The rights of the Baltimore & Potomac Railroad were acquired by the Philadelphia, Baltimore & Washington Railroad, which is a part of the Pennsylvania system and will be hereafter referred to as the Pennsylvania Railroad.

The charter of the Baltimore & Potomac Railroad (act of Maryland Legislature, May 6, 1853) provided for the acquirement of a right of way of 66 feet. By the act of Congress of February 5, 1867, the Baltimore & Potomac Co. was authorized to enter the District of Columbia and given power to condemn a right of way, which, under the provision of law affirming the provisions of the Maryland charter, would be 66 feet in width. Entrance into the city and county of Washington was limited by the act of 1867 to a method to be determined, which was formulated in the act of March 18, 1869 (16 Stats., 1), into alternative plans, the route selected being the second one named in the act of 1869, beginning at a point on the northern shore of the Eastern Branch between South Land South M Streets. In the opinion of the Attorney General a right of way 66 feet wide was then acquired, extending from a point on the northern shore of the Eastern Branch and taking a curved direction along the said shore, constituting a perpetual easement on the land of the United States. Subsequently, in consequence of the act of May 14, 1888, according to the opinion of the Attorney General, the railroad company secured an additional right of way 66 feet wide, so that at the date of the opinion it held easements covering two rights of way-one curved and one straight as shown on the accompanying plat, over such land of the United States as there might be from the point of entrance of the railroad on the northern shore of the Anacostia River.

On the south bank of the Anacostia River the Pennsylvania Railroad has acquired a considerable amount of land in fee simple either by deed or by condemnation under the acts of Congress. The parcels which are affected by the present consideration are (1) a tract of land acquired by deed from Thomas Seabrooke et ux., December 23, 1873 (liber 742, folio 400); (2) a tract of land acquired by condemnation proceedings in At Law 7346 from Sallie Smith, widow of John A. Smith; and (3) a tract of land acquired from Frederick W. Schaper et ux., April 17, 1888 (liber 1299, folio 464). All of these properties were acquired in fee, the condemnation stating specifically that the fee was required for railroad purposes, and a consideration was paid equivalent to the probable value of the fee at that time. There was, however, a reservation in the inquisition on the land of Smith of the use of two landings on the Anacostia River and rights of way thereto, and also the reservation of the perpetual use of a spring.

The Pennsylvania Railroad also claims title in fee simple to the so-called square south of 1080, bounded by Fifteenth Street east, Water Street, and South L Street. The dimensions given for this square in the original plan of the city are 344 feet on Water Street, 70 feet on Fifteenth Street, and 222 feet on South L Street. In consequence of filling along the front of the square on the river side of the original high-water line of the Eastern Branch there is now approximately an additional length on Fifteenth Street of 50 feet and, if the line of L Street is prolonged, an additional length on L Street of about 150 feet.

The area of this square as shown by the original plats was approximately 40,000 square feet, and the land included within the lines of

Fifteenth, Water, and L Streets at the present time measures approximately 90,000 square feet, an addition of 50,000 square feet.

To summarize: The rights which the Pennsylvania Railroad claim are a fee simple title on the east bank of the Anacostia River, including the riparian rights. This fee is probably subject to the servitude of two landings on the river front and rights of way thereto previously noted. From the westernmost line of the land claimed in fee simple, the Pennsylvania Railroad claims a right of way 66 feet wide across a tongue of land extending into the Anacostia River from its eastern shore. It also has permission for a bridge across the Anacostia River and two rights of way each 66 feet wide from the north bank of the Anacostia River to square south of 1080. It also claims title to original square south of 1080 in fee simple.

It will be seen upon an examination of the accompanying plat that the shore line of the Pennsylvania property in the parcel marked "2," represented by a broken black line, lies at a considerable distance inland from the present high-water line indicated by the solid black line. By dumping at various times subsequent to 1898, a total of over 200,000 square feet of land has been made on the bed of the Anacostia River exterior to the property line of the Pennsylvania Railroad. The parcel marked 3, containing approximately 24,750 square feet of land, although apparently less than the total area of land at that point, is probably practically identical, the difference arising in the method of locating the shore line, the whole of the parcel marked 3 being apparently natural, nonfilled land and equivalent to a similar projection into the Anacostia River shown on the plat of the property acquired from Sallie Smith.

The United States would probably have the right to recover the land in the parcel marked "2," and it is proposed to straighten the line between the United States and the Pennsylvania Railroad as shown by the broken red line so that the United States would transfer to the railroad that portion of the parcel marked "2," lying between the red line and the broken black line-that is to say, between the proposed line and the present property line of the Pennsylvania Railroad, having an area of 133,655 feet. In exchange for this it is proposed that the Pennsylvania Railroad shall transfer to the United States parcels marked 1 and 3, with a total area of 129,450 square feet; and that the Pennsylvania Railroad shall surrender its riparian rights, it being understood that this surrender is to be considered in connection with the proposed adjustment in square south of 1080.

There seems to be no adjustment necessary as to the right of way across the Anacostia River except to have the present situation affirmed, namely, that the tongue of land attached to the southern bank of the river is to be property of the United States in fee simple subject to an easement to the Pennsylvania Railroad of a right of way 66 feet wide. The transaction as to land on the south bank of the river involves also a consideration of the situation south of square 1080. It is claimed by the United States that the original commissioners of the city of Washington had no power to alienate this land and that the title is still in the United States. It would seem, however, that if this contention is supported the square would be subject to a perpetual easement for a right of way 66 feet wide, and that the United States would have only the naked legal title or reversion after nonuser in so much of the square as may be occupied

by this right of way. There is left, however, a portion of the original square amounting to approximately 14,000 square feet which is not affected by this easement and it is proposed that this shall be transferred to the Pennsylvania Railroad to complete the consideration for the transfer of the riparian rights on the southern bank of the Anacostia River.

While the opinion of the Attorney General held that the Pennsylvania Railroad was at that date entitled to two rights of way from the north bank of the Anacostia River to approximately square south of 1080, one of these rights of way-that known as the curved right of way-has been disused for a number of years, was until recently buried under accumulations washed from the bank above, and is only just now being put into a condition under which it would be possible to run cars over it. In all probability it will never be used for anything but a storage track and a question of nonuse seems to be indicated which it is proposed to waive in the settlement which has been suggested. Between the curved right of way and the straight right of way there is a tract of land inclosed in green lines on the accompanying plat which is undoubtedly land of the United States. It is proposed to remove the curved right of way over to this location, giving the Pennsylvania Railroad a right of way of 132 feet from the point where the curved right of way exists as a separate 66-foot location from the second or straight right of way. This change would result in the lessening of the space occupied by the Pennsylvania Railroad by about 3,000 square feet, due to the substitution of a straight for a curved line of track.

Upon the basis of the foregoing it is proposed that the Pennsylvania Railroad shall surrender all rights on the river side of the red line shown on the south bank of the Anacostia River; all claims except a 66-foot right of way from the westernmost line of its property on the south bank of the river to the beginning of the curved right of way; all claims except a right of way of a maximum width of 132 feet from the last-named point to the south line of L Street and shall disclaim all rights as to land affected by United States v. Smith et al. The condition is, however, made that if at any time the United States offers for sale made land south of square south of 1080, or north of the property line of the Pennsylvania Railroad on the south bank of the Anacostia River, the Pennsylvania Railroad shall have the option to purchase the same at a price which may be fixed by the United States.

It is proposed that in consideration of the foregoing the United States shall convey to the Pennsylvania Railroad all made land on the south bank of the Anacostia River between the red line shown on the accompanying plat and the property line of the Pennsylvania Railroad; shall assent to the final location of a 66-foot right of way across land made or to be made from the westernmost property line of the Pennsylvania Railroad to the point of divergence of the present straight and curved rights of way; to the location of a right of beginning at the point of divergence just noted and extending on a curve equivalent to the present location of the curved right of way until it reaches a maximum width of 132 feet, which maximum width it shall retain until the north line of the 132-foot right of way intersects the north line of the present curved right of way, whereupon it shall proceed on a practicable curve until it intersects the north line of the present straight right of way at or near the south line of L Street;

way

that the 66-foot right of way, and so much of the right of way previously stated as may be necessary, shall proceed through made land south of original square south of 1080 until it reaches the original southern boundary of the said square south of 1080, and that the United States shall convey to the Pennsylvania Railroad the legal title to the land occupied by the present 66-foot right of way through the said square, and shall also convey to the Pennsylvania Railroad in fee all of the land north of the Pennsylvania Railroad's right of way and included within the lines of Fifteenth, Water, and L Streets. The exchange proposed is expressed in square feet of land and considerations as follows:

Upon the acceptance of this proposition, questions will arise as to the method of carrying it out. I have assumed that the title of the railroad company to the land is good for the purpose of alienation and is not subject to reversion in case the land is diverted from use for purposes of the railroad. The local counsel of the road seems to have no doubt that the inquisition on the land of Smith left no remainder or reversion of any sort in the original owner. The question of taxes and encumbrance remains, but these can be attended to on closing the matter as an incident to the final examination of title. I think it possible that it will be necessary to take steps to terminate the landing rights reserved to Smith under the inquisition, but it may appear on further examination that the railroad has merged this reservation by acquiring the remainder of the Smith property by later purchase.

It is possible that the arrangement in square south of 1080 may be made by means of a decree in United States v. Smith et al., or it may be found that the Chief of Engineers has power to execute the necessary conveyance. The readjustment of the right of way on the north side of the river may require congressional action and it is possible that congressional action will be required for the exchange of land on the south side of the river. The first step would seem to be to secure a detailed plan of the proposed relocation of the lines of the Pennsylvania property, and I suggest that the Attorney General address the Secretary of War, stating the general tenor of the proposed relocation and also put the matter in the form of a letter to the Pennsylvania Railroad, suggesting that the company take up the question of a final location of its tracks.

I submit herewith drafts of such letters for your consideration. Respectfully submitted.

O

STUART MCNAMARA.