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 above and below tidewater 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 between 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 unsubstantiated 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
 
 
 
 
 
 
 
 

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).
2)MSA SC 5330-3-3
3)MSA SC 5330-11-2
4)MSA SC 5330-3-36
5)MSA SC 5330-2-31
6)MSA SC 5330-24-11
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
9)MSA SC 5330-1-11
10)The act confiscating all Loyalist property, including that of Lord Baltimore's heir, Henry Harford,  is found in the Archives of Maryland, volume 269, p. 203 available on the Archives of Maryland web site,http://www.mdarchives.state.md.us/megafile/msa/speccol/sc2900/sc2908/000001/000203/html/am203--269.html
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.  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, 
16)see Appendix I for details
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.

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.