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States’ river boundary subject to change over time

Potomac Shores, inc. v. River Riders, Inc., et al.
___A.3d___ (2014)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (

Available at:

River Riders and River & Trail (jointly “River Riders”) are Maryland companies that provide outdoor adventure activities on the Potomac River with the permission of the National Park Service. Potomac Shores owns lands on the Virginia side of the Potomac River, which allegedly included a narrow strip of land known locally as Potomac Wayside. Potomac Shores alleged that River Riders’ patrons would trespass on Potomac Wayside in violation of Potomac Shores’ ownership rights. At issue in this matter was deed language in Potomac Shores’ deed history that defined the boundary of its land as the dividing line between Maryland and Virginia “bounding the south shore of the Potomac River at medium water mark.” Potomac Shores argued that due to gradual accretion to the shoreline, the medium water mark had shifted, thus making the River Rider’s use of Potomac Wayside an act of trespass.

River Riders moved to dismiss the case, arguing that Maryland did not have jurisdiction over the action, as accretion had moved the state boundaries and therefore, the alleged trespass occurred in Virginia. River Riders further argued that the land in question was owned by the National Park Service, who had given them permission to use the Potomac Wayside land. The trial court granted the motion, find the boundary between Maryland and Virginia follows the low-water mark on the south side of the Potomac River as the banks of the river shifted over time, which placed the alleged cause of action outside of the Maryland’s jurisdiction. Potomac Shores filed a timely appeal.

Prior to issuing its ruling on the this matter, the Court of Special Appeals invited amici curiae briefs from the Attorney Generals of both Virginia and Maryland, who both ultimately filed a joint brief in support of the trial court’s ruling. In analyzing the jurisdictional dispute, the Court of Special Appeals observed that the issue involved state riparian boundaries, of which there are two types:

The first category consists of state boundaries that are defined as being in the center, or at the center of the channel of a river. […] The second type of boundary follows the contours of one of the river’s shorelines, usually at the low-water mark. Whether a shoreline boundary shifts with accretion or erosion remains fixed in time largely depends on the historical reasons for the particular boundary.

Id. (internal citations omitted). Potomac Shores argued the Potomac River was governed by fixed boundaries, set in 1877, while River Riders argued the boundary changed as the flow of the river changed. The Court then proceeded to analyze nearly (240) years of land grants, land surveys, interstate compacts, interstate arbitrations and litigation that arose in relation to the Potomac River and activities appurtenant to the river. The Court noted that while the Supreme Court had never issued an opinion specific to the question in this litigation, its prior decisions suggested that the Court had never considered the boundary fixed, but noted that Virginia maintained sovereign rights “to the use of the River beyond the low-water mark” while Maryland maintained sovereign authority over the river bed and the river from “shore to shore[.]” Id. citing Virginia v. Maryland, 540 U.S. 56, 60 (2003). Based on this language, and the detailed history of the sovereignty of the river, the Court of Special Appeals upheld the trial courts finding that the Maryland-Virginia boundary created by the Potomac River changed with the accretion and erosion of the low-water mark of the south shore of the river. Based on this holding, and the Complaint allegations that the trespass had occurred on the land beyond the low-water mark, the trial court’s dismissal was proper for lack of jurisdiction.

The Court of Special Appeals also rejected Potomac Shore’s arguments, first raised at the hearing on the motion to dismiss, that River Riders’ patrons also trespassed when they climbed rock outcroppings that stuck above the water at various points in the river, and thus in Maryland. The Court held that while the Circuit Court had not addressed this issue, the Complaint had made no allegations of trespass as to these rocks, and therefore did not save the Complaint from dismissal.

The Court of Special Appeals affirmed the decision of the trial court dismissing Potomac Shores complaint in its entirety.