124 Ga. 754 | Ga. | 1906
(After stating the facts.) Generally an underground stream of water may be diverted without liability to a proprietor whose land it might reach in its natural and ordinary course; yet, •where it has once emerged and afterwards sinks, if its exact course can be traced to where it emerges again, so as to render it certain that it is the same water, the proprietor of the surface at the latter point will be protected in its use, the same as if it were not a subterranean stream. Saddler v. Lee, 66 Ga. 45, construing the provisions of section 3019 of the Code of 1873, now embraced in the Civil Code, §3880. There was a sharp conflict as to whether the stream of-water which Patten seeks to divert is the same as that from which water emerges upon the surface of the plaintiff’s land. There was also some conflict as to whether the water flowing.over the surface of the plaintiff’s land was. in point of fact used for/domestic purposes, as claimed by him. Unless it was the same stream of water, Patten had the undoubted right to the use of. the water emerging at the point on Mrs. Powell’s land where he proposed to connect his pipe line, and could, with her consent, divert it from its natural course, so far as the plaintiff was concerned. On the other hand, if one and the same stream flowed beneath' the surface of both the Powell tract and that owned by the plaintiff, and its course was well defined and could be traced with certainty, then Patten would have no more right to divert it from the plaintiff’s land than he would if the stream flowed continuously upon the surface. In the latter instance, if the water was the only unfailing supply which
Judgment on main hill of exceptions reversed; on cross-hill af>• firmed.