Van Ness v. City of Washington,
29 U.S. 232 (1830)

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U.S. Supreme Court

Van Ness v. City of Washington, 29 U.S. 4 Pet. 232 232 (1830)

Van Ness v. City of Washington

29 U.S. (4 Pet.) 232


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

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