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

from their said first heads or springs as they are commonly called and known by the inhabitants and descriptions of those parts and the Bay of Chesapeake, together with the said rivers themselves and all the islands within the outermost banks thereof, and the soil of all and singular the premises, and all lands, woods, underwoods, timber, and trees, wayes, mountains, swamps, marshes, waters, rivers, ponds, pools, lakes, watercourses, fishings, streams, havens, ports, harbours, bays, creeks, ferries, with all sorts of fish, as well whales, sturgeons, and other [224]royal fish. To have, hold, and enjoy all the said entire tract, territory, or portion of land, and every parts and parcels thereof, to the said Thomas, Lord Culpeper, his heirs and assigns forever."

Owing to the conflicting descriptions, as respected the Potomac river, contained in these royal grants, a controversy early arose between Virginia and Maryland. A compact was entered into in 1785 between the two states, whereby, through commissioners, a jurisdictional line, for the purpose of enforcing the criminal laws and regulating the rights of navigation in the Potomac river, was agreed upon.

Finally, the controversy as to the true boundary still continuing, in 1874 the legislatures of the two states agreed in the selection of arbitrators, by whose award, dated January 16, A. D. 1877, the jurisdictional line and boundary were declared to be the low-water mark on the Virginia shore. This award was accepted by the two states, and, by an act approved March 3, 1879 (20 Stat. at L. 481, chap. 196), Congress gave its consent to the agreement and award; but provided that nothing therein contained should be construed to impair or in any manner affect any right of jurisdiction of the United States in and over the islands and waters which formed the subject of the said agree ment or award.

It was a mutual feature of the legislation by which this conclusion was reached that the landholders on either side of the line of boundary between the said states, as the same might be ascertained and determined by the said award, should in no manner be disturbed thereby in their title to and possession of their lands, as they should be at the date of said award, but should in any case hold and possess the same as if their said titles and possession had been derived under the laws of the state in which by the fixing of the said line by the terms of said award they should be ascertained to be. Act of Virginia Feb. 19, 1876, chap. 48; Act of Maryland April 3, 1876, chap. 198.

Whether the result of this arbitration and award is to be regarded as establishing what the true boundary always was, and that therefore the grant to Thomas, Lord Culpeper, never of right included the Potomac [225]river, or as establishing a *compromise line, effective only from the date of the award, we need not determine. For, even if the lat ter be the correct view, we agree with the conclusion of the court below, that, upon all the evidence, the charter granted to Lord Baltimore by Charles I., in 1632, of the ter

ritory known as the province of Maryland, embraced the Potomac river and the soil under it, and the islands therein, to high-water mark on the southern or Virginia shore; that the territory and title thus granted to Lord Baltimore, his heirs and assigns, were never devested by any valid proceedings prior to the Revolution, nor was such grant effected by the subsequent grant to Lord Culpeper.

The record discloses no evidence that, at any time, any substantial claim was ever made by Lord Fairfax, heir at law of Lord Culpeper, or by his grantees, to property rights in the Potomac river or in the soil thereunder, nor does it appear that Virginia ever exercised the power to grant ownership in the islands or soil under the river to prívate persons. Her claim seems to have been that of political jurisdiction. Without pursuing further this branch of the subject, and assuming that the heirs of John Marshall have become lawfully vested with the Fairfax title, we are of opinion that they have failed to show any right or title to the lands and premises involved in this litigation, and that the decree of the court below, so far as it affects them, is free

from error.

There remains to consider the claim of the heirs of James M. Marshall as alleged successors to the title of Lord Baltimore to the river Potomac and the soil thereunder, as part and parcel of the grant to him by the patent of Charles I., in 1632.

We adopt, as sufficient for our purposes, the statement of that claim made in the printed brief filed on behalf of the heirs of James M. Marshall:

1st. That Charles I., in his charter of June, 1632, conveyed to the Lord Proprietary of Maryland, inter alia, full title to the lands under the navigable waters and rivers subject to tidal overflow, within the limits of that charter, with the right to grant such lands to others.

2d. That the King in said charter granted to the Proprietary of the province of Maryland the whole bed and soil of the *Potomac [226 river, from bank to bank, and from its source to its mouth, the locus in quo of the lands here in controversy.

3d. That the said Proprietary held such lands, as he held his other lands, in absolute ownership and propriety, but subject to the public servitudes in and of the waters over them, so long as those waters covered the lands.

4th. But that when the waters ceased to be or flow over them, these lands were relieved of those servitudes, and his right of seisin or possession attached and perfected his title, and of this his heirs or assigns could take the benefit and advantage, if hold. ing title at that time.

5th. That by the action of the government of the United States, in reclaiming these lands for public purposes, and converting them into firm and fast lands, and passing the act of August 5, 1886, and bringing suit against these appellants and others, the first opportunity was given to these appellants to make or assert their title.

Cth. That title was legally derived to them

by the devises and deeds set out in the record.

Briefly expressed, the appellants' contention is that the propriety in the soil under the river Potomac passed to Lord Baltimore and his grantees, and that it passed, not as one of the regalia of the Crown, or as a concomitant of government, but as an absolute proprietary interest, subject to every lawful public use, but not the less, on that account, a hereditament, and the subject of lawful ownership, and of the right of full and unqualified possession when that public use shall have ceased.

We need not enter into a discussion of this proposition, because the doctrine on which it is based has been heretofore adversely decided by this court in several leading and well-considered cases. Martin v. Waddell, 16 Pet. 367 [10: 997]; Den [Russell], v. Association of Jersey Co. 15 How. 426 [14: 757]; Shively v. Bowlby, 152 U. S. 1 [38: 331].

The conclusions reached were that the various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under [227]*tide waters; that by those charters the dominion and propriety in the navigable waters, and in the soils under them, passed as part of the prerogative rights annexed to the political powers conferred on the patentee, and in his hands were intended to be a trust for the common use of the new community about to be established, as a public trust, for the benefit of the whole community, to be freely used by all for navigation and fishery, and not as private property, to be parcelled out and sold for his own individual emolument; that, upon the American Revolution, all the rights of the Crown and of Parliament vested in the several states, subject to the rights surrendered to the national government by the Constitution of the United States; that when the Revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government.

If these principles are applicable to the present case, it follows that, upon the Revolution, the state of Maryland became possessed of the navigable waters of the state, including the Potomac river, and of the soils thereunder, for the common use and benefit of its inhabitants; and that by the act of cession, that portion of the Potomac river, with the subjacent soil which was appurtenant to and part of the territory granted,

became vested in the United States.

We do not understand the learned counsel for the appellees to controvert the principles established by the cited cases as applicable to the royal grants and territories considered therein. But their contention is that a different doctrine has prevailed in the courts of the state of Maryland, to the

effect that lands beneath the tide waters of the Potomac were grantable in fee to private persons, subject only to the public servi tudes, and that when, as in the present case, by the action of the government, these lands have ceased to be submerged, the owner of the title, however long that title has been in abeyance, becomes entitled to possession and to compensation if the land be taken for public purposes.

*The soundness of this contention depends[228] upon two propositions: First, that the Federal decisions cited do not establish general principles applicable to each and all of the royal charters to the founders of the Atlantic colonies, but are restricted in their scope to the particular grant in question in those cases; and, second, that the law of Maryland, if the sole rule of decision, is to the effect claimed.

In the argument in Martin v. Waddell, the decision of the supreme court of New Jersey, in the case of Arnold v. Mundy, 6 N. J. L. 1 [10 Am. Dec. 356], in which that court had laid down the rule as contended for by the appellants, was cited as conclusive, and as establishing a rule of property binding on the Federal courts.

In respect to this contention Mr. Chief Justice Taney said:

"The effect of this decision by the state court has been a good deal discussed at the bar. It is insisted by the plaintiffs in error that, as the matter in dispute is local in its character, and the controversy concerns only fixed property within the limits of New Jersey, the decision of her tribunals ought to settle the construction of the charter; and that the courts of the United States are bound to follow it. It may, however, be doubted whether this case falls within the rule in relation to the judgments of state courts when expounding their own Constitution and laws. The question here depends, not upon the meaning of instruments framed by the people of New Jersey, or by their authority, but upon charters granted by the British Crown, under which certain rights are claimed by the state, on the one other. And if this court had been of opinion hand, and by private individuals on the that upon the face of these letters patent the question was clearly against the state, and that the proprietors had been deprived of their just rights by the erroneous judgment of the state court, it would perhaps be diffi

cult to maintain that this decision of itself bound the conscience of this court. Independently, however, of this decision of the supreme court of New Jersey, we are of opinion that the proprietors are not entitled to the rights in question."

The subject is barely adverted to in Shively v. Bowlby, where, referring to the case of Martin v. Waddell, it was said by[229] Mr. Justice Gray: "This court, following, though not resting wholly upon, the decision of the supreme court of New Jersey in Arnold v. Mundy, 6 N. J. L. 1 [10 Am. Dec. 356], gave judgment for the defendants." Whether, in the controversy between the United States, in the capacity of grantees