Land on the rivers around Lowndes, Brooks and Echols County are not public....
LEGAL RESEARCH BY TRIPP BRIDGES (
http://www.olemiss.edu/orgs/SGLC/Nat...3.1comment.htm)
Tripp Bridges is a third-year law student at the University of Georgia School of Law in Athens, Georgia. The views expressed below are the author’s own. This article does not necessarily reflect the opinions and positions of the National Sea Grant Law Center and its affiliates.
Georgia is fortunate to have many rivers that can be used for recreational boating. Canoeing and kayaking are recreational activities enjoyed by many people in the state. These numbers will undoubtedly increase with the population growth of Atlanta and its suburbs. Generally canoeists have enjoyed relatively free access to many of Georgia’s larger rivers, however in recent years there have been some notable exceptions.
The following two cases exemplify the problems that the public has had in gaining access to some of Georgia’s non-navigable rivers. In Georgia Canoeing Assoc. v. Henry, 482 S.E.2d 298, 267 Ga. App. 814 (1997), the Court of Appeals affirmed the trial court’s opinion that the public did not have a right of passage down Armuchee Creek where it flowed through Mr. Henry’s land. The Georgia Canoeing Association was seeking to enjoin Mr. Henry from stopping free passage by the public down the river. In Givens v. Ichauway, Inc., 493 S.E.2d 148, 268 Ga. 710 (1997), the court found that the Ichauwaynochaway Creek was non-navigable, and therefore inaccessible to boaters, even though the appellant was able to navigate a small raft carrying two people, a goat, and a bale of cotton in attempts to prove navigability under the standard of commerce of the nineteenth century.
As illustrated by the aforementioned cases, current Georgia law does not allow a right of passage for the public down non-navigable rivers. According to O.C.G.A. § 44-8-2 the adjacent landowner owns the bed of a non-navigable river to the midpoint, and if the landowner owns both sides of the river, then ownership extends to the entire streambed. The same is true if the river is a boundary between properties; the landowners both own to the midpoint, and could join together and prohibit passage down the river.1 The legislature passed this law long before the start of any significant recreational boating in the region. This section of the code effectively prohibits the public from using many of Georgia’s scenic rivers. Consideration should be given to changing it to allow a right of through passage down non-navigable rivers.
At this time Georgia boaters only have a right of passage down navigable waters. Georgia’s definition of navigable is surprisingly restrictive. Under Georgia law, navigable streams are those “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 Few rivers in Georgia qualify under Georgia law as navigable due to the fact many barges are over 200 feet long, and few rivers would be able to support such boats.3 This restrictive definition precludes a right of passage on most of Georgia’s rivers, including the Chattooga, Chestatee, and Toccoa, which are frequently used for canoeing.
GA DNR Q AND A (
http://georgiawildlife.dnr.state.ga....xtDocument=421)
Q: How is navigability defined in Georgia? How does this relate to public access to waterways for the purposes of fishing, hunting, and boating?
A: This is a complex issue in Georgia because of the difficulty in determining whether or not a stream is navigable as described by Georgia law. The following definitions in Georgia law describe navigable streams and tidewaters:
O.C.G.A. §44-8-5(a) 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.
O.C.G.A. §44-8-7 Navigable tidewater is any tidewater, the sea or any inlet thereof, or any other bed of water where the tide regularly ebbs and flows which is in fact used for the purposes of navigation or is capable of transporting at mean low tide boats loaded with freight in the regular course of trade. The mere rafting of timber thereon or the passage of small boats thereover, whether for the transportation of persons or freight, shall not be deemed navigation within the meaning of this code section and shall not make tidewaters navigable.
These definitions were formulated in 1863 and speak in rather archaic terms. Therefore, the navigability of streams under state law is often decided on a case-by-case basis through court litigation.
The question of whether a stream is open to the public for fishing, boating, etc., must be determined on its physical characteristics and history, especially for smaller streams. It comes down to whether the state owns the bottom (bed) of the stream or if the adjacent landowner owns it. The state owns the bed of navigable streams and adjacent landowners own the bed of non-navigable streams. If the state owns the bed, the stream is open to the public for fishing, wading, boating, and other public use and the owner of the adjacent land only owns to the low water mark (edge) on the bed of the stream [Official Code of Georgia Annotated (O.C.G.A.) §44-8-5(b)]. If the stream is non-navigable, the adjacent landowner may determine who can and cannot come onto the stream to fish or boat. If different landowners own the land adjacent on either side of a stream, they each own to the thread or center of the main current.
A good rule of thumb is to always ask for permission to hunt and fish on private lands first to avoid problems.
QUICK FACTS (not opinions)
-The Toccoa River is legally classified as a non-navigable river. Opinions may vary on which rivers should or should not be classified navigable or non-navigable, however, the Toccoa river is still legally classified as a non-navigable river as are most rivers in Georgia. The status of navigable or non-navigable is not an opinion left up to individuals to decide upon, it is a legal classification.
-Property owners that own both sides of a non-navigable stream or adjacent property owners who let the public float through their property are doing so by their own choice. They do NOT have to let you pass (or FISH) through property on rivers classified non-navigable. This is a fact, not an opinion. It can be verified by trying to pass through some of the other rivers in Georgia, just like the Toccoa, that have been closed to passage for years. If you attempt to pass through you will be arrested and/or ticketed. You can verify this by contacting the appropriate authorities and asking if you can pass through or fish.
-Owning property on non-navigable rivers and streams is how private fishing outfitters legally operate and it is also how the cattle industry is able to legally fence in the river to keep cattle inside their property
-There are many non-navigable rivers (most rivers in Georgia are classified non-navigable) and streams which have sections closed (and/or fenced) to passage by any means. I.E. golf course's, fishing outfitters, cattle farmers, land owners, etc.
-Dozens of people are arrested each year for either not knowing the law or knowingly disagreeing with the law.
-It is your responsibility to know the law. It is NOT the property owners responsibility to explain the law to you if you are trespassing.
-Just because you have floated through private property before does not mean you can continue to do so after the property has been posted.
-The property does not have to be posted (keep out, no trespassing, etc) in order for you to be trespassing. If the property owner (or someone authorized) verbally asks you to leave, and you do not leave, then you are trespassing.
-Remember, these are laws. Not everybody likes every law, but they are still laws non the less and there are consequences for breaking the law.
Regarding the fish(fact)
Many people will argue that nobody "owns" the fish in the river. They are exactly correct. Per DNR, It is no different than a deer standing on private property that is posted. The land owner does not own the deer, however, while the deer is on his property nobody can harm the deer or kill the deer. Per DNR, this is the same for fish in a river legally classified non-navigable in which the landowner owns both sides of the river and posts the river for "no fishing".
Disclaimer
The information on this site should be considered "as-is" and should be verified. The maintainers of this site make an effort, when possible, to try to verify the information, but we are not lawyers and, therefore, we cannot and will not give legal advice. If you need accurate answers, hire an attorney who is licensed in the state in question or feel free to verify the information with the state and federal government. Some of the information provided on this site is directly from
http://www.legis.state.ga.us which is an official website maintained by the State of Georgia.