City of Elberton v. Hobbs , 1905 Ga. LEXIS 60 ( 1905 )

Eish, P. J.

1. A municipality which buys a piece of land, on a non-navigable-stream several miles distant from its corporate limits, does not thereby become entitled as riparian owner to take from the stream a supply of water for the inhabitants of the city. Stein v. Burden, 24 Ala. 130 ; City of Emporia v. Soden, 25 Kan. 588, 606 ; Sparks Mfg. Co. v. Newton, 57 N. J. Eq. 367, s. c. 60 N. J. Eq. 399; 1 Earnham on Waters and Water Rights, § 137.

2. The right of the owner of land through which a non-navigable stream flows to have its waters come to his land in the natural and usual flow is. inseparably annexed to the soil and is parcel of the land itself, and comes within the protection of the constitutional provision which forbids the taking-of private property for public purposes, without just and adequate compensation being first paid. Persons v. Hill, 33 Ga. Supp. 141; Hough v. Doylestown, 4 Brewst. 333.

3. Equity will enjoin a municipal corporation from taking a water supply from a stream in violation of the rights of a riparian owner, though he may not at once be seriously injured thereby. Persons v. Hill, supra; Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 118 Ga. 255 ; Burden v. Stein, 27 Ala. 104; Higgins v. Flemington Water Co., 36 N. J. Eq. 538; Pine v. New York, 103 Fed. 337; 1 Farnham on Waters, 616.

4. Applying the principles above announced to the facts of the present case* the court did not err in granting an interlocutory injunction.

Judgment affirmed.

All the Justices concur.

The injunction was granted, and the defendant excepted.

J. N. Worley, for plaintiff in error. Dean & Hobbs, contra.