2020 Georgia Code
Title 44 - Property
Chapter 8 - Water Rights
§ 44-8-1. Ownership of Running Water; Right to Divert or Adulterate Water

Running water belongs to the owner of the land on which it runs; but the landowner has no right to divert the water from its usual channel nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner.

(Ga. L. 1855-56, p. 12, § 1; Code 1863, § 2206; Code 1868, § 2201; Code 1873, § 2227; Code 1882, § 2227; Civil Code 1895, § 3057; Civil Code 1910, § 3629; Code 1933, § 85-1301.)

- For article, "Georgia Water Law, Use and Control Factors," see 19 Ga. B.J. 119 (1956). For article discussing federal liability for pollution abatement in condemnation actions, see 17 Mercer L. Rev. 364 (1966). For article discussing legal questions relating to interbasin transfer of water supply, see 13 Ga. St. B.J. 48 (1976). For article, "Hazardous Waste Issues in Real Estate Transactions," see 38 Mercer L. Rev. 581 (1987). For article, "Water Rights, Public Resources, and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water," see 38 Ga. L. Rev. 1009 (2004). For article, "Special Challenges to Water Markets in Riparian States," see 21 Ga. St. U. L. Rev. 305 (2004).

ANALYSIS

• General Consideration
• Diversion of Water
• Pollution

O.C.G.A. § 44-8-1 does not speak to the landlord-tenant relationship, but only to the relations between adjoining proprietors. Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).

Cited in Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769 (1944); Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844 (1953); Piedmont Cotton Mills, Inc. v. General Whse. No. Two, Inc., 222 Ga. 164, 149 S.E.2d 72 (1966); First Kingston Corp. v. Thompson, 222 Ga. 6, 152 S.E.2d 837 (1967); Wright v. Lovett, 132 Ga. App. 729, 209 S.E.2d 15 (1974); Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).

Diversion of Water

No change in common law.

- Construing together O.C.G.A. § 44-8-1,44-8-3, and51-9-7, there is no change in the common law. Pool v. Lewis, 41 Ga. 162, 5 Am. R. 526 (1870); White v. East Lake Land Co., 96 Ga. 415, 23 S.E. 393, 51 Am. St. R. 141 (1895); Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87 (1909).

- O.C.G.A. § 44-8-1 and51-9-7 secure to the owner of land over which a stream passes the legal use of it, for the purpose of propelling such machinery as is suited to the size and capacity of the stream; provided, the water is not obstructed for an unreasonable time, and is not diverted from its natural channel when it passes to the lands of the next proprietor. Pool v. Lewis, 41 Ga. 162, 5 Am. R. 526 (1870).

- O.C.G.A. § 44-8-1 made no substantial change in the common-law rights of landowners, with respect to ditching out and protecting their property. Grant v. Kuglar, 81 Ga. 637, 8 S.E. 878, 12 Am. St. R. 348, 3 L.R.A. 606 (1889); Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87, 22 L.R.A. (n.s.) 684 (1909).

- Under a proper construction of O.C.G.A. §§ 13-6-5,44-8-1,51-9-7, and51-12-11, every riparian owner is entitled to a reasonable use of the water in the stream. If the general rule that each riparian owner could not in any way interrupt or diminish the flow of the stream were strictly followed, the water would be of little practical use to any proprietor, and the enforcement of such rule would deny, rather than grant, the use thereof. Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87, 22 L.R.A. (n.s.) 684 (1909).

- Irrigation is not per se a diversion of water prohibited by law. Pyle v. Gilbert, 245 Ga. 403, 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687, 690 S.E.2d 819 (2010).

- A reasonable amount of water may be diverted for irrigation, under the general right of use for domestic and agricultural purposes. Pyle v. Gilbert, 245 Ga. 403, 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687, 690 S.E.2d 819 (2010).

Upper riparian owner has right to pass water along unobstructed by lower riparian owner, and lower riparian owner has duty to receive water unobstructed by upper riparian owner. Brown v. Tomlinson, 246 Ga. 513, 272 S.E.2d 258 (1980).

- Where two lots adjoin, lower lot owes servitude to the higher, to receive water naturally running from it, provided owner of the latter has done nothing to increase flow by artificial means. Brown v. Tomlinson, 246 Ga. 513, 272 S.E.2d 258 (1980).

Lower riparian owners also have riparian rights to natural flow of stream running through upper riparian owners' property. Brown v. Tomlinson, 246 Ga. 513, 272 S.E.2d 258 (1980).

- A landowner has no right incident to ownership of land to divert surface water runoff so as to damage an adjoining proprietor. Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).

- Riparian rights are appurtenant only to lands which actually touch on the water course, or through which it flows, and a riparian owner or proprietor cannot lawfully use, or convey to another the right to use water flowing along or through property, upon nonriparian land or lands physically separated from the lands bordering upon the stream. Hendrix v. Roberts Marble Co., 175 Ga. 389, 165 S.E. 223 (1932).

- No riparian proprietor has the right to use the water to the prejudice of other proprietors above or below the riparian proprietor, as the riparian proprietor has no property in the water itself, but a simple usufruct while it passes along. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936).

- Where a lower riparian proprietor petitions for an interlocutory injunction against an upper proprietor, who is threatening to interfere with petitioner's rights in a nonnavigable stream flowing through land, by diverting part of the water above the lands of the petitioner, and returning it to the stream below such lands, and where it appears from the record that the defendant, a nonresident, admits the contemplated trespass, and defends solely upon the ground that the diversion of the water will not damage the petitioner to any material extent, it is error to refuse the injunction prayed because (1) the diversion of the water would be an injury to the petitioner's property and property rights; (2) the injunction would prevent a multiplicity of suits; and (3) the injunction would restrain acts of the defendant which might, with the lapse of time, become the foundation of an adverse right. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936).

- For other than domestic purposes, the right of each proprietor in the use of the water is limited by the rights of the other proprietors; and consequently, if an upper proprietor appropriates to own use more of the water than the proportionate share to which the owner is entitled, a lower proprietor may maintain an action for the recovery of damages therefor. White v. East Lake Land Co., 96 Ga. 415, 23 S.E. 393, 51 Am. St. R. 141 (1895).

- If diversion of water is complete, the lower proprietor is entitled to full damages; if partial, the damages should be apportioned. White v. East Lake Land Co., 96 Ga. 415, 23 S.E. 393, 51 Am. St. R. 141 (1895).

The damaged proprietor is under no legal obligation to exercise ordinary care to avoid or lessen such damages. Satterfield v. Rowan, 83 Ga. 187, 9 S.E. 677 (1889); Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87, 22 L.R.A. (n.s.) 684 (1909).

- The question as to whether or not the use of the water by the first proprietor is reasonable is one of fact for determination by jury. White v. East Lake Land Co., 96 Ga. 415, 23 S.E. 393, 51 Am. St. R. 141 (1895); Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87, 22 L.R.A. (n.s.) 684 (1909).

- Where dam on lower riparian owner's property creating pond on upper riparian owner's property was in existence for more than 20 years, lower riparian owner lost right to receive natural flow of water from upper riparian owner and the latter acquired right to maintain accumulated water on land. Brown v. Tomlinson, 246 Ga. 513, 272 S.E.2d 258 (1980).

- Even though appellant, upper riparian landowner, had acquired prescriptive right to maintain accumulated water on land, the upper riparian owner was not entitled to permanent injunction preventing lower riparian owner from draining the pond by breaking dam on lower riparian property where appellant failed to attend meetings where draining of the pond was discussed and did not bring action until one month after appellent became aware that pond was being drained, and where appellee testified in court that the plan was to refill and restock the pond. Brown v. Tomlinson, 246 Ga. 513, 272 S.E.2d 258 (1980).

- Where the petition disclosed that the plaintiff was not a riparian owner at the time the action was filed, the petition did not state a cause of action either for legal or equitable relief on account of the erection by the defendants of a dam across a nonnavigable stream flowing through the property of the defendants and across land occupied by the plaintiff with the consent of the owner. Moulton v. Bunting McWilliams Post No. 658, Veterans of Foreign Wars, 213 Ga. 859, 102 S.E.2d 593 (1958).

A lower riparian owner is entitled to have water flow upon land in its natural state free from adulteration. Kingsley Mill Corp. v. Edmonds, 208 Ga. 374, 67 S.E.2d 111 (1951).

An upper riparian owner cannot lawfully pollute the water of a stream so as to render it unfit for use by a lower owner. Satterfield v. Rowan, 83 Ga. 187, 9 S.E. 677 (1889); Horton v. Fulton, 130 Ga. 466, 60 S.E. 1059 (1908).

- The owner of land is entitled to the use of water of a nonnavigable stream flowing through land. Several lower riparian landowners have such a community of interest that they may join in a petition to restrain an upper proprietor or stranger from adulterating the water. Horton v. Fulton, 130 Ga. 465, 60 S.E. 1059 (1908); Cairo Pickle Co. v. Muggridge, 206 Ga. 80, 55 S.E.2d 562 (1949).

- Injuring "a fishing privilege," or rendering land less valuable for pasture purposes, by polluting the water of a nonnavigable stream, gives rise to a cause of action. Injunction will lie to prevent continuing trespasses. Cairo Pickle Co. v. Muggridge, 206 Ga. 80, 55 S.E.2d 562 (1949).

- A petition of a lower riparian owner showing an adulteration, by an upper-riparian owner, of water flowing through their properties with resultant damage to such lower owner, in violation of O.C.G.A. § 44-8-1 and51-9-7, is not demurrable (now motion to dismiss) as stating no cause of action. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).

- Where no question of prescriptive rights was involved in suit by a dairy farmer seeking to enjoin a manufacturing company from polluting a stream, and where there was evidence, though conflicting, that the stream was being polluted, and that the petitioner had not acquiesced or consented for the water from the defendants' sewerage disposal plant to be discharged upon defendant's land, the trial court did not abuse its discretion in granting an interlocutory injunction. Kingsley Mill Corp. v. Edmonds, 208 Ga. 374, 67 S.E.2d 111 (1951).

OPINIONS OF THE ATTORNEY GENERAL

Riparian owner may prohibit fishing on part of navigable river.

- A property owner may bar public fishing in a fresh water stream on that portion of the stream that runs through land held by the property owner, although the stream is navigable. 1960-61 Op. Att'y Gen. p. 237.