1. Permits to build vaults under sidewalks adjacent to their
premises were issued to private parties for a nominal charge by the
Commissioners of the District of Columbia, subject to the building
regulations, which provided,
inter alia, that no charge
should be made the occupants of such vaults, that permits should be
revocable when the space was needed for public use or improvements,
and that the space should be vacated when ordered by the
Commissioners or needed for public use; the permittees signed
agreements, as required by these regulations, accepting the permits
on conditions recognizing the right of the District to construct
sewers, etc., which it might deem necessary, and the duty of vault
occupants to clear the space
Page 256 U. S. 583
therefor, without cost to the District, and declaring that the
occupation was permitted merely as an accommodation to abutting
owners, and that no right, title, or interest of the public was in
any way waived or abridged, "except as expressed in said permit and
the condition aforesaid."
Held that the building
regulations were not to be looked to for grants in the streets, and
that the permits were to be strictly construed, and were mere
licenses, revocable by the District government at its discretion.
P.
256 U. S.
586.
2. An application made long ago to the District government for
permission to build a vault under a sidewalk, followed by its
construction and continuous use, may support a presumption of a
license, but not of a permanent grant in the street. P.
256 U. S.
587.
3. The Act of September 1, 1916, C. 433, § 7, 39 Stat. 716,
authorizing and directing assessment and collection of rent from
all users of space under sidewalks and streets of the District of
Columbia occupied and used in connection with their business
applies to vaults constructed before, as well as those constructed
after, the date of the act. P.
256 U. S.
588.
49 App.D.C. 273, 276, 263 F. 1017, 1020, reversed.
The cases are stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
These three cases, tried on agreed statements of fact, were
argued and will be disposed of together.
The respondents were assessed a rental upon vaults under
sidewalks which were used in connection with business conducted in
adjacent buildings. They refused to pay the assessments, and in
these suits to collect them, judgments were rendered by the Supreme
Court in favor of the District, which were reversed by the Court of
Appeals on the ground that the act of Congress authorizing the
assessments was applicable only to constructions permitted after
its date.
Page 256 U. S. 584
The essential facts are as follows:
The appropriation act for the District of Columbia, approved
September 1, 1916, c/ 433, 39 Stat. 676, 716, § 7, provided:
"That hereafter the Commissioners of the District of Columbia
are authorized and directed to assess and collect rent from all
users of space occupied under the sidewalks and streets in the
District of Columbia, which said space is occupied or used in
connection with the business of said users."
Pursuant to this authority, the Commissioners caused the space
occupied by vaults of each of the three respondents to be valued,
and then assessed against each of them a rental which it is
stipulated is "fair and reasonable" in amount, "if it be a legal
charge."
The permits involved in the Paper Company and Lisner cases were
issued before the act complained of was passed, and these two cases
will be first considered.
The essential provisions of each of these permits are:
"This is to certify that _________ has permission to build vault
_____ as per plan ___ in accordance with application ___ on file in
this office, and subject to the provisions of the Building
Regulations of the District of Columbia."
There is nothing in either permit in the nature of a grant or
which enlarges the permission beyond the terms quoted.
When these permits were issued, the Building Regulations
provided (paragraph 9):
"No charge will be made for the occupancy of public space by
vault or areas except the usual permit fee, but all permits for
such occupancy are subject to revocation by the Commissioners at
any time without compensation when the vault space is needed for
public use or improvement. . . . And this permit is accepted with
the understanding that the occupation of the vault space is
permitted merely as an accommodation to the owner of
Page 256 U. S. 585
the abutting premises, and that no right, title, or interest of
the public is in any way waived or abridged thereby, except as
expressed in said permit and the conditions aforesaid."
Then follows an agreement by the licensee to use the vault only
for the purposes authorized by the Commissioners.
And paragraph 3 provided:
"The application for a vault must be accompanied by the written
agreement, upon an official blank, signed by the owner of the
abutting property . . . contracting to release and relinquish the
vault space and to remove, free of expense to the District, all
machinery, fixtures, or structural parts of the vault when so
ordered by the Commissioners, or needed for public use."
The only charge made by the District was $1 for the permit to
construct.
Pursuant to paragraph 3,
supra, the applicants each
signed an agreement in precisely the same from, accepting the
permit on condition (1) that the District shall have the right to
construct under, over or through the vault public sewers or other
underground construction which it may deem necessary, without
compensation, and (2) that, upon notice from the District of a
desire to place any such construction in the area occupied by the
vault, space clear and sufficient for it shall forthwith be made
therein (by the acceptor) "without cost to the District." The
acceptance concludes:
"This permit is accepted with the understanding that the
occupation of the vault space is permitted merely as an
accommodation to the owner of the abutting premises, and that no
right, title or interest in the public is in any way abridged
thereby, except as expressed in said permit and the conditions
aforesaid."
The respondents the R. P. Andrews Paper Company and Abraham
Lisner defended against the collection of the assessments, claiming
that their permits to construct
Page 256 U. S. 586
were in such form as to create in each by contract a vested
right of property in the vault in the street, of which they would
be deprived without due process of law if they were required to pay
the rental.
To sustain this position, the respondents select from paragraph
3 of the Building Regulations,
supra, the provision that
"no charge shall be made for occupancy of public space by a vault,"
and that all permits are subject to revocation "when the vault
space is needed for any public use and improvement." From paragraph
3,
supra, they select the stipulation that the vault space
shall be vacated when ordered by the Commissioners "or needed for
public use," and from the terms of the acceptances of the permits
the provision that the Commissioners may place in the vaults any
construction they may "deem necessary." Grouping these unrelated
excerpts together, it is contended that they constitute a contract
on the part of the District to leave the respondents in the
undisturbed possession of the vaults, free of charge, until such
time as the space may be demanded because needed for some public
use and improvement, and that, since the act of Congress under
which the disputed rental is imposed is purely a revenue measure
which does not require the surrender of the space for any public
use, but contemplates the continued private use of it, it is an
invalid attempt to deprive the respondents of their property
without due process of law.
This statement of the contention of the respondents is it own
sufficient refutation.
In form, the permit is a mere naked permission to build. Two of
the three clauses relied upon to create rights of property in the
streets are derived from the Building Regulations, which, as their
name implies, are designed to regulate the materials of buildings
and the manner of their construction and use; they are not looked
to, on such a mere reference as we have here, for a grant of
rights
Page 256 U. S. 587
in streets, and the third clause is from the acceptances of the
permits, which are signed only by the applicants. When to this we
add that the applications culminated and ended in acceptances of
the permits
"with the understanding that the occupation of the vault space
is permitted merely as an accommodation to the owner of the
abutting premises, and that no right, title and interest of the
public is in any way waived or abridged thereby, except as
expressed in said permit and the conditions [in the acceptances]
aforesaid,"
and that the settled rule of law is that the grants of rights
and privileges in streets are strictly construed, so that whatever
is not unequivocally granted therein is withheld, and that nothing
passes in such case by implication (
Knoxville Water Co. v.
Knoxville, 200 U. S. 22;
Blair v. City of Chicago, 201 U.
S. 400,
201 U. S. 471;
Piedmont Power & Light Co. v. Town of Graham,
253 U. S. 193,
253 U. S.
194), we cannot doubt that the permits to the
respondents were mere licenses, subject to revocation at any time
in the discretion of the government of the District.
The Saks & Co. case, No. 283, is, if possible, even less
substantial than the other two. Whatever rights in the streets this
respondent has must be derived from the application made in 1884
for a permit to erect a building with adjacent vaults, and from the
presumption of a permit, arising from the fact that a vault was
constructed and has been in use ever since. No formal permit
appears in the record.
A license to Saks & Co. to construct and use the vaults,
revocable at will, would be sufficient to render them unlawful
constructions in the street until the privilege should be revoked,
and this is all that can fairly be inferred against the public from
the facts stated. Without a permit presumed, the vault would be a
public nuisance, but no grant of a permanent right in the street
can be inferred from a mere application and use.
The Court of Appeals gives much greater significance
Page 256 U. S. 588
to the concluding words of the acceptances in the permits in
Nos. 282 and 284, "except as expressed in said permit and the
condition aforesaid," than we can find in them. There are certainly
no limitations upon the rights of the public in the permit itself,
and the conditions of acceptance here referred to were special
agreements, in the acceptances, on the part of the applicants to
surrender the vault space upon demand of the Commissioners for
special purposes and to an extent designated, which we think not
inconsistent with the larger declaration with which the permit was
accepted, that the occupation of the vault was a mere accommodation
to the receiver of the permit, and did not constitute any waiver of
any right, title, or interest of the public in the streets.
Concluding, as we do, that the respondents were mere licensees,
we see no reason for limiting the act of Congress, as the Court of
Appeals limited it, to constructions after the date of the act.
Such an interpretation of the act would so obviously result in
unjust inequality that it should be adopted only under stress of
imperative language which we do not find in it.
It results that the judgment of the Court of Appeals of the
District will be reversed, and that of the Supreme Court affirmed
in each of the cases.
Reversed.