2020 Georgia Code
Title 44 - Property
Chapter 8 - Water Rights
§ 44-8-8. Exclusive Appropriation of Tidewaters

Nothing in Code Sections 44-8-6 and 44-8-7 shall be so construed as to authorize such an exclusive appropriation of any tidewater, navigable or nonnavigable, by any person as will prevent the free use of the same by other persons for the purposes of passage and for the transportation of such freights as may be capable of being carried thereon.

(Ga. L. 1902, p. 108, § 3; Civil Code 1910, § 3637; Code 1933, § 85-1309.)

- 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, cert. denied, 429 U.S. 830, 97 S. Ct. 90, 50 L. Ed. 2d 93 (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. § 44-8-8 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, now, 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).

- 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).

- The oystermen under O.C.G.A. § 44-8-8 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).

- The intention of O.C.G.A. § 44-8-8 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 claims 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).

- The legislature in O.C.G.A. § 44-8-8 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).

- The Legislature interpreted O.C.G.A. § 44-8-8 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).

- 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. §§ 44-8-6 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).

O.C.G.A. § 44-8-8 did not undertake to take the title to land from one person and confer if upon another. Aiken v. Wallace, 134 Ga. 873, 68 S.E. 937 (1910).

- The extension of boundaries referred to in O.C.G.A. § 44-8-8 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).

- 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).

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.