86

BOUNDARIES OF THE

UNITED STATES AND THE SEVERAL STATES

In 1663 the Virginia Assembly ordered a survey of the line between Virginia and Maryland on the peninsula and declared it to be "from Watkins Point east across the peninsula." They defined Watkins Point "to be the north side of Wicomicoe River on the eastern shore and neere unto and on the south side of the straight limbe opposite to Patuxent River." (Hening, 1821, v. 2, p. 184.)

In 1668, commissioners were appointed by Maryland and Virginia to fix the boundary across the peninsula. Their report, dated June 25, 1668, is as follows (Maryland Hist. Soc. Colln. State Papers, v. 4 LCB, p. 63-64):

After a full and perfect view taken of the point of land made by the north side of Pocomoke Bay and south side of Annamessexs Bay have and do conclude the same to be Watkins Point, from which said point so called, we have run an east line, agreeable with the extreamist part of the westermost angle of the said Watkins Point, over Pocomoke River to the land near Robert Holston's, and there have marked certain trees which are so continued by an east line running over Swansecutes Creeke into the marsh of the seaside with apparent marks and boundaries.

Virginia, by the adoption of her constitution of 1776, relinquished all claim to territory covered by the charter of Maryland, thereby fixing Maryland's western boundary as follows:

Commencing on a true meridian of the first fountain of the river Pattawmack, thence verging towards the south unto the further bank of the said river and following the same on the west and south unto a certain place called Cinquack, situate near the mouth of said river where it disembogues into the said aforesaid bay of Chesapeake and thence by the shortest line unto the aforesaid promontory or place called Watkins Point; thence a right line to the main ocean on the east. The boundaries thus described are substantially the present boundaries, but for many years after they were adopted they remained a matter of controversy.

In the constitution of 1776 Virginia "reserved the property of the Virgnia shores or strands [of Potomac and Pocomoke rivers] and all improvements which have or will be made thereon." Maryland, in 1785, assented to this and declared (217 U.S. 579-580; Thorpe, 1909, v. 7, p. 3818) that

navigation and exercise of jurisdiction of the waters of Chesapeake Bay and Potomac and Pocomoke Rivers, it is not given here.

From 1821 to 1858 legislation was frequently enacted in regard to the Virginia boundary.95 In 1858 commissioners were appointed by Maryland and Virginia, respectively, who, with the assistance of Lt. N. Michler, U.S. Engineers, undertook the survey of the lines.

In 1860 the Governor of Virginia, under a resolution of the legislature, appointed an agent and sent him to England to collect records and documentary evidence bearing on this question, but owing to the Civil War nothing further was done until 1867, when legislation again commenced.

The question of this boundary was referred to arbitrators by an agreement made in 1874, in which each State bound itself to accept their award as final and conclusive. In 1877 the arbitrators made the following award:96

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 following the meanderings of said river, by the low-water mark to Smith's Point, at or near the mouth of the Potomac, in the latitude 37°53'8'', and longitude 76°13'46''; thence crossing the waters of the Chesapeake Bay, by a line running north 65°30′ east, about nine and a half nautical miles, to a point on the western shore of Smith's Island at the north end of Sassafras Hammock, in latitude 37°57′13′′, longitude 76°2′52''; thence across Smith's Island south 88°30′ east five thousand six hundred and twenty yards to the center of Horse Hammock, on the eastern shore of Smith's Island, in latitude 37°57'8'', longitude 75°59'20''; thence south 79°30′ east four thousand eight hundred and eighty yards to a point marked A on the accompanying map, in the middle of Tangier Sound, in latitude 37°56′42'', longitude 75°56′23'', said point bearing from Janes Island light south 54° west, and distant from that light three thousand five hundred and sixy yards; hence south 10°30' west four thousand seven hundred and forty yards by a line dividing the waters of Tangier Sound, to a point where it intersects the straight line from Smith's Point to Watkins Point, said point of intersection being in latitude 37°54'21", longiude 75°56′55'', bearing from Janes Island light south 29° west and from Horse Hammock south 34°30' east; this point of intersection is marked B on the accompanying map. Thence north 85°15' east six thousand seven hundred and twenty yards along the line above mentioned, which runs from Smith's Point to Watkins Point until it reaches the latter spot, namely, Watkins Point, which is in latitude 37°54'38'', longitude 75°52'44''; from Watkins Point the boundary line runs due east seven thousand eight hundred and eighty yards, to a point where it meets a line running through the middle of Pocomoke Sound, which is marked C on the accompanying map, and is in latitude 37°54'38'', longitude 75°47'50''; thence by a line dividing the waters of Pocomoke Sound north 47°30′ east five thousand two hundred and twenty yards, to a point in said sound marked D on the accompanying map, in latitude 37°56'25'', longitude 75°45'26''; thence following the middle of the Pocomoke River by a line of irregular curves, as laid down on the accompanying map, until it intersects the westward protraction of the boundary line marked by 05 See report of C. J. Faulkner (commissioner for Virginia), relative to the boundary lines between Virginia and Maryland, published in Doc. 1, House of Delegates of Viginia, 1832, p. 73.

96 20 Stat. L. 481-482. In the original report the degrees of latitude and longitude are given in words; they are here put in figures for convenient reference.

Scarborough and Calvert, May 28th, 1668, at a point in the middle of the Pocomoke River, and in the latitude 37°59'37'', longitude 75°37'4''; thence by the Scarborough and Calvert line, which runs 5°15' north of east, to the Atlantic Ocean: the latitudes, longitudes, courses, and distances here given have been measured upon the Coast Chart No. 33 of the United States Coast Survey (sheet No. 3, Chesapeake Bay)."

The middle thread of the Pocomoke River is equidistant as nearly as may be between the two shores without considering arms, inlets, creeks, or affluents as parts of the river, but measuring the shore from headland to headland.

The low water mark on the Potomac to which Virginia has a right in the soil, is to be measured by the same rule.

In 1972, the States of Maryland and Virginia agreed to a more exact definition of their boundary in the area of Pocomoke Sound. Beginning at point D, mentioned above, the line continues by course and distance to the Scarborough and Calvert boundary.

The following definition of this portion of the boundary is taken from the Code of Virginia, Title 7.1, Section 7.

Beginning at a point which is corner D defined by latitude 37°56′28.00'' and longitude 75°45'43.56''; which is the last point on the Maryland-Virginia line that was defined by the 'joint report of engineers on relocating and remarking Maryland-Virginia boundary line across Tangier and Pocomoke Sounds December 1916'; thence running N 73°34'31.9''E about 17,125.11 feet to corner H a point defined by latitude 37°57′15.82'' and longitude 75°42'18.48''; thence running N 85°39′33.9''E about 3,785.82 feet to corner J a point defined by latitude 37°57′ 18.65" and longitude 75°41'31.25''; thence running S 74°16'00.8''E about 7,278.41 feet to corner K a point defined by latitude 37°56′59.13'' and longitude 75°40'03.89''; thence running S 61°57'55.7''E about 3,664.73 feet to corner L a point defined by latitude 37°56′42.10'' and longitude 75°39'23.51''; thence running N 76°15'24.5''E about 2,263.49 feet to corner M a point defined by latitude 37°56'47.65'' and longitude 75°38′54.85''; thence running N 00°49′51.5''W about 7,178.56 feet to corner N a point defined by latitude 37°57'58.61'' and longitude 75°38'56.15''; thence northeasterly about 31⁄2 miles following the middle thread of the meandering Pocomoke river to corner P a point defined by latitude 37°59'39.37'' and longitude 75°37′26.52'', which is at or near the point of intersection with the "Scarborough and Calvert boundary line of May 28, 1668'; corners N and P are connected by a line running N 35°08'33.5''E about 12,465.32 feet; thence N 83°45'59.9''E about 24,156.95 feet to the boundary monument near triangulation station Davis on the 'Scarborough and Calvert boundary line of May 28, 1668. Geographic positions are based on 1927 datum.

The agreement also defines the mutual seaward boundary as running from trianglation station Boundary Monument Pope Island Life Saving Station (Md.Va.) 1907. The position of this monument is lat 38°01'36.93" N., long 75°14'47.10" W., 1927 N.A.D. The line runs on a bearing of N. 84°05'43.5" E. 1,100 feet to station Atlantic at the shoreline. Station Atlantic is an unmonumented point. Thence it continues on a line of constant latitude to the outer limit of territorial waters. The consent of Congress to this boundary delineation was given October 25, 1972 (86 Stat 1180).

Three copies of this chart were prepared, one for each of the two States and one for the files of the Coast and Geodetic Survey: they show by red lines the boundary eastward from Smith's Point and the line up the Potomac for 18 miles. (See Whiting, 1891, p. 621-623.)

87

BOUNDARY LINES OF THE STATES MARYLAND

The original charter to Lord Baltimore embraced the Potomac River to high-water mark on the south or Virginia shore (174 U.S. 225) but the arbitrators of 1877 changed the boundary to the low-water line, giving as their reason for doing so the long occupation by Virginia of the land above that line; they declared that "the length of time that raises a right of prescription in private parties likewise raises such a presumption in favor of States as well as private parties," 98 and that "Virginia, from the earliest period of her history, used the south bank of the Potomac as if the soil to low-water mark had been her own" (217 U.S. 580). The award of the arbitrators was accepted by the legislatures of the two States and was approved by act of Congress March 3, 1879 (20 Stat. L. 481).

In 1879 and 1880 acts were passed by the Legislatures of Maryland and Virginia to appoint commissioners and to request the general government to designate one or more officers of the Engineer Corps to survey and mark this line and erect monuments thereon, but little of permanent value seems to have been accomplished. (Whiting, 1891, p. 621-623.)

In 1927 the Governors of Maryland and Virginia directed the State geologists to examine the west shore of the Potomac and to recommend points (headlands) between which straight lines should be drawn for the boundary. Their report,99 submitted December 21, 1927, contains six maps on which are indicated by red lines the position recommended. The location of the boundary line as thus indicated was accepted by Virginia act approved March 26, 1928 (chap. 477) and by Maryland act of March 8, 1929 (chap. 50), and appropriations were made by each State for the surveying and marking of the line.

Commissioners were appointed by the States of Maryland and Virginia in 1916

to mark and maintain with buoys placed at intervals of not more than one mile apart the line between the waters of the State of Maryland and the waters of the State of Virginia, from Cedar Straights in Pocomoke Sound of Williams Point in Pocomoke River.

Their report, with descriptions of marks established and some historical matter, was published in Baltimore in 1917.

98 Title to United States or State land cannot be acquired by adverse possession, even though long continued. The statute of limitations does not hold against the United States or a State where possession of land is concerned. 39 Fed. 654; 95 Pac. 278.

99 Mathews and Nelson (1928). This report contains historical references to the boundary disputes between 1668 and 1889 and acts of Virginia and of Maryland relating to boundaries.

88

BOUNDARIES OF THE

UNITED STATES AND THE SEVERAL STATES

The line across Chesapeake Bay from Smiths Island to Tangier and Pocomoke Sounds by way of Watkins Point was marked by buoys anchored to 1,000-pound masses of concrete.

Commissioners appointed in 1859 by Virginia and Maryland surveyed a line for the western boundary of Maryland from the "Fairfax Stone" (see p. 94), at the "first fountain" of the Potomac, north to the Pennsylvania line. This survey was accepted by Maryland but not by Virginia, nor was it accepted by West Virginia when made a State. An area of about 40 square miles remained in dispute until 1910, when commissioners appointed by the U.S. Supreme Court and acting under its direction resurveyed the line and placed the initial point, which thereby became the southwest corner of Maryland, on the south bank of the North Branch of Potomac River, 3,989 feet from the Fairfax Stone on a line N. 0°56′ E. from it. From that point (monument 1) the line

crosses the said North Branch of the Potomac, and thence running northerly, as near as may be, with the Deakins or old State line of the State of Pennsylvania.

The "Deakins line" followed the boundaries of old land grants made by Maryland and Virginia and, reestablished in 1910 by the commissioners, is a broken line with a general bearing a little east of north. There are five offsets in the line, which run nearly east and west and range in length from 54 to 971 feet. A large concrete monument was erected at each angle and many at intermediate points, 60 in all, on the line, which is nearly 36 miles long.

The following quotation from the report, dated October 31, 1911, of the commissioners to the Supreme Court of the United States, which was confirmed by the court May 27, 1912 (225 U.S. 31), shows how boundary lines are often determined1 (see fig. 20):

a large anciently marked white oak tree. This tree was cut and blocks were taken out by your commissioners which showed surveyors' axe marks in the wood; one 130 years old, one 117 years, and the last 78 years, thus indisputably establishing this course as following the oldest marked line extant.

Fairfax Stone is lat 39°11'41.62'' N., long 77°29' 15.31" W. Monument 1 is in lat 39°12'21.14'' N., long 79°29'14.48'' W., and the monument on the MasonDixon line is lat 39°42'15.68" N., long 79°28′37.53'' W. These positions are referred to the 1927 N.A.D.

1225 U.S. 3. Also, the National Geographic Magazine for December 1929 describes in considerable detail the method for determining dates from the count of the annual growth of tree rings.

From monument 1 the boundary between Maryland and West Virginia extends along the south bank of the North Branch of the Potomac to the Virginia and West Virginia State line.

A chronological outline of events relating to Maryland boundaries is given in "Maryland Boundary Disputes" by Charles Morrison.

DISTRICT OF COLUMBIA

On September 5, 1774, the Continental Congress met at Philadelphia. Two years later it adjourned to Baltimore. During the Revolution and subsequent to the treaty of peace, it met in various places. (See p. 167.) After the end of the war there was much debate in regard to the location of a permanent seat of the Government of the United States. Several States made propositions to Congress, offering to cede certain lands for the purpose, but no determination of the location was made by Congress until 1790.2

On December 23, 1788, Maryland passed the following act:

Be it enacted by the general assembly of Maryland, That the representatives of this State in the House of Representatives of the Congress of the United States, appointed to assemble at New York on the first Wednesday of March next, be, and they are hereby, authorized and required on the behalf of this State to cede to the Congress of the United States any district in this State, not exceeding ten miles square, which the Congress may fix upon and accept for the seat of government of the United States.

In the following year (Dec. 3, 1789) the State of Virginia passed a similar act, from which the following is an extract:

Be it therefore enacted by the general assembly, That a tract of country not exceeding ten miles square or any lesser quantity, to be located within the limits of the State and in any part thereof as Congress may by law direct, shall be, and the same is hereby, forever ceded and relinquished to the Congress and Government of the United States, in full and absolute right and exclusive jurisdiction, as well of said soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the 1st article of the Constitution of the Government of the United States.

After long discussion Congress, in view of these cessions by Maryland and Virginia, passed an act, approved July 16, 1790, from which the following is an extract (1 Stat. L. 130):

That a district of territory, not exceeding ten miles square, to be located as hereafter directed on the river Potomac, at some place between the mouths of the Eastern Branch and Connogochegue, be, and the same is hereby, accepted for the permanent seat of the government of the United States: Provided, nevertheless, That the operation of the laws of the State within such district shall not be affected by this acceptance until the time fixed for the removal of the Government thereto, and until Congress shall otherwise by law provide. three commissioners, who, or any two of whom, shall,

2 For reference to the discussions which resulted in selecting the site on the Potomac, see Bryan (1914, v. 1, chap. 1). For a historical sketch of the area now included in the District of Columbia, see U.S. Cong. (1901).

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BOUNDARIES OF THE

UNITED STATES AND THE SEVERAL STATES

under the direction of the President, survey, and by proper metes and bounds define and limit, a district of territory, under the limitations above mentioned; and the district so defined, limited, and located shall be deemed the district accepted by this act for the permanent seat of the Government of the United States. That on the first Monday

in December, in the year 1800, the seat of the Government of the United States shall, by virtue of this act, be transferred to the district and place aforesaid.

In 1791 the foregoing act was amended, in order to include a portion of the Anacostia River ("Eastern Branch") and the town of Alexandria within the limits of the District. The following is an extract from the act of amendment, approved March 3, 1791 (1 Stat. L. 214):

That so much of the act entitled "An act for establishing the temporary and permanent seat of the government of the United States" as requires that the whole of the district of territory, not exceeding ten miles square, to be located on the river Potomac for the permanent seat of the government of the United States, shall be located above the mouth of the Eastern Branch, be, and is hereby, repealed, and that it shall be lawful for the President to make any part of the territory below the said limit and above the mouth of Hunting Creek, a part of the said district, so as to include a convenient part of the Eastern Branch, and of the lands lying on the lower side thereof, and also the town of Alexandria; and the territory so to be included shall form a part of the district not exceeding ten miles square for the permanent seat of the government of the United States, in like manner and to all intents and purposes as if the same had been within the purview of the above recited act: Provided, That nothing herein contained shall authorize the erection of the public buildings otherwise than on the Maryland side of the river Potomac, as required by the aforesaid act. In pursuance of the acts above cited, three commissioners were appointed under whose direction surveys of the territory were to be made, and on March 30, 1791, President Washington issued a proclamation, in which the bounds of the District were defined as follows (Bryan, 1914, p. 120, 132, 133):

Beginning at Jones's Point, being the upper cape of Hunting Creek, in Virginia, and at an angle in the outset of 45 degrees west of the north, and running in a direct line 10 miles for the first line; then beginning again at the same Jones's Point and running another direct line at a right angle with the first across the Potomac, 10 miles for a second line; then, from the termination of the said first and second lines, running two other direct lines, of ten miles each, the one crossing the Eastern Branch aforesaid, and the other the Potomac, and meeting each other in a point.

In 1800 Congress removed to this District. In 1801 the District was divided into two counties, as follows (2 Stat. L. 105):

the said district of Columbia shall be formed into two counties; one county shall contain all that part of said district which lies on the east side of the river Potomac, together with the islands therein, and shall be called the county of Washington; the other county shall con

tain all that part of said district which lies on the west side of said river, and shall be called the county of Alexandria; and the said river, in its whole course through said district, shall be taken and deemed to all intents and purposes to be within both of said counties.

In 1846 Congress passed an act providing for the retrocession to Virginia of that part of the District of Columbia originally ceded to the United States by Virginia. The following is an extract from this act (9 Stat. L. 35-36):

That with assent of the people of the county and town of Alexandria, to be ascertained as hereinafter prescribed, all of that portion of the District of Columbia ceded to the United States by the State of Virginia, and all the rights and jurisdiction therewith ceded over the same, be, and the same are, hereby ceded and forever relinquished to the State of Virginia in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside thereon.

The method prescribed for ascertaining the assent of the people of Alexandria was by oral vote of free white male citizens, to be taken before five commissioners appointed by the President.

There were 763 votes cast in favor of recession and 222 against it. The President, therefore, by proclamation dated September 7, 1846 (9 Stat. L. 1000), declared the act "in full force and effect." The southwestern boundary of the District of Columbia thus became coincident with that part of the boundary of Maryland prior to December 23, 1788, regarding which the U.S. Supreme Court stated (174 U.S. 225)

that upon all the evidence, the charter granted to Lord Baltimore, by Charles I, in 1632, of the territory known as the Province of Maryland, embraced the Potomac River and the soil under it, and the islands therein, to highwater mark on the southern or virginia shore; nor was such grant effected by the subsequent grant to Lord Culpepper.

Congress in the act (20 Stat. L. 481) approving the award of the arbitrators of 1877 for Maryland and Virginia provided that nothing therein contained "shall be construed to impair or in any manner affect any rights of jurisdiction of the United States in and over the islands and waters" of the Potomac.

Below are given extracts from an opinion by the Attorney General dated January 16, 1912, relating to the high-water line on the south bank of the Potomac as the boundary line between the District of Columbia and Virginia.

In the Potomac River there is a high-water line due to freshets at 13 feet above mean low tide. There is a high-tide line not influenced by freshets or caused by high winds at 8.8 feet above mean low tide. There is a mean high tide at about 5 feet above mean low water, and that is the elevation along which drift, trash, etc., remain as an indication; and there is a mean tide line at 3 feet above low water.

High-water mark in a river or stream is "the point to which the water usually rises in an ordinary season of high water" (Johnson v. Knott, 13 Oreg. 308).

"High-water mark is to be determined not from human records but from the records which the river makes for itself," and the true line is "that which the river impressed upon the soil as the limit of its dominion" (Houghton v The Chicago D.&M.R. Co.: 47 Iowa, 370-373).