1. Allowance of the remedy by mandamus is controlled by
equitable principles. P.
289 U. S.
359.
2. The court, in its discretion, may refuse mandamus to compel
the doing of an idle act, or where public injury or embarrassment
would result from granting it. P.
289 U. S.
360.
3. Owners of land on the Virginia side of the Potomac, opposite
Washington, claiming title to upland extending by accretion to
present high water, and the right, by common law and under the
Maryland-Virginia Compact of 1785, to wharf out in a manner
approved by the Chief of Army Engineers as not obstructive of
navigation, sought by mandamus to compel the Secretary of War to
approve under the Act of March 3, 1899, to the end that they might
consummate a sale of the land under a contract made conditional
upon such
Page 289 U. S. 353
approval.
Held that, putting aside doubts concerning
the petitioners' property and the duty of the Secretary under the
statute, mandamus was properly refused upon the grounds that the
Government has devoted both the lands of the United States
constituting the bed of the river at the
locus in quo and
the upland adjacent to a parkway, the plan for which contemplate
the taking of part of petitioners' property, so that the apparent
consequence of authorizing the wharf would be only to increase the
expense to the Government of constructing such parkway. Pp.
289 U. S.
358-360.
63 F.2d 137 affirmed.
Certiorari, 288 U.S. 598, to review the affirmance of a judgment
denying a writ of mandamus.
MR. JUSTICE STONE delivered the opinion of the Court.
The relators, petitioners here, filed their petition in the
Supreme Court of the District of Columbia for a writ of mandamus to
compel the Secretary of War and the Chief of Engineers to authorize
the construction of a wharf in the Potomac River within the
District of Columbia adjacent to their land on the Virginia shore,
the construction being forbidden by § 10 of the Act of March 3,
1899, c. 425, 30 Stat. 1121, 1151, 33 U.S.C. § 403, "except on
plans recommended by the Chief of Engineers and authorized by the
Secretary of War." The judgment of the Supreme Court denying the
writ was affirmed by the District Court of Appeals. 61 App.D.C.
360, 63 F.2d 137. This Court granted certiorari. 288 U.S. 598.
Petitioners claim title through a grant to their predecessors in
interest of a plot of upland lying in the
Page 289 U. S. 354
State of Virginia, which extended at the time of the grant to
the Potomac River. The upland has been enlarged by the recession of
the river toward the north, and it is the contention of the
petitioners that the enlargement is due to accretion, with the
result that their ownership has been extended beyond the shore line
of the river, as it existed at the time of the grant, to the
present high water line, a claim which is put in issue by the
answer. But it is conceded that the bed of the river below high
water mark, where the proposed wharf is to be built, lies within
the District of Columbia, and that title to it and sovereignty over
it were vested in the United States by cession from the State of
Maryland of the area constituting the present District of Columbia.
See Maryland Laws, 2 Kilty, Sess. of November 1791, c. 45;
Smoot Sand & Gravel Corp. v. Washington Airport,
283 U. S. 348;
Maryland v. West Virginia, 217 U.
S. 577;
Marine Railway & Coal Co. v. United
States, 257 U. S. 47,
257 U. S. 64;
Morris v. United States, 174 U. S. 196,
174 U. S. 225;
Revised Statutes relating to the District of Columbia (1875), § 1.
Within this area, Congress has the plenary power to control
navigation which was vested in the United States before the cession
and which it exercises generally over navigable waters within the
several states. It also acquired by the cession proprietary powers
over the lands lying under water, and under Article I, § 8, of the
Constitution, granting exclusive legislative power over the
District, the sovereign power to regulate and control their use for
public purposes other than navigation.
Petitioners have entered into a contract for the sale of their
lands, conditioned upon securing permission to build the wharf,
which is to be built and used by the purchaser in connection with a
plant to be established on the upland for the storage of gasoline.
It is stipulated on the record that the proposed wharf, which is to
be constructed in conformity to plans approved by the Chief of
Engineers,
Page 289 U. S. 355
will not interfere with navigation. Petitioners assert a right
as riparian owners to build and maintain it upon two grounds --
first, that, by the common law rule as developed in the United
States, the ownership of land bordering on a navigable river
carries with it the right to build and maintain below high water
mark a wharf or other structure, not an obstruction to navigation
(
see Shively v. Bowlby, 152 U. S. 1;
United States v. River Rouge Imp. Co., 269 U.
S. 411,
269 U. S. 418;
Norfolk v. Cooke, 27 Grat. 430;
Baltimore & Ohio
R. Co. v. Chase, 43 Md. 23) and, second, that, by Paragraph
"Seventh" of the Compact of 1785 between Maryland and Virginia,
ratified by Virginia March 28, 1785, 12 Hening, Virginia Stat. 50,
and by Kilty, Session of November 1785, c. 1, it was provided:
"The citizens of each state respectively shall have full
property in the shores of Patowmack River adjoining their lands,
with all emoluments and advantages thereunto belonging, and the
privilege of making and carrying out wharfs and other improvements,
so as not to obstruct or injure the navigation of the river. . .
."
They insist that as the proposed wharf will not interfere with
navigation, and, as plans for its construction have been approved
by the Chief of Engineers, it is the legal duty of the Secretary of
War, under § 10 of the Rivers and Harbors Appropriation Act of
March 3, 1899, to grant the desired permit. It is conceded by the
government that the only basis for the Secretary's refusal to
authorize the construction of the wharf is that it would be
inimical to the establishment of the proposed George Washington
Memorial Parkway authorized by Act of Congress of May 29, 1930, c.
354, 46 Stat. 482.
By this legislation, Congress appropriated $7,500,000 for the
construction of a parkway, a part of which is to extend along the
Virginia shore of the Potomac river from Mount Vernon to a point
above the Great Falls.
Page 289 U. S. 356
It authorized the National Capital Park and Planning Commission
"to occupy such land belonging to the United States as may be
necessary for the development and protection" of the parkway.
Construction of the parkway was authorized as a part of the federal
aid highway program, and was made conditional upon the contribution
by Maryland or Virginia or others of one-half the cost of the
required lands, other than those of the United States. But the
Commission was empowered, in its discretion, to advance the full
cost of the parkway upon securing undertakings from these states,
upon terms prescribed by the statute, to repay one-half of the cost
to the federal government. A part of the parkway, the Mount Vernon
Memorial highway, extending along the Virginia shore of the river
from Mount Vernon to a point within the District of Columbia, a
short distance below the land of the petitioners, has been
completed.
Pending this suit, but before its trial, the Park and Planning
Commission, by resolutions of September 24-26, 1931, declared that
certain lands of the United States, described by metes and bounds,
running along the high water line of 1863 on the Virginia side of
the river, as established by United States Coast Survey, and
extending to the center line of the channel of the river, are
necessary for the development and protection of the parkway. By
further resolution, the Commission declared that it took complete
and exclusive possession of these lands, which include the riverbed
where it is proposed to build the wharf and the upland claimed by
petitioners by accretion. It directed that copies of the
resolutions be posted on each parcel, which was done before the
hearing in this suit. A description of each was also sent to the
Attorney General for the purpose of having suits filed under the
Act of April 27, 1912, c. 96, 37 Stat. 93, which authorizes suits
by the Attorney General to quiet title to lands adversely held or
claimed lying under and adjacent to the Potomac
Page 289 U. S. 357
River within the District of Columbia. The plans of the
Commission also contemplate the construction of a highway across
petitioners' upland as a means of access to the parkway.
It is apparent that petitioners are entitled to the relief
prayed only if several doubtful questions are resolved in their
favor. They are (1) whether a mandatory duty is imposed upon the
Secretary of War by § 10 of the Rivers and Harbors Appropriation
Act to authorize the construction of the proposed wharf if he is
satisfied that it will not interfere with navigation; (2) whether
in fact petitioners have title, by accretion, to the upland
adjacent to the river at the point where it is proposed to build
the wharf, and thus have the status of riparian owners; (3)
whether, even as riparian owners of land lying within Virginia,
petitioners, in the absence of a legislative grant either by
Maryland before the cession or by the United States after it, have
a common law right to build a wharf on the adjacent lands of the
United States lying in the bed of the river,
see Casey's Lessee
v. Inloes et al., 1 Gill 430;
Browne v. Kennedy, 5
Har. & J. 195;
Giraud's Lessee v. Hughes, 1 Gill &
J. 249, 265;
Wilson's Lessee v. Inloes, 11 Gill & J.
351;
Hammond's Lessee v. Inloes, 4 Md. 138;
Horner v.
Pleasants, 66 Md. 475, 7 A. 691;
Attorney General v.
Hudson County Water Co., 76 N.J.Eq. 543, 76 A. 560, or, if
not, (4) whether their predecessors in title acquired such a right
under paragraph seventh of the Maryland-Virginia Compact,
Georgetown v. Alexandria Canal
Co., 12 Pet. 91;
Potomac Steamboat Co. v. Upper
Potomac Steamboat Co., 109 U. S. 672,
109 U. S. 675;
(5) whether, if such a right were derived from the compact, it was
not lost before its exercise by the union in the single ownership
of the United States of the land under the river and on both sides
of it, which resulted from the cession by Maryland and Virginia of
the area originally embraced in the District of Columbia and
continued until the retrocession
Page 289 U. S. 358
in 1846 of the lands on the Virginia side,
see Georgetown v.
Alexandria Canal Co., supra; Evans v. United States, 31
App.D.C. 544, 550;
Herald v. United States, 52 App.D.C.
147, 284 F. 927, and (6) whether the right claimed is not in any
case subordinate to the power of the United States, in its capacity
as proprietor and sovereign, to devote the riverbed to a public
purpose, as has been done by the action of the Commission, taken
under authority of Act of Congress authorizing the George
Washington Memorial parkway.
See Fox River Paper Co. v.
Railroad Commission of Wisconsin, 274 U.
S. 651;
United States v. Chandler-Dunbar Water Power
Co., 229 U. S. 53;
Barney v. Keokuk, 94 U. S. 324;
Giraud's Lessee v. Hughes, supra; Casey's Lessee v. Inloes,
supra; Linthicum v. Coan, 64 Md. 439, 453, 2 A. 826;
Classen v. Chesapeake Guano Co., 81 Md. 258, 267, 31 A.
808.
The government contends that, in view of the nature of these
questions, the case is not an appropriate one for mandamus, since
ordinarily mandamus against a public officer will not lie unless
the right of the petitioner and the duty of the officer,
performance of which is to be commanded, are both clear.
See
United States v. Wilbur, 283 U. S. 414,
283 U. S.
419-420;
Interstate Commerce Commission v. New York,
New Haven & Hartford R. Co., 287 U.
S. 178;
United States ex rel. Redfield v.
Windom, 137 U. S. 636;
Bayard v. White, 127 U. S. 246. It
is insisted that both the petitioners' riparian ownership and the
right to build the wharf which they claim to have derived from it
are doubtful, and, in any event, that the duty of the Secretary
under the statute
* is not plain and
certain, since
Page 289 U. S. 359
the words forbidding all structures in any navigable river
"except on plans recommended by the Chief of Engineers and
authorized by the Secretary of War" are only permissive, not
mandatory, and there is no plain implication of a duty on the part
of the Secretary to authorize a structure in the Potomac River
within the District of Columbia to which there is substantial
objection that it infringes the rights or obstructs the public
policy of the United States as owner and sovereign of the
riverbed.
But we find it unnecessary, in the circumstances of this case,
to say what effect should be given to these objections alone,
whether considered each separately or together. Although the remedy
by mandamus is at law, its allowance is controlled by equitable
principles,
see Duncan Townsite Co. v. Lane, 245 U.
S. 308,
245 U. S. 311;
Arant v. Lane, 249 U. S. 367,
249 U. S. 371;
Redfield v. Windom, supra, 137 U. S. 644;
cf. Turner v. Fisher, 222 U. S. 204;
In re Skinner & Eddy Corp., 265 U. S.
86,
265 U. S. 95;
People ex rel. Wood v. Assessors, 137 N.Y. 201, 33 N.E.
145;
In re Lindgren, 232 N.Y. 59, 133 N.E. 353;
McCarthy v. Street Comm'rs, 188 Mass. 338, 74 N.E 659;
People v. Olsen, 215 Ill. 620, 74 N.E. 785, and it may be
refused for reasons comparable to those which would lead a court of
equity, in the exercise of a sound discretion, to withhold its
protection of an undoubted legal right. For such reasons, we think
the relief sought by
Page 289 U. S. 360
mandamus should be denied here, even if petitioners' title to
the upland adjacent to the river and their right to build the wharf
were less doubtful than they are. The government, through its duly
authorized agency, the Park Commission, has declared that both the
bed of the river and the upland adjacent to it shall be devoted to
a public purpose for the construction of the parkway, and the plans
of the Commission contemplate the taking, by purchase or
condemnation, of a part of petitioners' property as a means of
access to it. The apparent consequence of authorizing the
construction of the wharf would be only to increase the expense to
the government of constructing the parkway by the cost of
destroying the wharf and by so much of the cost of the wharf and of
the other proposed improvements as may be included in the just
compensation to be awarded for their taking. Thus, the
extraordinary remedy by mandamus, invoked to protect rights to
which petitioners are not shown to be clearly entitled, would be
burdensome to the government without any substantially equivalent
benefit or advantage to the petitioners or their vendee apart from
the incidental and irrelevant consequence that petitioners might
secure the performance of their conditional contract.
The Court, in its discretion, may refuse mandamus to compel the
doing of an idle act,
Turner v. Fisher, supra,
222 U. S. 209;
Wilson v. Blake, 169 Cal. 449, 147 P. 129; or to give a
remedy which would work a public injury or embarrassment (
see
Duncan Townsite Co. v. Lane, supra; Arant v. Lane, supra;
Effingham, Maynard & Co. v. Hamilton, 68 Miss. 523, 10 So.
39;
cf. In re Lindgren, supra, 66;
McCarthy v. Street
Comm'rs, supra) just as, in its sound discretion, a court of
equity may refuse to enforce or protect legal rights the exercise
of which may be prejudicial to the public interest.
See
Seaboard Air Line R. Co. v. Atlanta B. & C. R. Co., 35
F.2d 609;
Page 289 U. S. 361
Conger v. New York, W.S. & B. R. Co., 120 N.Y. 29,
23 N.E. 983;
Clarke v. Rochester, L. & N.F. R. Co., 18
Barb. 350;
Whalen v. Baltimore & Ohio R. Co., 108 Md.
11, 69 A. 390;
Curran v. Holyoke Water Power Co., 116
Mass. 90;
Southern R. Co. v. Franklin & P. R. Co., 96
Va. 693, 32 S.E. 485;
cf. 75 U. S.
Tayloe, 8 Wall. 557.
Affirmed.
*
"Section 10. That the creation of any obstruction not
affirmatively authorized by Congress, to the navigable capacity of
any of the waters of the United States is hereby prohibited, and it
shall not be lawful to build or commence the building of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other
structures in any port, roadstead, haven, harbor, canal, navigable
river, or other water of the United States outside established
harbor lines or where no harbor lines have been established, except
on plans recommended by the Chief of Engineers and authorized by
the Secretary of War, and it shall not be lawful to excavate or
fill, or in any manner to alter or modify the course, location,
condition, or capacity of, any port, roadstead, haven, harbor,
canal, lake, harbor of refuge, or inclosure within the limits of
any breakwater, or of the channel of any navigable water of the
United States, unless the work has been recommended by the Chief of
Engineers and authorized by the Secretary of War prior to beginning
the same."