VAN ORSDEL, Associate Justice.
This appeal is from a judgment of the Supreme Court of the District of Columbia denying a writ of mandamus to compel the Secretary of War to issue a permit for the construction of a wharf in the Potomac river on the Virginia shore, and within the limits of the District of Columbia. The permit was sought under the provisions of the Rivers and Harbors Appropriation Act of March 3,1899, § 10, 30 Stat. 1151 (33 USCA § 403), as follows: “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor - lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inelosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.”
It is conceded that the wharf here sought to be constructed is not within the limits of any established harbor line. It likewise appears that the plans were approved and recommended by the Chief of - Engineers' and disallowed by ,the Secretary of War upon the stated ground that the allowance of the permit would be against public poliey.
Appellants insist that by the terms of section 7 of the compact of 1785 between Maryland' and Virginia they acquired such-property rights in the waters of the Potomac on the Virginia shore as entitles them, as a matter of right, to a permit at the hands of the Secretary of War. Under this contention we are again confronted with the compact of [139]*1391785 between Maryland and Virginia, relating to the mutual use of the waters of the Potomac river, and whether or not this compact is in foree in the District of Columbia. It has been decided so frequently by the courts that it is not in foree in the District of Columbia as to almost render the question moot. Evans v. United States, 31 App. D. C. 544; Herald v. United States, 52 App. D. C. 147, 284 F. 927; Marine Railway Company v. United States, 49 App. D. C. 285, 265 F. 437; Id., 257 U. S. 47, 42 S. Ct. 32, 34, 66 L. Ed. 124; Smoot Sand & Gravel Corporation v. Washington Airport, 283 U. S. 348, 51 S. Ct. 474, 75 L. Ed. 1109.
The Smoot Case, among other things, finally fixed the boundary line between Virginia and the District of Columbia at the high-water mark on the Virginia shore. In the Marine Railway Co. Case, the court, referring to the compact of 1785, said: “Without going into the history of the compact or reciting it, we only need to remark that it was a regulation of commerce, and while with a view to opening up a route to the West it provided in Article 6 that the Potomac should be considered as a common highway for the purposes of navigation and commerce to the citizens of Virginia and Maryland, and in Article 7 gave the citizens of each State full property in the shores of the river adjoining their lands and the privilege of carrying out wharves, etc., with a common right of fishing, it left the question of boundary open to long continued disputes. It may be laid on one side even if it ever was in foree in the District of Columbia, which has been denied on the ground that the compact was abrogated so far as it affected this land by the grant of Virginia and was not revived by the grant of the United States. Evans v. United States, 31 App. D. C. 544, 550. See Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L. Ed. 1012.”
In the Evans Case, above cited, with approval on the point that the compact was abrogated so far as it affected the District of Columbia by the grant of Virginia and was not revived by the grant of the United States back to Virginia, wo said: “The easements and privileges she possessed in the river, under the compact, were destroyed by the cession to the United States, and, having been lost, they could not be revived by the mere re-conveyance of the territory ceded, unless expressly recreated in the act of retrocession. Regarding the easements • and privileges granted in the compact, the act of retrocession is silent. There being no express revival, there could be no revival by implication.”
Inasmuch as the compact was made between Virginia and Maryland acting in their character as state, the citizens of these commonwealths were not parties to the compact, and it remained within the power of the states, which established whatever rights inured to the citizens of either, to annul or modify the compact at will, consequently the exercise of sovereign authority over the compact, belonging to the states of Maryland and Virginia, passed to the United State with the cession to form the territory of the District of Columbia. Georgetown v. Alexandria Canal Company, supra.
With the cession there was a complete change of sovereignties. The United States superseded that of the state of Maryland and Virginia, and until it recognized the easements and privileges accorded the citizens of Virginia by the seventh paragraph of the compact, the compact became and remained inoperative within the District. Congress has never recognized in any respect the compact, or any rights under it. On the contrary it has by express legislation assumed absolute and complete jurisdiction and control over the Potomac river within the District to- the high-water mark on the Virginia, shore.
Article 7 of the compact provides as follows: “The citizens of each State, respectively, shall have full property in the shore» of the Potowmaek 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 injurei the navigation of the river.” It will be observed that the right to occupy the stream with wharves or other improvements is treated in the compact as merely a privilege in the nature of an easement that may be continued or destroyed by the joint action of the states at will. A riparian right only rises to the dignity of a vested property right in the stream when the title of the riparian proprietor extends to the bed of the stream. In that ease the riparian right clearly is not an-easement, as one cannot have an easement upon his own land. The same would be true of navigable streams where the state has extended the rights of the riparian owner beyond the border of the stream. But this rule has no application here. The compact did' not change the line between the states of Maryland and Virginia. It continued at high-water mark; hence the “full property [140]*140in the shores,” mentioned in article 7, were not property rights in the sense that they vested a riparian owner with seisin or title to the bed of the river below high-water mark. The fee of the riparian, owner in this instance stopped at the water’s edge.
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VAN ORSDEL, Associate Justice.
This appeal is from a judgment of the Supreme Court of the District of Columbia denying a writ of mandamus to compel the Secretary of War to issue a permit for the construction of a wharf in the Potomac river on the Virginia shore, and within the limits of the District of Columbia. The permit was sought under the provisions of the Rivers and Harbors Appropriation Act of March 3,1899, § 10, 30 Stat. 1151 (33 USCA § 403), as follows: “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor - lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inelosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.”
It is conceded that the wharf here sought to be constructed is not within the limits of any established harbor line. It likewise appears that the plans were approved and recommended by the Chief of - Engineers' and disallowed by ,the Secretary of War upon the stated ground that the allowance of the permit would be against public poliey.
Appellants insist that by the terms of section 7 of the compact of 1785 between Maryland' and Virginia they acquired such-property rights in the waters of the Potomac on the Virginia shore as entitles them, as a matter of right, to a permit at the hands of the Secretary of War. Under this contention we are again confronted with the compact of [139]*1391785 between Maryland and Virginia, relating to the mutual use of the waters of the Potomac river, and whether or not this compact is in foree in the District of Columbia. It has been decided so frequently by the courts that it is not in foree in the District of Columbia as to almost render the question moot. Evans v. United States, 31 App. D. C. 544; Herald v. United States, 52 App. D. C. 147, 284 F. 927; Marine Railway Company v. United States, 49 App. D. C. 285, 265 F. 437; Id., 257 U. S. 47, 42 S. Ct. 32, 34, 66 L. Ed. 124; Smoot Sand & Gravel Corporation v. Washington Airport, 283 U. S. 348, 51 S. Ct. 474, 75 L. Ed. 1109.
The Smoot Case, among other things, finally fixed the boundary line between Virginia and the District of Columbia at the high-water mark on the Virginia shore. In the Marine Railway Co. Case, the court, referring to the compact of 1785, said: “Without going into the history of the compact or reciting it, we only need to remark that it was a regulation of commerce, and while with a view to opening up a route to the West it provided in Article 6 that the Potomac should be considered as a common highway for the purposes of navigation and commerce to the citizens of Virginia and Maryland, and in Article 7 gave the citizens of each State full property in the shores of the river adjoining their lands and the privilege of carrying out wharves, etc., with a common right of fishing, it left the question of boundary open to long continued disputes. It may be laid on one side even if it ever was in foree in the District of Columbia, which has been denied on the ground that the compact was abrogated so far as it affected this land by the grant of Virginia and was not revived by the grant of the United States. Evans v. United States, 31 App. D. C. 544, 550. See Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L. Ed. 1012.”
In the Evans Case, above cited, with approval on the point that the compact was abrogated so far as it affected the District of Columbia by the grant of Virginia and was not revived by the grant of the United States back to Virginia, wo said: “The easements and privileges she possessed in the river, under the compact, were destroyed by the cession to the United States, and, having been lost, they could not be revived by the mere re-conveyance of the territory ceded, unless expressly recreated in the act of retrocession. Regarding the easements • and privileges granted in the compact, the act of retrocession is silent. There being no express revival, there could be no revival by implication.”
Inasmuch as the compact was made between Virginia and Maryland acting in their character as state, the citizens of these commonwealths were not parties to the compact, and it remained within the power of the states, which established whatever rights inured to the citizens of either, to annul or modify the compact at will, consequently the exercise of sovereign authority over the compact, belonging to the states of Maryland and Virginia, passed to the United State with the cession to form the territory of the District of Columbia. Georgetown v. Alexandria Canal Company, supra.
With the cession there was a complete change of sovereignties. The United States superseded that of the state of Maryland and Virginia, and until it recognized the easements and privileges accorded the citizens of Virginia by the seventh paragraph of the compact, the compact became and remained inoperative within the District. Congress has never recognized in any respect the compact, or any rights under it. On the contrary it has by express legislation assumed absolute and complete jurisdiction and control over the Potomac river within the District to- the high-water mark on the Virginia, shore.
Article 7 of the compact provides as follows: “The citizens of each State, respectively, shall have full property in the shore» of the Potowmaek 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 injurei the navigation of the river.” It will be observed that the right to occupy the stream with wharves or other improvements is treated in the compact as merely a privilege in the nature of an easement that may be continued or destroyed by the joint action of the states at will. A riparian right only rises to the dignity of a vested property right in the stream when the title of the riparian proprietor extends to the bed of the stream. In that ease the riparian right clearly is not an-easement, as one cannot have an easement upon his own land. The same would be true of navigable streams where the state has extended the rights of the riparian owner beyond the border of the stream. But this rule has no application here. The compact did' not change the line between the states of Maryland and Virginia. It continued at high-water mark; hence the “full property [140]*140in the shores,” mentioned in article 7, were not property rights in the sense that they vested a riparian owner with seisin or title to the bed of the river below high-water mark. The fee of the riparian, owner in this instance stopped at the water’s edge.
■ If the compact created in the citizens of Virginia a vested property right in the river, the authority of the states could not be exercised- to its destruction without due compensation. ■ But as we have observed, the privilege-thus granted was subject to the will of'the-sovereignties of Maryland and Virginia as long as Maryland retained the title to the bed of- the river and Virginia possessed merely the-commercial rights granted under the. compact; but when these sovereignties surrendered the territory composing the District . of Columbia to the United States, all those rights and privileges passed to the new sovereign and were subject to its will and control, and until recognized by the United States they were extinguished. Not having been recognized, the act of recession to Virginia did not revive them.
It is urged by counsel for appellants that the Maryland Act of March 12, 1786,1 by whieh the compact was ratified, has not been repealed and became a law of the District under the organic act of 1801 (2 Stat. 103), D. C. Code 1924, § 1636, continuing the laws of Maryland in force in the District of Columbia. The Maryland act merely imparted-legal force to the compact, and since the compact, as ratified, never was in force •in-the District, the act of ■ ratification never became a part of the law of the District.
. [2] It seems to be conceded by counsel for appellant in this ease that there is no vested property right in the river, since they endeavor to attach to their clients the rights .-accorded under the compact on the basis of riparian ownership. Nothing is better settled than the common-law rule that “the ti,-tle and the dominion in lands flowed by the tide were, in the King for the benefit of the Nation.. Upon the settlement of the Colonies, like rights; passed to the grantees in the.royal charters, in trust for the eommuni;ties to be established.” Shively v. Bowlby, 152 U. S. 1, 57, 14 S. Ct. 548, 38 L. Ed. 331. "This.right of dominion and control by the .sovereignty extends to. the states and-in the District of Columbia-to the United States. '.It,is,of-.course within the sovereign power ‘.to regulate and control the shores of tidewaters and the land under them as was «exercised by the. Crown of: England. “The state may even dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them,.and granting fisheries in particular localities; also, by the reclamation of submerged flats, and the erection of wharves and piers, and other adventitious aids of commerce.” Shively v. Bowlby, supra, 152 U. S. 46, 14 S. Ct. 548, 565, 38 L. Ed. 331.
Assuming, as we must, that the provision of the Rivers and Harbors Act, above quoted, applies to the Potomac river within the District of Columbia, as to all other navigable waters of. the United States, the only way that a riparian owner of land bordering upon the Potomae river can acquire a wharf-age right is through a permit issued by the Secretary of War. Congress has conferred its unlimited discretionary jurisdiction in, this particular to the Secretary of War, and in granting these permits he exercises the power that might otherwise be exercised by the sovereign. This brings us to the important point for consideration in this ease, and upon whieh, regardless of the compact of 1785, we think the ease turns; the discretionary power of the Secretary of War in refusing this permit.
To entitle appellants to a permit, it must clearly appear in this proceeding, not only that a positive ministerial duty is imposed upon the Secretary of War to issue the permit, but it must also appear that the appellants have a clear and unquestionable right to compel the performance of that duty by the Secretary. Appellants in their petition, among other things, allege: “That on the-24th day of June, 1929, Charles H. Great-house was the owner of the property described in paragraph 3 hereof, and on that date he entered into an agreement to sell said real estate to the Sun Oil Company, said sale being contingent upon the granting of permission to erect tanks, warehouses, and other equipment thereon, and the construction of requisite wharfs, piers, pipe lines, and moorings out from and in front of said property into and in the Potomae River for the loading and unloading of tanks, barges, and other light vessels; that under the terms of said agreement application for such permission could be made by the said Charles H. Greathouse at his option either in his own name or in the name of the Sun Oil Company.”
It appears that the application for permit was originally made in 1929 by the Sun Oil Company in its own name; and with the positive assertion of ownership of the property in question. It appearing upon investí[141]*141gation that the Sun Oil Company was not the owner of the property, hut that its only interest arose out of the above contract, the Secretary of War refused the permit on October 15, 1930. So far as the record shows, the Sun Oil Company at this point dropped out of the controversy.
It is further alleged in the petition: “That on, to wit, April 29, 1930, the said Charles H. Greathouse conveyed the real estate herein described, and all rights under the agreement and application above referred to, to these plaintiffs. That on the 9th day of May, 1930, while said application was pending before the Chief of Engineers, plaintiffs entered into an agreement with the Sun Oil Company for the sale of said lands containing the same provisions as those in the contract of Charles II. Greathouse, hereinbefore described. Plaintiffs, under the terms of said agreement, and as owners of said real property, are entitled to all benefits and inchoate rights resulting from the'efforts of the Sun Oil Company to obtain permits for .such construction.”
Appellants now contend that they have the right to take up the case-where the Sun Oil Company left off, and that under the original contract they fall heir to all “benefits and inchoate rights” which the Sun Oil Company may have acquired. It is clear, therefore, that the present appellants are not the real parties in interest. They have no intention of constructing a wharf. Their interest and only interest asserted in this appeal is to secure a permit to enable them to sell their land. In the last analysis the permit is sought to promote a real estate speculation which at most amounts to a mere contingent expectancy that may or may not materialize. Appellants are not seeking to build a wharf for themselves, nor to obtain a permit for themselves. The permit is for the Sun Oil Company. The contract provides, in substance, that if the permit given by the Arlington county officials for the erection of storage tanks on the upland is continued, and if the Secretary of War grants the permit for the erection of the wharf, then, and in that event, the Sun Oil Company will purchase the property.
It will be observed that those matters are conditional, contingent, prospective, and inchoate. It is elementary that the writ of mandamus will only issue for the enforcement of a right which is complete, and not merely an inchoate right. High on Extraordinary Legal Remedies, § 10. In 38 Corpus Juris, page 586, § 57, it is said: “Mandamus will not issue to enforce a right which is conditional or incomplete by reason of conditions precedent which are still to he performed by the petitioner or the relator or which is contingent upon the further act of a third person or tribunal.”
Section 10 of the Rivers and Harbors Act, giving the Secretary of War power to authorize the erection of wharves in the navigable waters of the United States, is twofold. It forbids the issuance of a permit where the structure will interfere with navigation. In this aspect the Secretary has no discretion, except to determine whether such interference exists. On the other hand, the act confers discretion in the Secretary to grant or refuse permits where the structure will not interfere with navigation, and the Secretary in the exercise of that discretion may take into consideration the character of the structure sought to bo built in any port or “where no harbor lines liave been established,” and in the determination of this matter the Secretary must take into consideration the “location” and the “condition” of the structure and its effect upon other structures or upon the “channel,” or the normal flow of the stream. The Secretary may well have concluded that the structure of the wharf in question, a short distance above a bridge costing millions of dollars, would so alter or modify the course of the stream as to result in damage to the bridge. The Secretary is not required to state the specific grounds upon which his discretion is exercised, providing he is acting, as in this case, in a discretionary capacity. Discretionary power is jurisdictional, and the court, in determining whether or not the decision of an official of the government was within his discretion, will be guided not alone by the specific ground upon whieh the decision is based, but broadly by an examination of the entire record in order to ascertain whether or not the action taken can he reconciled with the law conferring jurisdiction.
The “condition” that seems to have impelled the action of the Secretary in denying the permit grew out of the Act of Congress of June 6, 1924, 43 Stat. 463 (see 40 USCA §§ 71-73), providing for the creation of a National Capital Park Commission, and the Act of May 29, 1930, 46 Stat. 482, known as the Cramton Act, authorizing the development and completion of the George Washington Memorial Parkway. The court below in its opinion, in commenting upon the effect [142]*142of these acts, said: “By the Aet of May 29, 1930, Congress authorized the development and completion of the George Washington, Memorial Parkway, which, as we have pointed out, was to include the shore of the Potomac and adjacent lands from Mount Yemon to a point above the Great'Palls on the Virginia side, and specifically authorized the National Capital Park & Planning Commission, of which the defendant, Lytle Brown, as Chief of the Engineers of the Army, was a member, to occupy such lands.belonging to the United States as may be necessary for the development and protection of said parkway. This certainly prohibits the use and occupancy of the shores of the Potomac River within the District of Columbia for any other purpose. It is coneeded that this parkway will pass over and along the shores of the Potomac River in front of relator’s property. The proposed wharf, if constructed, will necessarily have to be removed before the parkway can be extended over and along that point. This is the situation that confronted the Secretary of War when he was called upon to grant permission for the construction of the wharf.”
Appellants in their petition lay claim to the ownership of a strip of land on the Virginia shore between the high-water marks of 1863 and 1931, where gradual accretions have from time to time extended the shore line into the river, and that the land created by the accretions was conveyed to them by their predecessors in title. Defendant, Secretary of War, in his answer alleges: “Further answering the petition, by way of a separate and distinct answer thereto, respondent states that he is informed and believes and therefore avers that the United States is the owner in fee of the south bank of the Potomae River within the limits of the District of Columbia to the high-water mark of 1792 of the Potomac River.”
The National Capital Park Commission on September 25, 1931, pursuant to the Cramton Act, took action in relation to the claim of the United States tp the ownership in fee of the land created by accretion on the Virginia shore by the following resolution: “This commission, therefore, in accordance with authority granted it by Congress, does hereby take possession of, and occupy, the said lands hereinafter described by actual survey, which will include to center line of channel of the Potomac River in the District of Columbia, for the various purposes and intents as set forth in the said act of Congress, and that such possession and occupation thus referred to be complete and exclusive, and that a copy hereof be posted upon each of the group parcels of land hereinafter described.”
The lands claimed by accretion lying between the present high-water line of the river and that of 1792 are included in the lands described in the above resolution. It was conceded in the argument in this court that notices had been posted upon the lands, and that action has been taken in the Supreme Court of the District of Columbia to determine the title to these lands. In this situation it would seem that the issuance of a permit to construct the wharf would be an act of folly, for the reason that, if it is found ultimately that the government is not the owner of the land immediately adjacent to the river, provision has been made for its condemnation and ample funds appropriated under the Parking Aet to acquire the lands adjacent to the river for parking purposes.
Clearly appellants have established nothing in the development of their ease upon which a legal right to the writ of mandamus can be predicated, and there is nothing in the statute which reduces the duty imposed upon the Secretary to a mere ministerial act. The denial of the permit on the ground of public policy is, we think, fully supported by the record in this case.
The judgment is affirmed.