Edward Douglass White

“ Indeed, so self-evident are these things that the court deems it proper that the defendants should be compensated by the government before being ousted of the possession of such improvements as wharves and structures thereon. If the demands of equity require that the structures be paid for by the government, far greater and stronger is the reason for concluding that the right of property, on the faith of which the structures were made, should not be denied or taken away without just compensation. ”

“ The government having succeeded in selling, at an enhanced price, lots fronting on the river only after convincing the purchasers of their rights to wharfage, it seems to me that, after all these years, it cannot in equity be allowed to hold on to the result of the sales, and deny the right of wharfage, by giving positive assurance as to the existence of which the sales were alone made possible. ”

“ Indeed, to disregard the riparian rights of the lot owners as shown by the record, it seems to me, will be equivalent to confiscation, and that in reason it cannot be done without imputing bad faith to the illustrious men who so nobly conceived and so admirably executed the foundation of the federal city. ”

“ Applying to this premise of fact the legal principle that, where property is separated from the water by land belonging to some one else, no riparian rights attach to the land of the former, it is held that the lot owners before the court have no riparian privileges which the government of the United States is in any way bound to respect. ”

“ Now, the sagacious men who were Washington's advisers must have seen at once that the plan preserving the riparian rights, and giving access at the same time to the river front, in accordance with the system which, it may be assumed, existed in the countries where it was hoped that money would be obtained, was much more likely to accomplish the desired result than the adoption of a contrary plan. ”

“ It seems hardly necessary to suggest that riparian rights that is, rights of wharfage-could not possibly have been certified as existing in the land sold to Templeman, 'agreeably to the general idea in similar instances.' if all such rights had been already cut off by the effect of the L'Enfant and the Ellicott maps; for it must be borne in mind that the property certified, in effect, as appurtenant to the lots in square 8 and sold to Templeman, was delineated on the map as being bounded on the water side by a proposed street. ”

“ As there were no lots in Notley Young's land embraced within the terms of the contract which were not separated from the river by the proposed street on the L'Enfant of Ellicott plan, it follows conclusively that the words 'water lots' could only have referred to the lots fronting on the river and facing on the projected street, which were deemed water lots because of their situation, and which were, of course, entitled in consequence to the privilege of wharfage. ”

“ Remember that the lot owners had a right to have the share of the lots coming to them in ' a like or as good situation' as before, and, if not satisfied with the share given to them, had the power to cause the sale of the whole. To satisfy them, and induce them to accept the allotment, here is the final declaration that, in considering the question of wharfage, the lot holders were assured that their rights would extend across the proposed street by parallel east and west lines to the channel. ”

“ Now, with all the intervening transactions, comes the letter to the president, showing beyond peradventure the construction and interpretation affixed to the Maryland act by those to whom it was addressed. Could Washington, could Jefferson, have remained silent if the letter of the commissioners was an incorrect statement of the understood law on the subject? The declaration of what the rights of the water lot owners were as to wharfage is as full and complete, it seems to me, as human language could make it. ”

“ The landholders to have the use and profits of all the grounds until the city is laid off into lots, and sale is made of those lots, which, by this agreement, become public property. Nothing is to be allowed for the ground which may be occupied as streets or alleys.'
Subsequently, in order to carry out the agreement, the lot owners conveyed their lands to trustees. ”

“ It is not necessary to review the evidence showing the unequivocal possession enjoyed by the wharf owners up to this time, or to state the proof as to the expenditures of time, labor, or money by the owners of the water lots along the Potomac river, upon the faith of the wharfing regulations and the possession of riparian privileges,-the filling in by them of Water street, the erection of sea walls, the filling in of parts of the bed of the river beyond Water street, as well as various other expenditures. ”

“ The history of the times leaves no doubt of the solicitude of President Washington and of the commissioners, whose hopes were enlisted in the permanent establishment of the capital, to avail of every resource to obtain the means wherewith to erect the public buildings, so that the capitol might be ready for occupancy at the time designated in the act of congress. ”

“ As these very commissiners, about this very time, sold lots as possessed of riparian privileges where a street was contemplated towards the water, and where some fast land existed (as in the case of squares 1,067, 1,079, 1,080, and east of 1,025, to which we have already referred as facing that portion of Water street expressly named on the Dermott map) , it is evident that the statement in question was not meant as a general declaration in the broad sense which might be ascribed to it if the circumstances under which it was made were not considered. ”

“ In passing, attention is directed to the fact that some of the very lots in controversy in this cause, and as to which riparian rights are now denied, were allotted by the commissioners upon a division of water lots owned by persons incapable of acting for themselves, under the proceedings provided for in the Maryland statute, which clearly, as to such persons, negates the conception that their riparian rights had been or could be destroyed by the involuntary surrender of their property under the operation of the statute. ”

“ But I think that where it is simply proposed, as is the case with many, if not all, the lots between the Long Bridge and the Arsenal Grounds, to appropriate the riparian rights simply by an arbitrary line running along the edge of the water on the map, thereby cutting off all wharves and buildings thereon upon the theory that none of the riparian rights segregated by the line were private property, this is but an appropriation of private property, requiring just compensation. ”

“ That the preservation of navigation was the controlling object in the regulation of private wharves is very distinctly evidenced in the act of councils approved January 8, 1831, which, in section 6, repealed the act of councils of July 19, 1819, and in the first section enacted as follows:
'Section 1. That it shall not be lawful for any person or persons to build or erect any wharf or wharves within the limits of this corporation, who shall not first submit the plan of such wharf or wharves to the mayor, who, with a joint committee of the two boards of the city council shall examine the same ”

“ While this open way may be used by everybody, it does not cut off the riparian rights, but is simply superimposed upon those rights, the lot owner having the enjoyment of the rights, but being obliged to furnish the open space which the public may use. ”

“ For the purposes, then, of this dissent, it is not at all questioned that the several plans of the city, referred to in the opinion of the court, are to be treated each as progressive steps in the evolution of the original conception of the city, and therefore are each entitled to be considered, without causing one to abrogate the efficacy of the other, except where there is an essential conflict. ”

“ The word 'lots' in the proviso manifestly meant 'water' lots, as there had been previously an express agreement that Morris and Greenleaf should 'have the part of the city in Notley Young's land.' As stated, the proviso followed a stipulation excepting 'water lots' generally from the operation of the agreement. ”

“ Templeman desired to buy the platted square, but he was unwilling to do so lest it might be claimed that the small piece of unplatted land on the opposite side of the street might cut him off from the river, and thereby deprive him of his riparian rights. That he needed the riparian rights and intended to use them results from the fact that his proposition contained a guaranty to erect a wharf. ”

“ If the L'Enfant and Ellicott plans had destroyed all riparian rights, as it is now held, it is obvious that the provisions of this conveyance could not be carried out, if the water lot owners were to receive half of their lands in the same or as good a situation. ”

“ From Washington, then, to Van Buren, in every form in which it could be done, the riparian rights of the lot holders have been continuously and solemnly sanctioned. I cannot now, by any act of mine, destroy them on the theory that they have never existed.
On May 26, 1840, a permit was issued by Mayor Force, by virtue of the act of June 8, 1831, to William Easby, to wharf in front of some of the water squares which originally formed part of the land of Robert Peter, situate on the Potomac river, near Rock Creek. ”

“ The contracts for the sale of water lots with riparian rights attached, the reports of the surveyors, and the action of the commissioners, all blend into a harmonious and perfect whole, working from an original conception to a successful consummation of a well-understood result. The contrary view produces discord and disarrangement, and leads to the supposition either that the plan of a street, cutting off riparian rights, was devised in ignorance of its legal result, and, of course, I have not the audacity to make such suggestion as to Washington and Jefferson and Madison, and Mr. ”

“ It cannot be, in reason, successfully denied that the construction of the agreements between the parties contemporaneously made by all concerned, and followed by long years of official action and practical execution, furnishes the safest guide to interpret the contracts, if there be doubt or ambiguity in them. ”

“ He has not done so, but desired, in case the contract for the water lots was not finished, that they might be reserved as a part of twelve. The commissioners had promised to reserve for him to accommodate his friends, under terms of speedy improvement. So circumstanced, the commissioners can positively agree for the public interest in the water lots only, which they offer at the rate of 200 pounds each, and the public interest in the rest of the lots in the four squares at 100 pounds each, to take place in case Mr. Greenleaf does not fix his choice on them. ”

“ Suffice it to say that the land was conveyed to the trustees by described boundaries, with the appurtenances. Besides embodying the provisions contained in the previous agreement, the deeds also contained other provisions material to be noticed. Thus, in effect, the portion of the land conveyed which was to inure to the benefit of the public was divided into two classes: First, the public reservations, streets, and alleys, not intended to be disposed of for purposes of profit, but retained for the public use ”

“ In 1802, as we have seen, there were at least four, and perhaps five, wharves, which were owned by the public. While authority was given to the corporation of Washington, by the act of May 3, 1802, to 'regulate the stationing, anchorage, and mooring of vessels,' no authority to license or regulate the building of wharves was given. ”

“ It is important, however, in considering this, to bear in mind a few salient facts: First, that, while accepting the cessions, it was provided that the seat of the Federal government should not be removed to the proposed capital until more than 10 years thereafter,-that is, the first Monday of December in the year 1800; second, that, 'until the time fixed for the removal thereto,' and until congress should by law otherwise provide, the operation of the laws of the state within the district should not be affected by the acceptance by congress ”

“ Adverting to the importance of so drafting the regulations as not to impose restrictions calculated to discourage those intending to purchase water lots with their appurtenant privileges, the commissioners said:
'Our funds depend in some measure on sales, and sales on public confidence and opinion. ”

“ The plan was described on its face as of that part of the city 'exhibiting the water lots and Water street and the wharves and docks thereon, along the Potomac, from E to T street south.' It assigned, in the ratio proposed by Elliott, to every square on the north side of Water street a wharfing site from the south side of that street to the 'edge of the channel' of the Potomac, and to public appropriations and the ends of streets terminating at Water street sites for docks or other like uses. ”

“ Greenleaf coming here, from 10 to 15th of next month, the two interests might be adjusted. The commissioners would have a pleasure in contributing all in their power, and assure themselves there would be no difficulty if all were met together.'
These squares, because they were 'water lots in the Eastern Branch,' could not have been selected by Greenleaf under the large contract already referred to, and therefore the purchase of these lots was a separate transaction. ”

“ Instances of this kind are shown by the record in connection with squares 667 and east of 667, squares 665 and 666, and squares 662 and 709. And in the case of squares s. s. 667, lying to the south of the street, which consisted of considerable fast land, a sale was made of a lot in that square with the privilege east of the same, being an unnumbered square lying in the water. ”