GEORGIA WATER LAW

and

THE PUBLIC RIGHT OF USE

FOUNDATIONS / EARLY COMMON LAW

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• ROMAN LAW: “By the law of nature these things are common to mankind: the air, running water, the sea, and consequently” Justinian the Great. Roman Civil Code in the sixth century A.D., (The Justinian Institutes: legal texts).
• Key concept, no private ownership but a right of use
• Recognizes concept of common property, dedicated to public use, and held by the state in trust for the people

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FOUNDATIONS / EARLY COMMON LAW

• ENGLISH COMMON LAW : Introduction of private property rights based on ownership of adjacent lands (RIPARIAN LAW) subject to the public right to use rivers and streams as common highways where such streams were capable of supporting boats carrying people or goods or both. [NAVIGABLE IN FACT]

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• THREE CLASSIFICATIONS OF STREAMS
• Wholly private streams (both in ownership and use) – little waterways, streams so small or shallow common passage not feasible
• Fresh Water Streams, Rivers/ Non-Tidal Public Highways – private ownership of beds, subject to common right of passage – “common highways for man or goods”
• NAVIGABLE WATERS (Arms of the Sea /Tidal Public Highways) - subject to ebb and flow of tides; subject common right of passage – “common highways for man or goods” - NAVIGABLE IN LAW

- Sir Matthew Hale, De Jure Marls

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FOUNDATIONS / EARLY COMMON LAW

• ENGLISH COMMON LAW – WATERWAYS SUBJECT TO CERTAIN ROYAL PREOGATIVES (exercised in Crown’s capacity as guardian of public right of use) [POLICE POWER]
• Crown grant of right to operate a public ferry franchise
• Right to protect public right of passage along navigable in fact waterways
• Fishing rights considered private real property rights attached to ownership of beds underlying waterways

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• ENGLISH COMMON LAW IMPORTED INTO THE 13 COLONIES

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EARLY GEORGIA COMMON LAW

ENGLISH COMMON LAW BECOMES GEORGIA COMMON LAW:

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• Rivers / streams = our FIRST public highways
• WATERWAYS SUBJECT TO PUBLIC SERVITUDE: RIGHT OF PASSAGE FOR PEOPLE AND GOODS
• RIPARIAN LAW: Riparian property owners hold “no property in the water itself, but a usufruct while it passes along.” Hendrick v. Cook, 4 Ga. 241 (1848)
• NATURAL FLOW SUBJECT TO REASONABLE, RESTRICTED USE

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GEORGIA COMMON LAW�PRIOR TO 1863

RIVERS ARE OF THREE KINDS:

1. Such as are wholly and absolutely private property.
2. Such as are private property, subject to the servitude of the public interest, by a passage upon them.
3. Rivers where the tide ebbs and flows, which are called arms of the sea. 

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The distinguishing test between (1) and (2) is, whether they are susceptible or not of use for a common passage. The public right is one of passage, and nothing more, as in a common highway; it is called in the books an easement, and the proprietor of the adjoining land has the right to use the land and water of the river, in any way not inconsistent with this easement.��Young v. Harrison, 6 Ga. 130, 140–41 (1849)

ADOPTION OF 1863 CODE

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• O.C.G.A. §44-8-3 The owner of a nonnavigable stream is entitled to the same exclusive possession of the stream 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.”
• O.C.G.A. §44-8-5 (a) 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.
• The adoption of the 1863 Code did not abrogate public right of passage on waters that are navigable in fact. See Florida Gravel Co. v. Capital City Sand & Gravel Co., 170 Ga. 855 (1930) – 1863 Code provisions merely intended to adjust English common law ownership of bed by crown to conditions of state
• Effect of 1863 Code on Ownership of Riverbed = Expansion of State’s Riverbed Ownership (subject to certain grants pre 1863)

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FEDERAL LAW ON NAVIGABILITY AND PUBLIC NAVIGATIONAL SERVITUDE

• U.S. SOVEIRGNTY – Early recognition of need to adapt English Common Law to unique features of new country (expand beyond ebb & flow of tidal waters)
• NAVIGABLE IN FACT = NAVIGABLE IN LAW
• “A different test must, therefore, be sought to determine the navigability of our rivers, with the consequent rights both to the public and the riparian owner, and such test is found in their navigable capacity. Those rivers are regarded as public navigable rivers in law which are navigable in fact.” Packer v. Bird, 137 U.S. 661, 667 (1891)
• EQUAL FOOTING DOCTRINE: concept that newly admitted states took “title to navigable waters and their beds in trust for the public” on equal footing with the original 13 colonies. PPL Montana, LLC v. Montana, 565 U.S. 576, 604 (2012)
• ”Questions of navigability for determining state riverbed title are governed by federal law.” Id. at 591
• A waterbody is navigable if, at the time of statehood, in its natural and ordinary condition, the waterbody was used, or was susceptible of being use as a highway for commerce, over which trade and travel were or could have been conducted in the customary modes of trade and travel on water. See The Daniel Ball, 77 U.S. 557, 563 (1870).

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Navigability in Other States

CURRENT STATE OF GEORGIA LAW

CASELAW HAS NOT ABROGATED COMMON LAW PUBLIC RIGHT OF PASSAGE

• Givens v. Ichauway, 268 Ga. 710 (1997)

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STATUTORY LAW

O.C.G.A. § 44-8-5 (c)(1) The General Assembly finds that the state procured ownership of all navigable stream beds within its jurisdiction upon statehood and continues to hold title to all such stream beds, except where title in a private party originates from a valid Crown or state grant before 1863. The General Assembly further finds that, by the common law, the citizens of this state have an inherent right to use for passage and for hunting and fishing all navigable streams from low-water mark to low-water mark. The General Assembly further finds that the public retained the aforementioned right even where private title to beds of navigable streams originates from a valid grant, but in such cases, the public's right is limited to only using such navigable streams for passage and for hunting and fishing.

(2) Nothing contained in this subsection shall be construed to permit entry upon privately owned land adjacent to navigable streams.

Amended by 2024 Ga. Laws 597,§ 1, eff. 7/1/2024.

KASEY STURM

WEISSMAN, PC

kaseys@weissman.law

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