Maryland Appellate Court Rules on Potomac River Property Dispute

Potomac River Property Dispute

“Rising in the Appalachian Highlands of Maryland and West Virginia, the Potomac River (River) flows nearly 400 miles before emptying into Chesapeake Bay. For the lower part of its course, it forms the boundary between Maryland and the District of Columbia on the north, and West Virginia and Virginia on the south.”

“Control of the [Potomac] River has been disputed for nearly 400 years. In the 17th century, both Maryland and Virginia laid claim to the River pursuant to conflicting royal charters issued by different British monarchs. See Maryland v. West Virginia, 217 U. S. 1, 24, 29 (1910); Morris v. United States, 174 U. S. 196, 22, 225 (1899).”

-Chief Justice Rehnquist, Virginia v.Maryland, 540 U.S. 56, 60 (2003).

Over the last 100 years,the Supreme Court has had to decide who owns the rights to the Potomac River in multiple disputes between Maryland and its two southern neighbors. In 1910, the Court held that the boundary between the states of Maryland and West Virginia is the “south bank” of the Potomac River. See Maryland v. West Virginia, 217 U.S. 1 (1910). And in 2003, the Court ruled that, “Maryland and Virginia each has a sovereign right to build improvements appurtenant to her own shore and to withdraw water, without interfering with the proper use of the River by the other.” Virginia v.Maryland, 540 U.S. 56, 73 (2003).

The Potomac River at Harpers Ferry the site of the current dispute

This centuries-old river-boundary dispute once again reared its ugly head in Maryland’s Washington County Circuit Court. There, Potomac Shores Inc. (an entity which claims ownership of certain sections of the Potomac River bottom) has alleged that three Potomac & Shenandoah River outfitters (River & Trail Outfitters, River Riders Inc., & Harpers Ferry Adventure Center) all are trespassing on Potomac Shores property through their river running businesses. Once again, this case rests on the question of exactly where the Maryland side of the Potomac River ends and the “south side” of the river (aka state of Virginia/West Virginia) begins.

In the current dispute, Potomac Shores has claimed trespass on their ownership of the river bottom (which is not Virginia/West Virginia land according to the Supreme Court) including dry land on the Virginia side of the river. In other words, despite clear Maryland/Virginia/West Virginia Supreme Court cases, Potomac Shores argued that the boundary lines of the states may really not actually be what exists on Potomac River banks today. Another Supreme Court case ruled that the boundary between mid-western states is the low-water mark on the relevant side of the river as it existed when the mid-western state was “admitted to the Union.”Ohio v.Kentucky, 444 U.S. 335 (1980). Thus, Potomac Shores surprisingly claims that their river-bottom ownership extends to the Virginia side take-outs used by the outfitters. Even if the Judge accepts this argument, Potomac Shores will have to presumably prove what river boundaries existed when the United States were first created, as Maryland and Virginia were original colonies (which is different for the mid-western states in Ohio v.Kentucky which were “admitted to the Union” after the establishment of the Nation).

Last year, Washington County Circuit Court Judge M. Kenneth Long Jr. addressed the three outfitters motion to dismiss the Potomac Shores’ lawsuit. Judge Long had ruled that Potomac Shores’ matter should be dismissed because the case could only be brought in Virginia (as the trespass alleged by Potomac Shores occurred in Virginia). Judge Long’s ruling explained that (1) Ohio v. Kentucky is a different situation than the Potomac River (where there has existed clear precedent for over a century for clear boundaries of the states adjacent to the Potomac River) and (2) private Potomac River bottom ownership was disallowed (for future and current ownership) in prior Supreme Court precedent and agreement of the states.

Last week, the Maryland Court of Special Appeals agreed with Judge Long, rejecting Potomac Shores argument that the three whitewater outfitters had been trespassing on Potomac Shores land, stating that the entity did not own the strip that had formed since the late 1800s on the opposite shore. Specifically, the Court of Special Appeals stated that “as to the nontidal portion of the river,[Maryland’s] boundary with Virginia shifts as time and the gradual forces of nature alter the location of the Potomac River’s southerly shore.”

While Potomac Shores still has the option to seek review in the Maryland Court of Appeals, hearing the appeal is not mandatory and the Court of Special Appeals decision is unlikely to be overturned.

The expert attorneys at Longman & Van Grack advise all types of Maryland and Washington, DC entities with regard to appeals, river disputes, and property disputes. Call (301) 291-5027 if you would like a consultation with our attorneys.