Opinion of the Court.

proprietor, but gave no reasons for its opinion. No allusion was made by counsel or court to the case of Van Ness. v. Mayor, &c., of Washington, 4 Pet. 232, 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. Corporation 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, and 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 of 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. Mr. Jones, on the same side, referred to the opinion of N. 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 27th, 1801, 2 Stat. 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 right 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.

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 con

Opinion of the Court.

flicts 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 because 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 2d, 1835, William Elliot, 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, &c., 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,

Opinion of the Court.

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 steamboats 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.

"A section of the last proposed plan may be seen at the 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 one hundred feet wide in the narrowest part.

On July 13th, 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 admis

Opinion of the Court.

sion 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 meantime 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 22d, 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, &c., That the plan No. 2, prepared by the late William Elliot, in eighteen hundred and 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.

Dissenting Opinion: Miller, Waite, Gray, JJ.

"Resolved, also, That the wharves hercafter 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 regu late the mode in which the right shall be exercised, whether private or public, leaving the question as to title, in each case, to be judicially decided; for that was the extent of the jurisdiction which the corporation of Washington had over the subject.

To notice further the many items of evidence which are contained in the record, and have been referred to by counsel in learned and laborious arguments, would prolong this opinion to an unnecessary and inexcusable length. Enough has been said to show that the rights of the parties respectively stand upon the legal effect of the original documents of title. According to them, as we have shown and now decide, the riparian rights claimed by the appellants, which originally were appurtenant to the land of Notley Young by virtue of its adjoining the Potomac river, passed to the United States by the conveyance which vested in them the ownership of the land on which Water street was laid out and has been built.

The decree below, therefore, was right, and it is accordingly

Affirmed.

MR. JUSTICE BRADLEY did not sit in these cases.

MR. JUSTICE MILLER, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE GRAY, dissenting.

In these cases the Chief Justice, Mr. Justice Gray, and myself do not agree with the judgment of the court. We concur in nearly all that is said in the opinion, and in the general prop