Lee Baihly

Lee Baihly stands near the Potomac River at Potoma Wayside where his River and Trail Outfitters has access to the river. (Kim Hairston, Baltimore Sun / February 18, 2013)

It may be known as the Nation's River, but here where the Potomac carves its way between Maryland and Virginia, ownership is up for grabs.


A court battle that pits a group of property owners against two small paddling and tubing companies seeks to establish who controls the river, the banks and the mud below. A Washington County circuit judge has pushed the dispute across the water to Loudoun County, Va., saying he lacks jurisdiction.

But it's not clear that Virginia's justice system has standing either. As a result, some water-rights experts say, the case could make its way to the Supreme Court.


Blame King Charles I. Or Lord Baltimore. Or even George Washington. That's how long people have been trying to draw a line in the water.

"To local residents, the Potomac River is shorthand for the boundary between Maryland and Virginia," Circuit Judge M. Kenneth Long Jr. wrote recently. "That simplicity and ease belies the centuries of legal, sometimes actual, fighting between the two states over rights and privileges each have on the Potomac."

The river, the judge concluded, "is a prize worth fighting over."

Potomac Shores Inc., a Frederick entity incorporated in Maryland in 1948, claims it owns 550 acres along and under the river. It alleges that paddlers and tubers are trespassing when they leave the water on the Virginia side near the Route 340 bridge in an area known as Potomac Wayside to wait for shuttle buses to pick them up.

The corporation sent cease-and-desist letters to River and Trail Outfitters and River Riders in 2011 and filed suit a year later when it decided its demands were being ignored. In its legal filings, Potomac Shores hinted at the possibility of licensing agreements to resolve the matter.

But the defendants believe courts have decided that the Potomac belongs to Maryland right up to the low-water mark on the Virginia side. The riverbank on that side is controlled by the National Park Service, with which they have permits to operate.

"When it comes to river navigation, the people's right cannot be infringed upon," said Charles Bailey, the lawyer for River and Trail Outfitters of Knoxville in Frederick County. "Tens of thousands of people come out here and use the river every year. No one can claim to own it."

David Skeen, the lawyer for River Riders of Harpers Ferry, scoffed: "They want my client to pay for a privilege they don't have the right to give."

Late last month, Long declined to reconsider his decision, clearing the way for Potomac Shores to pursue its claim with Maryland's Court of Special Appeals or take up the matter in Virginia.

Requests for an interview with the lawyer representing Potomac Shores were unsuccessful, but Bailey said he expects the case will be appealed.

"I have no indication they will, but if they don't, they have 550 acres that are totally worthless unless they get a ruling in their favor," Bailey said.

Matt Logan, president of Potomac Riverkeeper, an advocacy group that filed a friend of the court brief on behalf of the paddlers' position, calls the disputes "an age-old story." And indeed, it is.

Nearly four centuries ago, King Charles I set the boundaries for Lord Baltimore's colony of Maryland, using the Potomac River's high-water mark as the southern edge. But King James II gave the river to Virginia. In 1776, Virginia's Constitution relinquished claim to the river but retained the right to use it. Maryland rejected that claim.

It took George Washington to work out a compromise, the 1785 Mount Vernon Compact, to settle navigational rights not only on the Potomac but on the Chesapeake Bay.

In 1877, federal arbitrators selected by the two states set the boundary at the low-water mark on the Virginia side, which was approved by Congress. A 1928 boundary survey confirmed the line, as did a 1959 survey.