November 2012 Update on Court Case over Stream Ownership and Access Rights on Jackson River in Alleghany County, Va.

River paddlers, anglers, streamside property owners, and students of water-related law and rights were among the groups who followed closely a lawsuit in Alleghany County Circuit Court that concluded on October 9 in Covington.  In North South Development LLC, et al., v. Garden, et al. (Case no. CL11000043), North-South Development and several owners of property in the company’s River’s Edge development along the Jackson River near Covington sued two paddlers and anglers who, the plaintiffs alleged, trespassed in June 2010 on stream-bottom property for which streamside property owners claim the right to restrict wading through a “king’s grant” dating back to the colonial period.  In the 1996 Kraft v. Burr decision, the Virginia Supreme Court held that property owners may claim such rights—even in navigable waters—if the property has a king’s grant that includes authority over the stream bottom (see pp. 11-12 in the Virginia Water Resources Research Center report on this case, listed below).  The plaintiffs were seeking $10,000 in alleged damages and an injunction to prevent wading in the disputed river section.  The defendants claimed that, at the time of the alleged trespass, Virginia Department of Game and Inland Fisheries maps at the site and online indicated that the stream section in question was open to the public for fishing and wading.  The lawsuit followed a criminal trespassing charge that was dropped in General District Court.  The defendants had sought to include the Commonwealth in the case, but the Attorney General’s Office declined to intervene, and at a hearing on July 25, 2011, the Circuit Court judge refused a defendants’ motion to include the Commonwealth as a defendant.  On June 5, 2012, Judge Malford Trumbo issued a partial summary judgment, holding that the plaintiffs had “presented a prima facie title to the real property on which the alleged trespass took place,” that is, a presumably legitimate claim of title, although subject to future evidence that might be presented.  Further proceedings would have been needed to determine whether the defendants could successfully challenge that prima facie title, but on October 9 the defendants declined to go forward, stating that they had insufficient money to continue the case.  Consequently, Judge Trumbo approved a consent order that prohibits the defendants from walking or wading in the Jackson River section in question but does not rule on the question of the ownership of the river section.  In the consent agreement, the plaintiffs waived the claim for $10,000.  Sources: Legal Costs Derail Jackson River Suit Over VA Fishing Rights, Bay Journal, November 2012: Final Order, October 9, 2012, on Virginia Rivers Defense Fund Blog, at http://www.virginiariversdefensefund.org/court-documents-background.

Downstream of the Jackson River section in dispute in Alleghany County, Va., the Jackson (l.) meets the Cowpasture River to form the James River in Botetourt County, Va.  This view is from July 19, 2010.

For more information:
Defendants’ Web site (which includes court documents): http://www.virginiariversdefensefund.org/?page_id=21; plaintiffs’ Web site: http://www.cliffviewinc.com/index.htm.

Other articles:  Troubled waters: Landowners, angler wrangle over access to Va. river, Washington Post, 8/19/12; Murky waters on the Jackson River: The Jackson River is again the center of an access fight between landowners and anglers, Roanoke Times, July 31, 2011. Jackson River rights questioned in Alleghany County civil case, WSLS-TV (Roanoke), 7/20/11; Jackson River fishery access back in court, Roanoke Times (Bill Cochran column), 7/21/11; Virginia Anglers Sued for Fishing on Property Deemed “Public” by Game Dept., MidCurrent, 6/28/11.

Virginia Water Center reports on recreational rights in Virginia waters: Inland Recreational Fishing Rights in Virginia: Implications of the Virginia Supreme Court Case Kraft v. Burr, 1999, online at http://vwrrc.vt.edu/special_reports.html#1999; and “Public Recreational Rights on Virginia’s Inland Streams,” 1980, online at http://vwrrc.vt.edu/special_reports.html#1980.

Meanwhile, if you’re deeply interested in king’s grants, see “The Intriguing Tideland Grant,” National Wetlands Newsletter, Sept.-Oct. 2012 (p. 5).   This one-page commentary focuses on tideland grants in Georgia.  The National Wetlands Newsletter Web site is http://www.wetlandsnewsletter.org/index.cfm, but a subscription is required for access to the newsletter.  Check your  local public or college/university library to see if they have a print or electronic subscription.

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