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tions, which the diligent research of counsel on both sides has com. piled 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 reg. ulations 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 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 form. ing 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 them. selves 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 wbarves 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, Suly 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
had been presented in a very interesting manner, from the point of view opposed to that expressed by the commissioners, but showing that differences of opinion existed, by Nicholas King, in a letter* to the president dated September 25, 1803, and printed in Burch's Di. gest, 351. In that communication he attributed the doubt and uncertainty in which the matter was involved to the action of the commissioners. "In laying off the city," he says, "they stopped, as before observed, on the bank of the river, sold the lots on the high ground with a water privilege, without defining either what the privilege is, or the extent or direction in which the purchasers were to wharf and improve."
3. A special ground is maintained in behalf of the claim under lot 13, in square 504, derived from Greenleaf. On December 24, 1793, the commissioners made a contract in writing with Morris and Greenleaf for the sale and conveyance of 6,000 lots, 4,500 to lie south-west of Massachusetts avenue, and of them Morris and Greenleaf were to have “the part of the city in Notley Young's land.” By this contract Morris and Greenleaf were excluded from selecting water lots, but with this proviso: "Provided, and it is hereby agreed by and between the parties to these presents, that the said Robert Morris and James Greenleaf are entitled to the lots in Notley Young's land, and, of course, to the privileges of wharfing annexed thereto, and that lots adjoining the canal are not reckoned water lots.” From this it is sought to draw the inference that the lots in Notley Young's land fronting on the north side of Water street, have the appurtenant wharfing privileges claimed. But there is no sufficient foundation for this conclusion. Even if it were proper to resort to this preliminary agreement to supply what is not contained in the subsequent grant, made in execution of it,—which, we have seen, on the authority of the Case of Van Ness, we are not at liberty to do,-still, there is nothing to identify square 504 as a water lot out of the property of Notley Young. On October 18, 1794, as has been stated, the commissioners transferred to Greenleaf, Morris consenting, by certificate, 857 of these lots, including the one in question, and it may be that many of them were water lots, but which of them were is to be determined by the actual facts as to each, and not by any general description. There were lots, in Notley Young's land as laid out, which answered the description, without reference to those lying on the north side of Water street. That there was on the original plan of the city, and in the division made between the original proprietors and the United States, a classification of the squares and lots into "water lots,” with riparian privileges, and the rest which were not, admits of no dispute. The exact nature of the difference is well pointed out in a very elaborate report made May 25, 1846, to the common council of the city, by a committe appointed to investigate the subject, and their conclusions on the point seem to us supported by the records and documents of the time. They say:
"Squares in the water with water lots were laid off by the commissioners and divided with the proprietors on the navigable waters of the Eastern Branch, Potomac, and Rock creek. Water lots were defined by metes and bounds on three sides, and were estimated originally in the division, since in sales, and now for assessment by the front foot.
* On the plan of the city all the streets are delineated and all the property laid off. Every owner of a lot in the city can tell by the description of it in his deed what are its bounds on all sides; if it has a water boundary, the deed says so, and he has a right to wharf out into the river; if it is bounded on all sides by the land, he has no such right, the right to wharf belonging only to land bounded by the water."
If there are any individual cases that are exceptions to these statements, nevertheless their general accuracy, we consider, well established, and that they manifest the original intention of the parties to the transaction. Disputes undoubtedly arose, some quite early, not 80 much as to what rights belonged to "water lots," nor as to what properly constituted a "water lot,” but, in regard to particular localities, whether that character attached to individual squares and lots. In part, at least, the uncertainty arose from the fact that the plan of the city, as exhibited on paper, did not accurately correspond at all points with the lines as surveyed and marked on the land. Complaints of that description, and of designed departures from the plan, seem to have been made. It is also true, we think, that mistakes arose, as perhaps in the very case of the lots on the north side of Water street, owing to the fact that the street existed only on paper, and for a long time remained an unexecuted project; property appearing to be riparian, because lying on the water's edge, which, when the street was actually made, had lost its river front. They were thought to be "water lots,” because appearing to be so in fact; but were not so in law, because they were bounded by the street and not by the river.
4. The plaintiffs rely upon the decision of the former circuit court for this district in the case of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838. The question in that case was whether the owner of lots in the city of Washington, lying on Rock creek, was entitled to compensation for a wharf and water privilege which had been condemned for the use of the canal company. It was contended on behalf of the latter that the owner of the lots never had any water privilege as appurtenant to them, because they were cut off from the creek by Twenty-eighth street west, and as the streets belonged to the United States, the water privilege belonged to them also. It appeared that Harbaugh, the owner, had built, maintained, and used a wharf in connection with the premises for 30 years without interruption, and that no part of the bank of the creek and no dry land lay west of the street, one-half of which was in the creek. It also appeared that he had bought from the United States, to whom the lots had been allotted in the division of the square between the public and the original proprietor, but the terms of the conveyance from the United States to Harbaugh are not stated.
was argued for the owner that the streets were conveyed to the United States only as highways, and did not deprive the riparian proprietors of their water rights, and reference was made to Nicholas King's title in Burch's Digest, to the wharf regulations of the commissioners in 1795, and to the Maryland act of 1791, c. 45, $ 12. The court, it is stated, held that the title of Harbaugh to his wharf was good against the United States, claiming under a private citizen, (R. Peter,) the original proprietor, but gave no reasons for its opinion. No allusion was made by counsel or court to the case of Van Ness v. Mayor, etc., of Washington, supra, which had been decided in 1830, and in which the only point in behalf of the prevailing party, made by counsel in the case in the circuit court, had been ruled the other way. For that reason the judgment cannot be considered as evidence of the law of this district upon the question involved. The question of wharfage had been before the same court in another form in 1829, in the case of Kennedy v. Corp. of Washington, 3 Cranch, C. C. 595. That was an application for a mandamus to compel the corporation to make regulations prescribing the manner of erecting private wharves within the limits of the city, the showing in support of the motion for the rule being that the relator was the purchaser of lot No. 1 in square No. 329; that he had applied to the authorities for leave to build a wharf on that lot, and for directions in regard to the plan and construction of the wharf, all which they had refused. Mr. Wallach, for the corporation, argued that the power of the corporation over the subject was within its discretion, which the court would not control. Mr. Jones, on the same side, referred to the opinion of Nicholas King, in Burch's Digest, argued that it appertained to the courts of the several states and of the United States to determine upon these rights, and contended that the power of the commissioners upon the subject ceased to exist by the assumption of jurisdiction by congress, February 27, 1801, (2 St. 103;) the power given to the corporation being only to regulate the manner of erecting private wharves, not to limit the extent of them, or to interfere with the rights of owners of the land adjoining the river. The court refused the mandamus, it is said in the report, for the reasons stated in the argument of Mr. Jones and Mr. Wallach.
5. The decision just referred to, in the case of Kennedy's application for a mandamus, explains, probably, some subsequent action of the corporate authorities on the subject of wharfage, on which the appellants rely as evidence and confirmation of their claims. One of the practical difficulties experienced in the matter of building wharves arose from the fact that conflicts between private claimants, and with acknowledged public rights at the termination of streets upon the river, would exist if the wharf rights were extended to the channel between lines prolonged from the sides of the lots. This followed partly because the general course of the channel, measured by its chord, was less by about 280 feet than that of the shore line, and be.