O.C.G.A.

§ 44-8-7 is constitutional. - The constitutional ratification in 1945 of O.C.G.A. §§ 44-8-6 through44-8-8, which had been in effect since its enactment and had not been held to be unconstitutional, was effective and immunized these sections from a later successful constitutional attack. 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).

Confirmed by constitutional amendment.

- O.C.G.A. § 44-8-7 conveying title to the lands in the bed of the navigable and nonnavigable tidal streams has been ratified and affirmed by the people in a constitutional amendment, Ga. Const. 1976, Art. I, Sec. III, Para. II (see Ga. Const. 1983, Art. I, Sec. III, Para. III). 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).

Purpose of section to prevent considering tidal waters public.

- The purpose of O.C.G.A §§ 44-8-6 through44-8-8 was to overcome the decision that land underlying tidal waters was public land and to give "oystermen" a property right in oyster beds, particularly oyster beds they had planted. 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).

Authority of Department of Natural Resources.

- O.C.G.A. § 44-8-7 does not establish the method that the state must follow in allocating use of state-owned water bottoms; instead, as the state agency designated to manage the tidelands, the Department of Natural Resources may determine the appropriate method by which to apportion use of the state's property. Dorroh v. McCarthy, 265 Ga. 750, 462 S.E.2d 708 (1995).

Cited in West v. Baumgartner, 228 Ga. 671, 187 S.E.2d 665 (1972).

Oystermen have exclusive license to tidal shellfish.

- The oystermen under O.C.G.A. § 44-8-7 have the exclusive right to the oysters in the tidal waters next to their land. That right is a privilege or a license. 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).

Planting or harvesting shellfish adjoining their land.

- The intention of O.C.G.A. § 44-8-7 was to insure to riparian owners the right to the tidewaters for all purposes relating to the planting and cultivation of oysters and clams, and an exclusive right to harvest those crops as well as oysters and clams growing there naturally. 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).

Limited exclusive right to tidal beds.

- The Legislature in O.C.G.A. § 44-8-7 was granting nothing but the right to plant, cultivate and harvest oysters and clams. 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).

Section deals only with rights.

- The Legislature interpreted O.C.G.A. § 44-8-7 as dealing only with "rights." 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).

Individual rights in foreshore.

- Whatever rights individual parties may have in the foreshore must be determined under O.C.G.A. §§ 44-8-6 through44-8-8. 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. § 44-8-7 did not undertake to take the title to land from one person and confer it upon another. Aiken v. Wallace, 134 Ga. 873, 68 S.E. 937 (1910).

Since state owns foreshore of navigable tidalwaters.

- The extension of boundaries referred to in O.C.G.A. § 44-8-7 does no more than establish the extent of the rights. It conveys no title to the underlying land; the state has fee simple title to the foreshore in all navigable tidewaters. 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).

Must be served as adjoining landowner when neighbor registers.

- Whichever line, low tide or high tide, correctly divides private property sought to be registered from the state's property, the state is still an adjoining landowner and should be so named in the petition and served other than by the advertisement "To Whom it May Concern," and a land registration judgment, if granted, would not be binding upon the state or any adjoining landowner who was not named and served. State v. Bruce, 231 Ga. 783, 204 S.E.2d 106 (1974).

Statute did not provide right to construct dock over marshland.

- 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. Section44-8-5 did not apply to tidewaters, such as the marshland at issue here, and under § 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).

State gives public right to fish tidal waters.

- The right to the soil under navigable tidal waters is in the state and the public has a right of common fishery in all tidal waters, whether actually navigable or nonnavigable. 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).

If state grants individuals land under tidewaters, no exclusive fishing rights presumed.

- Where the state owns the soil under navigable tidal waters, it may convey merely the soil without an exclusive right of fishery; in such a case, the grantee takes the soil subject to the piscatory rights of the public. A grant of the soil will ordinarily not be construed to convey the fishing rights unless the intention to do so is so clearly and fully expressed that the grant is incapable of any other reasonable construction. 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).

Section classifies tidewaters only as navigable and nonnavigable.

- O.C.G.A. §§ 44-8-6 through44-8-8 contemplate only two categories, nonnavigable and navigable tidewaters. 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).

Definition of navigable inlet.

- Under O.C.G.A. § 44-8-7, a navigable tidewater includes any inlet of the sea where the tide regularly ebbs and flows, which is in fact used for purposes of navigation, or is of such a character as to be capable of bearing upon its bosom, at mean low tide, boats loaded with freight in the regular course of trade. With respect to the latter classification it is not essential that there be a public terminus at both ends of the inlet, but the navigability of the inlet is determined by the capability of the water to bear boats of the character described in that section at mean low tide. Rauers v. Persons, 144 Ga. 23, 86 S.E. 244 (1915).

Gradual accretions of land from navigable tidewaters accrue to the adjacent land owner in fee simple. 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).

Boundaries extend three miles when state not compared with tidewater landowners.

- If the state is classed with all of the other owners of tidewater land, the boundaries of its property clearly extend to the low-water mark or encompass generally the entire tidewater bed; on the other hand, when the state's unique position as local political sovereign is taken into consideration, its rights of ownership extend far beyond this point for an additional three miles out to sea. 1965-66 Op. Att'y Gen. No. 66-49.

Person with nonexclusive title to marsh may not impede public enjoyment.

- In the unlikely event that one should establish a title to marshland, such person could not use the property in such a way as to impede the public right of enjoyment thereof unless the grant to the marshland expresses a full relinquishment of all public rights. 1970 Op. Att'y Gen., Position Paper, 3-23-70.

Ownership of harvesting rights.

- Where shellfish harvesting is proposed for the subtidal (below low water mark) areas of tidal creeks and rivers which are inlets of the ocean, sounds, or navigable rivers, such areas are not "nonnavigable tidewaters" within the meaning of the 1902 Act, and, as a result, the beds of such tidewaters continue to be owned by the state. 1985 Op. Att'y Gen. No. 85-16.

The state owns the harvesting rights to shellfish occurring in intertidal areas of marsh islands which contain no high ground since there must be adjacent high ground for O.C.G.A. §§ 44-8-6 through44-8-8 to have any effect. 1985 Op. Att'y Gen. No. 85-16.

The owner of the adjacent property owns the harvesting rights to shellfish occurring in intertidal areas adjacent to high ground. 1985 Op. Att'y Gen. No. 85-16.

Am. Jur. 2d.

- 78 Am. Jur. 2d, Waters, §§ 60, 269, 274, 275, 375, 381, 386, 387, 391, 398.

C.J.S.

- 65 C.J.S., Navigable Waters, §§ 1 et seq., 88, 103, 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 of grantor of railroad right of way or his privy to recover damages for interference with surface water by construction of road, 19 A.L.R. 487.

Right to drain surface water into natural watercourse, 28 A.L.R. 1262.

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.

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

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

Right of public to fish in stream notwithstanding objection by riparian owner, 47 A.L.R.2d 381.

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

Riparian owner's right to new land created by reliction or by accretion influenced by artificial condition not produced by such owner, 63 A.L.R.3d 249.