Smith Mountain Lake Yacht Club, Inc. v. Ramaker

Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.

SMITH MOUNTAIN LAKE YACHT CLUB, INC.

v. Record No. 000861 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 2, 2001

JAMES K. RAMAKER, ET AL.

FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge

This appeal is from a decree in which the chancellor held

that a certain landowner has the right to construct a dock over

partially submerged property that an adjacent landowner claims

to own.

This dispute arose between James K. Ramaker and Sandra W.

Ramaker (collectively, the Ramakers), and a neighboring

landowner, the Smith Mountain Lake Yacht Club, Inc. (the Yacht

Club). The properties owned by the Ramakers and the Yacht Club

respectively are in the vicinity of an inlet of Smith Mountain

Lake in Bedford County (the Lake). The Yacht Club property is

adjacent to the Ramaker property and directly abuts both sides

of the inlet at all times, regardless of the water level of the

Lake. The Ramaker property has about 12 feet of frontage on the

end of the inlet only when the Lake is flooded to the "full

pond" level. 1

1
Attached to this opinion is a diagram depicting the inlet
and the two properties.
 When the Ramakers began construction of a dock extending

into the inlet, the Yacht Club filed a bill of complaint for

injunctive relief, alleging that the Ramakers' dock extended

over property owned by the Yacht Club. The Yacht Club sought to

enjoin the Ramakers from constructing the dock over the

property, which was partially submerged (partially submerged

property). The Ramakers thereafter filed a separate bill of

complaint seeking a determination of their riparian rights. The

two suits were consolidated for trial.

After conducting evidentiary hearings, the chancellor

concluded that the Ramakers had sufficient riparian rights to

allow them to construct a dock extending over the partially

submerged property into the inlet. The chancellor's holding was

based on his determination that the Commonwealth, not the Yacht

Club, was the owner of the partially submerged property. The

chancellor also ordered that the existing dock be removed

because it extended outside the riparian zone fixed by the

court.

Central to this dispute is the issue of ownership of land

that was flooded to create Smith Mountain Lake, an artificial

lake formed when the Appalachian Power Company (APCO)

constructed a dam on the Roanoke River as part of a

hydroelectric project. Before the land adjacent to the Roanoke

River and its tributaries was flooded to create the Lake,

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certain parcels of land were condemned and APCO obtained flowage

easements over other parcels from their respective landowners

extending to the 800-foot elevation contour of the proposed

Lake.

Both the Ramakers and the Yacht Club hold their properties

subject to flowage easements that were conveyed by their

predecessors in title to APCO. These flowage easements granted

APCO

the right to overflow and/or affect so much of said
premises as may be overflowed and/or affected,
continuously or from time to time in any manner
whatsoever, as the result of the construction,
existence, operation and/or maintenance of the
aforesaid dam and/or power station, the impounding of
the waters of said river and tributaries and/or the
varying of the level of the so impounded waters by
reason of the operation of said power station,
including any pumping as part of such operation.

These flowage easements expressly reserved to the grantors "the

right to possess and use said premises in any manner not

inconsistent with the estate, rights and privileges herein

granted to [APCO] . . . ."

In 1965, after Smith Mountain Lake was created, the Yacht

Club purchased a 51-acre parcel of land (the Yacht Club

property) through which Buttery Creek, a tributary of the

Roanoke River, formerly flowed. When the Lake was created,

Buttery Creek was flooded and became part of the Lake. The

Yacht Club property was conveyed by a deed that referred to a

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survey plat that showed the location of Smith Mountain Lake as

well as the centerline of Buttery Creek as it existed before the

Lake was created.

In 1998, the Ramakers purchased about 101 acres of land

(the Ramaker property) adjacent to the Yacht Club property. A

survey plat of the Ramaker property depicts a small, unnamed

branch or creek that formerly ran through the Ramaker property

and emptied into what previously was Buttery Creek.

Although APCO has flowage easements over both the Ramaker

property and the Yacht Club property extending to the 800-foot

elevation contour, the Lake is considered to be at "full-pond"

when it reaches the 795-foot elevation contour. When the Lake

is at "full pond," the Ramaker property has about 12 feet of

water frontage on the inlet. The record shows that the water

level of the Lake frequently drops below "full pond" and has at

times fallen lower than the 790-foot elevation contour. At the

793-foot elevation contour and at all lower water levels, the

Ramaker property has no frontage on the inlet of the Lake. By

contrast, the Yacht Club property has frontage on the inlet,

regardless of the fluctuations in the Lake's water level.

The chancellor held that, under Code § 28.2-1200, the

general public is permitted to use all land underlying the

surface of Smith Mountain Lake, absent evidence of a special

grant or compact. Based on this authority, the chancellor

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concluded that the Commonwealth owned the partially submerged

property at issue, and that the Ramakers were entitled to build

a dock over that property. The chancellor also noted the

existence of APCO's flowage easement over the Ramaker property

to the 800-foot elevation contour and stated:

To the extent rights are accorded the general public
and [APCO], the property rights of the Ramakers are
servient to [APCO's rights], at least at times when
the lake level is at the 795-foot contour [i.e. at
"full pond"], or higher. In my opinion, it would be
fundamentally unfair for the Ramakers to incur this
burden, without also incurring some corresponding
benefit.

The chancellor concluded that the Ramakers have riparian

rights at the 795-foot elevation contour or "full pond" level

because, at that level, the inlet reaches their property

boundary. The chancellor stated that it would be "illogical" to

rule that the Ramakers cannot have access to the Lake from their

property unless the Lake "essentially comes to them" by rising

to the level of "full pond."

The chancellor concluded that the Ramakers' riparian rights

should be fixed in accordance with the principles set forth in

Langley v. Meredith, 237 Va. 55, 376 S.E.2d 519 (1989), and

Groner v. Foster, 94 Va. 650, 27 S.E. 493 (1897). In applying

the Groner formula, the chancellor used the 795-foot elevation

contour as the shoreline or mean low-water mark, even though the

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court made no finding that this line was the location of actual

mean low water.

After making the calculations under the Groner formula, the

chancellor concluded that the Ramaker property has a riparian

zone extending from the 795-foot elevation contour that is 5

feet wide and about 68 feet long, and that the Ramakers are

entitled to construct a dock within this zone. At "full pond,"

the dock approved by the chancellor would extend directly over

the partially submerged property allegedly owned by the Yacht

Club. The chancellor permanently enjoined the Yacht Club from

interfering with the Ramakers' riparian rights and their

construction of a dock within this defined riparian zone. The

Yacht Club appealed from this decree.

The Yacht Club argues on appeal that the Commonwealth does

not own the partially submerged property at issue, and that the

chancellor erred in reaching this conclusion, which was based on

his incorrect application of Code § 28.2-1200. The Yacht Club

asserts that Code § 28.2-1200 applies only to bodies of water

whose beds have not been conveyed previously to a private owner.

The Yacht Club notes that the submerged property at issue was

conveyed to the Club's predecessors in title before Smith

Mountain Lake was created and the land bordering Buttery Creek

was flooded. Thus, the Yacht Club argues that the chancellor

erred in ruling that the partially submerged property, which was

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not condemned but merely is subject to an APCO easement, is

owned by the Commonwealth and that the Ramakers may use this

land to build their dock.

In response, the Ramakers argue that the chancellor

correctly applied Code § 28.2-1200 in ruling that the partially

submerged property belongs to the people of the Commonwealth

because Smith Mountain Lake is a navigable body of water. The

Ramakers also assert that the chancellor properly concluded that

they have riparian rights allowing them to construct a dock

extending over the partially submerged property at issue. They

contend that because the level of the Lake rises and falls

according to weather, water usage, and power needs, the

chancellor properly extended their riparian rights to the 795-

foot elevation contour, even though the water sometimes recedes

to the point where their property does not touch the water. We

disagree with the Ramakers' arguments.

The standard of review that we apply on appeal is well

established. Under Code § 8.01-680, we will affirm the

chancellor's decree unless it is plainly wrong or without

evidence to support it. Willard v. Moneta Building Supply,

Inc., 258 Va. 140, 149, 515 S.E.2d 277, 283 (1999); W.S. Carnes,

Inc. v. Board of Supervisors, 252 Va. 377, 385, 478 S.E.2d 295,

301 (1996). We examine the evidence in the light most favorable

to the Ramakers, the prevailing party in the circuit court. Id.

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 We first consider the issue whether the chancellor properly

applied Code § 28.2-1200 to conclude that the Commonwealth owns

the partially submerged property at issue. The statute

provides, in relevant part:

All the beds of the bays, rivers, creeks and the
shores of the sea within the jurisdiction of the
Commonwealth, not conveyed by special grant or compact
according to law, shall remain the property of the
Commonwealth and may be used as a common by all the
people of the Commonwealth for the purpose of fishing,
fowling, hunting, and taking and catching oysters and
other shellfish.

This statute specifically enumerates the categories of

bodies of water that are subject to its provisions. The precise

words of the statute do not include "lakes" within the listed

categories. Our construction of the statute is governed by the

maxim expressio unius est exclusio alterius, which provides that

the mention of a specific item in a statute implies that other

omitted items were not intended to be included within the scope

of the statute. Commonwealth v. Brown, 259 Va. 697, 704-05, 529

S.E.2d 96, 100 (2000); Board of Supervisors v. Wilson, 250 Va.

482, 485, 463 S.E.2d 650, 652 (1995); Turner v. Wexler, 244 Va.

124, 127, 418 S.E.2d 886, 887 (1992). Thus, we conclude that

Code § 28.2-1200 does not apply to Smith Mountain Lake because

the General Assembly chose not to include "lakes" in its

designation of bodies of water whose beds remain the property of

the Commonwealth in the absence of a special grant or compact.

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 We disagree with the Ramakers' argument that Smith Mountain

Lake is included within the scope of Code § 28.2-1200 because

the Lake is navigable. This argument effectively asks us to add

words to the statute, since its plain language does not include

any type of lake and makes no exception for lakes that are

navigable. When the language of a statute is plain and

unambiguous, we construe the statute in accordance with that

plain meaning. Cummings v. Fulghum, 261 Va. ___, ___, ___

S.E.2d ___, ___ (2001); Earley v. Landsidle, 257 Va. 365, 370,

514 S.E.2d 153, 155 (1999); Ragan v. Woodcroft Village

Apartments, 255 Va. 322, 326, 497 S.E.2d 740, 742 (1998).

Therefore, applying the plain language of Code § 28.2-1200, we

hold that the chancellor erred in concluding that the

Commonwealth owns the partially submerged property at issue

based on his determination that Smith Mountain Lake is included

within the scope of the statutory language.

The Ramakers contend, nevertheless, that Code § 62.1-81

supports the chancellor's conclusion that the Commonwealth owns

the partially submerged property. That section states, in

relevant part:

The term "waters of the Commonwealth" as used in this
chapter shall mean . . . those parts of streams or
other bodies of water in this Commonwealth which
either in their natural or improved condition . . .
are used or suitable for use for the transportation of
persons or property in interstate or foreign commerce
. . . .

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The Ramakers assert that since Smith Mountain Lake is part of a

hydroelectric generation project, the operation of which affects

interstate commerce, see Vaughan v. Virginia Elec. & Power Co.,

211 Va. 500, 501-02, 178 S.E.2d 682, 684 (1971), the waters of

the Lake belong to the Commonwealth.

We find no merit in this argument. Code § 62.1-81 defines

the term "waters of the Commonwealth" for use in Chapter 7 of

Title 62.1 of the Code, and the Ramakers have not cited as

authority any statute in that Chapter using this term.

Moreover, the term "waters of the Commonwealth" is not at issue

in this appeal, which primarily addresses the ownership of a

portion of the bed of Smith Mountain Lake, and the parties do

not dispute the public's right to travel over the waters of the

Lake. Therefore, we conclude that the above definition is not

relevant to this appeal.

After the chancellor erroneously concluded that the

Commonwealth owns the partially submerged property pursuant to

Code § 28.2-1200, he determined that the Ramakers had riparian

rights based on Code § 28.2-1202. That section provides, in

relevant part, that owners of lands bordering bodies of water

designated in Code § 28.2-1200 generally have rights and

privileges of ownership to the mean low-water mark. After

observing that the mean low-water mark had not been determined

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in this case, the chancellor substituted in its place the 795-

foot elevation contour for the purpose of fixing the Ramaker's

riparian rights. The chancellor concluded that the Ramakers had

riparian rights over the "land of the Commonwealth" based on

their 12 feet of water frontage at the 795-foot elevation

contour.

By its terms, however, Code § 28.2-1202 defines the

boundaries of privately owned land that is adjacent to a body of

water whose bed remains the property of the Commonwealth under

the provisions of Code § 28.2-1200. Since Code § 28.2-1200 does

not include lakes within its provisions, Code § 28.2-1202 is not

relevant to a determination of the Ramakers' property rights.

Instead, this determination must be made with reference to the

rights of the owner of the partially submerged property at issue

separating the Ramakers' land from the navigable part of the

watercourse. 2 Thus, we must examine the record to determine the

ownership of that partially submerged property before we can

ascertain what riparian rights, if any, the Ramakers have to

build a dock across that property.

The Yacht Club's fee simple ownership of the partially

submerged property is established in the record before us by the

2
Based on our conclusion, we need not consider the effect of
the chancellor's action substituting the 795-foot elevation
contour for the mean low-water mark in making his determination
of the Ramakers' riparian rights.

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deeds in their chain of title and the survey plats depicting the

Yacht Club property boundaries. In 1960, the Yacht Club's

predecessors in title conveyed to APCO the above-referenced

flowage easement over the partially submerged property. This

easement did not convey fee simple ownership of that property to

APCO, nor did it give APCO the right to grant others the

permission to build any docks below the elevation contour of 800

feet. As stated above, the flowage easement expressly reserved

to the grantors "the right to possess and use said premises in

any manner not inconsistent with the estate, rights and

privileges herein granted to [APCO] . . . ."

The chancellor's ruling effectively denies the Yacht Club

property rights that derive from its fee simple ownership of the

partially submerged property. That ruling is contrary to our

recognition in Brown v. Haley, 233 Va. 210, 355 S.E.2d 563

(1987), of private property rights below the 800-foot elevation

contour of Smith Mountain Lake in land that has not been

condemned, but is subject to an APCO flowage easement. There,

we held that a landowner established an implied easement to use

adjacent property retained by his grantors that was subject to

an APCO flowage easement. Id. at 221, 355 S.E.2d at 571. Thus,

the existence of such a flowage easement did not deprive its

grantor from exercising the rights of fee simple ownership that

were unaffected by that flowage easement.

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 The chancellor's designation of a riparian zone permitting

construction of a dock extending from the Ramakers' property is

contrary to the law because the dock would have to cross the

Yacht Club's partially submerged property to reach the dock's

designated terminus point in the water. Under Code § 62.1-164,

the right to construct a dock or pier for noncommercial purposes

on a watercourse is subject to the restriction that the exercise

of this right shall not obstruct navigation or injure the

private rights of any person. See Carr v. Kidd, 261 Va. ___,

___, ___ S.E.2d ___, ___ (2001); Zappulla v. Crown, 239 Va. 566,

569, 391 S.E.2d 65, 67 (1990); Langley, 237 Va. at 62, 376

S.E.2d at 523. Thus, we hold that a property owner may not

build a pier or dock extending into a watercourse across the

property of another without that owner's permission. See id.

Since the Yacht Club did not give the Ramakers permission to

build a dock across the Club's property to reach the navigable

part of the watercourse, the chancellor's determination allowing

the construction of such a dock is plainly wrong.

For these reasons, we will reverse the chancellor's decree

and remand the case to the circuit court for entry of an

injunction in favor of the Yacht Club in accordance with the

principles and holding set forth in this opinion.

Reversed and remanded.

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