2021 Georgia Code
Title 44 - Property
Chapter 8 - Water Rights
§ 44-8-2. Nonnavigable Streams - Rights of Adjoining Owners; Principles When Stream Is Boundary; Accretions

The beds of nonnavigable streams belong to the owner of the adjacent land. If the stream is a dividing line between two parcels of land, each owner's boundary shall extend to the thread or the center of the main current of the water. If the current changes gradually, the boundary line follows the current. If from any cause the stream 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.

(Orig. Code 1863, § 2207; Code 1868, § 2202; Code 1873, § 2228; Code 1882, § 2228; Civil Code 1895, § 3058; Civil Code 1910, § 3630; Code 1933, § 85-1302.)

- Jurisdiction of county over stream of water which forms boundary of county, § 36-1-2.

Diversion, obstruction, or pollution of nonnavigable watercourses as constituting trespass, § 51-9-7.

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

JUDICIAL DECISIONS

Section follows common law.

- O.C.G.A. § 44-8-2 declares that where land is bounded by a nonnavigable stream the boundary extends to the center or thread of the stream. This rule has been part of the common law even before the section was passed. Jones v. Water Lot Co., 18 Ga. 539 (1855); Boardman v. Scott, 102 Ga. 404, 30 S.E. 982, 51 L.R.A. 178 (1897); State v. Georgia Ry. & Power Co., 141 Ga. 153, 80 S.E. 657 (1913).

Where land is bounded by a nonnavigable stream the boundary extends to the center or thread of the stream. Outlaw v. Outlaw, 225 Ga. 100, 165 S.E.2d 845 (1969).

- Under O.C.G.A. § 44-8-2 where a plot calls for a nonnavigable river as a boundary, the line is to determine at it, and the land embraced in the grant will extend to the middle thread of the stream. Stanford v. Mangin, 30 Ga. 355 (1860); State v. Georgia Ry. & Power Co., 141 Ga. 153, 80 S.E. 657 (1913).

- In a notice to acquire an easement of flowage on certain described land bounded by a nonnavigable stream, where the easement sought to be acquired is to overflow the land, which is specifically described, and also to raise and flow-back the water in the stream to a certain depth, the description of the property sought to be impressed with the easement of flowage is sufficiently comprehensive and definite to include flowage rights over both the land described and also the bed of the stream on which it abuts to the center of the stream. Central Ga. Power Co. v. Maddox, 135 Ga. 246, 69 S.E. 109 (1910).

- Where a boundary line is described as running to the stream, language which describes it as thereafter running "with," "along," "by," "on," "up," or "down" the stream will be construed to carry the title to the center unless contrary intention appears from the instrument. Westmoreland v. Beutell, 153 Ga. App. 558, 266 S.E.2d 260 (1980).

- Under a deed bounding land conveyed by an artificial pond, the lien of the land conveyed did not extend to the thread of the stream from whose waters the pond was formed, but only to the low-water mark of the pond. Boardman v. Scott, 102 Ga. 404, 30 S.E. 982, 51 L.R.A. 178 (1897).

- 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 land extends to the thread of the stream, where the owner owns upon one side only. Within these limits, by the common law, the owner's rights of fishery are sole and exclusive. Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575 (1930).

- As the owner of land adjoining a nonnavigable stream, is, under O.C.G.A. § 44-8-2, the owner of the soil to the center of the stream, it follows that if one proprietor owns the land on both sides of a stream the proprietor has the exclusive right of fishing therein, and a grant of mill privileges in the stream does not carry the fishing privileges. Thompson v. Tennyson, 148 Ga. 701, 98 S.E. 353 (1919).

- Riparian owners are each entitled to the center of the stream, and where there was a dam in the stream forming a mill pond in which the lower riparian owner was entitled to milling privileges, the upper riparian owner had, nevertheless, the right to a reasonable use of the water to the center of the stream, provided such use did not interfere with the milling privileges. Rome Ry. & Light Co. v. Loeb, 141 Ga. 202, 80 S.E. 785, 1915C Ann. Cas. 1023 (1914).

Right to reasonable use of water in nonnavigable watercourse on nonriparian land can be acquired by grant from a riparian owner. Pyle v. Gilbert, 245 Ga. 403, 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687, 690 S.E.2d 819 (2010).

Cited in Johnson v. Watson, 157 Ga. 349, 121 S.E. 229 (1924); Russell v. Radford, 76 Ga. App. 302, 45 S.E.2d 705 (1947); Parker v. Adamson, 109 Ga. App. 172, 135 S.E.2d 487 (1964); Maddox v. Threatt, 225 Ga. 730, 171 S.E.2d 284 (1969).

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

For discussion of the scope of riparian rights and the "right of access" to a nonnavigable, freshwater impoundment, see 1980 Op. Att'y Gen. No. 80-130.

RESEARCH REFERENCES

Am. Jur. 2d.

- 78 Am. Jur. 2d, Waters, §§ 230, 260-280, 282, 283, 383, 384, 406, 407, 411, 413.

- 65 C.J.S., Navigable Waters, § 94 et seq. 93 C.J.S., Waters, §§ 11 et seq., 91 et seq., 170 et seq.

- Right to hasten the flow and increase the volume of water in a stream by alterations or improvements in the bed, 9 A.L.R. 1211.

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 riparian owner to embank against flood or overflow water from stream, 22 A.L.R. 956; 53 A.L.R. 1180; 23 A.L.R.2d 750.

Right to place bathhouse or similar structure on shore in front of riparian owner, 24 A.L.R. 1273.

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

Waters: rights in respect of changes by accretion or reliction due to artificial conditions, 134 A.L.R. 467.

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

Right of riparian owner to construct dikes, embankments, or other structures necessary to maintain or restore bank of stream or to prevent flood, 23 A.L.R.2d 750.

Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 A.L.R.2d 643.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.

Rights to land created at water's edge by filling or dredging, 91 A.L.R.2d 857.

Right to accretion built up from one tract of land and extending laterally in front of adjoining tract without being contiguous thereto, 61 A.L.R.3d 1173.

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.

Deeds: description of land conveyed by reference to river or stream as carrying to thread or center or only to bank thereof - modern status, 78 A.L.R.3d 604.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.