Smith v. State

• Citation: 282 S.E.2d 76,248 Ga. 154
• Decision Date: 17 September 1981
• Docket Number: Nos. 37291,s. 37291
• Parties: , 24 A.L.R.4th 282 SMITH v. STATE of Georgia, et al. STATE of Georgia, et al. v. BRUCE, et al. ROWLAND HILLS CORP., et al. v. STATE of Georgia, et al. to 37293.
• Court: Supreme Court of Georgia

Page 76

282 S.E.2d 76

248 Ga. 154, 24 A.L.R.4th 282

SMITH v. STATE of Georgia, et al.

STATE of Georgia, et al. v. BRUCE, et al.

ROWLAND HILLS CORP., et al. v. STATE of Georgia, et al.

Nos. 37291 to 37293.

Supreme Court of Georgia.

Sept. 17, 1981.

Moreton Rolleston, Jr., Atlanta, for Robert O'Kelley Smith in No. 37291.

Arthur K. Bolton, Atty. Gen., Patricia Barmeyer, Asst. Atty. Gen., Terry L. Readdick, Dickey, Whelchel, Miles & Brown, B. N. Nightingale, Brunswick, Reid W. Harris, St. Simons Island, for State of Georgia et al. in No. 37291.

Arthur K. Bolton, Atty. Gen., Patricia Barmeyer, Asst. Atty. Gen., Terry L. Readdick, Dickey, Whelchel, Miles & Brown, Brunswick, for State of Georgia et al. in No. 37292.

Moreton Rolleston, Jr., Atlanta, Reid W. Harris, St. Simons Island, B. N. Nightingale, Brunswick, for Edward C. Bruce et al. in No. 37292.

Reid W. Harris, St. Simons Island, for Rowland Hills Corp. et al. in No. 37293.

Arthur K. Bolton, Atty. Gen., Patricia Barmeyer, Asst. Atty. Gen., Terry L. Readdick, Dickey, Whelchel, Miles & Brown, B. N. Nightingale, Brunswick, Moreton Rolleston, Jr., Atlanta, for State of Georgia et al. in No. 37293.

GREGORY, Justice.

This is the fourth appearance of this case in this court. See State of Georgia v. Bruce, et al., 231 Ga. 783, 204 S.E.2d 106 (1974); Smith v. Bruce, et al., 241 Ga. 133, 244 S.E.2d 559 (1978); Bruce, et al. v. Rowland Hills Corp., et al., 243 Ga. 278, 253 S.E.2d 709 (1979). The history of this land registration case is detailed in Smith v. Bruce, et al., 241 Ga. 133, 244 S.E.2d 559, supra. The controversy concerns approximately 26 acres of the beach area of St. Simons Island. In Smith v. Bruce we stated: "Some (appellants) offered evidence to show that all easements to the land had been lost by avulsion. The examiner did not agree that the evidence offered was sufficient to show the land area had been lost and (appellants) excepted to this finding. This issue of fact must also be tried by a jury. If a jury should find that the land in question has been lost through erosion or avulsion and the east half of Beach Drive (Dixon Drive) was likewise lost so that the mean high water mark had at one time moved inland beyond the west margin of said drive, then upon the land accreting again, each lot owner abutting the west side of said drive, and so affected, would gain title to the accreted land lying between the north and south parallel lines of their respective lots if extended easterly across Beach Drive (Dixon Drive) to the present mean high water mark. This is in keeping with our holding in State of Georgia v. Ashmore (236 Ga. 401, 224 S.E.2d 334 (1976)). The facts as respect each lot could vary with resulting different jury verdicts."

On remand the trial court charged the jury that in determining whether the "mean high water mark" had advanced so that the easements in question had been lost by erosion or avulsion, they were to consider that the mean high water line indicates that "approximately half the time the tides arose above this line." See, Smith v. Bruce, supra, at 140, 244 S.E.2d 559. The jury returned answers to thirty-one special interrogatories, finding as to each lot in question that the "average high water line of the Atlantic Ocean" had not advanced to the eastern edge of Beach Drive, the center line of Beach Drive, the western edge of Beach Drive or beyond the western edge of Beach Drive. The trial court then entered a judgment that none of the easements to the hard beach had been lost by erosion.

(1)(a) Appellants Smith and Rowland Hills Corporation enumerate as error the trial court's failure to grant their motions for directed verdict on the issue of erosion. They also argue that the trial court erred in failing to define "mean high water mark" to the jury. Appellant Smith contends that the trial court erred in failing to charge the definition given to this phrase by the United States Supreme Court in Borax Consolidated Ltd., et al. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935). Appellant Rowland Hills argues that the Borax decision is inapplicable to this case, but contends that the trial court erred in failing to give their numerous requests to charge on the definition of "mean high water mark."

At trial appellants offered testimony of several East Beach lot owners to show that the ocean had, at varying times over the years, washed beyond the western edge of Beach Drive and even onto some of the East Beach lots. Appellants contend this evidence shows that, as a matter of law, the easements in the hard beach were lost by erosion. Thus, appellants claim title to the more than 26 acres of land which has accreted since the "mean high water mark" allegedly advanced beyond the western boundary of Beach Drive.

In Borax Consolidated, supra, the Supreme Court adopted the definition of "mean high tide" given by the U.S. Coast and Geodetic Survey as the standard for determining tidal boundaries of land received under a federal grant. Noting that the range of the tide at any given point may vary daily, the Court found that "mean high water at any place is the average height of all the high waters at that place over a reasonable period of time (which) from theoretical considerations of an astronomical character ... should be a ... period of 18.6 years." Borax at 26-27, 56 S.Ct. at 31.

It is significant to note at the outset of this discussion that "in tide terminology the words 'water' and 'tide' are synonymous. High tide and high water, mean high tide, and mean high water, etc. have exactly the same technical meaning." ¹

The United States Coast and Geodetic Survey bears the primary responsibility for measuring tides in this country. It maintains tide-measuring stations all along the United States coastlines and "publishes tide tables for the entire world which predict, more than a year in advance of publication, both the time and height of high and low tides." ² Generally "a mechanical recording instrument is used which continuously traces on paper the height of the water at any instant." If properly installed, these automatic tide gauges are extremely accurate. ³

"The variations in the major tide-producing forces are a result of changes in the moon's phases, declination to the earth distance from the earth and regression of the moon's nodes. The variations which occur because of the latter factor will go through one complete cycle in approximately 18.6 years. The other changes have cycles varying from 27 1/3 days (moon's declination) to 27 1/2 days (moon's distance) to 29 1/2 days (moon's phases). These cycles differ in magnitude, and their effect on the tide varies from place to place around the earth. The various combinations of all these changes also result in the daily variations of the tide at a given location .... Because the magnitude of the rise and fall of the tide varies from day to day, tidal characteristics derived from daily observations may differ considerably from the average or mean values over a long period of time. Therefore, the average must be based on long-term observations before it can be considered an accurate value for the tidal datum." ⁴

"Twice a month, when the astronomic forces are working in conjunction with each other, the maximum range, or spring tides, occur; the high tide is higher than average and the low tide is lower ... (t)wice a month the minimum range or neap tides, occur, because the astronomic forces are working in opposition to each other; the high tide is lower than the average, and the low tide is higher." ⁵ See Borax, supra, at 23, 56 S.Ct. at 29. The U.S. Coast and Geodetic Survey averages all of the high tides, including the spring and neap tides, to determine the mean high tide or water. Under this determination "(t)he mean high water at any place is the elevation of the mean level of high water determined, either directly or indirectly, by averaging the height of all the high waters at that place over a period of 19 years." ⁶ (Emphasis supplied.) The U.S. Coast and Geodetic Survey calculates the 18.6 year cycle "as a 19 year cycle as a matter of practicality and convenience." ⁷ Thus, the mean high tide or water at any point along the coast is the mean of all the high tides at that point during a 19 year period. The U.S. Coast and Geodetic publications, reflecting the computations of the mean high tides, are heavily relied on by surveyors in determining tidal boundaries. ⁸ As noted in one U.S. Coast and Geodetic Survey publication, "boundaries determined by the course of the tides involve two engineering aspects: a vertical one predicated on the height reached by the tide during its vertical rise and fall, and constituting a tidal plane or datum ... and a horizontal one, related to the line where the tidal plane intersects the shore to form the tidal boundary .... The first is derived from tidal observations alone, and, once derived ... is for all practical purposes a permanent one. The second is dependent on the first, but is also affected by the natural processes of erosion and accretion, and the artificial changes made by man." ⁹ As noted by the Supreme Court in Borax, supra, the point of intersection is not "a physical mark made upon the ground by the waters." Borax at 22. As the waves break against the shore, water generally rolls to a higher point than the point reached by the wave; gusty winds may push the water even further upland. However, "water pushed or rolled onto the upland in this manner is not considered (by the U.S. Coast and Geodetic Survey) in measuring the height of the tide and will not be reflected by the tide guage." ¹⁰ Other courts have noted that in determining the mean high tide or water mark, "(no) consideration whatever is given to the wash of the waves or the reach of the run of the sea water upon the coast. Such movements of the sea are not considered in determining the height of the tide... Nor does the run, roll or reach of...