Southern Railway Co. v. Cagle

100 S.E. 21, 24 Ga. App. 93, 1919 Ga. App. LEXIS 425

• Court: Court of Appeals of Georgia
• Decided: July 17, 1919
• Docket: 10238
• Status: Published

Opinion

Jenkins, J.

1. The right which a riparian owner of land adjacent to a non-navigable stream has to a reasonable use and consumption of its water does not include the right to use, divert, or diminish the supply so as materially and unreasonably to interfere with the rights and uses of a lower owner. Primarily each has the same and a common right to the natural and undisturbed flow of the stream, subject only to such detention or diminution as may be occasioned by a reasonable use by others. Whether in a given instance such use shall be taken as reasonable or unreasonable is a question to be determined by the jury upon the particular facts of the case, including, among other things, the size and character of the stream, and the uses to which it is subservient. White v. East Lake Land Co., 96 Ga. 415 (23 S. E. 393, 51 Am. St. R141).

Decided July 17, 1919.

Action for damages; from Hall superior court—Judge J. B. Jones. November 9, 1918.

E. A. Neely, J. 0. Adams, Ed. Quillian, O. L. Faulhner, for plaintiff in error. Claude Barrett, C. N. Davis, contra.

2. The petition, as amended, seeking specified damages because of the alleged unreasonable diversion of water on the part of the defendant, whereby the earnings of the plaintiff’s mill property were diminished, set forth a cause of action. The exceptions taken to the overruling of the special grounds of demurrer are without merit. The charge of the court is without material error. It can not be said that the amount of the verdict (though in our opinion liberal) is altogether without evidence to support it.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.