[204]*Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor, will, on the order and direction of the President, convey all the said lots so sold and ordered to be conveyed to the respective purchasers in fee simple, according to the terms and conditions of such purchasers, and the produce of the sales of the said lots when sold as aforesaid shall, in the first place, be applied to the payment in money to the said David Burns, his executors, administrators, or assigns, for all the part of the lands hereby bargained and sold, which shall have been in lots, squares, or parcels, and appropriated as aforesaid, to the use of the United States, at the rate of twenty-five pounds per acre, not accounting the said streets as part thereof, and the said twenty-five pounds per acre being so paid, or in any other manner satisfied, that the produce of the same sales or what thereof may remain as aforesaid in money or securities of any kind shall be paid, assigned, transferred, and delivered over to the President for the time being, as a grant of money, and to be applied for the purposes and according to the act of Congress aforesaid, but the said conveyances to the said David Burns, his heirs or assigns, as well as the conveyances to the purchasers, shall be on and subject to such terms and conditions as shall be thought reasonable by the President for the time being, for regulating the materials and manner of the buildings and improvements on the lots generally in the said city, or in particular streets or parts thereof for common convenience, safety, and order; provided such terms and conditions be declared before the sale of any of the said lots under the direction of the President and in trusts farther, and on the agreement that he, the said David Burns, his heirs and assigns, shall and may continue his possession and occupation of the said land hereby bargained and sold, at his and their will and pleasure until the same shall be occupied under the said appropriations for the use of the United States as aforesaid, or by purchasers, and when any lots or parcels shall be occupied under purchase or appropriations as aforesaid, then and not till then, shall the said David Burns relinquish his occupation thereon. And in trust also as to the trees, timber, and woods on the premises [205]that he, *the said David Burns, his heirs or assigns, may freely cut down, take, and use the same as his and their property, except such of the trees and wood growing as the President or commissioners aforesaid may judge proper and give notice shall be left for ornament, for which the just and reasonable value shall be paid to the said David Burns, his executors, administrators, or assigns, exclusive of the twenty-five pounds per acre for the land, and in case the arrangements of the streets, lots, and like will conveniently admit of it, he, the said David Burns, his heirs and assigns, shall, if he so desire it, possess and retain his buildings and graveyard, if any, on the hereby bargained and sold lands, paying to the President at the rate of twelve pounds ten shillings per of the lands so retained, because of such

acre,

buildings and graveyards to be applied as aforesaid, and the same shall be thereupon conveyed to the said David Burns, his heirs and assigns, with the lots, but if the arrangements of the streets, lots, and like will not conveniently admit of such retention, and it shall become necessary to remove such buildings, then the said David Burns, his executors, administrators, or assigns shall be paid the reasonable value thereof in the same manner as squares or other ground appropriated for the use of the United States are to be paid for. And because it may so happen that by deaths and removals of the said Thomas Beall and John Mackall Gantt, and from other causes, difficulties may occur in fully perfecting the said trust by executing all the said conveyances, if no eventual provision is made, it is therefore agreed and covenanted, between all the said parties, that the said Thomas Beall and John M. Gantt, or either of them, or the heirs of either of them, lawfully may, and they at any time, at the request of the President of the United States for the time being. will, convey all or any of the said lands hereby bargained and sold which shall not then have been conveyed in execution of the trusts aforesaid to such person or persons as he shall appoint in fee simple, subject to the trusts then remaining to be executed, and to the end that the same may be perfected. And it is further agreed and granted between all the said parties, and each of the said parties doth for himself respectively and *for his[206] heirs covenant and grant to and with the others of them that he and they shall, and will, if required by the President of the United States for the time being, join in and execute any further deed or deeds for carrying into effect the trusts, purposes, and true intent of this present deed.

"In witness whereof, the parties to these presents have hereunto interchangeably set their hands and affixed their seals the day and year first above written."

The deed of Notley Young is in substan tially similar terms.

On December 19, 1791, an additional act was passed by Maryland, ratifying the previous act of cession, and reciting that Notley Young, Daniel Carroll of Duddington, and many other proprietors of the part of the land thereinafter mentioned to have been laid out in a city, had come into an agree ment, and had conveyed their lands in trust to Thomas Beall and John Mackall Gantt, whereby they 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 tem porary and permanent seat of the gov ernment of the United States, under and upon the terms and conditions contained in each of said deeds; that the President had thereafter directed to be laid out upon such lands a city, which has been called the city of Washington, comprehending all the lands beginning on the east side of Rock creek, at a stone standing in the middle of the road leading from Georgetown to Bladensburgh,

to the commissioners, said: "Mr. Davidson is mistaken if he supposed that the transmission of Major L'Enfant's plan of the city to Congress was the completion thereof. So far from it, it will appear from the message which accompanied the same that it was given as matter of information to show what state the business was in, and the return of it requested. That neither house of Congress passed any act consequent thereupon. That it remained, as before, under the control of the executive. That afterwards several errors were discovered and corrected, many alterations made, and the appropriations, except as to the capitol and the President's house, struck out under that authority, before it was sent to the engraver, intending that work and the promulgation thereof were to give it the final and regulating stamp." Subsequently dissensions arose between the commissioners and L'Enfant, which resulted in the dismissal of the latter, and the employment of Andrew Ellicott, who, on February 23, 1792, completed a plan of the city [210]and delivered it to the *President, who, in a letter to the commissioners dated March 6, 1792, said: "It is impossible to say with any certainty when the plan of the city will be engraved. Upon Major L'Enfant's arrival here, in the latter part of December, I pressed him in the most earnest manner to get the plan ready for engraving as soon as possible. Finding there was no prospect of obtaining it through him, at least not in any definite time, the matter was put into Mr. Ellicott's hands to prepare about three weeks ago. He has prepared it, but the engravers who have undertaken to execute it say it cannot certainly be done in less than two, perhaps not under three, months. There shall, however, be every effort made to have the thing effected with all possible despatch."

This so-called Ellicott's plan was engraved at Boston and at Philadelphia-the engraved plans differing in that the latter did and the former did not show the soundings of the creek and river.

the said Scott, Thornton, and White, and their successors in office as commissioners, to the use of the United States forever. *Lots and parcels of ground were sold to[211} private purchasers, from time to time, under all three of these plans, and controversies have arisen as to the comparative authenticity of these plans. The particulars wherein those plans differ are stated and considered in the opinion of the court.

On February 27, 1801, Congress passed the act concerning the District of Columbia and its government, and providing "that the laws of the state of Maryland as they now exist shall be continued in force in that part of the said district which was ceded by that state."

By the act of August 2, 1882 (22 Stat. at L. 198, chap. 375), Congress made an appropriation for "improving the Potomac river in the vicinity of Washington with reference to the improvement of navigation, the establishment of harbor lines, and the raising of the flats, under the direction of the Secretary of War, and in accordance with the plan and report made in compliance with the river and harbor act approved March 3, 1881, and the reports of the Board of Engineers made in compliance with the resolution of the Senate of December 13, 1881."

This act made it the duty of the Attorney General to examine all claims of title to the premises to be improved under this appropriation, and to institute a suit or suits at law or in equity "against any and all claimants of title under any patent which, in his opinion, was by mistake or was improperly or illegally issued for any part of the marshes or flats within the limits of the proposed improvement."

By subsequent acts of Congress further appropriations were made for continuing the improvement, amounting to between two and three millions of dollars, and in the prosecution of the work channels have been dredged, sea walls constructed, and a large area reclaimed from the river.

On July 23, 1798, President Adams, in an instrument alleging that the plan referred to in said request and instruction by President Washington as having been annexed thereto had been omitted, declared that he had caused said plan to be annexed to said writing, and requested the said Thomas Beall and John M. Gantt to convey the streets, squares, parcels, and lots of ground, described in the act of the late President of the United States as public appropriations, to

By the first section of this act it was made the duty of the Attorney General "to institute as soon as may be, in the supreme court of the District of Columbia, a suit against all persons and corporations who may have o pretend to have any right, title, claim, or interest in any part of the land or water in the District of Columbia within the limits of the city of Washington or exterior to said limits and in front thereof toward the channel of the Potomac river, and composing any part of the land and water affected by the im provements of the Potomac river or its flats in charge of the Secretary of War, for the purpose of establishing and making clear the right of the United States thereto."

general rule they may adopt may be attended with serious disadvantages."

Nicholas King himself prepared a plan or serial map of sixteen sheets in 1803. There is evidence tending to show that this was done in pursuance of an order of the commissioners; and in reference to it the record contains the testimony, in the present case, of William Forsythe, who had been connected for many years with the office of surveyor of the city, in subordinate capacities and as the head of it, and who was in 1876 the surveyor of the District of Columbia. He says: "I can only say that it is the best in point of execution of the early maps of the city; and that it has been acted upon ever since it has been prepared in connection with the affairs of the surveyor's office, and that the lines of wharfing indicated upon the map from Rock Creek to Easby's Point have been followed; in other words, that all the improvements, such as reclamation of land, and the wharves that have been built in that section of the city, were made and built in accordance with the plan of wharfing, etc., indicated on this map. The map of 1803 has always, in my recollection going back forty years in connection with the surveying department of the city, been considered and acted upon as an official map, and from conversation with those who have preceded me in the surveyor's office, I know that it was always considered by them as an authentic official map of the city. It has in fact been the standard map."

While it is true that this map of 1803 was never officially approved or authenticated by any President of the United States, as were the earlier maps, and is not therefore of conclusive effect, it is, in our opinion, a legitimate and important piece of evidence.

In connection with the later map of 1803, prepared by King, ought also to be considered a series of plans drawn by him and laid before the commissioners on March 8, 1797, in a communication, as follows:

appears

"I send you herewith a series of plans exhibiting that part of the city which lies in the vicinity of the water, and includes what is called the water property, from the confluence of Rock creek with the Potomac to the public appropriation for the Marine Hospital on the Eastern Branch. What to me the most eligible course for Water street, with the necessary alterations in the squares already laid out, or the new ones which will be introduced thereby, are distinguishable by the red lines which circumscribe them, while those already established are designated by two black lines."

Without pausing to examine the King map and plans in their particulars, to some of which we may have occasion to recur at a subsequent stage of our investigation, it is enough to here state that the existence of a water street in front of the city, and comporting, in the main, with its course as laid down on the engraved plan of the Ellicott plan, is distinctly recognized.

The record also contains a map proposed by William Elliott, surveyor of the city of Washington, in 1835, and adopted in 1839 by the city councils and approved by President

Van Buren, entitled "Plan of part of the City of Washington, exhibiting the water lots and Water street, and the wharves and docks thereon, along the Potomac, from E to T streets south." This map exhibits Water street as extending in front of that part of[261] the city embraced in the map, and it also shows that what are styled "water lots" front on the north side of Water street.

We have not overlooked the fact disclosed by the evidence in the record that, even during the presidency of General Washington, there were complaints made, from time to time, of alleged changes or departures from the L'Enfant and Ellicott plans, and that also efforts were made, sometimes successfully, to get changes allowed. And on November 10, 1798, a memorial was addressed to President Adams by some of the proprie tors of lands within the city, complaining of changes made by the Dermott plan in some of the features of the previous plans, and calling attention to the incompleteness of that plan in omitting a delineation of Water street.

But these complaints appear to have been ineffectual. Nor are we disposed to understand them as meaning more than a call for a perfect delineation of Water street-not as asserting that the Dermott plan was an abandonment of such a street.

In connection with the various maps and plans must be read the regulations issued by the commissioners while they were acting, and their contract and agreements with the proprietors and purchasers.

In July, 1795, certain wharfing regulations were published, containing, among other things, the following: "That all the proprietors of water lots are permitted to

wharf and build as far out into the river of

Potomac and the Eastern Branch as they may think convenient and proper, not injuring or interrupting the channels or navigation of the said waters; leaving a space, wherever the general plan of the streets of 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 ocupation 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 termination of every three hundred feet of made ground." This was certainly an assertion of the control by the public, then represented by the commissioners, over the *fast land adjoining the[262] shores and extending to the navigable chan

nels.

Another fact of much weight is that, in the division of squares between the commissioners and Notley Young, the plats of which were signed by the commissioners and by Notley Young in March, 1797, the southern boundary is given as Water street.

It is doubtless true, as argued in the brief

filed for those who succeeded to Young's title,

that such a division would not, of itself, have the effect of vesting title in fee to the land in the United States. Nor, perhaps, would such a transaction operate as a donation by Young to the city of the territory covered by

the deed to them from Frederick Paul Harford as Lord Baltimore's successor in title.

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lots and parts of lots in the squares last mentioned.

III. The claims made by the Chesapeake & Ohio Canal Company and its lessee, Henry H. Dodge, to riparian rights from Easby's Point to Seventeenth street west.

IV. The claims to riparian rights, right of access to the channel of the river, and to accretions, natural and artificial, made by the owners of lots in squares along the river west of Seventeenth street west, namely, squares 148, 129, 89, 63, 22, and square south of square 12.

V. The claim made by certain of the descendants of Robert Peter, an original proprietor of lands in the city of Washington, to certain land near the public reservation known as the Observatory Grounds.

VI. The claims to riparian privileges and wharfing rights made by owners of lots in squares beginning with square 233 and extending to the line of the Arsenal Grounds. VII. The claims made by certain persons Occupying wharves below the Long Bridge. The main determination by the court "of rights drawn in question" in the suit was a decree passed October 17, 1895. The decree adjudicated nearly all the points in controversy in favor of the United States.

Certain lots and parts of lots in squares [16]63, 89, 129, and 148, *north of their boundaries on Water street and A street, which were subject to the ebb and flow of the tide, were included in the work of reclamation, and as to them the decree held the owners to be entitled to compensation for the taking and inclusion of the same in the improve

ments.

By the first paragraph of the decree the claims under class 2, that is, those set forth in the answers of certain defendants founded upon a patent issued to John L. Kidwell in 1869, for a tract of forty-seven and seventyone one-hundredths (47 71-100) acres in the Potomac river, and alleged accretion thereto, and also to a tract adjoining the Long Bridge, founded upon an application for a patent therefor made by said Kidwell in 1871, are held and declared to be "invalid, void, and of none effect;" and the said patent is "vacated, annulled, and set aside."

By the second paragraph "the claims of each and all of the other parties defendants, set forth in their respective answers, to any rights, titles, and interests, riparian or otherwise, in the said lands or water," are held and declared "to be invalid, void, and of none effect," except as to the parties owning said

By the fourth paragraph it is held that the defendants who are owners of the lots or parts of lots in squares 63, 89, 129, and 148, "which are included between the north line or lines of the said improvements of the Potomac river and its flats and the north line or lines of Water street and A street, are en-[211] titled to be indemnified for whatever impairment or injury may have been caused to their respective rights, titles, or interests in said lots or parts of lots by the taking of the same by the United States; the value of such rights, titles, interests, or claims to be ascer tained by this court, exclusive of the value of any improvement of the said lots or parts of lots made by or under the authority of the said United States."

By the fifth and last paragraph of the decree the taking of further testimony was authorized, on behalf of the owners and on behalf of the United States, as to the respective areas of the said lots and parts of lots, and of and concerning the true ownership and value of the said lots and parts of lots.

Such testimony as to ownership, areas, and values having been taken and returned, the court upon consideration thereof, and on March 2, 1896, passed a further and supple mentary decree, adjudging the values of the said lots and parts of lots so taken to be ten cents per square foot, and payment was directed to be made to sundry persons whom the court found to be the owners of certain of the parcels; the ownership of the remaining parcels not being, in the opinion of the further testimony with respect thereto was court, sufficiently established, the taking of ordered. The total amount of said values found by the court is $26,684.09.

The court having made a report of its ac tion in the premises to Congress, agreeably to the requirements of the act of August 5, 1886, an appropriation was made for the payment of the sums so found to be due to the owners of the said lots and parts of lots in said squares; and with two exceptions, namely, Richard J. Beall and the trustees of the estate of William Easby, deceased, the several owners of the property applied, under said appropriation act, to the court for the payment to them of the respective sums