Johnson v. State

• Court: Georgia Supreme Court
• Writing for the Court: LEWIS
• Citation: Johnson v. State, 114 Ga. 790, 40 S.E. 807 (Ga. 1902)
• Decision Date: 03 February 1902
• Parties: JOHNSON et al. v. STATE.

40 S.E. 807

114 Ga. 790

JOHNSON et al.

v.STATE.

Supreme Court of Georgia.

Feb. 3, 1902.

tide WATER—BOUNDARIES—ABUTTING OWNER—REMOVING OYSTERS FROM PRIVATE BED.

1. In the absence of special title by grant, lease, prescription, or otherwise, the boundary of a landowner abutting on the ocean, or on any estuary, bay, inlet, or arm thereof where the tide regularly ebbs and flows, extends only to ordinary high-water mark. Sections 3059 and 3060 of the Civil Code are not applicable to such waters.

2. An indictment, under section 588 of the Penal Code, for removing oysters from a private oyster bed, is not supported by proof showing that the accused persons took oysters from a bed situated between high-water mark and low-water mark upon the shore of an inlet of the sea; title to the bed not being shown to exist in any private person. (Syllabus by the Court.)

Error from superior court, Camden county; Jos. W. Bennet, Judge.

Thomas Johnson and another were convicted of removing oysters from a private oyster bed, and bring error. Reversed.

A. L. Franklin and D. W. Krauss, for plaintiffs in error.

Jno. W. Bennett, Sol. Gen., and Atkinson & Dunwody, for the State.

LEWIS, J. Johnson and Grice were indicted under section 588 of the Penal Code by the grand jury of Camden county for taking oysters from a private oyster bed without the consent of the owner of the bed. The jury returned a verdict of guilty, whereupon they made a motion for a new trial, which was overruled, and they excepted.

It was admitted that the accused persons took a quantity of oysters from an oyster bed located in King's Bay, in Camden county; and it was shown by uncontradicted evidence that King's Bay is salt water, and is an arm of the sea, or the Atlantic Ocean, and that the tide ebbs and flows there. It was also admitted that the bed from which the oysters were taken was located between high-water mark and low-water mark at a point on the shore of King's Bay immediately bounding the land owned by the prosecutor. It appears from the deed to this land, which was offered in evidence, that the eastern boundary of the property was stated generally to be "West Shore river, or King's Bay." The court charged the jury as follows: "If you find from the evidence that the description given in the deeds of the lands conveyed thereby that one of the boundary lines of the lands thus conveyed is King's Bay, the land conveyed would extend to low-water mark of the bed of the stream, and any oyster bed located within those boundaries would belong to, and be the private bed of, the owner of the land." This charge is assigned as error, and, in view of our decision upon that question, we deem it unnecessary to consider any other phase of the case; for, if that charge was erroneous, the accused persons were, under the admitted facts, guilty of no offense against the laws of this state, and should have been acquitted.

At common law, in the absence of any special title by grant or prescription, the boundary of landowners abutting on the sea, or upon any estuary, tidal stream, or arm of the sea where there was a regular rise and fall of the tide, extended only to high-water mark. The soil between high-water mark and low-water mark was the property of the crown. This rule, so far as the boundary of the abutting landowneris concerned, has been almost universally followed in the United States. See 4 Am. & Eng. Enc. Law (2d Ed.) 818, 820, 822, and cases cited; Tyler, Boundaries, ' 31 et seq. There seems to be no Georgia case in which the precise question here made has been adjudicated, but it is claimed by counsel for the state that the...