District of Columbia v. Cropley

23 App. D.C. 232, 1904 U.S. App. LEXIS 5249

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 3, 1904
• Docket: Nos. 1291 and 1292
• Status: Published

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court:

1. The first question presented and necessary to be decided is as to the true construction of the act of Congress of April 1, 1882, authorizing the sale of the property in question; and what was really authorized to be sold and conveyed thereunder, —whether the deed given in evidence by the plaintiffs conforms to the authority of sale and conveyance given by the act of Congress, as to the extent of the property described in the deed.

The property authorized to be sold is declared by the act oí Congress to belong to the District of Columbia, but there is no other description of the property than the numbers of the lots, denominated water lots, and the square in which they are situated, that is to say, bounding upon the water of the river. But from what source, and in what manner, the municipal corporation derived title to the property is not shown; nor is it shown what has been the nature and extent of the use of the property since the title was acquired by the municipality. The deed describes the river line of the property as extending to the middle of the channel of the Potomac river, a tidal, navigable stream; and it is to this extent that the claim is made in this case in respect to the alleged obstruction to the wharf. There is no question of prescription in the case, nor of adverse possession. The plaintiffs only acquired hy their purchase the title to the property that was lawfully vested in the municipal corporation of the. District of Columbia. There is nothing in the terms of the act of Congress authorizing the sale, to require or that would justify the extension of the south or water line of the lots authorized to be sold, to the middle of the channel of the river; and to so hold, in view of the well-settled principles of law, would be a forced construction of the terms of the act, and such as the court is not authorized to adopt. It is a universal principle applicable in such cases, that if the meaning of the words of the statute or conveyance be doubtful or ambiguous, they must be taken most strongly against the grantee and in favor of the public, and therefore should not be extended by implication beyond the natural and obvious meaning of the words; and if these do not support the claim it must fall. Miniurn v. Larue, 23 How. 435, 16 L. ed. 574.

It has long since been settled, and recently most unqualifiedly affirmed by the highest authority of the country, that the grant by Charles I. to Lord Baltimore, on the 20th of June, 1632, included in unmistakable terms the Potomac river, and that, the territory and title thereby granted were never devested, and upon the Bevolution the State of Maryland became possessed of the navigable waters of the state, including the Potomac river, and of the soils thereunder; and, by the act of cession to the United States, that portion of the Potomac river with the subjacent soil, which was appurtenant to and part óf the territory granted, became vested in the United States, as the owner thereof. Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Pep. 649. In that case it was said and held, that* “upon the Eevolution, the State of Maryland became possessed of the navigable waters of the State, including the Potomae river, and of the soils thereunder, for the common use and benefit of its inhabitants; and that, by the act of cession, that portion of the Potomac river, with the subjacent soil -which was appurtenant to and part of the territory granted, became vested in the United States.” See that part of the opinion relating to the claim of the Marshall heirs, from pp. 227 to 232, and also> that part that relates to the Ehdwell patent, from pp. 232 to 244. There is nothing in this case to justify the conclusion that it was the intention of Congress, by the acts of 1881 and 1882, to subject the land lying beneath the waters of the Potomac and within the limits of the District of Columbia to sale by auction by the Commissioners. P. 234.

The principle of construction of public grants of land, bounded by tidal navigable rivers or streams, has been laid down in many decisions by the Supreme Court; and in the comparatively recent case of Shively v. Bowlby, 152 U. S. 1, 13, 38 L. ed. 331, 336, 14 Sup. Ct. Pep. 548, 552, referred to and quoted from with approval by the court in the case of Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649, it is said by the court: “It is equally well settled that a grant from the sovereign of land bounded by the sea or by any navigable tide water, does not pass any title below high-water mark,, unless either the language of the grant, or long usage under it,, clearly indicates that such was the intention.” And further on in the same opinion it is said: “Upon the acquisition of a territory by the United States, whether by cession from one of the States, or by treaty with a foreign country, or by discovery and i settlement, the same title and dominion passed to the United States, for the benefit of the whole people and in trust for the several States to be ultimately created out of the territory” so acquired.

It is quite clear, we think, there is nothing in the acts of Congress of March 2, 1881, or of April 1, 1882, that axxthorized the sale and conveyance of land uxxder the water of the Potomac river; but, by the most liberal construction of those acts, the lots or parts of lots authorized to be sold and conveyed did not extend further down than to high-water mark. If Congress had intended to dispose of land in the bed of the river, and out to the central line of the channel, as was attempted to be done by the deed made by the Commissioners, it is reasonable to presume that the act conferring authority to sell the lots would have so expressly declared. At any x*ate, it was incumbent upon the plaintiffs to show by clear and unmistakable evidence that the United States had been devested of title to the land under the water below high-water mark and out to the middle of the channel, before the plaintiffs, or those under whom they claim, could succeed in supporting a claim in respect to the land below high-water mark. The record before us furnishes xxo such evidence; and the deed in evidence can have no operation to convey title to land below high-water mark.

2. The next question is as to the rights of control of the city of Georgetown, now part of the District of Columbia, over the main sewer south of Water street leading to and emptying into the Potomac river, and which received the water from the mills mentioned in the evidence, and conveyed and discharged the same, with the sewage, into the river; and as to the right of the municipal eoi’poration to change the course of the sewer and divert the flow of the water and sewage to another point of discharge into the river.

There is no question in this case as to negligence, or as to want of capacity of the sewer involved. Nor is there any qxxestion as to the course and location of the original and long-existing sewer of the corporation furnishing the meaxxs of drainage for. a large portion of the city of Georgetown. This old and well-established sewer way, it appears, was adopted as a water discharge fxom the mills erected south of the Chesapeake & Ohio canal, and north of Water street, and the water from those mills flowed under Water street and into the old open sewer way, and was discharged into the Potomac river, together with the ordinary sewage of the city. These mills have been dependent upon the supply of water that they could obtain from the Chesapeake & Ohio canal in the ordinary course of its operation, and such water could only be obtained under the terms of the charter of the canal company, by lease or license, according to terms agreed upon. It is not shown in this case upon what terms and conditions the water was supplied to the mills by the canal company. But what is called the tail race is nothing more than the former open sewer, perhaps enlarged and improved, the better to adapt it for discharging both the sewage of the city and the water from the mills. This was the condition of the premises when the plaintiffs purchased the property described in the deed read in evidence, and it was plainly open to view at the time of the purchase. And now the question is made, as to how, and to what extent, if any, the right of control of the municipal corporation over this old and well-established, and, as we must presume, necessary sewer, has been affected by the purchase by the plaintiffs of water lots 27, 28, and half of lot 29, or, as described in the act of Congress, part of lots 47, 48, and 49 in square 30, under the act of Congress ? Was it the intention of Congress, by tbe act referred to, to authorize the Commissioners of the District of Columbia to devest the municipal government of its rightful authority and control over this sewer, or to restrict such right of control to the extent of denying to the municipal government the right of enlarging the capacity of such sewer, and the sewers that lead thereto, to meet the healthful requirements of the city, and from time to time to repair, aud, if necessary, to make such changes in the location and discharge of such sewers, as circumstances might require ? It would seem to he a very strained construction of the acts of Congress, and of the deed to the plaintiffs, to hold that they furnish evidence of any such intention. The right in and control over all the streets and sewers of the city are held by the municipal government for public use, and to no other use or purpose can they be appropriated, without special legislative sanction. “It would,” says the Supreme Court, “be a perversion of that trust to apply them to other uses.” Meriwether v. Garrett, 102 U. S. 513, 26 L. ed. 204. The same principle is laid down by Dillon, in his work on Municipal Corporations, § 650, where he says: “A municipal corporation has no implied or incidental authority to alien, or to dispose of, for its own benefit, property dedicated to or held by it in trust for the public use, or to extinguish the public uses in such property.” And clearly, if the corporation has no implied or incidental authority to dispose of or extinguish the public use in such property, it has no such power to restrict the use in such manner as to impair the right of full enjoyment thereof by the public, except it be by express legislative authority. This sewer has been, and is still, one of the principal drains, if not the most important drain, of the city. It is described in the bill of exception as the main sewer of Georgetown; and it has continuously, from and since the year 1852, until carried around through Potomac street as set forth, remained uncovered after leaving the canal, until it reached the north side of Water street, and after leaving the south side of Water street, it remained open and uncovered until it emptied into the Potomac river. It was because it was a public sewer of the location described that the water from the mills was turned into it, and it was used as a means of conveying the water from the mills to the Potomac river; and it is, now sought to be established to be a regular watercourse; and the ground of complaint is that it has been unduly polluted and obstructed by the increase of sewage matter allowed to flow therein; and finally, at the southern end thereof, that it has been diverted from its original course and place of discharge. The right of the municipality to use this sewer as a public drain in the manner and to the extent that it has been used by it, prior to the time of bringing this action, would seem to be clear. Indeed, the plaintiffs fully recognized the right of the defendant to use- and control the sewer after they had purchased the lots mentioned in the declaration and proof. By the letter of the 24th of April, 1885, addressed to the Commissioners, they expressly say, that, as owners of lot 29 of the water lots, they “propose improving said lot,” which, as they said, was impossible so long as the government sewer remained open on the property. They therefore requested that the sewer should be covered to the point of discharge in the river, as soon as possible. It was not then a claim to the water that flowed down the sewer, or to any rights that they supposed themselves entitled to therein, but that the public sewer was open, and they desired to have it closed. The sewer was afterward closed or covered, as had been requested, and its course so changed as to cause its discharge at a different point on the river. This would seem to have accomplished what the plaintiff's desired, as they proposed building over the bed of the old sewer.

Upon the whole case, as presented by the pleadings and proof, we discover nothing that can justly entitle the plaintiffs to recover as for a nuisance against the defendant for allowing sewage to flow, even though it may have been increased in quantity in recent years, through and along the established course of the sewer to the river at the point of discharge; nor for the subsequent diversion of the sewage, mingled with the water discharged from the mills, by the covered sewer leading from the original sewer or tail race to the point of discharge on the river west of the place of discharge of the original open sewer. The most that is made to appear as furnishing the least ground of action is the technical breach of the plaintiffs’ close, in entering therein and constructing the newly covered sewer through the western side or wall of the original sewer or tail race; this newly-constructed covered sewer being that which constitutes the diversion, of which complaint is made, and which leads to the new point of discharge on the river front. For this diversion of the sewage and water from the original sewer or tail race there can be no recovery against the defendant, there being no element of negligence, nor any claim for alleged defed ive or insufficient construction of the sewer. There is no question made as to any want of good faith on the part of the municipal authorities in making the change in the course of the sewer; and for the exercise of their judgment and discretion in planning the work the law will not hold the municipality responsible.

As said by the Supreme Court of the United States, in a case taken up from this District: “The duties of the municipal authorities, in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size and at what level, are of a quasi-judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extensive territory; and the exercise of such judgment and discretion, in the selection and adoption of the general plan or system of drainage, is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land.” Johnston v. District of Columbia, 118 U. S. 19, 20, 30 L. ed. 75, 76, 6 Sup. Ct. Rep. 923, 924. And if not liable for insufficient drainage of an adjoining lot, certainly not for the change or diversion of drainage to a more suitable point of discharge. For a very full discussion of the principle of exemption of municipal authorities from liability in this class of cases, see the case of Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592, where it is said in the opinion of the court that “this exemption of municipal bodies and their officers from liability, and corresponding subordination of individual rights and interests to the safety, health, and welfare of the general public, is a principle of frequent application.”

The court below directed a verdict for the defendant on the first aud third counts of the declaration; but directed a verdict for the plaintiffs for nominal damages of one cent, under the second count of the declaration, upon the theory, as we suppose, that there had been an unlawful entry upon the plaintiffs’ premises to construct the covered sewer to the new point of discharge. Both parties have appealed; but this court is not disposed to interfere with the rulings of the court below; and we shall therefore affirm the judgment on both appeals.

Judgment affirmed.