Virginia Stream Access Laws

[waskeyc]

This thread is a corollary to this previous one on access laws in different states. Although the original poster stated that Virginia access is fairly liberal, the details are much more complicated. This summary, from 1980, goes into some detail, and makes clear that stream access in Virginia is murky.

To summarize, while Virginia passed laws in the early days of nationhood making navigable waterways and stream bottoms property of the state, previously granted property rights were not forfeited by the laws. This means that if a property owner can trace his title back to the Crown of England, he can assert property rights on the waterways within his property. Of course, you may have no way of performing a 200+ year title search for every parcel of land along a river you want to float, so the determination is likely only to be made in a court of law after you have been charged with trespassing. The article is somewhat prescient, being written in 1980, giving insight on the implications of future hypothetical rulings on the Jackson River in light of the then under-construction Gathright dam, which created a desirable coldwater fishery that did not previously exist.

In a recent case concerning King's Grant claims on the Jackson River, a group of landowners and a developer filed suit against two anglers for floating on the river and fishing, which the landowners considered trespassing. While the criminal trespassing charges were thrown out, the landowners won the civil trial when the court declared they had a prima facie title to the river, river bottom, and fish, while the defendant was unable to appeal due to insufficient funds.

[GrnMtMan]

waskeyc,

Thanks for putting forth the Jackson River dilemma. As the river was previously stocked by the Commonwealth of Virginia until this court ruling threw everything into a mess could they now file suit against the Crown Grant holder and developers and demand compensation for the fish that were stocked using taxpayer money and the time expended by the Department of Game & Inland fisheries personnel that performed the stockings? I suspect the time for any action like that is probably way long overdue but as many folks have opined, "Didn't we win the tussle against jolly King George and his minions more than a few years ago?" So, why should a Crown Grant in the present time be valid.

And if this ruling isn't enough of an insult the Fincastle Herald of Aug. 31, Vol. 151 No.35 carried the information that the Virginia Marine Resources Commission (VMRC) now have designated Jennings and North Creek in Botetourt County, VA as Va. navigable streams. One would have to read the entire article to get a sense of what went into this declaration because in times of little or no rain and summertime it would be amusing to see someone using many sections of these two streams as "navigable! Litigation is now pending on John's Creek in Craig County, VA Circuit Court "claiming that stream bed is not controlled by the state, rather it is owned by the private property owners because ownership dates to land grants prior to the country's war for independence. A hearing has been set for October 24 to hear a demurrer on that case."

I agree that trespassing on private property that borders a stream and spreading all types of garbage while there is detestable and prosecutable but the stream bed and the fish therein shouldn't belong to the landowner.

[Byron haugh]

Not specific to any state, but.........
I think of a few situations in which I believe a "stream" could be private and I think most would agree. Examples are Depuy's and Armstrong's Creeks. But, when you have large, long-flowing streams/rivers which traverse significant distances, I think the public should be given some consideration in the use of such waters. The legal field of riparian rights is quite complicated and came about when there was really no thought as to recreation. Rivers and the water flowing through them were considered assets of the adjacent property owners (mostly farmers or ranchers) to use to irrigate and or provide water to livestock. In some areas, today, the economic impact of recreational uses of such rivers rivals or surpasses that of the original/continuing use of the land; i.e., farming or ranching. In addition, some have purchased such land in order to make personal recreational use of the resource; i.e., mini-ranch developments offering private access to some of the best fishing rivers in the country. These factors will have natural tensions with the public's interest in having access to the same resource for recreation. Non-profit conservation districts and other groups work to lease or purchase such land in order to make it available to the public. I think, in some situations, the state(s) should consider doing that more than they currently do. They could even consider using the power of eminent domain (coupled with fair and just payment) to acquire more of these resources for the public. After all, the states benefit financially from all the tourism money spent by recreational users being attracted to such areas. Anyway, I wish more could be kept public for future generations.