White v. East Lake Land Co

• Decision Date: 15 July 1895
• Citation: 23 S.E. 393,96 Ga. 415
• Parties: WHITE et al. v. EAST LAKE LAND CO. EAST LAKE LAND CO. v. WHITE et al.
• Court: Georgia Supreme Court

23 S.E. 393

96 Ga. 415

WHITE et al.

v.EAST LAKE LAND CO.

EAST LAKE LAND CO.

v.WHITE et al.

Supreme Court of Georgia.

July 15, 1895.

Riparian Owners —Right to Divert Stream — Question for Jury—Admissibility of Evidence.

1. If a riparian proprietor, by placing a dam across a stream running through his land, obstruct the same, so that instead of running on, as theretofore, to the riparian proprietor below, the water accumulates in an artificial lake or pond, and by means of percolation and evaporation is diminished in quantity to such an extent as to deprive the lower proprietor of the reasonable quantity of water to which he is entitled, and which he would otherwise receive, such obstruction of the stream 'operates as a diversion of the water, and for damages thus occasioned the lower proprietor is entitled to recover. If the diversion be complete, he is entitled to full damages; if partial, the damages should be apportioned.

2. The question as to whether or not the use of the water by the first proprietor is reasonable, being necessarily dependent upon the character and size of the stream, the uses to which it is subservient, and the varying circumstances of each case, is one of fact for determination by the jury.

3. For other than domestic purposes, the right of each proprietor in the use of the water is limited by the rights of the other proprietors; and, consequently, if an upper proprietor appropriate to his own use more of the water than the proportionate share to which he is entitled, and thereby inflicts upon a lower proprietor an appreciable injury, the latter may maintain an action for the recovery of damages therefor.

4. Where one of the questions at issue was whether the plaintiff's mill lost custom because the mill had stopped grinding by reason of the lack of a sufficient supply of water to run the same, proof was admissible that some of the customers had made statements to the effect that they withdrew their custom from the mill for that reason.

(Syllabus by the Court.)

Error from superior court, Dekalb county; J. M. Griggs, Judge.

Separate actions by J. M. White and by J. M. White and another against the East Lake Land Company to recover damages for the diversion of waters of a stream. To a judgment of nonsuit in the one case, and an order sustaining a demurrer to the declaration in. the other, the respective plaintiffs bring error, and to a judgment overruling the demurrer to the declaration in the first case defendant brings error. Reversed on the main bill and affirmed on the cross bill.

Lewis & Green and H. C. Jones, for plaintiffs in error.

F. A. Quillian and John S. Candler, for defendant in error.

SIMMONS, C J. 1-3. Where the natural channel of a water course lies along the lands of different proprietors, the water is the common and indivisible property of all of them. Their privileges therein are in all respects equal, and, except in so far as the right may be qualified by grant, prescription, or otherwise, each has, equally with the others, a right to the use of it for domestic or business purposes. Each has a right to have the water come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other proprietors. The property in the water being indivisible, there can be no diversion or severance of a proportionate part of it. Each may divert so much, and so much only, as will not unreasonably impair the rights of other proprietors. An unreasonable use of it, whereby others are deprived in whole or in part of the common benefit, is an actionable injury, even though there is no present actual damage, and without regard to the question whether the act which causes the injury is willful or malicious. Gould, Waters, § 207. If the diversion is complete, —that is to say, if by such unreasonable use on the part of another a proprietor is deprived entirely of his enjoyment of the water, —he is entitled to recover full compensation in damages for the loss thus occasioned; if the diversion is merely partial, the jury should apportion the damages accordingly. He is, in any event, entitled to nominal damages for the invasion of his rights. 28 Am. & Eng. Enc. Law, tit. "Watercourses, " p. 983. The measure of each owner's rights in the use of the water is the reasonableness of the use. For the ascertainment of what is a reasonable use no definite rule is or can be laid down. Whether the use is reasonable or not must depend upon the character and size of the stream, the uses to which it is subservient, and other circumstances of the particular case; and in an action of this kind the question is, therefore, one of fact to be determined by the jury, and not one of law for the court. Pool v. Lewis, 41 Ga: 162; Washb. Easem. (4th Ed.) star pages 266, 267, top pages 379, 380....