When a River Runs Through It, Who Pays the Taxes?

Riverbed ownership triggers tax dispute

Elkins -- A debate over designating a section of stream for catch-and-release fishing could end up casting a question over the state's tax system.

Earlier this summer, Marvin Conrad of Summersville was cited after he posted no trespassing signs on land he owns along the Lower Elk River. He was cited, according to court records, because the no trespassing signs went across the river from one bank to another.

According to the West Virginia Division of Natural Resources, the land beneath the water and between the banks belongs to the state, not Conrad. A DNR officer cited the Summersville man for willfully and unlawfully posting land that does not belong to him.

But does it? According to Conrad, he and his family have paid property taxes on the land, including the banks and river bottom, for about 100 years. He has receipts to prove it.

And since he's paid property taxes on the land, he owns it, right?

The state says no. While the DNR declined to comment on the case, the initial complaint filed against Conrad in Randolph County Magistrate Court is clear about whom the agency thinks owns the riverways.

"The land posted includes the streambed of the Elk River, which is land which ownership is vested in the state of West Virginia," the DNR officer wrote in the criminal complaint.

Now it's up to a Randolph County Circuit Court to decide the question: If a river runs through a person's property, who owns it? The state or the property owner? And based on that answer, who has to pay the property tax?

The answers to those two questions could set a new precedent in West Virginia regarding real estate, property owners' rights and taxation.

"The streambed question has never really been answered in West Virginia, but the answer could have huge consequences," said Martin Saffer, a Pocahontas County lawyer who is representing Marvin Conrad.

"Think of how many large timber companies own both sides of a stream. There are hundreds of thousands of acres of streambed in this state. What happens to the property taxes?"

There could be a lot of money riding on this case. If the circuit court decides the state owns the riverbeds, all of the companies and property owners that own land on both sides of those river ways could be entitled to rebates on past taxes paid, or on lower property taxes in the future,

"It's a hugely interesting case, and it all started over the teeniest, tiniest thing," Saffer said. "I can't understand why the state of West Virginia would want to wake a sleeping dog like this, but it's time the question was resolved. To Mr. Conrad's point of view, the land and river are in his deed, therefore he feels he is within his legal rights to post them."

Conrad said the dispute started more than a year ago after the DNR posted the section of river flowing through his property as catch-and-release only.

He said he doesn't like that type of fishing. He grew up on the river and fished there as a boy. Now his children and grandchildren fish the river. And he wants them to be able to keep a fish they catch if they so choose.

Conrad heard about a man on the Upper Elk River who asked the DNR to take the catch-and-release designation off of his section of the river. The DNR obliged.

That gave Conrad an idea.

"I wrote the DNR a letter asking them to consider doing the same thing for me. They never answered. So I posted my property," he said.

That's when the dispute really heated up and became a lot bigger and harder to manage than a fishing issue.

The criminal citation was filed against Conrad in May, and his first appearance in magistrate court was in June. Last month, Saffer asked to move the case to circuit court because it deals with property ownership issues. The court agreed. The first scheduling conference for the case is scheduled for Aug. 28.

During that scheduling conference, the two sides will try to set a tentative trial date.

Conrad is fighting the citation on the grounds that he owns the riverbed and he can post it if he wants because he pays property taxes on it.

"My family has paid taxes on that riverbed for more than 100 years," Conrad said. "So I guess we are at odds."

But not everyone agrees with Conrad or Saffer.

"I've never heard of anyone claiming to be the owner of a streambed," said Jack McClung, counsel for the West Virginia Association of Counties. "Streambeds typically are a natural divider of property. Streams pretty much belong to the state. The DNR has jurisdiction over fish and wildlife, so they own the waterways, too."

McClung said as an avid fisherman he sees how the issue could be contentious.

"There are some people that put up so many no trespassing signs, the only way you can get into the river is to get dropped in by a helicopter," he quipped.

"But the reality, as I understand it, is that a property owner only owns to the top of the bank. He doesn't own anything in the stream."