West v. Baumgartner

• Decision Date: 07 July 1971
• Docket Number: 3,2,Nos. 1,Nos. 45908-45913,s. 45908-45913,s. 1
• Citation: 124 Ga.App. 318,184 S.E.2d 213
• Parties: Eleanor T. WEST et al. v. E. H. BAUMGARTNER. E. H. BAUMGARTNER v. Eleanor T. WEST et al. Eleanor T. WEST et al. v. R. H. PADGETT. R. H. PADGETT v. Eleanor T. WEST et al. Eleanor T. WEST et al. v. J. E. PADGETT. J. E. PADGETT v. Eleanor T. WEST et al
• Court: Georgia Court of Appeals

Page 213

184 S.E.2d 213

124 Ga.App. 318

Eleanor T. WEST et al. v. E. H. BAUMGARTNER.

E. H. BAUMGARTNER v. Eleanor T. WEST et al.

Eleanor T. WEST et al. v. R. H. PADGETT.

R. H. PADGETT v. Eleanor T. WEST et al.

Eleanor T. WEST et al. v. J. E. PADGETT.

J. E. PADGETT v. Eleanor T. WEST et al.

Nos. 45908-45913.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 7, 1971.

Rehearing Denied July 27, 1971.

Certiorari Denied in Nos. 45909, 45911, 45913 Sept. 27, 1971.

Certiorari Granted in Nos. 45908, 45910, 45912 Sept. 27, 1971.

Syllabus by the Court

1. (a) Under the common law there existed in the public a common right of fishery in the creeks and arms of the sea.

(b) Section 1 of the Act of 1902 granting certain title to the beds of all tidewaters in this State where the tide regularly ebbs and flows and which are not navigable under Section 2 of the Act, did not convey with such title the exclusive right of fishery as opposed to the common right of fishery enjoyed by the public; excepting as to oysters, claims and other shell fish.

2. Belief by those prosecuting another for a crime, after a full knowledge of the facts, that the facts constitute such crime when the facts do not, does not constitute probable cause for the prosecution.

3. While prior rulings by a trial judge in a similar prosecution that such facts were sufficient to show guilt of the crime charged may be shown in mitigation of damages and to disprove malice, such prior rulings in other cases do not show probable cause as a matter of law for the prosecution at issue.

4. Where, in respect to a request for admissions, the respondent gives an equivocal answer, such answer is legally an evasion of the request and is not a denial, or a good faith qualified denial of the facts contained in the request and the facts must be taken as admitted.

5. A corporation, the charter of which is granted several months after an alleged malicious prosecution by others, prima facie, is not liable for damages therefor.

6. The temporary detaining of the accused by the prosecutor without the use of force or without words or acts inducing in the accused the fear of bodily injury, for the purpose of getting the name of the accused and his address does not constitute a separate 'false imprisonment' whether or not the restraint imposed is merged into the subsequent action of malicious prosecution.

Oliver, Maner & Gray, Thomas S. Gray, Jr., Savannah, Bennet, Gilbert, Gilbert & Whittle, Wallace Harrell, Burnswick, for appellants.

Alton D. Kitchings, Savannah, for appellees.

PANNELL, Judge.

Edward H. Baumgartner, Rudolph H. Padgett and James E. Padgett, in the Superior Court of Chatham County, Georgia, brought separate complaints in two counts against Eleanor T. West; The Citizen's & Southern National Bank of Georgia, co-trustee and William F. Torrey, Jr., as co-trustee, under a trust set up under the last will and testament of Nelle Ford Torrey; William F. Torrey, Jr., individually and as beneficiary; Annette Torrey Frazer, individually and as beneficiary; Emory M. Torrey, individually and as beneficiary; Randall F. Torrey, a minor, individually and as beneficiary; Julian C. Sipple, an attorney; and Ossabaw, Inc. By amendment Ossabaw Island Project Foundation was made a party defendant. The complaints were brought in two counts. The first count sought recovery for alleged false imprisonment. The second count sought recovery on the basis of an alleged malicious prosecution. The facts alleged in both counts, in so far as here material, is that Julian C. Sipple, acting as attorney for all of the defendants, on November 12, 1967, while the complainants were fishing with hook and line from a boat in what is known as the South Slough, a tidal water, of Ossabaw Island, called to the complainants and commanded them to bring the boat to the shore and give him their names and addresses which the complainants did to avoid force, thinking Sipple to be an officer of the law. After securing the names and addresses, Sipple then told them that they were violating the law and demanded that they leave, which they did. Later, Sipple wrote a letter to the parties requesting that they sign an agreement not to fish in the waters of Ossabaw Island in the future. The complainants refused to sign such an agreement and Julian C. Sipple swore out a warrant against them, charging them with fishing in the waters of another in violation of Section 81 of the Act of 1955 (Ga.L.1955, pp. 483, 523; Code Ann. § 45-701). They were arrested, gave bond, and upon trial were acquitted. The answers of the parties denied the material allegations of the complaint as to the authority of Sipple to act as attorney for the parties, with the exception of Ossabaw Island Project Foundation. Ossabaw, Inc., answered, alleging it was not in existence at the time of the alleged occurrence. Motions for summary judgment were filed by some of the defendants which were overruled by the trial judge and with proper certificate of review were appealed to this court. While these cases were pending review here, all of the defendants jointly made a motion for summary judgment presenting some additional evidence for consideration by the trial judge. After appeals were docketed in this court from the order of the trial judge overruling the second motions for summary judgment by all the defendants as to Count 2 of the petitions, and cross appeals from the ruling of the trial judge granting all the defendants' motions for summary judgment as to Count 1 of the complaint, the first appeals were dismissed as moot. Citizens & Southern National Bank of Georgia v. Baumgartner, 123 Ga.App. 462, 181 S.E.2d 519. The latter appeals and cross appeals are presented for review in the present case.

Divisions 1 through 5 of the opinion deal with the main appeals. Division 6 deals with the cross appeals. The basic contentions of the appellants in the main appeals are: (1) The Act of 1902 (Ga.L.1902, p. 108; Code §§ 85-1307, 85-1308, 85-1309) granted exclusive rights of fishery to the owners of Ossabaw Island in all non-navigable tidal waters ebbing and flowing on or across the island, and (2) there was probable cause as a matter of law for prosecuting the complainants, and (3) some of the defendants are not liable, and should have been granted summary judgments, because the chief actor, the attorney Sipple, did not represent them and was not their agent or employee in committing the acts complained of.

1. (a) Since the appellants claim in right of the State under the Act of 1902, we must first look into the rights of the State and the public prior thereto and whether the State by this Act conveyed exclusive fishing rights to the owners of non-navigable waters as defined in that Act. '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 landowner is 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.' Johnson v. State, 114 Ga. 790, 791, 40 S.E. 807. In that case, it was also held that the definition of a navigable stream and the defining of the rights of the adjacent owners as extending to the low-water mark of the bed of the stream as set forth in Code §§ 3059 and 3060 of the Code of 1895 (§§ 85-1303; 85-1304 of the Code of 1933), are not applicable to tidal waters. Under the rationale of this ruling, neither does Code § 85-1305 apply to tidal waters. See Hendrick v. Cook, 4 Ga. 241, 255; Jones v. Water Lot Co. of Columbus, 18 Ga. 539; Stanford v. Mangin, 30 Ga. 355. The theory that ownership of tidal waters is in the State or the Sovereign has come down to us from the common law, as well as the right of the public to the common fishery in tidal waters. 'Lord Hale, in the treatise ascribed to him, aptly compares the King's property in the sea and tide-rivers, creeks, &c., to the ownership of lords of manors in the common or waste lands of the manor. The soil and freehold of the waste belong to the lord, but subject to certain rights of the manorial tenants; such as common of pasture, piscary, turbary, ways, &c., claimed and enjoyed by them, by the custom of the manor, in and out of such waste lands. So the King is lord of the great waste of the sea, subject to certain beneficial rights and privileges of fishing, navigation, &c., immemorially enjoyed by his subjects therein, by the custom of the realm, which is the common law.' Moore, History & Law of the Foreshore and Sea Shore, 3d Ed., p. 670. 'Now, as we have already attributed the absolute ownership of the sea, and seashore, to the King, ab origine,-it might be thought that the above perquisites are absolutely his own, and grantable exclusively to any one of his subjects. But according to the acknowledged law of the land, although the King is owner of this great waste, yet the common people of England have regularly a liberty of fishing in the sea, and creeks and arms thereof, and in navigable rivers within the tides, as a public common of piscary.

'This public or general right of fishing in the sea, claimed by the subject, is a beneficial privilege enjoyed by British subjects, time out of mind. Whether, in fact, it was originally a public grant from the King, or whether it was a reservation by the people of such right, when they vested the rest of the property in the sea in him, or whether it be one of those natural and necessary rights which, like the air we breathe, has ever been free and unquestioned in enjoyment, is immaterial; for the conclusion is the same; viz., that such right of fishing has immemorially belonged to, and...