2021 Georgia Code
Title 51 - Torts
Chapter 9 - Injuries to Real Estate
§ 51-9-7. Diversion, Obstruction, or Pollution of Stream as Trespass

The owner of land through which nonnavigable watercourses 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. The diverting of the stream in whole or in part from its natural and usual flow, or the obstructing thereof so as to impede its course or cause it to overflow or injure the land through which it flows or any right appurtenant thereto, or the polluting thereof so as to lessen its value to the owner of such land shall constitute a trespass upon the property.

(Orig. Code 1863, § 2960; Code 1868, § 2967; Code 1873, § 3018; Code 1882, § 3018; Civil Code 1895, § 3879; Civil Code 1910, § 4475; Code 1933, § 105-1407.)

- Control of water pollution and surface-water use generally, § 12-5-20.

Property rights in water generally, T. 44, C. 8.

- For article, "Riparian Rights in Georgia," see 18 Ga. B. J. 401 (1956). For article, "Georgia Water Law, Use and Control Factors," see 19 Ga. B. J. 119 (1956). For article on principles of water law in the southeast, see 13 Mercer L. Rev. 344 (1962). For article, "Surface Waters and the Civil Law Rule," see 23 Emory L.J. 1015 (1974). For article discussing legal questions relating to interbasin transfer of water supply, see Ga. St. B. J. 48 (1976). 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). For note, "Regulation of Artificial Lakes and Recreational Subdivisions in Georgia," recommending methods for future regulation, see 8 Ga. St. B. J. 580 (1972).

JUDICIAL DECISIONS

Law with regard to respective rights of owners of land on nonnavigable streams is based upon old maxim of Justinian.

- "Water runs and it ought to run in the manner in which it was accustomed to run." Goble v. Louisville & Nashville R.R., 187 Ga. 243, 200 S.E. 259 (1938).

This section is a codification of common law. Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87 (1909).

- The provisions of O.C.G.A. § 51-9-7 extend to owners of parcels on either side of a stream, as well as to upper and lower riparian owners. Dawson v. Wade, 257 Ga. 552, 361 S.E.2d 181 (1987).

Obstruction of nonnavigable stream so as to impede its course or cause it to overflow or injure land of another is trespass upon one's property. Groover v. Hightower, 59 Ga. App. 491, 1 S.E.2d 446 (1939).

Riparian rights are part of soil and go with soil, and a plaintiff if not required to wait and perhaps in future be compelled to meet a claim of right adverse to the plaintiff's title. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936).

It matters not whether use to which running water can be applied is present or prospective; riparian proprietor has a right to which the proprietor would by law be entitled. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936).

Owner of land to or through which nonnavigable stream flows has right to flow of water which is equal to owner's right to soil which underlies stream; such a right comes within the constitutional provision that private property may not be taken or damaged for public purposes without payment of just and adequate compensation. Davis v. Cobb County, 61 Ga. App. 712, 7 S.E.2d 324 (1940).

As to the diversion of a nonnavigable stream in Georgia, there is no exception to the rule that a riparian owner has a right equal to one's right to the soil which underlies the stream that the water should continue to run as it did before the diversion. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936).

No riparian proprietor has right to use water to prejudice of other proprietors above or below the proprietor; the proprietor has no property in the water itself, but a simply usufruct while it passes along. Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936); Goble v. Louisville & Nashville R.R., 187 Ga. 243, 200 S.E. 259 (1938).

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

Riparian owner is not to be held responsible for effects of forces of nature, to wit, the vicissitudes of the weather, which may cause trees upon one's land to become rotten and thereby break off and fall into the main channel of a watercourse, and one owes no duty either to a lower or upper riparian owner to remove these obstructions, so as to release water thereby caused to be backed over the land of an upper riparian owner, and, therefore, a failure to do so, even after notice, does not subject such owner to an action ex delicto for damages. Cole v. Bradford, 52 Ga. App. 854, 184 S.E. 901 (1936).

- A landowner is not liable for the diversion or obstruction of surface water unless the landowner diverts or obstructs the natural flow of water by "artificial means." Bracey v. King, 199 Ga. App. 831, 406 S.E.2d 265 (1991).

- A beaver dam is naturally created, as opposed to an artificially created obstruction, and therefore constitutes a natural obstruction which a downstream owner is under no legal obligation to remove. Bracey v. King, 199 Ga. App. 831, 406 S.E.2d 265 (1991).

Petition of lower riparian owner showing adulteration, by upper riparian owner, of water flowing through their properties with resultant damage to such lower owner, is not demurrable (now subject to 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).

When petition disclosed that the plaintiff was not the 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 consent of the owner. Moulton v. Bunting McWilliams Post No. 658, VFW, 213 Ga. 859, 102 S.E.2d 593 (1958).

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).

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).

By common law, right to take fish belongs essentially to right of soil in streams where the tide does not ebb and flow. Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575 (1930).

If riparian owner owns upon both sides of stream, no one but the owner may come within limits of owner's land and take fish there. The same right applies so far as the owner's land extends to the thread of the stream, where the owner owns upon one side only. Within these limits, by the common law, the owner's rights of fishery are sole and exclusive. Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575 (1930).

- Several lower riparian landowners have such a community of interest and right in the enjoyment of a nonnavigable stream that they may join in a petition to restrain a trespass. Horton v. Fulton, 130 Ga. 466, 60 S.E. 1059 (1908).

- A person cannot recover under this section when the title to the land is in a third person. Morris v. McCamey, 9 Ga. 160 (1850).

- When a county, grading a road under contract with the Highway Department, hauls dirt 100 feet from the right of way and dumps the dirt into a spring on land adjoining the plaintiffs, and stops up the spring and cuts off a stream which flowed upon and through the plaintiffs' property, it is liable in damages for the difference between the value of the plaintiffs' land before and after the stoppage of the flow of water. Davis v. Cobb County, 61 Ga. App. 712, 7 S.E.2d 324 (1940).

- A cause of action was set forth in a petition alleging that the defendant placed a trestle across a creek, leaving an opening inadequate to carry the natural flow of water in times of freshet, with the result that debris, sand, and logs collected on the upper side of the trestle, causing partial obstruction of the flow of the stream; that on a day named, when heavy rains fell, the logs and debris thus collected completely stopped the flow of the water, thereby causing the fill and trestle of the defendant to form a complete dam; that as a result the embankment and fill of the defendant broke away and suddenly released the entire volume of impounded water on the plaintiff's land, rendering it worthless by reason of its being washed away by these floods of water; that the injuries were occasioned by the maintenance by the defendant of the fill and embankment in a negligent manner; that the maintenance of the trestle and fill was a continuing nuisance; that the defendant had begun to rebuild in the manner as it theretofore existed; and that the recurring damage would give rise to a multiplicity of suits and constitute a recurring trespass with resultant irreparable damages; the prayers being for an injunction to prevent the defendant from maintaining the defendant's trestle in the manner undertaken, and for damages to that part of the land rendered totally worthless. Goble v. Louisville & Nashville R.R., 187 Ga. 243, 200 S.E. 259 (1938).

- When a lower riparian proprietor files a petition praying for injunction against an upper riparian proprietor, who is threatening to interfere with one's rights in a nonnavigable stream flowing through one's land by diverting a part of the water above the lands of the complainant and turning it into another stream, the defendant admitting that it is the defendant's purpose to divert the water, it will be error to refuse an injunction upon the ground that the threatening injury is such as to result in no material damages to the complainant. McNabb v. Houser, 171 Ga. 744, 156 S.E. 595 (1931); Robertson v. Arnold, 182 Ga. 664, 186 S.E. 806 (1936).

- When no question of prescriptive rights was involved in suit by a dairy farmer seeking to enjoin a manufacturing company from polluting a stream, and when 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 the defendant's land, the trial court did not abuse the court's discretion in granting an interlocutory injunction. Kingsley Mill Corp. v. Edmonds, 208 Ga. 374, 67 S.E.2d 111 (1951).

- The owner of a mill whose dam and machinery are suited to the size and capacity of the stream has a right to the reasonable use of the water to propel the owner's machinery, but the owner must return it to its natural channel before it passes upon the land of the proprietor below. Pool v. Lewis, 41 Ga. 162, 5 Am. R. 526 (1870).

Rights of landowner adjacent to nonnavigable stream may be lost by prescription. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868 (1908).

- Something more than mere passivity or inaction upon the part of a riparian owner of lands upon a stream, while another is cleaning out and constructing a ditch at large expense for the purpose of diverting water from such stream, is generally necessary to create an estoppel, although the riparian owner may know of such expenditure and make no objection. McNabb v. Houser, 171 Ga. 744, 156 S.E. 595 (1931).

- A municipal corporation is not liable for an overflow of surface water created by ice and snow which injures the property of an abutting landowner. Phinizy v. City Council, 47 Ga. 260 (1872).

Suit may be maintained for damages growing out of nuisance constituted by trestle and fill inadequately constructed and negligently maintained, when the damages sued for were inflicted within four years before the time of filing suit, though the act which originally caused the nuisance was not done within the period of limitation of the action. Goble v. Louisville & Nashville R.R., 187 Ga. 243, 200 S.E. 259 (1938).

A railroad company, in its construction and maintenance of its culverts, trestle, and embankments, is bound so to construct and maintain them that the accumulation of water from freshets which in the usual course of events are likely to occur will not cause breaks in its embankments and consequent inundation of lands below. Goble v. Louisville & Nashville R.R., 187 Ga. 243, 200 S.E. 259 (1938).

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); Clemones v. Alabama Power Co., 250 F. Supp. 433 (N.D. Ga. 1966); First Kingston Corp. v. Thompson, 223 Ga. 6, 152 S.E.2d 837 (1967); Wright v. Lovett, 132 Ga. App. 729, 209 S.E.2d 15 (1974); Payne v. Whiting, 140 Ga. App. 390, 231 S.E.2d 796 (1976).

Parol license to flood lands given by owner operates as easement when acted on and money is spent in constructing dam. 1954-56 Op. Att'y Gen. p. 555.

RESEARCH REFERENCES

Am. Jur. 2d.

- 78 Am. Jur. 2d, Waters, §§ 55 et seq., 171 et seq., 191 et seq.

- 93 C.J.S., Waters, §§ 19 et seq., 49 et seq.

- Duty to refrain from improving or using one's property in anticipation of flooding of the property by another's wrong, 19 A.L.R. 423.

Right of grantor of railroad right of way or his privy to recover damages for interference with surface water by construction of road, 19 A.L.R. 487.

Right of riparian owner to embank against flood or overflow water from stream, 22 A.L.R. 956; 53 A.L.R. 1180.

Liability of owner of flowage rights for draining off water to the damage of property overflowed, 29 A.L.R. 1325.

Measure of damages for interference with percolating waters, 35 A.L.R. 1222; 55 A.L.R. 1385; 109 A.L.R. 395.

Injury by percolation or seepage from ponded water, 38 A.L.R. 1244.

Pollution of stream by mining operations, 39 A.L.R. 891.

Riparian or littoral owner's right of view over navigable water, 52 A.L.R. 1186.

Prescriptive right of lower as against upper owner to flow of stream, 53 A.L.R. 201.

Transfer of riparian right to use water to nonriparian land, 54 A.L.R. 1411.

Constitutionality of statutes affecting riparian rights, 56 A.L.R. 277.

Extend of detention or retardation of water incident to riparian rights, 70 A.L.R. 220.

Duty of lower land to receive surface water diverted to upper land by artificial conditions outside of both tracts, 72 A.L.R. 344.

Estoppel of one riparian owner to complain to diversion of water by another riparian owner, 74 A.L.R. 1129.

What constitutes natural drainway or watercourse for flow of surface water, 81 A.L.R. 262.

Right of riparian landowners to continuance of artificial conditions established above or below their land, 88 A.L.R. 130.

Right to injunction to protect water rights as affected by fact that party seeking injunction contemplates no immediate use of rights, or by doctrine of comparative injury, 106 A.L.R. 687.

Obstruction or diversion of, or other interference with, flow of surface water as taking or damaging property within constitutional provision against taking or damaging without compensation, 128 A.L.R. 1195.

Liability for overflow or escape of water from reservoir, ditch, or artificial pond, 169 A.L.R. 517.

Right of riparian owner to construct dikes, embankments, or other structures necessary to maintain or restore bank of stream or to prevent flood, 23 A.L.R.2d 750.

When statute of limitation commences to run against damage from overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Liability of person obstructing stream, ravine, or similar area by debris or waste, for damages caused by flooding or the like, 29 A.L.R.2d 447.

Liability for obstruction or diversion of subterranean waters in use of land, 29 A.L.R.2d 1354.

Measure and elements of damages for pollution of a stream, 49 A.L.R.2d 253.

Relative riparian or littoral rights respecting the removal of water from a natural, private, nonnavigable lake, 54 A.L.R.2d 1450.

Right of private sewerage system owner to enjoin unauthorized persons from using facilities, 76 A.L.R.2d 1329.

Landowner's right to relief against pollution of his water supply by industrial or commercial waste, 39 A.L.R.3d 910.

Propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.

Applicability of rule of strict or absolute liability to overflow or escape of water caused by dam failure, 51 A.L.R.3d 965.

Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.

Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.