Cleveland v. Adams , 40 Ga. App. 690 ( 1929 )

Jenkins, P. J.

1. “If the owner of land establishes thereon a system of pipes or conduits through which water is conveyed from a source of supply over one portion of his premises to another portion for the benefit of the latter, and then alienates the portion to which the water is thus conveyed, the right to receive water through such pipes or conduits over the land not conveyed will pass to the grantee by general words.” Glore v. Haggard, 38 Ga. App. 278 (143 S. E. 780).

2. In the instant case the petition alleged that the plaintiffs were purchasers from the defendants of a house and lot which was supplied with water by a pipe running from a water-main, over the continguous property of the defendants, to the premises purchased by the plaintiffs, which pipe had been installed by the defendants when they owned both' properties, and before the executor of a deed to the plaintiffs containing a general conveyance of the appurtenances of the estate, and that the defendants “wilfully, unlawfully, and intentionally dug down on lot number 1, their own lot, and cut off and stopped up the said underground waterline to petitioners’ house.” Under the ruling made in Glore v. Haggard, supra, such action on the part of the defendants constituted a violation of the rights of the plaintiffs, under their contract of purchase, and gave rise to a cause of action, and it was error for the court to sustain a general demurrer and dismiss the petition. No question is made by the petition with reference to any right or claim of plaintiffs to have water furnished them through the meter of the defendants and at their expense. In point of fact, it does not appear, from the allegations of the petition, that the water being supplied to the plaintiffs’ premises' flowed through the meter on the defendant’s premises and was being- paid for by them. Counsel argue in their briefs, however, that such must be the natural conclusion, under the facts and circumstances set forth by the record. However this might be, the purchase by the plaintiffs from defendants of the premises as supplied with water and equipped with the necessary fixtures and conveniences for its use gave them the right to the use of that which they had bought, and this use the defendants who sold the property could not take away, even though they might be subjected to cost and expense on their own part to re-equip their own service, or that of their vendees, so as to avoid the trouble and inconvenience of both establishments being supplied with water through one meter.

3. Since it appears from the bill of exceptions that the court based its ruling on the general demurrer and did not pass upon the questions raised by the special demurrer, it is not necessary to deal with the special demurrer, nor is it necessary to pass upon the motion of the plaintiffs to reopen the case and permit the filing oE an amendment.

Judgment reversed.

Stephens and Bell, JJ., concur.