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Show GEORGIA 233 The most important of the Georgia water statutes is section 105-1407, also adoptedd in 1860. It is perhaps not inappropriate to quote it in its entirety since it represents one of the few attempts to legislate on the nature of riparian rights: The owner of land through which nonnavigable watercourses may flow ia 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; and the diverting of the stream, wholly or in part, from the same, or the obstructing thereof so as to overflow or injure his land, or any right appurtenant thereto, or the pollution thereof so as to lessen its value to him, shall be a trespass upon his property. The statute appears to establish the elements for different causes of action riparians. In the first place, reasonable diminution or de- tention appear to be permissible uses. Secondly, the statute appears to treat diversions, obstructions, and pollution separately. It might seem that the rule as to "diminution" is somewhat inconsistent with the later provision relating to diversion. Kates suggests that the pro- vision relating to diminution probably means that a reasonable domestic use, for example, would not be per se unreasonable.34 How- ever, any substantial "diversion" would appear to be unreasonable, as would any substantial "obstruction," when accompanied by mate- rial injury. Similarly, a cause of action to establish a trespass by pollution would also seem to require a lessening of value of the land of the plaintiff. c. Cases Since 1860 The cases interpreting the 1860 statutes are not particularly il- luminating. As in most States, the reasonableness of the use by a riparian owner is a question of fact. Mr. Kates' analysis of the Georgia cases suggests that certain generalizations are probably war- ranted.85 In the first place, a distinction should be made between consumptive and nonconsumptive uses. In the former category are ordinary domestic uses, irrigation, and certain types of diversions (e.g., to nonriparian land). These may be "permissible" uses but under certain circumstances may nevertheless be unreasonable. Un- like the development of riparian law in other States, domestic uses have reveived no special priority over other uses in Georgia law. As one might expect, the use of water for irrigation has not played a prominent role in the Georgia water cases, and while it is a use which is permitted, it is unlikely that a substantial diversion of water for irrigating nonriparian land would be permitted. The Georgia cases apparently have not recognized any priority among different users in either the consumptive or nonconsumptive categories. Clearly, substantial consumptive uses are not authorized. These might include diversions for nonriparian land,38 certain municipal uses,37 and wasteful uses of water.88 Nonconsumptive uses, according to Mr. Kates, include "uses which temporarily retard or accelerate the natural stream flow, or which af- fect the quality or composition of the flow." 39 In the first class is the ** Kates at pp. 31-32. 86 Kates at pp. 33-47. 88 See Hendrim v. Roberta Marble Co., 175 Ga. 389, 165 S.E. 223 (1932). *>Elberton v. Hobbs, 121 Ga. 749, 49 S.E. 779 (1905). ** White v. East Lake Land Co., 96 Ga. 415, 23 S.E. 393 (1895). w Kates at p. 39. |
