United States ex rel. Washington Acqueduct v. Great Falls Manufacturing Co.

Cochran, J., delivered the opinion of this Court: An appropriation was made by Congress, in 1852, for the purpose of procuring from such place as the President of the United States should approve, a supply of water for the cities of 'Washington and Georgetown, upon condition that it should not be drawn from any source within the limits of this State, without the consent of the Legislature. To advance this enterprise, the Legislature passed the Act of 1853, chap. 179, giving its consent in the following terms: “That if the plan adopted by the President of the United States for supplying the city oí Washington with water should require said water to be drawn from any source-within the limits of the State, consent is hereby given to» the United States to purchase such lands, and to construct such dams, reservoirs, buildings and other works, and to exercise concurrently with the State of Maryland, such jurisdiction over the same as may be necessary for the said purpose.” It was then determined, upon the authority of these acts, to draw the water from the Potomac River, in Montgomery County, at a point above the Great Falls, and the line or site of a damracross the bed of the river, from Conn’s Island to the Virginia shore, was so located as to bisect and divide the tract of land shown by the survey in this case. This survey was had upon a common warrant, issued from the Land Office on the 21st of August 1858, the survey having been returned thereto on the 18th of [132] Atigust 1859. The caveat against the issue of a patent thereon, was filed by the United States on the 20th September following, on the ground that it would be a violation of the rights and privileges vested and granted by the Act of 1853. Other reasons of an incidental nature were also assigned, and duly considered in course of the argument, but as we have reached the conclusion that the case must be determined by the construction of the Act of 1853, it will not be necessary to consider them in this opinion. The Legislature evidently intended by this Act to vest the United States with full power to acquire and appropriate such lands within the limits of the State, as should be found necessary to execute the purpose contemplated -by the Act of Congress; and we may add, that these Acts taken together, constitute a compact, in reference to the subject matter of which the United States and the State of Maryland stand in relation of contracting parties. The assent of the Legislature, given in the 1st sec. of the Act of 1853, to the purchase of such lands by the United States as should be found necessary for the purpose designated, must therefore be construed as a grant of a right to purchase, which the State was not at liberty to qualify or impair by any subsequent Act of the Legislature, or of its public officers. The power to enter upon and appropriate lands by process of condemnation, conferred upon 'the United States, is restricted by its nature, as well as by the terms of the Act, to the property of private persons, and under these circumstances, the grant of the right to purchase clearly implies, so far as the State was the owner of lands that might be required, a promise or undertaking on its part to hold them subject to that right. This implied obligation or understanding, was an essential element of the right of purchase granted to the United States. If it were not so, the State would be able by refusing to part with, or hold its lands for the use proposed, to defeat the right granted, as well as prevent the execution of the purpose contemplated by the Act of Congress, and.to which its consent had been given [133] in the solemn form of a public law. The mutual intention and purpose of these Acts, clearly forbids any interpretation of their several provisions leading to such results. But the proposition hero may be placed upon a broader ground. The United States were vested by the Act of 1853 with a right of choice as to the source of supply, location of dams, reservoirs, buildings and other works, as well as with full power to subject, by purchase or process of condemnation, any property to their use that might he found necessary. Could it he pretended under these circumstances, that the grant of powers so important and exclusivo imposes no restraint upon the power of the State to alienate such of its lands as the United States have declared to be necessary for their use; or upon the other hand, that the State, notwithstanding this grant, may still dispose of its lands in such a way as to oppose or burden these rights and privileges with inconsistent and disabling conditions ? Not at all. The theory, that any right is retained to oppose or qualify the exercise of the powers and privileges granted to the United States by this Act, is supported neither by reason nor authority, and we are constrained to say, that it should be repelled by every public officer and tribunal charged with the duty of maintaining the good faith and honor of the State. This important question was carefully considered in the Can. Co. vs. R. R. Co., in 4 G. & J., 1, and the conclusions of the Court there stated fully sustain the views wo have presented here. In speaking of an Act of incorporation conferring powers and privileges, similar in all respects to those claimed by the United States under the Act of 1853, the Court said that when accepted, “it amounts to a grant, and the rights conferred to a vested franchise, existing independent of any act of location or survey, which the State cannot reassert nor grant to any other,” and is therefore “a prior right to which all subsequent grants must yield.” The priority of the grant establishes a priority of right, whether it attaches to and af [134] fects the lands of the State, or reaches the property of private persons through the common process of condemnation. The appellee does not appear to have proceeded in ignorance either of the rights or purpose of the United States, but on the contrary to have been fully informed in regard to both. The plat returned with this 'certificate of survey, by certain lines, marks and explanations, shows the line or site of the dam as located by the agents of the United States. The right of the United States under the Act of 1853, in its most restricted sense, was fully equal to that of the appellee under the rules prescribed by law for the transmission of the State titles through the agency of the Land Office; and even in that view, to say nothing of the exclusive character of the powers'and privileges granted by the Act of 1853, we must hold'that the United States, by this location, had reached at a prior date the same point in establishing a- valid claim for a title, that the appellee has reached by its warrant for a survey, and the location shown by the return of this certificate. A case is thus presented, in which the United States have a priority of right by priority of location, and, according to the rule well established in this State, that right must prevail. Hoye vs. Johnson, 2 Gill, 291. Can. Co. vs. R. R. Co., 4 G. & J., 54, 150. It is not necessary to determine, whether the United States should take further proceedings to perfect their title, nor the character of such proceedings; it is enough to decide that, in virtue of their powers under the Act of 1853, and the location made, they acquired a priority of right that cannot be disturbed or set aside. If a patent were to issue, the evident result would be a contest with the United States, and, in our opinion, it will be most in accordance with sound public policy, to refuse that which, in the nature of the case, would become both the inducement and weapon of a mischievous and profitless controversy. For these reasons we think the caveat was good, and therefore reverse the order of the Commissioner of the [135] Land Office by which it was overruled with costs to the appellees. (Decided Feb’y 24th, 1864.) Order reversed and caveat sustained.