Where the south side of the Potomac River ends and the state of Virginia begins is the subject of a court case in Washington County Circuit Court between the owners of the river bottom and two river rafting companies.
On Friday, Circuit Judge M. Kenneth Long Jr. heard arguments on a defense motion to dismiss a lawsuit filed by Potomac Shores Inc. against River & Trail Outfitters of Knoxville, Md., and River Riders Inc. of Harpers Ferry, W.Va.
Potomac Shores Inc. owns more than 500 acres of land that includes the bottom of the Potomac River and that property extends to what is now dry land on the Virginia side, due to changes in the course of the river, Potomac Shores’ attorney Bradford Webb argued during in the hearing. Potomac Shores has submitted a memorandum of opposition to the river rafters’ motion to dismiss.
"This case is about their use of my client’s land that is above water," Webb told Long. That includes islands and rock outcroppings in the river, as well as dry land on the Virginia side that is the takeout point for rafters, he said.
Maryland owns all of the Potomac River to the Virginia shore. The dispute is where the river ends.
Potomac Shores needs to be indemnified against loss against loss or damage "and they need to pay us a fee for the use of our lands," Webb told Long. Dozens of people are cited for criminal activity on the river for which his clients should be protected from liability, he said.
"Any claims of trespass above the low water mark (on the Virginia side) are outside the jurisdiction of the court," Charles Bailey, the attorney for River & Trail Outfitters, told Long.
The river rafters point of takeout is at Harpers Ferry National Park and the operators have an agreement with the National Park Service to use its land for that purpose, he said. The National Park Service is not at this time a party in the suit, Burton said after the hearing.
Potomac Shores’ claim of trespass by the rafters is on land in Virginia, Meighan Griffin Burton, the attorney for River Riders, told Long. Potomac Shores, she said, is claiming the river boundary is "a moving target."
A boundary for the Potomac River and Virginia was set in 1877 and U.S. Supreme Court case law involving river disputes between Kentucky with Ohio and Indiana support the argument that the boundary does not change even though the course of a river does, Webb argued.
After the hearing, Webb said Potomac Shores owns a piece of dry land along the Virginia shore that has been trespassed on by the rafters.
"I thought it was in Virginia when I started this process," Webb told Long. "I had to go where the facts and the law took me."
"The point of takeout is not on any dry land the plaintiffs may claim to own on the Virginia side of the river," Burton said during the hearing.
The section of river bottom in dispute has been in private hands since 1833, Webb said after the hearing. Maryland stopped granting deeds to river bottom land in 1862, Webb said after the hearing, but ownership of this section has continued to be passed along to subsequent owners.
Potomac Shores has owned it since 1948, Webb said.
"We want to have some control. We don’t want to stop the rafters," Webb said after the hearing. A fee for use of the river section would be "a couple dollars a head" and his client could seek damages back as far as three years, he said.
Long rendered no decision on the motion to dismiss, but gave the defendants two weeks to submit briefs in answer to Potomac Shores’ memorandum in opposition to dismissal.