MORRIS V. UNITED STATES, 174 U. S. 196 (1899) -- US Supreme Court Cases from Justia & Oyez

The grant by Charles I to Lord Baltimore on the 20th of June, 1632, included in unmistakable terms the Potomac River, and the premises in question in thus suit, and declared that thereafter, the Province of Maryland, its freeholders and inhabitants, should not be held or reputed a member or part of the land of Virginia, and the territory and title thus granted were never divested, and upon the Revolution, the State of Maryland became possessed of the navigable waters of the state, including the Potomac River, and of the soils thereunder, and, by the act of cession to the United States, that portion of the Potomac River with the subjacent soil which was appurtenant to and part of the territory granted became vested in the United States, and the Court, in consequence, affirms the judgment of the court below in respect of the Marshall heirs denying their claims.

It was not the intention of Congress, by the Resolution of February 16, 1839, to subject lands lying beneath the waters of the Potomac, and within the limits of the District of Columbia, to sale by the methods therein provided, and the recent decisions of the courts of Maryland to the contrary, made since the cession to the United States and at variance with those which prevailed at the time of the cession, cannot control the decision of this Court on this question; but as the invalidity of the patent in the present case was not apparent on its face, but was proved by extrinsic evidence, and as the controversy respecting the patent was not abandoned by the defendants, they are not entitled to a decree for the return of the purchase money or for costs.

It was the intention of the founders of the City of Washington to locate it upon the bank or shore of the Potomac River, and to bound it by a street or levee so as to secure to the inhabitants and those engaged in

Page 174 U. S. 197

commerce free access to the navigable water, and such intention has never been departed from.

As to land above high water mark in Washington, the title of the United States must be found in the transactions between the private proprietors and the United States.

The proprietors of such land, by their conveyances, completely divested themselves of all title to the tracts conveyed, and the lands were granted to the trustees.

The Dermott map was the one intended by President Washington to be annexed to his Act of March 2, 1797, but the several maps are to be taken together as representing the intentions of the founders of tile city, and, so far as possible, are to be reconciled as parts of one scheme or plan.

From the first conception of the Federal City, the establishment of a public street bounding the city on the south and to be known as Water Street was intended, and such intention has never been departed from, and it follows that the holders of lots and squares abutting on the line of Water Street are not entitled to riparian rights, nor are they entitled to rights of private property in the waters or the reclaimed lands lying between Water Street and the navigable channels of the river, unless they can show valid grants to the same from Congress or from the city on the authority of Congress, or such a long protracted and notorious possession and enjoyment of defined parcels of land as to justify a court, under the doctrine of prescription, in inferring grants.

The Chesapeake and Ohio Canal Company, having entered Washington long after the adoption of the maps and plans, cannot validly claim riparian rights as appurtenant to the lots or parts of lots which it purchased in Water Street, as it was the persistent purpose of the ,founders of the city to maintain a public street along the riverfront, and Congress and the city only intended 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.

No riparian rights belonged to the lots between Seventh Street West and Twenty-Seventh Street West.

There is no merit in the claim of the descendants of Robert Peter.

It is impossible to reconcile the succession of acts of Congress and of the city council with the theory that the wharves of South Water Street were erected by individuals in the exercise of private rights of property.

The failure of the city to open Water Street created no title in Willis to the land and water south of the territory appropriated for that street.

The Court. does not understand that it is the intention of Congress, in exercising its jurisdiction over this territory, to take for public use, without compensation, the private property of individuals, and therefore, while affirming the decree of the court below as to the claims of the Marshall heirs, and as to the Kidwell patent and as to the claims for riparian rights, it remands the case to the court below for further proceedings.

Page 174 U. S. 198

The Act of Maryland entitled "An act to cede to congress a district of ten miles square in this state for the seat of the government of the United States" was in the following terms:

"Be it enacted by the General Assembly of Maryland that the representatives of this state in the House of Representatives of the Congress of the United States, appointed to assemble at New York on the first Wednesday of March next, be and they are hereby authorized and required, on behalf of this state, to cede to the Congress of the United States any district in this state, not exceeding ten miles square, which the Congress may fix upon and accept for the seat of government of the United States."

(Kilty's Laws of Maryland.)

On December 3, 1789, by an act entitled

"An act for the cession of ten miles square, or any lesser quantity of territory within this state to the United States, in Congress assembled, for the permanent seat of the general government,"

Virginia ceded to the Congress and government of the United States a tract of country not exceeding ten miles square, or any lesser quantity, to be located within the limits of the state, and in any part thereof as Congress may by law direct, in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, providing that nothing therein contained should be construed to vest in the United States any right of property in the soil, or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States, and providing that the jurisdiction of the laws of the commonwealth over the persons and property of individuals residing within the limits of the said concession should not cease or determine until Congress should accept the cession and should by law provide for the government thereof under their jurisdiction.

Congress, by an act entitled "An act for establishing the temporary and permanent seat of the government of the United States," approved July 16, 1790, accepted a district of territory, not exceeding ten miles square, to be located on the River Potomac, and authorized the President

Page 174 U. S. 199

of the United States to appoint Commissioners, who should, under the direction of the President, survey, and, by proper metes and bounds, define and limit, the district, which, when so defined, limited, and located, should be deemed the district so accepted for the permanent seat of the government of the United States. It was further thereby enacted that the said Commissioners should have power to purchase or accept such quantity of land on the eastern side of said river within the said district as the President should deem proper for the use of the United States, and according to such plans as the President should approve, and that the Commissioners should, prior to the first Monday in December in the year 1800, provide suitable buildings for the accommodation of Congress and of the President and for the public offices of the government, and that, on the said first Monday in December in the year 1800, the seat of the government of the United States should be transferred to the district and place aforesaid, and that all offices attached to the government should be removed thereto and cease to be exercised elsewhere. The act contained the following proviso:

"That the operation of the laws of the state within said 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."

1 Stat. 130.

On January 22, A.D. 1791, Thomas Johnson and Daniel Carroll, of Maryland, and Daniel Stewart, of Virginia, were appointed by President Washington Commissioners to carry the foregoing legislation into effect.

On March 3, 1791, Congress passed an amendatory act by which, after reciting that the previous act had required that the whole of the district or territory, not exceeding ten miles square, to be located on the River Potomac, should be located above the mouth of the Eastern Branch, the President was authorized to make any part of the territory below said limit, and above the mouth of Hunting Creek, a part of the said district, so as to include a convenient part of the Eastern Branch and of the lands lying on the lower side thereof, and also the Town of Alexandria, and that the territory so to be

Page 174 U. S. 200

included should form a part of the district not exceeding ten miles square for the seat of the government, but providing that nothing contained in the act should authorize the erection of the public buildings otherwise than on the Maryland side of the River Potomac.

On March 30, A.D. 1791, President Washington issued a proclamation, describing the territory selected by him for the location of the seat of government as follows:

"Beginning at Jones' Point, being the upper cape of Hunting Creek in Virginia, and at an angle, in the outset, of forty-five degrees west of the north, and running in a direct line ten miles for the first line; then beginning again at the same Jones' Point and running another direct line at a right angle with the first across the Potomac ten miles for the second line; then from the terminations of the said first and second lines, running two other direct lines of ten miles each, the one crossing the Eastern Branch aforesaid and the other the Potomac, and meeting each other in a point."

The Commissions were accordingly instructed by the President to have the said four lines run, and to report their action.

In the meantime, intercourse was had between the Commissioners and the principal owners of property within the District looking to the sale and conveyance by the latter of land on which a Federal City was to be erected. And the following agreement was signed by the proprietors:

"We, the subscribers, in consideration of the great benefits we expect to derive from having the Federal City laid off upon our lands, do hereby agree and bind ourselves, heirs, executors and administrators, to convey in trust, to the President of the United States, or Commissioners, or such person or persons as he shall appoint, by good and sufficient deed in fee simple, the whole of our respective lands which he may think proper to include within the lines of the Federal City, for the purposes and on the conditions following:"

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which shall be laid off shall be a joint property between the trustees on behalf of the public and each present proprietor, and the same shall be fairly and equally divided between the public and the individuals, as soon as may be, after the city shall be laid out."

"For the streets the proprietors shall receive no compensation, but for the squares or lands in any form which shall be taken for public buildings or any kind of public improvements or uses, the proprietors whose lands shall be so taken shall receive at the rate of twenty-five pounds per acre, to be paid by the public. 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."

"Each proprietor shall retain the full possession and use of his land until the same shall be sold and occupied by the purchasers of the lots laid out thereupon, and in all cases where the public arrangements as to streets, lots, etc., will admit of it, each proprietor shall possess his buildings and other improvements and graveyards, paying to the public only one-half the present estimated value of the lands on which the same shall be, or twelve pounds ten shillings per acre. But in cases where the arrangements of the streets, lots and squares will not admit of this and it shall become necessary to remove such buildings, improvements, etc., the proprietors of the same shall be paid the reasonable value thereof by the public."

"Nothing herein contained shall affect the lots which any of the parties to this agreement may hold in the Towns of Carrollsburgh or Hamburgh."

"In witness whereof we have hereto set our hands and seals this thirteenth day of March, 1791."

Among the signers of this agreement were Robert Peter, David Burns, Notley Young, and Daniel Carroll.

Subsequently, in pursuance of the agreement, the several proprietors executed deeds of conveyance to Thomas Beall and John Mackall Gantt, as trustees.

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It will be found convenient, in view of the questions that arise in the case, to have the deeds of David Burns and Notley Young transcribed in full:

"This indenture, made this twenty-eighth day of June, in the year of our Lord one thousand seven hundred and ninety-one, between David Burns of the State of Maryland, of the one part, and Thomas Beall (son of George) and John Mackall Gantt of the State of Maryland, of the other part, witnesseth: That the said David Burns, for and in consideration of the sum of five shillings to him in hand paid by Thomas Beall and John Mackall Gantt before the sealing and delivery of these presents, the receipt whereof he doth hereby acknowledge and thereof doth acquit the said Thomas Beall and John Mackall Gantt, their executors and administrators, and also for and in consideration of the uses and trusts hereinafter mentioned to be performed by the said Thomas Beall and John Mackall Gantt and the survivor of them, and the heirs of such survivor, according to the true intent and meaning thereof, hath granted, bargained, sold, aliened, released and confirmed, and by these presents doth grant, bargain, sell, alien, release and confirm unto the said Thomas Beall and John Mackall Gantt and the survivor of them, and the heirs of such survivor, all the lands of him the said David Burns lying and being within the following limits, boundaries and lines, to-wit: beginning on the east side of Rock Creek at a stone standing in the middle of the road leading from Georgetown to Bladensburgh, thence along the middle of the said road to a stone standing on the east side of the Reedy Branch of Goose Creek, thence southeasterly making an angle of sixty-one degrees and twenty minutes, with the meridian to a stone standing in the road leading from Bladensburgh to the Eastern Branch Ferry, thence south to a stone eighty poles north of the east and west line already drawn from the mouth of Goose Creek to the Eastern Branch, thence east parallel to the said east and west line to the Eastern Branch, Potomack River and Rock Creek, to the beginning, with their appurtenances, except all and every lot and lots of which the said David Burns is seised or to which he is entitled lying in

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Carrollsburgh or Hamburgh. To have and to hold the hereby bargained and sold lands, with their appurtenances, to the said Thomas Beall and John Mackall Gantt, and the survivor of them, and the heirs of such survivor, forever, to and for the special trusts following, and no other -- that is to say that all the said lands hereby bargained and sold, or such parts 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 and John Mackall 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 an 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 the 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 the said David Burns and the Commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate to the said David Burns, and it shall on that event be determined by lot whether the said David Burns shall begin with the lot of the lowest number laid out on his said lands or the following number, and all the said lots which may in any manner be divided or assigned to the said David Burns shall thereupon, together with any part of the said bargained and sold lands, if any which shall not have been laid out in the said city, be conveyed by the said Thomas Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor to him, the said David Burns, his heirs and assigns, and that the said other lots shall and may be sold at any time or times in such manner and on such terms and conditions as the President of the United States for the time being shall direct, and that the said Thomas

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Beall and John Mackall Gantt, or the survivor of them, or the heirs of such survivor will, on the order and direction of the President, convey all the said lots so sold and ordered to be conveyed to the respective purchasers in fee "

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simple, according to the terms and conditions of such purchasers, and the produce of the sales of the said lots when sold as aforesaid shall, in the first place, be applied to the payment in money to the said David Burns, his executors, administrators or assigns, for all the part of the lands hereby bargained and sold, which shall have been in lots, squares or parcels, and appropriated as aforesaid, to the use of the United States at the rate of twenty-five pounds per acre, not accounting the said streets as part thereof, and the said twenty-five pounds per acre being so paid, or in any other manner satisfied, that the produce of the same sales or what thereof may remain as aforesaid in money or securities of any kind shall be paid, assigned, transferred and delivered over to the President for the time being, as a grant of money, and to be applied for the purposes and according to the act of Congress aforesaid, but the said conveyances to the said David Burns, his heirs or assigns, as well as the conveyances to the purchasers, shall be on and subject to such terms and conditions as shall be thought reasonable by the President for the time being, for regulating the materials and manner of the buildings and improvements on the lots generally in the said city, or in particular streets or parts thereof for common convenience, safety and order; provided such terms and conditions be declared before the sales of any of the said lots under the direction of the President and in trusts farther, and on the agreement that he, the said David Burns, his heirs and assigns, shall and may continue his possession and occupation of the said land hereby bargained and sold at his and their will and pleasure until the same shall be occupied under the said appropriations for the use of the United States as aforesaid, or by purchasers, and when any lots or parcels shall be occupied under purchase or appropriations as aforesaid, then, and not till then, shall the said David Burns relinquish his occupation thereon. And in trust also as to the trees, timber and woods on the premises that he,

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the said David Burns, his heirs or assigns, may freely cut down, take and use the same as his and their property, except such of the trees and wood growing as the President or Commissioners aforesaid may judge proper and give notice, shall be left for ornament, for which the just and reasonable value shall be paid to the said David Burns, his executors, administrators or assigns, exclusive of the twenty-five pounds per acre for the land, and in case the arrangements of the streets, lots and like will conveniently admit of it, he, the said David Burns, his heirs and assigns, shall, if he so desire it, possess and retain his buildings and graveyard, if any, on the hereby bargained and sold lands, paying to the President at the rate of twelve pounds ten shillings per acre, of the lands so retained, because of such buildings and graveyards to be applied as aforesaid, and the same shall be thereupon conveyed to the said David Burns, his heirs and assigns, with the lots, but if the arrangements of the streets, lots and the like will not conveniently admit of such retention and it shall become necessary to remove such buildings, then the said David Burns, his executors, administrators or assigns, shall be paid the reasonable value thereof in the same manner as squares or other ground appropriated for the use of the United States are to be paid for. And because it may so happen that, by deaths and removals of the said Thomas Beall and John Mackall Gantt, and from other causes, difficulties may occur in fully perfecting said trust by executing all the said conveyances, if no eventual provision is made, it is therefore agreed and covenanted between all the said parties that the said Thomas Beall and John M. Gantt, or either of them, or

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the heirs of either of them, lawfully may, and they at any time at the request of the President of the United States for the time being will, convey all or any of the said lands hereby bargained and sold which shall not then have been conveyed in execution of the trusts aforesaid to such person or persons as he shall appoint in fee simple, subject to the trusts then remaining to be executed, and to the end that the same may be perfected. And it is further agreed and granted between all the said parties, and each of the said parties doth for himself respectively and

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for his heirs covenant and grant to and with the others of them that he and they shall, and will, if required by the President of the United States for the time being, join in and execute any further deed or deeds for carrying into effect the trusts, purposes and true intent of this present deed.

"In witness whereof, the parties to these presents have hereunto interchangeably set their hands and affixed their seals the day and year first above written."

The deed of Notley Young is in substantially similar terms.

On December 19, 1791, an additional act was passed by Maryland, ratifying the previous act of cession, and reciting that Notley Young, Daniel Carroll of Duddington, and many other proprietors of the part of the land thereinafter mentioned to have been laid out in a city had come into an agreement, and had conveyed their lands in trust to Thomas Beall and John Mackall Gantt whereby they subjected their lands to be laid out as a city, given up part to the United States, and subjected other parts to be sold to raise money, as a donation, to be employed according to the act of Congress for establishing the temporary and permanent seat of the government of the United States, under and upon the terms and conditions contained in each of said deeds; that the President had thereafter directed to be laid out upon such lands a city, which has been called the "City of Washington," comprehending all the lands beginning on the east side of Rock Creek at a stone standing in the middle of the road leading from Georgetown to Bladensburgh, thence along the middle of said road to a stone standing on the east side of the Reedy Branch of Goose Creek, thence southeasterly, making an angle of sixty-one degrees and twenty minutes with the meridian, to a stone standing in the road leading from Bladensburgh to the Eastern Branch Ferry, thence south to a stone eighty poles north of the east and west line already drawn from the mouth of Goose Creek to the Eastern Branch, then east parallel to the said east and west line to the Eastern Branch, then with the waters of the Eastern Branch, Potomac River, and Rock Creek, to the beginning.

By section 2, that portion of the "territory called Columbia"

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lying within the limits of the state, there was ceded and relinquished to the Congress and the government "full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon," but providing that nothing therein contained should be so construed to vest in the United States any right of property in the soil as to affect the rights of individuals therein otherwise than the same shall or may be transferred by such individuals to the United States, and that the jurisdiction of the laws of the state over the persons and property of individuals residing within the limits of the cession should not cease or determine until Congress should by law provide for the government thereof.

By section 3, it was provided that

"all persons to whom allotments and assignments of lands shall be made by the Commissioners, or any two of them, on consent or agreement, or, pursuant to the act, without consent, shall hold the same in their former estate and interest, and as if the same had been actually reconveyed pursuant to the said deed in trust."

By section 5, it was enacted that

"all the lots and parcels which have been or shall be sold to raise money shall remain and be to the purchasers, according to the terms and conditions of their respective purchase,"

and that a purchase, when made from one claiming title, and for five years previous to the statute in possession, either actually or constructively, through those under whom he claimed, was rendered unassailable, and that the true owner must pursue the purchase money in the hands of the vendor.

Section 7 enacted that the Commissioners might appoint a clerk for recording deeds of land within the said territory, who shall provide a proper book for the purpose, and therein record, in a strong, legible hand, all deeds, duly acknowledged, of lands in the said territory delivered to him to be recorded, and in the same book make due entries of all divisions and allotments of lands and lots made by the Commissioners in pursuance of this act, and certificates granted by them of sales, and the purchase money having been paid, with a proper alphabet in the same book of the deeds and entries aforesaid.

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By section 9, it was enacted that the Commissioners "shall direct an entry to be made in the said record book of every allotment and assignment to the respective proprietors in pursuance of this act."

By section 12, it was declared that, until the assumption of legislative power by Congress, the Commissioners should have power to

"license the building of wharves in the waters of the Potowmack 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 a license as aforesaid, and if any wharf shall be built without such license or different therefrom, the same is hereby declared a common nuisance; they may also, from time to time, make regulations for the discharge and laying of ballast from ships or vessels lying in the Potowmack River above the lower line of the said territory and Georgetown, and from ships and vessels lying in the Eastern Branch."

2 Kilty's Laws of Maryland, c. 45.

While the transactions were taking place between the Commissioners and the several proprietors, and which culminated in the deeds of conveyance by the latter to Beall and Gantt, negotiations were going on between the President and the Commissioners, on the one hand, and the owners of lots in Carrollsburgh and Hamburgh, on the other. Without following these negotiations in detail, it seems sufficient to say that an agreement, substantially similar to the one of March 13, 1791, was reached with those lot owners, and that the territory of those adjacent villages was embraced in the President's proclamation of March 30, 1791.

By a letter, contained in the record, dated March 31, 1791, from President Washington to Thomas Jefferson, Secretary of State, it appears that Maj. L'Enfant was, after the aforesaid agreements had been reached, directed by the President to survey and lay off the city, and the President further stated in that letter that

"the enlarged plan of this agreement having done away the necessity, and indeed postponed

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the propriety, of designating the particular spot on which the public buildings should be placed until an accurate survey and subdivision of the whole ground is made,"

he has left out of the proclamation the paragraph designating the sites for the public buildings.

On August 19, 1791, Maj. L'Enfant presented to the President his plan of the city, accompanied with a letter, describing the plan as still incomplete, and making several suggestions, particularly one to the effect that sales should not be made till the completion of his scheme for the city and the public buildings should be completed.

On December 13, 1791, the President sent to Congress a communication in the following terms:

"I place before you the plan of the city that has been laid out within the district, of ten miles square, which was fixed upon for the permanent seat of the government of the United States."

Afterwards, on February 20, 1797, on the occasion of a complaint by Mr. Davidson of certain deviations from this plan by Maj. Ellicott, who succeeded Maj. L'Enfant as surveyor, President Washington, in a letter to the Commissioners, said:

"Mr. Davidson is mistaken if he supposed that the transmission of Major L'Enfant's plan of the city to Congress was the completion thereof. So far from it, it will appear by the message which accompanied the same that it was given as matter of information to show what state the business was in, and the return of it requested; that neither house of Congress passed any act consequent thereupon; that it remained, as before, under the control of the executive; that, afterwards several errors were discovered and corrected, many alterations made, and the appropriations, except as to the capitol and the President's house, struck out under that authority, before it was sent to the engraver, intending that work and the promulgation thereof were to give it the final and regulating stamp."

Subsequently dissensions arose between the Commissioners and L'Enfant which resulted in the dismissal of the latter and the employment of Andrew Ellicott, who, on February 23, 1792, completed a plan of the city and delivered it to the

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President, who, in a letter to the Commissioners, dated March 6, 1792, said:

"It is impossible to say with any certainty when the plan of the city will be engraved. Upon Major L'Enfant's arrival here in the latter part of December, I pressed him in the most earnest manner to get the plan ready for engraving as soon as possible. Finding there was no prospect of obtaining it through him, at least not in any definite time, the matter was put into Mr. Ellicott's hands to prepare about three weeks ago. He has prepared it, but the engravers, who have undertaken to execute it say it cannot certainly be done in less than two, perhaps not under three, months. There shall, however, be every effort made to have the thing effected with all possible dispatch."

This so-called Ellicott's plan was engraved at Boston and at Philadelphia, the engraved plans differing in that the latter did, and the former did not, show the soundings of the creek and river.

Subsequently James R. Dermott was employed to make a plan of the city, which he completed prior to March 2, 1797, and on that day, President Washington, by his act, requested and directed Thomas Beall and John M. Gantt, the trustees, to convey all the streets in the City of Washington, as they were laid and delineated in the plan of the city thereto attached, and also the several squares, parcels, and lots of ground appropriated to the use of the United States, and particularly described, to Gustavus Scort, William Thornton, and Alexander White, Commissioners appointed under the act of Congress.

On July 23, 1798, President Adams, in an instrument alleging that the plan referred to in said request and instruction by President Washington as having been annexed thereto had been omitted, declared that he had caused said plan to be annexed to said writing, and requested the said Thomas Beall and John M. Gantt to convey the streets, squares, parcels, and lots of ground, described in the act of the late President of the United States as public appropriations, to the said Scott, Thornton, and White, and their successors in office as Commissioners, to the use of the United States, forever.

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Lots and parcels of ground were sold to private purchasers from time to time under all three of these plans, and controversies have arisen as to the comparative authenticity of these plans. The particulars wherein those plans differ are stated and considered in the opinion of the Court.

On February 27, 1801, Congress passed the act concerning the District of Columbia and its government, and providing "that the laws of the State of Maryland as they now exist shall be continued in force in that part of the said district which was ceded by that state."

By the Act of August 2, 1882, c. 375, 22 Stat. 198, Congress made an appropriation for

"improving the Potomac River in the vicinity of Washington with reference to the improvement of navigation, the establishment of harbor lines, and the raising of the flats, under the direction of the Secretary of War, and in accordance with the plan and report made in compliance with the River and Harbor Act approved March 3, 1881, and the reports of the Board of Engineers made in compliance with the resolution of the senate of December 13, 1881."

This act made it the duty of the Attorney General to examine all claims of title to the premises to be improved under this appropriation, and to institute a suit or suits at law or in equity

"against any and all claimants of title under any patent which, in his opinion, was by mistake or was improperly or illegally issued for any part of the marshes or flats within the limits of the proposed improvement."

By subsequent acts of Congress, further appropriations were made for continuing the improvement, amounting to between two an three million of dollars, and in the prosecution of the work channels have been dredged, sea walls constructed, and a large area reclaimed from the river.

It appearing that claims to the lands embraced within the limits of the improvement, or to parts of them, were made by the Chesapeake & Ohio Canal Company, and by several other corporations and persons, besides those claiming under the patent referred to in the act of 1882, Congress passed the Act approved August 5, 1886, c. 930, 24 Stat. 335, entitled "An

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act to provide for protecting the interests of the United States in the Potomac River flats, in the District of Columbia."

By the first section of this act, it was made the duty of the Attorney General

"to institute as soon as may be, in the Supreme Court of the District of Columbia, a suit against all persons and corporations who may have or pretend to have any right, title, claim or interest in any part of the land or water in the District of Columbia within the limits of the City of Washington, or exterior to said limits and in front thereof toward the channel of the Potomac River, and composing any part of the land and water affected by the improvements of the Potomac River or its flats in charge of the Secretary of War, for the purpose of establishing and making clear the right of the United States thereto."

By the second section, it was provided that the suit

"shall be in the nature of a bill in equity, and there shall be made parties defendant thereto all persons and corporations known to set up or assert any claim or right to or in the land or water in said first section mentioned, and against all other persons and corporations who may claim to have any such right, title or interest. On the filing of said bill, process shall issue and be served according to the ordinary course of said court upon all persons and corporations within the jurisdiction of said court, and public notice shall be given by advertisement in two newspapers published in the City of Washington for three weeks successively of the pendency of said suit, and citing all persons and corporations interested in the subject matter of said suit, or in the land or water in this act mentioned, to appear at a day named in such notice, in said court, to answer the said bill and set forth and maintain any right, title, interest or claim that any person or corporation may have in the premises, and the court may order such further notice as it shall think fit to any party in interest."

The third section gives the court

"full power and jurisdiction by its decree to determine every question of right, title, interest or claim arising in the premises, and to vacate, annul, set aside or confirm any claim of any character arising or set forth in the premises, and its decree shall be final and conclusive

Page 174 U. S. 213

upon all persons and corporations parties to the suit, and who shall fail, after public notice as hereinbefore in this act provided, to appear in said court and litigate his, her, or its claim, and they shall be deemed forever barred from setting up or maintaining any right, title, interest or claim in the premises."

As to all the defendants except those claiming under a certain patent issued through the general land office to John L. Kidwell in 1869, the bill states that

"the complainant is not sufficiently informed as to the nature and extent of said claims, or any of them, to set them out with particularity, and the complainant leaves them to present their claims in their answer hereto as they may be advised."

As to the claims under said patent, the bill avers the patent to be void upon several grounds, and the claims therefore unfounded, and prays that the patent may be cancelled and annulled.

The bill further states that

"the complainant disclaims in this suit seeking to establish its title to any of the wharves included in the area described in paragraph 3 of this bill, and claims title only to the land and water upon and in which said wharves are built, leaving the question of the ownership of the wharves proper, where that is a matter of dispute, to be decided in any other appropriate proceeding."

The limits of the "land and water" affected by the improvements are specifically set forth in the third paragraph of the bill of complaint. The beginning of said limits is at the southeast corner of square south of square 12, and they proceed thence along the east line of said square and the west line of Twenty-Sixth Street to the line of the Chesapeake & Ohio Canal bank; thence, by several courses and distances, "along the canal bank, parallel to and about ten feet southwest of a row of sycamore trees," and following the shoreline of the river to the southwest line of Virginia Avenue between Seventeenth and Eighteenth Streets West; thence southeasterly along the southeast line of said avenue to the east line of Seventeenth Street West, being the west line of reservation 3 (known as the "Monument Grounds"); thence to the crest

Page 174 U. S. 214

of the bank forming the southwestern boundary of reservation 3, and along said crest to the southwestern corner of square 233 at the intersection of Fifteenth Street West and Water Street; thence across Fourteenth Street West and Maryland Avenue to a point in the middle of E Street South; thence to the nearest point in the shoreline of the river; thence with said shoreline to Greenleaf's Point at the southern extremity of the Arsenal Grounds; the line proceeds thence along the east side of the Washington channel of the Potomac River and across the mouth of the Eastern Branch in a southerly direction to the wharf at Giesboro Point; thence across the main or Virginia channel of the Potomac River in a westerly direction to the west side of that channel; thence along the west side of that channel in a northwesterly direction and following the meanders of the channel to a point opposite the wharf known as Easby's Wharf; thence across the channel to the southwest corner of said wharf, and thence along the south side of said wharf to the southwest line of square south of square 12, and thence along said southwest line to the place of beginning at the southeast corner of said square.

The area of actual reclamation of land from the bed of the river within said limits under the above-mentioned legislation amounted to nearly 750 acres.

Claims and pretensions of various kinds to the land and water within said limits, or to portions of the same, are set up in the answers of the parties who were originally made defendants to the bill and of those who have appeared in response to the public notice of the pendency of the suit given in accordance with the terms of the act.

These claims, with respect to the nature of the several issues involved in them, admit of convenient division into classes, viz.:

I. The claim made by the heirs of James (M.) Marshall and those of his brother, Chief Justice John Marshall, to the ownership of the entire bed of the river from shore to shore (including therein the reclaimed land), under grants from the Crown of England to Lord Culpeper and others, for what is known as the "Northern Neck of Virginia," and the deed from Denny Martin Fairfax, as said Culpeper's successor in title, to said

Page 174 U. S. 215

James (M.) Marshall, and the claim made by the said heirs of James (M.) Marshall to such ownership under the patent to Lord Baltimore for the Province of Maryland, and the deed to them from Frederick Paul Harford as Lord Baltimore's successor in title.

II. 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 forty-seven and seventy-one one-hundreths (47 71/100) acres, and to one hundred and fifty (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.

III. The claims made by the Chesapeake & Ohio Canal Company and its lessee, Henry H. Dodge, to riparian rights from Easby's Point to Seventeenth Street West.

IV. The claims to riparian rights, right of access to the channel of the river, and to accretions, natural and artificial, made by the owners of lots in squares along the river west of Seventeenth Street West -- namely, squares 148, 129, 89, 63, 22, and square south of square 12.

V. The claim made by certain of the descendants of Robert Peter, an original proprietor of lands in the City of Washington, to certain land near the public reservation known as the "Observatory Grounds."

VI. The claims to riparian privileges and wharfing rights made by owners of lots in squares beginning with square 233 and extending to the line of the Arsenal Grounds.

VII. The claims made by certain persons occupying wharves below the Long Bridge.

The main determination by the court "of rights drawn in question" in the suit was by a decree passed October 17, 1895. The decree adjudicated nearly all the points in controversy in favor of the United States.

Certain lots and parts of lots in squares 63, 89, 129, and

Page 174 U. S. 216

148, north of their boundaries on Water Street and A Street, which were subject to the ebb and flow of the tide, were included in the work of reclamation, and as to them the decree held the owners to be entitled to compensation for the taking and inclusion of the same in the improvements.

By the first paragraph of the decree, the claims under class 2 -- that is, those set forth in the answers of certain defendants founded upon a patent issued to John L. Kidwell, in 1869, for a tract of forty-seven and seventy-one one-hundredths (47 71/100) acres in the Potomac River, and alleged accretion thereto, and also to a tract adjoining the Long Bridge, founded upon an application for a patent therefor made by said Kidwell in 1871 -- are held and declared to be "invalid, void and of none effect," and the said patent is "vacated, annulled and set aside."

By the second paragraph,

"the claims of each and all of the other parties defendants, set forth in their respective answers, to any rights, titles and interests, riparian or otherwise, in the said lands or water"

are held and declared "to be invalid, void and of none effect," except as to the parties owning said lots and parts of lots in the squares last mentioned.

By the third paragraph, it is held and declared

"that there does not exist (except as aforesaid) any right, title or interest in any person or corporation, being a party to this cause, to or in any part of the said land or water,"

and

"that the right and title of the said United States (except as aforesaid) to all the land and water included within the limits of the said improvements of the Potomac River and its flats, as the said limits are described in the said bill of complaint"

is absolute

"as against all the defendants to this cause, and as against all persons whosoever claiming any rights, titles or interests therein who have failed to appear and set forth and maintain their said rights, titles or interests as required by said act of Congress."

By the fourth paragraph, it is held that the defendants who are owners of the lots or parts of lots in squares 63, 89, 129, and 148,

"which are included between the north line or

Page 174 U. S. 217

lines of the said improvements of the Potomac River and its flats, and the north line or lines of Water Street and A Street, are entitled to be indemnified for whatever impairment or injury may have been caused to their respective rights, titles or interests in said lots or parts of lots by the taking of the same by the United States, the value of such rights, titles, interests or claims to be ascertained by this Court, exclusive of the value of any improvement of the said lots or parts of lots made by or under the authority of the said United States."

By the fifth and last paragraph of the decree, the taking of further testimony was authorized, on behalf of the owners and on behalf of the United States, as to the respective areas of the said lots and parts of lots, and of and concerning the true ownership and value of the said lots and parts of lots.

Such testimony as to ownership, areas, and values having been taken and returned, the court, upon consideration thereof, and on March 2, 1896, passed a further and supplementary decree, adjudging the values of the said lots and parts of lots so taken to be ten cents per square foot, and payment was directed to be made to sundry persons whom the court found to be the owners of certain of the parcels, the ownership of the remaining parcels not being, in the opinion of the court, sufficiently established the taking of further testimony with respect thereto was ordered. The total amount of said values found by the court is $26,684.09.

The court having made a report of its action in the premises to Congress agreeably to the requirements of the Act of August 2, 1886, an appropriation was made for the payment of the sums so found to be due to the owners of the said lots and parts of lots in said squares, and, with two exceptions -- namely, Richard J. Beall and the trustees of the estate of William Easby, deceased -- the several owners of the property applied under said appropriation act to the court for the payment to them of the respective sums found to be due to them, and the fund has been very largely disbursed under orders of the court passed on said applications.

From the main decree of October 17, 1895, appeals were taken as follows:

Page 174 U. S. 218

1. By all the defendants embraced in class one (1), namely, the heirs of James (M.) Marshall and the heirs of his brother, Chief Justice Marshall.

2. By all the defendants embraced in class two (2), claiming under the Kidwell patent, etc., namely, Martin F. Morris, Henry Wells, Edward H. Wilson, Catherine A. Kidwell, Emma McCahill, John W. Kidwell, Francis L. Kidwell, Ida Hyde, and George A. Hyde.

3. By one of the defendants embraced in class (3), namely, the Chesapeake & Ohio Canal Company and its trustees.

4. By two of the defendants embraced in class (4), namely, the trustees of the estate of William Easby, deceased, and Richard J. Beall.

5. By all of the defendants embraced in class five (5), namely, certain descendants of Robert Peter.

6. By certain of the defendants embraced in class six (6), namely: (a) Charles Chauncy Savage et al.; (b) the Washington Steamboat Company, Limited; (c) Avarilla Lambert et al.; (d) William W. Rapley; (e) Mary A. S. Kimmell Gray; (f) James F. Barber et al.; (g) William G. Johnson, assignee of the American Ice Company; (h) Thomas W. Riley; (i) Edward M. Willis; (j) Annie E. Johnson, widow, sole executrix and devisee of E. Kurtz Johnson, deceased, et al.; (k) Elizabeth K. Riley, in her own right and as trustee and executrix of William R. Riley, deceased; (1) the Great Falls Ice Company; (m) Daniel S. Evans; (n) Margaret J. Stone, and (o) Charles B. Church et al.

7. By certain of the defendants embraced in class seven (7), namely, Annie E. Johnson, widow, sole executrix and devisee of E. Kurtz Johnson, deceased, et al., Charles B. Church et al., Daniel S. Evans, and William W. Rapley.

The reduced copies of the plans on the following pages will assist in applying the reasoning of the opinion.

174 U. S. 1 is the city before the conveyances.

174 U. S. 2 is the Ellicott plan.

174 U. S. 3 is a portion of the Dermott map, sufficient to indicate the riverfront in part.

Page 174 U. S. 219

|174 U.S. 196imagea|

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Page 174 U. S. 220

|174 U.S. 196imageb|

image:b

Page 174 U. S. 221

|174 U.S. 196imagec|

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Page 174 U. S. 222

MR. JUSTICE SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The first question for our determination arises out of the claims of the heirs of James M. Marshall and the heirs

Page 174 U. S. 223

of John Marshall to the ownership of the entire bed of the Potomac River, from shore to shore, including therein the reclaimed lands.

Their claims are based upon two distinct lines or sources of title, inconsistent with each other -- one originating in the charter granted by Charles I, King of England, on June 20, 1632, to Cecilius Calvert, second Baron of Baltimore and First Lord Proprietary of the Province of Maryland; the other, in the charter granted by James II., King of England, on September 27, 1688, to Thomas, Lord Culpeper.

We do not think it necessary to enter at length or minutely into the history of the long dispute between Virginia and Maryland in respect to the boundary line. It is sufficient for our present purpose to say that the grant to Lord Baltimore in unmistakable terms included the Potomac River and the premises in question in this suit, and declared that thereafter the Province of Maryland and its freeholders and inhabitants should not be held or reputed a member or part of the land of Virginia, "from which we do separate both the said province and inhabitants thereof."

In September, 1688, King James II., by his royal patent of that date, granted to Thomas, Lord Culpeper, what was called the "Northern Neck of Virginia," and described as follows:

"All that entire tract, territory or parcel of land situate, lying, and being in Virginia in America, and bounded by and within the first heads or springs of the Rivers of Tappahannock als Rapahannock and Quiriough als Patawonuck Rivers, the courses of said rivers from their said first heads or springs as they are commonly called and known by the inhabitants and descriptions of those parts and the Bay of Chesapeake, together with the said rivers themselves and all the islands within the outermost banks thereof, and the soil of all and singular the premises, and all lands, woods, underwoods, timber and trees, wayes, mountains, swamps, marshes, waters, rivers, ponds, pools, lakes, water courses, fishings, streams, havens, ports, harbours, bays, creeks, ferries, with all sorts of fish, as well whales, sturgeons, and other royal fish. . . . To have,

Page 174 U. S. 224

hold and enjoy all the said entire tract, territory or portion of land, and every parts and parcels thereof, . . . to the said Thomas, Lord Culpeper, his heirs and assigns forever."

Owing to the conflicting descriptions, as respected the Potomac River, contained in these royal grants, a controversy early arose between Virginia and Maryland. A compact was entered into in 1785 between the two states whereby, through commissioners, a jurisdictional line, for the purpose of enforcing the criminal laws and regulating the rights of navigation in the Potomac River, was agreed upon.

Finally, the controversy as to the true boundary still continuing, in 1874, the legislatures of the two states agreed in the selection of arbitrators, by whose award, dated January 16, A.D. 1877, the jurisdictional line and boundary were declared to be the low water mark on the Virginia shore. This award was accepted by the two states, and, by an Act approved March 3, 1879, 20 Stat. 481, Congress gave its consent to the agreement and award, but provided that nothing therein contained should be construed to impair or in any manner affect any right of jurisdiction of the United States in and over the islands and waters which formed the subject of the said agreement or award.

It was a mutual feature of the legislation by which this conclusion was reached that the landholders on either side of the line of boundary between the said states, as the same might be ascertained and determined by the said award, should in no manner be disturbed thereby in their title to and possession of their lands as they should be at the date of said award, but should in any case hold and possess the same as if their said titles and possession had been derived under the laws of the state in which, by the fixing of the said line by the terms of said award, they should be ascertained to be. (Act of Virginia, February 10. 1876, c. 48; Act of Maryland, April 3, 1876, c. 198).

Whether the result of this arbitration and award is to be regarded as establishing what the true boundary always was, and that therefore the grant to Thomas, Lord Culpeper, never of right included the Potomac River, or as establishing

Page 174 U. S. 225

a compromise line effective only from the date of the award, we need not determine. For even if the latter be the correct view, we agree with the conclusion of the court below that, upon all the evidence, the charter granted to Lord Baltimore by Charles I in 1632 of the territory known as the "Province of Maryland" embraced the Potomac River, and the soil under it, and the islands therein, to high water mark on the southern or Virginia shore; that the territory and title thus granted to Lord Baltimore, his heirs and assigns, were never divested by any valid proceedings prior to the Revolution, nor was such grant affected by the subsequent grant to Lord Culpeper.

The record discloses no evidence that at any time any substantial claim was ever made by Lord Fairfax, heir at law of Lord Culpeper, or by his grantees, to property rights in the Potomac River or in the soil thereunder, nor does it appear that Virginia ever exercised the power to grant ownership in the islands or soil under the river to private persons. Her claim seems to have been that of political jurisdiction.

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.

There remains to consider the claim of the heirs of James M. Marshall as alleged successors to the title of Lord Baltimore to the River Potomac and the soil thereunder, as part and parcel of the grant to him by the patent of Charles I in 1632.

We adopt, as sufficient for our purposes, the statement of that claim made in the printed brief filed on behalf of the heirs of James M. Marshall:

1st. That Charles I, in his charter of June, 1632, conveyed to the lord proprietary of Maryland, inter alia, full title to the lands under the navigable waters and rivers subject to tidal overflow, within the limits of that charter, with the right to grant such lands to others.

2d. That the King, in said charter, granted to the proprietary of the Province of Maryland the whole bed and soil of the

Page 174 U. S. 226

Potomac River, from bank to bank, and from its source to its mouth -- the locus in quo of the lands here in controversy.

3d. That the said proprietary held such lands, as he held his other lands, in absolute ownership and propriety, but subject to the public servitudes in and of the waters over them so long as those waters covered the lands.

4th. But that, when the waters ceased to be or flow over them, these lands were relieved of those servitudes, and his right of seisin or possession attached, and perfected his title, and of this his heirs or assigns could take the benefit and advantage, if holding title at that time.

5th. That by the action of the government of the United States in reclaiming them into for public purposes, and converting them into firm and fast lands and passing the Act of August 5, 1886, and bringing suit against these appellants and others, the first opportunity was given to these appellants to make or assert their title.

6th. That title was legally derived to them by the devises and deeds set out in the record.

Briefly expressed, the appellants' contention is that the propriety in the soil under the River Potomac passed to Lord Baltimore and his grantees, and that it passed not as one of the regalia of the Crown, or as a concomitant of government, but as an absolute proprietary interest, subject to every lawful public use, but not the less, on that account, a hereditament, and the subject of lawful ownership, and of the right of full and unqualified possession when that public use shall have ceased.

We need not enter into a discussion of this proposition, because the doctrine on which it is based has been heretofore adversely decided by this Court in several leading and well considered cases. Martin v. Waddell, 16 Pet. 367; Den v. Jersey Company, 15 How. 426; Shively v. Bowlby, 152 U. S. 1.

The conclusions reached were that the various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic Coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under

Page 174 U. S. 227

tidewaters; that, by those charters, the dominion and propriety in the navigable waters, and in the soils under them passed as part of the prerogative rights annexed to the political powers conferred on the patentee, and in his hands were intended to be a trust for the common use of the new community about to be established as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, and not as private property, to be parceled out and sold for his own individual emolument; that, upon the American Revolution, all the rights of the Crown and of parliament vested in the several states, subject to the rights surrendered to the national government by the Constitution of the United States; that when the Revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government.

If these principles are applicable to the present case, it follows that upon the Revolution, the State of Maryland became possessed of the navigable waters of the state, including the Potomac River, and of the soils thereunder, for the common use and benefit of its inhabitants, and that by the act of cession, that portion of the Potomac River, with the subjacent soil which was appurtenant to and part of the territory granted, became vested in the United States.

We do not understand the learned counsel for the appellees to controvert the principles established by the cited cases as applicable to the royal grants and territories considered therein. But their contention is that a different doctrine has prevailed in the courts of the State of Maryland, to the effect that lands beneath the tidewaters of the Potomac were grantable in fee to private persons, subject only to the public servitudes, and that when, as in the present case, by the action of the government, these lands have ceased to be submerged, the owner of the title, however long that title has been in abeyance, becomes entitled to possession and to compensation if the land be taken for public purposes.

Page 174 U. S. 228

The soundness of this contention depends upon two propositions: first, that the federal decisions cited do not establish general principles applicable to each and all of the royal charters to the founders of the Atlantic colonies, but are restricted in their scope to the particular grant in question in those cases, and second that the law of Maryland, if the sole rule of decision, is to the effect claimed.

In the argument in Martin v. Waddell, the decision of the Supreme Court of New Jersey in the case of Arnold v. Mundy, 6 N.J.L., 1, in which that court had laid down the rule as contended for by the appellants, was cited as conclusive, and as establishing a rule of property binding on the federal courts.

In respect to this contention, Mr. Chief Justice Taney said:

"The effect of this decision by the state court has been a good deal discussed at the bar. It is insisted by the plaintiffs in error that, as the matter in dispute is local in its character, and the controversy concerns only fixed property within the limits of New Jersey, the decision of her tribunals ought to settle the construction of the charter, and that the courts of the United States are bound to follow it. It may, however, be doubted whether this case falls within the rule in relation to the judgments of state courts when expounding their own constitution and laws. The question here depends not upon the meaning of instruments framed by the people of New Jersey, or by their authority, but upon charters granted by the British Crown, under which certain rights are claimed by the state, on the one hand, and by private individuals, on the other. And if this Court had been of opinion that, upon the face of these letters patent, the question was clearly against the state, and that the proprietors had been deprived of their just rights by the erroneous judgment of the state court, it would perhaps be difficult to maintain that this decision, of itself, bound the conscience of this Court. . . . Independently, however, of this decision of the Supreme Court of New Jersey, we are of opinion that the proprietors are not entitled to the rights in question."

The subject is barely adverted to in Shively v. Bowlby, where, referring to the case of Martin v. Waddell, it was

Page 174 U. S. 229

said by MR. JUSTICE GRAY:

"This Court, following, though not resting wholly upon, the decision of the Supreme Court of New Jersey in Arnold v. Mundy, 6 N.J.L., 1, gave judgment for the defendants."

Whether, in the controversy between the United States, in the capacity of grantees of the State of Maryland, and the heirs of James M. Marshall, as successors to the property title of Lord Baltimore, involving a construction of the grant of Charles I, the final decision belongs to the federal or to the state court we do not find it necessary to decide, for in our opinion there is no conflict between the views announced by this Court in the cases cited and those that prevailed in Maryland, as they appear in the public conduct, and in cases decided prior to and about the time of the act of cession.

It does not appear that in the administration of his affairs as land proprietor, Lord Baltimore, or his successors, ever made a sale or executed a patent which, upon its face and in terms, granted the bed or shores of any tidewater in the province, or ever claimed the right to do so.

The argument to the contrary, as respects the decisions of the courts of Maryland, depends on the case of Browne v. Kennedy, 5 H. & J. 196, decided in 1821, and following cases. The legal import of that case, and the effect to which it is entitled in the present case, we shall consider in a subsequent part of this opinion.

The case of Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603, is authority for the propositions that Lord Fairfax's title to the waste and unappropriated lands which he devised to Denny Fairfax was that of an absolute property in the soil in controversy in that case, that the acts of ownership shown to have been exercised by him over the whole waste and unappropriated lands vested in him a complete seisin and possession thereof, and that even if there had been no acts of ownership proved, as there was no adverse possession and the land was waste and unappropriated, the legal seisin must be considered as passing with the title. But neither Maryland nor any grantee of Maryland was a party to that suit. Nor, even as between he parties, was any actual question

Page 174 U. S. 230

made or evidence offered as to the boundary between Maryland and Virginia. The questions adjudicated were what was the nature, not the extent of territory involved, of Lord Fairfax's title, and what was the character of the title which Denny Fairfax took by the will of Lord Fairfax, he being at the time of Lord Fairfax's death in 1781 an alien enemy?

Therefore the questions now before us are not affected by that case. Nor do we think it necessary, in view of the conclusion we have reached on other grounds, to consider the legal effect and import of an alleged compromise between the State of Virginia and the devisees of Denny Fairfax, and those claiming under them, and which is referred to in the Act of December 10, 1796. Revised Code, c. 92.

However, even if it be conceded -- which we do not do -- that the River Potomac and the soil under it were, by virtue of the grant of Charles I, the private property of Lord Baltimore, and that the same lawfully descended to and became vested in Henry Harford, the last proprietary of Maryland, still, by the acts of confiscation passed by the General Assembly of Maryland in 1781 (c. 45 and 49), all the property and estate of the then lord proprietary of Maryland within that state were confiscated and seized to the use of the state, and, as public property belonging to the state at the time of the cession of 1791, passed into the ownership of the United States.

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. Indeed, it was held in Martin v. Waddell that lands under navigable waters were subject to an action of ejectment. And in the case of Lowndes v. Huntington, 153 U. S. 1, an action of ejectment, asserting title to land submerged under the waters of Huntington Bay, was sustained.

Page 174 U. S. 231

It is further claimed that these acts of Maryland were in derogation of the common law and of the express provisions and inhibitions of the constitution and bill of rights of that state adopted four years before the passage of these acts of confiscation, and that the effect of the sixth article of the treaty of 1783 and the ninth article of the treaty of 1794 and of the act of Maryland of 1787 making the treaty of 1783 the law of the state operated to relieve these lands from forfeiture, and restored them to Henry Harford, and that the power to pass acts of confiscation did not inhere as a war power in Maryland.

For an answer to the reasoning advanced by the learned counsel for the appellants in support of these contentions, it is sufficient to refer to the case of Smith v. Maryland, 6 Cranch 286, where it was held, affirming the Court of Appeals of the State of Maryland, that by the confiscating acts of Maryland, the equitable interests of British subjects were confiscated, without office or entry or other act done, and although such equitable interests were not discovered until long after the peace.

It is finally urged that, even acceding the validity of the confiscation acts and that they were effectual to divest the title of Henry Harford and put it in the State of Maryland, and even though it was transferred by the act of cession to the United States, yet the latter took the property under a trust or equity created by the treaties with Great Britain whereby they are in equity bound to restore it to the Harford heirs or to their assigns, or to make just compensation for subjecting it to public purposes. It is said that when now the United States find themselves in control or possession of a part of the estate of a subject of Great Britain, they should do what they "earnestly recommended" should be done by the states -- namely, make a restitution of the confiscated estates.

Whatever force, if any, there may be in such suggestions, it is quite evident that they are political in their nature, and appeal to Congress, and not to the courts. It cannot be maintained with any show of plausibility that Congress intended, by the act under which these proceedings are had, that the

Page 174 U. S. 232

Supreme Court of the District of Columbia, or that this Court on appeal, should have the right to overturn, after the lapse of a century, rights originating in statutes of Maryland and of the United States sustained as valid by their courts.

We affirm, therefore, the decree of the court below in respect to the Marshall heirs that, in the words of the act of 1886, they have no "right, title, or interest in any part of the land or water composing any part of the Potomac River, or its flats, in charge of the Secretary of War."

The next claim for consideration is that founded upon a patent issued on December 6, 1869, from the General Land Office to John L. Kidwell for

"a tract of vacant land, containing fifty-seven acres and seventy-one one-hundredths of an acre, called 'Kidwell's Meadows,' and lying in the Potomac River above the Long Bridge, according to the official certificate and plat of survey thereof, bearing date the tenth and twelfth of October, 1867, made and returned by the surveyor of Washington County pursuant to a special warrant of survey unto the said surveyor directed on the 26th day of June, 1867, by the Commissioner of the General Land Office aforesaid, in virtue of the authority of Congress, under a resolution 'directing the manner in which certain laws of the District of Columbia shall be executed,' approved on the 16th day of February, 1839."

The resolution of Congress referred to was in the following words:

"That the acts of the State of Maryland for securing titles to vacant land which were continued in force by the act of Congress of the twenty-seventh of February, 1801, in that part of the District of Columbia which was ceded to the United States by that state and which have been heretofore inoperative for want of proper officers of authority in the said District for their due execution, shall hereafter be executed, as regards lands in the County of Washington and without the limits of the City of Washington, by the Secretary of the Treasury, through the General Land Office, where applications shall be made for warrants, which warrants shall be directed to the surveyor for the County of Washington, who shall make return to the Commissioner of the General Land Office, and payment for said land, according to the said laws of Maryland, shall be

Page 174 U. S. 233

made to the treasurer of the United States, whose certificate of such payment shall be presented to the Commissioner of the General Land Office, who shall thereupon issue, in the usual form of patents for lands by the United States, a patent for such land to the person entitled thereto, and the Secretary of the Treasury shall make such regulations as he may deem necessary, and shall designate the officers who shall carry the said acts into effect: provided that any land which may have been ceded to or acquired by the United States for public purposes shall not be affected by such acts."

5 Stat. 365.

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 property, for which they are entitled to compensation under the proceedings in this suit.

It is alleged in the bill that the patent to Kidwell was issued without authority of law, and was and is null and void, and several grounds are set forth for each allegation. The main contentions on behalf of the government are that the land covered by the patent was, when it issued, within the limits of the City of Washington, and was therefore excepted from the operations of the resolution of 1839; that the land was at the time of the cession a part of the bed of the Potomac River, and subject to tidal overflow, and was therefore reserved to the United States for such public uses as ordinarily pertain to the riverfront of a large city; that said land, as part of the bed of the Potomac River and subject to overflow by the tides, was not the subject of a patent under the resolution of 1839, and the General Land Office and its functionaries were without authority to grant a patent therefor, and that the patent was obtained by fraud and was ineffectual by reason of certain specified irregularities.

By their answers, the claimants under the patent denied these several allegations, and under the issues of law and of fact thus raised, a large amount of evidence was taken.

In the opinion of the court below, the questions involved

Page 174 U. S. 234

were elaborately considered, and they have been fully discussed before us in the oral and printed arguments of the respective counsel.

Our examination of the subject has brought us to conclusions which render it unnecessary for us to express an opinion on several of the questions that have been so fully treated.

In our consideration of the questions now before us, we shall, of course, assume that the River Potomac with its subjacent soil was included in the grant to Lord Baltimore, and became vested, by the methods hereinbefore considered, in the State of Maryland, and that, by the act of cession, that part of the river and its bed which is concerned in this litigation passed into the control and ownership of the United States.

Without questioning the power of Congress to have made a special sale or grant to Kidwell in 1869 of the lands embraced in this patent, in the condition that they then were, or even to have provided by a general law for the sale of such lands by the land office, we are of opinion that it was not the intention of Congress, by the general resolution of 1839, to subject lands lying beneath the waters of the Potomac and within the limits of the District of Columbia, to sale by the methods therein provided.

The lands which Congress had in view in passing the resolution were stated to be the vacant lands, for securing title to which the laws of Maryland which were in force in 1801 had made provisions, but which laws had remained inoperative after the cession for the want of appropriate officers or authority in the District of Columbia for their execution.

The only acts of Maryland which have been brought to our attention as having been in force in 1801 under which a disposition of the lands of the state could be made are Acts November Session, 1781, c. 20, and of November Session, 1788, c. 44. The act of 1781, c. 20, is entitled "An act to appropriate certain lands to the use of the officers and soldiers of this state, and for the sale of vacant lands." The preamble recites that there are large tracts of land within the state

"reserved by the late proprietors which may be applied to

Page 174 U. S. 235

the discharge of the engagement of lands made to the officers and soldiers of this state, and that the granting the other vacant lands in this state would promote population and create a fund towards defraying the public burthen."

Sections 3 and 4 provide for a land office, and for issuing "common or special warrants of vacant cultivation, and for the surveying of any vacant lands, cultivated or uncultivated."

By Act of November Session, 1788, c. 44, all other vacant lands in the state were made liable to be taken up in the usual manner by warrant.

It would seem evident that the lands whose disposition was contemplated by these acts were vacant lands, which had been cultivated or which were susceptible of cultivation.

By such terms of description, it would not appear that the disposition of lands covered by tidewater was contemplated, because such lands are incapable of ordinary and private occupation, cultivation, and improvement, and their natural and primary uses are public in their nature, for highways of navigation and commerce.

In the case of State v. Pacific Guano Co., 22 S.C. 83, the Supreme Court of South Carolina, in discussing a somewhat similar question, said:

"The absolute rule limiting landowners bounded by such streams to high water mark, unless altered by law or modified by custom, accords with the view that the beds of such channels below low water mark are not held by the state simply as vacant lands, subject to grant to settlers in the usual way through the land office."

"There seems to be no doubt, however, that the state, as such trustee, has the power to dispose of these beds as she may think best for her citizens; but not being, as it seems to us, subject to grant in the usual form under the provisions of the statute regulating vacant lands, it would seem to follow that in order to give effect to an alienation which the state might undertake to make, it would be necessary to have a special act of the legislature expressing in terms and formally such an intention."

In the case of Allegheny City v. Reed, 24 Pa.St. 39, 43,

Page 174 U. S. 236

it was held by the Supreme Court of Pennsylvania that the provisions of the general acts in respect to patents for lands did not relate to the foundation of an island whose soil had been swept away by floods.

"The title of the commonwealth to what remained was not gone, but was no longer grantable under the acts of assembly for selling islands. The foundation of the island belongs to the commonwealth still, but she holds it, as she does the bed of the river and all sand bars, in trust for all her citizens as a public highway. The act of 1806 was not a grant of the state's title, but only a mode prescribed in which titles might thereafter be granted. . . . The jurisdiction is a special one, and, if the subject matter to which the act of 1806 relates were gone -- had ceased to be -- the board of property had no jurisdiction, no more than they would have over any other subject not entrusted to their discretion."

In Illinois Central Railroad v. Illinois, 146 U. S. 387, it was recognized as the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tidewaters or navigable lakes within the limits of the several states belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof when that can be done without substantial impairment of the interest of the public in such waters, and subject to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce.

In Shively v. Bowlby, 152 U. S. 1, the discussion was so thorough as to leave no room for further debate. The conclusions there reached, so far as they are applicable to the present case, were as follows:

"It is well settled that a grant from the sovereign of land bounded by the sea or by any navigable tidewater does not pass any title below high water mark unless either the language of the grant or long usage under it clearly indicates that such was the intention."

152 U.S. 152 U. S. 13.

"We cannot doubt that Congress has the power to make grants of land below high water mark of navigable

Page 174 U. S. 237

waters in any territory of the United States whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States holds the territory. But Congress has never undertaken by general laws to dispose of such lands."

152 U.S. 152 U. S. 48.

"The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior or on the coast, above high water mark may be taken up by actual occupants, in order to encourage the settlement of the country, but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways, and, being chiefly valuable for the public purposes of commerce, navigation, and fishery and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government."

152 U.S. 152 U. S. 49.

"Upon the acquisition of a territory by the United States, whether by cession from one of the states or by treaty with a foreign country or by discovery and settlement, the title and dominion passed to the United States for the benefit of the whole people and in trust for the several states to be ultimately created out of the territory."

152 U.S. 152 U. S. 57.

In Mann v. Tacoma Land Co., 153 U. S. 273, it was again held that the general legislation of Congress in respect to public lands does not extend to tidelands, that the scrip issued by the United States authorities to be located on the unoccupied and unappropriated public lands could not be located on tidelands, and that the words "public lands" are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.

As against these principles and these decisions, the claimants under the patent cite and rely on the case of Browne v. Kennedy, 5 H. & J.195, to the alleged effect

"that the bed

Page 174 U. S. 238

of any of the navigable waters of the state may be granted, and will pass if distinctly comprehended by the terms of any ordinary patent issuing from the land office, subject only to the existing public uses of navigation, fishery, etc., which cannot be hindered or impaired by the patentee."

Our examination of this case has not satisfied us that the decision therein went as far as is now claimed. As we read it, the gist of the decision was that, by the common law and the law of Maryland, proprietors of land bounded by unnavigable rivers have a property in the soil covered by such rivers and filum mediam aquae, and that, where one holding land on both sides of such a stream had made separate conveyances bounding on the stream, and the stream had afterwards been diverted or ceased to exist, the two original grantees took each to the middle of the land where the stream had formerly existed, and that a subsequent grantee of the territory formerly occupied by the stream took no title. Such a decision would have no necessary application here.

But we are bound to concede that the Court of Appeals, in the subsequent case of Wilson v. Inloes, 11 G. & J. 352, has interpreted Browne v. Kennedy as establishing the principle that the state has the right to grant the soil covered by navigable water, subject to the public or common rights of navigation and fishery, and inferentially that a title originating in a patent issued under general law from the land office attached to the land and gave a right of possession when the waters ceased to exist.

The decision in Browne v. Kennedy was not made till a quarter of a century after the cession by Maryland to the United States, and seems to have been a departure from the law as previously understood and applied both during the colonial times and under the state prior to the cession.

Thus, in Proprietary v. Jennings, 1 H. & McH. 64, an information was filed by the Attorney General of the Lord Proprietor, in 1733, to vacate a patent on the ground that it had been illegally obtained, and the case clearly indicates that land under tidewater was not patentable. Smith v. State, 2 H. & McH. 247, was the case of an

Page 174 U. S. 239

appeal from a decree of the chancellor dated April 27, 1786, vacating and annulling, on the ground of fraud and misrepresentation, a patent granted to Nathaniel Smith, June 2, 1783, for tract of land called "Bond's Marsh." It was disclosed in the case that Smith was the owner of a tract of land called "Bond's Marsh," which had been granted to one John Bond, September 16, 1766, for four acres, and that, on April 20, 1782, Smith, who had become the owner of the tract, petitioned for a warrant of resurvey, stating that he had discovered some vacant land contiguous thereto, and that he was desirous of adding the same to the tract already held by him. Thereupon the surveyor of the county was directed "to lay out and carefully resurvey, in the name of him, the said Smith, the said tract of land called "Bond's Marsh," according to its ancient metes and bounds, adding any vacant lands contiguous thereto," etc. On May 8, 1782, the surveyor certified to the land office that he had resurveyed the said original tract called "Bond's Marsh," and that it contained exactly four acres, and that there were seventeen and one-half acres of vacant land added. Upon this, Smith obtained from the state a grant on the said certificate for twenty-one and one-half acres under the name of "Bond's Marsh" resurveyed, and, July 8, 1784, Smith conveyed for a consideration two undivided third parts of said tract to Samuel Purviance. The bill averred that:

"Although the said Smith, by his aforesaid petition, did allege and set forth that he had discovered vacant land adjoining the said tract called 'Bond's Marsh,' there was not any vacant land adjoining or contiguous to the same, but that the whole which by the said grant is granted to the said Smith as vacant land, added to the original tract aforesaid, now is, and at the time of obtaining the said warrant and grant was, part of the waters of the northwest branch of Patapsco River."

The bill also averred that Purviance was not an innocent purchaser, but knew that the pretended vacancy included in the patent "was not land, but part of the waters of the northwest branch of Patapsco River." T he decree vacating the patent was affirmed.

In the footnotes to Baltimore v. McKim, 3 Bland 468, the

Page 174 U. S. 240

cases of Fowler v. Goodwin and Ritchie v. Sample are referred to. In Fowler v. Goodwin, the chancellor, on May 19, 1809, refused to direct a patent to issue because a large part of the land lay in the waters of Bell's Cove. In Ritchie v. Sample, the certificate of survey showed that the tract applied for was a parcel of the Susquehanna River comprehending a number of small islands, and the chancellor held, July 10, 1816,

"that the land covered by the water cannot be called grantable land, although possibly islands may have been taken up together between which the water sometimes flows."

Of course, the recent decisions of the courts of Maryland giving to the statutes of that state a construction at variance with that which prevailed at the time of the cession cannot control our decision as to the effect of those statutes on the territory within the limits of the District of Columbia, since the legislative power has become vested in the United States. Ould v. Washington Hospital, 95 U. S. 303; Russell v. Allen, 107 U. S. 163, 107 U. S. 171; De Vaughn v. Hutchinson, 165 U. S. 570.

At the utmost, such decisions can only be considered as affecting private rights and controversies between individuals. They cannot be given effect to control the policy of the United States in dealing with property held by it under public trusts.

This aspect of the question was considered by Mr. Justice Cox of the Supreme Court of the District of Columbia in a case arising out of the legislation of Congress establishing the Rock Creek Park, and wherein the effect of a patent granted by the State of Maryland, in 1803, for a piece of land afterwards included in the park, was in question. It was said in the opinion:

"There is a still more important question, and that is whether the State of Maryland at that period could convey any interest, legal or equitable, in the property. In the act of 1791 ceding this property to the United States, there is this proviso:"

"That the jurisdiction of the laws of this state over the persons and property of individuals residing within the limits of the cession aforesaid shall not cease or determine until Congress shall by law provide for the government thereof under their jurisdiction in manner provided by the article of

Page 174 U. S. 241

the Constitution before recited."

"Now this continues in force the jurisdiction of the laws of the State of Maryland over the persons and property of individuals residing therein. To make that applicable to the present case, it would be necessary to have extended it to the property held by the state; but it seems to me that it extended no further than to say that the laws which affected private rights should continue in force until proper provision was made by Congress. See what the consequences would be if another construction had been given to it. The State of Maryland extended to the Virginia shore, and suppose that, after this cession, and before 1801, the State of Maryland had undertaken to cede to the State of Virginia the whole bed or bottom of the Potomac River, from its source to its mouth, including that part in the District of Columbia, doubtless Congress could have had something to say about it after the cession had been made. We are satisfied, therefore, that the proviso does not continue in operation the land laws of the State of Maryland, and consequently no title could be derived at the dates of this survey and patent, or at the date when the warrant on which it was based was taken out. We are satisfied that the proviso does not continue in operation the land laws of the State of Maryland as to the public lands owned by the state within the said District, and that consequently no title to such lands could be obtained by patent from the state after the act of 1791."

This decision was adopted, and the opinion approved, by this Court in the case of Shoemaker v. United States, 147 U. S. 307.

If any doubt is left as to whether Congress intended by the resolution of 1839 to subject the river and its subjacent soil to the ordinary land laws as administered by the land office, that doubt must, as we think, be removed by a consideration of the express language of the proviso therein contained withholding lands held by the United States for public purposes from the operation of the acts of Maryland. The language of the proviso is as follows: "Provided, that any lands which may have been ceded to, or acquired by, the United States, for public purposes, shall not be affected by such acts."

Page 174 U. S. 242

Placed as this proviso is at the end of the enactment, the natural implication is that Congress did not intend to include the lands which the United States held for public purposes within the scope of the resolution, but added the proviso out of abundant caution. However this may be, the intention expressed is clear that, in the administration of the land laws by the Secretary of the Treasury through the General Land Office, the lands that had been ceded to or acquired by the United States for public purposes should not be affected.

What were the lands so held by the United States? Undoubtedly, the squares and lots selected by the President as sites for the President's house, the capitol, and other public buildings, and which had been, in legal effect, dedicated to public use by the grantors were not meant, because the resolution in terms provides that the lands to be affected were such as were within the County of Washington, and without the limits of the City of Washington.

There may have been other land held by the United States for public purposes outside of the limits of the City of Washington, but surely the Potomac River and its bed, so far as they were embraced in the County of Washington, were included in the terms of the proviso. Indeed, it is not too much to say that they constituted the very land which Congress was solicitous to withhold from sale under proceedings in the land office.

It cannot, we think, be successfully claimed that, even if, in 1839, the lands embraced within the Kidwell patent were exempted from the jurisdiction of the land office, yet they were brought within that jurisdiction by the fact that the waters had so far receded in 1869 as to permit some sort of possession and occupancy. Not having been within the meaning of the resolution of 1839, they would not be brought within it by a subsequent change of physical condition, but a further declaration by Congress of a desire to open them to private ownership would be necessary.

Besides, the facts of the case show that Congress is asserting title and dominion over these lands for public purposes. Whether Congress should exercise its power over these reserved

Page 174 U. S. 243

lands by dredging, and thus restoring navigation and fishery, or by reclaiming them from the waters for wharfing purposes, or to convert them into public parks, or by subjecting them to sale, could only be determined by Congress, and not by the functionaries of the land office.

If, then, there was an entire want of authority in the land office to grant these lands held for public purposes, a patent so inadvertently issued, under a mistaken notion of the law, would plainly be void and afford no defense to those claiming under it as against the demands of the government.

As was said by this Court in Smelting Co. v. Kemp, 104 U. S. 641:

"Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it -- that is to say, in a case where the lands belonged to the United States and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases, the objection to the patent reaches beyond the action of the special tribunal and goes to the existence of a subject upon which it was competent to act."

Similar views were expressed in Doolan v. Carr, 125 U. S. 618, where it was said:

"There is no question as to the principle that where the officers of the government have issued a patent in due form of law which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law, as distinguished from suits in equity, subject,

Page 174 U. S. 244

however at all times to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But if those officers acted without authority, if the land which they purported to convey had never been within their control or had been withdrawn from that control at the time they undertook to exercise such authority, then their act was void -- void for want of power in them to act on the subject matter of the patent -- not merely voidable, in which latter case, if the circumstances justified such a decree, a direct proceeding, with proper averments and evidence, would be required to establish that it was voidable, and therefore should be avoided. . . . It is nevertheless a clear distinction, established by law, and it has often been asserted in this Court, that even a patent from the government of the United States, issued with all the forms of law, may be shown to be void by extrinsic evidence if it be such evidence as by its nature is capable of showing a want of authority for its issue."

The further contention on the part of the United States that the lands embraced within the Kidwell patent lie within the limits of the City of Washington, and that therefore they were for that reason not grantable by the land office, we have not found it necessary to determine, and we refrain from expressing any opinion upon it.

Nor do we need to enter at any length into the question of fraud attending the issue of the patent. We deem it not improper to say, however, that the allegations imputing fraud to the government officials concerned in the issuance of the patent, or to those who were active in procuring it or in asserting rights under it, do not appear to us to have been sustained by the evidence.

We therefore conclude this branch of the case by affirming the decision of the court below

"that the proceedings of Kidwell, under the resolution of 1839, to obtain a patent for the 'Kidwell Meadows' and the issue of that patent are inoperative to confer upon the patentee or his assigns any title or interest in the property within its limits, adverse to the complete and paramount right therein of the United States."

It is urged on behalf of those claiming under the Kidwell

Page 174 U. S. 245

patent that a court of equity will not set aside the patent at the suit of the United States unless on an offer by the latter to return the purchase money; that, in granting the relief, the court will impose such terms and qualifications as shall meet the just equities of the opposing party.

As the invalidity of the patent in the present case was not apparent on its face, but was proved by extrinsic evidence, and as the controversy respecting the title was not abandoned by the defendants, they were not, we think, entitled to a decree for a return of the purchase money, or for costs. Piersoll v. Elliott, 6 Pet. 95.

Before considering the remaining claims, it will be necessary to dispose of the question of the river boundary of the City of Washington.

What place should be selected for the permanent seat of government was, as shown by the histories of the times, a matter of long and bitter debate, occupying a large part of the second session of the second Congress. After the claims of Philadelphia and Baltimore had been adversely disposed of, the question was reduced to a choice between a site on the Susquehanna River, in Pennsylvania, and one on the Potomac River. And we learn from the recently published journal of William Maclay, senator from Pennsylvania, 1780-91, and who was an earnest advocate for the former, that the allegation that a large expenditure would be required to render the Susquehanna navigable was used as a decisive argument in favor of the site on the Potomac. Maclay's Journal.

The result was the Act of July 16, 1790, c. 28, 1 Stat. 30, whereby the President was authorized to appoint three Commissioners to survey, and by proper metes and bounds to define and limit, under his direction, a district of territory to be located on the River Potomac. By the same act, the Commissioners were empowered "to purchase or accept such quantity of land on the eastern side of the said river within the said district" as the President might deem proper for the use of the United States, and according to such plans as he might approve, and were required, prior to the first Monday of December, 1800, to provide suitable buildings for the accommodation

Page 174 U. S. 246

of Congress and of the President and for the public offices of the government.

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. This was done by William Penn in 1682 in the original plan of the City of Philadelphia on the Delaware riverfront, and he called it a "top common;" and in 1784, his descendants, the former proprietors, in their plan of Pittsburgh, adopted a similar measure of leaving such an open space, and they called it "Water Street." Birmingham v. Anderson, 48 Pa.St. 258.

In 1789, the proprietors of the land on which the City of Cincinnati is built pursued the same policy, and in their plan the ground lying between Front Street and the Ohio River was set apart as a common for the use and benefit of the town forever. Cincinnati v. White, 6 Pet. 432; Barclay v. Howell's Lessee, 6 Pet. 498; New Orleans v. United States, 10 Pet. 662; Barney v. Keokuk, 94 U. S. 339; Rowan's Executors v. Portland, 8 B. Monroe 232.

Our examination of the evidence has led us to the conclusion that it was the intention of the founders of the City of Washington to locate it upon the bank or shore of the Potomac River, and to bound it by a street or levee so as to secure to the inhabitants and those engaged in commerce free access to the navigable water, and that such intention has never been departed from.

While, as we have already seen, the United States became vested with the control and ownership of the Potomac River and its subjacent soil within the limits of the District by virtue of the act of cession by the State of Maryland, it must yet be conceded that, as to the land above high water

Page 174 U. S. 247

mark, the title of the United States must be found in the transactions between the private proprietors and the United States, consisting of the mutual agreements entered into by the proprietors, their deeds of conveyance to the trustees, their concurrence in the action of the Commissioners in laying out plats and giving certificates, and their recognition of the several plans of the city made under the direction of the President.

As we have already said, our inquiry is as to the intention of the parties to be affected, but that intention need not be expressed by any particular form or ceremony, but may be a matter of necessary implication and inference from the nature and circumstances of the case.

We cannot undertake to comment upon each and every step of the transactions, but shall briefly refer to those of the most significance.

And first, in the agreement of March 13, 1791, signed by the principal proprietors, including Robert Peter, David Burns, Notley Young, and Daniel Carroll, are the following recitals:

"We, the subscribers, in consideration of the great benefits we expect to derive from having the Federal City laid off upon our lands, do hereby agree and bind ourselves, heirs, executors, and administrators, to convey, in trust to the President of the United States, or Commissioners, or such person or persons as he shall appoint, by good and sufficient deeds in fee simple, the whole of our respective lands which he may think proper to include within the lines of the Federal City, for the purposes and on the conditions following:"

"The President shall have the sole power of directing the Federal City to be laid off in what manner he pleases. He may retain any number of squares he may think proper for public improvements or other public uses, and the lots only which shall be laid off shall be a joint property between the trustees on behalf of the public and each present proprietor, and the same shall be fairly and equally divided between the public and the individuals as soon as may be after the city shall be laid out."

"For the Streets the proprietors shall receive no compensation,

Page 174 U. S. 248

but for the squares or lands in any form which shall be taken for public buildings or any kind of public improvements or uses, the proprietors whose lands shall be so taken shall receive at the rate of twenty-five pounds per acre, to be paid by the public,"

etc.

And by an agreement of March 30, 1791, on the part of the proprietors of lots in Carrollsburgh, including Daniel Carroll and Notley Young, it was provided as follows:

"We, the subscribers holding or entitled to lots in Carrollsburgh, agree with each other and with the President of the United States that the lots and land we hold or are entitled to in Carrollsburgh shall be subject to be laid out at the pleasure of the President as part of the Federal City, and that we will receive one-half the quantity of our respective lots as near their present situation as may agree with the new plan, and where we may be entitled now to only one lot or otherwise not entitled on the new plan to one entire lot, or do not agree with the President, Commissioners, or other person or persons acting on behalf of the public on an adjustment of our interest, we agree that there shall be a sale of the lots in which we may be interested respectively, and the produce thereof in money or securities shall be equally divided, one-half as a donation for the use of the United States under the act of Congress, the other half to ourselves respectively. And we engage to make conveyances of our respective lots and lands aforesaid to trustees or otherwise whereby to relinquish our rights to the said lots and lands, as the President or such Commissioners or persons acting as aforesaid shall direct, to secure to the United States the donation intended by this agreement."

A similar agreement was entered into by the owners of lots in the Town of Hamburgh.

Following these agreements came the conveyances by the several proprietors to Beall and Gantt, trustees. Without quoting from them at length, and referring to those of David Burns and Notley Young, copied in full in the statement of the case, it is sufficient here to say that the proprietors, by said conveyances, completely divested themselves of all title to the tracts conveyed, and that the lands were granted to the

Page 174 U. S. 249

said trustees,

"to have and to hold the hereby bargained and sold lands, with their appurtenances, to the said Thomas Beall and John Mackall Gantt, and the survivor of them, and the heirs of such survivor, forever, to and for the special trust following, and no other, that is to say 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, and that the said Thomas Beall and John Mackall 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 an 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 the lots into which the said lands hereby bargained and sold shall have been laid out and divided, that a fair and equal division of them shall be made,"

etc.

In a suit between the heirs of David Burns and the City of Washington and the United States, this Court had occasion to pass upon the nature of these grants, and used the following language:

"It is not very material, in our opinion, to decide what was the technical character of the grants made to the government -- whether they are to be deemed mere donations or purchases. The grants were made for the foundation of a Federal City, and the public faith was necessarily pledged, when the grants were accepted, to found such a city. The very agreement to found a city was itself a most valuable consideration for these grants. It changed the nature and value of the property of the proprietors to an almost incalculable extent. The land was no longer to be devoted to agricultural purposes, but acquired the extraordinary value of city lots. In proportion to the success of the city would be the enhancement of this value, and it required scarcely any

Page 174 U. S. 250

aid from the imagination to foresee that this act of the government would soon convert the narrow income of farmers into solid opulence. The proprietors so considered it. In this very agreement. they state the motive of their proceedings in a plain and intelligible manner. It is not a mere gratuitous donation from motives of generosity or public spirit, but in consideration of the great benefits they expect to derive from having the Federal City laid off upon their lands. Neither considered it a case where all was benefit on one side, and all sacrifice on the other. It was in no just sense a case of charity, and never was so treated in the negotiations of the parties. But, as has been already said, it is not in our view material whether it be considered as a donation or a purchase, for in each case it was for the foundation of a city."

Van Ness v. Washington, 4 Pet. 284.

In Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S. 686, after an elaborate consideration of the agreements and conveyances, it was said:

"Undoubtedly Notley Young, prior to the founding of the city and the conveyance of his land for that purpose, was entitled to enjoy his riparian rights for his private uses, and to the exclusion of all the world besides. 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, directed the Commissioners to proceed to have the said lines run, and, by proper metes and bounds, defined and limited, and declared the territory so to be located, defined, and limited to be the district for the permanent seat of the government of the United States.

With the lines of the District thus established, the next important question that presented itself was the location of the

Page 174 U. S. 251

Federal City, in which were to be erected the buildings for the accommodation of Congress, the President's house, and the public offices.

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.

We cannot complain of having been left

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MORRIS V. UNITED STATES, 174 U. S. 196 (1899)

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Morris v. United States, 174 U.S. 196 (1899)