Walkerdawg
Senior Member
This was sent to me by a friend.Thought some of you might find this interesting. I have see numerous discussions on this topic.
The below information was copied from a post dealing with the Chattahoochee River in Georgia and ownership. It is by Farris Cadle, an expert in Georgia property law and title research. He is also a Land Surveyor. He authors some required text books on the subject for classes in Georgia. I hope you find it as fascinating as I do. It deals with property ownership, rights, easements for both stream beds and roads.
I am dumbfounded that a discussion of this sort could take place among registered land surveyors. Every Georgia surveyor, as part of their basic education, should have acquired a knowledge of Florida Gravel Co. v. Capital City Sand & Gravel Co., 170 Ga. 855, 154 S.E. 255 (1930). This ruling relied on the two early cases Young v. Harrison, 6 Ga. 130 (1849) and Jones v. Water Lot Co., 18 Ga. 539 (1855), and was affirmed in Parker v. Durham, 258 Ga. 140, 365 S.E.2d 411 (1988).
The American (and Georgia) law of ownership of the beds of rivers and streams is derived from a confusion, by the American courts, of the English common law rule. The process by which this happened is complicated and I won’t get into it here. The basic rule in most eastern states, including Georgia, is if a body of water is tidal it is classified as navigable, and it presumptively belongs to the state to the mean high tide mark; if a body of water is nontidal it is classified as nonnavigable, and title to it is vested in the adjoining landowners, usually to the center or thread of the stream. If a nontidal river or stream is factually navigable, the public has an easement for transportation over it. “Factually navigable” means it is capable of supporting regular commercial freight-carrying transportation.
Florida Gravel Co. v. Capital City Sand & Gravel Co. involved the ownership of the bed of the Chattahoochee River adjacent to some fractional lots in the 14th District of Seminole County. This was before the existence of Lake Seminole. The Capital City Sand and Gravel Company, a Florida corporation, held a lease from the owner of the fractional lots, to dredge sand and gravel from the riverbed adjacent to the lots. The Florida Gravel Company, also a Florida corporation, obtained a lease from the State Mineral Leasing Commission to dredge sand and gravel in the same area. The Capital City Sand and Gravel Company, claiming its lessor owned the bed of the river, sought to enjoin the Florida Gravel Company from interfering with its lease. The legal issue was which lease was valid, which turned on the question of who owned the riverbed. The original state grants for the fractional lots called for “the Chattahoochee River” as their western boundary. The following is a quote from the court’s decision:
The issue involved in this case is whether the owners of lands adjacent to the east bank of the Chattahoochee River, south of [the 31st] parallel of latitude, have title to the soil between the low-water mark on the east side, and the middle of the stream. In Young v. Harrison, 6 Ga. 130, this court was dealing with the rights of riparian owners of land on the Chattahoochee River; and the particular question involved was whether the owners of lands abutting the Chattahoochee on the Georgia side were entitled to operate a public ferry for the transportation of travelers and others to and from Eufaula on the Alabama side of this stream, by reason of the fact of their ownership of the lands abutting the river on the Georgia side. The owners of the Georgia lands contended that they owned the soil under the Chattahoochee River to the west bank of that stream, and that in consequence of the ownership of these lands they were entitled to operate a public ferry across the same. It thus became necessary for this court to define the rights of the owners of land abutting upon a navigable stream, where the tide did not ebb and flow. This court held that rivers are of three kinds; that the first are such as are wholly and absolutely private property; that the second are such as are private property subject to the servitude of the public for passage over them, the distinguishing feature between these two being whether they are susceptible or not of use for a common passage; and that the third are rivers where the tide ebbs and flows…. In that case this court said: “It is not pretended that the Chattahoochee is at this point a navigable river, where the tide ebbs and flows; such is notoriously not the fact; it belongs to the second class … in the foregoing enumeration. Now, it is well settled in England, and the doctrine is pretty uniform in this country, that the proprietor of the land on the margin owns the bed over which the river passes; and though it be nominally and in terms bounded on the margin, it extends, by construction of law, to the middle of the stream. In this case [that is, in Young v. Harrison] it reaches to the opposite bank, that being the western boundary of the State. The public right is one of passage, and nothing more, as in a common highway; it is … 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.” In Jones v. Water Lot Co., 18 Ga. 539, this court was dealing with the rights of a grantee under a grant from the State to a lot bounded by the Chattahoochee River. In passing upon this question this court said that in Young v. Harrison … “this court held that grants of land bounded on rivers, above tide-water, or where the tide does not ebb and flow, carry the grantee to the middle of the river. And that in grants bounded by the Chattahoochee [and opposite Alabama], this riparian right extended to the opposite bank; that, and not the river itself, being the western boundary of Georgia.”….
So it has been plainly held by this court that the owners … of lands abutting on the Chattahoochee River north of parallel of latitude 31 are entitled to the soil under the river to the western bank thereof, and that the owners … of lands abutting on this stream south of said parallel of latitude are entitled to the soil under this stream to the middle or thread of the stream. So we are of the opinion that under these decisions of this court the complainant [the Capital City Sand and Gravel Company] is entitled to remove the sand and gravel from the fractional lot with which we have been dealing, and from the other lots similarly situated…. The principle embodied in section 3632 of the Code [now O.C.G.A. § 44-8-5] is not applicable under the facts of this case, that principle becoming the law of this State for the first time by adoption of the Code of 1863; and the same will not be construed to apply to grants of land by the State prior to the adoption of that code. In view of the former rulings of this court … we repeat in substance what was said by this court in Jones v. Water Lot Co. … that we see no reason to change or modify the rulings in the previous decisions of this court.
[end of quote]
Along the portion of the Chattahoochee River that lies between Georgia and Alabama, the boundary between the two states is the high water mark on the western bank of the river. The courts have ruled that a grant by Georgia for lands on the eastern bank of the river in this area extends, by construction, to the western bank of the river. In addition to the cases listed above, see Howard v. Ingersoll, 54 U.S. (13 How.) 381, 14 L.Ed. 189 (1851) and Alabama v. Georgia, 64 U.S. (23 How.) 505, 16 L.Ed. 556 (1859). South of the 31st parallel, the center of the Chattahoochee is the boundary between Georgia and Florida, and grants by Georgia in this area extend to the center of the river. Of course, the entire area south of the 31st parallel is now covered by Lake Seminole.
For some secondary sources stating that private ownership of rivers and streams above the ebb and flow of the tides extends to the center of the river or stream (or to the west bank of the Chattahoochee opposite Alabama) see Pindar, Georgia Real Estate Law, § 6-10, and Opinions of the Attorney General of Georgia, Unofficial Opinion No. U71-139.
I don’t go along with the analogy that, because you can’t put up a fence within a road or river without suffering consequences, you should exclude the road or river from the survey. In a survey the surveyor is supposed to include what the owner owns, even if part or all of it is encumbered with an easement or something. In most cases in which a parcel of land is bounded by a street or road, the owner of the parcel owns to the centerline of the street or road, subject to the public right of easement. In my personal practice it is somewhat arbitrary as to whether I include or exclude a road right of way in a survey of an adjoining parcel of land in which the owner of the parcel also owns to the centerline of the road. Generally, if it is an engineered road, I exclude it. If it is not an engineered road, I include it. A road right of way is not likely to be used for any purpose other than a road, so in most cases it has no personal value to the adjoining owner unless it becomes abandoned.
A riverbed owned by the adjacent landowner often DOES have advantages for that landowner. Four examples are in the cases cited above. In one it was ruled the owner had the exclusive right to the sand and gravel in the riverbed, and the right to lease those mineral rights. In another it was ruled the owner had the right to maintain a ferry. In another (Howard v. Ingersoll) it was ruled the owner had the right to dam up the river at Columbus. In another (Parker v. Durham) a private fishing club held a lease from the adjacent landowner for a slew of the Altamaha River. It instigated a suit in which the court enjoined the defendants, who were not members of the fishing club, from fishing in the area. In each of these cases the landowner adjoining the river would have had a difficult time contending they owned the riverbed if they had accepted a plat from a surveyor showing their boundary as the edge of the river.
In my title research work I have considerable dealings with the issue of marsh and beach ownership along the Georgia coast. Much of the value of property abutting rivers and marshes where I live is tied up in the river view or marsh view, regardless of who owns the river or marsh. THE most frequent issue I am called on to research for litigation goes like this:
Someone owns land abutting a river or tidal marsh; a neighbor obtains a permit from the state to construct a private dock across the river or marsh, in front of the person's land; such an act can reduce the value of property by 50% or more; the person files a suit to enjoin the dock.
The only way the person can enjoin the dock is if they own the marsh or beach the dock is being built on. It doesn't take much imagination to see that if a surveyor made a plat of the private landowner's land showing the land stopping at the edge of the river or marsh, and the landowner accepted the plat in some way, he or she would have a much more difficult time claiming they owned beyond the edge of the river or marsh, and thereby would have a much more difficult time enjoining the dock.
The Chattahoochee River has been held to be factually navigable from Columbus southward to the Apalachicola River, and factually nonnavigable above Columbus. See Howard v. Ingersoll, 54 U.S. (13 How.) 381, 14 L.Ed. 189 (1851); In re Henry A. Stephens, 341 F.Supp. 1404 (N.D. Ga. 1965); United States v. Crow, Pope & Land Enterprises, 340 F.Supp. 25 (N.D. Ga. 1972), appeal dismissed 474 F.2d 200 (5th Cir. 1973); Atlanta School of Kayaking v. Douglasville-Douglas County Water & Sewer Authority, 981 F.Supp. 1469 (N.D. Ga. 1997). Whether it is factually navigable or factually nonnavigable does not affect the property rights in it as described above.
Matt, regarding your specific situation, the entire bed of the Chattahoochee River is almost certainly privately owned unless some private owner, subsequent to the original grants, deeded it to the state or to some other governmental agency. A title search should reveal if this has happened. If there is no such conveyance, and the deeds to the private landowners in the area where you are surveying leave gaps and/or overlaps, then it is the same situation as exists on dry land where such are the circumstances. It will be necessary to get boundary agreements or quitclaim deeds to fix the boundaries; unless the landowner you are surveying for wants to settle for what his or her deed calls for and there is no overlap with any of the nearby properties.
Regarding a river or stream that is privately owned and factually nonnavigable, if members of the public have used it on a regular basis for many years for fishing, recreational boating, kayaking, or anything else, the public may have acquired a prescriptive easement for such purposes, but this does not affect the ownership of the underlying fee.
Regarding “How does the surveyor draw the property lines across the river … Continuing along the same bearings of the northerly and southerly boundary lines, or perpendicular to the river banks?,” there are well-established rules for this. See Boardman v. Scott, 102 Ga. 404, 30 S.E. 982, 51 L.R.A. 178 (1897); Dorroh v. McCarthy, 265 Ga. 750, 462 S.E.2d 708 (1995); Pindar, Georgia Real Estate Law, § 13-11; Casner, ed., American Law of Property §§ 12, 27; Patton on Titles 1 § 128; 74 A.L.R. 618 (1931); 14 A.L.R.4th 1028 (1982).
For surveyors who work in the area, further information about the title to the bed of the Chattahoochee River adjacent to Columbus is in Muscogee Manufacturing Co. v. Eagle & Phenix Mills, 126 Ga. 210, 54 S.E. 1028, 7 L.R.A., N.S. 1139 (1906).
This has only touched the surface of these issues, but it should be enough for Matt’s situation. There is so much more, but I am burned out.
As an aside, in college, Florida Gravel Co. v. Capital City Sand & Gravel Co., 170 Ga. 855, 154 S.E. 255 (1930) was hammered into our heads by our professor. When I took the Georgia state surveying exam, there were two or three questions dealing with riparian boundaries which ignored all the Georgia decisions and seemed to based on a complete misunderstanding of O.C.G.A. §§ 44-8-2 to 44-8-8. The questions themselves were so broad that a brief answer to each would have been perhaps 500 to 1,000 pages of essay. Yet, for each, the exam provided four multiple-choice sentence fragments to choose from, none of which had anything to do with a correct answer. I didn't know what to do other than guess.
Jeff Stanley, RLS, CFM, GISP
Registered Land Surveyor
Certified Floodplain Manager
Geographic Information System Professional
City of Griffin GIS Department
P. O. Box T, 100 S. Hill St.
Griffin, GA 30224
770-412-9950 Ext. 2
The below information was copied from a post dealing with the Chattahoochee River in Georgia and ownership. It is by Farris Cadle, an expert in Georgia property law and title research. He is also a Land Surveyor. He authors some required text books on the subject for classes in Georgia. I hope you find it as fascinating as I do. It deals with property ownership, rights, easements for both stream beds and roads.
I am dumbfounded that a discussion of this sort could take place among registered land surveyors. Every Georgia surveyor, as part of their basic education, should have acquired a knowledge of Florida Gravel Co. v. Capital City Sand & Gravel Co., 170 Ga. 855, 154 S.E. 255 (1930). This ruling relied on the two early cases Young v. Harrison, 6 Ga. 130 (1849) and Jones v. Water Lot Co., 18 Ga. 539 (1855), and was affirmed in Parker v. Durham, 258 Ga. 140, 365 S.E.2d 411 (1988).
The American (and Georgia) law of ownership of the beds of rivers and streams is derived from a confusion, by the American courts, of the English common law rule. The process by which this happened is complicated and I won’t get into it here. The basic rule in most eastern states, including Georgia, is if a body of water is tidal it is classified as navigable, and it presumptively belongs to the state to the mean high tide mark; if a body of water is nontidal it is classified as nonnavigable, and title to it is vested in the adjoining landowners, usually to the center or thread of the stream. If a nontidal river or stream is factually navigable, the public has an easement for transportation over it. “Factually navigable” means it is capable of supporting regular commercial freight-carrying transportation.
Florida Gravel Co. v. Capital City Sand & Gravel Co. involved the ownership of the bed of the Chattahoochee River adjacent to some fractional lots in the 14th District of Seminole County. This was before the existence of Lake Seminole. The Capital City Sand and Gravel Company, a Florida corporation, held a lease from the owner of the fractional lots, to dredge sand and gravel from the riverbed adjacent to the lots. The Florida Gravel Company, also a Florida corporation, obtained a lease from the State Mineral Leasing Commission to dredge sand and gravel in the same area. The Capital City Sand and Gravel Company, claiming its lessor owned the bed of the river, sought to enjoin the Florida Gravel Company from interfering with its lease. The legal issue was which lease was valid, which turned on the question of who owned the riverbed. The original state grants for the fractional lots called for “the Chattahoochee River” as their western boundary. The following is a quote from the court’s decision:
The issue involved in this case is whether the owners of lands adjacent to the east bank of the Chattahoochee River, south of [the 31st] parallel of latitude, have title to the soil between the low-water mark on the east side, and the middle of the stream. In Young v. Harrison, 6 Ga. 130, this court was dealing with the rights of riparian owners of land on the Chattahoochee River; and the particular question involved was whether the owners of lands abutting the Chattahoochee on the Georgia side were entitled to operate a public ferry for the transportation of travelers and others to and from Eufaula on the Alabama side of this stream, by reason of the fact of their ownership of the lands abutting the river on the Georgia side. The owners of the Georgia lands contended that they owned the soil under the Chattahoochee River to the west bank of that stream, and that in consequence of the ownership of these lands they were entitled to operate a public ferry across the same. It thus became necessary for this court to define the rights of the owners of land abutting upon a navigable stream, where the tide did not ebb and flow. This court held that rivers are of three kinds; that the first are such as are wholly and absolutely private property; that the second are such as are private property subject to the servitude of the public for passage over them, the distinguishing feature between these two being whether they are susceptible or not of use for a common passage; and that the third are rivers where the tide ebbs and flows…. In that case this court said: “It is not pretended that the Chattahoochee is at this point a navigable river, where the tide ebbs and flows; such is notoriously not the fact; it belongs to the second class … in the foregoing enumeration. Now, it is well settled in England, and the doctrine is pretty uniform in this country, that the proprietor of the land on the margin owns the bed over which the river passes; and though it be nominally and in terms bounded on the margin, it extends, by construction of law, to the middle of the stream. In this case [that is, in Young v. Harrison] it reaches to the opposite bank, that being the western boundary of the State. The public right is one of passage, and nothing more, as in a common highway; it is … 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.” In Jones v. Water Lot Co., 18 Ga. 539, this court was dealing with the rights of a grantee under a grant from the State to a lot bounded by the Chattahoochee River. In passing upon this question this court said that in Young v. Harrison … “this court held that grants of land bounded on rivers, above tide-water, or where the tide does not ebb and flow, carry the grantee to the middle of the river. And that in grants bounded by the Chattahoochee [and opposite Alabama], this riparian right extended to the opposite bank; that, and not the river itself, being the western boundary of Georgia.”….
So it has been plainly held by this court that the owners … of lands abutting on the Chattahoochee River north of parallel of latitude 31 are entitled to the soil under the river to the western bank thereof, and that the owners … of lands abutting on this stream south of said parallel of latitude are entitled to the soil under this stream to the middle or thread of the stream. So we are of the opinion that under these decisions of this court the complainant [the Capital City Sand and Gravel Company] is entitled to remove the sand and gravel from the fractional lot with which we have been dealing, and from the other lots similarly situated…. The principle embodied in section 3632 of the Code [now O.C.G.A. § 44-8-5] is not applicable under the facts of this case, that principle becoming the law of this State for the first time by adoption of the Code of 1863; and the same will not be construed to apply to grants of land by the State prior to the adoption of that code. In view of the former rulings of this court … we repeat in substance what was said by this court in Jones v. Water Lot Co. … that we see no reason to change or modify the rulings in the previous decisions of this court.
[end of quote]
Along the portion of the Chattahoochee River that lies between Georgia and Alabama, the boundary between the two states is the high water mark on the western bank of the river. The courts have ruled that a grant by Georgia for lands on the eastern bank of the river in this area extends, by construction, to the western bank of the river. In addition to the cases listed above, see Howard v. Ingersoll, 54 U.S. (13 How.) 381, 14 L.Ed. 189 (1851) and Alabama v. Georgia, 64 U.S. (23 How.) 505, 16 L.Ed. 556 (1859). South of the 31st parallel, the center of the Chattahoochee is the boundary between Georgia and Florida, and grants by Georgia in this area extend to the center of the river. Of course, the entire area south of the 31st parallel is now covered by Lake Seminole.
For some secondary sources stating that private ownership of rivers and streams above the ebb and flow of the tides extends to the center of the river or stream (or to the west bank of the Chattahoochee opposite Alabama) see Pindar, Georgia Real Estate Law, § 6-10, and Opinions of the Attorney General of Georgia, Unofficial Opinion No. U71-139.
I don’t go along with the analogy that, because you can’t put up a fence within a road or river without suffering consequences, you should exclude the road or river from the survey. In a survey the surveyor is supposed to include what the owner owns, even if part or all of it is encumbered with an easement or something. In most cases in which a parcel of land is bounded by a street or road, the owner of the parcel owns to the centerline of the street or road, subject to the public right of easement. In my personal practice it is somewhat arbitrary as to whether I include or exclude a road right of way in a survey of an adjoining parcel of land in which the owner of the parcel also owns to the centerline of the road. Generally, if it is an engineered road, I exclude it. If it is not an engineered road, I include it. A road right of way is not likely to be used for any purpose other than a road, so in most cases it has no personal value to the adjoining owner unless it becomes abandoned.
A riverbed owned by the adjacent landowner often DOES have advantages for that landowner. Four examples are in the cases cited above. In one it was ruled the owner had the exclusive right to the sand and gravel in the riverbed, and the right to lease those mineral rights. In another it was ruled the owner had the right to maintain a ferry. In another (Howard v. Ingersoll) it was ruled the owner had the right to dam up the river at Columbus. In another (Parker v. Durham) a private fishing club held a lease from the adjacent landowner for a slew of the Altamaha River. It instigated a suit in which the court enjoined the defendants, who were not members of the fishing club, from fishing in the area. In each of these cases the landowner adjoining the river would have had a difficult time contending they owned the riverbed if they had accepted a plat from a surveyor showing their boundary as the edge of the river.
In my title research work I have considerable dealings with the issue of marsh and beach ownership along the Georgia coast. Much of the value of property abutting rivers and marshes where I live is tied up in the river view or marsh view, regardless of who owns the river or marsh. THE most frequent issue I am called on to research for litigation goes like this:
Someone owns land abutting a river or tidal marsh; a neighbor obtains a permit from the state to construct a private dock across the river or marsh, in front of the person's land; such an act can reduce the value of property by 50% or more; the person files a suit to enjoin the dock.
The only way the person can enjoin the dock is if they own the marsh or beach the dock is being built on. It doesn't take much imagination to see that if a surveyor made a plat of the private landowner's land showing the land stopping at the edge of the river or marsh, and the landowner accepted the plat in some way, he or she would have a much more difficult time claiming they owned beyond the edge of the river or marsh, and thereby would have a much more difficult time enjoining the dock.
The Chattahoochee River has been held to be factually navigable from Columbus southward to the Apalachicola River, and factually nonnavigable above Columbus. See Howard v. Ingersoll, 54 U.S. (13 How.) 381, 14 L.Ed. 189 (1851); In re Henry A. Stephens, 341 F.Supp. 1404 (N.D. Ga. 1965); United States v. Crow, Pope & Land Enterprises, 340 F.Supp. 25 (N.D. Ga. 1972), appeal dismissed 474 F.2d 200 (5th Cir. 1973); Atlanta School of Kayaking v. Douglasville-Douglas County Water & Sewer Authority, 981 F.Supp. 1469 (N.D. Ga. 1997). Whether it is factually navigable or factually nonnavigable does not affect the property rights in it as described above.
Matt, regarding your specific situation, the entire bed of the Chattahoochee River is almost certainly privately owned unless some private owner, subsequent to the original grants, deeded it to the state or to some other governmental agency. A title search should reveal if this has happened. If there is no such conveyance, and the deeds to the private landowners in the area where you are surveying leave gaps and/or overlaps, then it is the same situation as exists on dry land where such are the circumstances. It will be necessary to get boundary agreements or quitclaim deeds to fix the boundaries; unless the landowner you are surveying for wants to settle for what his or her deed calls for and there is no overlap with any of the nearby properties.
Regarding a river or stream that is privately owned and factually nonnavigable, if members of the public have used it on a regular basis for many years for fishing, recreational boating, kayaking, or anything else, the public may have acquired a prescriptive easement for such purposes, but this does not affect the ownership of the underlying fee.
Regarding “How does the surveyor draw the property lines across the river … Continuing along the same bearings of the northerly and southerly boundary lines, or perpendicular to the river banks?,” there are well-established rules for this. See Boardman v. Scott, 102 Ga. 404, 30 S.E. 982, 51 L.R.A. 178 (1897); Dorroh v. McCarthy, 265 Ga. 750, 462 S.E.2d 708 (1995); Pindar, Georgia Real Estate Law, § 13-11; Casner, ed., American Law of Property §§ 12, 27; Patton on Titles 1 § 128; 74 A.L.R. 618 (1931); 14 A.L.R.4th 1028 (1982).
For surveyors who work in the area, further information about the title to the bed of the Chattahoochee River adjacent to Columbus is in Muscogee Manufacturing Co. v. Eagle & Phenix Mills, 126 Ga. 210, 54 S.E. 1028, 7 L.R.A., N.S. 1139 (1906).
This has only touched the surface of these issues, but it should be enough for Matt’s situation. There is so much more, but I am burned out.
As an aside, in college, Florida Gravel Co. v. Capital City Sand & Gravel Co., 170 Ga. 855, 154 S.E. 255 (1930) was hammered into our heads by our professor. When I took the Georgia state surveying exam, there were two or three questions dealing with riparian boundaries which ignored all the Georgia decisions and seemed to based on a complete misunderstanding of O.C.G.A. §§ 44-8-2 to 44-8-8. The questions themselves were so broad that a brief answer to each would have been perhaps 500 to 1,000 pages of essay. Yet, for each, the exam provided four multiple-choice sentence fragments to choose from, none of which had anything to do with a correct answer. I didn't know what to do other than guess.
Jeff Stanley, RLS, CFM, GISP
Registered Land Surveyor
Certified Floodplain Manager
Geographic Information System Professional
City of Griffin GIS Department
P. O. Box T, 100 S. Hill St.
Griffin, GA 30224
770-412-9950 Ext. 2
