George Shiras, Jr.

“ 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 the channels or navigation of the said waters, leaving a space wherever the general plan of the street 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 ”

“ It has been the practice in this country, in laying out towns, to have the plat surveyed, and a plan made in accordance with the survey, designating the streets, public squares, and open spaces left for commons, wharves, or any other public purpose. Those streets, squares, and open spaces are thus dedicated to the public by the proprietors of the soil, whether they be the state or private individuals. When a town is situated on a navigable river, it is generally the custom to leave an open space between the line of the lots next the river and the river itself. ”

“ It is doubtless true, as argued in the brief filed for those who succeeded to Young's title, that such a division would not, of itself, have the effect of vesting title in fee to the land in the United States; nor, perhaps, would such a transaction operate as a donation by Young to the city of the territory covered by the street, although it might be deemed a dedication thereof to public use as a street. ”

“ We think it impossible to reconcile the succession of acts of congress and of the city councils with the theory that the wharves south of Water street were erected by individuals in the exercise of private rights of property in defined parcels of land to them belonging. ”

“ As a national city was to be founded, which was to be the permanent seat of the government of the United States, where foreign nations would be expected to be represented, and as the site selected was on a navigable, tide-water river, inviting foreign and domestic commerce, we should naturally expect to find the city located in immediate proximity to the river, with public wharves and landings, and with a municipal ownership and control of the streets and avenues leading to and bounding on the stream. ”

“ Those who, relying, some of them, on express, and others on implied, licenses from the city authorities, have erected and maintained expensive wharves and warehouses for the accommodation of the public, are not to be treated, as we read the will of congress, as mere trespassers. ”

“ The whole wood on the land shall be the property of the proprietors, but should any be desired by the president to be reserved or left standing, the same shall be paid for by the public at a just and reasonable valuation exclusive of the twenty-five pounds per acre, to be paid for the land on which the same shall remain. ”

“ The fair meaning and effect of the legislation 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. ”

“ Without pursuing further this branch of the subject, and assuming that the heirs of John Marshall have become lawfully vested with the Fairfax title, we are of opinion that they have failed to show any right or title to the lands and premises involved in this litigation, and that the decree of the court below, so far as it affects them, is free from error. ”

“ We are here met with a serious controversy as to the place and nature of the river boundary of the city. The record contains a large amount of evidence, consisting chiefly of maps and plans, of correspondence between the president and the commissioners, the deeds of conveyance by the original proprietors, and the testimony of old residents, some of whom had acted as surveyors and engineers during the early history of the city. ”

“ 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 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. ”

“ As against this proposition it is argued on behalf of the Marshall heirs that the confiscation acts of Maryland were ineffectual in the present case, because the title to these lands under waters is of such character that they could not be forfeited or confiscated, the owner thereof not having right of possession or right of entry thereon. If, as is elsewhere claimed by the appellants, the soil under the river was the subject of sale and devise, it is not easy to see why it may not be subjected to forfeiture and confiscation. ”

“ The claims of ownership made to part of the reclaimed land by certain defendants, who assert title under a patent issued by the United States through the general land office to John L. Kidwell, in the year 1869, for 47 71/100 acres, and to 150 acres of alleged accretion thereto, and to another tract, the area of which is not stated, adjoining the Long Bridge, and extending therefrom southwardly between the Washington and Georgetown channels, of which latter tract they claim to be the equitable owners under an application for a patent made by said Kidwell in 1871. ”

“ The space claimed to be comprehended within the courses and distances of the survey set forth in the patent is now included within the lines of the raised land known as the 'reclaimed flats,' and the claimants under the patent contend that this occupation by the United States is an appropriation of their porperty, for which they are entitled to compensation under the proceedings in this suit. ”

“ Adverting to the act of the legislature of Maryland of December 19, 1791, and citing the section above quoted, he said:
'This provision seems to have been designed to have the legal effect to vest in the United States the fee of all the lots, etc., conveyed for their use, and also to perfect the titles of purchasers to whom sales had been or should be made, according to the terms of the act of congress.' 7 Op. Attys. Gen. 355. ”

“ 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. ”

“ In point of fact, the trustees did, by their deed of November 30, 1796, on the request of President Washington, convey to the commissioners in fee simple all that part of the land which had been laid off into squares, parcels, or lots for buildings, and remaining so laid off, in the city of Washington, subject to the trusts remaining unexecuted. ”

“ The buildings on said wharves 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.'
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 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 of altogether private ownership.'
Thomas Johnson, Daniel Carroll, and David Stewart were, on January 22, 1791, appointed by President Washington such commissioners; and on March 30, 1791, by his proclamation of that date, the president finally established the boundary lines of the District ”

“ Apparently acquiescing in this allegation or disclaimer, the appellants put in no evidence as to the value of their improvements, and sought no finding on that subject in the court below, but stood, both there and in this court, on their claims of absolute title. ”

“ If it is not done at this time, the evils will increase, and every year add to our difficulties. Even now, from the various decisions or neglects, alterations, or amendments which have here ofore taken place, some time an investigation may be necessary in the arrangement of a system which shall combine justice with convenience. ”

“ Washington, there were complaints made, from time to time, of alleged changes or departures from the L'Enfant and Ellicott plans, and that also eff rts were made, sometimes successfully, to get changes allowed. And on November 10, 1798, a memorial was addressed to President Adams by some of the proprietors of lands within the city, complaining of changes made by the Dermott plan in some of the features of the previous plans, and calling attention to the incompleteness of that plan in omitting a delineation of Water street. ”

“ That all the said lands hereby bargained and sold, or such part thereof as may be thought necessary or proper, be laid out together with the lands for a federal city, with such streets, squares, parcels, and lots as the president of the United States for the time being shall approve ”