Johns Creek

Paddlers gathered to clear property owned by American Whitewater along Johns Creek in Craig County. A lawsuit challenging a state decision that the creek is publicly navigable has been dropped.

Several Craig County landowners are determined to keep kayakers and canoeists off their property and are taking their fight to the courts in a complex legal battle that involves stream navigability and land grants dating to the 1700s.

Two citizens and two businesses that own land on Johns Creek in Craig County are suing the Virginia Marine Resources Commission and its commissioner, John Bull, for what they call a property rights violation involving the land at the bottom of the creek.

The landowners claimed ownership of the creek beds dating back to when the king of England and then early Virginia governors doled out land grants to colonists.

But that changed in March 2015 when the resources commission issued a letter stating portions of Johns Creek and 13 other streams throughout the state were considered navigable and open to paddling enthusiasts, a designation the commission could only make if it claimed the land was state owned.

Craig County resident Joe Looney, David Willis and Johns Creek Properties LLC and Tinker Creek Realty Corp., for which Willis is the registered agent, claim the commission’s navigability designation is a violation of their constitutional rights, according to the lawsuit filed April 7 in Craig County Circuit Court.

The lawsuit claims the commission, which doesn’t have the power to exercise eminent domain, seized the creek beds for the public in violation of the Fourth and Fifth amendments, which prohibit unreasonable property seizures without due process or just compensation.

The landowners claim this seizure is a violation of their privacy and obscures their property records.

Representatives for the resources commission declined to comment on the lawsuit.

“A lot of these streams go right by people’s houses and to have that turned into a public road is very much offensive to them,” said Lenden Eakin, the Roanoke attorney representing the landowners.

Sen. David Marsden, D-Fairfax, spearheaded the campaign to open more than a dozen creeks and rivers to the public. More than a year ago, the politician and paddling enthusiast solicited a list of paddling nirvanas from the canoeing community.

Marsden took the list of 14 waterways, which includes streams in Craig, Botetourt, Franklin and Rockbridge counties, to the resources commission. It deemed portions of each stream navigable and open to the public because their watersheds exceed 5 square miles.

“The water belongs to all of us,” Marsden said. “The land beneath the streams does not. The banks next to the streams do not. But the water belongs to all of us.”

Marsden claimed paddlers follow state laws that specify walking on privately owned stream banks is considered trespassing and require kayakers and canoeists to put in and take out at their own private property or public locations.

In 1997, the U.S. Supreme Court ruled the public has the right to float along waterways deemed navigable even if they run through specifically granted land after a case dealing with fishing rights on the Jackson River came before the court.

The state senator said the landowners suing the state are shortsighted and too concerned with their privacy to see the bigger picture. Kayakers and canoeists from out of state will flock to Virginia’s public paddling hot spots and increase tourism dollars spent in those communities and across the state, he said.

Marsden compared the fight against paddlers in Virginia to North Carolina’s recently passed law requiring transgender people in public buildings to use the bathroom corresponding to the gender on their birth certificates. Both send the message the state is unwelcoming, he said.

“Whatever the courts decide, I will certainly respect that,” he said. “But honestly, don’t people have anything better to do than hassle people who aren’t doing any harm?”

In the lawsuit, the four plaintiffs trace their property deeds back to king’s and governor’s grants from the 1700s.

According to the lawsuit, England’s King George II first granted Looney’s property that includes a portion of the Johns Creek bottom land in 1760 to Peter Ipsher. Looney’s family purchased the land more than a dozen owners later.

Johns Creek Properties and Willis’ land were first granted to William Thompson by Gov. Norborne Berkeley in 1770. Tinker Creek Realty’s property was first granted to Henry Banks in 1786 by Patrick Henry when he was governor.

The case boils down to the burden of proof, Eakin said. In the past, the state assumed the landowner with the deed owned the property, but the recent commission ruling flipped that assumption.

Forcing landowners to research their deeds and view centuries of property records to prove ownership of a creek bed can be tedious and costly, he said.

“It’s a chore to go back to the 1700s and find all of this,” Eakin said. “And to put that burden on the landowner is a pretty heavy load.”

This isn’t the first time one of the plaintiffs fought to retain his privacy from paddlers. Looney, a local farmer, owns a 200-acre farm that borders Johns Creek downstream from a popular paddling section called “the gorge.”

In 1999, Looney, represented by Eakin, filed trespassing charges against Roanoke paddler Karl Albert after he kayaked Johns Creek without getting permission from surrounding landowners. Looney warned a group of kayakers beforehand that navigating the creek without permission was trespassing. Albert was the only paddler to put in and paddle downstream.

Albert later turned himself in and was convicted and fined $1,000 with all but $50 suspended for running the creek without permission.

The case set a precedent for the county sheriff’s office and state police to issue trespassing summons for running several local creeks without permission. Since the resources commission’s ruling in March 2015, the sheriff and local commonwealth’s attorney have not arrested or prosecuted paddlers for trespassing on Johns and Barbours creeks.

Property owners on other waterways named in the resources commission letter are concerned about the state’s review of their creeks.

In February, Craig County resident Charles Barnes asked county supervisors to draft a resolution urging the state legislature to reconsider the navigability determination. While the board has yet to pass such a resolution, Barnes is hopeful they will do so before the legislative session next year.

Barnes has lived on Barbours Creek since 1961 and claims ownership to about a mile of creek bed in the valley between Potts and Bald mountains.

The concerned landowner worries the commission’s ruling will devalue his property and trigger paddlers walking up and down the creek banks on private property.

“It’s more than kayaking,” Barnes said. “It’s privacy.”

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