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Official Opinion 94-4

Official Opinion 94-4

January 18, 1994
To: 

Executive Director
State Properties Commission

Re: 

Resolution Act 62 is permissive and does not mandate that the State Properties Commission provide an easement across Black Rock Mountain State Park to the Sylvan Lake Falls Homeowners' Association and, if the easement is granted, the determination as to whether the lower riparian owners are affected is a fact question.

You have requested an opinion as to whether or not the State Properties Commission ("SPC") is required by Resolution Act 62 (1992) to grant an easement for Sylvan Lake Falls Homeowners' Association, Inc. ("Association") to draw water from a state owned spring in Black Rock Mountain State Park ("Park"). Further, you have asked whether if the easement is granted riparian rights of landowners downstream will be affected.

Sylvan Lake Falls Subdivision consists of private permanent and secondary homes. Road maintenance and water are provided to the subdivision by the Association. The Association currently draws water from a spring in the Park and has requested the state to grant the Association an easement to install a water

intake line to a second spring located in the Park. The additional water supply is necessary for the Association to meet the current demand of the subdivision. The Association was granted a public water source permit by the state to operate two springs as the source of water supply. (State of Georgia, Department of Natural Resources, Environmental Protection Division, Permit No. CG2410035, Effective Date: December 28, 1987.)

During the 1992 legislative session, the General Assembly adopted Resolution Act 62 which provides that the

State Properties Commission may grant to Sylvan Lake Falls Homeowners' Association, Inc., or its successors and assigns, a nonexclusive easement for the construction, operation, and maintenance of a water intake line in, on, over, under, upon, across, or through the easement area for the purpose of constructing, erecting, operating, maintaining, repairing, and replacing a water intake line, together with the right of ingress and egress over adjacent land of the State of Georgia as may be reasonably necessary to accomplish aforesaid purposes.

1992 Ga. Laws 1587, 1588 (emphasis added).

Generally, "[i]n all interpretations of statutes, the ordinary signification shall be applied to all words." O.C.G.A. § 1-3-1(b). An exception to this rule exists with the word "may." "The true rule for the construction of the word may in a Statute is, that when such Statute concerns the public interest, or affects the rights of third persons, then, the word may shall be construed to mean must or shall." Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1849); see also Great Northern v. Tax Assessors, 244 Ga. 624, 627 (1979); O.C.G.A. § 1-3-3(10).

However, it is my official opinion that Resolution Act 62 permits, but does not require, that SPC grant an easement to the Association.

Statutes must be construed so as to give full force and effect to all provisions and to reconcile any apparent conflicts. Head v. H.J. Russell Constr. Co., 152 Ga. App. 864 (1980). Further, the intention of the General Assembly can be derived from the caption of the act as well as from the body of the act itself. Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130 (1921).

The first sentence of the preamble to the resolution states "Authorizing the grant of a nonexclusive easement." 1992 Ga. Laws 1587 (emphasis added). Further, Section 8 of the Resolution Act provides that the easement shall contain "such other reasonable terms, conditions, and covenants as the State Properties Commission shall deem in the best interest of the State of Georgia." Id. at 1589. When the "State Properties Commission may grant an easement" language is read in pari materia with these two provisions it appears that the General Assembly intended to provide the SPC with discretion in the granting of the easement. Thus, it is my opinion that the Resolution Act is permissive and not mandatory.

In response to your question regarding the rights of lower riparian owners, as owner of the banks of the spring, the state is entitled to certain rights and privileges as a riparian owner. Under Georgia law, "'[e]ach riparian proprietor is entitled to a reasonable use of the water, for domestic, agricultural and manufacturing purposes; provided, that in making such use, he does not work a material injury to the other proprietors.'" Pyle v. Gilbert, 245 Ga. 403, 405 (1980) (quoting Hendrick v. Cook, 4 Ga. 241 (1848)); see also O.C.G.A. § 44-8-1. Thus, the rights of the lower riparian owner to receive the natural flow of water is subject to the right of the upper riparian to its reasonable use. Pyle at 408. Further, the right to the reasonable use of water in a nonnavigable watercourse on nonriparian land can be acquired by grant from a riparian owner. Id. at 411.

The determination as to whether a riparian use of the water is reasonable or unreasonable is a question of fact that must be decided on a case by case basis. Pyle, 245 Ga. at 409; see also Price v. High Shoals Mfg. Co., 132 Ga. 246, 249 (1908); O.C.G.A. § 44-8-1. Thus, whether or not the Association's use of this easement will cause a legally recognizable diversion from the stream into which the spring flows is beyond the scope of this opinion. Such a determination would have to be made through an engineering analysis and ultimately by the courts.

However, while the issuance of and compliance with a permit is not absolute protection against a suit from a lower riparian owner, it is an indication that the Association's use of the water will not cause a legally recognized diversion. See generally Galaxy Carpet Mills, Inc. v. Massengill, 255 Ga. 360 (1986); Bell Industries, Inc. v. Jones, 220 Ga. 684 (1965).

Thus, it is my official opinion that Resolution Act 62 is permissive and does not mandate that the State Properties Commission provide an easement across Black Rock Mountain State Park to the Sylvan Lake Falls Homeowners' Association and, if the easement is granted, the determination as to whether the lower riparian owners are legally affected is a fact question.

Prepared by:

DENISE E. WHITING-PACK Staff Attorney