Who Owns the Potomac? (Part 4 of 4)

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. Note: this series does not address usage of the Potomac River (water, oysters, structures, etc.) but only the state line issue.

The Potomac River Watershed covers approximately 14,000 square miles and comprises numerous familiar rivers (such as the Shenandoah and the Monocacy), many named streams and countless unnamed tributaries. Yet, only one place in the entire Basin is generally recognized as the “source” of the Nation’s River. Where is that place? How was it determined? And which of the five Basin jurisdictions can claim ownership? 

Readers of my previous installments will recall how I began this series by discussing the boundary line between Virginia and Maryland south of Washington, DC. In Part 1, I showed how the 1877 Black-Jenkins Arbitration Award determined that the boundary would follow the curving low-water mark of the Virginia shoreline south of Jones Point in Alexandria, VA to Smith’s Point at the mouth of the Potomac, except for tangents where the boundary would consist of straight lines between specific headlands. Heading upstream, part 2 traced the Congressional action that finally settled disputes regarding the curving Virginia-DC boundary as the high-water mark in 1945. In part 3, I journeyed from Little Falls to Harper’s Ferry and examined how a recent court case determined that the state boundary shifts in the non-tidal Potomac as the wandering River changes its course.   

In this concluding chapter, I end where I could have begun --- at the source of the Potomac River at what has become known as the “Fairfax Stone.”

The story begins with a land grant from Charles I to Lord Baltimore on June 20, 1632 that establishes the western border of what is now Maryland from its northern boundary with Pennsylvania along “the true meridian of the first fountain [source] of the river Potomac.” Similarly, in 1688 King James II bequeathed Thomas (Lord) Culpeper all the land between the Potomac and Rappahannock rivers to a line to be drawn between their sources or first fountains. Lord Fairfax inherited this bequest. In 1736 Lord Fairfax and Virginia’s Lieutenant-Governor William Gooch sent a survey party upstream in the summer of 1736 to find the source of the Potomac River to establish the northwestern corner of the Fairfax Grant. Near Old Town, MD, the surveyors had to choose whether to continue straight along what we now call the North Branch or go left along the South Branch.

The surveyors would be expected to follow the larger of the two tributaries as a general geographic rule. Detailed data now shows that flows slightly favor the South Branch. Determining which branch was the major one in 1736 could have been influenced by rainfall that summer. (For example, in 1969 the South Branch did have the lower average flow). In fact, the South Branch is longer than the North Branch and arises further west.  

In any event, the surveyors chose to follow the North Branch and determined that a small tributary called Fairfax Spring was the “first fountain of the Potomac.” A subsequent survey of 1746 along the so-called “Fairfax Line” between the sources of the Potomac and Rappahannock rivers came to the same conclusion. A block of native sandstone engraved “Ffx” was planted at the northern end of the line to mark the headwaters of the North Branch. This was the first of five “Fairfax Stones” at that location marking the source of the Potomac River.

In contrast, Maryland maintained that the true “first fountain of the Potomac” was located at the end of Potomac Spring that also flowed into the North Branch and would have expanded its territory significantly by moving the “true meridian” further west by over a mile. (Interestingly, Maryland seems not to have pressed the argument that the South Branch could have been considered the main stem of the Potomac). In 1897, a Maryland surveyor marked this spot with what was dubbed the “Potomac Stone.” West Virginia (which succeeded to the rights and title of Virginia) insisted that the Fairfax Stone was the source of the Potomac and the proper anchoring point of the boundary line. In addition, West Virginia disputed Maryland’s claim to the Potomac River arguing that the north bank of the Potomac River, from above Harper's Ferry to what is known as the Fairfax Stone, to be the true boundary between the states.

The U.S. Supreme Court ruled on both issues in the landmark case of Maryland v. West Virginia, 217 U.S. 1 (1910). In that case, the Court quickly disposed of West Virginia’s assertion of jurisdiction over the Potomac River by citing language in the charter granted by King Charles I to Lord Baltimore (“unto the further Bank of said River”) relying on  Morris v. United States, 174 U.S. 196 (1899). In subsequent proceedings in the 1910 case, the Court determined that “the south bank of the Potomac River at low water mark” would be the boundary between the two states in order to give Maryland “a uniform southern boundary” along Virginia and West Virginia. 217 U.S. at 581.

Determining whether the Fairfax Stone was “the first fountain” of the Potomac, however, presented a more difficult issue. The Court spent many pages discussing the long history of the efforts to settle the location of the source of the Potomac River. Surprisingly, the Court seemed to suggest that Maryland may have had the better position on paper: “It may be true that the meridian line from the Potomac Stone, in the light of what is now known of that region of country, more fully answers the calls in the original charter than does a meridian line starting from the Fairfax Stone.” 217 U.S. at 26.

Nonetheless, the Court gave great weight to the occupation and conveyance of the lands in the area which demonstrated that the people generally adopted the Fairfax Stone as the anchor of the boundary line for many years. Accordingly, the Court concluded that “a right in its nature prescriptive has arisen, practically undisturbed for many years, not to be overthrown without doing violence to principles of established right and justice equally binding upon states and individuals.” 217 U.S. at 44. In short, while the Court acknowledged the strength of Maryland’s position, the Court pointed to the long history associated with the Fairfax Stone and the acceptance of the boundary line by people in the area for many years.

But even a cursory look at Google Maps reveals that today’s Maryland /West Virginia line fails to reach the Fairfax Stone. If the Fairfax Stone provides the anchor for this meridian, shouldn’t Maryland's westernmost boundary intersect the Fairfax Stone?

Examining the 1910 Supreme Court decision explains this “gap.” The Court established the boundary line between Maryland and West Virginia as running westward along the southern bank of the North Branch of the Potomac River “to the point where the north and south line from the Fairfax Stone crosses the said North Branch of the Potomac, and thence running northerly … to the line of the State of Pennsylvania.” 217 U.S. at 582. Commissioners appointed by the Court to mark this boundary with monuments discovered that the spring that is the source of the North Branch flows westward upon emerging from the ground before curving northeasterly where it crosses the line drawn north from the Fairfax Stone. At this point, about one mile downstream from the Fairfax Stone, the Commissioners erected another stone (Monument No. 1) identifying Maryland's southwestern tip near Kempton, Md.

Today, the current Fairfax Stone was dedicated as a state historic monument and became part of the West Virginia State Park system in 1957 when the Western Maryland Railroad gave four acres of land surrounding the stone to the state. In 1970, the stone was listed on the National Register of Historic Places.