96 Ga. 415 | Ga. | 1895
1-3. Where the natural channel of a watercourse lies along the lauds of different proprietors, the water is the common and indivisible property of all of them; their privileges therein are in all respects equal, and except in so far as the right may be qualified by grant, prescription or otherwise, each has equally with the others a right to the use of it for domestic or business purposes. Each has a right to have the water come to his land in its natui’al and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other proprietors. The property in the water being indivisible, there can be no diversion
In the first of the cases now under review, that of J. M. White v. East Lake Land Company, the petition alleges, that the plaintiff is proprietor and owner, and has been since 1877, of a grist-mill, saw-mill and cotton-gin on lot of land 118 in DeEalb county; that he has
The declaration in the other case, that of J. M. White and Susan A. White v. East Lake Land Company, alleges that the plaintiffs are tenants in common, and have been since 1877, in a certain mill-site, with a grist-mill, sawmill and cotton-gin thereon; and allegations similar to those in the other declaration are made as to the dependence of the mill upon the water supply from Doolittle creek, and the erection of the dam; and it is further alleged, that by said erection defendantwrongfully changed the entire character of the main tributary of Doolittle creek from a narrow stream to a broad lake known as East Lake, containing about thirty-five acres of land, and thereby diverted the water from flowing through said main tributary of Doolittle creek to plaintiffs’ mills in its accustomed manner, which was absolutely necessary to their successful operation, as it had flowed and would have continued to flow had not defendant so diverted the flow by the erection of the dam and the making of the lake; by which the water that ought naturally to flow through Doolittle creek to plaintiffs’ mills and gin was carried off by evaporation into the atmosphere and by percolation into the earth; which supply of water plaintiffs had enjoyed in its natural and accustomed flow
4. One of the questions at issue being whether the plaintiffs’ mill lost custom, because the mill had stopped grinding on account of the lack of a sufficient supply of water to run the same, it was, according to the decision of this court in Stewart v. Lanier House Co., 75 Ga. 582, error to exclude the testimony of J. M. White as to the statements of customers that they had withdrawn their custom for this reason.
Judgment in each case, on the main hill of exceptions,, reversed; on the cross-hill, affirmed.