River law: Local angler fights for river access

Several years ago, when a local angler waded into a waterway in Alleghany County, he also waded into a legal battle over property rights and public access to Virginia's rivers that has cost him $50,000 in legal fees, and counting.

Along a 14-mile stretch of the Jackson River just beneath the Gathright Dam, the cold, pure waters from the depths of Lake Moomaw, created when the U.S. Army Corps of Engineers built a dam in the late 1960s, create one of the most ideal trout habitats in the state. Indeed, a few years ago, the Jackson's reputation as an angler's paradise prompted one savvy developer to market a high-end residential golfing community along its banks, "providing privileged access to over 4-miles of private river frontage and year-round fly-fishing."

Dargan Coggeshall, a Charlottesville business owner and long-time fly-fisherman, says he discovered a spot in front of the proposed development more than two years ago. Before selling a single lot, Coggeshall says the developer had scattered No Trespassing signs along the river bank, and had even come down to the river's edge to tell Coggeshall he wasn't allowed to fish in that part of the river because it was privately owned.

Coggeshall scoffed at the idea, as a centuries-old Virginia statute deems the beds of all rivers and streams as public property for the "purposes of fishing, fowling, hunting, and taking and catching oysters and other shellfish.”

One time, Coggeshall said the developer at The River's Edge conservation development dispatched the local sheriff to the river bank.

"He checked my fishing license,"said Coggeshall,"but told the developer that I was allowed to fish on the river."

In the summer of 2010, however, Coggeshall and his brother-in-law were wading in the river when they noticed someone on shore video-taping them. It would turn out to be the developer's first property buyers, a neurosurgeon from Roanoke and his wife, who had paid $600,000 for their riverside get-away.
 
A few days later, Coggeshall and his brother-in-law were served warrants for criminal trespassing.

An Alleghany District Court judge dismissed the case, but the property owners and developer would fire back with a civil lawsuit, seeking $10,000 in damages from Coggeshall and his brother-in-law, claiming the riverbed in front of the development was private property, granted to them by documents issued by the King of England before the American colonies were formed.

Seriously.

What's more, there was a 3-mile stretch up river that Coggeshall's state maps told him was off limits to fishing, precisely because a 1993 Virginia Supreme Court found that crown grants had given the property owners there the right to prohibit fishing on "their" stretch of river.

This new lawsuit, however, is different.

"This is not a fishing case," says the lawyer for the developer and property owners, Roanoke attorney James Jennings. "This is a trespassing case. These men were walking on the river bottom, and my clients own the river bottom."

"Most people can't afford to challenge these kinds of lawsuits," says Coggeshall, who points out that he's had to set up a legal defense fund, Virginia Rivers Defense Fund, to wage the battle. He's received donations from outdoor apparel maker Patagonia and the Izaak Walton League, a conservation group founded in 1922.

Jennings claims to have records of a 1743 crown grant executed by the governor of Virginia on behalf of the King of England and a 1785 grant from the Commonwealth of Virginia that will show that the riverbed there is private property, and that those grants precede any right the state has to allow public access.

"These questions have been answered decades ago, even centuries ago,"says Eric Leaper, executive director of The National Organization for Rivers (NORS), a Colorado-based non-profit. "Under Federal law, if a river is navigable– that is, if you can basically float down it– then it's a public right of way. Courts through the ages have always said this."

"We have no problem with kayaks and canoes floating by,"counters Jennings. "Just don't get out and walk on the river bottom."

According to Leaper, the last word on river access rights came from the 1981 U.S. Supreme Court case Montana v. United States, in which the court ruled that the Crow Nation had no right to regulate fishing on the parts of the Big Horn River that ran through its reservation.

"It's really a non-issue,"says Leaper. "The U.S. Supreme Court is the law of the land, not someone waving around a crown grant."

Still, it's worth noting that three of the nine Justices dissented, believing the original treaty with the Crow gave them ownership of the riverbed.

As Jennings points out, in addition to having the old records of the grants, his clients pay real estate taxes on their riverbed land, and should have the right to decide who walks on it. He says the grants need to be honored by the state.

However, before the birth of the nation's roads and highways, back when rivers were used more for travel and commerce, Leaper says the concept of who owned the riverbeds wasn't even an issue. In the 1970s landowners began making claims on the ownership of river beds, as recreational use expanded along with riverside land ownership.

"Since the 1970s, courts have ruled consistently in favor of recreational use on rivers," says Leaper. "So, you own the riverbed? So what. The public has a right to the river, no matter who owns the river bed. Rivers are recreational thoroughfares."

"Not necessarily,"counters Jennings, mentioning the prohibition against fishing on that 3-mile stretch up river on the Jackson. "Ownership and its conditions are decided river by river."

Leaper thinks the prohibition against fishing on that 3-mile stretch is most definitely a violation of Federal Law.

"But who has the money to challenge it in Federal Court?" he says. "Oftentimes, landowners win by intimidation. As long as there's money to be made, as long as you can increase the perceived value of your land through this kind of legal maneuvering, it goes on, mile by mile, along every river."

The next hearing in the case is scheduled for May.

Attached Documents: 

north_south_dev._v._garden.pdf