2020 Georgia Code
Title 44 - Property
Chapter 8 - Water Rights
§ 44-8-6. Nonnavigable Tidewaters; Title; Rights of Adjoining Landowners; Principles When Tidewaters Are Boundaries; Accretions

The title to the beds of all nonnavigable tidewaters where the tide regularly ebbs and flows shall vest in the owner of the adjacent land for all purposes, including, among others, the exclusive right to the oysters, clams, and other shellfish therein or thereon. If the water is the dividing line between two parcels of land, each owner's boundary shall extend to the main thread or channel of the water. If the main thread or channel of the water changes gradually, the boundary line shall follow the same according to the change. If for any cause the water takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.

(Ga. L. 1902, p. 108, § 1; Civil Code 1910, § 3635; Code 1933, § 85-1307.)

- For article, "Public Rights in Georgia's Tidelands," see 9 Ga. L. Rev. 79 (1974). For article discussing 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) and Lines v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976), see 12 Ga. St. B.J. 201 (1976). For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971). For a note discussing the historical aspects and current law concerning the state's ownership rights in tidelands, see 17 Ga. L. Rev. 851 (1983). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976), see 10 Ga. L. Rev. 1051 (1976). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, (1976), see 27 Mercer L. Rev. 1229 (1976).

JUDICIAL DECISIONS

Section 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).

O.C.G.A. § 44-8-6 deals with title to the beds of nonnavigable 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).

- 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).

- 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).

- The purpose of O.C.G.A. § 44-8-6 through and44-8-8 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).

- O.C.G.A. § 44-8-6 insofar as the exclusive right of fishery is concerned, conveys only the exclusive rights to oysters, clams and other shellfish. 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).

Ownership of tidal waters is in the state. 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).

- 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).

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

The boundaries of tidewater lands owned by the state extend to the low-water mark in contrast to either the point of high water or mean water. 1965-66 Op. Att'y Gen. No. 66-49.

- 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.

- 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.

- 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.