USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 35
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or ground for stairs or passage in their respective bank lots," and then this instrument prescribed, "Fifthly, that the bank lots from the east side of Delaware sixty foot Front street, to the west side of the thirty foot cartway, from the public landing place at the south end of the town to Walnut street, shall be thirty foot deep, and from Walnut street to the northernmost side uf Samuel Carpenter's public stairs, shall also be thirty foot deep, and from the said northernmost side of Sa- muel Carpenter's public stairs, beginning at the said thirty foot, with a bevil line to Chesnut street shall be forty-five foot deep, and from Chesnut street to Vine street, beginning at the said forty-five foot with a be- vil line to New street, shall be eighty foot deep, and from New street to the south side of Benjn. Chambers, his lot, shall be eighty foot deep."
This is the only original document which establishes the public cartway which is now called Water street, and which thus became the most eastern street on the Delaware front.
By the original charter of the city of Philadelphia, which bears date the 25th October 1701, William Penn erected the " town and borough of Philadelphia into a city; which said city shall extend the limits and bounds as it is laid out between Delaware and Schuyl- kill." He then says:
" And I do for me, my heirs and assigns, grant and ordain, that the streets of the said city shall forever con- tinue as they are now laid out and regulated; and that the end of each street extending into the river Dela- ware shall be and continue free, for the use and ser- vice of the said city, and the inhabitants thereof, who may improve the same for the best advantage of the city, and build wharves so far out into the river there, as the mayor, aldermen, and common council, hereinafter mentioned, shall see meet."
After various grants and regulations he proceeds: " And I clo for me, my heirs and assigns, by virtue of the king's letters patent, make, erect and constitute the said city of Philadelphia to be a port or harbour for discharging and unlading of goods and merchandizes out of ships, boats, and other vessels; and for lading and shipping them in or upon such and so many places, keys and wharves, there as by the mayor, aldermen, and common council of the said city, shall from time to time, be thought most expedient for the accommodation and service of the officers of the customs, in the man- agement of the king's affairs and preservation of his duties, as well as for conveniency of trade."
" And I do ordain and declare, that the said port or harbour shall be called the port of Philadelphia, and shall extend and be accounted to extend into all such creeks, rivers and places within this province, and shall have so many wharves, keys, landing places, as mem- bers belonging thereto, for landing and shipping of goods, as the said mayor, aldermen, and common coun- cil for the time being, with the approbation of the chief officer or officers of the king's customs, shall from time to time think fit to appoint."
- The corporation erected by this charter was dissolved at the time of the revolution, but was re-established by the "Act to incorporate the City of Philadelphia," passed the 11th March, 1789.
By the second section of this act, it is enacted, " that the inhabitants of the city of Philadelphia, as the same extends and is laid out between the rivers Delaware and Schuylkill, be, and they, and their successors forev- er are hereby constituted a corporation and body poli- tic, in fact and in law, by the name and style of-" The mayor, aldermen, and citizens of Philadelphia"-with the usual corporate powers; and they were invested by this act with all the rights of the late corporation known by the name of " The mayor and commonalty of Phila- delphia, in the province of Pennsylvania."
By the act entitled " An act to establish a Board of Wardens for the Port of Philadelphia, and for the
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regulation of pilots and pilotages, and for other purpo- ses therein mentioned," passed 29th March, 1803, and the supplement thereto, passed 7th February, 1818, the regulation of wharves to be thereafter erected be- yond low water mark of the river Delaware, was trans- ferred to the board of wardens of the port of Philadel- phia.
By the twelfth section of the act of the 29th March, 1803, it is enacted, "If any person shall erect, make, or fix, or cause to be erected, made or fixed, on any wharf within the city of Philadelphia, any building, in- closure or other obstruction, whereby a free passage over and along the same shall be impeded or prevent- ed, every such person shall forfeit and pay for every such offence, any sum not exceeding one hundred dol- lars, to be recovered in the same manner and for the same uses, as is directed in and by the thirty-sixth sec- tion of this act, and the said wardens shall cause such building, inclosure or obstruction, to be abated or re- moved, if the owner or occupier of any such wharf shall neglect or refuse to abate or remove the same, on three days notice from the said board of wardens; pro- vided always nevertheless, that nothing herein before contained shall be taken or construed in any wise to prevent any such owner or occupier from depositing, during a reasonable time, on any such wharf, goods, wares, and merchandize, unladen from or about to be shipped on board of any ship or vessel, or for the pur- pose of being stored-always allowing a sufficient pas- sage for carts, wagons, and drays, nor in any wise to hinder any person otherwise entitled so to do, from erecting any building or inclosure on any part of such wharflying to the westward of low water mark, or tide- way of the river Delaware."
And by the act of the 25th March, 1805, the authori- ty of the board of wardens was extended " to the river Schuylkill, from the lower falls thereof to its junction with the river Delaware."
Upon the twelfth section of the act of 29tli March, 1803, a judicial construction has been placed by the able and learned President of the Court of Common Pleas of this District, in a suit brought by the master warden against an occupier of wharf property, to re- cover the penalty for obstructing the passage overi t. " The proprietor of land bordering on the river Dela- ware," says Judge King, "has a right to build to low water mark in any and every way that he chooses. He may erect to that limit, buildings of any height. The jurisdiction of the wardens begins at low water mark, and has nothing to do with ground to the westward of it. If, therefore, the obstructions and wharf of the de- fendant be to the west of low water mark, the plaintiff cannot recover.
" There is another point in which I think the plaintiff has totally failed. He has not brought his case within the act of Assembly in regard to the obstructions prov- ed to have been placed upon the wharf by the defen- dant. The obstructions as proved are not within the meaning of the act. I think the obstructions contem- plated by the law must be permanent, something made or fixed, as buildings, &c. They must not be merely casual, occasional, or temporary, such as arise, for in- stance, from throwing out anchors, dirt, or matters of that kind; so that whether the wharf of defendant be above or below low water mark, as the plaintiff has failed in proving the obstructions contemplated by the act of Assembly, your verdict must be for the defen- dant." And the jury accordingly found a verdict for the defendant.
Agreeably to the laws and usages of the common- wealth, your memorialists have become the owners or occupiers of this species of property, most valuable in itself, and the preservation and improvement of which they consider vitally important to the commercial pros- perity of the city of Philadelphia.
On the 16th February, 1830, Stephen Girard, " mer- chant and mariner," and an owner of very valuable and
highly improved wharf property on the Delaware, made his will, by which he devised and bequeathed to " The Mayor, Aldermen, and Citizens of Philadelphia," nearly the whole of his immense estate, for purposes which do honour both to his heart and head.
Amongst other dispositions of the residue of his estate so given to the said corporation, he made the following.
"XXII. And as to the further sum of five hundred thousand dollars, part of the residue of my personal estate, in trust to invest the same securely, and to keep the same so invested, and to apply the income to the following purposes: that is to say --
"1. To lay out, regulate, curb, light and pave & passage or street, on the east part of the city of Phila- delphia, fronting the river Delaware, not less than twenty-one feet wide, and to be called Delaware Aven- ue, extending from South or Cedar street, all along the east part of Water street squares, and the west side of the logs, which form the heads of the docks, or there- abouts-and to this intent to obtain such acts of Assem- bly, and to make such purchases or agreements, as will enable the Mayor, Aldermen, and Citizens of Philadel- phia, to remove or pull down all the buildings, fences, and obstructions, which may be in the way, and to pro- hibit all buildings, fences, or erections of any kind, to the eastward of said Avenue; to fill up the heads of such of the docks as may not afford sufficient room for the said street; to compel the owners of wharves to keep them clean and covered completely with gravel or oth- er hard materials; and to be so levelled that water will not remain thereon after a shower of rain; to complete- ly clean and keep clean all the docks within the limits of the city fronting on the Delaware; and to pull down all platforms carried out. from the east part of the city over the river Delaware on piles and pillars.
"2. To pull down and remove all wooden build- ings, and ' to prohibit the erection of any such build- ing within the said city's limits at any future time.'
" 3. To regulate, widen, pave and curb Water street, and to distribute the Schuylkill water therein upon a plan therein stated.
" By all which improvements," says the testator, "it is my intention to place and maintain the section of the city above referred to, in a condition which will corres- pond better with the general cleanliness and appear- ance of the whole city, and be more consistent with the safety, health, and comfort of the citizens. And my mind and will are, that all the income, interest, and dividends, of the said capital sum of five hundred thou- sand dollars, shall be yearly, and every year, expended upon the said objects, in the order in which I have stated them, as closely as possible, and upon no other objects until those enumerated shall have been attained, and when those objects shall have been accomplished, I authorize and direct the said The Mayor, Aldermen, and Citizens, to apply such part of the income of the said capital sum of five hundred thousand dollars, as they may think proper to the further improvement, from time to time, of the eastern or Delaware front of the city."
The testator then gives three hundred thousand dol- lars to the commonwealth of Pennsylvania, for the pur- pose of internal improvement by canal navigation, to be paid into the state treasury by his executors, " as soon as such laws shall have been enacted by the constituted authorities of the said commonwealth as shall be neces- sary, and amply sufficient to carry into effect, or to en- able the constituted authorities of the city of Philadel- phia to carry into effect the several improvements above specified; namely, 1. Laws to cause Delaware Avenue, as above described, to be made, paved, curb- ed, and lighted; to cause the buildings, fences, and other obstructions now existing to be abated and re- moved, and to prohibit the erection of any such ob- structions to the eastward, of said Delaware Avenue. 2. Laws to cause all wooden buildings as above de-
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scribed to be removed, and to prohibit their future erec- tion within the limits of the city of Philadelphia. 3. Laws providing for the gradual widening, regulating, paving, and curbing Water street, as herein before described, and also for the repairing the middle alleys, and intro- ducing the Schuylkill water and pumps as before speci. fied-all which objects may, I persuade myself, be ac- complished on principles at once just in relation to indi- viduals, and highly beneficial to the public."
On the 24th March, 1832, at the request of the cor- poration of the city of Philadelphia, and in conformity with a bill furnished by them, an act was passed by the Legislature of Pennsylvania, entitled " An act to enable the Mayor, Aldermen, and Citizens of Philadelphia, to carry into effect certain improvements, and execute certain trusts."
This act provides, among other things, for the laying out, regulating, curbing, lighting, and paving Dela- ware Avenue, by the Mayor, Aldermen, and Citizens of Philadelphia; and having laid it out, directs a record of the same to be made in the Court of Quarter Ses- sions for the county of Philadelphia, and makes it law. ful for the said Mayor, Aldermen, and Citizens of Phila- delphia, " to proceed from time to time to open, for public use, any part or parts thereof, and the same to keep onen as common and public highways for ever." And also provides for the assessment and payment of damages incurred by reason of such appropriations of this property to the public use.
The proposed ordinance is framed under this law, and fixes the width of the Delaware. Avenue at twenty- six feet; and by the second section it is declared, " That the Delaware Avenue, as laid out by the first section of this ordinance be, and the same is hereby opened as a common and public highway, and that it shall be the duty of the attorney and the solicitor for the corporation, to make or cause to be made, a record of the same in the Court of Quarter Sessions of the County of Philadelphia accordingly."
Your memorialists, firmly believing that this act of the Legislature, in declaring this passage when opened to be a common and public highway, and the ordinance now before Councils, enforcing this provision, are in direct violation of the will of the testator, and will not only defeat his plain intention, but vitally injure the commercial prosperity of Philadelphia, and most ma- terially reduce, if not destroy the value of the wharf property on the Delaware front, and that the western line of said avenue, as proposed, will unnecessarily take down several very valuable buildings, and amongst others, cut off the eastern front of the new stores of the testator; and also that the width of twenty-six feet was never designed by Stephen Girard, and is not required by public convenience-do most respectfully but earn- estly remonstrate against the passage of this ordinance, and against all proceedings under the said act of As- sembly, that will in any way appropriate the property of your memorialists for the purposes of a public high- way.
Your memorialists beg leave, however, to be distinct- ly understood as approving entirely what they con- ceive to be the intention of that wise man in relation to the Delaware Front, and also to state that they will cheerfully lend their aid to the constituted authorities of the city in carrying the same into full and complete ef- fect.
From the small rise of the tide at Philadelphia, an extension of the wharves below the low water mark was absolutely necessary for the purposes of commerce, and as it was entirely out of the power of the proprie- tary or the commonwealth, or of the city, to build wharves along the whole city front themselves, even had they possessed the right so to do, we find that every en- couragement was held out to the private owners of pro. perty on the Delaware to extend their wharves into the river, and to build them in a substantial manner. This has occasioned a great expenditure of private ca-
pital, and has conduced much to the prosperity of this metropolis, and will enable the corporation of the city at a comparately small expense to effect the real pur- pose of the testator, and to that branch of the subject your memorialists will most respectfully call the atten- tion of Councils.
Stephen Girard was a merchant and an owner of wharf property, admirably acquainted with his own in- terests and those of his neighbours, and, as his will proves, with those of the community at large. In stat- ing his plans,he says, "all which objects may, I persuade myself, be accomplished on principles at once just in relation to individuals and highly beneficial to the pub- lic," and these principles are to be steadily kept in view in construing his testament.
The difficulties that existed on the Delaware, were that in some squares there was not a continuous passage along the wharves, nor a sufficient width between some of the stores and the wharves or docks, and the heads of some of the docks were entirely uncovered at low water-all these difficulties were to be found to a great extent in the square in which he resided and had passed the largest portion of his life. Another evil was, that there was no paved passage along the wharves, and the wharves themselves were in some instances not properly levelled nor covered with a hard material so as to let the water run off.
These evils Stephen Girard saw and practically felt, and in framing his will, his object was to get rid of these inconveniences, and at the same time promote the health of the city without doing any injury to com- merce.
He accordingly directs the city " to lay out, regulate, curb, light, and pave a passage or street on the east part of the city of Philadelpha fronting the river Delaware not less than twenty-one feet wide, to be called Dela- ware Avenue, extending from South or Cedar street all along the east part of Water street squares and the west side of the logs which form the heads of the docks, or thereabouts."
He does not say it shall be a public highway, nor even a public passage, nor a public street, nor a public ave- nue, nor does he use any words which necessarily lead to that conclusion.
" And to this intent to obtain such acts of Assembly and to make such purchases or agreements as will ena- ble the Mayor, Aldermen, and Citizens of Philadelphia to remove and pull down all the buildings, fences, and obstructions which may be in the way." If he had in- tended to make it a highway, all this was unnecessary, but this clause becomes useful and necessary upon our construction of his Will.
" And to prohibit all buildings, fences, or erections of any kind to the eastward of said avenue; to fill up the heads of such docks as may not afford sufficient room for the said street; to compel the owners of wharves to keep them clean and covered completely with gravel or other hard materials, and to be so levelled that water will not remain thereon after a shower of rain; to com- pletely clean and keep clean all the docks within the li- mits of the city fronting on the Delaware, and to pull down all platforms carried out from the east part of the city over the river Delaware on piles or pillars."
In these words there is certainly nothing contradicting the idea that he meant this for a mere passage, and not for a public or common highway.
The Will not necessarily leading to the opposite con- clusion, there are circumstances and reasons appearing in this and other parts of the Will itself, which, in con- nexion with extrinsic matters, in the opinion of your memorialists conclusively establish, that it was not his intention to make it a public highway.
The situation of the square between Market and Arch streets, and of the testator's dwelling and stores on the wharf and on Water street, are important in con- nexion with the Will itself. The' stores on the west side of Water street were built about the beginning of
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the last war, and the new block on the wharf was built in 1827. The repairs to the old store back of his dwell- ing house were commenced in the fall of 1830 and were finished in 1831. His Will is dated 16th February 1830. A public middle or centre alley runs between his older stores and those purchased since the date of his Will.
These are his land marks. In the directions relative to Water street he says, " that Water street be widen- ed east and west from Vine street all the way to South street in like manner as it is from the front of my dwell- ing to the front of my stores on the west side of Water street, and the regulation of the curb stones continued at the same distance from one another as they are at present opposite to the said dwelling and stores, so that the regulation of the said street be not less than thirty- nine feet wide, and afford a large and convenient foot- way clear of obstructions and incumbrance of every nature, and the cellar doors on which, if any shall be permitted, not to extend from the buildings on to the footway more than four feet; the said width to be in- creased gradually as the funds shall permit, and as the capacity to remove impediments shall increase, until there shall be a correct and permanent regulation of Water street on the principles above stated,so that it may run north and south as straight as possible."
His buildings on Water street therefore formed the guide, for the regulation and width of Water street, and the city have placed that construction of this clause of his Will, by declaring that by "not less than thirty- nine feet wide," in connexion with the monuments on the street, he meant thirty-nine feet and no more, and they have accordingly established thatas the permanent width of new Water street.
He has said that this passage shall be "not less than twenty-one feet wide," and by examining his old store that he repaired and new faced towards the river in 1830 and 1831, there will be found just twenty-one feet without any foot pavement between the eastern front and the dock in front of it. This shows that his own buildings on the wharf and his wharves and docks formed monuments by which this passage was to be laid out.
His new store was built in 1827, and is one of the finest buildings of its kind, and was intended by him to form a permanent monument of his skill and know- ledge. By the plan proposed by the committee of Councils, a considerable part of its eastern front must be cut away, and the building itself seriously injured, an effect certainly never contemplated or intended by him when he made his Will.
Assuming then these two stores, and the dock and wharf as land marks used by him, then it follows that the avenue should be only twenty-one feet wide without a foot pavement in front of his old store, and of course of the same width throughout, and that he did not think it necessary to take even one straight line from street to street, because you must take another line to avoid cut- ting down his new store. This is supported by his words. "All along the east part of Water street squares and the west side of the logs which form the head of the docks or thereabouts," and he also omits entirely the language used by him in relation to Water street, which directs " that it may run north and south as straight as possible." All this it will be perceived is in strict consonance with our construction of its being a passage merely, but is entirely opposed to the other construction that he intended it to be a public highway.
There is also another consideration worthy of notice. If this was a public highway, nothing could be conve- niently landed at the head of his dock, nor could goods be allowed to remain at all on the wharf, but must be portered at once from the vessel to the store at a consid- erable additional charge.
It may be that the testator, who had long been a Warden of the Port of Philadelphia, simply intended to carry into effect the Act of the 29th March 1830, which we have already noticed, and which would repudiate
entirely the idea of a public highway. All the objects of the testator will be answered by a continuous pas- sage. Can his intentions be fulfilled if it is to be a pub- lic highway?
The damages to be paid in such case to the owners of wharf property alone, without calculating the cost of curbing, lighting, and paving, and filling up the heads of docks, will be at the very least one million of dollars, and until the city is ready to pay the whole of this sum, the whole of this avenue cannot be opened as a public highway nor even for public use. If the whole income of the five hundred thousand dollars were ap- plied to this object alone, it will be perceived that such a project cannot be affected for fifty years to come.
But this fund has two other objects, the removal of wooden buildings, and the widening of Water street, and supplying it with Schuylkill water, laying iron pipes, establishing pumps and fire plugs, and repairing . the middle alleys. If all these objects are to go on to- gether, then it will be perceived that a still longer de- lay must take place in the opening of Delaware Ave- nue-and if the whole income is to be applied in the first place to that object alone, then it inevitably follows that a main intention of Mr. Girard will be entirely de- feated, that of renovating and improving Water street within any reasonable period of time.
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