MEMORANDUM

 

TO: EDWARD C. PAPENFUSE, PhD

FROM: MICHAEL N. SCHLEUPNER, JR.

DATE: NOVEMBER 6, 2000

SUBJECT: OWNERSHIP OF BED OF POTOMAC RIVER

  1. I am Baltimore Agency Counsel for Chicago Title Insurance Company.

  2. One of our Western Maryland agents has been approached by PEPCO to insure its right to use and maintain structures known as dams 4 and 5 located in and across the Potomac River north of Williamsport in Washington County, Maryland. PEPCO seeks title insurance as it prepares to transfer these dams and all of the land used by it for power generation to a newly formed entity pursuant to utility deregulation. These dams were allegedly constructed over 50 years ago by Martinsburg (WV) Power Company, which has since been acquired by PEPCO. Turbines within these dams produce electric power which is distributed from a plant in WV to customers in both states.

  3. We assume that title to bed of the river, all of which (in this area) is located in the State of Maryland, remains vested in the state by virtue of the royal charter issued to the Calverts. We suspect that these dams were built on state land pursuant to an easement or a license of some sort from the state. However, our agent’s 60-year examination of the Land Records of Washington County discloses no grant of an easement to either Martinsburg Power or PEPCO. We are beginning to wonder if these dams were constructed pursuant to a special act of the General Assembly. What we do know is that PEPCO doesn’t own any land adjoining the dam on the Maryland side (this land is owned by the U.S. Park Service as part of the C & O Canal).

  4. Despite our assumption of title in the state, we remain perplexed by the issue of fee simple title to the bed of the river under these dams. For example, we are concerned about a possible claim by the U.S. government to title to the riverbed by virtue of its ownership of the land along the north shore of the river. Quite frankly, we are used to dealing with title issues along that portion of the Potomac below Great Falls which is subject to the ebb and flow of the tide but have no experience with riparian title issues in the upper reaches of the river which appears to be fed by fresh water streams around Cumberland.

  5. It would be greatly appreciated if you could share with me your understanding with regard to title to the riverbed north of Williamsport. Does the state claim title to all of it? Do you know of any unrecorded Deeds of Easement or license agreements relating to these dams? If not, do you know of any obscure act of the General Assembly permitting the construction and operation of these dams?

  6. I can be reached by telephone at (800) 492-1654.