Troubled waters: Landowners, angler wrangle over access to Va. river

August 19, 2012

Dargan Coggeshall chose a fly for his rod, read the fishing rules posted at a state-maintained put-in and pushed his kayak into the shallow water of the Jackson River, promoted by Virginia as one of the best wild trout fisheries on the East Coast.

Two summers ago, when he went fishing here with a couple of friends, a woman who looked upset came out of a waterfront house and took pictures of them standing in the middle of the stream.

“Two days later, a sheriff shows up at our doors,” said Coggeshall, who has since spent tens of thousands of dollars trying to prove that he and his companions were not trespassing on this Alleghany County waterway.

His case has spawned a lawsuit that pits private property rights against public access in a state where recreational fishing brings in more than a billion dollars a year.

What’s at stake is how Virginia’s rivers are used. Can anglers wade in to fish, or kayakers to take photographs, or hunters to retrieve the ducks they have shot — even if they’re on someone’s property? Or does everyone need explicit permission from landowners to stand on the bottom of the river?


(Gene Thorp/Virginia Department of Game and Inland Fisheries map)

“We’re watching it with concern,” said Gary Martel, deputy director for wildlife resources at the Virginia Department of Game and Inland Fisheries. “It’s a really important case.”

* * *

From his kayak, Coggeshall pointed with his paddle at a large house nestled between river and cliffs.

It was here, on this river near the West Virginia state line, that his battle began two years ago. He said he had done research, consulted state fishing maps and was confident that he had the right to wade-fish, even though he had been warned in the past that he was trespassing when he stood on the riverbed.

So he was furious when he, his brother-in-law Charles Crawford and a friend were charged with criminal trespassing. The charge was later dismissed, but the homeowner and the owner of North South Development brought a civil suit seeking $10,000 in damages.

The landowners say they own the river bottom based on historical grants dating to King George II in the 18th century — and a judge has agreed that they own prima facie title to the land, putting the burden on the defendants to prove otherwise if the case goes to trial later this year.

In Virginia, the rivers, bays, creeks, ocean shores and their bottomlands are owned by the state and are legally presumed to be public lands unless they are proven to be subject to a special grant that predates commonwealth law.

No one knows how many of these old titles, often known as king’s or crown or commonwealth grants, exist, said game and fisheries official Ryan Brown.

But conflicts over public access have been increasing in recent years, not only in Virginia but on rivers across the country, lawyers, landowners and fly-fishing guides agreed.

“If we don’t fight this case and win, the public is going to get locked out of more and more resources,” said Coggeshall, a Charlottesville resident who owns a business that helps people with learning disabilities. “We are telling everyone: This could happen to a river near you.”

But the homeowners involved in the case, John and Karen Feldenzer, see it differently.

They bought their property with the understanding that it offered exclusive access to some of the best trout fishing around. They are required to pay taxes on the portion of the river that is on their land — a third of their property, Karen Feldenzer said.

“We’re not evil, mean people trying to shut down the river,” she said. “We’re average Virginia citizens just interested in having the law upheld, and our property rights not be trampled on.”

Most people move along when told they’re trespassing on private property, she said. But Coggeshall stayed.

“He decided he would be the one to test the waters — literally and figuratively. He was determined to fight this thing,” Feldenzer said.

Fight he has, creating the Virginia Rivers Defense Fund, giving fiery speeches to conservation, sports and fishing groups, and bringing in tens of thousands of dollars in donations toward his legal bills of $120,000 (and mounting).

* * *

Back on the Jackson, Coggeshall paddled past two modest houses, one with a rope swing dangling over the water. Both houses belong to the Sponaugle family, who are plaintiffs in the lawsuit.

“Our home is directly on the river,” said Susan Sponaugle, whose son, Matthew, owns North South Development, developer of a project that so far has built three luxury homes on the Jackson. “If you’re sitting out there in a boat, you’re in my back yard. It’s almost like you’re in my sunroom.”

People who float on by aren’t the issue, Matthew Sponaugle said. But over the years, homeowners have had repeated annoyances from the people who tube or paddle or fish there. “They think just because the river’s there they can come do whatever they want — use the bathroom on your bank, throw their trash out, come out and swim,” he said.

The Sponaugles pay taxes on 13 acres of land that is underwater, thousands of dollars a year, he said.

“If I came to your house and had a picnic lunch in your front yard, you should be able to tell me to leave without having to take me to court to prove you own that house, that yard,” he said.

* * *

Further downstream, an angler called out to Coggeshall, “Am I trespassing?”

“Not according to the state of Virginia,” Coggeshall answered.

The angler, Chris Lott, had asked because his guides had advised him to avoid the banks and stay midstream; knowing there was an ongoing case, they were confused about fishing rights on the river. One thing guide Ben Noffsinger was sure of: “If they ruled people could not use that stretch of the river, that would ruin our business.”

Coggeshall said he kept coming back to fish the same part of the river, despite being asked to leave, for a few reasons.

It’s a beautiful place, and the fishing is ideal, he said. He said he had talked with the local game warden and sheriff’s department and had been assured that he was not trespassing. As someone who grew up hunting and fishing, he said he’s used to people trying to discourage strangers from coming anywhere near their property.

“If you’re walking down a sidewalk in Georgetown and the resident comes out and tells you you have to leave that sidewalk, you’re on private property, and a police officer says, ‘Feel free to use that sidewalk when you walk to work every morning,’ who would you believe?” he said. “The cranky old resident? Or the officer who tells you it’s okay? I wasn’t testing anything. I just thought I was doing what I was allowed to do.”

Many of Coggeshall’s supporters have urged state Attorney General Ken Cuccinelli II (R) to get involved to assert Virginia’s ownership of the river bottom and defend people who had followed state rules, but his office has so far declined. The defendants tried unsuccessfully to bring him into the case.

“This is a civil trespassing case between private parties, and the Commonwealth of Virginia generally does not intervene in disputes between private parties,” Brian Gottstein, a spokesman for the office, wrote in an e-mail.

After a few hours, Coggeshall had paddled far downstream and reached a public take-out point. He pulled his kayak out of the water, carried it uphill, strapped it to the roof of his car.

His license plate: “TROUT ON.” That’s what anglers say when they feel a bite, to warn others that a fight is on.

Susan Svrluga is a Virginia rover for the Washington Post, covering anything and everything that’s happening in the Commonwealth.
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