2009.04.07
Guest comment on king's grant issue
A reader - aka "Concerned" -- posted this comment on a different, unrelated topic. I didn't want it to get buried because it's an interesting, important topic. As the reader suggested, it's one that would be worth my looking into if I could make it happen.
"Mr. Taylor,
As a fellow paddler I am sure you have heard of the "King's Grant" laws in VA as they pertain to public use of rivers, streams, and creeks. As a fellow fisherman I am sure you know of the headaches this has caused in the past below Lake Moomaw.
In 2008 there was hope as the commonwealth was close to appointing a committee to research, review, and update the out of date law. But as far as budgets are concerned there was no way to fund this committee (and all the others) and the issue was dropped. Little hope remains for this issue to be looked at in 2009.
I challenge you to delve into the politics of this law and why exactly we would want to protect and endorse this law that effectivly grants the actual water rights and water beds to individual land owners.
I will agree that the law has validity for landowners that need to use streams and creeks for drinking water or for watersheds that are simply too small to fish or boat on. But other creeks and even rivers are currently 'off limits' due to the threat of tresspassing charges, etc.
These watersheds are not just your simple trickle of water past a landowners house, but navigatble in fact waterflows that run at flows favorable for boating or fishing nearly year round. When the gov't deems a wateshed navigatable it looks at the past usage of the watershed and if it was ever used as a 'mode of transportation' for people or goods.
Well fast forward to now. We are in a technological revolution. Alot of gear is used regularly now that did not exist even 10 years ago. Many enthusiasts regularly push the limit on what can be tried, done, accomplished, etc.
If we are deeming a waterway navigatable by how many logs were floated down it 200 years ago, how can that compare to what is being done now with current boats and technology? How can we sit back and pay taxes to build reservoirs, dams, & levees to control floodwater and protect the public and then simply be content with that same waterflow being completely granted over to a private landowner downstream?
Why do we help fund gov't programs to farm raise trout and release them into natural streams only to let them wash downstream into 'private' 'kings grant' 'no access' areas? As a lover of our mtn waterways i think it is time that we fought back agaist the 'commonwealth crux' that has hurt the paddling and fishing community in VA."
Heck, if we are going to go back to the king, why not go all the way back to the Shawnees and other area tribes. Then, all you would have to worry about when floating the river would be losing you hair.
Comment by Bob Pitner — April 7, 2009 @ 3:31 pm
As a fisherman I understand your thoughts clearly.... Under 114 bridge were Scuba Divers practice and hold classes the area was posted and anyone seen fishing the area near the bank of the New River was usually coerced into leaving the area...
My thoughts are It's the bank of the river no man could possibly own the New River?? Or could he? By you explanation a land owner could and retain publicly paid for resources for his private usage.
I don't fear loosing my hair as much as I hate loosing more money to higher taxes and limited rather controlled access to my outdoor pleasures.
I guess this is the true problem with a larger government, Those who have can enjoy what those who have paid for at a......
minimum price.
Comment by Static Lines — April 7, 2009 @ 5:18 pm
I'm not sure what location the comment refers to specifically, but there has been an ongoing Kings Grant issue on John's Creek above New Castle in Craig Co. for several years. A landowner has successfully banned boating from the srtetch of the creek flowing through his land which has lead to trespassing charges in the past. This is one of the few class IV level creeks within close range of Roanoke and it is a shame that an outdated law prevents people from enjoying the area's natural resources.
Comment by Roanoke paddler — April 8, 2009 @ 9:55 am
I am an owner of two Kings Grants properties in Bath County. These properties have been in my family for generations and we have never prohibited anyone from crossing our part of the waterway. All we ask is that visitors do not fish and do not get out and party on our banks. The reason for this is because we don't want to step on fishing hooks that have been discarded or caught in the rocks while we are trying to swim. We also don't appreciate having to clean up the beer cans and other trash that is tossed out of the boats. My biggest concern is that one day someone will be trespassing on our beach and get hurt because they were doing something stupid. Of course, that stupid person will feel the need to sue me despite the fact that they were trespassing and we'll get caught up in an expensive lawsuit.
The vast majority of people using the river are friendly, considerate citizens just floating by. The few people that abuse our beautiful waterways with their trash and inconsiderate behavior make it hard for everyone - land owners and law abiding citizens alike. The old saying "one bad apple spoils the bunch" fits this situation perfectly. I can understand the gentleman wanting to ban all people from his property but it is just not realistic and I'm not sure how he enforces it. Property owners and people out for recreation can get along but it takes both parties to make the effort.
Comment by Kim — April 8, 2009 @ 12:42 pm
This is a very difficult situation and you have to understand the landowner's point. In most instances, we are talking about smaller rivers and most likely streams that the landowner has rights to that have been passed down from a Kings Grant. The rights to the waterway are worth a lot of money! To know that you will not have 100s of persons floating (you would not be allowed to touch the bank) down through your property is definitely worth something to them and to have exclusive rights to the water is definitely worth a lot of $.
I think it would be interesting to hear from a landowner in this situation. Above and below Lake Moomaw seems to be one of the more heated areas for the debate and I know the landowners there really cherish what they have. If I owned one of these areas, it would probably be hard for me to open them to the public for kayakers and fishermen in canoes.
--Interestingly, Nino, the law is applied to various levels. In some cases floating isn't allowed, while in others (such as on the lower Jackson), floating is allowed, but you can't fish, step out of your boat, etc. mt
Comment by Nino Ripepi — April 8, 2009 @ 12:48 pm
Shouldn't the waterways belong to us all? I think its a shame that one man can keep everyone from enjoying our beautiful waterways.I have had experience w/ this on a local creek near my house that is not runnable except in floods. The landowner tried to run us off but when the law came they sided with us.
Comment by freakincreekin — April 8, 2009 @ 1:55 pm
I empathize with the desire to utilize the "resorces" referenced, however we all need to be very careful not to join in the curent vouge trend of changing the rules of the game once we are disatisfied with the situation. Property rights are a cornerstone of the liberties we enjoy in this country. It is bad enough that some hunters can let their dogs run wild and use that as a legal reason to trespass at will on my private property. Weakening or changing property rights under teh guise of "common good" or "public resource" is just a few steps upstream of the "common good" being used to control when, where and at what tax you are "permitted" to enjoy your recreational pursuit.
Comment by John Kemp — April 9, 2009 @ 8:38 am
Kim So if I'm a tired kayaker, in need of rest stopping by your bank is going to bother you to call the authorities? Because I may have a beer? Worst yet you know how remote it is that you will step on a hook caught in the rocks especially if it's in the river?
Do you suggest that every person that get's snag on the bottom or in under water foliage to police up their lost lures?
From the novice to the professional fisherman loose lures and some even drink and the debris I see in the water on most days is floating from up to down.
I understand your concerns to a point, On the new river somebody made a fishing platform on a fallen log to stand, but it was near adjacent fenced property.
The owner of the property took a chainsaw down to the river and cut the half fallen tree away not caring that he just made a New River obstruction for boaters.
Let's say someone hit's the log should he be charged with involuntary manslaughter or 2nd degree murder?
I would think calmer heads could prevail and let the water ways be enjoyed by all but then how could those that make those beautiful Private Posted Land sign makers make any money? This isn't the Johnson County Water war of the 1800's.
I digress: No one man is an island onto himself.
Comment by Static Lines — April 9, 2009 @ 11:32 am
Static Lines - if you were a tired kayaker stopping by I'd probably sit there and talk to like I do other people that pass by. Heck, I'd even drink a beer with you if you had extra. Now, if you just showed up and and had an attitude or were leaving your beer cans behind instead of taking them with you then yes, I'd "police up" on you. If you read my entry carefully you'd see that I have no problem with considerate folks passing through or even taking a moments rest. The problem comes from those that think much like you, that they can come and go and do as they please without asking permission or following common courtesy. Before I go tubing through my neighbors property I call them to ask permission first and I would never dream of tossing out trash on either private or public property. All I ask is that my property is shown the same consideration or at the very least, pass through and mind your own business.
Comment by Kim — April 9, 2009 @ 2:43 pm
Kim the New River is over 65 miles long should every Kayaker stop by each person individual property to let them know they will be passing through? It's unlikely if any person would do that nor would I expect them to.
Nor do I expect the golfers at the Radford Course to police up their lost golf balls in the river, I wouldn't want someone to step on one in the rocks and slip.
If people feel as I do then there is no problem, I help people in need, I speak to my neighbors, and I respect other people property. The only possible problem is the needless problems one create just to agitate because they can.
It's like the neighbor in my neighborhood were I grew up they hated that we played football in our back yards because of the noise, hated for us to play kick ball in the streets because they said the ball could hit her car.
But when her son was beat up at school she ask why didn't we help him?
Well he didn't play with us and we were warned to leave him alone so his mother and father wouldn't complain... In short you must fight your own battles, but why ostracize those that can clearly care and can help...
Still the river is big and deep enough for everyone to enjoy unless you put up a fence across your property line dividing the river.
then there's those cute Posted Signs.
But there is one thing constant as sure as this world is spherical what goes around comes around...
That's the natural law of things.
Comment by Static Lines — April 9, 2009 @ 10:33 pm
Static Lines - my property is not on the New River so feel free to trespass there all you want and let someone else deal with you. Besides, I feel like you've completely missed the point. I'll say it again - I don't care if people use the water and pass through on their way to wherever it is they are going. I do not want strangers taking up residence on my LAND and using it as their personal party space. I don't drive down the road and decide to stop by and party on your front yard because I'm tired of driving so why should the river be any different? There are pleny of public recreation areas for people to gather on. Paddle through, stop and rest if you need to but then move on. By the way, thanks for the veiled threat - I'll keep that in mind.
Comment by Kim — April 10, 2009 @ 10:31 am
Static Lines.
I think you are a little off base here. Kim obviously is not blocking passage through a river like the New River, I believe the New River is considered a navigable waterway, so it is open to the public as long as you stay in the water. What she most likely has is a stream or small river running through her property which she legally has the rights to keep people from using and she is one of the people that does allow access to his waterway! I think she is more or less on your side.
The biggest issue I see and the issue that Kim has is with garbage on the banks. If you ever visit a stocked trout stream, you no doubt to find a lot of garbage along the stream (beer cans, bottles, bait containers...), as well as paths carved out along the bank that are eroding because of all of the human use. I often avoid stocked trout streams because I spend more time picking up trash then I do fishing.
This is probably the kind of place that Kim and others don't want their land to turn into, so they restrict users to just float and not to fish...others restrict everyone from using their property.
The biggest question here is if the King's Law will continue to be held up in the court of law and it it does, then we owe the landowners the respect of managing their property how they see fit. It would be great if there were more landowners like Kim who do allow some access on their waterways, but we need to treat them with respect and show that we will help take care of their resource.
Everyone have a good spring, fishing, hunting, or enjoying our rivers and streams.
Nino
--I think you captured it pretty well, Nino. mt
Comment by Nino Ripepi — April 10, 2009 @ 11:23 am
Sorry to be coming in on this issue so late -
Honestly, I had never heard of King's Grant before this post. And I assumed a navigatable waterway was any you could float. The point being: there are a lot of ignorant people out there, myself included.
But my gut says that this an outdated standard that needs another look.
And Kim: you are to be commended for posting here, b/c you are obviously in the minority. But I would argue that if it is a regular occurance that boaters are floating the waterway that flows thru your land, then that waterway is navigatable. So maybe the definition of a navigatable waterway needs another look as Mark suggests..
just my 2% of a $1.00
Comment by R.Mill — April 10, 2009 @ 1:03 pm
Nino
I couldn't agree more with both of you, to me some people just do it to be hateful,
consider this a man had a flat tire in Jefferson National Forest he couldn't change it so I happen along while heading in for a afternoon hunt.
I changed the tire for him because of his physical limitations, upon changing his tire he said he had some property in Bedford County if I wanted to hunt it he would give me total access when ever I wanted.
So everything was fine 2 years I've hunted the property until his sudden death in November his son told me I was no longer welcome on the property.
Yesterday I ran into the son he was bumming for change in front of Sportsman Warehouse it seems his wife ran off with his money, he can't pay his taxes and he's going to loose the property any day.
I gave him $5 dollars and remarked it doesn't pay to be an @$$-hole do it, he sheepishly held his head down and took the money
I harbor no ill will toward anyone, but if the area around your place is that bad Kim feel free to send an email to Mark to contact me and I will give you a hand cleaning up the area.....
That those that feel it's not their responsibility to be neighborly or respectful to others.
Comment by Static Lines — April 10, 2009 @ 1:48 pm
I will say I dearly respect KIM
for she is one of many people who has common sense. others simply do not.
many many many people are fine with allowing the public to float by and even fish as long as they mind thier own and dont leave trash. i tell people if they see it they better pick it up as i hand them a trash bag.
AND IT WORKS!!
take a private farm pond for example, most farmers will allow people to come over and fish and hang around and generally enjoy the outdoors. but they will also always ask that you dont leave trash, dont destroy property, vegitation, etc. And 90% of the time all goes well. THEN THERE IS THE BAD APPLE! who effectivly ruins everything for everyone.
but the way the law of navigatibilty is written as it pertains to waterways clearly states that if it is 'navigatble in fact' waterway the public has the right to use it and can get out of the water as long as you stay with in the flood banks - which can be 50-100 ft from the water on larger rivers.
i believe this should clearly pertain to every other waterway that is not deemed 'navigatble' and even though the law does not protect people from being arrested and incarcerated and fined for using these waterways ...why can't the pulic and landowners work together to create a plan of action for the use of such water.
and if a landowner is scared of having thier property over run by "100's" of people why can't they open up thier waterway during a set and regulated 'season'. [My personal #1 Rule is to CALL FIRST and let me know. #2 is the trash deal.] this can always be done to allow property owners all the privacy they need to enjoy hunting seasons, holidays, special events, or anything else while still providing a community service by allowing regulated public use. hell we could even add punishment clauses to the plan, or lay them out for yearly renewals, or even use such waterways for fundraising events that could bring $, attention, tourism, and pure enjoyment to localities. the POSSIBILITES are endless, and for unhappy landowners to completely shut off access to a natural resource due to a few unpleasent experiencees is plain selfish. we are all americans and we share a bond not found anywhere else in the world. its time we acted like it. there is not room for argument in this 'argument' this is something that we in general need to work out between landowners and the public and maybe even a mediary. the only way i see to avoid reform in the law is to work together not agaisnt, otherwise the public has no other choice.
Comment by Concerned — April 10, 2009 @ 4:04 pm
I feel like having this kind of law not only affects the fisherman/boaters-which I happen to be both,but also affects the over all morale of a community,in this case(I am assuming--Johns Creek--).Leaving the landowner and lawmakers acannibal in the tresspassers eyes,and if we can just get together as a community and work somthing out, the out-come will be so much better for everyone...
Comment by Cameron Hall — April 10, 2009 @ 4:16 pm
A month too late to weigh in, I do anyway. The original issue mentioned is the claim of "Crown Grant" deeds made by property owners along the Jackson River in Bath County. I have some personal experience with the fishery and some of the landowners there. When Lake Moomaw was built, a cooling tower was constructed near the dam to facilitate the release of cold water into the stream below the dam. I was told that this was an agreement with the landowners who lost a great trout fishery when the dam filled the lake. I have since been told that this is unprovable, but why the "$1,000,000.00" cooling tower? The river below the dam was declared a navigable river by the US Army Corps of Engineers. The state of Virginia purchased and developed several access sites downstream of the dam, and then stocked trout vigorously for several years, all at considerable expense, promoting the fishery as a future world class stream. As an avid fisherman, I had numbers of great floats through the fishery in canoes and rafts, catching hundreds of trout, and bringing guests and money into the area. Guides were floating the river, hiring local shuttle drivers, and buying lures at local tackle shops. Then, a few landowners decided that their "Crown Grant" deeds would stop the fishing because the deed gives the landowner ownership of the water, the stream bed, and the fish and fowl found there. No matter that the fish came from the state, and the fowl, presumably waterfowl, belong to the federal government, (AND REGARDLESS OF YOUR POLITICS, THE STATE AND THE GOVERNMENT IS US!!!!), these landowners posted their property and had a fishing guide arrested and brought to trial to enforce their rights, given them under British Law, centuries ago, and as un-american a concept in this particular case as I can imagine. At one point, landowners went so far as to roll rocks into the river in order to disrupt fishermen, as well as verbal confrontations. For a fact, the people I took and the fishing guides using the river, were not abusing the property of these people, and were not leaving trash anywhere. We are talking about a state managed navigable river here, not some spring creek that runs through a person's property, or an occasional wet weather creek. And let's be clear here, there is a huge difference between float fishermen fishing through your property, Kim, if you live on a navigable stream, and people stopping in your yard and partying. Huge. Either way, fishing through on a navigable stream should be a given. Getting out on the banks and trespassing past the high water mark is boorish behavior, and should be illegal. On the Jackson, signs cropped up everywhere proclaiming "Crown Grant" rights, even on land not covered by said deeds, and in the long run, the Jackson became a failure for the state and a victory for a few landowners over the rights of the citizens, and a potential "world class" fishery was abandoned. Yes, I have heard all of the arguments, but on the Jackson, in particular, I believe injustice was done in the local courts, and the Attorney General for Virginia at the time, Mary Sue Terry, fumbled the ball in not challenging the "home-cooking" that resulted in a reaffirmation of the "Crown Grant" right in the local court.
To wrap up this long-winded diatribe, I would merely say that as a landowner with water, I understand the rights of landowners. As a float fisherman, however, I think navigable waters should be subject to a different standard. That said, just because you can wade in with a float tube doesn't mean you can go anywhere you please, and all of the suggestions about permission are paramount to your approach. After all, when a landowner pays taxes on the stream bottom, there are many reasons to respect their privacy and their wishes.
--Great comment, Tom. Worth the wait. mt
Comment by Tom Maynard — May 7, 2009 @ 12:36 pm
Kings Grant, indeed. Nothing short of a method of seizing, and giving to private citizens, waterways that belong to the citizens of this Commonwealth. It seems this is a viable arguments by landowners only in this state, having been cast aside in other states. In fact, it appears the concept of Kings Grant, as applied in Virginia, is a violation of federal law, which essentially says that states may not give away navigable waters to private citizens. IMO, the Kraft case was shoddily tried, at best. A suit in Federal court may be the ticket to opening these waters back up to the people that really own them.
Comment by Rowland Parks — May 10, 2009 @ 1:19 pm
Tom,
Your comments are thoughtful and informative. Is the lawsuit you mentioned in your posting a matter of public record? If so, can you provide a citation or the appropriate Clerk's office where it could be reviewed? I'm very interested in reviewing how the Court reached its decision. Thank you.
Comment by Chuck — May 16, 2009 @ 9:14 pm
Chuck, to my knowlege, and it is limited to poor recollection, Charles Kraft, a fishing guide from Charlottesville, VA, was ticketed by a game warden, while fishing the Jackson River in Bath County in the '90's, for fishing in a Crown Grant section downstream of Lake Moomaw. Mr. Kraft decided to defend himself in court, I assume in Bath Co., and I recall going to a Trout Unlimited function in Charlottesville that was held to raise money for his defense. To my knowlege, there was never a lawsuit, and I have no knowlege of any appeals or whatever. It shouldn't be hard to track down the case, but perhaps Trout Unlimited in Charlottesville would be helpful in providing specifics. I apologize for my lack of more facts, but it should indeed be a matter of public record. As to the rationale of the court, I think it will be tougher to determine that. The landowners have a point to make, as well. Lake Moomaw changed the character of the Jackson River below it from a lazy, warmish, tube floating, red-eye and smallmouth stream to a cold water trout fishery. Suddenly, there were people everywhere. Some folks were bound to take exception to the VDGIF's plan for the fishery. To see the state stay silent on the matter was hard to understand. To leave it all up to Kraft was ridiculous. Most fishing guides lack the time or the resources to fight court cases for the state, anyway. Speculation at the time included many stories of greed, possible commerce, good-ol'-boy connections, but I think the real deal was that some of the more prominant landowners were just not happy with the changes to their beloved river, and it's subsequent flotilla of fishermen. And maybe those folks knew folks who knew folks...who knows?
Comment by Tom Maynard — May 31, 2009 @ 12:34 pm
This is a late comment regarding the claim for Kings Grants from a couple of centuries ago. We (the people of the United States of America) threw the king and all his men out! No longer were we subject to his laws or under his control. Did the king maintain ownership of the properties in this country? No, the king and all his men and laws were abolished.
Comment by Mike — June 2, 2009 @ 11:30 pm
I think the most important thing we are defending here is the right to enjoy these nature waterways. This is not only for ourselves but for our children and theirs as well. Anytime we decide to close access to a river or remove the top of a mountain or cut down a forest, we are forever altering what others will be able to see and do. I for one have never run Johns Creek or some of the other mentioned waterways. That doesnt mean that I dont dream of the day where I may be able to get on them while being on the right side of the law. Once something becomes closed it then only exists in pictures and memory, and all of that fades over time. I for one would never want to selfishly deprive future generations of exploring these waterways. I think all of the land owners that posses these grants should do what is right and work together with the local and national clubs and outfitters to allow at the very least limited access to pass through there lands. Heck you might even be ablie to get a nice service project out of the deal. Free labor you cant beat that. I for one would gladly join in to help out some land owners if it ment that I could paddle, fish, or help earn the right for others to.
--Great points, Tommy. Thanks for the comment. mt
Comment by Tommy — June 4, 2009 @ 7:33 pm
ok, I respect people's private properties and I float the Jackson River below Gathright Dam at least once a month. This is a beautiful section of river(all but the 500 or so "no trespassing signs"). What bothers me is that Americans,The same ones that love their freedom that you only get in our country has to pull out something that was granted from a King that our forefathers fought so hard to free this nation from. I also know that once the war was won and our freedom was established our court systems determined that all navigable rivers where owned by the state and held in trust to the public.
"The Supreme Court has held that navigable rivers, lakes, and streams have been public since ancient times in all civilized societies, and that in colonial America they were held for the public by the King of England. When the original thirteen states took sovereignty of their land from the British after the American Revolution, those states became owners of the land underlying navigable waters. States that subsequently entered the Union have the same ownership rights as the original thirteen states under the Equal Footing Doctrine, and became owners of the land underlying navigable waters as of the date of statehood."
For those that want a grant from a King, please feel free to leave our country and find one that is ruled by a King..This is the United States of America and is not ruled by a King.
Comment by waterlover — June 17, 2009 @ 1:39 pm
Waterlover states it clearly. Most sportsmen in Virginia agree with him/her. So, the question remains, what are you/we gonna do about it?
I have always thought that one of the most unpatriotic phrases in the political world is "America...love it or leave it". The whole point of America is that we each have a duty to work to change what we don't like about this great country, and to respect the rule of law until we can get it changed, or to grudgingly admit temporary defeat when sided against by the powers that be. In the Jackson River dispute, the people got "homed" and the rule of law has possibly not been properly applied, but who amongst us has the time, resources, and motivation to change it?
In addition, anyone who hasn't floated the Jackson, I urge you to do it. It is a wonderful trout stream and it is unusual in VA to be able to float one.
Comment by Perch — June 22, 2009 @ 9:59 pm
The Kings Grant is a joke! How can you own the fish the wildlife and everything in between? To me any river u can float, is a river that you can fish! Here is a question for ya. How can you own running water? After it crosses your property are u going to float down the stream and reclaim it? I understand the land owners wanting to keep their property free of trash and debris. Kim you are one of the few King Grant land owners that seem to be understanding to the boaters stopping on your property. The fishing thing is alil much. What drives me crazy are the land owners that come to the rivers edge screaming at you to get off of their property because you’re on the bank dumping water and gathering your gear after flipping? Is there such thing as boater rights? If you do flip or take on water are you forced to keep floating until you drown or get to a public access? If everyone would pitch in together im sure we can come up with a Reasonable solution.
Comment by will float anywhere — June 26, 2009 @ 3:06 pm