[59] _Washington Airport_ vs. _Smoot Sand and Gravel Corp_., 283 U.S. 348. Cf. also, _Marine Railroad and Coal Co_. v. _U.S._, 257 U.S. 47.
But where had that high water mark been? There had been no survey at the time; the shore line had never been marked; and even had it been, the passage of time had made many changes in the river front.[60] A Commission was established[61] to deal with this question. The instructions to this Commission were to take into consideration the decisions of the Supreme Court of the United States, the findings and report of the Maryland-Virginia Commission of 1877[62] and the Maryland-Virginia compact of 1785.[63]
[60] This indefinite boundary line "lies in many places some distance from the Potomac River." _Report No. 895_, H.R., 78th Congress, 1st Session.
[61] 48 U.S. Stat. 453; Virginia Acts of Assembly, 1932, p. 485.
[62] _Code of Virginia, 1950_, Title 7.1, Sec. 7. This Commission dealt only with the boundary below Jones Point but chose _low water mark_ as the line. The pertinent words of the agreement (ratified by Virginia in 1878) are: "The low water mark on the Potomac to which Virginia has a right in the soil, is to be measured ... from low-water mark at one headland to low water at another, without following indentations, bays, creeks, inlets, or affluent rivers. Virginia is entitled not only to full dominion over the soil to low water mark on the south shore of the Potomac, but has a right to such use of the river...." Interpretation of this agreement took many years and it was 1930 before the line actually was surveyed and monumented.
[63] _Code of Virginia, 1950_, Title 7.1, Sec. 7. Cf. also page 9 above.
The Commission accumulated a large volume of testimony and exhibits and completed its report[64] in 1935. It found that the "fair and proper boundary is the low water mark on the Virginia shore running from headland to headland across creeks and inlets." It pointed out that inasmuch as the mark of 1791 could not be determined the low water mark should be accepted as of this day. It suggested that an exception be made at Roaches Run where the line should run 150 feet west of and parallel to the west line of the Mount Vernon Boulevard.