Picture this: in the summer of 2010, Dargan Coggeshall took his brother-in-law and his pastor fishing on one of Virginia’s premier trout fisheries, the Jackson River. The three men entered the river in kayaks at the Smith Bridge public access area owned by the U.S. Forest Service, floated a section of the river that is shown on state agency maps as being open for fishing by the public, and at the end of their trip, took out from another public access area. At several points during the trip, the men stopped mid-river and stood in the water to cast their rods, a common practice among both spin and fly fishers known as wade-fishing. At no point did they venture over to the banks of the river or stop upon any land. A little more than a year later, Dargan Coggeshall finds himself accused of trespass, having incurred over $20,000 in legal defense fees, and being required to demonstrate that the river bottom is in fact not owned by adjacent landowners. Read that again, Coggeshall must prove that the persons who are accusing him of trespassing, do not in fact own the river bottom as they claim and that the state, which has publicly stated and produced maps showing its ownership interests, actually owns it. How could this have happened to a law abiding citizen?
We have taken an interest in the case out of concern about the ramifications the ruling in could have on other public waterways in Virginia, including parts of the Shenandoah Valley. Shenandoah Riverkeeper succinctly explains, “To be clear, I do not seek to increase the amount of waterways that are public. I simply seek to find clarity for law abiding citizens like Dargan.”
Dargan Coggeshall was by no means a naïve pilgrim venturing out onto new waters. An avid angler, Coggeshall had fished the Jackson River for many years prior to that fateful summer day, and did more than his due diligence by looking into which sections were legally open to the public. “People like Dargan who have spent a lot of time researching the Jackson River, who rely on information provided to them by the State of Virginia, people who go through that amount of effort, they want to be law abiding citizens,” Jeff explains. “For them to end up in this type of situation is a moral quandary, one that the State has historically failed to address.”
According the Code of Virginia, all beds of the rivers and creeks that the state owns may be used as a common by the people of the Commonwealth. As a general rule of thumb, the state owns all navigable waterways with some exception. During the colonial era, it was the practice that land in Virginia was given by the King and then by the Commonwealth to homesteaders for settling. Some of these land grants contain specific language and provisions concerning the use of waterways. Others are vague and only reference vast tracts of land. Which sections of different waterways are subject to these use limits has long been unclear. Several court decisions over time have served only to further complicate the matter. Normally, to have a King’s or Commonwealth grant validated, a property owner must submit information to the Virginia Marine Resources Commission (VMRC) for review.
In Coggeshall’s case, he is being sued by the owners of several riverside properties in a golf course development called The River’s Edge, as well as the owners of the development company, North South Development, who claim that a King’s grant gives them ownership of the river bottom. These owners have not applied for King’s grant status to VMRC. Instead, if they receive a favorable ruling in their case against Coggeshall, they would effectively be able to bypass the VMRC process using a King’s grant that does not specifically reference the river. This could set a precedent for other holders of more general King’s and Commonwealth grants to make motions to essentially privative many of Virginia’s waterways that are currently public such as the Hazel, Rappahannock, Bull Run, and Shenandoah.
“This case affects all Virginians,” as Potomac Riverkeeper Ed Merrifield summarily explains. “The rivers owned by the Commonwealth belong to the public and it is the responsibility of the state to protect those interests.”
VDGIF performed a thorough research investigation into titles, deeds, and grants affecting recreational use on the Jackson River. After being advised by the Commonwealth's Attorney, VDGIF issued its findings and began to instruct anglers on which sections of the river could be legally fished and waded. VDGIF even sent a cease and desist letter to a landowner who did not have King’s grant status and yet was posting the section in front of his property as off limits to fishing. Since VDGIF acted on the advice of the Commonwealth's Attorney and Coggeshall diligently followed the instruction he received from VDGIF, Coggeshall’s counsel asked for the state to intervene in the case. The Office of the Attorney General Ken Cuccinelli has declined to do so even though the river bottom property in question is owned by the state according to its own findings.
“A law abiding citizen should not be defending the public interests of the state. That is the state’s responsibility and the state is morally obligated to participate in the case,” according to Kelble. “A decision in favor of the plaintiffs would not only be a serious restriction of public rights for anglers, paddlers, and recreationalists, it would be a reduction of the state’s natural treasures, treasures held in trust for the common good.”
Hit the Nail on the Head
You hit the nail on the head. This is a blatant attempt by a riparian landowner to by-pass the established process for exempting one's land from the statutes (and really the state constitution). We typically lose our liberties and rights, one finger at a time, in these little county courtroom cases. I hope your readers will recognize that and support the anglers defense fund. Keep us informed.