OCR Text |
Show 238 GEORGIA ises, is, unless the stream is well defined and its existence known or easily discernible, or unless the injury is caused by malice, damnum absque injuria." n It appears that in most instances underground water supplying springs is deemed to be percolating, and a landowner's interference with the subterranean flow causing springs on lands of another to stop flowing, is not actionable.74 However, where one acts with mal- ice, or where it appears that he intentionally intercepts or interferes with a subterranean flow without applying the water to some bene- ficial use, the courts are more apt to find that the underground water is a natural stream, and that another's reasonable use will be pro- tected. So, when a landowner dug a well on his property for the purpose of destroying a valuable mineral spring located on adjacent property, the court found the underground water to be a stream rather than percolating water, and the mineral springs were thus protected.75 As an incidental matter, it has been held that a contract which grants a privilege to build a dam which provides that a spring must be protected, is to be construed so as to require protection of the spring not only in its artificial state as of the date of the contract, but also in its natural state.76 3.7 Diffused Surface Waters Although it is likely that a Georgia landowner has the right to appropriate for his own use diffused surface water on his land so long as the water is used for a beneficial purpose and in a reasonable manner,77 the problem most frequently litigated is the right of a landowner to rid himself of unwanted surface water. Georgia has adhered rather strictly to the civil law rule which imposes on lower land a natural servitude for drainage.78 In the application of this rule, the courts have not felt constrained to make any distinction between rural and urban lands,79 and any artificial improvement of the upper land which causes surface water to flow in greater quantities or to drain in a manner different from the natural flow gives the lower owner a cause of action for any damage which results.80 There are a few Georgia cases which cannot be explained except as departures from the strict civil law rule.81 Mr. Kates analyzes w Id. at 179. «C«k of Atlanta v. Hudgins, 193 Ga. 618, 19 S.E. 2d 508 (1942). ''"Saint Amand v. Lehman, 120 Ga. 253, 47 S.E. 949 (1904). ™ Ford v. Lukens, 81 Ga. 633, 8 S.E. 313 (1888). 77 See Kates, pp. 222-24. The author also deals with the effect of appropriation of diffused surface water upon riparian owners on a stream who rely on such water as their principal source of supply (pp. 224-26) and the problem of pollution of diffused surface waters under the Water Quality Act (pp. 219-222). 78 Perhaps the leading case is The Mayor & Council of Albany v. Sikes, 94 Ga. 30, 20 S.E. 257 (1893) where both the civil law and common law rules were examined. See also Farkas v. Towns, 103 Ga. 150, 29 S.E. 700 (1897). 7» See Rinzler v. Folsom, 209 Ga. 549, 74 S.E. 2d 661 (1953) ; Goldsmith v. Elms, May & Go., 53 Ga. 186 (1874). 80 In addition to other cases cited herein, see First Kingston Corp. v. Thompson, 223 Ga. 6, 152 S.E. 2d 837 (1967) ; MMorris v. Gumming8, 216 Ga. 426, 116 S.E. 2d 592 (1960) ; Housing Authority of Garrollton v. Ayers, 211 Ga. 728, 88 S.E. 2d 368 (1955) ; Hendrix v. McEachern, 164 Ga. 457, 139 S.E. 9 (1926). 81 See particularly Orutcher v. Crawford Land Co., 220 Ga. 298, 138 S.E. 2d 580 (1964) and Edgar v. Walker, 106 Ga. 454, 32 S.E. 582 (1899). Phinisy v. Oity Council of Augusta, 47 Ga. 260 (1872) was repudiated to some extent by the Sikes case, note 78 above. |