dissenting.
The land involved in these cases, asserted by the appellees to be in their ownership subject only to a very limited easement over part of it in favor of the public, is bounded on the east by the Atlantic Ocean, a navigable tidewater. The primary issue for decision is whether the eastern boundary of tbe land is the high-water mark or the low-water mark as those marks are established by the Atlantic Ocean. Other issues in the cases depend upon and flow from the decision rendered on this primary issue.
The court has held, as I read the majority opinion, that the boundary of land bordering the Atlantic Ocean is the high-water mark, and that the owner of land bounded by the high-water mark has certain limited rights, as conferred by the 1902 Act, in the foreshore area adjacent to his land. The majority holds that the State still owns the foreshore, that area between the high-water mark and *420the low-water mark, subject only to the limited rights of the landowner whose property is actually bounded by the high-water mark.
This court had held, prior to the enactment of the 1902 Act, that if a landowner’s property was bounded by the Atlantic Ocean, the actual boundary line of his property was the high-water mark. Johnson v. State, 114 Ga. 790 (40 SE 807) (1902). I can only read the 1902 Act to mean that the General Assembly overruled this court’s decision in Johnson v. State, supra, by establishing the boundary of land adjacent to the Atlantic Ocean at the low-water mark rather than the high-water mark as this court had ruled. The low-water mark boundary was established by the General Assembly subject to the proviso contained in section 3 of the 1902 Act. The proviso reads: "... provided, however, that nothing in this Act contained shall be so construed as to authorize such an exclusive appropriation of any tidewater, navigable or unnavigable, by any person whomsoever, as to prevent the free use of the same by others for purposes of passage and for the transportation of such freights as may be capable of being carried thereover.”
It is therefore my view that since the effective date of the 1902 Act, the eastern boundary of land adjacent to the Atlantic Ocean has been the low-water mark. However, the extension of such boundary from the high-water mark to the low water mark by the General Assembly was specifically subject to an easement in favor of the general public to use the foreshore, the area between high-water mark and low-water mark, for the purposes of fishing, passage, and transportation. But I do not agree with the narrow, limited interpretation of "fishing, passage, and transportation” urged upon the court in this case by the appellees.
The appellees concede that they do not have absolute title to the foreshore by virtue of the 1902 Act, but they contend that the only rights that the people had and have in the foreshore after the 1902 enactment were and are the "limited rights of navigation and fishing in the waters covering the foreshore.” They equate the reservation contained in the proviso of the 1902 Act with the "public trust” concept derived from the Common Law. They *421argue, citing cases from other jurisdictions, that the only rights reserved to the public under the Common Law trust doctrine are rights in the waters when such waters cover the foreshore, and that there are no public rights in the foreshore when the waters have receded to the low-water mark. They argue in their brief: When waters are at the low-water mark, the public has the privilege of using the water up to that line; when the water is at the high-water mark, the rights of the public are extended accordingly ... The rights specifically reserved in the 1902 Act were those of fishing, of 'passage,’ and of use 'for the transportation of such freight as may be capable of being carried thereover.’ The rights of passage and transportation of freight correspond directly with the Common Law rights of navigation and commerce. The rights reserved are those basic rights recognized under the common law trust doctrine. There is no justification for an interpretation of the terms of the 1902 Act which would extend the public rights beyond those embraced in the common law trust. Thus, while the public has the right to use the water covering the foreshore for the purposes of passage, transportation of goods, and fishing, there is no basis for the recognition of any other right in this area.
I reject this argument by the appellees. I do not equate the reservation of rights to the people contained in the 1902 Act with the reservation of rights apparently recognized in some jurisdictions under the Common Law trust doctrine. The 1902 Act, as I construe it, extended the boundary of land abutting the Atlantic Ocean from high-water mark to low-water mark, but it also reserved to the people certain rights in the land comprising the foreshore, those rights being passage, fishing, and transportation. The rights reserved to the people by the 1902 Act were not mere rights in the waters which cover the foreshore at high tide and then recede from the foreshore to the low water mark at low tide.
I conclude that the terms of the proviso in Section 3 reserved to the people, and to the State as representative of the people, an easement in and upon the foreshore for: (a) passage by boat, vehicle, or afoot, and (b) transportation by boat, vehicle, or other appropriate means. It is also clear tome from Section 3 of the Act that *422fishing, except for oysters and clams, by the people on the foreshore was not proscribed. In other words, the right- of the people to fish on the foreshore from boats, from docks, or afoot was reserved.
I would therefore hold that the boundary of property abutting the Atlantic Ocean is the low-water mark, but that the area between the high-water mark and the low-water mark, the foreshore, is impressed with an easement in favor of the public for fishing, passage, and transportation, as herein defined.
I
The State’s Appeal
The trial court dismissed the State’s complaint for failure to state a claim. I think this ruling was erroneous. The State, as representative of the people, has standing to bring a complaint for a judicial determination of public rights in land. The appellees and their predecessors, the original defendants, were asserting ownership rights that the State contended were adverse to the rights of the public in the land in question. Therefore, I think the complaint stated a claim, and it should not have been dismissed.
The trial court also granted summary judgment in favor of the appellees and against the State. I think this ruling was also erroneous. I interpret the trial court’s judgment as foreclosing and denying certain rights of the people, as asserted by the State, in the foreshore area involved in this litigation. As I have stated hereinbefore, I think the rights reserved to the people in the foreshore cannot be abridged or denied by the appellees. To the extent that the trial court’s judgment held otherwise, I would reverse that judgment.
I do not think that the people, and the State as representative of the people, have any property rights in accreted land above the high-water mark, land that is located outside the confines of the foreshore, unless such rights have been acquired by conveyance or prescriptive use. I would reject the State’s arguments based on dedication and custom.
II
The Appeal by Lines et al.
The trial court granted summary judgment in favor *423of the appellees against these appellants. I think this ruling was erroneous. These appellants, like the people in general, have rights in the foreshore that cannot be abridged or denied by the appellees. Therefore, the judgment below, to the extent that it denied these appellants the right that the public has in the foreshore, should, in my opinion, be reversed.
The rights that these appellants may have or may not have in the accreted land above the high-water mark and outside the confines of the foreshore poses a different problem. These appellants purchased their subdivision lots pursuant to a plat that showed Beach Drive as the eastern boundary of the subdivision. The eastern boundary of Beach Drive was, at that time, the high-water mark and the landward boundary of the foreshore. Since 1911, when the subdivision plat was prepared, the foreshore has moved seaward and accreted land now exists between the eastern boundary of Beach Drive and the present high-water mark. In other words, this accreted land now lies between Beach Drive and the foreshore. The 1911 plat designated the area east of Beach Drive, at that time the foreshore, as "Beach.” It is thus seen that the original subdivision owners, and the appellees here are their successors in title, had ownership rights in the foreshore after the passage of the 1902 Act. Tbe land between Beach Drive and the present foreshore is therefore owned by the appellees unless the original subdivision owners, by conveying subdivision lots pursuant to the prepared plat, granted an easement to the purchasers of lots in the subdivision that would permit such purchasers to use the area east of Beach Drive. I conclude that the public has no rights in this accreted land, and such rights as the purchasers of lots may have is solely by virtue of their being purchasers of land pursuant to a subdivision plat. The appellees acquired their ownership rights in the accreted land from the original subdivision owners. Likewise, the appellants, owners of lots in the subdivision, derive their easement rights, if any, in the accreted land from the original subdivision owners. The contesting parties are therefore asserting rights in the accreted land that have come down to them from a common source of title. I think that this issue *424between subdivision lot owners and the appellees must yet be determined in the trial court.
Beach Drive has never been opened and maintained as a street. Glynn County does not claim any rights in it. I think that the owners of subdivision lots that abut on the west side of Beach Drive now own the western one-half of Beach Drive. The appellees, whose predecessors in title retained ownership rights in the area east of Beach Drive, now own the eastern one-half of Beach Drive where it abuts accreted land in which they have ownership rights. I think that the appellees’ ownership of such eastern one-half of Beach Drive and their ownership of the accreted land east of Beach Drive is subject to any easement thereover that subdivision lot-owners may have, an issue that should hereafter be determined in the trial court.
My determination of the present ownership of Beach Drive is dictated by this court’s decision in Johnson & Co. v. Arnold, 91 Ga. 659 (18 SE 370) (1893). The "marginal monument rule” does not, in my opinion, apply in this case, because the original subdivision developers retained ownership rights in the area east of Beach Drive, this area being the foreshore when the subdivision plat was prepared.
Ill
My Conclusions
1. The appellees’ land in these cases in bounded by the Atlantic Ocean, and the seaward boundary is the low-water mark. However, appellees’ land that lies within the foreshore is subject to an easement in favor of the public as delineated in this dissenting opinion.
2. The people have no rights in accreted land outside the confines of the shifting foreshore unless such public rights have been acquired by conveyance or prescriptive use.
3. The appellants who are subdivision lot owners have no ownership rights in accreted land east of Beach Drive; and such easement rights as these appellants may have, if any, in the eastern one-half of Beach Drive and the accreted land east of Beach Drive should hereafter be determined in the trial court.
I would reverse the judgment below and remand *425these two cases to the trial court for further proceedings consistent with my views stated in this dissenting opinion.
I respectfully dissent.