Who Owns the Potomac (Part 3)

Michael Nardolilli is the Executive Director of the Interstate Commission on the Potomac River Basin. The opinions expressed are those of the author and should not be construed as representing the opinions or policies of the United States or any of its agencies, the Interstate Commission on the Potomac River Basin or any of its Commissioners, or any of the jurisdictions in the Potomac River Basin. 

We tend to think that the boundary lines between states remain fixed and unmovable. For 44 of the 48 contiguous states, however, their boundaries follow rivers that may change gradually over time (say by deposits of silt along their banks) or suddenly through floods. How does the realignment of rivers impact the boundary of those states? In the Potomac River Basin, do such shifts along the Potomac River change the state borders? 

In Part 1 of this series, I showed how the low-water mark and specific headlands beside the Virginia shoreline became the boundary line between Virginia and Maryland along the Potomac River south of Jones Point in Alexandria, VA. In Part 2, I discussed how the creation of the District of Columbia determined that the boundary between DC and Virginia north of Jones Point and south of Little Falls (the limits of the tidal Potomac) would be the high-water mark along the Virginia shoreline. In this installment, I continue moving upstream and examine the state line along the Potomac River between Virginia and Maryland from Little Falls to Harper’s Ferry. [Importantly, this series does not address usage of the Potomac River (water, oysters, structures, etc.) but only the state line issue].

Because this part of the Potomac River was never owned by the District of Columbia, there is general agreement that the low-water mark that serves as the border south of Jones Point in Alexandria, VA also applies north of the District of Columbia line. But is this boundary fixed as of a certain date or does it fluctuate with the alignment of the River? It so happens that a case involving this stretch of the Potomac provides the most definitive ruling on this issue to date.  

But first, some background. A series of court decisions have determined that boundaries change with a gradual modification in the river channel, such as accretion or erosion, but are not altered by a sudden transformation, such as an avulsion. Those cases, however, arose in the context of state boundaries being in the center of a river (medium filum acquae) or the middle of the channel (the thalweg). As shown above, however, the boundaries for the Potomac River follow the shoreline. In such instances, courts have chosen to follow either a “shifting boundary theory” or a “fixed boundary principle” depending upon the historical reasons for the boundary. So, what is the proper rule for the Potomac River?

A recent case decided by the Court of Special Appeals in Maryland adopted the shifting boundary theory, at least for the non-tidal Potomac. In Potomac Shores, Inc. v. River Riders, Inc., 98 A.3d 1048 (Md. Ct. Spec. App. 2014), the court determined that a strip of land along the non-tidal Potomac about a mile downstream from Harper’s Ferry, West Virginia (known as Potomac Wayside) was in Virginia, not Maryland. Potomac Shores argued that the land was in Maryland because the border between the two states was fixed at the time of an 1873 deed in its chain-of-title and that the gradual accretion to the shoreline since that time had no effect on the boundary. (There was no allegation of a flood or a sudden avulsion). River Riders asserted its right to cross the newly created land as now being part of Virginia because the state border relocated as the shoreline slowly expanded.   

In rejecting the “fixed boundary principle,” the Court reviewed the relevant history of boundary disputes along the Potomac River including: conflicting colonial-era land grants; the terms of the 1877 Black-Jenkins Award (discussed at length in Part 1 of this series); a cartographic survey of part of the boundary that was accepted by both states as reflecting the terms of the award; 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; and last, but not least, the U.S. Supreme Court decisions interpreting that history (the federal common law of accretion controls state boundary questions).

In summary, the Court found that the Black-Jenkins Arbitration Award of 1877 between Virginia and Maryland “established a shifting boundary.” As noted in a leading treatise, because the 1877 Award set the border at the low-water mark based on Virginia’s historic use of the shoreline (called prescription), this finding “could only be accomplished on a theory of a shifting boundary.” 2 Shalowitz & Reed Shore & Sea Boundaries 502n.29 (1964).

The Court distinguished subsequent surveys and agreements between the states as limited to the tidal Potomac River (discussed in Parts 1&2 of this series). For non-tidal areas of the Potomac, such as Potomac Wayside, the Court held that the boundary “follows the low-water mark as it presently exists, shifting with gradual changes in the shoreline due to accretion and erosion.” In other words, as the shoreline sluggishly shifted, so too did the border between the two states. Importantly, the Attorneys General of Maryland and Virginia both agreed that Potomac Wayside was Virginia property. Accordingly, the Court ruled the disputed new land to be in Virginia, not Maryland.

So, what might the changing state borders in the Potomac Basin look like in the future? We might see a clue in what is happening in Loudoun County, VA, across the Potomac from Point of Rocks, MD. There, the Virginia shoreline is separated from a large Maryland island by just a few feet of shallow water. (See photograph). What would happen if the accretion of the island gradually continues until it is joined to Virginia by dry land? Will this real estate become part of the Commonwealth of Virginia like Alexander’s Island did as described in Part 1 of this series? Or will this property survive as part of Maryland even though isolated from the rest of the state on the “wrong side” of the Potomac River? Only time will tell.

The final chapter in this series will look yet further upstream, from Harper’s Ferry, West Virginia to the Fairfax Stone.

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