Legalities of Creating the North and Middle Oconee River Water Trails

Ryan Moxom & Jacob WeldonEnvironmental Law Practicum, December 20 2013

University of Georgia School of Law

I. Statement of the Issue

The Upper and Middle Oconee Rivers run through Athens/Clarke County, Georgia, before converging and forming the Oconee River. These rivers pass through both public and private property along each of their approximately 11 mile paths through Athens/Clarke County. Kayakers and canoeists have enjoyed the rivers for recreational purposes for many years, and most access areas along the rivers are located on public, county owned property.

In an effort to encourage the use of the rivers and to promote the economic and conservation benefits that stand to be gained, Athens/Clarke County and the Upper Oconee Watershed Network (UOWN) have expressed interest in the creation of a “water trail” along the Upper and Middle Oconee Rivers.

Before investing time and money to establish the water trails, it is pertinent that the County ensures that a public right of passage exists on the river. The most recent case law regarding “right of passage” to Georgia’s rivers indicates that unless certain criteria are met, landowners adjacent to non-navigable rivers may deny access (see Appendix: Navigable Definitions). Georgia law states that navigable rivers are those “capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.”1 Therefore, unless it can be proven that a waterway meets the Georgia requirements to be considered navigable, owners of adjacent land may deny passage.

Establishing navigability under the Georgia Code has proven difficult and there is no comprehensive list of navigable Georgia rivers. As stated in an unofficial opinion by the Georgia Attorney General in 1985, “many Georgia rivers could meet the definition of ‘navigable stream’

1 Ga. Code § 44-8-5(a).

1

and be subject to public use as a highway of the state. Each must be judged by the characteristics peculiar to it.”2 However, long and continuous usage may establish a right-of-way via prescription, so long as the legal requirements have been met. Many Georgia Rivers already meet the requirements needed to establish a public right of way; a history of public use and public acceptance may lay the groundwork for the establishment of a public right of way by prescription. Efforts to create and promote the water trails could be in vain if certain preemptive legal measures are not taken. It is necessary to ensure that private landowners along the rivers will not be able to deny public passage through their land via the rivers.

While landowner rights to deny passage along a waterway often exist, many if not most landowners are either unaware of or do not exercise this right. Thus, when asked about these issues, knowledgeable stakeholders were apprehensive about publicly raising concerns about river passage where none currently exist, since many water trails have already been established in Georgia.3 The following recommended course of action aimed at alleviating these concerns while proposing avenues, which Athens/Clarke County may pursue, in order to ensure that such right of passage may not be legally denied.

II. Findings and Recommended Course of Action

As described below, it appears that an Implied Prescriptive Easement (and therefore, public dedication) currently exists on the Upper and Middle Oconee Rivers, allowing for public passage. Athens/Clarke County should be able to make a sufficient showing of the requirements to establish that a public easement exists and could thus provide express acceptance of the easement. This would help to address concerns regarding right of passage prior to moving forward. Furthermore, the County should partner with local land trusts (such as the Athens Land Trust or the Oconee River Land Trust) to help persuade landowners to permit public passage on the rivers for conservation and economic benefits. Landowners may be more likely to acquiesce to such terms offered by a not-for-profit organization as opposed to a local, state, or federal government.

A. Establishing the Existence of a Public Easement

In our case, the most attractive solution to ensure public access to a water trail is the establishment of a public easement along the waterway. An easement may be established through a public dedication of the riverbed. The two basic requirements for dedication of property to public use are: (1) An intention by the owner to dedicate the land to public use, and (2) acceptance of the dedication by the public. The intention to dedicate need not be expressed, it may be found by implication from the conduct of the landowner. Courts have held that a

2 1985 Ga. Op. Att'y Gen. 156 (1985) (emphasis added).3 Established Georgia Water Trails include the Altamaha River Canoe Trail, Augusta

Canal, Broad River Water Trail, Chattahoochee River NRA, Chattooga Wild and Scenic River, Coosawattee Blue Trail, Etowah River Water Trail, Okefenokee Canoe Trails, Ocmulgee Heritage Trail, Ocmulgee Blueway, St. Mary's River Trail, Toccoa Canoe Trail, Southeast Coast Saltwater Paddling Trail, and Upper Chattahoochee River Water Trail. Water Trails Website. Georgia River Network. (Nov. 20, 2014). http://garivers.org/gwtc/georgia-water-trails.html.

2

landowner’s acquiescence to public use of their property can show an implicit intent to dedicate that property to public use.4

In addition, it appears that the requirements for an implied prescriptive easement currently exist on the Upper and Middle Oconee Rivers. In order to establish that such an easement exists, the County must be able to show that the statutory requirements below have been met. The County can provide express acceptance of the easement or may seek declaratory judgment in order to alleviate any doubt as to the existence of the public easement. Seaboard Air Line Ry. v. Sikes,5 provides supporting Georgia case law (referring to prescriptive easement on the Canoochee River, a non-navigable stream).

To show that a public easement exists we begin with the requirements for establishing a “private way by prescription” and then demonstrate public use. The following sections (1-3) will describe how this is to be accomplished. “The right of private way over another's land may arise from an express grant, from [1] prescription by seven years' uninterrupted use through improved lands or by [2] 20 years' use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter.”6

1. Establishment of Right of Way by Prescription

“Whenever a private way has been in constant and uninterrupted use for seven or more years7 and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.”8

As indicated by the statute above, the County must be able to show that use of the river

has been constant and uninterrupted for the statutory period (20 years for unimproved land). Based on interviews with local outfitters (the Broad River Outpost and Mad Dogs on the River) it appears that recreational kayakers, canoeists, and outfitters have been using the Upper and Middle Oconee Rivers since the 1960’s. It is also of note that these outfitters have hosted instructional courses and tours on these rivers for many out-of-state clients; this should be sufficient to show that the rivers are capable of supporting interstate commerce, which is another vehicle for securing public passage that will be described further in Section IV.9

4 Jergens v. Stanley, 247 Ga. 543, 544, 277 S.E.2d 651, 652-53 (1981).5 4 Ga. App. 7, 60 S.E. 868, (1908)6 Ga. Code § 44-9-1 (emphasis added).7 Seven or more years likely refers to the seven years for improved lands and 20 years for

wild lands mentioned in the preceding paragraph. Id. It has not been assessed as to whether these two rivers traverse improved or wild lands. See footnote 10 for additional comments.

8 Ga. Code § 44-9-54 (emphasis added).9 This should be sufficient to establish federal jurisdiction via interstate commerce; under

the federal definition, the Upper and Middle Oconee Rivers may be considered navigable as they are “capable of supporting commercial activity.” Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1062 (11th Cir. 2013).

3

In order to meet the second requirement of this statute, the County needs to show that no landowners have brought suit for trespass or any other reason against boaters on either river. In addition, a prescriptive easement may not arise when permission has been granted for its use. It does not appear that any private landowner has granted express permission for public use of these rivers. Based on a search of existing case law and discussions with a long-term county recreation employee, it does not appear that any legal action has been taken to prevent use of these rivers. This can be further supported by the outfitters who have operated on the rivers. Together, these factors contribute to the existence of implied dedication.

i. Recommendation No. 1: Provide Supporting Documentation and Affidavit

County recreational officials should draft and sign a certified affidavit asserting that the rivers have been in use and that no legal action has been taken to prevent such use.

2. Show that the Statutory Period and Conditions for Converting Private into Public Right of Way Have Been Met

Kayakers and boaters have used the Upper and Middle Oconee Rivers for over 20 years.10

Big Dogs on the River and Broad River Outpost are two local outfitters that have been operating on the Upper and Middle Oconee Rivers and may be able to attest to public and private use for the statutory period.

Georgia Code § 44-9-60 lays out the requirements for converting a private way to a public road, which include “sufficient length and importance and the number of persons who habitually use it can and will do as much work thereon as is their proper share in working the road11 alone or in connection with adjacent public roads.”12 Thus, the primary difference between establishing a private way and a public one is showing public use and maintenance. Again, the local outfitters may provide sufficient documentation to show that the rivers have been in use by

10 Athens/Clarke County may be able to establish that seven years should be used as the statutory period since most of the Upper and Middle Oconee Rivers pass through improved land; in other words, land that is not “wild.” Hopkins v. Roach, 127 Ga. 153, 56 S.E. 303, 304 (1906). (referencing section 3065 of the Civil Code of 1895, predecessor of Ga. Code § 44-9-1)(“The land which the statute designates as “wild” is that which is located separate and apart from lands which are partly in cultivation. It is a segregated tract of land, remaining, as it were, in a state of nature, unenclosed, and with no indicia pointing to use by the owner.”).

11 It should not matter that the river is not technically a road. The term “way” or “right of passage” is interchangeable with “road” or “path” in the pertinent statutes. Ga. Code § 44-9-60 starts by using the phrase “way” and ends using “road.” Thus, the term should be taken to mean “way” or “right of passage” in general. Ga. Code § 44-9-60

12 Ga. Code § 44-9-60. Because an easement by prescription is established the moment that the statutory requirements are met (similar to adverse possession), the County should not be required to seek a declaratory judgment on the existence of the easement, which could cause some contention with public landowners if they have not been previously sensitized to the County’s intentions. However, the County could also have the easement recognized as a public way by having the probate judge declare it so and should be prepared to provide supporting documentation for the judge to make such a ruling.

4

the public (customers) over the years. Additionally, UOWN has regularly organized and hosted river cleanup activities that should suffice to show that the County and UOWN have done “and will do as much work thereon as is their proper share.”13 The County and UOWN should document all activities that have been conducted on the rivers, which will demonstrate their contribution to work and maintain these waterways.

i. Recommendation No. 2: Obtain Affidavits from Local Outfitters

Affidavits from local outfitters should state the number of customers served on these rivers, specific dates (if available) and activities conducted on the river, the locations and frequency that these activities were conducted, that such activities were conducted without express permission of the landowners adjacent to the rivers, and that Upper and Middle Oconee rivers have been in use by these outfitters for over 20 years (or as long as may be asserted).

ii. Recommendation No. 3: Obtain Affidavits from UOWN

Affidavits obtained from UOWN should state the number of volunteers and frequency of river maintenance activities conducted on the rivers and the years in which they have been conducted.

3. Acceptance

Absent an existing resolution of support that would serve as the County’s express acceptance, it may be implied from the public’s use and County’s oversight of a water trail for a sufficient length of time. Georgia statute provides that “[i]f [the land] shall be so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, [the owner] may not afterwards appropriate it to private purposes.”14

It is clear from the decision in Givens v. Ichauway, Inc.,15 which is explained in Section IV, that acceptance by a public authority is a necessary element of establishing a public easement by prescription. The Georgia River Network provides a boilerplate form for any local public authority to expressly accept a public easement (see Appendix B). Acceptance of a public easement need not be explicit; rather acceptance may also be implied. “If the property is used by the public, worked by the public authorities, and treated by the authorities as public property for a sufficient length of time, acceptance may be implied.”16 However, the County’s express acceptance of the easement (as indicated by the signed resolution) would serve as a protective measure against future legal steps to abolish the easement, should any be taken by successive landowners or other parties.17

13 Id.14 Ga. Code § 44-5-230 (2006). Georgia courts weighing in on the matter have held that a

seven year period is sufficient length of time to establish a history of public use. Hillside Cotton Mills v. Ellis, 23 Ga.App. 45, 97 S.E. 459 (1918).

15 268 Ga. 710, 493 S.E.2d 148 (1997)16 Jergens, 277 S.E.2d at 652.17 Ga. Code § 44-9-54.

5

i. Recommendation No. 4: Publicly Accept the Implied Prescriptive Easements

In order to protect itself against legal action that could threaten the easements, the County should expressly accept the easement via the Georgia River Network resolution template provided in Appendix B.

B. Public Relations Campaign

Although an easement by prescription may be established to ensure and protect public passage on the rivers, it is recommended that before any action is taken to promote the water trail, the County and UOWN engage in a robust public marketing campaign to promote use of the rivers. Public support, especially from interested landowners, is the best way to ensure success of any efforts to establish these water trails. Efforts to promote and encourage recreational use of rivers should also focus on the benefits that will be enjoyed by Athens/Clarke County, which include cost savings for water treatment,18 increased property values,19 increased tourism and influx of consumers, and the recreational and aesthetic benefits that will be enjoyed by the local populace.20 It is likely that when more people begin to use the rivers, they will more inclined to support policies and laws that will protect it.

i. Recommendation No. 5: The County Should Promote the Use of the Rivers

After all of the supporting documentation for an implied prescriptive easement has been compiled and the easement has been accepted by the County, the County and UOWN should begin to implement a promotional campaign designed to encourage use of the rivers.

C. Incentivize Landowners via Conservation Easements

18 Steve Lerner and William Poole, The Economic Benefits of Parks and Open Space 41 (The Trust for Public Land, 1999). Water trail designations serve as catalysts for the protection and restoration of the health of local waterways and surrounding lands. National Water Trails System – About. (Dec 10, 2013). http://www.nps.gov/WaterTrails/Home/About.

19 According to Economics Research Associates (ERA), a 1991 survey in Denver found that 48 percent of residents would pay more to live in a neighborhood near a park or greenway. How Cities Use Parks for Economic Development. American Planning Association. (Nov. 30, 2013). http://www.planning.org/cityparks/briefingpapers/economicdevelopment.htm.

20 The economic impact resulting from river tourism has been shown to create five dollars of associated spending throughout the community for every one dollar spent at a river outfitter. Economic Impacts of Protecting Rivers, Trails, and Greenway Corridors. National Park Service. (Nov 29, 2013). http://atfiles.org/files/pdf/NPSecon5.pdf. Kayaking and canoeing continue to experience increases in participation; from 2010 to 2011 recreational kayaking participation experienced the largest percentage growth of all outdoor activities. Outdoor Recreation Participation Topline Report 2012. Outdoor Foundation. (Nov. 20, 2013). http://www.outdoorindustry.org/images/researchfiles/TheOutdoorFoundationTopline2012.pdf?156.

6

This option provides valuable incentives for all interested parties; the County, residents, and UOWN. There are various land trusts in the Athens area that may assist in establishing conservation easements on the river. Conservation easements serve to ensure that landowners do not make detrimental changes to the river or its banks, such as; dams, docks, or other hazards. Another positive aspect of a conservation easement is that there is a designated land trust, having an interest in the upkeep and maintenance of the river, would provide landowners with peace of mind that their land adjacent to the river would be looked after and properly maintained. In addition, landowners may be eligible for tax incentives in the form of reduced local property taxes, among other incentives at the state and federal level, which are subject to change from year to year. Finally, the benefit of conservation easements to the County would be two-fold, protection of its water quality and public recreational use of the river. The loss in property tax revenue incurred by the County would likely be small, especially in light of future economic benefits gained by the water trails.

III. Other Courses of Action

There are various methods that the County may employ to ensure that the legal right of passage on a river exists and will be preserved for the public. Below are other options that the County may pursue in order to ensure public right of passage on the Upper and Middle Oconee Rivers. These courses of action are not recommended as the most efficient or timely methods of accomplishing the County’s intent, however, they are of merit and worth noting.

A. Change the Law

One option to ensuring public right of passage would be to expand the statutory definition of Navigable Stream or Navigability. Presenting the Georgia Legislature with proposed legislative language and justifications to support these statutory changes would provide a lasting solution to the “navigability” or “navigable stream” issue. The problems posed by the current language of the Georgia Code could be solved by the adoption of the federal definition of navigability: “Navigable waters... are [those] presently used, or [which] 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.”21

A statewide legislative change would provide access to more of Georgia’s waterways (rivers, creeks, and streams) that are capable of being traversed via kayak or canoe. The downside to this course of action is that it might be met with opposition from landowners who wish to restrict access to their property, as was the issue in several Georgia cases, which are addressed in Section IV. These concerns are not unwarranted if or where there is no responsible party designated to ensure upkeep of such waterways.

B. Condemnation

Eminent Domain may be used to condemn the corridor. Eminent domain is the government’s power to take private property for public use without the owner's consent. In

21 33 C.F.R. § 329.4.

7

Georgia, the local government must provide “just compensation” to the property owner whose rights are being interfered with.22 This option is the most contentious and costly of the several solutions presented in this paper. The local county government is likely to face backlash from the affected property owners and citizens at large who oppose the idea of government taking property for recreational use. A condemnation case before a jury could also be unpredictable in terms of the estimated value; the jury would likely have to decide between two very different valuations of the land (riverbed and possibly even portions of the riverbank) being condemned.23

C. Establish the Water Trails As They Are

The County could move forward in establishing the water trails and hope that no one brings a lawsuit, erects physical barriers to passage, or hires off-duty police to write trespassing citations. This course of action is the fastest and least expensive way of establishing the water trails, however, it poses potential for expensive litigation costs down the road if challenged. Other counties in Georgia, such as Gilmer County, have established water trails (like the Coosawattee Blue Trail) with no reported legal incidents to date; however, this does not mean that Athens/Clarke County would enjoy the same fortune.

D. Do Nothing

The County could simply maintain the status quo and do nothing. This is a low-cost, low-risk option, however, the County would miss out on potential economic and conservation benefits of establishing the water trail.

IV. Legal Background on Georgia River Passage

Recreational use of rivers in the United States has increased dramatically in the past century. As such, ensuring river access (ability to get to the river) and passage (ability to traverse the river) is a growing concern for many local governments. A public recreational waterway presents many desirable benefits for local governments; recreationally attractive waterways increase tourism and provide economic stimulus to the surrounding area by drawing in consumers from outside the county. However, Georgia’s river passage law presents various ambiguities that may cause local governments to pause before investing time and taxpayer dollars to develop river accesses and promote the use of its rivers. Therefore, it is necessary to

22 Ga. Code § 22-1-5.23 “There are two elements of just and adequate compensation for a partial taking of

property by condemnation: (1) the market value of the portion actually taken; and (2) the consequential damage, if any, to the remainder. In order to determine the total damages, a jury is required to follow a five-step procedure: (1) determine the fair market value of the entire tract of property before any part is taken; (2) the value of the partial portion taken considered as a part of the whole tract; (3) the value of the remaining tract but just before the taking; i.e., the value of the remainder as a part of the whole by subtracting the value of a part taken from the value of the entire property; (4) the market value of the remainder just after the taking, considering the negative impact of the separation of the part from the whole; and (5) the positive impact of the taking of the part upon the value of the remainder just after the taking.” Dep't of Transp. v. Ogburn Hardware & Supply, Inc., 273 Ga. App. 124, 125-26, 614 S.E.2d 108, 109 (2005).

8

examine the historical development of Georgia’s river passage law in order to understand the current legalities and ambiguity associated with river passage within the State.

United States law was founded on existing English law adopted by the Colonies. River passage rights in the United States began with the Magna Carta, established in 1215 in Great Britain, which stated that private landowners could not block river passage. In Section 30, the Magna Carta says “all merchants, unless they have been previously and publicly forbidden, are to have safe and secure conduct in leaving and coming to England and in staying and going through England both by land and by water to buy and to sell, without any evil exactions.”

The first Georgia case of importance regarding river passage law was Young v. Harrison, 6 Ga 30 (1849). In this case, the Court established that “[r]ivers are of three kinds: 1st. Such as are wholly and absolutely [sic] 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.”24 It further established that one who owns the banks of the river, owns the river bed in between, when one owns one of its banks, he owns the river bed up to the middle of the river, and that “[t]he public right [to the river] is one of passage, and nothing more, as in a common highway; it is called in the books an easement….”25

Later in the mid-1800s, the Georgia Legislature determined that every man should be able to plead his own case and in the interest of promoting public knowledge of the law, the State created and adopted the Georgia Code of 1863. The primary rule to be applied in codifying the law was that existing common law should not be altered. Unfortunately however, this rule was not adhered to with regards to river access. According to the Georgia Code of 1863, rivers were delineated as navigable or non-navigable rather than the classifications laid out in The Daniel Ball.26 This terminology was important as it established that the owner of land on both sides of a non-navigable waterway owns the waterway as well and is entitled to it just as he is to any other part of his land; unlike this common law set forth in Young v. Harrison, this includes the right to exclude or deny entry or passage. Likewise, an owner of one side of the waterway owns the riverbed up to the middle of the waterway and may conspire with the owner of the adjacent side to deny passage completely. Therefore, the question arises, what is a navigable waterway?

The Georgia Code defines a “navigable stream” as “a stream [or waterway] 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.”27 As the majority of Georgia rivers are shallow, winding, and narrow, none of Georgia’s rivers meet this requirement for navigability along their entire length and only a few which are navigable in part.

An important milestone in the history of federal navigability came just a short while later in the United States Supreme Court’s decision in The Daniel Ball. In The Daniel Ball, the

24 Young v. Harrison, 6 Ga. 130, 140-41 (1849).25 Id.26 The Daniel Ball, 77 U.S. 557, 19 L. Ed. 999 (1870).27 Ga. Code § 44-8-5 (1982).

9

Supreme Court established a standard of navigability for federal law and when it should be applied. It further clarified that the outdated common law doctrine regarding the ebb and flow of a river does not apply in the U.S. the way that it did in Great Britain. 28 (“Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters”). The test in the United States is found in a river’s navigability. A river is navigable if susceptible to use “as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”29 The Court in The Daniel Ball went on to clarify that the waters of the United States are those which allow such commerce between several states or foreign countries “in the customary modes in which such commerce is conducted by water” and that federal control does not extend to commerce “which is carried on entirely within the limits of a State.”30

From 1963 until 1997, Georgia’s navigability law went relatively unchallenged. In 1997, Atlanta School of Kayaking, Inc. (“School of Kayaking”) brought a suit against the Douglasville–Douglas County Water and Sewer Authority (“Authority”) for impeding passage down the Dog River.31 The Authority had constructed a reservoir on the Dog River by damming the river where it flows into the Chattahoochee and together with the local residents sought to deny access from all non-residents of the county. The School of Kayaking provided residents of Georgia, Tennessee, and North and South Carolina with kayaking lessons for profit. As such, the School of Kayaking was able to establish federal jurisdiction via the commerce clause as was indicated in The Daniel Ball. The Court found the river to be navigable and that the Authority lacked the right to deny public passage for the purpose of commerce. The Court enjoined the Authority from preventing non-resident access to the reservoir for egress from the Dog River.32

Thus, federal law preempts Georgia law due to the commerce clause when interstate commerce can be shown.33 Since federal navigability is easier to establish than navigability under the Georgia code, it is preferable and beneficial for those seeking to establish navigability under such terms. It has been argued that because many of Georgia’s rivers are capable of supporting kayaking and canoeing activities, and because they all eventually flow to the sea, they are susceptible to federal terms.

Despite the Federal Court’s kayaker-favorable decision in Atlanta School of Kayaking, a

parallel case was also decided in the same year in which the Georgia Supreme Court made a somewhat contradictory determination. The Georgia Canoeing Association (GCA) brought suit against a landowner, Ralph Henry, who sought to enjoin the GCA and its members from passing through his property via the Armuchee Creek. The Court held that “(1) [the] portion of Armuchee Creek at issue is not a navigable stream under federal law, common law, or Georgia statute, and (2) [that the] public has not acquired a right of passage by prescription.”34 However,

28 Id.29 Id.30 Id.31 Atlanta Sch. of Kayaking, Inc. v. Douglasville- Douglas Cnty. Water & Sewer Auth.,

981 F. Supp. 1469, 1470 (N.D. Ga. 1997).32 Id. at 1474.33 Id.34 Georgia Canoeing Ass'n v. Henry, 267 Ga. 814, 482 S.E.2d 298 (1997).

10

the Court’s comment on the issue of passage by prescription opens another door to right of passage which Georgia’s Code regarding navigability may otherwise have closed. Passage or easement by prescription as well as easement by public dedication will be discussed later in this proposal.

In the same year, another case was decided regarding the navigability of the Ichauwaynochaway Creek. In this case, Ichauway Inc. sought to enjoin Givens from trespassing on its leased property via passage on the creek.35 Givens sought various methods of establishing the creek’s navigability or right to passage, all of which failed for similar reasons stated in Georgia Canoeing Ass’n. Despite Givens act of floating a four by sixteen foot Styrofoam and wood raft (which drew one foot of water) loaded with a goat, a bale of cotton, and two passengers, through Ichauway's leasehold, the Court determined that he had not established navigability. This effort was an attempt to establish what would have sufficed as “the regular course of trade” in the nineteenth century. Thus, if the river would have been “navigable” then, it retains that status.36 However, the Court found no evidence in the record to show that the river had in fact ever been regarded as navigable under the statutory definition. Id. With regards to the public easement by prescription, the Court pointed out two specific reasons for Givens’ failure: (1) in order for there to be dedication of a public easement, there must be “acceptance by the appropriate public authorities”; and (2) “Givens’ deposition and affidavits of other users of the creek fail to show that any notice of an adverse claim was given to Ichauway or any predecessor in title. Such notice is required to show prescription.”37 In other words, if Givens had shown acceptance by a public authority and implied notice of continuous usage of the creek for the statutory period (20 years), then he likely would have been able to establish that a prescriptive easement existed.38 Thus, the current status of Georgia’s common and statutory law regarding navigability and river passage allows landowners adjacent to non-navigable rivers to deny entry or passage.

As indicated by Givens v. Ichauway, there is another way in which a party may establish the right of passage to a waterway. In Seaboard Air Line Ry. v. Sikes39, the Court held that “[u]nquestionably non[-]navigable streams may become subject to public servitude by long use. A right of way through land may be acquired by prescription, and there is no difference in principle in the acquisition of a right of way over the water in streams. Any incorporeal right that can be lawfully granted can be lawfully acquired by use.”40 Attainment of the right of passage via prescriptive easement will be further discussed later in this document.

The law is far less convoluted with regards to “right of access” to waterways. In order to gain access to a river one either needs permission of the landowner to cross the property from a public highway to the waterway or they need to find a public highway or public land intersecting the waterway. This is why many river access points are located next to public roads. There are laws which protect one from liability who trespasses for emergency purposes, but in general,

35 Givens v. Ichauway, Inc., 268 Ga. 710, 493 S.E.2d 148 (1997). 36 Ga. Code § 44–8–5(a).37 Givens, 493 S.E.2d at 153.38 Ga. Code § 44–5–230.39 Seaboard Air Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868, (1908)40 Id. at 869.

11

access via private land which has not been granted by permission is considered trespass. This is important as it pertains to portage (passage around impassable portions of a waterway), ingress, and egress of a water trail.

V. Other Related Issues A. Liability of Owners and Occupiers of Land, Georgia’s Recreational Use Statute

One common concern of both private landowners and local governments along a proposed water trail is their legal liability for recreational users on or passing through their property. For example, some landowners have concerns about injuries that may occur on the river or adjacent property; likewise, a county government would rightfully be concerned with any potential increase in liability for accidents occurring on county owned “put ins,” “take outs,” or parks along a water trail.

Under Ga. Code § 51-3-20 through 51-3-26, the State of Georgia has statutorily limited government and landowner liability with regards to land being used for recreational purposes. This includes the following uses: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.

Under Ga. Code § 51-3-22 (1965), an “owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”41

Government or landowner liability is limited to (1) “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or (2) [f]or injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof any, consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section.”42

B. Trespass

As indicated by the case law stated above (Givens v. Ichauway), a landowner can prevent access to the portion of the non-navigable river which crosses their respective property. If any of the courses of action listed above are successful in establishing public right of passage, there will be no concern for trespass “on the river.” However, it is important to note and educate future recreational boaters that even if there is a public right of passage along a waterway, there may not be a right of access through private land. One who leaves the waterway and sets foot on private land may become liable for trespass. In addition, a landowner may bring suit against any

41 Ga. Code § 51-3-22 (1965).42 Ga. Code § 51-3-25 (1965).

12

individual that knowingly enters his property without permission for the purpose of gaining access to or exiting from the river.43

43 Givens v. Ichauway, Inc., 493 S.E.2d 148 (1997).

13

Appendix A: Navigable Definitions

The issue presented with regards to navigability is that Georgia law provides that an owner of property adjacent to a non-navigable waterway may prevent access to that waterway.44 Many states and the Federal Government have differing definitions for term “navigable”. Some requirements for a river to be considered navigable are more restrictive than others. It appears that the pertinent law for navigability of the Oconee River is the current Georgia Statute listed below. However, under any of the following definitions, the Oconee’s navigable status is questionable.

A. Navigable as Defined Under the Clean Water Act and the Code of Federal Regulations

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.45 This definition does not apply as neither the Upper nor Middle Oconee Rivers are subject to the ebb and flow of the tide or capable of supporting interstate commerce as they are both confined to the State of Georgia.

B. Navigable as Defined Under Federal or Admiralty Law

The test for navigability under federal or admiralty law is whether the waterway is “capable of supporting commercial activity.”46 “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.”47 “It is the waterbody's capability of use by the public for purposes of transportation of commerce which is the determinative factor, and not the time, extent or manner of that use.” 48 Similarly, the presence of recreational craft may indicate that a waterbody is capable of bearing some forms of commerce, either presently, in the future, or at a past point in time. 49 Commerce must be interstate in nature for these terms to apply.

C. Navigable as Defined Under Georgia law

“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

44 Ga. Code § 44-8-5(b).45 33 C.F.R. § 329.4.46 Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055,

1062 (11th Cir. 2013).47 Id.48 33 C.F.R. § 329.6.49 Id.

14

navigable.”50 “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.”51

50 Ga. Code § 44-8-5(a).51 Ga. Code § 44-8-5(b).

15

Appendix B. Georgia River Network: Resolution Template

A RESOLUTION TO SUPPORT THE ______ RIVER WATER TRAILFOR THE COUNTY OF _______, GA

WHEREAS, the citizens of _______ County value its natural resources and outdoor recreation opportunities afforded by the ______ River; and

WHEREAS, the citizens value the ______ River for water quality and habitat protection; and

WHEREAS, the citizens of the County will greatly benefit from the recreational and natural experiences provided by the water trail and

WHEREAS, providing access to the river is a desired goal of the County; and

WHEREAS, the citizens of ______ County and visitors from throughout the State of Georgia and the United States have for more than twenty (20) years regularly and openly enjoyed and exercised a right of passage by boat on the _______ River as it travels through _______ County, thereby establishing a public easement of passage on the river; and

WHEREAS, _______ County has participated with (name other counties) to study and evaluate this water trail; and

WHEREAS, this water trail is consistent with the comprehensive land use plan of _____ County for recreational facilities for its citizens; and

WHEREAS, the County has previously supported activities that promote recreation on the river and has been a partner in the feasibility study for the water trail; and

WHEREAS, the citizens of _______ County have indicated their support for the water trail at (meetings or other events); and

WHEREAS, _______ County affirms and supports the water trail, beginning in _____ and ending at the confluence with the _______ River, to be of value and benefit to the citizens of _______ County and its neighboring counties.

NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioner of ______ County, Georgia;

Section 1: That this Resolution shall take effect immediately upon its adoption; and

Section 2: That we hereby direct each department in the County to work together and separately to implement this plan.

PASSED AND ADOPTED BY THE BOARD OF COMMISSION OF ________COUNTY, GEORGIA, this ________ day of _________ 2012.

By: ________________________________

Attest: _______________________________

16