holders and the commissioners; the regula- | company cannot validly claim riparian rights tions affecting the use of wharves and docks, as appurtenant to those lots or parts of lots published by the commissioners; the several which the company purchased from indi acts of Congress conferring jurisdiction upon vidual owners who held lots north of Water the city over the adjacent waters; the several street. Having themselves, as we have seen, city maps and plans, beginning with that of no riparian rights, such owners could not L'Enfant, sent by President Washington to convey or impart them to the canal company. Congress in 1791, and ending with that of Elliott, approved by President Van Buren in 1839; and the views expressed on the subject in previous decisions of this court, that the conclusion is warranted, that, from the first conception of the Federal city, the establishment of a public street, bounding the [271]city on the south, and to be *known as Water street, was intended, and that such intention has never been departed from. With this conclusion reached, it follows that the holders of lots and squares abutting on the line of Water street are not entitled to riparian rights; nor are they entitled to rights of private property in the waters or the reclaimed lands lying between Water street 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 adop[272]tion 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 But it is contended, on behalf of the canal company, that riparian rights attached at least to those portions of their land which they acquired by virtue of the legislation of Congress, and which were located on the margin of the Potomac river. 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 shore, for basins or other purposes, and the president and directors may deem it expedient to give a greater strength to the same by widening them and constructing them of the most solid materials, the ground so formed for such useful purpose may by them, when so improved, be sold out or let for a term of years, as they may deem most expedient for the company, on such conditions as may direct the application of the proceeds thereof to useful purposes, and at the same time repay the necessary expense of the formation of such banks, piers, or moles; provided, that this power shall in no case be exercised so as to injure the navigation of the canal;" that by the second section of the act of 1837, penalties were declared against any person who should maliciously injure the canal or its necessary embankments, tow paths, bridges, or drains; and, by the third section, enacted that "all condemnations of lands for the use and purposes of said canal company, which have heretofore been made by the marshal of the District or any lawful deputy [274]*marshal, shall be as valid as though the same had been situated in the state of Maryland, and had been condemned in pursuance of the laws of said state through the action and agency of a sheriff of any of the counties of said state." As the canal had been constructed and opened for navigation within the limits of the city before the passage of this act of 1837, and as it is not claimed or shown that any embankment, piers, or moles were constructed on the route of the canal, within the city, since the passage of the act, it thus appears that no rights were acquired by the company on the strength of the act, which are interfered with by the improvements projected by Congress. It was, indeed, alleged in paragraph 16 of the company's answer that "the company did construct a gate house at the foot of Seventeenth street, and a pier, embankment, or mole at the foot of Seventeenth street, and extending into the Potomac river; and that said gate house and the made land ap: purtenant thereto, and part or all of said pier, embankment, or mole at the foot of Seventeenth street, as the same now exists, are the property of this defendant." Without stating the particulars of the evidence on this part of the subject, it is sufficient to say that it clearly appears that the basin at the mouth of Tiber creek, at the foot of Seventeenth street, was constructed by the corporation of the city of Washington, and that the pier or embankment, mentioned in the company's answer, did not extend into the Potomac river, but into this basin, and that the gate house referred to was erected under a permission granted by the city council by an act approved May 20, 1837, in the following terms: "That permission be and is hereby granted to the Chesapeake & Ohio Canal Company to use and occupy so much of the northwest corner of the wharf erected at the southern termination of Seventeenth street west as they may deem necessary, for the purpose of erecting thereon a house for the keeper of the river lock at that place: Provided, The ex tent thereof shall not exceed sixty feet measured south and thirty feet measured east from the northwest corner of the said wharf." *There is nothing in this or in any other[275] legislation on the part of the city council which can be construed as conferring on the company any rights of property in the land intervening, according to the plans of the city, between the canal and the river. The fair meaning and effect of the legisla tion of Congress and of the city respecting the Chesapeake & Ohio Canal Company were to permit that company to construct and maintain its canal within the limits of the city, and to approve its selection of the route and terminus. The purpose of the construction of the basin at the foot of Seventeenth street was to provide a commodious harbor, in which were to meet and be exchanged the commerce of the Potomac river and of the Chesapeake & Ohio Canal. But we find, in such legislation, no intimation, much less any clear and distinct declaration, of an intention to set aside the existing plans of the city in respect to its river front. We do not deem it necessary to enter upon a consideration of the exact nature of the company's title to the lands occupied by its canal within the limits of the city, nor to discuss the legal consequences of a failure by the company to occupy and use such lands for canal purposes. Different conclusions might be reached in respect to lands derived by purchase or condemnation and public lands granted for the public purpose of a navigable highway. But, such questions are not before us. It is sufficient now to hold that 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. Accordingly, the decree of the court below in respect to the claim of the Chesapeake & Ohio Canal Company is affirmed. It was, however, found by the court below that there is a small strip of land north of Water street and owned by the Chesapeake & Ohio Canal Company, which lies within the limits of the government improvement, the value of which was determined by the court below at the sum og $353.33. As the United States have[276] not appealed from this part of the decree, and as the Chesapeake & Ohio Canal Company has not excepted to the finding of the value, it follows that the canal company is entitled to that sum out of the appropriation by Congress as compensation for the occupation by the government of such strip of land. The next class of claimants consists of lot owners between Seventeenth street west and Twenty-Seventh street west. All these lots, with respect to which riparian rights are claimed, lie to the north of Water street, which intervenes between them and the channels of the river. Under the principles already established, no riparian rights belonged to these lots. But some portions of the lots are embraced within the limits of the government plan of reclama- | The estate was represented in the appeal to tion, and for such portions the court below awarded compensation. All of these claimants, save two, have accepted and received the compensation. Richard J. Beall and the heirs and trustees of William Easby have refused to accept the compensation so awarded them, and have appealed. Their asserted grounds of appeal are, first, their alleged rights to riparian and wharfage privileges on the Potomac river as appurtenant to their lots, and, second, the insufficiency of the compensation allowed by the court below. An effort is made to distinguish the case of these lots from that of the lots east of Seventeenth street by referring to a book marked "Register of Squares," produced from among the records of the city, and wherein squares 63 and 89 are bounded on the north by Water street and on the south by the Potomac river, and square 129 is bounded on the north by B street and on the south by the Potomac river. It was the opinion of the court below that there was a lack of evidence to prove that the registers of squares were contemporaneous and original books which it was the duty of the commissioners to keep, that the entries were not in their handwriting, nor in that of any person whose handwriting is proved, and that they have not the quality of a public record. We agree with that court in thinking that, lin no point of view, on the evidence adduced in this case, can effect be given to these registers of squares as contradicting or overriding the plans of the city adopted by the President, wherein, as we have seen, the squares in question were bounded by streets interposed between them and the channels of the river. The second complaint on behalf of these appellants is of the insufficiency of the amount allowed them by way of compensation. this court by Rose L. Easby and Fanny B. The next claim is one made by the descend- In June, 1791, Robert Peter executed and delivered a conveyance of his lands to Beall and Gantt in trust that the Federal city should be laid out upon them and other lands similarly conveyed by other proprietors. Robert Peter was one of the signers of the agreement of March 13, 1791, hereinbefore mentioned, and the terms of his conveyance to Beall and Gantt were substantially similar to those used in the conveyances of David Burns and Notley Young. There therefore passed by this deed to the trustees his entire title to the main land and all his riparian rights appurtenant thereto. It is now claimed that, under the terms of We have read the evidence on this subject contained in the record and have been surprised by the discrepancy in the values put on these parcels of land by the respective witnesses a discrepancy so wide that we find it impossible to reconcile the testimony, the agreement and of the conveyance, such or to reasonably compromise between the ex-streets, squares, and lots should be laid out tremes. In such circumstances we think our proper course is to adopt the conclusions of the learned judge who disposed of this matter in the court below. Acquainted, as he presumably was. with the locality of the lands and with the character and experience of the numerous witnesses, his judgment would be much safer than any we could independently form. The fact that the larger number of those concerned have acquiesced in the valuation and accepted the award is not without significance. The claim of Mr. Beall that he should be allowed interest or rental value for his property which was taken possession of by the United States in 1882 seems entitled to further consideration by the court below. The amount awarded to the estate of William Easby was made payable in the decree of the court below to William Easby's heirs. as the President might direct, and convey- plans approved by the President and adopted by the city authorities. Nor has any evidence been adduced that by any act or declaration of the President, or of anyone in authority under him, was any portion of the lands conveyed by Peter and the other proprietors to Beall and Gantt, trustees, ever excluded from the city. Nor is it denied that there was a division of lots between Peter and the commissioners in pursuance of the agreement and conveyance. But reliance is placed upon the correspondence between Peter and the commissioners tending to show that lands with riparian privileges remained undivided. In June, 1798, Nicholas King, in behalf of Mr. Peter, addressed a letter to the commissioners, representing that it was "an object highly interesting to Mr. Peter to know the bounds, dimensions, and privileges of those parts of the city generally called water property, and assigned to him on the division. The square south of No. 12 has not yet been divided between said Peter and the commissioners. The square No. 22 as at present laid off and divided with the commissioners does not extend to the channel by several hundred feet. If another square be introduced to the south of it, that square will be covered to a small depth with water, and the proprietors thereof will want earth to wharf and fill it up with. It will perhaps be best therefore to redivide square No. 22 and attach the low ground to it." Replying on June 28, 1798, the commis sioners said: "When the commissioners have proceeded to divide a square with a city proprietor, whether water or other property, they have executed all the powers vested in them to act on the subject. It appertains to the several courts of the states and of the United States to determine upon the rights which such division may give; any decision by us on the subject would be extrajudicial and nugatory; of this, no doubt, Mr. Peter, if applied to, would have informed you. With respect to square No. 22, we do not conceive that it [280]is entitled to *any water privilege, as a street intervenes between it and the water; but as there is some high ground between Water street and the water, we have no obiection 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." This suggestion of the commissioners, to lay out and divide a square south of Water street was never acted on. It is plain that the commissioners would have had no right to disregard the action of the President in establishing Water street as the southern boundary of the city. It also appears from the letter of Mr. King that such a proposed square would have been under the waters of the Potomac, and therefore consisted of territory belonging to the United States as successor to the sovereignty of Maryland, and not to them as grantees of Mr. Peter. In November, 1798, Mr. Peter, with other persons, as appears in the record, appealed to the President to have corrections made in the plan of the city, and used the following language: "We know your excellency will attend to the necessity of defining what water privilege or right of wharfage is attached to the lots on the Eastern Branch, the Potomac river, and Rock creek, also all such streets as are to be left in wharfing from the shore to the channel of said waters, and the extent to which those wharves are to be carried; and what ground, so made and filled up, shall be considered as subject to occupancy by buildings." This memorial was referred by the President to the Attorney General, Charles Lee, who, in an opinion dated January 7, 1799, advised against the application to make any departure from the plans of the city already approved by the President. In May, 1800, Mr. Peter and the commissioners agreed upon a division of square south of square No. 12, by which four of the lots were given to Peter, one of which faced on Water street, and two others facing on Water street were assigned to the United States; and in a note attached to the map of square No. 22, signed in 1800 by Nicholas King, as attorney for R. Peter, it is stated[281] that the commissioners conveyed to Robert Peter the lot No. 6 in square No. 22, in consideration of the balance due him by the public of square feet in the division of lots. Since the year 1800 to the time of the institution of this suit no attempt to impeach this settlement, and no assertion of title to the land south of Water street, by the descendants of Robert Peter, appear to have been made. The decree of the court below in respect to this claim is affirmed. The next class of appellants consists of those who claim rights of property on the river front between the Long Bridge and the Arsenal. They all derive title under Notley Young, and the parcels of land they claim are all situated south of Water street, and fall within the limits of the government improvement. In so far as the arguments advanced in support of these claims are based on the alleged abandonment of Water street in the Dermott plan, and on the legal consequences supposed to follow from the fact that the trustees never formally conveyed the streets or public reservations, they are disposed of by the conclusions already reached. But it is further contended that, even if we conclude that Water street was designed to be the southern boundary of the city, and that the title to said street passed to the United States, yet the facts disclose such equities between the United States, on the one hand, and the private claimants, on the other, as to justify a decree in favor of these appellants. Those equities are said to arise out of grants made by the United States and the city authorities, from time to time, in respect to wharves and water fronts, under which the appellants and their predecessors acted, and out of the long lapse of time during which they have been in undisturbed possession. In considering the facts relied on by the appellants we must not lose sight of the conclusions already reached, namely, that Notley Young, by his agreement with the other proprietors and by his conveyance to the [282]trustees, had parted with his entire title to the lands described and to the riparian rights appurtenant thereto; that all the lots subsequently conveyed to Notley Young were subject to the plans of the city establishing Water street, and did not reinvest him with his original riparian rights. Hence these appellants, claiming under Notley Young, can only rely, in their contention now under consideration, on transactions that have taken place since the division between the commissioners and Notley Young; and these we shall now briefly examine. Our attention is first directed to the twelfth section of the Maryland act of December 19, 1791 (Kilty's Laws Md. chap. 45), in the following terms: "That the commissioners aforesaid, for the time being, or any two of them, shall, from time to time, until Congress shall exercise the jurisdiction and government within said territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and extent, they may judge durable, convenient, and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in said waters without license as aforesaid; and if any wharf shall be built without such license or different therefrom, the same is hereby declared a common nuisance." Here we may pause to observe that the only power given to the commissioners was to grant licenses, from time to time, and until Congress should assume and exercise its jurisdiction within the territory, and it was declared that any wharf built in the waters of the Potomac without such license or in disregard of its provisions was declared to be a common nuisance. 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 mak. ing such street; and when 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 ground. The buildings on said wharves to be subject to the general regulations for buildings in the city of Washington as declared by the Presi dent. Wharves to be built of such materials as the proprietors may elect." It will be seen that, in publishing these regulations, the commissioners claimed no authority in themselves, but professed only to act in virtue of the act of Maryland, and must therefore be understood as having intended to grant temporary licenses, subject to the will of Congress when it should take jurisdiction. It appears in the record that Notley Young himself procured from the commissioners a license to build a wharf on the Potomac river, and that the wharf appears as an existing structure upon the map of 1797. The board of commissioners was abolished by an act of Congress approved May 1, 1802 (2 Stat. at L. 175, chap. 41) by the second section whereof it was enacted: "That the affairs of the city of Washington, which have heretofore been under the care and superintendence of the said commissioners, shall hereafter be under the direction of a superintendent to be appointed[284] by and under the control of the President of the United States; and the said superintendent is hereby invested with all the powers, and shall hereafter perform all the duties, which the said commissioners are now vested with, or are required to perform by or in virtue of any act of Congress, or any act of the general assembly of Maryland, or any deed or deeds of trust from the original proprietors of the lots of said city, or in other manner whatsoever." This was followed by the act of May 3, 1802, entitled "An Act to Incorporate the Inhabitants of the City of Washington, in the District of Columbia." (2 Stat. at L. 195, chap. 53). In it was given to the corporation "full power and authority to reg The licenses contemplated therefore were temporary, and liable to be withdrawn by Congress on assuming jurisdiction. Such legislation certainly cannot be relied on as either conferring or recognizing rights to erect and maintain permanent wharves within the waters of the Potomac and the East-ulate the stationing, anchorage, and moorern Branch. [283] *On July 20, 1795, the commissioners published the following regulations respecting wharves: "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, and to regulate the materials, the manner and extent thereof, hereby make known the following regulations: "That the proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the Eastern Branch as they think convenient and proper, not injuring or interrupting the channels or navigation of the said waters, leaving a space, wherever the general plan of streets in the 174 U. S. U. S., Book 43. ing of vessels," but no authority to license or regulate the building of wharves is given. Then came the act of February 24, 1804 (2 Stat. at L. 254, chap. 14), wherein was given to the city councils power "to preserve the navigation of the Potomac and Anacostia rivers, adjoining the city; to erect, repair, and regulate public wharves, and to deepen docks and basins." By the act of May 15, 1820 (3 Stat. at L. 583, chap. 104), entitled "An Act to Incorporate the Inhabitants of the City of Washington, and to Repeal All Acts Heretofore Passed for That Purpose," the corporation was empowered "to preserve the navigation of the Potomac and Anacostia rivers adjoining the city; to erect, repair, and regulate public wharves; to regulate the manner 62 977 |
