Potomac Steam-Boat Company v. Upper Potomac Steam-Boat Company/Dissent Miller

MILLER, J., 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 proposition that where a town lot or other land is bounded on a street or road, or other highway, the fee to which is in some other person than the lot-owner, his rights as a landowner do not extend beyond the street, and in case the street occupies the bank of a river or other water way, no riparian rights attach to the lot or its owner. But we think the court has erred in the application of this doctrine to the present case by failing to give due weight to one or two considerations which we shall mention.

1. Notley Young was the original and sole owner in fee-simple of that part of the land on which Washington city was laid out, which includes the locus in quo, and there is no question that this ownership included the right to erect wharves on it on the Potomac river, where the wharf now in contest is constructed. In pursuance of the scheme by which a city with streets, lots, and squares was laid out in this land, he conveyed it in trust to Beall and Gantt. They were to lay it out into streets, squares, and lots. When this was done, the title in fee of the streets, as well as of such squares as were to be reserved for public uses, was to vest in the United States. Of all this property, after that was done, there was to be a fair and equal division between Young and the government, and Young's part was to be conveyed to him, and the other half to commissioners to be named by the president. The riparian rights of land-owners on the Potomac river were understood at that time as well or perhaps better than they are now, and the value attached then, and especially to the right to construct wharves, is shown clearly by the record, and by the act of the legislature of Maryland of December 19, 1791, cited in the beginning of the court's opinion. It therefore could not have escaped attention if the entire water way of the river, and the right of approach to it, and use of it in regard to wharves and landing-places, was vested exclusively in the United States, that no equal division was made of this important right, unless it was by the right attached to each lot which, but for Water street would be bounded by the river. No equivalent is given to Young for this valuable right, on the supposition that it all vested in the United States; no epxress words are used conveying it to the United States or dedicating it to the public. It cannot be successfully maintained that the right attaches as appurtenant to the street. The uses of a street, and of a wharf are entirely different, and while a dedication of a street to public use may not be inconsistent with the use of a part of it for a landing-place, it cannot be said to have as appurtenant to it a right to build a wharf into the river. If such a street had a definite width, it must happen that there would, by reason of the irregular curvature of the river, be detached pieces of land between it and the water. To whom did this land belong, unless to the lot which would embrace it if its lines were extended to the water? And if the lot did not embrace it, what equal division of this valuable land has ever been made with Mr. Young? As it was the duty of the trustees to divide the whole land, it will be presumed that they did it, and that this was their mode of doing it.

The cases of Doane v. Broad Street Ass'n, 6 Mass. 332, and Hathaway v. Wilson, 123 Mass. 359, are directly in point. In the former case, a partition was made, under which the parties claimed, and it was insisted that certain flats, which were the subject of the contest, did not pass as appurtenant to a wharf allotted to one of the parties, because both the wharf and the flats were land, and land cannot pass as appurtenant to land. But the court said that though the flats were not specifically mentioned, yet the duty of the commissioners to partition them, and their relation to the wharf, which could not be used without passing over them, led to the fair inference that on the partition they were intended to pass as part of the wharf property.

2. This view is confirmed by the language of the commissioners, who made the division with Young, in the certificate which they gave him. This was not in form, a regular deed of conveyance, but is clearly intended to define the square or lots which fell to him in the division, and to remit him for his ownership to his original title, and for the nature of that ownership to the surrounding circumstances. Take square No. 472, one of those now in controversy, the certificate says that 'the whole of said square shall remain to the said Notley Young, agreeably to the deed of trust concerning lands in the said city.' Here is a plain remission to his original title and right, which, but for Water street, must include riparian rights also. And though this certificate is accompanied by a plat which shows Water street as lying between the square and the river, we are not able to see that this circumstance excludes the original riparian rights of Young, in the absence of any evidence that those rights were allotted to the government in the partition, or that Young anywhere received an equivalent for those rights unless he obtained it by this statement, that the 'square shall remain to Young agreeably to the deed of trust made by him.' No such deed was executed by the commissioners to purchasers of lots from the United States.

This view of the matter was taken by Judge CRANCH in the ease of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838, and though the case is not fully argued by the court, the eminent ability of the judge who decided it, and his well-known accuracy as a reporter, and his knowledge of the local laws and customs of the city of Washington, entitle it to very great weight, as what he intended to decide is quite clear.

The careful and elaborate letter of the commissioners to the president, of July 24, 1795, which states that 'no wharves, except by the public, can be erected on the waters opposite the public appropriations, or on the streets at right angles with the waters;' but 'with respect to the private property on the water' lays down regulations by which 'proprietors of property lying on the water' are to be permitted to build wharves, and to erect warehouses thereon, leaving spaces at certain distances for cross streets, evidently uses the words 'public appropriations' as distinct from 'streets,' and as designating the lots and squares set apart, with the president's approval, for the public use; and, by prohibiting the erection of private wharves at the end of 'the streets at right angles with the water,' and omitting to mention the shores by the side of other streets, clearly implies that such shores are not covered by the prohibition, but are to be treated as included in 'the private property on the water.' The lot set off to the United States, and afterwards sold to Morris and Greenleaf, is within the same principle.

The declaration in the preliminary contract of 1793, between the commissioners and them, that the latter were entitled 'of course to the privileges of wharfing annexed' to these lots, while not evidence of a contract to control the terms of the subsequent more formal instrument, is of weight as showing what at that time was understood to be included in a description of the lots. When to this we add that no act of Congress has ever asserted ownership of these wharves or landing places, or the rights of a riparian owner, while they have conferred on the authorities of the district the power of regulating wharves, private and public, we are forced to the conclusion that these rights are left with the owner of the squares certified to Notley Young in the division with the United States.