O.C.G.A. § 44-8-9 (2019)
Construction of levees and ditches; diversion of watercourses
All persons owning lands on any watercourses are authorized to ditch and embank their lands in order to protect the lands from freshets and overflows in the watercourses, provided that the ditching and embanking does not divert the watercourse from its ordinary channel; but nothing in this Code section shall be so construed as to prevent the owners of lands from diverting nonnavigable watercourses through their own lands.
History
Laws 1793, Cobb’s 1851 Digest, p. 26; Ga. L. 1855-56, p. 12, §§ 1, 2; Code 1863, § 2211; Code 1868, § 2206; Code 1873,
§ 2232; Code 1882, § 2232; Civil Code 1895, § 3062; Civil Code 1910, § 3638; Code 1933, § 85-1310.
Annotations
JUDICIAL DECISIONS Section subordinate to United States Constitution regarding commerce. - O.C.G.A. § 44-8-9 was passed after the adoption by the state of the Constitution of the United States, and is of course subordinate to the provision in the latter instrument relating to the control of commerce, and as a consequence, of the navigable waters by congress. Mills v.
United States, 46 F. 738, 1891 U.S. Dist. LEXIS 78 (D. Ga. 1891). Legislature cannot allow harmful ditching or diversion of water. - The construction long ago and repeatedly put by the Georgia Supreme Court on the last part of O.C.G.A. § 44-8-9, which says “nothing shall be so construed as to prevent the owners of land, etc.,” necessitates
the conclusion that this whole statute is not alternative but only declaratory of the common law. The legislature did not intend to give riparian owners the privilege of ditching or embanking their lands, or of diverting unnavigable watercourses, so as to injure neighboring proprietors without liability therefor. Persons v. Hill, 33 Ga. 141 (1864); Cheeves v. Danielly, 80 Ga. 114, 4 S.E. 902, 1887 Ga. LEXIS 337
(1887); Grant v. Kuglar, 81 Ga. 637, 8 S.E. 878, 1888 Ga. LEXIS 296 (1888); O’Connell v. East Tenn. V. & Ga. Ry., 87 Ga. 246, 13 S.E. 489, 1891 Ga. LEXIS 142 (1891). O.C.G.A. § 44-8-9 applies to municipal corporations. Collins v. Mayor of Macon, 69 Ga. 542, 1882 Ga. LEXIS 259 (1882).
RESEARCH REFERENCES Am. Jur. 2d. 50 Am. Jur. 2d, Levees and Flood Control, § 13 et seq. 78 Am. Jur. 2d, Waters, §§ 11, 26, 85, 220. C.J.S. 93 C.J.S., Waters, §§ 18 et seq., 43 et seq., 297 et seq. ALR. Right to hasten by improvement of street or highway the flow of surface water along natural drainways, 5 A.L.R. 1530; 36 A.L.R. 1463. 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. Liability of one who diverts stream into new channel for overflow, 12 A.L.R. 187. Right to compensation for damages to land left outside of levee, 20 A.L.R. 302.
Right of riparian owner to embank against flood or overflow water from stream, 22 A.L.R. 956; 53 A.L.R. 1180; 23 A.L.R.2d 750. Right to drain surface water into natural watercourse, 28 A.L.R. 1262. What constitutes natural drainway or watercourse for flow of surface water, 81 A.L.R. 262. Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656. Right of riparian owner to construct dikes, embankments, or other structures necessary to maintain or restore bank of stream or to prevent flood, 23 A.L.R.2d 750. Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.