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(109 U. S. 672) POTOMAC STEAM-BOAT Co. and others v. UPPER POTOMAC STEAM

BOAT Co.

POTOMAC STEAM-BOAT Co. v. INLAND & SEABOARD COASTING Co.

(January 7, 1884.)

RIPARIAN RIGHTS - CONVEYANCE OF LAND – WHARVES IN WASHINGTON CITY

LANDS OF NOTLEY YOUNG.

Une Notley Young, the original proprietor of a tract of land upon the bank of the

Potomac river, now forming a part of the site of the city of Washington, conveyed it with all appurtenances to trustees, by whom it was conveyed to the United States. Certain parts of this land, described as bounded by Water street, were certified back to Notley Young and others. Water street was not laid out at the time, and the owners of the water lots for a great many years used the land to the water's edge. Held, that the United States retained the fee-simple in the strip described as Water street, and that all rights of whart. age originally appurienant to the land had passed absolutely to the United States.

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Appeal from the Supreme Court of the District of Columbia. John Selden and Con. Robinson, for appellants. Wm. Birney, for appellees. Nathl. Wilson, for Inland & Seaboard Coasting Co. *MATTHEWS, J. These two cases were heard together in the court below and in this court. They involve the same questions and depend upon facts substantially the same, appearing in a single record. The claim of the appellants (who were plaintiffs below) is that, being owners and in possession, in the first case, of square No. 472, and, in the second, of lot No. 13, in square No. 504, on the plan of the city of Washington, they are entitled to the exclusive right to make and use wharves and other similar improvements in the Po. tomac river opposite or in front of these lots, which are separated from it by Water street; and the object of the bills is to restrain the defendants, by a perpetual injunction, from intruding upon and dis. turbing the enjoyment of their right. This claim is denied by the defendants, who assert an adverse right under public authorities acting in the name of the United States. This issue was determined by the court below in favor of the defendants by decrees dismissing the bills, which decrees these appeals bring before us for review. The plaintiffs derive title to the lots mentioned by mesne conveyances from Notley Young, who was the original proprietor of a tract of about 400 acres, known as the Dudington pastures, lying upon the Potomac river, and which became part of the site of the city of Washington, extending along the river from Tiber creek, corresponding with the foot of Fourteenth street at the Long bridge, to the grounds of the United States arsenal.

The seventh clause of the compact between Virginia and Maryland, of March 28, 1785, declared that "the citizens of each state respect.

ively shall have full property in the shores of the Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wha ves and

other improvements, so as not to obstruct or injure the navigation of the river.” * The nature and extent of this compact were considered

by this court in Georgetown v. Alexandria Canal Co. 12 Pet. 91, where it was declared to be a compact between the states as such, to which the citizens of neither were parties, and, being subject to the will of the states, as to any changes in its stipulations, it was equally under the control of congress after the cession. It was provided, however, by the act of July 16, 1790, (1 St. 130,) accepting the District of Columbia as the seat of government of the United States, “that the oper. ation of the laws of the state within such 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.” It was therefore provided by the general assembly of Maryland, by an act of December 19, 1791, $ 12, that the commissioners of the district, appointed by the president under the act of congress of July 16, 1790, “shall, from time to time, until congress shall exercise the jurisdiction and government within the 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 of the 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 the 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." Davis, 64.

In pursuance of this authority, the commissioners adopted the following regulation on the subject, dated July 20, 1795:

"That all 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 navigation, leaving a space, wherever the general plan of the streets in 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 occupation 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; the buildings on said wharves or made ground to be subject to the general regulations for buildings in the city of Washington, as declared by the president; wharves to be built of such materials as the proprietors may elect.” Pages 408, 409, Proceed. Com’rs, 1791 to 1795.

This regulation was submitted to President Washington, who di. rected it to be published by letter dated at Mt. Vernon, September 18, 1795. In the mean time, Notley Young and the other proprietors, whose proposal had been accepted, by distinct conveyances, but in like form, had conveyed to Thomas Beall and John M. Gantt, as trustees, the several tracts of land which were to constitute the terri. tory of the city of Washington. That of Notley Young was dated June 29, 1791, and conveyed, in fee-simple, "all the lands of him, the said Notley Young,” therein described, to have and to hold, "with their appurtenances,” in consideration “of the uses and trusts” therein mentioned, and "to and for the special trusts following, and no other:"

"That all the lands hereby bargained and sold, or such part 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 of George and John M. 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 the act of Congress entitled 'An act for establishing the temporary and permanent seat of the govern, ment 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 said 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 consent of the said Notley Young and the commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate to the said Notley Young; and it shall in that event be determined by lot whether the said Notley Young shall begin with the lot of the least number laid out on the said lands or the following number; and all the said lots which may in any manner be divided or assigned to the said Notley Young shall thereupon, together with any part of the said bargained and sold lands, if any, which shall not have been laid out on the said city, be conveyed by the said Thomas Beall of George and John M. Gantt, or the survivor of them, or the heirs of such survivor, to him, the said Notley Young, his heirs and assigns,” etc.

It was also stipulated therein that the said Beall and Gantt should, at the request of the president of the United States, convey all or any of said lands which should not then have been conveved in execution of the trusts aforesaid, to such persons as he should appoint, in feesimple, subject to the trusts remaining to be executed, and to the end that the same might be perfected. Accordingly, on October 3, 1796, the president requested Beall and Gantt to convey all the unconveyed residue of the land granted by Notley Young to Scott, Thornton, and White, then commissioners, appointed under the act of July 16, 1790, “in fee-simple, subject to the trusts yet remaining to be executed;" and on November 30, 1796, Beall and Gantt accordingly conveyed by deed in fee-simple to the commissioners last named. In the mean time, however, the plan of the city had been adopted and promulgated, on maps of which were laid out the squares, lots, public grounds, and streets; and on October 18, 1794, a division had been made between Notley Young and the commissioners, in execution of the trusts of the deed from him to Beall and Gantt, of which square No. 504 fell to the public and square No. 472 to Notley Young. No deed was made by Beall and Gantt to Notley Young for square No. 472, but on Jan. uary 13, 1797, the commissioners«recorded in their book, which by law they were authorized to keep for that purpose, their certificate that they and Young had agreed “that the whole of the same square shall remain to the said Notley Young agreeably to the deed of trust concerning lands in the said city,” and attached thereto a plat of the square, its boundaries as follows: "Bounded on the north by L street, four hundred and seventy-nine feet four inches; the south by M street south, three hundred and fifty-seven feet three inches; the east by Sixth street west, two hundred and eighty-nine feet ten inches; the southwest by Water street, three hundred and fourteen feet three inches," as per return dated December 24,1793. A similar entry and record were made in respect to square 504, the plat of which shows a subdivision of the entire square into lots, of which five, lot No. 13 being one of them, front on Water street, running back to an alley which separates them from all the other lots in the square. The legal title to this, and other squares allo:ted to the public, passed to the commissioners of the district by the deed trom Beall and Gantt; and the legal estate to square 472 and the others allotted to Notley Young, vested in him in fee-simple, by virtue of the certificates recorded in the commissioners' book, under a law of Maryland, of December 28, 1793, (Burch, Dig. 224,) which gave effect to it, “according to the import of such certificates." A similar certificate was made and recorded October 18, 1794, to the effect that James Greenleaf bad become the purchaser of 857 lots, for wbich he had fully paid, the legal title to which in fee-simple had vested in him, and among them is enumerated square 504. The plaintiffs claim lot 13 in that square under Greenleaf's title.

It has been observed that both squares, No. 472 and No. 504, are bounded on the south-west by Water street. This street was designated, on the adopted plan of the city, as occupying the whole line of the river front, and separating the line of the squares from the river for the entire distance from Fourteenth street to the arsenal. It is alleged in the bill in respect to this street that there was traced on the map of the city"but a single line denoting its general course and direction; that the dimensions of said Water street, until the adoption, on the twenty-second day of February, 1839, of the certain plan of one William Elliott, as hereinafter more particularly mentioned, were never defined by law; and that the said Water street was never, in fact, laid out and made in the said city until some time after the close of the recent civil war; that before the commencement of said civil war one high bluff or cliff extended along the bank of said river, in said city of Washington, from Sixth street west to Fourteenth street west; that to the edge thereof the said bluff or cliff, between the points aforesaid, was in the actual use and enjoyment of the owners of the land which it bounded towards the said river; that public travel between the two streets last above mentioned, along the

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said river, could only be accomplished by passing over a sandy beach, and then only when the tide was low; and that what is now the path of Water street, between the two streets aforesaid, was and has been made and fashioned by cutting down the said cliff or bluff and filling in the said stream adjacent thereto."

These allegations, in substance, are admitted in the answer to be true, with the qualification that the width of the street was left undefined because it constituted the whole space between the line of the squares and the river, whatever that might be determined to be from time to time, but that the commissioners, on March 22, 1796, made an order directing it to be laid out 80 feet in width, from square 1079 to square east of square 1025, and to "run out the squares next to the water and prepare them for division,” and that it was so desig. nated on maps of the city in 1803. If not, the inference is all the stronger that the whole space south of the line of the lots was intended to be the property and for the use of the public. Barclay v. llucll'8 Lessees, 6 Pet. 504. In Rowan's Ex'rs v. Portland, 8 B. Mon. 232-239, that inference was declared to be the legal result of such a state of facts. It is quite certain that such a space was designated on the official map of the city as originally adopted, the division and sale of the squares and lots being made in reference to it. What the legal effect of that fact is we shall hereafter inquire, and while we do not consider it to be qualified by the circumstances set forth as to the actual history of the street as made and used, they perhaps sufficiently account for the doubt and confusion in which the questions of right brought to issue in this litigation seem, for so long a period, to have been involved. The transaction between Notley Young and the public authorities, as evidenced by the documents and circumstances thus far set forth, was equivalent in its result to a conveyance by him to the United States in fee-simple of all his land described, with its appurtenances, and a conveyance back by the United States to him of square No. 472, and to Greenleaf of square No. 504, bounded and described as above set forth, leaving in the United States an estate in fee-simple, absolute for all purposes, in the strip of land designated as Water street, intervening between the line of the squares as laid out and the Potomac river.

The very point as to the nature of this title was decided in the case of Van Ness v. The Mayor, etc., of Washington, 4 Pet. 232. It was there said by Mr. Justice Story, delivering the opinion of the court, (page 285:)

"IIere we have a solemn instrument embodying the final intentions and agreements of the parties, without any allegations of mistake, and we are to construe that instrument according to the legal import of its terms. Now, upon such legal import, there do not seem grounds for any reasonable doubt. The streets and public squares are declared to be conveyed for the use of the United States forever.' These are the very words which by law are required to vest an absolute unconditional fee-simple in the United States. They are

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