Black v. Floyd

• Decision Date: 17 May 2006
• Docket Number: No. S06A0545.,S06A0545.
• Citation: 280 Ga. 525,630 S.E.2d 382
• Parties: BLACK et al. v. FLOYD et al.
• Court: Georgia Supreme Court

280 Ga. 525

Page 382

630 S.E.2d 382

BLACK et al. v. FLOYD et al.

No. S06A0545.

Supreme Court of Georgia.

May 17, 2006.

Ray Chandlar Smith, Richmond Hill, James A. Chamberlin, Jr., Brunswick, for Appellant.

John David Harvey, Murray & Harvey, LLC, Richmond Hill, Isaac Byrd, Deputy Attorney General, James A. Chamberlin, Jr., Brunswick, for Appellee.

CARLEY, Justice.

The issue presented in this case is whether certain tidal marshlands are publicly or privately owned. H. Russell Black and Josie Black (Appellants) claim title to the property which lies along Sterling Creek, a tidal waterway and an arm of the sea. They base their claim on two Crown grants which were made to Sir James Sterling in 1761. R. Douglas Floyd, Thomas Garrett and Tami Garrett (Appellees) own the property adjoining the marshlands, which they maintain are owned by the State of Georgia.

Appellees filed a declaratory judgment action, seeking to establish title in the State of Georgia. Appellants answered, and successfully moved to add the State of Georgia as a necessary party. After discovery, the parties filed cross-motions for summary judgment. The trial court denied Appellants' motion, and granted summary judgment in favor of Appellees and the State of Georgia. Appellants bring this appeal from that order.

1. Appellants suggest that the navigability of tidewaters is a factor in determining their ownership. However,

[t]he State of Georgia continues to hold title to the beds of all tidewaters within the state, except where title in a private party can be traced to a valid Crown or state grant which explicitly conveyed the beds of such tidewaters. (Emphasis supplied.)

OCGA § 52-1-2. The definition of "tidewaters" includes

the sea and all rivers and arms of the sea that are affected by the tide, where the tide rises and falls, which are capable of use for fishing, passage, navigation, commerce, or transportation, and which are located within the jurisdiction of the State of Georgia.

OCGA § 52-1-3(4). There is no dispute that Sterling Creek is a tidal waterway and an arm of the sea. At common law, the beds of tidewaters were deemed to extend to the high water mark. Thus, "[t]he soil between high-water mark and low-water mark was the property of the crown." Johnson v. State, 114 Ga. 790, 791, 40 S.E. 807 (1902). "As a result, the [S]tate [of Georgia] owns the [tide]water[s] bottoms up to the high water mark," unless, pursuant to OCGA § 52-1-2, a private party can trace his or her title back to an explicit conveyance thereof by a valid Crown or state grant. Dorroh v. McCarthy, 265 Ga. 750, 751(2), 462 S.E.2d 708 (1995).

In claiming title, Appellants rely on the two Crown grants, which must be "construed strictly against [them] and nothing... taken by implication. [Cits.]" State of Ga. v. Ashmore, 236 Ga. 401, 413(III), 224 S.E.2d 334 (1976). To establish private ownership of the marshlands, those two documents must be shown to contain an explicit conveyance of the bed of Sterling Creek. The trial court found that the certified copies of the Crown grants submitted by Appellants were "indecipherable and that consequently they cannot in any way be interpreted as conveying marshland." Our own review of the copies confirms the trial court's characterization of them, in that they are almost completely illegible. Such documents are not entitled to evidentiary consideration. See Stebbins v. Ga. Power Co., 252 Ga.App. 261, 263(1)(a), 555 S.E.2d 906 (2001); Prater v. American Protection Ins. Co., 145 Ga.App. 853, 857(2), 244 S.E.2d 925 (1978); Kelley v. General Motors Acceptance Corp., 145 Ga. App. 739(1), 244 S.E.2d 911 (1978); LaCount v. United Ins. Co. of America, 138 Ga.App. 476, 477(1), 226 S.E.2d 307 (1976); United Ins. Co. of America v. Hadden, 126 Ga.App. 362, 364(2), 190 S.E.2d 638 (1972). Compare Allgood Farm v. Johnson, 275 Ga. 297, 299(1), 565 S.E.2d 471(a), fn. 5 (275 Ga. 297, 565 S.E.2d 471) (2002).

Appellants contend that, if the two Crown grants were "indecipherable," the trial court should have given them an opportunity to introduce witnesses who would support their contention that the documents contain an explicit grant of the bed of Sterling Creek. However, the near total illegibility of the grants is apparent on their faces. Therefore, if Appellants had any additional evidence or testimony to support their claim of title, they should have produced it at the hearing on the cross-motions for summary judgment. "[I]t is the duty of each party at the hearing on the motion for summary judgment to present his case in full. [Cits.]" Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604, 203 S.E.2d 173 (1974). Moreover, even assuming that the Crown grants did contain the language which Appellants ascribe to them, they nevertheless would be insufficient to support their claim of title. A mere general reference to the requirement that Sir Sterling, as the grantee,...