The superior court case file is NoFree, LLC v. 1000 Acres Marsh/Rice known as Arnold's Point, State of Georgia, and all other persons, Case Nos. SUV2019000303 and SUV2020000321, filed 2019, final decree December 23, 2024, Bryan County Superior Court.

          I was not involved with the suit but kept close tabs on its progress.  The litigation was unnecessary except that in recent years the state has made tenacious efforts to assert it owns all the lands beyond the mean high tide level of tidewaters.  In the past, private ownership of tidal areas was not questioned when there was a grant out of the crown or state.  NoFree, LLC had a clear grant and chain of title for the marsh in question.  Because of the legal presumption that, in the absence of a specific grant, the state owns all such lands, NoFree was obliged to file a quiet title action to confirm its title.  I will describe the circumstances and evidence, and analyze the various arguments the state made in attempting to refute that evidence at both the trial and appellate levels, and NoFree's responses.  Many of the arguments put forth by the state were blatantly untenable because it was grasping at straws to get a judgment in its favor.  It abandoned several of its arguments upon the appeal.

          I need to mention the Samsog web site forum discussion "Boundary along tidewaters," dated 7/4/2024  https://www.samsog.org/forums/Posts.aspx?topic=1773903  Much of that discussion was about O.C.G.A. §§ 44-8-6 to 44-8-8.  I stated that those code sections can, for the most part, be ignored with regard to property rights along the coast.  It is noteworthy that neither party, nor the special master, nor the judges, made any reference to those code sections for the NoFree case--an indication of how insignificant they are.

          The land involved is a 1,000-acre tract of marsh, formerly in rice cultivation, known as Arnolds Point.  It is located in a sharp bend of the Great Ogeechee River called "the Elbow" or "Seven Mile Bend", and is adjacent to Richmond Hill in Bryan County.  The property is at:  N 31° 54' 36"   W 81° 12' 27".

          In 1754 the colonial government had Henry Yonge to lay out George Town on the highland immediately adjacent to and overlooking Arnolds Point.  The town was named for George, Prince of Wales, later King George III.  Yonge designed George Town in grand township fashion with rectangular shaped lots and blocks, public squares, streets, and a common.  The original plat, dated May 9, 1754, is in the Library of Congress and is online at  https://www.loc.gov/resource/g3924h.ar157200/ .  (Notice the direction north is "down" on the plat.)  A few months later the name of the town was changed to "Hardwicke", after Philip York, the 1st Earl of Hardwicke, the Lord Chancellor of Great Britain, and patron of then Georgia Governor John Reynolds.

          The Yonge plat labels Arnolds Point “large fresh Water Marsh reserved for the use of the Township”.  At the meeting of the Governor and Executive Council on February 25, 1755, it was noted "that a Peninsula of Marsh Land, lying to the North of Hardwicke [that is Arnolds Point], might be extremely beneficial for a Common for the Inhabitants of the said Town."  It resolved "That said Peninsula be reserved and appropriated for a Common for the use of the Inhabitants of Hardwicke aforesaid."  Allen D. Candler, et al., eds. The Colonial Records of the State of Georgia, volume 7, page 125, online at https://babel.hathitrust.org/cgi/pt?id=mdp.39015039780369&seq=131

          Hardwicke was intended to be a seaport.  Its establishment placed a premium on the value of the marsh in front of the town and thereby, without the resolution, a strong incentive for someone to take out a grant for that area.  Thus, it seems the purpose of reserving the marsh in front of the town to the lot holders was to deter others from taking out grants for that area which would partially shut the town off from its waterfront.

          Applications for grants for lots in Hardwicke were initially brisk, but soon slacked off.  As it turned out, the town of Hardwicke failed to grow to any significant extent, and, by the early 1800s, it ceased to be inhabited by permanent residents.

          Arnolds Point was granted by the state of Georgia to James Shuman on December 15, 1834.  Governor Wilson Lumpkin signed the grant.  Lumpkin, incidentally, was an accomplished land surveyor, he performed surveys before and after he left office as governor, and he did some of the initial layout of Atlanta.  The description in Shuman's grant reads: "all that Tract or parcel of Land containing Five hundred acres; situate, lying and being in the county of Bryan in the said State: and butting and bounding On all Sides by vacant lands Having such shape, form, and marks, as appear by a plat of the same hereunto annexed.”  Headright Grant Book RRRRR, page 293, Georgia Archives, Morrow, Georgia. Copies of the grant and plat are attached with this post.

          NoFree filed the quiet title action in 2019.  A special master was appointed to hear the arguments and weigh the evidence.  There was no jury.

          The state argued that the prior reservation of the property as a common for the use by the inhabitants of Hardwicke precluded it from being granted later to a private individual.  NoFree's attorneys responded by pointing out that the common was created by a resolution of the Executive Council and a notation on the plat of Hardwicke, not a grant, and it is well settled that when land is set aside for a common, only an easement for the common is created, such that the fee simple title remains vested in the owner; in this case the crown, and later the state which succeeded to the rights of the crown.  In other words, even if Arnolds Point was encumbered as a common for the lot holders of Hardwicke, the state could still grant the fee simple title to the property to Shuman in 1834, subject to the common.

          Georgia had no courts of record during the colonial period.  Its courts relied on English precedents.  NoFree cited the following English cases and treatises, all of which are online if one cares to read them in their entireties:

Tyrringham’s Case, 4 Coke 36, 76 English Reports 973, Tudor’s Leading Cases 700 (Q.B. 1584), online at

https://books.google.com/books?id=0qYzAQAAMAAJ&pg=PA702&lpg=PA702&dq=%22Titmersh++in++the++county++of++Northampton%

22&source=bl&ots=B2Ot1PUfJ2&sig=ACfU3U3kPC6fFfbvgf3a-f6R-xYH-HtMHw&hl=en&sa=X&ved=2ahUKEwj6-f_pldD0AhUGmmo

FHTm3BnAQ6AF6BAgEEAM#v=onepage&q=%22Titmersh%20%20in%20%20the%20%20county%20%20of%20%20Northampton%22&f=false

A note appended to this case states: “Tyrringham's Case is a leading authority upon the law relating to commons and rights of common....  A right of common may be defined as a right which one person has of taking some part of the produce of land, while the whole property of the land itself is vested in another.  [Cites sources.]  As the lord is the owner of the soil of the common, subject to the rights of the commoners, he may as a general rule, exercise all acts of ownership over the soil which do not injure their rights…."

Mason v. Cæsar, 2 Modern 66, 86 English Reports 944 (C.P. 1677/78), online at https://books.google.com/books?id=73cDAAAAQAAJ&pg=PA31-IA21&lpg=PA31-IA21&dq=%22pleads,+that+

he+had+right+of+common%22&source=bl&ots=JbetE0VTRL&sig=ACfU3U11pwaejhmVyVxdD1WjrkuLlI2x0Q&hl=en&sa=X&ved=2ahUKEwj1kcjbp9

P0AhXpQTABHe9KAqwQ6AF6BAgEEAM#v=onepage&q&f=false 

"The lord hath an interest in the soil, and a commoner hath no authority to do any thing but [in the situation involved in this case] to enter and put in his beasts…."

Cooper v. Marshall, 1 Burroughs 259, 266, 97 English Reports 303, 306 (K.B. 1757), online at https://www.google.com/books/edition/Reports_of_Cases_Argued_and_Adjudged_in/V1YDAAAAQAAJ?hl=en&gbpv=1&dq=%22The+lord,+by+his+grant+of+common,+gives+every+thing+incident+to+the+enjoyment+of+it%22&pg=PA267&printsec=frontcover

"The lord, by his grant of common, gives every thing incident to the enjoyment of it, (as ingress, egress, &c.); and thereby authorizes the commoner to remove every obstruction to his cattle's grazing the grass which grows upon such a spot of ground....  But the lord still remains owner of the soil: and is not debarred from exercising any act of ownership....  The commoner has no right to meddle with the soil...."

Potter v. North, 1 Saunders 350, at 353a, 85 English Reports 510 (K.B. 1793)

online at: https://babel.hathitrust.org/cgi/pt?id=inu.30000029143199&seq=520&q1=potter

Note 2 appended to this case states: “The interest which a commoner has in a common is, in the legal phrase, to eat the grass with the mouths of his cattle.  He must not meddle at all with the soil....”

Kirby v. Sadgrove, 1 Bosanquet & Puller 13, 126 English Reports 751 (C.P. 1797), online at https://books.google.com/books?id=ODkZAAAAYAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

Follows and affirms the principles stated in Cooper v. Marshall.

Giles Jacob, The Law-Dictionary: Explaining the Rise, Progress, and Present State, of the English Law (several editions published between 1729 and 1811, 7th edition, London, 1756, online at https://babel.hathitrust.org/cgi/pt?id=mdp.35112204859666&seq=167 ):

“COMMON. (Communia.) A right or privilege, which one or more persons claim to take or use, in some part or portion of that which another man's lands, waters, woods, &c. do naturally produce; without having an absolute property in such land, waters, wood, &c.  It is called an incorporeal right….”

Walter Henry Burton, An Elementary Compendium of the Law of Real Property, 8th edition, London: V. & R. Stevens and G.S. Norton, 1856, pages 350-51, online at https://books.google.com/books?id=awNXAAAAcAAJ&printsec=frontcover&source=gbs_atb#v=onepage&q&f=false:

“By the word common is understood a right which one person has of taking some part of the produce of land, while the whole property of the land itself is vested in another.”

Charles Isaac Elton and Herbert James Hay Mackay, A Treatise on the Law of Copyholds and Customary Tenures of Land: With an Appendix Containing the Copyhold Acts of 1852, 1858, 1887; The Principal Forms Used by the Board of Agriculture; Precedents of Assurances, and Forms, 2d edition, London: Wildy and Sons, 1893, pages 261-62, online at https://books.google.com/books?id=ayw0AAAAIAAJ&pg=PA271&lpg=PA271&dq=copyhold+commons+%22presumption+of+a+grant%22&source=bl&ots=Ea9WCQoBHj&sig=ACfU3U1GfbOYGWlC4uXJQH1xXvm9-ZcI3g&hl=en&sa=X&ved=2ahUKEwjg7t_MktL0AhX0RjABHYYnAKgQ6AF6BAgMEAM#v=onepage&q&f=false:

"The commoner has no estate in the land, but only a right to enter for the purpose of using his common, and he cannot take any other product of the soil."

Humphry William Woolrych, A Treatise of the Law of Rights of Common, 2d edition, London: William Benning, 1850, online at https://books.google.com/books?id=gQxXAAAAcAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false .

Without quoting, pages 168-74 state basically the same things that the above sources state--commoners have only the right to use or take material items from the land and do not own an interest in the land itself.

          With reference to dedication of land for public uses (such as commons), the Georgia courts, following in tandem with the English precedents, have held: “Where land has been dedicated to public uses only, the underlying fee remains unaffected.  The owner of the fee is not deprived of his title and retains exclusive rights for every purpose of user or profit not inconsistent with the public easement.”  Mayor & Council of Macon v. Franklin, 12 Ga. 239 (1852); Brown v. City of East Point, 148 Ga. 85, 95 S.E. 962 (1918); Long v. Faulkner, 151 Ga. 837, 108 S.E. 370 (1921); Seaboard Air-line Railway Co. v. Greenfield, 160 Ga. 407, 128 S.E. 430 (1925); and Smith v. Lemon, 166 Ga. 93, 142 S.E. 554 (1927); among other cases that could be cited.  Somewhat disingenuously, the state's attorneys, in their motion for summary judgement, cited Mayor & Council of Macon v. Franklin and Brown v. City of East Point as a basis for the proposition that the state could not grant the fee simple title to Arnolds Point after it had been dedicated for the use of the inhabitants of Hardwicke.

          There are instances in which portions of the public domain of Georgia were encumbered with easements for private entities or for the public generally, the state, under its land grant laws, later granted those lands that were so encumbered, and it was accepted without question that the grantee from the state took the land subject to those existing easements.  There are many examples of this in other states also.

          The resolution in the manuscript minutes of the Governor and Executive Council and the notation on the Henry Yonge plat of George Town/Hardwicke, were the only references to Arnolds Point being reserved for a common at the time of the grant to Shuman.  Except in the file for the recent NoFree litigation, neither the resolution or the plat had ever been on record in the Bryan County courthouse, or in the state land grant records, or in the records of the surveyor general or secretary of state; and there is no indication that the Henry Yonge plat has ever been in any state or county record.  Could these two items constitute constructive notice so as to bind later possible grantees from the state of Arnolds Point?  The issue was not addressed in the litigation and did not need to be addressed because the matter was resolved on other grounds.

          Did the state have standing to enforce the terms of the Executive Council resolution and the notation on the Yonge plat?  If the resolution and notation were something that the colonial government conferred or imposed on itself, it is meaningless because, by merger, the colonial government would be right back where it was without the resolution and plat notation.  Hardwicke was never incorporated and therefore could have no standing to enforce the resolution and notation on that basis.  The only possibility for an entity that could own the right of common was the owners of the lots in the town.  No owner of a lot in Hardwicke, or anyone claiming to be an heir or descendant of a lot owner in the town has asserted any interest in the common in modern times, and no such person responded to the quiet title action.  The issue was not addressed in the litigation and did not need to be addressed because the matter, again, was resolved on other grounds.

          NoFree's attorneys argued that use of land encumbered with an easement or common in a fashion that is contrary to the purpose for which the easement or common was created, for a period of time and with no one objecting, causes the easement or common to become abandoned and to cease to exist.  See Wimpey v. Smart, 137 Ga. 325, 73 S.E. 586 (1911); Pindar, Georgia Real Estate Law and Procedure, § 8-31.  There was substantial evidence, in the form of the remains of old rice dams, dikes, and canals on the property, that Shuman and/or his successors in title had devoted the entire tract to rice production, which, in the absence of objection by anyone, would have voided the right of common.

          Finally, NoFree's attorneys pointed out that in the 20th century Henry Ford acquired ownership of both the entire site of the, by then, dead town of Hardwicke and Arnolds Point, so that any easement or common that may have existed had been extinguished by merger. 25 Am.Jr.2d Easements and Licenses § 108; 28 C.J.S. Easements § 57; Pindar, Georgia Real Estate Law and Procedure, § 7-126.

          Ultimately it was held that under any of several of these scenarios, the common no longer existed and therefore was irrelevant to the validity of an attempted grant for Arnolds Point.

          The headright law limited land grants to a single individual to 1,000 acres.  In 1815 a James Shuman had been granted 220 acres of land in Effingham County.  The state's attorneys noted that Arnolds Point consists of 1,000 acres and that "James Shuman" had previously received the 220-acre grant, which, the state alleged, would render this later attempted grant in 1834 illegal.  NoFree's attorneys were able to demonstrate that there were two persons named James Shuman, one who lived in Effingham County and the other who lived in Bryan County, that the one who lived in Effingham County had died by 1827, and that the one who lived in Bryan County would have been six years old in 1815.  The latter was the one who received the warrant and grant for Arnolds Point in 1834, and there was thus no violation of the acreage limit.

          The state contended that the description in any warrant or subsequent grant to James Shuman for the property is indefinite and vague and, therefore, was insufficient to convey an interest in the subject marshlands.  James Shuman's warrant, dated May 5, 1834 and on file in the Georgia Archives, describes the property to be surveyed as “a tract of lands which shall contain five hundred acres in said county.”  The state, citing Miller v. Woodard, 29 Ga 753, 756 (1860), asserted that this description provided no instruction to the county surveyor as to what land was to be surveyed, and thus provided no notice to persons who might have an interest in the property proposed to be granted so that a caveat to the warrant could be filed with the land court.  Specifically, the state charged, the 1834 Shuman warrant provided no notice to any of the inhabitants of the town of Hardwicke that the lands allegedly "previously reserved as a common" were to be granted.

          The state's assertions show a lack of understanding of the procedure and circumstances for headright grants, and thus miss several important factors.  There was NO WAY a warrant could provide an accurate and precise description of the property to be surveyed and granted, for the simple reason that the property had not yet been surveyed.  The main purpose of the warrant was to certify that the applicant was qualified to receive a warrant, and was qualified to receive the acreage specified, by people (that is, the land court justices) who usually knew the applicant and therefore his or her qualifications, and could question the applicant in case of any doubts.

          Under the procedure for obtaining headright grants, an applicant, after selecting and viewing the general area of ungranted land where he or she wanted their grant to be, attended the next session of the land court and orally described to the land court justices the land they wanted.  The land court justices wrote the description in the warrant based on the applicant’s oral description--in almost all cases, without having specifically seen the land themselves, let alone having a survey or other descriptive parameters to go by.

          The applicant for the land usually accompanied the surveyor to show the surveyor exactly where the land he or she wanted was located.  In the rare situations in which the applicant could not be there, the applicant had an agent to accompany the surveyor to show the surveyor the land that the applicant wanted to take out a grant for.

          One of the duties of the surveyor was to make sure the land surveyed was vacant; that is, ungranted.  This is required by the headright law and is stated in the warrants themselves.  The surveyor, having custody of all the plat records of the county, and his occupation being to lay out headright grants, was pretty well aware of which lands in the county had been and had not been granted.  In addition, the physical, and therefore visible, possession by previous grantees provided notice to applicants and surveyors if a given tract of land had already been granted.

          The surveyor was required by law to advertise each survey for three months after the survey was performed, just in case someone else had a prior survey or grant and thus give them the opportunity to file a caveat.  During this three-month period, the granting process was held up.

          The above factors clearly indicate that the precise boundaries of a land grant were not and could not be known until the survey was performed.  If, as the state's attorneys asserted, the fact that a given warrant provides no instruction to the county surveyor as to what land was to be surveyed and provides no notice to persons who might have an interest in the property proposed to be granted, voids the whole proceeding, then that applies to practically every headright land grant attempted to have been made by the colonial and state governments because all headright warrants contained similarly vague descriptions.  Thus, under the state's scenario, the vast majority of headright grants issued by both the colonial and state governments are void so that almost all the lands in the headright area of Georgia (nearly a third of the state) belong to the state.

          NoFree's attorneys responded with Robert v. Palmer, 14 Ga. 349 (1853), also a case in which a land warrant was held void because it contained an insufficient description.  But, in that decision, the court went on to state, on page 351:

"We would not be understood as holding that this uncertainty in the warrant would vitiate a grant, which either sets out upon its face a description of the land, or refers to the plat for that purpose."

          In other words, a warrant could be held invalid up to the time of the survey if it contained an invalid description; but once the land was surveyed so that a fully sufficient description became available, and/or the grant was issued based on the survey and plat, the fact that the warrant contained an invalid description became immaterial.  In both Miller v. Woodward and Robert v. Palmer, the caveat was filed BEFORE the land was surveyed.

          The state asserted that the description in the Shuman grant was so indefinite and vague that it was rendered invalid.  The description in the grant itself reads: "all that Tract or parcel of Land containing Five hundred acres; situate, lying and being in the county of Bryan in the said State: and butting and bounding On all Sides by vacant lands Having such shape, form, and marks, as appear by a plat of the same hereunto annexed.”  The state alleged that this description was insufficient, and, because the copy of the plat recorded in the Georgia Archives is not attached to the recorded copy of the grant, the plat is inadmissible.

          The description in the grant, by itself, of course, would have been too vague so as to make the grant invalid.  But the state’s attorneys were ignoring the form used for land grants.  Land grants consisted of two sheets of paper.  One was the grant and other was the plat made by the surveyor who surveyed the grant.  The grants were made on forms that were pre-printed with the standard, boiler-plate language appearing in all grants as required by the headright acts, and with the information specific to each individual grant filled in by hand by a clerk.  The plat was placed on top of this form, the two sheets were folded together at the bottom, two holes were punched through the fold, a ribbon was inserted through the holes, the ribbon was tied with a knot, and the two loose ends of the ribbon were embedded in a wax wafer on which was impressed the state seal.  The document was signed by the surveyor general, the secretary of state, and the governor, with the county surveyor having signed the plat.  The governor always signed across the fold at the bottom.

          Thus, contrary to the state’s attorneys’ assertion, the plat WOULD have been attached to the grant that was issued to Shuman.  For recording purposes, for convenience, the two documents were filed separately in separate books.  Most of the language in the grants was boiler-plate.  Except for the earliest ones, the headright grant books were made up with the pages preprinted with the boiler-plate wording.  This made it much quicker and more efficient to simply fill in the specific language for each recorded grant in the grant books.  The plats are a different matter.  For the most part, each headright plat was unique and therefore had to be custom drawn into the books.  Moreover, the grant books were maintained by the secretary of state while the plat books were maintained by the surveyor general.  Hence, the practical desirability that recorded versions of the grants and the recorded versions of the plats be in separate books.

          Of course, if the fact that the RECORDED plats are not attached to the RECORDED grants makes the grants meaningless and therefore void, then the only lands in Georgia that are privately owned are those for which the original grant with the original plat attached still exist and can be found; or for which the presumption of a grant statute can be applied.

          Citing Patrick v. Sheppard, 182 Ga. 788, 187 S.E. 379 (1936), NoFree's attorneys responded that the addition of the plat called for completed the description and made for a complete and valid description and grant.  In the Patrick case it was held that where the descriptive clause in a deed contains particular words of description and also refers to a plat, and the plat is more definite than the particular words of description, and not inconsistent therewith, the description by plat controls in ascertaining the identity of the property conveyed by the deed.  This rule would apply to grants issued by the state.  The Georgia Court Appeals upheld the grant and its description as valid on that basis.

          The state contended that under the Georgia Protection of Tidewaters Act, O.C.G.A. §§ 52-1-1 to 52-1-10, the Shuman grant was void.  Among other things, the act provides that “[t]he State of Georgia continues to hold title to the beds of all tidewaters within the state, except where the title in a private party can be traced to a valid Crown or state grant which explicitly conveyed the beds of such tidewaters” (O.C.G.A. § 52-1-2, emphasis added).  The state charged that the Shuman Grant makes no mention of "tidewaters", thus rendering it void.

          Though the Shuman Grant does not use the word "tidewaters", it does call for the plat.  The headright law required the surveyor to put a notation on the plat that characterized the nature of the land.  The grant does not need to characterize the nature of the land, and, in fact, most grants do not describe the nature of the lands.  That detail is covered by the plat referred to and attached to the grant as an integral part of the grant.  The Shuman plat has the label “500 acres Marsh Land”--the term "Marsh Land" being essentially synonymous with "tidewaters".  Somewhat disingenuously, the state, while contending the plat was inadmissible, quoted, in its motion, at least twice, the description on the plat that is referred to in the Shuman grant--“500 acres Marsh Land”.

          The arguments about the definitions or meanings or semantic equivalencies or non-equivalencies of “beds of all tidewaters,” "tidewaters," or “Marsh Land,” are irrelevant anyway.  If a valid grant defines a certain specified piece of land, whatever is within the boundaries defined is what it grants.  The physical nature of the land or the names applied to the physical nature are not relevant.

          The court ruled that the Georgia Protection of Tidewaters Act has no bearing on the validity of the Shuman grant.

          Twelve days after receiving the grant, James Shuman deeded the property to Cyrus Bird, the county surveyor who had surveyed the property for Shuman.  This deed was not recorded until twelve years after its execution.  The state contended:

"From these circumstances, it can be deduced that fraud was committed upon the State of Georgia by the surveyor, and ultimate purchaser of the property, Cyrus Bird, and by James Shuman.  They drastically underrepresented the amount of acres contained within the bounds of the plat by 500 acres, they failed to settle on and cultivate the Property, and James Shuman conveyed the Property within days of the Shuman grant’s execution, instead of waiting the required five-year period.  In order to conceal the fraud, and to avoid a forfeiture, Cyrus Bird delayed filing and recording the plat for twelve years."

          Arnolds Point consists of about 1,000 acres.  The state thus argued that the fact the grant called for 500 acres, as well as the other factors it enumerated, was evidence of fraud, and made it void.  Because Arnolds Point is marsh, it would have been impossible to survey it using conventional surveying methods that existed at the time of the Shuman grant.  There is NO WAY a survey crew could have walked around the perimeter of Arnolds Point carrying a compass, chain, field notebook, and other necessary equipment.  They could have gone around it in a boat but it is impossible to manipulate a compass and chain while in a boat.  A stadia or triangulation procedure was probably used for such situations.  With the available instruments of that period, this method would have been crude but it was probably the only viable way to get the job done.  It would have generated large errors.

          Regardless of the difficulty of making an accurate survey of Arnolds Point in that time period, surveys in general of that time period contain wide divergencies between what they call for and what is actually on the ground, simply because, given the low value of land at the time, it was not worth the effort to survey land even to the precision that the instruments available were capable of.  The courts recognize this.  Martin v. Patton, 225 Ga.App. 157, 483 S.E.2d 614 (1997), citing and quoting Collinsville Granite Co. v. Phillips, 123 Ga. 830, 51 S.E. 666 (1905); and Kendall v. Wells, 126 Ga. 343, 55 S.E. 41 (1906), states:

"[a]rea is usually considered the lowest indicia as to the location of land and the last to be resorted to….  In the description of land it is usual, after the description by metes and bounds or subdivisions, to add a clause stating that the land described contains so many acres.  But unless there is an express covenant that there is the quantity of land mentioned, the clause as to quantity is considered simply as a part of the description, and will be rejected if it is inconsistent with the actual area, when the same is capable of being ascertained by monuments and boundaries.  The mention of the quantity of land conveyed may aid in defining the premises, but it can not control the rest of the description."

          Pindar, Georgia Real Estate Law and Procedure, § 19-156, states, "In the construction of a deed to determine the intended boundaries, the statement of acreage is perhaps the least helpful of all the elements involved."  In Parks v. Norman, 108 Ga. 373, 33 S.E. 1005 (1899) it is stated:

“If the quantity of the land was of the essence of the contract and the deed described it in proper terms, Parks [one of the parties] ought to have recovered for the deficiency.  If, however, the land had been sold and the description thereof had been by metes and bounds or by monuments or any other marks capable of identification, and the statement of the number of acres been merely a part of the description, Parks would then have bought by the tract and not by the acre, and could not have recovered for any deficiency in the number of acres.”

          In Rowland v. Matthews, 153 Ga. 849, 113 S.E. 442 (1922), a devise in a will that described boundaries and called for 25 acres was held to convey the 100 acres that were encompassed within those boundaries.  McAfee v. Arline, 83 Ga. 645, 10 S.E. 441 (1889) cites, with approval, a Maine case that upheld the validity of a deed that described boundaries encompassing double the acreage called for by the deed.

          It is well documented, and much experience indicates, that in the original surveys of Georgia's public domain, the area laid out on the ground often varied considerably from what the surveys and grants called for--both excesses and deficiencies--excesses being far more common than deficiencies.  For example, Keel v. Pace, 20 Ga. 190 (1856) dealt with lands in the 3d District of original Early County (now in Calhoun and Dougherty counties).  Several of the land lots were shown to be more than double the standard width, and, although supposed to contain 250 acres, actually contained 400 or 500 acres each.

          In summary, if the boundaries of a tract of land are clearly defined by called-for natural (made by nature) and/or artificial (made by humans) monuments, and/or courses and distances, the quantity of land within those boundaries is usually immaterial.  The Shuman plat clearly shows the tract bounded by the Great Ogeechee River--a natural landmark, and, at the base of the peninsula, a "Cedar" (tree)--a natural landmark, a "Persimmon St[ake]"--an artificial landmark, and it gives the bearing and distance "N 60 E 10 [chains]".  Thus, it presents a closed and complete description of the boundaries.

          In addition, it is well known that lands along large bodies of water undergo fairly drastic accretion, avulsion, and erosion.  Though not mentioned in the suit, this factor may be the basis for Arnolds Point having more land than what is called for in the grant.  Accretions accrue to the owner of the land against whom the accretions form.  See: State of Georgia v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976); Smith v. Bruce, 241 Ga. 133, 244 S.E.2d 559 (1978); Cherry v. Hopkins, 254 Ga. 260, 328 S.E.2d 702 (1985); O.C.G.A. § 44-8-6; 8 A.L.R. 640 (1920); 41 A.L.R. 395 (1926); 44 A.L.R. 190 (1926); 112 A.L.R. 1121 (1938); 134 A.L.R. 467 (1941); 54 A.L.R.2d 643 (1957); 61 A.L.R.3d 1173 (1975); 63 A.L.R.3d 249 (1975).

          If an excess in acreage on the ground renders a grant void, then most of the headright grants and many of the land lottery grants issued by Georgia are void.  Probably the land grants that cover more than half the area of the state would thus be void, meaning more than half of Georgia is owned by the state under this condition, if valid, alone.  With one appellate dissent, which will be discussed below, the court rejected the argument by the state that the discrepancy in area voided the grant.

          With regard to the charge by the state that Shuman and his grantee failed to settle on and cultivate the property, the headright law, as it was originally written, required that a grantee settle and cultivate a certain portion of the land within one year of the grant, or the grant would be void.  There was no evidence that Shuman and his grantee failed in this regard, and there was clear evidence of the property being used for rice cultivation in the past.  At any rate, the requirement for settling and cultivation was repealed in 1785.  See George Watkins and Robert Watkins, eds., A Digest of the Laws of the State of Georgia. From Its First Establishment as a British Province Down to the Year 1798, Inclusive, [1st edition], Philadelphia: R. Aitken, 1800, page 309.  So whether Shuman and/or Bird actually did settle or cultivate the land was immaterial.

          The state cited the provision in the Georgia headright act of 1777 that a person who received a grant must physically possess the land for a period of five years; or if the person dies or if the person transfers title to the land to someone else, the heirs or assignees must continue the possession, so that the total time of possession is five years from the date of the grant.  If such possession was not maintained, it was alleged, title to the land reverted to the state.

          The 1777 act, including this provision, was designed to be a temporary war measure and, by its express terms, became void at the next legislative session.  It was completely superseded and replaced by the 1783 act and its later amendments--the law under which Shuman received his grant.  There was no such requirement in the Georgia headright act of 1783 or its later amendments.  I am baffled as to why the state asserted that the 1777 act had any applicability at all.

          Regarding the fact that the deed from Shuman to Bird was not recorded until twelve years after it was executed, there is no time limitation on the recording of deeds or other instruments.  Its just that an instrument provides constructive notice only from the date it is recorded.

          Overall, regarding the assertion that fraud was involved, the court, held that it amounted to "no more than speculation or conjecture" and such would not be admitted.

          Harking to Black v. Floyd, 280 Ga. 525, 630 S.E.2d 382 (2006), the state alleged that many of the deeds in NoFree’s chain of title were illegible.  That argument was obviously completely unfounded.

          The state alleged that NoFree did not have an unbroken chain of title to the property and that a break in the chain of title puts title to land back in the state.  This too was overruled.  Though not argued in the proceedings, it is common sense that if a tract of land was validly granted by the Crown or state, and there is no evidence that the original grantee or any subsequent owner of the land conveyed the land back to the state, and no evidence of adverse possession by the state, then it does not matter what, if anything, happened to the later chain of title--the state has no claim regardless.  See, for example, State ex rel. McLeod v. Sloan Construction Co., 284 S.C. 491, 328 S.E.2d 84 (1985) https://law.justia.com/cases/south-carolina/court-of-appeals/1985/284-s-c-491-2.html   If a break in the chain of title to a piece of land puts title to that land back in the state, there is very little privately-owned land in Georgia because few tracts of land have completely unbroken chains.

          The state alleged that any grant to James Shuman of tidal marshlands is contrary to the Public Trust Doctrine and therefore void, but it failed to cite any authority for such a proposition.  The Public Trust Doctrine is not well developed in Georgia.  To the extent it exists, it has nothing to do with title to land.  What it does is reserve to the sovereign and/or to the public certain rights in land that are of public utility, and it prohibits landowners from using their lands in such ways that significantly harm the public.  The Public Trust Doctrine applies to ALL lands, not just lands within and along tidewaters, rivers, and streams.  If the Public Trust Doctrine makes grants by the state void, the state owns all the lands in the state.  The court ruled the Public Trust Doctrine does not affect the validity of a grant.

          The state argued that to the extent the Shuman grant was valid, it should be limited to 500 acres, as called for in the warrant and grant.  This argument was rejected on the grounds that the boundaries were sufficiently described and the grantee received what was within those described boundaries, as explained above.

          Certain mineral rights in the property had been conveyed in 1984.  But the owner of mineral rights forfeits that interest by the failure for seven years or more to work the mineral rights or pay taxes on them.  Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977); Dubbers-Albrecht v. Nathan, 257 Ga. 111, 356 S.E.2d 205 (1987); James F. Nelson, Jr. Family Limited Partnership v. Miller, 267 Ga. 466, 479 S.E.2d 737 (1997); O.C.G.A. § 44-5-168.  There was no indication that any alleged owner of mineral rights in Arnolds Point had exploited those rights or paid taxes on them; and, at any rate, no such person responded to the quiet title action.

          The special master recommended that NoFree be granted summary judgement and that it's title be confirmed.  The judge overruled this recommendation and refused to grant summary judgement to either party.  Upon appeal, the Georgia Court of Appeals, with one dissent, confirmed the validity of the grant for Arnolds Point and NoFree's fee simple title that derived from it.  There may have been grounds for certiorari to the Supreme Court, but the state declined to pursue that.

          Presiding Judge Doyle dissented, asserting:

"The peninsula as bordered by the river encompasses nearly 1,000 acres of land.  Yet the 1834 warrant taken by Shuman was for only 500 acres of land.  The warrant instructed the surveyor to prepare a tract of lands containing 500 acres in Bryan County, and both the Shuman grant and the plat reiterate this quantity of 500 acres.  It is the uppermost limit of land which the State attempted to grant to Shuman.  And while the plat implies that the entire portion of the peninsula was granted to Shuman, he did not take a warrant for and was never granted 1,000 acres of land.  Aside from the Ogeechee River, neither the 1834 plat nor the language of the grant contains a key or sufficient description from which it could be determined where Shuman’s 500 acres lie within the 1,000 acre peninsula.  Thus, this grant and plat are void for lack of an adequate description."

          Justice Doyle does not understand the limits of the technology of the period, or the socio-economic factors that existed in that day, and she did not pay close attention to what is on the plat that the grant refers to.  The compasses and chains used, which were the only types of instruments conveniently available, themselves provided crude measurements, but, more importantly, given the extremely low value of land in the 18th and 19th centuries, land surveys were rarely conducted even to the level of precision that these instruments were capable of producing.  The low value of land dictated that it simply was not worth the additional work required to reach even the precision that were obtainable by careful use of the compass and chain.

          Most surveys in the headright region of the state were deliberately calibrated to give grantees more land on the ground that what was called for in their warrants, surveys, and grants.  And errors of 50% to 100% and even more were common, especially along rivers, creeks, and tidewaters, as described above.

          Justice Doyle's statement "Aside from the Ogeechee River, neither the 1834 plat nor the language of the grant contains a key or sufficient description from which it could be determined where Shuman’s 500 acres lie…" is simply incorrect.  The plat clearly shows the tract in the shape of a peninsula bounded by the Great Ogeechee River--a natural landmark, and, at the base of the peninsula, a "Cedar [tree]"--a natural landmark, a "Persimmon St[ake]"--an artificial landmark, and it gives the bearing and distance "N 60 E 10" (North 60° East, 10 chains) between them, thus providing a description that completely circumscribes the tract.

          The cases cited in footnotes 9 and 10 of the dissenting opinion are not applicable to the NoFree situation because in each of those cases the problem was not a discrepancy in acreage; the problem was the boundaries were not adequately described and there was insufficient information otherwise given to provide a key for the identification of the property.  What the dissenting opinion does is confuse the situation in which the boundaries of a tract are adequately described, though the area given on paper does not "fit" those boundaries, with the situation in which the boundaries of a tract are not adequately described and there is no key.  Descriptions that the former situation applies to are legally adequate, while descriptions that the latter situation applies to are legally inadequate.

          In Hilliard v. Doe ex dem. Connelly, 7 Ga. 172 (1849), the Georgia Supreme Court held:

“When the State issues her grant, under her great seal, she cannot recall it.  It is the irrevocable testimony that she has divested herself of the thing granted.  Grants do not exist as title against the State during her pleasure.  If the Government can recall its grant for one cause, why not for all causes?  If it can at all, it is a pure despotism.  The grant, when it has issued, is a contract.  One party to a contract cannot set it aside, although that party be a sovereign State.”