Stoner v. Patten

EvaNS, J. (After stating the facts.) Generally an underground stream of water may be diverted without liability to a proprietor whose land it might reach in its natural and ordinary course; yet, •where it has once emerged and afterwards sinks, if its exact course can be traced to where it emerges again, so as to render it certain that it is the same water, the proprietor of the surface at the latter point will be protected in its use, the same as if it were not a subterranean stream. Saddler v. Lee, 66 Ga. 45, construing the provisions of section 3019 of the Code of 1873, now embraced in the Civil Code, §3880. There was a sharp conflict as to whether the stream of-water which Patten seeks to divert is the same as that from which water emerges upon the surface of the plaintiff’s land. There was also some conflict as to whether the water flowing.over the surface of the plaintiff’s land was. in point of fact used for/domestic purposes, as claimed by him. Unless it was the same stream of water, Patten had the undoubted right to the use of. the water emerging at the point on Mrs. Powell’s land where he proposed to connect his pipe line, and could, with her consent, divert it from its natural course, so far as the plaintiff was concerned. On the other hand, if one and the same stream flowed beneath' the surface of both the Powell tract and that owned by the plaintiff, and its course was well defined and could be traced with certainty, then Patten would have no more right to divert it from the plaintiff’s land than he would if the stream flowed continuously upon the surface. In the latter instance, if the water was the only unfailing supply which [757] could be used by the plaintiff or his tenants for domestic purposes, the damages caused by its unlawful diversion would be -irreparable, because incapable of ascertainment and exact computation, and the restraining order should not have been dissolved upon the giving of a bond. Woodall v. Cartersville Mining Go., 104 Ga. 156. Before the judge would have been authorized to grant even a- conditional injunction, he would necessarily have had to -reach the conclusion from the evidence that it was the same stream, though running partly underground,- which furnished a common supply of water to both the plaintiff and the defendant, and that the damages resulting from a diversion of the water would prove irreparable. The mere fact that Patten was a non-resident would not entitle the plaintiff to equitable interference. Morgan v. Baxter, 113 Ga. 144. It appeared both from the pleadings and the evidence that Patten had sufficient property located in Walker county to meet any recovery of damages which might be obtained against him; and we are bound to assume that the judge would not have undertaken to afford the plaintiff relief upon the ground of the non-residence of Patten, unless it was further made to appear that he had in this State no property which could be subjected to the satisfaction of a judgment against him. Since the evidence warranted a finding in favor of the plaintiff upon the issue which was really the only point the judge was called on to determine, we are not prepared to hold that he erred in not revoking ‘unconditionally the restraining order; but as the giving of a bond will afford the plaintiff no substantial protection, in the event he sustains damages which are incapable of computation, we are of the opinion that the judge should, if-he thought the granting of an injunction was proper; have granted it unconditionally. Judgment on main hill of exceptions reversed; on cross-hill af>• firmed. All the Justices concur.