Potomac Shores, Inc. v. River Riders, Inc.

Decision Date29 August 2014
Docket NumberNo. 40,Sept. Term, 2013.,40
Citation98 A.3d 1048,219 Md.App. 29
CourtCourt of Special Appeals of Maryland


Bradford J. Webb, Westminster, MD, for appellant.

Charles Bailey, Hagerstown, MD, Meighan G. Burton (David W. Skeen, Wright, Constable & Skeen, LLP, Baltimore, MD), on the briefs, for appellee.

Panel: DEBORAH S. EYLER, KEHOE, RONALD B. RUBIN (Specially Assigned), JJ.


Maryland and Virginia have wrangled for centuries over two rivers, the Potomac and the Pocomoke, that constitute most of their shared boundary. In 1877, an arbitration award, accepted by both states and ratified by the Congress, established the boundary as the low-water mark on the Virginia side of the Potomac River for those parts of the State and the Commonwealth located west of the Chesapeake Bay.1 But the shores of the Potomac, like those of all rivers, change as a result of accretion, erosion, and reliction.2 Does the boundary between Maryland and Virginia shift as the south bank of the Potomac alters because of time and the forces of nature? Or is the boundary fixed and immutable? If the latter, fixed and immutable as of what date? The award provided no explicit guidance.

The present appeal requires us to provide an answer, at least for part of the river. In the absence of a definitive ruling from the Supreme Court, we conclude that, as to the non-tidal portion of the river,3 our boundary with Virginia shifts as time and the gradual forces of nature alter the location of the Potomac River's southerly shore. For that reason, we will affirm the judgment of the Circuit Court for Washington County that dismissed, for want of subject matter jurisdiction, Potomac Shores Inc.'s trespass action against River & Trail Outfitters, Inc., and River Riders, Inc.


River & Trail and River Riders are outdoor adventure outfits which operate fishing, tubing, and whitewater rafting tours on the upper Potomac River. Potomac Shores alleges that employees and customers of appellees routinely cross over a narrow strip of land, no more than 150 feet wide, located along the southerly bank of the upper Potomac River (about a mile downstream from Harper's Ferry, West Virginia), in an area known locally as Potomac (or Potoma) Wayside. Potomac Shores claims ownership of the land in question because an 1873 deed in its chain of title describes the boundary of its property as being the dividing line between Maryland and Virginia “bounding the south shore of the Potomac River at medium water mark.” Potomac Shores contends that what was the medium water mark in 1873 now lies on the landward side of the south bank because of gradual accretion to the shoreline. For these reasons, it views appellees' use of the south bank as a trespass on its property.

Appellees moved to dismiss the complaint. They contended that the circuit court lacked jurisdiction over the alleged trespass because the south bank at Potomac Wayside is located in Virginia, and not Maryland. They also asserted that the land in question is owned by the National Park Service (as part of the Harper's Ferry National Historic Park), and that they have permission from the Park Service to use the site for access to the river.

After a hearing, the circuit court, the Honorable M. Kenneth Long, presiding, granted the motion by means of a thorough and well-reasoned memorandum opinion. After examining the long and complicated history of boundary-related disputes between those who neighbor on the Potomac, Judge Long determined that “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 shift over time” and, based on this determination, concluded that the south bank at Potomac Wayside was “outside the jurisdiction of the [courts of the] State of Maryland.” Judge Long dismissed the case for lack of jurisdiction without addressing the merits of the parties' remaining contentions. Potomac Shores's motion for reconsideration was denied. This appeal followed.

After oral argument, and in light of the significant issue raised by the appeal, we invited the Attorneys General of Maryland and Virginia to file amici curiae briefs. In a jointly filed brief, the Attorneys General agree with the circuit court that the real property that is the subject of this litigation is located in Virginia. We will affirm the judgment of the circuit court.


The motion to dismiss filed in this case included matters outside the four corners of the complaint and its exhibits. We will therefore treat the motion as one for summary judgment. See D'Aoust v. Diamond, 424 Md. 549, 573, 36 A.3d 941 (2012); Md. Rule 2–322(c). We review de novo a circuit court's grant of summary judgment based solely on a matter of law. Harford County v. Saks Fifth Ave. Distrib. Co., 399 Md. 73, 82, 923 A.2d 1 (2007); Md. Rule 2–501.

At the heart of Potomac Shores's trespass claim is its contention that it owns the strip of land lying between Potomac Wayside and the river—an assertion that appellees dispute. If the parcel in question is in Virginia, the circuit court is without jurisdiction to resolve the question of ownership. See Wilmer v. Philadelphia & Reading Coal & Iron Co., 130 Md. 666, 678, 101 A. 538 (1917) (Maryland courts do not have jurisdiction to resolve disputes as to title of land located in another state.).

I. Overview and the Parties' Contentions

We provide a brief overview in order to place the parties' contentions in context.


The boundaries of forty-four of the forty-eight contiguous states are formed, at least in part, by rivers.4 The United States Supreme Court has original jurisdiction over disputes between states arising out of these boundaries.5See U.S. Const., Article III, § 2 (“In all cases ... in which a state shall be party, the Supreme Court shall have original jurisdiction.”); Virginia v. Maryland, 540 U.S. 56, 60, 124 S.Ct. 598, 157 L.Ed.2d 461 (2003). In the exercise of that jurisdiction, the Supreme Court has generally recognized two types of riparian boundaries.

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. See, e.g., Louisiana v. Mississippi, 516 U.S. 22, 24–25, 116 S.Ct. 290, 133 L.Ed.2d 265 (1995); Louisiana v. Mississippi, 466 U.S. 96, 99, 104 S.Ct. 1645, 80 L.Ed.2d 74 (1984); Arkansas v. Tennessee, 397 U.S. 88, 89–90, 90 S.Ct. 784, 25 L.Ed.2d 73 (1970); Arkansas v. Tennessee, 246 U.S. 158, 173–75, 38 S.Ct. 301, 62 L.Ed. 638 (1918). Such boundaries typically shift with gradual changes in the river or its channel resulting from accretion or erosion, but are not altered by a sudden change—an avulsion—in the river's geography. Arkansas v. Tennessee, 397 U.S. at 89–90, 90 S.Ct. 784.

The second type of boundary follows the contours of one of the river's shorelines, usually at the low-water mark. See, e.g., Illinois v. Kentucky, 500 U.S. 380, 111 S.Ct. 1877, 114 L.Ed.2d 420 (1991); Ohio v. Kentucky, 444 U.S. 335, 100 S.Ct. 588, 62 L.Ed.2d 530 (1980); Maryland v. West Virginia, 217 U.S. 577, 30 S.Ct. 630, 54 L.Ed. 888 (1910); Morris v. United States, 174 U.S. 196, 19 S.Ct. 649, 43 L.Ed. 946 (1899); Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329 (1890). Whether a shoreline boundary shifts with accretion or erosion, or remains fixed in time, largely depends on the historical reasons for the particular boundary. For example, in a series of cases involving boundary disputes along the Ohio River between Kentucky, on one hand, and Indiana, Ohio, and Illinois, on the other, the Supreme Court emphasized that its decisions as to the precise location of the Ohio River boundary were heavily influenced by historical factors unique to the formation of that boundary. See, e.g., Ohio v. Kentucky, 444 U.S. at 337–38, 100 S.Ct. 588 ([I]t is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio....”). Specifically,Indiana, Ohio, and Illinois were formed out of territory ceded by Virginia to the United States in 1784, and in that cessation Virginia retained jurisdiction over the Ohio River to its northerly shore. Kentucky succeeded to Virginia's rights to the Ohio when Kentucky was admitted to the Union in 1792. Id. at 337–38, 100 S.Ct. 588. Based on this history, the Court has held that Kentucky's northerly boundary was coterminous with the river's northerly shore as of 1792, and that the boundary has not since changed as a result of accretion, erosion or reliction. See, e.g., Illinois v. Kentucky, 500 U.S. at 383–84, 111 S.Ct. 1877; Ohio v. Kentucky, 444 U.S. at 338, 100 S.Ct. 588; Indiana v. Kentucky, 136 U.S. at 508, 10 S.Ct. 1051.

Courts and legal commentators have sometimes referred to river boundaries that shift with accretion or erosion as following a “shifting boundary theory.” Conversely, river boundaries that remain fixed as of a particular historical date are said to reflect a “fixed boundary theory.” The terms originate, in part, from the pre-eminent scholarly treatise on this subject, 2 Aaron L. Shalowitz and Michael W. Reed, Shore and Sea Boundaries 501–04 (1964) (“Shalowitz and Reed”).6 We will use this terminology in this opinion.


In support of its argument that Potomac Wayside lies within Maryland, Potomac Shores argues that the “fixed boundary” principle applied in the Ohio River cases also applies to the Potomac River boundary. In other words, it contends that the boundary between Maryland and Virginia was fixed at some point in the past. According to Potomac Shores, subsequent changes in the configuration of the south shore of the river do not affect the location of the boundary. Potomac Shores offers several possibilities as to when precisely the boundary became fixed and asserts that, regardless of which one we ultimately select,...

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    • Maryland State Bar Association Pleading Causes of Action in Maryland (MSBA) (2022 Ed.) Chapter 1 Fundamental Concepts and Mechanics
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    ...Tavakoli-Nouri v. State, 139 Md. App. 716, 779 A.2d 992 (2001). The point is reiterated in Potomac Shores, Inc. v. River Riders, Inc., 219 Md. App. 29, 54—55, 98 A.3d 1048, 1063 (2014). There the Court wrote: Potomac Shores argues that the court erred in dismissing this claim because the al......

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