132 Ga. 246 | Ga. | 1909
Lead Opinion
The plaintiffs, under a bond for title, with part of the purchase-money paid, were in possession of property on which was situated a mill on the Apalachee river. They brought suit for damages against the defendant, which owns property on the river above the plaintiffs’ property, and operates machinery by means of the power derived from the water of the stream. They alleged that they had lost custom of patrons of their mill, by reason of being unable to operate the same with any regularity, on account of the wrongful conduct of the defendant. This conduct’ was alleged to consist in the erection, in 1903, of a reservoir or storage-dam on the river above the plaintiffs’ mill, creating a pond of water covering a considerable area, which caused the evaporation and absorption of the water, thereby diminishing the supply to which the plaintiffs were entitled; that gates were placed in this dam by the defendant, which were closed at six o’clock p. m. every day, thereby shutting off the flow of the water until they were opened next morning, by reason of which a sufficient amount of water to enable the plaintiffs to operate their mill did not
Complaint is also made of the charge wherein the court told the jury the plaintiffs were not entitled to recover, when he should have stated they were entitled to recover. In view of the rest of the charge and what occurred between the court and counsel in reference to this mistake, it was not such error as to require a new trial.
Complaint is also made of the charge, set forth in the amendment to the motion, that if the rules of the defendant in the operation of its machinery, and in turning on and shutting off the water, were reasonable, “in the light of the law I have given you in charge,” and damage resulted to the plaintiffs by reason of the enforcement of such rules, such damages should not be recovered. Movants complain of this charge, because it fails to state that such “rules must be reasonable relative to the rights of the plaintiffs, as well as to the rights of the defendant.” The use of the water of a stream by one riparian proprietor must be reasonable with reference to the rights of other riparian proprietors. We do not think the charge complained of created on the minds of the jury any impression that this was not the law, in view of the words therein employed, “in the light of the law I have given you in charge,” and in view of the rest of the charge, which plainly informed the jury that the use of the water by one proprietor must be reasonable with reference to the rights of other proprietors.
Judgment reversed.
Concurrence Opinion
concurring specially. I concur in the judgment rendered in this case, but I can not concur in all the reasoning hy which that result is reached.- Especially is this true as to the third division of the opinion. “The owner of a mill, whose dam and machinery are suited to the size and capacity of the stream, has a right to the reasonable use of the water to propel his machinery, but he must detain it no longer than is necessary for its ■profitable enjoyment, and he must return it to its natural channel before it passes upon the land of the proprietor below.” Pool v. Lewis, 41 Ga. 162 (5 Am. R. 526). Every dam necessarily impedes to some extent the flow of the water. There is some evaporation from every mill-pond. If the temporary and reasonable detention of water for the purposes of generating power to operate the mill constitute a positive tort, the result would be paralysis to the manufacturing interests of the State, which can not operate without some detention of water, and consequent loss by evaporation. If the owner of the mill has a right to detain the water reasonably for its profitable enjoyment, the mere allegation that .he detained it longer than was reasonable would not constitute a case falling within the class of “positive and continuous torts” referred to in the Civil Code, §3802, which would free the lower mill owner from any necessity or duty to use ordinary care. Whatever those words may mean, I do not think that they apply to a case where a person has a right to do a thing reasonably (the thing itself being right, if reasonably exercised), because of a charge that the right was unreasonably exercised. The unreasonable exercise of a right more nearly approximates negligence than the commission of a positive, direct, or wilful tort. If unreasonable exercise of a right is to be classified rather with negligent torts than those which the code calls “positive and continuous,” unquestionably the rule which requires the exercise of ordinary care •on the part of the person claiming to be injured in order to lessen the damages applies. This is quite different from a case where water is actually hacked upon the land of another or caused to overflow his land. Such cases present instances of a direct invasion of the land itself. A person trespasses upon land as much by backing water upon it as he does by entering upon it himself. Thus, in the case of Athens Mfg. Co. v. Rucker, 80 Ga. 291 (4 S. E. 885), it was said: “If -this company raised their dam, thereby
I am authorized to state that Mr. Justice Atkinson concurs with me in the views above expressed.