
    The District of Columbia vs. J. H. & E. K. Johnson.
    Law.
    No. 19,485.
    Decided March 2, 1881.
    The Chief Justice and Justices Wvlie and HXsnek sitting,
    1. Distinction between publie and private wharves on the river front of the city of Washington.
    2. The corporation charter of the city of Washington gave the latter power to control and make disposition of public wharves and to regulate and police private wharves.
    3. The corporation of Washington, in December, 1867. passed an ordinance granting authority to defendants to construct a wharf at a point on the river front of the city in consideration of the payment of an annual rent of §1000 for the term of ten years. The ordinance was to take effect on the execution by the grantees of a bond to fulfill the requirements of the ordinance. The grantees gave the bond and entered into possession. In 187S, the District of Columbia brought an action to recover the accrued rent.
    
      Held, That the grantees by entering into possession of the premises and accepting the terms of the ordinance made the latter the written memorandum of the contract, which was of itself sufficient to take the case out of the statute of frauds, although if necessary the court could And an additional memorandum in the execution of the bond under the requirements of the ordinance.
    Held, also, that the District of Columbia was the proper party to bring the action.
    4 It is error to admit in evidence an alleged ordinance of the corporation of Washington without further proof of its enactment, than the fact of finding it printed in a publication entitled, “Laws of the Corporation of the City of Washington passed by the Sixty-fifth Council. Printed by order of the Council. Washington. B. A. Waters, printer, 186S.”
    5. The lessee will not be allowed to dispute his lessor’s title after lie has acknowledged it and entered into possession, bnt if he has never taken possession under that title, or if the estate has never existed which it is claimed was contracted for, the lessee may show it and it is error for the court to take from the jury evidence bearing upon that point.'
    6. It is the province of the jury, and not of the court, to estimate under the proof the damages in an action for rent. This is the uniform rule and practice, and if the court take the case from the jury as to the amount to be recovered, it will be error.
    STATEMENT 03? TIIE CASE.
    Motion, by both parties, for new trial on exceptions.
    This was a suit instituted by plaintiff to recover from the defendants $15,000 for rent of a wharf on the Potomac river, between Twelfth and Thirteenth streets west, in the city of Washington. Plaintiff’s declaration was as follows :
    “ The plaintiff sues the defendants for that, at their special instance and request heretofore, the Board of Aldermen and the Board of Common Council of the Corporation of Washington, on the seventh day of December, 1867, at the City Hall in said District of Columbia, passed a special ordinance, which was duly approved by the mayor of said city on said day, whereby said J. H. and E. K. Johnson were permitted and authorized to construct a wharf on the Potomac river, at a point between Twelfth and Thirteenth streets west, and erect thereon such buildings as might be necessary in the fishing business ; said wharf to be constructed pursuant to the first section of the act of January 8, 1831, and to be completed within one year. In consideration of which said grant, the defendants were to pay to the corporation of Washington the annual rent of $1,000, quarterly, for a term of ten years ; said rent to begin at and from the time of the completion of said wharf, and end ten years from the passage of said act ; said wharf to be kept as required by the second section of said act of 1831.
    “Aud the plaintiff further says that the defendants accepted the terms and provisions of said act, entered upon the premises, erected said wharf and buildings, completing the same February 1, 1868, and have had and enjoyed the same from that time hitherto, and thereby became and were liable to pay to said corporation of Washington from the 1st day of February, 1868 until the 1st day of June, 18.71, the rent at the rate of $1,000 per year, and from said 1st day of June, until the commencement of this suit, said rent was and is due to the plaintiff; for all of which rent the plaintiff brings this suit, with interest from the various dates at which the same became due under said act, an authorized copy.of which is to. the court here shown.
    “ Aud also for the sum of $15,000 for rent of a wharf on the Potomac river, between Twelfth and Thirteenth streets west, holdeu by the defendants of the plaintiff: Also for $15,000 due the corporation of Washington for rent of wharf.”
    The defendant pleaded the general issue and the statute of limitations, upon which issue was joined.
    On the trial the plaintiff1, to maintain the issue on its behalf, offered to read in evidence to the jury from a publication entitled “Laws of the Corporation of the City of Washington, passed by the Sixty-fifth Council. Printed by order of the Council. Washington. R. A. Waters, printer. 1868 ” : an alleged ordinance of the late Board of Aldermen and Board of Common Council of the city of Washington, as the ordinance referred to in the plaintiff’s declaration, without further proof of its enactment than the fact of finding it printed in the above publication.
    This ordinance was entitled, “ An act granting permission for the construction of a wharf on the Potomac river, between Twelfth and Thirteenth streets west,” and authorized J. Ii, and E. K. Johnson to construct, at their own expense, and pursuant to the provisions of the first section of the act of January 8, 1881, a wharf and buildings located as above, in consideration of the payment bj^ them to the corporation of Washington of the annual rent of $1,000 for ten years from the date of the act .(December 7,1867), at the end of which time they were to convey the said wharf and all its appurtenances to the corporation free of any cost or charge therefor. By a provision of the fourth section the act was not to take effect until a bond in the sum of $6,000, conditional to a “faithful fulfillment of all the requirements of this act,” had been executed by the grantees.
    To the reading of this alleged ordinance the defendants objected on the grounds—
    “ 1. That there v'as no sufficient proof that said pretended ordinance had ever been passed or was an ordinance of the late Mayor, Board of Aldermen, and Boai'd of Common Council of the city of Washington.
    “ 2. Said Mayor, Board of Aldermen, and Board of Common Council of said city had no power to pass into a law any such bill or ordinance.
    “ 3. 'Said Mayor, etc., had no jurisdiction over the subject-matter.”
    The court overruled the objection, and permitted the ordinance to be read. The defendant excepting to the ruling of the court.
    The plaintiff also proved, by producing the original, an ordinance passed by the same corporation on the 22d of January, 1868, amending the ordinance of December 7, 1867, so as to make the wharf therein authorized to be erected one of the established fish wharves having the exclusive privilege of receiving and landing such fish as should be brought to the city of Washington.
    The following bond given by the defendants in pursuance of the fourth section of the ordinance of December 7th, 1868, above mentioned, was then put in evidence by plaintiffs:
    
      “Know all men by these presents, that Mr. James Tí, Johnson and E. K. Johnson, and Charles B. Church, all of Washington county, in the District of Columbia, are held and firmly boiind unto the Mayor, Board of Aldermen and Board of Common Council of the city of Washington, in the full and just sum of six thousand dollars, current money, to be paid to the said Mayor, Board of Aldermen and Board of Common Council, their certain attorney or successor in office, for which payment well and truly to be made and done we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this 7th day of February, one thousand eight hundred and sixty-eight,
    “ Now, the condition of the above obligation is such that if the above.bounden James H. Johnson, E. K. Johnson, their' heirs and assigns, do and shall faithfully, diligently and honestly execute, perform and fulfill all and singular the requirements of an act passed and approved December 7th* 1867, by the corporation of the city of Washington, entitled an act granting permission for the construction of a wharf on the Potomac river, between Twelfth . and Thirteenth streets "west, granting to the said Johnsons privilege to erect and maintain a wharf on the Potomac river, between Twelfth and Thirteenth streets ; and also at the end of ten years to relinquish and convey to said corporation the said wharf and all of its appurtenances ; then the above obligation to be void, otherwise to be and remain in full force and virtue,
    James Ií. JohNsoN, [n, s,]
    E. K. JOHNSON. [l. s.]
    Chas. B. CnuRon. [u. s.]
    “ Signed, sealed and delivered in presence of—
    O. S. BakeR,
    “ Approved.
    “ RICHARD Wallaoh, Mayor.
    
    Evidence was also introduced to the effect that in the year 1867, and in January and February, 1868, the defendants were attempting to obtain from the late Mayor, Board of Aldermen and Board of Common Council of the city of Washington the exclusive privilege of receiving at 'a wharf proposed to be erected by them, the fish which should be brought to the city of Washington, and for that privilege were willing to pay the corporation one thousand dollars a year ; that the corporation claimed the power to grant such, privilege, and had before that time exercised that assumed power in favor of other parties; that the defendants were the same parties named in the ordinance of December 7, 1868; that they were partners in the fish wharfing business, and took’possession of the premises under this ordinance and executed the bond above mentioned.
    The plaintiff then rested his case.
    Whereupon the defendants, by counsel, moved the court to instruct the jury, that upon the evidence the plaintiff' was not entitled to recover, because of any of the following grounds:
    1. That the plaintiff had offered no testimony to show that the corporation of Washington city had title to or possession of the premises in question, or that the defendants were placed in possession of said premises by the plaintiff.
    2. That said corporation had no legal power* to grant licenses to erect private wharves on the Potomac; and the special ordinance sued on was ultra aires, null and void.
    8. Under section 95 of the Revised Statutes of the District of Columbia, the charter of the city of Washington is continued in force for the purpose of collecting sums of money alleged to be due said city, and enforcing contracts made by it. The District of Columbia is not the proper plaintiff'.
    The court refusing so to instruct the jury, the defendant, after excepting to the ruling of the court, introduced evidence tending to show that the wharf and premises mentioned in the plaintiff’s declaration were at the time of the passage of the ordinance of December 7, 1867, in the possession of one John Pettiboue, who claimed to hold under the United States and not tinder the corporation of Washington, but adversely thereto ; and that on January 18, 1868, Pettibone obtained from the Chief of Engineers of the Army of the United States a written permit or license “to erect, keep, and maintain two good and substantial wharves on the Potomac river, in said city ■{Washington!), not less than eighty-four (84) feet wide, and to extend from the water side of Water street between Twelfth and Thirteenth streets west, to the channel of said Potomac river.'” This paper., which was •“Office of Public Buildings, O-rounds, and Works, Washington, January 18,1868,” purported on its face to have been issued “ by command of Brigadier-General Humphreys, Chief ■of Engineers,- * * * by virtue of the power vested in him, by the act of the assembly of Marylaud, passed December 19, 1791, to license ‘ the building of wharves in the city of Washington, in the District of Columbia, and to regulate the materials, the manner and extent thereof,’ and the several acts of the Congress of the ignited States subsequently passed and approved, substituting the said Chief of Engineers in ¡the place and -stead of the Commissioners in said act of assembly mentioned, and vesting in him the powers, and requiring of him the discharge of the duties vested in and required of the said Commissioners;” and was signed “N Michler, Major of Engineers, Brevet Brigadier-General.”
    Defendants further introduced evidence to the effect that all of Pettibone’s right and interest under this license had come to them by assignment from him; that Pettibone had always denied the right of the corporation of Washington to possession of said premises, and had never held under or of them, but of the United States; that the defendants, notwithstanding the passage of the ordinance of December 7, 1867, and of the ordinance of January 22, 1868, and of the subsequent-execution of the bond by them, were not let into the possession by the plaintiffs, nor by the Mayor, Board of Aldermen, and Board of Common Council of said city, but by Pettibone, and that they claimed under him; that this adverse holding of Pettibone and defendants to the title of the corporation of Washington was well known to the corporation; that defendants, up to March 7,1870, had paid the corporation of Washington $1,740 in consideration of the exclusive “ ffsh-wharfing” privilege supposed to be secured to them by these special ordinances,- that this fish wharfing privilege consisted of valuable fees granted by law and usage for every one thousand fish landed at a wharf, and was entirely distinct from the erection and ownership of a wharf > that the ordinance, not being enforced by the corporation, and fish having been allowed to be landed ata large number of other wharves in the city so as to render the privilege of no value to the defendants, they, on the 7th of March, 1870, requested the corporation to enforce the said ordinance; that the corporation failing to protect defendants, they, on a few days after the 7th of March, 1870, refused to pay any further sum to the corporation, and that they had never made any payment since that date.
    The evidence being closed, the defendant requested the court to grant, among other prayers, the following :
    1. If the jury find, from the evidence, that, on the 7th day of February, 1868 (the date of the bond), the possession of the premises for which rent is now claimed by the plaintiff, was in Mr. Pettibone under a license from, or by permission of, the United States, and he disclaimed the right of the late corporation, known as the Mayor, Board of Aldermen, and Board of Common Council of the city of Washington to said possession, and never acknowledged it; and further find from the evidence, that soon after, and before defendants obtained possession of said premises, Mr. Church and Mr. J. II. Johnson purchased from said Pettibone his right from the United States, and entered into possession of said premises under the right so purchased, and commenced the consti’uction of the wharf thereon, and for several years thereafter continued in possession under the claim of ownership, by virtue of the right purchased as aforesaid; and further find from the evidence, that the defendants went into possession under said right and none other, and have since continuously occupied said premises under a claim of right by reason of said purchase, then the plaintiff is not entitled to recover.
    2. That if the jury find that the party under which the plaintiff claims had no title to the premises in question at the time of the pretended lease to the defendants, and has acquired no title thereto since said lease, and was not in possession at the time of said lease, then the plaintiff is not entitled to recover,
    3. That the special ordinance of December 7th, 1867, sued on in this case, and the acceptance thereof by the defendants — if the jury should find said ordinance and acceptance proved — do not of themselves imply the relation •of landlord and tenant; and if the jury should find that the relation of landlord and tenant is not proved by other testimony, they should find for defendants.
    The court refused to grant auy of these prayers, to which refusal the defendants excepted. The court then instructed the jury that the plaintiff was not entitled to recover more than the rent which had accrued within three years before the commencement of suit, and thereupon instructed them to return a verdict, against the defendants for $3,000 with interest from the date of the commencement of this suit, to which instruction both plaintiff and defendants excepted.
    A. GL Diddle for plaintiff;
    The decision of the court in the steamboat company cases confirms my impression of the law that the Uuited States, as owner of Water street, had the rights of wharfage along the Potomac river. Save by granting licenses or permits to erect wharves, the proprietor has in no way exercised auy powers in the premises. It has never reserved rent for the use of nor attempted to exercise control, or enforce police regulations over wharves. Instead of which it created a municipal government with general powers of legislation and police over the territory where the property is situated ; and I submit that tlie power to regulate wharves is an incident to this general power, and armed the corporation with the right to collect a reasonable rent from the wharves to defray expenses incurred in their control.
    The 7th section of the act of May 15, 1820, the charter of Washington, granted power over our public and private wharves. This statute was m force when the ordinance, the act' of January 8,1831, was passed by the city ('Webb's* Dig-.,- 425)-, which takes general jurisdiction of the whole5 subject. (.3 Stats.)
    The act. of May 17, 1848, repealed the above, and the second section continued the power over fish wharves. (9th. Stats., 223.) Under this act, which was continued till Feb-> ruary 21, 1873, the corporation enacted the fish wharf ordN nance of July 13, 1865. (Webb’s Dig.,. 147.)
    Upon an examination of the ordinance of December 7,. 1867, it will be seen that it authorizes the erection of a fish wharf, which is a public wharf as well, and- was clearly within the expressly granted powers of the corporation.
    Clearly the record- shows that the defendants went into-possession under the ordinance,, became the tenants of the plaintiffs, and are estopped alike by law’, the ordinance, and their bond, from denying their resulting obligation.
    The purchase of the Pettibone license gives them no right against the District.
    As to the admissibility of the ordinance of December 7,. 1867, it was published by the same authority as the other ordinances of the city. It was a public matter, and tire court is now in. the habit of taking, notice of the ordinances of the-corporation- of Washington.
    To- the exception taken by the plaintiff to the ruling, of the court., that the debt was- by simple contract and- within the rule of the th-ree year limitation, my position is that the ordinance,, the act or statute of the corporation,- is of the grade at least of a sealed instrument. 1st Ch-itty Plead., 11 Am. Ed., p. 106 ; Jones v. Pope,.I Saunders, 3-7 ; Croke Car., 513.
    L. G.- I-IiNE. and BntNET & BirNév for defendants,
    1. Ordinance was improperly admitted. I Greenl, Ev.y 480 ; Gilb. Ev., 10 ; Peake, 26.
    2. Ultra vires of corporation, Taylor Land. & Ten., sec. 84, 85; Jackson, v, Morrill, Cro. Car., 109; 4 Du’er, 452-Statute of Frauds, 5, 7, 8.
    3. Demurrer to evidence was well grounded. No- title sliown in plaintiff. No power in plaintiff to license private wharves. Potomac Steamboat Cases; Law of Maryland, December 19, 1781; see Burch’s Digest, 228 ; 2 Stats, TL S., 175; 8 1b., 324; 14 íb., 460.
    Washington City the proper plaintiff Statutes D. C,, section 95.
    Unless the plaintiff let the defendants into possession of the wharf premises it cannot recover. Doe v. Brown,- 7 Ad. & E., 447.
    Defendants went in under Pettibone, who held an adverse title to the city. Rogers v. Pitcher, 6 Taunton, 202; Gravenor V. Woodhouse, 1 Bing., 38; 1 B. & C., 694; 8 B. & C., 475.
    If the plaintiff, or the party under which it claims, had no title to the wharf premises at the time of the pretended lease to the defendants, and has acquired no title thereto since said lease, and was not. in possession at the time of said lease, plaintiff should not recover. Cleves v. Willoughby 7, Hill, 83; IB. &C,694; 3 Ilill. 330.
    If the consideration inducing the defendant to take the so-called lease failed by reason of the neglect of the lessor to perform its part of the agreement, the plaintiff should not recover. Tomlinson v, Day, 3 Br. & B., 681.
    As to the plaintiff's exceptions, the question of the in» capacity of the lessee to dispute his landlord's title is not involved in the plaintiff’s assignment of error, The action is assumpsit; the limitation three years, The evidence shows a disclaimer in 1870, with express notice to the pretended landlord, unbroken possession afterwards for more than eight years by one of the defendants, and no effort by the alleged landlord to assert its right. The disclaimer and notice dissolved the relations of landlord and tenant, if they had ever existed, and each party stood thenceforth on legal rights. The landlord acquiesced, and the statute of limitations beginning to run in 1870, barred the action in 1873, more than five years before this suit was begun. Willison v. Walking, 3 Peters, 43; Ang, on Lira., 444; Peyton v-Smith, 5 Peters, 491 ; 7 Wheaton, 553 ; 8 John,, 283 ; 2 Gill. & J„ 173; 14 Peters, 162; 9 Wall., 601; 2 McLean, 399-
   Mr. Chief Justice Cartter

delivered^ the opinion of the court.

In the case of the District of Columbia v. J. H. & E. K. Johnson, while we have come to the conclusion that this action may be maintained by the plaintiffs, we are com* polled, however reluctantly, to reverse the judgment and remand the case, that it may be tried under proper rules of evidence, and that-the province of a jury may be exercised in the administration of justice. Most of the exceptions are addressed to incidental questions arising in the course of the trial, and relate to the admissibility of evidence in one form or another, several of them strike at the plaintiff’s right to recovery, and become material in the case. One of the first of the objections taken by the defendant is that the city of Washington held no power over the leasehold or licensed estate ; that the title did not reside in the city of -.Washington, Now, if that be true, if the city never had any title to this property, it could not obligate anybody to pay rent on account of it. Whether the city had title,or not depends upon the limitations of the corporation charter. The charter gave it power to control and make disposition of public wharves, and power to regulate and police private wharves. It is claimed by counsel that this was a private wharf, and, therefore, the city of Washington had no right to make disposition of it; that its right was confined merely to police regulations. We do not think this objection well founded. The wharf in question is not a private wharf. The distinction between private and public wharves along the'river front of the city and District is determined by the title to the property. A portion of the river front was held by private individuals as a personal grant, by deed, from the Government, with the right to make such disposition of the property as was compatible with the public easement in this river, and it was with reference to that description of property, that the distinction was taken between public and private wharves. We think there is nothing in this objection.

The next objection made to the right of recovery is, that even if the city of Washington did have title, there was no contract between these parties. The plaintiff makes the contract to consist of a certain ordinance transferring the occupation, under given conditions, of the wharf between Thirteenth and Fourteenth streets to J„ H. & E. K. Johnson upon their performing certain duties on their part and the payment of a thousand dollars a year rent. Here, then, was at least an attempt'to make a contract. Here was a deliberate enactment of an ordinance that, if it had effect, would transfer possession of this property for occupation from the city of Washington to the defendants. If the city had control over the wharf, they had a right to make a contract in regard to it, and we see no impropriety in its being done in this manner. Instead of granting power to the mayor to enter into an indenture of lease with the party, the common council indentured the property themselves, and if the defendants accepted possession under this written declaration of the right to do it by the city of Washington, the ordinance became the memorandum or contract between the parties, and. this will take the case out of the statute of frauds. It was only necessary for the tenant to accept the occupation upon the terms of the contract of the license, which was in writing. We think this disposes of that objection. But if it were necessary, the case furnishes the evidence of a written acceptance, according to the terms of the ordinance, under the signature and seal of the tenants. The ordinance provides that it should go into effect upon the execution on the part of the defendants, of a bond to the city of Washington in the penalty of $6,000 for the performance of the conditions of the ordinance. That bond was executed and delivered, and, thereby, wedded to the ordinance. No writteu contract could have brought the parties nearer together than they were brought by this ordinance, and the bond executed in pursuance of its requirements. But just here we have one of the difficulties which compel us to send this case back. It was objected on the trial that proof was not made, that the ordinance of December 7, 1867, was enacted by the Common Council of the city of Washington, but the court ruled that the ordinance'proved itself.

Now, it is true that this is a purely technical objection, and it looks like trying the virtue of the law to pause and hesitate over it. Nevertheless, we do not see that we can do otherwise. The court cannot afford, under the light of the law, to declare that a document of this sort proves itself in virtue of itself. If that rule prevailed, it would demoralize all proof. Nor is this all; it would be setting a precedent utterly unauthorised by the law and would break up in every way the integrity of evidence. The roles of law in regard to the presenting of proof should be as faithfully guarded as any other features of the administration of justice. We think it was fatal to tolerate the presence of this ordinance as a factor in the trial, without having given it the sanction of proper proof. While there is a great deal to satisfy the mind that this was an ordinance of the city, yet we are compelled to think its admission in this manner erroneous.

Again it is claimed, that even though the city of Wash-sngton had power to lease this property, and even if they did do it, they, nevertheless, did not put the defendants into possession and that they, the defendants, acquired title from another source, the city having had notice from the defendants of that fact, and, consequently, .there is no liability to the plaintiffs for rent; if this be true, it is a good defence. It ought, therefore, to have been treated as an issue in the case, and the defendants allowed the right to show that they had never entered into occupation under the lease. The law permits that to be made an issue. While the tenant will not be allowed to dispute the landlord’s title after he has acknowledged it and entered the premises. Tet if lie has never taken possession under that title, or if the estate has uever existed which it is claimed was contracted for, the tenant may show it. The court took from the jury the testimony on this point, instead of estimating the proof and advising them as to the force of it, and though we think that the execution of the bond and the presence of these ordinances, consummated a contract between Ihe parties as to the title to. this estate, and while we think and have adjudged, as far as in our- opinion it has been necessary in this case, that the title picked up from Pettibone after the initiation of this lease was unavailable to the defendants to justify the withholding of the rent, yet we think that the question was not met as it should have been. Xastly, the court took the case from the jury as to the amount to be recovered, instead of leaving the damages to be estimated by them under the proof, as was their province; and not the court’s. This is the uniform rule and practice. The court has power enough over the verdict. If a proper •one is not rendered it can be set aside until it is rendered.

Judgment reversed and case remanded for a new trial.

Mr. Justice Wylie dissented from the conclusion of the •court, saying that he thought the verdict did substantial justice between the parties.  