In 1822, Congress passed an act authorizing the Corporation of
Washington to drain the ground in and near certain public
reservations and to improve and ornament certain parts of the
public reservations. The corporation is empowered to make an
agreement by which parts of the location of the canal shall be
changed for the purpose of draining and drying the low grounds near
Pennsylvania Avenue, &c. To effect these objects, the
corporation is authorized to lay off in building lots certain parts
of the public reservations No., 10, 11, and 12, and of other
squares, and also a part of B Street, as laid out and designated in
the original plan of the city, which lots they may sell at auction
and apply the proceeds to those objects, and afterwards to
enclosing, planting, and improving other reservations, and building
bridges, &c., the surplus, if any, to be paid into the Treasury
of the United States. The act authorizes the heirs, &c., of the
former proprietors of the land on which the city was laid out, who
may consider themselves injured by the purposes of the act, to
institute in the circuit court a bill in equity in the nature of a
petition of right against the United States, setting forth the
grounds of any claim they may consider themselves entitled to make,
to be conducted according to the rules of a court of equity, the
court to hear and determine upon the claim of the plaintiffs and
what portion, if any, of the money arising from the sale of the
lots they may be entitled to, with a right of appeal to this Court.
The plaintiffs, Van Ness and wife, filed their bill against the
United States and the Corporation of Washington, claiming title to
the lots which had been thus sold under David Burns, the original
proprietor of that part of the city and father of one of the
plaintiffs, on the ground that by the agreement between the United
States and the original proprietors, upon laying out the city,
those reservations and streets were forever to remain for public
use, and without the consent of the proprietors could not be
otherwise appropriated or sold for private use; that the act of
Congress was a violation of the contract; that by such sale and
appropriation for private use the right of the United States
thereto was determined, or that the original proprietors reacquired
a right to have the reservations, &c., laid out in building
lots for their joint and equal benefit with the United States, or
that they were in equity entitled
to the whole or a moiety of the proceeds of the sales of the
lots.
Held that no rights or claims exist in the former
proprietors or their heirs, and that the proceedings of the
Corporation of Washington under and in conformity with the
provisions of the act are valid and effectual for the purposes of
the act.
Page 29 U. S. 233
The original bill in this case was filed 16 April, 1823. It set
forth that the complainant, Marcia Van Ness, was the only child and
heir at law of David Burns, deceased. That Burns was, in his
lifetime, and particularly on 6 July, 1790, seized and possessed of
a considerable tract of land within the limits of the present City
of Washington; that a part of this land constitutes so much of the
land mentioned in the second section of an Act of Congress of May
7, 1822, c. 96, as is indicated in a map annexed to the bill of
complaint by the words "Reservation No. 10, 11, and 12, on the
north side of Pennsylvania Avenue."
That by virtue of the said act of Congress, the Corporation of
the City of Washington has proceeded to lay off and divide the said
land into lots; that it has sold some, and is about to sell others;
that the land thus disposed of is to be held by the purchasers for
their own private use and exclusive benefit, and the bill complains
of these proceedings as a breach of trust.
It avers that on 6 July, 1790, an act of Congress passed
establishing the temporary and permanent seat of government of the
United States. By this act the President was authorized to appoint
commissioners who were authorized to purchase or accept such
quantity of land within the district as the President might deem
proper for the use of the United States, and according to such
plans as the President should approve. By virtue of this act,
various proposals were made concerning cessions of land for the
site of the City of Washington, the substance of which proposals
was that the President might retain any number of squares he might
think proper for the public improvements or other public uses, and
that the lots only which should be laid off should be a joint
property between the trustees on behalf of the public and each of
the three proprietors, and that the same should be equally divided
between the public and the individuals, as soon as might be after
the city should be laid off.
For the streets the proprietors were to receive no compensation.
For the squares and lands in any form which should be taken for
public buildings or any kind of public
Page 29 U. S. 234
improvement or uses, the proprietors, whose lands might be so
taken were to receive compensation, &c.
On 28 June, 1791, David Burns by his deed conveyed to Thomas
Beall and John Mackall Gantt, in fee simple, for the purposes and
trusts therein mentioned, a considerable quantity of land, part of
which constitutes the land described in the Act of May 7, 1822.
The whole of the land thus conveyed to Beall and Gantt was
afterwards, 30 November, 1796, conveyed by them to the
commissioners appointed under the act aforesaid upon the same
trusts and uses as are expressed in the deed of conveyance to
them.
The plan of the city as originally projected by L'Enfant,
improved and matured by Ellicott, was approved and adopted in 1792
by the President of the United States. According to this plan, the
land described is within the operation of the Act of 7 May, 1822,
except so much thereof as may have been sold by virtue of an Act of
February 24, 1817, entitled "an act authorizing the sale of certain
grounds belonging to the United States in the City of Washington."
The complainants are ignorant of the extent of these sales, but
claim all which may thus have been disposed of.
The map referred to in the bill exhibits the division that was
made, under the direction of the corporation, of the land in
question into lots, and is the guide by which the sales have been
conducted. A part of the land in question was not reserved for
public improvements or other public uses, but belonged to a street
called North B Street.
The complainants aver that the land in question, if sold to
private individuals to be held by them for their individual
benefit, will be placed entirely out of the reach of the trusts and
purposes which were intended to be created and secured by the deed
and agreement aforesaid. The complainants are advised this cannot
be done without their consent, which they are willing to give upon
the terms of the original contract. They are willing to occupy the
same ground they would have occupied if what is now proposed to be
done had been proposed in 1792 -- that is that the land then
reserved as public squares and streets, and now designed to be
Page 29 U. S. 235
divided into private building lots, should be divided between
them and the United States or the corporation claiming the title of
the United States.
The complainants refer to an Act of May 6, 1796, authorizing a
loan for the use of the City of Washington, and to other acts of
Congress, as uniformly holding out the ides that the land in
question is not subject to congressional control. They refer also
to the proceedings of the commissioners in
Davidson's
Case, in January, 1794, a copy of which is annexed, and to the
opinion of the Attorney General in that case.
The complainants aver that they have presented their claim to
the Corporation of Washington and to the commissioners appointed by
the corporation, and urged a postponement of any further sale.
On 19 May, 1826, the complainants filed an amended bill, the
substance of which is:
That Marcia Van Ness, the complainant, is the only child and
heir at law of David Burns, deceased; that David Burns, in his
lifetime, was lawfully seized in fee of the premises in question;
that under an Act of Congress of July 16, 1790, and a supplementary
Act of March 3, 1791, proposals were made by and on behalf of the
President, thereto lawfully authorized, to various persons then the
owners of different portions of land lying within the present
limits of the City of Washington, relating to the purchasing and
accepting from the proprietors, various parts of their lands lying
within the limits aforesaid. In consequence of such proposals, an
agreement was finally made between the proprietors, among whom was
David Burns, and the United States, the terms and nature of which
are set forth in an entry under date of April 1791, in a book,
&c., as set forth in the original bill. On 29 June, 1791, David
Burns, in pursuance of the agreement and arrangement as aforesaid,
made and executed his deed of conveyance to Beall and Gantt, as set
forth in the original bill. Beall and Gantt conveyed, as recited in
the original bill (setting out the trusts). Afterwards, on 13
December, 1791, the President transmitted to Congress a plan of the
city which had been adopted as the permanent seat of government;
that subsequently
Page 29 U. S. 236
various alterations were made in the same at different times
under the authority and sanction of the President. Many building
squares have been introduced in addition to those contained in the
plan originally adopted; alterations have been made in the number
and directions of the streets, in the dimensions of the building
squares and public appropriations, and in all such cases, when such
alterations have been made and those pieces of ground which had
been at any time appropriated as streets or public reservations,
have been subsequently converted, either in whole or in part, into
building lots, the variations have been by the mutual consent of
the United States and the original proprietors respectively, and
the lots in such building squares have been uniformly divided
between the United States and such original proprietors.
They insist that such mutual consent and such distribution were
not only required by the true meaning and legal and equitable
interpretation of the original compact and agreement, but such
practice acquiesced in by both parties ought to be deemed and
received as the mutual understanding and design of the parties at
the time of entering into it.
In pursuance of such original agreement and of the acts of
Congress, the President did select and appropriate for streets,
squares, parcels and lots, for the use of the United States, all
the premises hereinbefore described, lying on the north and south
sides of Pennsylvania Avenue as aforesaid, being part and parcel of
the premises as hereinbefore mentioned, conveyed and transferred by
the said David Burns to Beall and Gantt upon the trusts and
confidences mentioned and declared in the deed of conveyance. That
for all said premises neither Burns in his lifetime, nor the
complainants since his death, have received any other consideration
than such as is set forth in the deed, either from the trustees or
from the United States. The said parcels of land continued to be
held for the use of the United States as a public street or
streets, or public appropriation, according to the plan and
selection, until an Act of Congress entitled "An act authorizing
the sale of certain grounds belonging to the United States in the
City of Washington"
Page 29 U. S. 237
was passed February 24, 1817, which act was procured at the
instance and by the consent of the Corporation of the City of
Washington. Under this act, the commissioner of the public
buildings in the City of Washington was authorized to lay off into
building lots and to sell a portion of them, being part of the
premises hereinbefore described as lying on the north side of
Pennsylvania Avenue.
The residue of said premises continued to be held for the public
use as aforesaid until an Act of Congress was passed on 22 May,
1822, also procured at the instance and with the consent of the
corporation, entitled "An act to authorize and empower the
Corporation of the City of Washington, in the District of Columbia,
to drain the low grounds," &c.
These acts of Congress are charged to be a clear and manifest
departure from the terms and spirit of the original agreement and
compact between Burns and the United States. The object and effect
of them is to divert the premises from the trusts expressed and
declared in the deed; that under such deed an interest still
remained and continued in David Burns, which on his death descended
to and now remains vested in the complainants; that the said acts
of Congress were passed without their concurrence or consent, and
that the constitutional power of Congress and the rights of
complainants will not permit or sanction the sale of the premises
to private parties without such assent and concurrence.
The complainants insist, and submit to the court, whether the
legal operation and effect of said acts be not to determine the
trusts originally created as to said premises and to revest the
same in them, and whether, if they choose to assent to such
appropriation of the premises, the same are not thereby immediately
subject to the same trusts an in and by the indenture were
expressed and declared as to all those portions of the premises
thereby conveyed as were not deemed proper and necessary by the
President, or whether the complainants are entitled to the whole,
or simply to a moiety of the money arising from said sales.
The bill proceeds to set forth, that under the Act of
February
Page 29 U. S. 238
24, 1817, the commissioner was authorized to sell any number of
the lots therein mentioned, not exceeding one-half, and that by the
Act of May 22, 1822, the Corporation of Washington was authorized
to sell and dispose of the right of the United States of, in, and
to the building lots therein mentioned, and if by virtue of said
acts any sales have been or shall be made previous to ascertaining
and settling the rights of the complainants, much confusion,
perplexity, and trouble may ensue as well to the corporation and
the individual purchasers as to the complainants.
Whereas, in and by the said last mentioned act, it was expressly
enacted that it shall and may be lawful for the lawful
representatives of any former proprietor of land directed to be
sold, &c., at any time within one year from passing of the
same, to institute a bill of equity in the nature of a petition of
right against the United States in this Honorable Court, in which
they may set forth the ground of their claim to the land in
question, the complainants do within the terms of said act present
their bill and claim such relief in the premises as may be
conformable to the provisions of said acts, or agreeable to equity
and good conscience.
And inasmuch as the Corporation of Washington is authorized by
said act of Congress to carry the provisions of the same into
effect, and deny any right or interest to the premises or any part
thereof to be in complainants, but claim a right to sell and
dispose of the entire premises, and the exclusive right to receive
and appropriate all the proceeds of the sales to their own use and
benefit, and give out and insist that the complainants have no
claim in law or equity to the land or proceeds, and have proceeded
to carry the act of Congress into operation, they pray, &c.
To this bill the defendants filed their joint and several
demurrer, plea and answer, the substance of which is they claim the
benefit of all the prior exceptions and grounds of demurrer and
plea heretofore taken to the original bill, and deny the equity of
the bill. They specially set forth:
1. That the subject matter of complainant, the title therein
Page 29 U. S. 239
pretended, and the entire relief prayed are against an act of
Congress passed in the due exercise of a legislative discretion and
constitutional power, and therefore not cognizable before any
municipal court.
2. That the complainants have not shown any title, or any
individual and proprietary interest in themselves, but a mere
participation of the general interest inherent in them as members
of the community at large, in common with all the citizens of the
United States in the administration of a public trust by the
government.
3. They deny that the complainants have equity, and assert that
if they have any title to the land, it may be established at
law.
4. That the bill is defective in its frame, scope, and end
because it is multifarious, and purports to have joined therein
several matters and claims of different natures, and repugnant
characters. It is uncertain as to the nature, extent, and degree of
the relief claimed and as to the party against whom it is prayed.
It prays no process except an injunction against the
corporation.
5. It is not in the nature of a petition of right, demanding any
portion of the money arising from the sales of the lands and merely
setting forth the complainants' title to the land, to lay a
foundation for their claim to the money, or to a portion thereof,
as authorized by the act of Congress, but it purports to claim
against and in derogation of the authority of said act, and to draw
the United States into suit touching this claim. The United States
and the corporation are joined in the suit, contrary to the design
of the act and without showing or alleging any interest in the
corporation.
The defendants, by way of answer, admit that David Burns was
seized and did convey as averred in the bill, and that the trustees
conveyed to the commissioners as therein set forth; that the whole
of the lands thus conveyed, except so much as from time to time has
been divided and reconveyed or has been sold or otherwise disposed
of, still remains vested in the United States or its officers or
agents absolutely and perpetually for the use of the United States.
The defendants insist that the legal as well as equitable
Page 29 U. S. 240
estate has become vested in the United States, or at all events
that the legal interest has passed to the commissioner of public
buildings, in trust for the United States. In either case they
insist that the United States has the only beneficial interest and
estate and the absolute dominion and disposal of the same, and that
Congress may and ought to dispose of the same on the terms and in
the manner most advantageous to the general interest. They admit
that about 542 acres were reserved for the use of the United
States, and not allotted and divided; that these lands thus
reserved were purchased at the rate of �25 pounds, or $66.66 per
acre, paid out of the public Treasury, which price was more than
three-fold the market price or real value, independently of the
adventitious and speculative valuation, superinduced by making this
the permanent seat of government. The lands thus purchased for the
use of the United States, and for which there was no responsibility
to the original proprietors beyond the payment of the stipulated
price, were distributed throughout the city, and were commonly
known and distinguished as reservations, numbered from No. 1 to 17
inclusively. Of these the commissioners accounted with David Burns
in his lifetime for about 110 acres, and paid him �2,750, or
$7,333.33; but without any specification of the boundaries or
lines.
All the lands described in the second section of the act of May
7, 1822, and which the corporation is authorized to lay out and
sell, consist of parts of the reservations so purchased as
aforesaid, excepting that part over which No. 10 is directed to be
extended to Pennsylvania Avenue, which comprises so much of B
Street as lies between said avenue and said reservation, and was so
taken in order to square out to said avenue the house lots into
which the reservation was to be divided.
It is admitted that the part of B Street, any more than the
residue of the street, or the other streets, was not, when
originally purchased for the use of the United States, set down
Page 29 U. S. 241
at any price, specifically appropriated to such parts of the
property, but was included as an appendage in the purchase of the
general mass of property paid for at the rate of �25 pounds per
acre, without being taken into the computation of the area to be
paid for at that rate.
The defendants deny that there was any agreement, condition,
understanding or trust, express or implied, between the United
States, or any of its officers, agents or trustees, and the
original proprietors or vendors, or that anything was given out or
promulgated in the form of proposals or otherwise, either before or
after the consummation of the contracts and conveyances by which
the lands were sold and conveyed for the use of the United States
as aforesaid, importing or implying or in any manner holding out
the idea, hope, or expectation that the lands or any part or parcel
of the same should be perpetually and inalienably retained as
public property or dedicated to any particular object of public
improvement, or that the general declaration of use should be
limited, and restrained so as to control the discretion of the
government or Congress of the United States in the use or
application of the property. Except that these defendants have
heard and believe that at a very early stage in the adjustment of
the plan of the city, the two principal quarters of the city, and
the particular appropriations of ground for the sites of the
President's house and executive departments and capitol, were
designated, and an implied pledge of the public faith was held out,
not merely to the original proprietors, but to the public in
general, that those great improvements should be permanently
distributed and seated; but as to all the residue of the lands so
purchased for the use of the United States, it was to remain at the
absolute disposal of Congress.
The defendants have been informed and believe that the intent
and object for keeping such extensive reservations of land in the
heart of the city unappropriated were to leave the hands of the
government unfettered, and its discretion uncontrolled to dispose
of such reservations in furtherance of such future and contingent
purposes and views of improvement, ornament, or utility, as were
not contemplated
Page 29 U. S. 242
or provided for in the original plan, and to leave the
government at full liberty to modify and improve such plan
according to such future and contingent views. That the practice of
the government, its officers, agents and trustees has always been
conformable to this view of the uses and objects to which it was
originally destined. If any of the reservations have received names
as if appropriated to particular objects, they have been merely
popular and arbitrary, and not from any authority or founded on any
pledge or trust, public or private, that they should be so
appropriated. Whenever the public convenience has been thought to
require it, the lands have been applied without regard to such
popular and arbitrary designations, or to any such terms or
conditions as the complainants pretend. That the specific purposes
and objects designated in the act of Congress for the application
of the proceeds are of the first importance and highest public
utility, in reference to the primary design of laying out and
embellishing a splendid, populous, and well ordered capital, which
was to be reclaimed from wasted tobacco fields and noxious
morasses, and that without the improvements to be accomplished by
these means, the city never can fulfill the ends and purposes for
which it had been selected as the permanent seat of government.
The corporation, answering for itself, further said that without
delay a board of five commissioners was organized for the purpose
of carrying into execution the act of 1822 according to certain
directions in the act and in the ordinance of the corporation; that
the commissioners did proceed to lay off the parcels of ground into
squares and building lots, and proceeded to make sale of some of
them, when it was stopped by the injunction issued at the prayer of
the complainants. When the same was dissolved, it again proceeded,
and has disposed of the greater part of the same, and intends with
all convenient speed to dispose of the residue. Of all which
actings and doings it is prepared to render an account when it
shall be so required and directed.
The complainants filed a general replication, and after argument
the circuit court dismissed the bill with costs.
The complainants appealed to this Court.
Page 29 U. S. 275
MR. JUSTICE STORY delivered the opinion of the Court.
This is an appeal from the decree of the Circuit Court of the
District of Columbia, sitting at Washington, upon a bill in equity
in which the appellants were original complainants.
On 7 May, 1822, Congress passed an act to authorize and empower
the Corporation of the City of Washington, in the District of
Columbia, to drain the low grounds on and near the public
reservations and to improve and ornament certain parts of such
reservations. By that act, the corporation was, among other things,
to change, by contract with the proprietors of the canal, the
location of such parts of the canal passing through the city as lay
between Second and Seventh Streets, west, into such course as
should most effectually, in their opinion, drain and dry the low
ground lying on the borders of Tiber Creek, and to effectuate this
object the corporation was further authorized, after having
extended the public reservation designated on the plan of the city
as number ten so as the whole south side should bind on the line of
Pennsylvania Avenue, and after having caused to be divided the said
public reservation number ten, and also the public reservations
numbers eleven and twelve into building lots, to sell and dispose
of the right of the United States of, in, and to the said lots or
any number thereof laid off as aforesaid at public sale, &c.
And the corporation was further authorized to cause to be laid off,
in such manner as the President should approve, two squares south
of Pennsylvania Avenue, and also to lay off north of Maryland
Avenue two uniform and correspondent squares, and the said four
squares, when so laid off, to divide into building lots, and to
sell and dispose of the
Page 29 U. S. 276
right of the United States in such lots, &c. The proceeds of
these sales were in the first place to be applied to the purposes
above mentioned, and in the next place to enclosing, planting, or
otherwise improving certain public reservations, and building
certain bridges, &c., and the surplus, if any, to go into the
national treasury. The sixth section of the act then provides
"That it shall be lawful for the legal representatives of any
former proprietor of the land directed to be disposed of by this
act, or persons lawfully claiming title under them, and they are
hereby permitted and authorized, at any time within one year from
the passing of this act, to institute a bill in equity in the
nature of a petition of right against the United States in the
Circuit Court for the District of Columbia, in which they may set
forth the grounds of their claim to the land in question."
The seventh section provides for the service of process upon and
the appearance of the Attorney General, &c. The eighth section
provides
"That the said suit shall be conducted according to the rules of
a court of equity. And the said court shall have full power and
authority to hear and determine upon the claim of the plaintiff or
plaintiffs, and what proportion, if any, of the money arising from
the sale of the land hereby directed to be sold, the parties may be
entitled to."
The ninth and last section of the act provides for an appeal to
this Court.
The plaintiffs filed their bill in the present case within the
time prescribed by the act, making the United States and the
Corporation of the City of Washington parties. They claim title to
the lands in controversy, which have been laid off into lots for
sale, under David Burns, one of the original proprietors of the
city, and of whom the plaintiff Marcia is the only daughter and
heir. These lots embrace part of the reservations above referred
to, and also a part of the street called B according to the
original plan of the city. The ground of the bill is that by the
original contract of the government with the proprietors, upon the
laying out of the city, these reservations and streets were forever
to remain for public use, and were incapable, without the consent
of the proprietors, of being otherwise appropriated or
Page 29 U. S. 277
sold for private use; that the act of 1822, authorizing such
sale, is a violation of the contract; that by such sale or
appropriation for private use, the right of the United States
thereto was determined, or that the original proprietors reacquired
a right to consider them in the same predicament as if originally
laid out for building lots, or that at all events they were
entitled in equity to the whole or a moiety of the proceeds of the
sale if the act of 1822 were valid for the purposes which it
professed to have in view.
Some difficulty has arisen at the argument from the peculiar
structure of the bill, it professing in some parts to seek relief
under the act of 1822 and in other parts insisting upon a title
inconsistent with it and demanding an injunction to prevent all
sales of the land by the corporation. The opinion of this Court
certainly is that under the act of 1822, the plaintiffs can proceed
by a bill in equity in the nature of a petition of right against
these the United States only for the money arising from the sales,
and cannot claim a decree for the land itself or for any injunction
against sales of it.
The view, however, of the case which we are disposed to take
renders it unnecessary to consider whether the bill is so framed
that with reference to the act of 1822, the court could pass a
definitive decree against the United States upon it from the
incongruities alluded to.
As it is manifestly the interest and desire of all the parties
to have an opinion upon the merits so as to put an end to the
controversy, we shall waive all consideration of minor objections
and proceed at once to the consideration of the substantial ground
of the claim.
Congress, by an Act passed on 16 July, 1790, provided that a
district of territory not exceeding ten miles square, to be located
as therein directed, on the River Potomac, at some space between
the mouths of the eastern branch and Conogocheague be, and the same
was thereby accepted for the permanent seat of the government of
the United States. Three commissioners were by the same act to be
appointed to survey and by proper metes and bounds to define and
limit the district, and they were authorized to purchase or accept
such quantity of land on the eastern side
Page 29 U. S. 278
of the 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, the commissioners
were to provide suitable buildings for the accommodation of
Congress and of the President, and for the public offices of the
government of the United States. A subsequent act, passed on 3
March, 1791, authorized some alterations of the limits of the
district. Suitable cessions of the jurisdiction and soil of the
territory, subject to the private rights of property of the
inhabitants, were made by the States of Maryland and Virginia.
* And the former
act further provided for the removal of the seat of government to
the district on the first Monday of December, 1800. The limits of
the district were accordingly ascertained and defined, as made
known by the proclamations of the President of 24 January and 30
March, 1791.
As yet no public designation had been made of the site of the
federal city, which was contemplated to be laid out within the
limits of the district, nor of the places no which the public
buildings should be erected, nor indeed had there been any purchase
or donation from any of the proprietors of lands within the
district by or to the commissioners for that object. There cannot
however be a question that various negotiations had been entered
into with the proprietors, and informal proposals made by them with
a view to obtain so important and valuable a boon as the location
of the city within the boundaries of their estates. And it can
admit of as little question that preparatory steps had been taken
on the part of the government to procure suitable plans for the
laying out of the metropolis.
In this state of things, nineteen of the proprietors of the land
constituting the present site of the City of Washington, among whom
was David Burns, on 30 March, 1791, entered into an agreement which
was presented to the
Page 29 U. S. 279
commissioners as the basis of the terms on which they were
willing to dedicate their lands for the location of the city. The
agreement was accepted by the commissioners and recorded in their
books. It is in the following terms.
"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, our heirs, executors,
and administrators, to convey in trust to the President of the
United States or commissioners, or such 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 in 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 off. 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 are taken shall receive at the rate of �25
per acre, to be paid by the public."
There are some minor arrangements as to growing timber and
graveyards, &c., which are not necessary to be mentioned. It is
material, however, to observe that no time or mode of payment is
prescribed in the agreement of the �25 per acre, and no fund out of
which it was to be paid is designated. The agreement was merely
preparatory, and to be carried into effect by formal
conveyances.
Now it is upon the terms of this agreement that the plaintiffs
assert their title to relief in the present case. They contend that
though the whole land was to be conveyed, yet the portion of it
which should be taken for streets and public reservations,
according to the plan approved by the President, was clothed with a
perpetual condition or trust that
Page 29 U. S. 280
they should forever remain streets and public reservations, and
never should be liable to be appropriated to any private use or
changed from their original public purpose. That upon any such
change or appropriation the title reverted to the original
proprietors, or at all events, was to be disposed of and divided
between them in the manner provided for in respect to the land laid
off into lots. They also contend that the land so devoted to
streets and public reservations was a mere donation from the
proprietors, and not a purchase by the United States, and therefore
ought to be governed by the rules applicable to public charities,
and the trust strictly construed and enforced.
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
city. The very agreement to found a city was of 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 mere 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 aid from the imagination
to foresee that this act of the government would soon convert the
narrow income of farms 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. For
the streets they were to receive no compensation. Why? Because
those streets would be of as much benefit to themselves as lot
holders as to the public. They were to receive �25 per acre for the
public reservations; "to be paid" (as the agreement states it) "by
the public." They understood themselves then to
Page 29 U. S. 281
receive payment from the public for the reservations. It makes
no difference that by the subsequent arrangements they were to
receive this payment out of the sales of the lots which they had
agreed to convey to the public in consideration of the government's
founding the city on their lands. It was still contemplated by them
as a compensation; as a valuable consideration, fully adequate to
the value of all their grants. It can therefore be treated in no
other manner than as a bargain between themselves and the
government for what each deemed an adequate consideration. 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 was never 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.
And in construing this agreement this fact should never be lost
sight of. It is obvious that the proprietors or their heirs could
not be presumed for any great length of time to have any interest
in the streets or public reservations beyond that of other
inhabitants. If the city became populous, the lots would be sold
and built upon, and in the lapse of one or two generations, at
most, the title of the original proprietors might well be presumed
to be extinguished by sales or otherwise, so that the interest of
themselves or their heirs in the streets and reservations would not
be distinguishable from that of other citizens. They must also have
contemplated that a municipal corporation must soon be created to
manage the concerns and police and public interests of the city,
and that such a corporation would and ought to possess the ordinary
powers for municipal purposes which are usually confided to such
corporate bodies. Among these are certainly the authority to widen
or alter streets and to manage and in many instances to dispose of
public property or vary its appropriation.
They might, and indeed must, also have placed a just confidence
in the government that in founding the city, it would do no act
which would obstruct its prosperity or interfere with its great
fundamental objects or interests. It could
Page 29 U. S. 282
never be supposed that Congress would seek to destroy what its
own legislation had created and fostered into being.
On the other hand it must have been as obvious that as Congress
must forever have an interest to protect and aid the city, it would
for this very purpose be most impolitic and inconvenient to lay any
obstructions to the most free exercise of its power over it. The
city was designed to last in perpetuity:
capitoli immobile
saxum. No human foresight could take in the great variety of
events which might render great changes in the plan, form, and
locations of the city indispensable for the health, the comfort,
and the prosperity of the city. Cases might easily be imagined, as
in other cities, where the desolations of fire have made
alterations in the streets and public squares of a city most
important and valuable to the whole community. A prohibition which
should forever close up the legislative power of Congress on such a
subject under all circumstances ought not lightly to be presumed
nor readily admitted. It should be proved by the most direct and
authentic documents, before we should admit the belief that the
wisdom of the first President of the United States yielded up such
a valuable franchise.
If the case had stood solely upon this preparatory agreement as
an executory contract, there might have been stronger grounds to
impose limitations upon the grant of the streets and public
reservations. The language of the instrument is that the President
may retain any number of squares he may think proper for public
improvements or other public uses. Yet even then, the appropriation
of these squares for public uses would not necessarily carry with
it an implied obligation that they should forever remain dedicated
to those uses and to none other. If such had been the intention of
the parties, we should naturally expect to find there some direct
expression of it, some acknowledgement of the obligation, or some
condition carrying it to such a political mortmain. If the
stipulation was so important and valuable as is now contended for,
and constituted an object of permanent solicitude, it would
scarcely escape the notice of the proprietors in laying down the
fundamental basis of their cessions. If it did then escape them,
we
Page 29 U. S. 283
should have reason to look for its incorporation into the more
solemn instruments which were contemplated thereafter to be
executed by the parties, and were in fact executed by them in
fulfillment of their original agreement. But no such stipulation is
there to be found.
On 29 June, 1791, the proprietors severally executed deeds of
indenture to consummate the agreement of the preceding March. They
are all in the same form and contain the same declarations of
trust. That executed by David Burns conveys to Thomas Beall and
John M. Gantt (the trustees designated by the President) all the
lands of the proprietor within the bounds of the city upon the
following trusts,
viz.,
"That all the said lands, &c., 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 [the trustees], &c., shall
convey to the commissioners for the time being appointed by virtue
of the act of Congress, entitled, &c., 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 said lots into which the lands, &c., shall be
divided, a fair and equal division of them shall be made, and if no
other mode of division shall be agreed on by consent of the said
[grantor] and the commissioners for the time being, then such
residue of the said lots shall be divided, every other lot
alternate, to the said [grantor], &c., and all the said lots
which may in any manner be divided or assigned to the said
[grantor] shall thereupon, &c., be conveyed by the said
[trustees] to the said [grantor], his heirs and assigns; and that
the said other lots shall and may be sold at such time, &c., as
the President of the United States for the time being shall direct,
and that the said [trustees] &c., will, on the order and
direction of the President, convey all the lots so sold, and
ordered to be conveyed, to the respective purchasers in fee simple
&c."
Provision is then made that the �25 per acre
Page 29 U. S. 284
to be paid by the United States for the squares should be paid
out of the proceeds of such sales, and the residue shall be paid to
the President as a grant of money to be applied for the purposes
and according to the act of Congress.
Provision is also made for other objects not material to be
mentioned and for a conveyance of the trust property to such other
persons as the President might thereafter direct, in fee, "subject
to the trusts then remaining to be executed and to the end that the
same may be perfected." In pursuance of this last provision, Beall
and Gantt, the trustees, made a conveyance of the premises by an
indenture dated the 30 November, 1796, to certain commissioners
appointed under the act of Congress, subject to the trusts then
remaining to be executed, and, among other things, conveyed to the
commissioners all that part of the lands, &c., which had been
laid off into squares, parcels or lots for buildings, and now
remaining so laid off in the City of Washington.
Now it is important to observe that the object of the indenture
to Beall and Gantt in 1791 was to carry into full and entire effect
the preliminary agreement entered into by the proprietors. There is
no pretense to say that that indenture has not fully carried that
agreement into effect. There is no allegation in the bill of any
mistake in the draft of the indenture or that the instrument was
not precisely what the parties intended it should be. The argument
at the bar has not attempted to set up any such mistake as a ground
of equity. And indeed, after such a lapse of time and acquiescence
in its legal accuracy and sufficiency by all the parties, and after
so many acts done under it which have been silently confirmed by
the parties, it would be impossible to insist upon any such mistake
with a chance of success. We must take the indenture, therefore, as
we find it, as a complete execution of the preliminary agreement
and as expressing the true intent and definitive objects of the
parties. The preliminary agreement then became, upon the execution
of the indenture,
functus officio and was merged in the
more formal and solemn stipulations of the latter. It was no longer
executory, but executed. The indenture itself contained many
executory trusts, and so far as any of them
Page 29 U. S. 285
yet remains unexecuted, the instrument itself may still be
denominated executory. But so far as the trusts have been
fulfilled, as by the conveyance of lots to the grantors, or to
purchasers, and especially by the conveyance of the streets and
squares, &c., to the commissioners in 1796, the indenture can
no longer be deemed executory. Its functions have been final and
complete.
We need not, therefore, inquire into the distinction taken in a
court of chancery between executory and executed agreements, or
into the extent to which its equitable jurisdiction will be
interposed to reform instruments upon grounds of mistake or to
grant other relief, because the present bill presents no case
falling under either predicament. Here we have a solemn instrument
embodying the final intentions and agreements of the parties
without any allegation of mistake, and we are to construe that
instrument according to the legal import of its terms.
Now upon such legal import there do not seem grounds for any
reasonable doubt. The streets and public squares are declared to be
conveyed "for the use of the United States forever." These are the
very words which by law are required to vest an absolute
unconditional fee simple in the United States. They are the
appropriate terms of art, if we may so say, to express an unlimited
use in the government. If the government were to purchase a lot of
land for any general purpose, they are the very words which the
conveyance would adopt in order to grant an unlimited fee to the
use of the government. There are no other words or references in
the instrument which control in any manner the natural meaning of
them. There are no objects avowed on the face of it which imply any
limitation. How then can the court defeat the legal meaning and
resort to a conjectural intent?
It has been said that by looking at the preliminary agreement,
the court will see that terms of a more limited nature are there
used. Be it so. But will that justify the court in resorting to it
to explain or limit the legal import of words in a solemn
instrument, which contains no reference to it? If we could resort
to it, the natural conclusion would be, in the
Page 29 U. S. 286
absence of all contrary proof, that the last instrument embodied
the real intent of the parties; that the preliminary agreement
either imperfectly expressed their intent, or was designedly
modified in the final act. The general rule of law is that all
preliminary negotiations and agreements are to be deemed merged in
the final, settled instruments executed by the parties, unless a
clear mistake be established. In this very case it may be true, for
aught that appears, that the President might have insisted upon the
introduction into the trust deed of the very words in controversy,
"to the use of the United States forever," in order to avoid the
ambiguity of the words of the preliminary agreement. He may have
required an unlimited conveyance to the United States so that it
might be unfettered in any future arrangements for the promotion of
the health, the comfort, or the prosperity of the city. But it is
sufficient for us that here there is a solemn conveyance which
purports to grant an unlimited fee in the streets and squares to
the use of the United States, and we know of no authority which
would justify us in disregarding the terms or limiting their import
where no mistake is set up and none is established. It would indeed
be almost incredible that any substantive mistake should have
existed and never have been brought to the notice of the trustees
or to that of the commissioners upon their succeeding to the trust
or seriously insisted on by any party down to the time of filing
the present bill. The present is not a bill to reform a contract or
deed, but to assert rights supposed to grow out of the trusts
declared in the deed.
This view of the matter renders it unnecessary for the Court to
go into an examination of the facts insisted upon in the answer to
repel the allegations in the bill or to disprove the equity which
it asserts. If the United States possesses, as we think it does, an
unqualified fee in the streets and squares, that defeats the title
of the plaintiffs and definitively disposes of the merits of the
cause.
It is the opinion of the Court, MR. JUSTICE BALDWIN dissenting,
that the decree of the circuit court dismissing the bill be
Affirmed with costs.
*
See Acts of Maryland of 23 December, 1788, 19
December, 1791, 23 December, 1792, and of the 28 December, 1793;
Act of Virginia of 3 December, 1789.
