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
. . . .
9
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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