Maryland State Archives

Judge Brewer rules on whether or not the Great Falls Manufacturing Company can claim damages against the U.S. government for the dam built for the aquaduct and how much those damages are. A portion of the claim of the manufacturing company is based on the supposed riparian rights of the Toulson Tract in Virginia and on Conn's Island (Bishops Island, which the company appears to have purchased earlier and eventually had resurveyed and patented in 1862). Brewer rules the Toulson tract has no riparian rights on the Potomac River and that "The riparian rights of the Great Falls Company has is entirely upon the ownership of Conn's Island, the title to which is derived from the State of Maryland through its grant." (p.9) There is additional information and discussion on water use, the boundary, and water rights.

Description of court cases and documents involving the United States and the Great Falls Manufacturing Company concerning the Washington Aqueduct.

Includes legal proceedings between the C&O Canal and the Great Falls Power Company

Contains information relating to ferries above the Great Falls beginning in the colonial period.

See:

1) note regarding Van Swearingen ferry to Shepherdstown,,

2) ferries that patent the right of way:

Robert Harper's "Dear Bought"
is a patent to the right of way across the water.

Note: Several secondary sources state that an original ferry operated in
this vicinity in 1734, possibly by Peter Stephens, and that Harper
purchased "squatters rights" in 1747. Dear Bought dates from 1757.
 

John Nelson's "Hobson's Choice"

Note: this tract has a narrow strip that goes to the Virginia shore. It may
be the location of an early ferry in Frederick County. [as of 12/11/00 DS had notlocated a
specific ferry at this spot as of yet], and

3)the Archives of Maryland, especially:

http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000019/html/am19--289.html

Assembly Proceedings, April 30-May 14, 1696. 289

...That a Clause be Added to the Act appointing Ferries that
no led Horses be Ferried over Potomack River but such as
shall have particular passes and that the Ferry men be Cau-
tious how they sett over any Ordinary Person with a Good
Horse....

http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000009/html/am9--509.html

[Sharpe to Baltimore.] Letter Bk.IV

Annapolis the 20th of April 1761.

"... I beg leave
to inform Your Ldp that there never hath been since the
Country was settled any Money paid by the Keepers of Fer
ries in this Province for Leave or Lycence to keep them most
of the Ferries over the Rivers in this Province are supported
& the Keepers of them paid by an Allowance made them
every year in the County Levy, & those who are not so paid
demand & receive from Passengers such Rates as they have
themselves settled. I perceive that in Virginia there is an p. 186
Act for Regulating Ferries & settling the Rates which Pas
sengers are to pay at each of them, but the Keepers of such
Ferries are not obliged to pay any money for Lycences to
keep them, nor can I learn that there are any Lycenced Fer
ries in the Northern Colonies except one from the City of
N York to Long Island, at the Disposal of the Corporation of
that City, & the Ferry over the River Skuilkill near Philaa"

http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000047/html/am47--226.html

1781
from several circumstances I have mett lately in the transaction of business
it Appears to me necessary some regulation should be made by the
Executive power of the State in the Passage of ferrys within this
State, we are very dependant on the unreasonable Humour of the
Keepers of many of the ferrys lately at Johnsons ferry I had a Pub
lic waggon detained a Considerable time untill Hard money was pro
cured to pay the passing it,—delay is often given to Express riders
M. G. Green by Colo Carrington writes me very Pressing for a
number of Waggons required from this and the Delaware State how
far the State is to Comply I don't presume, but much distress is Occa
sion'd in the Southern Army for the want of Waggons to make the
Supplies.

4) operating ferry: White's Ferry

see 20th century court case concerning ferry "Jubal Early"?

Bonds for Ferries in Montgomery County

from:

T413
Montgomery County Circuit Court Dockets and Minutes 1783-1806 1/32/14/48

Montgomery County Court Minute Book November 1783:
Mary McCloud's keeping ferry over Potomack between the two falls of Potomack at the place she now lives at agreeable to Act of Assembly/ Mary McCloud £50 Joseph Magruder £50 Nin[ian]. [B? or R?] Magruder £50

Montgomery County Court Minute Book March Court 1784:
For Beatty's Keeping ferry over the River potomack at Geroge Town agreeable to Act of Assembly, Charles Beatty £50
Richard Brooks £50
Edward Magruder £50


For Bonun keeping a ferry at George Town over potomack Christiamea [?] Bonun £50
William Fue [?] £50
Thomas Graves £50


Montgomery County Court Minute Book March Court 1788:

For Hamilton's keeping a publick ferry over Patowmack at George Town 4/
Richard Hamilton £50
Benjamin W. Jones £50
Thomas Barclay £50


Montgomery County Court Minute Book September Court 1796:


For Mary McCloud's keeping a ferry over potowmack 4/ paid
Mary McCloud £50
Ninian Magruder £50
Charles Warnor £50
[?] keeping a ferry over the River potomack 4/ paid
Conrad Myers
Zachariah Ellis [all three] £150
Enias Campbole

Montgomery County Court Minute book March Term 1798:

For Conrod Myers keeping a publick Ferry over patowmack river at the place known by the name of Conrod Ferry 3/9 paid
Conrod Myers £50
Walter Williams £50
Charles Ogden £50
For James Thompsons Keeping a Ferry over Potomac River at George Town 3/9 paid
James Thompson £50
John Andre £50
Benjamin Lacey £50
For John Mason mercht keeping a publick ferry over patowmack river at the Corner of Water and Frederick Streets 3/9 paid
John Mason £50
John McGault £50
William Wallace £50
For Thomas Stiles keeping a publick ferry over patowmack river at the place commonly known by the name of McClonds Ferry 3/9 paid
Thomas Stiles £50
Laurel [?] Bell £50
George Behagrud [?] £50

Minute Books without references to ferries: Montgomery County Court Minute Book August 1779,
Montgomery County Court Minute Book March 1780,
Montgomery County Court Minute Book August 1780
Montgomery County Court Minute Book November 1806
ecp/ds 12/11/00]

Nov. 1781, Ch. 22  An Act to Regulate Ferries

• First law after the Constitution of 1776
• County justices, annually at March court terms, to grant a license to any county inhabitant to keep a public ferry, "at any place within their county now used as such, if the said justices shall think that a public ferry ought there to be kept and established".
• County justices to set ferriage rates and determine the kind and number of boats and number of hands to be employed for each ferry.
• Each licensee required to post a performance bond of 50 pounds current money and pay 5 shillings current money to court clerk for taking the bond and making out the license and copy of ferriage rates.
• If proprietor of place used as a public ferry fails to obtain a license or to rent the ferry to a person approved by the court, the county justices shall issue warrant to sheriff to summon a jury and surveyor to condemn the land needed for the ferry and determine its rental value, not to exceed 3 acres. The land "shall become the property of the county for ever". The court may contract for new construction or repairs, at county expense, annually rent the ferry to anyone deemed proper to hold the license, and pay an annual rent to the land owner.
• "[N]othing in this act shall ... prohibit the county courts, as heretofore practised, from agreeing with persons to keep ferries, but in such case they shall take recognizance, and ascertain" ferriage rates.

• "Whereas doubts have arisen whether the several county courts of this state have power to contract for the keeping of such ferries as they many think necessary, at the county expense;"
• Such contracts authorized, with "the price so contracted for [to] be paid by and levied on the county in the same manner as other county charges". Such ferry keepers to post bond and be subject to other provisions of 1781 act.
• Courts prohibited from establishing new ferries.

• "Whereas since the passage of the original act ..., divers individuals have set up ferries, which have been found beneficial to the public, and ought to be regulated by law, and it may happen, that by the alteration of old roads, or the laying our of new roads, leading to creeks and rivers, it may be necessary to establish new ferries, in order to render such road serviceable to the community, and in every such case such new ferries ought also to be regulated by law".
• County courts given authority to declare private ferries as beneficial to the public, thus subjecting the ferry keepers to the 1781 law and its supplements.
• County courts given authority to establish new ferry sites on the basis of altered or new roads, to be governed by and subject to the 1781 law and its supplements.
• If proprietor of place used as a public ferry fails to or cannot (as a minor, etc.) obtain a license or to rent the ferry to a person approved by the court, the county justices shall issue warrant to sheriff to summon a jury and surveyor to condemn the land needed for the ferry and determine its rental value, not to exceed 2 acres. The land "shall become the property of the county for ever".The court may contract for new construction or repairs, at county expense, annually rent the ferry to anyone deemed proper to hold the license. County levy courts responsible for paying those costs, including the annual rent. Any landowners, unable to operate or rent a ferry due to a legal disability, could reobtain title to the land within 3 years after removal of the disability by paying all the costs incurred by the county.

• County courts may fine ferry keepers, convicted of non-performance of duties, any amount not over $100.

• SO and WO per Acts of 1822, Ch. 148
• AA per Acts of 1824, Ch. 109
• DO per Acts of 1825, Ch. 5

[The licensing of ferry keepers was not a money maker for the counties. Ferries were considered public services, somewhate similar to roads. No license fee was required. Bond was posted, but only to compel compliance with regulations set by the county court, and later the county government. The court set the ferriage rates to prevent excessive fees and favoritism, but the moneys so collected belonged to the ferry keeper. The county was essentially contracting, by license or specific contract, with people to operate the ferries that benefited the public and were thus subject to laws and regulations. Nothing in the law prevented someone from establishing a private ferry, and the preamble to the 1799 law clearly indicates that many did exist.

I have not determined when the general law found in the 1860 code was enacted because the indexes do not indicate such legislation and the 1860 code does not contain references. I suspect the law is passed after adoption of the Constitution of 1851, and may be found only after the appropriate session laws are incorporated into the Archives of Maryland series. pvm 12/11/00]

The cases relating to the Great Falls Manufacturing Company (GFMC) and the aqueduct are convoluted and may or may not be as helpful as we once thought. While the claims the GFMC is making in some ways support the argument we are making, they also do not (see information provided below). I believe the arbitration proceedings of 1862 and completed Feb. 1863 (Note, I am still looking for the arbitration relating to the Great Falls Dam) are critical for an understanding of the claims of the GFMC, but they may have less importance based upon how the GFMC's claim for damages was finally settled (a matter I am trying to discern now). I believe that the GFMC was claiming any rights it could in order to receive compensation from the Federal Government and this includes a claim of riparian water rights based on Virginian land.
 

• See below in reference to the Compact of 1785.
• Reverdy Johnson's pamphlet has not appeared in any proceedings to date.

1. The GFMC is clearly claiming water rights based on the ownership of land in Maryland and Virginia, [two tracts in Virginia (including the Toulson Tract), and Conn's Island in Maryland]. The arbitration proceedings (if found) may shed light on whether this claim is based upon the VA tracts bordering the Potomac or based upon the water flowing through the old Potomac Canal cut.

While the court cases and arbitration notes cited do not specifically mention the compact of 1785, the Supreme Court case petition of the GFMC makes clear reference to the fact that the river at this point is not navigable and above tidewater.

To quote from the petition: "That the said river Potomac at said locality is above where the tide ebbs and flows, and incapable of navigation;and that your petitioners, being the riparian proprietors on both banks of the river by reason of the ownership of said parcels of land at the Great Falls, are entitled by law as such riparian proprietors to the use of the water of said river at that locality, and to all the rights and privileges of such riparian proprietorship."

Part of their claim comes from Conn's Island "And your petitioners further show that as proprietors of Conn's Island, they are also proprietors of one-half of the bed of the river on each side of said river, as well on the side looking towards the State of Virginia as on that of the State of Maryland, and the river not being there navigable."

2. In a letter copied as evidence in the case dated November 27, 1866 from Henry Davis, President GFMC to C. Browning, Secretary of the Interior, the GFMC claims several points worth noting:
a. that they feel the government has taken Conn Island invading "...by force, the unquestioned and unquestionable proprietary rights of the company, in Conn's Island, and the channel and bed of the river, between Conn's Island and the Maryland bank of the Potomac."

b. the issue of the occupation of Conn's Island for the completion of the dam is "quite distinct from that of the water rights of the company as a riparian proprietor on the Virginia bank of the Potomac."

c. a separate distinct issue is also "...the matter litigated in the courts of Maryland, which related solely to the land warrant for Nelson's Desire, and not touch the question of the proprietary and riparian rights of the company as owners of land both in Virginia and Maryland. The directors of the more earnestly insist on this point for the reason that now, for the first time, have the rights of Maryland proprietors been disregarded in the construction of the Washington Aqueduct."

Includes references to the Great Falls Manufacturing Company, the United States Government, the Great Falls Power Company, and the Chesapeake and Ohio Canal Company.

While the vast majority of the material related to the early technical aspects of the Aqueduct, there were several items of interest in the records of the Washington Aqueduct that relate to the 1864 legal proceedings in the Maryland Court of Appeals. This included the bills for both 1864 Maryland Court of Appeals cases involving the United States Government's appeals of the caveat decisions for Neilson's Desire and the Resurvey on the Resurvey on Conn's Island. The bills show the dismissal of the case relating to Neilson's Desire on December 15, 1863 and the disposition of the caveat against the Resurvey on the Resurvey Conn's Island (decision reported in: COURT OF APPEALS (Maryland Reports) The United States for the Use of the Washington Aqueduct v. the Great Falls Manufacturing Company, 1864, vol. 21, folio 119-135, 2/6/10/12).

Note: the files also contained bills for Nicholas Brewer's legal services in the Maryland Court of Appeals as well as his participation in the Federal arbitration proceedings that began in 1862 and were concluded in 1864.

Citations for records used:

• Letter with enclosures, S. Seymour to Clem West, 4/2/1864, "Legal file, 1858-1859," box 25, Washington Aqueduct, Architect of the Capitol
• Letter, Clem West to J. P. Usher, 1/16/1865, "Legal file, 1858-1859," box 25, Washington Aqueduct, Architect of the Capitol
  

At the Library of Congress's Manuscript division we examined the papers of Benjamin Curtis, however, we found nothing to shed light on the arbitration proceedings (the papers focused on the Dred Scott opinion and his release of the dissenting opinion, his decision to leave the Supreme Court, his defense of Andrew Johnson in front of the Supreme Court during the impeachment and various court cases).

U.S. Attorney John Blair does not appear to be related to the St. Louis Blairs and there was no material in the Blair Family Papers relating to John.

We examined the papers of Montgomery Meigs, however, they focus on technical aspects of the dam and some of his early papers were indecipherable because they were written in 19th century short hand.

I examined many of the Papers of Benjamin Butler. I had some luck in his general correspondence but have not examined all of these (there are 170 boxes that range between 1865-1894). We examined the majority of the correspondence between 1884-1894.

From what we have found, it appears that Butler involvement with the company begins around 1885. Correspondence shows that Butler was contacted about his interest in the company at this time. It appears that there was an attempt to revoke the charter of the Great Falls Manufacturing Company because it offered to pay its Virginia taxes in coupons. In a letter dated December 10, 1885, from J. Bailey of the Virginia Office of the Attorney-General to Benjamin Butler, Bailey reasures Butler that the charter "...cannot be repealed." Further correspondence dated December 14, 1885, from John Cassells to Butler suggested that Butler contact Virginia Senator Mahone in regard to the repeal of the charter of the Great Fall's Manufacturing Company. While it is not clear whether Butler is interested in aquiring the company or owns an interest in the company and is offering to pay the taxes. An 1892 letter from Francis Mahun to Butler requests funds for the taxes owned by the GFMC. "The taxes for the Maryland property (Conn's Island) is $24 and for the VA property $241.40 making a total of $265.40"

In any event, by by the 1890's Ben Butler had become the majority stockholder of the GFMC and was actively trying to sell the company. Butler's law partner, O.D. Barrett, wrote to Butler about negotiations for the lands of the GFMC. On November 3, 1892, Barrett relates "I received last week, or rather last Monday, a letter from my promoter of the Great Falls scheme that his parties were ready to comply with my terms and that they would be here to see me very soon." Barrett also expresses his desire for rain because little precipitation had left the Potomac river very low and he felt that "...examination of the Falls at present would break up the negotiation." The GFMC's property was almost sold in 1892 but the prospective buyer, (Colonel Canaday was found murdered and the deal fell through).

By November of 1892, correspondence reveals that Butler was gathering stock in the GFMC (it is not clear why he is requesting the stock or who T.E. Major is, but the shares were probably being gathered for the sale of the company. The letter also mentions the inclusion of a copy of the "...statutes of Virginia and Kentucky fixing the boundary line.").

Possibly the most serious offer came from T.W. Tyrer a representative of the Washington and Chesapeake Beach Railway Company (later known as the Washington Railway and Electric Company, which became the principle share holder of the Great Falls Power Company around 1900 and also owned the Potomac Electric Power Company) December 20, 1892, T.W. Tyrer writes Butler to discuss aquiring the water rights of the GFMC. No price is mentioned and Tyrer tries to get Butler to sell the property for its value in stocks and bonds in the Washington and Great Falls Electric Railway Company . Ironically Tyrer writes... " There is no one knows better than you the importance of this whole undertaking, if it is carefully and thoroughly managed, and the power that has for so many years been idle may again become of some utility, and bring you some return for your money: and no one knows better than you, that unless some undertaking as the one we have in hand is carried out, Great Falls may lay for a generation yet, as unproductive as during the past two generations."

On December 26, 1892, Tyrer responds to Butlers offer to sell the GFMC. Butler's terms appear to be cash or 1/3 cash down with the remaining balance in three anual payments at 6% interest.

When Benjamin Butler dies in Washington D.C. on January 11, 1893, the proposed deal with Tyrer falls through.

Separate letters written by O. D. Barrett dated March 11, 1893 (Barrett was associated with the GFMC in an unknown capacity) and Thomas Tabb dated April 27, 1894 (Tabb appears to have been a lawyer handling some of the aspects of selling the property for Butler) to Ben Butler's son Paul after Ben's death relate information about previous attempts to sell the company. They also reveal that the question of title to land at the Great Falls had not been decided as late as 1893 (this reinforces my belief that the land of the GFMC was sold to the Great Falls Power Company without the issue of title and damages being settled).

In Barrett's letter dated March 27, 1893, he discusses the land effected by the Maryland Court of Appeal's case in 1864. Although it is not clear whether he is referring to Neilson's Desire or the Cyclades, I believe he is reffering to the Cyclades. Barrett discusses that the patent in question was disputed on many grounds during the Court of Appeals case, one basis for the dispute was that the US believed it been previously patented in 1799. This argument was used in the reasons given for a caveat against the Cyclades. Barrett's interpretation of the Appeals Court decision was that

"The Maryland Court holding that the legislative act of Maryland authorizing the United States to draw the water from the Great Falls for the District of Columbia, prevented the state of Maryland from granting the land to another, which the United States might want on which to build its dam, hence the patent was never issued, and so far as I know, the matter had dropped and nothing has been done about it from that day to this." Barrett also said he wanted authority to search the records of the Annapolis Land Office to try and clarify the decision." We are currently searching for any correspondence relating to this in the papers of the Maryland Land Office.

Unfortunately, there is little correspondence relating directly to any of the court cases that involved the GFMC. What has survived are letters from the clerk of the Supreme Court that relate costs of copies and receipt of transcripts from the US District Court in 1884.

While the Butler papers may yield more material, I feel it will be limited and will not shed any new light or change the over all argument (based on the court cases involving the GFMC) to date. I believe it will only strengthen the argument that Butler's involvement in the case was clearly based on his financial interests.

The 1882 Act for Increasing the water supply to D.C. changed how land was condemned for the aqueduct. This changed how the land was condemned because it took the process out of the Maryland courts and placed jurisdiction for claims in the U.S. Court of Claims.

Last Updated January 29, 2001