"Come here again the parties aforesaid in manner aforesaid, and the same jury return into court, except John T. Wright, who does not appear, and having said sealed verdict in his possession as foreman sends the same to the court by Dr. McWilliams, who delivers the same to the court with the statement that the said John T. Wright is ill and confined to his bed and physically unable to appear in court; that he, said McWilliams, is his attending physician, and as such received from said Wright said sealed verdict with direction to deliver it to the court; whereupon the defendant, by its counsel, objected to the reception, opening, and reading of said sealed verdict; whereupon, in answer to the questions of the court, the remaining jurors severally on their oath say that they severally signed said verdict, and that they saw said John T. Wright sign the same, and that the name 'John T. Wright,' signed thereto, is in his handwriting; 'thereupon the remaining jurors on their oath say they find said issue in favor of the plaintiff and assess her damages by reason of the premises as seven thousand dollars ($7,000).? "The counsel for the defendant ask that the jury be polled, which is done, and each of said remaining jurors on his oath says that he finds said issue in favor of the plaintiff and assesses her damages by reason of the premises at $7,000." Upon this verdict a judgment was entered. Proceedings in error were taken, but were [193] lismissed by the court of appeals on account of a failure to have the bill of exceptions prepared in time. Thereafter, and at a succeeding term, the defendant filed a motion to vacate the judgment on the ground that there was no valid verdict, which motion was overruled. On appeal to the court of appeals this decision was reversed and the case remanded, with instructions to vacate the judgment, to set aside the verdict and award a new trial. 12 App. D. C. 122. This ruling was based on the proposition that the verdict was an absolute nullity, and therefore the judgment resting upon it void, and one which could be set aside at any subsequent term. 60 ord, the right to review which is sustained by Phillips v. Negley, 117 U. S. 665 [29: 1013], is whether the verdict, returned under the circumstances described, was an absolute nullity, or, at least, so far defective that no valid judgment could be entered upon it. Such is the contention of the defendant. On the contrary, the plaintiff insists that whatever irregularities may have occurred, or be apparent in the proceedings, they are simply matters of error, to be corrected on direct proceedings within the ordinary time, and in the customary manner for correcting errors occurring on a trial. Is the defect or irregularity disclosed a mere matter of error or one which affects the jurisdiction! The opinion of the court of appeals, announced by Mr. Justice Morris, is an exhaustive and able discussion of the question, arriving at the conclusion that the verdict was an absolute nullity, and therefore the judg ment, based upon it, one that could be set aside, not merely at the term at which it was rendered, but at any subsequent term. *While appreciating fully the strength of[194] the argument made by the learned judge, we are unable to concur in the conclusions reached. That the verdict returned expressed at the time it was signed the deliberate judgment of the twelve jurors cannot be questioned. That it remained the judgment of the eleven at the time it was opened and read is shown by the poll that was taken, and that it was still the judgment of the absent juror at the time he forwarded it to the court is evident from the testimony. So the objection runs to the fact that at the time the verdict was opened and read each of the twelve jurors was not polled, and each did not then and there assent to the verdict as declared. That generally the right to poll a jury exists may be conceded. Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent. It is not a matter which is vital, is frequently not required by litigants; and while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict. Take the case suggested on argument. Supposing the twelve jurors are present, and the defeated party insists upon a poll of the jury and that right is denied, can it be that a verdict returned in the presence of the twelve by the foreman, without dissent, is by reason of such denial an absolute nullity? Is not the denial mere error, and not that which goes to the question of jurisdiction? There are many rights belonging to litigants-rights which a court may not properly deny and yet which if denied do not oust the jurisdiction or render the proceedings absolutely null and void. The line of demarcation between those rulings which are simply erroneous and those which vitiate the result may not always be perfectly clear, and yet that such demarcation exists is conceded. This ruling of the trial court, conceding it to be error, is on the hither side of this line, and could only be taken advantage of by proceedings in error. 945 It is not so vital as to make the verdict a nullity or the judgment entered thereon void. Suppose, after the jury, at the end of a protracted trial, have agreed upon the verdict [195]and come into court to announce it, and after it has been read in open court but before a poll can be had one of the jurors is suddenly stricken dead, can it be that the whole proceeding theretofore had become thereby a nullity? Can it be that after each of the jurors has signed the verdict and after it has been returned and each is present ready to respond to a poll, the mere inability to complete the poll and make a personal appeal to each renders the entire proceedings of the trial void? We are unable to assent to such a conclusion. The right to poll a jury is certainly no more sacred than the right to have a jury, and under many statutes a trial of a case, in which a jury is a matter of soils under them passed as a public trustsuch rights subsequently became vested in the state-confiscation acts of Marylandvalid acts-treaties of 1783 and 1794equitable obligation-rights of Marshall heirs-resolution of Congress of 1839Maryland decision-jurisdiction of the Land Office-patent, when void patent to John L. Kidwell-return of purchase money when conveyance from trustee will be assumed riparian rights on the Potomac riparian rights of Chesapeake & Ohio Canal Company-riparian rights of affirmed lotowners-evidence-decree Maryland act of 1871-title by adverse possession-title by failure to open Water street-owners of wharves and warehouses, when entitled to compensation-value of wharves and warehouses. Charles I. in 1632, of the Province of Maryland, embraced the Potomac river and the soil under it and the islands therein, to high water on the southern or Virginia shore. right, without a waiver thereof, has again 1. The charter granted to Lord Baltimore by and again been held to be erroneous and subject to correction by proceedings in error. But it is also held that an omission from the record of any such waiver is not fatal to the judgment. 2. "The fourth is to the effect that the judgment in the Kansas court was void because the cause was tried by the court without the waiver of a trial by jury entered upon the journal. Whatever might be the effect of this omission in a proceeding to obtain a reversal or vacation of the judgment, it is very certain that it does not render the judgment void. At most it is only error, and cannot be taken advantage of collaterally." Maxwell v. Stewart, 21 Wall, 71 [22: 564]. See also same case, 22 Wall. 77 [22: 564], in which it was said: "A trial by the court, without the waiver of a jury, is at most only error." If a trial without a jury, when a jury is a matter of right and no waiver appears of record, is not fatal to the judgment, a fortiori the minor matter of failing to poll the jury when it is clear that the verdict has received the assent of all the jurors, cannot be adjudged a nullity, but must be regarded as simply an error, to be corrected solely by direct proceedings in review. See, in reference to the distinction between matters of error and those which go to the jurisdiction, the following cases: Ex parte Bigelow, 113 U. S. 328 [28: 1005]: Re Coy, 127 U. S. 731 [32: 274]; Re Belt, 159 U. S. 95 [40: 88]; Re Eckart, 166 U. S. 481 [41: 1085]. We are of opinion that the defect com[196]plained of was merely a matter of error, and does not render the verdict a nullity. The judgment of the Court of Appeals will therefore be reversed and the case remanded with instructions to affirm the judgment of the Supreme Court of the District of Columbia. MARTIN F. MORRIS et al., Appts., V. UNITED STATES. (See S. C. Reporter's ed. 196-359.) Potomac river embraced in original charter of Maryland-the navigable waters and 3. 4. 5. 6. 7. 8. 9. 10. By that charter 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 Lord Baltimore, as a public trust for the common use and benefit of the whole community about to be established, for navigation and fishery, and not as private property to be sold for his own emolument. After the American Revolution the absolute right to all navigable waters and soils under them, within each state, was held by its people for their common use, subject only to the rights since surrendered by the Constitution to the general government. By the confiscation acts of Maryland of 1781 all the property of the then lord proprietary of Maryland, including his rights, if any, in the Potomac river and the soils under it, were confiscated to the use of the state. Such confiscation acts of Maryland were not void as in derogation of the common law or of the Constitution and Bill of Rights of the state, nor because Maryland did not have the power to pass acts of confiscation. The treaties of 1783 and of 1794 and the Maryland act of 1787 making the treaty of 1783 the law of the state did not operate to relieve the lands under the Potomac river from such forfeiture and confiscation. Any equitable obligation of the United States under its treaties to restore the property so confiscated, or to make compensation therefor, is a matter for Congress to consider, but is not for the consideration of the courts in determining the title to property. The heirs of James M. Marshall and of John Marshall have no right, title, or interest in any part of the land or water composing any part of the Potomac river, or its flats, in charge of the Secretary of War. It was not the intention of Congress, by the general resolution of 1839, to subject lands lying beneath the waters of the Potomac river and within the limits of the District of Columbia, and acquired for public purposes, to sale by the methods therein provided. The recent decisions of the courts of Maryland, giving to the statutes of that state a construction at variance with that which prevailed at the time of the cession of the District of Columbia, cannot control the decision 1893. MORRIS V. UNITED STATES. of this court as to the effect of those statutes on the territory within that District. 11. Lands exempted from the jurisdiction of the Land Office in 1839 are not brought withIn that jurisdiction because the waters of the Potomac river had so far receded in 1869 as to permit some sort of possession and occupancy. 12. Where there is an entire want of authority In the Land Office to grant certain lands beld for public purposes, a patent therefor issued under a mistaken notion of the law is void. 13. The patent to John L. Kidwell for the "Kidwell Meadows" did not confer upon him or interest in the or his assigns any title property adverse to the complete and paramount right therein of the United States. 14. Where the invalidity of the patent was not apparent on its face, but was proved by extrinsic evidence in a suit by the United States, and the controversy respecting the title was not abandoned by the defendants, they are not entitled to a decree for the return of the purchase money or for costs. 15. 16. 17. 18. A conveyance from trustees, which ought to have been made, will, after a long lapse of time, be considered by a court of equity as having been made. The holders of lots and squares on the line of Water street in the city of Washington are not entitled to riparian rights, or to rights of private property in the waters or the reclaimed lands between Water street and the navigable channels of the Potomac river, unless they can show valid grants from Congress or from the city under the authority of Congress, or such long and notorious to justify possession of defined parcels as a court, under the doctrine of prescription, in inferring grants; as the intention, never since the first conception departed from of the city, was to establish such a street along the water front for a common access thereto. The Chesapeake & Ohio Canal Company does not, either as to lots procured from private owners, or as to lands occupied under the permission of Congress and of the city authorities, own or possess riparian rights along the line of its canal within the limits of the city. No riparian rights belong to lots north of Water street, between Seventeenth street west and Twenty-Seventh street west, as that street intervenes between such lots and the channels of the river. 19. No effect can be given to the book marked "Register of Squares" as contradicting or overriding the plans of the city as adopted by the President. 20. 21. The decree of the court below as to the claim of the descendants of Robert Peter to certain lands near the Observatory grounds, is affirmed. The Maryland act of December 19, 1791, authorizing licenses for wharves until Congress shall exercise jurisdiction, did not confer any rights to erect and maintain perma nent wharves within the waters of the Potomac river and the Eastern Branch. 22. Where lands and waters are owned by the government in trust for public purposes, and are withheld from sale by the Land Department, without any renunciation of, or failure to exercise, jurisdiction and control them, an adverse possession, however long continued, will not create a title. over 23. The failure to construct and open Water 24. 198 street between 131⁄2 street and Maryland avenue does not create any title in the owners of land to the water front for wharfing and other purposes. Owners of expensive wharves and warehouses erected and maintained, under express or implied licenses from the city authorities, on the water front along the Potomac river, are not to be treated as trespassers in taking the premises for a government improvement, but are entitled to compensation for the value of their private interests in the structures. 25. The final determination of all the rights in question, contemplated by the act of Congress of 1886. providing for the determination of interests in the Potomac river flats, should include the determination of the value of wharves and warehouses owned by l1censees and standing on lands belonging to the government. [No. 49.] Argued October 26, 27, 28, 31, November 1, 2, 3, 4, 7, 1898. Decided May 1, 1899. N APPEAL from a decree of the Supreme Court of the District of Columbia in a suit in equity brought by the United States, plaintiff, against Martin F. Morris et al., defendants, under an act of Congress to provide for protecting the interests of the United States in the Potomac river flats in the District of Columbia, approved August 15th, 1886, settling the rights, titles, and interests of defendants in and to the waters in and the soil under the Potomac river in the city of Washington, and District of Columbia, and their riparian rights on said river, in said city. Decree affirmed as to the claims of the Marshall heirs, and as to the Kidwell patent; riparian and as to the several claims to rights as appurtenant to lots bounded on the south by Water street the case is remanded for further proceedings. See same case below, 23 Wash. L. Rep. 745. Statement by Mr. Justice Shiras: *The act of Maryland, entitled "An Act to[198] Cede to Congress a District of Ten Miles Square in This State for the Seat of the Government of the United States," was in the following terms: "Be it enacted by the general assembly of Maryland, that the representatives of this state in the House of Representatives of the Congress of the United States, appointed to assemble at New York on the first Wednesday of March next, be and they are hereby authorized and required, on behalf of this state, to cede to the Congress of the United States any district in this state, not exceeding ten miles square, which the Congress may fix upon and accept for the seat of government of the United States." Kilty's Laws of Maryland, chap. 2, p. 46. On December 3, 1789, by an act entitled "An Act for the Cession of Ten Miles Square, or Any Lesser Quantity of Territory within This State, to the United States, in Congress Assembled, for the Permanent Seat of the General Government," Virginia ceded to the Congress and government of the United States a tract of country not exceeding ten 947 Hunting creek, a part of the said district, so On March 30, a. D. 1791, President Washington issued a proclamation describing the territory selected by him for the location of the seat of government as follows "Beginning at Jones' Point, being the upper cape of Hunting creek in Virginia, and at an angle, in the outset, of forty-five dedirect line ten miles for the first line; then beginning again at the same Jones' Point and running another direct line at a right angle with the first across the Potomac ten miles for the second line; then from the terminations of the said first and second lines, running two other direct lines of ten miles each, the one crossing the Eastern Branch aforesaid and the other the Potomac, and meeting each other in a point." miles square, or any lesser quantity, to be located within the limits of the state, and in any part thereof as Congress may by law direct, in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon; providing that nothing therein contained should be construed to vest in the United States any right of property in the soil or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States; and providing that the jurisdiction of the laws of the commonwealth, over the persons and property of individuals residing within the limits of the said concession, should not cease or determine until Congress should accept the cession, and should by law provide for the government thereof under their jurisdiction.grees west of the north, and running in a Congress, by an act entitled “An Act for Establishing the Temporary and Permanent Seat of the Government of the United States," approved July 16, 1790, accepted a district of territory, not exceeding ten miles square, to be located on the river Potomac; [199]and authorized the President of the United States to appoint commissioners, who should, under the direction of the President, survey, and by proper metes and bounds define and limit, the district, which, when so defined, limited, and located, should be deemed the district so accepted for the permanent seat of the government of the United States. It was further thereby enacted that the said commissioners should have power to purchase or accept such quantity of land on the eastern side of said river, within the said district, as the President should deem proper for the use of the United States, and according to such plans as the President should approve, and that the commissioners should, prior to the first Monday in December in the year 1800, provide suitable buildings for the accommodation of Congress, and of the President, and for the public offices of the government; and that on the said first Monday in December, in the year 1800, the seat of the government of the United States should be transferred to the district and place aforesaid, and that all offices attached to the government should be removed thereto and cease to be exercised elsewhere. The act contained the following proviso: "That the operation of the laws of the state within said district shall not be affected by this acceptance until the time fixed for the removal of the government thereto, and until Congress shall otherwise by law provide." 1 Stat. at L. 130, chap. 28. On January 22, A. D. 1791, Thomas Johnson and Daniel Carroll, of Maryland, and Daniel Stewart, of Virginia, were appointed by President Washington commissioners to carry the foregoing legislation into effect. On March 3, 1791, Congress passed an amendatory act, by which, after reciting that the previous act had required that the whole of the district of territory, not exceeding ten miles square, to be located on the river Potomac, should be located above the mouth of the eastern branch, the President was authorized to make any part of the territory below said limit, and above the mouth of The commissioners were accordingly instructed by the President to have the said four lines run, and to report their action. In the meantime intercourse was had between the commissioners and the principal owners of property within the district, looking to the sale and conveyance by the latter of land on which a Federal city was to be erected. And the following agreement was signed by the proprietors: the great benefits we expect to derive from "We, the subscribers, in consideration of having the Federal city laid off upon our lands, do hereby agree and bind ourselves, heirs, executors, and administrators, to convey in trust, to the President of the United States, or commissioners, or such person or persons as he shall appoint, by good and sufficient deed in fee simple, the whole of our respective lands which he may think proper to include within the lines of the Federal city, for the following purposes and on the conditions following: "The President shall have the sole power of directing the Federal city to be laid off in what manner he pleases. He may retain any number of squares he may think proper for public improvements, or other public uses, and the lots only which shall be laid [201] off shall be a joint property between the trus tees on behalf of the public and each present proprietor, and the same shall be fairly and equally divided between the public and the individuals, as soon as may be, after the city shall be laid out. "For the streets the proprietors shall receive no compensation, but for the squares or lands in any form which shall be taken for public buildings or any kind of public improvements or uses, the proprietors, whose lands shall be so taken, shall receive at the rate of twenty-five pounds per acre, to be paid by the public. The whole wood on the land shall be the property of the proprietors, but should any be desired by the President to be reserved or left standing, the same shall be paid for by the public at a just and reasonable valuation exclusive of the twentyfive pounds per acre, to be paid for the land on which the same shall remain. "Each proprietor shall retain the full possession and use of his land, until the same shall be sold and occupied by the purchasers of the lots laid out thereupon, and in all cases where the public arrangements as to streets, lots, etc., will admit of it, each proprietor shall possess his buildings and other improvements and graveyards, paying to the public only one half the present estimated value of the lands on which the same shall be, or twelve pounds ten shillings per acre. But in cases where the arrangements of the streets, lots, and squares will not admit of this, and it shall become necessary to remove such buildings, improvements, etc., the proprietors of the same shall be paid the reasonable value thereof by the public. "Nothing herein contained shall affect the lots which any of the parties to this agreement may hold in the towns of Carrollsburgh or Hamburgh. "In witness whereof we have hereto set our hands and seals, this thirteenth day of March, 1791." Among the signers of this agreement were Robert Peter, David Burns, Notley Young, and Daniel Carroll. Subsequently, in pursuance of the agreement, the several proprietors executed deeds of conveyance to Thomas Beall and John Mackall Gantt as trustees. [202] *It will be found convenient, in view of the questions that arise in the case, to have the deeds of David Burns and Notley Young transcribed in full: "This Indenture, made this twenty-eighth day of June, in the year of our Lord one thousand seven hundred and ninety-one, between David Burns of the state of Maryland, of the one part, and Thomas Beall (son of George) and John Mackall Gantt of the state of Maryland, of the other part, Witnesseth: That the said David Burns, for and in consideration of the sum of five shillings to him in hand paid by the Thomas Beall and John Mackall Gantt, before the sealing and delivery of these presents, the receipt whereof he doth hereby acknowledge and thereof doth acquit the said Thomas Beall and John Mackall Gantt, their executors and administrators, and also for and in consideration of the uses and trusts hereinafter mentioned to be performed by the said Thomas Beall and John Mackall Gantt and the survivor of them, and the heirs of such survivor, according to the true intent and meaning thereof, hath granted, bargained, sold, aliened, released, and confirmed, and by these presents doth grant, bargain, sell, alien, release, and confirm unto the said Thomas Beall and John Mackall Gantt and the survivor of them, and the heirs of such survivor, all the lands of him the said David Burns, lying and being within the following limits, boundaries, and lines, to wit: Be ginning on the east side of Rock creek at a stone standing in the middle of the road leading from Georgetown to Bladensburgh, thence along the middle of the said road to a stone standing on the east side of the Reedy Branch of Goose creek, thence southeasterly making an angle of sixty-one degrees and twenty minutes, with the meridian to a stone standing in the road leading from Bladensburgh to the Eastern Branch Ferry, thence south to a stone eighty poles north of the east and west line already drawn from the mouth of Goose creek to the Eastern Branch, thence east parallel to the said east and west line to the Eastern Branch, Potomack river, and Rock creek, to the beginning, with their appurtenances, except all and every lot and lots of which the said David Burns is seised, or to which he is entitled, lying in *Carrolls-[203] burgh or Hamburgh. To have and to hold the hereby bargained and sold lands, with their appurtenances, to the said Thomas Beall and John Mackal Gantt, and the survivor of them, and the heirs of such survivor, forever, to and for the special trusts following, and no other, that is to sav, that all the said lands hereby bargained and sold, or such parts thereof as may be thought necessary or proper to be laid out, together with other lands within the said limits, for a Federal city, with such streets, squares, parcels and lots as the President of the United States for the time being shall approve, and that the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor, shall convey to the commissioners for the time being appointed by virtue of an act of Congress, entitled 'An Act for Establishing the Temporary and Permanent Seat of the Government of the United States,' and their successors, for the use of the United States forever all the said streets and such of the said squares, parcels, and lots, as the President shall deem proper, for the use of the United States, and that as to the residue of the lots into which the said lands hereby bargained and sold shall have been laid off and divided, that a fair and equal division of them shall be made, and if no other mode of division shall be agreed on by the said David Burns and the commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate to the said David Burns, and it shall on that event be determined by lot whether the said David Burns shall begin with the lot of the lowest number laid out on his said lands or the following number, and all the said lots which may in any manner be divided or assigned to the said David Burns shall thereupon, together with any part of the said bargained and sold lands, if any, which shall not have been laid out in the said city, be conveyed by the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor, to him, the said David Burns, his heirs and assigns, and that the said other lots shall and may be sold at any time or times in such manner and on such terms and conditions as the President of the United States for the time being shall direct, and that the said Thomas |
