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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 Har- | lots and parts of lots in the squares last menford as Lord Baltimore's successor in title. tioned.

II. The claims of ownership made to part By the third paragraph it is held and deof the reclaimed land by certain defendants, clared "that there does not exist (except as who assert title under a patent issued by the aforesaid) any right, title, or interest in any United States through the General Land Of-person or corporation, being a party to this fice to John L. Kidwell in the year 1869 for cause, to or in any part of the said land or forty-seven and seventy-one one-hundredths water," and "that the right and title of the (47 71-100) acres and to one hundred and said United States (except as aforesaid) to fifty (150) acres of alleged accretion there all the land and water included within the to; and to another tract, the area of which is limits of the said improvements of the Ponot stated, adjoining the Long Bridge and ex- tomac river and its flats, as the said limits tending therefrom southwardly between the are described in the said bill of complaint," Washington and Georgetown channels, of is absolute "as against all the defendants to which latter tract they claim to be the equit- this cause, and as against all persons whomable owners under an application for a pat- soever claiming any rights, titles, or interests ent made by said Kidwell in 1871. therein who have failed to appear and set forth and maintain their said rights, titles, or interests as required by said act of Congress."

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 [216]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 upon a patent issued to John L. Kidwell in 1869, for a tract of forty-seven and seventy one 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."

in the answers of certain defendants founded

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

954

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-[21] 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 respec tive 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 supplementary decree, adjudging the values of the said lots and parts of lots so taken to be ten cents per square foot, and payment was di rected 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 court, sufficiently established, the taking of further testimony with respect thereto was 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

174 U. S.

olders and the commissioners; the regula- | company cannot validly claim riparian rights ons affecting the use of wharves and docks, as appurtenant to those lots or parts of lots ublished by the commissioners; the several which the company purchased from indiets of Congress conferring jurisdiction upon vidual owners who held lots north of Water e city over the adjacent waters; the several street. Having themselves, as we have seen, ty maps and plans, beginning with that of no riparian rights, such owners could not 'Enfant, sent by President Washington to convey or impart them to the canal company. ongress in 1791, and ending with that of But it is contended, on behalf of the canal lliott, approved by President Van Buren in company, that riparian rights attached at 839; and the views expressed on the sub- least to those portions of their land which ect in previous decisions of this court, that they acquired by virtue of the legislation of he conclusion is warranted, that, from the Congress, and which were located on the mar. rst conception of the Federal city, the es- gin of the Potomac river. ablishment of a public street, bounding the ity on the south, and to be *known as Water treet, was intended, and that such intention as never been departed from.

With this conclusion reached, it follows hat the holders of lots and squares abutting on the line of Water street are not entitled o riparian rights; nor are they entitled to -ights of private property in the waters or the reclaimed lands lying between Water treet and the navigable channels of the river, unless they can show valid grants to the same from Congress, or from the city under authority from Congress, or such a long protracted and notorious possession and enjoyment of defined parcels of land as to justify a court, under the doctrine of prescription, in inferring grants.

With these results in view, we shall now proceed to examine the remaining claims. The Chesapeake & Ohio Canal Company was incorporated in 1824 by concurrent acts of the leigslatures of Virginia and Maryland. The object of the company was the construction of a navigable canal from the tide water of the Potomac to the Ohio river.

By an act approved March 3, 1825 (4 Stat. at L. 101, chap. 52), Congress enacted "that the act of the legislature of the state of Virginia, entitled 'An Act Incorporating the Chesapeake & Ohio Canal Company,' be, and the same is hereby, ratified and confirmed, so far as may be necessary for the purpose of enabling any company that may hereafter be formed, by the authority of said act of incorporation, to carry into effect the provisions thereof in the District of Columbia, within the exclusive jurisdiction of the United States, and no further."

That portion of the canal which lies within the boundaries of the city of Washington extends from Twenty-Seventh street in a southeasterly direction to Seventeenth street, and appears to have been opened for navigation in the latter part of 1835. This part of the canal was wholly constructed north of the street designed to run between the squares nearest to the river front and the river itself. The land occupied by the canal company within the city belonged in part to individual owners and in part to the United

States.

Entering the city so long after the adoption of the several maps and plans, the canal company must be deemed to have been aware of their contents, and to have been subjected thereto, except in particulars in which the company may have been released or exempted therefrom by the acts of Congress, or by the authorities of the city. Consequently the

If it was, indeed, the persistent purpose of the founders of the city to erect and maintain a public street or thoroughfare along the river front, it would be surprising to find so reasonable a policy subverted by legislation on the part of Congress in favor of this canal company. To justify such a contention we should expect to be pointed to clear and unmistakable enactments to that effect. But the acts of Congress relied on are of a quite different character. Let us briefly examine them.

There was, in the first place, the act of March 3, 1825, heretofore quoted, wherein the act of Virginia incorporating the Chesapeake & Ohio Canal Company is ratified and confirmed so far as may be necessary for the purpose of enabling any company that might thereafter be formed under the authority of that act to carry into effect the provisions thereof in the District of Columbia within the exclusive jurisdiction of the United States, and no further. Then followed the act of May 23, 1878 (4 Stat. at L. 292, chap. 85), authorizing the connection of lateral canals, constructed under authority of Maryland and Virginia, with the main stem of the canal within the District. By the act of May 24, 1828 (4 Stat. at L. 293, chap. 86), Congress authorized a subscription by the United States for ten thousand shares of the capital stock of the *company, and made pro-[273] vision for the elevation and width of the section below the Little Falls, so as to provide a supply of water for lateral canals or the extension of the Chesapeake & Ohio Canal by the United States.

It may be conceded that it is clear from these enactments that Congress contemplated the location of the Chesapeake & Ohio Canal along the bank of the Potomac river within the District of Columbia; and it may be further conceded that Congress acquiesced in the route and terminus of the canal selected by the company. But it does not follow from such concessions, or from anything contained in the legislation referred to, that Congress was withdrawing from the city of Washington its rights in Water street, or was granting to the canal company a fee simple in the river margin with appurtenant riparian rights.

It is further urged. that by the act of March 3, 1837 (5 Stat. 303), Congress adopted and enacted as a law of the United States the provision of the Virginia act of February 27, 1829, in the following terms: "That whenever it might be necessary to form heavy embankments, piers, or moles, at the mouths of creeks or along the river

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