Citation Numbers: 114 Ga. 790, 40 S.E. 807, 1902 Ga. LEXIS 795
Judges: Lewis
Filed Date: 2/3/1902
Status: Precedential
Modified Date: 10/19/2024
Johnson and Grice were indicted, under section 588 of the Penal Code, by the grand jury of Camden county, for taking oysters from a private oyster-bed without the consent of the owner of the bed. The jury returned a verdict of guilty; whereupon they made a motion for a new trial, which was overruled, and they excepted. It was admitted that the accused persons took a quantity of oysters from an oyster-bed located in King’s Bay, in Camden county; and it was shown by uncontradicted evidence that King’s Bay is salt water and is an arm of the sea or the Atlantic Ocean, and that the tide ebbs and flows there. It was also admitted that the bed from which the oysters were taken was located between high-water and low-water mark at a point on the shore of King’s Bay immediately bounding the land owned by the prosecutor. It appears from the deed to this land, which was offered in evidence, that the eastern boundary of the property was stated generally to be “ West Shore River, or King’s Bay.” The court charged the jury as follows: “If you find from the evidence that the description given in the deeds of the lands conveyed thereby that one of the boundary lines of the lands thus conveyed is King’s Bay, the land conveyed would extend to low-water mark of the bed of the stream, and any oyster-bed located within those boundaries would belong
« At common law, in the absence of any special title by grant or prescription, the boundary of landowners abutting on the sea, or upon any estuary, tidal stream, or arm of the sea where there was a regular rise and fall of the tide, extended only to high-water mark. The soil between high-water mark and low-water mark was the property of the crown. This rule, so far as the boundary of the abutting landowner is concerned, has been almost universally followed in the United States. See 4 Am. &Eng.Enc. L. (2d ed.) 818 — 820, and cases cited; Tyler, Boundaries, 31 et seq. There seems to be no Georgia case in which the precise question here made has been adjudicated, but it is claimed by counsel for the State that the common-law rule has been modified by our statutory law as embodied in the Civil Code, §§3059,3060, the form er of which defines a navigable stream to be one capable of bearing upon its bosom, either for the whole or part of the year, boats loaded with freight in regular course of trade, and the latter declaring that the rights of the owner of lands adjacent to navigable streams extend to low-water mark in the bed of the stream. It is conceded that unless these code sections are applicable to sucha body of water as King’s Bay is in the present case admitted to 'be, the common-law rule before set out prevails at present in Georgia. It is claimed by counsel for the State that under the Civil Code, § 3059, the sole test to be applied in determining whether or not a stream is navigable is its capacity to bear upon its bosom boats loaded with freight, and that the question whether or not the tide ebbs and flows in any part of the stream should not be considered. But granting that such is the case, it is then pertinent to inquire if a bay, estuary, qr arm of the sea can, under this law, properly be termed a stream. It must be borne in mind that the statute in', question, as construed by the State’s counsel, would be in derogation of the commonlaw, and therefore demands a strict construction. A stream is defined by Bouvier as a current of water; a body of water having a continuous flow in one direction. 2 Bouv. 1. Dict. 1049. “A current of water; a body of flowing water.”
Nothing here laid down can properly be construed to affect any vested rights of owners of private oyster-beds in this State. It is not intended to announce any new rule of law, but simply to declare what has always been the law of this State. This decision can not have the effect of altering in the slightest degree the existing title to any private oyster-bed in Georgia.
Our conclusion is that, under the admitted facts of this case, the oyster-beds, for disturbing which the accused persons were indicted, were public property, and consequently there was shown no violation of section 588 of the Penal Code; that the court below erred in charging the jury that the deeds in evidence conveyed title to the soil to low-water mark in King’s Bay; and that the verdict of guilty returned by the jury was illegal and should have been set aside.
Judgment reversed.