River paddlers, anglers, streamside property owners, and students of water-related law and rights are among the groups following closely a lawsuit in Alleghany County Circuit Court. 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 (a James River tributary) near Covington are suing two paddlers and anglers who, the plaintiffs allege, trespassed in June 2010 on stream-bottom property for which streamside property owners claim the right to restrict stream-bottom wading (and fishing) 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 exclusive fishing 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 are seeking $10,000 in alleged damages and an injunction to prevent fishing in the disputed river section. The defendants claim that Virginia Department of Game and Inland Fisheries maps at the site and online indicate that the stream section in question is open to the public for fishing and wading. The lawsuit follows a criminal trespassing charge that was dropped in General District Court. At a hearing on July 25, the Circuit Court judge refused a defendants’ motion to include the Commonwealth in the case as a defendant. The Virginia attorney general’s office has refused to become involved in the case, asserting that it is a private-party dispute. As of August 7, further court dates had not yet been set.
Defendants’ Web site (which includes court documents): http://www.virginiariversdefensefund.org/?page_id=21.
Plaintiffs’ Web site: http://www.cliffviewinc.com/index.htm.
Articles: AG sidesteps fray in fishermen trespass case, Virginia Lawyers Weekly, 8/15/11; 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.