| Taking all together, we consider it established that Virginia has a
proprietory right on the south shore to low water-mark, and,
appurtenant thereto, has a privilege to erect any structures
connected with the shore which may be necessary to the full
enjoyment of her riparian ownership, and which shall not impede
the free navigation or other common use of the river as a public
highway.
To that extent Virginia has shown her rights on the river so
clearly as to make them indisputable."'
The fourth and final clause of the "Black-Jenkins Award" provided that:
Fourth. 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 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."'
Both states ratified the Award in 1878, and Congress gave its consent in 1879.'4'
Wharton v. Wise: the Supreme Court Affirms the Validity of the Compact
Prior to 1894, it was uncertain whether the Compact of 1785 was invalid for lack of
consent by Congress. Under Article Six of the Articles of Confederation, in effect in 1785, the
States were forbidden from entering into any treaty, confederation or alliance without such
consent. The Supreme Court considered this issue in Wharton v. Wise, 153 U.S. 156, 167-73
(1894). The Court concluded that Article Six did not apply to agreements between the States
'39 Id. at 16 (emphasis added). The arbitrators specifically rejected the argument that,
because Virginia had acquired title by prescription. Virginia's rights should be found to stop at
the shore. Id. at 25-26.
"° Black-Jenkins Award, 1878 Md. Acts c. 274, 1878 Va. Acts c. 246, Act of March 3,
1879, ch. 196, 20 Stat. 481, 482 (emphasis added).
141 Id.
3 4
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