COMMONWEALTH OF VIRGINIA, * No. 129, Original
Plaintiff, * Before Special Master
v. * Ralph I. Lancaster, Jr.
STATE OF MARYLAND, *
Defendant. *
* * * * * * * * * * *
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
Carmen M. Shepard
Deputy Attorney General
Maureen M. Dove
Andrew H. Baida*
Adam D. Snyder
M. Rosewin Sweeney
Randolph S. Sergent
Assistant Attorneys General
200 St. Paul Place
Baltimore, Maryland 21202
(410) 576-6318
Attorneys for Defendant
*Counsel of Record State of Maryland
Page
INTRODUCTION 1
HISTORICAL BACKGROUND 3
History of Charters 3
Early Efforts at Commercial Cooperation 8
Development of Efforts to Open the Non-tidal Potomac to Inland Navigation 11
The Mount Vernon Conference 17
The Terms of the Mount Vernon Compact 19
Ratification of the Compact 21
Operations of the Potomac Company 22
Unresolved Boundary Disputes 25
The Fairfax Stone and the South Branch 27
The Compact in the 20th Century 31
ARGUMENT 33
I. THE COMPACT OF 1785 DOES NOT APPLY TO THE NON-TIDAL PORTION OF THE POTOMAC RIVER 33
A. The History Of The Compact of 1785 And The Context In Which It Was Negotiated Preclude The Inference That The Compact Was Intended To Apply Above Tidewater 34
B. Reading The Compact Together With The Potomac Company Legislation Demonstrates That They Were Intended To Address Different Parts Of The Potomac River. 39
C. The Compact Does Not Clearly And Unequivocally Apply To The Non-Tidal Portion Of The Potomac 44
D. The Plain Language Of The Compact Manifests A Clear Intent That It Applies Only To Navigable Waters 48
E. Applying Article VII To The Non-Tidal Portion Of The Potomac Would Violate Private Property Rights 53
II. NEITHER THE BLACK JENKINS AWARD NOR MARYLAND V. WEST VIRGINIA CONFIRMS ANY RIGHTS OTHER THAN THOSE SET FORTH IN THE COMPACT 59
III. VIRGINIA IS BARRED BY THE DOCTRINE OF ACQUIESCENCE AND PRESCRIPTION FROM CLAIMING THAT THE COMPACT APPLIES ABOVE TIDEWATER 64
CONCLUSION 68
Cases
Adams v. Pease, 2 Conn. Rep. 481 (1818) 56
Bailey v. United States, 516 U.S. 137 (1995) 39
Barney v. Keokuk, 94 U.S. 324 (1876) 54
Bowen v. Public Agencies Opposed to Social Security Entrapment,
477 U.S. 41 (1986) 45,47
Browne v. Kennedy, 5 H. & J. 195 (Md. 1821) 54,56,57
California v. Nevada, 447 U.S. 125 (1980) 64
Central Railroad Co. of New Jersey v. Mayor and Alderman of New Jersey,
209 U.S. 473 (1908) 47
Den v. The Association of the Jersey Co., 56 U.S. 426 (1853) 47
Dutton v. Strong, 66 U.S. 23 (1861) 57
Georgia v. South Carolina, 497 U.S. 376 (1990) 67
Ex Parte Marsh, 57 F. 719 (E.D.Va. 1893) 53
First National Bank of Atlanta v. Bartow County Board of Tax Assessors,
470 U.S. 583 (1985) 40
Johnson v. McIntosh, 21 U.S. 543 (1823) 3
Hays v. Bowman, 22 Va. 417 (1823) 56
Holloway v. United States, 526 U.S. 1 (1999) 39
Howard v. Ingersoll, 54 U.S. 381 (1851) 3
King v. St. Vincent's Hospital, 502 U.S. 215 (1991 40
Martin v. Waddell, 41 U.S. 367 (1842) 47
Maryland v. West Virginia, 217 U.S. 1 (1910) 63
Maryland v. West Virginia, 217 U.S. 577 (1910) 62
Mead v. Haynes, 24 Va. 33 (1824) 56
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) 45
Michigan v. Wisconsin, 270 U.S. 295 (1926) 64,67
Middlekauff v. LeCompte, 149 Md. 62,132 A. 48 (1926) passim
Miedzinski v. Landman, 218 Md. 3, 145 A.2d 220 (1958) 62
Morris v. United States, 174 U.S. 196 (1899) 6,46,47
NLRB v. Federbush Co., 121 F.2d 954 (2nd Cir.1941) 40
O'Neal v. Virginia & M. Bridge Co.,18 Md. 1 (1861) 65,66
Ohio v. Kentucky, 410 U.S. 641 (1973) 64
Peyroux v. Howard, 32 U.S. 324 (1833) 56
Proprietors of Charles River Bridge v. Proprietors of Warren Bridge,
36 U.S. 420 (1837) 45
Rhode Island v. Massachusetts, 45 U.S. 591 (1846) 1,33
Rhode Island v. Massachusetts, 37 U.S. 657 (1838) 33
Shively v. Bowlby, 152 U.S. 1 (1894) 53
Strother v. Lucas, 37 U.S. 410 (1838) 58
The Daniel Ball, 77 U.S. 557 (1870) 54
The Genessee Chief v. Fitzhugh, 53 U.S. 443 (1851) 54
The Thomas Jefferson, 23 U.S. 428 (1825) 54
United States v. American Building Maintenance Industries, 422 U.S. 271 (1975) 40
United States v. Great Falls Manufacturing Co. 48
United States v. Percheman, 32 U.S. 51 (1833) 58
United States v. Winstar, 518 U.S. 839 (1996) 45
Wells v. Supervisors, 102 U.S. 625 (1880) 40
Wharton v. Wise, 153 U.S. 155 (1894) 19,53
Constitutional provisions, Statutes, And Laws
Virginia Constitution of 1776 6,7,25,26,45,50
Virginia Constitution, Article 21 6
1785 Va. Laws Ch. 43 40
1789 Va. Laws Ch. 32 36
8 Hening's Statutes at Large (1821) 12
11 Hening's Statutes at Large (1823) 16,22
1874 Va. Laws Ch. 135 26
1959 Va. Laws Ch. 28 32
Md. Nat. Res. Art. § 4-306 32
1784 Md. Laws Ch. 33 16,22,23,24,40,49,50
1788 Md. Laws Ch. 44 29
1794 Md. Laws Ch. 29 22
1795 Md. Laws. Ch. 51 24
1795 Md. Laws. Ch. 84 24
1949 Md. Laws Ch. 484 32
1957 Md. Laws Ch. 766 32
1958 Md. Laws Ch. 269 32
Treatises and Other Authorities
W. W. Abbot, et al., eds., The Papers of George Washington: Colonial Series,
(Charlottesville, Va., 1992-present) 11,12
Angell on Watercourses (4th Ed. 1854) 55
Angell on Tide Waters (Boston 1826) 56
Boyd, Julian P., ed., Papers of Thomas Jefferson (Princeton, 1950) 6,10,11
Browne, ed., Proceedings of the Council of Maryland, 1636-1667 4,5
Delaplaine, Edward S., The Life of Thomas Johnson 398 (New York, 1927) 18
Fitzpatrick, John C., The Diaries of George Washington (1925) 14,18,39
Hale, De Jure Maris (reprinted in Stuart A. Moore, A History of
The Foreshore and the Law Relating Thereto) (London, 1888) 54
Lucas & Deaver, eds., Proceedings of the Conventions of the Province of Maryland
(Baltimore, 1836) (Oct. 30, 1776) 7,9
Metcalfe, Waters of the Potowmack 23
Moore, Stuart A., A History of The Foreshore and the Law Relating Thereto 54
Rutland, Robert A., The Papers of James Madison 7,9,10,13,17,21
Rutland, Robert A., The Papers of George Mason 21,22
Whealton, Louis N., The Maryland and Virginia boundary Controversy (1668-1894) 26
Instead of filing a "dispositive" motion as called for by Case Management Order No. 1, Virginia has submitted a motion for partial summary judgment that cannot dispose of this case in Virginia's favor. Even if the Court were to hold that the Compact of 1785 applies to the entire course of the Potomac River, this case must go forward to address the fundamental question that Maryland raised in its April 21, 2000 Brief in Opposition of whether the Compact strips Maryland of its inherent police power authority to regulate the placement by Virginia citizens of wharves and other improvements beyond the low water mark in the Maryland portion of the Potomac River. The issue raised by Virginia in its motion for partial summary judgment is dispositive only if the Court were to hold that the Compact does not apply to the non-tidal Potomac where the Fairfax County Water Authority proposes building the waterway intake pipe that lies at the center of the present "controversy" between Maryland and Virginia.
As the attached affidavits demonstrate, the question whether the Compact of 1785 applies to the non-tidal portion of the Potomac River requires a full review of the historical facts surrounding the formation of the Compact before any determination can be made concerning the Compact's applicability or inapplicability to the non-tidal portion of the Potomac. "In looking at transactions so remote" it is necessary to "view things as they were seen and understood at the time they transpired." Rhode Island v. Massachusetts, 45 U.S. 591, 629 (1846). Virginia has not met this test in its submission, as its argument seeks to characterize the Compact rather than establish its meaning based on applicable historical facts.
While Virginia is not entitled to the entry of any type of judgment in its favor, summary judgment in its entirety should be entered in favor of Maryland based on the evidence submitted in conjunction with this brief. That historical evidence demonstrates that the Compact was formed to address, as its principal proponent recognized on several occasions, issues of navigation and jurisdiction with respect to the tidal portion of the Potomac, while the Potomac Company was created, as its chief architect envisioned, to make and maintain as navigable the non-tidal section of the river by means of an entirely separate regulatory regime. The same history that refutes Virginia's interpretation of the Compact also demonstrates that the Compact was never intended to apply to any portion of the Potomac River other than its tidewater component. The Compact secures no rights for Virginians to engage in any kind of construction activity in the non-tidal portion of the Potomac River that falls within Maryland territory.
The Compact's history also bears witness to several judicial decisions, which Virginia has acquiesced in and recognized for the better part of the last two centuries, that have affirmed Maryland's longstanding claim that the Compact has no application at all above tidewater. Maryland courts have determined since as early as 1829 that the Compact is inapplicable above tidewater, and yet Virginia did not follow its legislature's direction in 1860 to challenge such a determination after it was reaffirmed by a Maryland court. Nor did Virginia seek Supreme Court review of a case decided by the Maryland Court of Appeals the following year in which the Virginia Attorney General argued unsuccessfully that the Compact applied above tidewater. Nor did Virginia invoke this Court's jurisdiction challenging the Maryland legislature's unilateral promulgation of a law that, as a result of being upheld by the Maryland Court of Appeals in 1926 on the ground that the Compact does not apply to the non-tidal portion of the Potomac, authorized the Maryland game warden to seize and destroy property owned and used by Virginians in the non-tidal portion of that river. Virginia's delay in waiting another seventy-plus years before seeking to raise this issue bars its belated challenge concerning the Compact's applicability to the non-tidal portion of the Potomac River.
History of Charters
Virginia traces its territorial roots to 1609, when James I issued a charter to the London Company encompassing all of the lands 200 miles north and south of Point Comfort and extending inland, without limitation, "from the sea, west and northwest." Johnson v. McIntosh, 21 U.S. 543, 544 (1823). This 1609 grant included within its reach much of the land now comprising Maryland and Pennsylvania, as well as the uninhabited western lands to the Pacific Ocean. It is on this 1609 grant that Virginia has based its historical claims to the Potomac, Maryland, and the frontier.
The 1609 grant, however, was short-lived. As a result of a dispute between the Company and the Crown, the grant was in 1624 annulled by judgment of the Court of King's Bench and the powers of government and title to the lands within the limits of the grant were re-vested in the Crown. Johnson v. McIntosh, 21 U.S. at 545. As of 1624, therefore, Virginia had become a royal colony, whose boundaries were subject to change at the pleasure of the Crown. Id.; Howard v. Ingersoll, 54 U.S. 381, 400 (1851).
In 1632, Charles I issued to George Calvert, the First Lord Baltimore, a charter that marks the origin of the Province and State of Maryland.(1) The charter, which is attached hereto as Exhibit 69, encompassed land previously included within the annulled 1609 grant:
all that Part of the Peninsula, or Chersonese lying in the Parts of America, between the Ocean on the East, and the Bay of Chesopeake on the West, divided from the Residue thereof by a Right Line drawn from the Promontory, or Head-Land, called Watkin's Point, situate upon the Bay aforesaid, near the river of Wighco, on the West, unto the Main Ocean on the East; and between that Boundary on the South, unto that Part of the Bay of Delaware on the North, which lieth under the Fortieth Degree of North Latitude from the Aequinoctial, where New-England is terminated: And all the Tract of that Land within the Metes underwritten, (that is to say,) passing from the said Bay, called Delaware Bay, in a right Line, by the Degree aforesaid, unto the true Meridian of the first Fountain of the River of Pattowmack, thence verging toward the South, unto the further Bank of the said River, and following the same on the West and South, unto a certain Place called Cinquack, situate near the Mouth of the said River, where it disembogues into the aforesaid Bay of Chessopeake, and thence by the shortest Line unto the aforesaid Promontory, or Place, called Watkin's Point; so that the whole Tract of Land, divided by the Line aforesaid, between the Main Ocean, and Watkin's Point, unto the Promontory called Cape Charles, and every the Appendages thereof, may entirely remain excepted for ever to US, our Heirs, and Successors.
Virginia fought the grant both before and after it was issued. Calvert's first request for the grant encompassed land to the south of the James River. When the Virginians objected, Calvert submitted a second request, dated March 1632, encompassing all of the Eastern Shore of Maryland as well as the whole of the Potomac River. The Virginians objected to this second warrant as well and appeared before the King on June 5, 1632, to present "much discourse and debate."(2) After this "discourse and debate," the English Attorney General issued a draft letter requesting that the only change to be made in the "graunt lately passed the privi seale" should be the removal of that part of the Eastern Shore lying below a line drawn to the Atlantic Ocean from Watkins Point.(3) In all other material respects - including those terms relating to the Potomac River - the grant ultimately issued on June 20, 1632, remained as it appeared in the second draft of the warrant.
Having failed to block the issuance of the Maryland Charter, the Virginians sought to have the patent revoked on the grounds that it included lands between the 40th parallel and the south bank of the Potomac - territory that had been included in Virginia's 1609 Charter. Virginia pressed its case before the King, who in 1633 referred the case to the Lords Commissioners for Foreign Plantations. In addition to its complaint that Maryland had been carved out of Virginia's territory, Virginia argued that the grant improperly included powers of sovereignty far more expansive than those given the other colonies, including almost royal power to grant lands, declare war, and manage his colony independent of the other colonies.(4) The two parties presented their arguments to the Lords Commissioners who, "having heard and maturely considered the sayde propositions, answers and reasons, and whatsoever else was alleged in either parte, did think fit to leave the Lord Baltimore to his Patent and the other partie to the course of Lawe according to their desire."(5)
Subsequent to the issuance of the Maryland Charter and the rejection of Virginia's challenge thereto, Charles II issued patents in 1649 and 1688 for what is commonly known as the "Northern Neck" of Virginia - the land lying between, and including, the Potomac and Rappahanock rivers.(6) While the property encompassed within the grant came to be held by Lord Culpepper and, afterwards, Lord Fairfax, the government and jurisdiction over the area continued to be exercised by the Royal Colony of Virginia.(7)
Insofar as the 1688 grant purported to alter Maryland's boundary, it was of no effect. Morris v. United States, 174 U.S. 196, 225 (1899) (observing that the Maryland Charter was "never devested by any valid proceedings prior to the Revolution, nor was such grant affected by the subsequent grant to Lord Culpeper" who never made "any substantial claim . . . to property rights in the Potomac river, or in the soil thereunder"). Nevertheless, Virginia included within its Constitution of June 29, 1776, a formal renunciation of any rights or claims it may have harbored with respect to Maryland territory:
[T]he territories within the charters erecting the colonies 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 may at any time heretofore 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 made or shall be made thereon.(8)
Maryland reacted swiftly and passed a resolution at a convention of its delegates in October of that year denying that Virginia ever had any territorial rights over the Potomac or any other portion of Maryland territory:
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 and 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.(9)
Maryland's assertion of its Charter rights, like Virginia's disclaimer of any such rights, could not have been clearer.(10)
Early Efforts at Commercial Cooperation(11)
The emergence of Maryland and Virginia as independent sovereign States immediately raised the potential for commercial conflict. Prior to 1776, the English Crown governed the collection of tolls, duties, and levies on vessels entering the colonies. Upon independence, the independent States assumed the power to impose duties on foreign vessels - which would have included vessels of other States - entering their respective waters. Maryland was concerned that Virginia would impose duties on those ships coming through the capes of the Chesapeake Bay on their way to Maryland harbors. Virginia was likewise concerned that ships entering the Potomac on their way to Alexandria would be assessed Maryland duties. Hoffman, Ex. A, at 5-6.
The first attempt at negotiating a Compact between the two States occurred in 1777 with each State appointing commissioners. Maryland appointed Daniel of St. Thomas Jenifer, Thomas Stone, and Samuel Chase commissioners and issued instructions making Virginia's agreement not to impose duties on vessels entering the Chesapeake Bay for Maryland ports the "sine qua non" of the negotiations, without which the Maryland delegation was to terminate all further discussion. Virginia appointed George Mason, Thomas Ludwell Lee, and James Henry as commissioners, advising them to adjust "the use and navigation of, and jurisdiction over, the bay of Chesapeake, and the rivers Potomac and Pocomoke."(12) Id. at 21-22.
A meeting between this first group of commissioners never took place(13) and the two States did not resume their efforts at negotiation until 1784, after peace with Britain had been secured and Virginia had relinquished its western land claims. Id. at 27-28. Madison, who took the lead for Virginia, realized that Virginia's constitutional cession would be construed as "an entire relinquishment of the Jurisdiction of these [the Potomac and Pocomoke] rivers" and would be "fatal to our port regulations." "The jurisdiction of half the rivers ought to have been expressly reserved."(14) Madison suggested three ways to correct 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 humour into which the Cession of the back lands must have put Maryland, forms an apt crisis for any negociations which may be necessary.(15)
One month later, Madison reminded Jefferson of his previous letter, in which he had "suggested to your attention the case of the Potowmac, having in my eye the river below the head of navigation."(16)
Jefferson responded that he "like[d] the method you propose of settling at once with Maryland all matters relative to the Potowmac"(17) and promptly broached the idea with Thomas Stone, one of the three Maryland commissioners appointed in 1777. After Stone concurred with his suggestion, Madison moved swiftly, authoring and introducing the resolutions appointing himself a commissioner and adopting instructions. Hoffman, Ex. A, at 38-39. In contrast to the instructions Virginia gave to its commissioners in 1777, which included the Potomac, Pocomoke, and the Chesapeake Bay, Madison's instructions were limited to the Potomac River:
Whereas great inconveniences are found to result from the want of some concerted regulations, between this State, and the State of Maryland touching the jurisdiction & navigation of the River Potowmack:
Resolved that George Mason, Edmund Randolph, James Madison jr & Alexander Henderson Esqrs. Be appointed Commissioners & that they or any three of them do meet such Commissioners, as may be appointed on the part of Maryland, and in concert with them, frame such liberal & equitable regulations concerning the said River as may be mutually advantageous to the two States, and that they make report thereof to the General Assembly.(18)
Maryland responded by appointing its own commissioners in January 1785. Id.
Development of Efforts to Open the Non-tidal Potomac to Inland Navigation
While Madison was focused on ensuring Virginia's commercial access to the tidewater Potomac, Jefferson took up the improvement of inland navigation on the non-tidal Potomac, seeing in it an opportunity for Virginia to expand its commercial strength. Having failed to pique Madison's interest in the project, Jefferson broached the subject with Washington and impressed upon him the need to unite the Potomac with the western rivers - "the true doors to the Western commerce."(19) Hoffman, Ex. A, at 39-40.
Washington, it turns out, had been intimately involved with earlier plans to open the non-tidal Potomac to inland navigation. As early as 1754, Washington had explored and made observations on the river above Great Falls with a view to improving the river and using it a means of transportation during the French and Indian War. Washington's 1754 "observations" describe a shallow river, interrupted by rocks, rapids, and falls that made navigation even by canoe difficult. Despite his canoe having "near sunk having received much water," Washington still felt that the non-tidal Potomac presented "the most expeditious way to the Country" available at the time.(20) Hoffman, Ex. A, at 15.
In the early 1770's, Washington worked closely with Thomas Johnson, a member of the Maryland assembly and the State's first governor, to promote a proposal by John Semple. When the plan failed to gain the approval of the two States' legislatures, Washington and Johnson reverted to the idea of a private company. "The only method by which this desirable work will ever be accomplished," Washington wrote, would be to give subscribers the power to collect tolls and, thus, vest them "with a kind of property in the Navigation."(21) Hoffman, Ex. A, at 12-13, 17-21.
Washington eventually succeeded in persuading the Virginia assembly in April 1772 to pass "An act for opening and extending the navigation of the river Potowmack from Fort Cumberland to tide water," which authorized a subscription and lottery and empowered subscribers to receive tolls and condemn property.(22) Maryland, however, declined to pass similar legislation. With Virginia's cession of its territorial pretensions to the Potomac still four years off, Maryland Governor Eden was reportedly concerned that Maryland's concurrent action would be used by Virginia to "weaken the proprietary Claim of Jurisdiction over that River."(23) Although Governor Eden and others joined Washington's venture in an unofficial capacity, Maryland's lack of official support and the growing Revolutionary conflict killed the project in October 1775. Hoffman, Ex. A, at 21-24.
Following peace with Britain in September, interest in opening the non-tidal Potomac to inland navigation revived. Accordingly, when in March 1784 Jefferson first broached with Washington the idea of heading up such an effort, Washington picked up where he had left off in 1775, at which point, he recalled, the plan "was in a tolerable train."(24) Madison was less sanguine, and cautioned that "[i]t will be well I think to sound the ideas of Maryland also as to the upper parts of the N. branch of it. The policy of Ba[l]timore will probably thwart as far as possible the opening of [it]; and without a very favorable construction of the right of Virginia and even the privilege of using the Maryland bank, it would seem that the necessary works could not be accomplished."(25) Hoffman, Ex. A, at 40-43.
Madison having already focused his attention on "the Potowmac, having in my eye the river below the head of navigation,"(26) did not get the opportunity to introduce Washington's bill and instead spent the May 1784 session authoring resolutions appointing himself, George Mason, Edmund Randolph, and Alexander Henderson commissioners to discuss with Maryland the harmonization of commercial regulations for the tidewater Potomac. Hoffman, Ex. A, at 43.
With Madison lacking interest and Jefferson called away to Paris in July 1784, Washington once again assumed the lead in gaining legislative support for extending the inland navigation of the Potomac River. Washington wrote to Virginia Governor Benjamin Harrison in October 1784 urging legislative support for an undertaking to open and extend the inland navigation of both the Potomac and the James rivers and haling James Rumsey's "discovery for working Boats against stream, by mechanical powers (principally)" as a landmark in inland navigation.(27) Hoffman, Ex. A, at 44-45. In addition to urging Harrison's support, Washington outlined specific recommendations for legislative action, much of which was subsequently adopted by the assembly. Stung by previous failures to move the project forward as a public undertaking, Washington asked that Harrison be prepared "to incorporate, & encourage private Adventurers if any should associate & sollicit the same, for the purpose of extending the navigation of Potomac or James river," and, "in the former case, to request the concurrence of Maryland in the measure."(28) Hoffman, Ex. A, at 45-46.
Washington then took it upon himself to raise the "subject of inland navigation" with Maryland. In the Fall of 1784, he met with a number of Maryland assemblymen, including George Plater, the president of the Maryland Senate, who was "determined to press the Measure in our Assembly.(29) Harrison, too, responded favorably, informing Washington that the Virginia assembly would act on his plan the next session. Hoffman, Ex. A, at 47.
At the same time, a meeting of potential investors convened in Alexandria and drew up a petition to be presented to the legislatures of both States and sent the petition to Washington, along with the draft of a bill for Washington's review. Washington forwarded the bill and the petition to Madison (who, unlike Washington, was a member of the Virginia assembly), who presented them to the House of Delegates on December 4, 1784. The bill was referred to a committee - of which Madison was not a member - which reported to the house a bill "for establishing a company for opening and extending the navigation of the river Potomac."(30) Hoffman, Ex. A, at 48-49.
Although both legislatures appeared eager to move forward, Washington remained concerned that public money would not be available for the project and suggested that both assemblies consider incorporating a private company to undertake the project. He recommended that each assembly appoint a delegation to meet and agree upon an adequate bill, adding that the delegates should also agree upon a communication to Pennsylvania seeking its approval for a road to be built connecting the upper reaches of the Potomac and the waters flowing into the Ohio. Hoffman, Ex. A, at 49-50.
After receiving Washington's letter, the Virginia House of Delegates appointed Washington, Horatio Gates and Thomas Blackburne to meet with persons appointed by Maryland to discuss the project and the Pennsylvania communication. With Blackburne unable to attend and Gates sick, Washington again took the lead and met in Annapolis on December 22nd with the commissioners appointed by Maryland. The committee drafted legislation establishing a private company to open the non-tidal Potomac to inland navigation and addressed how best to connect the upper Potomac with the western rivers. The Maryland legislature passed the legislation on December 28th and adopted resolutions requesting the governor to contact Pennsylvania about laying a road through its territory.(31) Washington wrote to Madison reporting to him the commissioners' actions late on the night of the 28th and enclosed copies of the Maryland act and resolves of the same date.(32) Hoffman, Ex. A, at 50-52.
Upon receipt of Washington's report, William Grayson took charge of the Potomac Company bill, and on January 5, 1785 the legislature passed "An act for opening and extending the navigation of Potowmack river" modeled on the bill drafted by the Annapolis meeting and passed by the Maryland legislature.(33) At the same time, the Virginia legislature adopted a resolution instructing the commissioners appointed the previous June to discuss with Maryland relations in the tidal Potomac to join with Maryland in broaching with Pennsylvania the issue of the road connecting the Potomac with the Ohio. Madison wrote Washington on January 1, 1785 that "this instruction ought rather to have been committed to the late Conference [in Annapolis]," but Madison's illness and "the haste which necessarily prevailed" prevented its being included.(34) Because it "did not pass till it was too late to refer it to Genl. Washington's negociations with Maryland," the instruction "now makes a part of the task allotted to the Commissrs. who are to settle with Maryld. the jurisdiction & navigation of Potowmac below tide water."(35) Hoffman, Ex. A, at 53.
The Mount Vernon Conference
After passing the Potomac Company act, which dealt with the jurisdiction of the river above tidewater, the Maryland legislature turned its attention to the appointment of commissioners to meet with those appointed by Virginia the previous June to "to frame such liberal and equitable regulations touching the jurisdiction and navigation of the waters of Chesapeake bay, and the rivers Patowmack and Pocomoke, as may be mutually advantageous to the two states."(36) On January 16, 1785, the assembly chose Thomas Johnson, Samuel Chase, Thomas Stone, and Daniel of St. Thomas Jenifer for the task - the last three of whom had also been appointed for the aborted February 1778 conference. Maryland directed the commissioners "to meet the commissioners appointed by the Commonwealth of Virginia, for the purpose of settling the navigation of, and jurisdiction over, that part of the Bay of Chesapeake which lies within the limits of Virginia, and over the rivers Patowmack and Pocomoke."(37) Hoffman, Ex. A, at 55.
Maryland proposed that the commissioners meet on March 21, 1785 at Alexandria, Virginia, but due to a clerical error, the Virginia delegation never received the proposal. Consequently, only George Mason (whom the Maryland delegation visited en route) and Alexander Henderson (who lived nearby) were present at the appointed time. The party decided to hold the meeting anyway and Washington, who was aware of the meeting from having recently dined with Major Jenifer, offered his house as a meeting place.(38) Hoffman, Ex. A, at 55-57.
The accidental manner in which the commissioners convened immediately led to problems. The two Virginia commissioners did not have a copy of their instructions, and thus were unaware that they were required to have at least three present before they could meet with Maryland's commissioners. More importantly, the instructions Madison had authored authorized them to discuss only the "jurisdiction & navigation of the River Potowmack,"(39) whereas Maryland's instructions, just as they had in 1777, made free navigation through the capes of the Chesapeake Bay a "sine qua non" of any agreement.(40) Washington did not have a copy of the instructions, although he did have a copy of the Virginia resolution authorizing its commissioners to join in a representation to Pennsylvania regarding the road connecting the upper Potomac with the Ohio River. Since the resolution authorized any two of the commissioners to act, Mason and Henderson felt authorized to proceed. Hoffman, Ex. A, at 57-58.
The Terms of the Mount Vernon Compact
The five commissioners spent the next few days negotiating the thirteen articles of what came to be known as the Mount Vernon Compact, which is attached hereto as Exhibit 63. This Court, in Wharton v. Wise, 153 U.S. 155, 163-66 (1894), described the Compact as follows:
In the first clause Virginia disclaimed all right to impose any toll, duty, or charge, prohibition or restraint on any vessel sailing through the capes of Chesapeake bay to the state of Maryland, or from that state through the capes outward bound, and agreed that the waters of Chesapeake bay and Pocomoke river within the limits of Virginia should be forever considered as a common highway for the use and navigation of any vessels belonging to the state of Maryland or any of its citizens, or for carrying on any commerce to or from that state or with any of its citizens, and that any such vessel inward or outward bound might enter any of the rivers within the commonwealth of Virginia as a harbor, or for safety against an enemy, without the payment of port duties or any other charge; and that the waters of Chesapeake bay and Pocomoke river should be free for the navigation of vessels from one part of the state of Maryland to another.
In the second clause the state of Maryland agreed that any vessel belonging to Virginia or any of its citizens, or carrying on commerce to or from that state, or with any of its citizens, might freely enter its rivers as a harbor, or for safety against an enemy, without the payment of any port duty or other charge.
In the third clause it was provided that war vessels, the property of either state, should not be subject to the payment of any port duty or other charge.
The fourth and fifth clauses related to commerce between citizens of the two states in their produce, providing that vessels of a certain size might enter and trade in the ports of either state with a permit from the naval officer of the district, and should not be subject to port charges.
The sixth clause declared that the river Potomac should be considered a common highway for the purpose of navigation and commerce to the citizens of both states, and all other persons in amity with the two states, trading to or from Virginia or Maryland.
The seventh clause provided that "the citizens of each state, respectively, shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river; but the right of fishing in the river shall be common to and equally enjoyed by the citizens of both states; provided, that such common right be not exercised by the citizens of the one state to the hindrance or disturbance of the fisheries on the shores of the other state; and that the citizens of neither state shall have a right to fish with nets or seines on the shores of the other."
The eighth clause provided that "all laws and regulations which may be necessary for the preservation of fish, or for the performance of quarantine in the river Potowmack, or for preserving and keeping open the channel and navigation thereof, or of the river Pocomoke, within the limits of Virginia,by preventing the throwing out ballast or giving any other obstruction thereto, shall be made with the mutual consent and approbation of both states."
The tenth clause provided that "all piracies, crimes, or offences committed in that part of Chesapeake bay which lies within the limits of Virginia, or that part of the said bay where the line of division from the sough point of Potowmack river, (now called Smith's Point,) to Watkins' Point, near the mouth of Pocomoke river, may be doubtful and on that part of Pocomoke river within the limits of Virginia, or where the line of division between the two states upon the said river, is doubtful, by any persons not citizens of the ocmmonwealth of Virginia against the citizens of Maryland, shall be tried in the court of the state of Maryland which hath legal cognizance of such offence. And all piracies, crimes, or offences committed on the before- mentioned parts of Chesapeake bay and Pocomoke river, by any persons, not citizens of Maryland, against any citizen of Virginia shall be tried in the court of the commonwealth of Virginia which hath legal cognizance of such offence. All piracies, crimes, and offences committed on the said parts of Chesapeake bay and Pocomoke river, by persons not citizens of either state, shall be tried in the court of the commonwealth of Virginia having legal cognizance of such offences. And all piracies, crimes, and offences committed on the said parts of Chesapeake bay and Pocomoke river, by any citizen of the commonwealth of Virginia or of the state of Maryland, either against the other, shall be tried in the court of that state of which the offender is a citizen."
Ratification of the Compact
The Maryland and Virginia commissioners executed the Compact on Monday, March 28, 1785 and then turned to the separate task of forwarding to Pennsylvania a joint letter advising that the two States planned to "promote the clearing & extending [of] the Navigation of Potomack, from tide-Water, upwards," and seeking Pennsylvania's blessing to construct across that State's territory a "convenient Road, from the Head of such Navigation, to the Waters running into the Ohio."(41) This is the same joint letter that Madison observed would have been "more properly . . . committed to the late [Potomac Company] Conference" in Annapolis which Washington attended in December 1784.(42) But it had been written too late, and so it fell to "the Commissrs. who are to settle with Maryld. the jurisdiction & navigation of Potowmac below tide water."(43) The commissioners did nothing more than forward the letter to Pennsylvania - which required the signatures of representatives from both Maryland and Virginia - adopting verbatim the words of the December 28th resolution. Hoffman, Ex. A, at 63-64.
Only after they had successfully negotiated the Mount Vernon Compact did Henderson and Mason learn that they had acted outside the scope of their instructions by proceeding with only two representatives and by addressing issues other than the Potomac. Madison, who had finally seen the achievement of his goal of negotiating the tidewater navigation and jurisdiction, took charge of the matter and, through some "adroit floor management,"(44) delivered Virginia's ratification on December 30, 1785.(45) Maryland, for its part, had already ratified the Compact on November 24, 1785.(46) Hoffman, Ex. A, at 64-65.
The Operations of the Potomac Company(47)
The Potomac Company legislation charged the Company with opening the river to inland navigation within three years. 1784 Md. Laws Ch. 33, § 18. Filled with the optimism that marked Washington's obsession with the project, the company in early 1786 began work on the locks, bypass canals, and improvements specified in its enabling act, hoping to meet its tight time deadline. The work was hard, however, and the Company repeatedly had to ask for more time.(48) By the early 1790's, the Company had completed bypass canals at House's Falls, Payne's Falls (at the Shenandoah River), and Seneca Falls, and had improved the river bed by removing rocks and other obstructions. The canal and locks around Little Falls at the head of tidewater were completed by 1795, while the extensive locks needed to carry boat traffic around Great Falls were not completed until 1802. Littlefield, Ex. B, at 11.
The legislation establishing the Company provided that, once the identified works were completed, the "said river" - meaning the river above tidewater - "shall for ever thereafter be esteemed and taken to be navigable as a public highway." 1784 Md. Laws Ch. 33, § 10. The improved river was to be made navigable for a variety of small craft including rafts, canoes, and certain other boats - known as "gondolas," "sharpers," or keelboats - which had a draught of one foot of water. The boats floated down the river, with the boats' crews using poles to control direction. The trip would generally take three to five days. Once they reached tidewater, many of these boats were broken up and sold for lumber at Georgetown or Alexandria. Those that were not broken up were poled and lined back up the river at a pace at which they would reach Fort Cumberland in almost two weeks. Notably, the total value of the goods transported downstream traffic was more than fifty times that moving upstream. Littlefield, Ex. B, at 12; Ex. 74.
Although the Company was charged with making the river navigable "in dry seasons," 1784 Md. Laws Ch. 33 at § 17, "the floods and freshets . . . gave the only navigation that was enjoyed . . . [and] the whole time when produce and goods could be stream bourne on the Potomac in the course of an entire year, did not exceed forty-five days."(49) Still, the project was widely declared a success as early as 1793, having achieved the Company's statutory mandate to "make the river well capable of being navigated" by the inland craft drawing one foot of water. Littlefield, Ex. B, at 13.
The Company's financial success did not match its engineering achievements. Although the Company collected more than some $238,000 in tolls during the 25-year period of its operation, it was chronically in debt and was forced repeatedly to come to the two States for additional subscriptions. Id. at 11, Appx.; see also, e.g., 1795 Md. Laws. Ch. 51, 84. Financial difficulties became insurmountable and, in 1828, after both States had investigated the Company and declared it a failure, the Company's assets were transferred to the newly formed Chesapeake & Ohio Canal Company. Littlefield, Ex. B, at 4.
While in operation, the Potomac Company wielded significant power over the bed, banks, and water of the non-tidal Potomac. Its legislation granted it the power to initiate condemnation actions against landowners who would not willingly part with the property needed for the Company's improvements. 1784 Md. Laws Ch. 33, § 11. In addition, anyone seeking to use the water in the Company's canals for mills, forges or any other purpose had to obtain the Company's approval to do so. Id. at § 13; see also Hoffman, Ex. A, at 54-55; Littlefield, Ex. B, at 15-18.
The Company also controlled how the owners of property along the non-tidal Potomac landowners could use water from the natural course of the Potomac, outside of the Company's improvements. For example, the Company reviewed requests to construct anything from mills to fish pots in and along the river to determine how such uses would affect navigation on the river. Id. In response to one request, the Company stated that "by the act of incorporation of the Legislatures of Virginia and Maryland the water in the Potomac River above tide was appropriated to the purposes of navigation and placed under the exclusive control of the company . . . Thus, no proprietor on either bank has since possessed the right of drawing water from the river without the consent of the company. . ."(50) Id. at 14-15. The power to impose tolls and control access to the river gave the Potomac Company "tremendous potential for shaping the economy and lives of thousands of people." Hoffman, Ex. A, at 55.
Unresolved Boundary Disputes
As Virginia concedes, the Compact left open three boundary disputes that would continue to occupy the two States' attention until well into the 20th century. Br. at 29-30. First, although Virginia by its 1776 Constitution relinquished any claim to the Potomac River beyond its "shores or strands," the precise location of the boundary line on the south side of the River had not been decided, with Maryland claiming under its Charter to the high water mark.(51) Second, the two States disagreed about the location of the line extending across the Chesapeake Bay and Eastern Shore to the Atlantic called for in the Maryland Charter.
Hopeful of avoiding the example of Rhode Island and Massachusetts, which had only recently concluded 16 years of litigation concerning the boundary between those States, Maryland and Virginia appointed commissioners in 1872 and 1873 to negotiate a settlement of the outstanding disputes. Maryland came to the settlement negotiations prepared to discuss the location of the boundary between the two States upon the Eastern Shore of the Chesapeake Bay.(52) The Maryland commissioners were genuinely surprised, therefore, to learn upon their arrival that Virginia had turned its back on the concessions made in its 1776 Constitution and was now claiming the entire width of the Potomac as her own. Virginia, it turns out, had sent a deputation to England sometime before 1860 seeking documentation of its boundaries,(53) which had returned with more than five volumes of ancient maps and documents.(54)
The two sides were unable to reach an amicable settlement and turned instead to binding arbitration. Both sides were careful to ensure that nothing arising out of the arbitration could be used by the other to alter in any way the Compact of 1785:
[N]either of the said states, nor the citizens thereof, shall, by the decision of the said arbitrators, be deprived of any of the rights and privileges enumerated and set forth in the compact between them entered into in the year seventeen hundred and eight-five, but that the same shall remain to and be enjoyed by the said states and the citizens thereof forever.
1874 Va. Acts Ch. 135; 1874 Md. Laws Ch. 247.
The arbitrators issued their award on January 16, 1877. In their majority Opinion, Black and Jenkins determined the boundary to be the low water mark on the south shore of the Potomac. The arbitrators noted that while Virginia had made a "claim for a boundary on the left [or north] bank of the Potomac" (App. 17a), "the gentlemen who represent her before us expressed with great candor their own opinion that a true interpretation of the King's concession would divide the river between the States by a line running in the middle of it." Id.(55) Finding that "[t]he intent of the charter is manifest all through to include the whole river within Lord Baltimore's grant" (App. 19a), the arbitrators stated, "we conclude that the charter 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 . . . ." Id. The arbitrators concluded, however, that Virginia had acquired title to the strip of land lying between high water mark and low water mark - a matter of feet in the tidal Potomac and inches, if anything, in the non-tidal stretch - through a long history of prescription. (App. 28a-29a.)
After establishing measurements for the boundary between the two States, the arbitrators' Award stated, among other things, that Virginia was 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 . . . ." (App. 48a-49a.) This right could not be exercised with the effect of "impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." (App. 49a.)
The Fairfax Stone and the South Branch
In contrast to the disputes that were resolved by the Black-Jenkins Award, which related primarily to tidewater areas, the boundary dispute surrounding the South Branch and the Fairfax Stone involved only the non-tidal stretch of the Potomac. The dispute revolved around the call to the "first fountain" in the Maryland Charter and took two forms. First, the two States disagreed about which of the many branches of the Potomac constituted its main stem for purposes of defining Maryland's southern boundary. The upper Potomac was largely unexplored as of 1632 and had not been mapped when the Maryland Charter was issued.(56) Virginia (and later West Virginia) claimed that the North Branch of the Potomac was its mainstem while Maryland claimed to the South Branch. The dispute also involved drawing the meridian line called for in the Maryland Charter that was to run south from what is now the Mason-Dixon line to the Potomac's "first fountain" and form Maryland's western boundary.
The dispute first manifested itself in the 1730's as the result of a dispute between Lord Fairfax and the Royal Colony of Virginia as to the boundaries of the Northern Neck.(57) As described earlier, the grant for the Northern Neck (known as the "Fairfax Grant") encompassed the lands lying between the headsprings of the Potomac to the north and the Rappahannock to the south. This property had been claimed by Virginia at the time the Fairfax Grant was made in 1688 and Virginia, in order to protect its interests in its western lands, contested the extent of the grant. At the King's request, the two parties in 1746 surveyed what they believed to be the boundaries of the Fairfax Grant and chose the North Branch of the Potomac - known then as the "Cohaungoruton" - as the mainstem of the river.
Maryland was not a party to the dispute and in 1753 formally raised its objection to the selection of the North Branch as the true main stem of the Potomac.(58) The onset of the French and Indian War derailed any plans to resolve the issue until 1771, when Maryland appointed commissioners to survey the South Branch of the Potomac and ascertain the extent of the disputed lands lying between the two branches.(59)
The Revolution diverted the two States' attention until 1781, when Maryland appropriated land west of Fort Cumberland for the purpose of settling war veterans and had the land surveyed.(60) In order to move forward with its settlement plan while the western boundary remained in dispute, Maryland in 1788 adopted a provisional western boundary "far within that which this state may rightfully claim" and postponed a resolution of the dispute of "very great importance" until a "time of more leisure."(61)
Efforts to negotiate the western and southern boundary dispute began in 1795, when Maryland appointed commissioners to meet with Virginia on the issue. Although Maryland Governor Stone and Virginia Governor Brooke exchanged correspondence about the issue, other obligations prevented the Maryland commissioners from moving forward.(62) Maryland again appointed commissioners in 1801, to which Virginia responded in 1802 agreeing to discuss the western boundary, but declining to authorize its commissioners to discuss the issues surrounding the southern boundary.(63)
The two States continued to disagree about Maryland's southern and western boundaries throughout the 19th century. Further attempts to negotiate on the issue were made in 1810, 1818, 1822, and 1825.(65) In 1831, Maryland directed a committee to report "what were the true southern and western limits of the province of Maryland, according to the original charter from the King of Great Britain to Lord Baltimore."(66) The committee reported back that "the stream commonly known by the name of the south branch of the Potomac, flows from the first fountain having the greatest extent to the west, and is indeed the Potomac proper, and the north branch is but a tributary of that noble river."(67)
Efforts at negotiation and arbitration proved unavailing and in 1834 Maryland filed suit in the United States Supreme Court seeking a "final legal adjustment and settlement of the Southern and Western Boundaries."(68) Maryland voluntarily dismissed the suit after Virginia gave assurances that it had not intended to rebuff Maryland's previous offers of arbitration.(69)
The dispute remained unresolved and, after periodic unsuccessful attempts to negotiate, Maryland again brought suit before the Supreme Court in 1891, this time against West Virginia, which had become a State in 1863. The Court's decision in the case, Maryland v. West Virginia, finally ended the dispute over the non-tidal Potomac by ruling that the North Branch and the Fairfax Stone constituted the southern and western boundaries of Maryland.
The Compact in the 20th Century
Although the 1877 arbitration and the Supreme Court's 1910 decision in Maryland v. West Virginia resolved the boundary disputes that had lingered since the 17th century, conflicts over the precise location of low water mark on the Virginia shore of the tidal Potomac continued to mar relations between the two states. To resolve this final detail, the States each appointed surveyors to map the boundary line laid down by the Black-Jenkins Award.between the two States.(70) The resulting Report on the Location of the Boundary Line Along the Potomac River - known as the "Mathews-Nelson Survey" after the surveyors - finally eliminated the last doubts about where the boundary lay in the hotly contested tidal Potomac.
With the boundary lines resolved, the conflict between the two States turned to Virginia's management of the tidal fishery resources on its side of the river. Commercial oystermen complained that the Virginia authorities were not enforcing the concurrent oyster laws of the Potomac, with the result that the oyster beds were being depleted such that "large areas of the river were barren," threatening the livelihood of oystermen on both sides of the river.(71)
Frustrated by the failure of the system of concurrent laws, Maryland proposed the creation of a bi-state commission that would have the authority to regulate the fisheries of the Chesapeake Bay and the tidal Potomac.(72) When Virginia refused, Maryland took matters into its own hands, enacting legislation repealing the Compact of 1785 and amending its concurrent legislation to assert exclusive jurisdiction over the Potomac, and adding a proviso guaranteeing that Virginians and Marylanders would be treated alike.(73)
Virginia filed suit in the Supreme Court seeking to overturn Maryland's repealing legislation and the case was referred to Justice Stanley F. Reed. The proceedings went no further, however, as the parties settled the dispute by agreeing to a new Compact. The Potomac River Compact of 1958 ("1958 Compact") established the Potomac River Fisheries Commission - a bi-state commission with authority to regulate the fisheries of the Potomac River. The Commission issues fishing licenses to citizens of Maryland and Virginia on equal terms, "[r]ecognizing that the right of fishing in the territory over which the Commission shall have jurisdiction is and shall be common to and equally enjoyed by the citizens of Virginia and Maryland."(74) The Commission's jurisdiction is expressly limited to the tidewater Potomac.
The 1958 Compact specifically superseded the Compact of 1785 and provided that the Compact of 1785 "shall no longer have any force or effect." Art. IX, §1. However, the new Compact expressly carried forward the provisions of Article VII of the Compact relating to riparian rights and specified that "the decisions of the courts construing that portion of Article VII of the Compact of 1785 relating to the rights of riparian owners shall be given full force and effect." Art. VII, § 1. The 1958 Compact does not carry forward any other provision of the Compact of 1785.
I. THE COMPACT OF 1785 DOES NOT APPLY TO THE NON-TIDAL PORTION OF THE POTOMAC RIVER.
Virginia's interpretation of the Compact of 1785 is based on a fundamental misunderstanding of history that cannot be reconciled with the plain language of the Compact when viewed, as it should be, in its entire context. That context is not limited to the words in Article VII of the Compact that Virginia claims are dispositive of its motion. Rather, as this Court observed in interpreting two State charters with respect to which more than one hundred and eighty years and two hundred years had elapsed, respectively, "[i]n looking at transactions so remote, we must, as far as practicable, view things as they were seen and understood at the time they transpired. There is no other test of truth and justice, which applies to the variable condition of all human concerns." Rhode Island v. Massachusetts, 45 U.S. 591, 629 (1846). In considering "the history of the times" and "the state of things existing when it was framed and adopted," Rhode Island v. Massachusetts, 37 U.S. 657, 723 (1838), the Compact's inapplicability to the non-tidal portion of the Potomac is conclusively proven in several different ways.
A. The History Of The Compact Of 1785 And The Context In Which It Was Negotiated Preclude The Inference That The Compact Was Intended To Apply Above Tidewater.
First, the Compact's inapplicability above tidewater is substantiated by the history surrounding its formation. Virginia's historical discussion is remarkable more for what it omits than for what it includes. The Commonwealth fails to acknowledge anywhere in its 20-page discussion of the history surrounding the Compact that James Madison stated unequivocally on three separate occasions, before and after March 1785, that the Compact was not intended to and did not apply above tidewater. See Letter from Madison to Jefferson (Apr. 25, 1784) (Ex. 37) (reminding Jefferson of a previous letter in which Madison first raised the idea of getting Maryland to harmonize commercial regulations on the Potomac, "having in my eye the river below the head of navigation"); Letter from Madison to Jefferson (Jan. 9, 1785) (Ex. 58) (stating that, due to an accident of timing, the task of communicating with Pennsylvania regarding the opening of a road between the Potomac and Ohio Rivers had been "allotted to the Commissrs. who are to settle with Maryd. the jurisdiction & navigation of Potowmac below tide water"); Letter from Madison to Jefferson (Apr. 27, 1785) (Ex. 65) (stating that "I understand that Chase & Jennifer on the part of Maryland, Mason & Henderson on the part of Virginia have had a meeting on the proposition of Virga. for settling the navigation & jurisdiction of Potowmac below the falls, & have agreed to report to the two assemblies, the establishment of a concurrent jurisdiction on that river & Chesapeak"). These letters represent a critical part of the history of the Compact because of the key role that Madison played in its formation.
Although Virginia recognizes that James Madison was one of four commissioners from Virginia who was appointed by the Virginia Legislature to meet with commissioners from Maryland, it elaborates no further than to state that "Madison's place in history is well-known." Br. at 11 n.28. In fact, Madison was the guiding force behind the Compact. As Prof. Hoffman points out, Ex. A at 7, 35-38, Madison was the first to recognize the need to negotiate a compact with Maryland in the post-Revolutionary War period. Madison believed that "a commission to harmonize the regulations of both sides" of the Potomac was the best way for Virginia to ensure its access to the shipping lanes of the tidewater Potomac without having to challenge Maryland's ownership of the river, which Virginia had in 1776 conceded.(75) Madison introduced the Virginia legislation appointing himself a commissioner and authored the commissioners' instructions. Notably, these instructions reflect only Madison's concern about the Potomac and do not address the Pocomoke and the Chesapeake, as the 1777 instructions did.(76) More importantly, Madison's contemporaneous correspondence - including a letter written just two months before he crafted the commissioners' instructions - demonstrates that his use of the term "Potomac River" in the 1784 instructions was not meant to apply above the tidewater stretch of the river.(77)
Madison was the impetus behind the Compact. And while a clerical error prevented him from attending the Mount Vernon negotiations, his post-Compact correspondence makes clear that he understood that the Compact, as negotiated, did not apply above tidewater. See Ex. 65. As the one who piloted the Compact through the Virginia legislature and who would have answered any questions concerning its scope, Madison's interpretation is strong evidence of the Compact's intended scope.
Madison's understanding that the Compact applied only to the tidewater portions of the Potomac was shared by the Virginia congressional delegation less than twenty years after the ratification of the Compact. In 1804, the commercial interests of Georgetown proposed to construct a dam or causeway across the tidal Potomac between Mason's Island (once known as "Barbadoes" and now known as Theodore Roosevelt Island) and the Virginia shore within the limits of the District of Columbia. The purpose of the causeway was to divert the entire flow of the river into the channel nearest the Maryland shore, thereby scouring out and deepening the channel directly in front of Georgetown harbor. The Virginia delegation objected to the plan because it meant damming up the channel on the Virginia shore, which they feared would divert inland boats coming down the Potomac away from Alexandria and to Georgetown, and because it feared that the siltation moved out of the Georgetown harbor would be deposited downstream and across the river into Alexandria's harbor. See, e.g., Annals of Cong., 8th Cong., 2nd Sess., November 28, 1804, at 712 (Ex. 84).
The debate in Congress focused on whether Congress had jurisdiction over obstructions to the navigation of the Potomac in light of the common navigational rights preserved in the Compact of 1785. Those favoring approval argued that Congress had such jurisdiction because Maryland and Virginia gave to the District, and hence Congress, all of their jurisdiction - including their common jurisdiction over navigation recognized in the Compact - when they ceded territory and powers of governance for the creation of the Nation's capital. John Randolph on behalf of the Virginia delegation argued that Virginia did not intend to cede to Congress its Compact rights because the Virginia cession Act, 1789 Va. Acts Ch. 32, Section 1, contemplated a cession of land "on the banks of the river Patowmack, above tide water":
It is plain from the preamble . . . that the intention of the State was to make a cession above the tide water; that the expected seat of Government would be fixed in some place contiguous to the limits of Maryland and Pennsylvania. It is not contended that the United States were bound to select any particular spot. This circumstance is mentioned only to show what was contemplated at the time by the Legislature of Virginia. Her act of cession was more broad. It extended to any tract of country not exceeding ten miles square, "to be located within the limits of the State." Over this she had relinquished to Congress her jurisdiction as well of soil as of persons. But her limits did not extend beyond high water mark on the western bank of the Potomac. Her right of highway on the river was a natural right acknowledged and secured by convention with Maryland. Her civil jurisdiction over its water was a conventional right, entirely derived from compact with that State, was a jurisdiction not within her limits, and which the words of the act just read could not embrace or convey.
Annals of Cong., 8th Cong., 2nd Sess., November 28, 1804, at 715 (emphasis added) (Ex. 84). If the Compact had applied above tidewater, as the Commonwealth now argues, Virginia would have possessed there precisely the same "conventional rights" it believed it possessed in the tidal waters of the Potomac opposite Georgetown, and Randolph would not have drawn a distinction between Virginia's rights in the tidal and non-tidal Potomac. It is precisely because the Compact did not apply "above the tide water" that Virginia could argue that its legislature did not intend to cede its Compact rights to the District.
That the Compact was never intended to apply above tidewater is further corroborated by the interplay, or lack thereof, between the Compact and the Potomac Company legislation enacted just three months earlier. The commissioners who met at Mount Vernon were well aware of the concurrent legislation creating the Potomac Company to "open and extend" the navigation of the Potomac above tidewater.(78) Yet, while the Compact and the Potomac Company regulate many of the same subjects, such as navigation, tolls, and property rights, the Compact does not mention the Potomac Company or its legislation even once. Having just culminated a three-decades-long effort to facilitate the opening of the non-tidal Potomac to inland navigation - an effort frustrated on several occasions by the unraveling of legislative support, see, e.g., Hoffman at 21-24 - the absence of any mention in the Compact of the Potomac Company and its legislation would have been remarkable had the Mount Vernon commissioners thought the Compact applied above tidewater.
Even more telling is the complete absence even of any contemporaneous discussion of how the two pieces of legislation would be harmonized. As set forth earlier, the Potomac Company had just been given extensive powers over the use of the non-tidal Potomac and the adjacent property. The drafters of the Compact certainly would have discussed how the Compact and the Potomac Company relate to one another if, as Virginia argues, they both applied to the same stretch of the river occupied by the Potomac Company.
George Washington's silence on the interplay between the Compact and the Potomac Company particularly underscores the Compact's inapplicability to the non-tidal Potomac. As Virginia points out, the historical sources describe Washington as being somewhat "obsessed" with the success of the Potomac Company in the 1780's. Br. at 24. He worked tirelessly toward the goal of establishing the Company, and his correspondence in 1784 and 1785 is replete with detailed descriptions of the Potomac and the Potomac Company. Hoffman, Ex. A, at 66. However, "in his extensive writings about the Potomac," Washington never "evinced the slightest interest in the issues of navigation and jurisdiction below tidewater." Id., Ex. A, at 58. In fact, he does not mention the Compact at all in his 1785 correspondence. Id., Ex. A, at 66, n.130. Similarly, while Washington occasionally dined with one or more of the commissioners and sought to make their stay at Mount Vernon as comfortable as possible, he almost certainly did not participate in the negotiations. See id. at 66; Washington Diaries (Mar. 20-29, 1785) (Ex. 62).
The drafters of the Compact felt no need to discuss its interplay with the Potomac Company legislation because the two applied to different portions of the river. As Madison makes clear, the two were proceeding simultaneously on different tracks:
In addition to these acts [the Potomac Company legislation] joint resolutions have passed the Legislatures of Maryd. and Va. for clearing a road from the head of the Potowmac navigation to cheat-river or if necessary to Monongalia . . . This Resolution did not pass till it was too late to refer it to Genl. Washington's [Potomac Company] negociations with Maryland. It now makes a part of the task allotted to the Commissrs. who are to settle with Maryd. the jurisdiction & navigation of Potowmac below tide water.
Ex. 57.
B. Reading The Compact Together With The Potomac Company Legislation Demonstrates They Were Intended To Address Different Parts Of The Potomac River.
The Compact's inapplicability to the non-tidal part of the Potomac River is pragmatically demonstrated when the Compact and the legislation that both States enacted chartering the Potomac Company are read together. It is a well-settled principle of statutory construction that courts are to "'consider not only the bare meaning' of the critical word or phrase 'but also its placement and purpose in the statutory scheme.'" Holloway v. United States, 526 U.S. 1, 6 (1999) (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)). Thus, contrary to Virginia's contention that the analysis of the Compact should begin and end with the language of Article VII "[b]ecause Article VII is clear on its face," Virginia Br. at 52, "the meaning of statutory language, plain or not, depends on context." King v. St. Vincent's Hospital, 502 U.S. 215, 221 (1991). Indeed, "[w]ords are not pebbles of alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their support from the setting in which they are used. . . ." Id. (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2nd Cir.1941) (L. Hand, J.) (other citation omitted)). Such a setting includes contemporaneously enacted legislation "designed to deal with closely related aspects of the same problem." United States v. American Building Maintenance Industries, 422 U.S. 271, 277 (1975). See also First National Bank of Atlanta v. Bartow County Board of Tax Assessors, 470 U.S. 583, 594-95 (1985); Wells v. Supervisors, 102 U.S. 625, 632-33 (1880).
The Potomac Company legislation, which Virginia enacted just three months prior to the signing of the Compact, demonstrates in three different ways that the Compact does not apply to the non-tidal portion of the river. First, the Potomac Company legislation and the Compact contemplated entirely different charges that could be imposed for an entirely different navigation and use of the Potomac River. Under the legislation that both States enacted, the Potomac Company had broad authority to collect tolls, "for all commodities transported through" the locks and canals it was to build, to meet the expense of rendering the non-tidal portion of the Potomac navigable. 1784 Md. Laws Ch. 33, § IX, Ex. 70; 1785 Va. Laws Ch. 43, § IX, Ex. 71. The Potomac Company was authorized to seize any vessel that "refused to pay the required toll" and "sell the same at auction," id., and collected, between 1800 and 1828, tolls totaling $238,117.66 on the transport in the non-tidal Potomac River of 179,554 tons of goods and produce having a collective value of almost $10 million. Littlefield, Ex. B, at 12.
In contrast to the tolls that the Potomac Company could charge for the use of the canals and locks in the non-tidal Potomac, the Compact eliminated rather than authorized the right to impose tolls and similarly limited the right to impose "port duties" and other charges, all in connection with a use of the river that had nothing to do with the type of "navigation" regulated by the Potomac Company. Satisfying Maryland's sine qua non for the Compact negotiations, Virginia agreed in Article I not "to impose any toll; duty or charge, prohibition or restraint on any vessel whatever sailing through the capes of Chesapeake bay," and expressly recognized "that the waters of the Chesapeake bay, and the river Pocomoke, within the limits of Virginia, be for ever considered as a common highway, free for the use and navigation of any vessel belonging to the said state of Maryland, or any of its citizens." Ex. 63. In exchange, Maryland agreed in Article II "that any vessel belonging to the commonwealth of Virginia, or any of its citizens, or carrying on commerce to or from the said Commonwealth, or with any of its citizens, may freely enter any of the rivers of the said state of Maryland as a harbour, or for safety against an enemy, without the payment of any port duty, or any other charge." Id.
After excluding "vessels of war" in Article III from "the payment of any port duty, or other charge," Maryland and Virginia agreed in Article IV that "[v]essels not exceeding forty feet keel, nor fifty tons burthen, the property of any citizen of Virginia or Maryland, or of citizens of both states, trading from one to the other only, and having on board only the produce of the said states, may enter and trade in any part of either state, with a permit from the naval officer of the district from which such vessel departs with her cargo, and shall be subject to no port charges." Id. Article V similarly reserved the right of both States to impose certain charges for the use of the Potomac, stating that "merchant vessels (except such as are described in the fourth article) navigating the river Patowmack, shall enter and clear at some naval-office on the said river in one or both states, according to the laws of the state in which the entry shall be made; and where any vessel shall make an entry in both states, such vessel shall be subject to tonnage." Id.
Thus, while the Potomac Company legislation declared the non-tidal portion of the Potomac River, upon the completion of the Potomac Company's work, "to be navigable as a public highway," "free for the transportation of all goods, commodities or produce, whatsoever, on payment of the tolls imposed by this act," and subject to "no other toll or tax whatever," Ex. 70, § X, the Compact provides that, subject to certain port and tonnage charges, "[t]he river Patowmack shall be considered as a common highway for the purpose of navigation and commerce to the citizens of Virginia and Maryland, and of the United States, and to all other persons in amity with the said states trading to or from Virginia or Maryland." Ex. 63. The charges permitted by the Potomac Company legislation and the Compact, respectively, are not the same because they pertain to altogether different sections and uses of the Potomac River.(79)
Second, Virginia's reliance on Article XII of the Compact for the proposition that the Compact "clearly applied above tidewater," Br. at 52, illustrates an irreconcilable conflict between the Compact and the Potomac Company legislation that confirms the Compact's inapplicability to the non-tidal portion of the Potomac. Article XII provides that "[t]he citizens of either state having lands in the other, shall have full liberty to transport to their own state the produce of such lands, or to remove their effects, free from any duty, tax or charge whatsoever, for the liberty to remove such produce or effects." Ex. 63. This clashes with Section X of the Potomac Company legislation, which, as just stated, provides that the use of the non-tidal Potomac shall be subject to the tolls enumerated in the act. Ex. 70, § X.
Third, Section XIX of the Potomac Company legislation makes clear that the activity that the Compact's Article XII exempts from the payment of "any duty, tax or charge whatsoever" is also exempt in the non-tidal portion of the Potomac:
That all commodities of the produce of either of the said states, or of the western country, which may be carried or transported through the said locks, canals and river, may be landed, sold, or otherwise disposed of, free from any other duties, impositions, regulations or restrictions of any kind, than the like commodities of the produce of the state in which the same may happen to be so landed, sold, shipped or disposed of.
Ex. 70. Both sections would not be needed if, as Virginia contends, the Compact applied to the entire course of the Potomac. Rather, as one court observed in addressing these two sections, "it could not be necessary to extend [Article XII of the Compact] higher than the tide; because a similar stipulation had been previously embodied in the Act incorporating The Potomac Company." Binney's Case, 2 Bland 99 (Md. 1829).
Reading the Compact and the Potomac Company legislation together demonstrates that the latter picks up where the former leaves off. While the Compact concerned itself with issues of navigation and jurisdiction in the tidal portion of the Potomac, the Potomac Company legislation was designed exclusively to regulate the river from tidewater to the river's source. Indeed, in creating the Potomac Company for the purpose of regulating commerce on the non-tidal Potomac, Maryland and Virginia divided that portion into three distinct segments and specifically conditioned the Potomac Company's authority to impose and collect tolls, at each of the three tolling facilities to be constructed, upon making the Potomac "well capable of being navigated" in each of those segments: "from the place on the north branch at which a road shall set off to the Cheat river . . . to and through the place on below the mouth of the south branch for receipt of the tolls aforesaid;" "from the said place of collection near the mouth of the south branch, to and through Payne's falls aforesaid;" and "from Payne's falls to the great falls . . . and from the great falls to tide water." Ex. 40, § XVII. The ability to impose and collect tolls at the Great Falls facility was further conditioned by requiring the Potomac Company to "make a cut or canal" from Great Falls to Little Falls and to either "make, at or near the little falls, such canal and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course." Id.
Tidewater was to be the dividing line, therefore, at which both States intended the Potomac Company's authority to end and the Compact was to take over. Thus, as James Madison wrote to Thomas Jefferson in early 1785, after describing the recently enacted Potomac Company legislation and a similar plan for "clearing" the James River, the Compact was designed to address "the jurisdiction & navigation of Potowmac below tide water." Ex. 57, Jan. 25, 1785. The Compact and the Potomac Company legislation that both States passed just months before were never intended to apply to the same portion of the Potomac.
C. The Compact Does Not Clearly And Unequivocally Apply To The Non-Tidal Portion Of The Potomac.
Virginia's plain language argument also runs directly counter to the well-settled rule that courts are not to presume that a State has relinquished any sovereignty over its territory absent clear and unambiguous language manifesting such an intent. See Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 (1986) (citing established canon of contract construction that no sovereign power will be considered surrendered absent clear and unambiguous language set forth in "unmistakable terms") (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982)); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 548 (1837) ("[W]henever any power of the state is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same."). See generally United States v. Winstar, 518 U.S. 839, 871-79 (1996). Virginia suggests that the need for such unequivocal intent does not exist here, claiming that at the time the Compact was formed "the precise location of the boundary line between the States along the Potomac River remained unsettled . . . ." Br. at 2. Virginia is wrong.
That boundary was "unsettled" only insofar as Virginia's Constitution of 1776 purported to claim the shores and strands of the Potomac. Maryland never acquiesced in that claim, however, but rather passed a resolution that same year stating "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 Cecilius Calvert, baron of Baltimore." Ex. 22. Thus, far from suggesting any doubt about Maryland's claim to this land, that same resolution asserted "[t]hat 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 Patowmack, and almost the whole of the river Pocomoke, being comprehended in the said charter, the sole and exclusive jurisdiction over the said river Patowmack, and also over such part of the river Pocomoke as is comprehended in the said charter, belongs to this state." Id. Madison recognized that the river belonged to Maryland, see March 16, 1784, letter from Madison to Jefferson, Ex. 34, as did members of the Virginia congressional delegation and representatives from other States in the 1804 debates discussed earlier.(80) Ex. 84.
As the Supreme Court long ago recognized, the 1632 charter from Charles I "in unmistakable terms included the Potomac River, . . . and declared that thereafter the province of Maryland and its freeholders and inhabitants should not be held or reputed a member or part of the land of Virginia, 'from which we do separate both the said province and the inhabitants thereof.'" Morris v. United States, 174 U.S. 196, 223 (1899). "[T]he territory and title thus granted to Lord Baltimore, his heirs and assigns, were never devested by any valid proceedings prior to the Revolution, nor was such grant affected by the subsequent [1688] grant to Lord Culpeper," id. at 225, which also included the Potomac River. Maryland thus had an absolute claim to the Potomac at the time it formed the Compact with Virginia in 1785, as the Potomac was included in the charter from King Charles I to Lord Baltimore, and the "[t]he boundary line is the line of sovereignty." Central Railroad Co. of New Jersey v. Mayor and Alderman of New Jersey, 209 U.S. 473, 593 (1908).(81)
In these circumstances, a longstanding rule of strict construction applies in determining the extent to which Maryland intended the Compact to alter what its legislature just eight years earlier called Maryland's "sole and exclusive jurisdiction over the said river Patowmack." Ex. 22. Such a determination must be established by clear, especial, or plain language in the Compact. See Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. at 52. No such unequivocal language exists in the Compact demonstrating that Maryland intended to modify its claim over any portion of the Potomac that lay above tide-water. Absent that language, Maryland's formation of the 1785 Compact did not relinquish its powers of government in any way with respect to the non-tidal portion of the Potomac.
D. The Plain Language Of The Compact Manifests A Clear Intent That It Applies Only To Navigable Waters.
Applying the same rule of construction in rejecting the same argument Virginia makes here, one court stated that it cannot be "fairly inferred . . . that the compact extended to the unnavigable part of the river" when "[n]o stipulation is contained in the compact in regard to the territory, nor is any reference made in it to the unnavigable part of the river above tide, as distinguished from the navigable part." United States v. Great Falls Manufacturing Co., Circuit Court for Montgomery County, Maryland, reprinted as Sen. Doc. 42, 35th Cong., 2d Sess. (1859), Ex. 85, Opinion at 7. Indeed, as several courts have recognized in concluding that the Compact applies only to the tidal portion of the Potomac, "the Compact as a whole seems to confirm this construction." Middlekauff v. LeCompte, 149 Md. 62, 132 A. 48, 50 (1926).
The first of the courts to have reached such a conclusion did so in 1829, at a time nearly contemporaneous with the era in which the Compact was made. Examining each section of the Compact, Chancellor Bland in Binney's Case, 2 Bland 99 (1829), found that its plain language demonstrates that the Compact does not apply to the non-tidal portion of the Potomac. Chancellor Bland first observed that "[t]he general scope and object of that compact was, not to fix and give a legal character to any natural subject whatever; in that respect it did not profess to alter, or to stipulate for anything; throughout it speaks of waters, which are by nature navigable; and regulates the terms and manner in which the natural navigation is to be conducted by the citizens of the contracting parties." Id. at 126. Asserting that "[t]he first nine articles cannot possibly be applied in any other way," id., he stated that "[t]he tenth establishes certain regulations respecting piracies, crimes, and offences, and for any violence, injury, or trespass, to or upon the property, or lands of the other adjacent to the said bay or river, &c." Id. Chancellor Bland declared, however, that "[p]iracy is a name given to no offence committed within the body of a county; but only to crimes upon bays and rivers, or any tide-water, considered as an arm of the sea, not within the body of a county; but originally and properly within the jurisdiction of the admiralty." Id. Accordingly, "[t]his provision respecting privacy, therefore, clearly confines the whole article to acts done on tide-water or abroad, and not within the body of any county; and of which Courts of common law could not otherwise have jurisdiction." Id.
Chancellor Bland determined that none of the other sections of the Compact contains any language suggesting it applies to non-tidal waters. Observing that "[t]he eleventh article speaks of the ports of the Potomac, certainly on tide-water, for there could be none above; and of persons flying from justice," id., he stated:
This again, must have been upon the tide-water, and not within the body of a county; because the whole of the river, above tide, not being navigable, or a common highway, was within the bodies of the respective adjacent counties; and could afford no sanctuary to those who should flee from the justice of the municipal law; since they would be there fully within reach of process from the Courts of common law of the State to which the river belonged.
Id. Similarly, "[t]he twelfth article relates to the transportation of the effects of the citizens of each State across the river free of duty. But it could not be necessary to extend this provision higher than the tide; because a similar stipulation had been previously embodied in the Act incorporating The Potomac Company. 1784, ch. 33, s. 19." 2 Bland at 226. Chancellor Bland concluded that "[t]here is, therefore, nothing in this compact, which relates in any manner whatever to the River Potomac above tide-water." Id.
Thirty years later, the Circuit Court for Montgomery County, Maryland in United States v. Great Falls Manufacturing Co. reached the same conclusion set forth in Binney's Case after reviewing the plain language of the Compact. Stating that the Compact discussion in Chancellor Bland's decision was dicta because "it was not necessary to the decision of the case before him," Judge Nicholas Brewer commented that "I should not consider this court to be bound by it, but on a full examination I concur with his views." Ex. 85 at 6. Judge Brewer observed that "[t]he navigation of the whole river, above and below tide, was of some consequence to Virginia, but much more so below than above. There were no fisheries of any consequence above tide; no necessity for any provisions with regard to piracy, or crimes on the river, the whole being in the body of the respective counties of Maryland." Id. at 7. Citing the Potomac Company legislation discussed earlier, the circuit court stated that "the imperfect navigation of the upper part, to be improved by slack water and canal navigation, had, two months before the conclusion of the compact, been thrown open to Virginia, and to all the world, by the act of 1784, ch. 33, sec. 10. . . ." Id. The court asserted that "[t]he 19th section of this act authorizes the transportation of the goods of the citizens of each State across the river free of duties; and thus, it seems to me, all claims which Virginia did or could set up to any use of the river above tide were disposed of." Id.
After noting that "[t]he Compact of 1785 recites its object to be to settle the jurisdiction and navigation of the Potomac river," the court identified the same section of the Compact that Virginia relies upon in this case as "[t]he only provision in the compact which has any reference to riparian rights of any description, or which could be construed as applying to the river above tide. . . ." Id. (emphases in original). Comparing that section with the Virginia Constitution of 1776, which "excepts from her recognition of the claims of Maryland the free navigation and use of the Potomac river," the court noted that "[t]here are no such general expressions in the compact, but it provides fully and definitively for the free navigation of the river, and all the uses which could be made of it in its natural bed below tide, to wit: its fisheries - no such use could be made of it above tide - or any other use in its natural bed." Id. (emphases in original). Referring to the Virginia Constitution's reservation of property of the Virginia "shores" bordering the Potomac "to show her object in making the compact," id. at 8, the court recited Webster's Dictionary, which "defines 'shore' as 'the coast or land adjacent to the sea or ocean, or to a large lake or river.' We do not apply the word to the land contiguous to a small stream, we call 'a bank.'" Id. at 7 (emphasis in original). Judge Brewer rejected the proposition that the Compact was intended to apply above tide and create riparian rights, finding that "[t]his would be a forced and unnatural construction, not justified by the situation of the parties to, or the nature of, the compact." Id. at 8.
Approximately seventy years later, the Maryland Court of Appeals, like Chancellor Bland and Judge Brewer, relied on the language of the Compact and its historical context in holding that the Compact did not prevent Maryland from unilaterally enacting a law prohibiting fish pots in the non-tidal portion of the Potomac and almost all other waters of the State. Middlekauff v. LeCompte, 149 Md. 621, 132 A. 48 (1926). After recounting the 1777 and 1784 resolutions of both Virginia and Maryland appointing commissioners to meet "for the purpose of settling the navigation of, and the jurisdiction over, that part of the bay of Chesapeake which lies within the limits of Virginia, and over the rivers Potomac and Pocomoke," the Court of Appeals stated that "[i]t would seem, from these preliminaries, then, that the only waters with which the joint commission was to be concerned were those on which there was navigation." 149 Md. at 625, 132 A. at 49 (quotations and citation omitted). Stating that "[i]t will be borne in mind, of course, that the Potomac and the Pocomoke were broad, navigable waterways on the boundary between the two states, where questions of the kind outlined were likely to arise," id., the Court of Appeals supported its conclusion that the Compact was limited to navigable waters by stating that "[d]uring the same year 1784, the two states were arranging for another distinct joint commission on the question of extending navigation on the upper, and then unnavigable, portion of the Potomac" and ultimately passed legislation that same year "providing for the formation of the Potomac Company to effectuate the purpose in mind." Id. at 625, 132 A. at 50.
After discussing the historical backdrop against which the Compact was negotiated, the Court of Appeals stated that the plain language of Article VIII of the Compact "seems to refer only to navigable waters" and that, indeed, "the Compact as a whole seems to confirm this construction." Id. at 626, 132 A. at 50. Following the court's discussion of the Compact's remaining provisions and Chancellor Bland's analysis of the Compact in Binney's Case, the Court of Appeals held that "the Compact of 1785 did not require the concurrence of the Legislature of Virginia to render effective the prohibition against fish pots in the upper Potomac in the Maryland act of 1924." Id. at 628, 132 A. at 50.
While Virginia dismisses Middlekauff and Binney's Case as "mistakes," Br. at 59, the plain language analyses set forth in these cases and in United States v. Great Falls Manufacturing Co. are well-reasoned and based on established principles of statutory construction. Moreover, although the Maryland courts in these cases are the only courts to have directly ruled on the issue of whether the 1785 Compact applies above tidewater, federal courts - including this Court - have acknowledged that it was the relations between the two States on the 117-mile-long tidewater Potomac that gave rise to the Compact:
We turn now to the Potomac river, on the western side of the Chesapeake bay. The tide-water portion of this great stream, for 120 miles from the Great Falls at Georgetown to the Chesapeake bay, constitutes the boundary line for that entire distance between Maryland and Virginia. . . . The relations of the tide-water portions of the Potomac river to the two states made it necessary that there should be some compact as to its use between Maryland and Virginia. Accordingly, on the 28th day of March, 1785, under the auspices of Gen. Washington, and at Mt. Vernon, a compact was entered into, which had the effect of a solemn treaty, between these states.
Ex Parte Marsh, 57 F. 719, 723 (E.D.Va. 1893). In the following year, this Court observed:
Previous to June, 1784, great inconveniences were experienced by citizens of both Maryland and Virginia from the want of established and recognized regulations between those states respecting the jurisdiction and navigation of the river Potomac, which constituted a boundary between the two states for over 100 miles.
Wharton v. Wise, 153 U.S. 155, 162 (1894). See also Affidavit of Roland C. Steiner, Ph.D., P.E., ¶ 6, attached to Virginia's Brief behind Tab C (stating that tidal portion of the river is 117-miles long).
The conclusions reached in each of those cases are correct because the courts could not have ruled any other way. Rather, under longstanding principles discussed in the next section, Maryland and Virginia could not have intended the Compact to apply above tide water because such an application would have unlawfully infringed the private property rights of Maryland citizens owning property adjacent to the non-tidal Potomac.
E. Applying Article VII To The Non-Tidal Portion Of The Potomac Would Violate Private Property Rights.
Upon statehood, Maryland and the other original colonies succeeded to the King of England's title to the land beneath the navigable waters. Shively v. Bowlby, 152 U.S. 1, 11-15 (1894). Under the English common law definition of navigability, "navigable waters" were limited to waters that were subject to the ebb and flow of the tide - tidewaters. See The Genessee Chief v. Fitzhugh, 53 U.S. 443, 455 (1851) ("In England, therefore, tide water and navigable water are synonymous terms."). See also Barney v. Keokuk, 94 U.S. 324, 336 (1876) ("[I]n England, no waters are deemed navigable except those in which the tide ebbs and flows.").(82) As he recognized in his authoritative treatise De Jure Maris, the Lord Chief-Justice Hale described that portion of a river that is subject to the ebb and flow of the tide as a "publick river or arm of the sea" in which "the king of England hath a double right, viz. a right of jurisdiction which he ordinarily exerciseth by his admiral, and a right of propriety or ownership." Hale, De Jure Maris at 372, 376 (reprinted in Stuart A. Moore, A History of The Foreshore and the Law Relating Thereto, pp. 370-413) (London, 1888). "The right of fishing in this sea and the creeks and arms thereof is originally lodged in the crown . . . and as a consequent of his propriety hath the primary right of fishing . . . yet the common people of England have regularly a liberty of fishing in the seas or creeks or arms thereof, as a publick common piscary." Id. at 376-77.
Thus, while Maryland had the right, at the time it entered into the Compact with Virginia, to grant title to the submerged lands beneath the tidal waters, it could only do so "without interfering with or affecting the public or common right of user for the purposes of navigation and fishing." Browne v. Kennedy, 5 H. & J. 195, 202 (Md. 1821). Accordingly, as the Circuit Court for Washington County, Maryland stated in its disposition of Middlekauff v. LeCompte (Ex. 86 at 4):
When therefore, the compact of 1785 granted unto the citizens of both Virginia and Maryland the common right of navigation and fishing in the navigable waters of the Potomac River there was not nor could there be any interference with any private right of a citizen of Maryland, or any owner of the soil covered by the navigable waters of the Potomac River, because neither the owner of the soil covered by such waters nor any riparian owner had acquired or could acquire any exclusive right of navigation or fishing in such waters.
As the circuit court stated, however, 'if the compact is to be considered as applicable to the non-navigable waters of the Potomac an entirely different condition is presented." Id. The distinction between "publick" or tidal rivers and private, non-tidal rivers was carried over to the American colonies and is reflected in the earliest water law treatises published in the United States. Writing in 1824, Joseph K. Angell stated, "there are known in the law two kinds [of rivers], viz: those in which the proprietary interest is altogether private, and those in which it is both private and public; or those in which the private right of property is subservient to the right of public use." Angell on Watercourses at 1-2, 605 § 542 (4th Ed. 1854).(83) "All rivers above the flow of tide-water are, by the Common Law, prima facie private; but when they are naturally of sufficient depth for valuable flotage, the public have an easement therein for the purposes of transportation and commercial intercourse; and in fact, they are public highways by water." Id. at 506, § 535 (emphasis in original). In all other respects, the right of property in the soil beneath waters that the riparian owner holds to the usque filum aquae confers exclusive private rights, including the right of fishery. Id. at 606, § 545; 70, § 71; 66, § 65 (stating that "[t]he rule, that the right of fishery, within his territorial limits, belongs exclusively to the riparian owner, extends alike to great and to small streams," and citing to Adams v. Pease, 2 Conn. Rep. 481 (1818), for the proposition that riparian owners possess an exclusive right of fishery in the Connecticut River above tide despite the public's "easement in the river, as a highway, for passing and repassing with every kind of water-craft").
This common law distinction between tidal waters in which the public has rights of property, navigation, and fishing, and non-tidal rivers in which the private riparian owner holds rights of property and fishing subject only to a public right of transportation where boatable, had been adopted not only by Maryland and Virginia by the time Angell wrote his water law treatise, see id. at 608, § 547 (citing Browne v. Kennedy, 5 H. & J. 195 (1821); Hays v. Bowman, 22 Va. 417 (1823); Mead v. Haynes, 24 Va. 33 (1824)), but also throughout the country:
An arm of the sea is where the sea or tide "flows and reflows." Sir Henry Constable's Case, 5 Co. 107. A navigable river is also considered as an arm of the sea; but there is an important distinction between the legal and popular import of the term "navigable," as applied to rivers; and no part of the law is more clearly settled, than that to determine, whether or not a river is navigable, a regard must be had to the "ebbing and flowing of the tide." For those streams of water which are of public use for inland navigation, above the line to which the tide ordinarily flows, are strictly "not navigable," though they are public highways, for the purpose of transportation; although the water is fresh at full tide, yet the river is still an arm of the sea if it "flows and reflows." This has never been controverted in England, and is well settled in this country. Angell on Tide Waters, ch. 4, p. 60 (ed. of 1826), where will be found collected all the English and American authorities upon the subject.
Peyroux v. Howard, 32 U.S. 324, 331 (1833).
Thus, the public right to use non-tidal rivers for transportation is the sole permissible burden allowed with respect to the riparian owner's property. In recognition of these well-settled principles, the Circuit Court for Washington County observed in Middlekauff that applying the Compact to the non-tidal portion of the Potomac would impose additional burdens in violation of the riparian proprietor's exclusive private property rights. The "privilege of making and carrying out wharfs and other improvements, so as not to obstruct or injure the navigation of the river," is a private property right that is traditionally referred to as a "riparian right." See, e.g., Dutton v. Strong, 66 U.S. 23, 31-32 (1861) (riparian right to construct wharves and piers limited so as not to obstruct "the paramount right of navigation"). Such a right could not be created by the Compact for Virginians with respect to the non-navigable portion of the Potomac. Rather, Maryland citizens who owned property adjacent to the non-tidal Potomac had exclusive property rights to the river's bank on the Virginia shore because, "[b]y the common law, the proprietors of estates bounded by rivers not navigable, or, as they are often called, private rivers, not only have the right of fishing, but the property in the soil itself. . . ." Browne v. Kennedy, 5 H. & J. at 205.
In recognition of this settled law, the circuit court in Middlekauff stated that "[w]hen the compact of 1785 was entered into, there was therefore vested in [Maryland] riparian owners and owners of the soil covered by the non-navigable waters of the Potomac a right of fishing not subject to the common right of other citizens." Ex. 86 at 4. Thus, extending the Compact to the non-tidal portion of the Potomac, which includes these non-navigable waters, "would impose a burden upon the rights owned by owners of the soil and riparian owners not theretofore borne by them, by giving a common right to the citizens of Maryland and Virginia what was theretofore the exclusive property of riparian owners and owners of the soil." Id. at 4-5. As the circuit court concluded, "[s]uch could never have been the intention of the contracting parties, nor would they have had the right nor the power so to do." Id. at 5. That conclusion was correct and in accord with the established principle prohibiting the "construction of a treaty which would impair that security to private property which the laws and usages of nations would without express stipulation have conferred . . . ." Strother v. Lucas, 37 U.S. 410, 438 (1838).
Maryland did not intend to violate the private property rights of its own citizens when it formed the Compact with Virginia, as "[a] cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him; lands he had previously granted, were not his to cede." United States v. Percheman, 32 U.S. 51, 87 (1833). Maryland was aware at the time the Compact was formed that the non-tidal portion of the Potomac was non-navigable, as just months before signing the Compact Maryland enacted the Potomac Company legislation for the express purpose of "opening and extending the navigation of the river Patowmak" "from tide water to the highest place practicable on the north branch. . . ." Maryland was also aware of the impact that this legislation would have on private property rights, as the Potomac Company legislation set forth specific provisions for condemning and paying for property "on both sides of the river" to cut canals and erect locks and toll buildings. Ex. 70, §§ XI and XII. Yet, no similar provisions are contained in the Compact for compensating Maryland citizens over whose private property wharves or other improvements would be built by Virginians. It simply makes no sense to believe that Maryland would have intended the Compact to authorize such an encroachment on private property in the non-tidal portion of the Potomac, with no compensation, when such an invasion of private property rights would be directly contrary to what the circuit court in Middlekauff referred to as "the common law of England, which is likewise the law of this State." Ex. 86 at 4.
The Compact's drafters simply did not mean for that document to apply to the non-tidal Potomac. All of the courts to have addressed the question have reached the same conclusion, and they could have reached no other conclusion in light of the settled principles discussed above. For these reasons, the Compact of 1785 does not apply to the non-tidal portion of the Potomac River.
II. NEITHER THE BLACK JENKINS AWARD NOR MARYLAND v. WEST VIRGINIA CONFIRMS ANY RIGHTS OTHER THAN THOSE SET FORTH IN THE COMPACT.
Virginia's reliance on the fourth clause of the Black Jenkins Award of 1877 is likewise doomed by the Commonwealth's flawed interpretation of the Compact. That clause provides that "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 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 seventeen hundred and eighty-five." (App. 48a-49a.) There are several defects in Virginia's argument that this clause "reconfirmed" its rights under the Compact.
First, the "plain meaning" (Br. at 60) of the clause is unavailing because it does not purport to create any rights at all but rather merely incorporates the rights recognized in the Compact by providing that Virginia's use of the Potomac shall be exercised "agreeably to the compact," which, as pointed out above, is limited to the tidal portion of the Potomac. Second, the arbitrators' purported disagreement with Chancellor Bland's interpretation is entitled to no weight at all because the Compact had nothing to do with the boundary determination that the arbitrators were charged with making. Indeed, in passing legislation authorizing the designation of arbitrators to ascertain and fix the boundary between the two States, Virginia specifically included in the legislation a provision stating "that neither of the said states, nor the citizens thereof, shall, by the decision of the said arbitrators, be deprived of any of the rights and privileges enumerated and set forth in the compact between them entered into in the year seventeen hundred and eighty-five, but that the same shall remain to and be enjoyed by the said states and the citizens thereof forever." 1874 Acts of Virginia, Ch. 135, Ex. 92. See also 1874 Md. Laws, Ch. 247 (same). Thus, as the arbitrators conceded, "[w]e are not authority for the construction of this compact, because nothing which concerns it is submitted to us." (App. 29a.)(84)
The arbitration proceeding was not even focused on issues relating to the non-tidal applicability of the Compact. Rather, the arbitration was the culmination of an ongoing dispute between Maryland and Virginia concerning the right to take oysters from waters located on Maryland's Eastern Shore such as Pocomoke Sound, and so, as Virginia points out, "commissioners appointed by both States met on numerous occasions and took depositions of various residents in the disputed lands on the Eastern Shore." Br. at 30. No similar evidence was introduced with respect to any portion of the Potomac River other than documents Virginia produced in an unsuccessful effort to substantiate its newly made contention - which the arbitrators rejected - that the boundary between the two States should be drawn either on the north bank of the Maryland side or in the middle of the Potomac. (App. 17-19a; 30a-31a.)
Third, while Virginia argues that "Maryland conceded during the arbitration that Virginia had the right to construct improvements beyond the low-water at all points along the River," Br. at 61 (emphasis in original), a plain reading of the historical documents in that proceeding shows that Maryland merely offered this as a "compromise line" in settlement of the dispute that the arbitrators were authorized to settle. See Abstract of Maryland Statement, Journal of Proceedings of the Joint Commissioners to Adjust the Boundary Line of the States of Maryland and Virginia, Ex. 88, at 42.(85) Indeed, in concluding his August 26, 1876, argument before the arbitrators, counsel for Maryland, Pinkney Whyte, stated "we submit that Maryland has maintained conclusively, at the very least, a line of this character. . . ." Ex. 95 at 36 (emphasis in original). The Maryland references to the Compact that Virginia relies upon (Br. at 62-63) merely underscore that the rights Maryland recognized were those addressed in the Compact in 1785, i.e., rights relating to the tidal portion of the Potomac.
Thus, these "concessions" were not concessions at all. On the contrary, as its own actions have subsequently demonstrated, Virginia did not then and has not since relied on these statements but rather has recognized that it does not have authority over wharves and other improvements that extend beyond the low water mark at any point. Addressing the question whether a Virginia ordinance prohibiting the sale of beer on Sunday applied to an individual making such sales on a pier built from the Virginia shore over the Potomac, Virginia's Attorney General stated his "opinion that that portion of a pier which is beyond the low-water mark on the southern shores of the Potomac River is in the State of Maryland and is not subject to the laws of the Commonwealth." Ex. 90. Similarly, after the Virginia Governor received from the Commonwealth's Attorney General the same response to the question whether "the jurisdiction of the State of Virginia to enforce its criminal laws respecting slot machines extend[s] to offenses alleged to have occurred on the Potomac River," Ex. 91, Maryland enacted legislation "upon the formal request of the Governor of Virginia" that rendered unlawful the operation of slot machines and other gaming devices by, among others, "the owners and operators of taverns and restaurants located on piers or wharves extending from the Virginia shore out into the Potomac River." Miedzinski v. Landman, 218 Md. 3, 145 A.2d 220, 222 (1958). Virginia's own history refutes the arguments it now advances.
Nor does Maryland v. West Virginia, 217 U.S. 577 (1910), or the position that Maryland took in that case, cause Maryland to be "estopped from asserting that Virginia's compact rights are inapplicable above tidewater." Br. at 67. Maryland argued in that case, as it does here, that the "Compact 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. . . ." Brief for the State of Maryland, Maryland v. West Virginia, No. 1, October Term, 1909, at 39 (emphasis in original). West Virginia, in contrast, argued that the Compact applied to the entire Potomac River that separated the two States. Thus, while Maryland's view, as set forth in its brief, was that the Compact was inapplicable to the non-navigable portion of the Potomac, Maryland proposed a decree, which the Supreme Court adopted, stating that the decree "shall not be construed as abrogating or setting aside the compact" and that the Compact bound West Virginia and Maryland "so far as it is applicable to that part of the Potomac river which extends along the border of said states. . . ." Maryland v. West Virginia, 217 U.S. at 585. Virginia is incorrect, therefore, that Maryland has taken any contrary prior position concerning the applicability of the Compact that bars it from arguing that the Compact is limited to the tidal portion of the Potomac.
Nor did the Supreme Court in Maryland v. West Virginia hold that the Compact applies to the entire course of the Potomac as Virginia suggests. While the Court agreed with the arbitrators that the privileges reserved in the compact to the citizens of Maryland and Virginia on the shores of the Potomac "are inconsistent with the claim that the Maryland boundary on the south side of the Potomac river shall extend to high-water mark," 217 U.S. at 580, the Court never held that the Compact applies above tide-water but rather merely used the Compact as evidence of where Maryland thought the boundary was in establishing "a uniform southern boundary along Virginia and West Virginia, at low-water mark on the south bank of the Potomac river. . . ." Id. at 581. The Court did not hold that the Compact applies to the non-tidal portion of the river because that issue was not before it.
III. VIRGINIA IS BARRED BY THE DOCTRINE OF ACQUIESCENCE AND PRESCRIPTION FROM CLAIMING THAT THE COMPACT APPLIES ABOVE TIDEWATER.
"The rule, long settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority." Michigan v. Wisconsin, 270 U.S. 295, 308 (1926). Applying this rule in Ohio v. Kentucky, 410 U.S. 641 (1973), in rejecting Ohio's motion for leave to add a claim against Kentucky, the Court held that "Ohio for over 150 years has failed to assert, through proceedings available in this Court, the claim it now would raise in the face of Kentucky's legislative and judicial assertions of sovereignty over the river." Id. at 650 (footnotes omitted). See also California v. Nevada, 447 U.S. 125, 132 (1980) ("If Nevada felt that those [boundary] lines were inaccurate and operated to deprive it of territory lawfully within it[s] jurisdiction the time to object was when the surveys were conducted, not a century later."). The same rule bars Virginia from claiming that the Compact applies above tidewater.
In three decisions, the first of which dates back more than 170 years, Maryland courts have held that the Compact was entered into to resolve the two States' competing claims to the navigable tidewater and its rich fisheries, and did not apply to the non-navigable, non-tidal portion of the Potomac. See Binney's Case, 2 Bland 99 (Md. Ch. 1829); United States v. Great Falls Manufacturing Co., Circuit Court for Montgomery County (Ex. 85); Middlekauff v. LeCompte, 149 Md. 621, 132 A. 48 (1926). In a fourth case, the Virginia Attorney General argued without success before Maryland's highest court that the Compact applied above tide-water and prohibited Maryland from taxing a Virginia owner of a bridge that spanned the non-tidal portion of the Potomac. See O'Neal v. Virginia and Maryland Bridge Co. at Shepherdstown, 18 Md. 1 (1861). Rather than contest any of these decisions, as it could have by either intervening or seeking to invoke this Court's original jurisdiction, Virginia entered into another Compact with Maryland in 1958 that replaced the 1785 Compact, limited itself to the tidewater portions of the Potomac (App. 60a, 66a), and carried forward prior cases construing Article VII of the 1785 Compact. (App. 75a.)
Virginia's failure to challenge these decisions is significant, particularly in light of the Virginia legislature's reaction to the decision in Great Falls Manufacturing Co., in which Judge Brewer of the Circuit Court for Montgomery County held that the owner of a tract of land on the Virginia side of the non-tidal Potomac "has no riparian rights on the river Potomac." Ex. 85 at 9. As set forth in a Resolution adopted on March 26, 1860, a committee appointed by the Virginia legislature to review the decision and recommend an appropriate course of action declared "this decision as affecting the rights of the citizens of Virginia to a serious extent," and stated that the decision, "if acquiesced in by Virginia," would be "destructive of all manufacturing privileges upon said river from the Great falls to its source (an extent of more than two hundred miles)," and "would materially affect the boundaries claimed by Virginia, and which she is now seeking to establish, by deputing a commissioner to England in search of the evidence thereof." Ex. 93. "Your committee further think that an acquiescence upon the part of Virginia in said decision, would impose upon her a submission to a violation of rights on the Potomac river, solemnly received by the compact of seventeen hundred and eighty-five, and asserted emphatically in the constitution." Id. The Virginia legislature accordingly authorized the Virginia governor to exercise "his discretion" and "cause the State of Virginia to be represented by the attorney general in the trial of the Washington aqueduct company against the Great falls manufacturing company, whether the same shall be reheard by the same court that has pronounced a decision therein, or before any other legal tribunal." Id.
Judge Brewer's decision in Great Falls Manufacturing Co. that the Compact does not apply above tidewater has never been reversed, nor have any records been located substantiating any efforts made by Virginia to intervene in that litigation or otherwise protect the rights of Virginians who owned property adjacent to the non-tidal portion of the Potomac. The Virginia Attorney General did appear, however, in a different case decided by the Maryland Court of Appeals the following year in which he argued that the Compact applied in the non-tidal portion of the Potomac River and that Maryland could not tax a bridge over that part of the Potomac. See O'Neal v. Virginia and Maryland Bridge Co. at Shepherdstown, 18 Md. 1 (1861). The court upheld Maryland's right to impose the challenged tax, and Virginia did not seek Supreme Court review of the case.
Thus, notwithstanding that several Maryland courts since 1829 have construed the 1785 Compact to be inapplicable to the non-tidal portion of the Potomac, Virginia has never initiated any proceedings in this Court challenging those interpretations. Indeed, despite the unequivocal holding of the Maryland Court of Appeals in Middlekauff v. LeCompte that Maryland could unilaterally enact a law without Virginia's consent that prohibited fish pots "in any of the waters of this State above a point where the tide ebbs and flows," 149 Md. at 622, 132 A. at 48, the sole response of the Virginia Attorney General was to send a letter the following year to the Maryland Conservation Commissioner stating that the activity deemed unlawful by this legislation was legal under prior legislation that both States enacted concurrently, and that neither this prior legislation nor Article VIII of the Compact was limited to the navigable portion of the Potomac. See June 23, 1927 letter to Commissioner Swepson Earle, Ex. 94. Virginia did not seek Supreme Court intervention or take any other steps to protect its citizens from a law that authorized the Maryland game warden to seize and destroy property owned and used by Virginians in the non-tidal portion of the Potomac.(86)
As the Supreme Court has recognized, "inaction alone may constitute acquiescence when it continues for a sufficiently long period of time." Georgia v. South Carolina, 497 U.S. 376, 393 (1990). Even if the Court were to consider in isolation the Maryland Court of Appeals' decision in Middlekauff, Virginia's seventy-year acquiescence in the Court of Appeals' interpretation of the Compact bars it from advancing the argument it now seeks to raise. See, e.g., Michigan v. Wisconsin, 270 U.S. at 307 (finding acquiescence when "for a period of more than 60 years [Michigan] stood by without objection, with full knowledge of the possession, acts of dominion, and claim and exercise of jurisdiction on the part of the state of Wisconsin over the area in question."). Middlekauff does not stand alone, however, but rather represents only the most recent of a line of judicial decisions dating back more than 170 years in which courts have rejected the precise argument Virginia makes today. Virginia was aware of those decisions and the results that flowed from them, but made no effort to seek Supreme Court review of that question until this case. It is too late now to argue that the Compact applies to the non-tidal portion of the Potomac.
For the reasons stated, the Special Master should issue a Report and Recommendation denying Virginia's motion for partial summary judgment and concluding that the Compact of 1785 does not apply to the non-tidal portion of the Potomac River.
Respectfully submitted,
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
Carmen M. Shepard
Deputy Attorney General
Maureen M. Dove
Andrew H. Baida*
Adam D. Snyder
M. Rosewin Sweeney
Randolph S. Sergent
Assistant Attorneys General
200 St. Paul Place
Baltimore, Maryland 21202
(410) 576-6318
Attorneys for Defendant
*Counsel of Record State of Maryland
I HEREBY CERTIFY that on this 6th day of February, 2001, I sent by overnight delivery copies of the foregoing papers to Frederick S. Fisher, Assistant Attorney General, 900 East Main Street, Richmond, Virginia 23219; Christopher D. Man, Esq., Arnold & Porter, 555 12th Street N.W., Washington, D.C. 20004; E. Duncan Getchell, Jr., Esq., McGuire Woods LLP, One James Center, 901 East Cary Street, Richmond, Virginia 23219 and Stuart A. Raphael, Esq., Hunton & Williams, 1751 Pinnacle Drive, Suite 1700, McLean, Virginia.
_______________________
Andrew H. Baida
1. George Calvert, Cecilius's father and a devout Catholic, had previously sought land within "your Majesty's dominion of Virginia" but was rebuffed by Virginia Governor John Pott and others who entreated the King to allow "noe papists" to "settle their abode amongst us." Browne, ed., Proceedings of the Council of Maryland, 1636-1667 at 16 (Aug. 19, 1629, Letter from George Calvert to King Charles I), 17 (Nov. 30, 1629 Letter from Gov. John Pott, Samuel Mathews, Roger Smith, and William Claybourne to the King in Council).
2. Cecil Calvert, "Coppy of the Lords Certificate to his Matie concerning the limits of my grant" (June 5, 1632), Maryland State Archives Special Collections, MSA SC 1546-4.
3. Id.
4. Proceedings of the Council of Maryland, 1636-67 at 17-19 (Considerations upon the patent to Lord Baltimore, 1632).
5. Id. at 22 (Order of the Lords Commrs. For Foreign Plantation, July 3, 1633).
6. Morris v. United States, 174 U.S. 196, 223-24 (1899); Maryland v. West Virginia, 217 U.S. 1, 28 (1910).
7. See, e.g., Morris, 174 U.S. at 225 (noting that Virginia had never made a proprietary claim to the Northern Neck; "[h]er claim appears to have been that of political jurisdiction").
8. 1776 Va. Const. Art. 21, reprinted in Julian P. Boyd, ed., Papers of Thomas Jefferson, vol. 1, at 347-365 (Princeton, 1950) (hereinafter Jefferson Papers) (Ex. 19).
9. Lucas & Deaver, eds., Proceedings of the Conventions of the Province of Maryland 292-93 (Baltimore, 1836) (Oct. 30, 1776) (Ex. 20) (hereinafter Maryland Convention Proceedings).
10. Virginia suggests in its brief that the cession made in its Constitution of 1776 was somehow not effective because Maryland "rejected Virginia's action and asserted that the territory within Maryland's charter was not Virginia's to cede." Brief (Br.) at 9. This suggestion was not shared by anyone at the time. See, e.g., Madison to Jefferson (Mar. 16, 1784), reprinted in Robert A. Rutland, The Papers of James Madison, Vol. 8, at 6 (Ex. 34) (hereinafter Madison Papers)(lamenting Virginia's "entire relinquishment of the Jurisdiction of" the Potomac River in her Constitution and that "[t]he jurisdiction of half of the rivers ought to have been expressly reserved"); 1831 Md. Laws Reso. 128 ("It is therefore clear that the ground taken by Virginia, in the twenty-first article of her Constitution was not tenable, except as a recognition of the Maryland claim.").
11. The discussion that follows is drawn from, and more thoroughly set forth in, the affidavit of Prof. Ronald Hoffman, Ph.D, included as Exhibit A in a separate volume of historical materials submitted with this brief. The primary sources on which Prof. Hoffman relies are included in the volume of historical materials and are not repeated here unless quoted.
12. Journal of the House of Delegates of the Commonwealth of Virginia, October Sess., 1777 at 65 (Dec. 9, 1777) (Richmond, 1927) (Ex. 25) (hereinafter Journal of the House of Delegates of Virginia).
13. Virginia refused to meet with Maryland so long as Maryland declined to ratify the Articles of Confederation. Maryland, for its part, refused to ratify the Articles so long as Virginia maintained its claim (under the nullified 1609 charter) to the vast western lands. Hoffman, Ex. A, at 30-31. See also Maryland Convention Proceedings at 293 (resolving unanimously "[t]hat 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 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 parceled out at proper times into convenient, free and independent governments.").
14. 8 Madison Papers at 8 (Madison to Jefferson, March 16, 1784) (Ex. 34).
15. Id. at 10.
16. 8 Madison Papers at 20 (Madison to Jefferson, Apr. 25, 1784) (Ex. 37).
17. 7 Jefferson Papers at 119 (Jefferson to Madison, Apr. 25, 1784) (Ex. 36)
18. Journal of the House of Delegates of Virginia (June 28, 1774) (Ex. 39).
19. 7 Jefferson Papers at 25 (Jefferson to Washington, Mar. 15, 1784) (Ex. 33)
20. Washington to Carter (c. Aug. 1754), reprinted in, W. W. Abbot, et al., eds., The Papers of George Washington: Colonial Series, Vol. 1, at 196-97 (Charlottesville, Va., 1992-present) (Ex. 1) (hereinafter Washington Colonial Papers). Maryland Governor Horatio Sharpe, who floated down the river in January 1755 was less sanguine about the non-tidal Potomac's potential for transportation. See Sharpe to Braddock (Feb. 9, 1755), reprinted in Correspondence of Horatio Sharpe, vol. 1, 6 Archives of Maryland at 168 (Ex. 2) (stating that he and Sir John St. Clair had set off to "explore Potowmack River which proved from the number of shoals & falls to be of no Service in transporting either Artillery or other Baggage"); id. at 186 (Ex. 3) (Sharpe to Lord Baltimore, Mar. 12, 1755, noting that he and St. Clair "came down Potowmack by water for the Distance of about 250 Miles, the many Falls & Shoals in that River will we find render the conveyance of Artillery & other Stores to the Camp by water impracticable").
21. 8 Washington Colonial Papers at 358-59 (Washington to Johnson, July 20, 1770) (Ex. 9).
22. 8 Hening's Statutes at Large 570-79 (1821) (Ex. 10).
23. 9 Washington Colonial Papers 40-42 (Johnson to Washington, May 10, 1772) (Ex. 11).
24. Washington to Jefferson (Mar. 29, 1784), reprinted in W. W. Abbot, et al., eds., The Papers of George Washington: Confederation Series, Vol. 1, at 238-39 (Ex. 35) (Charlottesville, Va., 1992-present) (hereinafter Washington Confederation Papers).
25. 8 Madison Papers at 20 (Madison to Jefferson, Apr. 25, 1784) (Ex. 37). The italics indicate words that were written in code in the original. Id. at 21 (editorial note).
26. Id.
27. 2 Washington Confederation Papers at 89, 95-96 (Washington to Harrison, Oct. 10, 1784) (Ex. 43). Rumsey's mechanical boat is often confused with Rumsey's later invention, the steam boat. While the steamboat proved to be invaluable to inland navigation on the western rivers, Rumsey's mechanical boat did not. The mechanical boat actually crawled on the river bed, pulling itself upriver until, almost invariably, it was smashed by the current. Hoffman, Ex. A, at 60-61. A modified full-scale version of the boat was never successfully tested, id., although Washington had seen a model of the boat in 1784, prompting him to write that it "might be turned to the greatest possible utility in inland Navigation." John C. Fitzpatrick, The Diaries of George Washington, Vol. 2 at 283 (1925) (hereinafter Washington Diaries) (Ex. 62).
28. 2 Washington Confederation Papers 93-96 (Washington to Harrison, Oct. 10, 1784) (Ex. 43).
29. Id. at 102-103 (Plater to Washington, Oct. 20, 1784) (Ex. 44)
30. Journal of the House of Delegates of Virignia, Oct. Sess., 1784 at 58, 61, 63 (Ex. 49).
31. 1784 Md. Laws Ch. 33 ("An Act for Opening and Extending the Navigation of the Potowmack River") (Ex. 50).
32. 2 Washington Confederation Papers at 231-46 (Washington to Madison, Dec. 28, 1784) (Ex. 53).
33. 11 Hening's Statutes at Large, Ch. 82, at 510-25 (Ex. 56).
34. 8 Madison Papers at 209 (Madison to Washington, Jan. 1, 1785) (Ex. 55).
35. Id. at 225 (Madison to Jefferson. Jan. 9, 1785) (Ex. 57).
36. Votes and Proceedings of the Maryland House of Delegates, November Session, 1784, at 103 (Ex. 59).
37. Id. at 113.
38. 4 Washington Diaries 107-08 (Mar. 24-25, 1785) (Ex. 62). Thomas Johnson, the only one of Maryland's four commissioners who had not also been appointed in 1777, did not attend reportedly having found it "inconvenient to appear in Alexandria at the appointed time." Edward S. Delaplaine, The Life of Thomas Johnson 398 (New York, 1927).
39. See supra note 19 and accompanying text.
40. Votes and Proceedings of the Maryland House of Delegates, Nov. Sess., 1784. at 103 (Ex. 59).
41. Letter from Maryland and Virginia Commissioners to the President of the Executive Council of the Commonwealth of Pennsylvania (Mar. 28, 1785) (Ex. 64), reprinted in Robert A. Rutland, The Papers of George Mason, vol.2 at 822-23 (hereinafter Mason Papers).
42. 8 Madison Papers at 209 (Madison to Jefferson, Jan. 1, 1785) (Ex. 55).
43. 8 Madison Papers to 225 (Madison to Jefferson, Jan. 9, 1785) (Ex. 57).
44. 2 Mason Papers at 814 (editorial note).
45. Journal of the House of Delegates of Virginia, October 1785, 118-19; 1784-85 Va. Acts c. 43, reprinted in 11 Hening's Statutes at Large 510 (1823).
46. Votes and Proceedings, Maryland Senate, November 1785, 8; Votes and Proceedings, Maryland House of Delegates, November 1785, 20.
47. The discussion that follows is drawn from, and more thoroughly set forth in, the affidavit of Douglas R. Littlefield, Ph.D, included as Exhibit B in a separate volume of historical materials submitted with this brief. The primary sources on which Dr. Littlefield relies are included in the volume of historical materials and are not repeated here unless quoted.
48. The history of the legislation concerning the Potomac Company's operation is marked by a series of acts, passed by both states, extending the time by which the works were to be finished. See, e.g., 1794 Md. Laws Ch. 29.
49. Metcalfe, Waters of the Potowmack, at 118.
50. James Mason to James K. Smith (Aug. 7, 1820) (Ex. 80).
51. Virginia did not, as the Commonwealth asserts in its brief, claim to the north shore of the Potomac as of 1785. Br. at 29. That claim, as is discussed below, was not developed until after 1860 and was abandoned in the 1877 arbitration.
52. Report of the Maryland Commissioners to the General Assembly of Maryland (Jan. Sess. 1872), Ex. 89, at 5.
53. See 1859-60 Acts of the General Assembly of Virginia, Reso. 20 (Mar. 26, 1860), reprinted in Williams' Index to Enrolled Bills, 1776-1910 at 702. (Ex. 93).
54. Whealton, Louis N., The Maryland and Virginia boundary Controversy (1668-1894), at 37 n.71; 39.
55. Cites to "App. __" are to the appendix filed in support of Virginia's motion for leave to file a bill of complaint.
56. Maryland v. West Virginia, 217 U.S. 1, 26 (1910).
57. See generally id. at 28-38 (describing the history of the dispute).
58. Md. Gov. Sharpe to Lord Fairfax (c. 1753), reprinted in Browne, ed., Correspondence of Horatio Sharpe, vol. 1, 6 Archives of Maryland at 6 (Baltimore, 1888); Lord Fairfax to Gov. Sharpe (Sep. 24, 1753), id. at 7.
59. Brief on Behalf of the State of Maryland, Maryland v. West Virginia, No.1, Orig. (Oct. 19, 1909) at 7.
60. Maryland v. West Virginia, 217 U.S. at 32-33.
61. 1788 Md. Laws Ch. 44; Maryland v. West Virginia, 217 U.S. at 33-34.
62. 1831 Md. Laws Reso. 128, at 14 (describing history of legislative action).
63. Resolution, Jan. 26, 1802, reprinted in The Statutes at Large of Virginia, 1792-1806, Vol. II (Samuel Shepard, Ed., 1835)(64)
64. 1831 Md. Laws Reso. 128, at 14 (describing history of legislative action).
65. Maryland v. West Virginia, 217 U.S. at 31-32.
66. 1831 Md. Laws Reso. 126.
67. 1831 Md. Laws Reso. 128 at 3.
68. 1833 Md. Laws Reso. 80; Maryland v. West Virginia, 217 U.S. at 32.
69. 1834 Md. Laws Reso. 99.
70. Letter from Edward B. Mathews and Wilbur A. Nelson to Virginia Gov. Byrd and Maryland Gov. Ritchie (Dec. 21, 1927) (delivering survey of Potomac boundary line between Smith's Point and Jones Point, in accordance with joint instructions dated November 7, 1927).
71. 1957 Md. Laws Ch. 766 (recital); Report of the Commissioners to the Governors of Maryland and Virginia, The Potomac River Compact of 1958 (Dec. 20, 1958) (App. 55a) (describing depletion of oyster bars).
72. 1949 Md. Laws Ch. 484.
73. 1957 Md. Laws Ch. 766, 770.
74. 1958 Md. Laws. Ch. 269, codified at Md. Code Ann., Nat. Res. Art. § 4-306; 1959 Va. Acts Ch. 28.
75. See Madison to Jefferson (Mar. 16, 1784) (Ex. 34).
76. Madison was not one of the Virginia commissioners appointed in 1777. He was twenty-six years old at the time and had not yet entered Virginia politics.
77. See Madison to Jefferson (Apr. 25, 1784) (Ex. 37).
78. As Virginia notes in its Brief, Stone and Chase sat on the committee that crafted the Potomac Company legislation (Br. at 19), Jenifer was among the initial investors in the Potomac Company (Br. at 22), and Johnson was a promoter of the scheme from early on.
79. See also Hoffman, Ex. A, at 58-63.
80. See, e.g., Annals of Cong., 8th Cong., 2nd Sess. at 715 (Virginia representative John Randolph, stating that as "[Virginia's] limits did not extend beyond high water mark on the western bank of the Potomac. Her right of highway on the river was a natural right acknowledged and secured by convention with Maryland. Her civil jurisdiction over its water was a conventional right, entirely derived from compact with that State, was a jurisdiction not within her limits"), 717 (Randolph stating that Virginia's "concurrent jurisdiction over the Potomac" was "confessedly without her limits"), 719 (Virginia representative Christopher Clark acknowledging that "[i]t had been stated, and generally agreed to, and he supposed was correct, that the State of Maryland, previous to her compact with Virginia, rightfully claimed the whole river Potomac to the high-water mark on the western bank"), 721 (Virginia representative Joseph H. Nicholson arguing that "[p]revious to the compact between Virginia and Maryland, the latter claimed the river Potomac as its exclusive property" and that "Virginia had no power to make the cession of the Potomac [to the District], because she had not the jurisdiction over it, and could not grant more than she possessed"); 800 (Mr. John B.C. Lucas, representative from Pennsylvania, stating that "it appears, from the statements made in the course of the argument, that the Potomac was within the charter bounds of Maryland, and not within the charter bounds of Virginia," Maryland was in 1789 "absolute proprietor of the soil" within the Potomac) (Ex. 84).
81. Maryland's authority over this territory was substantial at the time it formed the Compact with Virginia, as "the various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic coast conveyed to the grantees both the property described and the powers of government, including the property and the dominion of lands under tide waters." Morris v. United States, 174 U.S. at 226-27. Subsequently, "upon the American Revolution all the rights of the crown and of parliament vested in the several states," id. at 227, and so "the powers of government" belonged to each State "when it became an independent sovereignty." Den v. The Association of the Jersey Co., 56 U.S. 426, 433 (1853). Maryland acquired these powers in this manner, as none of the royal charters "differed materially . . . in the terms in which the bays, rivers and arms of the sea, and the soils under them, were conveyed to the grantees." Martin v. Waddell, 41 U.S. 367, 414 (1842). Under those terms, "the dominion and propriety in the navigable waters, and in the soils under them, passed as part of the prerogative rights annexed to the political powers conferred on the patentee . . . ." Morris v. United States, 174 U.S. at 227.
82. American courts applied the English common law "ebb and flow of the tide" test to determine navigability until 1851. Compare The Thomas Jefferson, 23 U.S. 428 (1825) with The Genessee Chief v. Fitzhugh, 53 U.S. at 453-57; The Daniel Ball, 77 U.S. 557, 563 (1870); Barney v. Keokuk, 94 U.S. at 337-38.
83. The first edition of Angell on Watercourses appeared in 1824, two years before his work Angell on Tide Waters. See Angell on Tide Waters at Preface (Boston 1826) (stating in 1826 that his Watercourses treatise was published "nearly two years since").
84. Indeed, the Virginia Commissioners in their Final Report to the Governor of Virginia questioned whether the Compact had any continuing viability, stating that they "omitted to notice in this report what is called the Compact between the two states in the year 1785" because, among other reasons, "it was but a simple expedient to regulate commerce between the two states, and because, in that respect, if not in all respects, it has been superseded by the adoption of the constitution of the United States." Ex. 87 at 29.
85. The compromise offer stemmed from the aggressive posture that the Virginia commissioners took early on in the proceedings, claiming that "their investigations, and the maps and documents in their possession showed that Virginia was entitled to the whole Potomac River to its northern shore." Report of the Maryland Commissioners to the General Assembly of Maryland (Jan. Sess. 1872), Ex. 89, at 4. "To this it was replied, on behalf of the Maryland Commissioners, that their authority did not extend to any question affecting the line of the Potomac river, but was restricted to settling and adjusting the line of division upon the Eastern Shore of the bay," and "that Maryland was not aware that any other question was in issue or could be raised. . . ." Id. at 5. "The Virginia Commissioners said that as soon as the State of Maryland shall have authorized its Commissioners to settle and adjust the entire boundary line between the two States, they would be glad to meet the Maryland Commissioners . . . and then they would fairly consider the maps, documents and historical records which might be submitted in support of the line which the Maryland Commissioners should suggest as the true line, or a fair and equitable compromise line." Id. at 8.
86. Nor did West Virginia act on its Attorney General's recommendation - made in the wake of Middlekauff and the opinion the Maryland Attorney General rendered to Commissioner Earle "that residents of Virginia or of West Virginia may not fish in the waters of the Potomac River above Little Falls . . . without first obtaining a license" - to institute "a suit in the Supreme Court of the United States between the states of Maryland and West Virginia for the purpose of restraining and enjoining the officials of Maryland from interfering with the vested rights of citizens of West Virginia under said Compact of 1785." 35 Opinions of the Attorney General of West Virginia 32, 35, 36 (1932).