Supreme Court of United States.
*49 Mr. James R. Caton for plaintiff in error.
Mr. Henry H. Glassie, Special Assistant to the Attorney General, with whom Mr. Solicitor General Frierson and Mr. Leslie C. Garnett, Special Assistant to the Attorney General, were on the brief, for the United States.
*61 MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit brought by the United States in the Supreme Court of the District of Columbia to recover possession of a strip of land on the Potomac River front of the City of Alexandria. Except an insignificant portion as to which no special defence was made and which it is agreed may be disregarded, this strip lay below low water mark until it was filled in by the United States in 1910-1912 by dredging from the bottom of the river and depositing the material on the other side of a riprap wall built on the river bed. Act of June 25, 1910, c. 382, 36 Stat. 630, 639. Act of February 27, 1911, c. 166, 36 Stat. 933, 937. The United States enclosed the made land by a fence at high water mark, but the defendant, the plaintiff in error, claiming title to the adjoining land inshore, destroyed the fence and took possession, whereupon this *62 action was brought. The defendant pleaded to the jurisdiction of the Court alleging that the land was not in the District but was part of Virginia. On this issue the Court found or ruled in favor of the plaintiff and afterwards did the same upon the general issue, a jury having been waived. Judgment for the plaintiff was affirmed by the Court of Appeals and the defendant took a writ of error to bring the case to this Court.
A question is raised by the defendant in error as to the jurisdiction of this Court. The language of the Judicial Code, Act of March 3, 1911, c. 231, § 250, 36 Stat. 1087, 1159, is that any final judgment of the Court of Appeals may be reexamined "First. In cases in which the jurisdiction of the trial court is in issue." The words taken literally cover this case, but it is argued that they should be construed as similar words in § 238 concerning the District Courts are construed. In the latter instance, as is well known, they are confined to the jurisdiction of the District Courts as courts of the United States. But the jurisdiction of the District Courts is a limited jurisdiction based upon statutory grounds, and therefore the words of § 238 naturally enough were confined to what always is the first question in a case before them. The Supreme Court of the District of Columbia on the other hand is a court of general jurisdiction, and whether or not the clause of § 250 was suggested by the earlier one, we see no sufficient justification for denying to it the scope that it must have if it is given its natural sense. The plea to the jurisdiction raises the question clearly, and a certificate would add nothing to what the record shows.
We are not prepared to say that the judgment before us was not "otherwise reviewable" on the question of the boundary between the United States and Virginia, so far as the defendant drew in question the construction of the Revised Statutes relating to the District of Columbia, § 1, June 22, 1874, hereafter discussed. We should hesitate *63 to apply the decision in American Security & Trust Co. v. District of Columbia, 224 U.S. 491, to such a case.
The question of the jurisdiction of the trial Court and that of the merits very nearly coalesce, as the original title, at least, of Maryland and its jurisdiction were founded upon the same facts, and as the United States succeeded to the rights of Maryland by the grant of the District completed in 1791. That the original title of Maryland extended at least to low water mark on the Virginia side it now is too late to deny, in view of the decisions in Maryland v. West Virginia, 217 U.S. 1, 45, 46; s.c. ibid. 577, 578; and Morris v. United States, 174 U.S. 196. An attempt to throw doubt upon these authorities and upon the effect of the charter of Charles I, June 20, 1632, granting Maryland to Lord Baltimore (ad ulteriorem dicti Fluminis Ripam et eam sequendo &c., 217 U.S. 25) "to the farther bank of the said [Potomac] river and following it," by the charters of James I to Virginia and especially by the terms of a grant from the Governor of Virginia to Howsing in 1669 must fail. The latter grant is subordinate to the former and is not inconsistent with it as the language is "extending down Potomack River by various courses 3152 po. making a S. Wtly line to a pokecory" &c. The implication of the words "by various courses" that the grant follows the line of the stream is not changed by the words "including several small creeks or inlets." The land in question is situated upon an indentation, called Battery Cove, but the place is not a creek or inlet. The former decisions of the Court must be followed so far as they go.
The original state of things was not changed by the grant of Virginia and the regrant by the United States of the part of the District on the Virginia side. They at least did not enlarge the rights of that State. The compact between Virginia and Maryland in 1785 also seems to us to have no bearing upon the case. It says nothing *64 about the boundary in terms. 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, &c., 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 force 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.
The question of boundary remaining open was submitted to arbitration which ended in an award accepted by the parties in 1878. But that was an arbitration between the two States and did not purport to affect the boundary of the District. The assent of the United States did not enlarge its scope. Act of March 3, 1879, c. 196, 20 Stat. 481. It is said that as the submission was to an ascertainment of the true boundary line the award must be taken to have determined it, but the question was confined to the boundary between the States as they then were, and whatever may be the force of the argument that the same principle ought to govern here, it was not and could not be adjudicated. Further discussion on this point is not needed. The award fixed low water mark on the Virginia side as the boundary, and is only material if at all as suggesting a claim that the low water line should be drawn from headland to headland and in that *65 way include the indentation or cove where the United States has filled. But we know of no reason for construing the charter to Lord Baltimore as so limited or that to Howsing as importing such a rule.
The only important aspect of the last mentioned suggestion is in connection with a claim of prescriptive right. The land behind the filling of the United States is made land, and the fillings on the Alexandria side go below the original low water mark. In this case, however, there is no attempt to disturb the long maintained possession of such extensions whether originally warranted or not. The only question before us is of the rights of the United States to fill land that hitherto has been under water. The plaintiff in error seeks to exclude it by force of what already has been done and the claims of right that have been made in connection with it. If the taking possession of land were under a deed purporting to convey more than the portion actually occupied, no doubt, within reasonable limits, the sovereign power might give to it the effect of adverse possession of the whole, as against other subjects of the same power. Montoya v. Gonzales, 232 U.S. 375, 377, 378. But the effect of filling in upon the edge of a stream as against a different power is another matter. Such acts in themselves import no claim beyond the land thus occupied. Maryland and the United States are not called upon to scrutinize the discourse of those in Virginia even if in statutory form. Except so far as actually occupied the seizin of the land remains in the party that has the title. "One who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy." Hunnicutt v. Peyton, 102 U.S. 333, 369. Still more is this true as against independent sovereign rights.
Finally, on the other hand, the Revised Statutes relating to the District of Columbia, June 22, 1874, § 1, describe *66 the District as "including the river Potomac in its course through the District," which imports an assertion by Congress that the title of the United States embraces the whole river bed; and the jurisdiction of the District over the river seems to have been exercised without dispute. For cases that have reached the reports see Alexandria Canal Railroad & Bridge Co. v. District of Columbia, 1 Mackey, 217, 225, 226. Smoot v. District of Columbia, 23 App. D.C. 266. Evans v. United States, 31 App. D.C. 544.
It may happen that such filling as is done in this case will interrupt previously existing access to the water front. But that does not affect the right of the United States to possession of the land. What other rights, if any, the plaintiff in error may have does not concern us now.
Judgment affirmed.
