135 Ga. App. 875 | Ga. Ct. App. | 1975
The defendant Clark was convicted in the Recorders Court of the City of Hawkinsville for violating a city ordinance which prohibited the digging of a well of any kind without obtaining permission of the board of commissioners. On certiorari to the superior court the ordinance was declared unconstitutional and the conviction was set aside. The city appeals from this judgment.
The ordinance provided that it shall be unlawful for any person, to dig, or have dug, on any private or public property, within the corporate limits of the city any well of any kind whatever without first having obtained from the city a permit therefor; that "The granting or refusal of such permit shall be in the sole discretion of the Board of Commissioners of the City of Hawkinsville.” It also contained a penal provision for its violation. Held:
The city of course contends that the ordinance is a valid exercise of its police powers granted to it by its charter to protect the health and general welfare of its citizens; and that supplying the public with an adequate water supply affects the public health as well as the public safety. While we do not quarrel with this premise as a general proposition, the issue here is whether the ordinance is a constitutional exercise of the police power of a municipality. The owner of realty has title upwards and downwards indefinitely. Code § 105-1409. A person who owns the surface may dig therein and apply all that is found therein to his own personal purposes at his free will and pleasure. Stoner v. Patten, 132 Ga. 178 (63 SE 802). Thus it can be seen that the use or the digging of a well on one’s own property is generally a perfectly lawful undertaking and the exercise of a right in property. While a municipality may make reasonable rules and
Judgment affirmed.
