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Some remarks on the history and uses of Potomac Park online

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SOME REMARKS



ON THE



HISTORY AND USES OF
POTOMAC PARK



BY



ALEXANDER B. HAGNER, A.M.. LL.D.





aajaMSM^i




SOME REMARKS



ON THE



History and Uses of Potomac Park



BY



ALEXANDER B. HAGNER, A.M.. LL.D.

Associate Justice (retired)

Supreme Court of the District of Columbia



1^



WASHINGTON. D. C.

PRESS OF W. F. ROBERTS COMPANY

19 14



Washington, D. C, July i6, 1914.



The Honorable Alexander B. Hagner,
Washington, D. C.

Dear Mr. Justice Hagner: —

We desire the opportunity of having printed in
permanent form for the benefit of the future your recent
address upon the history of the reclamation of the
"Potomac Flats" and the establishment of Potomac
Park. The important and honorable part which you
took in that great project for the preservation of the
water front of the National Capital for public uses, and
especially for the benefit of the whole people as a public
park, by your authorship of the opinion containing the
judgment of the Supreme Court of the District of Co-
lumbia in General Term, in the celebrated Morris case,
which, being affirmed by the Supreme Court of the
United States, determined, forever, that "the rights of
property and sovereignty over the river Potomac, with
its shores and adjacent lands, devolved upon the United
States as the common property of the people, to be
used solely for public purposes for the benefit of the
seat of government," made it especially fitting that you
should deliver that address, and its character makes it
appropriate that it should be published for the benefit
of all who are, or shall be, interested in the develop-
ment of the National Capital. Nothing in your distin-



guished career can give you more pleasure than the
service which you rendered in the Morris case to the
Capital and the country, whose results shall endure for
all time to come.

With appreciation of all your public service and par-
ticularly of the episode resulting in the creation of the
Potomac Park, we beg leave to subscribe ourselves.

Very respectfully and sincerely yours,



Mahlon Pitney

Geo. W. White

Robt. N. Harper

Thos. H. Anderson

Allen C. Clark

W. F. Roberts

Jas. F. Hood

G. W. Baird

Jno. Joy Edson

Mordecai T. Endicott

Glenn Brown

Maxwell Van Zandt WoodhuU

Henry E. Davis

H. D. Rouzer

Hannis Taylor

Otis D. Swett

Oliver Metzerott

Duane E. Fox

Frank Boughton



Henry B. F. Macfarland
Charles E. Munroe
C. F. Bell
Willis L. Moore
Frank W. Hackett
John C. Wilson

F. A. Richardson
J. R. Marshall
John D. Patten
George F. Bowerman
Mitchell Carroll
William Corcoran Hill
Wm. Bruce King
Henry H. Bates

A. B. Coolidge
John B. Larner
Theo. N. Gill

G. W. Littlehales
Fox




Gentlemen of the Cosmos Club:

In performance of a somewhat belated promise to
submit some remarks to my fellow members on a mat-
ter that might interest them, I shall say something
tonight, as briefly as I may, with reference to the his-
tory of the reclamation of the Potomac Flats, with some
suggestions as to a wise method for their management.

The subject is of the utmost importance to the coun-
try at large, and especially to the people of the District
of Columbia. It is intimately connected with the estab-
lishment of our National Government, and is almost
unique in the world's history. Since Rome was founded
by the alleged twin brothers, there had been no instance
of the creation by a people in advance of an unoccupied
locality as its future seat of government — for the found-
ing of St. Petersburg by the great Czar was only the
removal of the capital that was already established to
another spot.

So our Constitution (Article I, Section 5) origi-
nated a novel provision in Qovemment, when it au-
thorized Congress to exercise exclusive legislation in all
cases whatsoever over such district (not exceeding ten
miles square) as may, by cession of particular States,
and the acceptance of Congress, become the seat of the
Government of the United States.



The States of Maryland and Virginia were "the par-
ticular States" that ceded to the Government of the
United States all the territory thereafter constituting
the "ten miles square;" the portion ceded by Mary-
land being more than two-thirds of the entire area
(a large part of it comprehending the Potomac River
and the lands beneath its waters), and, after the accept-
ance of these cessions by Congress, the territory indi-
cated thereby became the seat of the National Gov-
ernment.

At the time of this cession the State of Maryland
claimed title and jurisdiction to the Potomac River, with
the rights to the soil beneath its waters up to high- water
mark on its southern bank. This title was plainly con-
ferred by the words of the grant from Charles the First
to Cecilius Calvert, the second Lord Baltimore, of 20th
June, 1632; and has been affirmed by repeated adjudica-
tions of the courts.*

It may interest such of you as were, in your school
days, inclined to be skeptical as to the practical value of
the study of Latin, to be reminded of an instance where
we became the gainers by a recognition of its grammati-
cal rules. In its English translation the charter de-
scribed the northern boundary (substantially that which
afterward became known as Mason and Dixon's line)
as "passing west in a right line by the degree aforesaid
unto the meridian of the first fountain of the River
Pottomack; thence verging toward the south unto the
urther bank of the said river, and following the same,
on the west and south, unto a certain place called Cin-
quack, situate near the mouth of the said river, where
it disembogues into the aforesaid Bay of Chesapeake."

Lord Baltimore contended that these words impera-
tively carried the meridian line unto the further bank of



*1 Mackay 226, R. R. & Bridge Co. vs. District of Columbia.

6



the river at high- water mark on the southern or further
bank.

The only question that could be made as to the cor-
rectness of this construction arose out of the apparent
ambiguity of the words "the same," which, it was
argued, might refer to "the river" instead of "the bank."
But a reference to the original Latin of the charter re-
moved the supposed doubt, for its words are, "deinde
vergendo versus meridiem ad ulteriorem dicti fluminis
ripam, et earn sequendo," etc. — and as the feminine
pronoun "earn," translated "i/ie same, " must agree with
the feminine ripam, instead of the neuter noun flumen ;
it demonstrated that the charter undeniably declared
that the entire southern boundary was to follow the
further hank, at high-water mark, instead of following
the middle thread of the river.

All these rights to the river and the soil beneath, thus
belonging to the State of Maryland, fully devolved by
the cession upon the Government of the United States,
precisely as they had belonged to Maryland.

It was after the reception of this title that Congress
passed the several laws designed to further the improve-
ment of the River Potomac and the subjacent soil, by
filling up what were called the Flats ; and being apprised
that various claims were advanced by individuals to
rights therein, it passed the Act of August, 1886, en-
titled "An Act for protecting the interests of the United
States in the Potomac Flats," under which it was made
the duty of the Attorney-General to institute suit
against all claimants of title to any part of the marshes
or flats within the limits of the proposed improvements ;
to procure an adjudication and settlement of these
claims.

In performance of these directions the United States
instituted a suit in the Supreme Court of the District of
Columbia against Martin F. Morris, and some fifty
others, who appeared and presented their claims, upon



a variety of grounds; and were represented by nu-
merous counsel, many of distinction.

The litigation assumed very large dimensions; and
the seven printed volumes, and the accompanying maps
and charts, with the exhaustive briefs which the indus-
try and ingenuity of counsel presented, will serve to illus-
trate the history of what may well be classed among the
causes celebres of our legal history.

These documents it is my desire to place in the Li-
brary of the Cosmos Club, and I ask their acceptance
by the Club.

The cause came on to be heard before Chief Justice
Bingham and Justices Hagner and McComas, and was
argued with the fullest allowance of time by some
twenty-four counsel.

The opinion, a copy of which is also placed before you,
examined every point presented that conflicted with the
claims of the United States to its full ownership of the
property.

The Decree, bearing date the 17th of October, 1895, iri
its FIRST paragraph, decided that all manner of claims
under what had been called the Kidwell patent were
invalid, void, and of no effect, and declared that the said
patent was thereby vacated, annulled, and set aside.

By paragraph SECOND it was decided that the claims
of each and all of the other parties defendant, set forth
in their respective answers, to any rights, titles and in-
terests, riparian or otherwise, in the said land or water,
or any portion thereof (except as to the parties and to
the extent thereinafter to be mentioned in the fourth
paragraph of the Decree), were thereby held void.

By paragraph THIRD it was decided that there did
not exist (except as aforesaid) any right, title or inter-
est in any person or corporation being a party to the
cause, to or in any part of the said land or water, ad-
verse to the complete and paramount rights of the
United States to the said land or water; and that the

8



right and title of the United States (except as aforesaid)
to all of the land and water included within the limits of
the said improvement of the Potomac River and its
Flats, as the said limits were described .in the bill of com-
plaint, were thereby held and declared to be absolute
in the United States as against all the defendants to
said cause, and as against all persons whomsoever
claiming any rights, titles or interests therein who might
have failed to appear and set forth their claims.

In the progress of the cause the court had observed
that the Government authorities had erroneously ex-
tended the filling over parts or selvedges of some lots
north of Water Street. Although their owners had
made no claim in the suit for this act of the Government,
the court nevertheless considered they were entitled to
receive an indemnification for such injury as they had
thus sustained ; and with this view it added (sua sponte)
the FOURTH paragraph to the Decree, declaring such
owners were entitled to be indemnified for such impair-
ment of their property rights; and also by paragraph
FIFTH, it directed further testimony to be taken to
ascertain the facts as to value and ownership of the
parts of such lots requisite to a just indemnification in
the premises. These provisions were subsequently car-
ried into effect for the benefit of the said lot owners.

On appeal to the Supreme Court of the United States
the Decree below was affirmed (with a dissent on the
part of two of the learned Justices from one point in the
cause), and thus the Decree of the Supreme Court of
the District of Columbia in this cause stands settled
forever.

It is not too much to affirm that but few causes of
greater interest to the public at large, and none of more
inestimable consequence to the Government at Wash-
ington and to the people of this District, have ever ap-
peared before the courts.



For it had clearly appeared in the progress of the
cause that the manifest purpose of numbers of the
claimants to the properties involved was to wrest them
from the hands of the nation, and apply them, when ob-
tained, to their private advantages, as a giant specu-
lation.

The court had adverted to the evidence that such
claims had already been subdivided into thousands of
parts, which were being placed on the market and con-
veyed to purchasers, upon alleged considerations of ex-
tremely large sums; and that a syndicate had already
been formed which it was hoped would purchase such
interests for a price not less than $1,000,000; and had
further remarked, that "for a Government to part with
a portion of its domain, beneath or in the waters of a
navigable river, to encourage such a scheme, would be
a wide departure from the only legitimate purpose for
which the sovereign would have the power to relinquish
interests it held only in trust for the common use."

The Houses of Congress were evidently impressed
with the great importance of preventing, in the future,
the consummation of the wrong to the public which had
been averted by the decision of the courts; and their
subsequent legislation seemed to have been studiously
framed with such a purpose, in sympathy with the spirit
of the resolution of 1839 that the lands had been ceded
to and acquired by the United States for public pur-
poses, and for those only; thus adopting the conclusions
of the Supreme Court in Van Ness vs. The City of
Washington, 4 Peters 281, as expressed by Mr. Justice
Story:

"The original owners of the lands must have supposed
that Congress would not seek to destroy what its own
legislation had created and fostered into being. On the
other hand, it must have been obvious, that as Congress
must ever have an interest to protect and aid the city, it
would for this very purpose be most impolitic and incon-

10



venient to lay any obstructions to the most free exer-
cise of its powers over it. The city was designed to
last in perpetuity — Capitoli immobile saxum."

The Supreme Court of the District, concurring in
these just views, remarked:

"The entire history of the District, since the com-
mencement of the Government more than a century ago,
exhibits in an unmistakable manner the continuous ex-
ercise by the United States of complete dominion and
exclusive jurisdiction over the waters of the Potomac
and the subjacent soil ; always exercised for the benefit
of the city as the permanent seat of government of the
nation, and in no .instance for that of private individuals.
Nothing could more conclusively demonstrate that, in
the opinion of the successive Congresses, some of them
composed in part of the men who had helped to build
the nation, these great interests (in the words of the
resolution of 1839) had been 'ceded to and acquired by
the United States for public purposes, ' and for those
only; and all the affirmative evidence afforded by this
consistent course of legislative conduct is not opposed
by a single legislative or governmental act to the con-
trary.

"Guided by these considerations in our examination of
the testimony and of the entire case, we are of opinion
that the cession of the territory and exclusive jurisdic-
tion within the District of Columbia by the State of
Maryland, having been accepted by the Government
upon the obligation and trust assumed in behalf of the
people of the United States to establish there the Capi-
tal City which was to become the seat of government
of the nation, the rights of property and sovereignty
over the River Potomac, with its shores and adjacent
lands, devolved upon the United States as the common
property of the people, to be used solely for public pur-
poses for the benefit of the seat of government, could
not be held as vendible to private persons, and in that

11



way available as a source of pecuniary advantage to the
United States."

In this spirit Congress passed the Act of 3d June,
1897, entitled "An Act declaring the Potomac Flats a
public park, under the name of the Potomac Park," in
these words:

"Be it enacted by the Senate and House of Repre-
sentatives of the United States in Congress assembled,
That the entire area formerly known as the Potomac
Flats, and now being reclaimed, with the tidal reser-
voirs, be and the same are hereby, made and declared
a public park, under the name of The Potomac Park,
and to be forever held and used as a park, for the recre-
ation and pleasure of the people."

These words operated as a complete and conclusive
dedication of the properties described to the public uses,
excluding forever all claim of any right in private indi-
viduals or corporations inconsistent with this absolute
dedication to the public — "to be held forever and used
as a park for the recreation and pleasure of the people."

The choice of the name and the contest attending its
selection, tended to enforce the idea of the public char-
acter. For Congress declined to call it by the humdrum
and incorrect name of Riverside, that had already been
given to other localities; but, justly influenced by its
local surroundings and geographical history, it bestowed
upon this lovely domain — but recently a fen and morass,
now reclaimed by the skill of the servants of the nation
— the beautiful appellation belonging to the grand river
whose arms hold it in its embrace on its course, as it
flows in tranquil beauty in front of the unpretentious
but dignified and revered home of the greatest of man-
kind, the Father of His Country— POTOMAC— The
River of Swans.

Under the intelligent care of the public servants we
have seen it growing in beauty and general usefulness,
forming what Congress designed it should be, "a park

12



for the recreation and pleasure of the people," as well
of the citizens of the neighboring cities as of the multi-
tudes of people from elsewhere visiting the city.

There is nowhere to be seen, annexed to any other
city in the world, so lovely a demesne, fertile as the
Delta of the Nile, and enriched by similar agencies of
nature.

The difficulty of clearing the most newly reclaimed
lands has deferred the complete exhibition of what will
be the great result. The eastern part, when intersected
by graceful roads, will be bordered at each step by finest
floral and arboreal beauties; with tasteful lakes, filled
with rare water plants ; with the interesting adornments
of myriads of novel plants that may easily be introduced
from foreign countries, as was formerly practiced by
Government officials for the public use.

In process of time these gardens and drives will be a
wonder and delight to the crowds who will flock to see
them; and will thus become teachers by example.

These and similar advantages will be the result of a
compliance with the precept of Congress when it indi-
cated the purposes for which the Potomac Park should
be used, with a result that will be the delight and admir-
ation of all.



But I regret to say we have heard a project sug-
gested at variance with these wholesome and acceptable
uses, and designed to substitute others that, it seems to
me, would be manifestly in opposition at once to the
wishes of the original owners of the property out of
which the District was formed — of Congress — of the
local legislature, and of the great majority of the people
of the country, and of the District of Columbia in par-
ticular.

13



The project, as I have heard it described, is to con-
vert the eastern part of the Park into a great football
and baseball ground, where vast multitudes are to as-
semble, who will hold full possession of that part of the
Park, to the practical exclusion of every other use ex-
cept for the playing of such games.

Excellent as well-conducted athletic sports are ac-
knowledged to be, I can see no excuse for such a need-
less concession in favor of this class of amusements.
Certainly there can be no necessity for this encroach-
ment upon the people's park ; for almost every evening
one may see at least three to five such games in full play
in the grounds south of the President's house — about
three in the Ellipse and perhaps two near the foot of
the Monument.

All these games are in progress upon public property,
without the slightest charge, as I understand to the
gentlemen who, as the newspapers take pains to inform
us almost daily, "have signed for $10,000," or frequently
for larger sums, exceeding the salaries of the highest
judicial officers in the country; and all this is going on
while there are "grounds" scattered all over the city and
its neighborhood, where, we are told, many thousand
spectators gather at great profit to the corporations or
individuals who are operating these money-making
schemes.

I understand further that some of these athletes, who
contemplate this occupation practically of the eastern
part of the Park, complain that they cannot walk all the
way from the city to the proposed "grounds," and there-
fore they plan to obtain a ferry privilege from the neigh-
borhood of Seventh Street to the beautiful grounds of
the Park — of course, another scheme for making money
by the designers and operators of the said ferry. I fear
the athletic exercises are not so strengthening as their
votaries assert, since their vigor will not admit of the
rather moderate walk they think is too long for them.

14



I have heard that General Banks, whqn a lad, was ac-
customed to walk several miles at nights after his labor
in the mill was ended, to learn the lessons that enabled
him to become Member of Congress, Governor, etc. ; but
then perhaps he had not "signed" for $10,000, or been
"bought out" by one game from another.

We are told 40,000 people frequently assemble to
watch such games. Suppose these plans succeed — what
chance will the other people of the United States (not
"signers" or stockholders) have of using the Potomac
Park ? Many of those other people are taxpayers here ;
some live many miles away; but they would like occa-
sionally to have the benefit of the Park which was de-
signed to be secured to them by the law. How are they
to obtain the enjoyment of what is plainly their right if
this rapacious scheme should prevail ? For these 40,000,
with the "signers," etc., must be furnished with great
buildings to accommodate their great crowds. Who
are to provide all these receptacles; and who are to
receive the charges for renting out the seats; and in
what part of the Acts of Congress referred to is au-
thority given to occupy the Park with the monstrous
wooden sheds to accommodate these thousands?

The United States was supposed to have obtained a
great victory for good order when it was believed the
court's decision would exclude the Ferris wheel and its
numerous congenors from the Park; but if this land is
now to be turned over to the support of the football,
baseball and ferry scheme, the supposed victory would
prove to have been worse than a defeat ; — like the disas-
trous success that befel Pyrrhus, of Epirus.

And who are to keep the peace at those assemblages?
— for it is said there have sometimes been differences
of opinion among the parties interested.

I have suggested these difficulties among many others
that are obvious; for my present purpose is simply to

15



call public attention, without further delay, to this ra-
pacious project and to beg all who hear me to enter their
protests against so dangerous an intrusion upon the
rights of the citizens.

Many people of this city, female as well as male, are
advanced in years. They, for the most part, may be as-
sumed to be well-behaved people, who are not pro-
moters of troublesome crowds in the streets; but who
are engaged in useful industries, and who pay their taxes.
Some of them are told by their physicians that their
health requires they should occasionally take exercise
in the public parks, and some of them even take
the liberty to take the advice. What are these people
to do when they desire to visit the Potomac Park, when
the bleaching boards shall have been erected, and the
ferries are in operation? The "signers" and the twenty
persons who alone play the games, as I understand (nine
on each side and the umpire), may get along pretty well,
if they have "signed off" for the indefinite thousands;
but some of us cannot "sign off." What are they to do
when they find these lands, especially dedicated for "the
recreation of the people," thus monopolized by a favored
game?

Rome, at one time, we are told, was a magnificent and
formidable city — the terror of its opponents; but, as
history informs us, after the great empire had introduced
the vices of the conquered people of the East with the
prisoners brought to swell the triumphs; and had de-
cided to employ those captives to fight its battles, while


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Online LibraryAlexander Burton HagnerSome remarks on the history and uses of Potomac Park → online text (page 1 of 2)