dissenting. The writer was not a member of the court when these applications for writs of certiorari to the Court of Appeals were granted. Had I been, my position would have been to deny the applications.
When the Court of Appeals rendered the judgments in these cases, and when the applications for writs of certiorari were filed by the applicants, the rule of this court, 37 (j) (1), was: "Where the Court of Appeals has affirmed an *681order of the trial court denying a motion for summary judgment the Supreme Court will not entertain an application for the writ of certiorari.” On December 2,1971, this Court amended that rule, and the majority opinion has made the amended rule retroactively applicable in these cases. Granting these applications when proscribed by this court’s own rule seems to me to be an act of judicial arrogance, but my view is obviously in the minority on this point. I would hold the amended rule applicable only to judgments rendered by the Court of Appeals after December 2, 1971. Under the rule before December 2,1971, these applications could not have been granted, and I would now dismiss them as having been granted in violation of this court’s rule as it existed when the judgments of the Court of Appeals were entered.
I also concur with the judgments rendered by the Court of Appeals and would affirm them with direction as hereinafter stated.
The record in these cases indicated to me that the defendants in the trial court (hereinafter referred to as the defendants) have, over a period of years, made a concerted effort to prevent the public from using what they contend to be the nonnavigable tidewater area adjacent to their property, and the arrests and prosecutions of the plaintiffs in these cases for trespass was a continuing part of this concerted effort.
A majority of this court has decided that there was probable cause, as a matter of law, on the part of the defendants for the arrests and prosecutions of the plaintiffs, and that the record demanded that the trial judge render summary judgments in favor of the defendants in these cases.
I disagree with the majority.
To me the majority opinion contains its own death wound, namely, "the burden of proving the want of probable cause is on the plaintiff.”
Here the defendants made motions for summary judgments, and as I understand the summary judgment rule (Code Ann. § 81A-156) the burden is always on the movant (the defendants) and not on the respondent (the plaintiffs). *682See in this connection Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 206 (163 SE2d 256), wherein the court said: "On motion for summary judgment, the movant has the burden of showing the absence of any genuine issue of material fact, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); International Brotherhood v. Newman, 116 Ga. App. 590, 592 (158 SE2d 298). The movant 'has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.’ Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672); 6 Moore.’s Federal Practice (2d Ed.) 2853, § 56.23.”
I agree that the burden will be on the plaintiffs in a jury trial to prove the want of probable cause on the part of the defendants for the arrests and prosecutions, but that emphatically is not so in a ruling on a motion for summary judgment. The majority opinion has erroneously transferred the burden rule at a trial before a jury to the summary judgment arena. And such a transfer subtly eats away at our system wherein the jury decides issues of fact between litigants.
In viewing this record the plaintiffs below must be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. The majority opinion does exactly the reverse.
Without reciting details, the record in these cases is, to my mind, full of evidence that will require a jury to determine probable cause or no probable cause for the arrests and prosecutions initiated and carried out by the defendants against the plaintiffs. This record certainly does not demand summary judgments for the defendants.
The legal right of the plaintiffs to be where they were apprehended is, to me, beyond question. Sec. 3 of the 1902 Act (Ga. L. 1902, p. 108; Code §§ 85-1307 — 85-1309) says in plain language that the public has the right to be in any *683tidewater, navigable or unnavigable, for the purposes of passage and the transportation of freight. And to construe that language to mean that the public can be in and transport freight in all tidewater but cannot take fish out of it is somewhat incredible. This alone makes an issue for the jury of probable cause or lack of probable cause for the prosecutions.
Also, I should add that I am of the opinion that Sec. 81 of the Act of 1955 (Ga. L. 1955, p. 483), the provision of law pursuant to which the plaintiffs were prosecuted, is not applicable to fishermen fishing in salt water; other sections of the Act are applicable to trepass in salt water areas. And Sec. 90 of the 1955 Act (p. 527) plainly says that the entire Act is not applicable to persons sport fishing with hook and line. The mere reading of this language in Section 90 should have raised the least bit of doubt in the mind of the defendant-agent-attorney, the principal actor in the prosecutions on behalf of all of the defendants, as to whether he should swear out warrants and prosecute the plaintiffs for violating Sec. 81 of the Act. It has been necessary for those printing the unofficial Code to change "Act” to "Section” in Sec. 90, and for the majority opinion to interpret the unambiguous word "Act” to mean "Section” in Sec. 90 in order to hold that probable cause existed as a matter of law for the plaintiffs to be arrested and prosecuted under Section 81 of the Act. Arriving at the existence of probable cause in these cases, as a matter of law, by this circuitous route is the epitome of tortuosity.
Finally, the Georgia statute, in our Code as early as 1861, controlling the crucial issue in this case is Code § 105-802: "Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist where the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.”
This statute is clear and does not need to be construed; the issue is for the jury to decide; the circumstances must be such as to satisfy a reasonable man — not a judge or three judges or even seven judges.
*684And the last decision of this court that I am able to find that is squarely on this point is the case of Anderson v. Keller, 67 Ga. 58, decided in 1881. In that case the trial judge had passed on the issue of probable cause, as a matter of law, and granted a nonsuit. On appeal this court said in unmistakable words that still ring loud and clear over a period of nine decades: "it is true that it also appeared that the defendant had been advised by an attorney at law that the warrant would lie, but even if the whole proceeding had been without malice and with probable cause in the opinion of the judge, yet he should have sent it to the jury for them to pass upon it, and by their verdict to say whether that was true or not. Judgment reversed.”
Having said so much, I now simply say that probable cause or the lack thereof for the prosecutions in these cases was not and is not an issue to be determined by the court, trial or appellate. It is an issue of fact for jury determination.
I would affirm the judgments of the Court of Appeals, directing that this issue be determined by a jury below.
I respectfully dissent.