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Edward J. Levin: The Maryland-Virginia boundary shifts and changes

The Court of Special Appeals recently held that the boundary line between Maryland and Virginia, west of the District of Columbia, although fixed in a theoretical manner, actually shifts over time along with erosion and accretion of the south bank of the Potomac River. (Potomac Shores Inc. v. River Riders Inc., No. 40, Sept. Term, 2013, 2014 WL 4259477 (Md. Ct. Spec. App. Aug. 29, 2014)).

Potomac Shores Inc. owns property on the southern bank of the upper Potomac River, about one mile downstream from Harpers Ferry, West Virginia. Potomac Shores Inc. claims title through an 1873 deed in its chain of title which described the boundary as the dividing line between Maryland and Virginia “bounding the south shore of the Potomac River at medium water mark.”

Since 1873, there has been accretion of the shoreline. Employees of River Riders Inc. frequently crossed over the Potomac and used a strip of land to which Potomac Shores Inc. claimed ownership. Potomac Shores filed suit in Maryland, alleging a trespass. The Circuit Court of Washington County held that it did not have jurisdiction because the property in question is in Virginia. Potomac Shores appealed.

The Court of Special Appeals heard oral arguments and then asked the Attorneys General of Maryland and Virginia to file amici curiae briefs. The attorneys general filed a joint brief in which they agreed with the circuit court. The Court of Special Appeals did as well, and so it affirmed the circuit court decision.

History relating to the boundary

The case provides an interesting overview of the boundary issues between Maryland and Virginia since the grant from King Charles I to Lord Baltimore in 1632. Other colonial grants were not consistent with that one, including grants from King James I to the London Company to establish the colony at Jamestown and in 1688 the grant from King James II to Thomas Culpeper, father-in-law of Thomas, Lord Fairfax.

At the time of the American Revolution and on many occasions since then, representatives of Maryland and Virginia reached agreement about issues pertaining to navigation on and fishing in the Potomac and where their common boundary was located. In all this time, though, there had been no agreement or court decision that relates to whether the boundary shifts as the river’s south bank is enhanced by accretion or reduced by erosion.

The prior agreements and decisions include the following.

The Compact of 1785 was hosted by George Washington at Mount Vernon. Maryland and Virginia agreed on a number of points relating to navigation on the Potomac, but this Compact did not reconcile their differences relating to the boundary line.

The Black-Jenkins Award of 1877 came as a result of the agreement by Maryland and Virginia to submit their boundary claims to arbitration. Charles I’s 1632 charter gave Maryland rights to the high-water mark on the south bank of the Potomac, but the arbitrators found that was not the then-boundary line. Because of prescriptive use by Virginia, the arbitrators deemed the boundary to be the low-water mark. The low-water mark was to be measured from the low-water mark at one headland to the low-water mark at another, without following indentations, bays, creeks, inlets or affluent rivers. The legislatures of both Maryland and Virginia approved the Black-Jenkins Award, and it was approved by Congress in 1879.

The Whiting Decision of 1889 confirmed that the principles set forth in the Black-Jenkins Award were to be used to determine the resolution of boundary disputes.

The Mathews and Nelson Survey of the boundary along the tidal portions of the Potomac River in 1927 produced an official survey. However, the maps did not show the low-water level of the river. The maps were approved and ratified by the legislatures of Maryland and Virginia. In 1929, pursuant to the work of Mathews and Nelson, 58 monuments (engraved stone markers) were set along the river from Alexandria, Virginia to the river’s mouth. Mathews and Nelson did not survey the portion of the river above Jones Point in Alexandria.

With the Potomac River Compact of 1958, Maryland and Virginia settled disputes which had arisen in the 1940s and 1950s by reaffirming the Black-Jenkins Award and the Mathews and Nelson Survey. The 1958 Compact points out that Virginia citizens have certain riparian rights, including the right to erect and maintain wharves. The 1958 Compact is in effect today. Note that if owners of Virginia property wharf out into the Potomac River, the improvements are in Maryland.

In addition to these agreements, three Supreme Court decisions involve the Potomac River.

In Morris v. United States, 174 U.S. 196, 19 S.Ct. 649, 43 L.Ed. 946 (1899), the Supreme Court rejected the claims of people who filled areas along the southerly and northerly banks of the Potomac River in the District of Columbia. Although the Supreme Court said the boundary line was the low-water mark on the Virginia side, it did not decide whether that mark was fixed or whether it fluctuated with accretion and erosion of the bank.

In Maryland v. West Virginia, 217 U.S. 1, 30 S.Ct. 268, 54 L.Ed. 645 (1910), the court held that the south bank of the Potomac River at low-water mark on the West Virginia shore is the true boundary line of the State of Maryland. The Supreme Court did not state whether the boundary line was fixed or if it shifted from time to time.

Finally, Virginia v. Maryland, 540 U.S. 56, 124 S.Ct. 598, 157 L.Ed.2d 461 (2003), related to Maryland’s attempt to regulate Virginia’s right to withdraw water from the Potomac and to construct improvements appurtenant to the Virginia shore. Again, there was no discussion about whether the boundary was fixed or shifted.

Back to the present

Potomac Shores Inc. argued that the Maryland/Virginia boundary line was fixed at a particular time and that it was not trespassing by using a portion of the property that is now on the southern side of the Potomac River. The Court of Special Appeals found that neither the Black-Jenkins Award nor the Mathews-Nelson Survey permanently fixed the boundary as the low-water mark of any particular time. Instead, the Court of Special Appeals held that the boundary line shifts with accretion and erosion of the shoreline.

The Court of Special Appeals found this conclusion consistent with rules governing disputes of private parties over title to accreted or eroded land.

Potomac Shore’s contention was that appellees were trespassing only on property located landward of the south bank’s low-water mark. Because this property is in Virginia, the Maryland courts do not have jurisdiction. Therefore, the Court of Special Appeals affirmed the order of the Circuit Court.

The Court of Special Appeals set forth several other points of interest relating to river boundaries between states. For example:

— Boundaries of 44 of the 48 contiguous states are formed, at least in part, by rivers.

— The Supreme Court has original jurisdiction over disputes relating to boundaries between states.

— There are two types of riparian boundaries: boundaries that call to the center of a river or a channel, which are subject to gradual change due to accretion or erosion but are not affected by avulsion (a sudden change in the geography of the river); and boundaries that follow one of the shorelines. The Court of Special Appeals noted that “whether a shoreline boundary shifts with accretion or erosion, or remains fixed in time, largely depends on the historical reasons for the particular boundary.” As decided in Potomac Shores, the Maryland/Virginia line is subject to the “shifting boundary theory.”

— In a footnote, the Court of Special Appeals stated that its decision relates only to the non-tidal portion of the Potomac River.

Edward J. Levin is Chair of the Real Estate Practice Group at Gordon Feinblatt LLC. He may be reached at elevin@gfrlaw.com or (410) 576-1900. Copyright Edward J. Levin 2014. All rights reserved.