88
Kennedy, J., dissenting
First, the evident design of Paragraph Fourth is to acknowledge a Virginia access right parallel to that of its own citizens who were riparian landowners. Paragraph Fourth sets out two recitations, and they are in contradistinction. Virginia is granted "full dominion" up to the low-water line. This is unlimited. What comes next is not. As to the rights beyond this full dominion, that is to say beyond the low-water line, Virginia has only the rights of a riparian owner. If the arbitrators meant to set the two rights in parallel, as Virginia argues, they would not have used the word "but" to distinguish them. Further, the phrase "a right to such use" is limited by the phrase "riparian ownership." This is far different from saying Virginia has full dominion "up to the low-water line, and with respect to" any improvements it makes appurtenant to its shore.
Second, Black-Jenkins states that the limited rights Virginia has, the Commonwealth achieved by prescription. Maryland acquiesced to Virginia's adverse use, Black-Jenkins says, as a result of Maryland's adherence to Article Seventh of the Compact.
"Virginia, from the earliest period of her history, used the South bank of the Potomac as if the soil to low water-mark had been her own. She did not give this up by her Constitution of 1776, when she surrendered other claims within the charter limits of Maryland; but on the contrary, she expressly reserved 'the property of the Virginia shores or strands bordering either side of said rivers, (Potomac and Pocomoke,) and all improvements which have or will be made thereon.' By the compact of 1785, Maryland assented to this, and declared that 'the citizens of each State respectively shall have full property on the shores of Potomac . . . and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements.' We are not authority for the construction of this compact, because nothing which concerns it is submitted to
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