Wilkinson v. Sitton

54 Ga. 71

• Court: Supreme Court of Georgia
• Decided: January 15, 1875
• Status: Published

Opinion

Trippe, Judge.

The effect of the award and judgment thereon was to give the owner of the mill-dam an easement in the land of Sitton, to the extent of overflowing it by keeping the water at a certain height fixed by the award. As a compensation for this right on his part, he was to pay a certain sum yearly so long as he kept the water to that height The plaintiff in error sets up that in 1873 the water lacked several inches of being kept at the mark he had a right to keep it to. This may have been so; but still the water was high enough all the time to overflow his neighbor’s land, and he could at all times raise it to the full height specified in the award. What amount of Sitton’s land was overflowed when the water was up to that full height does not appear. Nor was it shown how much was covered by water in 1873 when it was at a lower mark. The simple fact is presented that Wilkinson overflowed Sit-ton’s land, and was annually to pay him $17 50 therefor as long as he kept thé water to a certain mark; that in 1873 he did not keep the water as high as he had a right to keep it, but still high enough to back the water over the adjacent land of Sitton. He says he is therefore not liable to pay the amount assessed by the arbitrator's.

Take the case thus: For the years preceding 1873, by keeping the water as high as he might do under the award, four acres of Sitton’s land were overflowed. By the reduced height in 1873 only two or three acres were covered. The other one or two could at any time have been also overflowed. They were at Wilkinson’s option to be rendered at all times incapable of being used by the owner. Of what value were they to him in this situation? Wilkinson was asserting his right to enjoy this servitude on four acres, and could have extended it over the fourth at any moment. Pie gave no notice that he would not so exercise it, or that he abandoned any portion of his privilege. Justice demanded that Sitton should be paid for that portion of his property which he was practically compelled to refrain from enjoying.

How the question might be affected if Wilkinson would permanently abandon a portion of his privilege, which would enure to Sitton’s benefitj and give notice thereof, we do not say. As matters stand, with a fixed disability on Sitton, so that he dare not enjoy any portion of his land which the award entitles Wilkinson to overflow, he should be indemnified.

The evidence was conflicting on the point as to how high the water was kept in 1873. Some of the witnesses make it as high as it was at the time of the arbitration; others not quite so high. It was not denied that it did overflow Sitton’s land. Under the evidence, the charge of the court and the verdict were right.

Judgment affirmed.