Jump to Navigation
Jump to Content

State v. Ashmore

Citation: 6 ELR 20438
No. Nos. 30176, 30177, 224 S.E.2d 334/236 Ga. 401, (Ga., 02/24/1976)

The court upholds the constitutionality of a 1902 Georgia statute that extended to the low water mark the boundaries of lands adjacent to navigable tidewaters, but limits its scope to the cultivation and harvesting of oysters and clams. The 1902 Act was immunized from further constitutional attack by express ratification in the 1945 state constitution. Prior to 1902, title to the foreshore lay in the state. The Act nullified a prior court decision overturning the indictment of a defendant who harvested oysters from the foreshore, and granted to oystermen a property right in oyster beds they had planted in navigable tidewaters between the low and high water marks. It did not, however, grant fee simple title to this foreshore to the riparian owners. A portion of the Act granting title to owners adjacent to non-navigable tidewaters does not apply to this controversy. Public grants are construed strictly against the grantee; nothing can be taken by implication. The accreted lands on which the defendant planned to construct condominiums accrue to the subdivision lot owners bordering the subdivision boundary, which was the old high water mark. Nevertheless, the state holds title to the foreshore along navigable tidewaters.

A dissent argues that the 1902 Act was designed to remedy the restrictive effect of the court's prior decision, and thus should be read to grant title to the adjacent owners by extending the boundaries of the foreshore. Furthermore, the majority opinion effectively allows private property to be taken without just compensation.

A second dissent interprets a statutory caveat to the Act's boundary extension as creating an easement for public use of the foreshore for fishing, passage, and transportation, not, as appellees contended, as limited to common law public trust uses of navigation and commerce over the water covering the foreshore. In effect agreeing with the majority, this dissent further argues that the trial court's grant of summary judgment to the defendant ought to be overturned, since the attorney general has standing to assert a claim of infringement on statutorily-protected public uses. Also, owners of land adjacent to the accreted land should derive only easement rights over such land.

Counsel for Appellants
Patricia T. Barmeyer, Asst. Attorney General
132 State Judicial Building
Atlanta GA 30334
(404) 656-3300

Austin E. Catts
Nightengale, Liles & Dennard
1528 Ellis St.
Brunswick GA 31520
(912) 265-0220

Counsel for Appellees
Moreton Rolleston, Jr.
2604 First National Bank Tower
atlanta GA 30303
(404) 522-1243

Carl E. Sanders
Troutman, Sanders, Lockerman & Ashmore
1400 Candler Building
127 Peachtree St., NE
Atlanta GA 30303
(404) 522-7480

Counsel for Amicus Curiae
Jack J. Lissner, Jr.
Lissner & Killian
506 Monk St.
Brunswick GA 31520
(912) 265-5063

For himself, Jordan, Ingram, Hall & Coker, JJ.; Nichols, C.J. & Gunter, J., dissent, each with opinion.

Judgment reversed. Undercofler, P.J., Jordan, Ingram, Hall, JJ. and Judge Robert E. Coker concur. Nichols, C.J. and Gunter, J. dissent. Hill, J. disqualified.