# Legal use of kayak



## Jody Hawk (May 29, 2011)

I grew up fishing the Alcovy River in Walton and Newton Counties. Now I don't know anyone who has private land that would give me access to the spots I grew up fishing. Would it be legal to float the river as long as I stay on the water? What's the laws regarding floating streams?


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## Wishin I was Fishin (May 29, 2011)

Let me know what you find out Jody. I've been wanting to get out there but the only way i've figured I could is to have someone drop me off at a bridge and pick me up at a different one later since there are no parking spots or designated put ins (that I know of), and like you I don't know anyone with land on the river.


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## Jody Hawk (May 29, 2011)

Wishin I was Fishin said:


> I've been wanting to get out there but the only way i've figured I could is to have someone drop me off at a bridge and pick me up at a different one later since there are no parking spots or designated put ins (that I know of), and like you I don't know anyone with land on the river.



That was my intentions as well. Of course, I want to make sure I wouldn't be trespassing.


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## T.P. (May 29, 2011)

Jody & Wishin, take this for what it is, but this is what I have always been told.

http://www.georgiariverfishing.com/GAarticles/WhoOwnsRiver.htm


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## gregg dudley (Jun 5, 2011)

That's crazy!

Down here it is generally assumed that the normal high water mark is the boundary line and that public access is open to that point.

I thought number 11 in the link below was interesting regarding Ga interpretation.

http://www.nationalrivers.org/states/fl-menu.htm#law.htm


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## Twenty five ought six (Jun 6, 2011)

Jody Hawk said:


> I grew up fishing the Alcovy River in Walton and Newton Counties. Now I don't know anyone who has private land that would give me access to the spots I grew up fishing. Would it be legal to float the river as long as I stay on the water? What's the laws regarding floating streams?




The adjoining landowners to the river control the right of passage.   If one landowner owns both sides, he can block passage, or if two different landowners  agree to block passage, they can do so (they don't have to physically block, although they can).

It may be that through custom and long practice the landowners don't care, but that doesn't change the legal status.

This point is well settled, and there is no magic formula around it.




> Jody & Wishin, take this for what it is, but this is what I have always been told.
> 
> http://www.georgiariverfishing.com/G...oOwnsRiver.htm



BTW, I don't want to pick a fight with the people at GaRiverfishing, but I personally know of more than a "couple" of incidents where landowners have blocked passage, and had people arrested.  To downplay the consequences is rather irresponsible in my opinion.


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## JustUs4All (Jun 6, 2011)

Another point, if it is not posted and you have not been warned off the stream, you can be there.  

I don't want to pick a fight with the people at GaRiverfishing either, but the landowner's presence has nothing to do with it.  If it is posted, it is posted whether or not the landowner is there.


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## Twenty five ought six (Jun 6, 2011)

JustUs4All said:


> Another point, if it is not posted and you have not been warned off the stream, you can be there.



Not true.

All land in Georgia is posted by operation  of law.

You can "be there" -- even though you are trespassing, you can't be arresting for trespassing, but once warned, you can't be there agai

What's  confusing is that probably 95% of the river miles in Georgia, you can float through without anyone saying anything -- so a lot  of people assume it's "O.K."  That leads them to generalize and to believe that's it's "o.k." everywhere, and it's not.


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## Arrow3 (Jun 6, 2011)

Twenty five ought six said:


> The adjoining landowners to the river control the right of passage.   If one landowner owns both sides, he can block passage, or if two different landowners  agree to block passage, they can do so (they don't have to physically block, although they can).
> 
> It may be that through custom and long practice the landowners don't care, but that doesn't change the legal status.
> 
> ...



I called the DNR about this and they told me that noone could block passage even if they owned both sides of the river/stream...They told me that they could deny fishing but if they did just keep moving untill you were clearly off of their property line.


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## JustUs4All (Jun 6, 2011)

Twenty five ought six said:


> Not true.
> 
> All land in Georgia is posted by operation  of law.
> 
> ...



25 06, I will need to see that law that says all land in Georgia is posted by operation of law and that one is trespassing without notice.  

The trespassing statute gives a pretty good definition of trespassing and requires notice by either signage or personal notification unless the person is on the land of another for an illegal purpose or causes damage while there.


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## Twenty five ought six (Jun 6, 2011)

Arrow3 said:


> I called the DNR about this and they told me that noone could block passage even if they owned both sides of the river/stream...They told me that they could deny fishing but if they did just keep moving untill you were clearly off of their property line.



Yeah, they were wrong.  What can I say. Won't be the first time, doubt it will be the last time.

The Supreme Court of Georgia says different.  If I had to choose between what the Supreme Court of Georgia, and what someone answering the phone  at DNR says, I'm going to go with the Supreme Court every time.  YMMV.



> It also declared that the owner of a nonnavigable stream has the right  to_ exclusive possession_ of it.  See OCGA § 44-8-3 (Code of 1863, §  2210).  Thus, under that Code, no servitude of public passage is imposed  upon a stream unless it is navigable under the Code.Givens v. Ichauway, Inc., 493 S.E.2d 148, 268 Ga. 710 (Ga., 1997)





> Ichauway holds a lease to the land on both sides of the creek and  _therefore has the right to exclude others from the creek _unless the  stream is navigable or some servitude exists.  See OCGA §§ 44-8-3,  44-8-5(b); (I'm assuming that is in plain enough language that I don't need to break it down further)






> After a hearing on the question of permanent injunctive relief, 1 the trial court entered an order, concluding that Armuchee Creek was not a navigable stream  within the meaning of relevant definitions under the federal law, the  common law, or Georgia statutes.  The trial court also ruled that the  public had not acquired a right of passage by prescription.  The trial  court therefore permanently restrained GCA from traveling on Armuchee  Creek where it passes through Henry's property.  GCA has filed this  appeal.
> 
> First, the evidence supports a finding that Armuchee Creek, where it  [267 Ga. 815] passes through Henry's property, is not susceptible of  carrying useful commerce between states in its natural and ordinary  condition and is thus not a navigable stream within the meaning of federal law. 2  Moreover, without deciding whether the definition of navigability set forth in OCGA § 44-8-5(a), 3 by its express terms or by necessary implication, effected a change in the common law definition of navigability, 4 we conclude that the record supports a determination that the portion of Armuchee Creek at issue in this case is not a navigable stream under § 44-8-5(a) or the common law. 5   Finally, we conclude that the public has not acquired a right of  passage on Armuchee Creek either by prescription or under Section 17 of  Ga.Laws, 1830, p. 127.  For the foregoing reasons, we affirm.Georgia Canoeing Edited to Remove Profanity ----Edited to Remove Profanity ----Edited to Remove Profanity ----'n v. Henry, 482 S.E.2d 298, 267 Ga. 814 (Ga., 1997) (The Georgia Canoeing Assoc. was represented by Bobby Lee Cook, who could change the law if anyone could)




You might also review this thread, where a land owner block access to the Toccoa River, until an agreement was reached with the USFS. In this particular case, the landowner put up a cable across the Toccoa River,and it remained there until the an accommodation was reached with the landowner.  http://www.georgia-outdoors.com/forum/showthread.php?t=37389&highlight=Toccoa+Canoe+trail


Likewise, you might check with the folks at Brigadoon on the Sogue River, and ask them what is their spin on you floating through.

I don't agree with the law, and it's clearly set up to cause more conflict, but as to the "navigability" of most rivers and streams in Georgia, the legal principals are well established and supported by 150 years of precedent.  Seriously, don't be getting legal advice from DNR, unless you're prepared for the consequences of them being wrong.


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## Twenty five ought six (Jun 6, 2011)

JustUs4All said:


> 25 06, I will need to see that law that says all land in Georgia is posted by operation of law and that one is trespassing without notice.
> 
> The trespassing statute gives a pretty good definition of trespassing and requires notice by either signage or personal notification unless the person is on the land of another for an illegal purpose or causes damage while there.




It requires personal notice before you can be charged with trespassing.  Prior to receiving personal notice (and the nature of the notice is sort of up in the air), the matter really is one of personal tolerance for being cussed out, and run off a piece of property either by the landowner of LEO.

You still are trespassing-- a status which primarily has to do with certain civil rights and remedies.

The status of being a Trespasser is not exclusively a criminal matter.


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## Arrow3 (Jun 6, 2011)

I thought we were talking about navigatable streams? Those that you have listed in red talk about non-navigatable streams....


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## JustUs4All (Jun 7, 2011)

Twenty five ought six said:


> It requires personal notice before you can be charged with trespassing.  Prior to receiving personal notice (and the nature of the notice is sort of up in the air), the matter really is one of personal tolerance for being cussed out, and run off a piece of property either by the landowner of LEO.
> 
> You still are trespassing-- a status which primarily has to do with certain civil rights and remedies.
> 
> The status of being a Trespasser is not exclusively a criminal matter.




OK, I agree that with very few exceptions any entry without permission is a common law civil trespass and is actionable as a tort.  However, I have never heard of a civil remedy being provided for a common law trespass by foot or by boat that did not also meet the definition of a civil trespass.


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## FX Jenkins (Jun 7, 2011)

Arrow3 said:


> I thought we were talking about navigatable streams? Those that you have listed in red talk about non-navigatable streams....



I concur....the references  above specifically say "nonnavigable"  and "unless navigable"  .  I also believe blocking access and blocking passage are two different terms...and that I am fulfilling the requirement of being useful commerce when I purchase a fishing license, therefore, If you can float it, and don't anchor, or get out and stand on the bottom, your legal, is the way I've always heard this issue interpreted.


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## j_seph (Jun 7, 2011)

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 authorâ€™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 Georgiaâ€™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 Georgiaâ€™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 courtâ€™s opinion that the public did not have a right of passage down Armuchee Creek where it flowed through Mr. Henryâ€™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 Georgiaâ€™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. Georgiaâ€™s definition of navigable is surprisingly restrictive. Under Georgia law, navigable streams are those â€œcapable 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.â€�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 Georgiaâ€™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 Georgiaâ€™s definition of â€œnavigable.â€� 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 Georgiaâ€™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 Georgiaâ€™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 Georgiaâ€™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 Georgiaâ€™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.


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## j_seph (Jun 7, 2011)

FX Jenkins said:


> I concur....the references above specifically say "nonnavigable" and "unless navigable" . I also believe blocking access and blocking passage are two different terms...and that I am fulfilling the requirement of being useful commerce when I purchase a fishing license, therefore, If you can float it, and don't anchor, or get out and stand on the bottom, your legal, is the way I've always heard this issue interpreted.


 (a) As used in this chapter, the term "navigable stream" means a stream which is 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.

(b) The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.


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## FX Jenkins (Jun 7, 2011)

j_seph said:


> (a) As used in this chapter, the term "navigable stream" means a stream which is 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.
> 
> (b) The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.



I got you as I read your very informative post...  Seems this whole issue is based on the legal definition of Navigable...  

This would be my position in court anyway, I, as a fishing license holder, qualify as supporting useful commerce, ..it may not fly...but that would be my pleading.

I actually think that would be a pretty good argument, recreational fishing does support local commerce. Even recreational boating supports local commerce as the author suggests in the next to last paragraph.


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## Wild Turkey (Jun 7, 2011)

The DNR and GaEPD view the waters under their definition of State Waters which include all perinneal, intermittent streams and rivers. State waters cannot be altered without a permit from the EPD. Their jurisdiction does not extend to boating on state waters. That is another matter completely. Waters can also be jurisdictional to the Army Corps of Engineers. Again, alteration of federal waters and wetlands require a federal permit but do not extend to boating etc.


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## Randy (Jun 7, 2011)

FX Jenkins said:


> I got you as I read your very informative post...  Seems this whole issue is based on the legal definition of Navigable...
> 
> This would be my position in court anyway, I, as a fishing license holder, qualify as supporting useful commerce, ..it may not fly...but that would be my pleading.
> 
> ...


That argument has already been tried and defeated in court here.  And the really sad part is the definition on "navigable" has also been tried twice.  It was upheld by the courts in one case and defeated in another case.  Even the states courts can not agree.  The chance of getting this term redefined is slim to none.  The best we can do is show respect when on another's land or water and hope they continue to let us use it.


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## j_seph (Jun 7, 2011)

Wild Turkey said:


> The DNR and GaEPD view the waters under their definition of State Waters which include all perinneal, intermittent streams and rivers. State waters cannot be altered without a permit from the EPD. Their jurisdiction does not extend to boating on state waters. That is another matter completely. Waters can also be jurisdictional to the Army Corps of Engineers. Again, alteration of federal waters and wetlands require a federal permit but do not extend to boating etc.


You sound like a Civil Engineer, or an Enviromental Compliance associate. Also some ponds are considered state waters as I just found out on a job I am working on


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## Twenty five ought six (Jun 7, 2011)

Arrow3 said:


> I thought we were talking about navigatable streams? Those that you have listed in red talk about non-navigatable streams....



Why would you think that.  The question was about the Alcovy River which is non-navigable from beginning to end.



FX Jenkins said:


> I concur....the references  above specifically say "nonnavigable"  and "unless navigable"  .  I also believe blocking access and blocking passage are two different terms...and that I am fulfilling the requirement of being useful commerce when I purchase a fishing license, therefore, If you can float it, and don't anchor, or get out and stand on the bottom, your legal, is the way I've always heard this issue interpreted.



Again, the Supreme Court disagrees.  Whether a river is navigable is defined in terms of 19th century sailing ships and early steam boats.  There are only a half dozen of so navigable rivers in Georgia, and with one exception that I know of, they all are below the fall line.   

A lot of people (including me) want the law to be different, so you get what I call the "magic talismans' --don't anchor, don't hang a hand over the side, don't stand on the bottom -- and they are all wrong-- the Supreme Court has pretty conclusively defined the rights of landowners.


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## Twenty five ought six (Jun 7, 2011)

Twenty five ought six said:


> It requires personal notice before you can be charged with trespassing.  Prior to receiving personal notice (and the nature of the notice is sort of up in the air), the matter really is one of personal tolerance for being cussed out, and run off a piece of property either by the landowner of LEO.
> 
> You still are trespassing-- a status which primarily has to do with certain civil rights and remedies.
> 
> The status of being a Trespasser is not exclusively a criminal matter.





JustUs4All said:


> OK, I agree that with very few exceptions any entry without permission is a common law civil trespass and is actionable as a tort.  However, I have never heard of a civil remedy being provided for a common law trespass by foot or by boat that did not also meet the definition of a civil trespass.




Actually I was thinking more along the lines of what duties a landowner has toward a trespasser, and remedies a trespasser may have against the landowner for injury.


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## scoggins (Sep 19, 2011)

Any body ever tried floating the Ichawaynochaway creek from Elmodel on to the flint??



Tell the class how that worked out if you have ...


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## Randy (Sep 19, 2011)

scoggins said:


> Any body ever tried floating the Ichawaynochaway creek from Elmodel on to the flint??
> 
> 
> 
> Tell the class how that worked out if you have ...


That is one of the streams that was taken to court.


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## scoggins (Sep 19, 2011)

how did it turn out


I grew up near there and it was a BIG deal 10-15 years ago

never heard the out come


i knew one of the managers of Itchaway Plantation which got me in more places than the average person could go


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## Randy (Sep 19, 2011)

In 1997 the Georgia Supreme Court for the Ichiaway non-navigable.


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## GunnSmokeer (Sep 20, 2011)

*great thread*

This is a very informative thread.

J_seph, thanks for finding that law journal article.

I think the definition of "navigable" needs to be expanded, but then not every little stream that will float my kayak should qualify.  If somebody wants privacy and solitude in their wilderness retreat, and there's a 10-foot wide stream passing through the property that's only a foot deep, I think they should have the right to say "no floating or paddling."

But for bigger rivers where water recreation is important, fully expected (despite the current trespass issues), and harmless, they should be navigable and open to passing-thru vessels both powered and unpowered.

P.S.  We probably need tort reform and a very clear legislative statement on what duty of care is owed by landowners to the paddlers.  No duty of rescue. Paddlers bear risk of all hazards, seen and unseen. No duty of landowners to warn people of hazards (though I think they should, if a low-head dam or weir is coming up....).


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## fishndoc (Sep 20, 2011)

What we "want", and the way we think the law "should be" doesn't really matter at all;
the fact is that many/most of the time when we are paddling on streams in GA, we are _guests_ on someone else's property.  
The best action we can take is to act like grateful guests, and treat the property with respect, and speak up when we see someone else abusing the privilege.


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## Backlasher82 (Sep 20, 2011)

fishndoc said:


> What we "want", and the way we think the law "should be" doesn't really matter at all;
> the fact is that many/most of the time when we are paddling on streams in GA, we are _guests_ on someone else's property.
> The best action we can take is to act like grateful guests, and treat the property with respect, and speak up when we see someone else abusing the privilege.



Very well put!


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## Georgia Hard Hunter (Sep 21, 2011)

fishndoc said:


> what we "want", and the way we think the law "should be" doesn't really matter at all;
> the fact is that many/most of the time when we are paddling on streams in ga, we are _guests_ on someone else's property.
> The best action we can take is to act like grateful guests, and treat the property with respect, and speak up when we see someone else abusing the privilege.



applause!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!


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## kenmorrow (Sep 21, 2011)

Twenty five ought six said:


> Again, the Supreme Court disagrees.  Whether a river is navigable is defined in terms of 19th century sailing ships and early steam boats.  There are only a half dozen of so navigable rivers in Georgia, and with one exception that I know of, they all are below the fall line.



This is simply not accurate.  For starters, it apparently fails to take into account all of coastal GA's rivers.  There are far more than "a half dozen" that have historically been used for commercial navigation for well more than a century.  Try three centuries.  Second, it fails to account for the federal Freedom of Navigation Act, which covers ALL navigable waterways under federal jurisdiction.  This includes all waters under management of the USFWS, USACE, NPS, BLM, or patrolled by the USN or USCG that are not restricted by federal regulation for security/safety reasons.  The FONA trumps state laws restricting navigation of waterways, both riparian and littoral when they meet these criteria.  It allows even recreational use of said waterways up to the historical mean high water mark, including wading, swimming, walking along an exposed bank, portaging of small boats, fishing, camping, hunting, and so forth...so long as the activity is otherwise legal in that area.  In other words, private property rights do NOT extend below the historical mean high water mark even if the property line does.  A violation of the FONA is a violation of someone's constitutional right to freedom of movement on public property if you try to detain them or forcibly remove them.  If you attempt to restrict access by means of posting or creating barriers, that is a civil matter which has pretty stiff fines.

Of course, none of this applies to non-navigable waterways.


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## JustUs4All (Sep 21, 2011)

kenmorrow said:


> Of course, none of this applies to non-navigable waterways.



And therin lies the rub.  Federal Law nearly always uses local law for the definitions.  Please give us your version of the legal definition of navigable waterway for Georgia.


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## kenmorrow (Sep 21, 2011)

JustUs4All said:


> And therin lies the rub.  Federal Law nearly always uses local law for the definitions.  Please give us your version of the legal definition of navigable waterway for Georgia.



You're missing the point of the federal FONA.  It _only_ applies to waters the feds have ruled navigable waterways.  There is actually a published list for the entire USA.  But it most definitely includes in that definition ALL waterways (littoral or riparian) where the USACE or USCG claims jurisdiction.  That is a very sweeping definition right there...far more so than most folks would think.  Let me give you an example...

In order to put people in any boat and take their money for any  reason whatsoever you must have a USCG license to carry passengers if you operate in waters where they claim jurisdiction.  Well, they claim jurisdiction on ALL waters where the USACE asserts jurisdiction.  The appropriate license for most small boats like fishing boats, the boats used for duck hunting, etc. is the OUPV-6 (Six Pack) license.  This why many guides go by the title "Captain."  They are licensed USCG Captains under the OUPV-6.

Well, in several places around the country over the past 10 years or so, various guides associations and insurance companies have complained to the USCG about unlicensed guides operating on waters such as Corps lakes, on tailwaters below Corps dams, or way up in the Potomac River, Mississippi River, and others.  You see, virtually all insurance policies contain what is called a "felony acts" clause that states that no benefits will be paid if a loss occurs during the commission of a felony.  Well, operating a vessel for hire in USCG jurisdiction waters without a license is a felony.  Thus, these guides...even if they pay for insurance...are uninsured.  Filing a claim is insurance fraud.  Advertising that they are insured is fraud.  Advertising that they are "licensed and insured" if they have a state guide license and insurance but no Six Pack from the USCG is fraud.  So the USCG...even though they never patrolled these waters and had no office for hundreds of miles...sent undercover agents into the areas and started busting these unlicensed guides.  The cases stuck.  In other words, their jurisdiction was upheld.

There have been several FONA cases tried in federal courts over the years as well.  Legal precedent is well established.

_But it does not apply to any sort of waterway where there is no federal jurisdiction._  It's totally irrelevant.  Here's a hypothetical of how this would play out in GA...

Let's assume for the sake of argument that the state of GA considered the Ogeechee non-navigable (which it does not).  The Ogeechee has a confluence with the Caloosahatchee, which flows for a long way through Ft. Stewart.  The Ogeechee also bisects a small portion of Ft. Stewart.  Now assume two landowners across the river from one another downstream of Ft. Stewart decided to build a fence across the river and block navigation.  Before the modern age of aviation and Interstate highways, that would have been a grave impediment to national security!  In the eyes of the military, it is still a national security concern at the contingency planning and training levels.  Since the Ogeechee has been used commercially and for military transport for centuries in this stretch, the feds would spring into action and declare it navigable.  This is a major part of what got the ball rolling with the FONA, but it also had a whole lot to do with commercial and recreational use.  When all of the Corps dams were being proposed to build the nation's power grid and control flooding from the time of the Great Depression through the 1950s, they were largely sold to the general public on the value of commerce and increased recreational opportunities.  FONA is what made that possible in many states.

GA's landowners can squabble all they want to about who can float by or walk down the bank below the high water mark on "their" river, but if it is below a Corps dam (for example) they can't legally do squat about it without ending up in FEDERAL court...where the stakes are much higher.


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## kenmorrow (Sep 21, 2011)

FYI, this isn't "theory" for me.  I have put this into real life practice several times and in a few different states with different riparian rights laws.  I have never lost.  But I darned well have my ducks in a row before I challenge a landowner, too!

99% of the time, I have no problem getting permission from private landowners to peaceably trespass their property for recreational use.  But now and then there is that weird knucklehead...usually some outsider who moves in from a big city somewhere...who thinks they can run everyone off the river.  If it is a navigable waterway, I simply refuse to let them do that.


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## Vernon Holt (Sep 21, 2011)

kenmorrow said:


> "*Let's assume for the sake of argument that the state of GA considered the Ogeechee non-navigable (which it does not). The Ogeechee has a confluence with the Caloosahatchee, which flows for a long way through Ft. Stewart." *


.

Ken:  Your credibility and that of your argument suffers greatly when you refer to a river which does not even exist in the state of GA.

A little research on your part will show that it is the Canoochee River that flows through Ft. Stewart.


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## JustUs4All (Sep 21, 2011)

kenmorrow said:


> You're missing the point of the federal FONA.  It _only_ applies to waters the feds have ruled navigable waterways.  There is actually a published list for the entire USA.  But it most definitely includes in that definition ALL waterways (littoral or riparian) where the USACE or USCG claims jurisdiction.  That is a very sweeping definition right there...far more so than most folks would think.



Your parenthetical expression saves this statement.  I agree that littoral and riparian waters are covered.  However ---
14-USC-2 gives the USCG jurisdiction to enforce Federal law on, over, and under the 8 foot wide creek on my farm but this does not give the federal government the right to dictate who might come onto it.


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## Jethro Bodine (Sep 21, 2011)

I think the best thing to do is be gracious guests.  The land owners should have rights too since they own the place.  You guys may be treading lightly, but there very well could be some joker with a mullet tossing natural light bottles everywhere.  I just feel like saying hi and asking politely would be better then going straight to court over something that seems well defined already.


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## kenmorrow (Sep 21, 2011)

Vernon Holt said:


> .
> 
> Ken:  Your credibility and that of your argument suffers greatly when you refer to a river which does not even exist in the state of GA.
> 
> A little research on your part will show that it is the Canoochee River that flows through Ft. Stewart.



Good point!  One of the perils of living at Ft. Stewart and doing a lot of fishing in SW FL.  Thanks for the correction.


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## kenmorrow (Sep 21, 2011)

JustUs4All said:


> Your parenthetical expression saves this statement.  I agree that littoral and riparian waters are covered.  However ---
> 14-USC-2 gives the USCG jurisdiction to enforce Federal law on, over, and under the 8 foot wide creek on my farm but this does not give the federal government the right to dictate who might come onto it.



Does the Corps have a dam on your creek?  Is there a ship lock on your creek?  Do little bitty barges go up/down your creek?  Does the Coast Guard patrol your creek?  Is there any sort of Dept of Homeland Security or Dept of Defense facility on your creek upstream of you?  If the answers to these questions are "no," then you don't have a navigable creek as far as the feds are concerned.


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## Backlasher82 (Sep 22, 2011)

kenmorrow said:


> Does the Corps have a dam on your creek?  Is there a ship lock on your creek?  Do little bitty barges go up/down your creek?  Does the Coast Guard patrol your creek?  Is there any sort of Dept of Homeland Security or Dept of Defense facility on your creek upstream of you?  If the answers to these questions are "no," then you don't have a navigable creek as far as the feds are concerned.



Taking all of your sarcasm into consideration, along with the misdirection of your other posts, the bottom line is that there are VERY few GA waters that meet the navigable waters guidelines and most of those are close to the coast where barge traffic is viable.

Alcovy River, which is the subject of this thread, does not fall into the navigable waters category and most of the rivers, creeks and stream in GA don't either. 

Common courtesy and respect for landowners property rights will go a long way toward gaining and retaining fishing privileges. Going onto a man's land and trying to tell him you have a right to be there will result in more and more loss of fishing waters. 

People, try to put yourselves in that man's shoes and think how you would react if someone came on your property with a belligerent attitude. Think things might get unpleasant?

Now, think how you would react to a polite fisherman who acknowledges he is a guest on your property and appreciates that fact.


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## Dr. Strangelove (Sep 22, 2011)

As someone from NC who lived in FL and is back, GA laws regarding stream access are antiquated, date from the 1800's, and heavily favor landowners (no surprise here).

The laws of the states I've lived in favor public use of waterways, indeed, they are owned by the state. You may not cross private land to access water, but if in it, you may do as you please within the laws of the state , as long as you cause no harm to the adjacent landowner.

I'm not gonna argue with a shotgun, as the saying goes, but point one at me and I've got enough lawyer friends that we'll be having the next discussion in a court of law...

I understand why some folks want to limit access due to folks trashing the river, but it can't limit legitimate use of public waterways by responsible people.


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## JustUs4All (Sep 22, 2011)

And that would also be true for about  99% of all waterways in Georgia.


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## kenmorrow (Sep 22, 2011)

Backlasher82 said:


> Taking all of your sarcasm into consideration, along with the misdirection of your other posts, the bottom line is that there are VERY few GA waters that meet the navigable waters guidelines and most of those are close to the coast where barge traffic is viable.
> 
> Alcovy River, which is the subject of this thread, does not fall into the navigable waters category and most of the rivers, creeks and stream in GA don't either.
> 
> ...



Yes.  I simply pointed out ONE inaccurate remark in a previous post from someone and explained the impact of the FONA.  That's all.  And while coastal GA may only be a relatively small portion of the state in square miles, it contains the preponderance of the rivers, creeks, and streams.  Most of the state drains into the coastal region, which is about 100 miles of coastal estuary, marsh land, and forested swamps extending inland for about 40 miles; the easternmost 15 or so miles of which is all coastal salt marsh and barrier islands literally zig-zagging with historically navigable rivers and creeks.


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## zedex (Sep 22, 2011)

Does any of this really matter? Give Wal-Mart and OBammy a little time and you can buy time shares on any river, stream or ocean. 

 All you got to do is ride over to the nearest Walmart, buy your license, your gear and your timeshares.












 Don't you just love a little sarcasim??


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## Throwback (Sep 23, 2011)

Arrow3 said:


> I called the DNR about this and they told me that noone could block passage even if they owned both sides of the river/stream...They told me that they could deny fishing but if they did just keep moving untill you were clearly off of their property line.



you talked to the wrong person. 


T


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## Throwback (Sep 23, 2011)

Jody Hawk said:


> I grew up fishing the Alcovy River in Walton and Newton Counties. Now I don't know anyone who has private land that would give me access to the spots I grew up fishing. Would it be legal to float the river as long as I stay on the water? What's the laws regarding floating streams?



1) no. 

2) If you don't own it or have permission you are fishing without permission and committing the offense of criminal trespass. 


T


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## Throwback (Sep 23, 2011)

a law journal article is meaningless to reality. 


T


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## Milkman (Sep 23, 2011)

In places like on the Chattahooche in Helen, and the Broad in east Ga where floaters and kayakers fill the river I must assume the operators of these businesses obtained permission for the sections where their businesses are. 

  Anybody know ?


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## Randy (Sep 23, 2011)

Throwback said:


> you talked to the wrong person.
> 
> 
> T



Well technically the advise was right.  It is private water and the owner can deny access and yes you are trespassing but if you move along (as told) then you will not be there by the time they call the law if they do.  We fish the Alcovey and Yellow all the time and little problems yet.  Access is the hardest part.  You can't park on or walk on someone's property to get to the river.


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## farmer (Oct 4, 2011)

In 1997 a guy who owned both sides of the West Fork of the Chattooga put a cable across the river that said, "Absolutely No Trespassing, Survivors Will Be Prosecuted."  He had people stationed along the banks with guns intimidating anyone who tried to paddle it.  The case went to federal court and the land owner lost.  This was a special case because adjacent land up and down stream belonged to the USFS and the river went through 3 states.


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## Backlasher82 (Oct 4, 2011)

farmer said:


> In 1997 a guy who owned both sides of the West Fork of the Chattooga put a cable across the river that said, "Absolutely No Trespassing, Survivors Will Be Prosecuted."  He had people stationed along the banks with guns intimidating anyone who tried to paddle it.  The case went to federal court and the land owner lost.  This was a special case because adjacent land up and down stream belonged to the USFS and the river went through 3 states.



I could be wrong, but I don't think that case was ever settled. As I recall it, there was a temporary order for the river to remain open to the public until the case could be ruled on in Federal court. They sold the land before it went to court and the new owner took down the cable and allowed the public access. As far as I know that was the end of the controversy but there was never an official ruling on the case.


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## farmer (Oct 4, 2011)

Backlasher82 said:


> I could be wrong, but I don't think that case was ever settled. As I recall it, there was a temporary order for the river to remain open to the public until the case could be ruled on in Federal court. They sold the land before it went to court and the new owner took down the cable and allowed the public access. As far as I know that was the end of the controversy but there was never an official ruling on the case.



That could be true.  I thought I remembered a temporary injunction and then a settlement.  I do remember there being speculation that the owner denied access as a ploy to force the USFS to buy the land.


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## Throwback (Oct 4, 2011)

I don't think it went to court, it was settled out of court IIRC. I had asked about this case a while back in regards to something I was working on. 


T


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## GA-SURVEYOR (Oct 5, 2011)

Hello I have viewed this thread a few times. I am a Surveyor in Ga and have done considerable research for my licensing exam and various projects concerning riparian rights. There is a book by Farris Cadle named Georgia Land Surveying History and Law, this text goes into some detail concerning navigability of particular Georgia rivers and streams. If any of you have a copy it is on page 512 and lists the navigable streams, and where navigability begins and ends in Georgia and also the legal decisions concerning each stream. I do not know if it is a complete list but it is a start. I would scan a copy and post it but am currently out of town.  Also for you legal guys if continuous use over time by the public can be proven on a particular stream an easement i.e. unwritten rights may exist however this is an area that is a little beyond my experience.


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## MudDucker (Oct 6, 2011)

Arrow3 said:


> I called the DNR about this and they told me that noone could block passage even if they owned both sides of the river/stream...They told me that they could deny fishing but if they did just keep moving untill you were clearly off of their property line.



Unless it is a "navigable river", the DNR just gave you BAD information.


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## MudDucker (Oct 6, 2011)

FX Jenkins said:


> I got you as I read your very informative post...  Seems this whole issue is based on the legal definition of Navigable...
> 
> This would be my position in court anyway, I, as a fishing license holder, qualify as supporting useful commerce, ..it may not fly...but that would be my pleading.
> 
> I actually think that would be a pretty good argument, recreational fishing does support local commerce. Even recreational boating supports local commerce as the author suggests in the next to last paragraph.



Your argument is not even close and it will not fly.  Let me know when you try to argue it.  I would like to be there to see the Judge's reaction.


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## MudDucker (Oct 6, 2011)

kenmorrow said:


> This is simply not accurate.  For starters, it apparently fails to take into account all of coastal GA's rivers.  There are far more than "a half dozen" that have historically been used for commercial navigation for well more than a century.  Try three centuries.  Second, it fails to account for the federal Freedom of Navigation Act, which covers ALL navigable waterways under federal jurisdiction.  This includes all waters under management of the USFWS, USACE, NPS, BLM, or patrolled by the USN or USCG that are not restricted by federal regulation for security/safety reasons.  The FONA trumps state laws restricting navigation of waterways, both riparian and littoral when they meet these criteria.  It allows even recreational use of said waterways up to the historical mean high water mark, including wading, swimming, walking along an exposed bank, portaging of small boats, fishing, camping, hunting, and so forth...so long as the activity is otherwise legal in that area.  In other words, private property rights do NOT extend below the historical mean high water mark even if the property line does.  A violation of the FONA is a violation of someone's constitutional right to freedom of movement on public property if you try to detain them or forcibly remove them.  If you attempt to restrict access by means of posting or creating barriers, that is a civil matter which has pretty stiff fines.
> 
> Of course, none of this applies to non-navigable waterways.



While some of this is accurate, most of this is pure bull.  What 25-0-6 posted is an absolute accurate portrayal of the law in Georgia.  The federal acts you mention use a nearly identical definition of "navigable" waters.  If you believe this to be true, I suggest you save up lots of money to pay your fines and civil penalties!


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## MudDucker (Oct 6, 2011)

kenmorrow said:


> GA's landowners can squabble all they want to about who can float by or walk down the bank below the high water mark on "their" river, but if it is below a Corps dam (for example) they can't legally do squat about it without ending up in FEDERAL court...where the stakes are much higher.



WRONG!  There is a Supreme Court case whereby the Supreme Court has defined waters with federal jurisdiction and guess what ... it is navigable waters and those waters immediately adjacent thereto.  The rambling examples you post ARE NOT the law.


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## kenmorrow (Oct 6, 2011)

MudDucker said:


> WRONG!  There is a Supreme Court case whereby the Supreme Court has defined waters with federal jurisdiction and guess what ... it is navigable waters and those waters immediately adjacent thereto.  The rambling examples you post ARE NOT the law.



That is precisely what I said.

What I took issue with as inaccurate was his statement that GA only contained "a half dozen or so" navigable waterways.  That was very inaccurate.

And any discussion of freedom of navigation without discussing FONA's impact on state laws on waters where there is a claim of federal jurisdiction is incomplete.

Those are my ONLY points, and I merely explained them in detail.  This is a field in which I have quite a bit of expertise.  I was not addressing non-navigable waterways at all.  They are purely under state jurisdiction.  I made that clear in my previous posts.

I don't know how many times this has to be repeated.


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## Throwback (Oct 7, 2011)

Using some folks' logic I can get in a hot air balloon and hover over someone else's land and shoot a deer and retrieve it from the balloon and it be legal because the deer and air is property of the state. 


T


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## kenmorrow (Oct 8, 2011)

Throwback said:


> Using some folks' logic I can get in a hot air balloon and hover over someone else's land and shoot a deer and retrieve it from the balloon and it be legal because the deer and air is property of the state.
> 
> 
> T



You'd be fine until you shoot the deer.  Property rights allow trespass (temporary transit by aviation and incidental passage of things like smoke, radio waves, etc.) through the air space owned.  They do not allow structures to be erected into the air space without the consent of a property owner.  But hunting on private property without permission of the landowner is illegal.  And they own the air space above their property as well as the land itself.  So both your firing position and the location of the deer are on their property.


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## MudDucker (Oct 9, 2011)

kenmorrow said:


> That is precisely what I said.
> 
> What I took issue with as inaccurate was his statement that GA only contained "a half dozen or so" navigable waterways.  That was very inaccurate.
> 
> ...



There are statements in your post that create a false impression, as evidenced by the several PM's I got.

This one especially:

"The FONA trumps state laws restricting navigation of waterways, both riparian and littoral when they meet these criteria."

Why is this misleading, it is misleading because state law does not restrict navigation on "navigable" waters and this statement implies that there is some conflict.

It is also incorrect in that FONA does NOT trump all state law regarding said waterways, only state laws restricting navigation.  For instance, it does not invalidate or trump a state law regarding speed of navigation.


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## kenmorrow (Oct 9, 2011)

That statement was about FONA, not GA state law.  I said FONA trumps state laws restricting navigation...

That is absolutely true _where conflicts exist_.

And there are many examples of such conflicts around the country, mostly where a state did not consider a waterway navigable but the federal standards were met by the existence of federal jurisdictional interests.

That was the meaning of that comment.  You know there are 49 other states in this country.  When we discuss how federal laws impact state law within our own state, it sometimes helps to remember that federal laws have to work in at least 50 major jurisdictions with different laws.  A little greater context sometimes helps understanding why things are the way they are.

Regarding your point about state laws regarding speed of navigation and such...

I'll certainly agree with you there.  This is a pretty fine point, but one worth mentioning when you get down to the details.  A general construct of American law is that states are free to pass and enforce laws that are stricter than federal laws (ie. if the feds say the max speed limit on highways is 70mph, states can say it is 60mph in our state; but they cannot say it is 80mph).  By the same token, the feds may declare that it is legal to row your boat there, but a state may very well declare it a no wake zone...or even a no motor zone.  Since this is in the canoe/kayak forum, speed, size, class, noise, and horsepower restrictions really had not crossed my mind.  

Like I said (_several times now_):  the post I took issue with said that the state of GA contained only about 6 navigable streams.  That was horribly inaccurate and needed to be corrected.  A large percentage of GA's most productive fishing waters...especially for paddle craft anglers...lie in _eastern_ GA.  And nearly all of the waterways wide enough to float a boat in that lie up to about 20 miles or so west of I-95 are navigable at least that far inland.  That is literally _hundreds_ of rivers and creeks.

You get down here in the coastal GA area and it's a different sort of ball game than up in the N GA hills.


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## JustUs4All (Oct 10, 2011)

Ken, you would get a lot more agreement here if you told the people that the vast majority of the rivers and streams you are speaking of are very near the coast and of the tidal variety.


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## kenmorrow (Oct 10, 2011)

JustUs4All said:


> Ken, you would get a lot more agreement here if you told the people that the vast majority of the rivers and streams you are speaking of are very near the coast and of the tidal variety.



You know, I moved to GA in February and the most time I've ever spent in GA prior to that was one night at a time about a half dozen times before that over the past decade or so up in the ATL area, once down around Valdosta, and then an extended "vacation" courtesy of Uncle Sam at Ft. Benning many years ago.  If I know more about GA watershed geography than most of these folks after living here for less than a year, that's not my problem.

I'm really not concerned with "agreement."  Having taught this stuff for 2 different public universities, having had charter captains, attorneys, etc. rely on my advice on these matters for over a decade, and having consulted with some of the country's wealthiest landowners on riparian rights law regarding trespass and navigation rights issues, I'm not overly concerned about what a few guys in GA who own kayaks think.  Sorry to be so blunt, but those are the facts.  And I've explained the coastal plain vs. interior aspects and the navigable vs. non-navigable issue vis a vis FONA many times in this thread.  What folks don't seem to want to hear is that Uncle Sam CAN declare jurisdiction based on a variety of interests and by default make an otherwise historically non-navigable waterway technically "navigable" for purposes of FONA.  It happens.  That rubs a lot of us good ole Southern boys the wrong way at first blush, but it is what it is.  And it doesn't happen very much.  But it wasn't my reason for posting.  I posted to point out that a huge chunk of GA was missing from this discussion.

A lot of folks would rather argue than learn something.  Personally, the first one of these threads after I moved here taught me that GA's riparian rights on non-navigable streams are more landowner friendly and restrictive to navigation than most.  The more you know, the more you know you don't know.  And that makes you eager to learn.  But it also teaches you to get your info from reliable sources.


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## Twenty five ought six (Oct 11, 2011)

JustUs4All said:


> Ken, you would get a lot more agreement here if you told the people that the vast majority of the rivers and streams you are speaking of are very near the coast and of the tidal variety.



Thank you.  Tidal waters are a separate class of navigable waters from freshwater rivers flowing to the sea.

I really don't like to get into micturating competitions here, but I suspect that I have a significantly better grasp of the legal and historical background of navigable waters in the State of Georgia than someone who moved here in February.


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## FX Jenkins (Oct 11, 2011)

MudDucker said:


> Your argument is not even close and it will not fly.  Let me know when you try to argue it.  I would like to be there to see the Judge's reaction.



Come on down to the courthouse,,,,,I'll be there this Thursday, i'll be the one wearing crocs and carryin a fly rod...


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## kenmorrow (Oct 12, 2011)

Twenty five ought six said:


> Thank you.  Tidal waters are a separate class of navigable waters from freshwater rivers flowing to the sea.
> 
> I really don't like to get into micturating competitions here, but I suspect that I have a significantly better grasp of the legal and historical background of navigable waters in the State of Georgia than someone who moved here in February.



Let me just put an end to this nonsense once and for all.  Federal court decisions on water rights and navigability supercede state court decisions.  This has been tested and tested for almost 200 years in the Supreme Court of the USA.  The following link is to the most recent guide issued by the US Army Corps of Engineers and US EPA to their field offices for determining jurisdiction, which is based on the Commerce Clause of the Constitition, the Clean Water Act, the Freedom of Navigation Act, and the Rivers and Harbors Act of 1899.  The ONLY reason any of this is still an issue in GA is because of the cost and hassle of going to federal court to prove your point.  When it gets to the point where landowners have unlawfully restricted use of enough waterways, folks will start doing exactly that and the situation will change...just as it has in many other states.

http://sogweb.sog.unc.edu/Water/images/d/d5/App_d_traditional_navigable_waters.pdf

The Internet is FULL of people of who THINK they know what they're talking about.  Court rooms and universities are generally occupied by people who actually DO.


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## Twenty five ought six (Oct 12, 2011)

kenmorrow said:


> The Internet is FULL of people of who THINK they know what they're talking about.  Court rooms and universities are generally occupied by people who actually DO.



Well, I'll grant you that you are half right there.


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## kenmorrow (Oct 12, 2011)

Twenty five ought six said:


> Tidal waters are a separate class of navigable waters from freshwater rivers flowing to the sea.



"...As noted above, the (a)(1) waters include, but are not limited to, the “navigable waters of the United States.”  A water body qualifies as a “navigable water of the United 
States” if it meets any of the tests set forth in 33 C.F.R. Part 329 (e.g., the water body is (a) subject to the ebb and flow of the tide, and/or (b) the water body is presently used, or has been used in the past, or may be susceptible for use (with or without reasonable improvements) to transport interstate or foreign commerce)..."

Excerpted from the USACE policy summary cited above, Pg 1, about half way down the page.

You can plainly see that Section 33 of the Combined Federal Register, Part 329 defines the navigable water of the United States as...FIRST OF ALL...all waters subject to the ebb and flow of the tide.  They are most certainly not a "separate class."


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## Throwback (Oct 12, 2011)

kenmorrow said:


> The Internet is FULL of people of who THINK they know what they're talking about.  Court rooms and universities are generally occupied by people who actually DO.



So I guess that means I'm double right!  


Oh, and it's one word--courtroom. 


T


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## kenmorrow (Oct 13, 2011)

Throwback said:


> So I guess that means I'm double right!
> 
> 
> Oh, and it's one word--courtroom.
> ...



Yes you are, and I stand corrected on the  thing.  You've been the voice of reason on multiple threads on this topic I've read, citing case law, statutes, etc.  

These issues are decided on a case-by-case basis.  That is official policy both at the GA state and federal level.  If the plaintiff decides to stay at the state level, then GA law is going to prevail and it does not favor access.  It favors adjacent landowners.  If, on the other hand, access advocates take the issue to federal court regarding a stream where there is commercial recreational use (or even the demonstrable potential for commercial recreational use during a substantial portion of the year) they are most likely to prevail under current US Supreme Court and Circuit Court of Appeals case history and current USACE and EPA guidelines (which are based on the former).  It is not easy or inexpensive to go to federal court, and it takes years to achieve a resolution.  In the meantime, you may have been arrested, fined, etc. under state law.  If you go to federal court and prevail, these things are likely to be remedied on appeal, but you never know for sure.

The above paragraph is about the best summary I think anyone could come up with of the current state of riparian freedom of navigation for recreational access law in Georgia.  But I am not an attorney.  I just happen to know more about THIS SUBJECT than most of them who do not work for the government or a few environmental law firms.


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## kenmorrow (Oct 13, 2011)

I'll give y'all a hint about how I handle those rare bully landowners I mentioned awhile back.

First, I try to move on through and ignore them.  If that becomes a problem, I _insist_ that they call the cops.  About 90% of the time, that is when they back down.  I've only had one of them call.  That was over use of a subdivision boat ramp on a county road on a Corps of Engineers owned lake (all boat ramps are open to the public if on a public roadway on a public lake in that state).  In THAT case, it was the 3rd run-in with the property mgr and I was ready w/a copy of the state law.  The sheriff was going to arrest me until I showed him the copy of the law and told him he'd better call a supervisor and bring them to the scene before he did because I would be filing wrongful arrest charges against him and the sheriff if he did.  Suddenly, he turned to the property mgr and said, "He appears to be right.  This is a county road so that MDC and the fire dept can launch boats here.  There's nothing I can do.  So I recommend y'all work it out."  And we did.  His real issue was with where I was parking.  I was happy to park my truck where he wanted me to park.

I've provided everything you need in this thread.  Coat the USACE/EPA guide in plastic and carry it with you on the water.  If confronted by law enforcement, calmly and respectfully inform them that they need to read it before they ticket or arrest you.  But make sure you were behaving 100% within the boundaries of all other federal and state laws before you whip it out!  Telling a cop how to do his job is walking a tightrope he will be more than happy to knock you off of if he can.  I can't guarantee you it will work, but I can tell you it has worked for me for years with the following REPEATED caveat:

I always, always stay below the mean historical high water mark.  I always, always comply with every single state and federal law applicable to what I'm doing in that area.  I do everything I can to avoid these confrontations EXCEPT allowing myself to be run off water I have a right to be on.  Use common sense, folks.  Knee deep streams full of half-exposed rocks that you can walk all the way across are NOT navigable...even if they have some deep holes in them.  And no fish is worth getting shot over.  And...in spite of what some of y'all probably believe at this point...I am very pro-private property and landowner friendly.  I almost never get denied access to private property just by asking politely.  Even for professional use, I offer a trespass fee/lease and sometimes get told that I can use it for free.  In almost 3 decades of floating and walking up and down streams, duck hunting river bottoms, and bird hunting fields all over the country, I have had a total of 4 unpleasant experiences with landowners.  2 of those were in the care of another outfitter who was trespassing to goose hunt during the same week on 2 different farms (never used him again!).  You've read about 1 more.  The other fella backed down as soon as I showed him I had the copy of the rules in a zip loc bag and told him to call the sheriff.  He then brought out a cooler full of beer and 2 lawn chairs and was waiting for me when I waded back down the river, where we sat, drank a few beers, and swapped war stories for a couple of hours.  He was a retired Navy Master Chief, and he knew he lived on a historically navigable waterway!  He was just being a bully and got busted.  LOL


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## Twenty five ought six (Oct 13, 2011)

kenmorrow said:


> "...As noted above, the (a)(1) waters include, but are not limited to, the “navigable waters of the United States.”  A water body qualifies as a “navigable water of the United
> States” if it meets any of the tests set forth in 33 C.F.R. Part 329 (e.g., the water body is (a) subject to the ebb and flow of the tide, and/or (b) the water body is presently used, or has been used in the past, or may be susceptible for use (with or without reasonable improvements) to transport interstate or foreign commerce)..."
> 
> Excerpted from the USACE policy summary cited above, Pg 1, about half way down the page.
> ...



Yep, you're exactly right, that's why there is a part (a) definition and a part (b) definition.  Guess I'm just too simple minded to understand a university level reasoning, GED's being so inadequate in teaching civics and all , but it appears to me that if there was only one "class" of navigable waters, they would all be included in one definition.  Guess the fact that it takes two definitions is just an typical bureaucratic oversight by the federal government.

BTW, as MudDucker pointed out above the federal definition is essentially  the same as the Georgia definition.  The bottom line is that in nearly 250 years, no one in the State of Georgia has asserted in court a right of navigation in state waters based on federal law, while there have been several cases based on state law.


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## kenmorrow (Oct 13, 2011)

This list of tests for navigability status contained in 33 CFR Part 329 is broken down into items designated by lower-case letters (a, b, c, d...).  And there are quite a few more than two of them.

Your last statement is absolutely false!  I was hoping you might make such a mistake and exposure your lack of home state knowledge and willingness to do your homework before spouting off.

There was a case on the Okeenee(?) about a decade ago where the plaintiffs (a paddling company) filed suit in federal court against a landowner who had put up barriers to navigation.  After a few years of wrangling, the case eventually settled in favor of the plaintiffs (opening it up to recreational navigation again) prior to a verdict being reached, and the suit was dismissed.  But...once again...this guy who has only been here since February seems more on top of things than the old GA know-it-alls.

(I can go on and on like this, or you can stop any time you've had enough.)


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## Randy (Oct 14, 2011)

Ken may have a point.  Since all the ruling so far have bene about state law and fialed for the "tresspasser," who wants to be the first to take this to federal court?


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## Twenty five ought six (Oct 14, 2011)

kenmorrow said:


> There was a case on the Okeenee(?) about a decade ago where the plaintiffs (a paddling company) filed suit in federal court against a landowner who had put up barriers to navigation.  After a few years of wrangling, the case eventually settled in favor of the plaintiffs (opening it up to recreational navigation again) prior to a verdict being reached, and the suit was dismissed.  But...once again...this guy who has only been here since February seems more on top of things than the old GA know-it-alls.



I know that the guy who has here since February doesn't even know the name of the river he's using for an example.  Oconee, Ogeechee, Ocoee, Ohoopee, Ocmulgee?? -- I mean, really, a self proclaimed expert ought to be able to know the names of the rivers (that being twice you've referenced non-existent Georgia rivers in support of your arguments) that he is using for examples

Certainly a well versed expert such as yourself can at least provide us with a US Court District and a case name or number, and we will just see what it's all about.

A case settled before verdict is not reported, has absolutely NO value as precedent, and proves nothing.


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## kenmorrow (Oct 14, 2011)

Twenty five ought six said:


> I know that the guy who has here since February doesn't even know the name of the river he's using for an example.  Oconee, Ogeechee, Ocoee, Ohoopee, Ocmulgee?? -- I mean, really, a self proclaimed expert ought to be able to know the names of the rivers (that being twice you've referenced non-existent Georgia rivers in support of your arguments) that he is using for examples
> 
> Certainly a well versed expert such as yourself can at least provide us with a US Court District and a case name or number, and we will just see what it's all about.
> 
> A case settled before verdict is not reported, has absolutely NO value as precedent, and proves nothing.



You'd think that a fella with so much on the ball like yourself could find at least one shred of this stuff by himself and quit making a fool of himself over and over again.  Frankly, I don't care enough to re-check the goofy Indian name of some obscure river just to help you did your hole a little deeper.  All of this case law and even cases that settle prior to a verdict, once filed, are a part of the public record.  And the one I referenced was actually fairly big news for a couple of years from like 1998-2000 or 2001.  You really don't know much about this sort of stuff at all, do ya?  Of course it sets no precedent.  Duh!  And even a single precedent doesn't prove anything unless it comes out of the US Supreme Court...and that is only "for now."  But the bigger point here is the 100+ year body of well-settled case law and Supreme Court rulings and clear opinions summarized in the guidance document issued by the agency handed governing authority by the US Supreme Court, the US Army Corps of Engineers...which you apparently haven't even bothered to read in its entirety in spite of my posting a link to it right in front of your nose.  It answers ALL in plain English.  And since that is true and you're starting to bore me, I'm done with this thread.  I got a call this morning about a navigation rights issue up in TN that is actually a compensated gig.  So I think I'll focus on that instead.


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## Twenty five ought six (Oct 14, 2011)

kenmorrow said:


> You'd think that a fella with so much on the ball like yourself could find at least one shred of this stuff by himself and quit making a fool of himself over and over again.  Frankly, I don't care enough (or don't know enough) to re-check the goofy Indian name of some obscure river Wow! How sensitive is that. just to help you did your hole a little deeper.  All of this case law and even cases that settle prior to a verdict, once filed, are a part of the public record. To which of course you can't provide any reference so we can all look at it. How convenient.  I've got a horseshoe that Man O'War wore when he won the Triple Crown. And the one I referenced was actually fairly big news for a couple of years from like 1998-2000 or 2001.Not in Georgia it wasn't   You really don't know much about this sort of stuff at all, do ya? I may not know much, but  I clearly know "more" than some of the other frequent posters to this topic. Let's see, one of us has referred to several actual Georgia Supreme Court cases, and one of us has referred to one case that was maybe, probably, might of,  could of been filed in some district court somewhere.    Of course it sets no precedent.  Duh!  And even a single precedent doesn't prove anything unless it comes out of the US Supreme Court That is so far wrong as to not even be laughable --you've just demonstrated that you have exactly ZERO (as in "none") knowledge of the legal process...and that is only "for now."Well, I thought that was when we were talking about.  Are we talking about some other time other than now.   But the bigger point here is the 100+ year body of well-settled case law and Supreme Court rulings and clear opinions summarized in the guidance document issued by the agency handed governing authority by the US Supreme Court, the US Army Corps of Engineers...which you apparently haven't even bothered to read in its entirety in spite of my posting a link to it right in front of your nose.  It answers ALL in plain English.  And since that is true and you're starting to bore me, I'm done with this thread. I'd be done too, if my argument depended on citing a case that was filed sometime, somewhere, about some river, in some state, maybe. I got a call this morning about a navigation rights issue up in TN that is actually a compensated gig.  So I think I'll focus on that instead.




I think I'm going to go fishing in one of those obscure rivers with a goofy Indian name.  Just seem to be so many of them.


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## Artfuldodger (Jan 28, 2012)

We were tubing on the Ocmulgee and the game warden made us get out of the river and walk back to Fitzgerald landing because we were navigating the river without a uscg approved life preserver. We were not transporting any trade goods just beer for ourselves. Just brought that up in reference to what "Navigable" means. It might have something to do with the influence the landowners have with the government. Does the term river vs creek have any bearing? I use to live on a creek that became a river by law. Does the Georgia riverkeepers fight any for user rights?


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## Throwback (Jan 28, 2012)

Artfuldodger said:


> We were tubing on the Ocmulgee and the game warden made us get out of the river and walk back to Fitzgerald landing because we were navigating the river without a uscg approved life preserver. We were not transporting any trade goods just beer for ourselves. Just brought that up in reference to what "Navigable" means. It might have something to do with the influence the landowners have with the government. Does the term river vs creek have any bearing? I use to live on a creek that became a river by law. Does the Georgia riverkeepers fight any for user rights?





they are required because creeks and rivers are by legal definition 'waters of the state", which basically means the water flows across more than one person's property an.  it does not mean anyone sitting in a boat can legally float down it if is not also considered "navigible". they are Two different things in law. 

if you are on waters of the state in a "vessel" which is basically defined as anything that floats and is being used by a person or persons to go from point "a" to point "B" you are required by law to have PFD's, among other things depending on what kind of vessel you are in. 
T


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## 4winds (Feb 16, 2012)

*Ga-surveyor*



> Hello I have viewed this thread a few times. I am a Surveyor in Ga and have done considerable research for my licensing exam and various projects concerning riparian rights. There is a book by Farris Cadle named Georgia Land Surveying History and Law, this text goes into some detail concerning navigability of particular Georgia rivers and streams. If any of you have a copy it is on page 512 and lists the navigable streams, and where navigability begins and ends in Georgia and also the legal decisions concerning each stream. I do not know if it is a complete list but it is a start. I would scan a copy and post it but am currently out of town. Also for you legal guys if continuous use over time by the public can be proven on a particular stream an easement i.e. unwritten rights may exist however this is an area that is a little beyond my experience.



Were you able to copy the list?  I follow the laws and think that maybe a separate thread with this copy would be a great help to the rest of us who respect and uphold the laws in this regard.  Thanks in advance if you can provide!

Very interesting and thought provoking thread!


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## kenmorrow (Feb 16, 2012)

Where a history of a landowner allowing general trespass exists and the landowner suddenly wants to deny trespass to someone, the stakeholder(s) would have to take the landowner to court to seek a remedy.  If they prevail in court they would then establish what is called a _permissive easement._  That's what the previous poster quoted above referred to in his last sentence or two.

A permissive easement simply means that a property owner's failure to enforce his/her property rights in a very narrowly defined way (use of a boat ramp, dock, deer stand, duck blind, or allowing people to float or wade a non-navigable stream are good examples) over a significant period of time established a legal precedent that has now been recognized by a court of competent jurisdiction and recorded on the deed to the property.  Until such time as the court has rendered such a decision, trespassers are still trespassers.  They are guests on another person's property who are subject to his/her hospitality...or lack thereof.  So don't think that just because a family has allowed people to float through their place for the past 100 years you can't be arrested for criminal trespassing there if you refuse to leave or stop floating through there.  You can sue for the right to continue floating the stream through their property, and you will likely win if you can provide sufficient evidence that they have a long history of allowing you or the public to float through there.  THEN you can start floating through again.

I used to guide duck hunts on a piece of property where the owner had a situation like this with a boat launch on a river at the edge of a state WMA.  His dad always allowed folks to use it, but he shut it down.  He lost the lawsuit.  Then he sold the small parcel to the state so they could develop a full scale boat ramp there.  Then they found Indian artifacts while excavating the parking lot.    The whole thing became a huge bru-ha-ha in the media, etc. because the Indians laid claim to the property the state now owned and all the duck hunters wanted to have their big new boat ramp on.    A few crazy years followed with cut fences, armed security guards, lawsuits flying all over the place, and a bunch of really mad duck hunters and Indians on the war path.  Eventually, a great compromise was worked out by none other than the landowner who started the whole thing by shutting down the primitive launch and your very own former President, Jimmy Carter.  Of course, I came along several years later.  There was some fantastic green timber Mallard huntin' on that property!


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## JustUs4All (Feb 16, 2012)

Good post, but you got your terms wrong.  The sort of easement you are describing is prescriptive easement obtained through adverse possession over a period of time.  A permissive easement is nothing more than permission.


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## puddlehunter (Feb 17, 2012)

Jody Hawk said:


> I grew up fishing the Alcovy River in Walton and Newton Counties. Now I don't know anyone who has private land that would give me access to the spots I grew up fishing. Would it be legal to float the river as long as I stay on the water? What's the laws regarding floating streams?




Wow..I didn't know there were so many people interested in the kayak and canoe forum...I would say..set up a shuttle and run the river...if I have a chance I would love to run it with you.  One of my favorite things is to explore new waters...i would also add that I personally would not ask about navigability of a stretch of water that I was planning to float..until after I floated it..unless I wanted an audience...I have floated waters small and large all over the state and never had a problem..not saying I won't..but I will cross that bridge when I come to it...


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## JustUs4All (Feb 17, 2012)

I am not a kayaker or canoeist.  My interest in this threour present system and collectivism.  

The government is eroding as many of the rights of the people as quickly as they can.  I will try to make a stand for all of them.  

I understand your position and admire it to a degree.  I works well in the wilderness, but when we begin living close together property rights become ever more important.


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## Wishin I was Fishin (Feb 17, 2012)

Jody, I'm not sure if you are even still keeping up with this but I got on the Alcovy earlier this fall at a place down in Covington. I'd be glad to let you in on it, but it's best to do with a partner. Trees are  across that river like you wouldn't believe. It can be floated and fished but it requires a bit of crawling and dragging over and around logs. I passed a few houses and didn't have any issues. I might just be a rogue kayak fisherman though.


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## Randy (Feb 17, 2012)

The Georgia Wildlife Federation has a new put-in below Covington also.


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## kenmorrow (Feb 18, 2012)

JustUs4All said:


> Good post, but you got your terms wrong.  The sort of easement you are describing is prescriptive easement obtained through adverse possession over a period of time.  A permissive easement is nothing more than permission.



Actually, I stand corrected.  You are right.  It's been awhile.  The permissive easement occurred when the landowner ALLOWED trespass to occur.  Sorry about that.  I've been out of the business of protecting landowners' rights since 2002.  So the terminology was a bit rusty.  Thanks for straightening us out.  I thought it was good for folks to know how the process works, but it's also good to have the terminology right.


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## crackerdave (Feb 28, 2012)

puddlehunter said:


> Wow..I didn't know there were so many people interested in the kayak and canoe forum...I would say..set up a shuttle and run the river...if I have a chance I would love to run it with you.  One of my favorite things is to explore new waters...i would also add that I personally would not ask about navigability of a stretch of water that I was planning to float..until after I floated it..unless I wanted an audience...I have floated waters small and large all over the state and never had a problem..not saying I won't..but I will cross that bridge when I come to it...



Sometimes forgiveness is easier to get than permission!

I've been kinda surprised at the interest in this forum,too.Anyone who tries kayak fishin' will see why it's such a fast-growing sport - especially with gas prices where they are.


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## Jody Hawk (Mar 2, 2012)

Wishin I was Fishin said:


> Jody, I'm not sure if you are even still keeping up with this but I got on the Alcovy earlier this fall at a place down in Covington. I'd be glad to let you in on it, but it's best to do with a partner. Trees are  across that river like you wouldn't believe. It can be floated and fished but it requires a bit of crawling and dragging over and around logs. I passed a few houses and didn't have any issues. I might just be a rogue kayak fisherman though.



I'm still here but I kinda backed off it after so many were saying it was illegal because the Alcovy is not navigable. The last thing I need is a ticket.


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