Grant v. Kuglar

3 L.R.A. 606, 81 Ga. 637

• Court: Supreme Court of Georgia
• Decided: January 9, 1889
• Status: Published

Opinion

Bleckley, Chief Justice.

The principle upon which we rule this case is, that water having a time relation, as well as a space relation, both of them being fixed by nature, there is no more right in an adjacent proprietor to alter the one than the other. If the time relation of the stream is so altered that the effect of the water upon the lower tract is injuriously different from what it was by the natural flow of the stream, then a wrong has been done to the proprietor of the lower tract. "We think that the owner of water has no more right artificially to project it forward on another man’s land, than he has to push it back upon land in his rear; and if by so doing he causes damage, he ought to answer for it. There may be difficulty in ascertaining from the declaration in this case how the alleged injury could occur consistently with physical laws, but if it be true, as averred, that a causal connection exists between the removal of the ledge of rock and the damage to the lower tract, we can see no legal obstacle to a recovery"; and we think the court erred in dismissing the declaration upon demurrer.

It is not easy to find any instance in point, but we think the principle is recognized in certain authorities we have examined, most of them cited in Angelí on Water-Courses, §§95a, 96, 108e, 108k, and 335. Nothing in our code militates against the view we have presented. We think the code, §§2827, 2331, 2332, 3018, makes no substantial change in the common lawr rights of land-owners, with respect to ditching out and protecting their property; and such in effect was the view of the act of 1856 taken by this court in Persons vs. Hill, 33 Ga. Supplement, 141.

Judgment reversed.