Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, May 10, 1993 TAG: 9305100074
SECTION: VIRGINIA PAGE: C6 EDITION: METRO
SOURCE: Associated Press
DATELINE: LENGTH: Medium
The suit was filed by landowners along a 17-mile stretch of the river who say they can trace title to their land to pre-Revolutionary War grants made by the king of England. The grants, called crown grants, gave them ownership of the Jackson's streambed and exclusive right to fish the sections of the river they say they own, the landowners contend.
"If the landowners win, it could cost the commonwealth a great deal in outdoor resources," said Tom Evans, legislative aide for Trout Unlimited. "There is so much at stake - 22,000 miles of waterways. It won't just stop at the Jackson River."
Charles Kraft Jr., a Charlottesville fishing guide, was arrested April 14, 1992, on a trespassing charge while guiding a fishing party down the Jackson. A landowner charged Kraft was fishing on a section of the river to which the landowner had the exclusive right to fish.
The charge was dismissed in August when an Alleghany County Circuit judge ruled that Kraft could not be convicted of trespassing because the state had developed public access to the river and, in effect, invited the public to use the river.
A group of 10 landowners then filed a lawsuit seeking to bar Kraft and all others from fishing the sections of the river the plaintiffs say they own.
"It's all about money," Kraft said. "They want to control the stream so they can charge you by the day to fish."
Thomas Lawson, a lawyer for the landowners, said the public would not be excluded from fishing on the private sections of the river, "but it will cost the public a fee to fish" if the lawsuit is successful.
Lawson said it is unclear how much of the 17 miles of the Jackson from Gathright Dam to Covington are covered under crown grants. More than 300 people own property along the stretch of winding river. Some can trace ownership of the land back to grants made in 1750.
The state stepped into the matter of ownership of streambeds at the end of the 18th century. The General Assembly passed legislation that said all stream, river and bay beds as well as sea shoreline were the property of the state.
The law excluded lands covered by crown grants.
Lawson said the exclusion gives his clients ownership of the stream bed, with the exclusive right to fish their land. "It would be the same as if the stream bed were a pasture. The pasture's owner has the exclusive right to hunt it," he said.
Terry Grimes, Kraft's lawyer, countered that rulings by state courts and the U.S. Supreme Court consistently have upheld the public's right to fish in navigable waterways, such as the Jackson.
"In addition, there is a history traced all the way back through English common law to Roman law that the public has the right to travel and fish on navigable waterways," he said.
Grimes said crown grants conceivably encompass a good share of the state. Should the fishing rights of the grants be upheld, "it would be an administrative nightmare to determine what waters are public and what waters are private," he said.
Both sides agree that the Jackson has become a valuable trout fishery, made so by public money. The original Jackson could not support trout because its waters became too warm in the summer.
But when the Army Corps of Engineers built the Gathright Dam on the Bath County-Alleghany County border in the early 1970s, it agreed to regulate the flow of water from the depths of the reservoir to provide cold water through the summer. In turn, the state Department of Game and Inland Fisheries agreed to provide public access to the river and stock it.
The state began a limited stocking program three years ago, said Larry Hart, deputy chief of the department's fishery division.
"It's excellent fishing, some of the best trout fishing in Virginia. It's added great value to the river," Kraft said.
Hart said he didn't know if the state would continue to stock the stream should the landowners prevail.
"Everyone involved is scared to death of what might come out of this court action. Both sides are afraid of losing more than they gain," Evans of Trout Unlimited said.
Grimes said the no date has been set for trial. Both sides say an appeal is expected no matter what the court's decision.
by CNB