I still can't find anything on a decision that the landowner does not control the passage over his land on any waterway that is not navigable by barge traffic.
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Stream wading legalities in GA / common practice
- Thread starter Dr. Strangelove
- Start date
I suspect DNR got it wrong once again.
I would love to see someone float down the Soque and tell the Suttons or Lovells or any of the land owners that they can float and fish as long as they do not get out or drop anchor. That would make my year. You can not do that. If you or the govt does not own the land, you better have permission to be there. It is private property. people go to jail every week for this reason. You could be next.
Throwback
Chief Big Taw
Basically, If they pay the taxes on the land under the water, they can stop you from being there.
As far as the term "waters of the state" goes--It's no different than the state owning the wildlife. Yeah the state owns the wildlife, but that doesn't mean you can go onto private property without permission to pursue them.
T
As far as the term "waters of the state" goes--It's no different than the state owning the wildlife. Yeah the state owns the wildlife, but that doesn't mean you can go onto private property without permission to pursue them.
T
Throwback
Chief Big Taw
I suspect this is the way this particular landowner wanted it handled. the vast majority of landowners don't mind fishermen and canoe/kayak traffic, unless it becomes problematic with littering, stealing everything that is not tied down, drug and alcohol use, setting their woods on fire, cutting trees down, nekkid people running aroud whooping and hollering it up, etc. This is what usually causes them to call and want it stopped.
Hunting and yahoos on ATV's they usually have a problem with from the get go.
T
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Yep. Those are the things that get streams posted.
post #26 says it all. that is the way it is. even if you pay to stock your part of the river those fish are property of the state when they hit the river. The one thing that gets me is the fact that if all of the private property was open to the public, it would be fished out in no time flat and would be no different that any other water. That is just the mentality of most people here. Not all but most. i worked in AK for three years and never saw one trout that was killed to eat. There were a lot of fish and big ones. Most of our water is marginal trout water and does not sustain trout year round. There is also not enough food to grow trout like you see on private water. People want so much for free and do not realize the work that goes into having trophy fish. At least you have the opportunity to catch a good fish in GA. Go to Dukes Creek. Just my thoughts. Not trying to make anyone mad.
Twenty five ought six
Banned
Are you sure about that, cause I read it on the internet that if you walked down a stream backwards and used a barbless fly made out of all natural materials, you could fish anywhere you wanted to.
Are you saying if you read it on the internet, it might not be true.
Twenty five ought six
Banned
Not saying they didn't, and I'm not familiar with the Flint in Upson County, but the lower Flint is a navigable river.
I don't know where the line between navigable and non-navigable is on that river.
kenmorrow
Senior Member
Then there are the federally declared navigable waterways within GA to muddy up the riparian rights law issues even more! LOL
The federal Freedom of Navigation Act trumps state law, but only applies to federally declared historically navigable waterways. What are those?
1. There is a list.
2. There is a legal definition: If one can document that a flowing body of water was ever used for commercial navigation, then the reaches so documented are "navigable." However, there is a major federal bureaucratic process for getting it listed if it isn't already on the list. And it usually results in a lengthy and costly federal court battle with some landowner(s), and possibly some environmental groups...maybe even some government entities that may oppose it for a variety of reasons. Fun, fun, fun!
And what does that mean where the "rubber meets the road?"
It means that navigation cannot be restricted, and that recreational use of the waterway cannot be interfered with so long as the users stay below the "historical mean high water mark" on the bank. That will most typically be the visible line where grass stops, vegetation becomes sparse, gravel bars stop, tree bark changes colors, etc. But it isn't always visible to the naked eye in flood plains or places where man-made improvements have been made along the bank. Regarding the restriction of navigation, this is where that "don't get out or drop anchor" thing comes in. Navigation doesn't require you to make contact with the bottom. The stream bed may be privately owned where your boat is. Attaching your boat (anchoring or tying off) or getting out to wade or "stretch your legs" may be trespassing. Setting duck decoys, trotlines, or traps also falls into this category because they are all anchored.
GA's riparian rights laws closely follow the federal Freedom of Navigation law in terms of what you can/cannot do as a recreational user. The only real difference is a slight difference in the definition of "navigable waterway." And...of course...waters not under federal jurisdiction would be remedied in the GA courts, not federal courts.
The easiest way to tell if water is under federal jurisdiction (thus deemed to fall under the Freedom of Navigation Act) or not is:
1. Is it regulated by the US Coast Guard?
2. Is it managed by the US Army Corps of Engineers? (which also puts it under USCG jurisdiction...whether they have a presence or not)
3. Does the US Fish & Wildlife Service maintain property along the river? (not definitive, but very indicative)
4. Do barges move cargo up/down the stream, or have they in the memory of any living person?
5. Are there locks on the waterway (operable or inoperable)?
Ok, ok. I confess. Riparian rights law is yet another of my areas of uncommon expertise. Yes, I just typed all of this off the top of my head without referring to anything. I've been in the boating to stuff business since I was a teenager in more states than most people have visited. And I don't like breaking the law. But I also don't like being run out of places I have a right to be just because I was too lazy to learn the realities governing my craft. And in the duck hunting business, this stuff takes on added meaning when everyone is carrying shotguns and you're boating in the dark in flooded river bottoms in the dead of winter. It's a darned good idea to know two things: where you are and what the rules are!
The federal Freedom of Navigation Act trumps state law, but only applies to federally declared historically navigable waterways. What are those?
1. There is a list.
2. There is a legal definition: If one can document that a flowing body of water was ever used for commercial navigation, then the reaches so documented are "navigable." However, there is a major federal bureaucratic process for getting it listed if it isn't already on the list. And it usually results in a lengthy and costly federal court battle with some landowner(s), and possibly some environmental groups...maybe even some government entities that may oppose it for a variety of reasons. Fun, fun, fun!
And what does that mean where the "rubber meets the road?"
It means that navigation cannot be restricted, and that recreational use of the waterway cannot be interfered with so long as the users stay below the "historical mean high water mark" on the bank. That will most typically be the visible line where grass stops, vegetation becomes sparse, gravel bars stop, tree bark changes colors, etc. But it isn't always visible to the naked eye in flood plains or places where man-made improvements have been made along the bank. Regarding the restriction of navigation, this is where that "don't get out or drop anchor" thing comes in. Navigation doesn't require you to make contact with the bottom. The stream bed may be privately owned where your boat is. Attaching your boat (anchoring or tying off) or getting out to wade or "stretch your legs" may be trespassing. Setting duck decoys, trotlines, or traps also falls into this category because they are all anchored.
GA's riparian rights laws closely follow the federal Freedom of Navigation law in terms of what you can/cannot do as a recreational user. The only real difference is a slight difference in the definition of "navigable waterway." And...of course...waters not under federal jurisdiction would be remedied in the GA courts, not federal courts.
The easiest way to tell if water is under federal jurisdiction (thus deemed to fall under the Freedom of Navigation Act) or not is:
1. Is it regulated by the US Coast Guard?
2. Is it managed by the US Army Corps of Engineers? (which also puts it under USCG jurisdiction...whether they have a presence or not)
3. Does the US Fish & Wildlife Service maintain property along the river? (not definitive, but very indicative)
4. Do barges move cargo up/down the stream, or have they in the memory of any living person?
5. Are there locks on the waterway (operable or inoperable)?
Ok, ok. I confess. Riparian rights law is yet another of my areas of uncommon expertise. Yes, I just typed all of this off the top of my head without referring to anything. I've been in the boating to stuff business since I was a teenager in more states than most people have visited. And I don't like breaking the law. But I also don't like being run out of places I have a right to be just because I was too lazy to learn the realities governing my craft. And in the duck hunting business, this stuff takes on added meaning when everyone is carrying shotguns and you're boating in the dark in flooded river bottoms in the dead of winter. It's a darned good idea to know two things: where you are and what the rules are!
trouthound
Member
For a pretty good summary of Ga. law with case cites see:
http://nsglc.olemiss.edu/SandBar/SandBar3/3.1comment.htm
http://nsglc.olemiss.edu/SandBar/SandBar3/3.1comment.htm
kenmorrow
Senior Member
Good dig, trouthound! 
Throwback
Chief Big Taw
Here's the bottom line opinion of the author quote from the article with suggestions on how to fix this issue that trouthound posted.
T
T
MadDawg51
Senior Member
I couldn't disagree with him more. When a person purchases property, that person should have full authority and control over the property. Anything less is an invasion of government into personal rights.
Don't get me wrong in this. I enjoy floating and fishing the streams of GA. I appreciate those who allow me to float, fish, and even wade in streams on their property. I wish more would allow it. But, it is between me and the property owner. Government needs to stay out of that transaction.
kenmorrow
Senior Member
There is a difference between our personal/philosophical opinions and legal opinions. That article was a legal opinion written by a law student at Georgia State. It may not even be his/her own personal opinion. But it is based on their reading (research) of case law (evidence), and is a professional opinion - sort of like a doctor's diagnosis. It can be wrong, but it is based on rigorous disciplines of a profession and reviewed and critiqued according to those standards by their peers.
The point of the author about how the notion that property rights might be absolute is actually obsolete can be seen all around us. If you have an endangered species on your property, you may not be able to drain the pond, cut the trees down, etc. If you want to burn your woods, you usually have to get a burn permit from the government. And they may deny it to you. If you want to add on to your home, you may not be able to do so because of zoning laws. If you want to operate a business out of your home, you may not be able to because of zoning laws. These are only a FEW very common examples. So while we may romanticize a world in which private property rights and individual liberty trump all, we simply do not live in such a world...nor have we lived in such a world for over a century or more.
If you want to live in a world where individual liberty and private property rights are absolute, you have to live where there is no society - no law, no structure, no provision for common defense, disaster preparedness, public utilities, etc. You must be truly on your own and anyone else who comes along must be equally free to take from you whatever they are able. You must defend your own liberties. Then, and only then, are you truly free. That makes you an anarchist.
That is ultimately the point of what we call "specific limitations" on human rights and civil liberties. And it is where the word civil comes from in the phrase civil libertarianism.
bowbuck
Senior Member
While this thread became much deeper than the OP's original question the final answer that I have used as a flyfishing guide and employee of a flyfishing buisness for the last decade is this. If someone owns property on a bank of a stream they own to the middle of the river on the bottom, if they own both sides they own the entire bottom of the river. Standing in the river without permission is trespassing. As far as floating it, with the "commerical barge" traffic definition that pretty much rules out floating through private land without permission if someone doesn't want you too. This only comes into play when someone wants to protect the resources on their stretch of river such as trophy trout. If a land owner only has a weekend house such as on the lower Chattahoochee in Habersham, they don't seem to care if you fish or float through the river. On rivers such as the Toccoa River Tailwater, the TVA owns the bottom of the river so once you make access at a public park etc, you can fish as long as you wade. I have had lots of people written citations over the years for fishing without permission, some were honest mistakes the majority are folks that live in an apartment with rented furniture, drive a leased vehicle and think they are entitled to something in this world just because they are breathing. They have no concept of what it means to own a piece of property or the concept of private property rights cause they have never owned anything in their life. If anyone thinks it's wrong to own private trout water, just go ahead and pay several 100's of thousands to millions for a piece of property on the river, then spend $5000 dollars a year on fish to keep the fishing at a level that is worth the effort and then spend $30 plus dollars a bag on fish food and use several bags a week. Put that money out there and see how you feel about all your hard work and money walking off on a stringer to someone that feels entitled to what you have worked hard to achieve. Better yet put alot of the work in for free in an effort to put food on the table for your family and then watch your ability to provide for your family walk off on a stringer cause some jackwagon believes you can't tell him where he can or can not fish cause he's entitled. If you get your feathers ruffled just turn the whole scenario around and see how you would feel if I poached your biggest buck off your hunting club because I felt entitled to hunt on your land cause "all land should belong to the citzens". I'll step off the soap box for now.
MadDawg51
Senior Member
Ken, I think you need to read it again. It clearly states that is it his opinion in the opening. Most of the body addresses case law. But, it transitions to opinion in the paragraph that begins "Recreational boaters should be allowed down non-navigable rivers...." That is not from any case law. It is from a belief that society owns the rights to personal property. You state many instances of government transgression onto personal property. The fact that they do it does not make it right or acceptable.
We aren't likely to agree on this issue. And, that is OK with me. I just firmly believe that property rights should be absolute.
kenmorrow
Senior Member
But I can stand just downstream of your property line and cast my personally tied dry flies using my custom bamboo fly rod say...oh 70 feet or so into "your" river, achieve the perfect dead drift over your stocked, hand-fed trout, play them expertly to hand, and keep a legal limit - and there's not a darned thing you would do to try and stop me, right? After all, I too am just exercising my full legal rights as your next door neighbor. And we're all in this together on this little blue marble, right?
I agree with you that there is a certain disconnectedness that comes from urbanization and over-civilization which causes folks to have a hard time seeing things from the other fella's point of view - especially when that other point of view is that of the rural landowner, local residents, etc. in popular weekend recreational destinations. Then again, most city folk fly fishermen don't keep fish. Research shows that about 80% of stringers are purchased by rednecks and bait chuckers.
I thought the original poster had a great attitude about this issue, and simply wanted to make sure he wasn't stepping on anyone's toes or making the natives restless. But this is always a good learning opportunity topic for a whole lot of us. It usually takes on a life of its own.
