had been presented in a very interesting manner, from the point of view opposed to that expressed by the commissioners, but showing that differences of opinion existed, by Nicholas King, in a letter to the president dated September 25, 1803, and printed in Burch's Digest, 351. In that communication he attributed the doubt and uncertainty in which the matter was involved to the action of the commissioners. "In laying off the city," he says, "they stopped, as before observed, on the bank of the river, sold the lots on the high ground with a water privilege, without defining either what the privilege is, or the extent or direction in which the purchasers were to wharf and improve."

3. A special ground is maintained in behalf of the claim under lot 13, in square 504, derived from Greenleaf. On December 24, 1793, the commissioners made a contract in writing with Morris and Greenleaf for the sale and conveyance of 6,000 lots, 4,500 to lie south-west of Massachusetts avenue, and of them Morris and Greenleaf were to have "the part of the city in Notley Young's land." By this contract Morris and Greenleaf were excluded from selecting water lots, but with this proviso: "Provided, and it is hereby agreed by and between the parties to these presents, that the said Robert Morris and James Greenleaf are entitled to the lots in Notley Young's land, and, of course, to the privileges of wharfing annexed thereto, and that lots adjoining the canal are not reckoned water lots." From this it is sought to draw the inference that the lots in Notley Young's land fronting on the north side of Water street, have the appurtenant wharfing privileges claimed. But there is no sufficient foundation for this conclusion. Even if it were proper to resort to this preliminary agreement to supply what is not contained in the subsequent grant, made in execution of it,—which, we have seen, on the authority of the Case of Van Ness, we are not at liberty to do,-still, there is nothing to identify square 504 as a water lot out of the property of Notley Young. On October 18, 1794, as has been stated, the commissioners transferred to Greenleaf, Morris consenting, by certificate, 857 of these lots, including the one in question, and it may be that many of them were water lots, but which of them were is to be determined by the actual facts as to each, and not by any general description. There were lots, in Notley Young's land as laid out, which answered the description, without reference to those lying on the north side of Water street. That there was on the original plan of the city, and in the division made between the original proprietors and the United States, a classification of the squares and lots into "water lots," with riparian privileges, and the rest which were not, admits of no dispute. The exact nature of the difference is well pointed out in a very elaborate report made May 25, 1846, to the common council of the city, by a committe appointed to investigate the subject, and their conclusions on the point seem to us supported by the records and documents of the time. They say:

"Squares in the water with water lots were laid off by the commissioners and divided with the proprietors on the navigable waters of the Eastern Branch, Potomac, and Rock creek. Water lots were defined by metes and bounds on three sides, and were estimated originally in the division, since in sales, and now for assessment by the front foot. * * * On the plan of the city all the streets are delineated and all the property laid off. Every owner of a lot in the city can tell by the description of it in his deed what are its bounds on all sides; if it has a water boundary, the deed says so, and he has a right to wharf out into the river; if it is bounded on all sides by the land, he has no such right, the right to wharf belonging only to land bounded by the water."

If there are any individual cases that are exceptions to these statements, nevertheless their general accuracy, we consider, well established, and that they manifest the original intention of the parties to the transaction. Disputes undoubtedly arose, some quite early, not so much as to what rights belonged to "water lots," nor as to what properly constituted a "water lot," but, in regard to particular localities, whether that character attached to individual squares and lots. In part, at least, the uncertainty arose from the fact that the plan of the city, as exhibited on paper, did not accurately correspond at all points with the lines as surveyed and marked on the land. Complaints of that description, and of designed departures from the plan, seem to have been made. It is also true, we think, that mistakes arose, as perhaps in the very case of the lots on the north side of Water street, owing to the fact that the street existed only on paper, and for a long time remained an unexecuted project; property appearing to be riparian, because lying on the water's edge, which, when the street was actually made, had lost its river front. They were thought to be "water lots," because appearing to be so in fact; but were not so in law, because they were bounded by the street and not by the river. 4. The plaintiffs rely upon the decision of the former circuit court for this district in the case of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838. The question in that case was whether the owner of lots in the city of Washington, lying on Rock creek, was entitled to compensation for a wharf and water privilege which had been condemned for the use of the canal company. It was contended on behalf of the latter that the owner of the lots never had any water privilege as appurtenant to them, because they were cut off from the creek by Twenty-eighth street west, and as the streets belonged to the United States, the water privilege belonged to them also. It appeared that Harbaugh, the owner, had built, maintained, and used a wharf in connection with the premises for 30 years without interruption, and that no part of the bank of the creek and no dry land lay west of the street, one-half of which was in the creek. It also appeared that he had bought from the United States, to whom the lots had been allotted in the division of the square between the public and the original proprietor, but the terms of the conveyance from the United States to Harbaugh are not stated.

was argued for the owner that the streets were conveyed to the United States only as highways, and did not deprive the riparian proprietors of their water rights, and reference was made to Nicholas King's title in Burch's Digest, to the wharf regulations of the commissioners in 1795, and to the Maryland act of 1791, c. 45, § 12. The court, it is stated, held that the title of Harbaugh to his wharf was good against the United States, claiming under a private citizen, (R. Peter,) the original proprietor, but gave no reasons for its opinion. No allusion was made by counsel or court to the case of Van Ness v. Mayor, etc., of Washington, supra, which had been decided in 1830, and in which the only point in behalf of the prevailing party, made by counsel in the case in the circuit court, had been ruled the other way. For that reason the judgment cannot be considered as evidence of the law of this district upon the question involved. The question of wharfage had been before the same court in another form in 1829, in the case of Kennedy v. Corp. of Washington, 3 Cranch, C. C. 595. That was an application for a mandamus to compel the corporation to make regulations prescribing the manner of erecting private wharves within the limits of the city, the showing in support of the motion for the rule being that the relator was the purchaser of lot No. 1 in square No. 329; that he had applied to the authorities for leave to build a wharf on that lot, and for directions in regard to the plan and construction of the wharf, all which they had refused. Mr. Wallach, for the corporation, argued that the power of the corporation over the subject was within its discretion, which the court would not control. Jones, on the same side, referred to the opinion of Nicholas King, in Burch's Digest, argued that it appertained to the courts of the several states and of the United States to determine upon these rights, and contended that the power of the commissioners upon the subject ceased to exist by the assumption of jurisdiction by congress, February 27, 1801, (2 St. 103;) the power given to the corporation being only to regulate the manner of erecting private wharves, not to limit the extent of them, or to interfere with the rights of owners of the land adjoining the river. The court refused the mandamus, it is said in the report, for the reasons stated in the argument of Mr. Jones and Mr. Wallach.

Mr.

5. The decision just referred to, in the case of Kennedy's application for a mandamus, explains, probably, some subsequent action of the corporate authorities on the subject of wharfage, on which the appellants rely as evidence and confirmation of their claims. One of the practical difficulties experienced in the matter of building wharves arose from the fact that conflicts between private claimants, and with acknowledged public rights at the termination of streets upon the river, would exist if the wharf rights were extended to the channel between lines prolonged from the sides of the lots. This followed partly because the general course of the channel, measured by its chord, was less by about 280 feet than that of the shore line, and be

cause the streets leading to the river were not parallel with the line of the lots. If any system of improvement, public and private, should be adopted, it would require an adjustment of these conflicts, and the subject became a matter of discussion in the municipal government and in the public press. On April 2, 1835, William Elliott, the surveyor of the city, made a report on the subject to the mayor and corporation. In this report he reviewed the history of the subject from the beginning, and concluded as follows:

"Therefore, from the foregoing authorities and arguments, the following facts are clearly deducible:

"(1) That the channels of navigable rivers of the United States cannot be obstructed; (2) that the openings for the east and west streets, lying on the Potomac river and Rock creek, must not be interrupted, but must be carried to the channel in straight lines; and the openings for the north and south streets, facing on the Anacostia river, must also be left free to the channel; (3) that the power to regulate the docks, wharves, etc., is vested in the corporation of Washington and the agents they may appoint; (4) that no water privilege was specified or sold with the squares or lots, and that Water street was laid down on the plans of the city exhibited at the sales, and would appear to be the bounds of the lots and squares fronting the rivers.

"Having clearly established these powers and rights in the corporation, the following system of wharves and docks is respectfully submitted for consideration: (1) Let Water street be laid down conformably to the plan of the city; (2) let openings of the streets be prolonged to the channel, and in these openings, extending from Water street to the channel, let wharves be built upon piers; (3) let docks be formed in front of the squares.

"The result of this system would be that all the wharves and docks would belong to the city of Washington; that steam-boats and other vessels would have deep water and sufficient room to lie at the end of the wharves or piers, and small craft and boats in the docks, the current of the river would not be interrupted, and the water would flow freely under the wharves, and prevent the accumulation of filth, the source of disease; and the whole system would be perfectly conformable to the original plan of the city as laid down by the commissioners.

Although I consider the above plan the best, and ought to have been adopted at the commencement of the city, yet, having understood that at the sale of the lots facing the rivers there was an implied water privilege sold at the same time, though neither expressed nor defined, this, therefore, would require that the spaces in front of the squares extending to the channel should be considered as water privileges; and that openings left for the streets to the channel should be considered as docks, and belonging to the public; also, that the spaces in front of the intersection of streets facing the rivers, or any other not facing private property, should be considered as belonging to the public, on which public wharves or docks may be built.

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'A section of the last proposed plan may be seen at surveyor's office."

Accordingly, the surveyor submitted a map showing his plan, upon the second hypothesis, that the lots facing Water street were entitled to be recognized as having wharfing privileges, in which he exhibited that street as 100 feet wide in the narrowest part.

On July 13, 1835, the following resolution was considered in the board of common council of the city of Washington:

"Resolved, that the corporation of Washington never has admitted, and cannot, without injury to the general interests of the city, admit, the existence of water rights of individuals' between the Potomac bridge and the Anacostia, and therefore it is inexpedient to adopt any plan which can be construed into an admission of such rights, or to consider any proposition which claims such admission."

This resolution was indefinitely postponed by a majority of one

vote.

Peter Force, a member of the council, well known in the public history of this city and country, by permission, entered on the journal the reasons for his dissent. These reasons were, briefly, that Water street belonged to the United States; that in the original plan of the city, and division and sale of squares and lots, those only were recognized as water lots which were laid off running to the channels of Rock creek, the Potomac river, and the Eastern Branch, respectively, all of which, on that account, were sold by the front foot, while all the others were laid off, bounded by streets and avenues, without any water privileges, and were sold by the square foot; and, among others, that the motion for indefinite postponement of the resolution had been carried by the vote of a member who had a direct personal and pecuniary interest in the assertion of a private right involved in the resolution against that of the public. In the mean time the discussion was transferred to the newspapers,-Mr. Force representing one side of the controversy, and the mayor, Mr. Joseph H. Bradley, the other.

Nothing important seems to have been done by the city council until February 22, 1839, when the following resolutions were adopted, and were approved by the president of the United States:

"Resolutions in relation to the manner in which wharves shall be laid out and constructed on the Potomac river.

"Resolved, etc., that the plan No. 2, prepared by the late William Elliott, in eighteen hundred aud thirty-five, while surveyor of the city of Washington, regulating the manner in which wharves on the Potomac, from the bridge to T street south, and the plan of Water street, shall be laid out, be, and the same is, adopted as the plan to be hereafter followed in laying out the wharves and the streets on the said river, provided the approbation of the president of the United States be obtained thereto.

"Resolved, also, that the wharves hereafter to be constructed between the points specified in the said plan shall be so built as to allow the water to pass freely under them; that is to say, they shall be erected on piers or piles from a wall running the whole distance on the water line of Water street."

But these resolutions decide nothing as to the right, even if the corporate authorities of Washington were competent to do so, which they were not. The resolutions are not, however, even a recognition of the existence of any private right of wharfing, attached to the ownership of lots fronting on the north side of Water street. At the most, they recognize that there may be such rights. In point of law, they merely regulate the mode in which the right shall be exercised, whether private or public, leaving the question of title in each case