Do the property owners on each side own it to the halfway mark, or do the property owners on each side only own it to the shoreline? My question comes from my 14 year old who wants to try some recreational gold panning in some local tributaries. Everything we’ve read stresses to get the property owners permission first, but it seems to be assuming that one will walk across the property to the shoreline to pan, versus potentially kayaking to a low spot in the moving water. We’re in Virginia if that makes any difference, and he wants to pan around the Rappahannock and Rapidan rivers. Thanks!
trespassing kaykers panning for gold
Sounds like bad PR to me.
Everything you’ve read is correct, kayak or no kayak.
I’m still confused
"Everything you’ve read is correct, kayak or no kayak"
That doesn’t make sense if the water is covered by the Pulic Trust Doctrine. In that case, is it not true that there would be no individual owner, and it would be determined by the States regulations of the water? So rather than contacting a private land owner, he would just need to research the public use policy for the particular tributary?
Link
doesn’t work;-(
Navagable waterways
Usually if you can put a boat in it it is navagable and you can paddle it if you can find public land access to launch. This does not mean you own a part of the streambed, it definately does not give you mining rights, and in some cases may not even give you fishing rights.
I’d definately contact the land owners to see if it is OK. An easy way to start is to join a local prospecting club that has permissions pre arranged for memebers.
here you go
From the link:
Summary:
Virginia law is unkind to recreational boating. The public has no rights in non-navigable streams. Virginia allows the public to navigate (i.e., boat) on navigable streams that are or were used in commercial trade, but seems to apply this test rather strictly. The federal navigation servitude, which allows boating, might allow boating on more rivers in Virginia. Virginia is also an exceptional state in that beds of navigable rivers, even those rivers subject to the federal navigation servitude, can be privately owned, and where privately owned, boaters have fewer rights. There is no evidence that boaters have the right to portage, although portaging is arguably an incident to navigation, and therefore allowed in navigable rivers. Virginia has designated some streams for use by the public.
State Test of Navigability
Virginia courts have used, rather strictly, the “navigable in fact” test to determine whether a river is navigable. A river is navigable in fact if it is used or susceptible of being used in its natural condition as a highway for commerce on which trade or travel are or may be conducted in the ordinary modes of travel on water.[1] This is very similar to the federal commerce test of navigability.[2] A river was found to be non-navigable, where attempts had been made in the past to float commercial logs down the river but abandoned because the method proved unsatisfactory.[3] A federal court has applied the federal commerce test of navigability and found that a river was navigable in fact, which the Boerner court, using a test similar to the federal test, had deemed non-navigable.[4] The inconsistent results may be explainable by the additional evidence considered by the federal court.[5] Thus the state of the law in Virginia is in a state of uncertainty, and federal court seems to provide the more favorable results when applying tests of navigability.
Extent of Public Rights in Navigable & Non-navigable Rivers
The public has no rights in non-navigable streams.[6] In navigable streams, the public has at least the right of navigation, which includes the right to use the surface.[7] Where the beds of the streams are privately owned, the public does not have the right to touch the banks or the bottom, and may not even have the right to fish in such portions of a river.[8] This is a problem, because the British Crown granted the beds of navigable rivers to private individuals on some occasions, and these grants have been upheld.[9]
However, in streams subject to the federal navigational servitude, fishing would seem to be permissible as an incident to the federal navigational servitude, even if the bottoms were privately owned. Federal law would defeat state law. The other rights incident to the federal navigation servitude would also apply. Therefore, the fact that Virginia limits rights in navigable streams where the bottoms are privately owned creates confusion, because Virginia’s test of navigability seems more stringent, or at least no less stringent than the federal test, and the federal navigation servitude will probably exist in all navigable rivers in Virginia. While the scope of the federal navigation servitude is unclear at present, federal law may be friendlier in determining boaters’ rights in Virginia.[10]
While no mention of portaging is made in the cases, portaging is an incident to navigation. A stronger case for portaging probably exists where the federal navigational servitude exists.
Miscellaneous
The Virginia Scenic Rivers Act was enacted to “preserve and protect [the] natural beauty” of some of Virginia’s waterways and to assure their use and enjoyment for scenic and recreational purposes.[11] A list of streams recognized under this act is available from the Virginia Commission of Game and Inland Fisheries.
[1] Boerner v. McCallister, 89 S.E.2d 23, 27 (Vir. 1955).
[2] Id. (citing United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940) in support of the navigable in fact test).
[3] Id.
[4] Loving v. Alexander, 745 F.2d 861, 867 (4th Cir. 1983).
[5] Id. at 864.
[6] Boerner, 89 S.E.2d 23, 27 (Vir. 1955).
[7] Loving, 745 F.2d 861, 867 (4th Cir. 1983).
[8] Boerner, 89 S.E.2d 23, 27 (Vir. 1955).
[9] Kraft v. Burr, 476 S.E.2d 715, 719 (1996).
[10] Fishing is often thought to be incident to the federal navigation servitude, although federal courts have not definitively answered this question.
[11] Va. Code Ann. § 10.1 et seq. (1996).
© 2006 American Whitewater | PO Box 1540 | Cullowhee, NC 28723 |
A rule of thumb is that while navigable watercourses are publicly accessible, the minerals underneath are private property.
it may or may not go without saying that
… standing on the bottom panning for gold is not considered “boating.”
Go pan
The spot you mention is popular for fishing and overnight campers. If it is not public land, it is treated by most of the paddling public as if it was public. I suggest you just get out there and pan. The only complaints you might get is if you are in some fisherman’s way.
~~Chip Walsh, Gambrills, MD
mineral rights
The physical act of standing in the water may be legal. The question would be - who owns the gold?
The GA law is similarly bad. All of you
should keep in mind that your rights to travel rivers (which are based in natural law) were TAXED AWAY without your representation. That is because the laws were made long before your birth. Unless you have a fair chance to CHANGE those laws through your present representation (and this does not mean paying off land owners), then you had NO democratic role in these laws.
I do not understand why protection of riverside landowners (who kind of don’t really belong there) should go beyond protection of people who live along any residential street. That would be the RIGHT amount of protection, no more and no less.
I own the gold
it is silly
if you really think about it. I agree.
keeping in mind
this is a 14 year old youngster who isn’t going to be tearing up people’s property or dumping beer cans and old tires. I doubt if many homeowners would object to a little gold panning. I’d find it quiet unique myself, and would encourage the youngster.
Yeah, I know, laws and all that, but its not like he wants to drive the Queen Mary down some little brook.
Jes my 2 cents
The Law & Silliness
While river & streambed laws vary greatly from state-to-state, one questions remains:
Why would anyone pan for gold in Virginia?
because
they couldn’t find any in tennessee?
In Washington…
…i know there are rivers where fishermen are not allowed to anchor their boats on the river bottom where it is owned by private landowners. So, what they do is bring a REALLY long rope, drop anchor upstream on public river bottom, then float downstream to the fishing hole.
Seems crazy, but its true.
Sorry g2d
…going to have to disagree with you here. This whole thing probably gets more complicated than it needs to. I own property on a small river in Central VA that is only navigable at certain times of the year. I am by no means wealthy and had to work long and hard to have a small slice of river paradise. Legally, I own to the middle of the stream. Personally, I could care less if people float. And as long as they are responsible folks, don’t burn the woods down, and don’t leave beer cans, etc., I could care less if they camp on my property. If anyone wants to pan for gold, feel free. All I ask is a 50/50 split. LOL.
A big thing that is going on in VA now is this Kings Grant stuff where landowners are having people arrested for floating through their property. Still haven’t figured out how this overrides state and federal law. Is it just greedy landowners wanting to have it all to themselves or landowners that are sick of having their property trashed? Probably some of both. As both a paddler and a river landowner, it’s a shame that a little compromise and common sense can’t prevail.
Don’t see where you’re disagreeing
with me. I said that you and other people living along rivers should get the same kind and extent of protection that I, a homeowner on a suburban street, get from people who walk, bike, motorcycle, or drive along that street. I don’t see from anything you’ve said that you disagree with that.
There can be an issue with small streams that are only intermittently navigable. State legislatures need to decide how small and irregular a stream should be considered still appropriate for seasonal paddling. In north Georgia, given our rainfall pattern, streams with at least a 100 square mile watershed are seasonally navigable, and were used in the distant past for intermittent commerce.
Unfortunately, a legislature seated during the Civil War, for which no one alive ever voted, established such a restrictive definition of navigability that even fairly large rivers are not classes as navigable.
In other states, such as North Carolina, the legislature did not completely define the issue, and state courts left landowners along tiny streams theoretically vulnerable to having lots of paddlers go through in high water periods. This is technically the case along the Upper Chattooga. I don’t agree with that standard. I think there are some whitewater creeks so small that calling them navigable is unreasonable.
But I prefer the NC situation to ours in GA or yours in VA. I would rather have rainfall, stream size, and common sense limit paddlers instead of legislators who actually are honoring commercial interests rather than paddlers or homeowners.
Gold panning
I wouldn’t worry about it if it was me. A 14 yr old panning for gold and not getting in anyones way, what’s the big deal? If it’s an area where there are alot of claims you would have seen some activity.