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

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

1839

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• the land covered by the water of the Potomac was jus publicum and therefor not capable of being granted for private use only public use
• Maryland granted the United States the river bed and use of the water by the Act of 1853, Chapter 179, upheld by the Maryland Court of Appeals
• Maryland had granted the land originally to the Potomac Canal Company and its successor the C&O Canal Company by the Act of 1784, Chapter 33, and the Act of 1823, Chapter 140
• that patenting the river bed could confer no substantial rights and its only effect would be to create conflict with the United States, or the publics right to use the water
• the proposed dam would cut the tract in half, breaking the contiguity of the tract that was necessary according to Land Office rules
• "the law of Maryland having reserved to the public the water flowing over any land granted by patent-in as much therefore as all or nearly all the land sought to be patented in this certificate is covered by the waters of the Potomac River the right of the pubglic cannot be preserved except by a denial of the patent, or if granted that patent should expressly upon its face reserve the water"
• the U.S. has the right to select a site for its dam and until a suitable site is selected no patent should be granted


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

• LAND OFFICE (Caveat Papers) 17. Opinion of the Commissioner of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "Neilsons Desire" Filed Dec 19, 1859, MSA S5-441-3, MdHR 18,020, 1/28/3/4.
• LAND OFFICE (Caveat Papers) 17. Opinion of the Commissioner of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "the Cyclades" Filed Dec 19, 1859, MSA S5-441-3, MdHR 18,020, 1/28/3/4.
• LAND OFFICE (Caveat Papers) 17. Opinion of the Commissioner of the Land Office in the Case of the United States vs. the Great Falls Manufacturing Company Caveat vs. "the Resurvey on the Resurvey on Conn's Island" Filed Dec 19, 1859, MSA S5-441-2, MdHR 18,020, 1/28/3/4.
• Map of the Potomac Dam, Filed Oct 23, 1859

LAND OFFICE (Caveat Record) The United States for the Use of the Washington Aqueduct vs. The Great Falls Manufacturing Company, 1859, Liber 2, Folio 360-410, MSA S7-3, 1/28/4/15. Complete transcript of the case.

March 26 Resolution No. 20- Report of Committee and Resolution in Preference to the Riparian Rights of Virginia Proprietors on the Potomac River. Adopted March 26, 1860, from Acts of the General Assembly of the State of Virginia, Passed in 1859-60, in the Eighty-fourth Year of the Commonwealth. Richmond: William F. Ritchie, Public Printer, 1860.

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

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

June 21 Congress transferred supervision of Potomac waterworks to the Department of Interior. (12 Stat. L., 620)

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

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

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

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

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

Arbitrators Williams and Swan felt the compensations were too much for the first three dams: B, A, and C, respectively, but agreed with the award for Dam D.

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

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

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

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

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

December 4 The appeals of the Land Office's decision in the caveats against the Resurvey on the Resurvey on Conn's Island, the Cyclades, and Neilson's Desire are finally heard by the Maryland Court of Appeals. It is apparent from the initial brief in the case that the appeals were originally entered as one case.

December 11 The Court of Appeals separates the Land Office appeals into two distinct and separate cases. Briefs filed on this date show Case No. 11 relates to the Resurvey on the Resurvey on Conn's Island and Case No. 12 clearly relates to Neilson's Desire.

December 15 Maryland Court of Appeals dismisses the appeal of the United States against Neilson's Desire. Evidence for this comes from the docket entries from the Court of Appeals and the briefs relating to the case. Case No. 12 was dismissed on December 15, 1863. The legal bills show the dismissal of the case relating to Neilson's Desire on December 15, 1863 and the disposition of the caveat against the Resurvey on the Resurvey Conn's Island.  The Land Commissioners opinion relating to Neilson's Desire stood and Neilson's Desire patented to the Great Falls Manufacturing Company (see correspondence relating to inquiries on the disposition of Neilson's Desire in 1877).

"There is some confusion in the numbering of the briefs filed that requires clarification. The original docket number for the case involving all caveats was probably 11, although  the General Docket for 1863, December Term seems not to be extant. The Appellants  filed their combined brief on December 4, 1863, encompassing all the disputed land patents. By December 11, when the Appellees filed their briefs, the case had been separated into no. 11 dealing with Conn's Island, etc., and no. 12 dealing exclusively with Neilson's Desire. As reported in the Sun, on December 15, 1863, when the court
began to hear the case, no. 12 was dismissed, upholding the Commissioner's rejection of the caveat on Neilson's Desire (thus permitting the patent to the water and land under the water encompassed in the patent to stand), while argument commenced on the caveat on Conn's Island, etc., no. 11. The official Appeals and Errors Docket of the Court makes no mention of 11 & 12, but refers instead to docket entries 39 and 40, and the papers in the case were filed accordingly- to complicate matters further, in the 20th century, the briefs marked 12 were filed with briefs marked 11 in the folder for docket entry 39. That the Court of Appeals considered the two separately and upheld  the patent to Neilson's Desire is confirmed by the Decree of the Court of Appeals, December Term 1863, nos. 39, and the Decree transcripts, 39 & 40, 39 being the Conn's Island, etc. appeal, and 40 being the appeal on Neilson's Desire. For copies of the decree see: the recordation of 39 in , COURT OF APPEALS (Decree Record) The United States vs. The Great Falls Manufacturing Company, Dec 1863, Liber GE 3, Folio 229-248, MSA S410-13, MdHR 524, 1/66/12/25. Decree no. 40 is not recorded and only the docket entry noting the dismissal of the appeal, and the transcripts of the caveat papers from the Land Office filed in folder 40, survive. In sum, docket entry 12 = docket entry 40 and docket entry 11 as defined by the court by December 15 = docket entry 39." ecp 3/19/01 [Additional information and commentary available at The United States, Use of the Washington Aqueduct, vs. The Great Falls Manufacturing Company.]

Transcript of evidence and decision reported in:
COURT OF APPEALS (Decree Record) The United States vs. The Great Falls Manufacturing Company, Dec 1863, Liber GE 3, Folio 229-248, MSA S410-13, MdHR 524, 1/66/12/25. Plat for Washington Aquaduct region: page 232a, and Plat for the Resurvey on the Resurvey on Conn's Island: page 230a.

Papers for case 39 and 40 filed in Decrees:
COURT OF APPEALS (Decrees) The United States vs. The Great Falls Manufacturing Company, Dec 1863, Folder 39, MSA S379-279, MdHR 684-304-2, 1/64/7/45.
COURT OF APPEALS (Decrees) The United States vs. The Great Falls Manufacturing Company, Dec 1863, Folder 40, MSA S379-279, MdHR 684-304-2, 1/64/7/45.

Additional information on Caveat hearings available at:
The United States vs. the Great Falls Manufacturing Company Caveat case heard by the Maryland Land Office SC5330-16-302.

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

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

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

On the completion of the dam to Conn's Island

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

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

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

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

December The Aqueduct Dam is completed half-way across the Potomac to Conn's Island.

April 10 The GFMC petitions the United States for $500,000 in damages to its water rights because of dam. The demands were reiterated upon varying technical grounds and various times and was eventually lowered by January 31, 1879 to $143,592, and then $15,692 (the amount eventually awarded in the initial phase of court proceedings).

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

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

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

In a brief filed for the United States by John S. Blair, Assistant Attorney General, the following assertions are made.

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

1. The court of appeals of Maryland, in a proceeding between the parties to the present suit, held that the State of Maryland, by legislative grant, had conferred, in 1853, upon  the United States the soil between the Virginia low-water mark and the medium filum aquae extending from a point above to a point below the falls (21 Md. Rep., p. 119, and pp. 375, 376, 377 record; Baltimore v. McKim, 3 Bl., 453) The riparian right appurtenant to the Toulson tract has thus become res judicata.
2. The court of Maryland had jurisdiction of the res because it was included within the grant to Lord Baltimore in 1632 and because, further, no act of Maryland has ever ceded this jurisdiction and there is nothing to show that Virginia ever claimed it.
The resasoning of Judge Brewer (pp. 345 and 358 of the record) and of Chancellor Bland in Binney's case (2 Bland. Ch. Rep., 126) is conclusive upon this point, and it does not appear that the courts of Virginia have ever held adverse views on the subject.
 
Whatever may have been the diputes between Maryland and Virginia, the jurisdiction of the bed of the river above the Great Falls does not seem to have been one; and it is particularly noticeable that, although the abutting of a dam on the Virginia shore must inevitably impair the riparian rights, if any such existed, of the shore-owners at the falls, the legislature of Virginia, act of 3d March, 1854, (p. 11,) authorizes the purchase of ten acres for that purpose, but makes no provision for compensation to the shore owners for the resulting injuries.

The compact of 1785 between the two States was in violation of the Articles of Confederation, and the position assumed by the arbitrators, that there had been such acts of ownership of the Virginia shores as conferred a title by prescription, is, we think, unsound, because it prescribes against a sovereign State, when that State, by its legislative and judicial departments, asserted in 1863 its title and jurisdiction. Moreover, in the present case there is not only no evidence of plaintiff's actual possession of the Toulson tract, but it is clear from the whole case that it has not used any water on the Virginia shore, or done one act, beyond bringing this suit, in assertion of any right thereto." Brief for Defendants in The Great Falls Power Company v. the United States, Case Files 3243; Case Files for General Jurisdiction Cases; Records of the United States Court of Claims, Record Group 123; National Archives Building, Washington, DC, pages 20-21.

Judge Hunt in his opinion relation to the arbitration

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

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

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

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

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

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

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

January 14 The infamous Benjamin Butler became associated with the company at some point in the early 1880s. He served as the President of the Company and represented the GFMC in several of its many legal wranglings with the United States. In a letter from Assistant Attorney General John Blair to Attorney General on the claims by GFMC's President (Benjamin Butler) claims.

"The Courts of Maryland in carefully considered opinions have held that owners of land on the Virginia shore have no riparian rights whatever, and that under the original grant the State of Maryland extends to low water mark on the Virginia shore. In my opinion the riparian rights of the Great Falls Manufacturing Company are not worth a farthing. But if I am mistaken in this, the controversies between the United States and the Company are eminently proper ones to be disposed of by the Courts, and I recommend the refection of the offers of the Company." Letter from John Blair to the Attorney General, January 14, 1884 in The Great Falls Power Company v. the United States, Case Files 19863; Case Files for General Jurisdiction Cases; Records of the United States Court of Claims, Record Group 123; National Archives Building, Washington, DC.

August 21 In a  petition filed in U.S. Court of Claims, in The Great Falls Manufacturing Company v. The United States, the GFMC asked for $300,000 (RG 205 U.S. Court of Claims, General Jurisdiction case 14446 filed August 21, 1884). There is no more activity on this case until 1889. The activity or lack of activity on the docket is probably a direct result of legal proceedings in the U.S. Circuit Court for the District of Maryland ruled on in 1885, relating to the GFMC's attempt to block the completion of the dam to the Virginia shore (see 1885 below). The GFMC failed to get the injunction and appealed the decision to the Supreme Court. The Supreme Court affirmed the lower court's decision in 1888.

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

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

Aqueduct dam is completed from Conn's Island to the Virginia Shore.

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

During this case, the GFMC argued that its claim settled by a jury similar to how claims were settled in 1858. Notable is the description of the Toulson Tract:

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

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

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

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

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

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

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

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

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

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

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

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

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

March  There are two statements worth noting relating to the riparian rights at the Great Falls that come from correspondence written in March of 1894 and later reported by the Committee on the District of Columbia in 55th Congress, 2d Session. Report No. 478 in 1898. Both statements come from remarks written by Col. G. H. Elliot, Corps of Engineers, dated March 20, 1894.

"    The land taken under the act mainly consisted of a narrow strip extending from the medium filum aquae of the Virginia channel to the western shore of Conn's Island; thence across Conn's Island to the eastern shore; thence to the medium filum aquae of the Maryland channel. The strip did not extend from the medium filum aquae of the Virginia channel to the Virginia shore for the reason (see the plat) that the United States was already, from 1854, a riparian owner at the Virginia end of the propose extension of dam.
    There was also included in the taking a small triangular portion of the bed of the Virginia channel between the medium filum aquae of the channel and the Virginia shore that was not covered by the riparian right of the United States as an owner on that shore, the lot on which the gate house stands, and also the land on the Maryland shore below this lot, extending to the shore, and covering in addition that part of the river-bed site of the Maryland end of the old dam that was not already the property of the United States." (55th Congress, 2d Session. Report No. 478 page 7.)

Second: Elliot cites the brief of special counsel for the U.S. in the initial Court of Claims suit settled in 1879 (Elliot's quote appears in 55th Congress, 2d Session. Report No. 478 beginning on page 11, Note: Italics indicate information Elliot quoted that originally appeared in Brief for Defendants in The Great Falls Power Company v. the United States, Case Files 3243; Case Files for General Jurisdiction Cases; Records of the United States Court of Claims, Record Group 123; National Archives Building, Washington, DC, pages 20-21.  ).

"(C.) I find in the brief of special counsel for the United States in the suit of the Great Falls Manufacturing Company against the United States for damages to water rights of the former by the construction of the dam across the Maryland channel which suit was decided in 1879, the following important statement respecting the Toulson tract owned by the Great Falls Manufacturing Company:
 
'While we do not think the Toulson tract and the riparian rights appurtenant thereto have been invaded by the United States, and contend that they are not entitled to consideration in the present case we deem it proper, in view of the effect which the ascertainment of those rights by the court might have upon a future extension of the dam, to state distinctly our position.
 
1. The court of appeals of Maryland, in a proceeding between the parties to the present suit, held that the State of Maryland, by legislative grant, had conferred, in 1853, upon  the United States the soil between the Virginia low-water mark and the medium filum aquae extending from a point above to a point below the falls (21 Md. Rep., p. 119, and pp. 375, 376, 377 record; Baltimore v. McKim, 3 Bl., 453) The riparian right appurtenant to the Toulson tract has thus become res judicata.
2. The court of Maryland had jurisdiction of the res because it was included within the grant to Lord Baltimore in 1632 and because, further, no act of Maryland has ever ceded this jurisdiction and there is nothing to show that Virginia ever claimed it.' Note: Elliot quoted from Brief for Defendants in The Great Falls Power Company v. the United States, Case Files 3243; Case Files for General Jurisdiction Cases; Records of the United States Court of Claims, Record Group 123; National Archives Building, Washington, DC, pages 20-21.


   If my inference drawn from this statement be the true one, then the Great Falls Manufacturing Company, apart from the rights conferred by its ownership of Conn's Island above the Falls has no interest in the water rights (water) at Great Falls..." (55th Congress, 2d Session. Report No. 478 beginning on page 11.)

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

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

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

March 2 March 2, 1895, Vol. 28, Stat. at L., p. 752 U.S. This law raised the height of the Washington Aqueduct dam. Great Falls Power Company brings suit in the U.S. Court of Claims in part based upon this act and the act of 1882. Court of Claims Case 19,863, The Great Falls Power Company v. The United States

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

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

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

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

February Chesapeake and Ohio Canal Company, v. The Great Falls Power Company, Filed in Montgomery County Circuit Court, Equity Case 1766. The C&O filed the suit to stop the GFPC from building a dam near the Great Falls.

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

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

Included in the agreement were  C&O's riparian rights in the Potomac River

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

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

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

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

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

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

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

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

"    "Virginia is entitled not only to full dominion over the soil to low water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low water mark as may be necessary to full enjoyment of her riparian ownership, without impeding navigation or otherwise interfering with the proper use of it by Maryland , agreeably to the compact of seventeen hundred and eighty-five."
    It is certain, therefore, that the Great Falls Manufacturing Co. acquired no peculiar right or privilege in the Great Falls by its deed from Neilson and others. (62d Congress, 3d Session, House Document No. 1400, page 63)"

By 1909, it seems that the shift for proving riparian rights was now focused on the Government's ownership of the Resurvey of Hard to Come At (the U.S. had a half interest in this property) and Hard to Come At (the U.S. owned all 19 acres of this property). Wright also believed that the award to the GFPC for $63,766 in 1902 should have been $15,692 less (since the GFMC had been awarded this amount earlier based upon partial completion of the dam and the award to the GFPC was the amount determined by arbitrators if the dam had been completed to the VA shore (62d Congress, 3d Session, House Document No. 1400, page 68).

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

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

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

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

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