2020 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-8. Interference With Underground Streams
The course of a stream of water underground and its exact condition before its first use are so difficult of ascertainment that trespass may not be brought for any supposed interference with the rights of a proprietor.
(Orig. Code 1863, § 2961; Code 1868, § 2968; Code 1873, § 3019; Code 1882, § 3019; Civil Code 1895, § 3880; Civil Code 1910, § 4476; Code 1933, § 105-1408.)
Law reviews.- 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).
JUDICIAL DECISIONS
This section does not prohibit action for damages for pollution or poisoning of ground, water table or underground waters; the statute deals specifically with the "riparian" rights of the owner of the water in an underground stream. North Ga. Petroleum Co. v. Lewis, 128 Ga. App. 653, 197 S.E.2d 437 (1973).
This section does not apply where stream can be traced from point it sinks to point it emerges. Saddler v. Lee, 66 Ga. 45 (1880).
Section not applicable to action for injunction against adjacent land owner who is diverting water from a well defined underground stream, causing irreparable damage to a mineral spring on the petitioner's land. Saint Armand v. Lehman, 120 Ga. 253, 47 S.E. 949 (1904); Stoner v. Patten, 124 Ga. 754, 52 S.E. 894 (1906).
Interference with underground stream provides no cause of action.
- While under former Code 1933, § 105-1407 (see now O.C.G.A. § 51-9-7), the owner of land through which nonnavigable watercourses flow was entitled to have the water in such streams come to the owner's land in its natural flow, subject to uses there stated, the owner could, under former Code 1933, § 105-1408 (see now O.C.G.A. § 51-9-8), make no legal complaint because the owner of the land on which the head or source of such stream was located, or others, in some manner disturbs the subterranean water that enters that spring, thereby causing the stream to cease flowing altogether. City of Atlanta v. Hudgins, 193 Ga. 618, 19 S.E.2d 508 (1942).
Alleged interference with underground flow of water to wells.
- Portion of amended petition seeking damages because of alleged interference by the defendants' negligence with the underground flow of water to four wells did not show any cause of action since there was nothing in the amended petition to show that these wells were supplied by any defined underground stream. City of Atlanta v. Hudgins, 193 Ga. 618, 19 S.E.2d 508 (1942).
Burden of proof.
- The burden of proving that an underground stream flows in a marked or well defined channel is on the plaintiff. Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909).
RESEARCH REFERENCES
Am. Jur. 2d.
- 78 Am. Jur. 2d, Waters, §§ 217 et seq., 234 et seq.
C.J.S.- 93 C.J.S., Waters, § 204 et seq.
ALR.
- Subterranean and percolating waters; springs; wells, 55 A.L.R. 1385; 109 A.L.R. 395.
Estoppel of one riparian owner to complain of diversion of water by another riparian owner, 74 A.L.R. 1129.
Liability for obstruction or diversion of subterranean waters in use of land, 29 A.L.R.2d 1354.
Liability for pollution of subterranean waters, 38 A.L.R.2d 1265.
