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 regulations 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.

Complaint on this subject was made by a Mr. Barry, and such complaint was thus referred to in a letter of Commissioners Scott 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, taking 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 ware houses 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

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 qualification or reservation of any kind, of all proprietors of water lots to wharf into the river and the Eastern Branch.

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.

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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 purchuses, 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

sion in Carrollsburgh, which preserved the riparian rights. In other words, he had dealt with the whole matter, as an officer of the city, upon the assured assumption of the existence of the riparian rights attached to water lots. In no instance, except in a few cases of an exceptional character,. had he questioned such rights. And when, in 1799, he gave a summary of the prior dealings of the commissioners in relation to water property as to which, as stated, he was personally familiar-he observed, after stating that in some special instances squares touching or binding upon the water were not given the privilege of wharfing, in which case they were sold and divided as upland lots, he said as a sure criterion that a lot was a "water lot" and, as a corollary, was entitled to "water privileges;" that "where squares were entitled to water privileges, in the sales these were sold by the front foot, or the privilege generally mentioned to the purchasers." [840] *Under these circumstances to suppose that the line drawn, on Dermott's plan, along the river, whether it indicated a projected street or the line of tide water, was intended to cut off the riparian rights, would attribute to him a conduct so inconsistent, not to use harsher words, as to be beyond explanation. And when the approval by President Washington of the Dermott plan is weighed, it strikes me as an express sanction by him of the existence of the riparian rights and wharfing privileges, as attached to water lots especially in view of all the transactions to which reference has been made, and particularly in view of his language in approving the wharfing regulations, in which he said: "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."

During this period occurred the controversy between Nicholas King and the commissioners, which led to a communication on June 25, 1798, which it is claimed contains language importing generally that the commissioners denied that wharfing privileges attached to a lot when separated from the water by a street. But this inference, in view of all the circumstances, is unwarranted. Mr. King left the employ of the city in September, 1797, and thereafter looked after the interests of some of the original proprietors. As representing Robert Peter, he wrote to the commissioners on June 27, 1798, urging in substance that the wharfing regulations should be made more definite and complete. He enumerated a number of water squares owned by Mr. Peter as entitled to riparian privileges, and without expressly declaring that square 22 was a water square, suggest ed that the dimensions of that square as then platted should be enlarged rather than that a new square should be formed from the low ground on the south, thus implying that the square as enlarged would be bounded on the water side by a street. In answering this communication the commissioners said in reference to square 22:

"With respect to square No. 22, we do not

conceive that it is entitled to any water privileges as a street intervenes between it and the water; but, as there is some high ground *between the Water street and the water, we[341] have no objection to laying out a new square between Water street and the channel, and divide such square, when laid out, so as to make it as beneficial to Mr. Peter and the public as circumstances will admit."

That the commissioners did not intend to assert that a merely projected street appearing on a plan of the city would take a square adjacent to the water out of the category of water property is evident from the fact that they did not dispute Mr. King's assertion that the other squares enumerated in his letter which were bounded, on the plan of the city, on all sides by streets, were possessed of riparian privileges. The commissioners evidently assumed that there was fast land of the entire dimensions of a street south of square 22, and also other fast land between that street and the water, and that the particular locality justified treating square 22 as upland property, and called for the cre ation of a new square to the south. It is to be remarked also that the commissioners were dealing, not with would-be purchasers, but with the representative of the former proprietor, with whom it was competent to agree that in view of circumstances, such as stated, a square might be laid partly in the water below a street, which square should be the "water square" to which the riparian privileges should attach. As these very commissioners, about this very time, sold lots as possessed of riparian privileges where a street was contemplated towards the water and where some fast land existed (as in the case of squares 1067, 1079, 1080 and east of 1025, to which we have already referred as facing that portion of Water street expressly named on the Dermott map), it is evident that the statement in question was not meant as a general declaration in the broad sense which might be ascribed to it if the circumstances under which it was made were not considered.

The examination of the events which transpired in the second period is concluded with mentioning that the commissioners, at various times, made reports to the President, by whom they were transmitted to Congress. In each of these reports they gave a state ment of the public property in the city of 34 Washington, distinguishing between "upland" and "water" property, describing the latter by the number of feet frontage on the water, and stating the average price which had been realized on the sales of water lots in the past by the front foot. This latter was a criterion which Dermott had previous ly declared to the commissioners was one of the conclusive tests for determining whether a lot was entitled to be classed as a water lot, possessed of riparian rights and wharfing privileges. In none of these reports was the claim made that the public possessed all riparian rights as appurtenant to an exist ing or proposed street. Certainly such a claim would have been advanced especially as the reports in question were made with s



view to legislation authorizing the borrow-
ing of money on the security of all the pub-
lic property. The same remarks also apply
to the forwarding of a copy of the plan of
the city, in the same period, to a firm in Am-
sterdam, through whom the representatives
of the city were endeavoring to negotiate a
loan. The public property was marked up-
on that plan, but no intimation was given of
the existence of riparian rights distinct
from the squares appearing upon the plan.
Can it be considered that when all the public
property was being tendered as a security
for money proposed to be borrowed, that so
valuable a right as the entire wharfing
privileges and riparian rights of the city, if
believed to be concentrated in its hands as
appurtenant to a proposed street, would not
even have been referred to or tendered in or-
der to aid in the consummation of the de-
sired loan?

The facts which I have reviewed are not
the only ones establishing the universal ad-
mission and acceptance of the existence of
riparian rights as attached to water lots
during the period examined. Many others
tending in the same direction are found in
the record, and are not referred to because
they are merely cumulative. Among one of
the facts not fully reviewed is the presump-
tion which it seems to me arises from the
book described as the register of squares.
The importance and sustaining power of the
results of this book are substantially con-
ceded by the court, but it is held that the
[343]*book ought not to be treated as controlling.
Grant this to be so, yet the power of the im-
plications resulting from the book when con-
sidered in connection with the other proof to
which I have adverted seems unquestionable.
The book, however, is not reviewed at length,
since it simplifies examination to refer only
to such matters of proof as are unquestioned
in the record and are undenied in the opinion
of the court; and all the facts which I have
above stated come under this category.

By these means, which have been merely
outlined, the difficulties which beset the es-
tablishment of the city were overcome, and
the seat of government at the time provided
in the act of Congress was transferred to its
present location.

Before passing to the third period of time
it seems to me well for a moment to analyze
the situation as resulting from the events
which have been narrated. One or two con-
siderations arise by necessary implication
from them. Either that all parties con-
cerned in the foundation of the city contem-
space should separate the
plated that a
building line from the wharves, so as to have
free communication along the river front,
without impairing the rights of the owners
of the water lots, or that they contemplated
a street, the fee of which would be in the
public along the whole river front, and, ig-
norant of the legal consequence of such a
street, proceeded to dispose of the greater
part of the water lots upon the express un.
derstanding that riparian rights would at-
tach across the street just as if the street
had not been contemplated, and that upon
this understanding everybody contracted and

"I ac

the rights of everyone were adjusted and
finally settled. For the purpose of this dis-
sent it becomes wholly immaterial to deter-
mine which of these propositions is true, be
cause if either be so-as one or the other
must be then the riparian rights, in my
opinion, should be adjudged to exist. It
seems to me, however, that the first hypothe-
sis is the one naturally to be assumed. It
must be borne in mind that L'Enfant, the
engineer selected by President Washington
to draw the plan of the city, was a French-
It is in evidence that he requested Mr.
Jefferson to send him plans of European
cities, and that his request was complied[344]
with. Thus Mr. Jefferson wrote:
cordingly send him by this post plans of
Frankfort-on-the-Main, Carlsruhe, Amster-
dam, Strasburg, Paris, Orleans, Bordeaux,
Lyons, Montpelier, Marseilles, Turin, and
Milan, on large and accurate scales, which
I procured while in those towns respective-
ly." The fair presumption is that L'Enfant's
request of Mr. Jefferson was the result of a
previous communication to him by Mr. Jef-
ferson that he possessed the desired informa-
tion, for it is impossible to conceive, with all
this information in his possession, that Mr.
Jefferson, who must have come in contact
with L'Enfant, would not have stated to him
the fact. It is also fairly to be assumed that as
Mr. Jefferson had procured in person when
abroad the plans of all these foreign cities,
that he was looking forward to them as
means of information and guidance to be
used for the future Federal city; otherwise
he would not have undertaken such a labor.
That Mr. Jefferson was familiar with the
plans is of course manifest, for with his
phenomenal faculty of reaching out for
sources of information on all subjects and
storing his mind therewith for future use, it
is impossible to conceive that he had not
vividly before him the method by which
the cities in question were laid out. Now,
it is especially to be remembered that every
one of the cities mentioned by Mr. Jefferson,
the plans of which he had forwarded, were
on the continent of Europe, that is, were sit-
uated in countries governed by the general
a navigable
principles of the civil law. By that law,
whilst lotowners fronting on
river have the enjoyment of riparian rights,
this right vested in them is subject to what
the civilians denominate a legal servitude,
that is, an easement, by which they are com-
pelled to leave around the entire river front
an open space or way in order to afford con-
venient access to the water by the public.
Whilst this open way may be used by every-
body, it does not cut off the riparian rights,
but is simply superimposed upon those
rights, the lotowner having the enjoyment
of the rights, but being obliged to furnish
the open space which the public may use.
Civil Code of Louisiana, art. 665; Dubose v.
Levee Commissioners, 11 La. Ann. 166; Code
Napoleon, art. 650, and note to the article[345]
in question in the Annotated Code by Fuz-
ier-Herman (Paris, 1885) p. 880.

Is it not natural to presume, in view of the country from which L'Enfant came, in the light of the plans which Mr. Jefferson sent


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