REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 40
September Term, 2013
POTOMAC SHORES, INC.
v.
RIVER RIDERS, INC., ET AL.
Eyler, Deborah S.,
Kehoe,
Rubin, Ronald B.
(Specially Assigned)
JJ.
Opinion by Kehoe, J.
Filed: August 29, 2014
Maryland and Virginia have wrangled for centuries over two rivers, the Potomac and
the Pocomoke, that constitute most of their shared boundary. In 1877, an arbitration award,
accepted by both states and ratified by the Congress, established the boundary as the low-
water mark on the Virginia side of the Potomac River for those parts of the State and the
Commonwealth located west of the Chesapeake Bay.1 But the shores of the Potomac, like
those of all rivers, change as a result of accretion, erosion, and reliction.2 Does the boundary
between Maryland and Virginia shift as the south bank of the Potomac alters because of time
and the forces of nature? Or is the boundary fixed and immutable? If the latter, fixed and
immutable as of what date? The award provided no explicit guidance.
The present appeal requires us to provide an answer, at least for part of the river. In
the absence of a definitive ruling from the Supreme Court, we conclude that, as to the non-
tidal portion of the river,3 our boundary with Virginia shifts as time and the gradual forces
of nature alter the location of the Potomac River’s southerly shore. For that reason, we will
1
We will discuss the arbitration award, which is commonly referred to as the Black-
Jenkins Award, in greater detail in Part II(3).
2
“Accretion” is “[t]he gradual accumulation of land by natural forces[.]” BLACK’S
LAW DICTIONARY 22 (8th ed. 2004). “Erosion” is “[t]he wearing away of something by
action of the elements; exp., the gradual eating away of soil by the operation of currents or
tides.” Id. at 582. We will also reference two other terms. The first is “reliction,” which is
“[a] process by which a river or stream shifts its location, causing the recession of water
from its bank.” Id. at 1317. The second is an “avulsion,” which consists of “[a] sudden
removal of land caused by change in a river’s course or by flood.” Id. at 147.
3
The Potomac is tidal from its mouth to a point in the District of Columbia just
downstream of the Little Falls of the Potomac. Raymond W. Schaffranek, A
Flow-Simulation Model of the Tidal Potomac River, published in A WATER-QUALITY
STUDY OF THE TIDAL POTOMAC RIVER AND ESTUARY (U.S. Geological Survey Water-Supply
Paper 2234) (1987).
affirm the judgment of the Circuit Court for Washington County that dismissed, for want
of subject matter jurisdiction, Potomac Shores Inc.’s trespass action against River & Trail
Outfitters, Inc., and River Riders, Inc.
Background
River & Trail and River Riders are outdoor adventure outfits which operate fishing,
tubing, and whitewater rafting tours on the upper Potomac River. Potomac Shores alleges
that employees and customers of appellees routinely cross over a narrow strip of land, no
more than 150 feet wide, located along the southerly bank of the upper Potomac River (about
a mile downstream from Harper’s Ferry, West Virginia), in an area known locally as Potomac
(or Potoma) Wayside. Potomac Shores claims ownership of the land in question because an
1873 deed in its chain of title describes the boundary of its property as being the dividing line
between Maryland and Virginia “bounding the south shore of the Potomac River at medium
water mark.” Potomac Shores contends that what was the medium water mark in 1873 now
lies on the landward side of the south bank because of gradual accretion to the shoreline. For
these reasons, it views appellees’ use of the south bank as a trespass on its property.
Appellees moved to dismiss the complaint. They contended that the circuit court
lacked jurisdiction over the alleged trespass because the south bank at Potomac Wayside is
located in Virginia, and not Maryland. They also asserted that the land in question is owned
by the National Park Service (as part of the Harper’s Ferry National Historic Park), and that
they have permission from the Park Service to use the site for access to the river.
2
After a hearing, the circuit court, the Honorable M. Kenneth Long, presiding, granted
the motion by means of a thorough and well-reasoned memorandum opinion. After
examining the long and complicated history of boundary-related disputes between those who
neighbor on the Potomac, Judge Long determined that “the boundary between Maryland and
Virginia follows the low-water mark on the south side of the Potomac River as the banks of
the river shift over time” and, based on this determination, concluded that the south bank at
Potomac Wayside was “outside the jurisdiction of the [courts of the] State of Maryland.”
Judge Long dismissed the case for lack of jurisdiction without addressing the merits of the
parties’ remaining contentions. Potomac Shores’s motion for reconsideration was denied.
This appeal followed.
After oral argument, and in light of the significant issue raised by the appeal, we
invited the Attorneys General of Maryland and Virginia to file amici curiae briefs. In a
jointly filed brief, the Attorneys General agree with the circuit court that the real property
that is the subject of this litigation is located in Virginia. We will affirm the judgment of the
circuit court.
Analysis
The motion to dismiss filed in this case included matters outside the four corners of
the complaint and its exhibits. We will therefore treat the motion as one for summary
judgment. See D’Aoust v. Diamond, 424 Md. 549, 573 (2012); Md. Rule 2-322(c). We
review de novo a circuit court’s grant of summary judgment based solely on a matter of law.
3
Harford County v. Saks Fifth Ave. Distrib. Co., 399 Md. 73, 82 (2007); Md. Rule 2-501.
At the heart of Potomac Shores’s trespass claim is its contention that it owns the strip
of land lying between Potomac Wayside and the river—an assertion that appellees dispute.
If the parcel in question is in Virginia, the circuit court is without jurisdiction to resolve the
question of ownership. See Wilmer v. Philadelphia & Reading Coal & Iron Co., 130 Md.
666, 678 (1917) (Maryland courts do not have jurisdiction to resolve disputes as to title of
land located in another state.).
I. Overview and the Parties’ Contentions
We provide a brief overview in order to place the parties’ contentions in context.
A.
The boundaries of forty-four of the forty-eight contiguous states are formed, at least
in part, by rivers.4 The United States Supreme Court has original jurisdiction over disputes
between states arising out of these boundaries.5 See U.S. Const., Article III, § 2 (“In all cases
. . . in which a state shall be party, the Supreme Court shall have original jurisdiction.”);
Virginia v. Maryland, 540 U.S. 56, 60 (2003). In the exercise of that jurisdiction, the
Supreme Court has generally recognized two types of riparian boundaries.
4
The exceptions are Montana, Wyoming, Utah and Colorado.
5
But inferior courts, including those of Maryland, may exercise jurisdiction over
disputes between private parties that call for a determination of the precise location of a
boundary between two states. This is a function of a court’s inherent authority to determine
the scope of its own jurisdiction. However, pursuant to Article III, § 2, such determinations
are not binding on the states.
4
The first category consists of state boundaries that are defined as being in the center,
or at the center of the channel, of a river. See, e.g., Louisiana v. Mississippi, 516 U.S. 22,
24-25 (1995); Louisiana v. Mississippi, 466 U.S. 96, 99 (1984); Arkansas v. Tennessee, 397
U.S. 88, 89-90 (1970); Arkansas v. Tennessee, 246 U.S. 158, 173-75 (1918). Such
boundaries typically shift with gradual changes in the river or its channel resulting from
accretion or erosion, but are not altered by a sudden change—an avulsion—in the river’s
geography. Arkansas v. Tennessee, 397 U.S. at 89-90.
The second type of boundary follows the contours of one of the river’s shorelines,
usually at the low-water mark. See, e.g., Illinois v. Kentucky, 500 U.S. 380 (1991); Ohio v.
Kentucky, 444 U.S. 335 (1980); Maryland v. West Virginia, 217 U.S. 577 (1910); Morris v.
United States, 174 U.S. 196 (1899); Indiana v. Kentucky, 136 U.S. 479 (1890). Whether a
shoreline boundary shifts with accretion or erosion, or remains fixed in time, largely depends
on the historical reasons for the particular boundary. For example, in a series of cases
involving boundary disputes along the Ohio River between Kentucky, on one hand, and
Indiana, Ohio, and Illinois, on the other, the Supreme Court emphasized that its decisions as
to the precise location of the Ohio River boundary were heavily influenced by historical
factors unique to the formation of that boundary. See, e.g., Ohio v. Kentucky, 444 U.S. at
337–38 (“[I]t is far too late in the day to equate the Ohio with the Missouri, with the
Mississippi, or with any other boundary river that does not have the historical antecedents
possessed by the Ohio. . . .”). Specifically, Indiana, Ohio, and Illinois were formed out of
5
territory ceded by Virginia to the United States in 1784, and in that cessation Virginia
retained jurisdiction over the Ohio River to its northerly shore. Kentucky succeeded to
Virginia’s rights to the Ohio when Kentucky was admitted to the Union in 1792. Id. at 337-
38. Based on this history, the Court has held that Kentucky’s northerly boundary was
coterminous with the river’s northerly shore as of 1792, and that the boundary has not since
changed as a result of accretion, erosion or reliction. See, e.g., Illinois v. Kentucky, 500 U.S.
at 383–84; Ohio v. Kentucky, 444 U.S. at 338; Indiana v. Kentucky, 136 U.S. at 508.
Courts and legal commentators have sometimes referred to river boundaries that shift
with accretion or erosion as following a “shifting boundary theory.” Conversely, river
boundaries that remain fixed as of a particular historical date are said to reflect a “fixed
boundary theory.” The terms originate, in part, from the pre-eminent scholarly treatise on
this subject, 2 Aaron L. Shalowitz and Michael W. Reed, SHORE AND SEA BOUNDARIES 501-
04 (1964) (“Shalowitz and Reed”).6 We will use this terminology in this opinion.
B.
In support of its argument that Potomac Wayside lies within Maryland, Potomac
Shores argues that the “fixed boundary” principle applied in the Ohio River cases also
applies to the Potomac River boundary. In other words, it contends that the boundary
between Maryland and Virginia was fixed at some point in the past. According to Potomac
Shores, subsequent changes in the configuration of the south shore of the river do not affect
6
All references to Shalowitz and Reed are to the second volume of that work.
6
the location of the boundary. Potomac Shores offers several possibilities as to when precisely
the boundary became fixed and asserts that, regardless of which one we ultimately select, the
land in question in this lawsuit is located in Maryland.
The circuit court, the Attorneys General, and the appellees are in unison that Potomac
Shores draws the wrong lesson from the Ohio River cases. The appellees and the Attorneys
General assert, and the circuit court concluded, that the Supreme Court’s reasoning in those
cases was based, not upon a rule generally applicable to all interstate riparian boundaries, but
instead on the unique historical circumstances surrounding the formation of the states
bordering the Ohio River. We agree.
Like the Ohio, the Potomac River has its own history. For our purposes, the relevant
history includes: conflicting colonial-era land grants; the terms of the 1877 Black-Jenkins
Award; a cartographic survey of part of the boundary that was accepted by both states as
reflecting the terms of the award; and two interstate compacts between Maryland and
Virginia whereby the states resolved disputes over access to the use and enjoyment of the
river and its resources. This history, and the Supreme Court cases interpreting it, form the
substance of our analysis.
II. The History
(1) The Conflicting Grants of the Colonial Period
When it came to granting title to land in what is now the eastern United States, the
members of England’s Stuart dynasty were generous but not overly consistent. An exegesis
7
of the numerous grants made by the Stuart monarchs that, at least arguably, encompassed the
Potomac River is beyond the scope of this opinion.7 It is sufficient for our purposes to note
that, by the end of the seventeenth century, there were at least three conflicting jurisdictional
claims to the Potomac River: (1) those of the Virginia colonial assembly, as the successor-in-
interest to the London Company, which had received several grants from King James I to
induce the company to establish the colony at Jamestown; (2) those of the lords proprietary
of Maryland, pursuant to the 1632 grant by Charles I to Cecilius Calvert, Lord Baltimore,
Maryland’s first Lord Proprietor; and (3) those of Thomas, Lord Fairfax, deriving from a
1688 grant by James II to Fairfax’s father-in-law, Thomas Culpeper. No serious attempt was
made to resolve these claims until the American Revolution.
(2) The Compact of 1785: Maryland and Virginia Settle
Some Disputes but Fail to Agree on a Boundary
In 1776, against the backdrop of the revolutionary tide rising across the colonies,
delegates from Virginia met in Williamsburg and proposed what was eventually adopted as
Virginia’s first constitution. In it, Virginia ceded to Maryland the territories included in
Charles I’s 1632 Charter to Lord Baltimore:
except the free navigation and use of the rivers Patomaque and Pokomoke,
with the property of the Virginia shores and strands, bordering on either of the
said rivers, and all improvements, which have been, or shall be made thereon.
The western and northern extent of Virginia shall, in all other respects, stand
as fixed by the Charter of King James I in the year one thousand six hundred
7
For additional information as to these conflicting grants, see Report of the Special
Master in Virginia v. M aryland, 540 U .S. 56 (2003) , available at
http://www.supremecourt.gov/specmastrpt/orig129_120602.pdf (last visited July 22, 2014).
8
and nine, and [other enumerated authorities].
Va. Const. Art. XXI (1776), reprinted in 1 Hening’s Stat. 50, 56 (1823).
The Commonwealth’s olive branch was spurned. Delegates from Maryland, meeting
in Annapolis, responded by adopting a resolution declaring “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 [Charles I] to [Lord] Baltimore” and that “sole and exclusive jurisdiction over the
territory, bays, rivers, and waters, included in the said charter, belongs to this state.”
Proceedings of the Conventions of the Province of Maryland (Oct. 30, 1776), reprinted in
78 Md. Archives 292-93 (1836).
As the War of Independence wound down, both Maryland and Virginia passed acts
of confiscation which effectively ended the proprietorships of the successors to Lord
Baltimore and Lord Fairfax and cemented each state’s jurisdictional authority over its
colonial territory.8 Disputes between the two states escalated, especially as to the right of
navigation on the river. In an effort to resolve these disagreements, George Washington, at
the time a private citizen, invited the legislatures of both Maryland and Virginia to appoint
commissioners to negotiate on behalf of their respective states. The commissioners met at
8
The acts of confiscation, passed by Maryland in 1781 and Virginia in 1783, resulted
in voluminous litigation. See, e.g., Martin v. Waddell, 41 U.S. 367 (1842); Martin v.
Hunter’s Lessee, 14 U.S. 304 (1816); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603
(1812).
9
Mount Vernon in March, 1785.9
These efforts resulted in the Compact of 1785, an agreement by which the states
resolved many of their differences as to navigation upon, and access to, the river, but failed
to reconcile their differing views as to their proper boundary line.10 Article Seventh of the
Compact is relevant to the dispute before us because it expressly reserved to “[t]he citizens
of each state respectively” riparian rights:
in the shores of the Patowmack river adjoining their lands, with all
emoluments and advantages thereunto belonging, and the privilege of making
and carrying out wharfs and other improvements . . . .
The Compact became binding upon its approval, confirmation, and ratification by the
legislatures of Maryland and Virginia. 1785 Md. Laws ch. 1; 1786 Va. Acts ch. 17.11
9
The commissioners included: from Virginia, George Mason and Alexander
Henderson; and from Maryland, Samuel Chase, Thomas Stone, and Daniel of St. Thomas
Jenifer. See 1785–1786 Md. Laws ch. 1 (preamble).
10
See Virginia v. Maryland, 540 U.S. at 68 (“While the 1785 Compact resolved
certain jurisdictional issues, it did not determine the boundary between the States.”); Marine
Ry. & Coal Co. v. U.S., 257 U.S. 47, 63-64 (1921) (the 1785 Compact “says nothing about
the boundary . . . it left the question of boundary open to long continued disputes”); see also
Wharton v. Wise, 153 U.S. 155, 173–77 (1894) (summarizing the circumstances leading up
to the Compact, as well as its substantive terms); Barnes v. State, 186 Md. 287, 292-96
(1946) (same).
11
The relationship of Maryland and Virginia was not always acrimonious. For
example, both states passed legislation forming the Potomac Company, a venture tasked with
improving the navigability of the non-tidal portion of the Potomac River (above the fall line).
1784 Md. Laws ch. 33; 1784 Va. Acts ch. 43. The Company constructed canals and other
improvements on both sides of the Potomac, but was never financially successful.
Eventually, its assets were transferred to the Chesapeake and Ohio Canal Company. See
Chesapeake & O. Canal Co. v. Baltimore & O.R. Co., 4 G. & J. 1, 73 (1832).
10
(3) The Black-Jenkins Award of 1877: The Boundary Is Conceptually
Defined But Not Physically Located
Throughout the early to mid-nineteenth century, the legislatures of both Maryland and
Virginia passed an array of sometimes conflicting laws concerning the Potomac and the
Pocomoke Rivers and the Chesapeake Bay. Officials of both states made sporadic, but
unsuccessful, attempts to resolve the on-going boundary questions. The resulting
jurisdictional uncertainty contributed in no small part to violent disputes among
watermen—from Maryland, from Virginia, and from New York and New England—over the
right to engage in the highly profitable business of harvesting what at the time appeared to
be an inexhaustible resource—the Chesapeake Bay oyster.12
In 1874, in the face of escalating violence on the Chesapeake Bay and its estuarine
tributaries, Maryland and Virginia agreed to submit their conflicting boundary claims to
arbitration. The arbitrators—Jeremiah Black, James Beck, and Charles Jenkins—released
their decision in 1877 in what is commonly known as the “Black-Jenkins Award.” 13
In reaching their decision, the arbitrators recognized that the colonial royal grants
were irreconcilably in conflict. Using Charles I’s 1632 charter as “the original measure of
12
Endemic violence between watermen and law enforcement officials of Maryland
and Virginia over oyster harvesting—commonly referred to as the “Oyster
Wars”—continued for decades. See, e.g., Wharton v. Wise, 153 U.S. 155, 174 (1894); Ex
parte Marsh, 57 F. 719 (1893); John R. Wennersten, THE OYSTER WARS OF CHESAPEAKE
BAY (1981) (“Wennersten”).
13
The full text of the Award and the arbitrators’ opinion (but not its accompanying
map) are found as Exhibits C and D to the Report of the Special Master in Virginia v.
Maryland, 540 U.S. 56 (2003).
11
[the] territory” of Maryland, they determined that the boundary had, at one point, run along
“the right bank [the south bank] of the Potomac, where the high-water mark is impressed
upon it” but that “this is not the present boundary.” Instead, in the arbitrators’ view,
Virginia’s prescriptive use of the river’s south bank had changed the boundary to the south
bank’s low-water mark for the course of the entire river:
The evidence is sufficient to show that Virginia, from the earliest period of her
history, used the South Bank of the Potomac as if the soil to the low
water-mark had been her own . . . .We . . . cannot help being influenced by our
conviction . . . that [the Compact of 1785] applies to the whole course of the
river above the Great Falls as well as below.[14]
****
[I]t established that Virginia has a proprietary 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.
Based upon these and other considerations, the arbitrators concluded that the boundary
line between Maryland and Virginia was, in relevant part, as follows (emphasis added):
Beginning at the point on the Potomac River where the line between Virginia
and West Virginia strikes the said river at low-water mark, and thence,
14
A decision by Maryland’s Chancellor held that the 1785 Compact applied only to
the tidal portions of the Potomac River. Binney’s Case, 2 Bland 99, 126 (1829). Even after
the issuance of the Black-Jenkins Award, the Court of Appeals concluded that the scope of
the 1785 Compact did not extend past Great Falls. Middlekauff v. Le Compte, 149 Md. 621,
628 (1926). These holdings are inconsistent with the opinion of the arbitrators, and cannot
be squared with the Supreme Court’s subsequent decision in Maryland v. West Virginia,
discussed infra. For a further discussion of these early Maryland cases, see Barnes, 186 Md.
at 298–304. Virginia’s courts appear to have interpreted the 1785 Compact as applying to
the entire river. See Hendricks v. Commonwealth, 75 Va. 934, 939-40 (1882).
12
following the meanderings of said river, by the low-water mark,[15] to Smith’s
Point, at or near the mouth of the Potomac….
****
The low-water mark on the Potomac, to which Virginia has a right in the soil,
is to be measured . . . from low-water mark at one headland to low-water mark
at another, without following indentations, bays, creeks, inlets, or affluent
rivers.
****
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 . . . .
In contrast to the laconic description of the boundary along the Potomac, the Award
set out longitudinal and latitudinal coordinates as to the location of the boundary in the
Chesapeake Bay and portions of the Eastern Shore. The Award also included a map
delineating the boundary along a portion of the lower Potomac River. The Award did not,
however, include any further description of the boundary along the portion of the Potomac
River located above Alexandria, Virginia.16
The Black-Jenkins Award was approved, confirmed, and ratified by the legislatures
of both Maryland and Virginia, and was approved by Congress pursuant to the Compact
15
“[T]he ‘low-water mark’ of a river is defined as ‘the point to which the water
recedes at its lowest stage.’”Virginia v. Maryland, 540 U.S. at 62 n.2 (quoting Black’s Law
Dictionary 1586 (7th ed. 1999)).
16
The discrepancy in treatment reflected disputes between the states over oyster beds
in Pocomoke and Tangier Sounds in the Chesapeake Bay. See Wennersten, at 46–68.
13
Clause of the Constitution, Art. I § 10, cl. 3. 1878 Md. Laws ch. 374; 1878 Va. Acts ch. 246;
Act of March 3, 1879, ch. 196, 20 Stat. 481.17
(4) The Whiting Decision of 1889: The United States Coast and Geodetic Survey
Articulates Rules for Interpreting the Text and Map of the Black-Jenkins Award
Despite the mutual acceptance of the Black-Jenkins Award, disagreements between
Maryland and Virginia as to the actual location of the boundary persisted. One involved the
location of the boundary in the vicinity of “Hog Island,” in Judith Sound and the Coan River
on the lower Potomac River.18 The states referred the matter to Henry Whiting, an official
of the United States Coast and Geodetic Survey, for resolution. The details of the dispute are
not germane to the issues before us. What is important for our purposes is that Whiting
articulated principles for interpreting the Black-Jenkins Award that were later adopted by
Maryland and Virginia. One was that (emphasis added):
[T]he descriptive text used [in the Award] and the conventional sign [19]
adopted can only be regarded as an intentional avoidance of more specific
mention and definition of points and features which time and natural causes
might so change as to render their future identification doubtful. Whereas, the
right bank of the Potomac, in its general features, will always be the right bank
17
Although the 1785 Compact pre-dates the existence of Congress, “when Congress
approved the Black-Jenkins Award [in 1879] it implicitly consented to the 1785 Compact
as well.” Virginia v. Maryland, 540 U.S. at 63 n.3.
18
The “Hog Island” in question no longer exists. The area in question is located near
the present-day village of Lewisetta, Virginia.
19
“Conventional signs” is a term for uniform topographical and surveying symbols
used on plats and maps. See Shalowitz and Reed, at 556. The “conventional sign” to which
Whiting referred was the arbitrators’ depiction of the boundary on the map accompanying
the Award.
14
so long as the river itself remains.[20]
(5) The Mathews and Nelson Survey of the Boundary
along the Tidal Portions of the River
Although various entities, including the Coast and Geodetic Survey, prepared maps
of the boundary between Maryland and Virginia based on the Black-Jenkins Award, no map
was mutually acceptable to the two states. In addition, there was lingering uncertainty as to
the precise boundaries of some of the “ indentations, bays, creeks, inlets, or affluent rivers”
of the Potomac that the arbitrators awarded to Virginia. In the 1920's, the State and the
Commonwealth sought to rectify this situation by instructing Maryland State Geologist
Edward Mathews and Virginia State Geologist Wilbur Nelson to conduct an official survey
of the river “in accordance with” the Award. Mathews and Nelson did so in 1927. The result
of their efforts is found at Edward B. Mathews and Wilbur A. Nelson, REPORT ON THE
LOCATION OF THE BOUNDARY LINE ALONG THE POTOMAC RIVER BETWEEN VIRGINIA AND
MARYLAND IN ACCORDANCE WITH THE AWARD OF 1877 (1928) (the “1928 Report”).
Mathews and Nelson “based their work . . . on the principles laid down by Mr. Whiting
whose decision regarding the boundary line at Hog Island was apparently accepted by both
Virginia and Maryland in 1889.” 1928 Report, at 13.
One of the “principles laid down by Mr. Whiting” was that the language of the Award
20
The full text of Whiting’s decision is found at Edward B. Mathews and Wilbur A.
Nelson, REPORT ON THE LOCATION OF THE BOUNDARY LINE ALONG THE POTOMAC RIVER
BETWEEN VIRGINIA AND MARYLAND IN ACCORDANCE WITH THE AWARD OF 1877 at 11, 39-
42 (1928); see also Shalowitz and Reed at 498-99 (discussing Whiting’s decision and
reasoning).
15
“can only be regarded as an intentional avoidance of more specific mention and definition
of points and features which time and natural causes might so change as to render their future
identification doubtful.” Mathews and Nelson concluded that the boundary between the states
(emphasis added):
follow[s] in a general way the course of the south bank of the river as shown
by its general figure and the erosion of its banks by its waters without taking
into consideration the minor sinuosities due to the entrance of streams or the
flooding of low areas due to an erosion of the shore below low-water mark to
such tributaries.
1928 Report, at 11-13, 15-16. Of course, the boundary is the low-water mark on the south
bank, not the south bank itself. Mathews and Nelson did not attempt to locate the low-water
mark at any point along the river’s south bank. Shalowitz and Reed, at 503.
The Mathews-Nelson Survey resulted in the production of several maps of the south
shore of the Potomac from Jones Point, near Alexandria, Virginia, to Smith’s Point, at the
confluence of the river and the Chesapeake Bay. The maps, which are appended to the 1928
Report, do not purport to show the low-water line of the river. The maps were subsequently
approved and ratified by the legislatures of both Maryland and Virginia as a “just and fair
expression of the Award of 1877" and the “true representation” of the boundary between the
states. 1929 Md. Laws ch. 109; 1928 Va. Acts ch. 1232.
In 1929, pursuant to recommendations made by Mathews and Nelson, geologic
engineers placed fifty-eight “monuments”—stone markers with “Virginia-Maryland
Boundary Commission” inscribed on them—along the banks of the Potomac River beginning
16
at Jones Point, in Alexandria, Virginia, and extending to the river’s mouth. Shalowitz and
Reed, at 500–03.21 The monuments were intended to allow surveyors to locate the
approximate boundary between the states as of 1929, but did not purport to establish, nor do
they provide a mechanism to determine, the low-water mark at any of the marked locations
or anywhere in-between. Id. at 502–03. Mathews and Nelson did not survey any part of the
Potomac River located above Jones Point.
(6) The Potomac River Compact of 1958: The States
Re-Affirm the Award and the Survey
Neither the Black-Jenkins Award nor the Mathews-Nelson Survey put an end to
interstate disputes over the Potomac. In the 1940's and 1950's, Maryland and Virginia again
began to wrangle over the river, again prompted in part by continued violence between the
watermen and law enforcement officials of both states over the river’s oyster beds and other
natural resources. The states eventually settled their disputes by entering into the Potomac
River Compact of 1958. See 1958 Md. Laws ch. 269, 1959 Va. Acts ch. 28, Pub. L. No. 87-
783, 76 Stat. 797 (1962).
Although, in formulating the terms of the 1958 Compact, Maryland and Virginia
focused primarily on resolving the fisheries-related disputes at the heart of the ongoing
lawlessness and violence on the river, two aspects of the compact are important to our
21
Mathews and Nelson prepared a supplemental report regarding the monumentation
process which, confusingly, is identical in title (other than the date of publication) but not in
content, to the 1928 Report. See R EPORT ON THE L OCATION OF THE B OUNDARY L INE A LONG
THE P OTOMAC R IVER B ETWEEN V IRGINIA AND M ARYLAND IN A CCORDANCE WITH THE
A WARD OF 1877 (1930).
17
analysis. First, the compact’s preamble provides, in pertinent part (emphasis added):
Maryland and Virginia each recognizing that Maryland is the owner of the
Potomac River bed and waters to the low water mark of the southern shore
thereof, as laid out on the Mathews-Nelson Survey of 1927, and that Virginia
is the owner of the Potomac River bed and waters southerly from said low
water mark, as laid out, and the citizens of Virginia have certain riparian
rights along the southern shore of the River as shown on said Mathews-Nelson
Survey....
Second, Article VII, § 1 reaffirms Article Seventh of the 1785 Compact:
The rights, including the privilege of erecting and maintaining wharves and
other improvements, of the citizens of each State along the shores of the
Potomac River adjoining their lands shall be neither diminished, restricted,
enlarged, increased nor otherwise altered by this Compact, and 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.
The 1958 Compact remains a valid and binding agreement between Maryland and
Virginia. See Virginia v. Maryland, 540 U.S. at 64 n.4.
(7) The Potomac River Cases
Three United States Supreme Court cases involving jurisdictional disputes on the
Potomac River are also important to our analysis: Morris v. United States, 174 U.S. 196
(1899); Maryland v. West Virginia, 217 U.S. 1 (1910), and Maryland v. West Virginia, 217
U.S. 577 (1910); and Virginia v. Maryland, 540 U.S. 56 (2003).
Morris was decided subsequent to the Black-Jenkins Award but prior to the
Mathews-Nelson Survey. The case involved the claims of various riparian property owners
to artificially filled areas along the northerly and southerly banks of the Potomac within the
jurisdiction of Washington, D.C. The plaintiffs, tracing their claims to either Charles I’s
18
1632 charter to Lord Baltimore or to James II’s 1688 charter to Lord Culpeper, asserted that
they owned the filled areas because they owned the riverbed atop which the fill had been
placed. 174 U.S. at 223-24, 227-28.
In rejecting these claims, the Court relied on two observations important to our
analysis: First, that “the grant to Lord Baltimore in unmistakable terms included the Potomac
river. . . .,” id. at 223, and that “Lord Baltimore, his heirs and assigns, were never divested
[of the river] by any valid proceedings prior to the Revolution, nor was such grant affected
by the subsequent grant to Lord Culpeper.” Id. at 225. And, second, that Maryland and
Virginia, by enacting legislation confirming the Black-Jenkins Award, had declared “the
jurisdictional line and boundary [between them] . . . to be the low-water mark on the
Virginia shore.” Id. at 224. The Court did not, however, address whether the boundary along
the south bank’s low-water mark was fixed as of a certain date, or whether the boundary line
fluctuated with accretion or erosion of the bank.
In 1910, the Supreme Court decided Maryland v. West Virginia. The decision, which
was issued in two parts, resolved a jurisdictional dispute on the upper Potomac River
between Maryland and West Virginia, as successor to Virginia’s claims to that portion of the
river. 217 U.S. at 22-23. Among the issues presented was a jurisdictional claim by West
Virginia “to the Potomac river to the north bank thereof. . . .” Id. at 45. The Court rejected
this claim by expressly relying on the Morris Court’s observation that the 1632 Charter had
granted to Maryland “‘the Potomac river and the soil under it, and the islands therein, to the
19
high-water mark on the southern or Virginia shore. . . .’” Id. at 46 (quoting Morris, 174 U.S.
at 224-25). The Court ordered the parties to submit a decree settling their jurisdictional rights
to the territories in dispute in accordance with the aforesaid holdings.
The states, however, could not agree on several things, including whether the shared
boundary line along the Potomac’s south shore was located at the high-water or low-water
marks. 217 U.S. at 578. To resolve the issue, the Court looked to the Compact of 1785, and
concluded that “the privileges reserved [in the Compact] respectively to the citizens of the
two states 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 the high-water mark”; and
that “[t]here is no evidence that Maryland has claimed any right to make grants on that side
of the river, and the privileges reserved to the citizens of the respective states in the compact
of 1785, and its subsequent ratifications, indicate the intention of each state to maintain
riparian rights and privileges to its citizens on their own side of the river.” Id. at 580-81.
Based on these observations, the Court concluded that, “[t]he decree will therefore provide
for the south bank of the Potomac river at low-water mark on the West Virginia shore as the
true southern boundary line of the state of Maryland.” Id. at 581. In so holding, the Court
noted that, “[t]his conclusion gives to Maryland a uniform southern boundary along Virginia
and West Virginia, at low-water mark on the south bank of the Potomac river,” and that it
“is also consistent with the previous exercise of political jurisdiction by the states
respectively.” Id. at 581. As in Morris, the Court did not expressly address whether the
20
boundary between the states on the southern bank of the Potomac River at the low-water
mark was fixed as of a particular date, or whether the boundary line shifted with accretion
or erosion of the south bank.
Virginia v. Maryland, the most recent Supreme Court case on the jurisdiction issue,
arose out of a dispute between Maryland and Virginia over Maryland’s attempt to regulate
Virginia’s “right to withdraw water from the Potomac River and to construct improvements
appurtenant to the Virginia shore.” 540 U.S. at 60. Several aspects of the Court’s analysis are
important for our purposes. First, the Court noted that “Morris did ultimately decide that
Maryland’s 1632 charter included the Potomac River from shore to shore” and that “the
Black-Jenkins arbitrators held that Maryland was sovereign over the River to the low-water
mark on the Virginia shore.” Id. at 68-69. Second, in determining that Virginia held
sovereign rights “to use the River beyond the low-water mark,” the Court
noted—approvingly—that the states were in agreement that the territory landward of the low-
water mark on the river’s south bank was in Virginia, and not Maryland. Id. at 69, 72. As in
its prior decisions, the Court omitted any discussion about whether the south bank’s low-
water mark was to be determined on a shifting basis, or as of the date of the Black-Jenkins
Award of 1877, the Mathews-Nelson Survey of 1927, or some other historical date.
We now turn to the contentions raised by Potomac Shores.
III. The South Bank at Potomac Wayside
Potomac Shores asserts that the boundary between Maryland and Virginia was fixed
21
according to the south bank’s low-water mark as it existed in 1877 (the date the Black-
Jenkins Award was issued), 1927 (the date the Mathews-Nelson Survey was conducted), or
1929 (the date the boundary monuments were erected along the lower river).22 Resolving this
claim requires us to interpret the Compacts of 1785 and 1958, the Black-Jenkins Award, and
the Mathews-Nelson Survey. Because these authorities were approved by the legislatures of
Maryland and Virginia and, in some instances, by Congress, we construe them pursuant to
the general rules of statutory construction. See Virginia v. Maryland, 540 U.S. at 66; New
Jersey v. New York, 523 U.S. 767, 811 (1998); Barnes v. State, 186 Md. at 291-92. In
interpreting these authorities, our goal is to discern the drafter’s intent. Breslin v. Powell, 421
Md. 266, 286 (2011); Barnes, 186 Md. at 291. We look to the plain language of the text,
giving it its natural and ordinary meaning, State Dep’t of Assessments & Taxation v.
Maryland–Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13 (1997), and read it in the
context in which it appears. Breslin, 421 Md. at 287.
We begin with the Black-Jenkins Award. The Award established that the boundary
between Maryland and Virginia on the upper Potomac River was to run along the river’s
south bank at low-water mark “following the meanderings of said river, by the low-water
mark, to [the mouth of the river].” The Award also established that Virginia “is entitled to
22
Potomac Shores does not assert that either 1878 (when the Black-Jenkins Award
was adopted by the legislatures of Maryland and Virginia) or 1879 (when the Award was
approved by Congress) are operative dates. If it had, we would, for the same reasons as
discussed in the main text, disagree that the low-water mark along the upper river’s south
bank was fixed as of those dates.
22
full dominion over the soil to low-water mark.” Conspicuously absent from the Award or its
accompanying opinion, however, is any attempt by the arbitrators to identify or further define
the south bank’s low-water mark along the upper Potomac as it existed in 1877. Although
a map of a portion of the lower river near the Chesapeake Bay was incorporated into the
Award, that map does not depict Potomac Wayside nor does it identify the south bank’s low-
water mark.23
Additionally instructive is the Award’s interpretation by the U.S. Coast and Geodetic
Survey official Henry Whiting, who based his survey of Hog Island in part on the principle
that “the descriptive text” used in the Award “can only be regarded as an intentional
avoidance of more specific mention and definition of points and features which time and
natural causes might so change as to render their future identification in doubt.” 1928 Report,
at 11 (quoting U.S.C. & G.S. Report for 1890). In consistent fashion, neither Morris nor
Maryland v. West Virginia, both of which were decided subsequent to the Black-Jenkins
Award but prior to the Mathews-Nelson Survey, interpreted the Award as establishing a
fixed, unwavering boundary as of 1877. See also Shalowitz and Reed, at 502 (“Up to the
time of marking the boundary line in 1929, the technical evidence seems clear that a shifting
boundary theory was followed.”). All of this convinces us that the Black-Jenkins Award did
not permanently fix the boundary as the south bank’s 1877 low-water mark.
We next decide whether the Mathews-Nelson Survey fixed the low-water mark on the
23
The map accompanying the Award is reproduced in Shalowitz and Reed, at 176.
23
south bank at Potomac Wayside. We believe that it did not. In their reports, Mathews and
Nelson made several things very clear. First, the survey was conducted for the purpose of
“determin[ing] where the accepted boundary lies . . . in accordance with the Award of
1877”—as opposed to setting a new boundary. Second, the survey “made no changes in the
actual boundary” and did not otherwise “afford[] an opportunity for a review or introduction
of the old controversies regarding [rights to the river].” Finally, the survey was made “on
the principles laid down by Mr. Whiting,” including, presumably, Whiting’s conclusion that
the Award was intended to establish a shifting, as opposed to a fixed, boundary. 1928
Report, at 1-2, 11; 1930 Report, at 1.
To accomplish their task, Mathews and Nelson surveyed the river’s south bank up to
Alexandria, Virginia, creating official cartographic maps in the process. Consistent with the
purposes of the survey and the principles previously espoused by Whiting, Mathews and
Nelson did not attempt to locate the low-water mark along the south bank. Moreover, the
legislatures approved the cartographic maps produced during the survey as a “just and fair
expression of the Award of 1877," and not as a new or independent delineation of the
boundary between Maryland and Virginia. 1929 Md. Laws ch. 109; 1928 Va. Acts ch. 1232.
Thus, there can be no question that the Mathews-Nelson Survey did not fix, nor even attempt
to locate, the low-water mark at any location along the river, much less those parts of the
river that Mathews and Nelson did not survey.
We come to the same conclusion with respect to the boundary commission’s
24
monuments. The monuments track the Mathews-Nelson Survey, and, as such, were not
placed upriver of Jones Point. While the approximate boundary line at the location of the
monuments can be determined using appropriate surveying techniques, the monuments were
all placed above the high-water mark, and “no tidal control was used for determining the
low-water line” at any of the marked locations or anywhere in-between. Shalowitz and Reed,
at 500, 502-03.
There is a more fundamental problem with this aspect of Potomac Shores’ argument.
Even if we assume that the monuments were intended to fix the location of the boundary as
of the date of the survey, the fact remains that the upper river was neither surveyed nor
monumented. It would be illogical for us to conclude that a survey of one portion of the river
was intended to fix the boundary in other areas.
All of this leads us to conclude that the Black-Jenkins Award established a shifting
boundary. Whether the joint legislative approval of the Mathews-Nelson Survey changed
the nature of the boundary on the tidal portions of the river is not before us because
Mathews and Nelson never purported to survey the non-tidal portion of the Potomac.
Accordingly, we hold that the boundary of Maryland and Virginia along the upper river’s
south bank, including Potomac Wayside, follows the low-water mark as it presently exists,
shifting with gradual changes in the shoreline due to accretion and erosion. Our conclusion
is not affected by the 1958 Compact, because its reference to the interstate boundary is
limited to the stretch of the river surveyed by Matthews and Nelson. We need not—and do
25
not—address whether the boundary on the tidal portions of the river is shifting or fixed.
This interpretation is consistent with the Supreme Court’s observations in Maryland
v. West Virginia and other cases, and ensures the protection of Virginia’s riparian rights and
rights over the soil to the low-water mark as recognized in the Compacts of 1785 and 1958,
the Black-Jenkins Award, and by the Supreme Court. As the Attorneys General point out, this
view is also in accord with the historical exercise of each state’s jurisdictional rights,
including their exercise of criminal jurisdiction. See, e.g., Barnes, 186 Md. at 309 (observing
that county jurisdiction extends to “the ultimate limits of [Maryland] across the Potomac
River, which would be to low-water mark on the Virginia shore.”); Traverso v.
Commonwealth, 6 Va. App. 172, 174 (1988) (citing Va. Code 7.1-7) (“[T]he boundary
between Virginia and Maryland . . . runs with the Potomac River’s low water mark as it
‘meanders’ along the Virginia shoreline.”). As a matter of policy, the adoption of a shifting
boundary theory constitutes a fair and practical way to avoid jurisdictional uncertainties
along the upper Potomac, at least at the present time.
Moreover, this approach is in accord with the rules governing disputes between
private property owners over title to accreted or eroded land, rules which are instructive in
deciding boundary disputes between states. See Virginia v. Maryland, 540 U.S. at 82-83
(Kennedy, J., dissenting) (quoting Rhode Island v. Massachusetts, 37 U.S. 657, 714 (1838)
(“No court acts differently in deciding on boundary between states, than on lines between
separate tracts of land.”)); Arkansas v. Tennessee, 246 U.S. 158, 173 (1918) (“[W]here
26
running streams are the boundaries between States, the same rule applies as between private
proprietors.”). The rule applicable to individuals who own property bordering on bodies of
water was succinctly stated by the Court in Arkansas v. Tennessee : “when the bed and
channel are changed by the natural and gradual processes known as erosion and accretion,
the boundary follows the varying course of the stream.” 246 U.S. at 173; see also Steelman
v. Field, 142 Va. 383, 389 (1925) (“However this line may thus change either for the
advantage or disadvantage of the riparian owner, low water mark remains his true boundary
. . . . that which is lost at one place is sometimes gained at another.”); Blackstone,
C OMMENTARIES ON THE L AWS OF E NGLAND 262 (1766) (U. Chicago Press 1979) (“[I]f a
river, running between two lordships, by degrees gains upon the one, and thereby leaves the
other dry; the owner who loses his ground thus imperceptibly has no remedy . . . .”).
We harbor no doubt that it is within the means of capable surveyors to accurately
identify the low-water mark as it presently exists at Potomac Wayside. We do not need a
precise delineation of the low-water line to resolve the jurisdictional question in this case,
however. In its complaint, Potomac Shores alleges that appellees trespassed on property
located landward of the river. In its appellant brief, Potomac Shores clarifies that it “does not
in any way challenge the right of any person to use the waters of the Potomac River[.]” In
other words, Potomac Shores’s position is that appellees were trespassing only on property
located landward of the south bank’s low-water mark. Because this territory lies in Virginia,
and not Maryland, we will affirm the decision of the circuit court dismissing this case for
27
lack of jurisdiction.24
IV. The “Rock Outcroppings”
In the course of the circuit court’s hearing on appellees’ motions to dismiss, Potomac
Shores argued for the first time that appellees also trespassed on the riverbed’s “rock
outcroppings”—what are, in essence, large rocks that peak above the water’s surface at
various points. The circuit court did not address this claim in its opinion. Highlighting the
omission, Potomac Shores moved for reconsideration, arguing that, even if the south bank
at Potomac Wayside was in Virginia, the “rock outcroppings” were located in Maryland. The
24
Potomac Shores also asserts that, to the extent that the Virginia shoreline at Potomac
Wayside has changed through accretion, most, or perhaps all, of that accretion was the result
of human activity, specifically, the construction of a nearby bridge abutment. Potomac
Shores points to a series of California decisions, e.g. City of Los Angeles v. Anderson, 206
Cal. 662, 668 (1929) and City of Newport Beach v. Fager, 39 Cal. App. 2d 23, 26 (1940),
in support of its contention that “[i]f the accretion was formed by artificial means or is
caused by the upland owner, then in such cases title to the newly formed land will remain
with the owner of the riverbed.” There are difficulties with this argument. These cases are
concerned with private ownership, not the location of interstate boundaries. Additionally,
the lands in question in the cases were created not by accretion but by artificial means,
specifically, harbor improvement projects. Anderson, 206 Cal. at 663; Fager, 39 Cal. App.
2d 23, 26-27. Thus, these cases are factually inapposite.
Moreover, as the Attorneys General point out, the federal common law of accretion
controls state boundary questions. See Virginia v. Maryland, 540 U.S. at 74 n.9 (“Federal
common law governs interstate bodies of water, ensuring that . . . neither State harms the
other’s interest in the river.”). The federal cases do not differentiate between accretion
resulting from human activities and accretion caused by natural events. See, e.g., California
ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 281-85 (1982) (Under the
“federal rule . . . accretions, regardless of cause, accrue to the upland owner. . . .”). Thus,
as long as the change in the shoreline at Potomac Wayside was accretive, that is,
gradual—and this is not in dispute—the immediate cause of the accretion is not relevant for
purposes of locating the boundary.
28
circuit court denied the motion, observing that Potomac Shores’ complaint lacked any
mention of rock outcroppings or allegations of trespass thereon, and, further, that, in its
pleadings, Potomac Shores had asserted that the alleged trespass was “limited to the land it
owns adjacent to the Potomac River.”
Potomac Shores argues that the court erred in dismissing this claim because the
alleged trespass occurred in Maryland. Potomac Shores misconstrues the basis of the circuit
court’s ruling. The court did not dismiss the rock outcroppings claim on jurisdictional
grounds. Rather, it concluded that, because the claim was not alleged at all, much less
properly, in the operative complaint, it did not save the complaint from dismissal. The circuit
court was correct. See Md. Rule 2-303 (setting forth Maryland’s pleading requirements); cf.
Tavakoli-Nouri v. State, 139 Md. App. 716, 732 (2001) (“The failure to state separate causes
of action in separate counts is improper and renders the complaint deficient.”).25
Conclusion
We hold that the boundary between Maryland and Virginia at Potomac Wayside is
the low-water mark on the Virginia shore as the shore changes location over time through
the forces of accretion, erosion and reliction. Our reasoning is applicable to other boundary
questions on the non-tidal portions of the Potomac River. In reaching our decision, it is not
necessary for us to decide whether the same analysis would apply to the boundary along the
25
Potomac Shores also argues that the circuit court abused its discretion in failing to
grant it leave to amend the complaint in order to add its claim of trespass over the rock
outcroppings. Potomac Shores did not, however, move for leave to amend, and it offers no
reasons as to why the court was obligated to grant such relief sua sponte.
29
tidal portions of the river.26
THE JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON
COUNTY IS AFFIRMED. APPELLANT TO PAY COSTS.
26
There is one difference between our analysis and the circuit court’s. In its
memorandum opinion, the circuit court noted that “even if the [Mathews-Nelson] Survey
fixed the boundary, it could only have fixed the boundary that it represented on the maps it
submitted with its report.” The circuit court nonetheless concluded that “the boundary
between Maryland and Virginia follows the low water mark on the south side of the
Potomac River as the banks of the river shift over time.” In other words, the court did not
distinguish between the tidal and non-tidal portions of the Potomac. As we have explained,
we are limiting our holding to the non-tidal portions of the river.
30