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A baptism is held during the 1940s at the Double Ford, a longtime gathering spot that some landowners want closed to the public.
The Virginia Department of Transportation has placed guardrails along Butler's Store Road to prevent public access |
The weather may still be cool, but the debate over recreational use of the Hazel River in northwestern Culpeper County is already heating up again.
A Sept. 29, 2005, opinion by Commonwealth's Attorney Gary Close declared that landowners on either side of the river may prohibit swimmers, fishermen and canoeists from enjoying the state stream, even if the users never set foot on either bank.
"It is my opinion that the riparian owners in the Gourdvine area own the riverbed and therefore, like any property owner, may control the use of the riverbed and its surface," Close wrote in a letter to Sheriff Lee Hart. He based his argument on a Virginia law regarding king's grants.
The volatile situation was further enflamed over the winter when the Virginia Department of Transportation placed guardrails along Butler's Store Road to prevent public access to the Double Ford swimming hole, a popular recreation area since Colonial times.
VDOT Maintenance Director Bob Moore said the guardrails were installed partly because of complaints by landowner Ben Grace and partly in response to Close's opinion, which suggested such action.
While it will likely take the onset of summer weather to bring out a response from swimmers, area canoeists are already up in arms because the Double Ford beach was one of the few public accesses to the Hazel for paddlers.
"I think it is ridiculous," said Rixeyville resident Rick Furnival. "People have been going in the river there all my lifetime."
Attorney and canoeist John Ragosta agreed.
"I feel there ought to be access there," Ragosta said. "I hate to see that stopped."
Ragosta took part in an informational meeting with Hart, County Administrator Frank Bossio and Supervisor Sue Hansohn last Monday to try to find a solution to the problem. He said Close has not replied to e-mails he sent.
"I wanted to know if there is anything the county can do about allowing access to the river," Ragosta said. "About the only thing I found out [at the meeting] is that the matter has become further complicated because VDOT has gotten involved."
Ragosta, who owns bottomland two miles downriver, also is concerned about Close's opinion that canoeists cannot use the Hazel without the permission of landowners on both sides.
Close said Virginia law does not establish boaters' rights, as other state codes do. A canoeist approaching a section of the river that has no-trespassing signs must turn around, he said.
"To me, this is more a property-rights issue than anything else," Close said.
Navigable or not?In his September letter to Hart, Close wrote, "The [Hazel and Thornton] rivers have no history of commercial use" and therefore should not be considered navigable and open to the public.
However, records show that in 1850 the Virginia General Assembly granted the Hazel River Navigation Co. the right to build a canal. When completed two years later, it linked George Ficklin's Castle Mills (near present-day Castleton and six miles upriver from the Double Ford) to the markets of Fredericksburg via the Rappahannock River canal.
Archaeological evidence of the Hazel River Canal is still evident in places.
On Jan. 2, 1852, Ficklin declared the Hazel River navigable from Fredericksburg to Castle Mills, stating for the public record, "The improvement has so far advanced as to be used for the purpose of transporting the crops of farmers to market."
A landowner damage suit filed May 19, 1856, specifically refers to "the Monumental Mill," the area where the present controversy exists, as a part of that navigation system.
Further, a Culpeper County circuit judge upheld the navigability of this section of the Hazel in a 1975 court case brought against two Page County trappers cited by then-Game Warden Lee Haupt for canoeing the river and setting traps along the banks. Their attorneys entered Hazel River Navigation Co. records as evidence.
"The judge ruled that as long as they stayed in the river they were OK," Haupt said last week from his Augusta County home.
Haupt recalled that the court held that the state had declared the river to be navigable to Castle Mills, but not above. The decision was based on Hazel River Navigation Co. documents, he said.
Hart also believes that those waters are owned by the state and that canoeists, fishermen and swimmers have the right to use them.
"We are going to use discretion and common sense in enforcing the law and abide by state statutes as given to us," Hart said, adding that his deputies will enforce trespassing laws that apply to privately owned land.
Hart said he bases his conclusion on Virginia marine resources law, which states, in part, that the beds of all bays, rivers and creeks and the shores in the state "shall remain the property of the commonwealth and may be used as a common by all the people of the commonwealth."
This law does not cover specific king's grants, which Close contends are applicable in this case. The Virginia Marine Resources Commission, however, said in a letter to Hart that king's grant situations are extremely rare and should not be considered applicable until proved in court.
"In summary, the Commission's jurisdiction is based on the Commonwealth's ownership of the bottom and the Commission should assume that the Commonwealth does own the bottom until it receives proof, as outlined above, that the Commonwealth no longer has title to the parcel in question," Stephanie L. Hamlett, special counsel to the state attorney general, wrote Feb. 6.
While there are no homes within a quarter-mile of the Double Ford swimming hole, Hart's office has been bombarded for the past two summers with complaints from three nearby landowners--including Grace--about noise and suspected illegal activity near the bridge at the confluence of the Hazel and Thornton rivers.
Several minor charges have been filed, but Hart complained last fall that the continued complaints--none has come from the man who actually owns the beach in question--were taxing his department and diverting manpower from more important duties.
Close, however, accused the sheriff of "ignoring" his king's grant opinion in a February letter. Hart said he has not seen anything to support the king's grant claim.
"I think this whole issue would be settled if [Hart] enforced the trespassing and parking laws," Close said in an interview late last month.
Potential for violence?While the sheriff and the commonwealth's attorney are at odds on the legal aspects of the Hazel River issue, there is one point on which they agree: Both fear that the river dispute may lead to bloodshed.
"Somebody getting hurt? That's my main concern," Close said. "I think there's a chance of that happening."
There already have been confrontations between landowners and river users--one allegedly involving a gun. Last summer, one property owner severed a swimming rope with a shotgun blast, according to the Sheriff's Office.
Now, with guardrails preventing river access for swimmers and canoeists, the prospect of parked cars blocking the narrow dirt road and tempers flaring out of control looms as a distinct possibility.
"Of course there is the potential for safety issues," Hart said.
Sheriff's Maj. Jim Branch cautions, however, that the law does not permit one person to shoot another for a simple trespassing violation.
"It must be proved that your life or the lives of others are in imminent danger for that to happen," Branch said.
Close said the county could help the situation by providing public access to the Hazel.
Supervisor Hansohn, who represents the Catalpa District where most of the complaints are originating, said the county can do only so much.
"The county has tried to get access but has been unable to get anyone to either donate or sell us land," she said.
Hansohn, who believes the waters of the Hazel belong to the commonwealth, also worries about tempers flaring as the swimming and canoeing season approaches.
Ragosta said he is concerned that the new guardrails will destroy a river tradition that dates back some 250 years. The Double Ford was a traditional spot for baptisms, and was also where area farmers went to fill up tanks to water livestock during recent drought years.
"Church groups, as well as individuals--including myself--use that access point," Ragosta said.
Hart said he is doing everything in his power to both mediate a touchy situation and enforce the law.
"I want to see to it that no one gets hurt," he said.
To reach DONNIE JOHNSTON:
Email: djohnston@freelancestar.com
