2020 Georgia Code
Title 44 - Property
Chapter 8 - Water Rights
§ 44-8-3. Nonnavigable Streams - Exclusive Possession by Owner; Interference by Legislature With Lawful Use of Stream

The owner of a nonnavigable stream is entitled to the same exclusive possession of the stream as he has of any other part of his land. The legislature has no power to compel or interfere with the owner's lawful use of the stream, for the benefit of those above or below him on the stream, except to restrain nuisances.

(Orig. Code 1863, § 2210; Code 1868, § 2205; Code 1873, § 2231; Code 1882, § 2231; Civil Code 1895, § 3061; Civil Code 1910, § 3633; Code 1933, § 85-1305.)

- For article on principles of water law in the southeast, see 13 Mercer L. Rev. 344 (1962).

JUDICIAL DECISIONS

Section deals with owners, not state.

- O.C.G.A. § 44-8-3 was not intended to deprive the state of its power of eminent domain, but rather it was definitive of the rights of one riparian owner as against the other. Nolan v. Central Ga. Power Co., 134 Ga. 201, 67 S.E. 656 (1910); Whitney v. Central Ga. Power Co., 134 Ga. 213, 67 S.E. 197, 19 Ann. Cas. 982 (1910).

O.C.G.A. § 44-8-3 does not apply 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).

- Where tidal waters are not involved, the ownership of the fee in the bed of the stream generally carries with it the exclusive right of fishery in the stream. 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).

By the common law the right to take fish belongs essentially to the right of soil in streams where the tide does not ebb and flow. Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575 (1930).

- If the riparian owner owns both sides of the stream, no one but the owner may come within the limits of land and take fish. The same right applies so far as the owner's land extends to the thread of the stream, where the owner upon one side only. Within these limits, by common law, the owner's rights of fishery are sole and exclusive. Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575 (1930).

- 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 Seaboard Air Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868 (1908); Groover v. Hightower, 59 Ga. App. 491, 1 S.E.2d 446 (1939); Payne v. Whiting, 140 Ga. App. 390, 231 S.E.2d 796 (1976).

Owner of nonnavigable streams who owns land on both sides of the stream has exclusive fishing rights in that stream. 1962 Op. Att'y Gen. p. 249.

- The Supreme Court of Georgia has held that "the owner of land adjoining a nonnavigable stream is the owner of the soil to the center of the thread of the stream, and of the fishing rights to the center of the thread on his side of the stream; if one proprietor owns the land on both sides of the stream, he has the exclusive right of fishing therein." 1960-61 Op. Att'y Gen. p. 235.

Consent of riparian owner must be obtained before removing floating logs from nonnavigable streams. 1958-59 Op. Att'y Gen. p. 220.

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.

- 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, the owner would have the exclusive fishing rights to the low-water mark of 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.