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UNITED STATES v. HERBERT BRYANT

May 14, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
HERBERT BRYANT, INC., et al., Defendants


John Garrett Penn, United States District Judge.


The opinion of the court was delivered by: PENN

These cases come before the Court on the cross-motions for summary judgment filed by the City of Alexandria (Alexandria) and Old Town Yacht Basin, Inc. (OTYB).

 The cases involve the continuing controversy over the dispute that has been pending for one hundred and forty three years concerning the boundary between the District of Columbia and the Commonwealth of Virginia. See United States v. Herbert Bryant, Inc., 177 U.S. App. D.C. 152, 543 F.2d 299 (1976), cert. den., 429 U.S. 1091, 97 S. Ct. 1100, 51 L. Ed. 2d 536 (1977). The dispute has its genesis in the decision to create a federal district, within which to place the seat of government of the new nation, the United States of America. In order to create the federal district, Maryland and Virginia ceded certain lands to the federal government in 1791. Thereafter, in 1846, the federal government retroceded the Virginia portion of the federal capital to Virginia, and it was this act that created the years old controversy. Through the act of retrocession, the federal government returned to the Commonwealth of Virginia, only those lands and waters received from that state in 1791. The boundary of Maryland extended to the high water mark on the Virginia side of the Potomac River; thus, when Maryland ceded land for the federal district, it ceded not only the land but portions of the Potomac River as well. When the Virginia portion of the federal district was returned to that state, that portion obviously did not include any part of the Potomac River. At first blush it would appear to present no problem, however, a problem was created since the boundary between Virginia and Maryland, absent legislation or agreement, had to be the line of 1791, the high water mark in 1791, and over the years, either by way of accretion or erosion, that mark has disappeared. The parties have engaged in taking core samples to relocate the 1791 line, however, up to this date their efforts have been unsuccessful.

 The above extremely brief statement of history sets the scene for the present controversy between Alexandria and OTYB.

 I

 A. The property at issue.

 The property at issue is the real property located in Alexandria, Virginia, east from South Union Street, sometimes referred to as Union Street, to the Potomac River, bounded on the north by what would be a continuation of Wilkes Street, and on the south by what would be a continuation of Gibbon Street. That property consists of five parcels, Parcels A, B-1, B-2, C and D. Most of the area consists of water, and the property is occupied by OTYB. See Appendix 1. Parcel A consists of the land which would be an extension of Wilkes Street east of South Union Street. For the purposes of this Opinion, this property will sometimes be referred to as the "Wilkes Street Extension." Parcel D consists of the land which would be an extension of Gibbon Street east of South Union Street. For the purposes of this Opinion this property will sometimes be referred to as the "Gibbon Street Extension." Parcels A and D are fast lands. *fn1" Parcels B-1, B-2 and C are fast lands and submerged lands bounded on the north by Parcel A and on the south by Parcel D and running east from South Union Street to the bulkhead line. All of the subject property is bounded on the east by the bulkhead line as is shown in Appendix 1. All of the above parcels will be described generally as the "Tract".

 B. The claims of the parties.

 The United States claims title to all lands, whether fast lands or submerged lands located within the Tract. The claim of the United States is based upon its contention that all of the currently submerged lands in the bed of the Potomac River and all fast lands along the Alexandria waterfront created by filling in the Potomac River after 1791 belong to the United States. The United States states its claim as follows:

 
As a result of the American Revolution, the State of Maryland owned the bed of the Potomac River to the high water mark on the Virginia bank in fee simple; Maryland conveyed all of its right, title and interest in the bed of the Potomac River within the limits of the District of Columbia as laid out in 1791, which included the Potomac River at Alexandria, to the United States; under federal law and the law of Maryland in 1801, the law applicable to the United States' title claim, title to any fill placed on the bed of the Potomac River after 1791 remains in the United States as sovereign owner of the bed; the fast lands claimed by various defendants in these cases, including fast lands on the OTYB Tract, were created by fill placed on the bed of the Potomac River after 1791; and United States has never conveyed its interest in the submerged lands or fast lands claimed by various defendants; and, consequently, the United States has fee simple title to all such submerged lands and fast lands, including the entire OTYB Tract.

 Memorandum of the United States in Support of Alexandria's Motion for Summary Judgment Against OTYB (U.S. Memorandum) at 3-4.

 OTYB claims title to Parcel A by adverse possession and under a deed. See OTYB Admission No. 36-40. *fn2" OTYB claims title to fast lands within Parcels B-1 and D by adverse possession. See OTYB Adm. No. 15-16, 26-29, 33-35. OTYB does not claim title to Parcels B-2 and C. See OTYB Admission No. 25 and 32.

 Alexandria claims title to Parcels A and D by virtue of their claim that those parcels are public streets in which OTYB has no right, title or interest, and it claims title to Parcels B-1, B-2 and C under deeds from various parties.

 There is another claim that does not directly relate to the issue raised in the present motion but which does relate to the overall question presented in this litigation. Old Dominion Boat Club (ODBC) and the United States have also filed cross-motions for summary judgment. ODBC contends that under federal, Maryland and Virginia law, riparian property owners along the Potomac River own all fast lands within a bulkhead established by the Corps of Engineers in 1909, regardless how the lands were created. This issue, and the land involved in the ODBC dispute, are addressed in separate motions and are not subject of this Opinion.

 II

 C. The issue of the 1791 line on the Old Town Yacht Basin claim.

 Before addressing the instant motions, the Court must consider whether it can decide the motions without having resolved the major issue raised in this litigation, namely, the issue relating to the boundary dispute and the line of 1791.

 As the Court understands the argument of OTYB, it is that the Tract is not in the City of Alexandria. OTYB contends that some of the property is located in the District of Columbia, and presumably subject to the laws of the District of Columbia; and other parts of the Tract are located in the Commonwealth of Virginia and thereby subject to the laws of that jurisdiction, and that the portions of the Tract located in Virginia are in the County of Arlington but not in the City of Alexandria.

 Alexandria argues that the Tract is located in Virginia and in the City of Alexandria, and the United States appears to agree with Alexandria.

 This action was filed in 1973. A year later, the District Court held that this court lacked jurisdiction to determine title to any land situated within the Commonwealth of Virginia. United States v. Herbert Bryant, Inc., 386 F. Supp. 1287 (D.D.C. 1974), rev'd, 177 U.S. App. D.C. 152, 543 F.2d 299 (1976). While the Court of Appeals discussed the boundary line issue, the issue was not resolved by that court. The Court of Appeals observed:

 
The United States takes the position, with which we agree, that, since this retrocession [Act of Retrocession of County of Alexandria, approved, July 9, 1846, 9 Stat. 35, ch. 35, found in 1 D.C. Code Ann. at 78-79] included only those lands which Virginia had originally ceded in 1791, the boundary in 1846 between the District of Columbia and Virginia became the high water mark on the Virginia side of the Potomac River as of 24 January 1791. Any land, either submerged or fast, on the District of Columbia side of the 1791 high-water mark remained in the District of Columbia, since it was part of the 24 January 1791 Maryland cession to the United States.

 177 U.S.App.D.C. at 155, 543 F.2d at 302. The Court of Appeals then went on to address the 1945 Act, Act of 31 Oct. 1945, ch. 443, 59 Stat. 552, found in 1 D.C. Code Ann. at 118-120, relating to the boundary line between the District of Columbia and the Commonwealth of Virginia. The Court of Appeals noted:

 
Since 1912 the Alexandria waterfront has been extended (artificially and perhaps naturally) into the Potomac River at several places, and jurisdictional uncertainties increasingly have plagued law enforcement activities in the area. To alleviate this problem, Congress passed the 1945 Act to "establish a definite clear-cut boundary line, easy to recognize and convenient for police and court jurisdiction. . . ." By ceding concurrent jurisdiction to the Commonwealth of Virginia over all lands located between the pierhead line and the mean high-water mark of 1791, this statute established the pierhead ...

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