When the Rappahannock County Board of Supervisors decided this summer not to recommend that a portion of the Hazel River be designated a State Scenic River, it acted after hearing impassioned public comment from Culpeper County residents Ben and Rita Grace. Owners of land along the Hazel downstream from Rappahannock County, the Graces claimed that Scenic River designation would only encourage trespassers and other intrusions upon private property rights. Now the tables have been turned somewhat in this latest development from Culpeper County, as originally reported by the Fredericksburg Freelance Star and reprinted here with permission.
By Donnie Johnston
Fredericksburg Free Lance-Star
Culpeper Commonwealth’s Attorney Gary Close has reversed a controversial opinion that had effectively closed a popular section of the Hazel River to the public.
In 2005, Close ruled that a King’s Grant made a section of the Hazel at the Double Ford near Monumental Mills part of the property of private landowners there.
But in a July 29 letter to Sheriff Jim Branch, Close cited a 1982 opinion by then-Virginia Attorney General Marshall Coleman in writing that, “All riverbeds, navigable or not, are presumed to belong to the Commonwealth of Virginia.”
The letter further states that all King’s Grant claims must be proven by an application process that begins with the Virginia Marine Resources Commission.
“No such registered rivers exist in Culpeper County,” Close’s letter states. “Therefore the public is presumed to the use and enjoyment of any river in or adjoining the county.”
The confluence of the Hazel and Thornton rivers at this spot has been a popular recreation and religious area since Colonial times. About five years ago, however, two landowners began complaining to local law-enforcement officers about trespassers on or near the river.
“No Parking” signs subsequently went up on the gravel road near the small beach and further complaints led to guard rails being installed, much to the dismay of local farmers who had drawn water there during droughts.
One of the landowners, Ben Grace, approached Close, saying a King’s Grant from the Colonial era made the river part of his property. The commonwealth’s attorney initially sided with Grace.
In a Sept. 29, 2005, letter to then-Sheriff Lee Hart, Close wrote, “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.”
That opinion meant that canoeists, fishermen and those who wanted to cool off on a hot summer day could be arrested for trespassing if they were in the river near Monumental Mills.
The battle over the right to use the river led to extra sheriff’s patrols in the area and a high number of E-911 calls. One in early July reportedly involved a jogger who was merely crossing the Double Ford Bridge.
Between June 28 and July 28 of this year, there were 107 calls to the E-911 center about Double Ford, according to Nicola Tidey, training coordinator at the Culpeper County Public Safety Communication Center.
The issue has pitted neighbor against neighbor. On July 2, a 42-year-old man was charged with firing a homemade cannon at an intersection near the Double Ford. He told police that he wanted to “create noise” to annoy a neighbor, not to injure anyone.
That incident apparently brought the situation to a head. In mid-July, a neighborhood meeting was held involving those who opposed the King’s Grant opinion.
Close and Branch attended, and afterward Close researched the King’s Grant statute again. During that research, Elizabeth Murphy, an environmental engineer with the Virginia Marine Resources Commission, sent Close a set of criteria for establishing King’s Grant status for any Virginia stream.
A key point on that list was that there must be clear evidence that “the grantor possessed legal authority to convey title to submerged lands in the waterway involved and, that by clear and unambiguous language, the grantor specifically intended to convey the submerged lands lying within or adjacent to the tract.”
Close’s letter to Branch indicated that those conditions have not been met.
The Hazel River has always been considered a navigable stream above and below Monumental Mills. A Culpeper judge ruled so at the conclusion of a Virginia Game Commission trial involving a Page County trapper in the 1970s.
The Virginia General Assembly authorized the Hazel River Canal in 1850, and barges operated for several years from Ficklin’s Mill to Fredericksburg via the Hazel and Rappahannock River Canal. Incorporation papers declare the Hazel to be navigable for 18 miles from the Rappahannock River Canal–at least 7 miles upriver from the Double Ford.
Close’s July 29 opinion seemingly reopens the Hazel to canoeists, fishermen and bathers.
His letter, however, states that, “This does not mean that the public has the right to use private land adjoining the river if it is properly posted.”
Donnie Johnston’s email address is firstname.lastname@example.org