porations who may claim to have any such right, title or interest."

The third section provides that the cause "shall proceed with all practicable expedition to a final determination by the said court of all rights drawn in question therein; and that the said court shall have full power and jurisdiction by its decree to determine every question of right, title, interest or claim arising in the premises, and to vacate, annul, set aside or confirm any claim of any character arising or set forth in the premises."

The fourth section provides that if, on the final hearing of said cause, the said court "shall be of opinion that there exists any right, title or interest in the land or water in this act mentioned in any person or corporation adverse to the complete and paramount right of the United States, the said court shall forthwith and in a summary way proceed to ascertain the value of any such right, title, interest or claim, exclusive of the value of any improvement to the property covered by such right, title or interest made by or under the authority of the United States, and report thereof shall be made to congress."

It may be well here to mention that it is disclosed in the record that the wharves owned by the Potomac Steamboat Company opposite square 472, and other wharves on the Potomac, were rented by the government during the Civil War, and that rent was paid for them monthly by the government during a period of several years. It is not to be supposed that the United States are now estopped by such conduct, but the fact is worthy of mention, as going to show that the government did not regard those who owned the wharves, and to whom the rent was paid, as trespassers, or that the structures were an obstruction to navigation and unlawfully there.

Such recognition by the government of a right on the part of the wharf owners to receive rent, and the long period in which congress has permitted private parties to expend money in the erection and repair of wharves and warehouses for the accommodation of the public, may be well supposed to have influenced congress in providing for an equitable appraisement of the value of interests or claims thus arising.

In the twelfth section of the bill of complaint the United States "disclaim in this suit seeking to establish its title to any of the wharves included in the area described in paragraph 3 of this bill, and claim title only to the land and water upon and in which said wharves are built, leaving the question of the ownership of the wharves proper, where that is a matter of dispute, to be decided in any other appropriate proceeding." Apparently acquiescing in this allegation or disclaimer, the appellants put in no evidence as to the value of their improvements, and sought no finding on that subject in the court below, but stood, both there and in this court, on their claims of absolute title.

An examination, however, of the language of the act of 1886, hereinbefore quoted, discloses that it was the plain purpose of congress that the court should make "a final determination of all rights drawn in question," and should "in a summary way proceed to ascertain the value of any such right, title, interest, or claim."

We think it was not competent for the counsel of the respective parties to disregard this purpose of congress and to withhold a part of the controversy from the action of the court.

It is not disclosed in this record whether it is the design of the government, on taking possession of the wharves and buildings belonging to the appellants, to continue them in the use of the public or to supersede them by other improvements. Whatever may be the course pursued in that respect, it should not deprive the appellants of the right conferred upon them by the act of congress to have the value of their respective rights, titles, interests, or claims ascertained and awarded them. As to the method to be pursued in valuing property of so peculiar a character, the cases of Monongahela Nav. Co. v. U. S., 148 U. s. 312, 13 Sup. Ct. 622, and Hetzel v. Railroad Co., 169 U. S. 26, 18 Sup. Ct. 255, may be usefully referred to.

While, therefore, we affirm the decree of the court below as to the claims of the Marshall heirs, and as to the Kidwell patent, and as to the several claims to riparian rights as appurtenant to lots bounded on the south by Water street, we remand the case to the court below for further proceedings in ac cordance with this opinion; and it is so ordered.

Mr. Justice GRAY and Mr. Justice Mc KENNA were not present at the argument, and took no part in the decision.

Mr. Justice WHITE (dissenting).

The court holds that the owners of lots fronting on the Potomac river who are impleaded in this record have no riparian rights appurtenant or attached to such lots, and that they never possessed rights of that description.

This conclusion rests primarily upon a finding of fact; that is, that it was the intention of the founders of the city that a street should bind the city on the entire water front, which street should be the exclusive property of the public, thus cutting off all the lot owners facing the river from connection therewith. Applying to this premise of fact the legal principle that, where property is separated from the water by land belonging to some one else, no riparian rights attach to the land of the former, it is held that the lot owners before the court have no riparian privileges which the government of the United States is in any way bound to respect.

Lest the precise theory may not be accurately conveyed, the clear statement thereof contained in the opinion is quoted, viz.:

"Our examination of the evidence has led us to the conclusion that it was the intention of the founders of the city of Washington to locate it upon the bank or shore of the Potomac river, and to bound it by a street or levee, so as to secure to the inhabitants and those engaged in commerce free access to the navigable water, and that such intention has never been departed from."

Again, at the end of the review of the evidence following the above extract, the court states as follows:

"The conclusion is warranted that, from the first conception of the federal city, the establishment of a public street bounding the city on south, and to be known as Water street, was intended, and that such intention has never been departed from.

"With this conclusion reached, it follows that the holders of lots and squares abutting on the line of Water street are not entitled to riparian rights; nor are they entitled to rights of private property in the waters or the reclaimed lands lying between Water street and the navigable channels of the river."

From the legal proposition that, where property is separated from a stream by land belonging to another person, such property is not abutting property, and hence not entitled to riparian rights, I do not dissent. I cannot, however, bring my mind to the conclusion that it was ever contemplated in the foundation of the city of Washington that there should be established a street on the water front so as to cut off the riparian rights of the lot holders. On the contrary, my examination of the record has forced me to the conclusion that, from the legislation by which the city of Washington was founded, from the nature of the contracts made by the owners of the land upon which the city is situated, and from the subsequent statutory provisions relating to the foundation of the city, and their practical execution, it was understood and agreed that riparian rights should attach to the lots fronting on the river, and that any proposed street actually projected, or which it was contemplated might ultimately be established, was designed to be subordinate to the riparian rights of the lot holders, and was in no wise intended injuriously to impair or affect the same. It also, in my opinion, clearly appears that this result was understood by the lot owners. was contemplated by the founders, was approved by legislation, and was sanctioned by a long course of administrative dealing ripening into possession in favor of the lot holders, to such a degree that to now hold that they are not entitled to riparian rights would, as I understand the record, amount to a denial of obvious rights of property. Indeed, to disregard the riparian rights of the lot owners as shown by the record, it seems to me, will be equivalent to confiscation, and that in reason it cannot be done without imputing bad faith to the illustrious men who so nobly conceived and so admira

bly executed the foundation of the federal city. Of course, I say this with the diffidence begotten from the fact that the court takes a different view of the record, which therefore admonishes me that, however firm may be my convictions on the subject, there is some reason which has escaped my apprehension.

Even if it be conceded that the record established that the intention of the founders was to bind the city towards the water by a street which would separate the land of the lot holders from the river, and that the fee of such street was to be in the public, such concession would not be conclusive in this case; for the record, as I read it, establishes such conclusive equities arising from the conduct of the government in all its departments, in its dealings with the lot holders and the grantees of the government, and those holding under them, as to con-2 clusively estop the government from now asserting any real or supposed technical rule of law so as to cut off rights of private property which the government itself has solemnly avouched, upon the faith of which persons have dealt with it, and from which dealings the nation has reaped an abundant reward.

Before approaching the facts, I eliminate propositions which seem irrelevant, and the consideration of which may serve to confuse the issue. Let it be at once conceded, arguendo, as found by the court, that whether riparian rights exist does not depend upon deciding whether one or the other of the particular maps or plans of the city is to be controlling; for, in my view of the record, the riparian rights of the lot holders will be clearly shown to exist, whatever plan of the city may be considered. For the purposes, then, of this dissent, it is not at all questioned that the several plans of the city, referred to in the opinion of the court, are to be treated each as progressive steps in the evolution of the original conception of the city, and therefore are each entitled to be considered, without causing one to abrogate the efficacy of the other, except where there is an essential conflict. It is also deemed unnecessary to refer to the events which led up to the selection of the sites of other cities (for instance, Philadelphia, New Orleans, Pittsburgh, and Cincinnati, decisions respecting which have been referred to), because, in my judgment, the existence of the riparian rights in the city of Washington depends upon the proceedings and legislation with reference to the city of Washington, and not to wholly dissimilar proceedings in relation to the foundation of other cities. I come, then, to an examination of the record as to the foundation of the city of Washington. In doing so,-in order to avoid repetition, and subserve, as far as I can, clearness of statement,-the subject is divided into three distinct epochs: First, that involving the conception of the city, and the steps preparatory

to its foundation, with the cessions by Maryland and Virginia of sovereignty over the land which was to form the federal district, down to and including the 19th of December, 1791, when the general assembly of Maryland passed an act ratifying the previous cession and conferring certain powers upon the commissioners, etc.; second, the formative period of the city, in which the initial steps taken in the period just stated were in a large measure carried into execution, and this embraces the period from the Maryland act of 1791 down to and including the actual transfer and establishment of the seat of government in the city of Washington; and, third, the events subsequent to the last stated period.

1. Events connected with the conception of the city, and the steps preparatory to its foundation, down to and including the statute of Maryland of December 19, 1791.

The cessions by Maryland and Virginia, in 1788 and 1789, of the territory intended for the seat of government of the United States, need not be recapitulated, as they are fully stated in the opinion of the court. The acceptance by congress, in 1790, of the cessions just mentioned, is also stated fully In the opinion of the court. It is important, however, in considering this, to bear in mind a few salient facts: First, that, while accepting the cessions, it was provided that the seat of the Federal government should not be removed to the proposed capital until more than 10 years thereafter, that is, the first Monday of December in the year 1800; second, that, "until the time fixed for the removal thereto," and until congress should by law otherwise provide, the operation of the laws of the state within the district should not be affected by the acceptance by congress; third, while the act empowered the president to appoint three commissioners, who should, under his direction, define and limit the district, and conferred upon the commissioners authority to purchase or accept such quantity of land as the president might deem proper, and to provide suitable buildings for the occupation of congress and of the president, and for the public offices of the government, no appropriation was contained in the act for these essential purposes. On the contrary, the only means provided by the act was the authority conferred to accept grants of money or land for the purposes designated in the act.

The controversy which preceded the selection by congress of the district ceded by Virginia and Maryland, in order to establish therein the capital of the nation, is portrayed in the opinion of the court, and, indeed, if it were not, it is mirrored in the provisions of the act of acceptance already referred to; for, weighing those provisions, the conclusion cannot be escaped that an acceptance by congress which left the territory ceded under the control of the ceding states for a period of 10 years, and made no provision whatever, by appropriation of mon

ey, for the establishment of the city, affixed to the act of acceptance a provisional character depending upon the successful accomplishment by Washington of the plan for the foundation of the capital which he had so fervently advocated,-in other words, that the accepting act devolved upon President Washington the arduous duty of bringing into being, within 10 years, the establishment of the capital, and of securing the means for constructing therein all the necessary buildings for the use of the government, without the appropriation of one dollar of the public money. To the great responsibility thus imposed upon him, Washington at once addressed himself with that intelligence and foresight which characterized his every act. On January 17, 1791, he appointed as the commissioners to execute the provisions of the act of congress, Thomas Johnson, Daniel Carroll, and David Stuart. The first two were owners of land within the limits of the proposed city. Mr. Johnson, after his designation as a commissioner, was, in 1791, appointed an associate justice of this court; and, although he qualified as such, he still continued to serve as commissioner during and until after he had resigned his judicial office.

By the spring of 1791 the president had finally determined upon the precise situation of the proposed capital, locating it on the banks of the Potomac, within the ceded district, at the point where the city of Washington is now situated. The exact position of the land where the city was to be established is shown by the map annexed to the opinion of the court.

A casual examination of this map discloses that the proposed city began on the banks of the Potomac, at Rock Creek, separating, it at that point from Georgetown, following along the course of the river to where the? Eastern Branch emptied into the Potomac, and extending some distance along the banks of the Eastern Branch. It also shows that all the land fronting on the water within the designated limits was farming land, except at two points,-the one, where the town of Hamburgh (sometimes called "Funkstown") was located, not far from Georgetown, and the other, where the town of Carrollsburgh was situated, on the Eastern Branch. All the farming land fronting on the river and Eastern Branch was owned by Robert Peter, David Burns, Notley Young, Daniel Carroll, William Prout, Abraham Young, George Walker, and William Young.

It is conceded that, at the time the city was located on the territory thus selected, the owners of all the farming land fronting on the water were entitled, under the law of Maryland, to riparian privileges, as appurtenant to their ownership, and that the same right belonged to the owners of lots fronting on the water in the two towns of Hamburgh and Carrollsburgh. It is, moreover, indisputably established that, at the time the se

lection was made, some of the lot owners, by wharves or otherwise, were actually enjoying the riparian rights appurtenant to their property. Indeed, an inspection of the map already annexed makes it clear that the lots in Hamburgh and Carrollsburgh ran down to the water's edge, and in some instances extended into the water.

A few months after the appointment of the commissioners, in March, 1791, in order to aid in the establishment of the city, and to procure the funds wherewith to execute the duties imposed by the act of congress, through the influence of President Washington most of the larger proprietors of the land embraced within the limits of the city executed an agreement, binding themselves to convey their lands, for the purposes of the federal city, to such persons as the president might appoint, expressly, however, excepting from the operation of the agreement any lots which the subscribers might own in the towns of Hamburgh and Carrollsburgh. The main purposes of this contract were concisely expressed by President Washington in a letter to Mr. Jefferson, then secretary of state, of date March 31, 1791, inclosing the proclamation fixing the boundary lines of the federal district. He said:

"The land is ceded to the public on condition that, when the whole shall be surveyed and laid off as a city (which Major L'Enfant is now directed to do), the present proprietors shall retain every other lot,-and for such part of the land as may be taken for public use, for squares, walks, etc., they shall be allowed at the rate of twenty-five pounds per acre,— the public having the right to reserve such parts of the wood on the land as may be thought necessary to be preserved for ornament. The landholders to have the use and profits of all the grounds until the city is laid off into lots, and sale is made of those lots, which, by this agreement, become public property. Nothing is to be allowed for the ground which may be occupied as streets or alleys."

Subsequently, in order to carry out the agreement, the lot owners conveyed their lands to trustees. The draft of the conveyances, which were executed on June 28, 1791, there is every reason to believe was prepared by Commissioner Johnson.

Several of the conveyances are set out in full in the opinion of the court. Suffice it to say that the land was conveyed to the trustees by described boundaries, with the appurtenances. Besides embodying the provisions contained in the previous agreement, the deeds also contained other provisions material to be noticed. Thus, in effect, the portion of the land conveyed which was to inure to the benefit of the public was divided into two classes: First, the public reservations, streets, and alleys, not intended to be disposed of for purposes of profit, but retained for the public use; second, the share of the public in the building lots (one-half) intended as a donation. The 19 S.C.---44

land embraced in the first class was to be conveyed by the president to the commissioners for the time being appointed under the act of congress of 1790, "for the use of the United States forever." The lands included in the second class were stipulated to be sold, and the proceeds applied as a* grant of money, etc., but the trustees were to retain the title, and themselves execute deeds to purchasers of the public lots.

As already stated, in the preliminary agreements, and the conveyances to trustees executed by the larger proprietors, their lots situated in Carrollsburgh and Hamburgh were excepted. On February 21, 1791, a portion of the proprietors of lots in Hamburgh executed an agreement binding themselves to sell their lots in that town to the president of the United States or to such commissioners as he might appoint. None of these lots would seem to have been situated on or near the river, and the agreement may be dismissed from view. On March 30, 1791, an agreement was executed by certain lot owners in Carrollsburgh, Commissioners Johnson and Carroll being among the number. It was stipulated that the lots of the subscribers should be subject to be laid out as part of the federal city, each subscriber donated one-half of his lots, and stipulated that his half should be assigned to him in like situation as before; it being moreover provided that, in the event of a disagreement between the owners and the president as to the allotments made to them, a sale should be made of the lots, and the proceeds be equally divided. A copy of the agreement is set out in the margin.1 *The contracts just referred to embraced all the territory included within the proposed city, except certain lots in Carrollsburgh and Hamburgh, the owners of which had entered into no contract, and also certain lots in these towns owned by nonresidents and others who were incapable, from infancy, coverture, or imbecility, to consent to a sale or division of their lots.

1 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 Carrollsburgh 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 the Quantity of our respective Lots as near their present Situation as may agree with the new plan and where we may be entitled now to only one Lot or otherwise not entitled on the new plan to one entire lot or do not agree with the president, Commissioners or other person or persons acting on the part 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 af'd to Trustees or otherwise whereby to relinquish our rights to the said Lots & Lands as the president or such commrs. or persons acting as af'd shall direct to secure to the United States the Donation intended by this Agreement.

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