surferman
09-03-2011, 09:01 PM
If the owners win this than the next thing to happen will be the Ocean front property owners will be suing the fisherman.
OUTDOORS: Trespass case brings important issues to light
By: Andy Thompson (http://www2.timesdispatch.com/staff/2493/)
Published: August 21, 2011 </SPAN>
Who owns a river? Who owns its banks and its bed? Who owns the right to float the water that flows over that bed and by those banks? Who owns the fish, or the right to fish the fish that swim in that water, by those banks and over that bed?
If that sounds like the beginning of a Dr. Seuss book, that's good. You should be in the proper frame of mind to dive into the case of the two Jackson River (http://www2.timesdispatch.com/topics/types/naturalfeature/tags/jackson-river/) anglers now being sued in Alleghany County Court (http://www2.timesdispatch.com/topics/types/facility/tags/alleghany-county-court/) for civil trespass by riverfront property owners in a development called The River's Edge (http://www2.timesdispatch.com/topics/types/movie/tags/the-rivers-edge/).
Let me sum up: Dargan Coggeshall did his homework. He consulted maps and checked with the Department of Game and Inland Fisheries (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/). He was told he could fish a section of the trout-laden Jackson River (http://www2.timesdispatch.com/topics/types/naturalfeature/tags/jackson-river/) below Gathright Dam (http://www2.timesdispatch.com/topics/types/facility/tags/gathright-dam/). Over many trips, he and friend Charlie Crawford (http://www2.timesdispatch.com/topics/types/person/tags/charlie-crawford/) would get out at certain fishy-looking sections to wade fish.
It was after one of those trips last summer that a neurosurgeon (http://www2.timesdispatch.com/topics/types/position/tags/neurosurgeon/) and his wife from Roanoke, and the development company that owns The River's Edge (http://www2.timesdispatch.com/topics/types/movie/tags/the-rivers-edge/), laid down the law, or so they thought. The land owners claimed that by buying into this development they were the holders of two 18th-century land grants that gave them the rights, not just to the river bank (http://www2.timesdispatch.com/topics/types/industryterm/tags/river-bank/) on their property, but to the streambed as well. They sued the anglers, seeking $10,000 (http://www2.timesdispatch.com/topics/types/currency/tags/usd/) in damages, arguing that by getting out of their boat to fish, the fishermen were guilty of trespassing.
Of course, the game department (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/) never saw it that way. They advertised the stretch as public water. After all, according to a state statute over 200 years old, the beds of all rivers and streams "are the property of the Commonwealth (http://www2.timesdispatch.com/topics/types/holiday/tags/commonwealth-day/) 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."
"We get our legal opinion from the AG's office and the Commonwealth's Attorney (http://www2.timesdispatch.com/topics/types/position/tags/attorney/)," said Gary Martel (http://www2.timesdispatch.com/topics/types/person/tags/gary-martel/) of the DGIF (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/), explaining why the river section in question has long been marked and managed as public. "We continue to do so, because until its determined that it's not public ownership, that it is a valid crown grant, we don't have too much of an alternative."
So, the anglers and the game department (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/) say the streambed is public, i.e. state property. And the owners say it's theirs by right of pre-Revolutionary War grants. But Attorney General (http://www2.timesdispatch.com/topics/types/position/tags/attorney-general/) Ken Cuccinelli's office has shown no inclination to intervene in the case.
In an email, Deputy Director of Communications (http://www2.timesdispatch.com/topics/types/position/tags/deputy-director-of-communications/) Caroline Gibson (http://www2.timesdispatch.com/topics/types/person/tags/caroline-gibson/) wrote: "This is a civil trespassing case between private parties, and the Commonwealth (http://www2.timesdispatch.com/topics/types/holiday/tags/commonwealth-day/) generally does not intervene in disputes between private parties. The legal presumption is that unless proved otherwise, waterways and bottomlands are public lands."
That second sentence is interesting. You would think the parties bringing the suit would have to prove they have the land grants establishing their rights to the streambed in addition to the bank (http://www2.timesdispatch.com/topics/types/industryterm/tags/bank/) where their land ends. That would seem to end the case quite quickly and neatly. They haven't done that.
On July 25th, the defendants, claiming the river bottom is state property, asked Judge (http://www2.timesdispatch.com/topics/types/position/tags/judge/) Bo Trumbo (http://www2.timesdispatch.com/topics/types/person/tags/bo-trumbo/) to attach the state as a third party defendant to the suit. The judge (http://www2.timesdispatch.com/topics/types/position/tags/judge/) refused, saying the grants in question are a matter of public record. In effect, he put the burden of proof on the defendants to show that the plaintiffs don't own the river bottom.
"The state has a constitutional obligation to hold and protect this land on behalf of the people," said Jeff Kelbe (http://www2.timesdispatch.com/topics/types/person/tags/jeff-kelbe/), the Shenandoah Riverkeeper. "And if they fail to do that, they have failed to uphold their constitutional obligation."
Kelbe (http://www2.timesdispatch.com/topics/types/person/tags/jeff-kelbe/) and others worry that if the plaintiffs prevail without ever proving they hold the grants, if it's always up to a defendant to spend huge sums on legal bills to determine whether or not the state owns a streambed, it could open the door for further privatization of now-public water.
"There's an awful lot of Commonwealth (http://www2.timesdispatch.com/topics/types/holiday/tags/commonwealth-day/) grant [and King's grant] property out there," he said. "You have these legitimate legal issues, and the state is putting their head (http://www2.timesdispatch.com/topics/types/position/tags/head/) in the sand if they're making the claim that this is simply a civil trespass case between two private properties. It is avoiding a very important issue.
"There should be no situation where law-abiding, honest citizens in the commonwealth should get in trouble while they're making every single effort to abide by the law, particularly when relying on state's evidence and state's information."
A trial date has not yet been set.
http://www2.timesdispatch.com/sports/pro-sports/2011/aug/21/tdsport10-trespass-case-brings-important-issues-to-ar-1251613/
OUTDOORS: Trespass case brings important issues to light
By: Andy Thompson (http://www2.timesdispatch.com/staff/2493/)
Published: August 21, 2011 </SPAN>
Who owns a river? Who owns its banks and its bed? Who owns the right to float the water that flows over that bed and by those banks? Who owns the fish, or the right to fish the fish that swim in that water, by those banks and over that bed?
If that sounds like the beginning of a Dr. Seuss book, that's good. You should be in the proper frame of mind to dive into the case of the two Jackson River (http://www2.timesdispatch.com/topics/types/naturalfeature/tags/jackson-river/) anglers now being sued in Alleghany County Court (http://www2.timesdispatch.com/topics/types/facility/tags/alleghany-county-court/) for civil trespass by riverfront property owners in a development called The River's Edge (http://www2.timesdispatch.com/topics/types/movie/tags/the-rivers-edge/).
Let me sum up: Dargan Coggeshall did his homework. He consulted maps and checked with the Department of Game and Inland Fisheries (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/). He was told he could fish a section of the trout-laden Jackson River (http://www2.timesdispatch.com/topics/types/naturalfeature/tags/jackson-river/) below Gathright Dam (http://www2.timesdispatch.com/topics/types/facility/tags/gathright-dam/). Over many trips, he and friend Charlie Crawford (http://www2.timesdispatch.com/topics/types/person/tags/charlie-crawford/) would get out at certain fishy-looking sections to wade fish.
It was after one of those trips last summer that a neurosurgeon (http://www2.timesdispatch.com/topics/types/position/tags/neurosurgeon/) and his wife from Roanoke, and the development company that owns The River's Edge (http://www2.timesdispatch.com/topics/types/movie/tags/the-rivers-edge/), laid down the law, or so they thought. The land owners claimed that by buying into this development they were the holders of two 18th-century land grants that gave them the rights, not just to the river bank (http://www2.timesdispatch.com/topics/types/industryterm/tags/river-bank/) on their property, but to the streambed as well. They sued the anglers, seeking $10,000 (http://www2.timesdispatch.com/topics/types/currency/tags/usd/) in damages, arguing that by getting out of their boat to fish, the fishermen were guilty of trespassing.
Of course, the game department (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/) never saw it that way. They advertised the stretch as public water. After all, according to a state statute over 200 years old, the beds of all rivers and streams "are the property of the Commonwealth (http://www2.timesdispatch.com/topics/types/holiday/tags/commonwealth-day/) 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."
"We get our legal opinion from the AG's office and the Commonwealth's Attorney (http://www2.timesdispatch.com/topics/types/position/tags/attorney/)," said Gary Martel (http://www2.timesdispatch.com/topics/types/person/tags/gary-martel/) of the DGIF (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/), explaining why the river section in question has long been marked and managed as public. "We continue to do so, because until its determined that it's not public ownership, that it is a valid crown grant, we don't have too much of an alternative."
So, the anglers and the game department (http://www2.timesdispatch.com/topics/types/organization/tags/department-of-game-and-inland-fisheries/) say the streambed is public, i.e. state property. And the owners say it's theirs by right of pre-Revolutionary War grants. But Attorney General (http://www2.timesdispatch.com/topics/types/position/tags/attorney-general/) Ken Cuccinelli's office has shown no inclination to intervene in the case.
In an email, Deputy Director of Communications (http://www2.timesdispatch.com/topics/types/position/tags/deputy-director-of-communications/) Caroline Gibson (http://www2.timesdispatch.com/topics/types/person/tags/caroline-gibson/) wrote: "This is a civil trespassing case between private parties, and the Commonwealth (http://www2.timesdispatch.com/topics/types/holiday/tags/commonwealth-day/) generally does not intervene in disputes between private parties. The legal presumption is that unless proved otherwise, waterways and bottomlands are public lands."
That second sentence is interesting. You would think the parties bringing the suit would have to prove they have the land grants establishing their rights to the streambed in addition to the bank (http://www2.timesdispatch.com/topics/types/industryterm/tags/bank/) where their land ends. That would seem to end the case quite quickly and neatly. They haven't done that.
On July 25th, the defendants, claiming the river bottom is state property, asked Judge (http://www2.timesdispatch.com/topics/types/position/tags/judge/) Bo Trumbo (http://www2.timesdispatch.com/topics/types/person/tags/bo-trumbo/) to attach the state as a third party defendant to the suit. The judge (http://www2.timesdispatch.com/topics/types/position/tags/judge/) refused, saying the grants in question are a matter of public record. In effect, he put the burden of proof on the defendants to show that the plaintiffs don't own the river bottom.
"The state has a constitutional obligation to hold and protect this land on behalf of the people," said Jeff Kelbe (http://www2.timesdispatch.com/topics/types/person/tags/jeff-kelbe/), the Shenandoah Riverkeeper. "And if they fail to do that, they have failed to uphold their constitutional obligation."
Kelbe (http://www2.timesdispatch.com/topics/types/person/tags/jeff-kelbe/) and others worry that if the plaintiffs prevail without ever proving they hold the grants, if it's always up to a defendant to spend huge sums on legal bills to determine whether or not the state owns a streambed, it could open the door for further privatization of now-public water.
"There's an awful lot of Commonwealth (http://www2.timesdispatch.com/topics/types/holiday/tags/commonwealth-day/) grant [and King's grant] property out there," he said. "You have these legitimate legal issues, and the state is putting their head (http://www2.timesdispatch.com/topics/types/position/tags/head/) in the sand if they're making the claim that this is simply a civil trespass case between two private properties. It is avoiding a very important issue.
"There should be no situation where law-abiding, honest citizens in the commonwealth should get in trouble while they're making every single effort to abide by the law, particularly when relying on state's evidence and state's information."
A trial date has not yet been set.
http://www2.timesdispatch.com/sports/pro-sports/2011/aug/21/tdsport10-trespass-case-brings-important-issues-to-ar-1251613/