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Show 236 GEORGIA held that prescriptive rights in favor of the public can be acquired through public use of nonnavigable waters, although it is more diffi- cult to acquire a public profit a prendre to take fish from such waters.58 Landowners who are fearful that prescriptive rights might be created which would be detrimental to their own rights, have been permitted to bring suit to restrain the use which would give rise to the prescriptive right,59 even though it might now be questionable whether "unused" riparian rights would be an adequate basis upon which to enjoin a use which does not constitute pollution, trespass, or nuisance. Estoppel has also been recognized as a means of limiting riparian water rights. Thus, a riparian owner was estopped from objecting to water diversions through a ditch which had been constructed at substantial expense, and where the evidence showed that he had in fact consented to and acquiesed in the construction of the ditch, and had even assisted in surveying it.60 Similarly, when a plaintiff sold riparian land to a mining company, and consented to have the com- pany discharge its tailings into the stream, the plaintiff was estopped from claiming damage to his lower mill reservoir from the tailings.61 It has also been suggested that a public servitude acquired by pre- scription might thereafter be "abandoned" by discontinuance of use for a sufficient length of time to imply an intent to abandon.62 3.5 Storage Waters, Artificial Lakes, and Ponds Certain statutes permit impoundments for specific purposes, such as the authorization given to water power companies.63 So far as private riparian owners are concerned, they have a greater latitude in storing or impounding water on nonnavigable streams than on navigable ones, since navigability cannot be obstructed on the latter. However, as a general rule, landowners may build dams and impound waters in nonnavigable streams, subject to the condition that such impoundment and use be reasonable and subject to the risk of liability if they act negligently and cause damage to others. The same also applies with respect to collecting diffused surface water, except that the owner has an unqualified right of use of such water as is collected on his own land,64 but he may not discharge the water after use in 68 In Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.B. 868 (1907), the court said that uninterrupted public use of nonnavigable water, such as for floating logs, for more than 20 years, would create a public servitude; but in Bosworth v. Nelson, 170 Ga. 279, 152 S.B. 575 (1930), the court said that a right of public fishery could not be so easily acquired because it was an interest in land coupled with a right-or a profit- to take fish, and that uninterrupted use by some members of the public was not exclusive public possession, that such use will be presumed to be permissive and not adverse, and that there thus will be no "prescriptive right of piscary." 69 Cheatatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 118 Ga. 255, 45 S.E. 267 (1903). bo So. Marble Co. v. Darnell, 94 Ga. 231, 21 S.B. 531 (1893). eiPalmour v. Mitchell, 69 Ga. 750 (1882). 64 Seaboard Air-Line Ry. v. Sikes, 4 Ga. app. 7, 60 S.E. 868 (1907). es Sec. 85-1306. uStoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909), said that falling rain could be collected and subjected to absolute ownership and control of the landowner; and in Phinizy v. Augusta, 40 Ga. 260 (1872), the court said waters from rain and falling snow could be collected by a city and discharged onto lower lands in one stream rather than several small ones, but that the city could not import water for manufacturing purposes and then discharge such water into drains if the result would be to flood and damage lands that would not have been damaged by natural runoff. Cf. Albany v. Sikes, 94 Ga. 30, 20 S.E. 257 (1893). |