dissenting.
This riparian rights case revolves around the complaint of one riparian owner using a “woods pond or swamp” for recreational purposes that another owner was unreasonably using water from the same pond for agricultural and irrigation purposes. To further his enjoyment of the pond, each owner had dug a pit to retain water. In balancing the rights of these riparian owners, the trial court ruled succinctly as follows: “[HarperJ’s use of his water on his property is reasonable. [Tunison] is able to dig even more or deeper pits on his side of the property line if he thinks his water level too low, just as [Harper] can.” The trial court was correct in its determination that irrigation is a reasonable use, and its ruling shows that the trial court properly treated the uses equally in reaching its decision to deny Tunison’s petition for a permanent restraining order. There is nothing incorrect or improper in the trial court’s order, and neither the facts of this case nor the trial court’s order rely on any case law regarding the domestic use of water. For these reasons, I believe that the majority errs by vacating the trial court’s order based on law regarding the use of water for domestic purposes. Accordingly, I must respectfully dissent.
I agree with the majority’s assessment that “the right to use water for strictly domestic purposes is the only use superior to other lawful uses of water and that these other lawful uses should be treated equally.” I disagree, however, that this observation requires us to vacate the trial court’s order in this case for several reasons. First, it is undisputed that the domestic use of water is not involved in this case, and, as such, law relevant to such a use is not a basis for vacating the trial court’s order. As such, the relevant legal landscape as it relates to agricultural and recreational uses remains unchanged by this Court’s clarification. Second, contrary to the majority’s characterization, Pyle v. Gilbert, 245 Ga. 403 (265 SE2d 584) (1980), makes no statements, express or implied, regarding the weight to be given to agricultural or domestic uses of water. In Pyle, another case in which domestic water use was not in issue, this Court addressed an argument that an upper riparian owner would never be authorized to divert water for irrigation from a lower riparian owner because *690such an act was a legislatively prohibited diversion of water. We framed the question as “whether the use of water for irrigation is a diversion under our laws and thus is prohibited.” Id. at 407 (1). We then held that
Decided March 15, 2010. Terry R. Barnick, for appellants. Cowart & Perry, Zachary R. Cowart, Daniel L. Studstill, for appellee.irrigation is not a per se diversion of water prohibited by law. In sum, we find that the right of the lower riparian to receive the natural flow of the water without diversion or diminution is subject to the right of the upper riparian to its reasonable use, for agricultural purposes, including irrigation.
(Citation omitted.) Id. at 408 (1). In short, Pyle, a case in which the use of water for irrigation was pitted against the use of water for a gristmill, provides no reason to vacate the trial court’s order in the present action. Finally, the trial court in this case correctly weighed the water uses at issue and reached an appropriate holding. The trial court was lawfully compelled by notions that Harper’s use was reasonable and Tunison could dig farther to protect his use. This lawful analysis has not been criticized by this Court in the least, and the majority does not even suggest that the trial court must alter its analysis in any way. Vacating this correct order would do nothing more than delay the resolution of this case and cause a direct disservice to the parties involved.
Therefore, for all of the reasons set forth above, the trial court’s order should be affirmed.
I am authorized to state that Presiding Justice Carley and Justice Hines join in this dissent.