"High-water mark is coordinate with the limit of the bed of the water; and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation and destroy its value for agricultural purposes" (Carpenter v. Board of Commrs. Hennepin County: 56 Minn. 513).

Farnham (Waters and water rights, v. 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.' "' 3

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, involving 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. Jurisdiction and sovereignty over the tract in dispute in this case, comprising an area of 46.57 acres adjoining Alexandria, were transferred to Virginia by United States act approved February 23, 1927 (44 Stat. L., pt. 2, p. 1176).

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 Columbia and Virginia. This location of the boundary was reaffirmed by the U.S. Supreme Court May 4, 1931 (283 U.S. 348).

The high-water line on the Virginia side of the Potomac was determined by the U.S. Coast and Geodetic Survey in 1947. Monuments were established by triangulation, and the mean high-water line was tied into these. The elevation of this line was 1.86 feet for stations 5 through 14. The boundary crosses the mouths of all tributaries affected by tides. From the intersection of the high-water line and and the centerline of Second Street in Alexandria, extended, the boundary follows the established pierhead line to the corner common to the District, Maryland, and Virginia (59 Stat 552).

3 The following cases are in harmony with the authorities quoted above: Howard v. Ingersoll, 13 Howard, 415-423; Shively v. Bowlby, 152 U.S. 12. Marine Railway and Coal Co. v. United States of America: 257 U.S. 47.

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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 70.5 feet more than 10 miles. The lines do not bear exactly 45° from the meridian, but the greatest variation is only 14 feet (Baker, 1894, p. 149-165). 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 (Shuster, 1909, v. 20, p. 356).

In 1915-1921 each of the original boundary stones was surrounded by an iron fence, erected by the District of Columbia and Virginia chapters of the Daughters of the American Revolution.

By a bill approved March 3, 1903 (32 Stat. L. 961) 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.

The latitudes and longitudes of the north, east, and south cornerstones of the District of Columbia are as follows:

These positions are on 1927 North American Datum. The south corner stone at Jones Point, below Alexandria, which was the first one established, was set with appropriate ceremonies April 15, 1791.

By act of February 21, 1871 (16 Stat. L. 419), the entire area within the boundary of the District was made a distinct government with the title of the District of Columbia and constituted a "body corporate for municipal purposes."5

The initial point of several of the original land grants upon which the city of Washington is founded was a mark on a large rock commonly called the "Key of all keys," which was then at the edge of the Potomac River. According to tradition, Braddock's army landed

5 See 174 U.S. 196-590 for land history of the area covered by the District of Columbia from the time of the King's grant to Lord Baltimore, June 20, 1632; includes reproductions of several old maps. This case gives many references to former decisions relating to riparian rights.

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at this place on its way to Fort Duquesne. This rock has been covered with dirt and the river bed filled in so that the concrete pier and tablet established in 1910 over the mark are now more than 1,000 feet from the river's edge. The new mark is in the Naval Hospital grounds about 300 feet west from the corner of Twentythird Street and Constitution Avenue, NW.

The zero milestone, from which public highways of the United States are supposed to radiate, authorized by joint resolution of Congress June 5, 1920 (41 Stat. L. 1062), and dedicated June 4, 1923, is a granite pier 24 by 24 inches in section, mounted on a concrete base and projecting 4 feet above ground, standing on the north edge of the Ellipse, 900 feet south of the White House, in lat 38°53'41.99" N., long 77°02′12.66" W. The tablet in the base is 28.65 feet above mean sea level.

VIRGINIA

6

In 1606 King James I of England granted the "first charter" of Virginia. The boundaries therein described are as follows (Thorpe, 1909, v. 7, p. 3783):

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 (see fig. 21) (Thorpe, 1909, v. 7, p. 3795):

...

situate, lying, 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 (Thorpe, 1909, v. 7, p. 3804): 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 Commonwealth of Virginia" is the full legal name for this State. For a brief history of cessions to Virginia, the Carolinas, and Georgia and of boundary-line surveys between them from 1606 to 1821, see Haywood (1891, p. 15–37). For reference to old Virginia charters, abstracts of boundary descriptions, and descriptions of bounday marks, see Code of Virginia (1919, v. 1, p. 10-22, Richmond).

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 Sea. A point 200 miles due north of Point Comfort would fall in lat 39°54′ N., 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 lat 34°06′ N. 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.

The area covered by the charter of 1611-12 included the Bermuda Islands.

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 (Donaldson, 1884, p. 33), 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. 72.) 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 the Mississippi River the west boundary, by the cession to the United States of the territory northwest of the Ohio River in 1784, by the admission of Kentucky as an independent State in 1792, by the division in 1863 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. 21.)

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 is 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

7 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 shoreline runs nearly east and west.

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Virginia shores and strands, bordering on either of said rivers, and 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 setting the divisional line between Maryland and Virignia.

In the twenty-first year of Charles II (1670) a grant was made to Lord Hopton and others of what is still called "the northern neck of Virginia," which was sold by the other patentees to Lord Culpepper and confirmed to him by letters patent in the fourth year of James II (1689). 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 Culpepper'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. These commissioners were 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

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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 survey and mark the dividing line. The line was run in 1746. On October 17, 1746, the commissioners planted the Fairfax Stone at the spot which had been described and marked by the preceding commissioners as the true headspring of the Potomac and which, notwithstanding much controversy, has continued to be so regarded from that period to the present time. Besides limiting the Fairfax tract, this location was of greater importance as marking the southern point of the western boundary of Maryland.

A description of the original Fairfax Stone, as it appeared in 1859, was given in a report by Lieutenant Michler, as follows:

It consists of a rough piece of sandstone, indifferent and friable, planted to the depth of a few feet in the ground and rising a foot or more above the surface; shapeless in form, it would scarce attract the attention of the passer by. The finding of it was without difficulty, and its recognition and identification by the inscription now almost obliterated by the corroding action of water and air.

When the commissioners for the Maryland-West Virginia boundary visited this locality in 1910, no trace of the original mark was found, although the mark set by Lieutenant Michler was readily identified. A large concrete monument was then built at this point. As stated on page 88, these commissioners placed the monument marking the southwest corner of Maryland on the south bank of the North Branch of the Potomac, nearly 4,000 feet north of the Fairfax Stone.

This tract of land was held by Lord Fairfax and his descendants for many years, but subsequent to the Revolution the quitrents and similar charges were abolished, and it became in all respects subject to the jurisdiction of Virginia.

For the history and description of the boundary line between Virginia and Maryland see pages 86-88; and for the line between Virginia and West Virginia, see page 95.

Kentucky formed originally a part of the county of Fincastle, Va. In 1776 this county was divided into three counties, the westernmost of which was called Kentucky County, and its eastern boundary was declared to be as follows (Hening, 1821, v. 9, p. 257):

For report of the commissioners, including description and position of each of the 34 monuments, see 225 U.S. 2-30. For references concerning Virginia, Maryland, and West Virginia boundaries, see 217 U.S. 1-47.

A line beginning on the Ohio, at the mouth of Great Sandy Creek, and running up the same and the main or northeasterly branch thereof to the Great Laurel Ridge or Cumberland Mountains; thence southwesterly along the said mountain to the line of North Carolina.

Kentucky having been admitted into the Union June 1, 1792, commissioners were appointed in 1798 by Virginia and Kentucky to fix the boundary. In 1799-1800 the commissioners' report was made and ratified by the States. It was as follows (Shephard, v. 2, p. 234): To begin at the point where the Carolina, now Tennessee, line crosses the top of the Cumberland mountains, near Cumberland Gap, thence northeastwardly along the top or highest part of the said Cumberland mountain, keeping between the headwaters of Cumberland and Kentucky rivers, on the west side thereof, and the headwaters of Powell's and Guest's rivers, and the Pound fork of Sandy, on the east side thereof, continuing along the said top, or highest part of said mountain, crossing the road leading over the same at the Little Paint Gap, where by some it is called the Hollow mountain and where it terminates at the West Fork of Sandy, commonly called Russell's fork, thence with a line to be run north 45° east till it intersects the other great principal branch of Sandy, commonly called the northeastwardly branch, thence down the said northeastwardly branch to its junction with the main west branch and down Main Sandy to its confluence with the Ohio.

It will be seen that the northern part of this line is the present line between West Virginia and Kentucky. The exact location of the boundary along "Great Sandy Creek" and its "northeasterly branch" (now called the Big Sandy River and the Tug Fork) is somewhat in doubt. The best evidence as to its proper position thus far found is that indicated on Bishop James Madison's map of Virginia, dated 1807, where it is shown as being on the west bank of both streams. This evidence is in a measure confirmed by a clause in the West Virginia State constitution of 1872, which is as follows:

The State of West Virginia includes the bed, bank and shores of the Ohio river, and so much of the Big Sandy river as was formerly included in the commonwealth of Virginia.

Virginia at one time owned the entire area of Kentucky and claimed territory north of the Ohio. Many court decisions have fixed the low-water line on the north bank of the Ohio as the boundary resulting from this claim. It therefore seems reasonable to assume that the Kentucky boundary should be so placed as to exclude the bed and shores to low-water mark on the west side of the two streams.

For the history of the settlement of the boundary between Virginia and North Carolina, see North Carolina, pages 96-98.

In 1779 Virginia and North Carolina appointed commissioners to run the boundary line between the two States west of the Allegheny Mountains, on the parallel of 36°30'. The commissioners were unable to agree on the location of the parallel; they therefore ran two parallel lines 2 miles apart, the northern known as Henderson's line and claimed by North Carolina, the

southern known as Walker's line and claimed by Virginia. In the year 1789 North Carolina ceded to the United States all territory west of her present boundaries, and as Tennessee was formed from the ceded territory, this question became one between Virginia and Tennessee.

Commissioners appointed by Virginia and Tennessee to establish the boundary adopted a compromise line. Their report was made in 1803 and was as follows (Haywood, 1823, p. 9; 1891, p. 487-497):

A due west line equally distant from both Walker's and Henderson's, beginning on the summit of the mountain generally known as White Top mountain, where the northeast corner of Tennessee terminates, to the top of the Cumberland Mountain, where the southwestern corner of Virginia terminates.

This line, which is about a mile north of the Walker line, was marked on trees by five notches arranged in the form of a diamond and is often called the "diamond line." It was adopted by the legislatures of both States in 1803.

In 1871 Virginia passed an act for appointing commissioners to readjust this line. Tennessee the following year passed an emphatic resolution refusing to reopen the question regarding a boundary which she considered "fixed and established beyond dispute forever" (Tennessee H. Jour. for Mar. 23, 1872, p. 71).

In 1889 Virginia took the matter to the Supreme Court of the United States, which in 1893 decreed that the line as surveyed and marked in 1803 is the true boundary.9

Until 1784 Virginia exercised jurisdiction over a large tract of country northwest of the Ohio River, but by a deed executed March 1, 1784, she ceded to the United States all that territory, thus making the northern part of her western boundary the north and northwest bank of the Ohio.

On December 31, 1862, the State of Virginia was divided, and 48 counties, composing the western part of the State, were made the new State of West Virginia. By an act of Congress in 1866, consent was given to the transfer of two additional counties from Virginia to West Virginia.

The Legislatures of Virginia in 1873 and West Virginia in 1877 authorized the appointment of commissions for "ascertaining and locating" the boundary between the two States wherever it was in dispute. Commissions were appointed, and an officer from the U.S. Army Corps of Engineers was detailed to aid in the work. So far as can be learned, the survey and marking of this boundary were never undertaken, and its location can be found only by following the old county

See 148 U.S. 528. For historical description and plat of the line, consult records of the court for the October term, 1891; for geographic positions on the line, see p. 111. For report of commissioners who surveyed the line in 1901-2, see 190 U.S. 64. For original maps of this survey, see register 2634 of the archives of the Supreme Court. For reference to the Bristol cession, see p. 110.

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lines, descriptions of which are given in the Virginia statutes. (See West Virginia, p. 96.)

References to the statutes by which the counties of Virginia and West Virginia were created can be found in an article by Morgan P. Robinson (1916). Most of the counties were created prior to 1800, and the references are to Hening's Statutes at Large of Virginia, but there have been many changes since that year. The Grand Assembly of Virginia, in 1660, enacted that (Hening, 1821, v. 2, p. 18)

The separation of West Virginia from Virginia was approved by act of Congress of December 31, 1862 (12 Stat. L. 633), and the new State was admitted to the Union by presidential proclamation dated April 20, 1863, effective June 19, 1863 (13 Stat. L. 731). It is of historical interest that the name proposed for this State by the convention of 1861 was Kanawha.

It originally contained the following counties: Barbour, Boone, Braxton, Brooke, Cabell, Calhoun, Clay, Doddridge, Fayette, Gilmer, Greenbrier, Hampshire, Hancock, Hardy, Harrison, Jackson, Kanawha, Lewis, Logan, McDowell, Marion, Marshall, Mason, Mercer, Monongalia, Monroe, Morgan, Nicholas, Ohio, Pendleton, Pleasants, Pocahontas, Preston, Putnam, Raleigh,

Randolph, Ritchie, Roane, Taylor, Tucker, Tyler, Upshur, Wayne, Webster, Wetzel, Wirt, Wood, and Wyoming. In 1866, with the consent of Congress,10 West Virginia was enlarged by the two counties of Berkeley and Jefferson, transferred from Virginia.

The boundary between West Virginia and Virginia is made up of the boundary lines of the counties above enumerated that border on Virginia and can be defined only by reference to the laws by which these counties were created (Hening, 1821, v. 2, p. 184).

The two States entered into a compact to define their common boundary separating Monroe County, West Virginia, and Allegheny County, Virginia. There had been uncertainty concerning this line for many years.

10 14 Stat. L. 350. See 11 Wallace 39 for a historical sketch of this addition and court decisions relating thereto.