Givens v. Ichauway, Inc.

• Decision Date: 24 November 1997
• Docket Number: No. S97A1074,S97A1074
• Citation: 493 S.E.2d 148,268 Ga. 710
• Parties: , 97 FCDR 4238 GIVENS v. ICHAUWAY, INC.
• Court: Georgia Supreme Court

Page 148

493 S.E.2d 148

268 Ga. 710, 97 FCDR 4238

GIVENS v. ICHAUWAY, INC.

No. S97A1074.

Supreme Court of Georgia.

Nov. 24, 1997.

Kermit S. Dorough, Jr., Divine, Dorough & Sizemore, Albany, for Carroll Givens.

James C. Brim, Jr., Robert C. Richardson, Jr., Camilla, for Ichauway, Inc.

Michael Brian Terry, Paul Howard Schwartz, Bondurant, Mixson & Elmore, Julie Virginia Mayfield, Kilpatrick Stockton, LLP, Daniel I. MacIntyre, Wilson, Strickland & Benson, P.C., Atlanta, for Amicus Appellant.

Michael G. Gray, Walker, Hulbert, Gray & Byrd, Perry, Virginia Ware Killorin, Edward W. Killorin, Killorin & Killorin, Atlanta, for Amicus Appellee.

HINES, Justice.

Ichauway, Inc., d/b/a Joseph W. Jones Ecological Research Center ("Ichauway"), sued to enjoin Givens from trespassing on real property Ichauway leases, specifically Ichauwaynochaway Creek, which flows through Ichauway's leasehold. Ichauway leases the land on both sides of the creek for fourteen miles of its length and conducts ecological research on the stream. At one point on the stream a dam was installed some years ago to generate electricity. Although it is no longer used for that purpose, the dam remains and blocks the passage of boats.

Givens appeals the grant of summary judgment to Ichauway. He contends that he has the right to float down the creek through the property.

1. Although it may be more efficient to await a bench trial in a case involving an injunction rather than pursue summary judgment, there is nothing precluding summary judgment in a case involving an injunction, see Georgia Canoeing Assn. v. Henry, 263 Ga. 77, 78-79, 428 S.E.2d 336 (1993), and the court's order granting summary judgment is before this Court for review. Nor is there anything inherent to the issue of navigability of a stream that precludes summary judgment on that issue, when the evidence so requires. Ichauway's motion for summary judgment rested on evidence the stream was not navigable and the question here is whether Givens has presented any admissible evidence showing there is a genuine issue of material fact as to the stream's navigability. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Wilson v. Nichols, 253 Ga. 84, 86(3), 316 S.E.2d 752 (1984).

Ichauway holds a lease to the land on both sides of the creek and therefore has the right to exclude others from the creek unless the stream is navigable or some servitude exists. See OCGA §§ 44-8-3, 44-8-5(b); Parker v. Durham, 258 Ga. 140, 365 S.E.2d 411 (1988); Bosworth v. Nelson, 172 Ga. 612, 158 S.E. 306 (1931); Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575 (1930). To be considered navigable, a stream must be "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." OCGA § 44-8-5(a). ¹

In an attempt to show the creek is navigable, Givens floated through Ichauway's leasehold on a styrofoam and wood raft that was four feet wide, sixteen feet long, and drew one foot of water. He loaded the raft with a goat, a bale of cotton, and two passengers, disassembling the raft and portaging around the dam. He argues the goat, cotton, and passengers were freight and his trip showed the creek was capable of use for transporting freight under OCGA § 44-8-5(a), despite the presence of the dam. OCGA § 44-8-5(a), however, requires that to be deemed navigable, a stream must support freight traffic "in the regular course of trade." Givens does not claim craft such as his are currently used in the regular course of trade but does contend the raft is representative of craft that were so used in the nineteenth century. He argues this shows the creek was formerly navigable under the definition, and that once a stream is susceptible of navigation that status is not lost. He also relies upon this argument to maintain that the creek can be deemed navigable despite the presence of the dam which undisputedly prevents the free passage of boats through the creek.

Irrespective of whether a stream once regarded as navigable is forever so regarded, the record does not show that this creek was ever navigable under the statutory definition. Although Givens testified that it was navigable under nineteenth century standards, his deposition shows this testimony was inadmissible hearsay based upon the statements of others and upon documents that were not introduced. See Lance v. Elliott, 202 Ga.App. 164, 167, 413 S.E.2d 486 (1991); Gunnin v. Swat, Inc., 195 Ga.App. 344, 345, 393 S.E.2d 700 (1990). He testified that whether any commerce had actually occurred on the stream was "[n]ot to my knowledge, no sir. Others, yes. That's just hearing old-timers talk." The testimony of these unnamed individuals was never introduced. Givens also testified that a book on the history of the area spoke of commercial traffic on the stream, but that book was not introduced. Nor was any admissible evidence presented to show that Givens' raft replicated the dimensions or manner of any craft used in the regular course of commerce in the past.

Not only was no admissible evidence presented to show historical navigation on the stream, none shows the stream to be navigable under current commercial standards. Unrebutted expert testimony showed that the smallest barge normally in use for commercial transport on the Flint River (into which the creek flows) is 245 feet long, 35 feet wide, and draws seven and one-half feet of water. Givens testified such a barge could be floated down the creek approximately thirty days of the year, but for the presence of the dam. However, his deposition discloses that he had no experience in commercial water transport, there is no foundation for his opinion, and he is not competent to testify as to these matters. See Tony v. Pollard, 248 Ga. 86, 88-89(2), 281 S.E.2d 557 (1981). ²

This Court cannot, as the dissent would do, look to the appointment of commissioners to investigate the creek's navigability in 1831, see 1831 Ga.Laws 264, and cannot look to the appropriation of funds "to the navigation" of the creek in 1836, see 1836 Ga.Laws 31, as evidence supporting a ruling that summary judgment was improper. When reviewing orders on motions for summary judgment, "[a]ppellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal." Meade v. Heimanson, 239 Ga. 177, 180, 236 S.E.2d 357 (1977). These legislative actions were not raised before the court below, nor even cited to this Court on appeal, and add nothing to our review of whether there was evidence showing this creek to be navigable.

As there was no admissible evidence showing navigability, the court correctly granted summary judgment on this question.

2. Givens also suggests that there is a public right of common passage on the creek, relying on the following language from Young v. Harrison, 6 Ga. 130, 141 (1849):

Rivers are of three kinds: 1st. Such as are wholly and absolutely private property. 2d. Such as are private property subject to the servitude of the public interest, by a passage upon them. The distinguishing test between the two is, whether they are susceptible or not of use for a common passage. 3d. Rivers where the tide ebbs and flows, which are called arms of the sea. [Cit.] It is contended that Young either grants or recognizes a common law public right of passage other than the statutory right established by OCGA §§ 44-8-2 and 44-8-5.

The Code of 1863 was intended to codify then existing law, including that derived from the common law and the decisions of this Court, see Georgia Power Co. v. Watts, 184 Ga. 135, 138(1), 190 S.E. 654 (1937), and it is understood to do so "unless the contrary manifestly appears from the words employed." Clark v. Newsome, 180 Ga. 97, 100, 178 S.E. 386 (1935). That Code contained the definition of a navigable stream, see OCGA § 44-8-5(a) (Code of 1863, § 2208), as well as the principle that the beds of nonnavigable streams belong to the owner of the adjacent land, see OCGA § 44-8-2 (Code of 1863, § 2207). It also declared that the owner of a nonnavigable stream has the right to exclusive possession of it. See OCGA § 44-8-3 (Code of 1863, § 2210). Thus, under that Code, no servitude of public passage is imposed upon a stream unless it is navigable under the Code. The Code of 1863 is presumed to be a correct statement of the law in this state prior to its enactment, and the burden is on one who would argue otherwise to prove such contention. Mechanics' Bank v. Heard, 37 Ga. 401, 413 (1867).

This state adopted the common law of England as it existed on May 14, 1776. See Crowder v. Department of State Parks, 228 Ga. 436, 439-440(3), 185 S.E.2d 908 (1971). In English common law, only those streams where the tide ebbed and flowed could be considered navigable and subject to the servitude of a right of common passage. See The Daniel Ball, 77 U.S. (10 Wall) 557, 560, 19 L.Ed. 999 (1870); Boardman v. Scott, 102 Ga. 404, 406, 30 S.E. 982 (1897). It is uncontested that this stream is not tidal. Therefore, any right of passage the public has on this stream, in which both banks are in the hands of one private party, arises from the statutory law of Georgia or the common law of Georgia.

Neither Givens nor the dissent rebuts the presumption that the Code of 1863 correctly stated existing law. Nineteenth century statements of what constituted navigability under federal law do not show that the codifiers of 1863 misstated the law of Georgia when they defined navigable streams and delineated the rights of persons in those streams. Young was decided prior to 1863, and the only reasonable conclusion is that the Code of 1863 included the second kind of stream recognized in Young, supra at 141, when the Code of 1863 set forth the definition of a navigable stream. Thus, the...