139 Ga. 729 | Ga. | 1913
This was a suit to recover damages alleged to have been caused by the act of a lower mill-owner in backing water by raising the height of a dam, so as to cause it to interfere with the wheel which furnished the power by which the plaintiff’s- mill was operated. The defendants answered, in substance, that the dam had not been raised beyond the height at which it had formerly been built and maintained for a long period before the erection of the plaintiff’s mill; that while leakage in the lower dam had been stopped to a certain extent, the repairs did not raise the waters to the height of the original dam. And it was also contended by the defendants, as shown by the evidence, that if there had been a subsidence of the water as raised by the original dam, it was caused by leakage; and it was insisted that by repairing the old dam they had not raised the water, by several inches, as high as they had a right to raise it, when the capacity of the original dam is taken into consideration.
There was evidence which would have authorized the jury to find that the dam of the lower mill-owner as originally built was of such a height that it would raise the water in the stream upon which the mills of both the plaintiff and the defendants were located, so as to cause the waters to rise to a height as great or greater than that to which they were raised after the repairs of the lower dam, which are complained of in the plaintiff’s petition. While there is a conflict of evidence upon this issue, the jury would have been authorized by the evidence to find with the defendants as to
Judgment reversed.