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2018 Georgia Code 44-8-5 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 44-8-5 Case Law from Google Scholar Amendments to OCGA 44-8-5

TITLE 44 PROPERTY

Section 8. Water Rights, 44-8-1 through 44-8-10.

ARTICLE 6 ABANDONED MOBILE HOME

44-8-5. Rights of adjoining landowners in navigable streams.

  1. As used in this chapter, the term "navigable stream" means a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.
  2. The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.

(Orig. Code 1863, §§ 2208, 2209; Code 1868, §§ 2203, 2204; Code 1873, §§ 2229, 2230; Code 1882, §§ 2229, 2230; Civil Code 1895, §§ 3059, 3060; Civil Code 1910, §§ 3631, 3632; Code 1933, §§ 85-1303, 85-1304; Ga. L. 1982, p. 3, § 44.)

Law reviews.

- For article, "Some Legal Problems Involved in Saving Georgia's Marshlands," see 7 Ga. St. B.J. 27 (1970). For article, "Public Rights in Georgia's Tidelands," see 9 Ga. L. Rev. 79 (1974). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998).

JUDICIAL DECISIONS

The common law is in force as regards tide waters except as affected by O.C.G.A. § 44-8-5. Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L. Ed. 331 (1894).

Section merely gives riparian proprietors right to river bottoms.

- The intention of O.C.G.A. § 44-8-5 was not to change the common law with reference to the boundaries of landowners abutting on the sea or any of its inlets, but rather to insure to riparian proprietors the right to the river bottoms upon their lands for agricultural purposes. Johnson v. State, 114 Ga. 790, 40 S.E. 807 (1902); State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, cert. denied, 429 U.S. 830, 97 S. Ct. 90, 50 L. Ed. 2d 93 (1976).

Navigability for federal regulatory purposes is governed by federal law and state law is not authoritative in such cases. United States v. Lewis, 355 F. Supp. 1132 (S.D. Ga. 1973).

Federal consent needed for construction of bridge.

- O.C.G.A. § 44-8-5 determines whether a stream is navigable and requires the consent of the United States War Department (now Department of Defense) to the construction of a bridge over it. Brantley v. Lee, 139 Ga. 600, 77 S.E. 788 (1913).

Section provides definite test of river's navigability.

- O.C.G.A. § 44-8-5 gives a clear and explicit definition, and the test by which to determine the navigability of a particular river in this state is found in the navigable capacity measured by the essentials of this definition. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868 (1908).

Ogeechee and Canoochee rivers are not navigable waters. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868 (1908); Brantley v. Lee, 139 Ga. 600, 77 S.E. 788 (1913).

Knoxboro creek, a stream running into the Savannah river, is navigable under O.C.G.A. § 44-8-5. Charleston & S. Ry. v. Johnson, 73 Ga. 306 (1884).

O.C.G.A. § 44-8-5 is not applicable to tidal waters. West v. Baumgartner, 124 Ga. App. 318, 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671, 187 S.E.2d 665 (1972); State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, cert. denied, 429 U.S. 830, 97 S. Ct. 90, 50 L. Ed. 2d 93 (1976).

O.C.G.A. §§ 44-8-5 and44-8-7 did not give a couple a superior right over their neighbor to construct a dock over the marshland opposite their property. O.C.G.A. § 44-8-5 did not apply to tidewaters, such as the marshland at issue here, and under O.C.G.A. § 44-8-7, the state retained fee simple title to the foreshore in all navigable tidewaters. Kelso v. Baxter, 292 Ga. App. 663, 665 S.E.2d 381 (2008), cert. denied, No. S08C1918, 2008 Ga. LEXIS 917 (Ga. 2008).

O.C.G.A.

§ 44-8-5 not applicable to parts of the sea. - O.C.G.A. § 44-8-5 is not applicable to a bay, estuary, or arm of the sea. Johnson v. State, 114 Ga. 790, 40 S.E. 807 (1902).

O.C.G.A.

§ 44-8-5 not applicable to non-navigable streams. - There is nothing in case law that imposes a servitude of common passage on a stream that is not navigable as defined in O.C.G.A. § 44-8-5. Givens v. Ichauway, Inc., 268 Ga. 710, 493 S.E.2d 148 (1997).

Deed conveying property bounded by river conveyed title to riverbed.

- Deed conveying title to property bounded on three sides by a river, conveyed title to the riverbed, in the absence of a reservation of title by the grantor. Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff'd, 111 Bankr. 370 (M.D. Ga. 1990).

Summary judgment appropriate.

- Because there was no admissible evidence demonstrating the navigability of a stream, the trial court correctly granted summary judgment on that question. Givens v. Ichauway, Inc., 268 Ga. 710, 493 S.E.2d 148 (1997).

Cited in Maddox v. Threatt, 225 Ga. 730, 171 S.E.2d 284 (1969); Parker v. Durham, 258 Ga. 140, 365 S.E.2d 411 (1988); Georgia Canoeing Ass'n v. Henry, 267 Ga. 814, 482 S.E.2d 298 (1997).

OPINIONS OF THE ATTORNEY GENERAL

The law does not allow a dock or pier to be constructed in a nonnavigable body of water by virtue of a "right of access" reserved by a riparian owner-grantor. 1980 Op. Att'y Gen. No. 80-130.

Owner of both banks of navigable stream has sole fishing rights.

- The owner of nonnavigable streams, if that individual owns the land on both sides of the stream, is entitled to exclusive fishing rights in that stream. 1962 Op. Att'y Gen. p. 249.

As owner of navigable stream bank does to low-water mark.

- The owner of land adjacent to a navigable stream owns to the low-water mark of that stream, and there is no question but that the owner of the land may prevent fishing from upon lands and could well have exclusive fishing rights to the low-water mark thereof. 1962 Op. Att'y Gen. p. 249.

Owner of land around lake up to navigable stream's low-water mark.

- Where the river is navigable at the point where the lake comes into the stream, and the same person owns the land on both sides of the lake and the land on both sides of the mouth of the lake, that individual should have the exclusive fishing rights to the low-water mark of a navigable stream; assuming the conditions above, the lake and the lands could be posted by the owner notwithstanding the fact that the lake and lands might be posted by operation of law. 1962 Op. Att'y Gen. p. 249.

Beds and sunken timber in navigable stream are state property.

- Because title to the beds of navigable streams is in the state, legislative authorization would be necessary to remove sunken timber from the rivers of the state. 1958-59 Op. Att'y Gen. p. 220.

RESEARCH REFERENCES

Am. Jur. 2d.

- 78 Am. Jur. 2d, Waters, §§ 59-116, 261-265, 274-276, 381, 382, 386, 387, 395-397.

C.J.S.

- 65 C.J.S., Navigable Waters, §§ 1 et seq., 82 et seq., 105.

ALR.

- Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053; 107 A.L.R. 1347.

Right to damages for the destruction of riparian owner's access to navigability by improvement of navigation, 21 A.L.R. 206.

Right to place bathhouse or similar structure on shore in front of riparian owner, 24 A.L.R. 1273.

Periodical, seasonal, or intermittent stream as a watercourse, 40 A.L.R. 839.

Riparian or littoral owner's right of view over navigable water, 52 A.L.R. 1186.

Specific description with reference to water, in conveyance of riparian land, as marking the extent of grantee's ownership of the submerged land and the shore, 74 A.L.R. 597.

Right of riparian owner on navigable water to access to water, 89 A.L.R. 1156.

Waters: rights in respect to changes by accretion or reliction due to artificial conditions, 134 A.L.R. 467.

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement of specification, 65 A.L.R.2d 143.

Right of public in shore of inland navigable lake between high- and low-water marks, 40 A.L.R.3d 776.

Cases Citing O.C.G.A. § 44-8-5

Total Results: 3  |  Sort by: Relevance  |  Newest First

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Givens v. Ichauway, Inc., 493 S.E.2d 148 (Ga. 1997).

Cited 9 times | Published | Supreme Court of Georgia | Nov 24, 1997 | 268 Ga. 710, 97 Fulton County D. Rep. 4238

...Nichols, 253 Ga. 84, 86(3), 316 S.E.2d 752 (1984). Ichauway holds a lease to the land on both sides of the creek and therefore has the right to exclude others from the creek unless the stream is navigable or some servitude exists. See OCGA §§ 44-8-3, 44-8-5(b); Parker v....
...To be considered navigable, a stream must be "capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable." OCGA § 44-8-5(a)....
...He loaded the raft with a goat, a bale of cotton, and two passengers, disassembling the raft and portaging around the dam. He argues the goat, cotton, and passengers were freight and his trip showed the creek was capable of use for transporting freight under OCGA § 44-8-5(a), despite the *151 presence of the dam. OCGA § 44-8-5(a), however, requires that to be deemed navigable, a stream must support freight traffic "in the regular course of trade." Givens does not claim craft such as his are currently used in the regular course of trade but does contend the raft is representative of craft that were so used in the nineteenth century....
...e. 3d. Rivers where the tide ebbs and flows, which are called arms of the sea. [Cit.] *152 It is contended that Young either grants or recognizes a common law public right of passage other than the statutory right established by OCGA §§ 44-8-2 and 44-8-5....
...135, 138(1), 190 S.E. 654 (1937), and it is understood to do so "unless the contrary manifestly appears from the words employed." Clark v. Newsome, 180 Ga. 97, 100, 178 S.E. 386 (1935). That Code contained the definition of a navigable stream, see OCGA § 44-8-5(a) (Code of 1863, § 2208), as well as the principle that the beds of nonnavigable streams belong to the owner of the adjacent land, see OCGA § 44-8-2 (Code of 1863, § 2207)....
...t 141, when the Code of 1863 set forth the definition of a navigable stream. Thus, the servitude Young recognized on a stream "susceptible... of use for a common passage" is identical to the servitude imposed on a navigable stream as defined in OCGA § 44-8-5(a). There is nothing in Young that imposes a servitude of common passage on a stream that is not navigable as defined in OCGA § 44-8-5(a). Citing Florida Gravel Co. v. Capital City Sand, etc., Co., 170 Ga. 855, 858, 154 S.E. 255 (1930), Givens also contends OCGA § 44-8-5(a) does not apply to this stream because the chain of title to this land is traceable to a state grant that pre-dates the 1863 passage of the statute's predecessor. [3] Florida Gravel stated that § 3632 of the Civil Code of 1910 would not be applied to grants of land prior to the 1863 adoption of § 3632. That Code section is now found at OCGA § 44-8-5(b) and addresses the property rights of landowners adjacent to navigable streams. The definition of navigability in OCGA § 44-8-5(a) was not addressed in Florida Gravel, and the opinion does not impact the application of the definition of navigability. See Parker v. Durham, 258 Ga. 140, 365 S.E.2d 411 (1988), which did not apply OCGA § 44-8-5(b) to property rights because of a pre-1863 grant but did apply OCGA § 44-8-5(a) as to the definition of navigability....
...nction, which the trial court granted. Since the trial court failed to consolidate the hearing on the interlocutory injunction with the trial on the request for a permanent injunction, this case should be reversed and remanded for a hearing. 2. OCGA § 44-8-5 provides the description of navigability for waters under this state's law....
...would be difficult to find any river or stream that is navigable in the State of Georgia. [26] This standard is consistent with the few cases in which our appellate courts have determined whether a particular stream or creek is navigable under OCGA § 44-8-5....
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Parker v. Durham, 365 S.E.2d 411 (Ga. 1988).

Cited 6 times | Published | Supreme Court of Georgia | Mar 9, 1988 | 258 Ga. 140

...A "navigable stream" is defined as "a stream which is capable of transporting boats loaded with freight in the regular course of business either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable." OCGA § 44-8-5 (a)....
...Appellants offered some evidence to show that the Hughes Old River is navigable within the meaning of this code section. "The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream." OCGA § 44-8-5 (b)....
...The trial court reasoned that even if it were to find the Hughes Old River is navigable, the appellees are entitled to the injunctions sought because Durham can trace her chain of title back to an original grant from the state predating the effective date of OCGA § 44-8-5....
...n a common highway; it is called in the books an easement, and the proprietor of the adjoining land has the right to use the land and water of the river, in any way not inconsistent with this easement." Young v. Harrison, 6 Ga. 130, 141 (1849). OCGA § 44-8-5, providing that where the river is navigable, the rights of the owner of adjacent land extend only to the low-water mark of the riverbed, became effective with the adoption of the Code of 1863. In Florida Gravel Co. v. Capital City Sand &c. Co., 170 Ga. 855, 858 (154 SE 255) (1930), this court held that OCGA § 44-8-5 "will not be construed to apply to grants of land by the State prior to the adoption of that code." [1] Under this authority, appellee Durham, who traces her chain of title to a grant from the state in 1857, owns the entire bed of the Hughes Old River....
...Therefore, Durham holds the exclusive right of fishery in the Hughes Old River, and the trial court did not err in enjoining the appellants from fishing in the Hughes Old River. *142 3. However, if the Hughes Old River is navigable within the meaning of OCGA § 44-8-5 (a), supra, the public has a right of passage, Jones v....
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Georgia Canoeing Ass'n v. Henry, 482 S.E.2d 298 (Ga. 1997).

Cited 2 times | Published | Supreme Court of Georgia | Mar 10, 1997 | 267 Ga. 814, 97 Fulton County D. Rep. 798

...usceptible of carrying useful commerce between states in its natural and ordinary condition and is thus not a navigable stream within the meaning of federal law. [2] Moreover, without deciding whether the definition of navigability set forth in OCGA § 44-8-5(a), [3] by its express terms or by necessary implication, effected a change in the common law definition of navigability, [4] we conclude that the record supports a determination that the portion of Armuchee Creek at issue in this case is not a navigable stream under § 44-8-5(a) or the common law....