84
Kennedy, J., dissenting
through to include the whole river within Lord Baltimore's grant"). Then, as if this 1877 determination were not enough, this Court independently reviewed the question in 1899. The Court, too, reached the conclusion that Maryland had clear title to the whole River dating from 1632. The Court said, "the grant to Lord Baltimore, in unmistakable terms, included the Potomac River." Morris v. United States, 174 U. S. 196, 223 (1899). And the Court confirmed this determination in 1910. See Maryland v. West Virginia, 217 U. S. 1, 45-46. Thus, unless prescription had been worked by some previous conduct to give Virginia at least some limited rights, in 1784 Maryland had clear title to the whole River, as much as in 1632.
Neither Virginia's counsel nor the majority of the Court today contends that prescription occurred prior to the Compact of 1785. In 1784, therefore, under the law, Virginia had little more than a land border between it and Maryland in the area here under consideration; Virginia did not have a river border since the River was not its own. That in 1784 Virginia did not admit Maryland's clear title to this territory and was unwilling to comply with Maryland's continuing and consistent demands that it respect Maryland's sovereign control over the River did not cloud the smooth stretch of Maryland's title back to 1632.
Whether the Governor of the Commonwealth, in 2003, may cool himself in the River—or in this case, build a water pipe for the benefit of communities not on the riverbank—without so much as an "if you please" to the State of Maryland entirely depends upon whether in the intervening time since 1784 Maryland has in some way ceded its sovereignty over the River. See United States v. Cherokee Nation of Okla., 480 U. S. 700, 707 (1987) ("[A] waiver of sovereign authority will not be implied, but instead must be 'surrendered in unmistakable terms' "); 12 Pet., at 732 ("[T]itle, jurisdiction, and sovereignty, are inseparable incidents, and remain so till the state makes some cession").
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