170 Ga. 855 | Ga. | 1930
The Capital City Sand and Gravel Company, a Florida corporation, filed its petition to enjoin the Florida Gravel Company, also a Florida corporation, from removing from certain whole and fractional land lots in the 14th district of Seminole County, Georgia, sand, gravel, and minerals. Complainant claims the right, under a lease from the true owner of said lots and fractional lots, to take and remove the sand and gravel from and off the same, and particularly the right to remove the sand and gravel from those portions of said lands lying within and adjacent to the Chattahoochee River in said county. It was admitted that the defendant had been going upon portions of said lots and removing sand and gravel therefrom, said portions lying between the low-water mark on the east bank of the Chattahoochee River and the thread of the stream. Of the lots from which the defendant was removing sand and gravel fractional lot 357 is a typical one. This lot was located in Early County when granted, but is now located in the 14th district of Seminole County. This lot was granted by the State to Martin Harden on June 2, 1821. In the plat of this lot, accompanying the grant, it is bounded on the west by the Chattahoochee River. It is admitted that the complainant is the succes
The issue involved in this case is whether the owners of lands adjacent to the east bank of the Chattahoochee Eiver, south of said parallel of latitude, have title to the soil between the low-water mark on the east side, and the middle of the stream. In Young v. Harrison, 6 Ga. 130, this court was dealing with the rights of riparian owners of land on the Chattahoochee River; and the particular question involved was whether the owners of lands abutting the Chattahoochee on the Georgia side were entitled to operate a public ferry for the transportation of travelers and others to and from Eufaula on the Alabama side of this stream, by reason of the fact of their ownership of the lands abutting the river on the Georgia side. The owners of the Georgia lands contended that they owned the soil under the Chattahoochee Eiver to the west bank of that stream, and that in consequence of the ownership of these lands they were entitled to operate a public ferry across the same. It thus became necessary for this court to define the rights .of the owners of land abutting upon a navigable stream, where the tide did not ebb and flow. This court held that rivers are of three kinds; that the first are such as are wholly and absolutely private property; that the second are such as are private property subject to the servitude of the public for passage over them, the distinguishing feature between these two being whether they are susceptible or not of use for a common passage; and that the third are rivers where the tide ebbs and flows, commonly called arms of the sea. In that case this court said: "It is not pretended that the Chattahoochee is at this point a navigable river, where the tide ebbs and flows; such is notoriously not the fact; it belongs to the second class
So it has been plainly held by this court that the owners, under grants from the State, of lands abutting on the Chattahoochee Eiver north of parallel of latitude 31 are entitled to the soil under the river to the western bank thereof, and that the owners, under grants from the State, of lands abutting on this stream south of said parallel of latitude are entitled to the soil under this stream to the middle or thread of the stream. So we are of the opinion that under these decisions of this court the complainant is entitled to remove the sand and gravel from the fractional lot with which we have been dealing, and from the other lots similarly situated. In this country the decisions relating to this subject are in irre
Judgment affirmed.