The Virginia Brief relies heavily on Black/Jenkins and the West Virginia boundary case.

I. Black /Jenkins Award
 

Va's use of Jones's proposition on p. 31 and later in the brief.

1) Maryland was willng to give up some of its less valuable (at the time) charter rights from Harper's Ferry South, in order to get Va to compromise over the then more valuable oyster beds in Pocomoke Sound and Tangier Sound.

2) Jones was clearly offering concessions of rights he felt Maryland had on the river from Harper's Ferry South, independent of any existing agreement with Virginia

3) If the provisions of the Compact of 1785 applied above tidewater, why would Maryland offer anything in the first place relating to the stretch from Harper's Ferry southward?  Virginia certainly did not respond in the record of these proceedings that it already had the rights to the Wharves etc. under Article VII, and that Jones was offering something Virgnia already had ....
 

The key point here is that Maryland believed it was offering something that it already had and Virginia wasn't interested.:

Maryland was offering  title to building wharves and other improvements all along the River from Harper's Ferry to Great Falls, which at the time was not subject to any previous compact, and was simply offering as a bargaining chip,  extending the Compact of 1785's provisions from Harper's Ferry, southward,  in its efforts to gain oyster beds. No more, no less.
 

II. West Virgnia boundary case
 

III. The Potomac Comapany and the applicability of the Compact of 1785 above tidewater
 

1) the 1772 Va. Act was seen in Maryland as a challenge to Lord Baltimore's jurisdiction over the Potomac. While Governor Eden wanted Maryland to cooperate in the opening up of the Potomac above Tidewater, he knew it would not meet with approval from the Proprietor. See Thomas Johnson to George Washington, May 10, 1772, which in part reads:
 

I fear our Governor is still under an Impression that a Concurrence by our Assembly in a Scheme with yours for clearing Potowmack may weaken the proprietary Claim of Jurisdiction over that River and consequently that he is not at Liberty to assent to such Bill tho' I believe in his own Judgment clearing the River is an Object which deserves immediate Attention and that he wishes to see it effected. If the Governr. should be under such Impression and should not write Home to be set more at large or should write unsuccessfully as the delay that might be thereby occasioned would at all Events be highly prejudicial I would submit to your Consideration whether it might not be prudent that a strong Representation should be sent to England, to be made use of in case it should be necessary, to procure an Intimation from thence that a Bill ought to pass here: If Instructions ought at all to be sent to Governors as the Rule of their Conduct I have no Idea but that propry Instructions might properly be superseded by Instructions from the King in Council and if so I cannot apprehend there would be the least Difficulty in obtaining an Order for the passage of a Bill in which the Trade and Subjects are so much interested though it might possibly collaterally affect the prors Claim of Jurisdiction--I shall be glad that our Govrs. Letters to Virginia may evince that my Apprehensions are Groundless but if my Conjectures are well founded I much wish that no Time may be lost.

In 1776, when Virginia tried to reassert it's claim to the Potomac, the 9th Convention (importantly, the Maryland Constitutional Convention) resolved:

                              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.
 
 

2) Washington, Madison, and Jefferson well knew the Maryland claims and were wary of them. Madison wished it were otherwise (see my note (http://mdag.net/description.cfm?item=2&series=11)on his correspondence with Jefferson), but had to recede from his assertions that the Maryland Charter did not prevail.

                            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.
 
 

3) Before Maryland would act on the proposed venture to create a jointly funded company to improve the navigation of the potomac above tidewater, Virginia was required to repeal the act of 1772 (see the proceedings of the Commissioners).   What was then granted to the Potomac Company was limited powers to create a canal.  The subsequent acts by Virginia relating to the Canal seem to all relate to extending the time frame for carrying out partially state financed activities under the 1784 law and adjusting tolls, which in no way affect any actions with regard to riparian rights on the river, outside the definitions in law of what the Canal company could or could not do in the condemnation of land for the canal.  The laws passed by Virginia are regulatory only in so far as they regulate a corporation and grant relief from not meeting deadlines.  They do not address any rights including that of taking water from the river.  From 1784 onward, Maryland continued to regulate and sucessfully assert its right to grant not only islands in the potomac, but also the whole of a portion of the river if it cared to, which it did in the case of Nielson's Desire (1859), or rights to the water of the Potomac itself, which it did in 1853 by unilateral legislative action, susequently upheld in Federal Court, when it granted water rights to the District of Columbia and permitted the constuction of a dam and aqueduct.
 

4) Virginia and West Virginia had and have no Riparian rights in the River except at the suffrance of Maryland. When a river is wholly owned by a proprietor (and, in the case of Maryland, subsequently by a State).  All Riparian rights are vested in the Proprietor. (See Judge Brewer's decision, 1858)  That is exactly the issue between the Duke of Devonshire and the town of Youghal in Ireland at the present moment.  The Duke of Devonshire owns the river (although he only owns property on one side of the river, as far as I can determine) and expects to be paid for the 'use' of the river on any side for Marinas. I suspect there is a huge body of common law that favors the owners of navigable and non-navigable rivers (Potomac above Tidewater), but I have not had time to explore the question in any detail.  Fishing and navigation are at the suffrance of the proprietor.  That is how Scottish landlords make so much money off of their fly fishing streams.  When rivers form the boundaries of states or nations, then matters could be construed differently, but then the boundary of each state or nation extends to the mddle of the river.  The Supreme Court has already ruled that Georgia's title to the a Chatahoochee river  extends to the far bank (i.e. Alabama) even though the river stands between Georgia and Alabama:
 

        it is
        contended by Judge Brewer that the expressions of the charter of
        Maryland, fixing its southern line, are substantially the same as
        those used by the State of Georgia in its grant referred to in
        Howard us. Ingersoll, (18 Howard, p. 381,) in which case the
        Supreme Court held that the dividing line on the Chatahoochee
        river, between the States of Georgia and Alabama, was on the top
        of the high western bank of the river, leaving the bed of the river
        and the western shelving shore within the State of Georgia.

It seems to
us a clearer case than that decided in Ingersoll v. Howard;
For these reasons we conclude that the charter line was
on the right bank of the Potomac, where the high-water
mark is impressed upon it, and that line follows the bank
along the whole course of the river, from its first fountain
to its mouth,

a) the 1785 law creating the Potomac Company does not imply Va. shared jurisdiction over the river; only that Md. and Virginia would benefit jointly from the River's improvement and committed themselves to joint action viz building and regulating a canal so that neither state would benefit more than the other from the improvements made.  When it came to how the canal would affect the riparian rights of anyone owning land adjoining the river, those were universally submitted to Maryland courts for resolution.  I know of none in Virginia courts and Dave has found what he thinks is one case in which the Virginia court actually defers to Maryland.
 

b) I think the original understanding of Madison and Jefferson outlined above well establishes the fact that the Compact of 1785 was intended to address the tidewater and tidewater alone.  This argument seems to be bolstered by your discovery of Edmund Randolph's perception of Maryland's rights generally?

c) again the 1785 act does not relate to joint jurisdiction over the river, but only over the canal company established to make the above tidewater stretches of the river navigable.

d) I may have misread the Va acts regarding the Potomac Company, but they do not in any way seem to relate to regulating anything other than the Canal.

e) the court cases we are working on at the moment relate to the water rights of the District Columbia as granted solely and exclusively by Maryland, thus they have a strong parallel to the current case.  They are in part already on the web site.  Search for Great Falls Manufacturing Company.   They extend from the late 1850s with Judge Brewer's opinion (conveniently not mentioned by Virginia) until final resolution of damage claims against the Federal Government towards the end of the 19th century.

f) given the nature of Maryland's ownership of the River, I do believe it can be established that Virginia has no rights on the river except at the suffrance of Maryland.  I am basically arguing that Maryland owns the water as well as the land under it and any land that emerges out of it.