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 
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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 

fishing rights in the river running over that land.2

 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 

 

 1The 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. 

 2Four 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). 

 3Kraft 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 

Morris.4

 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, 

 

 4Since 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 

 5As 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 

possession which are the lands described in the patents.6

 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 

 

 6We 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.