# fishing rights on navigable waters?



## BDD (Feb 11, 2010)

Does anybody know the law, as it refers to the fishing rights on navigable waters?

What I am referring to is a section of the upper Toccoa River,  we floated it in canoes
and fished it for years, now because someone owns the land on both sides of the river
they have declared it private and a no fishing area. Is that legal ? 

 I can understand if this was a smaller stream that is not navigable,  but this section is
a navigable Georgia river,  you can still float it but not fish.


----------



## Gaducker (Feb 11, 2010)

navigable has nothing to do with a canoe or a bass boat , A commercial barge defines navigable waters.   If a man owns both sides of the river he has the right to prohibit activity on said strech of river.


----------



## BDD (Feb 11, 2010)

Can you back up your statement with some facts ?  Because if that's true,
If someone owned a lot on each side of the Chattahoochee (below the dam)
 directly across from each other he could stop fishing in that section  because 
there is no barge traffic?   I don't think navigable means only commercial traffic, 
I could be wrong.


----------



## Wild Turkey (Feb 11, 2010)

Its is considered State waters and most likely jurisdictional under the Army Corps of Engineers.
My understanding is you can fish the water in a boat but you cant set foot on the land as long as the state hasnt deemed that a no fishing area.


----------



## Big7 (Feb 11, 2010)

Wild Turkey said:


> Its is considered State waters and most likely jurisdictional under the Army Corps of Engineers.
> My understanding is you can fish the water in a boat but you cant set foot on the land as long as the state hasnt deemed that a no fishing area.



That's what I thought...?


----------



## RGRJN (Feb 11, 2010)

This might help from the US Code

�329.4 General definition.
Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

GO about the 3rd paragraph down. None of these cover fishing, but do out line what is navigable. This also has been hashed out here ad nausuem a couple years ago.Probably in the Archives

http://nsglc.olemiss.edu/SandBar/SandBar3/3.1comment.htm

From my understanding, most of these cases have been settled in court(or out) with State and landowners agreeing to let folks pass down the river but no stopping. I don't remember what the fishing outcome was.But GA law does allow a landowner to restrict passage if he owns both sides. There are very few "Navigable" waters in GA.


----------



## BDD (Feb 11, 2010)

This is what makes it so confusing, there are several interpolations of the law,   but at the bottom below, if anytime in history you could
Float a log down the stream it is navigable


To be considered navigable, a stream must be "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." OCGA 44-8-5 (a). 1
At English common law, a navigable stream was defined as a river or stream in which the tide ebbed and flowed. 12 In response to different conditions in this country, the courts expanded the term to include freshwater rivers and lakes. In 1849, this Court described three kinds of rivers: 
1st. Such as are wholly and absolutely private property. 2d. Such as are private property, subject to the servitude of the public interest, by a passage upon them. The distinguishing test between these two is, whether they are susceptible or not of use for a common passage. 3d. Rivers where the tide ebbs and flows, which are called arms of the sea. 13 
In defining the rights of the public on the second class of rivers, the United States Supreme Court held in The Daniel Ball 14 case that rivers are navigable in law if they are navigable in fact. "And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." 15 
In defining commerce on water, the courts do not limit the term solely to the carrying of merchandise, but also apply it to the carrying of passengers 16 and the rafting of logs and timber. 17 The presence of artificial obstructions, such as dams or bridges, does not prevent the stream from being navigable in law if it would be navigable in fact in its natural state. 18 Once a stream is found to be navigable, it remains so.19 Thus, if a stream is, or was, naturally of sufficient size to float boats, vessels, rafts, or logs, whether propelled by animal power, wind, or stream, the river is navigable water and the public has the right to use the stream.


----------



## Randy (Feb 11, 2010)

BDD said:


> To be considered navigable, a stream must be "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." OCGA 44-8-5 (a). 1



This is in fact Georgia's antiquated law.  What really makes it confusing is in at least one case this has been upheld in court and in at least one other case it has been over-ruled.  But the fact is about 3 of Georgia's rivers are really navigable in accordance wiht this antiquated law.  And even then only part of those.  Another reason for not allowing dams to be buit on rivers.  Once that happens the river pretty much becomes a none navigable river above that lake.  The dam in effect becomes a barrier to transportation of freight in a regular course of trade.

This law needs to be changed but that takes money and nobody wants to spend the money to push it.


----------



## Twenty five ought six (Feb 11, 2010)

BDD said:


> Can you back up your statement with some facts ?  Because if that's true,
> If someone owned a lot on each side of the Chattahoochee (below the dam)
> directly across from each other he could stop fishing in that section  because
> there is no barge traffic?   I don't think navigable means only commercial traffic,
> I could be wrong.




You are wrong.  

In Georgia "navigable" is defined as being able to float a barge full of cotton bales.  For practical purposes, that "navigable" fresh waters in Georgia consist of the major rivers below the fall line.

The only navigable river above the fall line of which I am aware is the Savannah River to the town of Petersboro, which is now under Clark's Hill Lake, so the issue is moot.

If a person owns both sides of a non-navigable river, (basically anything above the fall line) the land owner can prevent fishing in that section of the river.

The issue of "navigability" for state law purposes has nothing to do with the Army Corpps of Engineers --for the purpose of fishing rights it is a state law matter, determined by state law.


----------



## DAVE (Feb 11, 2010)

You can navigate put you can not take fish or anything else without permission because it belongs to the land owner.


----------



## Randy (Feb 11, 2010)

DAVE said:


> You can navigate put you can not take fish or anything else without permission because it belongs to the land owner.



where do you get that from?  Unless you have a private pond or a private fenced operation for game, no fish, birds, or game belongs to the land/ water owner.  It all belongs to the state.  Land owner's rights/ property does go to the centerline of the river but it has been ruled in at least one case not to include the water flowing over that land.  Catching fish from "private rivers" has not been ruled against the law that I am aware of?  There have been issues when a person waded on "private land" under the water to fish.

Again this law is vague at best and has been tried at least twice that I know of with two opposite verdicts.  The State Legislature really needs to better define this law.


----------



## wgatling (Feb 11, 2010)

The section of the Toccoa you are talking about was briefly closed to canoe traffic. The section had just been made a federal "Blue Way" canoe trail. This made for a very difficult stand off between the government and the RIVER BANK owner. With the threat of lawsuit looking very real, the cable that was put across the river was taken down. That section is now passable by canoe. I do believe there was some agreement that fishing would be prohibited there.

Several years ago, in a case on the Chattahoochee above Lanier, a property owner tried to close the river to canoes. I'm not clear on the details about how he went about this. The result was that the land owner lost in a big way and agreed to never own land on a river again.

Georgia law is inconsistent with regard to navigability. Armuchee creek was closed to paddlers, but that seemed to be a very political decision.

The Chattooga sections 00,0,1 are closed to canoe & kayakers, but open to fisherman. American Whitewater is appealing a recent decision to allow very limited access between December-Feb(?) when the water is above a certain level. 

www.gapaddle.com


----------



## Twenty five ought six (Feb 11, 2010)

where do you get that from?  Unless you have a private pond or a private fenced operation for game, no fish, birds, or game belongs to the land/ water owner.  It all belongs to the state.The fish belong to the state, but "right to fish" belongs to the landowner as a product of the land just like the right to hunt the state's deer.   Land owner's rights/ property does go to the centerline of the river but it has been ruled in at least one case not to include the water flowing over that land.  Catching fish from "private rivers" has not been ruled against the law that I am aware of?  Yes it has.  There have been issues when a person waded on "private land" under the water to fish.

Again this law is vague at best and has been tried at least twice that I know of with two opposite verdicts.  The State Legislature really needs to better define this law. 


I don't know how "vague" it is.  Every LEO in the state will charge you with fishing on the lands of another in the circumstances in the OP..


----------



## DownRiver (Feb 11, 2010)

as long as you do not touch the banks or the bottom of stream or river you can canoe and or fish, the land owner owns the banks and bottom but the water is state water there for you can float or fish , the only way you own the water if is it starts and stops on your property .


----------



## Twenty five ought six (Feb 11, 2010)

DownRiver said:


> as long as you do not touch the banks or the bottom of stream or river _you can canoe and or fish,_ the land owner owns the banks and bottom but the water is state water there for you can float or fish , the only way you own the water if is it starts and stops on your property .


 


> I don't know how "vague" it is. Every LEO in the state will charge you with fishing on the lands of another in the circumstances in the OP..



Let us know how that works out for you.

While a sound argument, the unvarnished truth is that the Georgia Supreme Court says you're wrong.


----------



## Lonnie in the mountains (Feb 11, 2010)

DAVE said:


> You can navigate put you can not take fish or anything else without permission because it belongs to the land owner.



That would be correct!  Just ask the DNR, they are called out regularly up here. There are alot of land owners that have even put cables across the river so that you cannot access the part of the river the own. Sad but true. If the DNR comes out you are will be asked to leave or get written up for trespassing!


----------



## Randy (Feb 11, 2010)

Lonnie in the mountains said:


> If the DNR comes out you are will be asked to leave or get written up for trespassing!



Exactly.  Not for "fishing on lands of another" but for trespassing which goes back to the original language of a navigable river.  Again, right now the law says "To be considered navigable, a stream must be "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." OCGA 44-8-5 (a). 1"

Which is antiquated!  If this is truely upheld by a judge, only parts of the Savannah, parts of the Altamaha and a little bit of the lower Chattahoochee are really open for the public to use.  A couple of cases have been tried in court and of those, one has gone for the land owner and one against.  The funny part is the one that was the hardest to navigate was the one ruled navigable.  As mentioned in a previous post that appeared to be more of a political decision rather than based on law.


----------



## Twenty five ought six (Feb 11, 2010)

> Which is antiquated! If this is truely upheld by a judge, only parts of the Savannah, parts of the Altamaha and a little bit of the lower Chattahoochee are really open for the public to use. A couple of cases have been tried in court and of those, one has gone for the land owner and one against. The funny part is the one that was the hardest to navigate was the one ruled navigable. As mentioned in a previous post that appeared to be more of a political decision rather than based on law.



And that is correct.  Actually the Oconee to Dublin and Ocmulgee to Macon are navigable.  Both used to have regular steam boat traffic. Parts of the Flint are navigable.  There is an ongoing historical debate about whether the Oconee above Dublin was ever navigated -- the historical record is not real clear.  But when all is said and done, only a portion of about a half dozen rivers meet the legal definition of "navigable".

I don't know what cases have been tried in court that have held against the landowner.  No Georgia appellate court has ever held in favor of a "right of passage" on a non-navigable river/stream, and in the leading case specifically found that there was no such thing.

It is only through custom and history that a lot of Georgia's rivers have been open to public fishing.


----------



## Randy (Feb 11, 2010)

Twenty five ought six said:


> I don't know what cases have been tried in court that have held against the landowner.  No Georgia appellate court has ever held in favor of a "right of passage" on a non-navigable river/stream, and in the leading case specifically found that there was no such thing.



I believe this one was ruled against the land owner

"Several years ago, in a case on the Chattahoochee above Lanier, a property owner tried to close the river to canoes. I'm not clear on the details about how he went about this. The result was that the land owner lost in a big way and agreed to never own land on a river again."

and I believe a case was held on the Kinchafoonee river in south Georgia?  Don't hold me to that one but I think that was the river?


----------



## green46 (Feb 11, 2010)

I have heard that landowners on the Toccoa will post their own "no fishing"signs on the river but these signs are not the law.  I used to fish all over Ellijay and Blue Ridge with my father and brother before all the newcomers and development.  We were always respectful of the land and never had a problem.  Its sad that fishing in these areas has been limited by wealthy landowners to a few public places.  I'm not saying its all of them, just like it's not every fisherman that leaves trash on the river and ignores regulations.  Its a few bad apples on both sides that make it hard on everybody.  Just my opinion, and you know what they say about opinions . . .


----------



## Twenty five ought six (Feb 11, 2010)

*http://forum.gon.com/newreply.php?do=newreply&p=4620185*



Randy said:


> I believe this one was ruled against the land owner
> 
> "Several years ago, in a case on the Chattahoochee above Lanier, a property owner tried to close the river to canoes. I'm not clear on the details about how he went about this. The result was that the land owner lost in a big way and agreed to never own land on a river again."
> 
> and I believe a case was held on the Kinchafoonee river in south Georgia?  Don't hold me to that one but I think that was the river?



Landowners have restricted travel on the Broad River (above Clark's Hill), West Fork of the Chattooga, Toccoa River above Lake Blue Ridge, the upper Flint, Soque and Ichauway Creek, which might be what you are thinking about. 

The only Chattachoochee situation that I know about involved someone who did not own both sides of the river, and who allegedly was pretty violent about confronting boaters.

In most of these cases, state and federal officials were able to reach some accommodation with the landowner.  In the West Fork case, USDA had to eventually bought part of the tract in issue.   In the Toccoa River case, the landowner agreed to allow passage as long as "no fishing" was strictly enforced by the authorities, and it is.



green46 said:


> I have heard that landowners on the Toccoa will post their own "no fishing"signs on the river but these signs are not the law.  I used to fish all over Ellijay and Blue Ridge with my father and brother before all the newcomers and development.  We were always respectful of the land and never had a problem.  Its sad that fishing in these areas has been limited by wealthy landowners to a few public places.  I'm not saying its all of them, just like it's not every fisherman that leaves trash on the river and ignores regulations.  Its a few bad apples on both sides that make it hard on everybody.  Just my opinion, and you know what they say about opinions . . .



The Toccoa below Lake Blue Ridge is an interesting and unique case.  TVA owns the bed of the river all the way to Tennessee (and beyond).  The adjoining private landowners only own to the water's edge.  That is the only situation in Georgia where that is true that I know of.  And you are correct, that despite this fact, there are some of the adjoining landowners who have attempted to post the river, or confronted fishermen about fishing the river.  This section of the Toccoa is the one privately owned river that you can wade the entire length once you get access to the water.  

One reported incident had the landowner feeding the fish, and trying to run off fishermen fishing for "his" fish.


----------



## sparky (Feb 11, 2010)

*Toccoa float*

this has been discussed on the NGTO site,if you would other opinons


----------



## NGxplr22 (Feb 11, 2010)

green46 said:


> I have heard that landowners on the Toccoa will post their own "no fishing"signs on the river but these signs are not the law.



Signs hold no legal weight in Georgia, whether it's says no fishing or no trespassing. You have to be told by the owner or an agent of the owner.


----------



## JustUs4All (Feb 11, 2010)

NGxplr22 said:


> Signs hold no legal weight in Georgia, whether it's says no fishing or no trespassing. You have to be told by the owner or an agent of the owner.



You may be letting yourself in for a whole lot of trouble if you act on that belief.


----------



## NGxplr22 (Feb 11, 2010)

JustUs4All said:


> You may be letting yourself in for a whole lot of trouble if you act on that belief.



My belief? Signs hold no legal weight in Georgia. 
I'm not saying that you couldn't be charged with something if caught fishing on someone else's waters, but it would have nothing to do with the posted sign, unless it is a DNR sign or similiar. 

You can have a no tresspassing sign posted every two feet at the edge of your yard but it's not against the law for me to come and stand in the middle of it. It is illegal for me to remain there once I'm asked to leave or to come back if I'm told not to.


----------



## Salter (Feb 12, 2010)

Hey NGxplr22,

I think you are wrong there. My understanding is that if a property is posted you have to have written permission on your person to be on there.


----------



## huntfish (Feb 12, 2010)

Salter said:


> Hey NGxplr22,
> 
> I think you are wrong there. My understanding is that if a property is posted you have to have written permission on your person to be on there.



Yep.   NGxplr22, If you want to try out your theory, You can have a no tresspassing sign posted every two feet at the edge of your yard but it's not against the law for me to come and stand in the middle of it. It is illegal for me to remain there once I'm asked to leave or to come back if I'm told not to.let me know.   You won't be asked to leave, you'll be cuffed and hauled to Habersham County Jail.


----------



## tlsgcs (Feb 12, 2010)

How would this work then, we have lake lots in our development where the property lines extend into Lake Lanier, are you folks saying that someone could stop a person from fishing "their" property that extends into the lake?  Or is this where the "navigable" waters argument comes in?  Also if you can't fish these areas does the land owner have to obey game and fish laws?  If so then to me it would mean the game/fish are state property.  I do know from working with the EPD (work involved securing and renewing water withdrawal permits) that they will tell you they own the water on any given impoundment, creek, etc including private property.


----------



## JustUs4All (Feb 12, 2010)

NGxplr22 said:


> My belief? Signs hold no legal weight in Georgia.
> I'm not saying that you couldn't be charged with something if caught fishing on someone else's waters, but it would have nothing to do with the posted sign, unless it is a DNR sign or similiar.
> 
> You can have a no tresspassing sign posted every two feet at the edge of your yard but it's not against the law for me to come and stand in the middle of it. It is illegal for me to remain there once I'm asked to leave or to come back if I'm told not to.



All you have to have is notice.  The sign is your notice.


----------



## jonkayak (Feb 12, 2010)

Twenty five ought six said:


> The only Chattachoochee situation that I know about involved someone who did not own both sides of the river, and who allegedly was pretty violent about confronting boaters.



If it's the same guy I ran into he was just south of Hellen on a very popular white water section. His land bordered the river only on one side. He ran barb wire in the water and at different heights out to an island in the river that was only about 20' off his property. He was even known to occasionally let out a shot gun blast every now and then. The dude was nuts. I only actually saw him once but he was 

Another guy that got in trouble was actually in Atlanta. He got in trouble for placing coiled barb/razor wire in the river just below surface level to keep people off the cliff that formed his river bank. His problem wasn't with the people on the river but the people that wanted access to the cliffs for rappelling and and climbing.


----------



## Twenty five ought six (Feb 12, 2010)

tlsgcs said:


> How would this work then, we have lake lots in our development where the property lines extend into Lake Lanier, are you folks saying that someone could stop a person from fishing "their" property that extends into the lake?  Or is this where the "navigable" waters argument comes in?  Also if you can't fish these areas does the land owner have to obey game and fish laws?  If so then to me it would mean the game/fish are state property.  I do know from working with the EPD (work involved securing and renewing water withdrawal permits) that they will tell you they own the water on any given impoundment, creek, etc including private property.



We need more information.  The Corps of Engineer owns a band of land (25 feet?, may be more) around the entire shoreline of Lake Lanier, and owns the bed of the lake.  I would be highly suspect of any development that claimed to own  any part of the bed of Lake Lanier.

You might want to look at this, then look for the witness trees.
http://lanier.sam.usace.army.mil/brochures/Exhibit06.pdf

http://lakelanier.org/lake-lanier-shoreline-management/

http://www.docstoc.com/docs/3470354...tions-governing-the-use-of-Lake-Lanier(second paragraph under "introduction")


Game fish (actually any fish) are owned by the state just like game animals are.  It is _the right to take them_ that belongs to the landowner.  The state has ceded those rights to the landowner.  

Likewise, the state owns the water, but the landowner controls access to the water.  The state ceded this right to property owners also.

But assuming for the sake of argument that the property lines extend into the lake, the lake is not navigable waters, and a whole different set of legal principals kick in, depending primarily on the estates granted by the original common owner.  That being the case, no blanket statement can be made.

Even if part of the lake is privately owned (doubtful) the landowner has to abide by state game and fish laws.  The exception is a statutory one granted for lakes that are entirely owned by the land owner, the assumption being in that case that the land owner owns the fish.  Case in point is something like Brigadoon, privately owned, but on a river so state limit laws apply, versus some of the put and take ponds where you can catch as many trout as you can afford.



JustUs4All said:


> All you have to have is notice.  The sign is your notice.



That is correct.  Just as is a locked door or a locked gate.



jonkayak said:


> If it's the same guy I ran into he was just south of Hellen on a very popular white water section. His land bordered the river only on one side. He ran barb wire in the water and at different heights out to an island in the river that was only about 20' off his property. He was even known to occasionally let out a shot gun blast every now and then. The dude was nuts. I only actually saw him once but he was
> 
> That's the one I recall.  A real whack  job.  I think he hung signs from the wire he strung.  It's the shooting I recall.
> 
> Another guy that got in trouble was actually in Atlanta. He got in trouble for placing coiled barb/razor wire in the river just below surface level to keep people off the cliff that formed his river bank. His problem wasn't with the people on the river but the people that wanted access to the cliffs for rappelling and and climbing.


----------



## NGxplr22 (Feb 12, 2010)

> I think you are wrong there. My understanding is that if a property is posted you have to have written permission on your person to be on there.



No sir, that is not the case in Georgia.



> You won't be asked to leave, you'll be cuffed and hauled to Habersham County Jail.


I should hope not for the sake of the citizens of Habersham County as I understand that wrongful arrest suits can get expensive



> All you have to have is notice. The sign is your notice.



Georgia law does not consider a sign as notice.

For those of you feel I am incorrect, let me say that I have some experience with this part of the law. 
We had people steadily trespassing on my grandparents land a couple of years ago. I too believed that simply posting signs was enough to have those responsible arrested the first time they were caught. I soon learned that until they have been told by the landowner, a spokesman for the landowner or a LEO that they were infact not breaking the law in Georgia.
Luckily for us we were able to catch the main violaters more than once with LE present and some of the ones who trespassed on atvs were arrested for the destruction of private property. So I am not simply sitting here typing my opinion or what someone else told me.

If you disagree with me then I encourage you to contact an attorney or the local DA's office or the sheriff's office. Ask them what would be the charge if someone walked into your yard, past a no trespassing sign, and stood there until they were asked to leave.

Here is the actual code, Ga code 16-7-21



> § 16-7-21.  Criminal trespass
> 
> (a) A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.
> 
> ...




Also let me state that I would never knowingly trespass on someone else's property, nor do I wish for anyone to to set foot on mine. It is always better to know the law though, so I would simply go stand with the trespasser and wait for LE to arrive so that I could trespass them from my property.


----------



## JustUs4All (Feb 12, 2010)

You are confusing what the law states with what the law enforcement officers in your jurisdiction are willing to do.  In order to charge criminal trespass you have to prove notice.  A sign is notice, but you have to prove that the person saw the sign.  The standard of proof is beyond a reasonable doubt.  If your signs were not posted in a manner that would lead to that standard then you might not have given notice.  If you wanted to have your trespassers charged, you do not have to rely upon law enforcement do it for you.  You can swear out a complaint yourself.


----------



## NGxplr22 (Feb 12, 2010)

> You are confusing what the law states with what the law enforcement officers in your jurisdiction are willing to do.



So you are going with the ol "it may not be the law but that's how the good old boys in my neck of the woods do it" reasoning.
Have fun with that, I'm addressing the legal code of Georgia.



> If you wanted to have your trespassers charged, you do not have to rely upon law enforcement do it for you. You can swear out a complaint yourself.



There still has to be proof that a crime was committed. Per Georgia law someone walking into your yard, even with posted signs in plain view, has not broken a law simply with that act.

Like I suggested above, call the DA or sheriff and ask.
Or just keep believing you are right, I could care less.


----------



## tlsgcs (Feb 12, 2010)

This is an interesting thread.  

I do know that we definitely have one back lot line that is below the 1071/1072' elevation and goes through a small part of the lake, and a couple of corners on the recorded plats that are in the lake.  Not claiming to "own" part of the lake just the fact that some corners/lines are actually "under" water.

In the scenario of a river, the state owns the water, if I stay on state owned water (by virtue of a boat) and access said water from an area where I had permission (could be public access or private) am I trespassing on state property, since I am in the state owned water.  The reason I ask is even though a landowner could argue the access point, they don't "own" the water so in theory they can't control something they don't "own".  This is evident by the fact they can't remove or divert the water without approval from the EPD.  The right to fish/or remove fish or game I might understand but to say that you can't traverse an area seems sketchy, assuming you are not touching something the landowner owns.

Unless otherwise granted, it is assumed your property line extends upward into the air, under the premise that the state cedes the right to control that space to the owner, an airplane that flies over your house is trespassing, unless you grant easement, correct?


----------



## JustUs4All (Feb 12, 2010)

NGxplr22 said:


> So you are going with the ol "it may not be the law but that's how the good old boys in my neck of the woods do it" reasoning.
> Have fun with that, I'm addressing the legal code of Georgia.
> 
> 
> ...




Act upon your beliefs at your own peril, but try not to lead others astray.  

You might ponder this question: If no trespassing signs have no effect in Georgia, why would all of the time, effort, and cost to post them have been expended through out the years?


----------



## NGxplr22 (Feb 12, 2010)

My beliefs are based on Georgia law and I am encouraging people to ask those who are charged with enforcing and prosecuting that law if they have questions on the subject.
You are going around in circles because you have nothing to back up your position.



> You might ponder this question: If no trespassing signs have no effect in Georgia, why would all of the time, effort, and cost to post them have been expended through out the years?



The same reason I have my land posted, to show people that I do not wish them to enter my property. There are also, obviously, a great many people who believe that a sign carries legal weight in Georgia as it does in some other states.

I apologize to the OP for sending this thread off track, I'm going to go play in the snow now.


----------



## DarkKnight (Feb 12, 2010)

NGxplr22 said:


> My beliefs are based on Georgia law and I am encouraging people to ask those who are charged with enforcing and prosecuting that law if they have questions on the subject.
> You are going around in circles because you have nothing to back up your position.
> 
> 
> ...



Although this has gotten off topic I'll have to agree with NGxplr22 by personal experience from both sides. You CANNOT be arrested for just being on a property posted or not ON THE FIRST OCCURRENCE. I was on someone's posted property retrieving dogs several years ago, the property owner saw me and called the DNR. The DNR had to fill out a notice and have the property owner and I sign it stating that if I was caught again on the property it would be grounds for arrest. The owner was ticked because he wanted me arrested on the spot. The warden said he couldn't do it. Since then the owner and I have "buried the hatchet" after he simmered down. In another instance we had some kids on four wheelers trespassing on our lease. We had signs all over and have several LEOs in our club. We have caught several and held for the local cops or DNR. Because the offenders were crossing national forest lands with their ATVs they were charged on the spot for operating an ATV on national forest land but just got warnings for crossing onto our land (the exact same warning I received) and told if caught again they would be arrested on the spot. Now if you are caught removing something from the property you can be charged with not only theft but trespassing as well, on the spot. Whether you guys want to admit this correct is up to you, this is from personal experience.
As far as the OP. I have been told by several DNR rangers that if fishing on lake or river, if the property owner confronts you about fishing to just float on by. Just better not to escalate the situation I guess.... They also said be sure and DO NOT get out of the boat. I've never had a run in, always figured there was plenty more water to fish downstream.


----------



## crackerdave (Feb 12, 2010)

Randy said:


> where do you get that from?  Unless you have a private pond or a private fenced operation for game, no fish, birds, or game belongs to the land/ water owner.  It all belongs to the state.  Land owner's rights/ property does go to the centerline of the river but it has been ruled in at least one case not to include the water flowing over that land.  Catching fish from "private rivers" has not been ruled against the law that I am aware of?  There have been issues when a person waded on "private land" under the water to fish.
> 
> Again this law is vague at best and has been tried at least twice that I know of with two opposite verdicts.  The State Legislature really needs to better define this law.



They're too busy voting themselves another pay raise!


----------



## GoldDot40 (Feb 12, 2010)

Back to the original topic.....here's my experience in that situation. 

We were off riding power lines one day. We were in a big Ford Bronco 4X4. We came to a moderately sized 'creek/river'......which was a bit rocky, but appeared to be stable enough for us to drive up it a little ways....so we did. 

We decided to stop and were about to get out and take some pictures of the truck in the creek. The landowner from one of the banks came down the hill cussing and raising cane. He told us we were trespassing. We told him he didn't know what he was talking about and we didn't have to go anywhere. So he said he was calling the game warden. So we began to make our way back the way we came.

When we got back to the main road, the old man had gotten in his truck and saw us coming out of the power line. He followed us all the way back to my buddy's house and pulled off to the side of the road. So we go and and confront the man.....and our argument was that he didn't own the creek....but just the bank....which we never touched his dry land. He said the game warden was on his way. The game warden finally shows up. The man gave his side of the story 1st....which was identical to ours. We didn't step on the man's dry bank anywhere.

The game warden told the man that we WERE NOT trespassing on his land because any moving water that passes through his property is considered "waters of the state". The only thing we could be charged with was "IF" the creek been inhabited with trout....we could have been charged with disturbing a natural habitat.....and that was all. The old man left.....FUMING. Even told the game warden off. The GW simply told us just not to go back so we wouldn't get the man stirred up anymore.

Whether the game warden was right or wrong.....he interpreted the law a different way as some of you read it.


----------



## Twenty five ought six (Feb 12, 2010)

Bassquatch said:


> Back to the original topic.....here's my experience in that situation.
> 
> We were off riding power lines one day. We were in a big Ford Bronco 4X4. We came to a moderately sized 'creek/river'......which was a bit rocky, but appeared to be stable enough for us to drive up it a little ways....so we did.
> 
> ...



Another shining example of why you shouldn't get legal advice from a law enforcement officer.



> In the scenario of a river, the state owns the water, if I stay on state owned water (by virtue of a boat) and access said water from an area where I had permission (could be public access or private) am I trespassing on state property, since I am in the state owned water. The reason I ask is even though a landowner could argue the access point, they don't "own" the water so in theory they can't control something they don't "own". This is evident by the fact they can't remove or divert the water without approval from the EPD. The right to fish/or remove fish or game I might understand but to say that you can't traverse an area seems sketchy, assuming you are not touching something the landowner owns.



No one is questioning that the state owns the water.  Even the game warden is correct about that.  The question is controlling the _right_ of passage over that water.   In 1849, the state gave the right to control the right of passage (and the right of the fisheries) to the owners of the riverbeds of non-navigable rivers.  In most cases, the owners of land adjoining navigable rivers also own to the middle of the run of the river, but they do not control passage because that _right_ was not given to them.  The issue is not about the use of the water itself, but the passage of persons over the lands of another by use of a waterway -- two entirely different things.

Here's what the Georgia Supreme Court has to say about it,

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.
​That seems to pretty unambiguous to me.

Then the Supremes address the issue of "common passage"--

It also declared that the owner of a nonnavigable stream has the right to exclusive possession of it. See OCGA § 2210). _Thus, under that Code, no servitude of public passage is imposed upon a stream unless it is navigable under the Code._ The Code of 1863 is presumed to be a correct statement of the law in this state prior to its enactment, and the burden is on one who would argue otherwise to prove such contention
​Then in a case involving Armuchee Creek, summary judgment_ and a permanent injunction _was granted to the property owner to prevent member of the public (Georgia Canoeing Assoc.) from traversing his property by way of the creek.

The facts, insofar as they are relevant to the resolution of the instant appeal, are as follows: Contending that appellee-defendant had obstructed and interfered with their passage along Armuchee Creek, appellant-plaintiffs filed a complaint seeking injunctive relief. Appellee answered and also counterclaimed for injunctive relief as to appellants' passage along the creek._ The trial court granted appellee an interlocutory injunction and, on appeal, this court affirmed _without opinion pursuant to Rule 59. Georgia Canoeing Assn. v. Henry, 261 Ga. XXIX (1992). _Thereafter, appellee moved for summary judgment as to his entitlement to a permanent injunction. The trial court granted summary judgment in favor of appellee and appellants appeal. _​

This issue has been flogged to death on a couple of other forums, with all the same arguments, but the fact remains that the Georgia Supreme Court has squarely addressed the issue, has reached the same conclusion in two fairly recent cases (especially on an issue such as navigable waterways, which were established with flatboats), and until there is some legislative change, the issue is settled.
​


----------



## huntfish (Feb 12, 2010)

NGxplr22 said:


> No sir, that is not the case in Georgia.
> 
> 
> I should hope not for the sake of the citizens of Habersham County as I understand that wrongful arrest suits can get expensive
> ...





NGxplr22 said:


> So you are going with the ol "it may not be the law but that's how the good old boys in my neck of the woods do it" reasoning.
> Have fun with that, I'm addressing the legal code of Georgia.
> 
> 
> ...





NGxplr22 said:


> My beliefs are based on Georgia law and I am encouraging people to ask those who are charged with enforcing and prosecuting that law if they have questions on the subject.
> You are going around in circles because you have nothing to back up your position.
> 
> 
> ...



Like I posted earlier.   Do you personally want to try your thoughts?   Oh wait, just go and smile, you'll be on camera.   Property avidavit filed with county.  If you're on property without written  owner's permission, you're going to the jail.   100% conviction of trespassing.   Willing to chance it?


----------



## DarkKnight (Feb 12, 2010)

huntfish said:


> If you're on property without written  owner's permission, you're going to the jail.   100% conviction of trespassing.   Willing to chance it?



Sorry, your wrong, it won't happen. Unless you're told to leave and you refuse.


----------



## NGxplr22 (Feb 13, 2010)

DarkKnight said:


> Sorry, your wrong, it won't happen. Unless you're told to leave and you refuse.




Don't waste your time man. Some people just prefer to stay ignorant.


----------



## huntfish (Feb 14, 2010)

DarkKnight said:


> Sorry, your wrong, it won't happen. Unless you're told to leave and you refuse.





NGxplr22 said:


> Don't waste your time man. Some people just prefer to stay ignorant.


Not ignorant....Are you saying that anybody can hunt any land in the state of Georgia legally until they are asked to leave?


----------



## NGxplr22 (Feb 14, 2010)

You might want to reread my posts.
My comments were never based on hunting.
The example I stated was someone _walking on to your property and standing there. _If someone is hunting on your land, or messes up your flower beds as they walk across your yard or stare at your wife through the window as they stand in your yard then they can be charged without having to be told not to return to your porperty.



> Property avidavit filed with county. If you're on property without written owner's permission, you're going to the jail. 100% conviction of trespassing. Willing to chance it?



Care to reveal the source of your information?


----------



## jimbo4116 (Feb 14, 2010)

The question originally posted has been answered in post #42.

The thread has left the rail and the premise of this forum.


----------

