No trespassing: Local angler loses fight for Virginia river rights

After over two years and tens of thousands of dollars, Charlottesville citizen Dargan Coggeshall's legal fight to preserve fishing rights for Virginia anglers came to an end on October 9 in an Alleghany County courtroom.

Coggeshall had been challenging a shore-side property owner along the Jackson River who wanted to prevent Coggesshall, an avid fisherman, from wading in the river. Back in 2010, the property owner had Coggeshall and brother-in-law Charlie Crawford arrested for trespassing, and would later seek $10,000 in damages. For Coggeshall, it became a battle to preserve river rights for all Virginia anglers, as well as recreational rights for non-anglers. After all, according to Virginia law, all its waterways are owned by the state and considered public property. 

But there was a big kink in the law.

Several nearby 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. What's more, Virginia courts have considered them legitimate documents of ownership.

Coggeshall had hoped his case would push the State's Attorney General's Office to step in, affirming state law in the face of these claims based on pre-Revolutionary War documents, but that did not happen. Instead, Coggeshall, who formed an organization called Virginia Rivers Defense Fund to raise money for the legal battle, had to finally give up. After Coggeshall's attorney informed the judge that his clents didn't have the financial resources to continue, a ruling would be handed down that gave the property owners the right to prevent anglers from wading in the river in front of their property. 

"It became evident that without intervention of the Commonwealth to present its ownership claim to the same river bottom," said Coggeshall's attorney Scott Street, "my clients were facing an insurmountable financial challenge to attempt to disprove the claims set forth by the plaintiffs."

According to the property owners' attorney, however, the case was pretty cut and dry. 

"The defendants in this case ceased contesting the plantiff's rights after the Court ruled that they had made out a prima facie case of ownership," says the property owner's attorney James Jennings, "which is all that was required in this case or any case against trespassers, and that is the significance of the case.

"The landowners are pleased with the result," Jennings adds, "but they should not have been put to the great expense incurred to enforce their property rights."

As Jennings pointed out, the Comonweath chose not to intervene in this case, and for good reason. As a spokesperson for the Attorney General's office told the Hook, the law prevents them from entering into legal disputes between private parties, "unless the dispute involves an interest of the Commonwealth, which we have determined is not the case here."

Coggeshall, however, still wonders why enforcing its own rights to Virginia's river bottoms wasn't considered to be in the Commonwealth's interest.  

Ironically, Coggeshall claims it wasn't a Crown Grant that proved specific ownership of the river bottom in this case, but a string of deeds beginning in the 1940s.  

The section of the river in question lies just below Smith Bridge, which runs by the River's Edge residential development."From our review of the chain of deeds produced by the plaintiffs, the first deed that actually explicitly includes 'river bottom' in the property description is from the 1940s," he says. "The river bed is not explicitly mentioned in the Abercromby Crown grant from 1743, nor is it mentioned in subsequent transfers spanning almost 200 years."

Ideally, Coggeshall says, an 1802 Virginia statute that grants ownership of the state's riverbeds to the Commonwealth should have trumped any claims made in the 1940s. 

"In a court of law, however,  if one party has color of title, another party, us, has no title, and a third party, the State, refuses to present its evidence of ownership, then the judge has little option but to rule in favor of the party who possesses color of title,"  says Coggeshall. 

Jennings says that the property owners have asked the Virginia Department of Game and Inland Fisheries to remove its map of the Jackson River showing its lands are open to the public, and that they will enforce their property rights against those who venture upon them. 

"While fishing was not an issue in this case," he says, "the landowners are within their rights in posting the waters to prohibit fishing within their ownership boundaries."

Indeed, according to the Alleghany County tax assessors office, shore-side property owners are taxed on river bottom land that extends half-way across the river. 

"The plaintiffs have now practically privatized the stretch of riverbed in front of their development based on little more than someone in the 1940s arbitrarily inserting 'river bottom' in a conveyance," says Coggeshall. 

Also, as Coggeshall points out, the answer to the question of who really owns Virginia's riverbeds wasn't answered. 

"At the end of the day, the plaintiffs did not get what they wanted, an adjudication declaring the riverbed as 'private' and them as absolute owners of it," says Coggeshall. "What they got was a decision that said they had presented sufficient evidence to support a simple trespass charge against me and my brother-in-law." 

So what now? Well, Coggeshall isn't ready to give up.

"Now the real work begins," he says. "The civil litigation ended, which now allows [the Defense Fund] to work with more lawmakers and state agencies like VDGIF to reduce the threat of misguided litigation towards other unsuspecting sportsmen and recreationalists, who don’t have the capacity to prove or disprove the validity of a King’s Grant.

"Turning this page also allows us to broaden our partnerships," Coggeshall adds, "with more sporting, conservation and environmental groups whose missions promote positive usage and stewardship of our rivers.” 


Wow. Cooch really screwed the pooch on this one.

Does the Commonwealth stock this river and/or the lake above it? If so either 1) stocking should cease, or 2) the stocking should be moved to a location downstream of the contested area, or 3) these landowners should be assessed a fee for restricting access while having the stocked fish available for their own use, or 4) the Commonwealth should declare the contested area a "no fishing for anyone" zone to allow the fish to move downstream to public fishing areas, and fatten up in the process. If public fees are being used for the purpose of providing recreation to the public, these owners should not be allowed to set aside their property as a private fishing preserve at public expense!

I wonder how long it will be before Coggeshall returns to this same place to repeat the process?

Hopefully someone from the inland game and fisheries will need to wade the river to inspect the states interest and be asked to leave by the owners. At that point the state has a dog in the fight and these owners will wish they had quietly let a few people pass by on a weekend.

I would imagine that if someone floated the river and saw trash on the river bottom that that would be something they should as a good citizen report to the state so they could wade down the river and investigate.... (do they now need a "warrant"? )

Do they pay taxes on the land at the bottom of the river?

UN Agenda 21 wants to shut off 90 percent of U.S. acreage to any human activity whatsoever, and we're worried about this? The only reason to worry about this is if it could be precedent setting. This case is interesting because it pits two targets of UN Agenda 21 against each other. Which leads me to ask a few questions. #1: Would they send a lawyer to take the case, knowing it would fail,(Losing on purpose) thus setting precedent against public access? #2: Which is better to destroy first to further the implementation of Agenda 21, public access or private property rights? #3: Have private property rights already been degraded sufficiently that they can now move on to degrade public access rights without risking a reversal of the hard-earned destruction of private property rights?

Somebody's tinfoil hat is showing.

This actually went through the courts once before and courts ruled in favor of the landowner. Mr. Coggeshall and his lawyer should have known that the court was not going to rule in his favor. As a kid over 35 years ago, I fished this area without any problems. The problems started with irresponsible fishermen would would leave gates open and destroy fences to get to the river. The landowners revolted and this is what you get. Sorry.

...Is JWG back on the forums? I've missed his colorful debate :)

How does the VA Attorney General justify his refusal to intervene when a state agency explicitly directed the people of the Commonwealth to this precise location for boating and fishing? Is there no responsibility for state-sponsored public misguidance? It's frightening to think how many other rivers in VA had crown grants attached to them at some point. Your own favorite "public" may soon be claimed by the highest bidder. Rivers for sale!

Shame on Attorney General Cuccinelli, for selling OUR rivers to private individuals. Shame on AG Cuccinelli for refusal to defend the rights of Virginia's public river owners -- the same rightholders that you are charged to defend.

I would love to get a big tubing trip organized to float repeatedly down this section river. Property owners would be furious and it seems they would have no claim to the water if the river bottom was not used.