Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, February 6, 1992 TAG: 9202060500
SECTION: EDITORIAL PAGE: A-13 EDITION: METRO
SOURCE: THOMAS T. LAWSON
DATELINE: LENGTH: Long
FEW WERE DENIED
DEL. CHIP WOODRUM recently offered in the General Assembly a modest bill confirming to private landowners the right to post against trespassers small streams running through their lands.Until recently, one would have been surprised to learn that a person might walk up a stream through another's land and, under claim of right, help himself to the fishing the landowner had developed for commercial purposes. And one would have known where to take a stranger who waded up a stream maintained by a trout fishing club and, without so much as a "thank you, ma'am," helped himself to the trout the club had stocked and fostered.
In reaction to just these occurrences, recently reported by Bill Cochran in this paper, and a developing perception that such acts are justified, Woodrum offered his bill to confirm what had generally been believed to be, and what common sense tells us should be, the law. This newspaper, however, in the name of "YOU, the Virginia public," decried the bill editorially, and the House of Delegates, under pressure from organized sporting groups, subsequently rejected it.
One is prompted to reflect upon what it means that, as this paper and those sporting groups seem to lament, "a very small percentage of Virginia's population" - private landowners - have control over the state's small streams. In a zeal for the common man, one tends to forget that our system of government is grounded upon the right of private ownership. It is, after all, the obverse attitude in government that so resoundingly failed the former Soviet Union.
What seems to have been lost in the flap surrounding Woodrum's bill - and, judging from some of the jeremiads on the subject, not always accidently lost - is that the mossy statute reserving to the commonwealth the beds of rivers and streams in the western part of the state has no application to streams on lands conveyed before the year of its enactment, 1802.
It should surprise no one to recall that after the American Revolution, the new states honored and protected the private ownership of the lands, and streams, previously granted by the English crown. Nor, under the Constitution, was a state subsequently able by passing a statute to take back, without compensation, that which it itself had conveyed.
Thus, by any construction, members of the general public have a right of access to the beds of small streams through private lands in the western part of Virginia only where the lands had not been conveyed, and therefore remained the property of the state, as late as 1802. These must be precious few.
This does not mean, happily, that Western Virginia fishermen are without their opportunities. There are miles of streams in the national forests open to all. Moreover, typically where the state stocks streams on private lands, it does so only pursuant to the agreement of the landowner that fishing will be open to the public. And, regardless, many landowners happily accord permission to fish to fishermen who respect the privilege.
One of the most vehement opponents of the Woodrum bill was the Virginia Chapter of Trout Unlimited. It is well to note that that organization's most distinguished project, Mossy Creek, was accomplished exclusively through landowner cooperation. Indeed, by its nature Mossy Creek is not susceptible to wading, and, even once established as a fishery, could not be reached that way.
Virginia Trout Unlimited could have been under no illusion as to the limited nature of the change in rights of access Woodrum's bill would have wrought. One may question, therefore, whether its opposition derived from the substance of the bill or from a tendency that it has for some time exhibited: to serve not so much as a sporting or conservation advocate as one devoted to the suppression of private rights in relation to watercourses.
It was in part because of Virginia Trout Unlimited's obdurate resistance to the exercise of the judicially recognized rights of landowners on the Jackson River below Gathright Dam that the conversion of that water into what may well become one of the finest trout streams in the eastern United States was stalled for many years. And Trout Unlimited is still a major obstacle to the adjustment of competing interests on the Jackson, making it hard for fishermen to know what water is public and what not.
Woodrum's bill would have made for a uniform application of the rules governing the posting of non-navigable streams through private lands. It would have protected the privacy of landowners and ensured a continued incentive that such streams be well maintained and creatively managed.
Zealous opponents labeled it a "land grab." A good case could be made that those opponents, or at least some of them, had in mind to accomplish a land grab in reverse: to erode private-stream ownership by encouraging the fishing public to believe it has rights where it has none.
Most fishermen will no doubt continue to honor landowners' rights. And streambed lawyers who would wade into another's property in the exercise of a new-found right of their own would do well to carry their lawyering a step farther, and first examine the title to the property, in the slight hope that it remained uncoveyed in 1802.
Thomas T. Lawson is a Botetourt County lawyer and fly fisherman.