City Of Jackson v. Wilson

• Decision Date: 13 December 1916
• Docket Number: (No. 161.)
• Citation: City Of Jackson v. Wilson, 146 Ga. 250, 91 S.E. 63 (Ga. 1916)
• Parties: CITY OF JACKSON v. WILSON.
• Court: Georgia Supreme Court

91 S.E. 63

(146 Ga. 250)

CITY OF JACKSON

v.WILSON.

(No. 161.)

Supreme Court of Georgia.

Dec. 13, 1916.

(Syllabus by the Court.)

Error from Superior Court, Butts County; W. E. H. Searcy, Jr., Judge.

Action by W. W. Wilson against the City of Jackson. There was a judgment for plaintiff, and defendant brings error. Affirmed.

J. T. Moore and H. M. Fletcher, both of Jackson, for plaintiff in error.

C. L. Redman, of Jackson, for defendant in error.

EVANS, P. J. The city of Jackson owned a tract of land on which it erected a dam for the purpose of creating a reservoir for water to supply its inhabitants. The plaintiff owned adjacent land. He alleged that damages to him resulted from the erection of a dam which caused the ditches and drains on his land to become filled with sand and mud, thereby causing his land to become wet and unfit for cultivation. He recovered, and the defendant's motion for a new trial was overruled.

1. The plaintiff and the city purchased their respective tracts of land from a common owner; that of the city being anterior in point of time. The deed to the city contained this covenant:

"A further consideration being, and it is definitely understood by all parties, that party of the second part, the city of Jackson, is granted, bargained, and sold by party of the first part the right to take water for the use of the city of Jackson in the operation of its waterworks out of said Yellow creek at any point along said creek between the land described above and the starting point in the aforesaid particularly described granted premises."

The covenant to take water from the creek did not authorize the city to so construct a dam as to back water on the plaintiff's land, or to cause the main channel of the creek over his land and the tributary ditches thereon to become filled with sand, the effect of which was to saturate the soil and render it wet and unfit for cultivation.

2. The owner of land is entitled to the free and exclusive enjoyment of all water courses not navigable flowing over his land; and the obstruction of a stream so as to impede its course or cause it to overflow or injure his land, or any right appurtenant thereto, is a trespass upon his property. Civil Code 1910, § 4475. The portions of the charge to the jury complained of in the first and second grounds of the motion for new trial were but an application of this principle, and were not erroneous for incompleteness in stating the principle.

3. The stream traverses the land of the...