Maryland State Archives

This collection contains the authenticated testimony, reports, opinions and decrees in the case of the State of Maryland vs. the State of West Virginia, 1891-1912, once owned by one of the Boundary Commissioners for Maryland, W. McCulloh Brown, of Oakland, Maryland. Commissioner Brown dissented from the Boundary award and was a firm supporter of the Potomac Stone as opposed to the Fairfax Stone accepted by the Court as the point at which the northern branch of the Potomac originated. [NOTE: From the outset, Maryland told the court that the compact of 1785 "dealt only with the southern boundary of Maryland, and was confined in its scope to the consideration of questions of navigation and jurisdiction over that part of the Potomac River which was navigable, and had nothing directly to do with the western boundary of the State of Maryland. ..." See MSA S 58-20-1 below. ecp 12/18/00]

1891/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Bill of Complaint and Answer
(Old Accession No.: 18,011-1)
MSA S 58-15 For multilayer tif images of MSA S 58-15 for whole document printing, click here. These tend to be very large images and will take some time to load.

1908/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 1-496
(Old Accession No.: 18,011-2)
MSA S 58-16 For multilayer tif images of MSA S 58-16 for whole document printing, click here. These tend to be very large images and will take some time to load.

1908/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 497-986
(Old Accession No.: 18,011-3)
MSA S 58-17 For multilayer tif images of MSA S 58-17 for whole document printing, click here. These tend to be very large images and will take some time to load.


1908/10
Description: U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 987-1474
(Old Accession No.: 18,011-4)
MSA S 58-18 For multilayer tif images of MSA S 58-18 for whole document printing, click here. These tend to be very large images and will take some time to load.


1908/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Transcript, pp. 1475-1990
(Old Accession No.: 18,011-5)
MSA S 58-19 For multilayer tif images of MSA S 58-19 for whole document printing, click here. These tend to be very large images and will take some time to load.


1909/10
U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia.

Brief for the State of Maryland, filed October 19, 1909.
(Old Accession No.: 18,011-6)
MSA S 58-20-1. Multilayer tif image (large) for printing

Addenda to Brief for the State of Maryland, filed November 1, 1909.
(Old Accession No.: 18,011-6)
MSA S 58-20-2. Multilayer tif image (large) for printing

Brief for the State of West Virginia
(Old Accession No.: 18,011-6)
MSA S 58-20-3. Multilayer tif image (large) for printing

Supplemental Brief for the State of West Virginia.
(Old Accession No.: 18,011-6)
MSA S 58-20-4. Multilayer tif image (large) for printing

MSA S 58-21-1, Motion by Complainant Set Cause for Hearing and Consent of Defendant Thereto, filed May 17, 1908, Multilayer tif image (large) for printing.

MSA S 58-21-2, Opinion by Mr. Justice Day, February 21, 1910, Multilayer tif image (large) for printing.

MSA S 58-21-3, Decree Proposed by the State of Maryland, filed April 20, 1910, Multilayer tif image (large) for printing.

MSA S 58-21-6, Decree, filed April 20,1910, Multilayer tif image (large) for printing.

MSA S 58-21-4, Brief of Counsel for West Virginia on Points Involved in the Settlement of the Final Decree, filed May 14, 1910 Multilayer tif image (large) for printing.

MSA S 58-21-5, Opinion of Mr. Justice Day, May 31, 1910, Multilayer tif image (large) for printing.

MSA S 58-21-7, Report of Commissioners Appointed by the Supreme Court in to Run, Locate and Establish and Mark the Boundary Line Between the States of Maryland and West Virginia from the Potomac River to the Pennsylvania State Line, 1910-1911, filed October 31, 1911, Multilayer tif image (large) for printing.

MSA S 58-21-8, Separate Report of Commissioner W. McCulloh Brown, Including Protests and Exceptions in Respect to the Report of Commissioners Julius K. Monroe and Samuel S. Gannett, filed November 1, 1911, Multilayer tif image (large) for printing.

MSA S 58-21-9, Supplemental Report of Julius K. Monroe and Samuel S. Gannett, Commissioners, Multilayer tif image (large) for printing.

MSA S 58-21-10, Brief on Behalf of West Virginia, filed April 29, 1912, Multilayer tif image (large) for printing.

MSA S 58-21-11, Brief on Behalf of Maryland, filed May 14, 1912, Multilayer tif image (large) for printing.

MSA S 58-21-12, Proposed Decree (West Virginia), filed May 13, 1912, Multilayer tif image (large) for printing.

MSA S 58-21-13, Final Decree, May 27, 1912, Multilayer tif image (large) for printing.

[Note that Justice Day issues two opinions and that the decree of April 20, 1910, was not entered into the record until appended to Justice Day's opinion of May 31, 1910. In the second opinion(S58-21-5.tif) he sets the boundary from Harper's Ferry to the source of the Northern Branch of the Potomac on the low water mark of the southern shore (West Virginia bank) of the Potomac and repeats verbatim the decree language of April 20, 1910, language that appears to have been derived from the Maryland proposed decree filed the same day. In order to understand how Justice Day misread or misunderstood the language of the Decree proposed by Maryland and thus offered erroneous dicta on the applicability of the Compact of 1785 to the waters of the Potomac between West Virginia and Maryland, the chronology of Justice Day's first opinion, the proposed Decree, the decree, and Justice Day's final opinion and decree, must be kept in mind. Justice Day rendered his first opinion on February 21, 1910, requiring both sides to submit proposed language in light of the opinion for his final decree. In this first opinion, no mention was made of the applicability of the Compact of 1785 to the Potomac between Maryland and West Virginia. The whole thrust of the case to that point was to determine the location of the beginning point of the Northern Branch of the Potomac (the Fairfax or the Potomac Stone). Justice Day went so far as to suggest that if Maryland had pushed its argument, there may have even been grounds for deciding that the boundary should begin on the southern shore of the Southern Branch. The parties were given 40 days to present a draft decree. Maryland filed a draft decree on April 20, 1910. In that proposed decree Maryland did not say that the compact of 1785 applied to the Potomac River. Maryland merely said in the "Fourth" point that the decree should not be construed as abrograting the Compact of 1785 "so far as it is applicable to that part of the Potomac River which extends along the border of said States, as ascertained and established by this decree."

In his opinion and decree filed on May 31, 1910, Justice Day examined the differences between the two drafts and complained to both sides that "In the former hearing, however, and in the decision rendered, the attention of the court was not directed to the question whether the boundary of Maryland should be at high-water mark or at low-water mark along the southern bank of the Potomac River." He then took notice of West Virgnia's presumptive rights based upon usage, specifically citing the language of the Black/Jenkins award of 1877 in which his only point was that the theory of presumptive rights as far as they could be demonstrated on the Potomac between West Virginia and Maryland would prevail. On that point there was no disagreement between parties and Justice Day's opinion that that aspect of the 'binding force' of the Compact of 1785, that is the presumptive right precedent set by that Compact, prevailed in this case. Where Justice Day was understandably mistaken was in his assertion the "There is no evidence that Maryland has claimed any right to make grants on that side of the river, and the privileges reserved to the citizens of the respective States in the Compact of 1785 and its subsequent ratifications indicate the intention of each State to maintain riparian rights and privileges to its citizens on their own side of the river." Because the emphasis in all of the proceedings that led up to the Black/Jenkins award was upon the nature of the boundary from Smith's point to the Atlantic, and practically all the evidence in the Maryland v. West Virginia case was devoted to the course of the line from Pennsylvania to the Potomac, little effort went into documenting Maryland's claim to the whole of the Potomac River, even though the evidence did exist in the Maryland Land Office at the time and had been presented by the Maryland Commissioners ca. 1876. See Whyte & Jones, Evidence cited by Virginia in the present case. While there are many other examples that will be introduced into evidence on this point, in addition to those cited by Whyte & Jones, two in particular stand out:

While Justice Day was eminently correct in his opinion and decree that the south bank of the Potomac River at low-water mark on the West Virginia shore' was the 'true southern boundary line of the State of Maryland,' he was mistaken that Maryland had not claimed any right to grant the whole of the bed of the river and by doing so prevent the construction of any wharves and improvements extending from the Virginia shore. By its very ownership of the bed of the river to the Southern Shore, Maryland retained the clear right to reserve unto itself, or to grant to private parties the sole and exclusive right to erect wharves and improvements, any agreement or compact between it and Virginia, not withstanding. In any number of uncontested or ultimately vindicated patents issued to private individuals along the Potomac above tidewater, Maryland asserted and maintained this right. By far the most prominent and prolonged case involved the claims of the Great Falls Manufacturing Company against the Federal Government and the building of what came to be known as the Washington Aqueduct. In that instance, Maryland's claim to the whole of one channel of the Potomac, the whole of the island to which the dam extended, and ultimately the extension of the dam across the second channel of the Potomac to the shoreline, was sustained on the basis of a unilateral, uncontested act of the Maryland General Assembly, passed in 1853, and in numerous court cases and arbitration extending into the 20th century decided in Maryland's favor. In sum the dicta in the Black/Jenkins award, and its understandably mistaken use by Justice Day, ought not to prevail in the face of factual evidence now being introduced for the review of the Honorable Ralph Lancaster, and partially documented by Whyte & Jones in ca. 1876 when they first brought Virginia's and the Arbitrators' attention to the precedents and proof existing among the records of the Maryland Land Office. Ecp 12/13/00] [see index as of 9/17/2000]

Parts of this case appear as Virginia exhibits 65, 66, 67, and 71