(dissenting).
I cannot concur in the opinion of the court in this case. The appeal is from a decision of the lower court 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 in front of the lands owned in fee simple by appellants. The permit was applied for under act March 3, 1899, § 10 (USCA, tit. 33, ch. 9, § 403, p. 397). The aet will be found copied in full in the opinion of the majority.
The Chief of Engineers, after hearing and examination of the plans and specifications, decided that the proposed structure would not obstruct navigation in the waters of the Potomac river and recommended the granting of the permit. The Secretary of War, though admitting that the proposed wharf would not obstruct navigation, declined to grant the permit on the sole ground that the construction of the wharf might interfere with the plans of the commission appointed under the provisions of the aet of Congress of May 29, 1930, known as the *143Cramton Act (46 Stat. ch. 354, p. 482), in the subsequent establishment of the proposed George Washington Memorial Parkway along the Potomac to Mount Vernon and above Washington to Groat Palls. On the other hand, appellants insist that as the owner of a part of the bank of the river on the Virginia side, they have, under the compact of 1785, the right to build a wharf, subject only to the condition that the same is not detrimental to the public interest in the navigation of the river.
The compact of 1785 was entered into between commissioners appointed by Maryland and Virginia. In its broader aspects it was a regulation of commerce with a view to opening up a route to the West. It provided that the Potomao should be considered as a common highway to the citizens of both states for the purpose of navigation and commerce. Marine Ry. & Coal Co. v. United States, 257 U. S. 47, 42 S. Ct. 32, 66 L. Ed. 124. It did more than this, however, for it fixed the respective property rights of the owners of land along the river on either side to the use and enjoyment thereof as follows: “Seventh, The citizens of each State, respectively, shall have full property in the shores of 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 injure the navigation of the river. * * * ”
The compact was duly ratified by each commonwealth. 1 Dorsey, Md. Laws, 1692-1837, p’. 187; 12 Hening, Va. Stat. p. 500. And the rights thus secured, the two commonwealths, by act of general assembly of each, solemnly pledged their faith should never be repealed or altered without the consent of the other. In 1789 and 1791, respectively, Virginia and Maryland ceded to the United States the territory which became the District of Columbia,. In each act of cession (Burch’s Digest, p. 213; Md. Act 1791, ch. 45) there was a proviso as follows: “Nothing herein contained shall be construed to vest in the United States any right of property in the soil, or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by suoh individuals to the United States.”
In 1846 there was a recession to Virginia of the territory ceded by her to the United States, and this act (9 Stat. 35, ch. 35, § 1) provided: “* * * All the rights' and jurisdiction therewith ceded over the same, he, and the same are hereby, ceded and forever relinquished to the State of Virginia, in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside thereon. * * * ”
We have, therefore, here a case in which the owner of land formerly in Virginia, then in the District of Columbia, and by recession now in Virginia, binding on the Potomae river, and which by accretions has been extended from its original shore line out into the river beyond the original high-water line, claims the right, under the compact, of access to the navigable part of the river and the right to the use of the soil under the river between his land and the line of navigability whereon to erect a wharf.
■ Since the answer depends on the rights granted under the compact, it is unnecessary to refer to established principles with relation to the rights ordinarily of a riparian owner on a navigable waterway, except to note that both in Maryland and in Virginia from early colonial times the right to wharf out has always been recognized as an incident of such ownership. See McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; Shively v. Bowlby, 152 U. S; 1, 14 S. Ct. 548, 38 L. Ed. 331; Groner v. Poster, 94 Va. 650, 27 S. E. 493, and U. S. v. Chandlex-Dunbar Water Power Co., 229 U. S. 53, 33 S. Ct. 667, 57 L. Ed. 1063. If, therefore, the effect of the compact between Virginia and Maryland was to create a property right or even a franchise in the owners of lands on the Virginia side binding on the Potomae river to have access to the channel line for the building of wharves, and if such right was not affected by the cession or recession (as the Supreme Court in terms has declared it was not, Marine Ry. & Coal Co. v. U. S., supra., 257 U. S., page 63, 42 S. Ct. 32, 66 L. Ed. 124), the right of appellants to have the permit applied for, as I view it, is unquestionable. While the precise point has never been decided, several eases in the Supreme Court throw light upon it, and it is proper to consider these cases.
The first that need be noted is Maryland v. West Virginia, 217 U. S. 577, 30 S. Ct. 630, 54 L. Ed. 888. After the original decision, Id., 217 U. S. 1, 30 S. Ct. 268, 54 L. Ed. 645, counsel for the two state submitted drafts of a decree to be entered in the ease, and this brought to the attention of the court for the first time the question whether the boundary line in the Potomac river between the two states should be at high-water or low-water mark on the West Virginia side. In its supplemental opinion, Id., 217 U. S. *144577, 30 S. Ct. 630, 631, 54 L. Ed. 888, the Supreme Court quotes the report of the arbitrators (re the Maryland and Virginia line) as follows: “Taking all together, we consider it established that Virginia has a proprietary right on the south shore to low-water mark, and,, appurtenant thereto, has a .privilege to erect any structures connected with the shore which may be necessary to the full enjoyment of her riparian ownership, and which shall not impede the free navigation or other common use of the river as a public highway.”
And with reference to this, Mr. Justice Day, who wrote the opinion, said: “The compact of 1785 * * * is set up in this case, and its binding force is preserved in the draft of decrees, submitted by counsel for both states. We agree with the arbitrators in the opinion above expressed, that the privileges therein reserved respectively to the citizens of the two states on the shores of the Potomac are inconsistent with the claim that the Maryland boundary on the south side of the Potomac river shall extend to high-water mark. There is no evidence that Maryland has claimed any right to make grants on that side of the river, and the privileges reserved to .the citizens of the respective states in the compact of 1785, and its subsequent ratifications, indicate the intention of each state to .maintain riparian, rights and privileges to its citizens on their own side of the river.”
• -This language, and particularly the latter portion of the quotation, is entirely consonant with the rights claimed here, for it distinctly recognizes the validity of the claim of each commonwealth on behalf of its landowners to maintain riparian rights on their own side of the river. And there is nothing in the later case of Marine Ry. & Coal Co. v. U. S., supra, which challenges this conclusion so far as it relates to .these primate rights. But in the still later ease of Smoot Sand & Gravel Corp. v. Airport, 283 U. S. 348, 51 S. Ct. 474, 475, 75 L. Ed. 1109, which involved alone the question of jurisdiction, the decision in the Maryland v. West Virginia Case is criticized. But in this criticism, and in reaching the conclusion reached in the Smoot Case, the Supreme Court was dealing ■solely with the question of the boundary between the states and not with the question of private rights, so that whatever disagreement there was to the conclusion reached in the Maryland v. West Virginia Case should be and must be confined to the effect of the former decision on the boundary, and that this is true is made apparent by the further language of the court in the Smoot Case, as follows: “The Compact is seen in a different light in Marine Railway & Coal Co. v. United States. As stated in 257 U. S. 64, 42 S. Ct. 32, 66 L. Ed. 124, 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., but left the question of boundary open to long continued disputes. The rights of private citizens established by Article 7 were further eared for by Article 12 giving citizens of each State having lands in the other liberty to transport to their own State the produce of such lands or to remove their effects, free of any charge or tax. But private ownership does not affect State boundaries.”
This distinction, that is to say, the difference between the interstate boundary on ■the one hand and the private rights of prop>erty on the respective river banks on the other, is recognized in Oklahoma v. Texas, 260 U. S. 606, 632, 43 S. Ct. 221, 225, 67 L. Ed. 428, where, discussing the Treaty of 1819 between the United States and Spain (8 Stat. 252), in relation to the use of the waters and the navigation of the Red and Arkansas rivers, in which the treaty provision showed the boundary as “on the bank,” it is said: “This part of the treaty provision is quite unlike the old compact considered in Maryland v. West Virginia, 217 U. S. 577, 30 S. Ct. 630, 54 L. Ed. 888, which gave to the citizens of Virginia full property in the shore of the Potomac, and so carried the jurisdiction and title to the water’s edge,” i. e., to low-water mark.
From a careful reading of these cases, it is clear to me that no more was decided in the Marine Railway and Smoot Cases, supra, than that the territorial limits of the District of Columbia embrace the bed of the Potomac river to the Virginia bank, but at the same time, with due regard to the necessary implications from the quoted language of the opinions in those cases and Oklahoma v. Texas, it inevitably follows that the effect of the compact, as between the two commonwealths, was the indefeasible grant of riparian rights by the state of Maryland to the citizens of Virginia owning land binding on the Potomac river, and that this right included the right to wharf out in front of their respective properties so as not to obstruct navigation. This has never been questioned or denied as between Maryland and Virginia, and it was held by the Supreme Court in Maryland v. West Virginia, supra, to apply as between those states. Why a different rule should apply to the District of Columbia is not apparent. When Virginia ceded to the nation *145the 10-mile strip for the District, it reserved the rights of its citizens to their private property. Among those rights are the rights which the owners of land along the river front embraced within the District then had under the compact, and the rights thus secured are property rights appurtenant to. the upland. The United States, by virtue of the cession, acquired no private rights of property. It therefore took the cession subject to those rights.
This conclusion is based on sound reasoning and finds its support in unquestioned acquiescence from the beginning by the two commonwealths originally involved, and by acquiescence likewise on the part of the United States, for ever since the recession the upland proprietors on the Virginia side, particularly around Alexandria, have exercised, without question or interference on the part of the United States, their rights under the compact asi riparian owners to build and maintain wharves and docks in front of their private property. The Potomae river from its mouth to the District of Columbia divides Maryland and Virginia. The distance is more than a hundred miles. Prom 1632, the date of the charter granted by Charles I to Lord Baltimore, to the time of the arbitration in 1877, there was doubt and some contention as to the precise boundary between the two states, Maryland claiming to the Virginia bank, and Virginia to the Maryland bank, but there was never any dispute during this entire period as to the right of the Maryland upland proprietor to the use of the river in the extension from his upland to the line of navigability in the erection of wharves, and equally no question or # contention of the right of the Virginia upland proprietor to do likewise. These rights were recognized by the compact. If they had been so minded at the time, it is apparent the two commonwealths might also have agreed that the middle line of the river should be established as the dividing line between them, but they did not do this and left that question open, and it was because of this that the Supreme Court felt called upon to say in the several eases referred to above that the true dividing line was that made by the charter to Lord Baltimore, unaffected by the subsequent grant to Lord Culpeper, and that no change having been made by agreement between the states affecting this line prior to the cession to the United States, no arbitration between the states after that event would affect it.
But this is not also true of the rights of property in the shores, for at the time of the cession by Virginia and by Maryland of the territory embraced within the District of Columbia the compact of 1785 by its terms had established such private rights, and these rights, whether they be regarded as a seizin of the land covered with water or a right of occupation only, sometimes termed a franchise, the two states solemnly pledged their faith should never be repealed or altered without the consent of the other. Potomac S. B. Co. v. Upper Pot. S. B. Co., 109 U. S. 672, 685, 3 S. Ct. 445, 4 S. Ct. 15, 27 L. Ed. 1070. And even if it bo conceded that during the period the property was within the District, the United States might, as successor to the rights and powers of both states, have legislated with relation to these rights, it is not contended or suggested they ever did, or that any of the privileges then appertaining to such private property were ever destroyed, and when the United States receded the territory to Virginia, it went back to Virginia, as was said by the Supreme Court in. the Marine Railway Case, supra, “not changed by the grant of Virginia and the re-grant by the United States.” (Italics added.)
In this view, it is perfectly clear that under article 7 of the 1785 compact the landowner of the water front of the Potomae river on the Virginia side was granted all the rights which Maryland could grant to enable him to avail of the privileges of a riparian proprietor; a right recognized as property by both Maryland and Virginia. This right was never withdrawn by act of Congress. It therefore remains undiminished and enforceable to-day equally as though the cession from Virginia had never been made, and what this court said in Evans v. United States, 31 App. D. C. 544, to the effect that the compact, upon the cession, fell of its own weight and upon the recession was not revived, was unnecessary to the decision there, and when attempted to be applied, as it is in the opinion here, to private rights secured under the compact, is wholly wrong and without effect.
In this view we have next to consider whether the Secretary of War acted within his lawful discretion in refusing a permit for the erection of a wharf in front of appellants’ property. The application for the permit was made pursuant to section 10 of the Act of March 3, 1899. The act is intended to provide the assent of the government, under certain conditions, to the building of structures in the public waters, so. as to preserve the public right of navigation. The granting of the permit is a finding that the *146structure to be erected will not interfere with commerce and navigation. The act has no relation in itself to the District of Columbia, except as it applies throughout the entire country. The permit, of course, grants no property right, and ought not to be and is not granted except in a case-where the applicant shows title to the upland bordering on a navigable river. But in such a ease, it has always heretofore issued as of right if it be found that the proposed structure would not impose a burden on navigation. The power to forbid is derived from the commerce clause of the Constitution, and that clause gives Congress control of the navigable rivers in the interest of commerce and navigation. When that condition is satisfied the power falls.
In this ease the title- of appellants to land in Virginia bordering the river and opposite the District is undisputed. It is quite true that appellants’ land has been extended out beyond its original boundaries, but this change has been from natural and gradual processes, which added imperceptibly to appellants’ property on the Virginia bank. This gradual change is known as accretion, and the additional land has thus become an essential attribute of the original prop>erty. That this accretion belongs to the owner of the land has always been recognized in the United States. See Arkansas v. Tenn., 246 U. S. 158, 38 S. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258, and Shively v. Bowlby, supra, 152 U. S. page 35, 14 S. Ct. 548, 38 L. Ed. 331. And in Oklahoma v. Texas, 265 U. S. 499, 44 S. Ct. 571, 573, 68 L. Ed. 1118, the court said: “The boundary between the two states is not an unswerving line, but a river bank, and where through the natural and gradual processes of erosion or accretion the bank is changed the boundary follows the change.”
The case, therefore, is one in which an upland proprietor on the Virginia bank bordering the Potomac river, whose right to wharf out in front of his property is granted by the compact between Maryland and Virginia, unaffected by any legislation on the part of Congress after the cession by Virginia and Maryland to the United States, and whose proposed wharf has been found by the Secretary of War not to be an obstruction to navigation, is nevertheless denied the permit authorized under section 10 of the Rivers and Harbors Act of .1899 ,• and it is insisted on behalf of the Secretary that because of an act of. Congress for the development and completion of the George Washington Memorial Parkway, and because in the carrying out of that project it is intended to construct a parkway along the shore of the river on the Virginia side and in front of appellants’ property, he is entitled thus to exercise a discretion, having no relation to commerce and navigation, in the granting and withholding of the permit. But the permit applied for, as we have already seen, has relation alone, under the statute, to the question whether the proposed structure will interfere with the navigable capacity of the river. This question being decided in favor of the applicant, and his ownership of the adjacent upland being conceded, it must follow that the refusal of the Secretary cannot be sustained on, the ground on which it is sought to place it. He says in his letter denying the permit: “After having gone into the matter fully with yourself and your representative and with Colonel Ulysses Grant, III, the chairman of the National Capital Park and Planning Commission, I have concluded that the development contemplated by you interferes with a public policy.” The public policy to which the Secretary refers is the policy announced by Congress in the act relating to the George Washington Highway. But this has no relation to his duty under the Rivers and Harbors Act. The discretion there conferred on him is to ascertain whether the granting of a permit will obstruct navigation. When it is shown that it -will not, the discretion which the act confers is exhausted, and he may not have resort to another ground as the basis of a refusal to issue the permit. Kansas v. Colorado, 206 U. S. 46, 27 S. Ct. 655, 51 L. Ed. 956; People ex rel. Sprenger v. Department of Health of City of New York, 226 N. Y. 209, 123 N. E. 379.
While the act of Congress to which we. have referred contemplates the building, under the direction of a planning commission, of a memorial parkway which shall extend from Mount Vernon to the Great Palls on 'the Virginia side of the river, we must also take notice of the fact that the act provides that the project shall depend upon the appropriation of certain money 'and the dedication of certain lands or money by the states of Maryland and Virginia, or the political subdivisions thereof, or by private interests, and we are not informed that such action has been taken by either commonwealth, or by any subdivision thereof, or that private persons have advanced the funds or dedicated the'lands necessary to the project. In the meantime, the owner of a water lot bordering the river, entitled to enjoy the advantages thus conferred upon his land by its adjacency to the river, which includes *147the right to access to the navigable part thereof, and which right, whether it be a property right or an easement, cannot be questioned, and whose proposed structure it has been determined will not interfere with the navigation of the river, applies for, and I think is entitled to receive, a permit for the construction of his wharf. In such circumstances, we cannot say that, because at some future time the land or the waters in front of it may be needed for a work of public improvement, his own rights are lost or must he held in abeyance. To hold otherwise is to condone the spoliation of private right by public authority and to approve the exercise of an arbitrary discretion which, if conceded may now and in the future bo both oppressive and dangerous. Appellants’ property is useful only for wharf purposes; but that use gives it value. Without the permit the value is lost, and unless redress can be afforded here, it can be found nowhere else. The case is peculiarly one in which the writ should issue.
Nothing I have said may he construed as suggesting the United States have not the light to take the property. If Congress has authorized its taking for parkway purposes, as to which the record is silent, it may he taken by condemnation in a proper proceeding for that purpose. The United States may perhaps have other rights with which we are not now concerned. But to say that, because at some future time the land or the water in front of it may be needed for a work of publie improvement, appellants’ property rights are lost or must be held in abeyance, is wholly without merit.
The decision of the lower court should be reversed, and the writ awarded.
I am authorized by Judge IIITZ to say he concurs in this dissent.