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Show GEORGIA 239 the Georgia cases and convincingly demonstrates, however, that these departures probably cannot be regarded as an indication that the Georgia Court may eventually embrace a "reasonable use" concept.82 The most recent decision of the court is McMillen Dev. Corp. v. Bull,83 where the lower owner was granted an interlocutory injunc- tion prohibiting the upper owner from permitting a natural drain- age system from becoming clogged with mud, silt, and debris to the damage of the lower riparian. The court relied upon an earlier statement of the general rule in Gill v. First Christian Church,84 as follows: Where two city lots adjoin, the lower lot owes a servitude to the higher, so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means. As to surface water, one land proprietor has no right to concentrate and collect it, and thus cause it to be discharged upon the land of a lower proprietor in greater quantities at a particular locality, or in a manner different from that in which the water would be received by the lower estate if it simply ran down upon it from the upper by the law of gravitation.85 4. Ground Water There have been no satisfactory decisions on the right of a land- owner to use percolating underground water. Mr. Kates suggests that one case86 should be read as adopting the "reasonable use" theory.87 As to subterranean streams, a rather curious Georgia statute provides:88 The course of a stream of water underground, and its exact condition before its first use, are so difficult of ascertainment, that trespass may not be brought for any supposed interference with the rights of a proprietor. The Georgia Court seems to have interpreted this language to mean that a nonmalicious interference with an underground stream is not actionable unless the stream is well defined and easily ascer- tainable.89 Where the stream is so defined, the rules relating to sur- face streams apply. But, at the very least, the above statute seems to create a presumption that ground water is percolating water. Georgia has a statute90 which seems designed to protect artesian pressure in underground basins: The owner of any real property in this State on which any free-flowing artesian well is located or any person having immediate supervision over any real property in this State on which any free-flowing artesian well is located shall have any such artesian well tapped or shall otherwise stop the flow of any such well, except when in use, when the following conditions exist: (a) When the flow of any such artesian well is greater than one inch in diameter, and (b) When any such artesian well is located within a one-half mile radius of any other free-flowing well. The statute also applies to wells located on lands owned by the State and political subdivisions, and the persons charged with 82 Kates, pp. 213-19. 83 188 S.B. 2d 491 (Ga. 1972). 8*216 Ga. 454, 117 S.B. 2d 164, 165 (1960). 85 Actually, these statements are quotations from a number of earlier cases. 88 St. Amand v. Lehman, 120 Ga. 253, 47 S.E. 949 (1904). « Kates, p. 237. 88 Sec. 105-1408. 89 See Stoner v. Patten, 132 Ga. 178, 63 S.E. 897 (1909). 8» Sec. 17-701. |
