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Show GEORGIA 235 no mention is made in the conveyance of water rights or uses, the full measure of riparian water rights still passes with the land, as part of the land. Questions and problems usually arise when there is a conveyance of some interest short of title to the land, or where title is conveyed subject to certain conditions or reservations. To illustrate, the grant of a mill privilege, without any mention of a right to use water, automatically conveys a right to use the stream for mill purposes, subject to reasonable use of the stream by upper riparian owners.50 However, if one purchases simply a right to use water from a riparian owner, he does not, as a result of that license, obtain "equal" rights with other riparians on the stream.51 And a riparian owner cannot sell or convey any valid permit or license to another for use of water on nonriparian land.52 Many problems have arisen in connection with fishing rights. When a grantor conveyed land to a railroad but reserved a right to raise fish in a pond on the land, the railroad was subsequently held liable for diverting rainwater to the damage on the fishpond, even though the railroad acted in good faith and without negligence.53 And it has been held that a reservation to the grantor and his "heirs and as- signs" to take fish from waters located on land conveyed, was not merely an easement but a right in the land coupled with a profit (profit a prendre).54 However, where the grantor simply reserved a right to fish in waters located on land conveyed, the court con- strued it to be a personal right, which could not be sold, assigned, inherited, or otherwise transferred.55 3.4 Loss of Bights If title to riparian land is acquired by adverse possession for the statutory period, then the riparian water rights which are part of the land adversed pass with title to the land, but if only water is possessed and used contrary to the riparian rights of another, then, after the prescriptive period of 20 years, the use may be maintained as against the right of the riparian damaged, even though the use is otherwise unreasonable. Such prescriptive rights require that the use be open, continuous, and hostile for the full 20-year period, and, if so, the prescriptive right acquired can include not only the right to divert water but also might include the right to overflow or flood lands of another.56 A number of cases have held that prescriptive rights extend to discharging wastes into streams, such as where a canning plant dis- charges tomato peelings and refuse, and even though the pollution resulting therefrom would otherwise constitute a private nuisance;57 but it is unlikely that these cases would now be followed in view of the water quality controls discussed in section 2.3 above. It has been eo Rome Ry. and Light Co. v. Loeb, 141 Ga. 202, 80 S.E. 785 (1914). ^Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909). B2Hendrix et al. v. Roberts Marble Oo., 175 Ga. 389, 165 S.E. 223 (1932). szPelham & Havana RR. Go. v. Walker, 24 Ga. App. 530, 101 S.E. 715 (1919). <"Bo8Worth V. Nelson, 170 Ga. 279, 152 S.E. 575 (1930). 66 Mallet v. McOord, 127 Ga. 761, 56 S.E. 1015 (1906). ™PMnizy v. Augusta, 47 Ga. 260 (1872) ; cf. Albany v. 8ikes, 94 Ga. 30, 20 S.E. 257 (1893). ™ Anneberg v. Kurte, 197 Ga. 188, 28 S.E. 2d 769 (1944). |
