dissenting.
This case is not about the ownership of the creek bed or the rights of property owners adjacent to the creek. The issue in this case is whether the public has a statutory or common law right of passage on the Ichauwaynochaway Creek because it is, or was, capable of navigation. The majority opinion misconstrues the statutory definition of navigable stream under state law and ignores the public’s right to use interstate waterways under the commerce clause of the United States Constitution. Because the record presents disputed issues of material fact, I would reverse and, on remand, would direct the trial court to consider whether the Ichauwaynochaway Creek is a navigable water under federal or state law.
1. Until today, this Court has never approved the grant of summary judgment on the issue of the navigability of a river or other body of water. In Ga. Canoeing Assn. v. Henry,4 we reversed the grant of summary judgment that enjoined the public from passing through Henry’s property on Armuchee Creek. Citing previous cases, we explained that summary judgment was generally inappropriate in equitable matters and that parties should proceed to a bench trial where the trial court can resolve disputed issues of material fact.5
*716That ruling was consistent with the two other cases in which this Court has considered the question of a river’s navigability at the interlocutory injunction stage. In Parker v. Durham,6 this Court reversed the trial court’s grant of summary judgment enjoining the public from traveling on the Hughes Old River by boat because the record showed questions of fact on the navigability of the river where it joins the Altamaha River in Long County. Likewise, we found conflicting evidence in Maddox v. Threatt7 on whether the Chattahoochee River between Morgan Falls Dam and Holcomb Bridge was a navigable river. A review of the record in that case shows that the adjoining property owner contended that the Chattahoochee was not capable of holding craft other than a shallow-draft canoe or flatboat due to shoals, rocks, and shallow water; the state contradicted that evidence by asserting that the relevant portion of the river could bear small freight-laden craft with a three-foot draft and eight-foot beam.
This case is in the same procedural posture as the Ga. Canoeing case in its second appearance before this Court.8 After the trial court here granted an interlocutory injunction, the property owner moved for summary judgment on its request for a permanent injunction, which the trial court granted. Since the trial court failed to consolidate the hearing on the interlocutory injunction with the trial on the request for a permanent injunction, this case should be reversed and remanded for a hearing.
2. OCGA § 44-8-5 provides the description of navigability for waters under this state’s law. The statute defines the term “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.”
The legislature first adopted this definition of navigable streams as part of the Code of 1863.9 In appointing persons to prepare that code, the General Assembly instructed them to develop a code that embraced the existing law, whether derived from common law, State Constitution, state statutes, Supreme Court decisions, or English statutes.10 Since the codifiers had no authority to originate new *717matter, the presumption is that the legislature did not intend to change the law.11 Thus, it is instructive to consider the common law at the time the Code of 1863 was approved to assist in interpreting the statute.
At English common law, a navigable stream was defined as a river or stream in which the tide ebbed and flowed.12 In response to different conditions in this country, the courts expanded the term to include freshwater rivers and lakes. In 1849, this Court described three kinds of rivers:
1st. Such as are wholly and absolutely 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.13
In defining the rights of the public on the second class of rivers, the United States Supreme Court held in The Daniel Ball14 case that rivers are navigable in law if they are navigable in fact. “And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”15
In defining commerce on water, the courts do not limit the term solely to the carrying of merchandise, but also apply it to the carrying of passengers16 and the rafting of logs and timber.17 The presence of artificial obstructions, such as dams or bridges, does not prevent the stream from being navigable in law if it would be navigable in fact in its natural state.18 Once a stream is found to be navigable, it remains so.19 Thus, if a stream is, or was, naturally of sufficient size to float boats, vessels, rafts, or logs, whether propelled by animal power, *718wind, or steam, the river is navigable water and the public has the right to use the stream.20
3. In interpreting statutes, the cardinal rule of construction is to follow the legislature’s intent. Statutes adopted in derogation of the common law must be strictly construed.21 “Unless the contrary manifestly appears from the words employed, the language of a Code section should be understood as intending to state the existing law, and not to change it.”22
Comparing the common law as developed in this country with the statute adopted in Georgia, it appears that the statute generally follows the common law on navigable rivers in the first sentence. That sentence defines a “navigable stream” as one that is capable of transporting boats loaded with freight in the regular course of trade for at least part of the year. On the other hand, the statute appears to have adopted a more restrictive definition than the common law in the second sentence, which eliminates the rafting of timber or flotage of logs as sufficient evidence to prove navigability.23 Construing the two sentences together, the proper standard in determining the navigability of a stream under Georgia law is whether the stream has been used, or is capable of being used, to transport boats loaded with freight other than timber or logs.
In applying this standard, courts may consider the historical use of the river.24 That is, it is the river’s capacity for commercial traffic as understood by lawmakers at the time they adopted the definition of navigable streams that applies.25 If we were to adopt the property owner’s position that the modern standard of commercial navigation controls, it would be difficult to find any river or stream that is navigable in the State of Georgia.26
This standard is consistent with the few cases in which our appellate courts have determined whether a particular stream or creek is navigable under OCGA § 44-8-5.27 In the first reported case, *719we found that Knoxboro Creek, a tidewater stream flowing into the Savannah River, was navigable where it provided transportation for flatboats and their cargoes from a rice plantation to the City of Savannah.28 Subsequently, the Court of Appeals found that the Canoochee River was not navigable because it was not capable of floating any boat loaded with freight or passengers at any time and was not capable of rafting logs or timber unless its waters were swollen by rain.29 Finally, without any discussion of the facts, this Court affirmed trial court judgments concluding that part of the Ogeechee River and the Armuchee Creek were not navigable streams under the statute.30
In this case, the trial court erroneously concluded as a matter of law that the Ichauwaynochaway Creek was not a navigable stream as defined by the state statute. It based this conclusion of law on its factual findings that a dam crosses the creek, a big tree lies across the creek immediately below the dam, the creek has rock shoals within two feet of the surface, and the size of boats that travel on the creek is limited. It failed to consider the cases applying the common law on navigable streams and then failed to construe the evidence in the light most favorable to Givens, instead resolving issues of fact in favor of Ichauway, Inc. The majority opinion compounds the error by its reliance on irrelevant expert testimony concerning the inability of a present-day commercial barge to travel the creek and its summary dismissal of all evidence supporting the creek’s capacity for freight traffic at the time the legislature first adopted the statute. None of the factors on which the trial court and the majority rely precludes a stream from being considered navigable under the state statute.
Construing the evidence in the light most favorable to Givens, as this Court must do on summary judgment, the record raises a disputed issue of material fact concerning the navigability of the creek. The evidence shows that the Ichauwaynochaway Creek is 75 to 200 feet wide; the creek through Ichauway’s property was used in the past to transport agricultural products south to the Flint River; the creek can still carry boats loaded with freight commonly used in the regular course of trade in the nineteenth century, as illustrated by the raft used in the Goat Float; and the power dam is an artificial obstruction that was built this century. Further, a review of state *720statutes supports Givens’ contention that the Ichauwaynochaway Creek has borne commercial traffic in the past. As part of legislative efforts to protect and improve navigation in the state’s rivers and creeks, the Georgia General Assembly in 1831 appointed three commissioners to examine the navigation of the Ichauwaynochaway Creek, described by citizens as “navigable for a considerable distance in Baker County,”31 and appropriated $1,500 in 1837 for the creek’s navigation.32 Based on this evidence, I would reverse the grant of summary judgment and instruct the trial court to hear further evidence on the navigability of the creek under state law based on its past and present capacity for water trade.
4. Finally, the trial court erred in considering navigability solely under state law. The question of navigability is a federal question.33 A river is a navigable water of the United States when it forms by itself, or in connection with other waters, a continuous highway over which commerce may be carried with other states and countries.34 The waters of the Ichauwaynochaway Creek flow into the Flint River, which joins the Chattahoochee River in the southwest corner of the state to form the Apalachicola River. The Apalachicola flows south across northwest Florida to the Gulf of Mexico.35 Therefore, the Ichauwaynochaway goes all the way to the gulf and is part of interstate commerce.
Because the creek is part of interstate commerce, federal law applies.36 The federal test of navigability is whether a river is used, or susceptible of being used, in its ordinary condition to transport commerce.37 On remand, the trial court should first consider whether the creek is navigable in fact under federal law before considering whether it is a navigable stream under state law.
I am authorized to state that Justice Hunstein joins in this dissent.
*721Decided November 24, 1997. Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., for appellant. James C. Brim, Jr., Robert C. Richardson, Jr., for appellee. Bondurant, Mixson & Elmore, Michael B. Terry, Paul H. Schwartz, Kilpatrick Stockton, Julie V. Mayfield, Wilson, Strickland & Benson, Daniel I. MacIntyre, Walker, Hulbert, Gray & Byrd, Michael G. Gray, Killorin & Killorin, Virginia W. Killorin, Edward W. Killorin, amici curiae.263 Ga. 77 (428 SE2d 336) (1993).
See Beaulieu of America v. L.T. Dennard & Co., 253 Ga. 21, 22 (315 SE2d 889) (1984); King v. Ingram, 250 Ga. 887, 888 (302 SE2d 105) (1983).
258 Ga. 140, 142 (365 SE2d 411) (1988). The property owner offered evidence showing that land formed a barrier between the two bodies of water at low tide; the fishermen offered evidence that boats could pass between the two rivers even at low tide.
225 Ga. 730, 731 (171 SE2d 284) (1969).
See Ga. Canoeing II, 263 Ga. at 77-78; see also Ga. Canoeing Assn. v. Henry, 267 Ga. 814 (428 SE2d 298) (1997) (affirming the permanent injunction against public use entered after a bench trial); Ga. Canoeing Assn. v. Henry, 261 Ga. XXIX (1992) (affirming grant of interlocutory injunction without an opinion).
The Code of the State of Georgia § 2208 (1863).
Ga. L. 1858, p. 95.
See Rogers v. Carmichael, 184 Ga. 496, 504 (192 SE 39) (1937).
Black’s Law Dictionary 926 (5th ed. 1979); see Boardman v. Scott, 102 Ga. 404, 406 (30 SE 982) (1897).
Young v. Harrison, 6 Ga. 130, 141 (1849).
77 U. S. (10 Wall.) 557 (1871).
Id. at 563.
See id. at 564.
See Joseph K. Angeli, A Treatise on the Law of Watercourses 695-697 (7th ed. J.C. Perkins ed. 1877).
Economy Light &c. Co. v. United States, 256 U. S. 113, 118 (41 SC 409, 65 LE 847) (1921).
United States v. Appalachian Elec. Power Co., 311 U. S. 377, 408-409 (61 SC 291, 85 LE 243) (1940) (absence of use because of the coining of the railroad, improved highways, or other changed conditions does not affect the navigability of rivers in the constitutional sense); Economy Light &c. Co., 256 U. S. at 123-124.
Angeli, supra, note 17 at 695.
Johnson v. State, 114 Ga. 790, 791 (40 SE 807) (1901).
Lamar v. McLaren, 107 Ga. 591, 599 (34 SE 116) (1899).
See Ga. Canoeing III, 267 Ga. at 815, n. 4.
See, e.g., Appalachian Elec. Power Co., 311 U. S. at 411-417; United States v. Utah, 283 U. S. 64, 83 (51 SC 438, 75 LE 844) (1931); Economy Light &c. Co., 256 U. S. at 117-118; The Montello, 87 U. S. (20 Wall.) 430, 440-441 (22 LE 391) (1874).
See 1985 Ga. Op. Atty. Gen. U85-8.
Cf. The Montello, 87 U. S. at 441 (in relying on “Durham boats” propelled by animal power, noted that it “would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway”).
See also Rauers v. Persons, 144 Ga. 23 (86 SE 244) (1915) (affirming conclusion that McQueen’s Inlet on St. Catherine’s Island is a navigable tidewater as defined in OCGA § 44-8-7), overruled on other grounds in State v. Ashmore, 236 Ga. 401, 413-414 (224 SE2d 334) (1976); Johnson v. State, 114 Ga. at 791, 792 (holding that term “navigable stream” does not *719apply to a bay, estuary, or arm of the sea).
See Charleston &c. R. v. Johnson, 73 Ga. 306 (1884) (record showed the stream was seventy-five to two hundred feet wide, fourteen feet deep where the bridge crossed it, and had an ebb and flow of three-and-one-half feet).
See Seaboard Air-Line R. v. Sikes, 4 Ga. App. 7, 9 (60 SE 868) (1908).
See Brantley v. Lee, 139 Ga. 600 (77 SE 788) (1913) (Ogeechee River dividing Screven and Bulloch Counties); Ga. Canoeing III, 267 Ga. at 814 (Armuchee Creek in northwest Georgia).
Ga. L. 1831, p. 264.
Ga. L. 1836, p. 31.
Utah v. United States, 403 U. S. 9, 10 (91 SC 1775, 29 LE2d 279) (1971).
The Daniel Ball, 77 U. S. at 563.
U. S. Army Corps of Engineers, Water Resources Development in Georgia 1993, p. 25 (1993).
See 78 AmJur2d 503, Waters, §§ 61, 72 (1975); cf. Blalock v. Brown, 78 Ga. App. 537 (1949) (since under the commerce clause Congress may require the recording of the purchase and operation of vessels on a navigable stream traversing two states, by analogy Congress would have the same right to legislate the recording of airplanes with a federal agency).
United States v. Harrell, 926 F2d 1036, 1039 (11th Cir. 1991) (citing United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 & n.19 (1940)).