A confluence of geography, recreation and legal precedent has set the stage for a civil trial scheduled for July 11 and 12 in Craig County Circuit Court that some say could lead to a popular stream being closed to recreation.
Briar Oak Properties LLC, which owns at least one parcel adjacent to Craig Creek in Craig County, is suing the Virginia Marine Resources Commission to clarify ownership of the creekbed. If successful, the case could enable landowners to ban navigation in other creeks, not just in Craig Creek, said Bill Tanger, chair of Friends of the Rivers of Virginia.
The creek, also known as Craig’s Creek, is popular for rafting, kayaking and paddling.
Listed as a party in the suit is Briar Oak Farms LLC, which also owns property adjacent to the creek.
Stephen Lemon, a lawyer with Roanoke firm Martin, Hopkins & Lemon, is the registered agent for Briar Oak Properties, according to State Corporation Commission listings. Lemon returned a call but referred questions to Roanoke attorney Lenden Eakin.
Eakin declined to identify the owner or owner of the Briar Oak companies. Craig County GIS records show that one of the properties at the crossing of Virginia 612 and Craig Creek was transferred to Briar Oak Farms by William J. Lemon in 2021.
It’s not clear if the Briar Oak owner has a problem with people who are only floating through on kayaks and canoes.
“His question is, who owns it, especially the banks,” Eakin said. “And the reason it’s particularly a problem here is there’s a one-lane public road that fords the creek there. People are accessing the creek bank from the road, not from the creek. And he wants to know, is that state property and it’s OK for them to do whatever they’re doing, or is it his property?”
Access, a Roanoke advertising and public relations firm that is working with Eakin, issued a press release on Feb. 1.
“The landowners have encountered members of the public picnicking, parking vehicles, camping, building fires and otherwise treating the property along the creekbank as if it were a public park,” according to the release.
“They’ve paid taxes on the property for a long time,” Eakin said. “Should we continue to pay taxes on it, or is it state property that should be taken off of our tax bill? So it’s a question of ownership. And the state’s claiming ownership to the high water mark on both sides of the stream, and that’s a lot of real estate on Craig’s Creek. There’s a long distance between low and high water marks usually on one side or the other, sometimes both sides, but that’s several acres of land that ownership appears to be in dispute and they would like that dispute resolved.”
The lawsuit states that “The Marine Commission’s official website erroneously claims that the Code of Virginia vests ownership of ‘all the beds of … creeks … in the Commonwealth to be used as a common by all of the people of Virginia.’ This quote fails to include the fact that the Virginia Code Section cited (28.2-1200) only applies to ungranted beds … not conveyed by special grant …
“The special grant that conveyed the submerged lands at issue to Plaintiffs’ predecessors in title is a Commonwealth Grant to John J. Mound of 790 acres on Craig’s Creek recorded in Commonwealth Grant Book Number 38, page 122, of record in the Library of Virginia.”
“The submerged land in question was granted to the owners’ predecessors in title by the state of Virginia via a Commonwealth Grant in 1798,” according to the press release.
The plaintiffs ask the court to enter an order “declaring that the property of Plaintiffs located under and along the waters of Craig’s Creek is their private property and not the property of the Commonwealth and that the Marine Commission does not have jurisdiction over Plaintiffs’ submerged lands.”
Rosalie Fessier and Mandi Smith from Staunton law firm TimberlakeSmith, representing the Virginia Marine Resources Commission, filed a demurrer requesting the case be dismissed. In a supporting memorandum they wrote: “Notably absent from the Complaint are allegations that the Defendants took any act specific to Plaintiffs or specific to Plaintiffs’ claimed interest in the submerged lands of Craig’s Creek … this Court lacks subject matter jurisdiction to hear the claim for declaratory judgment as there is no justiciable controversy.”
The press release from Access made the following claims:
• A 1792 statute stopped the granting of creek bottoms as private property in the eastern part of Virginia.
• In 1802, a similar statute was enacted for the western part of the state.
• The original landowner in this case received a commonwealth grant in 1798 (before the 1802 statute) for property including the creek bottom of Craig Creek.
A press contact at the Virginia Marine Resources Commission said she would forward a request for comment to the agency’s commissioner, but a response was not received by press time. The commissioner is Jamie Green.
A message left for Fessier of TimberlakeSmith had not been returned Wednesday.
Judge Joel Branscom will hear pretrial motions on Feb. 8.
“Those are motions by both sides on legal issues that will determine the length and scope of the trial,” Eakin said. “And then if anybody wants to say anything that’s not in their briefs, he’ll hear them, and then he will possibly decide that day or possibly issue a ruling later.”
Tanger, of the Friends of the Rivers of Virginia, said of the Briar Oaks owner, “The public interest would be to keep navigation open, and if he were to win this case, on those grounds, it could affect every stream and river in the commonwealth.”