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Virginia Stream Dispute Could Have Far-Reaching Effects

By: by Jake Moore, OutdoorChannel.com

The latest battle in the never-ending national war between those who live on public waters and the anglers who fish those waters is playing out in Virginia. In this case, the outcome of an upcoming court battle could adversely affect anglers and hunters all over that state.

The case appears to hinge on whether the landowners have a grant of stream-bottom ownership from the king of England. "The" king apparently was King George II, who ruled from 1727 to 1760 -- but it's unclear why a Virginia court would recognize such a document post-1776.

The stream at issue is the Jackson River, which since 1989 has been a good trout fishery thanks to being fed by an upstream dam and stocking by the Virginia Department of Game and Inland Fisheries (DGIF).

The conflicts started in 1992, when fishing guide Charles Kraft was arrested for trespassing while fishing a section of the river. The charges were thrown out, but the landowners then sued Kraft, claiming that an 18th-century grant from a king of England gave them control of the river bottom and fish.

An Alleghany County Circuit judge agreed with the landowners, and in 1995 closed the disputed 3-mile portion of the river to public fishing. That decision was appealed to the state supreme court, which upheld the circuit court's decision -- despite a 200-year-old Virginia statute that states that the beds of all rivers and streams "are the property of the Commonwealth and may be used as a common by all the people for the purposes of fishing, fowling, hunting, and taking and catching oysters and other shellfish."

Apparently the landowners continued to be a pain, prompting the DGIF in 1997 to suspend trout stockings until disputes with landowners were resolved. In 2000 the DGIF tried to get the streamside landowners to embrace common sense, but failed and vowed never to stock the river again.

Then, in 2009, a development named The River’s Edge posted a stretch of the Jackson that ran through its properties. Anglers complained to the DGIF, which sent the developers a letter after consulting with the Virginia Attorney General. The letter stated that all Virginia stream beds that "have not been conveyed by grants or otherwise in accordance with law remain the property of the Commonwealth."

That language seemed to reference the '90s court cases, and be an acknowledgement that a grant from a long-dead king of England -- before the U.S. was a sovereign country -- trumped Virginia law.

Anglers didn't like it, and last year three of them decided to go fishing on a stretch of the Jackson that runs through The River's Edge. They were cited for trespassing and the charges were dropped, but in a case of deja vu, the developer and owners then sued the fishermen in civil court for trespassing. They want $10,000 in damages.

It seems like the courts have been siding with developers, landowners and long-dead kings, but the Virginia Rivers Defense Fund (www.virginiariversdefensefund.org ) -- a fishing group seeking to jam some common sense into the issue -- has a different perspective.

It wants the 200-year-old Virginia law granting upheld stream access to all Virginians upheld, and said this about the king's grants: "River’s Edge property owners are claiming that they own the bed of the Jackson River by virtue of two different 18th century land grants that predated the passage of that statute: 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. Yet neither of the developer’s old land grants explicitly reference the bed of the Jackson River when describing the property conveyed. The grants also do not mention fishing rights.

"This case is therefore very different from -- and potentially more threatening to anglers, paddlers and hunters than -- the previous Jackson River Supreme Court case [Kraft case], where it was undisputed that the landowners owned the bed of the river.

"Here, the River’s Edge developer is claiming to own property that, in practice and historically, belongs to the Commonwealth." (By the way, there's no difference between a commonwealth and a state.)

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