A case working its way through a Virginia court has raised the question of whether landowners can restrict anglers, boaters and others from using what many perceive to be public waterways in the commonwealth, and potentially in other mid-Atlantic states as well.
The owners of 2 miles of land fronting the Jackson River have sued two anglers for $10,000 for allegedly trespassing on their portion of the river. Their case is based on an ownership claim that goes back to a land grant issued by the king of England in the 17th century, before the United States was created.
On June 5, Alleghany County Circuit Court Judge Malford Trumbo handed down a partial summary judgment which prohibited those two anglers from returning to that section of the river until the full case is resolved, something unlikely to happen until this fall.
In the meantime, the questions raised in the case, titled North South Development v. Crawford, will continue to cast a shadow over the public's ability to access a number of rivers because of similar grants made centuries ago.
Called Crown Grants, these land grants from the King of England are fairly common in Virginia and some other Eastern states. Just how many exist in Virginia is unclear. There is no official list of Crown Grants, according to the Virginia Marine Resources Commission, the state agency with jurisdiction over riverbeds in Virginia. Crown Grants may be on file in multiple county courthouses across the commonwealth with most riparian landowners having no idea that they even exist.
Such grants are known to exist on venerable waterways such as the Jackson, York, Elizabeth, Cowpasture, James and Shenandoah rivers.
While Virginia law claims that ownership of riverbeds lies primarily with the state, there are exceptions, a Crown Grant being one of them. In 1996 the Virginia Supreme Court ruled in Kraft v Burr that Crown Grants trump state ownership. While river lovers can float down navigable rivers like the Jackson, the court held no one can touch bottom or fish in these areas without the owner's express consent.
The state of Virginia, meanwhile, has no mechanism to determine which Crown Grants are valid and which aren't without going to court. The landowners in the Jackson River case tried to gain recognition through the Virginia Attorney General's Office, but that office claimed to lack the authority to recognize such grants without a court ruling.
The case on the Jackson is not alone. In 2005, a section of the Hazel River near Double Ford and Monumental Mills in Culpeper County was closed for five years in a similar dispute. There, a local landowner with a similar Crown Grant claim successfully blocked public use of the river. The area is now open to the public because the Culpeper County commonwealth's attorney decided the Crown Grant had not been validated in court. Still, several no-parking signs and some guard rails were erected during the dispute, and while the area has been deemed public, these remain in place, making river access and use difficult.
Jeff Kelble, an avid paddler and the Shenandoah Riverkeeper, said that he fears that "with little more than a rumor of Crown Grant ownership or of pending civil litigation, a landowner could prevent most people from using perfectly open and public stretches of their favorite river."
"Most citizens do not want to jump into controversy on their days off," he said, adding, "I'm saddened by all this and see this type of privatization as a dark path that only leads us to the sad situation which exists in Europe, where most of the commons are gone, and most citizens have very little access to wild and public places."
On Johns Creek in Craig County, VA, a landowner has successfully barred paddlers from even floating down the river, much less touching bottom.
Virginia is not unique. Other mid-Atlantic states also have Crown Grants in their history.
On the Salmon River in New York's Pulaski County, about two and a half miles of river known as the Douglaston Salmon Run are privately held. This stretch of water has been in the landowner's family for seven generations — ever since its original owner, Colonel Rufus Price, was an aide-de-camp to Gen. George Washington during the Revolutionary War. This section of the Salmon River is still available to the public, and especially appealing to anglers, but only for a fee.
The owners of the property claimed thousands of anglers a year were trespassing while fishing and specifically brought a case against a group of guides who used drift boats to fish the river.
During the case, the plaintiffs argued the anglers were trespassing when they used an anchor because it had to touch the riverbed while in use. The anglers argued that since the river was navigable, it was open to the public. In Douglaston Manor v. Bahrakis the courts ruled that while the Salmon River was navigable, the ownership of the riverbed had passed from King George III, to the state of New York. When the state of New York resold the property which contained the river, they passed to the new owners all of the rights given under English common law, which included control of the riverbed.
Anglers from across the country are paying attention and considering the implications of North South Development v. Crawford for access to their own waterways. Outdoor giant Patagonia, based in Ventura, CA, recently donated $5,000 to the Virginia Rivers Defense Fund set up to defray the Jackson River anglers' legal defense fees, which the anglers suggest top $80,000. Other contributors include the Izzack Walton League, several individual Trout Unlimited clubs from Virginia as well as the James River Association.
Landowners are also watching the case closely and lament that Virginia lacks a meaningful policy to deal with such issues outside a courtroom.
Whether the case will clarify the issue remains to be seen. A date for a full trial has not been set and it may never go to trial if the anglers in the case decide to forgo further legal fees.