Kraft v. Burr

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice

CHARLES A. KRAFT, JR.
OPINION BY
v. Record No. 951678 SENIOR JUSTICE HENRY H. WHITING
September 13, 1996
ETHRIDGE E. BURR, ET AL.

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge

In this appeal, the primary issues are whether letters of

patent from two English monarchs, acting through their royal

governors, could and did grant exclusive fishing rights in a

navigable river, and, if so, whether the complainants are the

successors in title to the patentees and can assert those rights

to prohibit the public from fishing in the part of the river

running over their land.
Ethridge E. Burr and a number of other persons (the property

owners) claim to own the stream beds under parts of the Jackson

River in Alleghany County adjacent to their property. They also

claim exclusive fishing rights in that portion of the river above

those beds. These claims originate in two 18th century Crown

patents to the property owners' predecessors in title. Each

patent conveyed property on both sides of the river, and included

the stream beds in the metes and bounds descriptions.

Fishing rights were expressly conveyed in a 1750 patent from

George II to William Jackson, a predecessor in title to Ethridge

E. and Hazel Burr and an alleged predecessor in title to Bobbie

E. and Nancy A. Witt and Robert M. and Bettie H. Loving as to

part of the Lovings's property (collectively, the Jackson

claimants). There is a dispute whether fishing rights were
conveyed in a 1769 patent of the land immediately northeast of

the Jackson patent from George III to Richard Morris, an alleged

predecessor in title of the Lovings's remaining property, and a

predecessor in title of the remaining property owners

(collectively, the Morris claimants). 1

The property owners brought this suit against Charles A.

Kraft, Jr., to enjoin him from fishing or wading "in the waters

of Jackson River running over plaintiffs' land." They also

sought a judicial declaration of their ownership of the

subaqueous land described in their deeds and of their exclusive
2
fishing rights in the river running over that land.
The evidence at an ore tenus hearing indicated that Kraft, a

professional fishing guide, had fished in the Jackson River

adjacent to land upon which the property owners had posted signs

prohibiting fishing. All the property owners but the Witts and

Lovings traced title to either the Jackson or Morris patents.

The Witts and Lovings, who were in possession of stream beds

adjacent to their land, claimed title thereto simply by virtue of

earlier deeds from previous owners. Concluding that the property

owners owned the submerged land and exclusive fishing rights

therein, the chancellor enjoined Kraft from wading and fishing in
1
The remaining property owners are Thomas G. Botkins, Jr.,
Sarah Botkins Crosier, Alan S. Botkins, and Robert W. Botkins,
with their respective spouses, Phyllis N. Botkins, Bobby P.
Crosier, Joyce B. Botkins, and Elizabeth G. Botkins having
marital interests.
2
Four of the original 18 complainants nonsuited their cases.

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the river over that land.

We awarded Kraft an appeal. He renews the contentions he

made before the chancellor.

First, Kraft contends that any title the Crown allegedly

granted in the stream beds could not have included exclusive

fishing rights in the part of the river flowing over those beds.

According to Kraft, under early English common law the king held

the fishing rights of navigable streams jus publicum, i.e., in

trust for the public, and thus he could not convey those rights

to private persons. Kraft bases his argument upon conclusions he

draws from a treatise of Lord Chief Justice Hale entitled De Jure
Maris et Brachiorum Ejusdem (Concerning the Law of the Sea and

its Arms), published in Hargrave's Law Tracts (Dublin 1787).

This treatise "has been recognized by this Court as the 'best and

most authoritative [t]reatise' on the power of the sovereign over

streams, and 'indeed [the work] from which all who have written

since seem to have drawn.'" Commonwealth v. Morgan, 225 Va. 517,

523, 303 S.E.2d 899, 902 (1983)(quoting Crenshaw v. Slate River
Co., 27 Va. (6 Rand.) 245, 260 (1828)).

We think that Kraft misreads Lord Hale's treatise. Indeed,

in Morgan, we rejected a contention similar to Kraft's, that the

provisions of the Magna Carta prevented the Crown from

"grant[ing] the bottoms of navigable waters to private

individuals thus interfering with the public right of fishing or

oystering." Id. at 521, 303 S.E.2d at 901 (emphasis added). The

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issue in Morgan was whether the king's patent gave the patentee

an exclusive right to plant and harvest oysters in the stream bed

under navigable waters. We quoted, with approval, the following

from Lord Hale's treatise: "The king may grant fishing within a

creek of the sea." Id. at 522, 303 S.E.2d at 902 (quoting from 1

F. Hargrave, Law Tracts at 17).

Although Kraft cites United States Supreme Court decisions

which have held that the Crown had no unilateral power to grant

title to land under navigable waters, that Court has recognized

that this issue is a matter of state law. See United States v.

Chandler-Dunbar Water Power Co., 229 U.S. 53, 60 (1913); see also

Loving v. Alexander, 745 F.2d 861, 868 (4th Cir. 1984). And we

have held that the king did have the power to convey land under

navigable waters to private persons. Morgan, 225 Va. at 523, 303

S.E.2d at 902. 3 Additionally, the General Assembly has codified

this principle by its language excluding from state ownership all

bay, river, and creek beds in the Commonwealth "conveyed by
special grant or compact according to law." Id. at 523, 303

S.E.2d at 902 (quoting Code § 62.1-1)(emphasis in Morgan).
3
Kraft says we held in Bradford v. Nature Conservancy, 224
Va. 181, 197, 294 S.E.2d 866, 874 (1982), "that the title to
subaqueous beds of navigable waters is always held 'subject to
the public's rights to fish, fowl and hunt.'" However, as the
property owners point out, this quote from Bradford was with
regard to such beds that had not been granted by the Crown prior
to the Revolution. Instead, as the property owners note, the
grant was by an early agency of the Virginia government after
such grants had been prohibited by statute. Indeed, as we
indicated in Bradford, the Crown could grant such land "to a
private individual." Id. at 194, 294 S.E.2d at 872.
Accordingly, we think Bradford does not support Kraft's argument.

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 Indeed, in Boerner v. McCallister, 197 Va. 169, 174, 89

S.E.2d 23, 26-27 (1955), we indicated that George II did have the

power to issue the 1750 Jackson patent that is involved in this

suit. Since the Boerner plaintiff had not proved that the

Jackson River was a navigable river, we decided the case on the

premise that it was nonnavigable; thus, we declined to decide the

plaintiff's contention that the public's right of navigation also

included the right to fish. However, we noted that
there is persuasive authority to the effect that even
though a stream may be floatable, and in some instances
navigable, the public interest therein is limited to
the right of navigation; the only restraint placed upon
the owner being that he cannot obstruct or impede the
public right.

Id. at 174, 89 S.E.2d at 27; see also Charles C. Marvel,

Annotation, Public Rights of Recreational Boating, Fishing,

Wading, or the Like in Inland Stream the Bed of Which is

Privately Owned, 6 A.L.R.4th 1030, 1038-41 (1981). Hence, we

hold that the Crown had the right to grant the bottoms of the

river and, therefore, exclusive fishing rights to Jackson and
4
Morris.
Apparently conceding that such rights were granted to

Jackson, Kraft next argues that those rights were not included in

the Morris patent. The Morris patent provides:
George the third etc. To all etc. Know ye that,
4
Since Kraft has not contended, either in the trial court or
on appeal, that the fishing rights granted could not have been
and were not exclusive, we do not consider that issue, which only
the dissent has raised. See Rule 5:25; Avocet Development Corp.
v. McLean Bank, 234 Va. 658, 671, 364 S.E.2d 757, 765 (1988).

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 for divers good causes and considerations but more
specially for and in consideration of the sum of Ten
Shillings of good and lawful money for our use paid to
our Receiver General of our Revenues in this our Colony
and Dominion of Virginia. We have given granted and
confirmed and by these presents for us our heirs and
successors Do give grant and confirm unto Richard
Morris one certain Tract or parcel of land containing
ninety three acres - lying and being in the County of
Augusta on Jackson's River below Armstrong's land and
bounded as followeth, to wit [metes and bounds
description.]

With all etc. to have hold etc. to be held etc.
yielding and paying etc. provided etc. [signatory
language].

(Emphasis added).

According to Kraft, this patent did not grant fishing

rights; the property owners claim that it did. To decide this

issue, we must determine what is referred to in one of the

various uses of "etc." interspersed in the Morris patent. In

doing so, we consider the usual practice that was employed in

issuing and recording royal patents such as this one.

Letters of patent issued to numerous persons by the royal

governors acting as the Crown's agent were required to be in a

statutory form, which included "the privileges of hunting,

hawking, fishing and fowling." 3 Hening's Statutes at Large 308-

09. Although royal governors made minor changes in the form, see
e.g., Fairfax Harrison, Virginia Land Grants 17-18, 20-21, 25-26,

27-28, 29-30, 30-31, 33, 39-40, 44-45, 50-51 (1925), these

privileges were usually included in these forms. Id.

All language was stated in full in the patent signed by the

Crown's agent. After the patent was issued and before it was

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delivered to the patentee, a colonial statute required that it be

recorded in a central office. 5 Hening's Statutes at Large 417.

These recorded patents were kept in so-called patent books, 4

Cavaliers and Pioneers: Abstracts of Virginia Land Patents and

Grants at xv-xvii, xxvii-xxviii (1994). Generally, the recorded

patent was abbreviated by omitting much of the form language in

the original patent and incorporating that language in the

recorded patent by the use of "etc." at the various places of

omission and referencing a previously recorded patent containing

that form language. Id. The recorded patents are "the fountain

of land titles." Harrison, supra, at 7.

The recorded, and apparently abbreviated, Morris patent was

in the 18th century treasury right form approved by a royal

governor. See Harrison, supra, at 50. Harrison states that the

formal (and omitted) clauses in that treasury right form were

identical to those in the head right patent form of Governor

Alexander Spotswood (quoted in full in Harrison, supra, at 39-

40). Id. at 50.

Spotwood's form includes the following language:
With all woods, underwoods, Swamps, Marshes,
Lowgrounds, Meadows, Feedings, and his due share of all
Veins, Mines and Quarries as well discovered as not
discovered within the bounds aforesaid, same being part
of the said quantity of 47 acres of land [granted in
this particular patent] and also the Rivers, Waters and
Water Courses therein contained, together with the
Privileges of Hunting, Hawking, Fishing, Fowling, and
all other Profits, commodities and Hereditaments
whatsoever to the same or any part thereof belonging or
in any wise appertaining.

Id. at 40 (emphasis added).

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 In recording the Morris patent, the clerk omitted much of

the form language contained in the Spotswood head right patent as

well as in the Jackson patent (which contained essentially the

same language regarding the privilege of fishing). Instead, the

clerk apparently substituted "etc." for the omitted language.

We conclude that the recording clerk's use of "etc." was an

incorporation by reference of the form language used in these

other documents, particularly that emphasized in the quotation

above. Hence, we think that this language incorporated the

exclusive fishing rights of those documents in the Morris patent.

Accordingly, we hold that Morris acquired such rights in the

Jackson River, which rights at least some of the Morris claimants

later acquired. 5

Finally, Kraft contends that since the Witts and the Lovings

did not trace their respective titles to the Crown patents, they

5
As a matter of interest, we call attention to the recording
clerk's marginal notation on the Morris patent: "Form page 1."
Unfortunately, counsel did not introduce evidence indicating the
form referred to or its contents. He merely introduced a copy of
the recorded Morris patent, certified and admissible under the
provisions of Code § 42.1-86, without indicating the patent book
in which it was recorded.

The recorded patents are lodged in various patent books. As
archival records, they are kept under the custody and control of
the State Library Board. Code § 42.1-79. The recorded Morris
patent is in Patent Book 38 at page 789. The patent recorded on
page one of that book contains substantially the same language as
that of the Spotswood head right patent, including the language
regarding fishing rights. Because counsel failed to introduce
the evidence linking the Morris patent to "Form page 1," we have
not considered that information in deciding this case.

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had not proved the necessary title to establish their case.

Kraft further argues that in granting relief to those parties,

the trial court erroneously applied the prima facie presumption

of title of the party in possession of property under colorable

title as set forth in Brunswick Land Corp. v. Perkinson, 146 Va.

695, 707-08, 132 S.E. 853, 856-57 (1926). According to Kraft,

"if the plaintiff's claim of title is contested, then the

plaintiff must show more than a mere possessory interest in the

real property in question; the plaintiff must establish title."
The case that Kraft cites in support of this proposition,

Lester Group, Inc. v. Little, 238 Va. 54, 56-57, 381 S.E.2d 3, 4-

6 (1989), illustrates its inapplicability in this case. In

Little, the defendant asserted an adverse claim of title in

itself. Here, Kraft does not claim title in himself; instead, he

claims fishing rights in the river over the streambed as a member

of the public on the theory that these rights were never granted

by the Crown.

Kraft admits that the Lovings and the Witts were in

possession of the premises and he has not contested the

chancellor's finding that they hold such possession under "a

current deed conveying ownership of a portion of the Jackson

River streambed." Hence, he recognizes their prior possession

under color of title.

Therefore, the property owners were not required to trace

title back to the patentees from the Crown. Such tracing is

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unnecessary when an allegedly trespassing defendant, such as

Kraft, does not claim title to the property and merely relies

upon the alleged weaknesses in the title of the plaintiff who was

in prior possession of the property under color of title.

Perkinson, 146 Va. at 709-10, 132 S.E. at 857.

The issue does not turn on the interim conveyances after the

Crown patents, but solely on the patents themselves. If, as we

have held, the fishing rights were validly conveyed in those

patents, Kraft trespassed on the lands of the parties in
6
possession which are the lands described in the patents.
Accordingly, Kraft was required to rebut the prima facie

evidence of title of the Lovings and Witts supported by their

possession under a color of title by showing a better and

stronger title in himself or some other person under whom he

claims. See id. at 708, 132 S.E. at 857. Since he has failed to

do so, we find no significance in his contention that the Witts

and Lovings failed to trace their titles to the Crown patents.

Accordingly, we will affirm the judgment of the trial court.
Affirmed.
CHIEF JUSTICE CARRICO, concurring in part and dissenting in part.

I agree with the majority with respect to its holding

6
We also reject Kraft's claim that Morgan establishes the
responsibility of the Witts and Lovings in this action to trace
title to the king's patents. Although we noted in Morgan that
credible evidence indicated the landowners had traced their
titles back to the Crown, we did not indicate that this was a
necessary, rather than a sufficient, element to establish the
fact of a trespass. See 225 Va. at 521, 303 S.E.2d at 901.

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concerning the Jackson patent. I cannot, however, take the leap

of faith the majority takes concerning the Morris patent in

according the abbreviation "etc." the effect of incorporating by

reference what the majority describes as "the form language used

in . . . other documents" to delineate the privileges "usually"

conveyed by a patent.

The issue is what was conveyed by the Morris patent. The

majority says that "[i]n recording the Morris patent, the clerk

omitted much of the form language [used in other documents and]

apparently substituted 'etc.' for the omitted language."

(Emphasis added.) But the clerk may just as well have

substituted "etc." for some other and entirely different

language, leaving to guesswork whether the language omitted from

the Morris patent conveyed fishing rights. Accordingly, I would

hold that fishing rights were not validly conveyed by the Morris

patent.

JUSTICE KOONTZ, with whom JUSTICE COMPTON joins, dissenting.

I respectfully dissent.

The pertinent facts are not in dispute. On April 14, 1992

and other unspecified occasions, Charles A. Kraft, Jr. fished

from a boat floating in the navigable waters of that part of the

Jackson River in Alleghany County adjacent to land owned by the

appellees. Kraft did not walk on the banks of, wade upon the bed

of, or anchor his boat in that part of the river. Appellees

claim to own the stream beds under the Jackson River adjacent to

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their property and the exclusive fishing rights in that part of

it above those beds pursuant to grants from the English Crown in

1750 (the Jackson patent) and in 1769 (the Morris patent).

The majority concludes that the landowners have established

that they are the successors in title to the patentees of the

Jackson and Morris patents and that those patents granted

exclusive fishing rights by the language "together with the

Privileges of Hunting, Hawking, Fishing [and] Fowling" sufficient

to enjoin Kraft, as a trespasser, from fishing in this part of

the Jackson River. In my view, the result of the majority's

conclusions is neither supported by the established facts nor

mandated by the law.
For purposes of explaining my view, I will assume, without

addressing the issue, that the majority has correctly concluded

that the landowners have established that they acquired ownership

of the stream beds and appurtenant fishing rights conveyed with

them through the grants of the English Crown. I concur that

prior decisions of this Court, and the view of most commentators,

affirm the power of the Crown to make such grants generally. See

Boerner v. McCallister, 197 Va. 169, 174, 89 S.E.2d 23, 26-27

(1955). I disagree with the majority that these specific grants

provide the landowners with the exclusive right to fish the

navigable waters above their lands. The exclusivity of these

fishing rights is an inherent part of the issue presented by this

appeal.

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 As revealed by the facts, here we are not concerned with an

entry upon the banks or the stream bed of the river by Kraft for

the purpose of fishing in the water of the river. Kraft was

lawfully in the water at that part of the river in question.

Moreover, the fish he intended to catch were in a state of fera

naturæ, free to swim up and down the river and free of any claim

of private ownership. Fish in navigable waters are distinctly

different from oysters, and other shell fish, restricted by their

very nature to particular water beds and, thus, subject to

private ownership. See generally Commonwealth v. Morgan, 225 Va.

517, 303 S.E.2d 899 (1983) (concerning ownership to oyster beds).

Under these facts, it is clear that Kraft did not enter upon the

property of the landowners even if the landowners established

their ownership of the stream beds.

I turn then to the fishing rights asserted by the

landowners. There is considerable debate about the historical

rights and responsibilities of the English Crown with respect to

navigable waters. In De Jure Maris, Lord Hale defined those
rights and responsibilities by three concepts: (1) the jus

publicum, or the rights of the general public; (2) the jus

regium, or the right of the sovereign to manage resources for the

benefit of the public; and (3) the jus privatum, or the private

right of title. See Shively v. Bowlby, 152 U.S. 1, 11-13 (1894).

Rights of commerce, specifically navigation and fishing, are jus
publicum, and, accordingly, ought not to be extinguished by the

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transfer of a jus privatum. See id.

The concepts of jus publicum and jus regium have been

construed, some commentators suggest erroneously so, in support

of the theory of common law public trust to give the public a

proprietary interest in, among other things, fishing rights on

navigable waters. See Richard Ausness, Water Rights, the Public

Trust Doctrine, and the Protection of Instream Uses, 1986 U. Ill.

L. Rev. 407, 411-12 (1986). I do not believe, however, that this

appeal raises the issue of a public trust or need be resolved by

application of that doctrine.
Rather, the issue here centers on a dispute between private

parties, and whether one party has established its right to an

injunction prohibiting the other party from entering its land via

a navigable waterway for the purpose of fishing in that waterway.

Accordingly, the burden rests with the party seeking the

injunction to show that it is so entitled. In my view, the

landowners have not met that burden.

The majority concludes, as a matter of state law, "that the

Crown had the right to grant the bottoms of the river and,

therefore, exclusive fishing rights to Jackson and Morris." That

conclusion, however, does not support the proposition that the

Crown necessarily intended to grant exclusive fishing rights or
that it in fact did so in the patents in question. The majority

cites no authority in support of its conclusion that the fishing

rights were necessarily exclusive or that the Crown could not

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grant less than exclusive fishing rights. In any event, the

language of the patents does not specifically grant exclusive

fishing rights.

With respect to the landowners who trace their rights back

to the Jackson patent, they have shown nothing more than a grant

of "Privileges of . . . Fishing" on the lands granted under the

patents. (Emphasis added.) The landowners claiming under the

Morris grant can show no more than this, and must do so by

relying on a liberal interpretation of the term "etc." in that

grant by relating it back to a previous grant containing language

nearly identical to that of the Jackson patent.
Courts have traditionally construed royal patents and other

land grants narrowly and with great caution where the potential

loss of a jus publicum is at issue. See e.g., Martin v. Waddell,

41 U. S. (16 Pet.) 367, 408-11 (1842). I am of the opinion that

the use of the term privileges in the patents, when narrowly

construed, confers no more than the right of the landowners to

exclude others from entering the land conveyed for the purpose of

fishing. That is, the Crown was not retaining for itself a jus
privatum to enter the land, or to permit others to do so, for

fishing.

By contrast, the patents specifically do not, because under

the better view they could not, convey the common of piscary--an

exclusive right to take fish in a state of fera naturæ--because

that right was, as noted above, a jus publicum not subject to

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transfer from the Crown to a private citizen. In short, while

the Crown could transfer its private right of title to entry on

the land for the purpose of fishing, it could not transfer the

public right to take fish from the waters thereon by persons

otherwise lawfully in those waters.

Here, Kraft lawfully navigated the river overrunning the

stream bed owned by the landowners. So long as he remained in

navigable waters and did not touch the banks or drag the stream

bed with nets, seines or an anchor, he was not trespassing on the

landowners' property. Since, in my view, the landowners

established no more than a right to prohibit fishing by excluding

others from entry upon their land for that purpose, I would hold

that the trial court erred in awarding an injunction against

Kraft which prohibited him from fishing while lawfully in the

navigable waters of the river.

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