Potomacco v. Upper Potomacco Potomacco v. Inland Seaboard Coasting Co

• Decision Date: 07 January 1884
• Docket Number: STEAM-BOAT
• Citation: 109 U.S. 672,3 S.Ct. 445,27 L.Ed. 1070
• Parties: POTOMACCO. and others v. UPPER POTOMACCO. POTOMACCO. v. INLAND & SEABOARD COASTING CO
• Court: U.S. Supreme Court

109 U.S. 672

3 S.Ct. 445

27 L.Ed. 1070

POTOMAC STEAM-BOAT CO. and others v. UPPER POTOMAC STEAM-BOAT CO.

POTOMAC STEAM-BOAT CO.

v. INLAND & SEABOARD COASTING CO.

January 7, 1884.

[Syllabus from pages 672-673 intentionally omitted]

[Statement of Case from page 673 omitted]

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 l t 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 Potomac 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 disturbing 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 at 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 respectively 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 wharves 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 operation 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 by 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 prop- erty, 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 wharv § 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 directed 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 territory 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 government 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 conveyed 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, 1976, 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. o deed was made by Beall and Gantt to Notley Young for square No. 472, but on January 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 perreturn 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 allotted to the public, passed to...