2020 Georgia Code
Title 44 - Property
Chapter 8 - Water Rights
§ 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.)

- 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).

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).

- 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).

- 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).

- 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).

§ 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).

§ 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 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).

- 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).

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.

- 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.

- 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, 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.

- 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.