Want to own your own personal slice of a river that hosts a famed trout fishery? Now is your chance to buy. The River's Edge - a new development along the Jackson River, a mountainous Virginia tributary of the James River and a destination for avid anglers from far beyond the commonwealth - advertises that you can "own a piece of the Jackson."
And if you don't "own a piece" of the river, and nonetheless wade into its waters and cast your fly, you may do so at your own risk. That is what three anglers, fishing this portion of the Jackson River, found out upon receiving a summons alleging a criminal trespass and thereafter being sued privately for an alleged civil trespass.
William Dargan Coggeshall wanted to take his brother-in-law, Charles Crawford, and his pastor, Frank Garden, fishing on the Jackson. The three entered the river at a public access site, kayaked to the portion of the river bounded by The River's Edge, waded into the Jackson and began to fish.
While there, they were confronted by a local sheriff who inspected their fishing licenses.
Several weeks later they were charged with criminal trespassing. After the court dismissed those charges, several of the riparian landowners along the disputed two miles of river that borders The River's Edge, including the North South Development company, filed a civil suit against the three anglers.
At the time of the filing of the case, North South, along with the individual riparian landowners, argued that the three anglers "willfully and intentionally trespassed" causing a "loss of use and enjoyment" of their property. It subsequently dropped the case against Garden but continued the civil litigation against Coggeshall and Crawford. The suit seeks $10,000 in damages from each of them and an injunction to prohibit the men from any future trespass.
The nature of the alleged trespass? Wading into the river and "stepping onto" the Jackson River streambed.
Having experienced previous verbal encounters with landowners along this section of the river, Coggeshall had checked with the local sheriff and the Virginia Department of Game and Inland Fisheries to determine if he had the right to fish before taking his brother-in-law and pastor out on the river. He said that he was told by those authorities that there were no legal prohibitions to his use of the resource in spite of the protestations of the landowners and the signs claiming private ownership posted along the shore.
Coggeshall has now incurred more than $20,000 in legal costs and set up a fund, the VA Rivers Defense Fund (www.virginiariversdefensefund.org/), to defend what he believes is the public's right to use the river and fish it.
"I couldn't roll over because I knew the consequences if I did not fight. That is not the legacy I want to leave," he said.
North South and its partner individual plaintiffs claim that a king's grant - a Revolutionary War era land patent from the British Crown - bestowed on their predecessors, and thus to them, gives not only ownership of the riparian land adjacent to the river but also ownership of the riverbed.
Landowners along other Virginia rivers have similar claims of private ownership of the river's bottom.
This is not the first dispute concerning private landowner rights to portions of the Jackson River. According to James W. Jennings, the attorney representing North South, ownership rights to the riverbed of the Jackson are a "mishmash" of private and public interests and claims. He said that there are at least 12 private grants of ownership extending along the Jackson.
Access to portions of the Jackson River and the extent of ownership provided by a king's grant was the subject of a 1996 Virginia Supreme Court case, Kraft v. Burr. In that case, private landowners sued a professional fishing guide, not for walking on the riverbed, but for fishing the river, arguing private ownership of both the riverbed and the fishing rights. Virginia's highest court determined that the riparian landowners did in fact own the riverbed as well as the fishing rights for a portion of the river as a result of a king's grant.
The Kraft v. Burr case shut down approximately three miles of the Jackson River to public wading and fishing, establishing private ownership of the riverbed and of the fishing rights in that portion of the river.
However, the court in Kraft v. Burr did not conclude that a boater could not navigate the waters of the disputed three miles of river. While the riparian landowner may have the right to prevent fishing and to prevent a trespass on the river bottom, he does not have the right to halt travel along navigable waters.
Jennings acknowledges that should his clients win their case, anglers and others can still travel down the river. They just can't wade in the river, trespassing on the privately owned riverbed.
This is a "simple case" of trespass on private land, he argues.
The anglers argue that there is no explicit grant of the riverbed to the riparian landowners, which means the riverbed is the property of the commonwealth, to be "used as a common by all the people of the commonwealth for the purpose of fishing."
In a June 2009 letter, the state Department of Game and Inland Fish concurred with the defendant anglers. In that letter, Gary Martel, the director of the Fisheries Division, stated that the ruling of Kraft v. Burr "does not apply" to the portion of the river over which North South alleges ownership.
Jennings counters that he has "no understanding at all" how the department reached that conclusion.
Martel's letter copied Roger Chaffe, who, at the time, served as the director of the natural resources section of the Virginia Office of the Attorney General under then-attorney general, now governor, Bob McDonnell. To date, the current OAG, headed by Attorney General Kenneth Cuccinelli, has declined to participate in the dispute, although Coggenshall and others argue it should do so to defend the rights of the commonwealth's citizens.
Coggeshall argues that Virginians' "right to use public rivers in the commonwealth of Virginia is under threat." He has sent a memo to Lt. Gov. Bill Bolling, suggesting that "if properly licensed fishermen, who are fishing in public Virginia rivers start getting sued, and the attorney general sits on the sidelines, guides will quit guiding on our rivers, writers will quit writing about our rivers (other than to say 'fish at your own risk') and out-of-state fishermen will quit buying licenses and coming to our rivers."
Leon Szeptycki, the director of the University of Virginia's Environmental Law and Conservation Clinic, concludes that the case is very much a "dispute over who actually owns the streambed," making the commonwealth's interest in this case "immediate."
It is a longstanding problem. Thomas Jefferson, in 1811, advised then-Virginia Gov. James Monroe that "the just rights of riparian landowners have not yet been so well-investigated and understood as they should be."
The same is true today, 200 years later.
Public access to rivers across the commonwealth has long been a concern for anglers in Virginia. The Virginia Outdoors Plan - the outdoor recreation and land conservation planning guide for the commonwealth - notes that its most recent public survey showed that more than "50 percent of Virginians felt the most needed outdoor recreation opportunities include public access to states waters" for everything from swimming to fishing.
And Virginia's Department of Conservation and Recreation reports that the Virginia Outdoors Plan has "identified access to waterways as Virginians' top outdoor recreational priority for more than two decades."
Public access to waterways in the Chesapeake Bay watershed has been an issue for not only Virginia. In Chesapeake 2000, the Chesapeake Bay Program partners adopted a specific goal of increasing public access points to the Bay, its tributaries,and related resource sites by 30 percent by 2010.
The Program has noted that access to streams, rivers and the Chesapeake itself provides citizens a first-hand connection with the resource. Swimming, hiking, paddling and fishing are all experiential activities necessitating public access for many.
According to the Bay Program's website, it has achieved 91 percent of this goal.