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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,) "shall be sufficient and effectual to rest the legal estate in the purchasers, their heirs and assigns, according to the import oj 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,
"It seems to us clear," said POLLOCK, C. B., in Stockport Waterworks 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 bis 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 III. 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.'
Notloy 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. Schur. meir, 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, notwith. standing the language of the act of 1745, c. 9, § 10, which was held to authorize the improvements therein spoken of, to be made by im. provers in front of their own lots only. Duyan v. Baltimore, 5 Gill & J. 357; Wilson v. Inloes, 11 Gill & J. 351. The*“full property in the shores 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. Freemin, 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 thereto, 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, wbich, 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 Pocomac 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 division, 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 descrip