Public Access to Non-Navigable Rivers - Ideas for Change in Georgia: A Comment

Tripp Bridges, 3L

Tripp Bridges is a third-year law student at the University of Georgia School of Law in Athens, Georgia. The views expressed below are the author’s own. This article does not necessarily reflect the opinions and positions of the National Sea Grant Law Center and its affiliates.

Georgia is fortunate to have many rivers that can be used for recreational boating. Canoeing and kayaking are recreational activities enjoyed by many people in the state. These numbers will undoubtedly increase with the population growth of Atlanta and its suburbs. Generally canoeists have enjoyed relatively free access to many of Georgia’s larger rivers, however in recent years there have been some notable exceptions.

The following two cases exemplify the problems that the public has had in gaining access to some of Georgia’s non-navigable rivers. In Georgia Canoeing Assoc. v. Henry, 482 S.E.2d 298, 267 Ga. App. 814 (1997), the Court of Appeals affirmed the trial court’s opinion that the public did not have a right of passage down Armuchee Creek where it flowed through Mr. Henry’s land. The Georgia Canoeing Association was seeking to enjoin Mr. Henry from stopping free passage by the public down the river. In Givens v. Ichauway, Inc., 493 S.E.2d 148, 268 Ga. 710 (1997), the court found that the Ichauwaynochaway Creek was non-navigable, and therefore inaccessible to boaters, even though the appellant was able to navigate a small raft carrying two people, a goat, and a bale of cotton in attempts to prove navigability under the standard of commerce of the nineteenth century.

As illustrated by the aforementioned cases, current Georgia law does not allow a right of passage for the public down non-navigable rivers. According to O.C.G.A. § 44-8-2 the adjacent landowner owns the bed of a non-navigable river to the midpoint, and if the landowner owns both sides of the river, then ownership extends to the entire streambed. The same is true if the river is a boundary between properties; the landowners both own to the midpoint, and could join together and prohibit passage down the river.1 The legislature passed this law long before the start of any significant recreational boating in the region. This section of the code effectively prohibits the public from using many of Georgia’s scenic rivers. Consideration should be given to changing it to allow a right of through passage down non-navigable rivers.

At this time Georgia boaters only have a right of passage down navigable waters. Georgia’s definition of navigable is surprisingly restrictive. Under Georgia law, navigable streams are those “capable of transporting boats loaded with freight in the regular course of trade 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.”2 Few rivers in Georgia qualify under Georgia law as navigable due to the fact many barges are over 200 feet long, and few rivers would be able to support such boats.3 This restrictive definition precludes a right of passage on most of Georgia’s rivers, including the Chattooga, Chestatee, and Toccoa, which are frequently used for canoeing.

Remedies
Several legislative options are available to remedy this situation. The first option is to establish by statute the right of free passage down non-navigable rivers. The second option is to broaden Georgia’s definition of “navigable.” Thirdly, the state could condemn specific riverbeds for recreational use.

The first option, establishing a right of free passage down non-navigable rivers, may be the simplest answer to this problem. This option avoids the uncertainty of judicial interpretation of navigability, which would be required if Georgia’s definition of navigability was changed. When establishing a right of passage for the public on non-navigable rivers, the landowner would still retain ownership of the streambed. Boaters would simply obtain a statutory right to pass over it. This option would also avoid the costs of litigation and compensation involved with condemning the riverbeds.

One possible objection to this option is that establishing free right of passage may be considered an unconstitutional taking of property under the Fifth Amendment. A free passage mandate could be considered a taking because it precludes a landowner from excluding others from his property. It can be argued, however, that the landowner merely owns the streambed, and allowing the public to pass over the streambed in boats does not affect his ability to exclude the public from the streambed itself. Anchoring on the riverbed or walking on the bank would still be forms of trespassing. The passage of boaters on streams where the water flow is insufficient to allow passage without portage, could be avoided by allowing a right of passage to the public only on streams that had an average annual flow above a certain specified cubic feet per second.

The second option, changing Georgia’s definition of navigable rivers to be more inclusive, is also a viable alternative. The statutory definition could be amended to include streams capable of being used for canoeing. Another possibility is adoption of the federal standard of navigability, as set forth in United States v. Harrell, 926 F.2d 1036, 1039 (11th Cir. 1991), which depends on whether a river is used, or susceptible of being used, in its ordinary condition to transport commerce. Under this definition, the ability to commercially float logs is evidence of navigability. This standard is much more lenient than Georgia’s standard, which requires the ability to handle commercial barges. The federal standard would allow for more access to appropriate rivers, and avoid use on rivers that are clearly unfit for public use.

However, if Georgia changed its requirements for navigability to the federal standard, there would still be a large number of streams that are currently used for kayaking and canoeing, which would not qualify because they cannot support commercial log floating. Thus, Georgia should consider going beyond the federal standard to allow free access to rivers currently being used for boating.

The third option, condemning specific riverbeds for public recreational use, would be costly, but would avoid takings challenges. Besides the cost of the actual compensation, there could be large litigation costs as well because of disputes over the amount of compensation. One advantage to this course of action would be that if the state condemned the riverbed, then not only would a right of passage be allowed for boaters, but this would also open fishing rights on the river to the public.

Fishing in many of Georgia’s rivers and streams requires wading down the stream. This would not be allowed under a law merely providing a right of passage to the public because a person wading actually touches the streambed, which still belongs to the adjacent landowner. Condemnation of specific rivers that clearly support recreational boating for most of the year would alleviate the problem of opening up rivers with too low of a flow rate to support recreational boating.

Further measures could be instated to ensure that boaters only had access to appropriate waterways. Classifications by depth and width of the waterway as well as cubic feet per second flow could control which rivers were open to boaters. Also, distinctions could be made regarding non-impacting uses versus impacting uses. Non-impact uses would include recreational boating and possibly catch and release fishing. Impacting uses would include non-catch and release fishing, commercial activities, and other activities that would deplete the resources of the waterway.

Recreational boaters should be allowed down non-navigable rivers because the rivers are an important natural resource that should be available to the public, not just the adjacent land owners. The owners of the adjacent land do not actually own the water in the river, they own the bed of the stream. This ownership should not be enough to preclude boaters from passing over the streambed any more than airplanes should be barred from passing over private land.

The idea that property rights are absolute is obsolete. The laws of our state regarding public rights to rivers are based on common law from two centuries ago as well as the archaic views of feudal property. It is clear that the interests that need to be protected have changed. In order to better serve the citizens of the State of Georgia, the legislature should amend its laws regarding non-navigable rivers in order to unlock the natural resources that the citizens of Georgia value and have a right to use.

Endnotes
1. Ga. Code Ann. § 44-8-2 (2003).
2. Id. at § 44-8-5(a).
3. Givens, 493 S.E. 2d at 712.