The
Georgia Supreme Court in a March 10, 1997 opinion has affirmed the
lower court’s ruling in the Armuchee Creek case, a long running legal
dispute between supporters of river access and a local land owner.
The GCA is one of the two parties on the “river access”
side of the case. While this opinion represents a major setback for
river access efforts in the state, there are some favorable aspects.
Below is a commentary by Dick Creswell of the Central Georgia River
Runners, an attorney, that says it better than we could. Following
the commentary is the actual text of the opinion.

Armuchee
Case Decision Commentary

by
Dick Creswell, Central Georgia River Runners

I
pulled up the Ga. Supreme Court’s final opinion and took a look at
exactly how bad it may be.

With
all consideration for the enormous amount of work that Craig
[Pendergrast], Dan [MacIntyre], and others invested in this effort,
I’ve got to say that paddlers came out pretty well. True, we have
lost a stretch of Armuchee Creek (at least as long as the stream bed
owner or his successor wishes to enforce his rights), but we have not
lost all the rivers and streams in the state. Fortunately, Dan’s
“meltdown scenario” was not set into motion by the Court’s
decision.

As
I read it, the Supreme Court narrowly affirmed the trial judge’s
finding of fact that Armuchee Creek is not “susceptible of
carrying useful commerce” in its natural state. While we know
otherwise (at least as we understand “useful commerce”),
all the Court said is that the trial judge’s finding of fact is
supported by the evidence. In other words, the Court’s review of the
record did not inexorably lead to the conclusion that the trial judge
was clearly wrong.

The
Court gave us a gift, I think. Explicitly declining to decide
whether the statute changed the broader common law right of passage,
is an indication — I think — that the Court might favorably
entertain that question in a case where the findings of fact make the
case come out one way under the statute and the other way under the
common law. The facts found here compelled the Court’s decision
under either rule of law (as they saw it).

At
some point in the future, a compelling test case (like Smith Island)
might come along and allow us to take the common law v. statute issue
back to the Court, with a lot of commercial and public interest at
stake on our side.

Meanwhile,
I think we are fortunate to have the breathing room to get back to
work organizing a statewide river-user network for the purpose of
raising the public consciousness (and political support) for the
right of passage. That sort of grassroots, broad-based support is a
necessary pre-condition to any hope of success in the legislative
arena.

We
may get some help from RiverCare projects near Macon, Rome, Athens,
etc. As they result in more public use of historically non-navigable
streams, they inevitably help us promoting political awareness of the
benefits of the legal right of river passage.

Congratulations
to Dan, Craig, and GCA for a good fight in the interest of paddlers.
Thanks!

Georgia
Canoeing Association v. Henry

March
10, 1997 Opinion of the Supreme Court of Georgia:

SEARS,
Justice.


This
appeal concerns a dispute between the appellants — the Georgia
Canoeing Association and Benny Young (hereinafter collectively
referred to as “GCA”) — and the appellee, Ralph Henry,
regarding whether there is a public right of passage over Armuchee
Creek where it flows through Henry’s property. GCA brought this
action, seeking to temporarily and permanently enjoin Henry from
stopping their free passage through his property on the creek.
Henry, on the other hand, requested that GCA be permanently enjoined
from traveling in boats and canoes through his property. After a
hearing on the question of permanent injunctive relief, [FN1] the
trial court entered an order, concluding that Armuchee Creek was not
a navigable stream within the meaning of relevant definitions under
the federal law, the common law, or Georgia statutes.

The
trial court also ruled that the public had not acquired a right of
passage by prescription. The trial court therefore permanently
restrained GCA from traveling on Armuchee Creek where it passes
through Henry’s property. GCA has filed this appeal.

After
a careful review of the record and relevant law, we affirm. First,
the evidence supports a finding that Armuchee Creek, where it passes
through Henry’s property, is not susceptible of carrying useful
commerce between states in its natural and ordinary condition and is
thus not a navigable stream within the meaning of federal law. [FN2]
Moreover, without deciding whether the definition of navigability set
forth in OCGA S 44-8-5(a), [FN3] by its express terms or by necessary
implication, effected a change in the common law definition of
navigability, [FN4] we conclude that the record supports a
determination that the portion of Armuchee Creek at issue in this
case is not a navigable stream under S 44-8-5(a) or the common law.
[FN5] Finally, we conclude that the public has not acquired a right
of passage on Armuchee Creek either by prescription or under Section
17 of Ga.Laws, 1830, p. 127. For the foregoing reasons, we affirm.

Judgment
affirmed.

All
the Justices concur.

FN1.
This is the third time this case has been before the Court. In its
first appearance, this Court affirmed, pursuant to Rule 59, the trial
court’s grant of an interlocutory injunction in favor of Henry. >
Georgia Canoeing Association v. Henry, (S91A1443), 261 Ga. XXIX
(1991). Following that appeal, the trial court granted summary
judgment to Henry on his request for a permanent injunction. On
appeal, this Court reversed the grant of summary judgment, ruling
that although the trial court resolved issues of fact for purposes of
the interlocutory injunction, the trial court was authorized to
resolve them only for that purpose and not for purposes of Henry’s
request for a permanent injunction. > Georgia Canoeing
Association v. Henry, 263 Ga. 77, 428 S.E.2d 336 (1993). On remand,
the trial court held a hearing on the parties’ requests for permanent
injunctive relief, and entered a detailed order granting Henry’s
request for a permanent injunction.

FN2.
> State of North Dakota v. United States, 972 F.2d 235, 238 (8th
Cir.1992); > United States v. Holt, 270 U.S. 49, 54-56, 46 S.Ct.
197, 70 L.Ed.2d 465 (1926); > Leovy v. United States, 177 U.S.
621, 632-34, 20 S.Ct. 797, 44 L.Ed. 914 (1899); 78 AmJur2d, Waters,
S 69.

FN3.
That code section defines a “navigable stream” as “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 navigable.”

FN4.
” ‘[S]tatutes are not understood to effect a change in the
common law beyond that which is clearly indicated by express terms or
by necessary implication.’ ” > Avnet, Inc. v. Wyle Labs.,
263 Ga. 615, 620, 437 S.E.2d 302 (1993). Professor Farnham of Yale
Law School has written that Georgia and several other states have
adopted navigability statutes that are “limitations of the
common law rule.” 1 Farnham, Water and Water Rights, S 23g
(1904).

FN5.
See 1 Farnham at S 23.

Ga.,1997.

Georgia
Canoeing Association et al., v. Henry.