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Potomac Steam-Boat Company v. Upper Potomac Steam-Boat Company/Opinion of the Court

These two cases were heard together in the court below and in this court. They involve the same questions and depend upon facts substantially the same, appearing in a single record. The claim of the appellants (who were plaintiffs below) is that, being owners and in possession, in the first case, of square No. 472, and, in the second, of l t No. 13, in square No. 504, on the plan of the city of Washington, they are entitled to the exclusive right to make and use wharves and other similar improvements in the Potomac river opposite or in front of these lots, which are separated from it by Water street; and the object of the bills is to restrain the defendants, by a perpetual injunction, from intruding upon and disturbing the enjoyment of their right. This claim is denied by the defendants, who assert an adverse right under public authorities acting in the name of the United States. This issue was determined by the court below in favor of the defendants by decrees dismissing the bills, which decrees these appeals bring before us for review. The plaintiffs derive title to the lots mentioned by mesne conveyances from Notley Young, who was the original proprietor of a tract of about 400 acres, known at the Dudington pastures, lying upon the Potomac river, and which became part of the site of the city of Washington, extending along the river from Tiber creek, corresponding with the foot of Fourteenth street at the Long bridge, to the grounds of the United States arsenal.

The seventh clause of the compact between Virginia and Maryland, of March 28, 1785, declared that 'the citizens of each state respectively shall have full property in the shores of the Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river.' The nature and extent of this compact were considered by this court in Georgetown v. Alexandria Canal Co. 12 Pet. 91, where it was declared to be a compact between the states as such, to which the citizens of neither were parties, and, being subject to the will of the states, as to any changes in its stipulations, it was equally under the control of congress after the cession. It was provided, however, by the act of July 16, 1790, (1 St. 130,) accepting the District of Columbia as the seat of government of the United States, 'that the operation of the laws of the state within such district shall not be affected by this acceptance until the time fixed for the removal of the government thereto, and until congress shall otherwise by law provide.' It was therefore provided by the general assembly of Maryland, by an act of December 19, 1791, § 12, that the commissioners of the district, appointed by the president under the act of congress of July 16, 1790, 'shall, from time to time, until congress shall exercise the jurisdiction and government within the said territory, have power to license the building of wharves in the waters of the Potomac and the eastern branch, adjoining the said city, of the materials, in the manner, and of the extent they may judge durable, convenient, and agreeing with general order. But no license shall be granted to one to build a wharf before the land of another, nor shall any wharf by built in the said waters without license as aforesaid; and if any wharf shall be built without such license, or different therefrom, the same is hereby declared a common nuisance.' Davis, 64.

In pursuance of this authority, the commissioners adopted the following regulation on the subject, dated July 20, 1795:

'That all the proprietors of water lots are permitted to     wharf and build as far out into the river Potomac and the      eastern branch as they think convenient and proper, not      injuring or interrupting navigation, leaving a space,      wherever the general plan of the streets in the city requires      it, of equal breadth with those streets, which, if made by an      individual holding the adjacent property, shall be subject to his separate occupation and use      until the public shall reimburse the expense of making such      street, and where no street or streets intersect said wharf,      to leave a space of sixty feet for a street at the      termination of every three hundred feet of made ground; the      buildings on said wharv § or made ground to be subject to the      general regulations for buildings in the city of Washington,      as declared by the president; wharves to be built of such      materials as the proprietors may elect.' Pages 408, 409,      Proceed. Com'rs, 1791 to 1795.

This regulation was submitted to President Washington, who directed it to be published by letter dated at Mt. Vernon, September 18, 1795. In the mean time, Notley Young and the other proprietors, whose proposal had been accepted, by distinct conveyances, but in like form, had conveyed to Thomas Beall and John M. Gantt, as trustees, the several tracts of land which were to constitute the territory of the city of Washington. That of Notley Young was dated June 29, 1791, and conveyed, in fee-simple, 'all the lands of him, the said Notley Young,' therein described, to have and to hold, 'with their appurtenances,' in consideration 'of the uses and trusts' therein mentioned, and 'to and for the special trusts following, and no other:'

'That all the lands hereby bargained and sold, or such part     thereof as may be thought necessary or proper to be laid out,      together with other lands within the said limits, for a      federal city, with such streets, squares, parcels, and lots      as the president of the United States for the time being      shall approve; and that the said Thomas Beall of George and      John M. Gantt, or the survivor of them, or the heirs of such      survivor, shall convey to the commissioners for the time      being, appointed by virtue of the act of Congress entitled      'An act for establishing the temporary and permanent seat of      the government of the United States,' and their successors,      for the use of the United States forever, all the said      streets and such of the said squares, parcels, and lots as      the president shall deem proper, for the use of the United      States; and that, as to the residue of said lots into which      the said lands hereby bargained and sold shall have been laid      off and divided, that a fair and equal division of them shall be made; and if no other      mode of division shall be agreed on, by consent of the said      Notley Young and the commissioners for the time being, then      such residue of the said lots shall be divided, every other      lot alternate to the said Notley Young; and it shall in that      event be determined by lot whether the said Notley Young      shall begin with the lot of the least number laid out on the      said lands or the following number; and all the said lots      which may in any manner be divided or assigned to the said      Notley Young shall thereupon, together with any part of the      said bargained and sold lands, if any, which shall not have      been laid out on the said city, be conveyed by the said      Thomas Beall of George and John M. Gantt, or the survivor of      them, or the heirs of such survivor, to him, the said Notley      Young, his heirs and assigns,' etc.

It was also stipulated therein that the said Beall and Gantt should, at the request of the president of the United States, convey all or any of said lands which should not then have been conveyed in execution of the trusts aforesaid, to such persons as he should appoint, in feesimple, subject to the trusts remaining to be executed, and to the end that the same might be perfected. Accordingly, on October 3, 1796, the president requested Beall and Gantt to convey all the unconveyed residue of the land granted by Notley Young to Scott, Thornton, and White, then commissioners, appointed under the act of July 16, 1790, 'in fee-simple, subject to the trusts yet remaining to be executed;' and on November 30, 1976, Beall and Gantt accordingly conveyed by deed in fee-simple to the commissioners last named. In the mean time, however, the plan of the city had been adopted and promulgated, on maps of which were laid out the squares, lots, public grounds, and streets; and on October 18, 1794, a division had been made between Notley Young and the commissioners, in execution of the trusts of the deed from him to Beall and Gantt, of which square No. 504 fell to the public and square No. 472 to Notley Young. o deed was made by Beall and Gantt to Notley Young for square No. 472, but on January 13, 1797, the commissioners recorded in their book, which by law they were authorized to keep for that purpose, their certificate that they and Young had agreed 'that the whole of the same square shall remain to the said Notley Young agreeably to the deed of trust concerning lands in the said city,' and attached thereto a plat of the square, its boundaries as follows: 'Bounded on the north by L street, four hundred and seventy-nine feet four inches; the south by M street south, three hundred and fifty-seven feet three inches; the east by Sixth street west, two hundred and eighty-nine feet ten inches; the southwest by Water street, three hundred and fourteen feet three inches,'-as perreturn dated December 24, 1793. A similar entry and record were made in respect to square 504, the plat of which shows a subdivision of the entire square into lots, of which five, lot No. 13 being one of them, front on Water street, running back to an alley which separates them from all the other lots in the square. The legal title to this, and other squares allotted to the public, passed to the commissioners of the district by the deed from Beall and Gantt; and the legal estate to square 472 and the others allotted to Notley Young, vested in him in fee-simple, by virtue of the certificates recorded in the commissioners' book, under a law of Maryland, of December 28, 1793, (Burch, Dig. 224,) which gave effect to it, 'according to the import of such certificates.' A similar certificate was made and recorded October 18, 1794, to the effect that James Greenleaf had become the purchaser of 857 lots, for which he had fully paid, the legal title to which in fee-simple had vested in him, and among them is enumerated square 504. The plaintiff's claim lot 13 in that square under Greenleaf's title.

It has been observed that both squares, No. 472 and No. 504, are bounded on the south-west by Water street. This street was designated, on the adopted plan of the city, as occupying the whole line of the river front, and separating the line of the squares from the river for the entire distance from Fourteenth street to the arsenal. It is alleged in the bill in respect to this street that there was traced on the map of the city 'but a single line denoting its general course and direction; that the dimensions of said Water street, until the adoption, on the twenty-second day of February, 1839, of the certain plan of one William Elliott, as hereinafter more particularly mentioned, were never defined by law; and that the said Water street was never, in fact, laid out and made in the said city until some time after the close of the recent civil war; that before the commencement of said civil war one high bluff or cliff extended along the bank of said river, in said city of Washington, from Sixth street west to Fourteenth street west; that to the edge thereof the said bluff or cliff, between the points aforesaid, was in the actual use and enjoyment of the owners of the land which it bounded towards the said river; that public travel between the two streets last above mentioned, along the said river, could only be accomplished by passing over a sandy beach, and then only when the tide was low; and that what is now the path of Water street, between the two streets aforesaid, was and has been made and fashioned by cutting down the said cliff or bluff and filling in the said stream adjacent thereto.'

These allegations, in substance, are admitted in the answer to be ture, with the qualification that the width of the street was left undefined because it constituted the whole space between the line of the squares and the river, whatever that might be determined to be from time to time, but that the commissioners, on March 22, 1796, made an order directing it to be laid out 80 feet in width, from square 1079 to square east of square 1025, and to 'run out the squares next to the water and pre are them for division,' and that it was so designated on maps of the city in 1803. If not, the inference is all the stronger that the whole space south of the line of the lots was intended to be the property and for the use of the public. Barclay v. Howell's Lessees, 6 Pet. 504. In Rowan's Ex'rs v. Portland, 8 B. Mon. 232-239, that inference was declared to be the legal result of such a state of facts. It is quite certain that such a space was designated on the official map of the city as originally adopted, the division and sale of the squares and lots being made in reference to it. What the legal effect of that fact is we shall hereafter inquire, and while we do not consider it to be qualified by the circumstances set forth as to the actual history of the street as made and used, they perhaps sufficiently account for the doubt and confusion in which the questions of right brought to issue in this litigation seem, for so long a period, to have been involved. The transaction between Notley Young and the public authorities, as evidenced by the documents and circumstances thus far set forth, was equivalent in its result to a conveyance by him to the United States in fee-simple of all his land described, with its appurtenances, and a conveyance back by the United States to him of square No. 472, and to Greenleaf of square No. 504, bounded and described as above set forth, leaving in the United States an estate in fee-simple, absolute for all purposes, in the strip of land designated as Water street, intervening between the line of the squares as laid out and the Potomac river.

The very point as to the nature of this title was decided in the case of Van Ness v. The Mayor, etc., of Washington, 4 Pet. 232. It was there said by Mr. Justice STORY, delivering the opinion of the court, (page 285:)

'Here we have a solemn instrument embodying the final     intentions and agreements of the parties, without any      allegations of mistake, and we are to construe that      instrument according to the legal import of its terms. Now,     upon such legal import, there do not seem grounds for any      reasonable doubt. The streets and public squares are declared     to be conveyed 'for the use of the United States forever.'      These are the very words which by law are required to vest an      absolute unconditional fee-simple in the United States. They     are the appropriate terms of art, if we may so say, to      express an unlimited use in the government. If the government     were to purchase a lot of land for any general purpose, they      are the very words which the conveyance would adopt in order      to grant an unlimited fee to the use of the government. There     are no other words or references in the instrument which      control in any manner the natural meaning of them. There are     no objects avowed on the face of it which imply any      limitation. How, then, can the court defeat the legal meaning     and resort to a conjectural intent?' It was accordingly decided in that case that the ownership of the land over which the streets in the city of Washington had been laid out on the original plan was vested by the deeds of the proprietors in the United States so completely and unconditionally that congress might lawfully dispose of it to private persons, or otherwise convert it to any use whatever. It was also decided in that case that the legal effect of the final instrument which defined and declared the intentions and rights of the parties, could not be modified or controlled by proof any of preliminary negotiations or agreement. 'The general rule of law is,' said the court, 'that all preliminary negotiations and agreements are to be deemed merged in the final settled instruments executed by the parties, unless a clear mistake be established.' This applies not only to the formal deeds from Notley Young to Beall and Gantt, and from them to the commissioners, but also to the certificates and plats made and recorded by the latter, which, under the Maryland act of December 28, 1793, (Burch, Dig. 224,) ' hall be sufficient and effectual to vest the legal estate in the purchasers, their heirs and assigns, according to the import of such certificates, without any deed or formal conveyance.' It is under and according to these certificates, granted to Notley Young and Greenleaf that the plaintiffs derive their title; and parol evidence to contradict, vary, or explain them is no more to be admitted than if they were formal conveyances. Williams v. Ingell, 21 Pick. 288. For this reason we reject, as without legal value, the book called 'Division Book No. 1,' referred to as showing a list of the squares and lots assigned to Notley Young in the division, and containing an entry as to square 472 as having a water front of 314 feet 3 inches. It is not well authenticated as a contemporary and original book, and is not one which it was the official duty of the commissioners to keep. However convenient, therefore, it may be as a book of reference for examiners of title in facilitating searches, it has not the quality of a public record.

What effect upon the riparian rights of Notley Young would have resulted from the creation of a perpetual easement for a public way over Water street by a grant to the United States to that use alone, the title and right of possession in the soil for all other purposes remaining in the original proprietor, it is unnecessary to discuss. The decisive circumstance in the present case is that the United States became the riparian proprietor, and succeeded to all the riparian rights of Notley Young, by becoming the owner in fee-simple absolute of the strip of land that adjoined the river and intervened between it, and what remained to the original proprietor, Notley Young, after that conveyance; and the successors to his title had no other or greater rights in Water street, or the land on which it was laid out and eventually made, than any other individual members of the public. While it remained a street it was subject to their use as a highway merely, over which to pass and repass, and without the consent of the United States, as proprietor, was subject to no private use whatever. The right of wharfage remained appurtenant to it, because, as land adjacent to the river that right was annexed to it by law and could be exercised on it by the proprietor, but was severed by the severance of the title from the remainder of the original tract, to the whole of which it had formerly pertained.

In reference to the squares and lots lying north of the street, it may be said of the wharfage right claimed, as was said in Linthicum v. Ray, 9 Wall. 241: 'It is in no way connected with the enjoyment or use of the lot, and a right not thus connected cannot be annexed as an incident to land so as to become appurtenant to it.' A riparian proprietor, in the language of Mr. Justice MILLER, in Yates v. Milwaukee, 10 Wall. 497-504, is one 'whose land is bounded by a navigable stream;' and among the rights he is entitled to as such, are 'access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be.' Weber v. Harbor Com'rs, 18 Wall. 57.

In Massachusetts, where it is held that, by virtue of the ordinance of 1647, if lands be described as bounded by the sea, the grantee will hold the lands to low-water mark, so that he does not hold more than 100 rods below high-water mark, (Storer v. Freeman, 6 Mass. 435; Com. v. Charlestown, 1 Pick. 180;) yet it is also held that where an ancient location or grant by the proprietors of a township bounded the land granted by a way, which way adjoined the sea shore, the ordinance did not pass the flats on the other side of the way to the grantee. Codman v. Winslow, 10 Mass. 146. And in Maine it was decided that a grantee, bounded by high-water mark, is not a riparian proprietor, nor within the ordinance. Lapish v. Bangor, 8 Greenl. 85. In New Jersey it is spoken of as 'the right of an owner of lands upon tide-waters to maintain his adjacency to it and to profit by this advantage,' (Stevenson v. Paterson, etc., R. Co. 34 N. J. Law, 532-556,) and as a right 'in the riparian owner to preserve and improve the connection of his property with the navigable water.' Keyport Case, 3 C. E. Green, 516. The riparian right 'is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his his own terms.' Rowan's Ex'rs v. Portland, 8 B. Mon. 232. It is 'a form of enjoyment of the land and of the river in connection with the land.' Lord CAIRNS in Lyon v. Fishmonger's Co. 1 App. Cas. 662, 672. 'It seems to us clear,' said POLLOCK, C. B., in Stockport Water-works Co. v. Potter, 3 Hurl. & Co. 300-326, 'that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away a portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights.'

No inference in such a case arises against the riparian right of the grantee because the land has been granted for a street. On the contrary, as was said in Barney v. Keokuk, 94 U.S. 324-340, 'a street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river and the usual accommodations of navigation in such a connection;' that is, as appears by the decision in that case, to be used by the public for such purposes, as well as a highway, in contradistinction to the exclusive right of one claiming riparian rights as owner of the soil. Godfrey v. City of Alton, 12 Ill. 29. 'If the city,' said this court in New Orleans v. U.S. 10 Pet. 663-717, 'can claim the original dedication to the river, it has all the rights and privileges of a riparian proprietor.'

Notley Young and the successor to his title had no property in the street, not even the right to insist that it should be maintained as such. The United States held its title to the land over which it was laid out, for its own use, and not in trust for any person or for any purpose. In that respect the case differs from Railroad Co. v. Schurmeir, 7 Wall. 272, where it was held that, as the city held the title to the street only in trust for the purposes of its dedication as such, the title remained in the original proprietor for all other purposes, and with a property right in its use as a street for his adjacent land. And it is immaterial that the ground laid out as a street was not in a condition to be used as a street, or that much labor was required to place it in that situation, or that, in fact, it had not been used as such for a long period of time. Barclay v. Howell's Lessee, 6 Pet. 504, 505; Boston v. Lecraw, 17 How. 426. 'A man cannot lose the title to his lands,' it is said in this case, 'by leaving them in their natural state without improvement, or forfeit them by non-user.' Page 436; McMurray v. Baltimore, 54 Md. 103.

This denies no right that can be claimed by virtue of the compact between Virginia and Maryland of 1785, for that secured to their citizens 'the privilege of making and carrying out wharves,' as to the shores of the Potomac only, so far as they were 'adjoining their lands,' and such had always been the law in Maryland, notwithstanding the language of the act of 1745, c. 9, § 10, which was held to authorize the improvements therein spoken of, to be made by improvers in front of their own lots only. Dugan v. Baltimore, 5 Gill & J. 357; Wilson v. Inloes, 11 Gill & J. 351. The 'full property in the shares of Potowmack river,' spoken of in the compact, if it is not to be taken as a seizin of the land covered with water, but a right of occupation merely, properly termed a franchise, as said by HOSMER, C.J., in East Haven v. Hemingway, 7 Conn. 186-202, must be appurtenant to the land, the conveyance of which carries it as an incident; otherwise, if it implies an ownership in the soil of the shore, between high and low water mark, as land, it could not pass as an appurtenance by a deed conveying the adjoining land; for land cannot be appurtenant to land. Harris v. Elliott, 10 Pet. 25-54; Storer v. Freeman, 6 Mass. 435; Com. v. Alger, 7 Cush. 53. And in this view the title of the plaintiffs fails, because they show no conveyance of the locus in quo, as parcel, and claim it only as an appurtenance.

An act of Maryland of January 22, 1785, authorizing an addition to Georgetown of land, according to a plat and upon conditions prescribed by the proprietors, confirms this view of the state of the general law in Maryland, by making express statutory provision 'that the proprietors of the lots fronting on the north side of Water street shall have and enjoy the exclusive right to the ground and water on the south side of their respective lots for the sole purpose of making wharves,' etc. The inference is irresistible that this was meant to give statutory sanction to an exception from the general rule. The same comment applies to the case of Hazlehurst v. Baltimore, 37 Md. 199, to which we are referred. There the street or highway that intervened between the wharf and the water was, by virtue of the statutes under which the work was executed, made part of the wharf itself, and subject to the right of the lot-owner for the purposes of a wharf, and to that extent it was held he had a right of property in it, of which he could not be deprived for public use except upon due compensation made.

It is not denied and never was questioned that, as to the streets whose termini abutted on the river, the water front was subject to the riparian rights of the public for use as wharf or dock or landing place. On what principle can a distinction be drawn between that case and the one in hand, where the line of the river constitutes the side of the street running along the shore? The rights of the public are the same; especially where, as here, it was the soil of the street, as so much land, for all purposes. The true inference to be drawn from the plan of laying out such a street seems to us to be to secure to the public the very rights here in controversy, and to prevent private monopoly of the landing places for trade and commerce. For, as was said in Dutton v. Strong, 1 Black, 1-31: 'Piers or landing places and even wharves may be private,'-'or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use;' the question whether they are so, or are open to public use on payment of reasonable compensation as wharfage, depending in such cases 'upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure.' Undoubtedly, Notley Young, prior to the founding of the city and the conveyance of his land for that purpose, was entitled to enjoy his riparian rights for his private uses and to the exclusion of all the world besides. It can hardly be possible that the establishment of the city upon the plan adopted, including the highway on the river bank, could have left the right of establishing public wharves, so essential to a great center of population and wealth, a matter altogether of private ownership; for, even as to squares and lots that fell to the public on the division, it is equally contended by the appellants that those from whom they claim, with the lots also purchased the public riparian right appurtenant there o, with power to convert it to private use.

It was for this reason held by the court of appeals of Kentucky, in the case of Rowan's Ex'r v. Portland, 8 B. Mon. 232, that where land along the river bank in a town had been laid out and dedicated by the proprietor for a public street, that the dedication for that purpose carried with it, as a necessary incident, the right in the public to build wharves and charge wharfage for the use thereof, to the exclusion of the original proprietor and his alienees of any private right of the same character.

To the same effect is the judgment of the same court in Newport v. Taylor's Ex'r, 16 B. Mon. 699, 804.

Various considerations, however, are urged upon us in argument in support of the appellants' claim, which, so far as we deem important, and the limits of this opinion will permit, we will now notice in order.

1. It is urged that the construction of the rights of the parties which deprives the claimants, under Notley Young and Greenleaf, of the rights of wharfage opposite their property, on the north side of Water street, in effect gives to the United States the entire water front on the Potomac river, without an equivalent, and thus violates that equality in the division which was expressly stipulated for in Notley Young's deed to Beall and Gantt. But there is no dispute as to the division that was actually made, and each party received, so far as the conveyances are concerned, precisely what he agreed to take and was satisfied with. The supposed inequality arises from a construction of law upon the transaction, as it is admitted or proved to have taken place, and its legal effect is not dependent upon its actual results. The devision, which it was agreed should be fair and equal, was of the lots into which the lands should be laid off; the grantor was to receive back any lands not so laid off, and the streets were to be the property of the United States, and, of course, with whatever appurtenant rights belonged to them as streets, or to the land over which they were laid out.

2. It is insisted, however, that the contemporaneous construction put by the parties themselves upon their own acts, requires a different conclusion. It is impracticable to refer specifically to the numerous letters, maps, plans, documents, and records of different descriptions, which the diligent research of counsel on both sides has compiled and placed in the record of these cases, as throwing light on the history of the transaction, and as evidence of the views of the actors in it. We can notice but a few, with the general remark that a careful consideration of everything bearing on the point to which our attention has been called, has failed to satisfy us that the conclusion reached, as the legal effect of the documents of title, is inconsistent with the actual intentions of the parties. In a letter to the president, explaining their regulations of July 20, 1795, the commissioners distinctly say '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 water;' and that it is 'proprietors of property lying on the water' that are to be permitted to build wharves. It is possible, indeed, that the commissioners did not, at that time, contemplate that a street laid out along the margin of the river, as Water street was, would be on the same footing with what they deemed to be 'public appropriations,' and yet there is nothing in their communication inconsistent with that result, and the idea is clearly embraced in it when we apply the decision in the Van Ness Case to its terms; and their view to that effect is strongly implied in what they wrote to James Barry on October 5, 1795. He had written to them, saying that, 'as Georgia avenue meets the water at Third street, and can only begin again at the other side of the water, I request permission to erect a store or buildings, agreeably to the regulations of the water prop rty of square 771, without adverting to the imaginary direction of Georgia avenue, which runs across my wharf, and would totally render useless said wharf.' The commissioners replied, saying:

'We think with you that an imaginary continuation of Georgia     avenue through a considerable depth of tide-water, thereby      cutting off the water privilege of square 771 to wharf to the      channel, too absurd to form a part of the plan of the city of      Washington; that it never was a part of the plan that such      streets should be continued through the water; and that your      purchase in square 771 gives a perfect right to wharf to any      extent in front or south of the property purchased by you,      not injurious to navigation, and to erect buildings      thereupon, agreeably to the regulations.' It is plainly to be inferred from this that if, as was the case of Water street, the street was laid down on the map as a continuous street, abutting on the river, and called for as the south boundary of the lots fronting on it, it would have been regarded by them as forming part of the plan of the city, 'thereby cutting off the water privilege' from the lots between which and the river it intervened. But on June 25, 1798, the commissioners had occasion to declare themselves explicity on the very point, in a letter to Nicholas King of that date, in answer to an inquiry from him in behalf of Robert Peter, requesting 'to know the extent of wharfing and water privilege attached to what was called water lots and assigned to him on division.' They replied as follows:

'SIR: We are favored with yours of the 22d instant in behalf     of Mr. Peter. When the commissioners have proceeded to divide     a square with a a city proprietor, whether water or other      property, they have executed all the powers vested in them to      act upon the subject. It appertains to the several courts of     the state and the United states to determine upon the rights      which such division may give. Any decision by us on the     subject would be extrajudicial and nugatory. Of this, no     doubt, Mr. Peter, if applied to, would have informed you.

'With respect to square No. 22 we do not conceive that it is     entitled to any water privilege, as a street intervenes      between it and the water; but, as there is some high ground      between the water street and the water, we have no objection      to laying out a new square between Water street and the      channel, and divide such square, when laid out, so as to make      it as beneficial to Mr. Peter and the public as circumstances      will admit.'

A transaction between John Templeman and the commissioners on January 24, 1794, is relied on as showing the rule acted upon in cases like the present. The commissioners, it is stated in the record of their proceedings of that date, sold to Templeman nine lots in square No. 8, and delivered him a certificate with the following indorsement thereon: 'It is the intention of this sale that the ground across the street next to the water, with the privilege of wharfing beyond the street in front and of the breadth of the lots, pass with them agreeably to the general idea in similar instances.' On January 15, 1798, the commissioners, it is recited in the same record of that date, executed a deed to Templeman of the lots named, 'together with all the land in front from Twenty-seventh street to river Potomac, with all rights of wharfing thereon, which deed is given by the request of Mr. Templeman in lieu of one dated the 3d instant, with the addition of lot 18, in square No 8, and the water privilege in front of the lots conveyed in square No. 8, the former deed having been first given up and canceled.' It will be observed that this is open to the construction that the wharfage privilege is appurtenant, not to the lots in square No. 8, but to the land sold with them on the opposite side of the street, and extending thence to the Potomac river, and which, of course, is riparian property.

There was, in fact, no contemporary agreement of opinion on the subject. On the contrary, there was diversity of view and conflict of interest from the beginning. Various questions arose relating to the mode in which the privilege of building wharves should be exercised by those entitled to it, as well as to what constituted 'water lots,' to which such privilege belonged, and some of them were left undecided. On some of these the opinion of Charles Lee, attorney general, was taken on January 7, 1799; some were investigated and reported upon by a committee of the house of representatives on April 8, 1802; some were discussed by Atty. Gen. Breckinridge in an opinion dated April 5, 1806; the very matter of wharfing privileges was the subject of an opinion by Mr. Wirt, then attorney general, July 8, 1818, in which he expressed doubts as to the power of the commissioners to adopt the wharf regulation of July 20, 1795. The whole subject had been presented in a very interesting manner, from the point of view opposed to that expressed by the commissioners, but showing that differences of opinion existed, by Nicholas King, in a letter to the president dated September 25, 1803, and printed in Burch's Digest, 351. In that communication he attributed the doubt and uncertainty in which the matter was involved to the action of the commissioners. 'In laying off the city,' he says, 'they stopped, as before observed, on the bank of the river, sold the lots on the high ground with a water privilege, without defining either what the privilege is, or the extent or direction in which the purchasers were to wharf and improve.'

3. A special ground is maintained in behalf of the claim under lot 13, in square 504, derived from Greenleaf. On December 24, 1793, the commissioners made a contract in writing with Morris and Greenleaf for the sale and conveyance of 6,000 lots, 4,500 to lie south-west of Massachusetts avenue, and of them Morris and Greenleaf were to have 'the part of the city in Notley Young's land.' By this contract Morris and Greenleaf were excluded from selecting water lots, but with this proviso: 'Provided, and it is hereby agreed by and between the parties to these presents, that the said Robert Morris and James Greenleaf are entitled to the lots in Notley Young's land, and, of course, to the privileges of wharfing annexed thereto, and that lots adjoining the canal are not reckoned water lots.' From this it is sought to draw the inference that the lots in Notley Young's land fronting on the north side of Water street, have the appurtenant wharfing privileges claimed. But there is no sufficient foundation for this conclusion. Even if it were proper to resort to this preliminary agreement to supply what is not contained in the subsequent grant, made in execution of it,-which, we have seen, on the authority of the Case of Van Ness, we are not at liberty to do,-still, there is nothing to identify square 504 as a water lot out of the property of Notley Young. On October 18, 1794, as has been stated, the commissioners transferred to Greenleaf, Morris consenting, by certificate, 857 of these lots, including the one in question, and it may be that many of them were water lots, but which of them were is to be determined by the actual facts as to each, and not by any general description. There were lots, in Notley Young's land as laid out, which answered the description, without reference to those lying on the north side of Water street. That there was on the original plan of the city, and in the division made between the original proprietors and the United States, a classification of the squares and lots into 'water lots,' with riparian privileges, and the rest which were not, admits of no dispute. The exact nature of the difference is well pointed out in a very elaborate report made May 25, 1846, to the common council of the city, by a committe appointed to investigate the subject, and their conclusions on the point seem to us supported by the records and documents of the time. They say:

'Squares in the water with water lots were laid ff by the      commissioners and divided with the proprietors on the      navigable waters of the Eastern Branch, Potomac, and Rock      creek. Water lots were defined by metes and bounds on three     sides, and were estimated originally in the division, since      in sales, and now for assessment by the front foot. * *  * On      the plan of the city all the streets are delineated and all      the property laid off. Every owner of a lot in the city can     tell by the description of it in his deed what are its bounds      on all sides; if it has a water boundary, the deed says so,      and he has a right to wharf out into the river; if it is      bounded on all sides by the land, he has no such right, the      right to wharf belonging only to land bounded by the water.'

If there are any individual cases that are exceptions to these statements, nevertheless their general accuracy, we consider, well established, and that they manifest the original intention of the parties to the transaction. Disputes undoubtedly arose, some quite early, not so much as to what rights belonged to 'water lots,' nor as to what properly constituted a 'water lot,' but, in regard to particular localities, whether that character attached to individual squares and lots. In part, at least, the uncertainty arose from the fact that the plan of the city, as exhibited on paper, did not accurately correspond at all points with the lines as surveyed and marked on the land. Complaints of that description, and of designed departures from the plan, seem to have been made. It is also true, we think, that mistakes arose, as perhaps in the very case of the lots on the north side of Water street, owing to the fact that the street existed only on paper, and for a long time remained an unexecuted project; property appearing to be riparian, because lying on the water's edge, which, when the street was actually made, had lost its river front. They were thought to be 'water lots,' because appearing to be so in fact; but were not so in law, because they were bounded by the street and not by the river.

4. The plaintiffs rely upon the decision of the former circuit court for this district in the case of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838. The question in that case was whether the owner of lots in the city of Washington, lying on Rock creek, was entitled to compensation for a wharf and water privilege which had been condemned for the use of the canal company. It was contended on behalf of the latter that the owner of the lots never had any water privilege as appurtenant to them, because they were cut off from the creek by Twenty-eighth street west, and as the streets belonged to the United States, the water privilege belonged to them also. It appeared that Harbaugh, the owner, had built, maintained, and used a wharf in connection with the premises for 30 years without interruption, and that no part of the bank of the creek and no dry land lay west of the street, one-half of which was in the creek. It also appeared that he had bought from the United States, to whom the lots had been allotted in the division of the square between the public and the original proprietor, but the terms of the conveyance from the United States to Harbaugh are not stated. It was argued for the owner that the streets were conveyed to the United States only as highways, and did not deprive the riparian proprietors of their water rights, and reference was made to Nicholas King's title in Burch's Digest, to the wharf regulations of the commissioners in 1795, and to the Maryland act of 1791, c. 45, § 12. The court, it is stated, held that the title of Harbaugh to his wharf was good against the United States, claiming under a private citizen, (R. Peter,) the original proprietor, but gave no reasons for its opinion. No allusion was made by counsel or court to the case of Van Ness v. Mayor, etc., of Washington, supra, 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. Corp. 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; 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 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 Nicholas 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 27, 1801, (2 St. 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 rights 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 conflicts 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 2, 1835, William Elliott, 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, etc., 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, 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      steam-boats 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     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 100 feet wide in the narrowest part.

On July 13, 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 admission 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 mean time 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 22, 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, etc., that the plan No. 2, prepared by the late     William Elliott, in eighteen hundred and thirty-five, while      surveyor of the  ity 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.

'Resolved, also, that the wharves hereafter 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 regulate the mode in which the right shall be exercised, whether private or public, leaving the question of 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.


text: Talk:Potomac Steam-Boat Company v. Upper Potomac Steam-Boat Company/Opinion of the Court

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text:
Chicago v. Union Rolling-Mill Company

The deed of trust provided that in case of default in the payment of any interest on the bonds, or in the performance of any covenant in said deed of trust contained, to be performed by the Illinois River Company or the construction company, and in case such default should continue six months, then the trustee might take possession of the property conveyed by the deed of trust, and apply the issues and profits thereof to the payment of the liabilities of the Illinois River Railroad Company and the construction company, as therein provided. The covenants of seizin for quiet enjoyment and against incumbrances, made by the Illinois River Railroad Company and the construction company in the deed of trust contained, were broken on March 1, 1875, and such default had continued more than six months. On March 1, 1875, the Illinois River Railroad Company and the construction company were indebted to the rolling-mill company in a large sum of money for materials furnished for the construction of said road, which the rolling-mill company claimed to be a lien thereon, but its claim was subject to the claims of bondholders represented by the complainant. On September 13, 1875, John F. Slater, being the holder and owner of bonds numbered from 1 to 474, inclusive, applied to Straut, the trustee, to take such action in the premises as he ought to or might take for the protection of his interest. But Straut, being unable or unwilling to act, resigned his trust, and the complainant was, on September 18, 1875, in accordance with the provisions of the deed of trust, appointed trustee in his stead, and on September 20, 1875, Straut conveyed to the complainant, as such trustee, all the property, rights, and powers vested in him by the trust deed. The prayer of the bill was as follows:

'That an account may be taken of the sum due for principal and interest on said bonds, and of the sums due as liens upon said road, and that the premises described in the deed of trust to George Straut may, by order of this court, be sold for the payment of the same, and that your orator may have such other and further and different relief as to equity may seem meet.'

Answers were filed by the Illinois River Railroad Company, the construction company, and the Alton Railroad Company, Corydon Beckwith, and Bradford Hancock, in which they took issue upon the averments of the bill. On January 13, 1876, the rolling-mill company filed an answer, claiming to have a first lien on the railroad and property of the Illinois River Railroad Company, averring that, on August 7, 1874, it made a contract in writing, of that date, with the Illinois River Railroad Company and the construction company for the sale and delivery, at certain prices therein specified, to said companies of 1,600 tons of steel and 2,500 tons of iron rails and certain named quantities of iron splices, spikes, and bolts, all to be delivered by December 1, 1874. That contract provided that for these materials $60,000 in cash should be paid, and, for the balance of the price, the companies purchasing the same should give notes, payable in six, eight, ten, and twelve months from their dates, respectively, executed by the Illinois River Railroad Company and guarantied in full by the construction company and by the stockholders of the construction company in proportion to their stock, and, for the further security of said notes, there should be pledged certain bonds of the construction company for an amount equal to the aggregate principal of said notes, and secured by a deed of trust, made April 1, 1874, by the Illinois River Railroad Company and the construction company, on the property therein described, constituting the first lien thereon. It also contained this clause:

'And it is also agreed by said party of the second part that the material so furnished by the said party of the first part shall be used and laid upon the road and road-bed belonging to said Chicago & Illinois River Railroad Company, between the cities of Joliet, in Will county, and Streator, in La Salle county, Illinois; and that until the same be fully paid for, and all the notes given in payment therefor paid and canceled, the said party of the first part shall have a lien upon said material furnished by it, and the use and possession of the same by said party of the second part, or either of the corporations constituting the same, or the assignee or assigns of one or both of them shall be the user and possession of said party of the first part.'

The answer of the rolling-mill company further alleged that the company had delivered a large part of the rails, etc., under said contract; that upon the delivery of the last lot, on or about November 12, 1874, the purchasing companies gave the rolling-mill company notice not to deliver any more rails or other material until the spring of 1875; that the rolling-mill company were always ready and willing to deliver the remainder of said rails and other material mentioned in said contract, and that on May 7, 1875, it gave notice to said purchasing companies that the residue of the rails, etc., were ready for delivery, but the companies did not provide cars or vessels for the transportation of said materials, and that, by the terms of the contract, such notice was equivalent to a delivery thereof; and that the rolling-mill company then and thereby complied with its contract, and was entitled to the consideration therein named. It is also alleged that the rolling mill company had received in part payment of said consideration the sum of $95,000, and no more, and that the purchasing companies had wholly neglected and refused to pay the rolling-mill company any further sums of money on the contract, and had neglected and refused to deliver to it any of the notes or securities for deferred payments on the rails, etc., as provided in said contract, although requested to do so; and that thereby the whole amount of the purchase money for the rails, etc., had become due and payable. It further alleged that on May 10, 1875, the rolling-mill company, within the time prescribed by law, filed its bill in the circuit court of Will county, Illinois, for the purpose of enforcing its lien, under the statutes of Illinois, upon the railroad and its appurtenances, and that the bill was still pending and undetermined. The answer still further alleged that the rolling-mill company not only had a statutory lien upon all the materials furnished under said contract, but by the contract it had an express contract lien upon the same, and that by virtue of the contract and the facts set forth it had a lien upon the Illinois River Railroad and its appurtenances paramount to the lien of the bondholders under said deed of trust and all other liens upon the road.

On the same day on which its answer was filed the rolling-mill company obtained leave to file, and did file, a cross-bill in the cause, setting up the same matters stated in its answer, and praying that upon the final hearing a decree might be entered requiring payment of the am unt due to it within a certain time to be fixed by the decree, and that in default thereof the railroad of the Illinois River Railroad Company and all its appurtenances might be sold, and out of the proceeds its claim might be paid in preference to the bondholders or any other persons. The answers to the cross-bill of the rolling-mill company denied that said company had any lien for the materials furnished by it under said contract, either by virtue of the contract or the statutes of Illinois. Afterwards, on May 31, 1976, the master to whom the cause had been referred filed his report upon the claims of the rolling-mill company, with the testimony in support thereof, by which he found due to the complainant in a cross-bill from the Illinois River Railroad Company and the construction company, for iron rails, etc., furnished under said contract, with interest, etc., the sum of $186,783.49, and for which he reported the rolling-mill company had a lien binding on all the defendants. On June 27, 1876, the report of the master was referred back to him by the following order, which was entitled both of the original and the cross-cause:

'By agreement of counsel the report of the master in said bill and cross-bill is referred back to Henry W. Bishop, the master in chancery of this court, with leave for the complainant in said bill and the defendants to take further proofs within eight (8) days from this date, and for the Union Rolling-mill to take further proofs, if desired, within twelve (12) days from this date, said master to report at the expiration of said twelve days.'

On July 1, 1876, Dumont, the complainant in the original bill, filed his supplemental bill, in which he averred that, since the filing of the original bill, coupons, attached to the bonds mentioned, falling due on March 1, 1876, had become due, and remained unpaid, although presented for payment; that he had paid out certain sums for right of way, for laying down side tracks, and switches, and for taxes, and prayed that an account might be taken of the sums due on said coupons so fallen due, and of the sums paid out by complainant as aforesaid, and that the latter might be declared a lien on the mortgaged premises. On August 3, 1876, the Illinois River Railroad Company filed its plea to the original and supplemental bills, in which it averred that at the date of the mortgage set forth in the original and supplemental bills, and at the beginning of this suit, the said George Straut, the trustee named in the deed of mortgage, was, and ever since had been and still continued to be, a citizen of the state of Illinois; that he was such citizen on September 13, 1875, when he was applied to to foreclose the deed of trust, and on September 13, 1875, when he resigned said trust; that from and after March 1, 1875, until the commencement of this suit, all the defendants to the original and supplemental bills had been citizens of the state of Illinois, and had continuously remained such citizens until the filing of the plea. Wherefore, the said company averred that Dumont, as assignee of said chose in action, namely, said deed of trust, had no standing to prosecute the said suit, and set up the facts aforesaid in bar of the jurisdiction of the court.

No other plea, answer, or demurrer was ever filed to ths supplemental bill by any of the defendants in the cause, nor was said plea to the original and supplemental bill ever replied to or set down for argument. On June 26, 1877, one year after the report first filed by him had been recommitted, the master, after re-examining the former testimony, and taking additional testimony, covering in all several hundred printed pages, and hearing the arguments of counsel, filed his second report, affirming his former findings, and sustaining the allegations of the cross-bill. On July 16, 1877, exceptions to this report were filed by Dumont, the complainant in the original bill, the main ground of the exceptions being that the master had erred in reportin that the rolling-mill company was entitled to a first lien on the mortgaged premises for the amount found to be due it. October 15, 1877, the following order was entered:

'Now come the parties by their solicitors, and thereupon the original, supplemental, and cross-bills were submitted to the court on printed arguments to be furnished by Messrs. Beckwith and Smith by October 26th inst., by Messrs. Cooper and Packard and Henry Crawford by October 30th inst., by George Campbell by November 20th next, and by Messrs. Beckwith and Smith in reply by November 30th next.'

On the twenty-fifth day of May, 1878, the Massachusetts Mutual Life Insurance Company, on leave of court, filed an intervening petition in the cause, stating, among other things, that it was the holder of some of the bonds secured by the trust deed to George Straut, and that the complainant, John B. Dumont, was threatening to foreclose the trust deed under the power of sale contained therein, and prayed for an injunction to prevent such sale, and, in accordance with this prayer, an order was entered in the cause on the twenty-fifth of May, 1878, restraining Dumont from selling the property included in the trust deed until the further order of the court. Afterwards, on January 4, 1878, by agreement of the parties by their solicitors, an order was entered setting aside the order of October 15, 1877, submitting the exceptions to the master's report upon printed briefs. June 5, 1878, the exceptions came up for hearing before the court. The hearing continued until June 11, 1878, when the exceptions were taken under advisement. On December 16, 1878, the court entered an interlocutory decree upon the report of the master and the exceptions thereto. This decree was entitled thus:

'John B. Dumont vs. Chicago and Illinois River Railroad Company et al. (In Chancery. Original Bill.)

and

'Union Rolling-Mill Company vs. John B. Dumont et al. (Cross-bill.)'

By this interlocutory decree the court found due the rolling-mill company $134,733.23 on account of rails and materials used in the construction of the railroad and not paid for, and that this sum constituted a lien upon the railroad of the Illinois River Railroad Company, and 'upon all its property, real, personal, and mixed.' The court further found that the rolling-mill company had delivered to said Illinois River Railroad Company and the construction company iron rails, steel rails, etc., mentioned in the contracts with said rolling-mill company to a large amount, which had been sold by the Illinois River Railroad Company and the construction company to the Alton Railroad Company, with full knowledge of the lien of said rolling-mill company thereon; that the Alton Railroad Company had never specially paid for such material, but had converted the same to its own use, and that such rails and other materials were then of the value of $24,464.92. This sum the court found the rolling-mill company was entitled to have and recover from the Illinois River Railroad Company, the construction company, and the Alton Railroad Company, together with interest thereon, amounting at the date of the decree to the sum of $29,796.30; and the court reserved for further consideration all questions relative to the enforcement of the lien declared for the sum of $134,733.23, and relative to the sum of $29,796.30, found due from the Alton Railroad Company, the construction company, and the Illinois River Railroad Company.

Afterwards, on April 15, 1879, the complainant in the original bill moved for leave to dismiss the same at his own costs, and on September 2d following, the consent of the Massachusetts Mutual Life Insurance Company and other defendants to the dismissal of the original bill was filed in the cause. On March 29, 1880, John B. Dumont filed his disclaimer to further prosecute said cause, for the reason, as stated by him, that his interest in the same had ceased and terminated by a proceeding had in the circuit court of Will county, Illinois. On the same day the court rendered a final decree in the cause, which was entitled both of the original and cross cause, and which began as follows: 'This day came the several parties to the said cause and cross-cause, by their respective solicitors.' The decree then proceeded to overrule the motion of the complainant Dumont for leave to dismiss the bill, and ordered the payment of the sum of $134,733.23 to the rolling-mill company, found due it by the interlocutory decree theretofore entered, with interest, and, in default thereof, that all of the railroad, with its appurtenances, of the Illinois River Railroad Company be sold free and clear of all incumbrances in favor of any of the parties to the suit; the proceeds to be applied,-First, to the payment of costs; second, to the payment of the sum so found due the rolling-mill company; and the surplus, if any, to be paid to the clerk of the court. The court further decreed that the rolling-mill company have execution against the Alton Railroad Company, the Illinois River Railroad Company, and the construction company, for the sum of $29,796.30, together with interest thereon from the sixteenth day of December, 1878, found due to it by the interlocutory decree theretofore entered.

The Massachusetts Mutual Life Insurance Company, as an intervener in the cause, on June 10, 1880, took and perfected an appeal from the said decree, and on the next day Dumont and the Alton Railroad Company appealed from the same decree; the Illinois River Railroad Company, the construction company, Hancock and Beckwith, having refused to join in such appeal. By the appeal last mentioned the final decree of the circuit court is brought under review.

C. Beckwith, for Chicago & Alton R. Co.

S. W. Packard, for Mass. Mut. Life Ins. Co.

Lyman Trumbull and H. A. Gardner, for Union Rolling-Mill Co.

WOODS, J.

title: Chicago v. Union Rolling-Mill Company


text: Talk:Chicago v. Union Rolling-Mill Company