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Show 232 GEORGIA tected to this extent. It is perhaps sufficient to say that this was, however, the usual rule at the time. b. The 1860 Statutes The second stage in the development of Georgia water law oc- curred in 1860 when the legislature enacted a series of statutes codifying riparian law. Although the legislature may have been influenced by Hendrick v. Cook, discussed above, the statutes not only seem to go beyond traditional rules, but also to adopt inconsist- ent provisions. Five of these sections now appear in the Georgia code in the volume dealing with property law.30 Of these, the first (sec. 85-1301) was perhaps influenced somewhat by an earlier enactment in 1855.31 Section 85-1301 provides that: Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner. Although the concept of ownership of running water was perhaps alien to the common law,32 here it probably simply means that as water in a stream passes through his land, the landowner has the exclusive right to use it, thus gearing the use of water to land owner- ship. The prohibition against diversions from the usual channel must refer to substantial diversions since the last phrase clearly indicates that the riparian owner has some right to use the water (and even to adulterate it) as long as he does not interfere with the enjoyment of it by other riparians. A second section (sec. 85-1302) merely provides that riparian owners on nonnavigable streams own to the thread of the stream if the stream itself is the boundary. The next two sections (sec. 85-1303, 85-1304) define what is meant by a navigable stream and the extent of riparian privileges thereon (i.e., to the low-water mark). The definition of a navigable stream must be unique in this country. It is said to be one capable of bearing upon its bosom boats loaded with freight in the regular course of trade. The last section (sec. 85-1305) provides that a riparian owner on a nonnavigable stream is entitled to the same exclusive possession [of the water] as he has of any other part of his land. This reinforces the interpretation of section 85-1301, above, as to ownership of running water. The section also adds that: the legislature has no power to compel or interfere with him in its lawful use, for the benefit of those above or below him on the stream, except to restrain nuisances. Taken literally, the above provision might be regarded as estab- lishing a complete defense where the diversion would not in fact constitute a nuisance. The Georgia Court takes the position, how- ever, that such an interpretation would be an unconstitutional taking of property without compensation, and that the section, therefore, merely restates common law principles.33 S024A Ga. Code Ann., sees. 85-1301 to 85-1305 (1970). 31 Ga. laws, 1855-56, p. 12. 82 In a case dealing with the Federal navigation servitude, Justice Jackson felt that private ownership of running water is "inconceivable." Why this is go was not explained. See United States v. Willow River Power Co., 324 U.S. 499 (1945). 83 See Persona v. Hill, 33 Ga. supp. 141 (1864) and Pool v. Lewis, 41 Ga. 162, 170 (1870). |
