property fronting on
the street, and as necessarily following
it in order not to impair its value.
Instances of this kind are shown by the rec-
ord in connection with squares 667 and east
of 667, squares 665 and 666, and squares
662 and 709. And in the case of square s. s.
667, lying to the south of the street, which
consisted of considerable fast land, a sale
was made of a lot in that square with the
whole be finished, as if the proprietors of such
lots actually resided out of the state; provided,
that if the proprietor of any such lot shall
object. in person, or by writing delivered to the

not before that time divided or assigned, pur-
suant to the said act concerning the territory
of Columbia and the city of Washington, and on
notice thereof in the Annapolis, some one of the
Baltimore, the Eastern, and Georgetown news-commissioners. against their so proceeding as
papers, for at least three weeks, the same
commissioners may proceed to the allotment
and assignment of ground within the said city,
on the day appointed for that purpose, and
therein proceed, at convenient times, till the
174 U. S.
U. S.. Book 43.

63

to his lot, before they shall have made an assignment of ground for the same. then they shall forbear as to such lot, and may proceed according to the before-mentioned act.

993

privilege east of the same, being an unnum- | stripping them of that attribute which gave
bered square lying in the water.
peculiar value to them.

It is worthy to be mentioned, although out of the order of its date, that lots in one of the very squares above referred to (No. 667) were conveyed to General Washington himself, together with the appurtenant lots lying in the water beyond the street, and that General Washington, in his will (1 Spark's Writings, 582, 585,) referred to the lots fronting towards the river on the street as water lots, and made no mention of the lots in the water.

Let me come now to a circumstance which seems to throw such copious light on the situation that it is even more conclusive than the facts to which reference has heretofore been made.

*In September, 1794, Messrs. Johnson and[330} Stuart were succeeded as commissioners by Messrs. Scott and Thornton. In May, 1795, Commissioner Stuart was succeeded by Commissioner White. The views of the new commissioners on the subject of wharfage were expressed by them in a communication to the President dated July 24, 1795, the communication being one transmitting for the President's approval regulations formulated by the commissioners as the result of their consideration of "the subject of regulating the building of wharves.' In the communication it was expressly declared that the regulations had been prepared "with respect to the private property on the water." Referring to the Maryland act of December 17, 1791, which conferred the power to regulate wharfing, the commissioners said:

"Had the legislature of Maryland been silent on the subject, the holders of water property in the city would have had a right to carry their wharves to any extent they pleased under the single restriction of not injuring navigation. The law of the state is therefore restrictive of that general right

erty, and ought not to be construed beyond what sound policy and the necessity of the case may require."

Adverting to the importance of so drafting the regulations as not to impose restrictions calculated to discourage those intending to purchase water lots with their appurtenant privileges, the commissioners said:

Illustrations like unto those above made abound in the record, showing that lots which were separated from the river by a street delineated upon the plan of the city, and also by the return of actual survey, were yet sold by the commissioners for an increased price as water lots, which imported, as has been shown and will hereafter further appear, that riparian privileges were attached to the lots. The record also cites instances where application was made to the commissioners by the owner of a water lot for a license to wharf in front of his lot, and such license issued. I do not stop to [829]*refer in detail to all such cases, because those already enumerated adequately show the conception of the situation entertained by all the parties at the time and on the faith of which they dealt. No single instance to the contrary has been found, nor has a case been pointed to where the commis-naturally flowing from the free use of propsioners sold or offered to sell a water privilege or riparian right of any kind, including the right of wharfage, as appurtenant to a public street. The importance of this fact cannot be overestimated. The history of the times leaves no doubt of the solicitude of President Washington and of the commissioners, whose hopes were enlisted in the permanent establishment of the capital, to avail of every resource to obtain the means wherewith to erect the public buildings, so that the capital might be ready for occupancy at the time designated in the act of Congress. If it be true that the riparian rights were cut off by the intention to make a street along the river, then all such rights along the whole river front belonged to the United States and were at the disposal of the commissioners for sale. Seeking, as they were doing, to make use of every resource by which funds could be procured, can it be doubted that if they had deemed this to be the case, there would not have been mention of the fact on the plans which were put in circulation, and that there would have been effort made to sell these available rights in order to obtain the much desired pecuniary aid? It is certain that the minds of the commissioners were addressed to the importance and value of the water lots and of wharfage, because of the many contracts referring to this subject from the very beginning. The only inference to my mind per missible from this is, that as the commissioners were seeking to obtain the highest possible price for the water lots, because they enjoyed riparian and wharfing privileges, the thought never entered their mind of destroying the sale of the water lots by

"Our funds depend in some measure on sales, and the sales on public confidence and opinion. Any measure greatly counteract ing the hopes and wishes of those interested would certainly be injurious, and ought not to be adopted without an evident necessity."

Does not the declaration that the rules were adopted with respect to private property on the water rebut the contention now advanced that there was no such property on the water, because all riparian rights and rights of wharfage were exclusively the property of the public?

Are these statements of the commissioners not a complete answer to the contention that the Maryland act was intended to originate[331] rights of wharfing, and not merely to regu late the exercise of existing rights? At the outset attention was called to the fact that the Maryland law was passed at the request of the commissioners, preferred at a meeting where Mr. Jefferson and Mr. Madison were present, and that the very terms of the request implied that the commissioners desired power to regulate the riparian rights which they thought were then existing. Now, with all the intervening transactions, comes the letter to the President, showing beyond peradventure the construction and interpretation affixed to the Maryland act by those to whom it was addressed. Could Washing.