Nicholas King prepared a plan or serial map consisting of sixteen sheets in 1803 which the Supreme Court was of opinion in the Morris case, was a legitimate and important piece of evidence in determining the intention of the founders of the National Capital. The dates of preparation of these maps is important for, it will be noted, the agreements with the proprietors and some of the deeds in trust were executed prior to the completion of any map or plan of the proposed city. And, as has been stated, all lands in the proposed city were subjected to the terms and conditions of these agreements and deeds in trust by the Ratifying Act 1791 and the supplemental Act of 1793.
Title to the Potomac River and its tributaries, including the Eastern Branch, and the soil thereunder below the natural ordinary high water mark, is vested in the United States for the benefit of the people. This principle is so well established in law in the District of Columbia that, it is submitted, it may be considered of the dignity of a rule of property. Morris v. United States, 174 U.S. 196, 227, 234, 246, 19 S. Ct. 649, 43 L. Ed. 946; United States v. Belt, 79 U.S.App.D.C. 87, 142 F.2d 761; United States ex rel. Greathouse v. Hurley, 61 App.D.C. 360, 63 F.2d 137, 140, affirmed United States ex rel. Greathouse v. Dern, 289 U.S. 352, 53 S. Ct. 614, 77 L. Ed. 1250; District of Columbia v. Cropley, 23 App.D.C. 232, 244; Smoot Sand & Gravel Corporation v. Washington Airport, 283 U.S. 348, 51 S. Ct. 474, 75 L. Ed. 1109; Marine Railway & Coal Co. v. United States, 257 U.S. 47, 42 S. Ct. 32, 66 L. Ed. 124. The unanimity of opinion of the highest courts in cases involving varying facts, and unequivocal language of the decisions leaves no doubt, and little room for argument on this point.
In United States ex rel. Greathouse v. Dern, supra (289 U.S. 352, 53 S. Ct. 615), the most recent pronouncement of the Supreme Court on this subject, the completeness of the dominion and title of the United States of navigable waters in the District of Columbia was expressed as follows:
'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 1, Sec. 8, cl. 17, 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.'
The common law is controlling in this jurisdiction in the absence of some modification by statute or local decision. In Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 553, 38 L. Ed. 331, the Court stated:
'The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes, or usages of the several colonies and states, or by the constitution and laws of the United States.'
That title to the bed of navigable rivers and the soil thereunder has long been recognized in Maryland, from which the common law of the District is derived. Melvin v. Schlessinger, 138 Md. 337, 340, 113 A. 875; Day v. Day, 22 Md. 530, 537; Sollers v. Sollers, 77 Md. 148; 151, 26 A. 188, 20 L.R.A. 94, 39 Am.St.Rep. 404; Goodsell v. Lawson, 42 Md. 348, 362, 369 et seq.; Linthicum v. Shipley, 140 Md. 96, 116 A. 871; 23 A.L.R. 754. In Day v. Day, supra, the Court stated, 22 Md.at page 537:
'Rivers or streams within the ebb and flow of tide, to high water mark, belong to the public, and in that sense are navigable waters; all the land below high water mark, being as much a part of the jus publicum as the stream itself. The owners of adjacent ground had no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by an express grant from the State.'
A grant by the sovereign to the bed of a public waterway must be in express terms, and with the consent of the legislative department of the Government. Marine Railway & Coal Co. v. United States, 49 App.D.C. 285, 265 F.437, affirmed 257 U.S. 47, 42 S. Ct. 32, 66 L. Ed. 124; Shively v. Bowlby, supra.
The Commissioners were completely without authority to make any conveyance in derogation of the rights and title of the United States to the bed of the Branch below ordinary high water mark. District of Columbia v. Cropley, 23 App.D.C. 232.
The facts and the applicable law converge to show that by the cession to the United States the title to the soil under water below high water mark in the Eastern Branch was in the United States. It seems equally clear that the lots in Square East of Square 664 terminated at the high water mark of the Eastern Branch. The fee titles of the defendants are so limited.
The defendants, and their predecessors in title, took title to the high water mark of the Eastern Branch, and as a result became riparian owners with whatever rights and privileges that appertain to riparian property. United States v. Belt, supra. In considering the nature and extent of riparian rights it must first be observed that local law governs. Shively v. Bowlby, supra.
It is generally recognized that a riparian owner by reason of the adjacency of his land to the water has a natural right to the continued flow of the river in its natural state. Authorities agree that a riparian owner is entitled to accretion or reliction resulting from the gradual and imperceptible operation of natural causes, subject to erosion. The propositions as stated are not in dispute but a controversy exists as to the nature of the right of access from the land to the river and specifically the issue results as to whether or not the defendants and their predecessors in title have and had the right to fill in and wharf out below ordinary high water mark.
Early in the law of England every building or wharf erected without license below high water mark, where the soil is the King's is a purpresture, which could be demolished or seized at the suit of the King. It was an encroachment upon the property of the Sovereign. It was distinguished from a common nuisance that interfered with the rights of the public, as by interference with navigation. The distinction in law is that the sovereign may exercise discretion in causing the abatement of purprestures, but is under a duty to cause the abatement of common nuisances. See Shively v. Bowlby, supra. It would seem that the building of wharves in aid of commerce has been encouraged throughout the years. Indeed in Sec. 12 of the Ratifying Act of December 19, 1791, supra, the Maryland Legislature authorized the Commissioners to license the building of wharves in the Potomac and Eastern Branch and provided that any wharf built without such license shall be a common nuisance. The case of United States v. Belt, supra, was brought under the same 1912 statute and is analogous to the instant case. There the court held that the allottees of lots formerly in Carrollsburg were entitled to riparian rights. The court said (79 U.S.App.D.C. 87, 142 F.2d 767):
'So also there can be no manner of doubt that while the Carrollsburg proprietors of lots binding the highwater line of the Anacostia River continued to own such lots, they were entitled to the riparian rights appurtenant thereto, and that these rights were preserved and passed to the subsequent owners of these lots in the transaction we have referred to. Potomac Steam-Boat Co. v. Upper Pot. S.B. Co., supra, 109 U.S. (672), at page 686, 3 S. Ct. (445), at page 453, 27 A.L.R. 1070. The extent of the right is declared in Baltimore & O.R. Co. v. Chase, 43 Md. 23, to be the right to access to the navigable part of the River, with the right to make a landing, wharf, or pier, subject to such general rules and regulations as the Statemay think proper for the protection of the public. And in turn this right to regulation by the State of Maryland in the public interest, the United States succeeded to in the establishment of the District of Columbia, in consequence of which the common law rights of a riparian owner, within the limits of the District, are subject to change and modification by Act of Congress to the same extent and with the same limitations that change or modification might have been made by Maryland while the land was within its boundaries. In addition, Congress under the commerce clause possesses a paramount power over the navigable waters of the United States in the regulation of commerce and navigation. As a result of these well recognized limitations or subordinations, the right of a riparian proprietor may be properly described as a qualified right (cf.: Greenleaf-Johnson Lbr. Co. v. Garrison, 237 U.S. 251, 35 S. Ct. 551, 59 L. Ed. 939), though it is universally agreed that the right is property and that though it must be enjoyed in subjection to the rights of the public, it cannot arbitrarily be destroyed or impaired.
'But we have no need to discuss this question in detail in the facts of this case, since, as it happens, the United States have now established harbor lines in front of appellees' property and are not threatening to change or modify them * * * .'
In the Potomac Steam-Boat case cited above, the Supreme Court held that the owners of Square No. 472 and Lot 13 in Square No. 504 did not have riparian rights because Water Street intervened between those properties and the Potomac River and the riparian rights attached to fast land adjacent to the River, in that case, Water Street itself. The court said (109 U.S. 672, 3 S. Ct. 451): 'The right of wharfage remained appurtenant to it.'
It has often been held that riparian rights are valuable; that they are property; that the riparian owner has the right to preserve and improve his access to the navigable water. In Baltimore & O.R. Co. v. Chase, 43 Md. 23 the court said:
'These riparian rights founded on the common law are property and are valuable and while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights which once vested, the owner can only be deprived in accordance with the law of the land, and if necessary that they be taken for public use, upon due compensation.'
An examination of the many decisions of state courts indicates the unanimity of judicial thought to the effect that one who has riparian rights may improve his access to the navigable waters as necessary to the full enjoyment of his property and a practical use thereof, and that he is privileged to fill in and build wharves.
Pursuant to the River and Harbor Act of March 3, 1899, 30 Stat. 1121, the Secretary of War established a Bulkhead line and a Pierhead line along the Anacostia River. These lines run in front of Square E. of 664. The bulkhead lines define the limit of solid fill without a permit and the pierhead lines define the limit of piers. There are no threatened or contemplated changes in the harbor lines in the area near the square.
It is generally held that the establishment of a harbor line operates as a license or invitation to fill or wharf out to that line. This legal principle is well stated in Dawson v. Broome, 24 R.I. 359, 53 A. 151, 155 wherein the court announced that:
'The establishment of a harbor line * * * means that riparian proprietors within the line are at liberty to fill and extend their land out to the line. A harbor line is in fact what it purports to be, the line of a harbor. It makes the boundary of a certain part of the public waters which is reserved for a harbor. The part so reserved is to be protected from encroachments. The rest is to be left to be filled and occupied by the riparian proprietors. Its establishment is equivalent to a legislative declaration that navigation will not be straitened or obstructed by any such filling out. * * * We think, however, it would be going too far to hold that the mere establishment of a harbor line conveys all within the line absolutely to the riparian proprietors. This would make all within the line private, and extinguish the public rights of navigation and fishery. We think the establishment of a harbor line, if it is to be construed as a conveyance, is to be construed as a conveyance which at least is subject to those rights, until they are excluded by filling or wharfing out. But it is not necessary for us to go even so far as that in the case at bar. It is enough for the respondents if we hold that the establishment of a harbor line operates as a license or invitation to the riparian proprietor to fill or wharf out to that line.'
Many State decisions announce the principle as stated and at the trial hereof an experienced, capable and expert witness testified that the administrative practice under the River and Harbors Act of 1899 is to consider that the establishment of the harbor lines on the Eastern Branch took the place of permission to fill to the bulkhead line and to build a pier to the pierhead line.
The defendants concede that the title to S Street is in the United States. It remains necessary to consider the contention of the parties with respect to South Capitol Street. This issue must be determined factually. The most persuasive evidence consists of the early maps. Two early engraved plans for the city, prepared by Andrew Ellicott, engraved about 1792 do not show Square East 664. They do show South Capitol Street as terminating North of Square 664 at a street bounding the water. On June 15, 1795, the Commissioners directed James Dermott to prepare a plat of the city. President Washington and Thomas Pickering, Secretary of State, on March 2, 1797, directed a communication to Thomas Beall and John Gantt, Trustees under the deed of trust, to convey to the United States all streets in the city of Washington as they are laid out and delineated in the plan of the city which was annexed to the communication. The plan annexed was the Dermott or so-called Tin Case Map. The plan shows South Capitol Street as terminating at the North line of S Street above Square East of 664, and shows that South Capitol Street did not bound this square on the East nor cut off the riparian rights of lot owners. It also shows the North Boundary line of Square East of 664 as cutting off a part of South Capitol Street.
The Dermott plan is the official map of the city, as approved by the President. In the Morris case, 174 U.S. 256, 19 S. Ct. 649, 43 L. Ed. 946, it was held that the Dermott or Tin Case Map was the approved plan of the city. It is considered controlling as to the South Capitol Street issue. The decision in the Belt case, supra, supports this view and indicates that the Dermott plan controls when it is in conflict with plans shown in other maps. In that case the court said:
'Major Ellicott was succeeded by James Dermott after the Carrollsburg agreement. He was directed by the Commissioners to make a resurvey and plat of the lands within that town. This new layout he was directed to superimpose on the large plat to embrace when completed the entire area of the new City. This he did and his plat, with streets and squares and lots shown thereon, was adopted by the President and became the officially approved map of the City of Washington.'
The conclusion is inescapable that the founders did not intend to extend South Capitol Street beyond the North line of S Street and that they had no thought of cutting off the riparian rights of the lot owners. It seems clear from the deeds in trust and from all relevant evidence that it was intended to lay out the part of the city which formerly was Carrollsburg in a manner which would preserve to the owners of Carrollsburg lots the riparian rights appurtenant to the lots which they had surrendered. It was the purpose that they should be allotted new lots fronting on the water with no street intervening between such lots and the navigable water. It must therefore follow that the ownership of the lots of the defendants is attended by riparian rights. These conclusions disprove plaintiff's contention that riparian rights are possessed by plaintiff at the termination of South Capitol Street.
The defendants have acquired ownership of and title to the land reclaimed by filling in below high water mark and landward of the bulkhead line. This results from a proper exercise of riparian rights by defendants and their predecessors in title. The title to such reclaimed land is one which may be encumbered or conveyed by the defendants and is subject to taxation by the taxing authorities. The defendants may not be deprived of their property therein except for public purposes and then only upon due process of law and with just compensation. Illinois Central R. Co. v. State of Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018; Dutton v. Strong, 1 Black 23, 66 U.S. 23, 17 L. Ed. 29; Louisville & Nashville R. Co. v. West Coast Naval Stores Co., 198 U.S. 483, 25 S. Ct. 745, 49 L. Ed. 1135; Weems Steamboat Co. of Baltimore City v. People's Steamboat Co., 214 U.S. 345, 29 S. Ct. 661, 53 L. Ed. 1024, 16 Ann.Cas. 1222; Nichols v. Lewis, 15 Conn. 137, 139. See also, Lockwood v. New York & New Haven R. Co., 37 Conn. 387, in which it is held that the principles governing owners of reclaimed land are the same as those governing the ownership of accreted land. Heiney v. Nolan, 75 N.J.L. 397, 67 A. 1008.
Controversy exists as to who must carry the burden of proof. The statute under which this case proceeds seems to place the burden of proof on the defendants. It is not an important question in view of the announcements herein, since the defendants have successfully born the burden.
The court will request a conference with counsel in the case with respect to the manner in which the Congressional mandate may be carried out in ascertaining the value of property rights possessed by the defendants and adverse to the claims of the United States.
Counsel for defendants will submit for settlement findings of fact, conclusions of law, and a judgment form consistent herewith.
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