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land." Lord CAIRNS in Lyon v. Fishmonger's Co. 1 App. Cas. 662, 672. "It seems to us clear," said POLLOCK, C. B., in Stockport Waterworks Co. v. Potter, 3 Hurl. & Co. 300-326, "that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away a portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights."

No inference in such a case arises against the riparian right of the grantee because the land has been granted for a street. On the contrary, as was said in Barney v. Keokuk, 94 U. S. 324–340, “a street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river and the usual accommodations of navigation in such a connection;" that is, as appears by the decision in that case, to be used by the public for such purposes, as well as a highway, in contradistinction to the exclusive right of one claiming riparian rights as owner of the soil. Godfrey v. City of Alton, 12 Ill. 29. "If the city," said this court in New Orleans v. U. S. 10 Pet. 663-717,"can claim the original dedication to the river, it has all the rights and privileges of a riparian proprietor."

Notley Young and the successor to his title had no property in the street, not even the right to insist that it should be maintained as such. The United States held its title to the land over which it was laid out, for its own use, and not in trust for any person or for any purpose. In that respect the case differs from Railroad Co. v. Schurmeir, 7 Wall. 272, where it was held that, as the city held the title to the street only in trust for the purposes of its dedication as such, the title remained in the original proprietor for all other purposes, and with a property right in its use as a street for his adjacent land. And it is immaterial that the ground laid out as a street was not in a condition to be used as a street, or that much labor was required to place it in that situation, or that, in fact, it had not been used as such for a long period of time. Barclay v. Howell's Lessee, 6 Pet. 504, 505; Boston v. Lecraw, 17 How. 426. "A man cannot lose the title to his lands," it is said in this case, "by leaving them in their natural state without improvement, or forfeit them by non-user." Page 436; McMurray v. Baltimore, 54 Md. 103.

This denies no right that can be claimed by virtue of the compact between Virginia and Maryland of 1785, for that secured to their citizens "the privilege of making and carrying out wharves," as to the shores of the Potomac only, so far as they were "adjoining their lands," and such had always been the law in Maryland, notwithstanding the language of the act of 1745, c. 9, § 10, which was held to authorize the improvements therein spoken of, to be made by improvers in front of their own lots only. Dugan v. Baltimore, 5 Gill & J. 357; Wilson v. Inloes, 11 Gill & J. 351. The "full property in the shores of Potowmack river," spoken of in the compact, if it is not

to be taken as a seizin of the land covered with water, but a right of occupation merely, properly termed a franchise, as said by HOSMER, C. J., in East Haven v. Hemingway, 7 Conn. 186–202, must be appurtenant to the land, the conveyance of which carries it as an incident; otherwise, if it implies an ownership in the soil of the shore, between high and low water mark, as land, it could not pass as an appurtenance by a deed conveying the adjoining land; for land cannot be appurtenant to land. Harris v. Elliott, 10 Pet. 25-54; Storer v. Freeman, 6 Mass. 435; Com. v. Alger, 7 Cush. 53. And in this view the title of the plaintiffs fails, because they show no conveyance of the locus in quo, as parcel, and claim it only as an appurtenance.

An act of Maryland of January 22, 1785, authorizing an addition to Georgetown of land, according to a plat and upon conditions prescribed by the proprietors, confirms this view of the state of the general law in Maryland, by making express statutory provision "that the proprietors of the lots fronting on the north side of Water street shall have and enjoy the exclusive right to the ground and water on the south side of their respective lots for the sole purpose of making wharves," etc. The inference is irresistible that this was meant to give statutory sanction to an exception from the general rule. The same comment applies to the case of Hazlehurst v. Baltimore, 37 Md. 199, to which we are referred. There the street or highway that intervened between the wharf and the water was, by virtue of the statutes under which the work was executed, made part of the wharf itself, and subject to the right of the lot-owner for the purposes of a wharf, and to that extent it was held he had a right of property in it, of which he could not be deprived for public use except upon due compensation made.

It is not denied and never was questioned that, as to the streets whose termini abutted on the river, the water front was subject to the riparian rights of the public for use as wharf or dock or landing place. On what principle can a distinction be drawn between that case and the one in hand, where the line of the river constitutes the side of the street running along the shore? The rights of the public. are the same; especially where, as here, it was the soil of the street, as so much land, for all purposes. The true inference to be drawn from the plan of laying out such a street seems to us to be to secure to the public the very rights here in controversy, and to prevent private monopoly of the landing places for trade and commerce. For, as was said in Dutton v. Strong, 1 Black, 1-31: "Piers or landing places and even wharves may be private,"—"or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use;" the question whether they are so, or are open to public use on payment of reasonable compensation as wharfage, depending in such cases "upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the

nature and character of the structure." Undoubtedly, Notley Young, prior to the founding of the city and the conveyance of his land for that purpose, was entitled to enjoy his riparian rights for his private uses and to the exclusion of all the world besides. It can hardly be possible that the establishment of the city upon the plan adopted, including the highway on the river bank, could have left the right of establishing public wharves, so essential to a great center of population and wealth, a matter altogether of private ownership; for, even as to squares and lots that fell to the public on the division, it is equally contended by the appellants that those from whom they claim, with the lots also purchased the public riparian right appurtenant thereto, with power to convert it to private use.

It was for this reason held by the court of appeals of Kentucky, in the case of Rowan's Ex'r v. Portland, 8 B. Mon. 232, that where land. along the river bank in a town had been laid out and dedicated by the proprietor for a public street, that the dedication for that purpose carried with it, as a necessary incident, the right in the public to build wharves and charge wharfage for the use thereof, to the exclusion of the original proprietor and his alienees of any private right of the same character.

To the same effect is the judgment of the same court in Newport v. Taylor's Ex'r, 16 B. Mon. 699, 804.

Various considerations, however, are urged upon us in argument in support of the appellants' claim, which, so far as we deem important, and the limits of this opinion will permit, we will now notice in order. 1. It is urged that the construction of the rights of the parties which deprives the claimants, under Notley Young and Greenleaf, of the rights of wharfage opposite their property, on the north side of Water street, in effect gives to the United States the entire water front on the Potomac river, without an equivalent, and thus violates that equality in the division which was expressly stipulated for in Notley Young's deed to Beall and Gantt. But there is no dispute as to the division that was actually made, and each party received, so far as the conveyances are concerned, precisely what he agreed to take and was satisfied with. The supposed inequality arises from a construction of law upon the transaction, as it is admitted or proved to have taken place, and its legal effect is not dependent upon its actual results. The division, which it was agreed should be fair and equal, was of the lots into which the lands should be laid off; the grantor was to receive back any lands not so laid off, and the streets were to be the property of the United States, and, of course, with whatever appurtenant rights belonged to them as streets, or to the land over. which they were laid out.

2. It is insisted, however, that the contemporaneous construction put by the parties themselves upon their own acts, requires a different conclusion. It is impracticable to refer specifically to the numerous letters, maps, plans, documents, and records of different descrip

tions, which the diligent research of counsel on both sides has compiled and placed in the record of these cases, as throwing light on the history of the transaction, and as evidence of the views of the actors in it. We can notice but a few, with the general remark that a careful consideration of everything bearing on the point to which our attention has been called, has failed to satisfy us that the conclusion reached, as the legal effect of the documents of title, is inconsistent with the actual intentions of the parties. In a letter to the presi dent, explaining their regulations of July 20, 1795, the commissioners distinctly say "that no wharves, except by the public, can be erected on the waters opposite the public appropriations, or on the streets at right angles with the water;" and that it is "proprietors of property lying on the water" that are to be permitted to build wharves. It is possible, indeed, that the commissioners did not, at that time, contemplate that a street laid out along the margin of the river, as Water street was, would be on the same footing with what they deemed to be "public appropriations," and yet there is nothing in their communication inconsistent with that result, and the idea is clearly embraced in it when we apply the decision in the Van Ness Case to its terms; and their view to that effect is strongly implied in what they wrote to James Barry on October 5, 1795. He had written to them, saying that, "as Georgia avenue meets the water at Third street, and can only begin again at the other side of the water, I request permission to erect a store or buildings, agreeably to the regulations of the water property of square 771, without adverting to the imaginary direction of Georgia avenue, which runs across my wharf, and would totally render useless said wharf." The commissioners replied, saying:

"We think with you that an imaginary continuation of Georgia avenue through a considerable depth of tide-water, thereby cutting off the water privilege of square 771 to wharf to the channel, too absurd to form a part of the plan of the city of Washington; that it never was a part of the plan that such streets should be continued through the water; and that your purchase in square 771 gives a perfect right to wharf to any extent in front or south of the property purchased by you, not injurious to navigation, and to erect buildings thereupon, agreeably to the regulations."

It is plainly to be inferred from this that if, as was the case of Water street, the street was laid down on the map as a continuous street, abutting on the river, and called for as the south boundary of the lots fronting on it, it would have been regarded by them as forming part of the plan of the city, "thereby cutting off the water privilege" from the lots between which and the river it intervened. But on June 25, 1798, the commissioners had occasion to declare themselves explicity on the very point, in a letter to Nicholas King of that date, in answer to an inquiry from him in behalf of Robert Peter, requesting "to know the extent of wharfing and water privilege attached to what was called water lots and assigned to him on division." They replied as follows:

"SIR: We are favored with yours of the 22d instant in behalf of Mr. Peter. When the commissioners have proceeded to divide a square with a a city proprietor, whether water or other property, they have executed all the powers vested in them to act upon the subject. It appertains to the several courts of the state and 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 is entitled to any water privilege, as a street intervenes between it and the water; but, as there is some high ground between the water street and the water, we have no objection 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.”

A transaction between John Templeman and the commissioners on January 24, 1794, is relied on as showing the rule acted upon in cases like the present. The commissioners, it is stated in the record of their proceedings of that date, sold to Templeman nine lots in square No. 8, and delivered him a certificate with the following indorsement thereon: "It is the intention of this sale that the ground across the street next to the water, with the privilege of wharfing beyond the street in front and of the breadth of the lots, pass with them agreeably to the general idea in similar instances." On January 15, 1798, the commissioners, it is recited in the same record of that date, executed a deed to Templeman of the lots named, "together with all the land in front from Twenty-seventh street to river Potomac, with all rights of wharfing thereon, which deed is given by the request of Mr. Templeman in lieu of one dated the 3d instant, with the addition of lot 18, in square No 8, and the water privilege in front of the lots conveyed in square No. 8, the former deed having been first given up and canceled." It will be observed that this is open to the construction that the wharfage privilege is appurtenant, not to the lots in square No. 8, but to the land sold with them on the opposite side of the street, and extending thence to the Potomac river, and which, of course, is riparian property.

There was, in fact, no contemporary agreement of opinion on the subject. On the contrary, there was diversity of view and conflict of interest from the beginning. Various questions arose relating to the mode in which the privilege of building wharves should be exercised by those entitled to it, as well as to what constituted "water lots," to which such privilege belonged, and some of them were left undecided. On some of these the opinion of Charles Lee, attorney general, was taken on January 7, 1799; some were investigated and reported upon by a committee of the house of representatives on April 8, 1802; some were discussed by Atty. Gen. Breckinridge in an opinion dated April 5, 1806; the very matter of wharfing privileges was the subject of an opinion by Mr. Wirt, then attorney general, July 8, 1818, in which he expressed doubts as to the power of the commissioners to adopt the wharf regulation of July 20, 1795. The whole subject

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