O.C.G.A. § 44-8-5 (2019)

Annotations

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 U.S. LEXIS 2090 (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 Ga. LEXIS 795 (1902); State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, 1976 Ga. LEXIS 892, cert. denied, 429 U.S. 830, 97 S. Ct. 90, 50 L. Ed. 2d 93, 1976 U.S. LEXIS 2534 (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, 1973 U.S. Dist. LEXIS 14562 (S.D. Ga. 1973). Federal consent needed for construction of bridge. - O.C.G.A. § 448-5 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 Ga. LEXIS 536 (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 Ga. App. LEXIS 182 (1908).

Ogeechee and Canoochee rivers are not navigable waters. Seaboard AirLine Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868, 1908 Ga. App. LEXIS 182 (1908); Brantley v. Lee, 139 Ga. 600, 77 S.E. 788, 1913 Ga. LEXIS 536 (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 Ga. LEXIS 120 (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 Ga. App. LEXIS 912 (1971), rev’d, 228 Ga. 671, 187 S.E.2d 665, 1972 Ga. LEXIS 884 (1972); State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, 1976 Ga. LEXIS 892, cert. denied, 429 U.S. 830, 97 S. Ct. 90, 50 L. Ed. 2d 93, 1976 U.S. LEXIS 2534 (1976). O.C.G.A. §§ 44-8-5 and 44-8-7 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 Ga. App. LEXIS 835 (2008), cert. denied, No. S08C1918, 2008 Ga. LEXIS 917 (Ga. Oct. 27, 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 Ga. LEXIS 795 (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 Ga. LEXIS 746 (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 B.R. 529, 1989 Bankr.

LEXIS 1450 (Bankr. M.D. Ga. 1989), aff’d, 111 B.R. 370, 1990 U.S. Dist. LEXIS 2578 (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 Ga. LEXIS 746 (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 ownergrantor. 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 Ga. Op. Att’y Gen. 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 Ga. Op. Att’y Gen. 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 Ga. Op. Att’y Gen. 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 Ga. Op. Att’y Gen. 220.

RESEARCH REFERENCES Am. Jur. 2d. 78 Am. Jur. 2d, Waters, §§ 59-116, 261265, 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.