182 Ga. 664 | Ga. | 1936
Eobertson brought a petition praying that Arnold be enjoined from diverting water from a non-navigable stream flowing on the land of the plaintiff. The court sustained a general demurrer and dismissed the action, and the plaintiff excepted.
It is stated in the brief of counsel for the defendant that the only question in this case is whether or not the-petition sets forth a cause of action; and that in order to apply the law'applicable in eases of this kind, the plaintiff must set forth in his petition sufficient facts to justify the relief which he asks the court to grant. The statement of the law by counsel is true in a general way; but several questions are raised in this case to which the statement of the law by counsel does not give consideration. The plaintiff sued to enjoin the diversion of a non-navigable stream from his premises, which would or might be to his injury and damage. It is true that the plaintiff alleges that it is only a tributary of Ellis Springs branch, but it is also alleged that it has been diverted in such a way that it flows into the branch so much further down the flow of the stream that the diversion will impair the value of the stream to him for the purpose of furnishing water-power. But under previous decisions of this court, the plaintiffs action is based on the old maxim, aqua curret el deíet currere in modo quo currere solébai, which translated into English is, water runs and it ought to run in the same way in which it was accustomed to run. It matters not whether the use to which the running water can be applied is present or prospective; a riparian owner has a right to which he would by law be entitled. Great stress is laid by counsel for the defendant on the fact that there has not been a mill upon this stream for more than ten years, and that there may never be any use for it for, this purpose in future. Counsel suggests "that plaintiff in error take the advice of the court, and follow the Suggestion of the trial
Counsel for the defendant relies on Pittard v. Summerour, 181 Ga. 349 (supra), in support of his contentions. In that case injunction was prayed against a continuing nuisance alleged to be due to the prospective building of a tannery on the stream in question, while in the case at bar injunction is sought to prevent the diversion of a running stream. It is thus quite evident that the principle dealt with there has no application to the case at bar. As to'the diversion 'of a non-navigable stream in Georgia, the rule is inflexible that a riparian owner has a right equal to his right to the soil which underlies the stream, to have the water run where it had been running before the' diversion was contemplated. In the Piiiard case, in which there was an application to enjoin a nuisance, the court held that “A court of equity will only exercise the power to restrain nuisances in the course of construction in cases of necessity, where the evil sought to be remedied is not merely probable, but certain.” So the statement that ‘’‘mere allegations of speculative or contingent injuries, with nothing to show that they will in fact happen, do not require an injunction,” has no bearing in a case in which the point raised by the petition and the demurrer is whether as a matter of law the allegations state a case which should prevent the diversion of a running stream. Eobertson alleges that he is the owner in fee simple of 88 acres of land (copy of his deed being attached to the petition), and that over and upon said property flows a stream of water which is very valuable to the owner by reason of the fact that a certain water-race was supplied by this stream, known as Ellis Springs branch; that numerous tributaries of said branch rise from springs above the land of petitioner and empty into said branch above his land; that while he has not operated a mill in connection with said water-race during the past ten years, his
Before the ruling on demurrer, the petition was so amended as to set out that Mrs. Jack Jones had purportedly granted to the defendant the right to divert the said stream, but that if defendant were permitted to divert said stream the plaintiff would suffer irreparable injury; that the defendant was insolvent and unable to respond in damages; and that the defendant had so dug his ditch and threatened to divert the tributaries to Ellis Springs branch as to cause the same' to flow along and through and upon non-riparian lands physically separated from the lands bordering on the stream. The demurrer which was sustained is as follows: “T. That said petition as a whole or none of its parts set out or set forth a cause of action against this defendant. II. That the
We are of the opinion that the judge erred in sustaining this demurrer. It is declared in the Code of 1933, § 105-1407: “The owner of land through which non-navigable watercourses may flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such -detention or diminution as may be caused by a reasonable use of it by other riparian proprietors; and the diverting of the stream, wholly or -in part from the same, . . or any right appurtenant thereto . . shall be a trespass upon his property.” In McNabb v. Houser, 171 Ga. 744 (156 S. E. 595, 74 A. L. R. 1122), this court held: “Where a lower riparian proprietor files a petition praying for injunction against an upper proprietor, who is threatening to interfere with his rights in a non-navigable stream flowing through his land, by diverting, a part- of the water above the land of the complainant and turning it into another stream, the defendant admitting that it is his purpose so to divert the water, it will be error to refuse an injunction upon the ground that the threatened injury is such as to result in no material damage to the complainant. Chestatee Pyrites Co. v. Cavenders Creek &c. Co., 118 Ga. 255 (45 S. E. 267).” In that decision Judge Hines went very fully into a discussion of the principles which we deem to be involved in the case at bar. The judge seems to have based his order largely on the ground that the plaintiff’s damage, if any, is
The court is constrained to hold that the judge erred in sustaining the demurrer and in dismissing the action.
Judgment reversed.