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Jackson River Blues

by Beau Beasley
Virginia's Jackson River

Virginia's Jackson River - photo source: NOAA

Working its way through the Alleghany Circuit Court, the curious case of North South Development v. Garden is one of woe—complete with accusations and counter-accusations, a cast of colorful characters, state officials who have deftly managed to duck and cover, and the appearance of merit on both sides of the argument. Virginia anglers tend to come down on the side of the defendants—fellow anglers—who they believe have been railroaded in the case by the plaintiffs. But is North South Development v. Garden really just a case of bluebloods gone bad? Of aggressive anglers who overstepped their bounds and got what was coming to them? Or of something else entirely?

Although Dargan Coggeshall’s legal troubles began in June 2010 when he was served with a warrant for criminal trespassing, the saga doesn’t really begin there. Coggeshall, his brother-in-law, and their pastor were fishing in a section of the Jackson River between Indian Draft and Petticoat Junction designated as public property by the state of Virginia. It was the pastor’s first time fishing that stretch of water. The unwitting anglers were fishing a productive section of river when they noticed a woman photographing them and speaking excitedly into what appeared to be a cell phone.

“She seemed highly agitated,” says Coggeshall. “Though she never spoke to us or motioned for us to speak with her onshore, it was clear she was very upset that we were in the river.”

Coggeshall shrugged off the experience and returned to his fishing. A few days later, however, he was served with a warrant for criminal trespassing.

Jackson River No TrespassingMatt Sponaugle, who with his father Frank owns North South Development and a community alongside the Jackson River called River’s Edge, had obtained the warrant. The Sponaugles had encountered Coggeshall before: On more than one occasion Matt Sponaugle had confronted Coggeshall while the latter was fishing near his property. Sponaugle insists that he owns property on both sides of the Jackson River and that he therefore owns the riverbed in between (from just below Smith Bridge, a public access point used regularly by anglers and kayakers). Sponaugle had already warned Coggeshall not to fish in portions of the river that River’s Edge had posted as private—an area of about 2 miles of the Jackson. In one such encounter, Sponaugle had even called the Alleghany County sheriff’s office; the deputy, however, had declined to arrest Coggeshall for trespassing because he had stayed in the river and was carrying a valid fishing license.

“I didn’t attempt to run when he called the law,” says Coggeshall. “I had already called the Virginia Department of Game and Inland Fisheries (VDGIF), and they told me that as long as I didn’t get out of the river, I was within my legal rights to fish in that section of the Jackson River.” Coggeshall left that day but continued to fish in the river after the confrontation.

What Coggeshall, his brother-in-law, and his pastor didn’t know was that the woman who photographed them in the river that day was Karen Feldenzer, wife of Dr. John Feldenzer, a talented and prominent surgeon from Roanoke, Virginia. The Feldenzers had recently completed work on their riverside home, on land purchased from Sponaugle that the Feldenzers say came with exclusive rights to the bottom of the Jackson River. As testimony in court revealed, the landowners were convinced Coggeshall’s party was trespassing—and they had the photographs to prove it.

The Jackson River is arguably Virginia’s preeminent trout stream for several reasons. Situated in the far western end of the state and flanked by what passes for mountains in the Old Dominion, the Jackson lacks significant development along much of its path. The river winds its way past old family farms and through forests until it meets the Cowpasture River and creates the headwaters of the James River. The Jackson is quite wide and deep in many places and stands alone as the single Virginia trout stream large enough to support driftboat angling. But it’s the thriving population of hard-fighting wild brown trout, originally stocked by the state, that keeps anglers coming back. It may come as a surprise to many to learn that this trout population wouldn’t be what it is today were it not for the Gathright Dam.

Completed in 1979, the Gathright Dam was originally built for flood control and to provide drinking water for Richmond. According to its environmental impact statement, the dam was also supposed to provide a public downstream fishery to mitigate the loss of the public upstream fishery, which disappeared when Lake Moomaw was created as a result of the dam. The dam was itself controversial—as dams often are—but it was eventually built with federal tax dollars. Before the dam, the Jackson River held primarily warmwater fish like bluegill and smallmouth bass; after the dam, the cold water downstream of it gave birth to a world-class trout fishery.

Though some locals have long considered the Jackson River private water—and courts in decided a few previous lawsuits in support of this notion—the Army Corps of Engineers deemed the Jackson River a navigable waterway (much to the dismay of said landowners). Virginia law has long deemed navigable rivers public property because they were used as commercial routes even before roads and railways. So when in 1982 the federal district court ruled in favor of the Army Corps of Engineers in Alexander v. Lovering, the Jackson River became more or less publicly owned.

But that isn’t the end of the story. The environmental impact statement concerning the Gaithright Dam from the Army Corps of Engineers concerning the riverbed of the Jackson is relatively ambiguous:

The Corps of Engineers made a review of the legal question and is of the opinion that the Jackson River is a navigable stream. Therefore, title to the riverbed is deemed to be vested in the Commonwealth of Virginia, not with private riparian owners. Thus, riverbed lands up to the ordinary highwater mark are deemed to be public lands thereby permitting fishermen to wade or boat the stream up to that point without risking private trespass. Conversely, some landowners believe that title to the Jackson River bottom is vested with the riparian owners. Eventually, it may be necessary for judicial determination.

So can the Jackson River be privately owned? Apparently the answer is yes. In its landmark Kraft v. Burr decision, the Virginia Supreme Court sided with riparian owners who argued that their centuries-old king’s crown grants—given to their ancestors by the King of England and obviously predating Virginia law because the grants predate the country itself—gave them exclusive rights to the river. Virginia law stipulates that all land not already conveyed is held in trust by the Commonwealth for the people of the Commonwealth. But again, the Court noted that the land—and river usage—in question in Kraft v. Burr had indeed already been conveyed. While anyone may float through the “crown grant section” of the Jackson, no one may fish their without the expressed permission of the landowners. VDGIF maps of the Jackson River clearly mark the crown grant section and note that anglers may not fish in it, even with a valid state license.

The disputed water of North South Development v. Garden lies outside of the designated crown grant section of the Jackson—and therein lies the rub. The Sponaugles claim to have a crown grant to the section that is just as valid as any other, but the VDGIF says that the water is public and authorities will not arrest anyone fishing there legally. So who is right?

The Sponaugles, who have lived in Alleghany County for decades, are respected business people with significant land holdings in the county. Among these is River’s Edge, a 46-acre site that the Sponaugles have subdivided into approximately 33 homesites, which range in price from $215,000 to $365,000 each. Some of these sites offer Jackson River frontage.

The Feldenzers own two adjoining homesites in the development and spent three years building their riverfront home there. The Feldenzers say that their deed extends into the river, and county tax officials confirm that they and the Sponaugles are paying taxes on the river bottom. Indeed, part of the plaintiffs’ argument appears to be that the fact that they are made to pay taxes on their total acreage is proof of their ownership of and exclusive right to the river.

Valerie Bruffy, Alleghany County commission of revenue, says, however, that “if the landowners could demonstrate through a survey that their land was underwater, I would take that into consideration in determining the tax assessment value.” In her tenure, though, Bruffy says that “no one has sought tax relief by excluding river bottom property.”

Dargan Coggeshall was relieved when a judge determined that criminal court was an inappropriate venue for the charge against him because the ownership of the river was in question. His relief was short-lived, however: The plaintiffs have sued him in civil court instead. (The pastor has been dropped from the civil case.)

For their part, the plaintiffs in the case believe that their private property rights have been violated. They are surprised by the animosity expressed toward them by those not involved directly in the dispute. In truth, it should come as no surprise to anyone that North South Development v. Garden may have broad repercussions: Anglers worry that a ruling in favor of the plaintiffs could embolden landowners alongside any of Virginia’s colonial-era rivers to begin posting their banks and confronting anglers.

Can you trust that VDGIF sign or map that says that you’re fishing on public property? Let us say that you err on the side of caution and decide to research crown grant property to ensure that you don’t trespass. Unfortunately, no such central database or repository exists. And yet landowners on such rivers as the Jackson, James, York, Elizabeth, and Shenandoah may be holding such grants. How can they prove that they own the river bottom? They can sue you.

The Jackson River imbroglio has outraged anglers and vexed riverside landowners alike—but in truth, both parties are ill-served by the status quo. Some have directed their wrath toward the VDGIF, which really isn’t to blame either. The sad truth is that the Commonwealth apparently has no mechanism for recognizing these crown grants short of a lawsuit.

Many had expected the Virginia Attorney General’s Office to weigh in on the case on behalf of the defendants because Coggeshall was fishing in water the state deems (and posts as) public; nevertheless, Attorney General Ken Cuccinelli has steadfastly refused to do so. Indeed, the Attorney General’s Office claims to lack the authority to recognize a crown grant: Though Sponaugle sent a variety of documents to Cuccunelli’s office in a bid to prove his ownership of the riverbed, he was told that only judicial recognition would do. In other words, Coggeshall is being sued precisely because the plaintiffs can only establish what they believe to be their property rights through such means.

In general, Virginia politicians have been loath to involve themselves in the case. But the issue isn’t going anywhere: Matthew Pickett, a college student at the Rochester Institute of Technology in New York, recently made a documentary film about the case for entry in a competitive film festival this fall. In the meantime, a summary judgment in North South Development v. Garden is expected quite soon—and may be a first step back to the Virginia Supreme Court.

Regardless of the ultimate outcome of the case, it is difficult to see how anyone wins. Both plaintiffs and defendants feel aggrieved, both feel that their disparate rights have been violated—and both are caught up in the quiet desperation of a situation that is apparently beyond any ordinary citizen’s ability to mediate.

MidCurrent Fly Fishing
 
Beau Beasley (www.beaubeasley.com) is an award-winning journalist and investigative conservation writer. His even-handed approach and through research on saltwater forage fish have garnered him respect with conservationist and commercial anglers alike. The author of Fly Fishing Virginia and Fly Fishing the Mid-Atlantic, he also serves as the Director of Programs and Sponsorship Development for the Virginia Fly Fishing Festival (www.vaflyfishingfestival.org)  Beau lives with this wife and children in Warrenton VA.
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  • Sean

    Attempting to privatize a recreational area is Socialism? Do you know what socialism means?

  • Concerened Landowner

    It would seem only fair if the correct facts were presented for both sides in this article.  Unfortunately the author again does not have his information correct.  Locations, time frames actual happenings and even the correct number of altercations with the defendants would be nice.  No one seems to mention that the “Plantiff’s” also have photographs of the defendants on the River bank, ie Mr. Crawford and Mr. Garden.  However Mr. Cogleshaw was not caught on film on the bank that day.  These guys were pushing the limit and failed to mention that it was Mr. Coggleshaw who made the challenges and over and over again said “go ahead sue me, take me to court, I would love to come to Alleghany County to go to a hearing”, or maybe that was just forgotten.  Also the Deputy did not arrest anyone because the defendants decided it was best to leave. 

    Would the author just go into your back yard and have a picnic in your back yard without asking!  Also Mrs. Bruffy is incorrect, as land owners have gone to the board of appeals several times asking for Tax releif, but the landowners are always denied as the river bottom is shown on the deeds and surveys.  The landowners pay the same taxes on the River Bottom as the land beside it.  Owners have been paying taxes on this same river bottom since 1743.  So who should be upset, the folks that have spent their hard earned money for property and pay annual property taxes, or the guy who buys a bologna sandwich and a Coke from the local store and then fishes for the day!  Landowners pay state taxes at the same rate as the defendant’s, but the defendants haven’t ever paid one red cent for any property or property taxes on the Jackson River.  What do you think keeps the local governments running, taxes off of a coke or off of real estate and people actually living here.  Yes! the state has made a huge mess out of this for everyone. 

    If it is the states declares it theirs then fish your heart out.  If the landowners pay taxes on it and the state does not provide proof of ownership should they not then have the right to what they paid for?  So if the state so obviously owns it, then why are they still silent?

    • TakeTheFly

      Concerned Landowner,

      With all due respect, your arguments are just flat wrong.  I was in the court room on the day of the criminal trial.  The judge was presented with all of the photographs from the plaintiff’s.  He had them all spread out on his bench.  From my vantage point, he looked unimpressed with the photos and saw nothing in them that constituted a breaking of law, which is technically someone standing above the mean high water mark.  Since the Jackson was flowing below 300cfs on the “picture day,” the pictures likely showed Mr. Crawford and Mr. Garden standing on little more than the dry portions of what is technically known as the “river bed,” which is well, well below the mean high water mark.  You can’t even fly fish the Jackson in low-water conditions from above the high water mark, so not sure why they would have even been there.  I can assure you if the judge saw anyone above the mean high water mark in a photo, he would not have moved to dismiss it so quickly. 

      On the tax issue, again, you know not what you preach.  While I was not in the court room for the hearing last month, the court records will show that the judge advised the plaintiffs lawyers not to bring up the tax payment argument again in this case.  Let me repreat that:  the judge cautioned the lawyers to not bring up the taxation issue in his court because it had no basis for determining ownership.  What portions of property someone pays taxes on has nothing to do with who owns the property BY LAW,  it only has to do with where someone in a county assessors office happened to draw a line on a tax map.  Yes, it is very unfortunate that someone would pay taxes on something they don’t actually owe, and it would anger me if I was that person, but land title law is very different than a locale’s property tax determination methods. 

      From what I hear, the state thinks they/we own the land, but the only person who can argue the state’s position is the Attorney General.  VDGIF can’t go into a court room and represent the state.  As e’one knows, our AG is running for governor.  Q:  Who do you think his big donors are?   A:  Big land owners.  The reason the AG doesn’t jump in should be self-evident.  Isn’t it always about the money versus the truth? 

    • TakeTheFly

      One More Thing CL, you say that Coggleshaw somehow initiated the confrontation and made challenges.  Do you know that for fact?  Were you on the river that day?  Don’t you think you could be mischaracterizing the exchange which I read somewhere that said Mr. Coggleshaw told the land owner he would be happy to wait to talk with the sheriff or game warden if that would clear things up.  It just doesn’t make any sense for an angler, standing in a river with waders, armed only with a graphite stick, to challenge anything, but a wild trout.  From what I heard (for what that’s worth and not much) VDGIF records are full of complaints from anglers claiming harrassment in same river section as the one where these anglers are being sued.

      You also state that the anglers weren’t arrested by the deputy that checked them that day because they “decided it best to leave.”  You have to be kidding me.  That’s like saying the cops didn’t arrest the car theif because he decided it best to give the keys back, or not arresting the house intruder because he agreed he wasn’t standing in his own bedroom and would consent to leaving.  If the anglers were breaking any laws, especially a law that initiated a call by an angry land owner, and the cop caught them breaking said law, wouldn’t the cop arrest or at minimum cite them?  Trespassing is trespassing, not trespassing is not trespassing.  CL I have a hard time finding any credibility with any of your claims.  It’s almost like you’re a public relations rep for the plaintiffs.

    • Beau Beasley

       Dear Concerned Landowner,

      First, let me say “thank you” for weighing in on this important issue. I think land owners are not getting a good hearing on this issue, so I am glad you have joined in the discussion The case before us now is important to all Virginian’s, not just anglers.

      You have raised a few points and I would like to address them as best I can. First, I have made every effort to put forth the concerns of the landowners in this case and to date I am the only writer in the state (that I know of) that has been granted interviews with all parties involved in the case. No other journalist has been fortunate enough to get this access, presumably because they feel that I am trying to be balanced in my approach. I am NOT saying that other journalist aren’t, just that these landowners are willing to talk to me precisely because I’m going to great lengths to be fair to both sides. If you have seen better or more even handed coverage, please refer me to the article because I would like to read it.

      While I have been given access to both parties, both parties are not willing to be quoted on the issues so while this may appear that I am leaning towards the “angler’s side” I can only work with the material I have. At any time the landowners want to be quoted, or to give a brief statement I will be happy to accommodate them whole heartily.. Each side deserves to have their views expressed fairly.

      I must confess the court case name has been changed to North/South vs.Crawford (not Garden) and I will make note of that for future work. Also I can’t expect to get every single incident of folks meeting on the river having a fight into the article, all I can do is try to keep it as factual as possible which  I have tried to do this.

      If the deputy in question mentioned in this artilce had arrested or charged the anglers with trespassing while in the river, the matter would gone no where. Ed Stine the Commonwealth’s Attorney for your county has made it abundantly clear he absolutely will not prosecute anyone for trespassing while in the river IF they are outside the current state recognized Crown Grant area recognized in Kraft V Burr. If you are in the current crown grant area, or if you are on the banks of the river and refuse to leave, I am certain Mr. Stine will indeed prosecute you to the fullest extent of the law. Currently however, he nor the state of Virginia will criminally prosecute anglers that are in the section of the river mentioned here. If the plaintiffs had photo of the anglers trespassing on the BANKS of the river the day in question rather than the river, they could and would have been easily convicted of trespassing.

      As far as anglers go, millions of dollars are spent each year in Virginia on fishing and fishing gear. While I agree that angler expenditures may pale in comparison to local taxes, the Gaithright Dam which created the tail water fishery was built primarily by fed and state money, not local tax payers If you think anglers have no impact on the state, you might want to check with the state’s tourism department, not to mention hotels, B&B’s restaurants, fly shops, guides and others affiliated with the fishing community.

      Lastly I am very eager to follow up on your suggestion that I contact those that have some say about landowner’s not being able to be relieved of these taxes. It is my understanding that they don’t want to be relieved of these taxes as this would undermine their case of ownership.
      If you have more information on this I can assure you that I WILL follow up on any leads in that area. I can only follow up on information that I know about, not what someone thinks I should know about.        

      Please send me an e-mail off line through my web-site and I will aggressively track down this lead. I want to have as many of the facts at my disposal as possible. I look forward to hearing from you.

      Tight Lines
      Beau Beasley
      http://www.beaubeasley.com
      703-402-8338
       
        

  • Beau Beasley

     Drag Free,

    Please read some of my previous articles that are posted at MidCurrent under the conservation section. That will give you a better history of how we got to where we are on this issue.   

  • Beau Beasley

     Many thanks.

    Beau

  • Tereilly

    how about this: Since the fish,  like a boat move through the river sections in question and they do not live IN the river bottom and if caught it would not like someone was harvesting plants from the river bottom – they are NOT part of the “land”.

    • Beau Beasley

      In the 1996 Kraft V Burr decision a split court decided the fish belonged to the property owners. Many of the judges on the split decision disagreed and held the position that you did, namely if the fish move they can swim anywhere they want and aren’t owed by the landowner. The majority of the court however ruled the crown grant did indeed mean to convey the ownership of the fish. Much like “the King’s deer” would be in a forest.

      Stay tuned, this fight may be far from over.

      Beau

  • Mike Holland

    Social means shared… privatize means held by a corporate, private interest, so these are the opposite. This is fascism. That’s the word you are looking for… corporate wishes being turned into civil law is fascism.