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Legal battle continues over Md./Va. boundary along Potomac River

February 10, 2013|By DON AINES | dona@herald-mail.com

HAGERSTOWN — A legal wrangle over where Maryland ends and Virginia begins is continuing, despite a Washington County circuit judge’s recent ruling that Maryland’s border ends at the water’s edge on the south side of the Potomac River.

Judge M. Kenneth Long Jr. granted a motion by river-ride operators River & Trail Outfitters Inc. of Knoxville, Md., and River Riders Inc. of Harpers Ferry, W.Va., to dismiss a lawsuit by Potomac Shores Inc., which owns a section of the river bottom.

In its suit, Potomac Shores claimed that river-rafting operators were using land on the Virginia shore that was within the boundary of Maryland, due to changes in the river’s level and course over the years. That dry land would therefore belong to Potomac Shores, the suit said.

“This case is about their use of my client’s land that is above water,” Potomac Shores attorney Bradford Webb told Long in a November hearing on the dispute. Potomac Shores needs to be indemnified against loss or damage and the river-ride operators “need to pay us a fee for the use of our lands,” Webb said in November.

A phone message left with Webb seeking comment was not returned Friday.

The raft operators argued that claims of trespassing above the low-water mark on the Virginia side were not within the jurisdiction of the court. The rafting companies use a section of shore to take customers off the river that was being claimed by Potomac Shores.

However, Long wrote in his decision last month that, “This established boundary, one that is solid in both law and fact, serves the interests of Maryland, Virginia and their citizens.”

“Ruling in any other way could reignite a centuries-long string of controversies that both states have repeatedly sought to lay to rest,” Long’s order stated.

“The controlling legal event is the ratification of the Black-Jenkins Award,” an 1874 agreement between Maryland and Virginia that set Maryland’s border at the low-water mark on the Virginia side of the river.

An accepted boundary was established by a later survey and affirmed in 1959, Long wrote.

Long wrote, “the boundary between Maryland and Virginia follows the low-water mark on the south side of the Potomac River as it shifts over time.”

Maryland has no jurisdiction above that mark, he wrote.

“I think that’s in line with historic precedent and the common understanding of the boundary,” Charles Bailey, the attorney for River & Trail Outfitters, said last week.

However, late last month, Potomac Shores filed a motion for reconsideration, asking for an evidentiary hearing to determine if the low-water mark has moved due to accretion of silt or changes in the river’s course, the motion said.

“If the low-water mark moved ... the boundary between Maryland and Virginia would not have moved with the low-water mark, and therefore the land in question would be within the state or Maryland,” the motion said.

Potomac Shores also argued in the motion that the case should remain in Maryland jurisdiction because rock outcroppings in the river channel are indisputably in Maryland, and Virginia has no jurisdiction on trespass complaints on those outcroppings.

River & Trail Outfitters on Thursday filed an answer to the Potomac Shores motion stating that, at the site in question, the change in the shoreline was slow and gradual over a period of 60 years, “thereby preserving the riparian right of access.”

Regarding the outcroppings, the motion states they “are part of the bedrock of the river” and are subject to the public’s right to navigate on the waterway.

The river bottom land in question has been in private hands since 1833, Webb said in November. Maryland stopped granting deeds to river-bottom land in 1862, but ownership of this section has been passed along to subsequent private owners, he said.

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