Virginia, Maryland & Washington DC

Cowherd PLC
  • Call Today
    703.884.2894
  • Home
  • Practice Areas
    • Construction Law
    • Community Associations Law
    • Neighbor Law
    • Property Litigation
  • About Cowherd PLC
    • Contact the Firm
    • Frequently Asked Questions
    • Meet John C. Cowherd
    • Website Disclaimer
  • Words of Conveyance Blog
    • Search by Topic
    • Subscribe to Receive Emails
  • Become A Client
Get in Touch

Tag: Oysters

Home / Oysters
Court Confirms Border Between Maryland and Virginia is Changing
September 8, 2014
Litigation, Neighbor Relations
Accretion, Boundary Disputes, Erosion, Harpers Ferry, Litigation, Maryland, Northern Virginia, Oysters, Potomac River, Potomac Wayside, Prescriptive Easements, Reliction, Riparian

Court Confirms Border Between Maryland and Virginia is Changing

 

The boundary between Maryland and Virginia has been the subject of legal disputes for hundreds of years. On August 29, 2014, the Maryland Court of Special Appeals added another chapter to this “meandering” tale. The Court issued an opinion in a dispute over rights to certain waterfront property near Harper’s Ferry, West Virginia. River Riders, Inc., is a fishing, tubing and rafting tour company doing business in the “Potomac Wayside” area (pictured) along the southern bank of the upper Potomac River. Potomac Shores, Inc. claims the Potomac Wayside tract through their Washington County, Maryland, deed describing the south side of the Potomac as a boundary line. Potomac Shores asserts the parcel is in Maryland, because that geographic area was in the Potomac River before gradual accretion of the shoreline. From Potomac Shores’s perspective, that accretion is their windfall, not River Rider’s. Potomac Shores brought their title lawsuit in Washington County, Maryland. River Riders moved to dismiss on the grounds that the Potomac Wayside land is located in Loudoun County, Virginia, not Maryland.

I became interested in Maryland history during my undergraduate years in Annapolis. In 1996, I had a summer internship with the National Park Service in Sharpsburg, a small town in Washington County, Maryland. Harper’s Ferry remains one of my favorite day excursions, a beautiful spot where the Shenandoah River flows into the Potomac. This is where Maryland, West Virginia and Virginia meet. Along the Maryland side, the C&O Canal towpath offers a flat, scenic hiking and biking trail. Certainly an attractive area for entrepreneurs to base a river tourism business.

The historic Maryland-Virginia border disputes cover a spectrum of issues. Before this latest Maryland lawsuit, most disputes focused on use of oyster beds in Bay tidal areas. The passion for shellfish amid confusingly defined property rights repeatedly escalated into violence between Maryland and Virginia watermen. In 1874, Maryland and Virginia agreed to submit the boundary dispute to arbitration to resolve the matter peacefully.

The Potomac River is part of Maryland and the state boundary runs along the low-water mark on the Virginia side. What happens when this line moves? The Maryland Court of Special Appeals articulated the legal question as follows: “Does the boundary between Maryland and Virginia shift as the south bank of the Potomac alters because of time and the forces of nature? Or is the boundary fixed and immutable?” Potomac Shores argues that the boundary was set in the past and the gradual process of accretion, erosion and relection resulted in “new” land formed on the south bank of the Potomac.

Note that it has long been settled that the Potomac River is freely navigable by the citizens of the states, and that the waterfront property owners have rights to build docks and wharfs out into the river, as permitted under land use restrictions.

The conclusion reached by the Maryland Court of Special Appeals runs contrary to our modern preference towards “precision.” The Court rejected the “fixed boundary” approach requested by Potomac Shores. The Court upheld the Circuit Court decision, finding that, for the non-tidal portion of the Potomac River, the boundary shifts as time and the forces of nature gradually re-shape the low water-mark of the river’s “southerly shore.” This implies that the border between Maryland and Virginia is changing, by acts of nature, not government. This also means that those private landowners along the Maryland-Virginia border also have potentially shifting boundaries. Virginia’s Potomac waterfront landowners above Washington, D.C., may loose or gain waterfront property as the currents withdraw, add or relocate the shoreline.

The court’s decision avoids the problem of defining the water line boundaries as those that existed at a certain point of time in the past, such as a land grant or other legally significant document.

The new court opinion observes that the result of the case may be different if the accretion of the Potomac Wayside property was man-made. The opinion does not discuss waterfront landowners planting vegetation, constructing sea walls and laying rip-rap to protect their properties from natural change.

The Court analogizes state boundary lines and individual property boundary lines, quoting Justice Kennedy’s dissent in an older Virginia v. Maryland boundary case: “No court acts differently in deciding on Boundary between states, than on lines between separate tracts of land.” For example, the arbitrators in 1874 observed that, “Virginia’s prescriptive use of the river’s south bank had changed the boundary to the south bank’s low-water mark for the course of the entire river.” What is prescriptive use of real estate? Professor Minor defined it in his 1908 treatise as, “based upon the presumption of a grant, arising after long-continued, adverse, uninterrupted, notorious, exclusive enjoyment of a right in the land of another, under a claim of title.” The presumption becomes conclusive after twenty years. Was the arbitrator’s reference to the doctrine of prescriptive easements appropriate? Or is it a red herring?

The border between Maryland and Virginia is changing – is your boundary meandering as well? If you are currently experiencing a dispute with one of your neighbors concerning a property boundary defined by a river, stream, lake or other waterway, consult with a qualified attorney in order to explore your options to protect your rights.

Case Citation: Potomac Shores, Inc. v. River Riders, Inc., 219 Md. App. 29 (Ct. Spec. App. Md. Aug. 29, 2014)(Koehoe, J.)

Treatise Citation: Raleigh C. Minor, The Law of Real Property, Sect. 108 (1908).

Photo Credit: Camera John via photopin cc (apparently taken at Potomac Wayside, Purcellville, Virginia)

Continue Reading
Share

Search by Category

  • Community Associations
  • Construction & Renovation
  • Foreclosures
  • Land Use & Zoning
  • Landlord-Tenant
  • Litigation
  • Neighbor Relations
  • Uncategorized
Archive
  • April 2025
  • March 2025
  • February 2025
  • December 2024
  • October 2024
  • March 2024
  • February 2024
  • November 2023
  • June 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • July 2022
  • June 2022
  • April 2022
  • March 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • June 2020
  • May 2020
  • March 2020
  • February 2020
  • December 2019
  • October 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • September 2017
  • July 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • December 2015
  • November 2015
  • October 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
Categories
  • Community Associations
  • Construction & Renovation
  • Foreclosures
  • Land Use & Zoning
  • Landlord-Tenant
  • Litigation
  • Neighbor Relations
  • Uncategorized
Pages
  • About Cowherd PLC
  • Blog Archive
  • Community Associations Law
  • Construction Law
  • Contact the Firm
  • Cowherd PLC – Representing the Interests of Property Owners
  • Frequently Asked Questions
  • Meet John C. Cowherd
  • Neighbor Law
  • Property Litigation
  • Search by Topic
  • Subscribe to Receive Emails
  • Testimonials
  • Website Disclaimer
  • Words of Conveyance

Copyright 2024. Cowherd, PLC. Website by Jonas Marketing

  • Home
  • Practice Areas
    • Construction Law
    • Community Associations Law
    • Neighbor Law
    • Property Litigation
  • About Cowherd PLC
    • Contact the Firm
    • Frequently Asked Questions
    • Meet John C. Cowherd
    • Website Disclaimer
  • Words of Conveyance Blog
    • Search by Topic
    • Subscribe to Receive Emails
  • Become A Client