The opinion of the court was delivered by: LETTS
This is an action brought by the United States under special Act of Congress approved April 27, 1912, 37 Stat. 93, for the purpose of establishing and clarifying the title to waterfront land on the Eastern Branch of Anacostia River (hereinafter designated as Eastern Branch) and to the adjacent shores, bed and waters of the river; to have a judicial determination of the nature and extent of any right, title and interest adverse to the title of the United States; and to ascertain the value of any such adverse right, title or interest.
The above-mentioned Act of Congress provides that the Attorney-General, when deemed proper, shall institute in this Court a suit or suits in the nature of a bill in equity 'for the purpose of establishing and making clear the title of the United States' to waterfront lands in the District of Columbia; that there shall be named as parties defendant all 'persons and corporations, or others,' who have or claim to have any right, title, interest or claim to said land and adjacent water; that the defendants, after service of process, shall answer, set forth and maintain any right or claim they may have in the premises; that this Court shall have full power and jurisdiction to determine every question of such right, title or claim; and that if it shall be the determination of the Court that there exists any right, title, interest or claim adverse to the complete title of the United States, the Court shall forthwith and in a summary way ascertain the value of such adverse right or claim so that a report thereof shall be made to Congress.
The land and adjacent waters involved are described in the complaint as bounded on the West by Water Street, S.W., on the North and South by the North lines of S. Street and T Street, S.W., respectively, and prolongations thereof to the 'line of maximum depth' of the Eastern Branch; and on the East, by the 'line of maximum depth' of the Branch. The land consists of Original Square East of 664 in the City of Washington, with adjacent portions of South Capitol and S. Streets, S.W., and with adjacent artificial accretion or man-made fill. The parties are agreed and the evidence discloses that at the time of the laying out of the City of Washington and in the year 1794, the lots in Square East of 664 were of irregular depth ranging from 61 feet to 81 feet between the East line of Water Street and the then ordinary high water mark of the Eastern Branch. Since that time, the fast lands for the full width of the lots have been extended by artificial accretion or man-made fill Eastwardly into the Branch to the bulkhead line established by the Secretary of War for distances of approximately 366 feet along the South line of S Street and approximately 323 feet along the North line of T Street. A wharf approximately 65 feet wide and from 115 to 130 feet long projects into the river along the South line of S Street.
This action was instituted by the Government on January 30, 1913 but for reasons not disclosed of record, prosecution has been deferred. On May 29, 1946, the present defendants Lottie May Martin and The Smoot Sand and Gravel Corporation moved that they be substituted for all the original defendants, excepting James Martin. The substitution was allowed. The affidavit of John W. Gulledge, filed in support of the motion, discloses that since the commencement of this action Lottie May Martin has acquired the right and interest of the previous owners of Lots 1 and 2, and of James Martin to Lots 6, 7 and 8; that James Martin has acquired the right and interest to Lot 3; and that the Smoot Sand and Gravel Corporation has acquired Lots 4 and 5. The parties have stipulated that whatever right, title and interest was acquired by the original allottees of the lots in the square has become vested in the present defendants, as follows: Lots 1, 2, 6, 7 and 8, Lottie May Martin; Lot 3, James Martin; and Lots 4 and 5, The Smoot Sand and Gravel Corporation.
Plaintiff concedes that defendants are vested with the fee simple title to the lots in Square East of 664 to the ordinary high water mark as it existed in the year 1794, with riparian rights. It is contended, however, that the United States is vested with full control, title and dominion of the Eastern Branch and its subjacent soil below the said high water mark; that the riparian rights of the defendants are limited to (1) a right to the continued flow of the river in its natural condition, (2) the right to natural accretion and reliction, subject to the result of any erosion, and (3) a right of access from their lands to the river analogous to that of an abutter on a highway; that the defendants and their predecessors neither have nor had a vested right to fill in or wharf below the natural high water mark of the river; that the defendants are not entitled to compensation for any filled land below the said high water mark; and that the United States is vested with full control, title and dominion of S Street, S.W., and South Capitol Street and of all natural or artificial accretion to such streets.
The defendants contend that they have title to the channel of the Eastern Branch either by virtue of the original allotments to their predecessors at the time of laying out of the City or by Virtue of their riparian rights.
In view of the issues raised in this case, it may be well to advert briefly to the historical background of the founding of the City of Washington. The Charter of June 20, 1632, from Charles I, King of England, granted to Cecilius Calvert, First Lord Proprietary of Maryland, all lands now embraced with the District of Columbia and the State of Maryland, including the property and dominion of lands under navigable waters, together with the powers of government. By this charter, the property and dominion in navigable waters, and in the soil under them, passed as a part of the prerogative rights incidental to the political powers conferred on the Lord Proprietary, that is, as a concomitant regalia, to be held in trust for the common use and benefit of the whole community, and not as private property for the individual gain of the patentee. Upon the American Revolution, the people of Maryland themselves became sovereign and in that character succeeded to all rights of the Lord Proprietary, and of the King and Parliament. These rights included the absolute right to all navigable waters and the soil under them, for common use by the people, subject only to the rights surrendered by the Constitution to the Federal Government. This right of dominion and property of navigable waters and the soil under them in the District of Columbia became vested in the United States, as sovereign, by the cession of the territory by the State of Maryland.
The State of Maryland, by Act of December 23, 1788, Md. Laws 1788, Ch. 46, D.C. Code 1940, P. XXVIII, ceded to the United States the territory which is now the District of Columbia. By Act of Congress, approved July 16, 1790, 1 Stat. 130, Ch. 28, D.C. Code 1940, P. XXXI, as amended by Act of Congress approved March 3, 1791, 1 Stat. 214, Ch. 17, D.C. Code 1940, P. XXXII, the cession was accepted and the President was authorized to appoint three Commissioners, who should, under the direction of the President, survey, define and locate the district for the permanent seat of government. The Commissioners were empowered to purchase or accept such quantity of land within the district as the President should deem proper for the use of the United States, and According to such plan as the President should approve, and the Commissioners were required to provide suitable buildings for the accommodation of the public offices prior to the first Monday in December, 1800, at which time the seat of the Government should be transferred to the Federal City. By Proclamation of January 22, 1791 ( Morris v. United States, 174 U.S. 196, 19 S. Ct. 649, 43 L. Ed. 946) and Proclamations of January 24 and March 30, 1791, D.C. Code 1940, PP. XXXII and XXXIII, the President located and defined the limits of the District of Columbia and appointed Commissioners who, with their successors, located and laid out the City of Washington.
The general boundaries of the proposed city were the Eastern Branch, the Potomac River, Rock Creek to a point near P Street, N.W., then following what is now Florida Avenue to 15th. and H Streets, N.E., then South to C Street, N.E., then East to 20th. Street, then South to the Eastern Branch. This area at the time was mostly farm land owned principally by nineteen owners. However, two towns, Carrollsburg and Hamburg, had been established within the area. Carollsburg was subdivided into streets and approximately 270 lots in 1770 and was bounded generally by the Eastern Branch, St. James Creek and by a line near what is now N Street, South. The lots were disposed of by lottery. Hamburg was located on the Potomac approximately between 18th. and 23rd. Streets, N.W. Obviously the lot owners in Carrollsburg and Hamburg were in a different position than the owners of farm lands since the owns were established with streets and alleys dedicated for public use, while the owners of farm lands donated a portion of their lands for street purposes. Accordingly, the agreements differed in that the lot owners in Carrollsburg and Hamburg were to receive one-half the area of their lots with no allowance for streets.
Meanwhile, negotiations were had between the President, the Commissioners, and the principal owners of property within the district, looking to the establishment of the Federal City. By an agreement of March 30, 1791, proprietors of lots in Carrollsburg, including Daniel Carroll and Notley Young, agreed as follows:
'We, the subscribers holding or entitled to lots in Carrollsburgh, agree with each other and with the President of the United States that the lots and land we hold or are entitled to in Carrolsburgh shall be subject to be laid out at the pleasure of the President as part of the Federal City, and that we will receive one half of the quantity of our respective lots as near their present situation as may agree with the new plan, and where we may be entitled on the new plan to one entire lot, or do not agree with the President, Commissioners or other person or persons acting on behalf of the public on an adjustment of our interest, we agree that there shall be a sale of the lots in which we may be interested respectively, and the produce thereof in money or securities shall be equally divided, one half as a donation for the use of the United States under the act of Congress, the other half to ourselves respectively. And we engage to make conveyances of our respective lots and lands aforesaid to trustees or otherwise whereby to relinquish our rights to the said lots and lands, as the President or such Commissioners or persons acting as aforesaid shall direct, to secure to the United States the donation intended by this agreement.'
Similar agreements were metered into with the owners of lots in the Town of Hamburg. Agreements of similar effect were entered into with the owners of farm lands within the area of the proposed city, including Daniel Carroll and Notley Young, but these agreements provided that the proprietors would receive no compensation for streets to be laid out and that the President might retain any number of squares he might think proper for public use with payment to the owners at the rate of twenty-five pounds per acre. All of these agreements, it may be noted, provided for the equal division of building lots in the new city between the original proprietors and the public.
Subsequently, in pursuance of these agreements, proprietors of lots in Carrollsburg, including Daniel Carroll and Notley Young, executed deeds in trust to Thomas Beall and John Marshall Gantt, as Trustees, conveying their lands to be laid out for a Federal City 'with such streets, squares, parcels, and lots as the President of the United States for the time being hath approved or shall approve.' These lot owners were to have assigned and conveyed to them one-half the quantity of their original lots in 'as near the old situations as may be' or failing this, to have satisfaction in other land in the City by agreement with the Commissioners, or in the event of a disagreement with the Commissioners, to have just compensation in money.
On December 19, 1791, an additional Act Md. Laws 1791, Ch. 45, D.C. Code 1940, P. XXVIII, was passed, ratifying the previous act of cession and making provisions facilitating the laying out of the Federal City. This Act and the supplemental Act of 1793, Md. Laws 1793, Ch. 58; D.C. Code 1940, P. XXXI, have an important bearing on the determination of the issues in this case, and therefore will be discussed in greater detail. The preamble of the Ratifying Act of 1791 recites that the President by Proclamation had located the District of Columbia; that Notley Young, Daniel Carroll and many other proprietors, including lot owners in Carrollsburg and hamburg, had entered into agreements and executed deeds in trust subjecting their lands to be laid out anew as a city but that some of the proprietors 'from imbecility and other causes' had not come into any agreement; and that it was deemed by the legislature just and expedient that all the lands within the proposed city should contribute, in due proportion, in the means which greatly enhanced the values of the whole. After these recitations, the Act ratifies the cession and relinquishes to the United States full and absolute right and jurisdiction 'as well of soil as of persons' in the District, provided that rights of property of individuals in the soil should not be affected except by transfer by such individuals. Section 3 of the Act provides that all lands within the limits of Carrollsburg and Hamburg owned by the State or by persons under a variety of disabilities, including absence from the State, are subjected to the terms and conditions of the agreements and deeds in trust of Notley Young, Daniel Carroll and others, and that as to persons under disability or absent from the State, the Commissioners, after advertisement, might assign or allot the share of such proprietors as near the old situation as may be, in Carrollsburg and Hamburg.
Section 4 of the Act provides for the direct condemnation of the lands of any proprietor who within three months refused to convey his lands to the trustees on the terms and conditions of the deeds in trust ...