Interestingly, the Roger Corbett Virginia paddling guide points to such conflicts as of 2000, referring to "trouble the farmers are having with young adults who park in the fords, park on the farms, play loud music, leave their beer cans and litter, and use foul language."
Tanger, though, isn't buying it, and says that boating, not just activity on the banks, is being targeted. He brandishes a 1986 letter in which Lemon advised Murray that "for legal reasons, I must advise you that I own to the center of Craigs Creek … and that any use of said land or water … without my permission will be considered an act of trespass."
The state commission, which is responsible for state-owned submerged lands, argues that property beneath navigable waters is owned by the state on behalf of the public. However, some titles potentially can be traced back to times in early Virginia history when such lands could be granted to private owners. As described by Matt Hull of Pender & Coward, Virginia Beach, an attorney who has posted an analysis of the lawsuit, the Craig Creek plaintiffs argue that the state's exercise of jurisdiction over submerged lands constitutes an unconstitutional seizure of their land. "The suit highlights the tangled law surrounding submerged land ownership in Virginia," Hull writes.
Moreover, there are equally technical legal questions about the conditions under which Virginia allows a declaratory judgment to be rendered. "To the surprise of many," according to Hull, the court overruled the state agency's objections and determined the case should be tried.
Other Litigation
Disputes over private landowners' rights and public access for recreation are not uncommon across the country. On Feb. 27, the U.S. Supreme Court declined to hear an appeal from a New Mexico Supreme Court ruling. That state court's decision last March supported recreational access in a case involving river banks and beds. A case now before the Colorado Supreme Court stems from a dispute between a fisherman and private landowners.