Parker v. Durham

• Court: Georgia Supreme Court
• Writing for the Court: GREGORY
• Citation: Parker v. Durham, 365 S.E.2d 411, 258 Ga. 140 (Ga. 1988)
• Decision Date: 09 March 1988
• Docket Number: No. 45204,45204
• Parties: PARKER et al. v. DURHAM et al.

Page 411

365 S.E.2d 411

258 Ga. 140

PARKER et al. v. DURHAM et al.

No. 45204.

Supreme Court of Georgia.

March 9, 1988.

Reconsideration Denied March 30, 1988.

George E. Argo, Vidalia, for Bobby V. Parker et al.

Billy N. Jones, Hinesville for Marjorie H. Durham et al.

Wilkes, Johnson & Smith, J. Alexander Johnson, amicus curiae.

GREGORY, Justice.

Appellee Durham is the owner of property surrounding the Hughes Old River in Long County. Appellee Hughes River Co. leases the Hughes Old River and surrounding property from Durham for use as a private fishing club.

On May 3, 1986, appellants entered the Hughes Old River by way of the Altamaha River for the purpose of fishing. It is undisputed that none of the appellants are members of the private fishing club in question. On complaint of appellee Durham, appellants were arrested for fishing on the property of another without permission, OCGA § 27-4-2. The appellees thereafter sought a permanent injunction to prevent appellants from tresspassing on and fishing in the Hughes Old River. The appellees also sought damages and attorney fees. The trial court granted appellees' motion for partial summary judgment, and permanently enjoined appellants from trespassing on or fishing in the Hughes Old River.

1. The record demonstrates that a body of water known as the Hughes Old River joins the Altamaha River in Long County, Georgia. Appellees offered evidence which shows that when the Altamaha River reaches its low water mark and the Hughes Old River reaches its low water mark, land forms a barrier between the two bodies of water blocking the passage of boats between them. Appellants offered evidence tending to contradict this. It is undisputed that appellee Durham owns all land bordering the Hughes Old River. Appellants maintain there is an issue of fact as to whether the Hughes Old River is navigable, and therefore summary judgment was improperly granted.

A "navigable stream" is defined as "a stream which is capable of transporting boats loaded with freight in the regular course of business 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). Appellants offered some evidence to show that the Hughes Old River is navigable within the meaning of this code section. "The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream." OCGA § 44-8-5(b). Appellants argue under this authority that if the Hughes Old River is navigable, Durham owns only to the low water mark of the Hughes Old River, and they may enter the Hughes Old River by way of the Altamaha to fish. OCGA § 44-8-2 provides that "[t]he beds of nonnavigable streams belong to the owner of the adjacent land." Under this authority, if the Hughes Old River is nonnavigable, Durham owns the bed underlying the entire body of water.

The trial court did not make a determination as to the navigability of the Hughes Old River. The trial court reasoned that even if it were to find the Hughes Old River is navigable, the appellees are entitled to the injunctions sought because Durham can trace her chain of title back to an original grant from the state predating the effective date of OCGA § 44-8-5.

At common law, grants of land from the state "bounded on rivers above tide-water, or where the tide does not ebb and flow, carry the grantee to the middle of the river." Jones v. The Water Lot Co. of Columbus, 18 Ga. 539, 541 (1855). In such a situation, "[t]he 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, 141 (1849). OCGA § 44-8-5, providing that where the river is navigable, the rights of the owner of adjacent land extend only to the low-water mark of the riverbed, became effective with the adoption of the...