Foggy bottom: River rights case could impact Virginia economy

Two years ago, Charlottesville business owner Dargan Coggeshall was angling for some trout on the Jackson River. Today, he's angling for a court ruling he hopes will preserve public access to Virginia's waterways.

While the Washington Post recently waded into the controversy, a lawsuit that reprises the classic property rights versus public access debate, Coggeshall is hoping that the State's Attorney General will get his feet wet on this one.

"This is a huge story, waiting to be broken open," says Coggeshall. "But someone needs to hold the elected officials accountable."

Indeed, what started out as a personal affront to Coggeshall– he and his brother-in-law were arrested for trespassing while wading in the Jackson River, just below Lake Moomaw, in Alleghany County following a complaint from a shore-side property owner– gradually became a cause, one that could now have important ramification for Virginia's economy.

According to a 2006 study by the U.S. Fish and Wildlife Service, recreational fishing in Virginia brought in $816 million and created 14,700 jobs. There were an estimated 640,000 resident anglers in the state, not counting tourists, and that was six years ago. Today, it's estimated that the state's recreational fishing industry generates more than a billion dollars annually.

Should more and more private property owners get to determine who uses their section of the river bottom, it could create new and complicated obstacles for anglers and guides.

Under Virginia law, all its waterways are owned by the state and considered public property. However, some river-side property owners have been able to get around the law by producing so-called "crown grants" that were issued by the King of England over 250 years ago. And Virginia courts, along with the state's Attorney General's office, have considered them legitimate documents of ownership.

In 1996, the Virginia Supreme Court ruled in Kraft v Burr that land grants by Kings George II in 1750 and George III in 1769 gave four landowners the right to prohibit fishing along a 3-mile stretch of the Jackson just below the Gathright Dam.

River rights advocates and anglers, of course, were alarmed. After all, the government-built Gathright Dam, completed in the 1960s, had created one of the most ideal trout habitats in the state, due to the release of the deep, cool waters of Lake Moomaw. What's more, the state regularly stocked the river with trout. However, during the Kraft v. Burr case that practice ceased, though the stretch of river is now known for its abundant wild trout. Indeed, the River's Edge development, where the property owners challenging Coggeshall live, markets itself as an angler's paradise.

River rights advocates, however, say states like Virginia need to stop honoring these old crown grants and start enforcing their own laws.

"Since the 1970s, courts have ruled consistently in favor of recreational use on rivers," Eric Leaper, executive director of the National Organization for Rivers (NORS), a Colorado-based non-profit, told the Hook. "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."

Ryan Brown, the legislative and policy manager for the Virginia Department of Game and Inland Fisheries, says they've been watching Coggeshall's case closely and calls it a "really important one."

"It's a private case," says Brown, "but the practical effects could be detrimental to the public use of the river."

While an Alleghany District Court judge dismissed the trespassing case against Coggeshall, the property owners in the River's Edge Community and their developer, claiming they own the river bottom on which Coggeshall was wading, moved forward with a civil lawsuit against Coggeshall and his brother-in-law seeking $10,000 in damages.

The section of the river in question lies just below Smith Bridge, which runs by the River's Edge residential development.  Coggeshall has fought back, forming the Virginia Rivers Defense Fund, and arguing that Virginia's waterways, much like sidewalks in a city, should be seen as public rights of ways. And he's called on Attorney General Ken Cuccinelli's office to defend the public's right to use them freely.

"Why is the state abandoning me and my brother-in-law?" says Coggeshall. "Why is the state not protecting its property?"

"By law, we can't enter into legal disputes between private parties unless the dispute involves an interest of the Commonwealth," says Caroline Gibson, deputy director of communications for the Attorney General, "which we have determined is not the case here."

Coggeshall had tried to get the Commonweath to be a party to the lawsuit, but as Gibson points out, "a judge already agreed that the Commonwealth is not a necessary party to resolve this case.

"The court is the proper forum in which to resolve the competing interests at issue in this case," Gibson adds.

Meanwhile, the property owners are claiming a right to the river bottom based on land grants that date back to one issued by the King of England in 1743.

As the Hook confirmed, river-side property owners are taxed on river bottom land that extends half-way out under the river, which is another reason why they say they have a right to determine who walks on it. And there's a slight distinction in this case: Unlike Kraft v. Burr, the property owners aren't challenging anyone's right to fish. But getting out of a boat and standing on the bank or the river bottom constitutes their idea of trespassing.

The lawyer for the property owners, Roanoke attorney James Jennings, has declined to comment publicly on the case ahead of the trial, but he told the Hook last year that "This is not a fishing case. This is a trespassing case. These men were walking on the river bottom, and my clients own the river bottom."

On June 14, Alleghany Circuit Court judge Malfourd Trumbo granted the property owners a motion for partial summary judgment, allowing they had prima facie title to the property, which means, literally, that "at first glance" the property owners appear to own the river bottom. Now the burden of proof is on Coggeshall to show that Virginia law, which identifies the state's waterways as public lands, precludes ownership of the river bottom based on a 250-year-old king's grant. That's something he expected to have to do anyway.

"This cause," says Coggeshall, in one of his frequent blog posts, "is about our belief that law-abiding citizens should not be personally sued for using what has been promoted by the Commonwealth as a resource to be enjoyed by all."

Coggeshall hopes the trial, which has not yet been scheduled, brings some clarity on the issue, on where exactly the public can use the river and where they can't.

"Only clarity will end what is sure to be an accelerating cycle of intimidation, confrontation, myth, and ignorance," says Coggeshall, "none of which is good for our Commonwealth."


The law allows for people to float down the river, so obviously intermittent scraping of the bottom of a boat would have to be allowed since you cannot forsee every underwater obstacle. At that point the question is what "damages" are being caused by a mans footprint that would concieveably exceed the scraping by a jonboat. Without damages beyond that point, we are now back to the fishermans taking of the landowners right to peaceful enjoyment on the river which the law already has said does not exist in a navigable waterway since a gaggle of drunks can legally tube through anytime they want.

As long as they stay off the banks and keep moving then it is no different than someone walking down the sidewalk in front of your house. The state has already commanded that easement for floaters.

Also.. the state has already "taken" landowner rights without compensation by restricting what can be done along all waterways that lead to the Chesapeake bay. It is illegal to cut down trees along riverbanks that are healthy and in 2017 animals will have to be 100 feet back from all creeks and tributaries. If they can interpret the law for the guys land they can do the same for the riverbottom.

The AG should get involved now to setle the law or do their job and inform the legislature of the need for new legislation to clarify the issue.

I don't get how this got this far in court. They weren't trespassing, so what damages are being claimed? What did they hurt, private property or not? They weren't trespassing, even if they claim title does give ownership of the river bottom. It's like buying property that has a Dominion tower on it, and then complaining that a Dominion worker walked to the power tower instead of driving his truck. So now a river the State said is navigable could be a dangerous place to turn over in, or unsnag your line in. Anybody who wants can put up no trespassing signs because who is going to take a chance on being sued. Before you know it, we'll look like Texas, and we know how well the ranchers take care of all the private property.

The king is dead, and Cuccinelli is a farce. Burn the McMansions and return the land to its natural state!

I own property with a stream running through, and property rights have been a source of conflict for years. People frequently claim they have a right to walk and fish not just in the stream, but on the bank as well. I disagree, but usually that doesn't impress them much. One way or the other, I would welcome clarification of the issue. But they'd probably continue to insist they have a right to trespass regardless of the court outcome.

Just a thought-if this is a waterway that is stocked by the commonwealth, the fish are there for all citizens, and restricting access constitutes interferance with a commonwealth-sanctioned and supported activity. If access is to be restricted by the courts, that waterway should no longer be stocked at commonwealth (read "taxpayer") expense!

This story is really getting old. Anglers fish the Jackson all the time. Access is not restricted. Follow the rules and everyone will be happy.

How would this apply to the National Parks and the people who owned the land and were forcibly removed? It has been shown that fair market value wasn't paid then and would the Kings land grant take precedence over Virginian law?

I don't think the Hook has this story entirely correct. I believe that the landowners have gone so far as to assert that they own the fish in the water that is over their land. Therefore, anyone floating down the river in a canoe must do nothing but float through the property...not being allowed to fish.

Regardless of the question of river-bottom only, or river-bottom and water and fish, this needs to be changed. Anyone floating on the river is certainly restricted from trespassing on dry land. That is where the line needs to be set.

I want to know grants from the king of England, before our war for independence, have any bearing today. We might base some of our laws on English laws, but didn't we fight the war for independence so we DON'T have to abide by the king's decrees?

Agenda 21 is to shut off 90 percent of all territory in America from any human activity, but first they have to erode support for private property rights and then erode private property rights. So those working against landowners rights are actually working against their own river access, if one takes the longview.

And sometimes the more scummy lawyers take cases knowing, even intending, to lose so that a precedent is set which their clients are not made privy to, a precedent which they are getting paid behind the scenes to help along while pretending to prevent it from being set.

I have mase this comment before and would like to know the answer to it:
In many places in Virginia the landowners property line is to the center of the state highway.
My fathers land was one of them, he paid taxes on his property to the centerline of the state highway, but is not allowed to use the property.
QUESTION: Would it be lawful for me or my father to have anyone dirving on "his" property arrested for tresspassing, from the tone of this lawsuit, it would seem that this could be done.
Virginia needs to stop beating around the bush and get rid of these old kings grants because we won our independance from England and it's kings, so these grants should be declared invalid.
The state should step in and resolve this suit, but instead it is letting a private citizen foot the bills for this travisty and when it is all over the State will step in "as always" and claim it's "rights" to the property. The state should be doing it's job and resolve this issue. I think I will have the next firve people who dirve by my fathers property on his "land" arrested for trespassing just to see what action will be taken by the state.

The quote from the AG's office is a classic. The Commonwealth has no interest in this case. She's got to be kiddin', right? We're talking about one of a state's most precious natural resources....a navigable river. Yet, the VDGIF representative talks of how important the case is. Those two responses are irreconcilable. Oh wait, one of these folks is running for public office, one is not.

If anyone wants to follow this case then the anglers have a website ( and a Facebook page. What they need is donations to keep the fight coming so it serves us all well to contribute and spread the word in our own circles.

I've floated and fished this stretch of the Jackson with my son dozens of times and never had any problems at all. It seems that Coggeshall was looking for a fight, he found one, and is now trying portray himself as the reluctant warrior. Besides, it's hard to feel that he's facing an unbearable financial hardship for a fight he sought when his own website shows him fishing for reds behind a big and beautiful coastal house in SC that he identifies as "his." This story is getting stale.

reality bites, your presumptions show your ignorance. VDGIF records are full of angler complaints of harassment by developer (or his construction workers) on that stretch. FOIA them and you'll see. Maybe you and son got lucky, or you were paddling thru quickly enough so the crews didn't have time to radio the little old man in the golf cart. I've known the angler for years and know he grew up on SC coast. Maybe a friend invited him & family down for a few days to swim, fish & relax at a rental property. How do you assign wealth & privilege to that. I'd go if a friend invited me. What you can't see is that he's fighting for you and your son's right to use the river you love. Better not touch a rock when floating that stretch next time.

It's not ignorance on my end; it's personal experience and analysis of information presented to me by Coggeshall.

My son and I have not not paddled fast through any section of the Jackson. When we see people, we waive and keep on floating. Sometimes people waive back and sometimes they don't. We've fished from our canoe and, honestly, we've caught some real slobs through there. You don't need to get out to catch fish. We're not even that great of fisherman. So, if we can do, I'm fairly certain that about anyone can.

As far as the house in SC, I'm not presuming anything. I'm taking Coggeshall at his word when he calls the house "his" on his website. Take a look. It's all right there. If he misspoke, he could simply correct it. It wouldn't be a big deal. Nobody expects him to be totally accurate with his writings, which are generally excellent.

As far as ignorance goes, I'd question the thought process of anyone who truly believes that the Commonwealth is going to allow the death of fishing in rivers for future generations to be put to death. Also, let's be honest about the true scope of this issue: It's only a factor on a few mountain streams. I don't believe that this case is going to suddenly cause owners along the James to suddenly shut down to tubing industry.

I'm sorry, but this is a story of easily avoided hardship and, in general, rings hollow. Drama queens (or kings) will find drama. Fisherman (or fisherwomen) will find fish. It's just not that hard.

Haven't you figured out that our AG is not interested in pursuing truly legal issues such as these (and what he was presumably elected to do) but instead only wants to pursue social issues and impose his far right belief system on all Virginians?