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and continuously to wrest it from vegetation and destroy its value for agricultural purposes.*
Farnham (Waters and water rights, vol. 2, p. 1461), gives the following as to high-water mark:
“But the definition which best meets all requirements of the case and which has in fact been adopted by the weight of authority is that 'high-water mark is the point below which the pressure and action of the water are so common and usual and so long continued in all ordinary years as to make upon the soil a character distinct from that of the banks with respect to vegetation as well as with respect to the soil itself.' " 30
If the mean high tides at the 5-foot elevation above low-water mark appear to be the most usual line reached under all ordinary circumstances when the river is undisturbed either by freshets, unusual winds, and high tides, or unaffected by droughts, which condition is usually evidenced by drifts and other deposits, and to which line the rise is most constant, the pressure and action of the water upon the soil making the line more definite than at any other point, then the 5-foot mean high-tide line established by the action of the water above mean low water is legally the high-water mark or high-tide line, and consequently the boundary line.
In a Supreme Court decision rendered November 7, 1921,51 involv. ing the question whether the boundary between the District of Columbia and Virginia runs from "headland to headland," as the Maryland-Virginia boundary does, or follows the meanderings of the river, the latter course was accepted. The court also decided that the United States is entitled to the possession of land in the District that has been reclaimed by filling in below low-water line on the Virginia side.
The District Court of Appeals, in a decision rendered November 6, 1922, recognized the claim that high-water mark on the south bank of the Potomac is the boundary between the District of Co. lumbia and Virginia.
The District of Columbia was planned to be exactly 10 miles square, but it has been found that the northeast side measures 263.1 feet and the southeast side 63.1 feet more than 10 miles. The lines do not bear exactly 45° from the meridian, but the greatest variation is only 134.32 The entire boundary of the District of Columbia was surveyed in 1791 and was marked with sandstone mileposts in 1792. These posts, except those at the four corners, were numbered from 1 to 9, counting clockwise, for each of the four boundary lines. The stone shown in Plate V, B, after standing 130 years, is still in so good condition that the inscription on the side facing the District of Columbia can be read easily in the engraving; the inscription on the opposite side is “Maryland"; that on the left is the declination of the compass, 0° 18' E.; on the right is the year the stones were placed, 1792. The part of the stone above ground measures 12 by 12 by 24 inches.
** Carpenter v. Board of Comrs., Hennepin County : 56 Minn, 513.
80 The following cases are in harmony with the authorities quoted above: Howard v. Ingersoll, 13 Howard, 415–423; Gould on Waters, 3d ed., 106 ; Shively v. Bowlby, 152 U. S. 12.
31 Marine Railway and Coal Company v. United States of America: 257 U. S. 47.
* For data regarding surveys and boundary marks see Nat. Geog. Mag., vol. 6, pp. 149–165.
In 1915–1921 each of the original boundary stones was surrounded by an iron fence, erected by the District of Columbia and Virginia societies of the Daughters of the American Revolution.
By a bill approved March 3, 1903,33 funds were provided for additional marks on the District of Columbia-Maryland boundary line, to be placed at road crossings and at other prominent points. The work was completed the same year, but without the formal cooperation of any Maryland representative. The new marks are of cut granite, 6 inches square on top, and project 12 inches above ground.
In 1606 King James I of England granted the “first charter” of Virginia. The boundaries therein described are as follows: 34 situate, lying, or being all along the Sea Coasts, between four and thirty degrees of Northerly Latitude from the Equinoctial Line and five and forty degrees of the same Latitude, and in the main Land between the same four and thirty and five and forty Degrees and the Islands thereunto adjacent, or within one hundred Miles of the coast thereof.
In 1609 a new charter was granted, called the “second charter” of Virginia, which defines the boundaries in the following terms 35 (see fig. 9): situate, lying, and being in that part of America, called Virginia, from the point of Land, called Cape or Point Comfort, all along the Sea Coast to the northward, two hundred miles, and from the said point of Cape Comfort, all along the Sea Coast to the Southward, two hundred Miles, and all that Space and Circuit of Land, lying from the Sea Coast of the Precinct aforesaid, up into the Land, throughout from Sea to Sea, West and Northwest ; And also all the Islands lying within one hundred Miles along the Coast of both Seas of the precinct aforesaid.
In 1611–12 the "third charter” of Virginia was granted, which was an enlargement of the second. It gave the following territory: all and singular those Islands whatsoever, situate and being in any part of the Ocean Seas bordering upon the Coast of our said first Colony in Virginia, and being within three Hundred Leagues of any of the Parts heretofore granted to the said Treasurer and Company in our former Letters Patent as aforesaid, and being within or between the one-and-fortieth and thirtieth Degrees of Northerly Latitude.
The charter of 1609 gave Virginia a strip of land bordering on the coast for 200 miles northward from Point Comfort and for the same distance southward and extending inland west and northwest to the “South Seas.” 37 A point 200 miles due north of Point Comfort would fall in latitude 39° 54', or about 13 miles north of the present south boundary of Pennsylvania. An irregular line 200 miles long, measured along the coast from Point Comfort, would reach about as far north as the Pennsylvania boundary. A point 200 miles due south from Point Comfort would fall in latitude 34° 06'. The territory included within these boundaries comprised, wholly or in part, the present States of Pennsylvania, New Jersey, Delaware, Maryland, North Carolina, and South Carolina and the vast region stretching west and northwest to the Pacific Ocean, which was then generally called the “ South Seas."
32 Stat. L. 961. % Thorpe, F, N., op. cit., vol. 7,
Idem, p. 3795. * Idem, p. 3804.
The charter of 1611–12 added the Bermuda Islands to Virginia.
In 1625 the colony was changed to a royal province, the three charters having been canceled by judgment of the Court of Kings Bench in the preceding year,38 but Virginia still claimed the boundaries fixed by the charters.
The description “west and northwest " left the northern boundary of the colony poorly defined, but it was more definitely fixed when reductions in area were made by the charters to Maryland in 1632 and to Pennsylvania in 1681. The Connecticut charter of 1662 practically made the parallel of 41° the northern boundary. (See p. 89.) The charters of Carolina in 1663 and 1665 changed the southern boundary to its present statute position.
The area of Virginia was still further reduced by the French treaty of 1763, which made Mississippi River the west boundary, by the cession to the United States of the territory northwest of Ohio River in 1784, by the admission of Kentucky as an independent State in 1792, by the division in 1862 when the new State of West Virginia was created and admitted to the Union, and finally by the transfer of two counties to West Virginia in 1866. (See fig. 9.)
By the constitution of 1776 Virginia formally gave up all claim to the territory now appertaining to the neighboring States of Maryland, Pennsylvania, North Carolina, and South Carolina, as will be seen by the following extract :
The territories contained within the Charters erecting the Colonies of Maryland, Pennsylvania, North and South Carolina are hereby ceded, released, and forever confirmed, to the people of these Colonies, respectively, with all the rights of property, jurisdiction, and government, and all the rights whatsoever, which might at any time heretofore, have been claimed by Virginia, except the free navigation and use of the rivers Patomaque and Pokomoke, with the property of the Virginia shores and strands, bordering on either of said rivers, and
37 Mar del Sur (South Sea) was the name given to the Pacific Ocean by Balboa in 1513, when he first saw it at a place where the shore line runs nearly east and west.
Donaldson, Thomas, op. cit., p. 33.
all improvements, which have been or shall be made thereon. The western and northern extent of Virginia shall, in all other respects, stand as fixed by the charter of King James I, in the year one thousand six hundred and nine, and by the public treaty of peace between the Courts of Britain and France in the year one thousand seven hundred and sixty-three; unless by act of this Legislature one or more governments be established westwards of the Alleghany mountains.
In the meantime grants of territory had been made within the present limits of Virginia and West Virginia, which caused great dissatisfaction to the people of the Virginia Colony and which ultimately had an important bearing in settling the divisional line between Maryland and Virginia.
In the twenty-first year of Charles II a grant was made to Lord Hopton and others of what is called the northern neck of Virginia, which was sold by the other patentees to Lord Culpeper and confirmed to him by letters patent in the fourth year of James II. This grant carried with it nothing but the right of soil and incidents of ownership, it being expressly subjected to the jurisdiction of the government of Virginia. The tract of land thereby granted was “bounded by and within the heads of the rivers Tappahannock, alias Rappahannock, and Quiriough, alias Potowmack.” On the death of Lord Culpeper this proprietary tract descended to Lord Fairfax, who had married Lord Culpeper's only daughter.
As early as 1729 difficulties arose from conflicting grants made by Lord Fairfax and the Crown. In 1730 Virginia petitioned the King, reciting that the head springs of Rappahannock and Potomac rivers were not known and praying that such measures might be taken that they might be ascertained to the satisfaction of all parties. In 1733 Lord Fairfax made a similar petition, asking that a commission might be appointed to ascertain, survey, and mark the true boundaries of his grant. An order was accordingly issued, and in 1736 three commissioners were appointed on the part of the Crown and three on the part of Lord Fairfax. The duty that devolved upon these commissioners was to ascertain by actual examination and survey the respective fountains of Rappahannock and Potomac rivers. This survey was made in 1736. The report of the commissioners was referred to the council for plantation affairs in 1738, who reported their decision as follows:
The said boundary ought to begin at the first spring of the south branch of the river Rappahannock, and that the said boundary be from thence drawn in a straight line northwest to the place in the Alleghany Mountains where that part of the Potomac River, which is now called Cohongoroota, first rises.
This report was confirmed by the King, and other commissioners were appointed to run out and mark the dividing line. The line