Martinsburg herald. [volume] (Martinsburg, W. Va.) 1881-1920, 1909-07-31

tract of land, divided by the
Line aforesaid, between the
main Ocean and Watkins Point
Charles, and every one OF the
Appendages thereof, may entire
ly remain excepted for ever to
Us, our Heirs and Successors"
American Charters, Constitutions
and Organic Laws, 1878.
Judge Marshal, speaking of the
grant to Lord Baltimore, said this
was was first example of the dis
| memberment of colony and the
creation of new one within its linn
| its by the mere act of the Crown"
The King and his privy council, on
appeal, decided in favor of Lord Bal
timore and it seems that no further
hearing or litie'tion was had con-
corning the same.
The Representatives of Virginia,
assembled in convention, adopted a
bill of rights and a constitution on
June 20, 1916, and therein provided,
among other things, as follows:
"The territories, contained
within the Charters, erecting
the Colonies of Maryland, Penn
sylvania, North and South Car
| DINA, are hereby coded, releas-
ed and forever confirmed, to the
people of these Colonies respec-
lively, with all the rights OF
property, jurisdiction and gov
eminent, and all other rights
whatsoever, which might at any
time heretofore, have been
claimed by Virginia. except the
free navigation and use of the
rivers Potamoque and Poke
moke, with the property of the
Virginia shores and strands.
bordering on either of the said
rivers and all Improvements
which have been, or shall be
made thereaon. The western
and northern extent of Virginia
SHALL in all other respects.stand
as fixed by the charter of King
James |. in the year one thou i.
sand six hundred and nine, and
by the public treaty OF peace, be
tween the courts of Britain and
France, in the year one thou
sand seven hundred and sixty
three; unless by act of this Leg
islature one or more govern.
ments be established westward
of the Allegheny mountains"
American Charters, Constitu-
tons and Organic Laws, 1918.
We have failed to find any Virginia
or West Virginia decisions on this
subject, but the chancery court of
Maryland, in 1890, decided in Bin
nys case that the State of Maryland
had jurisdiction over the Potomac
river. The court said in part as fol
lows. on page 1876:
that the whole OF
the river, to it's right bank;
forms apart of the territory of
the state of Maryland; that the
whole of 1t above tide is entirely
within the bodies OF the respec-
tive counties of Maryland lying
along it; and, consequently,
that its waters above tide may
be taken and used by any ripar-
ian holder of land, in any man
ner. without prejudice to others"
BANDS Chancery Reports, 80.
Since the adoption of the first
Constitution of Virginia in 1776,
Virginia seems to have recognized
the jurisdiction of Maryland over the
Potomac river above tide water.
Code 1860 PIP 65-7.
The Constitution of this state, Art
2, Sec. /, in defining the territory OF
West Virginia refers to the Ohio and
Big Sandy Rivers, but makes nc
mention Of the Potomac river, seem
ing to concede to the State of Mary
land jurisdiltlon over the Potomac
river.
| am therefore of the opinion that
the State Of Maryland has jurisdic-
ton over that part of the Potomac
river above tide water where the river
constitutes the boundary line be-
tween the State OF Maryland and the
State OF West Virginia
Respectfully submitted.
ATTORNEY GENERAL.