GA Code § 44-8-4 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 8 - Water Rights|§ 44-8-4. Nonnavigable Streams - Construction of Dams, Canals, and Appurtent Works; Liability for Resultant Damages

 It shall be lawful for all corporations and individuals owning or controlling lands on both sides of any nonnavigable stream to construct and maintain a dam or dams, together with canals and appurtenances thereof, across the stream for the development of water power and for other purposes; provided, however, this Code section shall not be construed to release individuals or corporations constructing such dam or dams and appurtenant works from liability to private property owners for damages resulting from the construction and operation thereof either by overflow or otherwise.   (Ga. L. 1908, p. 78, § 1; Civil Code 1910, § 3634; Code 1933, § 85-1306.)   Cross references.   - Inspection, permitting, etc., of dams and other artificial barriers, § 12-5-370 et seq.   Law reviews.   - For note, "Regulation of Artificial Lakes and Recreational Subdivisions in Georgia," recommending methods for future regulation, see 8 Ga. St. B.J. 580 (1972).   JUDICIAL DECISIONS   Obstruction of nonnavigable stream is trespass.    - The obstruction of a nonnavigable stream so as to impede its course or cause it to overflow or injure the land of another is a trespass upon property. Groover v. Hightower, 59 Ga. App. 491, 1 S.E.2d 446 (1939).   Railroad must clean drainage ditch to prevent backup on neighbor.    - Where a railroad company constructs a fill or embankment which obstructs the natural drainage and flow of water from adjacent land belonging to another, and the railroad constructs a ditch or drain to carry off the water and prevent backup, the railroad owes a duty to the landowner of the land not to permit the ditch to fill up and become obstructed so as to turn the water back upon the adjacent land, and where the ditch has become so obstructed, the railroad has a duty to clean out the ditch so that it can carry off the water, and railroad must not pond the water and back it up upon the adjacent land. Southern Ry. v. Thacker, 50 Ga. App. 706, 179 S.E. 225 (1935).   Section does not permit dam injurious to health.    - O.C.G.A. § 44-8-4 deals generally with the right of an owner of land on both sides of a nonnavigable stream to construct and maintain a dam or dams across such stream "for the development of water-power and other purposes." It is not confined to companies or persons furnishing heat, light, or power to the public. It was hardly intended to declare broadly that any owner of land might build a dam and be free from all damages resulting therefrom, if it created a nuisance injurious to health. Central Ga. Power Co. v. Nolen, 143 Ga. 776, 85 S.E. 945 (1915).   Nuisance action justified for damage from dangerous dam.    - The right of a company to build a dam does not include a right to build or maintain it in such negligent or improper manner as to cause a nuisance injurious to the health of the adjacent community. For damages arising from such things, an action will lie. Central Ga. Power Co. v. Nolen, 143 Ga. 776, 85 S.E. 945 (1915).   Action for damages.    - If the erection of a dam for a grist mill should create a continuing nuisance, it may be abated or damages to those whose property may be damaged are recoverable under the terms of O.C.G.A. § 44-8-4. Gray v. Chason, 158 Ga. 313, 123 S.E. 290 (1924).   Judge may refuse injunction until jury trial.    - It is within the discretion of a judge to refuse an injunction against erecting a dam which might cause injury to the health of a community, until all the issues of fact could be passed on by a jury. Gray v. Chason, 158 Ga. 313, 123 S.E. 290 (1924).   Lawful hydroelectric dam not nuisance.    - Where a dam is lawfully and properly constructed and maintained by a public utility company for the production of electricity, the defendant cannot be held liable for creating or maintaining an abatable nuisance. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520 (1933).    Cited in Smith v. Dallas Util. Co., 27 Ga. App. 22, 107 S.E. 381, cert. denied, 27 Ga. App. 836 (1921).   RESEARCH REFERENCES   Am. Jur. 2d.   - 78 Am. Jur. 2d, Waters, §§ 18-22, 26, 27, 29, 30, 41, 79, 200-205, 211-220.   C.J.S.   - 65 C.J.S., Navigable Waters, §§ 23 et seq., 55 et seq., 64. 93 C.J.S., Waters, §§ 11, 18 et seq., 38 et seq., 146, 311 et seq.   ALR.    - Power of Legislature to relieve one authorized to construct a dam from liability for damages to adjoining property, 6 A.L.R. 1326.    Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053; 107 A.L.R. 1347.   Applicability of rule of strict or absolute liability to overflow or escape of water caused by dam failure, 51 A.L.R.3d 965.   Res ipsa loquitur as applicable in actions for damage to property by the overflow or escape of water, 91 A.L.R.3d 186.   Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.