Many talk about the heavy costs that litigation can impose on the parties in a lawsuit. One with personal knowledge is Dargan Coggeshall, an angler fighting to keep Virginia's rivers open to fishing and other recreational uses. (See "Anglers learn that fishing in some VA rivers is at their own risk," September 2011.)
In a trespassing dispute over fishing rights in a portion of Virginia's Jackson River — a dispute that arose out of a pre-Revolutionary War land patent from the British Crown, called a "king's grant" — Coggeshall incurred costs of more than $130,000 with the potential for incurring another $50,000.
The costs broke the bank.
On Oct. 9, Coggeshall's attorney, W. Scott Street, III, Esq., of the Williams Mulllen law firm, informed the judge hearing this case that Coggeshall and Charles Crawford, the defendants charged with the trespass, lacked sufficient resources to continue their defense.
As a result, the Circuit Court of Allegheny County entered a consent order (an order to which the parties agree, or consent), concluding the case.
The order prohibits Coggeshall and Crawford from wading or walking in the disputed portion of the river, thus preventing any future alleged trespassing by the two of them.
In June 2010, Coggeshall and Crawford waded into a portion of the Jackson River bordered by land owned by the North South Development company and several individuals. The development company and the riparian land owners claimed ownership of the river bottom under a king's grant. They filed a civil suit against Coggeshall and Crawford for trespass. The suit included a claim for $10,000 in damages, which the plaintiffs waived in the consent order.
Coggeshall and Crawford argued that no trespass had occurred. They argued that the river bottom was not owned by the plaintiffs but by the commonwealth of Virginia. They cited a June 2009 letter to the developer wherein the state Department of Game and Inland Fisheries concurred with them.
Coggeshall and Crawford sought the participation of the commonwealth to defend the ownership of the river bottom, but the Office of the Virginia Attorney General declined the request to involve Virginia in the dispute.
In a press release issued by the Virginia Rivers Defense Fund, Street stated, "It became evident that without the intervention of the commonwealth to present its ownership claim to the same river bottom, my clients were facing an insurmountable financial challenge to attempt to disprove the claims set forth by the plaintiffs."
Jeff Kelble, the Shenandoah Riverkeeper, criticized the commonwealth's lack of involvement. "It was the commonwealth's responsibility to hold this land in trust for sportsmen, Boy and Girl Scouts, waterfowl hunters, fisherman and paddlers," he said.
Although the case has been concluded, the claim of the plaintiffs that they own the river bottom as a result of a king's grant remains unadjudicated. The court never ruled on the ownership of the riverbed.
The consent order explicitly states that the court did not decide whether North South Development and the other riparian property owners actually own the disputed portion of the riverbed. Rather, the court concluded that they established a prima facie case of ownership — that is, that they established a potentially legitimate claim. The decision meant that the lawsuit could continue to go forward to allow North South and the individual plaintiffs to prove their claim.
And Coggeshall would continue to incur significant litigation costs — costs he determined he could not afford.
The attorney for the development company and the riparian landowners, James W. Jennings, Jr., Esq., of the Woods Rogers law firm, reflected on the costs incurred by his clients. "It's a shame the landowners had to spend money to protect their property rights," he said. "Property rights are honored in this country."
Coggeshall, who created the Virginia Rivers Defense Fund in response to this dispute over ownership of the river bottom, said that he will now work with other conservation interests and angler organizations like the James River Association and Trout Unlimited to persuade state legislators to protect "positive usage and stewardship" of Virginia's rivers.
"Today, the commonwealth of Virginia cannot tell you who owns the bottom lands in any of our nontidal, navigable rivers," Coggeshall said. "At some point the conservation community needs to take ownership of this. If we start losing all of our nontidal, navigable rivers to riparian land owners who invoke a king's grant to drive people away from using those resources, then people will quit caring about those resources."
The fund is examining legislative solutions for consideration by the 2013 Virginia General Assembly. Coggeshall has indicated that Virginia State Delegate Scott Lingamfelter (R-Fauquier) is "preparing to introduce legislation."