WHO OWNS THIS RIVER?
How can someone own a river? Well, in Georgia
it is actually possible, at least according to the law. At Georgia River
Fishing, I am often asked exactly what constitutes trespassing while floating or
wading a stream. The laws and court decisions regarding angler and paddler right
of passage on Georgia's rivers and streams can be confusing and contradictory.
This is an effort to help clear up some of the confusion and offer a bit of
common sense regarding the use of our moving waterways.
Every so often, we hear stories of river
fishermen being confronted by landowners accusing the fishermen of trespassing.
Unfortunately, these confrontations are increasing in frequency as more and more
rivers and streams become developed. Still, they are quite rare, especially
since most anglers tend to be polite and well-behaved. Still, current Georgia
law is rather unkind to river enthusiasts, and our state's water rights laws are
among the most restrictive in the nation.
A key point is whether or not the waterway is
considered navigable. If it is considered navigable, floating or motoring
through is permitted. If not, the landowner may refuse access. Unfortunately,
the great majority of Georgia's rivers and streams are not considered navigable
under Georgia law. A waterway is considered navigable if it is "capable of
transporting boats loaded with freight in the regular course of trade either for
a whole or a part of the year. The mere transporting of timber or the
transporting of wood in small boats shall not make a stream navigable" (OCGA
44-8-5, 1863). Sections of streams that are affected by ocean tides are
considered navigable. Basically, a section of river is considered navigable (and
therefore floatable) only if it is capable of regularly handling barge traffic.
So does this mean that only coastal anglers
or those living near the Altamaha, Savannah, Coosa, and lower Chattahoochee can
legally go fishing? What about the vast majority of us who want to fish
nonnavigable streams? According to Georgia law, "The beds of nonnavigable
streams belong to the owner of the adjacent land" (OCGA 44-8-2, 1863). This
law also states that the owner's property rights extend to the midpoint of the
Now I realize that this sounds pretty bleak,
but a careful reading of the statute will show that the landowner owns the
stream bed, not the water flowing over it. Another reality that helps out
fishermen is the fact that it is somewhat rare for both sides of a stream to be
owned by the same person. In cases where the landowner owns property on both
sides of the stream, courts have upheld the rights of property owners to
restrict boat traffic and the taking of fish from their section of the stream,
even in cases where fish in the stream were stocked at public expense. "If
the riparian owner owns upon both sides of the stream, no one but himself may
come within the limits of his land and take fish there and...his rights to the
fishery are sole and exclusive" (Bosworth v Nelson, 170 Ga. 279, 286, 152
SE 575, 1930).
Okay, so there's what the law says, and while
Georgia law currently sides with landowners, the reality of the situation is
that it is generally not worth worrying about. There have only been a couple
instances of landowners denying boat passage in the history of the state, and
only a few more of landowners running off fishermen in boats. 99.9% of
landowners are reasonable people, and those that aren't usually don't own both
sides of the river. In these cases, an angler can paddle over to the other side
of the river and be within their legal rights to stay there all day as long as
the adjacent landowner doesn't care (or is not present). The best thing to do in
most cases, however is to wish the guy a nice day and move on. There is surely
more pleasant water around the next bend.
For anglers who prefer to wade, the law is a
bit more restrictive, since wading puts the angler on the stream bed. Again,
most of the time landowner's don't mind, but if they do, an angler can wade to
the other side of the stream as long as that landowner doesn't own both sides.
If the landowner does own both sides, you need to leave. While boating anglers
almost never have problems with landowners, waders occasionally will, due to the
fact that waders stay in an area much longer. For this reason, I generally try
and wade areas that are out of sight from houses. Still, if a great looking
wading spot happens to be right in front of someone's house, I usually wade it
anyway. The few times I have actually encountered a landowner while wading, they
almost always just wanted to talk fishing and often gave good advice on what the
fish were biting.
One factor that makes river fishing so
attractive is the lack of competition on the water. This is due in part to the
scarcity of improved boat ramps, particularly in middle and northern Georgia.
Dedicated river rats often launch boats at bridges, and we've received a few
questions regarding access at public bridges. Normally, a public right of way
exists 50 feet on either side of state highways, and individual counties have
their own rules for county roads. Still, sometimes people's yards appear to
extend all the way to the bridge and down to the river. In most cases, at least
one side of the bridge is fairly undeveloped, and it is often evident (look for
tire tracks or paths) which route is most often used to access the river. If you
are unsure, knock on somebody's door and ask permission. Just don't do it at
5:30 in the morning!
The bottom line is this: Fish where you want
to. Be clean, quiet, and courteous. If a landowner doesn't want you there, then
leave. There are surely many other good spots on the stream.