In 1776, while drafting the first state constitution of Maryland, and again early in 1777 in the first Proceedings of the newly constituted House of Delegates,  Maryland  proposed a joint conference with Virginia on jurisdictional disputes between the two states and instructed its delegates accordingly. On both occasions, Maryland's duly elected representatives asserted their claim to the sole and exclusive ownership of the waters and bed of the River Potomac:
 

Resolved unanimously, That it is the opinion of this convention, That the sole and exclusive jurisdiction over the territory, bays, rivers, and waters,  included in the said charter, belongs to this state; and that the river Potowmack, and almost the whole of the river Pocomoke, being comprehended in the said charter, the sole and exclusive jurisdiction over the said river Potowmack¹

This resolution was officially delivered to the Governor and Legislature of Virginia by way of a Virginia Delegate to Congress. It reiterates and makes explicit the policy with regard to granting of lands in and on the Potomac River in effect under Maryland's Charter,  and it  forms the basis of  the instructions to Maryland's Delegates to the Conference with Virginia which Maryland proposed in 1777, but  was postponed by the exigencies of war until March of 1785.   The instructions were intended for Thomas Stone, Daniel of  St. Thomas Jenifer, and Samuel Chase in 1777.  They were issued again  in 1785, when the same  three Maryland Commissioners were at last able to act on them, and meet with their Virginia counterparts.  The Maryland instructions for the meeting with Virginia were cordial in tone, but made it clear that the only issues to be decided related to establishing the free navigation of the rivers as common highways,  jurisdiction over that part of the bay lying within the limits of Virginia, and the prohibition of either state extracting tolls for navigating on the Chesapeake Bay.  The general nature of the instructions might be interpreted to apply to the whole of the Potomac River, but by the time the Commissioners met in March 1785, the two states had decided to resolve the matter of the 'free navigation of the Potomac as a public highway' above tidewater separately.  In 1784 they decided instead to entrust the improvement of  navigation of the upper reaches of the Potomac above tidewater to a private company, the Potomac Company, and to allow that company to charge tolls. What would be free below tidewater would not be free above. ²

That the instructions were followed carefully, and were similar to the instructions to the Virginia Commissioners, especially with regard to excluding discussion of the Potomac above Tidewater, was made explicit by James Madison in a letter to Thomas Jefferson immediately following the conference:
 

I understand that Chase and Jennifer on the part of Maryland, Mason and Henderson on the part of Virginia have had a meeting on the proposition of Virga. for settling the navigation and jurisdiction of Potowmac below the falls, [emphasis added]³

Maryland's claim to the whole and exclusive jurisdiction over the use of the waters and the bed of the Potomac River  is substantiated in practice through  the actual patenting and use of the  land along, and in, the Potomac River over its full course from earliest times to the present. This discussion is confined to an analysis of the Potomac River above tidewater.  For documentation  see Appendix I  which analyzes and documents  the grants related to Potomac River above tidewater, including maps locating the tracts in their approximate locations on and in the Potomac River.

No where in the land office proceedings and court cases relating to the granting and use of the waters and the bed of the Potomac River above tidewater is there mention of that use being qualified in any way by the Compact of 1785 or subject to the provisions of the Compact of 1785. The language of the seventh article of the Compact of 1785 which grants Virginia the right to maintain wharves and other improvements does not apply to the non-tidal portions of the Potomac River.  Maryland instructions to its delegates, the Potomac Company legislation,  and the assessment of the chief  Virginia sponsor of the negotiations,  are consistent in limiting such use to structures and improvements such as wharves and piers that related to trade in the tidewater, and never to the use of the water itself.  Such use  of the waters of the  Potomac River for consumption, mills, manufacturing, and other purposes, historically, and in persistent practice, required the explicit unilateral approval and permission of first, Lord Baltimore, and then Maryland, as the sole owner of the river and the bed of the river.

This claim is also supported by Maryland's  legally vindicated,  unilateral gift, in 1853,  of the non-exclusive use of the waters of the Potomac for the consumption of the residents of Washington D. C.⁴   When, in 1854, Virginia addressed the question of condemning land to anchor the dam necessary for the water supply, the act was noticeably silent on the question of water rights and dealt exclusively with the means by which the fast land on the Virginia bank could be acquired.⁵  Subsequently State and Federal Courts upheld the right of Maryland to grant the waters of the Potomac above Tidewater (e.g. Nielson's Choice) and decisions were rendered only to determine the just compensation for the land and water rights (the latter exclusively defined as being solely within Maryland) taken from private parties in the process of constructing a dam for the water supply.  A detailed analysis of the cases and evidence relating to the act of 1853 and the disputes betwen the Great Falls Manufacturing Company,  its successors in title and the Federal Government is contained in the notes below.⁶

Until 1781 the whole of the Potomac River was privately owned by the Lords Baltimore and those who held title under them. Under English Common law, and as it has been applied in England's former colonies, the private owner of navigable and non-navigable rivers has complete jurisdiction over the use of his river, qualified only by the terms of the grant and the public right of passage.⁷  For a modern example of the application of the principal abroad, see the dispute between the Duke of Devonshire and the town of Youghal in Ireland over the use of the Blackwater River.  The Duke's grant, which dates from approximately the same time as the Maryland grant to Lord Baltimore, was for the whole of the river.  After careful review of the Duke's charter and  assessment of the court costs involved, the Town recently withdrew its efforts to contest the Duke's water rights.⁸

After 1747 the whole course of the Potomac  river was known and mapped, although Lord Baltimore and then Maryland, would unsuccessfully attempt to push Maryland's boundary southward to the far bank of another river feeding the Potomac, an argument that was ultimately lost in the  boundary disputes with West Virginia.⁹
 
 

In 1781,  the title to the Potomac River passed to the State of Maryland by virtue of the confiscation of Loyalist property.¹⁰   Because the Lords Baltimore, and then the  State, charged a tax  on all grants of land ( Lord Baltimore's  authority was upheld by the Crown to do so even when for a brief period from 1689-1715 Maryland was a Royal colony), it was not in the best interest of those patenting land, to patent the adjacent water and the lands under the water unless they perceived of a specific purpose for doing so.¹¹  Four shillings per annum per hundred acres before the Revolution and the per acre tax afterwards,  was an unwanted  and unwarranted expense unless the owner needed the water for such a purpose as  a "Fishing Harbour" or "Fish Stands," or for the exclusive route of a ferry from Robert Harper's land, known familiarly as "Harpers Ferry", or for the purposes of attempting to prevent the damming of the river to provide a municipal water supply (as in the case of " Nielson's Desire").¹²   In only one instance did Maryland surrender it's ownership and transfer sole and exclusive title to a portion of the Potomac River.  In 1791 Maryland ceded lands and a portion of the River to the District of Columbia.  As was determined in Morris v. United States, the powers granted were broad and exclusive with regard to the River bed, even after Virginia's cessation was returned.¹³  Yet despite the economic factors inhibiting Marylanders from actually patenting islands in the Potomac and the waters of the Potomac itself for private use,  over time large numbers of valid patents, undisputed by Virginia, were granted by Lord Baltimore and the State of Maryland.

The guidelines for patenting land are set forth in Kilty's Landholder's Assistant of which there is a fully automated indexed copy on line at the Maryland State Archives web site, archivesofmaryland.net.¹⁴  They are also summarized in an opinion of the Commissioner of Land Patents which was fully quoted and cited in a decision of the Federal Court of Appeals upholding the Commissioner's interpretation of the process.  With regard to the patenting process the Commissioner explained:
 

Land Patents are the first link in the chain of title of ownership of land in Maryland. Maryland began in 1632 as the private and exclusive property of the head of one family, the Calverts, Irish Barons of Baltimore. When the King granted Maryland to Lord Baltimore on June 20, 1632, making him the "Lord Proprietor" of Maryland, he did so absolutely and without qualification with regard to the right to grant and, as in this case, regrant land. That power has passed undisturbed to the Commissioner acting on behalf of the State.
 

The language of the Charter of Maryland is archaic but clear with regard to Lord Baltimore's right to grant and regrant land as he saw fit:
 
 

And Further, of Our special grace, and of Our certaine knowledge, and meere motion, Wee have given granted, and confirmed, and by these Presents for Us, Our Heires and Successors, doe give, grant, and confirme unto the said now Lord 'Baltemore', his heires and assignes, full and absolute licence, power, and authoritie, that hee the said now Lord 'Baltemore', his heires and assignes, from time to time hereafter forever, at his, or their will, and pleasure, may assigne, aliene, grant, demise, or enfeoffe of the Premises to many, and such parts and parcells, to him or them that shall be willing to purchase the same, as they shall thinke fit, TO HAVE and to hold to them the sayd person, or persons, willing to take or purchase the same, their heires and assignes in fee simple, or fee taile, or for terme of life, or lives, or yeeres, to bee held of the said now Lord 'Baltemore', his heires, and assignes, by such services, customes, and rents as shalll seeme fit to the said now Lord, 'Baltemore', his heires and assignes; and not immediately of Us, Our Heires or Successors: and to the same person or persons, and to all and every of them Wee do give grant by these Presents for Us, Our Heires and Successors, licence, authoritie, and power, that such person or persons may take the premises, or any parcell thereof, of the aforesaid now Lord 'Baltemore', his heires or asignes, (and the same hold to themselves, their heires, or assignes, in what estate of inheritance soever, in fee simple, or in fee taile, or otherwise, as to them, and the now Lord 'Baltemore', his heires and assignes, shall seeme expedient) ...

Prior to 1776, the only serious challenge to Lord Baltimore's rights with regard to the issuance of land patents came in 1689 in the aftermath of the Glorious Revolution when Maryland became a Royal Colony. At that time Lord Baltimore's political power, such as the right to appoint the Governor of Maryland, was taken away, but not his power to grant Land Patents. In 1692, after one Royal Governor attempted to usurp Lord Baltimore's right to grant lands by forcefully removing all of his records, the Solicitor General of England, Thomas Trevor, argued persuasively that the governor had no right to do so:
 
 

I think it may be just & reasonable that [the records] should be restored to his Lo[rdship] again, and I do not see any prejudice can thereby happen to the parties by whom such Bills or Bonds [for land] were given, though they have not Executed their Warrants, nor had Certificates [of survey] return'd, for ye bonds canot be put in Suit till the Ld Baltimore hath p[er]formed the Condition on his p[art] [to grant the lands for which the bonds had been given and the warrants issued].

Between 1776 and 1781, the political powers of Lord Baltimore, which had been restored in 1715, and all of his rights relating to land in Maryland, were taken over by the State. The heirs of the last Lord Baltimore (among whom was the wife of the last Proprietary governor, Sir Robert Eden) attempted to wrest compensation for their losses from the State after the American Revolution, but without success.  From 1781 onward the powers over land matters that were once held by Lord Baltimore were vested in the judges of the Land Office, a position that today is titled Commissioner of Land Patents.
 

As John Kilty amply demonstrates in The Landholder's Assistant, by asking the Commissioner of Land Patents for a warrant of resurvey and pursuing the patent process to its conclusion, the Applicants, like all applicants before them, are in effect vacating any claim to a title they may have and placing that claim in the hands of the Commissioner for adjudication.The process is not unlike that experienced by a Gaelic chief of Ireland in the 16th century who was induced to sign an "indenture to recognize the king as his liege lord, [and then had] to apply for a crown grant of his lands .... This indenture comprised the first stage of what historians have called the policy of surrender and regrant."
 

Once an application for a resurvey Patent is made to the Commissioner, it is then up to the Commissioner to determine the validity of the claim and to sanction the issuance of a new patent if he should find the claim meritorious. If the applicants should disagree with the decision of the Commissioner, their only recourse is to appeal the decision in accord with the provisions set forth in the Real Property Article.¹⁵

In all there were at least 86 patented and re-patented tracts of land in and on the non-tidal portions of the Potomac  that were either islands in the Potomac, were extended by actual survey to the Virginia bank, or were solely of the bed and waters of the Potomac.
 
 

Table I - Tracts on the Potomac ¹⁶
 

Non-Tidal Potomac Tracts	Bordering  Potomac	In the Potomac	Pre-1785 To the VA Shore	1785-1862 To the VA Shore	1862-Present To the VA  Shore	Total Tracts to Virginia Shore	Acreage of Tracts to VA Shore	Islands	Islands, Tracts to VA Shore, Tracts Extending into the water
Georgetown to the Montgomery County/Frederick County (database file: nontidal1.mbl)	127	8	2	3	1	6# (*see note 1 below)	697.5 ac. (*see note 2 below)	33	42 (*see note 3 below)
Frederick County  to Allegany County (database file: nontidal2.mbl)	123	1	2	6	1	9	1851.25 ac.	33	40 (*see note 4 below)
Garrett County (database file: nontidal3.mbl)	12	0	0	4	0	4	386 ac.	0	4 (*see note 5 below)
Totals	262	13	4	13	2	19	2934.75	66	86

1.  Of the 6 tracts reaching the Virginia shore, Mount Vernon MO 305 was corrected because it included land previously patented at the Great Falls.
2. Acreage total does not include 143 acres from Mount Vernon MO 305.
3.  Total of 44 includes 6 tracts that reach the Virginia Shore (three of which are also islands and included in the island count), 8 tracts that extend into the river, and 33 islands.
4. Total of 40 includes 9 tracts that reach the Virginia Shore (three of which are also islands and included in the island count), 1 tract that extends into the river, and 33 islands.
5. Total of 4 includes 4 tracts that reach the Virginia Shore.

General Notes:

There are many more island tracts that have not been plotted because they were patented after 1862.

Work below Washington DC suspended in order to focus on tracts above tidewater.

Islands are tracked separately because their metes and bounds usually cover the area of the island exposed at low tide. The islands are not  included in figures for Tracts Bordering the Potomac, but are included  when applicable for Tracts to the Virginia Shore.

The remaining tracts in the database are entries that do not border River, have not been completed yet, have not been plotted with reasonable certainty, or were used to correct magnetic variations.

Very little work done in Garrett County to date.

While the Lords Baltimore successfully asserted and maintained their claims of ownership of the Potomac, they were forced to acknowledge that their neighbors in Virginia maintained a right of passage over and along the River as an extension of common law privilege.  Lord Baltimore vainly wished he could further assert his right of ownership of the water through licensing the ferries that passed over it for his personal profit, but was warned by his Governor that by local Maryland custom he could not privately interfere with the public  right of passage and that the public actually supported Ferry keepers through a county allowance out of tax revenue:
 
 
 

[Sharpe to Baltimore.] Letter Bk.IV

Annapolis the 20th of April 1761.

... I beg leave
to inform Your Ldp that there never hath been since the
Country was settled any Money paid by the Keepers of Ferries
in this Province for Leave or Lycence to keep them. Most
of the Ferries over the Rivers in this Province are supported
& the Keepers of them paid by an Allowance made them
every year in the County Levy, & those who are not so paid
demand & receive from Passengers such Rates as they have
themselves settled. I perceive that in Virginia there is an
Act for Regulating Ferries & settling the Rates which
Passengers are to pay at each of them, but the Keepers of such
Ferries are not obliged to pay any money for Lycences to
keep them, nor can I learn that there are any Lycenced
Ferries in the Northern Colonies except one from the City of
N York to Long Island, at the Disposal of the Corporation of
that City, & the Ferry over the River Skuilkill near Phila¹⁷

To view a Potomac ferry as anything other than a simple expression of the right of passage over and on privately owned water, is to fly in the face of common law and common practice (For a discussion of the right of passage in another state on a privately owned stretch of a river see Wilson vs. Goldberg, 107 Me. 207).  Furthermore, when it was perceived necessary to secure title to the water for the purposes of the exclusive use by a particular ferry, a patent was issued by Lord Baltimore, not by Virginia.  In all the extensive hearings and court cases relating to the Potomac, no patents have been produced from Lord Fairfax's records or the State of Virginia for the waters of the Potomac, including ferry crossings, yet there are at least two such patents known for Maryland, including one at Harper's Ferry (patented by Virginian Robert Harper), probably the best known of all Ferries over the Potomac, and today the site of  a privately owned railroad bridge featured prominently in Civil War era photographs.¹⁸

After 1784 above tidewater,and until the late 19th century, the improvement of the navigation of the Potomac River  was entrusted to a private corporation jointly chartered by Virginia and Maryland.  The Potomac company, and its successor the Cheaspeake and Ohio Canal company, were given broad, although not exclusive  powers to acquire right of way.  That charter and its alterations over time by Virginia and Maryland did not extend to jurisdiction over,  or to the ownership of, the portions of the river not used in its right of way, although the owners and users of the river were prohibited from adversely affecting the function of the canal by diverting water from its use.¹⁹

In jurisdictional disputes  between two states in which a river constitutes a shared boundary, the opinions of the courts of one state cannot take precedence over the opinions of the courts of another.  But in cases where the boundary is the bank of a river wholly owned by one of the contending states, the opinions of the Courts of the state owning the River should carry greater weight than the opinions of the Courts of any other State with regard to jurisdictional disputes concerning the river.  A case in point is the opinion in the Binney Case by a former Federal Judge and native of Virginia, Theodorick Bland, which he rendered in his capacity as Chancellor of Maryland.  Bland also served as  Judge of Land office and was in a unique and well-informed position to judge the authority of the State of Maryland with regard to its claim of ownership and jurisdiction over the whole of the Potomac River.   He concluded, after an extensive analysis and review of the evidence that "the Potomac River belongs altogether to the State of Maryland."²⁰    He was followed by the opinion of Judge Nicholas Brewer in the Great Falls land condemnation Case, in which Judge Brewer concluded after a thorough review of the evidence that a Virginia grant on the banks of the Potomac called the Toulson Tract, "has no riparian rights on the Potomac River" and that "The riparian rights of the Great Falls Company has, is entirely upon the ownership of  Conn's Island, the title to which is derived from the State of Maryland through its grant." (p.9)"  Not only did this opinion prevail in Federal Court, and was printed in a large edition as an official document of the United States Senate, but at the time it was printed ,  Senator Graham Newell Fitch from Indiana  correctly predicted that "dissemination of the opinion would have the tendency to prevent the claim of damages to a large amount against the [Federal] government," with regard to the rights granted the District of Columbia by the State of Maryland in 1853  for the non-exclusive use of the waters of the Potomac.²¹

In two instances  Maryland's claims to it's Southern and Western boundary on the Potomac were submitted to arbitration and the scrutiny of the Supreme Court. The Arbitrators and Justice Day did not have the benefit of the complete record of patents in and along the Potomac upon which to base their decisions.  In the case of the Arbitrators, they admitted their lack of evidence in rendering their opinion,  and yet proceeded to suggest that the provisions of the compact of  1785 in some vague way extended above Tidewater.²²   Justice Day did likewise, thus inadvertently offering unsubtantiated dicta that continues to unnecessarily cloud the clear appraisal of the historical evidence.  Above Tidewater, on the ground and on the water,  Lord Baltimore and Maryland, as his successor in title,  have consistently asserted and maintained their exclusive claim to determining the  use and ownership of the waters of the Potomac.²³

^NOTES

The author wishes to thank David Shackelford, Christine Alvey, and Jennifer Hafner for their diligent attention to research assignments and details that often took them far beyond the reasonable call of duty, but which have been of value without measure in the research on the topic of this essay. David Shackelford's research notes on the Great Falls Manufacturing cases, and his mapping of all the tracts of  the Potomac above tidewater (with the help of John Lyon and his interns), speaks for itself. One of the best overviews of  the legal conflicts with Virginia over the Potomac is "A History of Potomac River Conflicts" by Professor Kenneth Lasson, University of Baltimore Law School, in Legal Rights in Potomac Waters ... . , edited by Garrett Power, Professor of Law, University of Maryland Law School,  Annapolis, 1976, MSA SC 5330-9-12.

¹⁾Maryland State Archives Special Collections,  MSA SC 5330-10-4.  Hereafter cited as MSA SC 5330.  Please note that all sources cited in this collection are represented in the collection by certifiable copies of the originals.  Please also note that in addition to references documented in MSA SC 5330, there are citations to the Archives of Maryland which is an on-going series of electronically indexed original archival material relating to Maryland now on line at http://www.mdarchives.state.md.us. Its proper citation is William Hand Browne, Edward C. Papenfuse, et. al., eds., Archives of Maryland, 215+ volumes, (Baltimore and Annapolis, Md., 1883-), [volume no.]:[page/pages] (hereinafter cited as Archives of Maryland).
 
 

Dates: 1776/10/29-30

Description: [9th Convention of Maryland,] This convention being informed, that in the constitution or form of government agreed to by the delegates of Virginia, a claim is made by them injurious to the inhabitants of this state, Ordered, That the same be read, and the same was read as follows, to wit: “The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction and government, and all other rights whatsoever, which might at any time hereafter have been claimed by Virginia, except the free navigation and use of the rivers Potowmack and Pocomoke, with the property of the Virginia shores or strands, bordering on either of the said rivers, and all improvements which have been or shall be made thereon. The western and northern extent of Virginia shall in all other respects stand as fixed by the charter of king James the first, in the year one thousand six hundred and nine, and by the public treaty of peace between the courts of Great Britain and France in the year one thousand seven hundred and sixty three ; unless, by an act of legislature, one or more territories shall hereafter be laid off, and governments established westward of the Alleghany mountains. And no purchase of lands shall be made of the Indian natives, but on behalf of the public, by authority of the general assembly.” Resolved, That this convention will on tomorrow resolve itself into a committee of the whole; to take the same into consideration. Proceedings p. 290, 1836 ed.

 The convention according to the order of the day, resolved itself into a committee of the whole, on that part of the constitution of Virginia which was referred to their consideration ; Mr. T. Wright in the chair. After some time spent therein, Mr. President resumed the chair, and Mr. Wright reported, that the committee had, according to order, taken the same into consideration, and had come to several resolutions thereon, which he read in his place and afterwards delivered in at the table, where the same were again twice read, amended, and agreed to as follow: Resolved unanimously, That it is the opinion of this convention, that the state of Virginia hath not any right or title to any of the territory, bays, rivers, or waters, included in the charter granted by his majesty Charles the first to Caecilius Calvert, baron of Baltimore. Resolved unanimously, That it is the opinion of this convention, That the sole and exclusive jurisdiction over the territory, bays, rivers, and waters, included in the said charter, belongs to this state; and that the river Potowmack, and almost the whole of the river Pocomoke, being comprehended in the said charter, the sole and exclusive jurisdiction over the said river Potowmack, and also over such part of the river Pocomoke as is comprehended in the said charter, belongs to this state; and that the river Potowmack and that part of Chesapeake bay which lies between the capes and the south boundary of this state, and so much thereof as is necessary to the navigation of the rivers Potowmack amid Pocomoke, ought to be considered as a common highway, free for the people of both states, without being subject to any duty, burthens or charge, as hath been heretofore accustomed. Resolved unanimously, That it is the opinion of this convention, that the very extensive claim of the state of Virginia to the back lands hath no foundation in justice, and that if the same or any like claim is admitted, the freedom of the smaller states and the liberties of America may be thereby greatly endangered; this convention being firmly persuaded, that if the dominion over those lands should be established by the blood and treasure of the United States, such lands ought to be considered as a common stock, to be parcelled out at proper times into convenient, free and independent governments. Proceedings p. 292-293, 1836 ed.

 For the original manuscript draft of the proceedings and the resolution see  MSA S 989-4560-5[6}]

Dates: 1777/12
Description: Resolution passed on December 21, 1777 appointing Commissioners to meet with Virginia re: jurisdictional and navigational issues. See House of Delegates Journal entries:

On Saturday November 8, 1777, the House reiterated the position of the Convention the previous October with regard to its Charter derived rights on the rivers Potomac and Pocomoke and on the Chesapeake Bay, and resolved to send a letter to Virginia. See the text of the resolve on p. 8, of the orginal printed Journal of the House of Delegates found on line at the Archives of Maryland web site, http://www.archivesofmaryland.net. Specific note is made  in the journal that the letters were delivered to the Governor and Legislature of Virginia "early last winter.".

The proceedings with regard to the joint balloting for Commissioners is found in the House Journal at p.60.

The instructions to the Commissioners begin on p. 64.

It is clear from the language of the instructions that the concern was focused upon the existing navigable parts of the two rivers and the bay, and not the full course of the rivers, except at most to declare both the Pocomoke and Potomac Rivers common highways.

MSA SC 5330-10-8

Dates: 1785/01/19
Description: MARYLAND GENERAL ASSEMBLY to COMMISSIONERS. Instructions pertaining to the navigation of, and jurisdiction over, Chesapeake Bay, the Potomac and Pocomoke rivers; MARYLAND HOUSE OF DELEGATES to COMMISSIONERS. Appointment of a commission to ascertain jurisdiction over rivers and Bay. MSA S 996-19969-1-79/80.

MSA SC 5330-23-4

Dates: 1979
Description: Littlefield, Douglas R[obert]. "A History of the Potomac Company and Its Colonial Predecessors, 1748 - 1828." Master's thesis, University of Maryland, 1979.

MSA SC 5330-9-73
Dates: 1969
Description: Albert, Peter Joseph. George Washington and the Improvement of the Potomac, 1754-1785. MA Thesis, University of Wisconsin.

MSA SC 5330-9-68

Dates: 1912 [1971]
Description: Bacon-Foster, Mrs. Corra. Early Chapters in the Development of the Patomac Route to the West. New York: Burt Franklin, 1971 [1912]. MSA L 20000003

Dates: 1784-1797
Description: Correspondence between James Madison and Thomas Jefferson concerning jurisdiction over the waters of the Potomac.
 
 

On March 16, 1784, Madison wrote Jefferson his view of the ownership of the Potomac which argued that the patents of the Northern Neck were older and thus superior to Lord Baltimore's grant. Jefferson was in Annapolis and Madison was encouraging him to do some research into the matter.

 The Charter granted in 1732[1632] to Lord Baltimore makes, if I mistake not, the Southern Shore of the Potowmac, the boundary of Maryland on that side. The Constitution of Virginia cedes to that State "all the territories contained within its charter with all the rights of property, jurisdiction and Government and all other rights whatsoever, which might at any time have been claimed by Virginia, excepting only the free navigation and use of the Rivers Potowmac and Pokomoque etc." It is not to be apprehended that this language will be constructed into an entire relinquishment of the Jurisdiction of these rivers, and will not such a construction be fatal to our port regulations on that side and otherwise highly inconvenient? I was told on my journey along the Potowmac of several flagrant evasions which had been practiced with impunity and success, by foreign vessels which had loaded in Alexandria. The jurisdiction of half the rivers ought to have been expressly reserved. The terms of the surrender are the more extraordinary, as the patents of the N. Neck place the whole river potowmac within the Government of Virginia; so that we were armed with a title both of prior and posterior date, to that of Maryland. What will be the best course to repair the error? --to extend our laws upon the River, making Maryland the plaintiff if she chooses to contest their authority-- to state the case to her at once and propose a settlement by negociation-- or to propose a mutual appointment of commissioners for the general purpose of preserving a harmony and efficacy in the regulations on both sides. The last mode squares best with my present ideas. It can give no irritation to Maryld. It can weaken no plea of Virga. It will give Maryland an opportunity of stirring the question if she chooses, and will not be fruitless if Maryland should admit our jurisdiction. If I see the subject in its true light no time should be lost in fixing the interest of Virginia. The good humor into which the cession of the back lands must have put Maryland, forms an apt crisis for any negociation which may be necessary. You will be able probably to look into her charter and her laws, and to collect the leading sentiments relative to the matter. Smith, Republic of Letters,I:302-303

In April 1784, a year before the conference at Mt. Vernon, Jefferson replied from Annapolis that he liked the method Madison proposed and noted that to introduce this the more easily I have conversed with Mr. Stone (one of their delegates) on the subject and finding him of the same opinion have told him I would by letters bring the subject forward on our part. They will consider it therefore as originated by this conversation. Smith, Republic of Letters, I:310
On July 3, 1784, Madison wrote Jefferson that Col. Mason, the Attorney, Mr. Henderson and myself are to negociate with Maryland if she will appoint Commissioners to establish regulations for the Potowmac. Smith, The Republic of Letters, I:323.

 On January 9, 1785, Madison sent Jefferson a long letter describing the actions of the Virginia Legislature just then ended. He notes that Washington was in Annapolis negotiating with the Maryland Legislature over the improvements to the navigation of the Potomac and that Virginia had passed a resolution late in the session concerning the benefits of cooperation among Pennsylvania, Maryland and Virginia in improving communication westward along and beyond the Potomac. This Resolution did not pass till it was too late to refer it to Genl. Washington's negociations with Maryland. It now makes a part of the task alloted to the Commissrs. who are to settle with Maryd. the jurisdiction & navigation of Potowmac below tide water. Madison Papers, VIII:225, and Smith, Republic of Letters, 1:358.

 Madison again wrote Jefferson on April 27, 1785 I understand that Chase and Jennifer on the part of Maryland, Mason and Henderson on the part of Virginia have had a meeting on the proposition of Virga. for settling the navigation and jurisdiction of Potowmac below the falls, and have agreed to report to the two assemblies, the establishment of a concurrent jurisdiction on that river and Chesapeak. The most amicable spirit is said to have governed the negociation. Jefferson Papers,VIII:113

The last major reference in the Madison/Jefferson correspondence to Maryland's jurisdictional claims over the Potomac seems to come in January of 1797 in a letter from Jefferson. I suppose you are informed of the proceedings commmenced by the legislature of Maryland to claim the South branch of Patowmac as their boundary, and thus, of Albemarle now the central county of the state, to make a frontier. As it is impossible upon any consistent principles and after such a length of undisturbed possession that they can expect to establish their claim, it can be ascribed to no other than an intention to irritate and divide, and there can be no doubt from what bow the shaft is shot. However let us cultivate Pennsylvania and we need not fear the universe. The assembly have named me among those who are to manage this controversy. But I am so averse to motion and contest, and the other members are so fully equal to the business that I cannot undertake to act in it. I wish you were added to them.... Smith, Republic of Letters, VIII:113 I:960-61

Madison originated the idea of negotiation by commissioners. He let Jefferson take the credit for it in Annapolis while he was there attending Congress and while he would have a chance to do research on Maryland's charter. Madison shifted his position from that of blatant advocacy of Virginia's rights (in the face of Virginia's own constitutional language) to that of accepting 1) that the compact only applied to navigation and Navigational use of the Potomac below the Falls (clearly the prevailing view) 2) that Maryland's jurisdiction did extend to the whole of the Potomac above the tide water 3) the claims of prior patents in Virginia's favor (particularly those relating to the Northern Neck) were erroneous and could not be sustained. This observation is further supported by the subsequent court review of the two grants and is implicit in the correspondence as it develops from Madison's first assertion to his conclusion that they should try to get as much as they can out of the good will of Maryland and be satisfied that anything would be better than what they currently had under Virginia's Constitution. As Madison makes explicitly clear, what Virginia got by negotiation in 1785 was an agreement that related only to the waters of the Potomac below Tidewater.

Dates: 1853
Description: Act 179, entitled "An Act giving the assent of the State of Maryland, to such plan as may be adopted by the President of the United States, for supplying the City of Washington with Water."

[Passed May 3, 1853. See pp. 208-209 of the 1853 Laws of Maryland. The bill was first introduced into the Senate on March 30, 1853, by Mr. Williams from the Committee on Judicial Proceedings. The bill was read and ordered to be printed (p. 186, Senate Proceedings). On April 5, the bill was read a second time and orderd to lie on the table. The words "for the purchase" were inserted in the 4th line of the 2nd section, after the word "or," (Senate Proceedings, p. 204). The Bill passed third reader on April 29. The 5th sections was struck out and a new one added. The bill then passed the Senate 12-0 and was sent to the House (Senate Proceedings, pp. 313-314). The bill was returned passed to the Senate on May 5 (Senate Proceedings, pp. 331-332). The bill appears to have passed the House unaltered (see House Proceedings;, p. 654, 659, 73-674). The bill passed the House 41-1. (House Proceedings, pp. 673-674).

GOVERNOR (Letterbook) Volume 1845-1854, MSA S1076-3:

 On March 10, 1853, Jefferson Davis the US Secretary of War, wrote to Gov. Lowe that "At the last session of Congress an approriation was made for the purpose of bringing water into the City of Washington, and that if the plan adopted by the President should require water to be drawn from any source within the limits of Maryland, the assent of the Legislature of that state should first be obtained. And another act prohibits the expenditure of public money upon any land purchased by the United States until the consent of the Legislature of the State, in which the land may be, shall be given to said purchase. I have therefore the honor to request that the assent of the Legislature of Maryland, be given to the use of such water as may be found necessary in the execution of the work above provided for, and the purchase of such lands as may be required for that purpose. I enclose the draught of an act which would meet the views of this Department." (pp. 412-413) Gov. Lowe replied to Sec. Davis on March 24, 1853, stating "I have this day transmitted to the General Assembly copies of your letter, and the accompanying draft of a law, which you say will meet the views of your Department." (p. 413) Following passage by the General Assembly of Chapter 179, Gov. Lowe wrote to Sec. Davis on May 5, 1853, transmitting a copy of the act. (p. 430) Sec. Davis acknowledged receipt of this transmittal in a letter to Gov. Lowe on May 10, 1853 (p. 436) Virginia passed a law in 1854 which addressed only the land on the Virginia side of the river. Declared constitutional in Reddall v. Bryan, 14 MD 444
 

Dates: 1854
Description: Chap. 5 An Act giving the consent of the legislature of the state of Virginia to the purchase of lands by the United States for the Washington aqueduct, and ceding jurisdiction over the same. (Passed March 3, 1854). [note: no mention of water or water (riparian) rights anywhere in the law in contrast to the Maryland Law which was passed first and which does refer to water rights. See Nicholas Brewer's opinion where this act  is cited. Note that this act seems not to figure in all the subsequent litigation relating to the water supply dams, except the initial opinion by Brewer which assigns all riparian rights to Maryland.

 

Time Line of proceedings, documents, and court cases relating to the Washington Aqueduct dam.
1839-1925

Includes references to the Great Falls Manufacturing Company, the United States Government, the Great Falls Power Company, and the Chesapeake and Ohio Canal Company.

1839

February 4 Act in Virginia incorporating the Great Falls Manufacturing Company.

1847

Maryland recognizes the acts of incorporation of the State of Virginia for the Great Falls Manufacturing Company (Laws of Maryland, 1847-1848, p. 146).

1852

March 3 Congress appropriates $100,000 for the construction of an aqueduct provided that if any water is required from Maryland that the assent of the State legislature be obtained.

April 31 Statute stating, "To enable the President of the United States to cause the necessary surveys, projects, and estimates to be made for determining the best means of affording the cities of Washington and Georgetown an unfailing and abundant supply of good and wholesome water--report thereof to be made to Congress at its next session--the sum of five thousand dollars, or so much thereof as may be found necessary." (10 Stat. L., 92)

August 31 Congress appropriates $5,000 for surveys to determine the best method of providing water to Washington and Georgetown. General Totten of the Corps of Engineers recommends constructing an aqueduct at the Great Falls.

1853

March 3 Congress appropriates $100,000 for "the purpose of bringing water into the city...Provided, That if the plan adopted by the President of the United States should require water to be drawn from any source within the limits of Maryland, the assent of the legislature of that State should first be obtained." (10 Stat. L., 206)

May 3 The Maryland General Assembly granted the United States Government the power to condemn land for an Aqueduct across the Potomac in 1853, GENERAL ASSEMBLY (Laws) 1853, Chapter 179, MdHR 820932, 2/2/6/17, L929. When attempts to purchase the land and water rights needed for completion of the dam failed, the U.S.  government applied for a writ of condemnation against the Great Falls Manufacturing Company in 1858.

1855

March 3 Congress appropriates $250,000, "For continuing the work on the Washington aqueduct." (10 Stat. L., 664)

1856

August 18 Congress appropriates, "For paying existing liablilities for the Washington aqueduct, and preserving the work already done from injury, such sum of money as shall be necessary, not exceeding two hundred and fifty thousand dollars." (11 Stat. L., 86)

1857

March 3 Congress appropriates $1,000,000 for the aqueduct. (11 Stat. L., 225)

1858

June 12 Congress makes further appropriations (including a reference to those passed on August 18, 1856) (volume 11 Stat. L., 323)

August 20 The initial condemnation proceeding was known as the United States v. the Great Falls Manufacturing Company and heard in Montgomery County Circuit Court.  A jury awarded the Great Falls Manufacturing Company $150,000 for damages stemming from the construction of a dam across the Potomac above the Great Falls. During the proceedings the Great Falls Manufacturing Company claimed damages based on the supposed riparian rights of the Toulson Tract in Virginia and on Conn's Island (also known as Bishops Island located in Montgomery County, Maryland).

August 21 Concurrent with the Montgomery County condemnation proceedings, the Great Falls Manufacturing Company was granted a warrant to survey the following tracts located in the Potomac River near the site of the proposed Aqueduct. does the company do this in an attempt to drive up prices or solidify shaky claims?

November 8 U.S. asks that the Montgomery County Circuit Court set aside the award.

1859

March 3 Secretary of the Interior placed in control of the Aqueduct (11 Stat. L., 435), this statute also discusses plans that are to be prepared by officers of the Corps of Engineers appointed by President. The plans were subsequently submitted to the arbitration commission as evidence.

March 10 The Montgomery County Circuit Court's condemnation award was overturned by Judge Nicholas Brewer (and reported in: The Great Falls Land Condemnation Case, Judge Brewer's Opinion, Senate Executive Document No. 42, 35th  Congress, 2d Session). Judge Brewer ruled that since the Toulson tract was located in Virginia it had no riparian rights to the Potomac River and that "The riparian rights of the Great Falls Company has, is entirely upon the ownership of Conn's Island (island located in the Potomac River in Montgomery County, Maryland), the title to which is derived from the State of Maryland through its grant." (p.9)  He found the initial condemnation proceedings and damages invalid and ordered that the condemnation proceedings begin again. The second round of condemnation hearings began in 1859, but were not resolved in Montgomery County Circuit Court in part because of the Civil War and both sides agreed to submit to Federal arbitration in 1862.

August Surveys for the Cyclades, Neilson's Desire, and the Resurvey on the Resurvey on Conn's Island. returned on August 18. The surveys of the Cyclades are examined and passed the same day by Commissioner of the Land Office. Neilson's Desire requires a correction, which is done and the survey is examined and passed on August 25.

September 20 The United States filed caveats against the Great Falls Manufacturing Company with the Maryland Land Office. During hearings conducted in Annapolis, the government presented its argument against patents being issued for Neilsons Desire, the Resurvey on the Resurvey on Conn's Island, and the Cyclades. The United States' reasons for filing the caveats were detailed in LAND OFFICE (Caveat Papers) 17. Reasons for filing caveats against certificates of Great Falls Manufacturing Company, Filed Sep 20, 1859 MSA S5-441, MdHR 18,020, 1/28/3/4. While these reasons given were basically the same in all three caveats, the arguments presented for Neilson's Desire are as follows:

• the land covered by the water of the Potomac was jus publicum and therefor not capable of being granted for private use only public use
• Maryland granted the United States the river bed and use of the water by the Act of 1853, Chapter 179, upheld by the Maryland Court of Appeals
• Maryland had granted the land originally to the Potomac Canal Company and its successor the C&O Canal Company by the Act of 1784, Chapter 33, and the Act of 1823, Chapter 140
• that patenting the river bed could confer no substantial rights and its only effect would be to create conflict with the United States, or the publics right to use the water
• the proposed dam would cut the tract in half, breaking the contiguity of the tract that was necessary according to Land Office rules
• "the law of Maryland having reserved to the public the water flowing over any land granted by patent-in as much therefore as all or nearly all the land sought to be patented in this certificate is covered by the waters of the Potomac River the right of the pubglic cannot be preserved except by a denial of the patent, or if granted that patent should expressly upon its face reserve the water"
• the U.S. has the right to select a site for its dam and until a suitable site is selected no patent should be granted
1860
March 26 Resolution No. 20- Report of Committee and Resolution in Preference to the Riparian Rights of Virginia Proprietors on the Potomac River.Adopted March 26, 1860, from Acts of the General Assembly of the State of Virginia, Passed in 1859-60, in the Eighty-fourth Year of the Commonwealth. Richmond: William F. Ritchie, Public Printer, 1860.

June 25 Congress appropriates $500,000 for the aqueduct, "to be expended according to the plans and estimates of Captain Meigs, and under his superintendence: Provided, That the office of engineer of the Potomac water works is hereby abolished, and its duties shall hereafter be discharged by the chief engineer of the Washington Aqueduct." (12 Stat. L., 106)

August 31 In August 1860, the United States appealed the decision to the Maryland Court of Appeals using arguments similar to those presented for the original caveats.  The United States appeals the Land Commissioner's decision on the caveats against "the Resurvey on the Resurvey on Conn's Island" and "Neilson's Desire." These arguments are given in LAND OFFICE (Caveat Papers) 17. Reasons for Appeal in Case of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "the Resurvey on the Resurvey on Conn's Island" Filed Aug 31, 1860, MSA S5-441-3, MdHR 18,020, 1/28/3/4. and LAND OFFICE (Caveat Papers) 17. Reasons for Appeal in Case of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "Neilsons Desire" Filed Aug 31, 1860, MSA S5-441-3, MdHR 18,020, 1/28/3/4.

December 19 Land Commissioner William Seabrooke overruled the caveats. His opinion in relation to Neilson's Desire focused on the issues of Maryland's right to grant the land and riparian water rights associated with the Potomac River in Maryland and Virginia. Siting the Bland and Brewer opinions, Seabrooke confirms Maryland's right to grant the land under the Potomac and restates that Virginia has no riparian rights to the water in the Potomac.

• LAND OFFICE (Caveat Papers) 17. Opinion of the Commissioner of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "Neilsons Desire" Filed Dec 19, 1859, MSA S5-441-3, MdHR 18,020, 1/28/3/4.
• LAND OFFICE (Caveat Papers) 17. Opinion of the Commissioner of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "the Cyclades" Filed Dec 19, 1859, MSA S5-441-3, MdHR 18,020, 1/28/3/4.
• LAND OFFICE (Caveat Papers) 17. Opinion of the Commissioner of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "the Resurvey on the Resurvey on Conn's Island" Filed Dec 19, 1859, MSA S5-441-2, MdHR 18,020, 1/28/3/4.
• Map of the Potomac Dam, Filed Oct 23, 1859
• LAND OFFICE (Caveat Record) The United States for the Use of the Washington Aqueduct vs. The Great Falls Manufacturing Company, 1859, Liber 2, Folio 360-410, MSA S7-3, 1/28/4/15. Complete transcript of the case.
1862
June 21 Congress transferred supervision of Potomac waterworks to the Department of Interior. (12 Stat. L., 620)

November 20 The Secretary of the Interior  U.S. and the Great Falls Manufacturing Company agree to submit claim to arbitration. Jesse L. Williams, of Indiana, B.R. Curtis, of Massachusetts, G. Swan, of Ohio, Linus Child, of Massachusetts, and George Dallas, of Pennsylvania (Alonzo Paige replaced Dallas on the committee). As part of arbitration the Great Falls Manufacturing Company was required to provide a description of the lands they claimed would be affected by the dam. The arbitration's award was not binding unless the Attorney General decide that the GFMC has a valid title. The awards were to be based on the land, water rights, and privileges claimed by the party of the second part (GFMC), and all consequential damages to the property and rights of said company, which they may legally claim by reason of the plans and operations which may be adopted and carried into effect by the party of the first part (U.S.), connected with and growing out of the location and construction of dams and other works of the Washington Aqueduct."

December 15 The Great Falls Manufacturing Company tracts' known as Cyclades, Neilson's Desire, and the Resurvey on the Resurvey on Conn's Island are patented.

1863
February 28 As the caveat appeal was being heard in the Maryland Court of Appeals, the arbitration commissioners file their report on damages relating to the condemnation of land necessary for the dam's completion (note: according to subsequent court proceedings, the arbitration hearings were never formally ratified by both sides). (Note: a description and plats associated with the GFMC's claims to damages were missing by the time the case went to the U.S. Court of Claims in 1880 [the description was known as No. 1, B.R.C., and plat marked as No. 2, B.R.C.]. The United States proposed plans of operation were marked as No. 3, B.R.C. with a plat marked No. 4, B.R.C.)

During the hearings federal officials prepared four separate plans (known as Plans A-D respectively) for the construction of the dam and arbitrators determined the damages that the Government would pay if each plan was implemented. The arbitrators did not agree on damages, the majority (Curtis, Paige, and Child) ruled the following:

• Dam B (XUV on map found in Court of Claims Case 14446): $50,000, which called for the completion of the dam to the Virginia shore anchoring below the head of the old canal.
• Dam A (XYZ on map found in Court of Claims Case 14446): $63,766, which called for the completion of the dam to the Virginia shore anchoring on land belonging to the U.S., and allows GFMC to build a canal and bulkhead across land of the U.S. on Virginia Shore in order to use water from the dams reservoir pool.
• Dam C (XPON on map found in Court of Claims Case 14446): $77,200 which called for the completion of the dam across the head of Conn's Island and then by a riprap dam across the river and allows GFMC to build a canal and bulkhead across land of the U.S. on Virginia Shore in order to use water from the dams reservoir pool.
• Dam D (XU is dam 4 on map found in Court of Claims Case 14446): $15,692, which called for a dam to Conn's Island, crest at 148' above tide.
Arbitrators Williams and Swan felt the compensations were too much for the first three dams: B, A, and C, respectively, but agreed with the award for Dam D.

The GFMC showed valid title to the Toulson tract, Conn's Island, and the Cyclades. "...the referees decided that the title was valid and satisfactory."

March 3 Congress amends the act of March 3, 1859 to allow for taxes. (12 Stat. L., 804-5)

March-May Letters relating to the arbitration case were filed in the House of Representatives, District of Columbia Committee investigating problems with the Washington Aqueduct in 1867. Secretary of the Interior Usher had a lively correspondence with arbitrator Benjamin Curtis after the award (particularly over the expenditures of the arbitrators). A letter dated May 16, 1863 to Usher signed by all the arbitrators related their thoughts on the proceedings:

"    The agreement of submission recites as the inducement to an arbitration that the attempt to settle the controversy at law must prove unavailing from the want of adequate legislation on the part of the States of Virginia and Maryland and the intrinsic Difficulty of the case. We did not find this intrinsic difficulty aggravated by the want of adequate legislation, less than the parties to the submission apprehended.
The claim put forward was of very just magnitude, the elements of fact on which it depended were abstruse, numerous and complicated. The legal rules and principles relied on by the respective parties were such as to task whatever legal knowledge and judgment we possessed and after the application of such of them as we deemed appropriate, they left the case in some important particulars open to distressing doubts and difficulties.
    The United States had fixed on no one plan of operations, but proposed four alternative plans, rendering four distinct awards necessary. Perhaps it may not be improper for us after what has occurred, to say that though not without judicial experience in courts where complex and difficult controversies are adjudicated, no one of us had ever encountered a case of so much complexity and difficulty.  Whether just results were reached or not, it is not for us to say, but we know that with sobriety of judgment and with the desire to do justice, our best efforts to obtain it were conscientiously and laboriously bestowed."

December The money arbitrators awarded was never paid. The decision not to pay was that of Mr. Usher, Secretary of the Interior. In a report to Congress, Usher felt that the GFMC claim's based upon damages by the aqueduct were too large, and he "...did not feel justified in applying the existing appropriation for the completion of the aqueduct to the payment thereof, preferring to submit the whole matter to Congress for its determination..." The Secretary's decision was also based upon the belief that the dam would provide adequate water to Washington and Georgetown for some time and it would not hurt the water rights claimed by the GFMC. (32d Cong. 2d Sess. Ex. Doc. No. 48, pp. 2, 35, 48)

December 15 Maryland Court of Appeals dismisses the appeal of the United States against Neilson's Desire. Evidence for this comes from the docket entries from the Court of Appeals and the briefs relating to the case. There are two docket entries for the United States v. Great Falls Manufacturing Company, number 39 and 40. While docket numbers changed from session to session, briefs that were filed use case numbers 11 & 12.  Appeallees' brief for case 11 relates to the Resurvey on the Resurvey on Conn's Island, case 12 clearly relates to Neilson's Desire. The second of these cases was dismissed on December 15, 1863 (noted as case 40). The legal bills show the dismissal of the case relating to Neilson's Desire on December 15, 1863 and the disposition of the caveat against the Resurvey on the Resurvey Conn's Island.  The Land Commissioners opinion relating to Neilson's Desire would have stood and Neilson's Desire patented to the Great Falls Manufacturing Company (see correspondence relating to inquiries on the disposition of Neilson's Desire in 1877).

Transcript of evidence and decision reported in:
COURT OF APPEALS (Decree Record) The United States vs. The Great Falls Manufacturing Company, Dec 1863, Liber GE 3, Folio 229-248, MSA S410-13, MdHR 524, 1/66/12/25.

COURT OF APPEALS (Maryland Reports) The United States for the Use of the Washington Aqueduct v. the Great Falls Manufacturing Company, 1864, vol. 21, folio 119-135,  2/6/10/12).

1864

February 22 Reported by the Secretary of the Interior in his annual report on the arbitration agreement with the GFMC (from 38th Cong. 1st Session, H.R. Exec. Docs. No. 1, 1182 also extracted in 38th Cong. 1st. Session S. Mis. Doc. 83, 1177, page 6)

"The sums being so large, I did not feel justified in applying the existing appropriation for the completion of the aqueduct ot the payment thereof, preferring to submit the whole matter to Congress for its determination."

On the completion of the dam to Conn's Island

"    It is difficult to conceive how a dam of this character can work any injury to the proprietors of the water right claimed at the Great Falls. At the utmost it could only raise the water to a level at the head of the island, while at ordinary stages and at low water (the only time when any value can properly be place upon the right) it would not increase or diminish the flow of water in the main channel on the west side of the island; and it surely cannot be pretended that the parties claiming the water right can lawfully divert the ordinary flow of the water on the east side of the island. A dam of the east channel that would raise the water to a height sufficient to fill the aqueduct would be a great advantage to the claimants, for the reason that it would enable them to avail themselves of the power by the erection of but one dam, while one that would only back the water to the head of the island must be a matter of total indifference to them; because, in the very nature of things it can work them no detriment whatever.
    If this view shall be taken of the case by Congress, I recommend that a reasonable sum be appropriated to pay the expenses of the arbitration, and that the estimate of the cost of the dam across the main channel be diminished to the estimated cost of the dam over the east channel, thus leaving the greater expense of the dam to be provided for as the exigencies of the cities of Washington and Georgetown, by the increase of their population, may require."

February 24 The case against the Resurvey on the Resurvey on Conn's Island is settled. The Court of Appeals overturned the Land Office's decision and upheld the caveat. The court ruled that the Maryland General Assembly's legislative Act of 1853, chapter 179, granted the federal government first title to the land and water rights in question. More information on the ruling is available in COURT OF APPEALS (Maryland Reports) The United States for the Use of the Washington Aqueduct v. the Great Falls Manufacturing Company, 1864, vol. 21, folio 119-135,  2/6/10/12.

March 22 Supplemental Report of the Chief Engineer of the Washington Report is published (38th Cong., 1st Ses., Senate Misc. Doc. No. 83). The document details legislation relating to the aqueduct. Page 30 relates some of the testimony presented in front of the arbitration board focusing on the type of dam necessary for the aqueduct.

July The United States begins to build the dam roughly along the lines of Plan D (as presented in the arbitration hearings), which called for a dam from the Maryland shore to Conn's Island in the middle of the Potomac. Arbitrators had determined that if Plan D was implemented the Great Falls Manufacturing Company would be compensated $15,692 (This is the amount eventually awarded by a decision of the Supreme Court in 1885).

 1867

December Dam completed to Conn's Island.

1868

April 10 Petition entered by GFMC against U.S. for $500,000, note the demand was reiterated upon varying technical grounds. This amount was lowered on January 31, 1879 to $143,592, and then $15,692 before the Court of Claims.

1873

A pamphlet is published called The Great Falls of the Potomac River of Virginia, with its Resources and Outlets as the Manufacturing Center of the United States. The author, Andrew Rogers, champions the potential for developing the Great Falls as an industrial center and blames the institution of slavery for the failure to develop the property. In what seems more like propaganda, Rogers writes that the greatest potential is the area owned by the GFMC and relates the solid the charter of the GFMC.

1877

March Thomas Simms, Assistant Attorney General for the United States, writes the Maryland Land Office requesting the information on the final disposition of the caveat case against Neilson's Desire. Included was a copy of the transcript of the caveat against Neilson's Desire issued from the Maryland Land Office for U.S. Court of Claims case 3243. The response relates that the case was dismissed and the patent issued.

1880

Since there had been no formal ratification of the agreement, the Great Falls Manufacturing Company brought suit against the U.S. in the United States Court of Claims in 1880.  The Claims Court upheld the ruling of the arbitrators for $15,692. (NOTE: A fairly detailed summary of the proceedings to this point is provided in THE GREAT FALLS CASE: The Great Falls Manufacturing Company v. The United States, UNITED STATES COURT OF CLAIMS 16 Ct. Cl. 160; 1880 U.S. Ct. Cl. LEXIS 11.

Judge Hunt in his opinion relation to the arbitration

"That the Secretary was wise in seeking counsel from such competent and distinguished advisers no one will doubt. Their opinion is entitled to the most profound respect. It carries with it at least the moral power of a final judicial decision; and this court would be slow to dissent from its high authority. It has fixed the value of the claimants' property, as that property was finally taken by the government, at $15,692. There appears to be no reason for believing this price excessive or unfair. The claimants are entitled to recover this amount under their express written agreement with the government."

As part of the arbitration process, the Manufacturing Company was required to show proof of title to the Toulson Tract, Conn's Island, and the Cyclades. This was done satisfactorily to the arbitrators although the case description does not mention what form of proof was required and given. It was argued during the case that the arbitration proceedings relating to the titles were not binding unless the title was held valid by the U.S. Attorney General. The majority opinion of the Court of Claims held that since the Attorney General had not refuted the title (as was his right) that "It is a well settled principle of law that if a party to a contract, who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispense with or by any act of his own prevent or omit the performance, the opposite party is excused from proving a strict compliance with the condition."

The decision was not unanimous and the dissenting opinion was expressed by Judge Ch. Drake. He believed the Secretary of the Interior did not have the power to legally enter into arbitration. This could only be done by Congress. He also believed that the dam built to Conn's Island was not similar to any of the plans presented at arbitration, and that the arbitration was not binding unless the Attorney General decided that the GFMC had valid title to the land used by the U.S.

Information also reported in Cases Decided in the Court of Claims at the Dec. Term 1880, Vol. 16, Washington, W.H. Morrison, 1881.

1882

July 15 "An act to increase the water supply of the city of Washington, and for other purposes" This act is specifically worded in order to allow the US to condemn land for the Aqueduct using Eminent Domain and takes the process out of the hands of the Maryland Courts. Forty thousand dollars was appropriated to pay for land and water rights taken to complete the dam.

1884

U.S. Court of Claims ruling in The Great Falls Manufacturing Company v. The United States that awarded the GFMC $15,692 was affirmed by the Supreme Court in UNITED STATES v. GREAT FALLS MANUFACTURING COMPANY. SUPREME COURT OF THE UNITED STATES 112 U.S. 645; 5 S. Ct. 306; 1884 U.S. LEXIS 1913; 28 L. Ed. 846 (it also upheld the Manufacturing Company's title to the land in question).

Additional information is available in the transcript of the case sent to the Supreme Court: The United States v. Great Falls Manufacturing Company, Case Files 10057; General Case Files; Records of the Supreme Court of the United States, Record Group 67; National Archives Building, Washington, DC.

January 14 Letter from Assistant Attorney General John Blair to Attorney General on claims by GFMC's President (Benjamin Butler) claims.

"The Courts of Maryland in carefully considered opinions have held that owners of land on the Virginia shore have no riparian rights whatever, and that under the original grant the State of Maryland extends to low water mark on the Virginia shore. In my opinion the riparian rights of the Great Falls Manufacturing Company are not worth a farthing. But if I am mistaken in this, the controversies between the United States and the Company are eminently proper ones to be disposed of by the Courts, and I recommend the refection of the offers of the Company."

August 21 Original petition filed in U.S. Court of Claims, for The Great Falls Manufacturing Company v. The United States asking for $300,000 (RG 205 U.S. Court of Claims, General Jurisdiction case 14446 filed August 21, 1884). There is no more activity on this case until 1889, which is probably a direct result of proceedings in the U.S. Circuit Court for the District of Maryland ruled on in 1885 and the subsequent Supreme Court Ruling of 1887/88. There appears to be no activity on the docket between 1891-1902. The last entry dates January 25, "Wrote the Secretary of War transmitting Letter from clm't company rel to compromise of case, tc. (May 6, 1902 See No. 19863 as to papers filed [case 19863 relates to the Great Falls Power Company v. the United States]).

1885

The Great Falls Manufacturing Company made an unsuccessful attempt to block the completion of the dam as detailed in GREAT FALLS MANUFACTURING CO. v. GARLAND, Atty. Gen., etc., and others. Circuit Court of the United States for the District of Maryland 25 F. 521; 1885 U.S. App. LEXIS 2287. The GFMC argued for an assessment by jury of water and land damages for the completion of the aqueduct dam across the Potomac.

December It appears that there was an attempt to revoke the charter of the Great Falls Manufacturing Company because it offered to pay its Virginia taxes in coupons. In a letter dated December 10th from J. Bailey of the Virginia Office of the Attorney-General to Benjamin Butler, Bailey reassures Butler that the charter "...cannot be repealed." Another letter dated December 14th, from John Cassells to Benjamin Butler suggested that Butler contact Senator Mahone in regard to the repeal of the charter of the Great Fall's Manufacturing Company. It is not clear whether Butler is interested in acquiring the company or owns an interest in the company and is offering to pay the taxes.

1886

Aqueduct dam is completed to the Virginia Shore.

1888

February 6 U.S. District Court's decision not to grant an injunction against the completion of the dam to the Virginia Shore was affirmed by the Supreme Court Case #12,086, in 1887 GREAT FALLS MANUFACTURING COMPANY. v. THE ATTORNEY GENERAL. SUPREME COURT OF THE UNITED STATES 125 U.S. 581; 8 S. Ct. 631; 1888 U.S. LEXIS 1896; 31 L. Ed. 527.

The GFMC wanted its claim settled by a jury similar to how claims were settled in 1858. Notable is the description of the Toulson Tract:

Description and claims of Toulson Tract, this description has the tract going to the middle of the river. It is not clear if they are claiming that the toulson tract's water rights extend to the middle of the Virginia channel, or if they are including Neilson's Desire in the description and its claim to water rights.
"...lying and being on the Potomac River commencing at the northeasterly corner thereof at the western boundary of said Conn's Island, thence running southerly, by said boundary of said Conn's Island, and along the middle thread of said river to a point below said Great Falls, thence extending westerly about half a mile, thence northerly to a point opposite the point begun at, containing one thousand acres, more or less, with all the easements, rights of water use, navigation, privilages, and fisheries thereunto appertaining and belonging..."
similar claim filed in Amended Petition in US Court of Claims case 14446 dated January 9, 1889, while Petitioner's Request for Finding of Fact in the same case describes the Toulson Tract as "...is bounded by and extends along the river, from a point opposite the middle of Conn's Island to a point below the Great Falls, and extends back from the river a distance of about half a mile." undated statement.

Clear that the GFMC was using the water of the Old Potomac Navigation Canal located in the Toulson Tract at small expense.

Additional information is available in the transcript of the case sent to the Supreme Court: The Great Falls Manufacturing Company v. Augustus H. Garland, Attorney General of the United States, et al. Case Files 12086; General Case Files; Records of the Supreme Court of the United States, Record Group 67; National Archives Building, Washington, DC.

1892

July 25 Francis Mahun writes Benjamin Butler requesting funds to pay the taxes owned by the GFMC. "The taxes for the Maryland property (Conn's Island) is $24 and for the VA property $241.40 making a total of $265.40"

October 3 Benjamin Butler's law partner O.D. Barrett writes Butler informing him of the murder of Colonel Canaday, a prospective buyer of the lands of the GFMC.

November 3 O.D. Barrett writes Butler referring to negotiations for the lands of the GFMC. Barrett relates "I received last week, or rather last Monday, a letter from my promoter of the Great Falls scheme that his parties were ready to comply with my terms and that they would be here to see me very soon." Barrett also expresses his desire for rain because little precipitation had left the Potomac river very low and he felt that "...examination of the Falls at present would break up the negotiation."

November 14 Butler is gathering stock in the GFMC (it is not clear why he is requesting the stock or who T.E. Major is but his letter to Butler also mentions the inclusion of a copy of the "...statutes of Virginia and Kentucky fixing the boundary line.").

December 20 T.W. Tyrer representative of the Washington and Chesapeake Beach Railway Company writes Butler to discuss acquiring the water rights of the GFMC. No price is mentioned and Tyrer tries to get Butler to sell the property for its value in stocks and bonds in the Washington and Great Falls Electric Railway Company (later known as the Washington Railway and Electric Company, which becomes the principal share holder of the Great Falls Power Company around 1900 and also owned the Potomac Electric Power Company). Ironically Tyrer writes...

"    There is no one knows better than you the importance of this whole undertaking, if it is carefully and thoroughly managed, and the power that has for so many years been idle may again become of some utility, and bring you some return for your money: and no one knows better than you, that unless some undertaking as the one we have in hand is carried out, Great Falls may lay for a generation yet, as unproductive as during the past two generations."

December 26 Tyrer responds to Butlers offer to sell the GFMC. Butler's terms appear to be cash or 1/3 cash down with the remaining balance in three annual payments at 6% interest.

1893

January 11 Benjamin Butler dies in Washington D.C. The proposed deal with Tyrer falls through.

1894

March 3 Virginia grants rights "for the purpose of acquiring, holding, improving and using water power at and near the Great Falls in the Potomac river and for constructing dams therein, canals and other hydraulic and auxiliary steam works, which acts are hereby authorized, and for the selling and leasing of water power, and for the using the same for manufacturing and other purposes..." to the Great Falls Power Company (the VA act is entitled An Act to Incorporate the great Falls Power Company, Approved March 3, 1894 the first section of the VA act is recorded in Laws of Maryland Chapter 540, p. 797, 1894).

April 6 Maryland grants the Great Falls Power Company the right to "...the right to erect such dam or dams or other structures in the Potomac river in this State, between the Great Falls and the United States Government aqueduct dam as may be necessary to be used, the water and water power at or near Great Falls, for the purposes set forth in its charter " (Laws of Maryland, Chapter 540, Section 1, p. 798, 1894). There is a stipulation that the company can not "...interfere with or damage, no property or right vested in the Chesapeake and Ohio Canal Company, acquired as the successor of the Potomac Company...

July 21 Letter from the Secretary of War reported to the Senate by the Committee on the District of Columbia:
Two statements worth noting:

"    The land taken under the act mainly consisted of a narrow strip extending from the medium filum aquae of the Virginia channel to the western shore of Conn's Island; thence across Conn's Island to the eastern shore; thence to the medium filum aquae of the Maryland channel. The strip did not extend from the medium filum aquae of the Virginia channel to the Virginia shore for the reason (see the plat) that the United States was already, from 1854, a riparian owner at the Virginia end of the propose extension of dam.
    There was also included in the taking a small triangular portion of the bed of the Virginia channel between the medium filum aquae of the channel and the Virginia shore that was not covered by the riparian right of the United States as an owner on that shore, the lot on which the gate house stands, and also the land on the Maryland shore below this lot, extending to the shore, and covering in addition that part of the river-bed site of the Maryland end of the old dam that was not already the property of the United States." (53d Congress, 2d Session. Ex. Doc. No. 154, p. 19)

also quoted is the brief of special counsel for the U.S. in water right suit settled in 1879.

"While we do not think the Toulson tract and the riparian rights appurtenant thereto have been invaded by the United States, and contend that they are not entitled to consideration in the present case we deem it proper, in view of the effect which the ascertainment of those rights by the court might have upon a future extension of the dam, to state distinctly our position.
 

The court of appeals of Maryland, in a proceeding between the parties to the present suit, held that the State of Maryland, by legislative grant, had conferred, in 1853, upon  the United States the soil between the Virginia low-water mark and the medium filum aquae extending from a point above to a point below the falls (21 Md. Rep., p. 119, and pp. 375, 376, 377 record; Baltimore v. McKim, 3 Bl., 453) The riparian right appurtenant ot the Toulson tract has thus become res judicata.

The court of Maryland had jurisdiction of the res because it was included within the grant to Lord Baltimore in 1632 and because, further, no act of Maryland has ever ceded this jurisdiction and there is nothing to show that Virginia ever claimed it."

   If my inference drawn from this statement be the true one, then the Great Falls Manufacturing Company, apart from the rights conferred by its ownership of Conn's Island above the Falls has no interest in the water rights (water) at Great Falls..." (53d Congress, 2d Session. Ex. Doc. No. 154, p. 23)

1895

July 22 The land and water rights held by the Great Falls Manufacturing Company were sold to the Great Falls Power Company "...reserving only the claims of this company against the United States for damages for lands taken and for water heretofore diverted from the Virginia Channel in said river..." (The land was sold to the GFPC without proper title and payment for water rights being determined. O.P. Newman's article in 1911 claims that the GFPC was the GFMC with a different name. This may have been possible because Benjamin Butler's son Paul was the one of the early presidents of the GFPC).

MONTGOMERY COUNTY CIRCUIT COURT (Land Records) Deed Great Falls Manufacturing Company to Great Falls Power Company, July 22, 1895,  Liber JA 49, Folio 364-378,  MSA CM705-95, CR 3470-27

Deed recorded in Montgomery County (probably recorded in Fairfax County as well) that lists property sold to the Great Falls Power Company in Maryland and Virginia. Virginia tracts include part of the land near and over the Difficult Run in VA,  the Jackson Lot in Fairfax County (anchor point for the Aqueduct dam), the greater part of the Toulson Tract in VA (originally sold by Hall Neilson to the Great Falls Manufacturing Company in 1854 and recorded in Fairfax County, VA). Maryland lands listed include Conn's Island, Neilson's Desire, and the Cyclades. Also conveys rights vested in the Great Falls Manufacturing Company "...reserving only the claims of this company against the United States for damages for lands taken and for water heretofore diverted from the Virginia Channel in said river..."

March 2 March 2, 1895, Vol. 28, Stat. at L., p. 752 U.S. This law raised the height of the Washington Aqueduct dam. Great Falls Power Company brings suit in the U.S. Court of Claims in part based upon this act and the act of 1882.

December Term The GFPC's description of the Toulson tract claims its borders follow the dividing line between Maryland and Virginia and distinctly refers to Neilson's Desire, although not by name.

"And also a certain other parcel of land in said Maryland, commencing on the dividing line between Conn's Island and the Virginia shore and thence extending down the centre of said river past said Great Falls to a point opposite Difficult Creek so called, thence westerly tot eh Virginia State line and thence northerly on the Virginia State line to a point on said line opposite the point of commencement, thence easterly to the point of beginning. For a particular description of said lands and said islands the claimant prays leave to refer to the deeds of conveyance of the same here in Court to be produced." Court of Claims Case 19,863, The Great Falls Power Company v. The United States

1896

GFPC files in U.S. Court of Claims to resolve issues on water rights based on federal acts of 1882, 1884, and 1888 over the raising of the height of the dam. Damages are awarded in 1902 for $63,766 same as the arbitration awards of Feb. 1863 for plan A calling for the completion of the aqueduct dam to the VA shore.

1900

The Washington Railway & Electric Co. purchases controlling interest in the Great Falls Power Company (which also controlled the Potomac Electric Power Company).

February Chesapeake and Ohio Canal Company, v. The Great Falls Power Company, Filed in Montgomery County Circuit Court, Equity Case 1766

April 7 AN ACT to repeal and re-enact, with amendments, Sections one and three of Chapter five hundred and forty of the Acts of the General Assembly of Maryland, eighteen hundred and  ninety-four, being an Act to authorize the Great Falls Power Company to erect dams, hold real estate, and to erect and maintain lines for the transmission of electricity in Montgomery and Prince George's Counties, in the State of Maryland, and to add an additional section thereto, to be called Section 3A, and to grant certain additional powers, rights and privileges unto the said Great Falls Power Company. This act affirms the Great Fall's Power Company's right to build dams but made sure that the GFPC did not infringe upon the rights of the C&O Canal Company.
Archives of Maryland, Volume 97, Page 363, 364, 365

1901

March 19 Contract Between GFPC & C&O Canal selling  riparian water rights and piece of property on MD shore for proposed dam for $75,000. Land is next to land owned by Gov. near lock 19. The Great Falls Power Company had made an offer of $100,000 for the land and water rights in question, but the court approved the following. Court proceedings in Maryland between the C&O and the GFPC were dropped with this agreement, however, it did not solve the claims of both companies to the Toulson Tract in Virginia. This disagreement continued until GFPC's claim to the tract was upheld by the Virginia Supreme Court in a 1925 ruling on CHESAPEAKE AND OHIO CANAL CO., ET ALS. v. GREAT FALLS POWER COMPANY.

Includes C&O's Riparian rights in the Potomac River

"...between the Government Dam and a point on the Maryland shore opposite the lower end of an island in the Potomac River known as "Cupid's Bower," subject, however, to the reservation by the party of the first part of the right to the full and free use and enjoyment of all lands and property of said company between the points aforesaid and of any rights thereto appertenant, so far as the said party of the first part, their successors or assigns, may deem necessary or proper for the development and operation of the said canal as a navigable highway, and with the proviso that the party of the second part shall erect no dam or works in the said river, other than that dam and works shown on the plan hereto attached, without the further approval and consent of the party of the first part, their successors or assigns; it being the intention of this section that, subject to the above reservation and proviso, the party of the second part shall acquire as the owner of the Virginia shore of the said river, and for its corporate purposes, all said riparian or water rights in the said river between the points above mentioned."

agreement to convey the "Canal Strip" to the GFPC upon full payment  of a quit claim deed (strip of land that runs through the "Toulson Tract")
or in "lieu of said deed an agreement to  convey the same whenever the party of the second part shall designate and direct, the party of the second part shall have the right so to do." It had to be ratified by the Montgomery County Circuit Court..

1902

March Washington County Circuit Court ratifies the agreement between the GFPC and the C&O Canal Company made March 19, 1901. The agreement also dropped equity case 1766 in the Montgomery County Circuit Court.

May 10 The Great Falls Power Company and the United States settle the claim on the water rights at the Great Falls.  The GFPC sells its land and water rights to land the Aqueduct dam was built on to the United States for $63,766 (the exact price listed for the completion of the dam to the Virginia shore by arbitrators in 1863).

MONTGOMERY COUNTY CIRCUIT COURT (Land Records) Deed Great Falls Power Company to the United States of America, May 10, 1902 recorded November 26, 1903, Liber TD 27, Folio 138-139,  MSA CM705-133, CR 3489-2a.

Deed  to the United States from Great Falls Power Company that "...grant, convey, assign, release and quit claim unto the said United States of America the land and water rights belonging to the grantor situated in the States of Maryland and Virginia and described as follows: all land of said grantor or in which the grantor has any interest upon which is located the dam of the United States Government at the Great Falls of the Potomac..." Includes Conn's Island (also known as Bishops Island) the land on which the Aquaduct dam was built.

1909

February Edward Wright, Assistant Attorney, Department of the Interior, conveys a report to George Woodruff, Assistant Attorney General, Department of the Interior, into the riparian and water rights at the Great Falls. (the report was initially completed in February of 1909 and was included as an appendix to a Letter from the Secretary of War referred to the Committee on Appropriations in 1913 62d Congress, 3d Session, House Document No. 1400. The newspaper article written in 1911 by O.P. Newman draws on this report.) The report relates the history of the riparian rights, which Wright believed belonged to the C&O Canal Co., the GFMC (note: he cites the, and the United States as the owners of the riparian rights at the Great Falls.

It appears that Neilson Hall (president of the GFMC) and others claimed ownership of the Great Falls based on a direct title to the land derived from the 1688 grant of the Potomac River from Thomas Fairfax to Bryan Fairfax (Neilson's deed was dated May 1, 1854). Wright believed that the GFMC's riparian claims relating to the Virginia land purchased in 1853 from Hall Neilson derived from the 1877 agreement between Maryland and Virginia. He quotes the agreement  relating to riparian rights...

"    "Virginia is entitled not only to full dominion over the soil to low water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low water mark as may be necessary to full enjoyment of her riparian ownership, without impeding navigation or otherwise interfering with the proper use of it by Maryland , agreeably to the compact of seventeen hundred and eighty-five."
    It is certain, therefore, that the Great Falls Manufacturing Co. acquired no peculiar right or privilege in the Great Falls by its deed from Neilson and others. (page 63)"

By 1909, it seems that the shift for proving riparian rights was now focused on the Government's ownership of the Resurvey of Hard to Come At (the U.S. had a half interest in this property) and Hard to Come At (the U.S. owned all 19 acres of this property). Wright also believed that the award to the GFPC for $63,766 in 1902 should have been $15,692 less (since the GFMC had been awarded this amount earlier based upon partial completion of the dam and the award to the GFPC was the amount determined by arbitrators if the dam had been completed to the VA shore (page 68).

1911

January 27 A newspaper article by O.P. Newman is ordered printed by Congress (61st Congress, 3d Session, Senate Document No. 790). It details the history of the water rights at the Great Falls with references to the C&O Canal, the GFMC, the GFPC, and the U.S. government's quest for the dam across the river. In regards to the riparian rights Newman writes...

"    The extent of the riparian rights accompanying the real estate of this company was problematical; the agreement between Virginia and Maryland as to boundary provided that Virginia should have "a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership." The reason the extent of the company's water rights was never determined was that the company never attempted to use them, except as a reason for collecting damages from Uncle Sam."

Newman concluded that the government's payments to the GFMC and GFPC for the water rights of the Great Falls amounted to $92,219.84 ($12,761.84 arbitration expenses, $15,692 to the GFMC, and $63,766 to the GFPC) and

"...were to concerns that had never done any of the things for which they were incorporated; that had never developed an ounce of Great Falls power during 70 years of life; that had never performed a single public service."

1925

October 1 CHESAPEAKE AND OHIO CANAL CO., ET ALS. v. GREAT FALLS POWER COMPANY Supreme Court of Virginia 143 Va. 697; 129 S.E. 731; 1925 Va. LEXIS 299
Supreme Court of Virginia rules that the Great Falls Power Company owns the Toulson Tract and rights relating to it. The C&O Canal Company had claimed Toulson Tract because it had succeeded the rights, property, and privileges, of the earlier Potomac Canal Company, however, the court believed the GFPC had proper title because the C&O had basically abandoned the tract over 100 years.

7)Archives of Maryland, Volume 14, on line and indexed at http://www.mdarchives.state.md.us/megafile/msa/speccol/sc2900/sc2908/000001/000014/html/am14--180.html

8)MSA SC 5330-1-9

Dates: 2000/08/09
Description: Ownership of the Blackwater River in Ireland and dispute of the town of Youghal with the Duke of Devonshire re: [See the Times for August 9, 2000; prelimary research by Oxford Solicitor Anneliese Day. Blackwater privately owned by the Duke and thus subject to his regulation.]

Dates: 1688-1747
Description: Culpepper (later Fairfax) grant to the Northern neck of Virginia, September 27, 1688 and resulting map (ca. 1747)

[This grant contained language that asserted ownership of the whole of the Potomac River. It did not revoke prior grants, including the earlier grant to Lord Baltimore of June 1632 that also included the whole of the Potomac River. Defining the extent of the grant was a long process concluded by a decision by the Privy Council on April 11, 1745, in favor of Fairfax's claim as to the source of the Potowmac. That decision resulted in the map referred to by Cecilius Calvert (see detail from the ca. 1747 map). See Charles M. Andrews, The Colonial Period of American History. New Haven: Yale University Press, 1936. Vol. II:234-238, for a discussion of the Fairfax grant. See also the minutes of the Privy Council relating to the mapping of Fairfax's boundaries. It is important to stress that the Privy Council explicitly did not address anything other than the location of the line from the headwaters of the Rappahanock to the headwaters of the Potomac. It did not address the meaning or application of any other language in the charter:

1745 6 April. [Committee: 14 present. The committee rehearse the case, and recommend that] the question being only concerning that Boundary which ought to be drawn from the first head or spring of the River Rappahannock to the first head or Spring of the River Pattawomeck alias Potowmack the committee do Agree humbly to Report to Your Majesty as their Opinion that within the words and meaning of the Letters Patent Granted by King James the second bearing date the 27th day of September in the fourth Year of his Reign the said Boundary ought to begin at the first Spring of the ... Rappahannock now called Rappidan ...in a Streight Line North West to ... where the River Patawomeck alias Potowmack ...first Arises the other Boundarys being the said Rivers themselves as they run from their said respective Heads till they fall into Chesapeyock alias Chesapeak Bay...]

 According to Whealton, p. 20, "Charles, [5th] Lord Baltimore, was not represented and had no part in the work" of the Commission that mapped Fairfax's claim." The commission to map the area was the result of a 1733 petition to the king for a survey to have the bounds of the Fairfax grant determined. For much of 1733, Charles was in Maryland and may not have been aware of the petition that resulted in the commission, but as Cecil Calvert makes clear, Charles did know of the proceedings in 1745 and of the resulting map. That was the whole point of Cecilius's letter to Sharpe (MSA SC 5330-10-16). He was expressing shock and amazement that Charles did not join, nor contest the survey. According to Cecilius (Charles's brother) Charles was present at the 1745 Privy Council hearings held because Virginia and Fairfax could not agree on the location of Fairfax's boundary. Those hearings only dealt with the location of the fountainhead of the Potomac. They did not address the assertion in the language of the Fairfax grant that Fairfax owned the whole of the river Potomac. That assertion would be left to the Supreme Court to carefully review and reject many years later. As Justice Shiras decreed in Morris v. U.S. ( 174 U.S. 196):

 we agree with the conclusion of the court below, that, upon all the evidence, the charter granted to Lord Baltimore, by Charles I, in 1632, of the territory known as the Province of Maryland, embraced the Potomac River and the soil under it, and the islands therein, to high-water mark on the southern or Virginia shore; that the territory and title thus [***49] granted to Lord Baltimore, his heirs and assigns, were never divested by any valid proceedings prior to the Revolution; nor was such grant affected by the subsequent grant to Lord Culpeper.

The record discloses no evidence that, at any time, any substantial claim was ever made by Lord Fairfax, heir at law of Lord Culpeper, or by his grantees, to property rights in the Potomac River or in the soil thereunder, nor does it appear that Virginia ever exercised the power to grant ownership in the islands or soil under the river to private persons. Her claim seems to have been that of political jurisdiction.

Without pursuing further this branch of the subject, and assuming that the heirs of John [**662] Marshall have become lawfully vested with the Fairfax title, we are of opinion that they have failed to show any right or title to the lands and promises involved in this litigation, and that the decree of the court below, so far as it affects them, is free from error.
 

11)see note 15 below and Clarence Gould, The Land System In Maryland 1720 - 1765, The Johns Hopkins Press, Baltimore, MD, 1913

12)proof of the quitrents paid on tracts that included the waters of the Potomac is to be found in the rent rolls of the Land office, MSA S 18-42, and the tax records of the counties in which the tracts were located.  For example see the tax records for Dear Bought (Harper's Ferry) in MSA S 1161-11-1.

13)See Kenneth R. Bowling, Creating the Federal City, 1774 - 1800: Potomac Fever
American Institute of Architects, Washington, DC, 1988,  and The Creation of Washington D.C.: The Idea and Location of the American Capital
George Mason University Press, Fairfax, VA, 1991

14)Archives of Maryland, volume 73 on line and indexed at http://www.mdarchives.state.md.us/megafile/msa/speccol/sc2900/sc2908/000001/000073/html/index.html

15)MSA SC 5330-14-20

Dates: 1990/11/20
Description: Opinion of the Commissioner of Land Patents, Edward C. Papenfuse, in the matter of the applications for Land Patents by Frank R. Marquardt and Mary A. Marquardt, LAND OFFICE (Warrants) 1699-, MSA S 1285-37, Warrants 81 and 82. Files in the main entry also include the opinion of the Court of Special Appeals, Frank H. Marquardt, et ux. v. Edward C. Papenfuse, et. al., No. 1468, September Term 1991, filed July 7, 1992, from the Daily Record, Monday September 21, 1992, and the Patented Certificate of Survey for the Brewhouse,May 10, 1749, MSA S 1191-26.
 

The process and consequences of patenting land on the Virginia side of the water was complex and subject to consderable litigation among Virginians over who even had the right to grant land along the Potomac.  For a good analysis of the conflicting claims, the muddled issue of sovereignty,  and of the process of granting land in Virginia see: Fairfax Harrison,  Virginia Land Grants: A Study of Conveyancing in Relation to Colonial Politics, New York, NY: Arno Press, 1979 reprint of 1925 edition: Richmond, VA: Old Dominion Press,  MSA SC 5330-9-96,

17)Archives of Maryland, volume 14, on line and indexed at http://www.mdarchives.state.md.us/megafile/msa/speccol/sc2900/sc2908/000001/000014/html/am14--180.html

18) MSA SC 5330-24-8

ferries that patent the right of way:

Robert Harper's "Dear Bought"
is a patent to the right of way across the water.

Note: Several secondary sources state that an original ferry operated in
this vicinity in 1734, possibly by Peter Stephens, and that Harper
purchased "squatters rights" in 1747. Dear Bought dates from 1757.
 

John Nelson's "Hobson's Choice"

For the railroad bridge at Harper's Ferry which apparently traverses Harper's patent, see stereo views in  MSA SC 1991.
 
 

Dates: 1979

Description: Littlefield, Douglas R[obert]. "A History of the Potomac Company and Its Colonial Predecessors, 1748 - 1828." Master's thesis, University of Maryland, 1979.

MSA SC 5330-9-73
Dates: 1969
Description: Albert, Peter Joseph. George Washington and the Improvement of the Potomac, 1754-1785. MA Thesis, University of Wisconsin.

MSA SC 5330-9-68

Dates: 1912 [1971]
Description: Bacon-Foster, Mrs. Corra. Early Chapters in the Development of the Patomac Route to the West. New York: Burt Franklin, 1971 [1912]. MSA L 20000003

MSA SC 5330-16-257
Dates: 1832
Description: THE CHESAPEAKE AND OHIO CANAL COMPANY vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY. [NO NUMBER IN ORIGINAL] COURT OF APPEALS OF MARYLAND 4 G. & J. 1; 1832 Md. LEXIS 12 June, 1832, Decided.

 [Chesapeake and Ohio Canal Company case involving dispute with the Railroad over right-of-way. See the full text of the case as reported in 4 Gil and Johnson, 1. See also the original reporter's notes in this case as color jpgs below (msa s 427-15-1, ff. 290/294; 378-432), especially image 9. The decision refers to the Opinion of Judge Marshall, in relation to the Potomac Company; and Agreement by the Potomac Company with General Henry Lee Relative to the use of the surplus water at Great Falls of Potomac (1792 [1817]).

 This is a complex case which was appealed from Chancery. The Chancellor, Theodorick Bland, had decreed that a permanent injunction should issue preventing the C&O Canal from condemning land that the railroad was in the process of acquiring. Bland assessed all costs against the C&O Canal Company and issued the permanent injunction on the grounds that the railroad had begun acquiring the land properly under land laws of Maryland and their right to do so took precedence over the Canal's right of condemnation.

 The Court of Appeals was split 3 to 2 in favor of reversing the decree and lifting the injunction. Writing for the majority, Chief Judge Buchanan argued that the Canal had a prior contract or compact with Maryland and Virginia to improve the Navigation of the Potomac. Although Justice Marshall had ruled previously that the Canal company lost that power in those areas where the canal was built, Judge Buchanan ruled that in this case the dispute was over an area where the canal had yet to be built. To Buchanan, "the corporation retained the power to condemn land, and make canals, where none had before been made," and the charter rights of the Canal Company, as derived from a prior contract and compact with the States of Maryland and Virginia, gave them the power to condemn any lands that the railroad might acquire, as well as the right to determine where the canal would be built whether or not it would interfere with the construction of the railroad.

In his dissent, Judge Archer, expressed his belief that the Compact of 1785 applies to the Potomac above tidewater. He alone of the three judges refers to the compact:

A fact in the history of these States will be adverted to, for the purpose of showing the entire improbability, that in the grants to this company, any compact was ever contemplated by the States to be made with each other. At the very sessions of the legislatures of Maryland and Virginia, at which these charters were passed, commissioners of these States were holding their sessions at Mount Vernon, negotiating a compact in relation to the navigation of this river. It was concluded in [**369] March, 1785, and in March, 1786, it was formally ratified as an irrevocable compact between the two States. Two of the articles are, that the river should forever be a highway for the commerce of the two States, and that all laws creating any obstructions, in, or to, the navigation of the river, were prohibited to each State, without the consent of the other. No clause in it, is found having relation to the Potomac Company, or to any previous compact having ever existed between them in relation to this subject, although they were engaged in making agreements in relation to the very subject to which the Potomac Company applied. If the charters were compacts, it is astonishing they should not have been adverted to in any way; and if they were compacts, it is not to be credited, that they would in the short space of three months, have again negotiated about the subject of making the river a highway, and should have shortly after ratified that compact, when they had but just previously made one in relation to the very [*213] subject. The truth is, the States never dreamed that in chartering the Potomac Company, they had made any compact. This idea has been a modern discovery [**370] by the appellants. ...

 2. The dependent character of the laws chartering the Canal Company. Most of the reasons urged for the shape which the Potomac charter assumed, in this respect, will apply to the one now under consideration. But in addition to the fact of the canal running into both States, and so requiring legislation on the part of Maryland, to give full efficacy to all the objects and views of Virginia , neither Virginia, Maryland, nor the [**372] United States, could have acted in this matter for their own peculiar territories, without obtaining the assent of the other. Their anterior history shows, they had lost all absolute powers of legislation in relation to the river, and could only again resume them, with the consent of the other. A reference to the compact between Virginia and Maryland, agreed upon in 1785, and finally settled in 1786, will show that it had been stipulated, that the river was forever to be a common highway for the citizens of those States, that neither State could obstruct, in any manner its navigation, and that all laws to be enacted by either, upon this subject, were to be invalid, unless assented to by the other. This ancient compact, satisfactorily accounts for Virginia demanding the assent of the two other powers, even if her law had been entirely in its form extra-territorial. For she was enacting a law, the consequence of which, in abstracting so large a quantity of water from the bed of the river, might in dry, nay in ordinary seasons, have had a tendency, by rendering the river less navigable, to have materially interfered with its value, as a public highway for the commerce of [**373] the two States, and interfered with the spirit of that agreement, which prohibited either State from obstructing the navigation of the river. The same considerations which induced the demand of the assent of Maryland, occasioned the same requisition on the United States, and the Potomac Company. The former had, by the session of the District, succeeded to all the rights of Maryland on the left [*215] bank of the river, so far as the same was within her territory, whether those rights grew out of the territorial sovereignty of Maryland, or by treaties, or compacts with other States: and the Potomac Company's assent was also necessary to be asked, before the Virginia law could be operative, for the grant to her gave her rights over the river, and preferences in its navigation, which the new law materially interfered with. The demand of this "assent" on the part of Virginia, is then put upon the sound and proper principles, when it is placed on the combined facts, that the canal might be extra-territorial, and that consent to any legislation was a direct compliance with anterior stipulations; Maryland and the United States yield their consent. [**374]

Archer lacked the benefit of the historical record with regard to the intent of the framers of the Compact of 1785. The 'River' referred to in the Compact of 1785 was the navigable portion below Tidweater, and as Chancellor Bland pointed out three years before in the Binney Case, the Compact of 1785 did not apply above Tidewater. ]

Dates: 1829
Description: Amos Binney v. The President and Directors of the Chesapeake and Ohio Canal Company. MSA S 512-6637, folders 1-3 and oversize. The case is reported in Theodorick Bland, Reports of Cases Decided in the High Court of Chancery of Maryland, vol II, pp. 99-166. The case and all surviving documentation submitted to the Chancellor are available on line and on CD. Insert cd labeled MSA_C_512_6637. To view, activate the index.html in the root directory of the CD. The original of the decree is also available as a multi-layer tif file.

Chancellor Bland extracts the case as follows:

When an attachment is in the nature of mesne process, the Sheriff may take bail for the party's appearance; and on a return cepi, the sheriff may be ordered to bring in the body; or he may sue upon the bail bond. It is the better mode, in most cases, to decide on the motion to disolve the Injunction, before an attachment for the breach of it is disposed of.

 The court frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things, that occasions the application; but in most cases, to obtain an injunction, it is suffcient, that the qustion is important and dobutful. In some cases the injunction is granted by a special order, allowing a motion to dissolve, to be heard at an early day. The making of a substantial amendment dissolves the injunction of course, unless expressly save. An anser, which purports to be the answer of several; but is not sworn to by all of them, may be taken off the file; or considered as the answer of him only who has sworn to it. A defnedant may sufficiently answer, by adopting the answer of his co-defendant. --No one is a party to the suit against whom no process is prayed. --A misnomer may be waived, but if relied on, it is fatal.

 Where the legal capacities of parties, as charged, are different; such capacities must be ocnsidered as if they were different persons. --A corporation can only be called on to answer by its proper name. -- All corporations are subject to visitorial power; or to some legal control. --In general, a corporation may alien all, or any of its property at pleasure.

 A natural mill-site described. -- It is not legal to erect a new mill near to, and in rivalship of an old one.--The power conferred on the Potomac Comapny in regard to mills considered. --The nature and application of presumption or right as to certain mill-sites.

The Potomac river belongs entirely to Maryland --above tide, it was not originally deemed a navigable river; but has been made so, in a qualified manner, by law.

 A grant of the power of eminent domain is one which must be construed strictly; it cannot be exercised for any but a public purpose; and, in general, does not admit of any repetition. The jurisdicaiton of this court in regard to persons or things not within the state; and the uncontrolled concurrent jurisdiction of the judiciary of this state, and that of the neighboring states, in some peculiar cases. --The termination of a canal at the tide in a certain district, must mean a convenient port in that district. --The usage as to the termination of canals. The difference between rivercanal navigation.

 No parol proof, nor any part of the proceedings of either branch of the legislature, can be admitted to explain th elanguage of an act of Assembly; except as to private acts, in which there may be a latent ambiguity.

 [Bland's index references to Binney's Case:

 MILLS

 A mill-site on a descending stream how constituted, p. 114; 116
The Plaintiff must describe and shew himself entitled to a mill-site before he can have any relief founded on a claim of such property, p. 117
The water of a stream cannot be diverted to the prejudice of the owner of a mil-site on it, p. 118
One mill may be erected so near another, as to compete with it for its custom, p. 119
The nature of mill-sites as connected witht he canals of the Potomac Company consided, p. 130
The claim of surplus water issuing from a canal for mills, founded on presumption, p. 138

RIVERS

 The Potomac rivers belongs altogether to the state of Maryland, pp. 123; 127
The Potomac above tide declared to be a navigable highway to a certain extent, pp. 124, 128
A River not navigable may be made so by law, p. 125
A riparian holder has a right so to use the waters of a river as not to injure the rights of others, p. 125
The compact between Maryland and Virginia as the the river Potomac, p. 126
A common use of rivers flowing between conterminous states presumed, unless, as in the case of the Potomac, the contrary can be shewn, p. 127
The banks of rivers, why designated as right and left, p. 127, note.
Improved river navigation as distinguished from canal navigation, p. 158

 See biographical materials on Theodorick Bland (1776-1846), in MSA SC 3520-1949, who as a native Virginian and former Federal judge, wrote this exhaustive opinion denying Virginia's claim to the waters of the Potomac.]

Dates: 1859/02/21
Description: Great Falls Land Condemnation Case, Judge Nicholas Brewer's Opinion, Senate Executive Document No. 42, 35th Congress, 2d Session.

[Judge Brewer rules on whether or not the Great Falls Manufacturing Company can claim damages against the U.S. government for the dam built for the aquaduct to supply water to the District of Columbia, and how much those damages are. A portion of the claim of the manufacturing company is based on the supposed riparian rights of the Toulson Tract in Virginia and on Conn's Island (Bishops Island, which the company appears to have purchased earlier and eventually had resurveyed and patented in 1862). Brewer rules the Toulson tract has no riparian rights on the Potomac River and that "The riparian rights of the Great Falls Company has is entirely upon the ownership of Conn's Island, the title to which is derived from the State of Maryland through its grant." (p.9) There is additional information and discussion on water use, the boundary, and water rights. For the Senate Journal entries concerning this opinion see the Annals of Congress. The Senate ordered 500 extra copies of Brewer's opinion to be printed with Senator Fitch "stating that the dissemination of the opinion would have the tendency to prevent the claim of damages to a large amount against the government."

 

MSA SC 5330-8-13

Dates: 1774-1873; 1804
Description: Annals and Proceedings of Congress from the Library of Congress, American Memory Project.

 [The files are searchable. To access, use the above hyperlink. Not all documents published by order of Congress are included on the Library of Congress site (as of 12/8/00). For example, the opinion of Judge Nicholas Brewer in the Great Falls Land Condemnation Case is not, but references to requesting a copy from the President (February 23, 1859), its delivery to the Senate by the Vice President (March 2, 1859), and the order for it to be printed as a Senate Document (March 3, 1859) are, accompanied by the minutes of the sessions in the Congressional Globe. For these entries, narrow the search to the 35th Congress and to 'Brewer.' Samples of the proceedings from 1804, 1812, and 1822 relating to the Potomac River are to be found below (go to the main series unit entry to view images).

The debate in 1804 and 1812 centered on dams or causeways. The 1804 debate related to Mason's Island and the petition for a dam across the Potomac to the island. Where the Compact of 1785 was mentioned, it was applied specifically to the tidewater areas and the opposition to the bill (Mr. John Randolph of Virginia) only referred to the applicability of the Compact of 1785 in that context. The 1812 debate over improving navigation of the Potomac does not appear to take the Compact of 1785 into consideration as having any relevance to improvements above tidewater. Here the absence of references to the compact would seem to be most relevant. The 1822 discussion of financing the improving of the Potomac Navigation by canal above tidwater is interesting in that it again does not reference the Compact of 1785. It is also interesting from the standpoint that Mr. Stewart argued, unsuccessfully, that the whole improvement project should be funded from the sale of the undeveloped lots in the District of Columbia to which the Federal Government held title. He estimated that sale of 1/2 the lots would return $1,805,437.The Brewer opinion (1859) was published by the U.S. Senate ( 35th Congress, 2d Sesssion, Ex. Doc. No. 42).

Brewer's opinion is taken from the condemnation proceedings in the United States vs. the Great Falls Manufacturing Company where he ruled that the Great Falls Manufacturing Company could not claim damages against the U.S.  government for the dam built for the aquaduct constructed to provide water for the District of Columbia. Part of the claim of the  manufacturing company was based on the supposed riparian rights of the Toulson Tract in Virginia and on Conn's Island (Bishops Island, which the company appears to have purchased earlier and eventually had resurveyed and patented in Maryland 1862).  Brewer decided that the owners of the Toulson tract have no riparian rights on the Potomac River and that "The riparian rights of the Great Falls Company has, is entirely upon the ownership of Conn's Island, the title to which is derived from the State of Maryland through its grant." (p.9) There is additional information and discussion on water use, the boundary, and water rights in the Senate Document.

Dates: 1877
Description: Opinions and Award of Abitrators on the Maryland and Virginia Boundary Line. [Black & Jenkins Award] JHU F 190.B7B66.

Award
Dissent by James B. Beck of Kentucky

 [The Black & Jenkins decision does attempt to extend the Compact of 1785 above tidewater (above the fall line), but Black & Jenkins admit they have no authority to review the compact and are only venturing their uninformed opinion (dicta):

By the compact of 1785, Maryland assented to this, and declared that "all the citizens of each State respectively shall have full property on the shores of Potomac and adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements." We are not authority for the construction of this compact, because nothing which concerns it is submitted to us; but we cannot help being influenced by our conviction (Chancellor Bland notwithstanding) that it applies to the whole course of the river above the Great Falls as well as below. 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. (p.16)

Note that the Award does NOT specifically refer to wharves and improvements along the boundary which is very clearly dictated as

"Beginning at the point on the Potomac river where the line between Virginia and West Virginia strikes the said river at low-water mark, and thence, following the meanderings of said river by the low-water mark; to Smith's Point, at or near the mouth of the Potomac, ..."

 The award does pay lip service to whatever, if any, riparian rights Virginia may have in the River and to the degree to which, if any, the Compact of 1785 applies.

 "3. The low-water mark on the Potomac, to which Virginia has a right in the soil, is to be measured by the same rule, that is to say, from low-water mark at one headland to low-water mark at another, without following indentations, bays, creeks, inlets, or affluent rivers.

4. Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of 1785."

Dates: 1857-1912
Description: Maryland State Papers (Boundary Papers, West) MSA S 58

 This collection contains the authenticated testimony, reports, opinions and decrees in the case of the State of Maryland vs. the State of West Virginia, 1891-1912, once owned by one of the Boundary Commissioners for Maryland, W. McCulloh Brown, of Oakland, Maryland. Commissioner Brown dissented from the Boundary award and was a firm supporter of the Potomac Stone as opposed to the Fairfax Stone accepted by the Court as the point at which the northern branch of the Potomac originated. [NOTE: From the outset, Maryland told the court that the compact of 1785 "dealt only with the southern boundary of Maryland, and was confined in its scope to the consideration of questions of navigation and jurisdiction over that part of the Potomac River which was navigable, and had nothing directly to do with the western boundary of the State of Maryland. ..." See MSA S 58-20-1 below. ecp 12/18/00]
 
 

1891/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Bill of Complaint and Answer
(Old Accession No.: 18,011-1)
MSA S 58-15 For multilayer tif images of MSA S 58-15 for whole document printing, click here. These tend to be very large images and will take some time to load.

1908/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 1-496
(Old Accession No.: 18,011-2)
MSA S 58-16 For multilayer tif images of MSA S 58-16 for whole document printing, click here. These tend to be very large images and will take some time to load.

1908/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 497-986
(Old Accession No.: 18,011-3)
MSA S 58-17 For multilayer tif images of MSA S 58-17 for whole document printing, click here. These tend to be very large images and will take some time to load.
 

1908/10
Description: U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 987-1474
(Old Accession No.: 18,011-4)
MSA S 58-18 For multilayer tif images of MSA S 58-18 for whole document printing, click here. These tend to be very large images and will take some time to load.
 

1908/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 1475-1990
(Old Accession No.: 18,011-5)
MSA S 58-19 For multilayer tif images of MSA S 58-19 for whole document printing, click here. These tend to be very large images and will take some time to load.
 

1909/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia.

Brief for the State of Maryland, filed October 19, 1909.
(Old Accession No.: 18,011-6)
MSA S 58-20-1. Multilayer tif image (large) for printing

 Addenda to Brief for the State of Maryland, filed November 1, 1909.
(Old Accession No.: 18,011-6)
MSA S 58-20-2. Multilayer tif image (large) for printing

 Brief for the State of West Virginia
(Old Accession No.: 18,011-6)
MSA S 58-20-3. Multilayer tif image (large) for printing

 Supplemental Brief for the State of West Virginia.
(Old Accession No.: 18,011-6)
MSA S 58-20-4. Multilayer tif image (large) for printing
 
 

1908/10-1911/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Opinions, Decrees and Reports
(Old Accession No.: 18,011-7) MSA S 58-21

MSA S 58-21-1, Motion by Complainant Set Cause for Hearing and Consent of Defendant Thereto, filed May 17, 1908, Multilayer tif image (large) for printing.

MSA S 58-21-2, Opinion by Mr. Justice Day, February 21, 1910,Multilayer tif image (large) for printing.

MSA S 58-21-3, Decree Proposed by the State of Maryland, filed April 20, 1910, Multilayer tif image (large) for printing.

MSA S 58-21-6, Decree, filed April 20,1910, Multilayer tif image (large) for printing.

MSA S 58-21-4, Brief of Counsel for West Virginia on Points Involved in the Settlement of the Final Decree, filed May 14, 1910 Multilayer tif image (large) for printing.

MSA S 58-21-5, Opinion of Mr. Justice Day, May 31, 1910,Multilayer tif image (large) for printing.

MSA S 58-21-7, Report of Commissioners Appointed by the Supreme Court in to Run, Locate and Establish and Mark the Boundary Line Between the States of Maryland and West Virginia from the Potomac River to the Pennsylvania State Line, 1910-1911, filed October 31, 1911, Multilayer tif image (large) for printing.

MSA S 58-21-8, Separate Report of Commissioner W. McCulloh Brown, Including Protests and Exceptions in Respect to the Report of Commissioners Julius K. Monroe and Samuel S. Gannett, filed November 1, 1911, Multilayer tif image (large) for printing.

MSA S 58-21-9, Supplemental Report of Julius K. Monroe and Samuel S. Gannett, Commissioners, Multilayer tif image (large) for printing.

MSA S 58-21-10, Brief on Behalf of West Virginia, filed April 29, 1912, Multilayer tif image (large) for printing.

MSA S 58-21-11, Brief on Behalf of Maryland, filed May 14, 1912, Multilayer tif image (large) for printing.

MSA S 58-21-12, Proposed Decree (West Virginia), filed May 13, 1912, Multilayer tif image (large) for printing.

MSA S 58-21-13, Final Decree, May 27, 1912, Multilayer tif image (large) for printing.
 

[Note that Justice Day issues two opinions and that the decree of April 20, 1910, was not entered into the record until appended to Justice Day's opinion of May 31, 1910. In the second opinion(S58-21-5.tif) he sets the boundary from Harper's Ferry to the source of the Northern Branch of the Potomac on the low water mark of the southern shore (West Virginia bank) of the Potomac and repeats verbatim the decree language of April 20, 1910, language that appears to have been derived from the Maryland proposed decree filed the same day. In order to understand how Justice Day misread or misunderstood the language of the Decree proposed by Maryland and thus offered erroneous dicta on the applicability of the Compact of 1785 to the waters of the Potomac between West Virginia and Maryland, the chronology of Justice Day's first opinion, the proposed Decree, the decree, and Justice Day's final opinion and decree, must be kept in mind. Justice Day rendered his first opinion on February 21, 1910, requiring both sides to submit proposed language in light of the opinion for his final decree. In this first opinion, no mention was made of the applicability of the Compact of 1785 to the Potomac between Maryland and West Virginia. The whole thrust of the case to that point was to determine the location of the beginning point of the Northern Branch of the Potomac (the Fairfax or the Potomac Stone). Justice Day went so far as to suggest that if Maryland had pushed its argument, there may have even been grounds for deciding that the boundary should begin on the southern shore of the Southern Branch. The parties were given 40 days to present a draft decree. Maryland filed a draft decree on April 20, 1910. In that proposed decree Maryland did not say that the compact of 1785 applied to the Potomac River. Maryland merely said in the "Fourth" point that the decree should not be construed as abrograting the Compact of 1785 "so far as it is applicable to that part of the Potomac River which extends along the border of said States, as ascertained and established by this decree."

In his opinion and decree filed on May 31, 1910, Justice Day examined the differences between the two drafts and complained to both sides that "In the former hearing, however, and in the decision rendered, the attention of the court was not directed to the question whether the boundary of Maryland should be at high-water mark or at low-water mark along the southern bank of the Potomac River." He then took notice of West Virgnia's presumptive rights based upon usage, specifically citing the language of the Black/Jenkins award of 1877 in which his only point was that the theory of presumptive rights as far as they could be demonstrated on the Potomac between West Virginia and Maryland would prevail. On that point there was no disagreement between parties and Justice Day's opinion that that aspect of the 'binding force' of the Compact of 1785, that is the presumptive right precedent set by that Compact, prevailed in this case. Where Justice Day was understandably mistaken was in his assertion the "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." Because the emphasis in all of the proceedings that led up to the Black/Jenkins award was upon the nature of the boundary from Smith's point to the Atlantic, and practically all the evidence in the Maryland v. West Virginia case was devoted to the course of the line from Pennsylvania to the Potomac, little effort went into documenting Maryland's claim to the whole of the Potomac River, even though the evidence did exist in the Maryland Land Office at the time and had been presented by the Maryland Commissioners ca. 1876. See Whyte & Jones, Evidence cited by Virginia in the present case. While there are many other examples that will be introduced into evidence on this point, in addition to those cited by Whyte & Jones, two in particular stand out:

1) the Patent issued in 1757 to Robert Harper for the bed of the river at Harper's Ferry which has never been disputed by Virginia or West Virginia and includes a well defined portion of the whole of the Potomac River from the fast land on the Maryland bank to the bank on the Virginia side, now West Virginia's shore, and

2) the patents to the Great Falls Manufacturing Company.

While Justice Day was eminently correct in his opinion and decree that the south bank of the Potomac River at low-water mark on the West Virginia shore' was the 'true southern boundary line of the State of Maryland,' he was mistaken that Maryland had not claimed any right to grant the whole of the bed of the river and by doing so prevent the construction of any wharves and improvements extending from the Virginia shore. By its very ownership of the bed of the river to the Southern Shore, Maryland retained the clear right to reserve unto itself, or to grant to private parties the sole and exclusive right to erect wharves and improvements, any agreement or compact between it and Virginia, not withstanding. In any number of uncontested or ultimately vindicated patents issued to private individuals along the Potomac above tidewater, Maryland asserted and maintained this right. By far the most prominent and prolonged case involved the claims of the Great Falls Manufacturing Company against the Federal Government and the building of what came to be known as the Washington Aqueduct. In that instance, Maryland's claim to the whole of one channel of the Potomac, the whole of the island to which the dam extended, and ultimately the extension of the dam across the second channel of the Potomac to the shoreline, was sustained on the basis of a unilateral, uncontested act of the Maryland General Assembly, passed in 1853, and in numerous court cases and arbitration extending into the 20th century decided in Maryland's favor. In sum the dicta in the Black/Jenkins award, and its understandably mistaken use by Justice Day, ought not to prevail in the face of factual evidence now being introduced for the review of the Honorable Ralph Lancaster, and partially documented by Whyte & Jones in ca. 1876 when they first brought Virginia's and the Arbitrators' attention to the precedents and proof existing among the records of the Maryland Land Office.