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:

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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-

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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.


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.


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.

ton, could Jefferson, have remained silent if the letter of the commissioners was an incorrect statement of the understood law on the subject? The declaration of what the rights of the water lotowners were as to wharfage is as full and complete it seems to me as human language could make it.

The draft of the proposed regulations adopted by the commissioners and which was submitted by them to the President is not in the record, although the communication to the President indicates its character. Correspondence, however, on the subject ensued between the President represented by the Secretary of State and the commissioners. It is to be inferred that the draft of the regulations sent to the President contained a provision forbidding water lotowners, in the construction of their wharves any buildings whatever, the intent appearing to be that the warehouses would be built on the water lot to which the wharfing privilege was attached. This would indicate that the commissioners intended by their reg. ulations to so arrange that any projected street would not cut off the water rights and right of wharfage, but would serve merely as a building line.

striction on the right of water lotowners to erect warehouses on their wharves, thereby clearly implying that the complaint of Barry was treated by President Washington as well founded, and that the regulations were corrected in that respect before final approval. Comment at much length upon the regulations is unnecessary, but their perusal refutes the idea that a street marked upon the plan of the city as running in front of water lots operated to deprive such water lots of riparian privileges. The regulations warrant the inference that the right of wharfage was intended to attach to such lots at the boundary of the lot on the water side, and that the water street was designed to be superimposed upon the water privileges. The requirement was that when the proprietor of the water lot wharfed out in front of his lot, he should leave a space for the street, which, upon the plan of the city, appeared as bounding the lot on the water, and if in so wharfing it became necessary to fill up and make the street, he was to have the exclusive right of occupancy until reimbursed "the expense of making such street."

It will also be observed that in the regulations the right is recognized, without qualifi Complaint on this subject was made by a cation or reservation of any kind, of all proMr. Barry, and such complaint was thus re-prietors of water lots to wharf into the river ferred to in a letter of Commissioners Scott and the Eastern Branch. and Thornton to Secretary of State Randolph on May 26, 1795:

"Mr. Barry had purchased on the Eastern 332]Branch, under *an idea of immediately building, and carrying on trade, but refuses to build, on being informed of the restrictions to which everyone must be subject in support of a Water street, which we presume it was the intention of the executive to keep open to the wharves, as is the case in Bordeaux and some other cities in Europe. The inconvenience pointed out by Mr. Barry is that in unlading vessels it would be necessary to go through three operations: 1st, tak ing out the load; 2d, conveying it across the wharves and Water street to the warehouses; 3dly, by taking it up into the warehouses. Whereas, if the stores or warehouses were to stand on the water edge of the wharves, the unlading into the warehouses would only be one operation, and it would save five per centum, and the same in loading."

Observe that there is not an intimation in this communication that the commissioners or anybody else had the faintest conception that the right to wharf did not exist in favor of the owner of the water lot because of a proposed street, but there was simply a question as to whether the regulations should restrict the water lotowner from building warehouses on his wharves. The wharfing regulations, as adopted, are annexed in the 333]margin.† As approved, they contained no *re

Building Regulation No. 4.
(Proceedings of Commissioners, p. 408.)

City of Washington, July 20th, 1795. 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, & to regulate the materials, the manner and the extent

While President Washington had under consideration proposed wharfing regulations, Commissioners Scott and Thornton addressed a letter to Commissioner White on August 12, 1795. A sentence in this communication illustrates the important nature of the riparian privileges and refutes the thought that anyone then supposed that such a right was received as a favor and was a mere temporary license, revocable at the pleasure of the commissioners or of Congress. The letter discussed the advisability of not requiring a space of sixty feet to be left between the termination of the wharves and the channel, and in the course of the comments it was said: "Mr. Hoban, agent[334] for Mr. Barry, says the intended wharf in his case, which he estimates to cost upwards of twenty thousand dollars, will terminate in four feet water." The regulations, as finally approved, were sent to the commissioners on September 18, 1795, by President Washington, with the following communication:

Mount Vernon, 18 September, 1795. Gentlemen:-The copy of the letter which you wrote to the Secretary of State on the 21 ult., enclosing regulations relative to the wharves and buildings in the Federal city, came to my hands yesterday.

If the proprietors of water lots will be satisfied with the rules therein established for the extension of wharves and buildings thereon, the regulations will meet my entire thereof, hereby make known to those interested the following regulations:

That all the proprietors of water lots are permitted to wharf and build as far out into the river Potomac & the Eastern Branch as they think convenient & proper, not injuring or interrupting the channels or navigation of the said waters, leaving a space wherever the_gen

approbation, and of their ideas on this head you have no doubt made some inquiries and decided accordingly.

Can this letter be reconciled with the theory that proprietors of water lots had no riparian privileges and no right to extend their wharves because of a proposed street? Does not the letter declare the existence of such rights in unequivocal terms, and also clearly point out that the words "water lots" meant property fronting on the river, to which riparian rights and consequently rights of wharfage attached, despite the presence of the proposed street?

Mark the declaration of President Washington that he considers the regulations as relating to the extension of wharves and buildings thereon, clearly implying the right to extend out the wharves from in front of the water lots, and also showing that he had in his mind the change which had been made in the regulations in consequence of the complaint of Mr. Barry, allowing buildings to be erected by the owners of water lots on the wharves which they were entitled to construct. In addition to these considerations, however, there is one of much greater import which arises from the letter of Washington, that is, the great importance which he attached to doing nothing to impair the riparian rights of the owners of water lots, for he expressly says:

[835] *"If the proprietors of water lots will be satisfied with the rules therein established for the extension of wharves and buildings thereon, the regulations will meet my entire approbation."

If the rights of the owners of water lots were not deemed by him a matter of grave importance, why should one so scrupulously careful as Washington always was have declared, in a public document, that the satisfaction of the lotowners with the regulations constituted one of the moving causes for affixing his approval to them? Can it be said that Washington would have subordinated the execution of a public duty to the approval of private individuals who had no especial rights in the matter?

It seems to me that this declaration on his part obviously implied that, as by the results of the contracts made with the former proprietors, under his influence and at his suggestion, they had given up their property upon the condition of an unequal division, he was unwilling that anything should be done to deprive them of a part of their equal rights, and therefore he would not approve any regulations which he considered had such an effect. In other words, from reasons of public honor and public faith, he deemed it his duty to protect the rights of the owners of water lots. This obligation of public faith thus, it seems to me, expressly declared eral plan of the street in the 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 where no street or streets Intersect said wharf to leave a space of sixty feet for a street at the termi

by Washington, rests, in my judgment, upon the nation to-day and should be regarded. As I see the facts, it ill becomes the nation now, when the rights have been sanctified by had never existed, and thus disregard the obyears of possession, to treat them as if they ligations of the public trust which Washington sought so sedulously to fulfil. wharf has been above set forth, and at whose Mr. Barry, whose proposal to build a amended so as to allow the building of a complaint the regulations were presumably warehouse on the wharves, it would seem after the adoption of the regulations feared square No. 771, which had been sold by the another difficulty. Certain lots situated in commissioners to Greenleaf under the express statement that they were entitled to the wharfing privilege, had been conveyed to Barry as the assignee of Greenleaf. The[336] regulations, as I have observed, provided that the wharf owner should, where the plan of the city exhibited a street and at every three hundred feet, leave a space for a street. Barry, perceiving the idea that a projected street (Georgia avenue) which would run across his wharf, would under his complaint previously made impair the utility of his wharf, entered into negotiations with the commissioners on the subject. The majority of the commissioners addressed him the following letter:

City of Washington, 5th Oct. 1795. Sir:-We have had your favor of the 3rd inst., too late on that day to be taken up, as the board were about rising.

It will always give us the greatest pleasure to render every possible aid to those who are improving in the city, especially on so large a scale as you have adopted. We think with you that an imaginary continuation of Georgia avenue through a considerable depth of tide water, thereby cutting off the water privilege of square 771 to wharf to the chan nel, too absurd to form a part of the plan of the city of Washington. That it never was a part of the plan that such streets should be continued through the water, and that your purchase in square 771 gives a perfect right to wharf to any extent in front or south of the property purchased by you not injurious to the navigation and to erect buildings thereon agreeably to the regula tions published.

In other words, the commissioners agreed to relieve him from the effect of the wharfing regulations. Because, in the letter of the commissioners, the words are used "thereby cutting off the water privilege of square 771 to wharf to the channel," it has been argued that the commissioners must have thought that the existence of a street in front of a water lot, between it and the water, would nation of every three hundred feet of made ground; the building on said wharves or made ground to be subject to the general regulations for buildings in the city of Washington, as declared by the President, wharves to be bullt of such material as the proprietors may elect. By order of the Commissioners: (Signed)

T. Johnson, Jr.. Sec'y.

technically operate to deprive the lot of its riparian privileges. But this overlooks the entire subject-matter to which the letter of the commissioners related. They were dealing with the operation which a projected street would have, as complained of by Barry, on a wharf when built, and not with [337] the riparian right to wharf to the channel, which was conceded. Indeed, this becomes perfectly clear when it is considered that the square referred to had been the subject not long before of express representations by the commissioners to various would-be purchasers that it possessed wharfing privileges. This letter of the commissioners also contains a statement which shows their estimate of the theory that a merely projected street in front of a water lot should cut off riparian privileges, since they declare that such an effect to be given to an imaginary street was, to use their language, "too absurd" to be considered.

The period following the approval of the wharfing regulations by General Washington affords other illustrations of the sale of water lots and the granting of licenses to lotowners to wharf across the street in front of their property-in other words, to enjoy their riparian rights-which I do not deem it essential to enumerate in detail, as they are simply cumulative of the examples which I have already given.

There is an interval of about fifteen months during this time where the records of the commissioners no longer exist, and therefore approach is at once made to the Dermott map, which was transmitted by the commissioners to the President on March 2, 1797. The court has inserted a reduced reproduction simply of that portion of this map on which is delineated the water front from the Long Bridge up the Eastern Branch, and this will answer the purpose of elucidating what I have to say in connection with the map.

On June 15, 1795, Dermott had been "directed to prepare a plat of the city with every public appropriation plainly and distinctly delineated." In consequence of depart ires made from the Ellicott map, resulting from changes in the public reservations or corrections of mistakes which were developed as existing by subsequent surveys, as well as from the creation of new squares and the obliteration of some old ones, it resulted that the Ellicott plan no longer accurately portrayed the exact situation of the city. and the Dermott map, when completed, exhibited the result of all such changes.

It was strenuously claimed in argument that this map was the final and conclusive 338]plan of the city, and that an inspection of it disclosed that the proposed water street marked on the plans of L'Enfant and Ellicott was omitted. The court finds that this map was only one step in the evolution of the city, and that whilst it is true that it did not mark Water street along the whole front of the city, it nevertheless delineated a line binding the front, which the court considers indicates that Water street was either then projected or contemplated in the future to exist in accordance with the face of the

Whilst to my

L'Enfant and Ellicott maps.
mind the line in question is but a demarca-
tion of the tide line, this is immaterial; for
it is conceded arguendo that the plan is
what it is now decided to be.

One thing, however, is plainly noticeable on the Dermott map, viz., that whilst the line which it is now held indicates the fixed purpose to there locate a street is patent, Water street is not named upon the map at that locality, and such a street is only named in a short space from square 1079 to square east of square 1025. How the Water street came to be delineated and named at this particular locality by Dermott is shown by an order made by the commissioners on March 22, 1796, 'directing the surveyor to "run Water street to eighty feet wide from square 1079 to square east of square 1025, and run out the squares next to the water and prepare them for division." In other words, at the one place on Dermott's map where a Water street is specifically stated to exist, it is shown that it was the result of a precise order to that effect given by the commissioners. That the commissioners could not have considered that this order cut off riparian rights from the water lots within the area in question is shown by the evidence in the record, which establishes that the lots there abutting on Water street were sold by the commissioners as water lots subsequent, to the order referred to and with water privileges attached. (Square 1067, August 15, 1798, 1079, and 1080, November 9, 1796, and October 24, 1798; east of 1025, December 5, 1798.)

On the Dermott map was noted, as already mentioned, the changes and corrections which had taken place in the intervening time to which I have referred.

The Dermott map also makes clear this, fact that, as by the result of the surveys, in[339] most instances, the measurement of the

squares-certainly in front of Notley Young's land-carried them down to, or substantially to, the water line along the river bank, that the projected Water street, taking the line as delineating such street, was proposed to be established, in great part at least, in the water.

It seems to me, after what has been said, nothing further is required to show that, granting that the line on the Dermott map was intended to indicate a proposed street, it was not thereby the intention to abolish the distinctive characteristics of water lots and the riparian privileges which were appurtenant to them. Dermott himself was familiar with all the previous transactions, having been in the service of the city from early in 1792. He had made changes as reported in the situation of particular pieces of property in order to preserve the riparian rights and give them fruition. He stated to the commissioners in 1799 (long after it is alleged his plan was approved by. Washington) that riparian rights had been the basis of purchases, and that assurances and explanations as to their existence had caused purchases to be made which otherwise would not have taken place. He had supervised the divi

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