HENING'S STATUTES, VOLS. 5-13 (1738-1792)

LAWS &C RELATING SPECIFICALLY TO THE POTOMAC

Virginia first passed legislation for extending the navigation of the Potomac above Tidewater in 1772. The 1772 act makes no mention of Maryland or Maryland's rights on the river and implies that Virginia believed it had jurisdiction over the river. It does not indicate on which side of the river the improvements were to be made, but presumably they envisioned the work to be done on the Virginia side, since clearly Va. courts did not have the power to value or appropriate lands or improvements on the Maryland side of the river. Was there a similar Md. law at the same time? The 1772 act is repealed by the act of 1784. The 1784 act (passed before the Mount Vernon Compact) is clearly passed in conjunction with Md. and recognizes the need for cooperation in this enterprise. Subsequent acts regarding the Potomac Co. passed in 1785, 1786 and 1787 specify that they are not to take effect until Maryland passes like legislation, but then laws passed in 1790 and 1791 do not mention Maryland.

Laws:

February 1772-12th George III, Chap. XXXI (H8:570-79)

An act for opening and extending the navigation of the river Potowmack from Fort Cumberland to tide water.

This act authorizes a subscription and lottery to raise money for "the extension of the navigation of Potowmack river from tide water to fort Cumberland." Subscribers are empowered to " receive reasonable tolls, or duties, to enable them to cut, support, and repair, such canals, locks and other works, which may be found necessary in carrying into execution this undertaking." Subscribers are to apply to the county courts to obtain title to "the lands and improvements through which any such canal shall be proposed to be cut, or whereon any lock, or other work, shall be thought necessary to be erected, in opening the falls, and extending the navigation of the said river," which are to be valued by a jury and paid for by the trustees. All of the "said canal and works, with all their appurtenances, shall be, and the same are hereby, vested in the said subscribers, their heirs and assigns, forever, as tenants in common, in proportion to the sums by them respectively invested." Sets rates and duties for goods shipped on the river. When completed the works will be open to "all the king's liege people whatsoever" provided they pay the rates and duties.

VIRGINIA CONSTITUTION May 1776, Art. XXI (H 9:118)

"The territories contained within the charters erecting the colonies Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and for ever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction, and government, and all other rights whatsoever which might at any time heretofore have been claimed by Virginia, except the free navigation and use of the rivers Potowmack and Pohomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon."

October 1784-9th Commonwealth, Chap. XLIII (H10:510-25)

An act for opening and extending the navigation of Potowmack river.

Act chartering the Potomac Company. It does not specify that it will only take effect when Maryland passes similar legislation, but is evidently passed in conjunction with that state:

" Whereas the extension and navigation of Potowmack river, from tide water to the highest place practicable on the North branch, will be of great public utility . . . and whereas it may be necessary to cut canals and erect locks and other works on both sides of the river, and the legislatures of Maryland and Virginia, impressed with the importance of the object, are desirous of encouraging so useful an undertaking . . ."

The president and directors have power to agree with any person or persons, on behalf of the company, "to cut such canals, and erect such locks and perform such other works as they shall judge necessary for opening, improving, and extending the navigation of the said river above tide water, to the highest part of the North Branch, to which navigation can be extended . . . and to repair and keep in order the said canals, locks, and other works necessary thereto."

"The said canals and works, with all their profits, shall be, and the same are hereby vested in the said proprietors, their heirs, and assigns forever. . . and the same shall be deemed real estate, and be forever exempt from payment of any tax, imposition or assessment whatsoever." Sets tolls the company can collect on commodities transported. Tolls to be collected in three places: "At the mouth of the South Branch," "At Payne's Fall," and "At the Great Falls."

"The said river and the works to be erected thereon in virtue of this act when completed, shall forever thereafter be esteemed and taken 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 no other toll or tax whatever for the use of the water of the said river, and the works thereon erected, shall at any time hereafter be imposed by both or ether of the said states, subject nevertheless to such regulations, as the legislatures of the said states may concur in."

"And whereas it is necessary for the making the said canal, locks and other works, that a provision should be made for condemning a quantity of land for the purpose . . . it shall and may be lawful for the said president and directors or a majority of them, to agree with the owners of any land, through which the said canal is intended to pass for the purchase thereof, and in case of disagreement" the justices of the county in which the land lies shall have the sheriff summon a jury to value the land and the company shall be seized of the land on paying the valued amount.

"And whereas, some of the places through which it may be necessary to conduct the said canals, may be convenient for erecting mills, forges, and other water works, and the persons, possessors of such situation, may design to improve the same," and this act intends to improve navigation, not interfere with private property "the water or any part thereof conveyed through any canal or cut made by the said company, shall not be used for any purpose but navigation, unless the consent of the proprietors of the land through which the same shall be led, be first had." President and directors are empowered and directed to answer both the purposes of navigation and water works if it can be conveniently done, and to enter agreements with the proprietors of such situations.

"That so much of every act and acts within the purview of this act, shall be, and the same is hereby repealed."

October 1785-10th Commonwealth, Chap. XVII (H12:50-55)

An act to approve, confirm, and ratify the compact made by certain commissioners appointed by the general assembly of the state of Maryland and commissioners appointed by this commonwealth.

Approves, confirms and ratifies the Mount Vernon Compact made March 28, 1785, and states "that every article, clause, matter and thing therein contained, shall be obligatory on this state and the citizens thereof, and shall be forever faithfully and inviolably observed and kept by this government and all its citizens, according to the true intent and meaning of the said compact; and the faith and honour of this state is hereby solemnly pledged and engaged to the general assembly of the state of Maryland, and the government and citizens thereof, that this law shall never be repealed, or altered, by the legislature of this commonwealth, without the consent of the state of Maryland."

October 1785-10th Commonwealth, Chap. XXIII (H12:68-69)

An act to amend the act For opening and extending the navigation of Potowmack river.

Authorizes to Potowmack co. to cut a canal containing two feet of water, instead of four, at certain places. Act is to take place as such, on a similar law being passed by the legislature of Maryland, and not otherwise.

October 1786-11th Commonwealth, Chap. CXIV (H12:408-9)

An act giving further time for improving the navigation between the Great Falls of Potowmack river and Fort Cumberland.

Potowmack company shall be allowed until Nov. 17, 1790, for making and improving the navigation between the Great Falls and Fort Cumberland. This act to take place as such, on a similar law being passed by the legislature of Maryland, and not otherwise.

October 1787-12th Commonwealth, Chap. XXIV (H12:508-9)

An act giving a more speedy remedy against delinquent subscribers to the Potowmack and James river companies.

Whereas many of the subscribers to the Potowmack and James river companies have failed to pay their subscriptions, the directors of each co. may recover any such sums in the general court at any additional or other session thereof, together with all legal cost, by way of motion to the court. The part of this act relating to the Potowmack co. is not to take effect until the Maryland legislature passes a law to the same effect.

October 1790-15th Commonwealth, Chap. LVII (H13:187-88)

An act to amend an act, intitled "An act for opening and extending the navigation of Patowmack river."

Act gives the Potomac co. more time for making and improving the navigation of the river above the Great Falls to Cumberland, and it authorizes the company to apply part of the capital subscribed and tolls as they judge necessary towards opening, improving and extending navigation on the branches of Potomac above Seneca. The act also states that persons not citizens of Va. may purchase non-subscribed shares in the Potomac co. but do not become citizens by doing so.

[The act does not mention Maryland.]

October 1791-16th Commonwealth, Chap. XXXIV (H13:275)

An act to amend the act, intituled, "An act to amend the act, intituled, An act for opening and extending the navigation of Patowmac river."

Whereas act last session Assembly granted the Potomac Co. the right to open, extend and improve the navigation of the branches of the Patowmac river above Seneca, with the expectation that the company would proceed forthwith in improving the navigation of the said branches, the said grant shall be forfeited unless the company proceeds within twelve months in the opening and improving the navigation of the said branches.

The acts also says that persons not citizens of Va. can purchase the subscribed as well an non-subscribed shares of the Patowmac, but do not thereby become citizens.

[The act does not mention Maryland.]