Title: Some Legal Aspects of Water Use In North Carolina
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003058/00001
 Material Information
Title: Some Legal Aspects of Water Use In North Carolina
Physical Description: Book
Language: English
Publisher: The Ronald Press Company
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Some Legal Aspects of Water Use In North Carolina
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003058
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



SOME LEGAL ASPE(
SIN NORTH CAROL
by Harold H. Ellis*






Laws relating to wal
1) the State's statutes,
2) Federal statutes, coi
tain rules and regulate
4) local laws, such as c
Compacts or agreement
Primary attention ir
and reported Supreme 4
S to legal rights of indivi
ownership, use, dispos;
sources in the State. E
S deals with the general i
Supreme Court, in the .
rights, controlling static
The State legislation
of North Carolina (here
S special and local laws 1
respect to particular 1c
ces. However, the Stati
S fective in 1917, prohibi

Agricultural Econor
Research Service, U.S.D..
acknowledges the assistar
Carolina water laws that 1
tucky, for The Conservati
Other discussions of v
"State and Federal Water
and "Water Resources of
apartment of Conservation
Inlets, and Coastal Watern
Claude L. Love, Assistant
Resources Committee, Ja
dated Nov. 20, 1953; Alsp,
247 (Feb. 1956); and Marc
Movement for New Water
S L.R. 797 (April, 1955).


OF WATER USE


TIfE APPLICABLE LAWS


resources in North Carolina are embodied in
stitution, and reported Supreme Court decisions,
tutional provisions, and court decisions, 3) cer-
Spromulgated by State and Federal agencies,
ity or municipal ordinances, 5) certain interstate
and 6) local court decisions not appealed from.
is discussion will be given to State legislation
rt decisions. The laws discussed herein relate
Is, organizations, and agencies relative to the
control, or regulation of the various water re-
pt where otherwise indicated, the discussion
s of law that have been adhered to by the State's
ence of contractual agreements, prescriptive
i, or other complicating factors.
w in force is embodied in the General Statutes
after designated N.C.G.S.) except for certain
have been enacted by the State Legislature with
cities, *atercourses, persons, or circumstan-
Constitution, Art. I. sec. 29, which became ef-
he Legislature's enactment of local, private, or

, Farm Economics Research Division, Agricultural
and member of the Illinois Bar. The writer gratefully
obtained from a preliminary manuscript on North
prepared by Mr. James E. Thompson, Ewing, Ken-
Foundation.
aus aspects of North Carolina water laws include
vs and Considerations Affecting Future Legislation,"
th Carolina," published by the State's Board and De-
Development, and Committee on Water Resources,
3, Raleigh, 1956 and 1955 respectively; paper by
torney General, furnished to the Governor's Water
8, 1954; opinion of Harry McMullen, Attorney General,
I, J. A., "Real Property-Riparian Rights," 34 N.C.L.R.
,R. H., Freeman, R. M., and Heath, M. S. Jr., "The
hts Laws in the Tennessee Valley States," 23 Tenn.






190 LAW OF WATER ALLOCATION

special acts or resolutions relating, among other things, to nonnavigable
streams, to ferries or bridges, or to health, sanitation, and the abatement
of nuisances. The writer has made no detailed analysis of the number or
nature of special and local laws that may affect water rights, although
some examples are included.
Supreme Court decisions have developed from the English common law,
but there have been a number of modifications and some outright repudi-
ations of old common law principles.'
The discussion that follows deals with several of the features of the ap-
plicable water laws in North Carolina but it is not exhaustive in these re-
spects.


THE STATE'S POLICIES REGARDING WATER RESOURCES

A rather broad statement of policy was enacted by the Legislature in
1955 regarding the utilization of water resources in North Carolina. It de-
clares that:
The general welfare requires that the water resources of the State be put to
beneficial use to the fullest extent of which they are capable, and that the waste
or unreasonable use or unreasonable method of use of water be prevented, and
that the conservation of such water be exercised with the view to the reason-
able and beneficial use thereof in the public interest. 2
The immediate purposes of the act in which this appears, however,
were limited primarily to (1) the creation of a Board of Water Commis-
sioners to study the water resource situation and problems and make rec-
ommendations, and (2) the creation of certain powers to act in emergency
situations with respect to public water supplies. 3 The effect of this state-
ment of policy upon other (existing and subsequent) legislation, and upon
subsequent court decisions, is problematical. But it is doubtful whether
it will have any very substantial effect on the State's water law until it is
implemented by additional legislation for this purpose.
Statements of policy also have been enacted in regard to certain seg-
ments of the overall water resource problems of the State, such as

1. N.C.G.S. sec. 4-1 provides that: "All such parts of the common law as were
heretofore in force and use within this State, or so much of the common law as is
not destructive of, or repugnant to, or inconsistent with, the freedom and independ-
ence of this State and the form of government therein established, and which has
not been otherwise provided for in whole or in part, not abrogated, repealed, or
become obsolete, are hereby declared to be in full force within this State." This
legislation has been construed in, among other cases, Rouse v. City of Kinston,
188 N.C. 1, 123 S.E. 482 (1924). See Ground Waters, post.
2. N.C.G.S. sec. 143-317.
3. See Emergency Water Supply, post.







i







NORTH CAROLINA WATER LAW


S pollution control and prot
life,-all of which have be
lation. For example, legi
servation," provides that:
It is hereby declared to be
the State shall be prudently
achieve this purpose, the g
for the quality of said water
water resources requires i
authorized to establish mel
for health, recreation, fish
Somewhat more detail
be followed by the State S
cations and standards of i
among other things, consiq
in attempting to improve
dominant economic inter(
Also, in a 1955 Act re]
vides that no such Author
approval of the State Boa;
ments appear in the crite
nation to be used. (See C
Such criteria include whe
(1) is consistent with the
sources, including its wa
promote and increase the
may also consider the fe,
and the probable detrime
the use of such alternative
be condemned.
L 1951 legislation requil
of Conservation and Deve
"streams, rivers, creeks
volume or flow, speaks a
post.)
Recent legislation alsi
real estate taxation so
resources and the abaten
Pollution, post.)
These and other legisl

4. N.C.G.S. sec. 143-21
5. N.C. Session Laws, 1
294, 105-296, 105-297, and
pollution.


action of public water supplies and fish and wild-
en accompanied by certain implementing legis-
slation relating to "Stream Sanitation and Con-

the policy of the State that the water resources of
utilized in the best interest of the people. To
governmentt of the State shall assume responsibility
r resources. The maintenance of the quality of the
he creation of an agency charged with this duty, and
hods designed to protect the water requirements
ing, agriculture, industry, and animal life.4
id policy considerations appear in the criteria to
stream Sanitation Committee in applying classifi-
vater quality to particular waters. These include,
eration of the relative economic values involved
the condition of particular waters and of any
st or development in the area.
ating to Water and Sewer Authorities, which pro-
ity may employ condemnation powers without the
.d of Water Commissioners, certain policy state-
ria for determining whether to permit condem-
mdemnation and Related Proceedings, post.)
other the proposed use of water by such Authority
maximum beneficial use of the State's water re-
ershed-wide and statewide effect, and (2) will
storage and conservation of water. The Board
.sibility and cost of alternative sources of supply
it and potential beneficial use of water through
e sources, compared with the source sought to

'ing permits to be obtained from the Department
lopment before taking irrigation water from
or lakes" so as to substantially reduce their
S"safety and public interest." (See Irrigation,

declares the State's policy to use its system of
s to "encourage the conservation of natural
lent and prevention of water pollution." s (See

ative declarations of policy or policy consider-

L.
955, Ch. 1100, amending N.C.G.S. secs. 105-147, 105-
105-122. The implementing legislation relates only to






LAW OF WATER ALLOCATION


nations are described herein in connection with the particular subject mat-
ters to which they relate.
Considerations of public interest also have been included in certain
special and local laws, in regulations promulgated by certain agencies,
and in various decisions of the State Supreme Court, most frequently in
instances in which the Court has interpreted the meaning and effect of par-
ticular legislation. This has been particularly noticeable in the handling
of cases relating to such things as milldams and drainage. The Supreme
Court (hereinafter called "the Court") has noted that early milldam and
drainage statutes were born of necessity, in order to develop the flat east-
ern lowlands of the State. 6


TYPES OF WATER SOURCES

Different legal principles have been applied to different types of natural
water sources, notwithstanding that they may be all more or less interre-
lated. These include such broad categories as surface watercourses, un-
derground streams, percolating ground waters, and diffused surface waters.
There are also various types of artificial watercourses and other artifi-
cially developed waters, such as waters in constructed ponds or in reser-
voirs or lakes created by damming a natural watercourse.
The legal definition of, and distinctions between, the different water
sources, and the legal principles, statutory laws, and regulations that
have been applied to each type of water source, are discussed below.


NATURAL WATERCOURSES

Definition

In an early case, a natural watercourse was defined by the Court as
follows: "A watercourse consists of bed, banks, and water...A natural
watercourse has such characteristics while in a state of nature and with-
out artificial construction. Natural watercourses are such as rivers,
creeks, and branches."7 This definition was repeated by the Court in a
later case. 8 Both cases dealt with rights to use natural or artificial wa-
tercourses for the drainage of lands. (See Drainage, post.)

6. Mizell v. McGowan, 120 N.C. 134, 26 S.E. 783 (1897); later decisions in
same case in 125 N.C. 439, 34 S.E. 538 (1899); 129 N.C. 93, 39 S.E. 729 (1901).
See Drainage, and Condemnation and Related Proceedings, post.
7. Porter v. Armstrong, 129 N.C. 101, 39 S.E. 799, 801 (1901); later decisions
in 132 N.C. 66, 43 S.E. 542 (1903); 134 N.C. 447, 46 S.E. 997 (1904); 139 N.C. 179,
51 S.E. 926 (1905).
8. Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E. 2d. 434, 436 (1939)!







NORTH CAROLINA WATER LAW


In another drainage ca e, the Court said that "a 'water course' is well
defined in Angell on Water Courses (7th Ed.) sec. 4." 9 This states that:


A watercourse consists of
continually; and there are
is, however, a distinction t
of water, which at certain
water, which, in times of f
the hills and inundate the c
brook, it must be made to
reaction, and by a regular a
4 flow continually, as stated
a well-defined and substani
Mr. Angell added, in s
or ravine only in times ol
of law, a watercourse."'
In the latter case, a s,
ning through it (it was nol
was said to constitute a q
Other cases have invol
natural depression to fori
as "surface water" in one
over, because no defined
post.)
It has not been clearly
flood waters or other wal
sidered a part of it. In o01
drain off all "surface wal

9. Mizell v. McGowan, 1
in 125 N.C. 439, 34 S.E. 538
case dealt with the drainage
watercourse was material, i
to drainage into a natural wi
10. He also stated, in se
S from a definite underground
"stream begins at its source
lands adjoining upon it have
source to its termination."
11. As such, the Court p
water into it without liability
Co., discussed in note 408.
called for a named swamp a
swamp, not of a watercours
however, that the swamp co
12. Rice v. Norfolk Rail
Barcliff v. Norfolk So. R. C


bed, banks and water;: yet the water need not flow
nany watercourses which are sometimes dry. There
o be taken in law between a regular flowing stream
season is dried up, and those occasional bursts of
-eshet, or melting of ice and snow, descend from
Duntry. 'To maintain the right to a watercourse or
Appear that the water usually flows in a certain di-
iannel, with banks or sides. It need not be shown to
above, and it may at times be dry; but it must have
ial existence.
?c. 4(4), that: "Water flowing through a hollow
rain, or melting snow, is not, in contemplation

ramp that had a well-defined watercourse run-
clear whether this was as wide as the swamp)
natural watercourse.1l
ved rights to drain water that had collected in a
n a pond. The Court appears to have treated it
case, even though the pond sometimes spilled
watercourse led from it.12 (See Surface Waters,

determined whether or to what extent underflow,
ers closely related to a watercourse may be con-
le early case, the defendant claimed the right to
er" from certain lands for agricultural purposes.

10 N.C. 134, 26 S.E. 7$3, 784 (1897); later decisions
(1899); 129 N.C. 93, 39 S.E. 729 (1901). While this
of, rather than rights to use, water, the definition of a
s the Court held that a different rule would be applied
itercourse than otherwise. See Drainage, post.
3. 4(b), that except where a natural watercourse arises
stream (see Definite tUnderground Streams, post) a
,, when it comes from the surface; and the owners of
a natural right to the use of the water of it from its

Brmitted the acceleration of the drainage of surface
r. See Drainage, post.! See also Williamson v. Canal
In Brooks v. Britt 15 N.C. 481 (1834) where a deed
a a boundary, this was held to mean the edge of such
Running through it. This didn't necessarily mean,
ild not be considered a part of the watercourse.
road Co., 130 N.C. 375, 41 S.E. 1031 (1902). See also
)., 168 N.C. 268, 84 S.E. 290 (1915).


I







LAW OF WATER ALLOCATION


He said that this term included rain waters and all waters that overflow
the banks of a watercourse or which seep through its banks, even though
some of the water that otherwise would flow to a lower landowner's mill
might thereby be drawn off. However, no clear determination of this ques-
tion was reached in the case.13
In certain other cases, the Court has implied that rights to the use of
a watercourse may include certain rights in connection with floodwaters,
which naturally overflow its banks, but these cases generally have dealt
with the negative right not to have such waters polluted, rather than any
positive right to make use of such waters and prevent their returning to
the watercourse as they might otherwise do naturally. Some other cases
have dealt with rights and duties with respect to flood flows that have not
overflowed the banks of a watercourse. These cases indicate that such
waters are to be considered a part of the watercourse, although somewhat
different legal principles may apply to their use or disposal than to wa-
ters that ordinarily flow in the watercourse.14
Natural watercourses may sometimes carry a mixture of natural water
flows and waters that have been developed artificially, as when a dam
placed therein has created a pond or lake. Rights and duties connected
with artificially developed waters in natural watercourses are discussed
later.S1

Classification

The Court often has classified natural watercourses into different cate-
gories for the purpose of determining rights of use or ownership of the
bed, or for other purposes. Over the years the Court has adhered to va-
rious classifications of navigable watercourses, the significance of which
is discussed under Navigable Waters, post. The following discussion deals
with the legal principles that have been applied to nonnavigable water-
courses.

General Nature of Riparian Rights

The Court has consistently applied some version of the riparian doc-
trine in deciding or considering questions concerning the use of waters in

13. Williamson v. Lock's Creek Canal Co., 78 N.C. 156, 159-160 (1878); other
decisions in same case in 76 N.C. 478 (1877) and 84 N.C. 629 (1881). See note 408.
14. See Flood Waters, and Detention or Obstruction of Water with Dams, etc.,
post.
15. Principally under Detention and Obstruction of Water with Dams, etc., and
Artificial and Developed Watercourses, post. The interrelationships between
natural watercourses and other natural sources of water are discussed under In-
terrelationships among Natural Water Sources, post.







NORTH CAROLINA WATER LAW


natural watercourses.16 1
lands that are crossed b3
S ian" owners or lands) hai
the water that accompany
would appear also to inui
subject to the terms of hi
Riparian rights have t
i ed in the ownership of ri
pass along with a transfer
said that no riparian own
particular part of the flo,
through or along which a
vent others from making,
With respect to the qu
the rule has been invoke
S run upstream-that is, th
against a lower owner, ai
diminution of the flow.20
North Carolina, although

16. One of the earliest s
N.C. 50 (1836).
17. See Young v. City of
18. Smith v. Town of Mo
v. Wheeler, 19 N.C. 50, 55 (
N.C. 814, 195 S.E. 43, 45 (1!
Rights, post.)
19. Walton v. Mills, 86 1
N.C. 801, 123 S.E. 88, 89 (1)
actual ownership of water th
But even in such cases certi
may be a duty to return som
needed for particular purpoi
In one case, the Court nc
not the subject of riparian o
542, 69 S.E. 623, 524 (1910).
ible nature of the flowing wa
1 Ry. Co. v. Hendersonville, 1
Although riparian owners
S waters flowing in a watercol
preferential rights to use pa
poses, such as for wharfs, N
Such preferential rights hav
Detention or Obstruction of
S 20. See 93 C.J.S., Watei
21. The Court in Willial
indicated that every riparia


'his doctrine provides, in general, that owners of
or adjoin a natural watercourse (called "ripar-
'e certain rights (called "riparian" rights) to use
their ownership of such lands. Such rights
e to the benefit of one who rents riparian lands,
s rental contract.17
een said to be inherently annexed to and embod-
parian lands, and, with certain exceptions, to
r of the ownership of such lands.'8 The Court has
Br (nor, it would seem, all collectively) owns any
ving water.19 Nevertheless, each owner of land
watercourse runs has a right to make, or to pre-
certain uses of the water, as is discussed later.
sstion of diminishing the flow of a watercourse,
in a number of States that riparian rights only
At an upper owner can have no cause of action
She would not be affected by any downstream
This rule very probably would be followed in
it has not been definitely decided.21 Upper

;atements of this doctrine was in Pugh v. Wheeler, 19

Asheville, 241 N.C. 618, 86 S.E. 2d. 408, 414-415 (1955).
.gantown, 187 N.C. 801, 123 S.E. 88, 89 (1924); Pugh
L836); Dunlap v. Carolina Power and Light Co., 212
38). (See Transfer and Assignability of Riparian

.C. 280, 282 (1882); Smith v. Town of Morgantown, 187
'24). Riparian owners might sometimes acquire the
at has been legally removed from the watercourse.
in restrictions may be imposed. For example, there
e part of the water used, or waters in excess of that
es, to the watercourse.
ted that flowing water in a stream "is indivisible and
Nnership." Harris v. Norfolk and W. Ry. Co., 153 N.C.
Another case in which the Court indicated the indivis-
ter or of the rights to its use is Blue Ridge Interurban
69 N.C. 471, 88 S.E. 245, 246 (1916).
Smay not acquire the ownership of any part of the
irse, they have sometimes been held to have certain
rticular parts of the watercourse for particular pur-
ing dams, and fishing purposes. In some instances,
Been created by legislation. (See Navigable Waters,
Water with Dams, etc., and Fishing, post.)
s, sec. 63.
nson v. Lock's Creek Canal Co., 78 N.C. 156, 159 (1878)
n owner may use a watercourse for various purposes







LAW OF WATER ALLOCATION


riparian owners nevertheless have been allowed to recover against certain
downstream uses of the watercourse, such as the backing up of the water
with a dam or the obstructing of the migration of fish upstream.22
The riparian rights of a riparian landowner may enable him to prevent
or limit the use of riparian owners upstream for long distances, and may
even enable a riparian owner along one stream to have a right of action
against certain uses of upper tributary streams.23 Of course, springs,
creeks, and surface waters, or other waters that naturally feed into the
watercourse along its route, might tend to reduce the likelihood of an up-
per owner's liability to some lower owner a considerable distance away
by tending to offset his diminution of the stream's flow or helping to purify
the waters he has polluted. The natural purification of the water as it
travels over a considerable distance has been alleged by way of defense
in lawsuits regarding pollution in North Carolina.24

General Development of the Riparian Doctrine

With respect to domestic or other so-called "natural uses," the Court
in some cases has suggested that a riparian' owner may use all the water
he reasonably needs for such purposes without incurring liability for any
damage to lower owners, although in other cases it has suggested that

"provided, he does not by his use of it, materially damage any other proprietor
above or below.* (Italics supplied.) But the case involved only the question of lia-
bility to a lower owner for diverting waters from the stream. In a later case in-
volving the same question, the Court said that riparian owners who use a stream
have no right to inflict substantial injury upon "those below them." Harris v. Nor-
folk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 624 (1910).
22. See Detention or Obstruction of Water with Dams, etc., and Fishing, post.
Similar questions regarding navigable waters are discussed under Navigable Waters,
post.
23. In Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729 (1901) (earlier decisions
in 120 N.C. 134, 26 S.E. 783 (1897); 125 N.C. 439, 34 S.E. 538 (1899)), the Court
concluded that it would be impracticable to limit the amount of water that could be
legally drained into a natural watercourse on one's own land to the natural capacity
of the watercourse, partly because the question of how far downstream the right to
impose such a limitation should extend would pre-"nt difficult problems. The
Court noted that if such a right extended all the way to the mouth of the stream,
and several persons along the stream thus drained water into it, it would be diffi-
cult to apportion the liability for the damages among them. (See Drainage, post.)
24. Frequently, however, the complainant has relied on pollution legislation
which provides that the pollution of a watercourse which furnishes a public water
supply may be enjoined by any person. The Court has ruled that in such cases the
complainant need not show that the water actually was polluted at the point of in-
take of the public water supply and has enjoined the pollution of a stream as far
as 75 miles upstream from such point. (See Pollution, post.)







NORTH CAROLINA WATER LAW


such uses of a watercour
other types of use.25
With respect to other
of the early, and even soi
parian rights appear to h
ral flow" riparian doctrii
tive use of a watercourse
*' riparian doctrine of "rea
Eastern States. For exar
riparian owner has an eq
or alteration." The Cour
courses (the case involve
moved from the stream a
some modification of this
moving power for mills a
S any considerable degree,
use of others." The Cour
S this, however.26
On the other hand, son
Court's description of th<
this case the Court said t
in its onward course so t
rule by which the rights
supplied). This rule was
so as to permit a reason

25. For a more detailed
uses, post.
26. Walton v. Mills, 86 IN
an injunction against such ui
by weighing the respective ii
ing of Interests, Equities, oi
27. Walton v. Mills, 86 I
been recognized in two earli
State v. Glen, 52 N.C. 321 (1
Power and Light Co., 212 N.
use" doctrine had been recoI
Sthe rule that every riparian
long as he does not divert ol
(at p. 54) that "it is reasonal
watercourse for purposes ol
of a judge in an old English i
man has the right to have th,
diminution or alteration." I
owner should so use the wat
the similar rights of other o


ie would be subject to the same general rules as

ises, sometimes called "artificial uses," some
ae recent, statements by the Court regarding ri-
wve adhered more closely to the so-called "natu-
ie (which generally permits little or no consump-
, other than, for domestic purposes) than to the
ionable use" that has developed in several other
iple, in an 1882 case the Court stated that each
lal right to the use of water "without diminution
Recognized that new consumptive uses of water-
d gold mining, where much water would be re-
nd perhaps little or none returned) might require
rule, noting that use of the water simply as a
nd mechanical purposes "does not destroy, or in
reduce the volume which still flows on for the
t expressly avoided making any decision about

le conception of "reasonable use" crept into the
Sriparian doctrine in this and other cases. In
hat: "The reasonable use of the water as it passes
iat no damage is done by withholding it, is the
if riparian owners are regulated."27 (Italics
modified somewhat in statements in other cases
ble use, consumptive or otherwise, of a water-

discussion of this, see Domestic or Other Natural

.C. 280, 282, 285 (1882). The Court refused to grant
e, partly because any damage was speculative and also
interests of the parties. (See Mining, post, and Balanc-
Conveniences, post.)
.C. 280, 282 (1882). The Court said that this rule had
ar cases,-Pugh v. Wheeler, 19 N.C. 50 (1836) and
359). The Court later said, in Dunlap v. Carolina
0. 814, 195 S.E. 43, 46 (1938) that the "reasonable
:nized in the Pugh case, apparently with reference to
>wner may make "a reasonable use of the waters, so
pollute it." The Court had stated in the Pugh case
dle" that riparian owners should be allowed to use a
profit, although it also cited (at p. 57) the statement
;ase, apparently with approval, to the effect that every
i advantage of the flow of water on his land, "without
State v. Glen the Court said (at p. 334) that a riparian
wr of a nonnavigable stream as not to interfere with
owners on the same stream, citing Pugh v. Wheeler.







198 LAW OF WATER ALLOCATION

course so long as other riparian owners were not "materially damaged," 28
or the watercourse was not "materially lowered." In the latter event, the
Court has added that there would be liability "to a lower proprietor who
suffers a substantial injury thereby," but that "where there has been no
appreciable, perceptible diminution of the volume of the stream by the up-
per proprietor, the lower has no cause of action."29
The Court applied this latter rule in a case in 1910 involving the pump-
ing of water from a stream for watering locomotives on riparian land. It
held that it was properly left up to the jury to decide whether there was a
material diminution of the flow. (The jury had decided that there wasn't.)
The Court said that the evidence was conflicting, but noted that a civil en-
gineer had testified that only about 1/50 of 1 per cent of the stream's flow
was taken for such purposes and that such a reduction was not "appreci-
able" and could not be detected by eyesight.30 The Court said that "the
size and character of the stream has much to do with the quantity of water
which may be withdrawn from it."
Other important modifications of the riparian doctrine were discussed
at length in the case of Dunlap v. Carolina Power and Light Co., decided
in 1938. This case involved the question of liability for damages to a lower
owner from the operation of a hydroelectric power dam. The Court at one
point said:
A riparian proprietor has a right to make all the use he can of the stream so
long as he does not pollute it or divert it from its natural channel and abstract
so much as to prevent other people from having equal enjoyment with himself,
or does not use the same in such an unreasonable manner as to materially
damage or destroy the rights of other riparian owners. The rights of riparian
owners in a running stream above and below are equal; each has a right to the
reasonable use and enjoyment of the water, and each has a right to the natural
flow of the stream subject to such disturbance and consequent inconvenience
and annoyance as may result to him from a reasonable use of the waters by
others. There may be a diminution in quantity or a retardation or acceleration
of the natural flow indispensable for the general valuable use of the water per-
fectly consistent with the existence of the common right and this may be done so
long as the retardation and acceleration is reasonably necessary in the lawful
and beneficial use of the stream. The diminution, retardation, or acceleration


28. Williamson v. Locks Creek Canal Co., 78 N.C. 156, 159 (1878), involving the
diminution of a stream's flow by diverting water through a canal for drainage pur-
poses; Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 624-625 (1910)
involving the withdrawal of stream waters to water locomotives.
29. Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 624-625 (1910).
30. Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 624-625 (1910).
The Court conceivably might have questioned whether the watering of locomotives
was a proper riparian use, but it did not do so. (See Definition of Riparian Land
and Use of Water on Nonriparian Lands, post.)







NOlrH CAROLINA WATER LAW


not positively and sensibi
right is an implied easeme
necessarily implies a right
to some extent to diminish
enough to accumulate a sul
let down to the next user.
reasonable manner and nc
plied.)

What constitutes a reason
subject-matter and the use
ject and extent and necessi
business to which it is sub
claimed by one party and t


y injurious by diminishing the value of the common
nt in the right of using the stream. The right to use
t to exercise a degree of control over the water and
h its volume. And the water may be detained long
ficient head for manufacturing purposes before it is
However, the person detaining water must act in a
t let it off in unreasonable quantities. (Italics sup-


ble use is a question of fact having regard to the
; the occasion and manner of its application; its ob-
ty; the nature and size of the stream; the kind of
lervient; the importance and necessity of the use
ie extent of the injury caused by it to the other. 31


The Court noted further that:


In some of the cases defini
use,' 'like situation,' 'like
course, mean that the use 4
farmer, one manufacturer
The use by any particular
tor in like circumstances.
of a power producer. To c4
term is seemingly but not i
ally nullify the law of ripax
it would mean that a streak
could never be so used, be4
of the water power capabill
use thereof as other like oi
used largely for water pow
poses destroy any use of tt


The Court appears to 1
rules, however, by adding
flict with the above-quote
watercourse is concerned


31. Dunlap v. Carolina P
(1938). The Court also state
owner has the right to use th
natural state for any purpose
the just rights of others." Bi
32. Dunlap v. Carolina PR
(1938).


3g the rights of a riparian owner, the terms 'like
owners, and 'like,' are used. These terms, of
If one farmer shall be judged by the use of another
by the customs and use of another manufacturer.
person must be the same as the neighboring proprie-
We cannot compare the uses of a farmer with those
,nstrue the term 'other like owners' strictly, as the
actuallyy used in some Of the decisions, would virtu-
ian ownership and riparian rights. To so construe
1 not theretofore used for water power purposes
;ause the person who first undertook to avail himself
ties of a stream would find that he was not making
mers. Such construction when applied to a stream
,r purposes would likewise for all practical pur-
e stream by farmers or others similarly situated. 32


tave thrown some confusion into the applicable
the following statements which appear to con-
i rules so far as the diversion of water from a



>wer and Light Co., 212 N.C. 814, 195 S.E. 43, 47
I (on p. 45) the following rule: "A lower riparian
a water of a stream as it comes upon his land in its
to which it may be applied without material injury to
it this does not appear to add anything material.
wer and Light Co., 212 N.C. 814, 195 S.E. 43, 45-46


I







200 LAW OF WATER ALLOCATION

(1) ...it has become a well-established principle of law in this and most of
the other jurisdictions that any substantial diversion of waters or the pollution
of waters of a stream gives rise to a cause of action in behalf of all riparian
owners affected thereby. (The Court also referred to the "right of a riparian
owner to make a reasonable use of the waters, so long as he does not divert
or pollute it...")
(2) The statements that a riparian owner 'has no right to use the water to the
prejudice of the proprietor below him' and that he cannot 'diminish the quantity
which would descend to the proprietor below' and that 'he must so use the water
as not materially to affect the application of the water below, or materially to
diminish its quantity,' are used in cases in which the diversion or pollution of
water is being discussed.
In the cases involving the right to the profitable use of the waters of a
stream, it seems to be almost universally held that such interruption in the
flow of the stream as is necessary and unavoidable in the reasonable and proper
use of the mill privilege above cannot be the subject of an action. 33

The significance of the distinction suggested by these statements de-
pends partly upon the intended meaning of the terms "diversion" and
"profitable use," which is not clear. "Profitable use" had reference at
least to the withholding of water by mill and power dams, the latter type
of use being the point in issue in the case. The Court implied that a dif-
ferent rule might be applied in cases of diversion or pollution of a water-
course than with respect to other uses, although it did not indicate pre-
cisely what it meant by "diversion," and was somewhat vague about how
the applicable rules might differ in such a case.34 When this case is con-
strued along with others however, the Court appears to suggest the possi-
bility that a riparian owner may be liable to any lower riparian owner who
is substantially injured by any material diminution of the flow of a water-
course resulting from the diversion of water therefrom, whether by means
of canals or pumps; whereas in cases involving the question of liability to
lower riparian owners for the detention of the waters (as with a dam), but
without any actual diversion of water from the watercourse (other than
perhaps to provide water power and immediately return it to the water-
course), the controlling criterion is to determine whether such use is
reasonable under all the circumstances, even though there may be mate-
rial diminution and substantial injury.35 The Court appears to have used


33. Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 46-47
(1938).
34. The first of these two latter statements appears to be the accepted general
rule with respect to pollution, but this question is now to some extent complicated
by statutory and administrative regulations. (See Pollution, post.)
35. The Court by "diversion" conceivably had reference only to the diversion
of the entire course, or a large part of the flow of a watercourse, perhaps particu-







NOR1'H CAROLINA WATER LAW


the latter rather than the former criterion in this case, which involved the
question of liability for di mage to lower riparian lands from the opera-
tion of a hydroelectric power dam.36 At any rate, the Court indicated that
"it is impossible to lay down a general rule in all cases."37
The rulings or statements made by the Court in earlier cases cited in
the Dunlap case tend to support the general proposition that no material
diminution of the flow of watercourse by diverting it, whether by means
S of pumps or canals or otter methods, would be permissible if it causes
material injury to riparian owners below.38 In one of these cases, how-
ever, the Court said that "our decisions...hold that a riparian proprietor

larly where no profitable usi is made of the water diverted. See Williamson v.
Lock's Creek Canal Co., 78 N.C. 156 (1878), in which the Court indicated that com-
pensation must be paid for diverting part of a stream's flow into another watershed
through a canal for drainage purposes so as to materially reduce the flow to a
S lower mill, causing material damage. See Adams v. Durham and N. R. Co., 110
N.C. 325, 14 S.E. 857, 859 (1892) concerning diversion of the entire course of a
stream. This case is discussed in note 510. However, as is discussed below, the
several earlier cases cited n the Dunlap case appear to collectively tend to sup-
port the proposition that no material diversion by means of canals, pumps, or
other methods, or for differ nt purposes, would be permissible if material injury
to lower riparian owners re ults. See further discussion of the meaning of "diver-
sion" in this case under Irri action, post. Note particularly the Court's statement
in this case that in some we tern states, where "irrigation is essential, the rule
against diversion" has been modified.
36. Apparently there was no diversion of water from the watercourse, other
than perhaps to provide water power as indicated above. The legal principles
applied to the operation of h droelectric dams in this and other cases are dis-
cussed under Detention or )struction of Water with Dams, etc., post.
37. Another distinction t at sometimes has been made appears in Hampton
v. N. C. Pulp Co., 223 N.C. l35, 27 S.E. 2d, 538 (1943), where the Court distin-
S guished cases of controversies over two lawful uses of the same stream from a
case in which one of the used is lawful and the other unlawful. It was held that
damages could be recovered for the pollution of a stream in violation of a State
statute which interfered with the migration of fish upstream to the complainant's
fishery, but the Court said t at in cases of a lawful use of a stream there is no
liability for any consequent I damages to others. However, in the Dunlap case
(in 1938) the Court held that there would be liability for certain direct damages to
a lower riparian owner's lanI caused by the operation of a power dam even though
it was found to be lawfully constructed and operated, without negligence. The Court
said that even though the use was lawful, the owner of the dam would not be per-
mitted thereby to take anoth r's property, without compensation. (See Detention or
Obstruction of Water with D ms, etc., post.)
38. See particularly Haris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E.
623, 624-625 (1910), discussed earlier. See also Williamson v. Lock's Creek Canal
Co., 78 N.C. 156, 159 (1878); and Walton v. Mills, 86 N.C. 280, 282 (1882), also
discussed earlier. These and other cases are cited in Dunlap v. Carolina Power


L







202 LAW OF WATER ALLOCATION

is entitled to the natural flow of a stream running through or along his
land in its accustomed channel, undiminished in quantity and unimpaired
in quality, except as may be occasioned by the reasonable use of the water
by other like proprietors."39 (Italics supplied). The Court cited a number
of earlier cases in support of this proposition, but none of them clearly
supported, and some tended to refute, such a rule so far as the diversion
of waters from a watercourse was concerned.40
Nevertheless, the above rule was repeated in a later case, in 1926.41
But there the Court also repeated the above-discussed rule, apparently
with approval, to the effect that riparian owners "may use the water for
any purpose to which it can be beneficially applied, but in doing so they
have no right to inflict material or substantial injury upon those below
them."42 The Court indicated that the former rule, which had been applied
by the lower court, gave the defendant "all that it could ask under the
law."43 It would seem confusing to apply both of these different rules in
the same case, unless any use of a stream (except perhaps for domestic
use) which causes material injury to a lower riparian owner necessarily
is an unreasonable use. But the Court did not discuss such possible diffi-
culties in applying the rules.
At any rate, in the latter two cases the water had been diverted from


and Light Co., 212 N.C. 814, 195 S.E. 43, 45, 48 (1938). These cases dealt with a
variety of types of diversion and use, including diversion without the aid of dams
or canals and in which the water was not returned directly to the source of supply.
Other cases cited dealt with pollution, the ponding back of water with dams, the
diversion of the entire course of a stream, drainage into a natural stream, or the
withdrawal of ground waters.
39. Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88, 89 (1924).
40. See particularly Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E.
623, 624 (1910) and Walton v. Mills, 86 N.C. 280, 282 (1882) discussed earlier.
41. Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407 (1926). This rule was
also repeated in Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 493 (1924).
But this was an incidental statement in a case dealing with percolating ground
waters.
42. Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407, 409 (1926). The Court
was quoting from Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623
(1910), discussed earlier, which cited Williamson v. Lock's Creek Canal Co., 78
N.C.156 (1878), also discussed earlier, in support of the rule. Thus we appear to
have a definite recognition of two different rules that had been developed in earlier
cases.
43. The rule stated in Cook v. Town of Mebane to the effect that there is "no
right to inflict material or substantial injury on those below" was repeated in a
case later the same year, although this case involved pollution, not diversion.
Moses v. Town of Morgantown, 192 N.C. 102, 133 S.E. 421, 423 (1926).







NORTH CAROLINA WATER LAW


a stream for municipal water supply purposes,44 which was declared in a
later case to be an unlawful type of use, largely on the grounds that it was
S a nonriparian use.45 Such diversion and use also had been held unlawful un-
der the circumstances in these cases, by applying the above-quoted rules.46
In two early cases involving drainage into a watercourse (which were
not cited in the Dunlap case) the Court made incidental statements to the
effect that a riparian owner could make a reasonable use of a stream for
irrigation purposes without incurring liability for any damage to lower
Owners, stating that "the ppper owner has the right to all the advantages
of drainage or irrigation, reasonably used, which the stream may give
him."47 Such a rule is similar to the rule stated in some of the cases dis-
cussed above to the effect that each riparian owner is entitled to the nat-
ural flow of a watercourse except as it may be diminished by the reason-
able use of the water by upper riparian owners, and may lend some
additional support for any, contention that the Court would follow this rule
with respect to the diversion of water from a watercourse, although the
Court possibly had in mind only the irrigation of a home garden.
Later cases which have cited the Dunlap case do not appear to add
much further clarification regarding which rule the Court would follow in
cases of diversion, but they do add definite support for the proposition
that in instances of detention of water without diverting it from the water-
course (other than perhaps to provide water power, as indicated above)
the applicable rule is to determine whether such use is reasonable under
all the circumstances.48

44. Smith v. Town of Moigantown, 187 N.C. 801, 123 S.E. 88 (1924); Cook v.
Town of Mebane, 191 N.C. 1, 131 S.E. 407 (1926).
45. Pernell v. City of Hehderson, 220 N.C. 79, 16 S.E. 2d. 449 (1941).
46. See Definition of Riparian Land and Use of Water on Nonriparian Lands,
and Municipal or Public Water Supply, post.
47. Jenkins v. Wilmingtoh and W* R. Co., 110 N.C. 438, 15 S.E. 193, 194 (1892);
Rice v. Norfolk and C. R. Co., 130 N.C. 375, 41 S.E. 1031, 1033 (1902). See note
97. 1
48. Following are four later cases in which the Dunlap case was cited:
(1) The Court in Sink v. City of Lexington, 214 N.C. 548, 200 S.E. 4, 5,
S(1938) adopted the rule of reasonable use under all the circumstances, quoting
Smith v. Morgantown, op. cit., and said that the Dunlap case was "not contrary."
However, this case involved the question of damages to upper lands whose drainage
was impeded by the maintenance of a dam below. (See Detention or Obstruction of
Water with Dams, etc., post.) The COurt did not discuss the question of diversion.
(2) In Bruton v. Carolina Power Co., 217 N.C. 1, 6 S.E. 2d. 822, 827 (1940)
the Court quoted language from the Dunlap case. affirming the rule of reasonable
use under all the circumstances, where the question of damages to lands below a
dam was involved. It also quoted its previous statement that: "A riparian pro-
prietor has a right to make all the use he can of the stream so long as he does not







204 LAW OF WATER ALLOCATION

The Court in several cases49 has considered the question of liability
for diverting waters from a natural watercourse and causing them to flood
or to be thrown against another's land so as to damage it. The Court ap-
pears to have applied the same general rule in cases where the entire
course of a stream was diverted out of its watershed as in cases where
only a part of the water was thus diverted, through a canal or ditch, with
similar results. In either event, the Court has generally imposed liability
for the resulting damages.50 In such cases, as well as in cases involving
drainage rights, the Court has developed and applied the oft-quoted rule
that one may accelerate and increase the flow of a natural watercourse,
but not divert it.si These cases, however, generally involved the question
of liability for thereby flooding or casting the water onto another's land,
rather than any liability for reducing the flow to a lower riparian owner.


pollute it or divert it from its natural channel and abstract so much as to prevent
other people from having equal enjoyment with himself, or does not use the same
in such an unreasonable manner as to materially damage or destroy the rights of
other riparian owners."
(3) The Court in Koone v. Carolina Power Co., 217 N.C. 286, 7 S.E. 2d.
565, 566 (1940) again cited the Dunlap case to the same general effect in a case
similar to the Dunlap case.
(4) The Court once again cited the Dunlap case (along with Cook v. Mebane
and Durham v. Cotton Mills, ante) in Young v. City of Asheville, 241 N.C. 618, 86
S.E. 2d. 408, 415 (1955), ante, in support of the proposition that one who is not a
riparian owner does not have a right to have the stream flow "with undiminished
quantity and unimpaired quality," although there the Court was considering the
right to an unimpaired quality and this appears to have been merely an incidental
statement regarding "quantity." The Dunlap case had not dealt with the question
of any neccesity of riparian ownership.
While the Sink case tends to refute the distinction drawn in the Dunlap
case, the Young case tends to support it. The Bruton and Koone cases appear to
add little on this question, except to confirm that the rule of reasonable use under
all the circumstances applies in cases of detention of a watercourse with a dam,
without diverting it.
49. Some of them were cited in the Dunlap case.
50. Compare Craft v. Norfolk and S. R. Co., 136 N.C. 49, 48 S.E. 519 (1904) and
Mullen v. Lake Drummond Canal and Water Co., 130 N.C. 496, 41 S.E. 1027 (1902),
with Porter v. Durham and Brown, 74 N.C. 767 (1876) and Jackson v. Kearns, 185
N.C. 417, 117 S.E. 345 (1923).
51. Porter v. Durham and Brown, 74 N.C. 767 (1876); Craft v. Norfolk and S. R.
Co., 136 N.C. 49, 48 S.E. 519 (1904); Jackson v. Kearns, 185 N.C. 417, 117 S.E.
345 (1923); Hocutt v. Wilmington and W. R. Co., 124 N.C. 214, 32 S.E. 681 (1899);
Briscoe v. Young, 131 N.C. 386, 42 S.E. 893 (1902). See also Fleming v. Wilming-
ton and W. R. Co., 115 N.C. 676, 20 S.E. 714 (1894) and Mullen v. Lake Drummond
Canal and Water Co., 130 N.C. 496, 41 S.E. 1027 (1902). (See Artificial Water-
courses, and Drainage, post.)







NORTI CAROLINA WATER LAW 205

But in one case the Court indicated that compensation must be paid for di-
verting part of the stream's flow into another watershed if this materially
S reduced the flow to a low4r riparian owner's mill, causing material dam-
age.52
In a number of cases, including the Dunlap case, the Court has made
statements substantially like one or both of the following:
S (1) Every riparian owner has a property right to the reasonable use of run-
ning water for manufacturing purposes as well as for domestic and agricultural
S purposes conformable to the uses and needs of the community, qualified only by
S the requirement that it must be enjoyed with reference to the similar rights of
other riparian owners".53
(2) ...a riparian proprietor has the right of...flow past his lands for ordinary
domestic, manufacturing, und other lawful purposes, without injurious or pre-
judicial interference by an upper proprietor. 54
S Although such general statements may tend to refute any distinction be-
tween types of uses, the question of diverting water from a watercourse
often was not involved,55 nd such statements generally have been accom-
panied in such cases by a ditional comments on the extent of permissible
use, often including a limitation against material diminution of the flow or
material damage to otherS. As Ihdicated above, the Court sometimes has
used language tending to support two or more different criteria on the ex-
tent of permissible use the same case.56
In any event, whether particular use is reasonable is ordinarily a
question of fact, often to determined by a jury under proper guidance
from the Court as to the aw applicable to the particular facts,57 except
when there is no evidence tending to show an unreasonable use.58 Damages

52. Williamson v. Lock's Creek Canal Co., 78 N.C. 156, 159 (1878). See note 408.
53. Dunlap v. CarolinaPcwer andLightCo.,212 N.C. 814, 195S.E. 43, 46 (1938).
54. Smith v. Town of Mo gantown, 187 N.C. 801, 123 S.E. 88, 89 (1924).
55. See, e.g., Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E.
43, 46 (1938); Bruton v. Car lina Power and Light Co., 217 N.C. 1, 6 S.E. 2d. 822
(1940).
56. See also City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453,
V 456-457 (1906), where the C urt employed the words "with undiminished quantity
and unimpaired quality," Without material diversion or pollution," and "without
any unnecessary or unreasonable diminution or pollution" all in the same case.
57. City of Durham v. Eio Cotton Mills, 141 N.C. 615, 54 S.E. 453, 457 (1906).
Here an injunction was requested. So the Court determined the facts without a
jury, as it may do in such cases. Alpo, rights to a jury trial may be waived by the
litigants in some cases.
58. Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 48
(1938) (action for damages). See also Blue Ridge I. Ry. Co. v. Hendersonville Light
and Power Co., 169 N.C. 471, 86 S.E. 296, 298 (1915); and Harris v. Norfolk and
W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 625 (1910).


i







LAW OF WATER ALLOCATION


may be recovered in certain cases for any material diversion or material
injury, as discussed above, but the granting of an injunction is seldom a
matter of right. Often it may depend upon what the Court considers to be
just and reasonable under the circumstances. (See Legal Remedies, post.)

Time of Use and Effect of Nonuse

The Court early decided that the time when a particular use of a water-
course was begun creates no priority or inferiority in relation to other
uses.59 Moreover, the fact that one's rights of use have not yet been exer-
cised apparently does not affect the right to use the water later,60 except
in special cases, such as when prescriptive rights are acquired. Failure
to make use of the water, however, may have an effect upon whether an in-
junction against other uses of the watercourse will be granted, or upon the
amount of damages, if any, that are awarded.61
In an early case, the Court said:
...every owner of land on a stream necessarily and at all times is using water
running through it-if in no other manner, in the fertility it imparts to his land,
and the increase in the value of it. There is therefore no prior or posterior in
the use; for the land of each enjoyed it alike from the origin of the stream; and
the priority of a particular new application or artificial use of the water does
not therefore create the right to that use; but the existence or nonexistence of
that application at a particular time measures the damages incurred by the
wrongful act of another... 62

In a later case, the Court said that riparian rights "are not dependent
upon the owner's actual use or appropriation of the flowing water." It held
that even though a riparian owner had made no practical use of the stream,
this would not preclude his recovering permanent damages for any loss in
the value of his land caused by the upstream use of the watercourse to
furnish the water supply of a town, thereby diminishing the flow.63 It is
problematical whether the Court would have held likewise if permanent
damages had not been awarded, for in such instances foreseeable future
uses of the lower riparian land might be considered.64 The Court did not
indicate whether future uses were or could be considered.
In another case, the Court said that there would be no liability for di-
verting water from a watercourse to water locomotives on riparian land

59. Pugh v. Wheeler, 19 N.C. 0, 55 (1836).
60. Pugh v. Wheeler, 19 N.C. 50, 55 (1836); Smith v. Town of Morgantown, 187
N.C. 801, 123 S.E. 88, 89 (1924).
61. See Legal Remedies and Prescriptive Rights, post.
62. Pugh v. Wheeler, 19 N.C. 50, 55 (1836).
63. Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88, 89 (1924).
64. See Condemnation and Related Proceeding, post.







NORTH CAROLINA WATER LAW 207

except for injury to some legitimate use being made of the water by the
complaining lower riparian owner, even though it was a suit for perma-
nent damages. This was followed, however, with the statement that there
may be liability to a lower owner "who suffers a substantial injury there-
by." At any rate, the question of the nature of the damage required to im-
pose liability does not appear to have been directly involved in the deter-
mination of the case. 6 The Court indicated that the complainant's evidence
tended to show material diversion and material injury to the complainant,
in that he had to shut down his nill, But as the evidence was conflicting,
the Court held that it was properly left to the jury, which apparently de-
cided that there was no material diminution of the flow and hence no
liability.
Some specific instances where prior use of a navigable or nonnavigable
watercourse may receive preferential treatment will be considered later.

Definition of Riparian Land and Use of Water on Nonriparian Lands

The Court has not clearly determined precisely what constitutes ri-
parian land or the extenttto which water from a watercourse may be law-
fully used on nonriparian land. in the recent case of Young v. City of
Asheville et. al. in 1955, a farm irrigator had sued the city and a water
company for polluting the watercourse from which his irrigation water
was pumped. The Court denied the farm irrigator, a farm tenant, any
right of recovery on the grounds that (1) he had failed to allege that any
of the rented land was riparian land, and (2) he had failed to allege or pre-
sent evidence that either |he or his landlord had obtained permission from
any riparian landowner to use the watercourse.66 The Court raised, but
did not resolve, the further questions as to (1) whether a nonriparian
S owner could acquire any legal rights to use the watercourse by obtaining
permission from a riparian owner, and (2) whether riparian rights that
accompany the ownership of riparian land would extend or attach to an-
other tract of land not in contact with the watercourse, which had been
purchased separately by the farm irrigator's landlord.67


65. Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623, 624-625 (1910).
66. Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408, 415 (1955). The
Court also noted that he had shown no prescriptive rights to use the watercourse.
The possibility of obtaining such rights by long-continued adverse use is discussed
under Prescriptive Rights, post.
67. These questions are considered in Alspaugh, J. A., "Real Property-Riparian
Rights," 34 N.C.L.R., 247. (Feb., 1956). The writer concludes that these questions
are unsettled in North Carolina and discusses the position taken on these questions
in other States. Use of water on nonriparian land generally has been held to be
unlawful, particularly if it causes actual damage to a complaining lower riparian
owner. Such nonriparian uses as may be permissible would be on a more or less


~







LAW OF WATER ALLOCATION


The Court concluded that none of the leased land irrigated was riparian
land because a railroad track lay between it and the creek and the bound-
ary called for in the landlord's deed was the track of the railroad rather
than the creek. Hence the land had no actual contact with the watercourse.
The Court did not discuss, and apparently there was no evidence regard-
ing how the irrigation pipeline was made to cross the railroad or whether
the farm irrigator or his landlord had obtained permission to take it
across. Nor was there any discussion of (1) who owned the land between
the railroad track and the creek, (2) whether riparian rights may have 3
been expressly reserved in the adjoining land at the time that the railroad
right-of-way was obtained, (3) whether the railroad may have been aban-
doned and the title to the right-of-way may have reverted to the original
grantor and his successors under the terms of the grant to the railroad,
or, if not, (4) whether the fee title may have been retained as an adjunct
of the adjoining land. Such factors could conceivably be material in de-
termining whether riparian rights still attach to lands cut off from a
watercourse by a railroad or highway. In a case in 1956 the Court held
that the purchaser of a lot fronting on a navigable watercourse acquired
the fee interest in a street along the edge of the watercourse and obtained
riparian rights in the watercourse, there being no reservations in his
deed. 68
The Court had taken a similar position in an earlier case in regard to
the necessity for land to lie contiguous to a watercourse for riparian
rights to attach to it. The Court there said that "in order that this right
to have the water of a stream flow with undiminished quantity or unim-
paired quality may be successfully asserted, the person who sets up a
claim to its enjoyment must show that he is riparian proprietor or that in
some way he has acquired riparian rights in the stream."69


temporary basis, until such use interferes with riparian uses of the watercourse.
In only a few States do the reported Court decisions hold otherwise, although in
some States the question has not been clearly decided. Also, see Ellis, Harold H.
"Some Current and Proposed Water-Rights Legislation in the Eastern States," 41
Iowa L.R. 237, 257 (Winter, 1956).
68. The case dealt with rights to land built up along the shore through the pro-
cess of accretion. Jones v. Turlington, 243 N.C. 681, 92 S.E. 2d. 75 (1956). See
Boundaries and Related Matters, post.
69. City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453, 457 (1906).
This was practically identical with the Court's later statement in the Young case,
241 N.C. 618, 86 S.E. 2d. 408, 415 (1955). But in the Durham case a city had sued
a milling company upstream for polluting the stream from which the city obtained
its water supply. Riparian ownership particularly might not be required to enable
one to recover against pollution, as is discussed later. There was evidence that
the water company that supplied the city "has a plant abutting on the river," but it
had not joined in the lawsuit and there was no evidence as to "what kind of contract







NORTH CAROLINA WATER LAW


A further limitation in a number of States has been that waters in a
watercourse ordinarily may not ibe lawfully used on land lying beyond the
edge of the watershed.70 But this question has neither been decided nor
expressly considered by the North Carolina Court.71
In a case in 1941 the Court held that the use of a watercourse for a
city's water supply would give a lower riparian owner a right of action
for damages suffered, on the grounds that the water was being used on
S nonriparian lands, notwithstandingg that the city may have owned riparian
land at the point of diversion.72 This appears to be about the clearest
stand that has been takenlby the Court against the validity of nonriparian
S use, although the Court raised a related question concerning whether use
for municipal water supply purposes should be considered a use properly
connected with the ownership and use of riparian land.73 Another type of
use that has been questioned on such grounds in some other States is the
watering of train locomotives from a stream while on riparian land owned
by the railroad company.7' However, the right to such use, so long as
there is no material diversion or damage to a lower riparian owner, has
been upheld by the North Caroliia Court without raising this question. 75
In a more recent case (in 1950), it was alleged that the defendants were

it has with the city for furnishing water." The Court said that if the city were a
riparian owner or had riparian rights in the stream, it might have a cause of action
for any unreasonable pollution that Caused it actual or imminent damage. But the
case was decided on other grounds.
70. 56 Am. Jur., Waters, secs. 277-278. See also "Real Property-Riparian
Rights", by J. A. Alspaugh, bp. cit. !
71. In the Young case discussed above, the land irrigated apparently lay within
the watershed. The question might well have been raised, but was not, in some
municipal water supply cases and also in an early case in which the use of water
for gold mining purposes on 2,000 acres was contemplated. Walton v. Mills, 86
N.C. 280 (1882). The Court has indicated that compensation would need to be paid
for diverting part of the water of a Watercourse through a canal into another water-
shed, to enhance the drainage of upper farmlands, if this materially reduced the
flow of water reaching a lower riparian owner's mill, causing material damage.
Williamson v. Lock's Creek Canal go., 78 N.C. 156 (1878). See note 408.
72. Pernell v. City of Hqnderson, 220 N.C. 79, 16 S.E. 2d. 449 (1941).
73. The Court noted that such extensive use cannot qualify as ordinary domestic
use and noted that it would involve the sale and distribution of the water to the
public. The Court has consistently permitted a right of action by lower riparian
owners against use of watercourses for municipal water supply purposes, but,
except for the Pernell case, without emphasizing the nonriparian character of such
use. (See Municipal or Public Water Supply, post).
74. See, for example, Elliot v. Fitchburg R. R. Co., 64 Mass. 191 (1852) as
construed in Stratton v. Mt.iHermon Boys' School, 215 Mass. 83, 103 N.E. 87 (1913).
75. Harris v. Norfolk and W. R3. Co., 153 N.C. 542, 69 S.E. 623 (1910). Some
cases in other States were discussed, on p. 625.







LAW OF WATER ALLOCATION


nonriparian owners and used stream waters in mica mining operations,
discharging their mining wastes into the stream to the damage of lower
riparian owners. The Court implied that the nonriparian nature of such
use would affect their liability for such damage, but did not indicate pre-
cisely the effect that it might have.76
The Court has said that ordinarily a lower owner must show that he
owns land "along or adjacent" to a stream to be able to enjoin an upper
municipality from polluting a stream if it does not furnish a public water
supply.77 (The pollution of streams that provide public water supplies is
subject to special legislation. See Pollution, post.) But if the question
were pollution of the air as well as the water, one need not necessarily be
a riparian owner to recover. In one case, recovery of damages from pol-
lution was allowed by a nonriparian owner whose land lay within 40 feet
of the stream polluted. The Court indicated that riparian ownership was
not required when one's land lay near enough to suffer damage from the
stench, amounting to a nuisance through air pollution.78 The Court indi-
cated likewise in a case in which a part of the complainant's land (which
consisted of three tracts) lay a half mile from the stream.79 The Court
also has permitted a right of action in cases in which nonriparian lands
have suffered direct damage, such as from flooding caused by dams. 80
If use of water from a watercourse on nonriparian land is an unlawful
type of use, whether by a riparian owner on his nonriparian land or by a
nonriparian owner with the riparian owner's permission, there remain
some further questions to be reviewed as to the legal effect of such
use. In two of the cases discussed above, the Court indicated that such
nonriparian use ordinarily would have the effect of precluding any
right of action by the one making it, as against others upstream for
polluting his source of supply (except as was noted, in the case of public


76. McKinney v. Deneen, 231 N.C. 540, 58 S.E. 2d. 107 (1950).
77. Banks v. City of Burnesville, 228 N.C. 553, 46 S.E. 2d. 559 (1948).
78. Rhodes v. City of Durham, 165 N.C. 679, 81 S.E. 938 (1914).
79. Donnell v. City of Greensboro, 164 N.C. 330, 80 S.E. 377 (1913), citing
Brown v. Chemical Co., 162 N.C. 83, 77 S.E. 1102 (1913), in support of its position.
80. See Detention or Obstruction of Water with Dams, etc., post.
Moreover, although nonriparian use otherwise might not be lawful, a right to
make such use may be acquired through the exercise of condemnation powers or
related proceedings for such purposes, under prescribed circumstances. (See
Condemnation and Related Proceedings, post.) Such use sometimes may also be
legally permissible, as against one or more riparian landowners, by perfecting
prescriptive rights to make such use (see Prescriptive Rights, post), or on the
principle of estoppel. (See Estoppel, post.)
A few additional cases involving nonriparian use are discussed under Municipal
or Public Water Supply, post, and Pollution, post. See also Transfer or Assign-
ment of Water Rights, post.







NORTH CAROLINA WATER LAW 211

L water supplies).81 In these two cases, the Court also noted that any right
of action likewise would be precluded against the diminution of the stream's
flow by others upstream, although this question was not directly involved.
In another case, the Court indicated that the use of a stream for muni-
cipal water supply purposes was a nonriparian use and would give rise to
a right of action on behalf of a lower riparian owner.82 The Court perhaps
S implied, but did not state expressly, that such nonriparian use may be un-
Slawful per se and may give rise to a right of action whether or not a lower
Sriparian owner has suffered any actual or imminent damage. In an earlier
case in which a lower riparian owner sued a city for taking its water sup-
ply from a watercourse, the Court permitted damages to be awarded for
loss of value of riparian land, even though no practical use had been made
of the water.83 But in that case the Court did not stress the nonriparian
character of the use. Also, it was a case in which permanent damages
were awarded. In such a case, foreseeable future damages might be con-
sidered.84

Priorities or Preferences Based on Type of Use

Domestic and perhaps certain other so-called "natural uses" of a wa-
tercourse possibly would receive a certain priority or preference over
other types of use. But this has not been definitely decided, as will be dis-
cussed shortly. More favorable rules may apply to the detention of waters
in a watercourse than to the removal or diversion of waters from it for
various purposes, such as irrigation or mining, although this, too, has not
been definitely decided, as discussed earlier. The Court has held that use
for municipal or public water supply purposes was not a lawful riparian
use of a watercourse and compensation should be made for any damages
to lower riparian owners.85
The Court generally has not otherwise indicated that any one type of


81. Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408 (1955); City of
Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453 (1906).
82. Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449 (1941).
83. Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88 (1924).
If the rule were definitely adopted that such nonriparian use is unlawful per se
the Court might permit a right of action on behalf of a lower riparian owner partly
to prevent the possibility of the nonriparian user's perfecting prescriptive rights
to continue such use. On the other hand, if no right of action against such use
arises until some riparian owner or the public suffers some actual or at least im-
minent damage, the period of time needed to perfect prescriptive rights might not
begin to run until this occurs. (See Prescriptive Rights, post.)
84. See Permananet Damages, post. Permanent damages possibly were also
involved in the Pernell case discussed above, but this was not expressly indicated.
85. See Municipal or Public Water Supply, post.






212 LAW OF WATER ALLOCATION

use would be preferred over another, although from time to time it has
given preferential treatment to certain specific uses, such as milldams,
drainage enterprises, or municipal uses, that were deemed necessary to
the development of the State's economy or otherwise highly desirable.
Frequently, this preferential treatment has taken the form of denying an
injunction against such uses although requiring payment for any damages.86
Certain uses also have been given preferential treatment, in one way or
another, by legislation, although again payment for any damages usually
has been required by such legislation or by the Court. 87

Domestic or Other Natural Uses

In the early case of Pugh v. Wheeler, in 1836, which involved a dispute
between two millowners along a stream, the Court indicated that the small
nonnavigable streams in the State were to be treated as publici juris, so
far as to allow all persons to drink the water, and the like; and also, so
far as to prevent a person to whose land it comes from thus consuming it
entirely, by applying it to other purposes-to only a very few is any other
use reasonable; and-therefore-legal."88 The Court went on to say that
owners of land through which a nonnavigable stream runs may apply it to
purposes of profit which, however, "do not affect it as the aliment pro-
vided by nature to nourish animal life."89 The Court also said that: "If
one build a mill on a stream, and a person above divert the'water, the
owner of the mill may recover for the injury to the mill, although before
he built he could only recover for the natural uses of the water, as needed
for his family, his cattle, and irrigation. (Italics supplied.)90 The Court
possibly meant simply the irrigation of a garden or pasture for home use,
which may have been the most common type of irrigation at that time.
These statements suggest the possibility that, as to nonnavigable
streams, (1) "natural uses" may include drinking water and other family
household uses, the watering of cattle, and possibly even irrigation,

86. See particularly Balancing of Interests, Equities, or Conveniences, post.
87. See, e.g., Emergency Water Supply, post; also the milldam legislation ana
statutes giving mica and kaolin miners certain privileges to acquire access to and
to pollute streams, discussed under Condemnation and Related Proceedings, and
Pollution, post.
88. Pugh v. Wheeler, 19 N.C. 50, 54-55 (1836).
89. This was quoted, without amplification, in Dunlap v. Carolina Power and
Light Co., 212 N.C. 814, 195 S.E. 43, 46 (1938). The question of domestic use or
stock watering was not involved.
90. This statement was quoted, apparently with approval, in Cook v. Town of
Mebane, 191N.C. 1, 131 S.E. 407, 409 (1926). The case involved an action against
the use of a stream as a municipal water supply brought by a lower riparian mill-
owner. Any other uses which the millowner may have made of the stream were
not shown.






NORTH CAROLINA WATER LAW 213

(2) natural uses may be preferred over and protected against other types
of uses, and (3) rights to make such natural uses, at least for drinking
water purposes, may not necessarily be limited to owners of lands ad-
joining the stream. But this latter possibility may have been negated in
City of Durham v. Eno Cotton Mills (in 1906), inwhich the Court noted that:
All streams, however, are public juris, and all the water flowing down any
stream is for the common use of mankind who live on the banks of the stream;
and therefore any person living on the banks of the stream has an undoubted
right to the use of the water for himself, his family, and his cattle, and for all
ordinary domestic purposes, such as brewing, washing, and so on. Those are
the common purposes of water in the ordinary mode of using water. 91 (Italics
supplied.)

S This case involved the question of pollution by a textile mill. Some of
the water uses that caused the pollution possibly were considered to be
domestic uses, but this was not clearly indicated. The Court noted further
that:

There are some uses which by common consent a riparian owner may have of
the water, as it flows upon his premises, although such use may to some ex-
tent interfere with the use of the stream in its natural flow by the proprietors
below. As, for example, the proprietor above may use the water for domestic
purposes-the watering of cattle, and the like-although such use may diminish
the volume of the stream to the detriment of lower proprietors. The right to
such uses, without which all beneficial use of the water by the riparian owner
would be prevented, is allowed, ex necessitate, and is universally recognized.
92 (Italics supplied).

The Court added, however, that as the defendant was an upper riparian
owner, he was "entitled to the ordinary use of the water, including the
right to apply it in a reasonable manner to domestic uses and even to pur-
poses of trade and manufacture," but that he could be held liable for "using
the water of the stream in an unreasonable manner."93
The case of Pernell v. City of Henderson (in 1941) involved municipal
water use (distributing water taken from a stream "to the inhabitants and
users through a water system in the usual way"). The Court noted that in
making such use a city ais not in the exercise of the traditional right of a
riparian owner to make a reasonable domestic use of the water without

91. The Court was quoting from an old English case. See also the quotation
from a later case to which note 131 relates, and also some statements in other
decisions, discussed below, to the effect that the riparian doctrine applies to do-
mestic and other uses without any particular distinction being made between them.
92. The Court was quoting from a New York case.
93. City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453, 456-457
(1906); later decision in 144 N.C. 705, 57 S.E. 465 (1907).







LAW OF WATER ALLOCATION


accountability to other riparian owners who may be injured by its diver-
sion or diminution."94
It would appear from the foregoing that domestic and possibly certain
other natural uses might be preferred over, and protected against, other
types of uses. The statement in the Pernell case suggests that such uses
might be exclusively preferred over other types of uses. Some statements
above from the case of Pugh v. Wheeler also appear to suggest such an
exclusive preference, although the statement on safeguarding the use of
water for animal lifb may have been intended simply to prevent pollution.
Some of the above statements in the City of Durham case may also lend
some support. However, in a number of other cases in which the Court
adhered to some version of the riparian doctrine of reasonable use, this
doctrine was said to apply to domestic or natural and other uses, without
making any particular distinction between them. (But, like the cases dis-
cussed above,95 the statements regarding domestic or natural uses appear
to have been largely or entirely incidental rather than directly involved in
the Court's determination of these cases. Such statements are commonly
called "dicta" in legal parlance.)96
From such statements it might be argued that the Court felt that there
should be no inflexible system of priorities by type of use. But it does not
necessarily follow that this negates the possibility that domestic or other
natural uses might generally enjoy a preferred position on the ground that
they may be "necessary uses," as stated in the City of Durham case.
No North Carolina case has been found which deals with or expressly
considers the following two questions:
1. What are the relative rights of two or more domestic water users
from the same watercourse? The statements quoted above from the cases
of Pernell v. City of Henderson and Pugh v. Wheeler suggest that the upper

94. Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449, 450-451 (1941).
95. Except perhaps for the Pernell case.
96. Williamson v. Lock's Creek Canal Co., 78 N.C. 156, 159 (1878), (incidental
statement on watering of stock, without amplification); Walton v. Mills, 86 N.C.
280, 282 (1882), (incidental statement on "domestic purposes"); Blue Ridge I. R.
Co. v. Hendersonville, 169 N.C. 471, 86 S.E. 296, 298 (1915), (incidental statement
on "domesticpurposes"); Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88,
89 (1924), (incidental statement on "domestic purposes"); Dunlap v. Carolina
Power Co., 212 N.C. 814, 195 S.E. 43, 46 (1938), (statement, possibly incidental,
on "domestic purposes"); Sink v. City of Lexington, 214 N.C. 548, 200 S.E. 4, 5
(1938), (incidental statement on "domestic purposes"); Hampton v. North Carolina
Pulp Co., 223 N.C. 535, 27 S.E. 2d. 538, 546 (1943), (incidental statement on "do-
mestic purposes"). Neither stock watering nor any other domestic use, nor irri-
gation, was definitely involved in any of these cases, except for Smith v. Town of
Morgantown, where a city supplied water for domestic and other purposes. There
are also some cases of pollution affecting particular domestic or other natural
uses. See, e.g., Eller v. Bd. of Education, 242 N.C. 584, 89 S.E. 2d. 144 (1955).






NORTH CAROLINA WATER LAW 215

owner might be permitted to take all that he reasonably needs for domes-
tic purposes, irrespective of its effect on a lower owner's domestic or
other needs.97 On the other hand, in a number of cases, as noted above,
the Court has stated that the reasonable use rule applies to domestic and
other uses, with the rights and reasonable requirements of each riparian
owner qualifying the rights of the others.
2. Would the preferential treatment, if any, accorded the use of water
for watering cattle, extend to the watering of commercial livestock herds,
or would it extend only to a few head of cattle kept for home use and con-
sumption? The latter limitation wras not expressly added to the statements
on watering of cattle in the cases discussed above, but the watering of
large numbers of livestock might be refused such preferential treatment.
Commercial dairy or other livesock uses were protected against pollu-
tion of needed drinking water fromm streams or otherwise) in some cases,
Sbut without expressly considering this question.98
Domestic uses are mentioned n certain statutory provisions but the
meaning of the term and the question of any priority to be accorded such
uses are not further clarified, except that such uses are perhaps given
somewhat greater legal protection against pollution of their source of sup-
Sply. For example, N.C.G.S. sec. 130-109, relating to the inspection and
prevention of contamination of waters by the State Board of Health, author-
Sized the Board to determine which waters "are adapted for use as water
supplies for drinking and other domestic purposes" and to take various
measures to prevent their pollution. (See Pollution, post.)

Irrigation

S There do not appear to be any direct rulings by the Supreme Court re-
garding the use of natural watercourses for farm irrigation purposes,
other than the Court's decision in the recent case of Young v. City of
SAsheville, et. al. (in 1955) that the farm irrigator involved could not re-
Scover damages for pollution of his irrigation water because he had not

97. The language in some other cases suggests that the upper owner also may
i be in such a position with respect to certain other lawful uses of the water. In two
cases, the Court quoted with apparent approval from other legal authorities to the
effect that "the upper owner has the right to all the advantages of drainage or irri-
gation, reasonably used, which the stream may give him." Jenkins v. Wilmington
R. R. Co., 110 N.C. 438, 15 S.E. 193, 194 (1892). Rice v. Norfolk and C. R. Co., 130
SN.C. 375, 41 S.E. 1031, 1033 (1902). In the former case, Angell on Watercourses,
and in the latter case, a Pennsylvania court, were quoted to this effect. But these
cases involved drainage, not irrigation.
98. Oates v. Algodon Mfg. Co., 217-N.C. 488, 8 S.E. 2d. 605 (1940); Finger v.
Rex Spinning Co., 190 N.C. 74, 128 S.E. 467 (1925); Rhyne v. Flint Mfg. Co., 182
N.C. 489, 109 S. E. 376 (1921).

hi


I






LAW OF WATER ALLOCATION


shown that he was a riparian landowner or otherwise had acquired any
lawful right to use the stream. 99 But incidental statements have been made
in at least five other cases, discussed below, to the effect that irrigation
may be a lawful use to some extent. In two cases, the Court even stated
that irrigation is a "natural" use, although this possibly had reference
only to irrigation of a garden or pasture for home use. As such, it might
possibly enjoy a certain preference over some other types of uses, as in-
dicated above.
In an early case (in 1836), the Court referred to a riparian owner's
right to "the natural uses of the water, as needed for his family, his cattle,
and irrigation."100 (Italics Supplied.) In two later cases (decided in 1892
and 1902), dealing with drainage into a natural watercourse, the Court
quoted other legal authorities, apparently with approval, to the effect that
a lower owner along a stream, "must abide the contingency of increase or
diminution of the flow of water in the channel of the stream, because the
upper owner has the right to all the advantages of drainage or irrigation,
reasonable used, which the stream may give him."101 (Italics supplied.)
In a case in 1878, irrigation and certain other uses of a watercourse
were said to be reasonable riparian uses, so long as this doesn't "materi-
ally damage those above or below."102 In 1938, in Dunlap v. Carolina
Power and Light Co., the Court said that:

It has become a well-established principle of law in this and most of the other
jurisdictions that any substantial diversion of waters or the pollution of waters
of a stream gives rise to a cause of action in behalf of all riparian owners af-
fected thereby. In some of the western states where the land is arid and irriga-
tion is essential, the rule against the diversion of the waters of a stream has
been modified.

This would tend to imply that the right to use stream waters for irri-
gation purposes in North Carolina is rather limited. The Court added,
however, that:
Every riparian owner has a property right to the reasonable use of running
water for manufacturing purposes as well as for domestic and agricultural pur-
poses conformable to the uses and needs of the community, qualified only by the
requirement, that it must be enjoyed with reference to the similar rights of
other riparian owners. (Italics supplied.)


99. Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408 (1955).
100. Pugh v. Wheeler, 1s N.C. 50, 55 (1836). This statement was quoted appar-
ently with approval, in the later case of Cook v. Town of Mebane, 191 N.C. 1; 131
S.E. 407, 409 (1926).
101. Jenkins v. Wilmington R. R. Co., 110 N.C. 438, 15 S. E. 193, 194 (1892).
Rice v. Norfolk and C. R. Co., 130 N.C. 375, 41 S.E. 1031, 1033 (1902). See note 97.
102. Williamson v. Locks Creek Canal Co., 78 N.C. 156, 159 (1878).






NORTH CAROLINA WATER LAW 217

It might be argued that "agricultural purposes" was meant to include irri-
gation, which was not shown to be involved in the case. But the Court
went on to say that:

The statements that a riparian owner 'has no right to use the water to the preju-
dice of the proprietor below him' and that he cannot 'diminish the quantity which
-* would descend to the proprietor below' and that 'he must so use the water as not
materially to affect the application of the water below, or materially to diminish
its quantity,' are used in capes in which the diversion or pollution of water is
L being discussed. 103 (Italics supplied.)

Irrigation generally would appear to involve "diversion" of water from
the stream, unless perhaps the Court meant to limit this term to the di-
version of the entire course or a large part of the flow of a stream, which
seems doubtful.104
The above-mentioned case of Young v. City of Asheville, et. al., invol-
ved an action by a farm tenant to recover damages for the loss of vege-
table crops because of polution the creek from which the water was
taken to irrigate the crops. The action was brought against the city and a
Water and sewer district, which jointly maintained and used a sewer line
Which ran along the edge of the creek, for negligently permitting the line
to leak and contaminate the creek, whereby the sewage was carried
through the irrigation system and contaminated the vegetable crops so
that the State Commissioner of Agriculture obtained an injunction that for-
bade their sale, with an alleged lpss of $17,000.
The lower court awarded $4,500 damages, but the judgment was re-
versed on appeal on the grounds that the complainant had failed either to
Allege or to prove that he was the tenant of a riparian landowner, and that
he had alleged but failed to present evidence that the right to use the
stream for irrigation purposes had been obtained from any riparian
owner, by contract or otherwise.J05 The Court concluded that none of the
leased land irrigated was riparian land because a railroad track lay be-
tween it and the creek and the boundary called for in the landlord's deed
was the edge of the railroad, not the creek, and hence the land had no ac-
tual contact with the watercourse. The Court raised a further question
S(but reached no decision) as to (1) whether a nonriparian owner could

103. Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 47
(1938). This case was discussed in greater detail under General Development of
the Riparian Doctrine, ante.
104. See note 35.
105. The Court also noted that he had failed to allege or present evidence of
any prescriptive rights to irrigate from the stream. (See Prescriptive Rights,
Spott) Certain other aspects of the ease are discussed under Development of the
Riparian Doctrine, ante, Definition of Riparian Land, etc., ante, and Pollution,
post.






LAW OF WATER ALLOCATION


acquire any legal rights to use of the watercourse by obtaining permission
from a riparian owner, and (2) whether riparian rights which accompany
the ownership of riparian land would extend or attach to another tract of
land, not in contact with the watercourse, which had beenipurchased sep-
arately by the complainant's landlord. 106
Nothing was expressly said by the Court as to whether irrigation is a
proper type of riparian use. It simply concluded that the complainant
hadn't adequately alleged or proved that he had any right to use the stream,
and had brought the damage on himself by unlawfully taking water from it.
The Court added that: "Therefore, the plaintiff has not shown that he or
his lessor have a right to have the waters of Beaverdam Creek flow with
undiminished quantity and unimpaired quality."107 This had direct refer-
ence only to the question of quality (pollution). Whether the Court meant
to imply that a riparian landowner may not materially diminish the quan-
tity of the flow by irrigation or otherwise is problematical.
The serious implications of the Young case for farm irrigators is ob-
vious. As a minimum precaution, they would do well to take care that the
land irrigated has actual contact with the watercourse to help avoid con-
sequences similar to those in this case.108

Administrative Permits for Irrigation.*
The North Carolina Legislature enacted a statute in 1951 that provides:
Any person, firm, or corporation utilizing waters of North Carolina taken from
the streams, rivers, creeks or lakes of the State in such an amount as to sub-
stantially reduce the volume of flow thereof for the purpose of irrigation shall
before utilizing this resource in this manner make application to the Director
of the Department of Conservation and Development for a permit for such use.
Such person, firm, or corporation shall file with the Department of Conservation
and Development a proposed irrigation plan and survey. The Director of Con-
servation and Development is hereby authorized to investigate such a plan as to
safety and public interest and to approve plans and specifications arid issue per-

As this is all that is stated with respect to such permits, it seems

106. See-Definition of Riparian Land and Use on Nonriparian Lands, ante.
107. Young v. City of Asheville, et. al., 241 N.C. 618, 86 S.E. 2d. 408, 415
(1955).
108. Among other considerations regarding irrigation, N.C.G.S. sec. 54-111,
et. seq., expressly permits the formation of mutual associations or companies to
conduct an irrigation business. (Also recall the legislative policy statement regard-
ing protection of water requirements for "agriculture," etc., discussed under the
State's Policies Regarding Water Resources, ante.) But this does not necessarily
mean that the use of any particular source of water for such purpose is lawful.
109. N.C.G.S. sec. 113-8.1.
See in this volume, Discussion: Irrigation permits: North Carolina, Mississippi.







I NORTH CAROLINA WATER LAW 219

questionable whether any substantial legal rights, as against riparian
owners or others, are created in the applicant by the issuance of such a
permit. The statute apparently would not purport to have any substantial
effect upon riparian rights, other than that certain administrative re-
quirements shall be met in exercising any such rights. Moreover, the
statute is silent regarding any penalties or enforcement procedures in the
S event it is not complied with.
No definite regulations or standards have been promulgated to date as
San aid to the administration of the statute. Each permit issued generally
is granted for an indefinite period of time, but contains express reserva-
tions to the effect that: (1) It will be revoked automatically if at any time
it interferes with any institutional or municipal water supply, and (2) it
"will be reviewed with the idea of issuing a new permit should others re-
Squest the use of water from this stream." These reservations are deemed
by the Department to be in conformity with the provision in the statute that
authorizes the Director to investigate the applicant's proposed irrigation
plan "as to safety and public interest."11o While the safeguarding of muni-
cipal water supplies is in line with other legislation favorable to the ac-
quisition and protection of such supplies, discussed later, the Court has
indicated that the use of nonnavigable a watercourse for such purpose
ordinarily is an unlawful type of use, unless the right to do so has been
validly acquired by purchase, condemnation, Or prescription. 11
There have been very few instances in which a permit was issued for
a limited time period. This was done because the permitted had indicated
that he intended later to acquire another source of supply or that he was a
farm tenant who anticipated a later change of circumstances. In such
cases a permit usually was issued for ote year, subject to renewal upon
further investigation.
It would appear that priority in time of application or use has little, if
any, significance under the existing laws, although the statute is silent
about this. A permit has never been denied because of prior permits re-
garding the same stream. Each permit relates to specific land to be irri-
gated as specified in the farmer's application; It is limited to use by the
applicant and is regarded as not transferable.112
Although permits are not expressly made subject to riparian rights,
they are continually held in mind and guarded against. Such precaution
consists primarily in advising the permitted of the risks he is taking in

110. Statements herein regarding the administration of the irrigation permit
system are based primarily upon correspondence and conversations with B. C.
Snow, Chief Engineer, and L. H. Clarke, Engineer, Division of Water Resources,
and upon forms used for making applications and issuing permits.
S 111. See Municipal or Public Water Supply, post.
112. A separate permit is issued for each point of diversion if the applicant
diverts water from two or more watersheds.






220 LAW OF WATER ALLOCATION

ases where several permits already have been granted to others down-
/stream. But the Department has never refused to issue a permit, nor has
it ever revoked or limited a permit once it has been granted. Each per-
mit includes a provision regarding the maximum rate of diversion. This
is based upon the estimated capacity (at peak efficiency) of the irrigation
equipment that the applicant proposes to use, and is estimated to average
around .8 cubic feet per second, or around 360 gallons per minute. Nothing
is included, however, regarding the maintenance of any minimum or other
stream flow for the benefit of those downstream.
The Department generally makes no special effort to determine whether
the applicant is a riparian landowner. Nearly all of the permits have been
issued to persons who owned land in contact with the stream or other
source of water. A permit was not refused, however, in the small number
of instances where it was known that none of the land to be irrigated was
in contact with the stream. It is generally assumed in such cases that the
user has or will have, prior to use, obtained a right-of-way from the ri-
parian landowner for the passage of the water over or under his land.
The applicable legislation contains no definition of a stream or other
source of water to which it applies. The Department regards a natural
channel with a defined bed and banks as a stream even though it may flow
only in certain seasons, and a small proportion of its permits have been
issued with respect to such "streams."113 Most of the permits issued re-
late to relatively small streams. Very few relate to streams large enough
to be considered navigable by the Department.114
No objections regarding the Department's procedures had been made
to it in connection with any of the permits (more than 760) which had been
Issued by August 1, 1956. Although the relevant legislation was passed in
1951, only a few applications for permits were received prior to the mid-
dle of 1954, partly because of the farmers' lack of knowledge about the ex-
istence of the legislation.
There being no express provisions for enforcing the statute, the De-
partment makes no attempt to enfnrrp ompli-ance wi its terms. It is es-
timated that there are numerous farmers covered by it who have not
applied for a permit, and that others may be violating their permits. One
beneficial result of the legislation, however, has been the assembly of in-
formation, albeit incomplete, regarding the location of several farm irri-
gators (all who have been issued permits), their source of supply, the size
and type of equipment to be used, crops to be irrigated, and so on.
Ordinarily the Department does not have a personal inspection made of
an applicant's location, situation, and proposed use. Instead, it bases its
determination primarily upon the information supplied by the applicant.

113. But the use of an underground stream has been deemed not to be subject
to this legislation.
114. Rights in and to use navigable waters are considered later.






NORTH CAROLINA WATER LAW


Certain additional information may be obtained from the U.S. Soil Conser-
vation Service in cases where it has provided technical assistance in the
construction of a dam, pond, or other structure. Lower riparian owners
normally are not contacted or given notice of the application, nor is any
hearing held thereon, as the statute does not require it.
The largest problem in processing applications is the number of incom-
plete applications that require additional correspondence. Aside from
such cases, a permit is normally issued within a week after the applica-
tion is received. The frequency of applications is seasonal in character.
But no serious log jam in processing them has been encountered, and there
currently is no backlog. This work requires about one or two days a week
of one person's time in the Department. The Department makes no charge
for processing applications or issuing permits. The farm irrigator needs
only to supply certain information concerning his source of supply, the
type and size of his irrigation equipment, and the acreage and crops to be
irrigated.
Frequently, two or more permittees are located on the same stream
or a tributary thereof. About 44 permits have been issued to irrigate V
from the Little River and its tributaries, mostly by pumping directly from
the stream. This stream normally is in the neighborhood of 25 feet in
width and has a drainage area of about 316 square miles at its confluence
with the Neuse River. Four millcams are also located on the stream, two
of which are still in use (for grist mills). But the Department is not aware
of any conflicts that have arisen as yet regarding the use of the stream.
The milldams apparently help to provide a stable and sufficient stream
flow.
Each permit issued indicates the source of water but provides little or
nothing about the erection of any dam in the stream to form a pond or
other structure for facilitating itS use for irrigation purposes. In a num-
ber of instances, a dam has been erected and a pond has been built either
in the stream bed or nearby, and a part or all of the stream flow diverted
or pumped into it. Such a pond often may be used for other purposes in
addition to irrigation. In some cases, a dam and a pond already had been
Constructed before the application to use the water for irrigation was re-
ceived. The Department does not regard its authority to issue permits
for irrigation to include any control over the construction of dams, ponds,
or other structures.11s
Recall that the applicable statute only requires that a permit be ob-
tained when the irrigation will "substantially" reduce the volume or flow
of any stream or lake. This would mean that it may be unnecessary to

115. In cases where a pond has been constructed, it may need to meet require-
Sments of the State Board of Health or its local counterparts with respect to health.
(See Pollution, post.) Requirements regarding the construction of dams are dis-
cussed under Detention or Obstruction of Water with Dams, etc., post.







222 LAW OF WATER ALLOCATION

obtain a permit to use some of the larger streams or lakes for irrigation,
or where there would otherwise not be a substantial reduction of the vol-
ume or flow. The Department has developed no criteria for determining
what constitutes a "substantial" reduction. (For example, does this mean
under normal circumstances, or is a permit to be required even if the
irrigation has or conceivably may cause such a reduction only during a
severe drought or just what?) The Department has never ruled it unneces-
sary for certain applicants to obtain a permit on the ground that the vol-
ume or flow would not be substantially reduced. The writer is informed,
however, that it may so rule in some cases in the future.
It is doubtful whether an application for a permit, or its issuance,
could be used as evidence tending to show that the stream flow would be,
or was being, substantially reduced by the irrigation. It seems likely that,
if doubt arises concerning this matter, a permit often would be requested
to be on the safe side, and no application has been refused.116 Moreover,
issuance or denial of a permit would not appear to have much evidentiary
value on the question of whether irrigation is a reasonable use in a partic-
ular case. Apparently, the application is to be judged solely or primarily
by its effect on "safety and public interest." This has been construed by
the Department to include its effect upon the private rights of other ri-
parian owners. But a permit always has been granted, although it is sub-
ject to possible modification if another later requests a permit to use the
same stream.
Nothing was said by the Court in the recent case of Young v. City of
Asheville, et. al., discussed above, as to whether the farm irrigator or
his landlord had applied for or obtained a permit from the Department of
Conservation and Development to irrigate from the stream. 117 This pos-
sibly might have had some, although little, evidentiary value on the ques-
tion of the legality of the use.118 It was not shown to what extent the

116. If it turns out that the stream flow never is, or generally isn't, substantial-
ly reduced by the irrigation, the permit issued perhaps has no legal effect, at least
until such reduction does occur.
117. The Court at one point quoted Corpus Juris regarding the factors a party
should allege if he claims as an appropriatorr." Young v. City of Asheville, et. al.,
241 N.C. 618, 86 S.E. 2d. 408, 415 (1955). The Court was talking about prescriptive
rights, however. It is very doubtful whether the Court was referring to any possible
appropriation via a permit from the Department of Conservation and Development.
118. But the Court in some pollution cases has indicated that the pollution of a
stream might give a right of action to a lower landowner who was damaged, even
though the discharge of sewage into it had been approved by a State agency. Rhyne
v. Flint Mfg. Co., 182 N.C. 489, 109 S.E. 376, (1921); Donnell v. City of Greensboro,
164 N.C. 330, 80 S.E. 377 (1913); Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407,
409 (1926). (See Pollution, post.)
Particularly if the riparian doctrine permits no substantial reduction of the flow
in diverting it for irrigation purposes, which is problematical, a permit from the







NORTH CAROLINA WATER LAW


diversion of water from the stream had reduced its flow or volume. If it
had been substantial a permit would have been required to comply with the
statute. The writer is informed, however, that no such permit had been
applied for.
The granting of a permit possibly might provide some measure of as-
surance against later legal action by the State for any alleged interference
with public rights or interests in such waters, such as the protection of
navigation and fish life, or pollution control measures. However, the De-
partment ordinarily neither takes into account nor expressly provides for
Such considerations in issuing its permits. It does not check with any
other State encies such as the Stat
Wildlife Resources commission, before it cpn-
sierssriter ressuace o a permit to a farm irrigator to be
limited to "safety" and ptiblic interest, with the latter term nterpreted
as providing or tavoor v r dntnn ,n,- r-pn r m iasLjghts of
other landowners. Te statutes on pollution control do not expressly auth-
orize limitations on consumptive water use, nor apparently have limita-
tions actually been imposed for such purposes. (See Pollution, post.)
Other State agencies might request the Department to deny or rescind a
permit in certain cases. But, the permits issued expressly provide only
for their modification or cancellation when institutional or municipal water
supplies are endangered or when other applications to irrigate from the
same stream are later received.
It is doubtful whether the Legislature's bread-declaration of policy in
1955 regarding water resources, discussed earlier, would have any very
substantial effect upon the administration of irrigation permits, except
perhaps that it may provide somewhat more specific criteria for deter-
mining what is in the "public interest."

iOther Agricultural Purposes

In some cases the Court has stated that a reasonable use of stream
waters may be made for "agricultural purposes," without further amplifi-
cation concerning what this term might include.119 In some other cases,
recovery was allowed for the lowered value of riparian farmland caused
by another's use or pollution of a watercourse. Generally, any particular
uses that had been or might be made of the water were not indicated,120

State may afford no protection against other riparians. On the other hand, a permit
apparently would be required even though there is no evidence of actual or poten-
tial damage to lower owners, which perhaps would be necessary for them to re-
cover against the irrigator under the riparian doctrine, as discussed above.
119. See, e.g., Walton v. Mills, 86 N.C. 280, 282 (1882).
120. See, e.g., Eller v. Bd. of Education, 242 N.C. 584, 89 S.E. 2d. 144 (1955);
Donnell v. City of Greensboro, 164 N.C. 330, 80 S.E. 377 (1913); Veazey v. City of







224 LAW OF WATER ALLOCATION
4
although commercial dairy or other livestock uses were protected against
pollution of needed drinking water in some cases.121

Mining

Mining is another use of natural watercourses that has been dealt with
to some extent by the State's Supreme Court, and also by the Legislature.
In the case of Walton v. Mills (in 1882), an upper riparian owner along
a stream was in the process of constructing canals to divert a part of the
waters to use inr gold-washing operations. A lower riparian owner re-
quested an injunction against such construction and diversion which it was
claimed would injure his mills, the gold mines he contemplated construc-
ting, and other uses of his lands. The Court said: "The reasonable use of
the water as it passes in its onward course so that no damage is done by
withholding it, is the rule by which the rights of riparian owners are regu-
lated."122 The Court added: "Though he may use the water while it runs
on his land, he cannot unreasonably detain it, or give it another direction,
and he must return it to its ordinary channel when it leaves his estate."
The Court went on to say that:
This new industry of gold washing may from necessity require some modification
of the general law, since for mill and mechanical purposes the use of the passing
water as a moving power does not destroy, or in any considerable degree, reduce
the volume which still flows on for the use of others. The diversion for gold
washing, often at remote points, involves its total loss to others. How these con-
flicting industries are to be reconciled may present a problem not easy of solu-
tion upon the rule hitherto established. But the question does not arise and we
now simply decide that there is error in continuing the injunction, but without
prejudice to the plaintiffs' right to move for it hereafter when the case then pre-
sented will admit.123
The Court held it improper to grant a preliminary injunction on the
grounds that there had been no injury as yet and also by invoking the bal-
ance of convenience doctrine, which is discussed later.124 The defendant
had more than 2,000 acres of land which he intended to use for gold mining,
but no question was raised as to whether all of this land was riparian land.
It is conjectural whether today the Court would adopt a rule of law that
would facilitate the use of water in mining operations to a greater extent

Durham, 231 N.C. 357, 57 S.E. 2d. 377 (1950); McKinney v. Deneen, 231 N.C. 540,
58 S.E. 2d. 107 (1950); Sink v. City of Lexington, 214 N.C. 548, 200 S.E. 4 (1938);
Dunlap v. Carolina Power Co., 212 N.C. 814, 195 S.E. 43 (1938); and Koone v. Caro-
lina Mountain Power Corporation, 217 N.C. 286, 7 S.E. 2d. 565 (1940).
121. See note 98.
122. Walton v. Mills, 86 N.C. 280, 282, (1882).
123. Walton v. Mills, 86 N.C. 280, 285 (1882).
124. See Balancing of Interests, Equities, or Conveniences, post.







NORTH CAROLINA WATER LAW


than the rule the Court found it unnecessary to depart from in the Walton
case. The Court made no reference to certain legislation, dating from
1871, which currently provides that those "engaged or about to engage in
mining" may institute special court proceedings, akin to condemnation, to
acquire needed rights to convey water to or from their mines over the
lands of others.125
Kaolin and mica miners also are given by statute the 'right to allow
the waste, water, and sediment to run off into the natural courses and
streams."126 This might permit discharge of such waters into a different
stream from which the water was taken (contrary to the rules stated in
the Walton case) which would have a different effect on lower riparian
owners on each stream than if the waters were returned to the same
stream. In a 1950 case, the Court raised some question about, but did not
decide, the validity of this statute.127 It did suggest, however, that the
statute would not relieve such miners from liability to pay for any dam-
ages caused by such pollution (and has directly so held in a 1956 case128)
although it possibly might give them immunity against an injunction. (See
Pollution, post.) The defendants were alleged to be carrying on mica min-
ing, pumping water from a watercourse to their nonriparian lands to use
in their mica-washing machines, and discharging the wastes into the wa-
tercourse, causing the mud to obstruct the ford and spill over onto the
farmland of a riparian owner below. The Court held that the complaint
stated a cause of action but only discussed the pollution question. It did
not discuss the miners' rights to use the stream as the source of their
water supply.129

i Municipal or Public Water Supply

The right of a municipality, solely as a riparian landowner, to take wa-
ter from a nonnavigable watercourse to supply its inhabitants with water
for drinking or other purposes appears to have been generally denied in
the case of Pernell v. City of Henderson, decided in 1941.130 The right to


125. N.C.G.S. sec. 74-25, et. seq.
126. N.C.G.S. sec 74-31. Legislation of this type was first enacted in 1917.
127. McKinney v. Deneen, 231 N.C. 540, 58 S.E. 2d. 107 (1950).
128. Phillips v. Hassett Mining Co., 244 N.C. 17, 92 S.E. 2d. 429, 433 (1956).
The suit was to obtain compensation for the alleged discharge of silt from mica
mining which allegedly caused soft mud deposits to prevent the use of a ford down-
Sstream and cover a part of the complainant's farmland with inferior soil.
129. This and the Walton case are discussed under Definition of Riparian Land
and Use of Water on Nonriparian Lands, ante.
130. Pernell v. City of Henderson 220 N.C. 79, 16 S.E. 2d. 449 (1941); later
decision in 21 S.E. 2d. 902 (1942). The City was also sued for polluting the stream.
(See Pollution, post.)


i







LAW OF WATER ALLOCATION


make such uses had also been denied in some earlier cases, but without
as much explanation of the principles on which such use was held to be un-
lawful.
In the Pernell case, a lower riparian owner sued the city for damages
resulting from a lowering of the water level so as to make the operation
of his mill unprofitable. The city's diversion of the water was by means
of a dam and reservoir from which water was pumped through mains to
the city and distributed "to the inhabitants and users through a water sys-
tem in the usual way." The defendant city alleged that the complaint did
not state a cause of action, partly on the grounds "that it appears from
the complaint that the defendant is a municipality, distributing to its in-
habitants for domestic purposes, the water it diverts, which it has the
right to do as a riparian owner, without accountability to plaintiff, so long
as its use for such purpose is reasonable, even though it takes the entire
flow."
The Court rejected this argument,131 stating that:
It has been held with practical unanimity that a municipal corporation, in its
construction and operation of a water supply system, by which it impounds the
water of a private stream and distributes such water to its inhabitants, receiv-
ing compensation therefore, is not in the exercise of the traditional rights of a
riparian owner to make a reasonable domestic use of the water without account-
ability to other riparian owners who may be injured by its diversion or diminu-
tion. "The use of the waters of a stream to supply the inhabitants of a munici-
pality with water for domestic purposes is not a riparian right" 67 C.J. 1120.
"The weight of authority holds a municipal corporation civilly liable for
diverting the waters of a private watercourse for the purposes of a public water
supply, either with or without legislative authority"... Conceding that those who
own the banks of a stream may, for their own convenience, contrive and use
facilities and devices for distribution of water amongst themselves for such
purposes, withdrawing from the flow needful quantities, that situation is not
presented by the typical construction and use of a water supply system by a
muncipality as in the case at bar, which impounds the water in suitable reser-
voirs, pipes it in large quantities into the city, and distributes and sells it to
consumers for any purpose whatever for which it may be used. It could hardly
be contended that these users are riparian owners, or that they could invest
the city, as representative, or in the role of parents patriae, with rights in that
respect which they themselves did not have.

The Court's references to (1) the sale of water by the city (2) for any
purposes and (3) the use of reservoirs, were not otherwise stressed.132


131. The Court also rejected the argument that the law prefers the use by a
municipality over the use for manufacturing purposes by lower owners.
132. The first consideration possibly might mean that the use of water by the
city in such governmental functions as fire protection would have a better standing






NORTH CAROLINA WATER LAW


It may be doubted whether any of these factors were controlling in the
Court's decision in view of the further statement that:
The precise question raised by defendant is dealt with by a leading authority as
follows: "The rule giving an individual the right to consume water for his do-
mestic needs is founded upon the needs of the single individual and the possible
effect which his use will have on the rights of others, and cannot be expanded
so as to render a collection of persons numbering thousands, and perhaps hun-
dreds of thousands, organized into a political unit, a riparian owner, and give
this unit the right of the natural unit. The rule, therefore, is firmly established
that a municipal corporation can not, as riparian owner, claim the right to sup-
ply the needs of its inhabitants from the stream." Farnham, Water and Water
Rights, Vol. 1, p. 611. ...This court is an accord with the rule.133
The Court did not consider how much, if any, of the water removed by
the city was returned to the stream from which it was taken, in the form
of sewage or otherwise. Some of the water, after use, possibly may have
been discharged into a different stream, or at some point below the com-
plainant's land along the same stream. Either of the two latter possibili-
ties would have involved a highly consumptive use of the water so far as
the complainant was concerned. But the Court appears to have been con-
cerned largely with the nonriparian character of the use in reaching its
decision.
In some earlier cases, the Court had held a city or town liable to pay
damages for using a watercourse, but without much discussion of the prin-
ciples involved. In a case in 1900, the Court treated the diversion of water
from a stream by a water company to supply a city as an unlawful use
Although without indicating just why it was unlawful.13' The Court noted,

than the sale of water to the city's residents. The second consideration might also
mean this and, in addition, mean that sale for residential purposes (akin to domes-
tic use) might have a better standing than sale for industrial or other commercial
purposes. But no such distinctions were discussed. (See Condemnation and Related
Proceedings, post.)
133. Pernell v. City of Henderson 220 N.C. 79, 16 S.E. 2d. 449, 450-451 (1941);
later decision in 21 S.E. 2d. 902 (1942). In this later action, some inhabitants of
the City sought to intervene in the case either on the grounds (1) that they were
taxpayers upon whom would fall part of the cost of any damages assessed, or (2)
that the city held and operated the riparian land and water works in trust for their
benefit. But the Court concluded that the city was the proper defendant and they
were not necessary parties to the action.
134. Geer v. Durham Water Co., 127 N.C. 349, 37 S.E. 475, 476 (1900). The
Court simply cited two earlier cases, neither of which dealt with municipal water
supply, and indicated that Williamson v. Canal Co., 78 N.C. 156 (1878) was directly
in point. But that was a case of diversion of water through a canal to drain lands,
S which reduced the flow of the stream to a lower riparian owner's mill. The Court
in that case indicated that there would be liability for any material injury to a






LAW OF WATER ALLOCATION


however, that the city was a quasi-public corporation and such use by it
would not be enjoined because of public interest and safety. But the Court
held that, on principles of equity, permanent damages should be awarded
for any damages suffered by the lower riparian owner in the operation of
his mill on account of a diminished stream flow. The Court said that this
would be the equivalent of acquiring a right to use the stream by condem-
nation. 13
In a case in 1924, a lower riparian landowner recovered permanent
damages of $100, representing the decreased value of his land, as a re-
sult of a town's diversion of water from a stream for a water supply.136
The Court adhered to the rule that each riparian owner is entitled to make
a reasonable use of a watercourse and held that the use by the defendant
city was unreasonable and that it had been properly required to pay dam-
ages. The complainant apparently was suing on the grounds that the town
had "unreasonably diverted" the stream, rather than questioning its right
to make any use of the stream. The town's diversion was by means of a
permanent dam, but this was not discussed by the Court, although in the
lower court it may have been a part of the basis for awarding permanent
damages. 137
In a case in 1926, a lower riparian millowner recovered $4,000 as per-
manent damages for a town's taking water from a stream which caused a
reduction in the value of his mill and land.138 The Court again held such
diversion and use to be unreasonable, but did not give a reason other than
to state two somewhat conflicting rules of reasonable use (as was dis-
cussed under General Development of the Riparian Doctrine, ante).

lower riparian owner. In the Geer case, the Court held that such diversion had
not ripened into an easement by prescription, apparently because it had not con-
tinued for the necessary 20-year period. (See Prescriptive Rights, post.)
135. See Condemnation and Related Proceedings, post. Whether the city had
condemnation powers for such purposes was not shown, but the Court appeared to
imply that it did not have such powers.
136. Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88 (1924). This
case is also discussed under Condemnation and Related Proceedings, post; General
Development of the Riparian Doctrine, ante; and Time of Use and Effect of Non-
Use, ante.
137. See Condemnation and Related Proceedings, post. For a public water
supply case in which the effect of the construction or operation of a dam and reser-
voir for such purpose was considered by the Court, see Sink v. City of Lexington,
214 N.C. 548, 200 S.E. 4 (1938), discussed under Detention or Obstruction of Water
with Dams, etc., post. Questions regarding the use of navigable waters for public
water supply purposes were discussed in Elizabeth City Water and Power Co. v.
Elizabeth City, 188 N.C. 278, 124 S.E. 611 (1924). See Navigable Waters, post.
For a case involving the use of groundwaters for such purposes see Rouse v. City
of Kinston, 188 N.C. 1, 123 S.E. 482 (1924), discussed under Ground Waters, post.
138. Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407 (1926).






NORTH CAROLINA WATER LAW


The question of a city's right to use water from a stream also was
raised by the Court in an early case in 1906 in which the city sought to
enjoin the pollution of the stream that furnished its supply.139 But the
Court found it unnecessary to decide this question because it held that the
pollution of a stream "from which a public drinking water supply is taken"
could be enjoined at the request of "any person," whether a riparian
owner or not, by virtue of certain legislation. In some other cases, cities
also sought to enjoin the pollution of the streams that furnished their sup-
ply.140 In none of these cases did the city request payment of damages.
The question of a municipality's right to take water from a stream might
well become important in such a case. (See Pollution, post.)
General legislation, as well as special charters and other special legis-
lation, enables several municipalities to provide for their own water sys-
tems and also to distribute water to persons outside their corporate lim-
its. General legislation provides that:
The city may own and maintain its own light and waterworks system to furnish
water for fire and other purposes, and light to the city and its citizens and to
any person, firm or corporation desiring the same outside the corporate limits,
where the service is available, but shall in no case be liable for damages for a
failure to furnish a sufficient supply of either water or light. And the governing
body shall have power to acquire and hold rights of way, water rights, and other
property, within and without the city limits. 141

Legislation enacted in 1955 authorizes boards of county commissioners
to use "surplus funds or any funds not derived from tax sources" to ex-
tend water and sewer lines from any municipality to outlying communities
or locations to promote the public health. This would include locations
where large groups of employees are living near factories and mills and
"where said water and sewerage is necessary to promote industrial pur-
poses."142
This does not necessarily mean, however, that municipalities thereby
have any right to take water from any particular source. To acquire legal
rights to take water from a natural watercourse, they often may need to
purchase or condemn such rights as against all riparian landowners who
may have a cause of action. They might take a chance, however, on the

139. City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453 (1906).
140. Town of Shelby v. Cleveland Mill and Power Co., 155 N.C. 196, 71 S.E.
218 (1911), Town of Smithfield v. City of Raleigh, 207 N.C. 597, 178 S.E. 114 (1935).
141. N.C.G.S. sec. 160-255, as amended. The term "city" includes incorporated
towns and villages. (N.C.G.S. sec. 160-192.) See N.C.G.S. sec. 160-282 which also
gives cities the general right to acquire and operate waterworks. See also Ch. 510,
1955 Session Laws, which authorizes the Town of Roxboro to extend its water and
sewer lines to furnish water and sewer services to industries outside its limits.
142. N.C.G.S. sec. 153-11.2.






230 LAW OF WATER ALLOCATION

possibility that, in the event they are sued, they would not be enjoined if
they pay permanent damages. Moreover, some of them may acquire pre-
scriptive rights as against one or more riparian owners, through long-
continued adverse use. But acquiring a prescriptive right to make a
certain rate (or amount) of withdrawal, based on past adverse use, does
rot entitle a city to increase its rate of withdrawal in the future.143
The Court said in a recent case that:

A municipality which operates its own waterworks is under no duty in the first
instance to furnish water to persons outside its limits. It has the discretionary
power, however, to engage in this undertaking. G.S. par. 160-255. When a mu-
nicipality exercises this discretionary power, it does not assume the obligations
of a public service corporation towardnon-resident consumers. G.S. par. 62-30
(3); 67 C.J. Waters, section 739. It retains the authority to specify the terms
upon which non-residents may obtain its water.....In exerting this authority, it
'may fix a different rate from that charged within the corporate limits'. G.S.
par. 160-256.....When a municipality engages in supplying water to its inhabit-
ants, it owes the duty of equal service in furnishing water only to consumers
within its corporate limits. It is under no legal obligation to supply water to a
resident for resale to others either within or without its municipal limits.
The Court noted that, as the rates applicable to nonresidents applied to
all alike, it was immaterial whether the rates charged the complainant
for water which he resold to an outside village were deemed exorbitant.144
The source of the water (at least part of which was from deep wells) was
not in dispute.145
By virtue of a 1955 amendment, the cost of installing or extending wa-
terworks systems of any city, town, or incorporated village may be as-
sessed entirely against abutting property owners. Previously, this could
be done for sewer systems but apparently not for water systems.146

Water and Sewer Authorities
A statute enacted in 1955 authorizes the formation of an "authority" by
any two or more counties, cities, towns, incorporated villages, sanitary
districts, or other political subdivisions or public corporations of the
State, for the purpose of acquiring, constructing, improving, extending,
maintaining, and operating water and/or sewer systems.147 The writer is
143. See Condemnation and Related Proceedings, and Prescriptive Rights, post.
144. Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E. 2d. 368, 371 (1953). Also
see Halifax Paper Co. v. Sanitary District, 232 N.C. 421, 61 S.E. 2d. 378 (1950)
discussed under Sanitary Districts, below.
145. For another case in which the right to use water for such purposes from
any particular source was not in question, see City of Raleigh v. Edwards, 235 N.C.
671, 71 S.E. 2d. 396 (1952).
146. N.C.G.S. sees. 160-255, 160-241 and 160-242. See sec. 160-192 for defi-
nition of "city."
147. N.C.G.S. sec. 162A-1, et. seq.
i I






NORTH CAROLINA WATER LAW


informed that no such authority has been formed by August 10, 1956, al-
though one was being planned in the vicinity of Greensboro.
The term "water system" refers to facilities and property connected
with the "supply or distribution of water", including "sources of water
supply including lakes, reservoirs and wells ..." It is conjectural whether
water may be legally supplied and distributed for any and all purposes by
such an authority, but there are no express limitations against this. It
would seem that the primary function intended for such an authority is
the supply and distribution of water (and sewerage services) for purposes
that otherwise would be supplied by its member municipalities, if any.
Each such authority "shall be deemed to be a public instrumentality
exercising public and essential governmental functions to provide for the
public health and welfare," with power to fix, revise, and collect rates,
fees, and other charges for its services sufficient to meet all obligations
and expenses.148
An authority may be formed by resolution of the governing bodies of
any two or more political subdivisions, after giving notice to the public by
publication and holding a public hearing. A referendum election need not
be held except to authorize the transfer (via lease, loan, or conveyance)
of existing water or sewer systems, or other property of a political sub-
division, to such an authority, in which event the approval of a majority
of the qualified electors voting at such election is required.149 Each polit-
ical subdivision may enter into contracts with the authority regarding wa-
ter or sewer services to-be furnished by it, or for other relevant purposes.
As such an authority apparently has no power to tax, its funds would be
derived primarily from fees charged for services, from the issuance of
revenue bonds, or from any property transferred to the authority by par-
ticipating political subdivisions.150 Cash contributions may be made by
political subdivisions only to help meet preliminary expenses of the

148. Such rates, fees, and charges shall not be subject to review by any board
or other agency of the State or political subdivision. But if such rates are arbi-
trary they might be subject to review by a court in certain cases. (See Halifax
Paper Co. v. Sanitary District, 232 N.C. 421, 61 S.E. 2d. 378 (1950), as to Sanitary
Districts, discussed later.) Such authority may be sued. Moreover, the level of
rates charged might be taken into account by the State Board of Water Commis-
sioners in determining whether to authorize the exercise of condemnation. Each
authority has certain powers of condemnation but they may be exercised only with
the approval of the State Board of Water Commissioners. (See Condemnation and
Related Proceedings, post.)
149. The approval of the Local Government Commission is also necessary.
150. Authorities may issue revenue bonds to be approved and sold by the Local
Government Commission. Such bonds do not constitute a debt of the participating
political subdivisions, and shall be payable solely from the funds of the authority,
although they may be secured by a trust agreement with any trust company. The
extent, if any, to which such bonds may be purchased by the participating political
subdivisions with tax revenues is problematical.






232 LAW OF WATER ALLOCATION

authority. Any political subdivision in any county in which the authority
has a water or sewer system may join the authority, with or without its
consent. But rights of participating political subdivisions to withdraw
from an authority once it has incurred financial obligations do not appear
to be very clear. The governing body of each authority shall have at least
one member from each political subdivision and one appointed by the Gov-
ernor. Each is to serve without compensation except for reimbursement
for actual expenses.
"Any riparian owner alleging an injury as a result of any act of an
authority... may maintain an action for relief..." Each authority is re-
quired to provide the State Board of Water Commissioners with informa-
tion on the daily amount of water it takes from "any stream or reservoir."

Sanitary Districts
Sanitary districts may be formed to construct and operate water supply
and sewerage systems.15s The organization, powers, and functions of such
districts are discussed later, under Pollution. The writer is informed that
some 26 sanitary districts were in existence on August 1, 1956. Most of
them were supplying water and some were providing sewerage services.
In a case in 1950, which involved water supplied by a sanitary district,
the Court said that such a public utility could contract to provide water to
a manufacturing company at lower rates than to others, in consideration
of a lease of the company's filtering plant to the district at a nominal cost,
and it also could give the company first claim on the water filtered there,
as the contractual arrangement did not impair its public obligations. The
contract was held to be of a private rather than a public nature. The Court
noted, however, that as to public utility services generally, as well as to
water the sanitary district may have for sale for industrial purposes, the
utility "must serve alike all who are similarly circumstanced with refer-
ence to its system..." The Court noted further that:
It is matter of common knowledge that large amounts of water for industrial
purposes are not usually available from municipally owned water plants. Ordi-
narily water for industrial purposes is provided by the particular industry re-
quiring it or by special contract with the municipality where such municipality
has an adequate supply.152
The source of the water supplied was not in issue.

151. N.C.G.S. 130-33 et. seq.
152. Halifax VPaper Co. v. Roanoke Rapids Sanitary District, 232 N.C. 421, 61
S.E. 2d. 378, 383, 386 (1950). The sanitary district was held not to be subject to
regulation by the State Public Utilities Commission. This is also generally true of
municipal water systems. Town of Grimesland v. Washington, 234 N.C. 117, 66 S.E.
2d. 794 (1951). See N.C.G.S. sec. 62-30.






NORTH CAROLINA WATER LAW


Joint Municipal Water Supply Facilities
A statute enacted in 1955 now permits the joint acquisition, construc-
tion, improvement, maintenance, operation, and financing of water-supply
facilities by two or more municipalities. The statute provides, among
other things, that: "Any two or more municipalities in the State of North
Carolina are hereby authorized to acquire lands and water rights along
any stream, to the extent deemed by them necessary or convenient, for
the purpose of constructing a dam or dams to impound the waters of such
stream in a reservoir or reservoirs, and to construct dams and water
storage reservoirs, and to maintain, improve and operate the same,
jointly, either within or without the corporate limits of such municipali-
ties or either of them..." 153 But this does not necessarily make the use
of streams or any other particular source of water lawful for such pur-
poses. Condemnation or permanent damages procedure often may have to
be used to acquire needed water rights.1s5

Other Public Water Supply Functions
Corporations or cooperatives may be formed to operate water-supply
facilities.'55 Companies organized for public water supply" purposes are
granted certain condemnation powers,156 as are various State or other pub-
lic institutions or agencies.1s5 (Italics supplied.)

Vendibility and Location of Use
The use of water obtained from municipalities, water authorities, sani-
tary districts, and water companies may or may not be limited to a partic-
ular location or purpose by such agency organization, or company, and
may in some cases be allowed to be transferred to others without limita-
tion. Apparently, however, particularly if water taken from a natural
watercourse is used on nonriparian lands, compensation often might be
recovered by lower riparian landowners who may be damaged thereby.
The question of whether or to what extent condemnation or payment of
permanent damages may be validly exercised by municipalities or others
to obtain rights to furnish water for commercial or other nonriparian uses

153. N.C.G.S. sec. 160-191.6, et. seq.
154. See Condemnation and Related Proceedings, post. For questions regarding
dams, see Detention or Obstruction of Water with Dams, etc., post.
155. See N.C.G.S. sec. 54-111 and 54-124, with respect to mutual (cooperative)
associations. They may be formed for water-supply and fire-fighting purposes.
See Corporations and Cooperatives, post.
156. N.C.G.S. sec. 40-2.
157. N.C.G.S. sees. 143-144 and 40-2. See Condemnation and Related Proceed-
ings, post.






234 LAW OF WATER ALLOCATION

is discussed under Condemnation and Related Proceedings, post.158

Other Consumptive Uses

There have been few cases in which consumptive uses of a natural wa-
tercourse, other than for the particular purposes described above, were
involved. The withdrawal of water from a watercourse for the purpose of
watering train locomotives was involved in a case in 1910.159 The Court
indicated that no material diminution of the flow of the stream would be
permissible if this inflicted substantial injury on a lower riparian owner,
in connection with any legitimate use he was making of the stream. On the
other hand, there would be no liability unless the stream flow were appre-
ciably diminished, which would depend partly on the size of the stream.
There being some evidence that any diminution of the flow was not percep-
tible to the naked eye and amounted to only about 1/50 of 1 percent of the
total flowage, the Court held that it was properly left to the jury to decide
whether there was a material diminution. The lower court's denial of any
liability to the complainant, a lower millowner, was affirmed.
Cases involving industrial uses of a watercourse (other than in mining,
already discussed) concerned the detention or obstruction of its waters
with a dam rather than consumptive uses.160 In some of these cases, water
was no doubt diverted through canals or other conduits to run a mill or
power plant, or for other manufacturing purposes, but the question of such
diversion was seldom in issue. At any rate, in most such cases the water
probably was returned directly to the stream, after being so used, at a
point on the stream before it left the riparian owner's land.161 Legal prin-
ciples relating to this type of diversion and use are discussed largely un-
der Artificial Watercourses, post.


158. In the event that water cannot be thus legally supplied, legal recourse
might possibly be obtained in some cases against the supplier if a contract to sup-
ply some definite amount of water for a definite period has been made.
159. Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623 (1910).
160. See Detention or Obstruction of Water with Dams, etc., post. The Court in
some cases involving consumptive uses of water for municipal water-supply pur-
poses has stated incidentally that a reasonable use may be made of a stream for
manufacturing or other purposes, except as occasioned by the reasonable'use of
the stream by other riparian owners. See Smith v. Town of Morgantown, 187 N.C.
801, 123 S.E. 88, 89 (1924). But in the majority of the cases that involve consump-
tive uses of a watercourse, the Court has indicated that no material diminution to
the substantial injury of a lower riparian owner would be permissible. (See General
Development of the Riparian Doctrine, ante.)
161. One exception was Nantahala Power and Light Co. v. Moss, 220 N.C. 200,
17 S.E. 2d. 10 (1941), where the Court held that the diversion of water from a
power-dam reservoir through a tube to a power plant and its return to the stream
at a point below the lands of some lower riparian owners was the proper basis for







NORTH CAROLINA WATER LAW


Detention or Obstruction of Water with Dams, etc.

Damage 'to Property or Use of Property Below.

In the 1938 case of Dunlap v. Carolina Power and Light Co., discussed
earlier,162 the Court indicated that a somewhat different rule might apply in
the case of detention of water in a watercourse with a dam than in the case
of diversion of water from it. While noting that "no material damage" or
"no material dimunition" often had been emphasized in diversion cases,
where water is detained by a dam to the possible injury of lower land-
owners, as in the Dunlap ease, the Court said:

The mere erection of a dam and the use of the water in driving wheels or pro-
viding power must necessarily derange its steady, constant, and natural flow
and substitute a different manner as to the time and mode of holding it up and
letting it down, but the water can be retained for the purpose of the upper mill
if it is not diverted from the stream and the storing of water in a pond or reser-
voir for power purposes is not actionable if it is retained no longer than is
reasonably necessary. The upper proprietor may hold back the water a rea-
sonable time to raise a pond or reservoir, although the effect is to deprive the
lower owner of the use of the water to a certain extent. He may hold the water
back and let it down in such manner as is necessary for the use of his manu-
facturing enterprises if the enterprise is adapted to the character of the stream
and the use is reasonable and the lower proprietor will not be heard to com-
plain on account of the incidental irregularity in the flow of the water.

The Court said that such a right is an implied easement in the right of
using the stream, and that "the water may be detained long enough to ac-
cumulate a sufficient head for manufacturing purposes before it is let
down to the next user. However, the person detaining water must act in a
reasonable manner and not let it off in unreasonable quantities."163 It also
noted that:

The upper riparian owner has no right by virtue of his position unreasonably to
interfere with the natural flow of the stream so as to give the riparian pro-
prietors below a great deal more than the usual quantity of water during a part
of the year, or at stated periods, and little or none during the remainder of the
year or during intervals of unreasonable length.164


condemnation, suggesting that there might otherwise have been liability for such
diversion. The Court incidentally so indicated in Walton v. Mills, 86 N.C. 280, 282
(1882), involving the question of liability for diversion of water for goldmining pur-
poses.
162. See General Development of the Riparian Doctrine, ante.
163. Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 47 (1938).
164. Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 46,
(1938). Repeated, with approval, in Bruton v. Carolina Power and Light Co., 217
N.C. 1, 6 S.E, 2d. 822, 827 (1940), discussed later.







LAW OF WATER ALLOCATION


The Court further said that what constitutes a reasonable use ordinarily
is a question of fact, under all the circumstances. But it held that there
was no evidence of any unreasonable use in the operation of the defendant
company's power dam, as the water was neither unreasonably detained
nor let down in excessive quantities. (The intermittent opening and closing
of floodgates on the dam occurred daily.)
Nevertheless, the Court concluded that, while there was no unreason-
able or negligent operation of the dam, the defendant company could be
held liable to a lower riparian owner for direct damages to his land
caused by the wearing away of the banks of the nonnavigable river along
his land, by reason of its particular location at the juncture of the river
with another river. The Court said that otherwise this might amount to a
taking of such property, without compensation, which it would not allow,
even though the defendant company was making a reasonable use of the
stream.16s
Most of the cases dealing with dams have involved milldams or hydro-
electric power dams. In a case in 1934, which involved a suit against the
owner of a hydroelectric dam for negligently operating it so that the com-
plainant's railroad bridge downstream went out, the Court said that in
cases of escape or overflow of waters caused by dams, even though done
without willfulness or negligence, the owner would be liable for all "direct
and proximate damages," unless he could show that it was caused by a
storm or other agent beyond his control.166 There was no such storm
here. As the case was based on the grounds of negligence, the Court's
statement about liability in the absence of negligence was surplusage. In
an earlier case, the Court held that the defendant could not be held liable
for damage to land below his power dam caused by an unprecedented flood,
where he had not been negligent in the construction or operation of the
dam.167
With respect to liability for unreasonable or negligent conduct, a case
in 1940 involved the same river and dam as in the Dunlap case but a dif-
ferent lower riparian owner. Suit was brought on the grounds of negligent

165. The Court denied any right of recovery, however, for the alleged loss of
enriching deposits of silt and the wearing away of top soil on the lower riparian
land, stating that this was not shown to be caused by the operation of the dam.
166. Kitchen Lumber Co. v. Tallahasee Power Co., 206 N.C. 515, 174 S.E. 427,
428 (1934). For a case of willful damage to a lower owner by the operation of a
dam, see Kelly v. Sett, 35 N.C. 50 (1851).
167. Rector v. N.C. Electrical Power Co., 180 N.C. 622, 105 S.E. 422 (1920).
Also see the Court's incidental statement in Teseneer v. Henrietta Mills Co., 209
N.C. 615, 184 S.E. 535, 539 (1936) to the effect that the owner of a dam is not to be
held liable for damages below or above the dam caused by "inevitable accidents"
or "extraordinary freshets." The case involved the flooding of lands above the
dam by ordinary flood waters, discussed later.







NORTH CAROLINA WATER LAW


operation of the dam. The Court noted that 'an act of God which excul-
pates the owner of a dam must be such an act as constitutes the sole cause
of the injury." It held that the defendant company would be held liable if
it "during flood time, so unreasonably operated the flood gates to its dam
i that the flood water below the dam was suddenly accelerated and the quan-
S tity flowing from the dam was so excessively increased as to cause the
lands of the plaintiffs to overflow, resulting in extensive damage to the
lands and the crops thereon."168 But the Court found that there was no
evidence tending to prove this and (after quoting some of the language
from its opinion in the Dunlap case) concluded that:
Although the works of the defendant were lawfully and rightfully in the stream
and the defendant had the right to make reasonable use of the water thereof in
the operation of its plant, it should be held for such damages as results from
its negligent and careless manipulation of the unusual flow of water during a
freshet or its negligent failure to use reasonable care in anticipating flood con-
ditions or in failing to use reasonable diligence in guarding against any undue
acceleration or retardation of flood water resulting from an unusual rainfall....
However, in determining whether the owner of a dam has failed to exercise
ordinary care to project the rights of a lower riparian owner, due regard must
be had for its correlative duty to protect upper riparian owners against any un-
due retardation of the floodwaterr.19 (See Damage to Property or Use of
Property Above, post.)

In an earlier case a large dam, built across a stream to create an ar-
tificial lake, burst and damaged a lower bridge owned by the county. Suit
* was brought on the grounds of negligence, either in construction of the
dam or in failing to maintain it. The Court said that the degree of care
taken by an "ordinarily prudent man" would be the test. The fact that the
break occurred during flood times would be no defense unless it was the
sole cause of the damage, unaided by any negligence on the part of the
defendant.170
In another case, the Court held that there was sufficient evidence of
4
168. Bruton v. Carolina Power and Light Co., 217 N.C. 1, 6 S.E. 2d. 822, 827-
828 (1940).
169. Ibid.
170. Supervisor, et. al. v. Jennings, 181 N.C. 393, 107 S.E. 312 (1921). The
Court did not expressly consider the question of extraordinary floods. In Jackson
v. Kearns, 185 N.C. 417, 117 S.E. 345 (1923), the owner of a dam had allowed it to
break in some places and water poured into and over the complainant's lower land
whenever there was a "freshet." The Court, in holding that he should be held liable
for these damages, said that "the upper proprietor has no right to collect the water
and divert it from its natural flow and discharge it upon the land of the lower pro-
prietor." The Court reached the same general result in Porter v. Durham, 74 N.C.
767 (1876), in a case where a pond and swamps were drained into another's lands
by ditching across to them. See Drainage, post.


I _







LAW OF WATER ALLOCATION


negligent operation of the floodgates of a power dam, and consequent dam-
age to a lower riparian owner's land and crops, to be left to the jury to
decide. The complainant had alleged, and there was some evidence, that
during flood times the power company had allowed the pond behind its dam
to completely fill up and then opened its floodgates and let down an exces-
sive quantity of water past the lower land, so as to flood it and cover it
with mud and sand.171
In cases of direct damage to lower lands by flooding, etc., the same gen-
eral principles regarding liability ordinarily would appear to apply,
whether the damaged lands are riparian or nonriparian. But legal actions
for withholding water and depriving lower landowners of its use probably
may generally be brought only by riparian landowners.172

Damage to Property or Use of Property Above

The Court often has held or said that for the actual flooding of another's
lands above, he would be entitled to damages, generally without regard to
whether the construction and operation of the dam were unreasonable.173
However, in a case in 1938 where there was no actual flooding although
the water was backed up so near to farmland that drainage was impeded,
the Court indicated that liability would depend upon whether such interfer-
ence with the flow of the stream by the lower dam was found by the jury to


171. Koone v. Carolina Mt. Power Co., 217 N.C. 286, 7 S.E. 2d. 565 (1940).
172. See Definition of Riparian Land and Use of Water on Nonriparian Lands,
ante. Powers of condemnation which may be exercised for various purposes, by
millowners, power and light companies, and other groups, are discussed under
Condemnation and Related Proceedings, post. The Court in Nantahala Power and
Light Co.v. Moss, 220 N.C. 200, 17 S.E. 2d. 10 (1941) held that the diversion of
water from a power dam's reservoirs through a tube to a power plant and its return
to the stream at a point below the lands of lower riparian owners was the proper
basis for condemnation.
173. Chaffin et. al. v. Fries Mfg. and Power Co., 135 N.C. 95, 47 S.E. 226
(1904), Little v. Stanback, 63 N.C. 285 (1869), and Clark v. Patapsco Guano Co.,
144 N.C. 64, 56 S.E. 858 (1907) (case of destruction of an upper dam by a lower
one). In Pugh v. Wheeler, 19 N.C. 50, 57 (1836) the Court said: "If such be the law
in reference to diverting a water-course above, so that a proprietor below is
deprived of some of the uses of the water to which he may apply and is endeavor-
ing to apply it, much more clearly is the proprietor above entitled to recover when
the water is obstructed below. In this last case, the owner above is not only de-
prived of the use of the water, to which he is entitled naturally, as well as others
above or below him, but the water is thrown out of the natural channel, and by being
raised, covers a part of his soil, which the natural current of the stream would
not touch. Now, no person can, for the sake of giving himself a use of the water,
justify throwing it back upon the land of another, os as to deprive him of any use







NORTH CAROLINA WATER LAW 239

be unreasonable under the circumstances.174 This distinction was later
affirmed in a case in which it was alleged that a dam impeded the flow of
a stream so as to impede the drainage of upper farmland.17s
In an early case (in 1836) the Court stated that if upper lands are actu-
ally flooded the fact that such flooding occurred only during flood periods
was no defense, but would serve only to reduce the amount of damages.176
Moreover, the Court in a later case (in 1917) held that where an upper
owner's lands were flooded or their drainage impaired, he had no obliga-
tion to attempt to mitigate the damages by draining his lands.177
In a 1926 case the Court indicated that, if the obstruction of a stream
with a dam had aggravated the degree of pollution of the stream, the owner
of the dam might be held jointly liable with the upstream polluters for the
resulting damage.178


of his land, whether for cultivation, the erection of machinery, or other buildings.
Ponding water back on land above, seems to be so clear and direct an invasion of
the proprietary interest in the land itself, independent of the right to use the water,
as certainly to be a good cause of action."
Nevertheless, the Court in Teseneer v. Mills Co., 209 N.C. 615, 184 S.E. 535,
539 (1936), where there was evidence that a power dam caused a stream to flood,
discharge sand upon, and impair the drainage of upper farmland, the Court noted,
quoting 27 R.C.L., p. 1103, that while the owner of a dam has a duty to use reason-
able care and skill in operating it so that no one above or below the dam will be
injured in times of ordinary and expected floods, he would not be liable for damages
caused by "inevitable accidents" or "extraordinary freshets," which could not be
anticipated or guarded against. The latter statement appears to have been largely
incidental rather than a direct ruling, as it was not claimed that there were any
extraordinary floods involved.
174. Sink v. City of Lexington, 214 N.C. 548, 200 S.E. 4 (1938). A somewhat
similar situation was involved in Darr v. Carolina Aluminum Co., 215 N.C. 768, 3
S.E. 2d. 434 (1939) where a dam caused collection of sand, debris, and growth
which impeded the drainage of upper farmlands. But recovery was denied because
the complainant was found to have no legal right to drain his lands through a ditch
S across another's land.
175. Forest City Cotton Co. v. Mills, 219 N.C. 279, 13 S.E. 2d. 557 (1941), re-
hearing of 218 N.C. 294, 10 S.E. 2d. 806 (1940). The former decision was reversed,
on finding the facts to be different than was earlier assumed. There were two dis-
senting judges. In Judge Clarkson's dissent, he appeared to say that a different rule
should be applied to damages above than to those below the dam, and that at least
nominal damages should be awarded for any damage above the dam even though
there were no actual floodings. (This case involved a suit for permanent damages.)
176. Pugh v. Wheeler, 19 N.C. 50, 53 (1836).
177. Borden et. al. v. Carolina Power and Light Co., 174 N.C. 72,93 S.E. 442 (1917).
178. Moses v. Town of Morgantown, 192 N.C. 102, 133 S.E. 421 (1926), dis-
cussed under Pollution, post. Also see Cline v. Baker, et. al., 118 N.C. 780, 24
S S.E. 516 (1896).
[.






240 LAW OF WATER ALLOCATION

A case in 1914 involved an action to enjoin the construction of a multi-
million dollar dam at the Narrows on the Yadkin River, which presumably
was to be built mainly for the generation of electric power for the owner's
industries and town. An upper riparian owner claimed that his lands would
be flooded and his mills damaged. Notwithstanding the rather strict rules
invoked in such cases, as discussed above, an injunction was refused,
mainly on the grounds that the alleged injury was conjectural, and also by
invoking the balance of convenience doctrine for the benefit of an enter-
prise considered to be beneficial to the public. (A similar position has
sometimes been taken where milldams or certain other enterprises were
said to be of benefit to the public.)179 The Court stated that as the dam was
being built under "express legislative authority" (presumably a special act
of the legislature) it "is a lawful structure per se and cannot be restrained
as a public or private nuisance," although any damages should be compen-
sated.180 The Court qualified this, however, by saying that the proposed
height of the dam might later be abated somewhat on behalf of the com-
plainant if the facts warranted this. At any rate, this would not appear to
preclude later actions for any damages caused by the unreasonable or neg-
ligent operation of such a dam."81

Significance of Ownership of Bed and Banks
Before a riparian owner may lawfully erect a dam, he generally
must have acquired ownership of the bed and both banks of the bed
and both banks of the watercourse upon which the dam is to be placed,
or have obtained a valid easement to do so from others who own such
lands. Such ownership or easement may be obtained by condemnation for
particular purposes, (discussed later), such as for certain milldams, pow-
er dams, or dams for public water supply purposes. In an early case in
which a riparian owner had built a milldam across a stream onto the lands
of the opposite owner merely with his verbal permission and without in-
voking such condemnation powers, the Court held that the opposite owner
could later withdraw such consent and have the dam removed. 182

179. See Balancing of Interests, Equities, or Conveniences, post.
180. Tucker and Carter Rope Co. v. Southern Aluminum Co., 165 N.C. 572, 81
S.E. 771, 772 (1914). It was not shown whether the defendant company had any con-
demnation powers. Legislation and court decisions relating to the employment of
condemnation an'd related proceedings to obtain permanent or temporary rights to
flood upper or lower lands for milldam and certain other purposes are discussed
later, under Condemnation and Related Proceedings.
181. See discussion of Bruton v. Carolina Power and Light Co., 217 N.C. 1, 6
S.E. 2d. 822 (1940), under Permanent Damages, post.
182. Kivett v. McKeithan, 90 N.C. 106 (1884). The Court held that he could law-
fully tear down the dam after requesting the owner of the dam to do so and affording
him a reasonable opportunity to remove same. It indicated that it might so hold even







NORTH CAROLINA WATER LAW


It would appear that the original grant from the State of riparian land
along one side of a stream ordinarily carried title out to the thread of the
stream, and that subsequent transfers of ownership of such riparian land
also have carried title to such point if the deed simply called for the
Stream as the boundary.183 But in some instances, title to a part of the
bed of a watercourse may be held by someone other than the adjoining
landowners.
The Court in an early case held that a riparian owner on one side of a
nonnavigable part of a river was alone entitled to fish in it to the middle,
and could recover against another for fishing in such waters.184 But in a
Case in which two opposite riparian owners each held title to the bed of a
stream on his side of the middle, the Court, after extensive litigation, held
that one of them could not lawfully build a wing dam out to the middle of
the stream without the other's consent and draw off half of the flow through
canals or flumes for hydroelectric power purposes, even though the water
thus removed from the stream were returned to the stream before leaving
his land. The Court concluded that each such riparian owner "is entitled
Sto the whole bulk of the stream, undivided and indivisible."185

if payment were made for the privilege (although all or some part of such payment
might have to be restored or compensated), construing legislation regarding the
need for a written agreement. See N.C.G.S. sec. 22.2. See also Bridges v. Purcell,
18 N.C. 492 (1836), and Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625 (1924).
183. See discussion of cases on this under Boundaries of Watercourse and
Related Matters, post.
184. Ingram v. Threadgill, 14 N.C. 59 (1831). See also dicta to this effect in
State v. Glen, 52 N.C. 321, 325, 326, 330 (1859).
185. Blue Ridge Interurban Ry. Co. v. Oates, 164 N.C. 167, 80 S.E. 398; Blue
Ridge Interurban Ry. Co. v. Hendersonville L. and P. Co., et. al., 169 N.C. 471,
86 S.E. 296 (1915); 171 N.C. 314, 88 S.E. 245, 246-247 (1916) (with 2 dissenting
judges), affirmed by the U.S. Supreme Court in Hendersonville Light and Power Co.
v. Blue Ridge Interurban Ry. Co., 243 U.S. 563 (1917). The case mainly involved
the question of the complainant's right to condemn the defendant's property inter-
ests for the purpose of acquiring the right to build a dam across the stream. (See
Condemnation and Related Proceedings, post.)
This case incidentally raises some questions as to whether the owner of land
along only one side of a stream may remove without the aid of any dam any part of
the water for domestic, irrigation, or other consumptive purposes, by pumps or
Through canals, without the consent of the opposite owner. In a concurring opinion
Sin 88 S.E. 245, 247, Judge Allen (approved by Judge Brown, at p. 246) approved the
rule laid down in Angell on Water Courses, sec. 100 as follows: "Whenever a water
course divides two estates, the riparian owner of neither can lawfully carry off any
part without the consent of the other opposite; and each riparian owner is entitled,
not to half, or other portion, of the water, but to the whole bulk of the stream, un-
divided and indivisible..." But Mr. Angell appears to have been referring mainly
to the question of wing dams. (It was noted that it would be practically impossible







242 LAW OF WATER ALLOCATION

It is problematical whether the holding or acquiring of ownership of
the stream bed by virtue of an express grant from the State provides the
owner of the dam with any special advantages as against other riparian
owners, above or below, who have in no way consented to the construction
of the dam. The Court in State v. Glen (1859) refrained from deciding this
question, but it did decide that where the owner of a milldam had obtained
an express grant of the bed of the stream from the State without any res-
ervations on its use (in addition to earlier separate grants of the adjoining
lands) the State could not make him tear down his dam, without compensa-
tion, to provide free passage for fish in the stream.186 (See Fishing, post.)

Legislation
There is little general State legislation relating directly to the construc-
tion and operation of dams. But there is some legislation relating to dams
and other obstructions in navigable or floatable watercourses, and legisla-
tion providing condemnation or related powers for milldam, power dam,
public water supply, and certain other purposes. There are also some
statutory requirements concerning the leaving of passageways for fish in
dams in certain watercourses.187 One of these statutory provisions pro-
hibits, under penalty of a fine, any dam for mill or factory purposes to be
built or left in any of several designated streams or parts of streams with-
out leaving a fish passageway 3 to 10 feet in width, and according to speci-
fications furnished by the State Board of Agriculture, which, however,
shall be designed not to impair the water power of the dam. This statute
provides further, that: "No other obstruction to the passage of fish shall exist
or be built between the designated points in the streams mentioned" in the
statute unless an opening of not less than 25 nor more than 75 feet, "em-
bracing the main channel of said streams, shall be made by the owner of
such obstructions after notice from the Board of Agriculture to make such

to divert half of a stream's flow without also removing some waters from the other
side. It may have been practicable nearly to accomplish this, however, in the Blue
Ridge situation, owing to the rapid flow of the stream.) Whether an opposite owner's
rights would differ materially from a lower riparian owner's rights is problematical.
Roanoke Rapids Power Co. v. Roanoke Navigation and Power Co., 152 N.C. 472,
75 S.E. 29, 33 (1912), earlier decision in 68 S.E. 190, also involved a wing dam.
But the question of the rights of an opposite owner was not considered. The dispute
involved upper and lower owners along a navigable stream and was held to be con-
trolled largely by special legislation.
186. State v. Glen, 52 N.C. 321, 323, 327 (1859). The Court refrained from de-
ciding whether the stream involved should be considered navigable by small boats.
For questions regarding title to beds under navigable waters see Navigable Waters,
post.
187. See Navigable Waters, Condemnation and Related Proceedings, and Fishing,
post.






NORTH CAROLINA WATER LAW


opening," under penalty of a fine.188 Another statute makes it a misde-
meanor to place a dam (apparently for any purpose) or any other obstruc-
tion more than three fourths of the distance across any "river or creek,"
without providing such fish passageway as may be required by law. It was
* provided in 1951, however, that this shall only apply to inland waters un-
der the jurisdiction of the Wildlife Resources Commission, and not to any
waters classified as commercial fishing waters.189 The Court has noted
that it was usual to build milldams without such passages for fish prior to
legislation in 1787.190
Legislation enacted in 1953 declares it to be a misdemeanor to "fell
* any tree or put any obstruction in any natural or artificial drainage ravine,
ditch or other water outlet which serves to remove water from farm or
agricultural lands" and fail to remove such obstruction within 7 days.191
Broadly construed, this might make it unlawful to place a dam in any na-
tural watercourse that drains agricultural lands, which conceivably might
include practically all natural watercourses. But it probably was intended
to have more limited application, such as only to a temporary and remov-
' able obstruction, or only to a watercourse into which a constructed drain-
age ditch empties, or only to the obstruction thereof at or near its outlet
from a farmer's land, or only if the obstruction actually impedes the drain-
age of such land. It is conjectural whether this legislation would cause the
Court to make its above-discussed rules more strict regarding the im-
peding of the drainage of upper lands with a dam without their being actu-
ally flooded. It is also hard to say whether this legislation applies even
though a farm drainage ditch may empty unlawfully into a natural water-
course.192
Malaria control regulations governing the construction of ponds by ob-
structing stream flow are discussed under State Board of Health, post.
The powers of soil conservation districts regarding the construction of
checkdams and other structures to retard runoff and otherwise con-
serve soil and water are discussed under Soil Conservation Districts,
Post.
Fishing

The Court in a case in 1859. said'that a riparian owner who owns lands

188. N.C.G.S. sec. 113-252, and 113-253.
189. N.C.G.S. sec. 113-251. Moreover, a person who obtains a fish propagation
license from the State may not place any dam or other device in any stream flowing
over his property that will prevent the free migration of fish. N.C.G.S. sec. 113-
257, as amended.
190. Dunn v. Stone, 4 N.C. 241 (1815).
191. N.C.G.S. sec. 77-14.
192. The question of when such drainage may be unlawful is discussed under
Drainage, post.






LAW OF WATER ALLOCATION


along both banks of a nonnavigable stream has the exclusive right to fish
on such stream at any point on his own land, but he must use such rights
so as not to prevent the reasonable use of the stream by upper riparian
owners for fishing, and hence would have no right to obstruct the migra-
tion of fish upstream with a dam. The Court held that, as the defendant
had obtained a grant of the bed of the stream from the State, without any
restrictions on its use, he could not be required by the State to tear down
his milldam without compensation, and a criminal indictment brought un-
der special legislation relating to the free passage of fish in the stream
was dismissed. But the Court refrained from deciding the rights of upper
riparian owners against the obstruction of fish migration by such a dam,
and also whether the stream in question should be considered navigable by
small boats.193 Whether public fishing rights may attach to such a stream
is considered under Navigable Waters, post. The extent, if any, to which
public fishing rights may attach to nonnavigable streams has not been
clearly decided, although an early case tended to refute such rights.194
In a case in 1815, it was held that any damages to upper riparian
owners caused by obstructing the migration of fish with a milldam which
had been lawfully constructed (prior to legislation requiring openings to
be left for the passage of fish, discussed earlier) gave them no right of
action.195 The Court stressed that to permit such liability would give rise
to excessive litigation and hamstring an industry valuable to the public.196
Neither ownership of the bed nor the navigability of the stream were con-
sidered, although the defendant had claimed that it was nonnavigable. The
Court based its decision partly on the ground that any such damages
would amount to a public rather than a private nuisance, for which a ri-
parian owner ordinarily could not bring suit, although the State presum-
ably might be able to. (See Legal Remedies, post.) It also noted that the
building of the milldam was in the exercise of a lawful right "with as re-
spectable and beneficial a motive" as that of catching fish.
But in a later case, where the pollution of a stream was alleged to in-
terfere with the migration of fish upstream to an upper riparian owner's
fishing waters, the Court distinguished the 1818 case as one where inter-
ference with upstream migration of fish was caused by a milldam that was
lawfully constructed and maintained and hence any consequential injury to
the upper riparian owner's fishery was "necessarily damnum absque

193. State v. Glen, 52 N.C. 323, 326, 327, 330 (1859).
194. See Ingram v. Threadgill, op. cit. Fishing and other recreational uses of
lakes and swamps, apparently whether navigable or not, whose beds are State-owned,
may be regulated by the State.
195. Dunn v. Stone, 4 N.C. 241 (1815). Any available condemnation proceedings
apparently had not been employed in building the dam in either of these two cases.
196. See Balancing of Interests, Equities, and Conveniences, post.







NORTH CAROLINA WATER LAW


injuria."197 The Court noted that "we are not then put to a choice between
two rights lawfully exercised- e.g. the right of manufacture, navigation or
commerce on the one hand and the right of fishing on the other," but that
here there was clearly an unlawful act under the circumstances. The
SCourt concluded that damage to the upper riparian owner's established
fishing business was a special damage for which he could recover, even
though the pollution constituted a nuisance that was "public and indictable"
and the stream involved was a navigable stream.198
There is considerable statutory regulation of the right of fishing in
North Carolina as well as such protective legislation as requirements con-
Scerning fish passageways in dams, and protection from the discharge of
pollution and other deleterious matters into the waters they inhabit.199
Moreover, it is a misdemeanor to go willfully upon "the lands, waters,
ponds, or a legally established waterfowl blind," of another to fish, hunt
or trap without the owner's written permission, if notices have been
posted as provided.200

Other Nonconsumptive Uses

There may be other nonconsumptive uses of a watercourse, such as
swimming. The Court, however, has seldom expressly defined the rele-
vant legal principles. Such uses by a riparian owner of a stream on or
along his land would have the benefit of considerable legal protection if
the Court adheres to the principle that no material diminution of the
stream by pumping or other removal of water that causes substantial
S injury to lower riparian owners will be permitted (except perhaps for
domestic or other natural purposes).201 Such uses may not enjoy quite as
much legal protection against the detention of waters in the watercourse
by a dam.

197. But see Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E.
43 (1938), where the lawful operation of a power dam, without negligence, neverthe-
less resulted in liability for direct damage to lower riparian land, as discussed
under Detention or Obstruction of Waters with Dams, etc., ante.
198. Hampton v. N.C. Pulp Co., 223 N.C. 535, 27 S.E. 2d. 538, 543, 545 (1943).
A Federal case involving the same parties reached a different result (49 F. Supp.
625), but this was reversed on appeal, in 139 F. 2d. 840 (1943), following the
decision by the State Court in the Hampton case. See Navigable Waters; Fishing
Rights; and Pollution, post.
199. See Detention or Obstruction of Water with Dams, etc.; Legislation, ante;
Dams and other Obstructions, and Pollution, post.
200. N.C.G.S. sec. 113-120.1, et. seq.
201. It is problematical whether swimming could be considered as, or treated
as, or treated comparably with, domestic uses of a watercourse. (See Domestic
or other Natural Uses, ante.)






246 LAW OF WATER ALLOCATION

Rights to run pleasure or commercial boats or rafts, or logs, along a
watercourse are discussed under Navigable Waters, post. The Court does
not appear to have expressly considered questions regarding the scenic
value of a watercourse.202

Navigable Waters

Classification
The criteria employed by the Court for determining whether a water-
course is navigable or nonnavigable have changed over the years. The
Court early repudiated the old English test that only that portion of a wa-
tercourse in which there was the ebb and flow of the tide would be con-
sidered navigable.203 The Court has said that: "The common law rule that
streams are navigable only as far as tidewater extends developed from
the fact that England does not have to any great extent non-tidal waters
which are navigable. This common law rule has been discarded in this
country."204
The Court in State v. Glenn (in 1859) classified watercourses into 3
general classes, as follows:
(1) All coastal bays and inlets and all other waters, including sounds,
rivers, and creeks, which can be navigated by sea vessels, are navigable.
(2) All other watercourses which are wide and deep enough to be in fact
navigable by "boats, flats, and rafts," although "technically styled unnavi-
gable."
(3) All other watercourses which are incapable of inland navigation.205
The Court in some other cases has added still another class of water-
courses. Those streams which, although perhaps incapable of navigation
by boats in ordinary commerce and travel, are nevertheless capable of


202. See General Development of the Riparian Doctrine, ante. In Pugh v.
Wheeler, 19 N.C. 50, 55 (1836) the Court said that "... every owner of land on a
stream necessarily and at all times is using water running through it... if in no
other manner, in the fertility it imparts to his land, and the increase in value of
it." But the Court did not expressly consider scenic values. A waterfall was
involved, but its possible utility was not expressly considered, in Smith v. Town of
Morgantown, 187 N.C. 801, 123 S.E. 88 (1924). See Time of Use and Effect of
Nonuse, ante.
203. Wilson v. Forbes, 13 N.C. 30 (1828).
204. Home Real Estate Loan and Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E.
714, 717 (1938). The repudiation of the tidal water test was also affirmed in Resort
Development Co. v. Parmele, 235 N.C. 689, 71 S.E. 2d. 474, 479 (1952).
205. State v. Glen, 52 N.C. 321, 333-334 (1859). This classification has been
repeated in McLauchlin v. Hope Mills Co., 103 N.C. 100, 9 S.E. 307, 308-309 (1889),
and in other cases.
*







NORTH CAROLINA WATER LAW


floating logs have been termed floatablee streams." 206 Such a stream has
been called a water highway of the third class, with streams navigable by
small boats, etc., constituting the second class of water highways.207
The determination of the criteria of navigability sometimes has been
influenced by, and often closely associated with, the Court's interpreta-
tion of the State's entry laws relating to lands covered by waters.208 Land
covered by navigable water has been held by the Court ordinarily not to
be the subject of entry and grant by the State. The Court appears to have
at first adopted the test that only such waters as are navigable for sea-
going vessels shall be considered to be navigable.209 In other cases the

206. Commr's of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E. 941,
942 (1895); Gwaltney v. Scottish-Carolina Timber and Land Co., 115 N.C. 579, 20
S.E. 465 (1894).
207. State v. White Oak River Co., 111 N.C. 661, 16 S.E. 331 (1892).
208. Legislation derived from 1777, 1827 and other-statutes and amendments
(Acts 1777, ch. 114, is cited in Bond v. Wool, 107 N.C. 139, 12 S.E. 281, 285 (1890))
currently provides that all vacant and unappropriated lands owned by the State may
be granted to private individuals except lands covered: (1) by "navigable waters"
other than for erecting wharves, or (2) "by the waters of any lake" or (3) by any
marsh or swamp exceeding 2,000 acres in size or which has been surveyed by the
State "with a view to draining and reclaiming,the same," or (4) swamp lands de-
voted to use as State parks, State forests, State game refuges or shooting grounds,
which shall be administered by the Department of Conservation and Development.
That agency also has the duty of surveying and determining all such vacant and
appropriated lands. (5) In addition, State-owned lakes of 50 acres or more and cer-
tain other designated lakes are not to be sold by the State, and are to be held "for
the use and benefit of all the people of the State." All recreation, including hunting
and fishing, on such State lakes shall be regulated by the State. N.C.G.S. sec. 146-1
et. seq.
Marsh and swamp lands include "all those lands which have been or may now be
known and called 'swamp' or 'marsh' lands, 'pocosin bay,' 'briary bay,' and
'savanna,' and all lakes which may be covered by the waters of any lake or pond."
It would seem that "lake or pond" refers to a natural lake or pond. Natural lakes
also are included under the fifth listed exemption above.
Notwithstanding the above, more than 2,000 acres of tidal but nonnavigable
swamp land was held to have been validly conveyed by the State, through a circui-
tous route, in Home Real Estate Loan and Ins. Co. v. Parmele, 214 N.C. 63, 197
S.E. 714 (1938). Laws 1777, ch. 114 (1 Potter's Rev. 278) prohibited the granting
of lands under navigable waters, although not islands in navigable waters. Laws
1827-28, ch. 6, prohibited the granting of lands under any natural lakes of the State
from and after such time. These and other early laws were cited in Bond v. Wool,
107 N.C. 139, 12 S.E. 281, 285 (1890); and Hodges v. Williams, 95 N.C. 331, 336
(1886).
209. See Collins v. Benbury, 25 N.C. 277, 285 (1842), 27 N.C. 118 (1844); Hodges
v. Williams, 95 N.C. 331 (1886). This criterion was referred to by the Court in
Resort Development Co. v. Parmele, 235 N.C. 689, 71 S.E. 2d. 474, 479 (1952).






248 LAW OF WATER ALLOCATION

Court classified navigable waters as all watercourses capable of being
navigated, and which help to form a continuous channel for commerce with
foreign countries or among the States.210 But such qualifications were
omitted in a recent description of this test, in the case of Parmele v.
Eaton (in 1954), where the Court said that the test is simply "whether in
its ordinary state a body of water has capacity and suitability for the usual
purpose of navigation by vessels or boats such as are employed in the
ordinary course of water commerce, trade, and travel.... Briefly stated,
the rule with us is that all watercourses are regarded as navigable in law
that are navigable in fact." In this case a marsh along a coastal inlet that
ordinarily was not capable of navigation by small boats drawing two feet
of water was held to be nonnavigable, even though it consisted of tidal
water.211
While the cases discussed above (except for the cases on floatablee
streams") involved the construction of the statutes relating to the granting
of submerged lands, the Court also has reached substantially the same
conclusion in some other cases.212 In a case in 1901 the Court held a
branch of a sound to be navigable that was only about 2 to 3 feet deep but
was travelled over in boats by the public.213 The Court applied the general
test that all watercourses are navigable in law which are navigable in
fact.214 The Court noted that the public has the right to navigate for all
purposes of pleasure or profit all watercourses, tidal or inland, that are
in their natural condition ordinarily capable of such use.215 The Court
added, however, that "it would seem that there must be some element of
a public highway, and that its navigation must be in some degree required

210. Home Real Estate Loan and Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E. 714,
717 (1938). Perry v. Morgan, 219 N.C. 377, 14 S.E. 2d. 46, 49 (1941). Also see
other cases cited in Resort Development Co. v. Parmele, 235 N.C. 689, 71 S.E. 2d.
474, 479 (1952), some, but not all, of which support this proposition.
211. Parmele v. Eaton, 240 N.C. 539, 83 S.E. 2d. 93, 99 (1954).
212. Although the Court in some early cases indicated that a somewhat different
criterion might apply for various purposes other than the question of grants under
the entry laws, at a time when the seagoing vessel test apparently was still often
used for determining navigability for such purposes. See Hodges v. Williams, 95
N.C. 331, 335 (1886); State v. Glen, 52 N.C. 321, 326-327 (1859).
213. State v. Baum, 128 N.C. 600, 38 S.E. 900 (1901).
214. See also State v. Narrow's Island Club, 100 N.C. 477, 5 S.E. 411 (1888)
where the "navigable in fact" test was applied in a case re obstructing navigation.
215. The words "pleasure or profit" were also employed in a Federal case
dealing with North Carolina law. Swan Island Club v. Yarborough, 209 F. 2d.
(C.C.A. 4th) 698 (1954); earlier decision in a Federal District Court, in Swan Is-
land Club v. White, 114 Fed. Supp. 95, 99 (1953). The Court held a watercourse to
be navigable although at times even flat bottom boats would strike bottom in some
places, where it ordinarily was capable of interstate navigation. The navigability
of the stream seems to have been conceded by the parties involved. The Court







NORTH CAROLINA WATER LAW


by the necessity or convenience of the public. It should not depend en-
tirely upon the personal whim of an individual. We are not prepared to
say that a landowner would be liable to criminal prosecution because he
happened to put a water gate across a creek up which otherwise an idle
hunter might be able to pole a canoe, nor are we dealing with any right
except that of simple navigation. It appears from the evidence that the
public were in the habit of passing through North Sand Cove before it was
stopped up, and that by its use the distance from one part of the sound to
another was shortened, and navigation rendered safer in rough weather.
These conditions constitute ample evidence of a navigable stream."216
S This suggests that the actual use made of a stream may have consider-
able bearing upon the question of its navigability. But the Court in some
other cases has said that: "If water is navigable for pleasure boating it
must be regarded as navigable water though no craft has ever been put
upon it for purposes of trade or agriculture. The purpose of navigation is
not the subject of inquiry but the fact of the capacity of the water for use
in navigation."217
In a case in 1886 the Court held that a certain watercourse was navi-
gable even though intercepted by falls, since between such falls it could
be navigated for considerable distances.218 The case involved a contro-
versy over the right to run small freight boats, which hauled supplies to
farmers, over a part of the watercourse near the complainant's ferry.
In another case, the Court noted that "it is not necessary that such wa-
ters be fit for navigation at all times, but their capacity therefore must
recur with regularity."219
The Court also has said that the question of navigability is not affected
by the fact that one or more riparian owners may own all the land along
the watercourse for a considerable distance, with no public road leading
to it, thereby cutting off access by land.220
Certain grants of submerged land by the State may have been valid at
the time they were granted because the overlying waters would not have


perhaps meant to limit its stated criteria largely to questions regarding whether
actual navigation of a stream may lawfully be obstructed, which was the question
in issue. (The Court noted that several of the North Carolina cases did not directly
S involve the right of navigation but related principally to other matters, such as
"the right of entry or fishing," but said that they all tended to show "more or less
accurately" the distinction in the State between navigable and nonnavigable waters.)
216. State v. Baum, 128 N.C. 600, 38 S.E. 900, 901 (1901).
217. Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278, 124
S.E. 611, 619 (1924), quoting from State v. Twiford, 136 N.C. 60, 48 S.E. 586 (1904).
218. Broadnax v. Baker, 94 N.C. 675, 681 (1886).
219. Farmers' Co-op Mfg. Co. v. Albermarle and R. R. Co., 117 N.C. 579, 23
S.E. 43 (1895).
220. State v. Twiford, 136 N.C. 603, 48 S.E. 586 (1904).







LAW OF WATER ALLOCATION


been classed as navigable under the definition of navigability adhered to
by the Courts at the time of the grant, even though such waters might now
be classified as navigable by reason of later changes made in the Court's
definition,221 or possibly by reason of changes in the physical circum-
stances. Nevertheless, in a Federal Court case dealing with North Caro-
lina law the Court concluded that even if title to the bed of a stream now
navigable had been validly obtained the ownership thereof would be subject
to the public right of navigation, fishing, and hunting on the overlying
waters.222



221. Resort Development Co. v. Parmele, 235 N.C. 689, 71 S.E. 2d. 474 (1952);
Swan Island Club v. Yarborough, 209 F. 2d. (C.C.A. 4th) 698, 700 (1953). The Fed-
eral District Court in the Swan Island case had noted that such a result is based on
the rule that "where rights are acquired under a decision" of the Court such rights
may not be impaired by a change of construction made by a subsequent decision.
Swan Island Club v. White, 114 Fed. Supp. 95, 103 (1953), citing Wilkinson v. Wallace,
192 N.C. 156, 134 S.E. 401 (1926). (See also Shepard's Point Land Co. v. Atlantic
Hotel, 132 N.C. 517, 44 S.E. 39, 42 (1903), where the Court felt bound by some ear-
lier decisions as a rule of property.)
An oversight by the Legislature has been said by the Court to have left lands
under navigable waters subject to the possibility of grant by the State from 1836
until its 1846-47 session, when the general prohibition against such grants was re-
instated. This omission led to considerable litigation over the validity of grants of
land under water issued by the State during this period. But the Court held that,
while there was no express statutory prohibition against such grants during this
period, the common law rule would apply and it provided that lands under navigable
waters could not be granted by the State. The criteria of navigable waters during
this period seems to have been whether they were navigable by seagoing vessels.
In Hatfield v. Grimstead, 29 N.C. 139 (1846), the Court in construing the validity of
such a grant in 1839, seems to have relied mainly on the tidal water test in holding
the water to be nonnavigable and subject to grant, but it also was clearly not navi-
gable for sea vessels. For discussion of the history of the oversight in these early 1
statutes and of the Hatfield and other cases see Resort Development Co. v. Parmele,
235 N.C. 689, 71 S.E. 2d. 474 (1952), in which a grant by the State in 1841 was held
to be invalid because the land granted was covered by navigable waters and was not
swamp lands within the meaning of N.C.G.S. 146-4, discussed earlier. See also
Swan Island Club v. White, 114 Fed. Supp. 95 (1953); Swan Island Club v. Yarborough,
209 F. 2d (C.C.A. 4th) 698 (1954).
222. Swan Island Club v. White, 114 Fed. Supp. 95, 103-104 (1953); Swan Island
Club v. Yarborough, 209 F. 2d. (C.C.A. 4th) 698, 702-703 (1954). See Navigable
Waters-Fishing, post. Similarly, the State Supreme Court, in State v. Twiford,
136 N.C. 603, 48 S.E. 586, 588 (1904) said that a riparian owner on both sides of
a stream would have no right to exclude public access thereto for navigation, even
if he had title to the bed, the grant of which was held to be void.






NORTH CAROLINA WATER LAW


Riparian Rights as Between Riparian Owners and as
*Against Navigation and Other Public Rights

The Court has in some cases indicated that navigation and certain
Other public rights are superior to any rights incident to the ownership of
riparian lands along, or of the beds of, navigable watercourses, but with-
out describing what such riparian rights might involve.223
In State v. Glen (1859), the Court indicated that as to watercourses nav-
igable by "boats, flats and rafts" riparian landowners "may exercise and
enjoy (an) easement, for the purpose of catching fish, or in any other man-
ner, not incompatible with the right which the public have in the stream,
for water communication."224 (Italics supplied.)
In another case (in 1903) "certain riparian rights" were said to pass
with grants of lands bordering on navigable waters and to include, among
other things, the right "to make a reasonable use of the water as it flows
past."225 This tends to imply that riparian rights to withdraw and divert
water from navigable streams may be the same as for nonnavigable
streams, subject only to the protection of navigation and certain other

223. See Broadnax v. Baker, 94 N.C. 675, 681 (1886), where rights to run freight
Boats near a riparian owner's ferry were involved, citing Lewis and Jackson v.
Keeling, 46 N.C. 299 (1854), where rights of navigation vs. public fishing rights
were involved. See also State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411
(1888), where iron posts which were stuck in the bed of a sound might obstruct
navigation.
224. State v. Glen, 52 N.C. 321, 333-334 (1859).
225. Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39, 46
(1903), in part quoting Lewis on Eminent Domain, sec. 83. A contrary view was
discussed, but not adhered to, on pp. 44-45 of the same case. In some cases the
Court said that a riparian owner has a "qualified property right" in the water-
frontage along navigable waters which belongs by nature to such lands, chief
among which is a right of access thereto. Gaither v. Albemarle Hospital, 235
N.C. 431, 70 S.E. 2d. 680 (1952), citing Bond v. Wool, 107 N.C. 139, 12 S.E. 281
(1890); Jones v. Turlington, 243 N.C. 681, 92 S.E. 2d. 75 (1956). But rights to use
the waters for any particular purposes other than public uses or rights to build
wharves, piers, etc. along the waterfront were not considered in these cases.
In at least 3 cases the Court has noted that: "Riparian rights, being incident
to land abutting on navigable water, cannot be conveyed without a conveyance of
such land ..." Atlantic and N. C. R. Co. v. Way, 169 N.C. 1, 85 S.E. 12, 15 (1915);
SZimmerman v. Robinson, 114 N.C. 39, 19 S.E. 102 (1894); Shepard's Point Land
Co. v. Atlantic Hotel, 134 N.C. 397, 46 S.E. 748 (1904). But except for the last
case, the Court did not enlarge upon what such riparian rights might include,
other than access to a waterfront. The Court in each case was interpreting the
State's entry laws for obtaining wharfage rights along such waters and held that
such rights could only be obtained in connection with riparian land.


I






LAW OF WATER ALLOCATION


public rights. This was not a direct ruling on this question, however, as
the case was simply a suit to recover possession of certain lands covered
by water.
However, the Court in a case in 1924 quoted from an earlier case (in
1904) to the effect that the control of navigable waters belongs to the public,
and "is not appurtenant to ownership of the shore," and that: "Navigable
waters are free. They cannot be sold or monopolized. They can belong
to no one but the public and are reserved for free and unrestricted use by
the public for all time. Whatever monopoly may obtain on land, the waters
are unbridled yet."226 This was also quoted in a recent Federal case as
having a bearing upon the interpretation of the North Carolina statutes re-
lating to grants of submerged lands by the State, upon the validity of cer-
tain grants, and upon fishing and hunting rights in navigable waters.227
In the 1904 case the only question in issue was the right of a riparian
owner of both sides of the stream to exclude public access thereto for
navigation and fishing by placing obstructions (posts) in it. The Court
held that there was no such right. Rights to divert and use such waters
were not involved. The principal questions in issue in the Elizabeth City
case included the respective rights of the complainant water and power
company and the defendant city, as against each other, to construct a dam
(an obstruction) in the navigable river and to divert and use the waters
thereby impounded for public water supply purposes. Whether the Court
would have employed the same language if there had been no dam involved
is problematical. In any event, the dispute was between two quasi-public
corporations whose rights to use navigable or other waters seem to have
been largely dependent upon certain legislative enactments.228 Whether
similar restrictions might be placed upon the use of navigable waters
(particularly via withdrawals through pumps or canals) by private riparian
owners also is problematical.
The Court in the 1924 case held that the complainant had lost any rights
it may have had against the city (which had obtained special legislative
authority to dam the stream and construct its own water supply system)
by, among other things, failing (1) to build a permanent dam to replace its

226. Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278, 124
S.E. 611, 619 (1924), quoting from State v. Twiford, 136 N.C. 603, 48 S.E. 586
(1904).
227. Swan Island Club v. Yarborough, 209 F. 2d. 698, 701 (1954); Swan Island
Club v. White, 144 Fed. Supp. 95, 103 (1953). See also Resort Development Co.
v. Parmele, 235 N.C. 689, 71 S.E. 2d. 474, 479 (1952).
228. In Asbury v. Albemarle, 162 N.C. 247, 78 S.E. 146 (1913), however, the
Court held that the Legislature can exercise no more control over municipalities
in their proprietary, quasi-private functions, including the furnishing of a water
supply, than over private corporations, and could not force them to acquire cer-
tain existing water works.






NORTH CAROLINA WATER LAW


wooden dam as authorized by special legislation and (2) to obtain a re-
newal of a 10-year contract to supply water to the defendant city. The
Court added:

There is nothing in writing to show plaintiff's right to this navigable stream.
There is no legislative right given by the state or United States. It is public
property. No condemnation by plaintiff is alleged, if under the charter it had
the power. From the entire record the plaintiff has used the water from a navi-
gable stream, belonging to the sovereign, and sold it to the defendant city and
its inhabitants and other, without any right in law so far as the record shows.
Plaintiff seems to be a 'squatter' on sovereign property, and the 'take' is not
exclusive, nor adverse, but permitted with no complaint by proper authorities.
It used the public navigable stream and sold the public water without paying for
it, now it complains that the legislative branch of the government had repealed,
in 1923, the act of 1919, giving it a right to dam the stream, which plaintiff
S never did. To what extent the legislature could give away a sovereign right, we
are not now called upon to pass on. We do say that plaintiff should have no
cause to complain in obtaining free public water all these years, transporting
and selling it.229

The Court emphasized public and State ownership of the navigable
stream. Yet, the reference to condemnation might be a recognition that there
Were riparian rights in the stream which would need to be condemned in
order to use the stream for public water supply purposes.230 These two
positions are not entirely inconsistent, although they would be more com-
patible if the State were regarded not as the owner but as the guardian or
trustee of navigable waters held in trust for navigation and other public
purposes. The Court in some other cases has indicated that public rights
of log floatage and fishing are not derived from the State, although they
may be regulated by it.231
Except for the case in 1924, the Court has seldom expressly considered
the question of rights to make domestic, irrigation, municipal, industrial
or other consumptive uses of water in navigable streams, as against the

229. Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278, 124
S.E. 611, 619 (1924). See Municipal or Public Water Supply, ante.
230. The municipal and nonriparian nature of the use was not in dispute as both
parties were seeking to make the same type of use. The Court held that the water
company could not enjoin the city from constructing its own water supply system
under a special legislative charter authorizing it to do so and to construct a dam
Sin the stream, which the complainant said would interfere with its water rights in
the stream and would constitute unjust competition and duplication of facilities.
In Town of Grimesland v. City of Washington, 234 N.C. 117, 66 S.E. 2d. 794 (1951),
the Court held likewise about the situation of a town's water supply system meeting
competition from another town or water company, construing N.C.G.S. sec. 160-255.
231. See Floatable Streams, and Fishing, below.






LAW OF WATER ALLOCATION


public or other riparian owners, in contrast with the use of nonnavigable
streams for such purposes.232 It would seem that as a minimum limita-
tion, such uses may not be permitted to substantially impair anviga-
tion by lowering the water level. The extent to which public fishing
and perhaps swimming rights may be protected against such uses is
not so clear.
Dams and Other Obstructions

Certain legislation relating to dams has been discussed earlier, under
Detention or Obstruction of Water with Dams, etc.
The Court in the 1924 case discussed above used language suggesting
that it may be necessary to obtain permission from the State to erect a
dam in a navigable stream.233 This case, however, dealt with the respec-
tive rights of two quasi-public corporations to build such a dam under
special legislative acts.
There apparently is no express general statutory requirement that per-
mission be obtained from the State by private citizens before building a
dam in a navigable or any other stream. It would appear that, where title
to the bed of a stream is held by the State, permission at least would need
to be obtained from an appropriate State agency to avoid committing a
trespass on such property. It may be doubted whether such permission
could be validly granted by the State if navigation, particularly interstate
navigation and foreign commerce, were thereby materially obstructed.
(See Federal Interst in Navigable Waters, post.) But in one case the
Court said that some slight obstruction of navigation by a railroad bridge
built with special statutory permission would not be enjoined.234 The


232. In the early case of Pugh v. Wheeler, 19 N.C. 50, 54 (1836), dealing with a
nonnavigable stream, the Court said that as to the sea and other bodies of water so
immense that they cannot be appropriated by individuals, or ought to be kept as
common highways and for "enjoyment of all men," "particular persons cannot ac-
quire a right, that is, a several and exclusive right, by use or any other means."
But it is not very clear what the Court meant by this.
233. Elizabeth City Water ana Power Co. v. Elizabeth City, 188 N.C. 278, 124
S.E. 611, 619 (1924).
234. Pedrick v. Raleigh and P. S. R. Co., 143 N.C. 485, 55 S.E. 877 (1906).
In the 1924 case discussed above the Court refrained from deciding whether the
State may validly grant permission to build a dam which materially interferes with
navigation or other public rights. The Court said in 124 S.E. 611, 619: "To what
extent the Legislature could give away a sovereign right, we are not now called
upon to pass on." Also see later discussion to which notes 240 and 245 relate. Also
note that the court has said that public fishing rights and log-floatage rights have
not been derived from the State, although they may be regulated by it. See Floatable
Streams, and Fishing Rights, post.






NORTH CAROLINA WATER LAW


construction of certain dams has been authorized by special State legisla-
tion, as was the case in the 1924 case discussed above.
In a recent case (in 1952) the Court said that any material obstruction
of a navigable watercourse that is not authorized by the proper govern-
mental authority, even though it may be a source of public benefit or does
not actually interfere with navigation, ordinarily constitutes a public nui-
sance if it makes navigation less convenient, secure, or expeditious.235
S The Court came to substantially the same conclusion in two earlier cases
where poles had been driven into the beds of submerged waters.236
Legislation dating from 1787 provides that boards of county commis-
sioners may appoint commissioners to lay off the rivers and creeks within
their counties so as to "allow three-fourths for the owners of the streams
for erecting slopes, dams and stands; and one-fourth part, including the
deepest part, they shall leave open for the passage of fish, marking and
designating the same in the best manner they can; and if mills are built
across such stream, and slopes may be necessary, the commissioners
shall lay off such slopes, and determine the length of time they shall be
kept open; and such commissioners shall return to their respective boards
of county commissioners a plan of such slopes, dams, and other parts of
streams viewed and surveyed." (Italics supplied.) 237
By legislation dating from 1858-59, the county commissioners also
"shall have power to lay off gates, with slopes attached thereto, upon any
mill-dam built across such stream, of such dimensions and construction
as shall be sufficient for the convenient passage of floating logs and other
timber in cases where it may be deemed necessary by the said board of
county commissioners." (Italics supplied.)238
It is also provided that: "Upon the confirmation of the report made by
the commissioners, and notice thereof given to the owner or keeper of
said mill, it shall be his duty forthwith to construct, and thereafter to
keep and maintain, at his expense, such gate and slope, for the use of per-
sons floating logs and other timber as aforesaid, so long as said dam
L shall be kept up or until otherwise ordered by the board of county

235. Gaither v. Albemarle Hospital, 235 N.C. 431, 70 S.E. 2d. 680, 692 (1952).
S This case involved the obstruction of a riparian owner's waterfrontage by building
a breakwater and park, which the Court enjoined.
236. State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411 (1888); State v.
Baum, 128 N.C. 600, 38 S.E. 900 (1901). Other cases involving obstructions of
navigation of streams, other than with dams, include Reyburn v. Sawyer, 128 N.C. 8,
37 S.E. 954 (1904), 135 N.C. 328, 47 S.E. 761 (1904) (obstruction with fish nets);
State v. White Oak River Corp., 111 N.C. 661, 16 S.E. 331 (1892) (obstruction by
felled tree); and State v. Twiford, 136 N.C. 603, 48 S.E. 586 (1904) (obstruction by
poles stuck in bed).
237. N.C.G.S. sec. 77-3.
238. N.C.G.S. sec. 77-4, et. seq.






LAW OF WATER ALLOCATION


commissioners." The county commissioners may order the discontinuance
of such gates and slopes when found to be no longer necessary.
Failure of any mill owner to comply with such requirements constitutes
a misdemeanor. But it seems doubtful that one who erects a dam other
then for a mill is subject to this legislation.239
The county commissioners apparently need not consult with the Wild-
life Resources Commission, the State Board of Conservation and Develop-
ment, or any other State agency in determining the type and size of
passageway to be left in such dams for the passage of fish or logs. It
seems somewhat doubtful that the county commissioners may be the sole
judge of whether such a dam should be permitted if it may obstruct navi-
gation by boats,240 although their determination may be given considerable
weight.
Legislation also permits boards of county commissioners to appoint
commissioners to open and clear rivers and streams in the county.241
Their authority to regulate the construction of dams, as described above,
is not expressly limited to streams which they have thus opened and
cleared.
The Court in a case in 1892 said with respect to such legislation: "The
legislature has made provision in certain cases for opening dams so as
to permit the passage of logs floated over them to market... The county
commissioners are clothed with authority to have streams cleaned out.
It would seem that these sections were passed entirely with reference to
floatable streams, because, without condemnation, the commissioners
would have no right to enter upon and clean out the beds of streams which
were not natural highways." (See Floatable Streams, post.) The opera-
tion and effect of this legislation were not actually involved in the case.
But the Court did hold that "if these were floatable streams, in which the
public has an easement for transportation, it would be the duty of the
county commissioners, certainly in the absence of express authority to
the contrary, to so construct bridges on the highways as to permit the use
of rivers for the purpose of floatage."242
In another early case the Court said that where a milling company had

239. Recall that the provisions relating to passageways for floating logs and
timber expressly relate only to milldams. N.C.G.S. sec. 77-4, et. seq. The provi-
sions relating to fish passageways at first refer to the erection of "slopes, dams,
and stands" but later refer only to "mills." N.C.G.S. sec. 77-3. At any rate, the
section which makes violation a misdemeanor refers only to the "owner or keeper
of a mill".
240. See Gwaltney v. Scottish-Carolina Timber and Land Co., 115 N.C. 579, 20
S.E. 465 (1894). Also see notes under N.C.G.S. sec. 77-3 for related statutes.
241. N.C.G.S. secs. 77-1 and 77-2.
242. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21
S.E. 941, 945-946 (1895).






NORTH CAROLINA WATER LAW


begun to erect a dam in a navigable stream, as permitted by the county
board of commissioners, in the absence of fraud an injunction would not
be granted to prevent such construction.243 The Court said that this was
a question for determination by the county commissioners under the ex-
isting (which was similar to the current) legislation.244 However, the
Court emphasized that no special damages to the complainants, who were
private citizens, had been claimed, and that it was not necessary to de-
termine whether the dam might constitute a public nuisance. The com-
plainants seem to have been primarily concerned about the possible inter-
ference with their use of the stream to transport timber, turpentine, and
other produce to market. The Court concluded that: "The extent to which
the riparian owner may go in the erection of dams, etc., to apply the use
of the water to the propulsion of machinery, and the extent to which the
state may authorize obstructions, present interesting questions, the con-
sideration of which is not necessary for the determination of the case
before us." 245
Following are two North Carolina statutes which declare certain types
of obstructions of navigable streams to be a misdemeanorr.26
(1) N.C.G.S. sec. 77-12 provides that: "If any person shall obstruct the
free passage of boats along any river or creek, by felling trees, or by any
other means whatever, he shall be guilty of a misdemeanorr"
(2) In addition, N.C.G.S. sec. 77-13 provides that: "If any person shall
willfully fell any tree, or willfully put any obstruction, except for the pur-
poses of utilizing water as a motive power, in any branch, creek, or other
natural passage for water, whereby the natural flow of water through such
passage is lessened or retarded, and whereby the navigation of such
stream by any raft or flat may be impeded, delayed, or prevented, the per-
son so offending shall be guilty of a misdemeanor, and fined not to exceed
fifty dollars, or imprisoned not to exceed thirty days. Nothing in this sec-
tion shall prevent the erection of fish dams or hedges which do not extend
across more than two-thirds of the width of any stream where erected.247

243. McLauchlin v. Hope Mills Mfg. Co., 103 N.C. 100, 9 S.E. 307 (1889). The
Court indicated that the commissioners had held a public hearing before granting
such permission. A public hearing is not expressly required by the current legis-
lation.
S 244. The Court noted that by prior special legislation (Acts 1848-49; ch. 197)
overseers appointed by the county courts of certain counties, including the county
in question, had the duty to remove all obstructions and see that those who erected
dams for mills provided "good and sufficient slopes for the free passage of all
rafts of lumber...and other products."
245. McLauchlin v. Hope Mills Mfg. Co., 103 N.C. 100, 9 S.E. 307, 309 (1889).
246. See also N.C.G.S. sec. 1-45, discussed in note 580.
247. As might be expected, this latter section has been construed by the Court
not to be applicable to the construction of dams used as motive power, nor unless


I






LAW OF WATER ALLOCATION


Floatable Streams
The Court has held that streams which will naturally and ordinarily
float logs, although they may not be capable of other navigation, are "float-
able streams." It has said that there is a public easement in such streams
for such purposes which is superior to any rights of riparian owners.248
The Court in a case in 1895 said that: "It is not necessary, in order to
establish the easement in a river, to show that it is susceptible of use con-
tinuously during the whole year for the purpose of floatage, but it is suf-
ficient if it appear that business men may calculate that, with tolerable
regularity as to seasons, the water will rise to and remain at such a height
as will enable them to make it profitable to use as a highway for trans-
porting logs to mills or markets lower down."249
In an earlier case, the Court further applied the test that "a temporary
rise, passing quickly down, is not sufficient to make a stream floatable"
even though it could be reasonably expected every year.250 But this addi-
tional test was expressly discarded in the case quoted above, as being too
arbitrary since it would apply without regard to the profitability of float-
age or the condition of the stream, i.e., whether swift or sluggish.251
The Court noted further (1) that the public right of floatage is limited
to streams which are naturally floatable by the above definition, and does
not include streams where artificial means are necessary, such as deep-
ening the channel or installing locks or dams with gates, and (2) that "the
right of floatage must 'be exercised with due care for the avoidance of in-
jury to the interests of the riparian proprietors and the owners of the soil
beneath the bed of the stream.' "
The Court in another case said that a stream which would float logs in
all seasons except in the summer was a floatable stream. It concluded
that a State statute designed to prevent obstructions in streams could
validly be applied to such a stream, as well as to streams navigable by
small boats.252

the obstruction was willful. State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411
(1888); State v. Baum, 128 N.C. 600, 38 S.E. 900 (1901). But the Court in both
cases indicated that there would still be a possibility of a common law legal action
against such conduct.
248. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E.
941 (1895), with one judge dissenting. Earlier decisions in 115 N.C.590, 20 S.E. 707
and 847. See also Gwaltney v. Land Co., 115 N.C. 579, 20 S.E. 465 (1892); earlier
decision in 16 S.E. 692.
249. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E.
941, 942 (1895).
250. Gwaltney v. Scottish-Carolina Timber and Land Co., 115 N.C. 579, 20 S.E.
465 (1894), earlier decision in 111 N.C. 547, 16 S.E. 692 (1892).
251. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E.
941, 943-944 (1895).
252. State v. White Oak River Co., 111 N.C. 661, 16 S.E. 331 (1892).







NORTH CAROLINA WATER LAW


The Court has indicated that a different test of navigability might apply
in determining the question of the validity of grants to submerged lands,
discussed earlier.253
In a case in 1900 the Court suggested that the right of floatage in float-
able streams might constitute a riparian right as well as a public right.
It said that the public easement of floatage is not derived from the State
(although it may impose proper regulations in the public welfare) and can-
not exist in the general public without belonging to each individual who
S may exercise the right.254 But the Court denied any intention of reversing
its earlier statement in the case discussed above to the effect that the pub-
lic right of floatage is superior to any private riparian rights.255

Floating Logs in Nonfloatable Streams
The Court has held that one who floated logs in a stream found to be
not naturally a floatable stream was liable for any damage to a lower ri-
parian owner's dam and fish trap, irrespective of any negligence in hand-
ling the logs.256 In another case the Court noted that: "Perhaps it may not
be improper to add that, where a stream is not floatable, it can be used for
the transportation of logs only by a license from the owner of the bed of the
stream or the riparian proprietor." 257

Rights and Regulation of Navigation
The Court in a 1927 case said:
One's right to navigate a public river is not a private, but a public, right, to
which he is entitled only in common with the whole public. Any and all of the

253. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E.
941, 945-946 (1895).
254. Hutton v. Webb, (2 judges dissenting), 126 N.C. 897, 36 S.E. 341 (1900),
earlier decision in 124 N.C. 749, 33 S.E. 169 (1899). The Court held that riparian
owners using a naturally floatable stream for such purposes could not validly be
taxed by the State for floating logs down such streams unless the State had artifi-
cially improved these streams and the tax assessed was related to the benefits from
such improvements, which was not the case. The Court suggested (on p. 342) that
the same might also be true of uses for floatage purposes by the public other than
riparian owners, reserving opinion as to whether the use by riparian owners of
floatable streams for floatage purposes is in the exercise of their riparian or public
rights, or both.
255. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E.
941 (1895).
256. Gwaltney v. Scottish-Carolina Timber and Land Co., 115 N.C. 579, 20 S.E.
465 (1894), earlier decision in 111 N.C. 547, 16 S.E. 692 (1892).
257. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E.
941, 945-946 (1895).






260 LAW OF WATER ALLOCATION

public have an equal right to a reasonable use; but the enjoyment by one neces-
sarily interferes to some extent, for the time being, with its absolutely free
and unimpeded use by others and each must exercise his rights with a proper
regard for the rights of others. Navigable waters constitute a public highway,
open and free for the passage of all classes and sizes of water craft, which
have a right to follow the usual channels. And a traveler for pleasure is as
fully entitled to protection in using a public way whether by land or by water,
as a traveler for business. This common right exists, not only between boats,
but also between boats and logs floating down a stream.258

The public right of navigation has been subjected to a variety of gov-
ernmental regulations-State, Federal, and local.259

Navigation vs. Other Public Rights
It would appear that the right of navigation may be superior to all other
rights of use, public or private, in navigable streams. But in a 1906 case
the Court held that some slight interference with navigation would be per-
mitted for the public good, as by a railroad bridge erected under a public
charter.260
The Court has held that the public right of navigation is superior to
public rights of fishing as being more important to the "public weal." In
one early case it held that a steamboat could go up to the bank of a river
wherever necessary to do so without liability for running into a fishing
seine, if not done wantonly or maliciously or so as to cause unnecessary
damages.261 But persons engaged in navigation may be held liable for neg-
ligently damaging those engaged in fishing.262

Fishing
The Court has said that there is a public right of fishing in all navigable
waters, which may be regulated by the State.263 In one case the Court in-
dicated that the public right of fishing, while subject to regulation by the

258. Cromartie v. Stone, 194 N.C. 663, 140 S.E. 612, 615 (1927), quoting 27 R.C.L.
sec. 227.
259. See, e.g., N.C.G.S. sec. 76-1, et. seq.
260. Pedrick v. Raleigh and P. S. R. Co., 143 N.C. 485, 55 S.E. 877 (1906).
261. Lewis and Jackson v. Keeling, 46 N.C. 299 (1854). See also Reyburn v.
Sawyer, 128 N.C. 8, 37 S.E. 954 (1901), 135 N.C. 328, 47 S.E. 761 (1904).
262. Spruill v. Branning Mfg. Co., 180 N.C. 69, 103 S.E. 911 (1920); Hardison v.
Nat'l Handle Co., 194 N.C. 351, 139 S.E. 614 (1927).
263. Skinner v. Hettrick, 73 N.C. 53 (1875), approved in Hettrick v. Page,
82 N.C. 65 (1880); see also Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916), Daniels
v. Homer, 139 N.C. 219, 51 S.E. 992 (1905); 146 N.C. 275, 59 S.E. 1131 (1907).








I






NORTH CAROLINA WATER LAW


State, does not depend on any grant from it as, it said, was true in
England.264 The right would appear to extend generally to waters ordi-
narily navigable by commercial or pleasure fishing boats.265 Whether it
extends to streams floatable for logs but ordinarily not navigable by fish-
ing or other boats is problematical.266
The Court has indicated in some cases that generally no "several," or
exclusive, right of fishing in any certain location may be acquired in nav-
igable waters, irrespective of the length of time that anyone has continued
to fish in a particular location, and that the ownership of riparian land pro-
vides no exclusive or preferred rights to fish in the adjoining waters.267
The Court held in an early case that a riparian owner's natural advan-
tages in fishing in the adjoining waters would not entitle him to bring suit
against the owner of a milldam below which was said to be lawfully lo-
cated on the stream, for obstructing the migration of fish upstream. It
was not clear whether this was a navigable or nonnavigable stream.268 In
a later case (in 1943) the Court held, however, that a riparian owner along
a navigable stream had suffered damages of a "sufficiently special and
personal nature" to maintain a legal action for damages, where the
upstream migration of fish was adversely interfered with by pollution
of the waters downstream. This was held to be a clearly unlawful act,

264. Lewis and Jackson v. Keeling, 46 N.C. 299 (1854). The Court in one early
case suggested, without deciding, that public fishing rights attach only to tidal and
not to nontidal navigable waters, to which private fishing rights attach, reasoning
from the Court's stated conception of the English common law. Ingram v. Treadgill,
14 N.C. 59, 61 (1831). But this notion appears to be repudiated by the Court's later
statements in the cases discussed above. While no nontidal navigable waters were
actually involved in most of these later cases, it had been held in the Ingram case
and other cases that the term "navigable waters" includes more than tidal waters.
Moreover, a nontidal part of a river was perhaps involved in Lewis and Jackson v.
Keeling, op. cit., which was admitted to be navigable. The Court said that fishing
rights therein were public, not private rights. In State v. Glen, 52 N.C. 321, 333
(1859), the Court indicated that public fishing rights extend at least to watercourses
navigable by seagoing vessels, whether tidal or not.
265. See note 222 and related statement in text.
266. For cases from other states on this question, see 47 A.L.R. 2d. 386 (1956).
267. Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916); Skinner v. Hettrick, 73 N.C.
53 (1875); Lewis and Jackson v. Keeling, 46 N.C. 299 (1854). The Court in the Bell
case had noted that "the right of fishery in navigable waters is open to all, and must
be exercised by each in due turn without interfering with the reasonable exercise of
the same right of others. Such a right is similar, though not identical, with the en-
joyment of property by tenants in common."
268. Dunn v. Stone, 4 N.C. 241 (1815). Legislation requiring passageways for
fish to be left in dams, discussed later, had not yet been enacted. The Court noted
that prior to this legislation it was usual to build dams without such passages.






LAW OF WATER ALLOCATION


in violation of legislation prohibiting such pollution, discussed later.269
In the latter case the Court said that there were public rights of fishing
in the navigable river, providing they were exercised "with due regard for
the rights of others," and "subject to the superior right of the complainant
as to the area actually occupied and being fished," noting that the complain-
ant had an established fishing business operating from his riparian land.
The Court noted that the complainant owned no part of the bed of the navi-
gable river "and therefore has not a several and exclusive fishery, as that
term is known to the law." The Court indicated that "the owners of sev-
eral and exclusive fisheries upstream may maintain an action for wrong-
ful interference with the migrating passage of fish whereby these fisheries
are injured,"270 and concluded that the necessities of the complainant who
"was taking fish from a common fishery" were the same, "that is, that the
fish come into the nets," and said that "the same principles of law must
apply."271
Nevertheless, in a recent Federal case dealing with North Carolina
law the Court said that even if title to the bed of a navigable stream had
been validly obtained the ownership thereof would be subject to the public
right of fishing in the overlying waters.272
While valid grants of land under navigable waters ordinarily cannot be
acquired by private individuals, general legislation dating from 1874 pro-
vides that anyone who has lawfully acquired such a grant may establish a
fishery on such land, and if he improves the same by cutting away roots,
stumps, and other obstructions so as to haul fish nets or seines thereon,
or erects platforms or other structures for such purposes, he and his suc-
cessors in title shall have prior right to the use of such land (and pre-
sumably the overlying waters) for such purposes, and no one else may

269. Hampton v. N.C. Pulp Co., 223 N.C. 535, 27 S.E. 2d. 538 (1943). In a
Federal case involving the same parties the Court reached a different result, in an
interesting and poetic opinion (49 F. Supp. 625). But this was reversed on appeal
[139 F. 2d. (C.C.A. 4th) 840 (1943)] following the State Court's decision.
270. It is problematical whether the Court had in mind only the possibility of
acquiring preferred fishing rights under legislation discussed below (see note 274).
It did not so limit its remarks, but indicated broadly that the owner of the bed might
maintain an exclusive fishery. For an earlier case (prior to this legislation) in
which the Court implied such a right, see State v. Glen, 52 N.C. 321, 326-327, 333-
334 (1859). Still earlier, however, the Court perhaps implied that a riparian owner
along a navigable stream did not have an exclusive right of fishing unless it was de-
rived from an express grant from the State. Collins v. Benbury, 27 N.C. 118, 127
(1844); cited in Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39,
45 (1903).
271. Hampton v. N.C. Pulp Co., 223 N.C. 535, 27 S.E. 2d. 538, 546 (1943).
272. Swan Island Club v. White, 114 F. Supp. 95, 103-104 (1953); Swan Island Club
v. Yarborough, 209 F. 2d. (C.C.A. 4th) 698, 702-703 (1954).






NORTH CAROLINA WATER LAW


use such land for such purposes without his consent.273 But he is not re-
lieved from liability for thereby obstructing navigation.
Legislation relating to fish passageways in dams has been discussed
earlier.274 Other legislation makes it a misdemeanor to interfere with,
obstruct, pollute, or diminish the natural flow of water into or through any
State fish hatchery,275 or any licensed fish propagation plant,276 and ex-
tends the State administrative authority over State-owned lakes to waters
S of all streams running into them to facilitate the regulation of fishing
therein. 277
Another statute makes it a misdemeanor to go willfully upon "the lands,
waters (or) ponds..." of another to fish, hunt or trap without his written
permission, if notices have been posted as provided. But this expressly
does not impair one's right to fish, hunt or trap upon "navigable waters"
and adjoining "bays and sounds."278

Significance of Private Ownership of Bed of Navigable Watercourse
As already indicated, lands under navigable waters ordinarily cannot be
validly granted by the State to private individuals.279 But there have been
instances where valid grants were made of beds of streams classed as non-
navigable at the time, which would now be classed as navigable.
In the early case of State v. Glen, in 1859, the Court held that where
the owner of a milldam had obtained an express grant of the bed of the
stream from the State without any reservations on its use (in addition to
earlier separate grants of the adjoining lands) the State could not make
him tear down his dam, without compensation, to provide free passage for
fish on the stream. The Court held that the stream possibly was navigable
by small boats but was not navigable by large boats or seagoing vessels
and hence the State could validly grant title to its bed under the law appli-
cable at that time. The Court refrained from deciding whether such a
grant would provide the owner of the dam with any special advantages as
against other riparian owners.280
In some of the cases in which the Court construed the statutes relating

273. N.C.G.S. sec. 113-233. This legislation was discussed in Bell v. Smith, 171
N.C. 116, 87 S.E. 987, 988 (1916), where the Court indicated the need of making im-
provements before a right of exclusive fishery would arise.
274. See Dams and Other Obstructions, ante.
275. N.C.G.S. sec. 113-245.
276. N.C.G.S. sec. 113-264. For fishing license requirements see sec. 113-143,
et. seq., sec. 113-146, and sec. 113-174.8.
277. N.C.G.S. sec. 146-9.
278. N.C.G.S. sec. 113-120.1 et. seq. See note 200.
279. The same is true of lakes and certain swamps, as discussed earlier.
280. State v. Glen, 52 N.C. 321 (1859).






LAW OF WATER ALLOCATION


to grants by the State of lands under water, the questions in issue simply
involved the validity of such grants without mentioning the uses to which
such lands had been or might be put.281 (Several of these cases involved
the question of ownership of marsh lands or lands covered by sloughs.)
In one case, however, the seller under an agreement of sale had agreed to
dig a canal through the lowlands to be sold, some of which lay between the
low and high water marks of tidal waters, and deposit the excavated ma-
terial upon the partially submerged lands so as to raise them above the
high water level.282
The significance of ownership of the bed of a navigable watercourse so
far as fishing and hunting rights are concerned is discussed above under
Fishing. Such submerged lands might also be useful for timber, mineral,
or other purposes. Ownership of such lands may also be significant in de-
termining the ownership of islands or land exposed by a lowered water
level or other phenomena.
N.C.G.S. sec. 146-6 expressly permits the State to grant submerged
land to riparian owners along the banks of navigable watercourses for the
purpose of constructing wharves out to deep water. "But persons making
such entries shall be confined to straight lines, including only the fronts
of their own tracts, and shall in no respect obstruct or impair navigation."
The Court has construed this legislation to mean that only a riparian owner
may obtain such a grant.283 It has been held that in so doing the riparian
owner obtains only an easement in (not title to) the bed of the navigable
waters for the purpose of building a wharf.284
In a case in 1952 the Court indicated that every riparian owner of lands
bordering on navigable water has a qualified property right in the water
frontage belonging by nature to such land, the chief advantage of which is
a right of access over an extension of the waterfront out to the navigable
part of the water and the right to construct wharves, etc., subject to State
legislative restrictions imposed for the protection of public rights. The

281. Parmele v. Eaton, 240 N.C. 539, 83 S.E. 2d. 93 (1954); Resort Development
Co. v. Parmele, 235 N.C. 689, 71 S.E. 2d 474 (1952); Perry v. Morgan, 219 N.C.
377, 14 S.E. 2d. 46 (1941).
282. Home Real Estate Loan and Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E. 714
(1938).
283. Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890); Atlantic and N.C.R. Co. v.
Way, 169 N.C. 1, 85 S.E. 12, 15 (1915); Zimmerman v. Robinson, 114 N.C. 39, 19 S.E.
102 (1894); Shepard's Point Land Co. v. Atlantic Hotel, 134 N.C. 397, 46 S.E. 748
(1904).
284. Atlantic and N.C.R. Co. v. Way, 172 N.C. 774, 90 S.E. 937 (1916); Home Real
Estate Co. v. Parmele, 214 N.C. 63, 197 S.E. 714, 719 (1938). The early history of
this legislation is discussed in Shepard's Point Land Co. v. Atlantic Hotel, 132 N.C.
517, 44 S.E. 39 (1903).







NORTH CAROLINA WATER LAW


Court enjoined the defendant from building a breakwater and park along a
riparian owner's waterfront.285

Federal Interest in Navigable Waters
The State Supreme Court has said that 'the power to regulate the use
of navigable waters in the state, subject to the power in the national gov-
ernment, is in the General Assembly."286
In a Federal case in North Carolina the Court of Appeals said that:

The regulatory power of the federal government over the navigable waters of
the United States rests upon section 8, subd. 3 of article 1 of the Constitution,
which authorizes Congress "to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes." ...And it is well settled
that the power of Congress over waters which are susceptible of being used in
their ordinary condition as highways for interstate or foreign commerce is
plenary. ...On the other hand, it is not sufficient to bring a stream under the
regulatory power of Congress that it merely be susceptible of some sort of navi-
gation. ...the stream must be susceptible in its natural condition of becoming a
highway of interstate or foreign commerce; i.e., it must be of such a nature and
so situated that there is at least a practical possibility of its being used as a
highway for such commerce; ... 287

In a Federal case arising in North Carolina, involving the Roanoke
River, three justices of the United States Supreme Court said, in dissen-
ting opinions, that Congress has complete control over a navigable stream
for purposes of "navigation, flood control, watershed development, and the

285. Gaither v. Albemarle Hospital, 235 N.C. 431, 70 S.E. 2d. 680 (1952), citing
S Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890).
286. Pedrick v. Raleigh and PSR Co., 143 N.C. 485, 55 S.E. 877, 882 (1906). In
State v. White Oak River Corp., 111 N.C. 661, 16 S.E. 331, 332 (1892), the Court
said that the authority of the State to prevent nuisances in navigable waters ceases
S only when it conflicts with the Federal government acting within the purview of its
powers.
287. United States v. Doughton, 62 F.2d. (C.C.A. 4th) 936, 938 (1933). Other
Federal court descriptions of the criteria of navigability, apparently for Federal
purposes, were cited by the State Supreme Court in Home Real Estate Co. v.
Parmele, 214 N.C. 63, 197 S.E. 714, 717 (1938) as follows: "the term 'navigable
waters' has reference to commerce of a substantial and permanent character to be,
or which'may be, conducted thereon. Leovy v. United States, 177 U.S. 621.. .By
'navigable waters' are meant such as are navigable in fact and which by themselves
or their connection with other waters, form a continuous channel for commerce with
foreign countries or among the states. United States v. The Montello, 11 Wall. 411,
20 L.Ed. 191; Miller v. New York, 109 U.S. 385. ." These general criteria for Fed-
eral purposes also were cited in State v. Baum, 128 N.C. 600, 38 S.E. 900, 901 (1901).







266 LAW OF WATER ALLOCATION

generation of electric power."288 They added that the water power inher-
ent in the flow of a navigable stream belongs to the Federal Government,
that dam sites are public property, and that, even though title to the bed
of such a stream may be in private individuals, they have no compensable
interest as against the control of the Federal Government. The majority
of the Court, however, said that Congress had validly permitted the Fed-
eral Power Commission to grant licenses for private construction of hy-
droelectric projects, with appropriate safeguards of the public interest,
and that such general permission could lawfully be exercised by the Com-
mission to grant a license to a private power company to construct a hy-
droelectric generating plant on the river, under certain Federal legis-
lation.289
The State's Board of Conservation and Development has the power and
duty to cooperate with the Federal Power Commission to help carry out
its regulations, other than with respect to rates charged.290 Federal legis-
lation dating from 1920 provides, among other things, that the Federal
Power Commission is authorized to issue licenses to States, individuals,
and others "for the purpose of constructing, operating, and maintaining
dams, water conduits, reservoirs,-or other project works necessary or
convenient for the development and improvement of navigation and for the
development, transmission, and utilization of power across, along, from,
or in any of the streams or other bodies of water over which Congress
has jurisdiction under its authority to regulate commerce with foreign na-
tions and among the several States," or on any public lands or reservations
of the United States, or for the purpose of utilizing surplus water or power
from any Government dam, with certain exceptions. But no such license
may be issued which affects the navigable capacity of any navigable waters
of the United States unless approved by the Chief of Army Engineers and
the Secretary of the Army.291
"Navigable waters" for this purpose include those parts of streams and
other bodies of water which in their "natural or improved condition" are


288. Chapman v. Federal Power Commission, 345 U.S. 153, 176 (1953); citing
United States v. Appalachian Power Co., 311 U.S. 377, 424, 426 (1940), and Oklahoma
v. Atkinson Co., 313 U.S. 508, 525 (1940). In the Appalachian Power Co. case the
Court said that the authority of the United States to regulate interstate commerce
embraces navigation, flood protection, watershed development, and the recovery of
the cost of improvements through utilization of power. "That authority is as broad.
as the needs of commerce. Water power development from dams in navigable
streams is from the public's standpoint a byproduct of the general use of the rivers
for commerce." The Court added that the regulatory control over navigable waters
extends to their capacity as well as their use.
289. Chapman v. Federal Power Commission, 345 U.S. 153, 168 (1953).
290. N.C.G.S. sec. 113-16.
291. 41 Stat. 1065 and 1353; 46 Stat. 798; 49 Stat. 839; 16 U.S.C.A. sec. 797(e).







NORTH CAROLINA WATER LAW 267

"used or suitable for use" for transporting persons or property in inter-
state or foreign commerce, notwithstanding that they may be interrupted
by "falls, shallows, or rapids compelling land carriage."292
This legislation, however, does not purport to "affect or in any way to
interfere with the laws of the respective States relating to the control, ap-
propriation, use, or distribution of water used in irrigation or for munic-
ipal or other uses, or any vested right acquired therein."293
An Act of Congress passed in 1899 provides, among other things, that:
S "It shall not be lawful to construct...any...dam...over or in any...navigable
river, or other navigable water of the United States until the consent of
Congress...shall have been obtained and until the plans for the same shall
have been submitted to and approved by the Chief of Engineers and by the
Secretary" of the Army.294 Further approval is required to modify or de-
viate from the plans as approved. Dams may be built on rivers and other
waterways whose navigable portions lie wholly within one State, under au-
thority of that State's legislature, so long as the location and plans there-
for are submitted to and approved by the Federal officials designated above.295
Legislation also provides that "it shall not be lawful to excavate or fill,
or in any manner to alter or modify the course, location, condition, or ca-
pacity of, any...canal, lake,...or of the channel of any navigable water of
the United States," except on prior recommendation by the Chief of
Engineers and approval by the Secretary of the Army.296

292. 16 U.S.C.A. sec. 796(8). Federal courts have indicated that navigability
for purposes of Federal control does not depend solely on the natural condition of
a watercourse but extends to navigable capacity after reasonable improvements
which may be made to make it suitable for navigation. Georgia Power Co. v. Fed-
eral Power Comm., 152 F. 2d. (C.C.A. 5th) 908 (1946); United States v. Appalachian
Power Co., 311 U.S. 377, 409 (1940).
293. 41 Stat. 1077; 16 U.S.C.A. sec. 821. The U. S. Supreme Court has held that
this legislation is merely regulatory and does not purport to abolish riparian or
other private property rights to use navigable watercourses for power purposes
under State law, but only to impose certain limitations on the exercise of such
rights. Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239,
S241, 252 (1953). Nevertheless, the extent of a riparian owner's compensable inter-
est in the use of the water of a navigable stream, at least for hydroelectric power
purposes, in the event of condemnation by the Federal Government, appears to be
rather limited. See cases cited and discussed in 34 N.C.L.R. 545-550 (1956). See
note 627.
294. A Federal Court has expressed the view that the above-discussed legisla-
tion relating to the Federal Power Commission was intended as a way to permit the
construction of certain dams, etc. without obtaining the consent of Congress in each
case. United States v. Appalachian Power Co., 107 F. 2d. (C.C.A. 4th) 769, 795
S(1939); reversed on other grounds in 311 U.S. 377 (1940).
295. 30 Stat. 1151; 33 U.S.C.A. sec. 401.
296. 30 Stat. 1151; 33 U.S.C.A. sec. 403. The Secretary of the Army may pre-







LAW OF WATER ALLOCATION


The Tennessee Valley Authority Act provides that: "The unified de-
velopment and regulation of the Tennessee River system requires that no
dam, appurtenant works, or other obstruction, affecting navigation, flood
control, or public lands or reservations shall be constructed...or main-
tained across, along, or in the said river or any of its tributaries" until
plans therefore have been submitted to and approved by the Tennessee Val-
ley Authority.297 This agency has been empowered to construct and op-
erate certain Federally-owned dams.298 In operating such dams, it may
"regulate the stream flow primarily for the purposes of promoting navi-
gation and controlling floods."299 It may generate electric power with
such dams under prescribed conditions.s00 The writer is informed that
the Tennessee Valley Authority has constructed and maintains three mul-
tipurpose dams and one single-purpose hydroelectric power dam in west-
ern North Carolina. In addition, under a contract with the Aluminum
Company of America, it directs the storage and release of water at a
number of dams owned by that company in the same general area. All of
these dams are located on tributaries of the Tennessee River.
In the Flood Control Act of 1944, Congress provided for certain im-
provements of the Roanoke River Basin, along with several other river
basins in the United States, for flood control, power, and low-water regu-
lation.301 This included specific approval of the construction of the Buggs
Island Reservoir, with respect to which a State Commission now exercises
certain functions. (See John H. Kerr Reservoir Development Commission,
post.) It also included general approval of a comprehensive plan for the
development of the Roanoke River Basin, which had been submitted by the
Corps of Engineers. This included plans for the construction of certain
power dams as well as the multipurpose Buggs Island project.302 This

scribe various regulations for the "use, administration, and navigation of the navi-
gable waters of the United States..." 32 Stat. 374; 40 Stat. 266; 33 U.S.C.A. sec. 1.
The Statute includes penalty provisions. With respect to the withdrawal or diver-
sion of such waters see, e.g., Sanitary Dist. v. U.S., 266 U.S. 405 (1925); U.S. v.
Ormsbee, 74 F. 207 (1896).
The writer is informed that the Corps of Engineers, Wilmington District, has
exercised control over small dams placed in streams which were part of authorized
projects for navigation, by requiring permits for such construction, in some in-
stances even though the streams were not actually used for navigation.
297. 49 Stat. 1079; 16 U.S.C.A. sec. 831 y-1.
298. 48 Stat. 60, 63; 49 Stat. 1075, 1076, 1080; 55 Stat. 599; 61 Stat. 501; 16
U.S.C.A. sees. 831c, and 831 h-1.
299. 48 Stat. 63, 49 Stat. 1080; 16 U.S.C.A. sec. 831 h-1.
300. 48 Stat. 63, 64, 49 Stat. 1076, 1080; 16 U.S.C.A. sees. 831 h-1 and 831 i.
301. 58 Stat. 887, 894.
302. See H.R. Doc. No. 650, 78th Cong., 2d. Sess. (1944) discussed in Chapman
v. Federal Power Comm., 345 U.S. 153, 158, et. seq. (1953). In this case the Court
concluded that by approving the Corps of Engineers' comprehensive plan for devel-







NORTH CAROLINA WATER LAW


Federal legislation outlined relevant functions of various Federal agen-
cies including the Chief of Engineers, the Department of the Army, the
Federal Power Commission, and the Department of the Interior.303
The Act provided that licenses may be granted, without charge, to
State or local agencies for the use of such areas as public parks, and the
waters in such reservoirs shall be open to public use, without charge, for
boating, swimming, fishing, and other recreational purposes (when deter-
mined by the Secretary of the Army not to be contrary to the public inter-
S est, and subject to State laws for the protection of fish and game). Also,
contracts may be made with public and private concerns and individuals
for the use of surplus waters in such reservoirs 'for domestic and indus-
trial uses," provided existing lawful uses of such water are not adversely
affected. 304
In the Flood Control Act of 1936 the Congress defined the national in-
terest in flood control as follows:
It is hereby recognized that destructive floods upon the rivers of the United
States...constitute a menace to national welfare; that it is the sense of Congress
that flood control on navigable waters or their tributaries is a proper activity
of the Federal Government in cooperation with States, their political subdivi-
sions, and localities...that the Federal Government should improve or partici-
pate in the improvement of navigable waters or their tributaries, including
watersheds thereof, for flood-control proposes if the benefits to whomsoever
they may accrue are in excess of the estimated costs, and if the lives and social
security of people are otherwise adversely affected.305

The Congress added, however, in the Flood Control Act of 1944:
In connection with the exercise of jurisdiction over the rivers of the Nation through
the construction of works of improvement, for navigation or flood control, as here-
in authorized, it is hereby declared to be the policy of the Congress to recognize the
interests and rights of theStates in determining the development of the watersheds
within their borders and likewise their interests and rights in water utilization and
control, as herein authorized to preserve and protect to the fullest possible extent
established and potential uses, for all purposes, of the waters of the Nation's rivers;


opment of the Roanoke, Congress had not withdrawn the jurisdiction of the Federal
Power Commission to issue a license to a private power company to construct a
power dam at Roanoke Rapids.
303. For a discussion of the functions of the Corps of Engineers with respect
to navigation-improvement projects in North Carolina, see "Water Resources of
North Carolina," op. cit. Also see N.C.G.S. sec. 104-6 et. seq.
304. 58 Stat. 889-890; 33 U.S.C.A. 708. See "State and Federal Water Laws and
Considerations Affecting Future Legislation," op. cit., p. 122 et. seq., for an addi-
tional discussion of Federal laws and regulations.
305. 49 Stat. 1570, 33 U.S.C. sec. 701(a).
306. 58 Stat. 887-888, 33 U.S.C. sec. 701-1.







LAW OF WATER ALLOCATION


to facilitate the consideration of projects on a basis of comprehensive and co-
ordinated development; and to limit the authorization and construction of navi-
gation works to those in which a substantial benefit to navigation will be realized
therefrom and which can be operated consistently with appropriate and economic
use of the waters of such rivers by other users. 306

No reported State court decision, or Federal court case arising in the
State, appears to have dealt with the question of whether riparian or other
uses of nonnavigable watercourses or parts of watercourses which connect
with navigable waters shall be subject to limitation if they adversely affect
navigation or other public uses of the navigable waters.307 However, the
U.S. Supreme Court and other Federal courts have so indicated in certain
cases dealing with questions of Federal control.308

Additional Considerations

Natural Lakes and Ponds
With some exceptions, substantially the same legal principles would ap-
pear to apply to natural lakes as apply to other natural watercourses.309
While the Court apparently has not considered the question, riparian rights
(sometimes called "littoral" rights in the case of landowners adjoining a
lake) may afford protection against certain adverse uses of streams which
empty into the lake, while the use of the lake may be subject to certain
rights of riparian landowners along streams which lead from it.310 How-
ever, the beds of lakes, apparently whether navigable or not, ordinarily
may not be validly granted by the State to private persons. Legislation so
providing dates from 1827-28.311 Lands under nonnavigable lakes that
passed into private ownership prior to 1827 have been said not to be


307. See legislation making tributaries of State-owned lakes subject to regula-
tion of fishing therein, discussed under Fishing, ante. The legislation, discussed
earlier, requiring permission of T.V.A. to build dams in any tributary of the Ten-
nessee River presumably may apply to both navigable and nonnavigable tributaries.
308. See, e.g., Oklahoma v. Atkinson Co., 313 U.S. 508, 525 (1940) with respect
to the power of flood control and navigation; and Georgia Power Co. v. Federal
Power Commission, 152 F. 2d. (C.C.A. 5th) 908, 913 (1946) with respect to a non-
Federal hydroelectric power dam, construing the statutory regulatory power of
the Federal Power Commission, discussed earlier, with particular reference to 16
U.S.C.A. sec. 817.
309. This is discussed under Navigable Waters, ante. Moreover, different rules
may apply to the ownership of lands adjoining lakes which have receded (See Bound-
aries and Related Matters, post.)
310. See 93 C.J.S. Waters, secs. 104 and 109.
311. Laws, 1827-28, ch. 6; N.C.G.S. sec. 146.1 (2).



_ _
1







NORTH CAROLINA WATER LAW


subject to this legislation.312 It is problematical to what extent the rights
of riparian owners of land along nonnavigable lakes that passed into pri-
r vate ownership since 1827 might resemble the rights of riparian owners
along navigable lakes, whose beds generally could not be granted even be-
fore such time. Later legislation expressly provided that State-owned
lakes of 50 acres or more and certain other designated lakes could not be
sold and should be "held for the use and benefit of all the people of the
State." 313
A natural pond that is formed by the collection of diffused surface wa-
ters in a natural depression, with no natural watercourse leading into or
from it, has been considered by the Court as "surface water," rather than
a natural watercourse, although the drainage of, rather than rights to use,
such water was involved. See Surface Waters, post, for a more detailed
treatment of this question. Some natural bodies of water, whether called
lakes, ponds, swamps, or something else, perhaps may fall into this cate-
gory for various purposes. Another possible type of natural pond is one
that is fed, in whole or in part, by a natural spring or by percolating
ground waters. Some relevant considerations with respect to such ponds
are mentioned under Springs, post.

Place of Diversion
While a riparian owner may be able lawfully to divert water from a
natural watercourse, within limitations such as those described above,
statements by the Court in various cases indicate that generally he will
only be permitted to divert or otherwise take water from the watercourse
at some point on or along his riparian land.314
In some cases, particularly where riparian rights to erect wharves be-
yond the bank of a river were in question, the Court has stated that rights
between adjoining owners on the same side of the river, regardless of the
angle at which the property line dividing the two owners meets the river,
should be based on a line drawn at a right angle to the shore line at such

312. Hodges v. Williams, 95 N.C. 331, 338-339 (1886). But it apparently is not
clear whether a grant of land along such lake would have presumptively carried
title to any part of its bed.
313. See note 208.
314. See Briscoe v. Young, 131 N.C. 386, 42 S.E. 893, 894 (1902); Walton v.
Mills, 86 N.C. 280,282 (1882); Craft v. Norfolk and S. R. Co., 136 N.C. 49, 48 S.E.
519, 520 (1904); and concurring opinion of Judge Allen in Blue Ridge Interurban Ry.
Co. v. Hendersonville Light & Power Co., 169 N.C. 471, 86 S.E. 296, 300 (1915).
Where the right to flood another's land has been acquired by grant, prescription,
or condemnation or some related proceeding, such as under the milldam legisla-
a tion, there may arise a further question regarding the point at which water may be
diverted from the pond thus created.






LAW OF WATER ALLOCATION


point (assuming that the bed of the stream at this point has not been
granted to someone else, a situation which is discussed earlier).315
These general rules may be altered at least to some extent by contrac-
tual arrangements among two or more riparian owners.316 For example,
the Court in a case in 1941 said with respect to domestic uses that "those
who own the banks of a stream may, for their own convenience, contrive
and use facilities and devices for distribution of water amongst themselves
for such purposes, withdrawing from the flow needful quantities..." 317
This suggests that they might agree to have one point of diversion serve
their collective lands.

Boundaries of Watercourse and Related Matters
The Court in Kelly v. King (1945) said, with respect to deeds conveying
riparian lands, that: "While the general rule is that a description of land
as bordering on a nonnavigable stream carries to the thread of the stream
- this is rebutted by words which clearly restrict the grant to the edge
or shore of the stream."318 Nor would the rule apply if the bed previously
had been validly granted to someone else.319 In the Kelly case, the Court
noted that it had held earlier that the general rule did not apply where the
boundary called for in a deed was the margin of a swamp and thence along
the swamp, and concluded that a deed which called for the "high water mark"


315. O'Neal et al.v.Rollinson et al., 212 N.C. 83, 192 S.E. 688 (1937); Bond v.
Wool, 107 N.C. 139, 12 S.E. 281, 284 (1890) in accord with respect to rights of lit-
toral or riparian owners along navigable sound.
316. See Other Contractual Arrangements, post.
317. Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449, 451 (1941).
318. Kelly v. King, 225 N.C. 709, 36 S.E. 2d. 220, 223 (1945). The Court, in
support of the general rule announced, cited the earlier cases! of Rose v. Franklin,
216 N.C. 289, 4 S.E. 2d. 876 (1939) and Wall v. Wall, 142 N.C. 387, 55 S.E. 283
(1906). The latter case cited the following additional cases in support of this gen-
eral rule: Wilson v. Forbes, 23 N.C. 30 (1828); Ingram v. Threadgill, 14 N.C. 59
(1831); Williams v. Buchanan, 23 N.C. 535 (1841) and Rowe v. Cape Fear Lumber
Co., 128 N.C. 301, 38 S.E. 896 (1901); 133 N.C. 433, 45 S.E. 830 (1903). See also
Brooks v. Britt, 15 N.C. 481 (1834); and Dunlap v. Caroline Power & Light Co.,
212 N.C. 814, 195 S.E. 43, 45 (1938).
In support of the proposition that the general rule is rebutted by words clearly
limiting the grant to the edge of the stream, the Court cited Rowe v. Cape Fear
Lumber Co., 128 N.C. 301, 38 S.E. 896 (1901), reaffirmed with modification in
133 N.C. 433, 45 S.E. 830 (1903). Additional cases in accord include Patapsco
Guano Co. v. Bowers-White Lumber Co., 146 N.C. 187, 59 S.E. 538 (1907). See
also dissenting opinion in City of Missoula v. Bakke, 121 Mont. 534, 198 P. 2d.
769, 791 (1948).
319. Hodges v. Williams, 95 N.C. 331, 339 (1886).






NORTH CAROLINA WATER LAW


of a nonnavigable sound carried title to the 'line of mean high water." 320
Ownership of the bed of a stream to its thread has been said to pre-
sumptively carry with it the title to any islands out to such point, while a
grant of land on both sides of a stream generally carries title to the en-
tire bed of the stream within the boundaries of such land.321
These same general rules and exceptions would appear to apply to the
original grants of such lands obtained by individuals from the government.
The Court has indicated that as to grants under the general entry laws,
owners along a nonnavigable stream would, without any express grant of
the stream's bed, be entitled thereto to its thread.322
Title to the beds of navigable waters ordinarily cannot be granted but
is reserved in the State. The Court in two early cases indicated that a
grant of lands bordering on such waters might, as a general rule, carry
to the 'water-mark,"323 possibly to the "low water-mark."324 But in a
later case the landowner was said to have, at most, only an easement in
land between the low and high water-mark "subject to the superior right
of the public to the use of the stream for navigation" and related rights
such as to build a drawbridge. The Court indicated that such land could
not be validly granted by the State.325 The State may, however, grant ri-
parian owners the right to build wharves on submerged lands out to deep
water. (See Navigable Waters, ante.) The owners of riparian lands have
a "qualified property in their water frontage," the chief advantage being
a right of access over an extension of their water fronts to navigable wa-
ters. Moreover, the right of navigation has been said not to include the
right to land on "the banks" of a navigable stream, other than at a public
landing, because the banks are private riparian lands.326


320. Kelly v. King, 225 N.C. 709, 36 S.E. 2d. 220, 223 (1945).
321. Wall v. Wall, 142 N.C. 387, 55 S.E. 283 (1906).
322. State v. Glen, 52 S.E. 321, 325, 326 (1859). See also Hodges v. Williams,
95 N.C. 331, 338-339, (1886); Ingram v. Threadgill, 14 N.C. 59 (1831); Williams v.
Buchanan, 23 N.C. 30 (1828). It appears that in the Hodges case, and perhaps also
in the others, the Court was referring to grants of riparian land by the State. But
it would seem that these same general rules might apply to grants from either the
Federal or the State Government, or from the Colonial Government. Incidentally,
the word "navigable" as used in the Hodges case, at p. 338, apparently was intended
S to be "nonnavigable."
323. Bond v. Wool, 107 N.C. 139, 12 S.E. 281, 284 (1890).
324. Wilson v. Forbes, 13 N.C. 30 (1828). In both cases the Court was constru-
ing some early legislation.
325. Lenoir County v. Crabtree, 158 N.C. 357, 74 S.E. 105 (1912).
326. Gaither v. Albermarle Hospital, 235 N.C. 431, 70 S.E. 2d. 680, 691 (1952).
See also Bond v. Wool, 107 N.C. 139, 12 S.E. 281, 284 (1890). Also see Fishing,
S Legislation, ante.







274 LAW OF WATER ALLOCATION

The Court has indicated that where a deed calls for a nonnavigable nat-
ural lake as a boundary, title presumptively extends only to the water's
edge.327 But in the case of an artificial lake or pond formed by damming
a natural watercourse so as to cause it to swell over its banks, title pre-
sumptively extends to the thread of the former natural watercourse, al-
though in cases where the artificial lake or pond has been in existence so
long as to "justly be considered a permanent body of water" and to have
acquired another well-defined boundary, the Court has held that the boun-
dary presumptively is the water's edge, the same as for a natural lake.328
(See Artificial Watercourses, post.) In a case of this type, the Court held
that the title to the bed of the long-standing artificial millpond was still
held by the successors in title to the original mill owner, who were held
not to be liable to the owner of the adjoining land for cutting timber on the
submerged land.329 Particularly in the case of such artificial lakes and
ponds ownership of the bed may often depend on special grants or reser-
vations in deeds, upon condemnation proceedings, or other complicating
factors.
Title to the bed of a nonnavigable lake might reside in the original
grantee (or grantees) from the State of the bed of such a lake if he has not
specifically conveyed such title to another.330 But ascertaining title to the
beds of certain swamps, lakes, and other submerged lands which once
were or still are vacant may be quite complicated because the title may
have been derived under various special legislative procedures.331 Legis-
lation now generally prohibits the State from granting title to beds under
lakes and certain.swamps.332
The Court has indicated that when a boundary is on a navigable lake
that has receded, if the lake receded "suddenly and sensibly," the land

327. Patapsco Guano Co. v. Bowers-White Lumber Co., 146 N.C. 187, 59 S.E.
538 (1907). Title to the beds of lakes ordinarily cannot be validly granted by the
State. See note 208.
328. Patapsco Guano Co. v. Bowers-White Lumber Co., 146 N.C. 187, 59 S.E.
538 (1907).
329. Ibid.
330. It apparently has not been definitely determined whether the general rule
that the original grant of riparian land along one side of a natural nonnavigable
watercourse carried title out to the thread of the stream also would be generally
applicable to the original grants of land adjoining various natural lakes whose beds
had not been expressly granted previously to someone else. Hodges v. Williams,
95 N.C. 331, 338-339 (1886). The Court did not apply this general rule to a grant
of land adjoining a nonnavigable swamp. Rowe v. Cape Fear Lumber Co., 128 N.C.
301, 38 S.E. 896 (1901); 133 N.C. 433, 45 S.E. 830 (1903).
331. Several of the various statutory provisions are described under Navigable
Waters, ante. A number of such complications were involved in Home Real Estate
Loan and Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E. 715 (1938).
332. N.C.G.S. sec. 146-1, et. seq., discussed in note 208.







NORTH CAROLINA WATER LAW


uncovered belongs to the State which has held title to the bed; but if it re-
ceded "gradually and insensibly" or "imperceptibly" the land thus uncov-
ered belongs to the private owner of the shore.333 However, if the lake is
nonnavigable, the riparian or littoral owner gets nothing by such accretion,
even though it occurs gradually and imperceptibly, unless he holds title to
the lake bed. The land uncovered goes instead to the owner of the lake
bed.334 The Court has indicated that similar rules would apply to natural
streams as well as lakes.
The foregoing has dealt primarily with the general legal principles that
have been applied. Boundary questions often may be affected by complica-
ting circumstances such as special grants, reservations in deeds, condem-
nation proceedings, and other complications.335
The Court does not appear to have expressly considered whether or
under what circumstances riparian rights to make use of waters in a wa-
tercourse may be lost to land transferred by a deed which calls for a
boundary only to some point on or along the bank rather than the water's
edge, at high water mark or otherwise. This possibility perhaps was sug-
gested in the case of Young v. City of Asheville, et. al., in which a deed
was held to call for the track of a railroad which ran along the stream
rather than the stream itself.336

Instances Where Prior Use May Receive Preferential Treatment
Although the Court has indicated that a prior use ordinarily will not be
given any preference over later uses of the same natural watercourse,
some exceptions have been injected into the North Carolina law from time
to time, primarily through legislation.
For example, the current version of early milldam legislation provides
that, when a milldam has been lawfully erected by exercising certain court
proceedings, "no other person shall have the right to erect or maintain
any dam, ditch, waterway, drain or race" that will overflow or pond water
within 200 feet of such "millsite or premises."337 But this legislation

333. Murry v. Sermon, 8 N.C. 56 (1820); Hodges v. Williams, 95 N.C. 331, 339
(1886); Jones v. Turlington, 243 N.C. 681, 92 S.E. 2d. 75 (1956); N.C.G.S. sec.
146-1 et seq. prohibits the State from granting title to beds of lakes, including
lands "gained therefrom by the recession, draining, or diminution of such waters."
This does not necessarily abrogate the rule stated above, but the question appar-
ently has not been decided.
334. Hodges v. Williams, 95 N.C. 331, 339 (1886).
335. The significance of the ownership of the lands under navigable waters has
been discussed earlier under Navigable Waters, while the significance of the owner-
Sship of beds of nonnavigable watercourses has been discussed under Detention or
Obstruction of Water with Dams, etc., and Fishing, ante.
E 336. See Definition of Riparian Land and Use of Water on Nonriparian Lands, ante.
.337. N.C.G.S. sec. 73-21. See also note 407.







LAW OF WATER ALLOCATION


requires that a special condemnation proceeding be employed in order to
gain its protective advantages, and probably relates only to public, not
private, mills. 338
Some early general and special legislation granted or permitted the
granting of exclusive ferry boat franchises along navigable streams, by
the State, county courts, or county commissioners.339 Once such a fran-
chise was obtained, no similar ferry boat operation would be permissible
within a certain distance from such ferry. This also appears to have been
generally true under the Common Law prior to such legislation.340 How-
ever, while such franchises may be exclusive, it would appear that many,
if not all, of them could be revoked at will by the Legislature or other
granting authority.341 At any rate, this legislation related to ferries which
served the public and apparently applied only to navigable waters, over
which the State has been said to have extensive control for such purposes.342
(See Navigable Waters, ante.)
While the Court in one early case indicated that ordinarily a ferry
franchise could be granted only to a riparian landowner,343 in a later case
it indicated that the Legislature could, if it saw fit, grant a ferry franchise
to anyone, and could authorize condemnation of a riparian owner's land as
a public landing place. Nothing perhaps would need to be paid to other ri-
parian owners for thereby preventing them from starting a ferry, although
a fee may have been exacted for the franchise.344
Legislation having limited application provides that grantees of lands
covered by navigable waters who improve such lands for the purpose of
hauling fish nets and seines thereon shall have prior right to use such
lands and presumably the overlying waters for such purposes. 345

338. See Condemnation and Related Proceedings, post.
339. The various early statutes are construed, among other cases, in In re.
Speese Ferry, 138 N.C. 219 (1905); Broadnax v. Baker, 94 N.C. 675 (1886); and
Barrington v. Ferry Co., 69 N.C. 165 (1873).
340. See In re Speese Ferry, 138 N.C. 219, 222, 50 S.E. 625 (1905); Broadnax v.
Baker, 94 N.C. 675, 677-678 (1886); Barrington v. Ferry Co., 69 N.C. 165, 170 (1873)
341. See In re Speese Ferry, 138 N.C. 219, 222-223, 50 S.E. 625 (1905); but
see Barrington v. Ferry Co., 69 N.C. 165, 172 (1873) as to possible need of com-
pensation in certain cases.
342. See In re Speese Ferry, 138 N.C. 219, 221-222, 50 S.E. 625 (1905); Pipkin
v. Wynns, 13 N.C. 402 (1828-30).
343. Pipkin v. Wynns, 13 N.C. 402, 406 (1828-30). The Court indicated that if
one riparian owner would refuse to operate a ferry another could be granted the
right by the state on paying compensation for the land of such riparian owner which
was taken for such purpose, in the nature of condemnation.
344. See Barrington v. Ferry Co., 69 N.C. 165, 173 (1873); and State v. Glen, 52
N.C. 321, 334 (1859).
345. N.C.G.S. sec. 113-233. But a grant of lands under navigable waters ordi-
narily cannot be validly obtained. See Navigable Waters, ante.







NORTH CAROLINA WATER LAW


It may also be noted that with respect to legislation providing condem-
nation powers for the purpose of building hydroelectric power dams, the
Court has held that a prior right of condemnation of a particular dam site
and associated rights of way belongs to that company which first defines
and marks its route and adopts it as its permanent location.346

Flood Waters
Flood waters may include both waters which do and waters which do
not overflow the banks of a watercourse during flood periods. Several
cases have dealt with the flooding of others' lands, caused by dams or
other obstructions, as well as the pollution of lands flooded by polluted
waters. Liability often has been imposed for causing damage in this way,
in some cases even though the damage was in part due to natural flood
conditions.347
These cases have dealt with negative rights not to have one's lands pol-
luted or otherwise damaged in this manner, rather than any positive rights
to make use of such waters and prevent their returning to watercourse as
they might otherwise naturally do. The question of exercising any such
rights so as to cut off a part of the waters used by a lower owner to run
his mill may have been involved, however, in one early case.348 In this
case, the question of whether waters which overflow the banks of a stream
in a swampy area shall be treated the same as waters in the watercourse
or as "surface water" was presented to, but not expressly considered by,
the Court. (This will be discussed later, under Surface Waters.)
Another question which apparently has not been dealt with by the Court
involves rights, if any, to have the benefit of natural flooding (and deposit-
ing of soil) on adjoining lands. In one case a riparian landowner was de-
nied recovery of damages for the alleged loss of enriching deposits of
silt due to the maintenance of a dam upstream, but on the grounds that
this was not shown to have been caused by the dam, 349 In another case the
Court allowed a farmer to recover damages against an upstream polluter
for the death of his hogs which drank from polluted flood waters which
had collected in natural depressions on his land.3s0 A landowner may well
have extensive rights to use flood waters so collected for a variety of pur-
poses, but this case did not clearly so indicate.

346. Carolina-Tennessee Power Co. v. Hiawansee River Power Co., 171 N.C.
248, 88 S.E. 349 (1916); 175 N.C. 668, 96 S.E. 99 (1918); dismissed by U.S. Su-
preme Court for lack of jurisdiction, 252 U.S. 341 (1919).
347. See Detention or Obstruction of Water with Dams, etc., ante, and Pollu-
tion, post.
348. Williamson v. Locks Creek Canal Co., 78 N.C. 156 (1878).
349. Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 48 (1938).
350. Nance v. Merchants' Fertilizer and Phosphate Co., 200 N.C., 702, 158 S.E.
486 (1931).


I






278 LAW OF WATER ALLOCATION

Some other cases have dealt to some extent with questions of rights to
use or alter flood waters which do not overflow the banks of a watercourse,
usually by the construction and operation of a dam, as has been discussed
earlier. These cases tend to indicate that riparian rights attach to such
waters as well as to more ordinary stream flows, although the legal prin-
ciples which have been applied have been adapted to their particular char-
acteristics.351

Watershed Protection and Flood Prevention
In 1954, the United States Congress enacted the Watershed Proctection
and Flood Prevention Act. As amended in 1956, this Act, in general pro-
vides for Federal technical and financial assistance to such local agen-
cies and organizations as are willing and authorized under State law to
assume responsibility for initiating, carrying out, maintaining, and shar-
ing the costs of works of improvement to help conserve, develop, utilize,
and dispose of water for a variety of purposes, including the prevention
of erosion and flood water and sediment damages, and the supplementing
of any needed downstream flood-control measures.352 Any State or politi-
cal subdivision thereof, soil or water conservation district, flood preven-
tion or control district, or other local public agency having authority
under State law to carry out, maintain, and operate the works of improve-
ment is eligible to participate in the program.
1. Type and conditions of assistance: Upon request, the Secretary of
Agriculture is authorized, among other things, to assist local organiza-
tions under specified conditions in :7(a) conducting surveys and investi-
gations and preparing plans of work, (b) making allocations of costs to the
various purposes and determining whether benefits exceed costs, (c) en-
tering into agreements to furnish financial assistance, including loans, ad-
vancements, or appropriations, within specified limitations, and (d) obtain-
ing the cooperation of other Federal agencies. For certain projects, the
approval of certain Congressional committees, and/or the recommenda-
tions of the Secretaries of the Interior and/or Army, shall be obtained.
2. Conditions of assistance: To be eligible for assistance from the
Federal Government the local organization must (a) agree to acquire with-
out cost to the Federal Government the necessary land and rights-of-way;
(b) acquire, or provide assurance that landowners or water users have
acquired such water rights, pursuant to State law, as may be needed in
the installation and operation of the works of improvement (rights to use
watercourses or other waters developed in such watershed projects would


350. Nance v. Merchants' Fertilizer and Phosphate Co., 200 N.C. 702, 158
S.E. 486 (1931).
351. See Detention or Obstruction of Water with Dams, etc., ante.
352. 68 Stat. 666, 70 Stat. 1088; 16 U.S.C.A. sec. 1001, et. seq.






NORTH CAROLINA WATER LAW


seem to depend in part upon the factors considered under Artificial Water-
courses and Developed Waters, below), (c) obtain agreements to carry out
recommended soil conservation measures and proper farm plans from
owners of not less than 50% of the lands situated in the drainage area above
each retention reservoir to be installed with Federal assistance, (d) agree
to assume a proportionate share of the cost of ins' calling any works of im-
provement applicable to the agricultural phases of the conservation, de-
velopment, utilization, and disposal of water, and all of the costs applicable
to other purposes, such as capacity for industrial or municipal water sup-
plies, except that any part of the construction cost (including engineering
costs) applicable to flood prevention and related features shall be borne by
the Federal Government, and (e) agree to make satisfactory arrangements
for defraying the cost of operating and maintaining such works.
3. Limitations on size of projects and structures: No project under
this legislation shall embrace an area in excess of 250,000 acres nor shall
any single structure have a floodwater detention capacity of more than
5,000 acre-feet, nor a total capacity of more than 25,000 acre-feet.
The State Soil Conservation Committee has been designated by the Gov-
ernor as the agency to approve proposed local watershed projects on be-
half of the State.353 The writer is informed that the U.S. Department of
Agriculture, by August, 1956, had received 13 applications for approval of
such watershed projects in North Carolina. Four such applications had
been approved by the Department for preparation of a work plan. The
sponsoring local agencies or organizations in one or another of the ap-
proved applications included soil conservation districts, drainage districts,
county boards of commissioners, and cities.354
Certain Federal legislation relative to flood control has been discussed
under Federal Interest in Navigable Waters, ante.


ARTIFICIAL AND DEVELOPED WATERCOURSES

Artificial watercourses may include, among other things, artificially
constructed canals or stream channels, or ponds or lakes that have been
artificially constructed with the aid of dams, excavations, or by other
means, which are located in or connect with a natural watercourse. Fre-
quently there may be a mixture of natural and artificially developed

353. See "State and Federal Water Laws and Considerations Affecting Future
Legislation," op. cit., p. 26.
354. The State's Attorney General has specifically stated that soil conserva-
tion districts may carry out, operate and maintain works of improvement under
this program. Opinion of Harry McMullen, Attorney General of North Carolina,
dated Feb. 8, 1955. See N.C.G.S. sec. 139-8 (5). Also see Soil Conservation Dis-
tricts and Levee or Drainage Districts, post.






LAW OF WATER ALLOCATION


waters in a natural watercourse. The term "artificially developed waters"
is herein meant to include waters that would not have been found to exist
naturally in a particular location at a particular time. This ordinarily
would include some proportion of the waters detained in a pond or lake
above a dam.

Artificial Watercourses

We shall first consider rights in artificial watercourses such as canals
or artificially constructed stream channels. In a case in 1902 the Court
indicated that there would be no liability in cases where water is diverted
from a stream on one's land into artificial ditches or canals located solely
on such land, if the water is returned to the natural stream before it
leaves such land.355 But the Court in an 1882 case stated that while a ri-
parian owner "may use the water while it runs on his land, he cannot un-
reasonably detain it. ...and must return it to its ordinary channel when it
leaves his estate."356 (Italics supplied.) In an 1884 case the Court indi-
cated that one could be held liable where another's lands were flooded by
reason of the diversion of part of a watercourse into a canal with inade-
quate carrying capacity.357 Moreover, it would appear that the use made
of the water otherwise must be lawful to avoid liability. The withdrawal of
water from such a canal, or pond into which it may lead, for other than
domestic purposes, so as to materially diminish the flow of the natural
stream may be especially questionable. (See General Development of the
Riparian Doctrine, ante.) The Court has indicated that compensation
would need to be paid for diverting part of the water of a watercourse
through a canal into another watershed, to enhance the drainage of upper
farm lands, if this materially reduced the flow of water reaching a lower
riparian owner's mill, causing material damage.358

355. Briscoe v. Young, 131 N.C. 386, 42 S.E. 893 (1902).
356. Walton v. Mills, 86 N.C. 280, 282 (1882). Also see Nantahala Power and
Light Co. v. Moss, 220 N.C. 200, 17 S.E. 2d. 10 (1941) where the Court held that
the diversion of water from a power dam's reservoir through a tube to a power
plant and its return to the stream at a point below the lands of some lower riparian
owners was the proper basis for condemnation, suggesting that there might other-
wise have been liability for such diversion.
357. Fleming v. Wilmington and WR Co., 115 N.C. 676, 20 S.E. 714 (1894). This
case was complicated, however, by condemnation by a railroad company. (The
Court has followed a similar rule regarding the capacity of ditches built to drain
surface waters. Barcliff v. Norfolk S. R. Co., 168 N.C. 268, 84 S.E. 290 (1915). It
may be noted, however, that in cases concerning drainage into a natural water-
course on one's own land the Court has repudiated any requirement that natural
watercourses have sufficient capacity to carry the drainage water. (See Drainage,
post.)
358. Williamson v. Lock's Creek Canal Co., 78 N.C. 156 (1878). See note 407.







NORTH CAROLINA WATER LAW


In any event, the Court said that there would be liability for such di-
version and return if the natural watercourse ran along the boundary of
one's land and the artificial course were returned to it at a right angle so
that the water was thrown onto the opposite owner's land. Similarly, lia-
bility was imposed in a case (in 1904) where a stream was diverted out of
its watershed into another stream (which ran along complainant's land) at
right angles so that similar damage resulted.359 The Court in a number
of cases has held or said that there would be liability for diverting either
the entire or a part of the flow of a watercourse and thereby casting the
water upon or flooding others' lands to their damage, apparently whether
such lands are riparian or nonriparian, or lie within or without the water-
shed.360
The Court in at least two cases has said that a canal cannot be con-
sidered a natural watercourse "unless it is a mere enlargement of a nat-
ural watercourse."361 These cases involved the question of whether a
particular drainage ditch would qualify as a natural watercourse and in
both cases the Court held that it would not. In one case the Court said
that the fact that the canal in question was the most convenient way to
drain a farm, i.e., along the natural drainway from it, would not make the
canal a natural watercourse.362 In the other case, the Court so held even
though the drainage ditch may have been the only way to drain the farm-
land.363 The canal or ditch in both cases was shown to have been laid ar-
tificially across another's land. Finding them not natural watercourses, it
held in the first case that there was no extensive right of drainage into it
at a point on one's own land without liability (see Drainage, post) and in
the latter case that there was no right to be protected against the lower
damming of a river, a tributary of which the ditch drained into.
In another case the Court noted that a certain pond, built long before,
had existed "for generations" and had acquired a definite boundary which
was held to be the controlling boundary line called for in a deed of con-
veyance. The Court indicated that when a pond has existed until it is a
well-known landmark and is considered by the community to be a perma-
nent body of water with boundaries as well defined as natural lakes, the
359. Craft v. Norfolk S. R. Co., 136 N.C. 49, 48 S.E. 519 (1904).
360. See cases discussed and cited under General Development of the Riparian
Doctrine, ante., note 47 et seq.
361. Porter v. Armstrong, 129 N.C. 101, 39 S.E. 799, 801 (1901). Darr v. Caro-
lina Aluminum Co., 215 N.C. 768, 3 S.E. 2d. 434, 436 (1939).
362. Porter v. Armstrong, 129 N.C. 101, 39 S.E. 799 (1901).
363. Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E. 2d. 434, 437 (1939).
A drainway may be an enlargement of a natural watercourse which carries the
same natural waters which it did before the enlargement, but at a faster rate so as
to permit more rapid runoff. It may consequently carry less water during dry sea-
sons. What the Court might hold about the nature of rights to use such a stream is
problematical.







282 LAW OF WATER ALLOCATION

rule regarding boundaries is the same as that applied to natural lakes.364
Such an artificially constructed body of water, particularly if it con-
nects with a natural watercourse, sometimes might eventually become
subject to the same general rules which are applicable to the natural wa-
tercourse. The Court in a case in 1908 noted that:
...where an upper proprietor, by an artificial structure on his own premises,
has caused a change of a stream in which they both have riparian rights from
the original to a new channel, under circumstances which give indication that
the change is to be a permanent one, and the lower proprietor, accepting the
change, has built mills and made improvements dependent on the flow of the
stream in its new course, the enjoyment and use of these improvements will,
under certain circumstances, be protected by injunctive relief, Qr other efficient
action of the courts. 365
The Court concluded, however, that where under special legislative
permission there had been lawfully built on one's own land a canal which
diverted part of a natural lake and watercourse into another canal (for
the purpose of providing sufficient water for navigation of such canal),
there was no duty to continue the canal, which had not invaded any rights
of a lower owner along the watercourse. The canal had benefited the lower
owner by drawing off part of the lake water, thereby reducing the extent
of flood damage downstream. The Court held that the canal, although it
had been kept up for 40 years or more, could be discontinued at any time.
The Court appears to have emphasized that the canal apparently had been
built for a particular and temporary purpose, and had created a benefit
rather than a detriment to the complainant.366
Rights to use artificial or developed watercourses often may be com-
plicated by condemnation or related proceedings, by reservations, re-
strictions, or special grants included in deeds of conveyance, or by con-
tractual arrangements. This may be particularly true with respect to the
following subject.

Rights in and to Use Pond or Lake Created by Dam in Watercourse

Rights to use such a pond or lake, whether by the owner of the dam or
by others, may be limited or otherwise affected by the rights of the public
or of other riparian owners, particularly lower owners, along the natural
watercourse which has been dammed, e.g., by the amount of water which


364. Patapsco Guano Co. v. Bowers-White Lumber Co. 146 N.C. 187, 59 S.E.
538 (1907). See Boundaries of Watercourse and Related Matters, ante.
365. Lake Drummond Canal and Water Co. v. Burnham, 147 N.C. 41, 60 S.E.
650, 653 (1908). This case is also discussed under Prescriptive Rights, Estoppel,
and Dedication to Public Use, post.
366. Also see note 567.







NORTH CAROLINA WATER LAW


may need to be let down to lower owners.367 The following deals with ad-
ditional considerations regarding the use of the pond or lake, the mainte-
nance and repair of the dam, etc.
In a case in 1925 the defendant had erected a milldam in a creek and
acquired the right to pond water back upon the lands of the complainant. 368
This right was acquired by special condemnation proceedings under the
existing milldam legislation, after a prior license from the owner of the
flooded land was revoked.369 The Court said that the easement thus ac-
quired included all rights incident to the principal right to detain water
to run a mill, but it held that this did not carry with it the right to fish or
bathe in the pond created on another's land, and the defendant was enjoined
from doing so. There apparently was no public right of fishing or bathing
in the artificially constructed pond, whether or not there were such rights
in the natural flow of the creek.
In an 1850 case the Court held that the owner of a dam placed in a
stream which benefited a lower landowner by decreasing the natural flood-
ing of his land had no duty to keep it up for the lower owner's benefit.370
Similarly, some rules stated in a case in 1919 imply that if a dam and
pond are kept up solely for the benefit of the owner of the dam, and hence
called a "dominant" owner, he may abandon it without any liability to the
upper servientt) owner whose lands are flooded, although he alone must
bear the costs of any repairs he makes, in the absence of contractual ob-
ligations, prescriptive rights, or other complicating factors.371
The Court reached the same general conclusion in a 1922 case where
the owner of a dam across a river, which created an artificial lake, sold

367. See Detention or Obstruction of Water with Dams, etc., and Dams and
Other Obstructions, ante.
368. Thomas v. Morris, 190 N.C. 244, 129 S.E. 623 (1925). A 1938 South Caro-
lina case (Roger v. Montgomery, 198 S.E. 380) involved the question of a power
company's liability for the negligent operation of a boat which upset another boat
on a lake in North Carolina formed by the power company's dam. It was conceded
that the North Carolina laws were controlling. The Court concluded that the power
company although it had acquired title to all the land covered by the lake created
by its dam, took title subject to an express easement in the deed of conveyance
which permitted the grantees, among other things, to run pleasure boats on the
lake. The Court concluded that the power company had no control over the boat
operator's use of the lake for such purposes and hence could not be held liable for
the negligent operation of another's boat. The Court said that Thomas v. Morris
had "some controlling influence" on the question. The milldam owner there had
acquired no title, but only a flowage easement, in the lands of others covered by
the millpond.
369. See Milldams and Related Purposes, post.
370. Felton v. Simpson, 33 N.C. 84 (1850).
371. Lamb v. Lamb, 177 N.C. 150, 98 S.E. 307 (1919). See also Lake Drum-
mond Canal and Water Co. v. Burnham, 147 N.C. 41, 60 S.E. 650 (1908), discussed






LAW OF WATER ALLOCATION


riparian lots along the lake with permission to boat, fish, and swim in it,
and to use it for "domestic purposes." The dam went out in a storm. Al-
though the owner of the dam here was called a servientt owner" (he had
agreed not to lower or raise the lake level more than a certain amount in
operating the dam for power purposes), the Court said that he had no lia-
bility to repair, maintain, or restore the dam in the absence of any express
agreement to do so.372


OTHER ARTIFICIAL PONDS OR LAKES

Rights in and to use ponds created by dams or embankments placed
across essentially "dry draws" or ravines may be based largely upon
rights in so-called "surface waters," discussed below. Ponds or lakes
created by excavations and supplied by ground waters may differ accord-
ing to whether their source is a definite underground stream or percola-
ting ground waters.
The Court apparently has not considered the extent or nature of the
right, if any, to pump or otherwise divert stream waters into an offstream
pond during a period of high stream flow, if it causes no damage to others,
for later use during periods of low flow. A somewhat stricter rule might
apply to diversion rather than.simply to the detention of water with a dam.
(Recall the possible distinction between diversion and detention discussed
under General Development of the Riparian Doctrine, ante.)
In some instances an artificially created pond or lake may be supplied
by two or more types of natural water sources. In this event the rights
therein may become quite complicated. However, questions of this nature
do not yet appear to have been expressly considered by the Court.


GROUND WATERS

Percolating Ground Waters

The Court apparently has not expressly defined percolating ground wa-
ters, but they would seem, in general, to constitute such waters as seep or

earlier, where the Court held that there was no duty to maintain a canal which had
benefited the lower owner by diverting part of a lake's waters into another canal,
thereby reducing the extent of flood damage downstream. With respect to the pos-
sibility of prescriptive rights and reciprocal easements arising in such cases, see
Prescriptive Rights, post.
372. Richardson v. Jennings, 184 N.C. 559, 114 S.E. 821 (1922). For a case
dealing with the pollution of an artificial lake created by damming a natural water-
course, see Anderson v. Town of Waynesville, 203 N.C. 37, 164 S.E. 583 (1932).
See Pollution, post.







NORTH CAROLINA WATER LAW


percolate through the ground and are not shown to be confined in any defi-
nite underground watercourse. The Court has considered waters in an
artesian basin to be percolating ground waters, as is discussed below.373
The first and only substantial clarification of the North Carolina laws
relating to the withdrawal and use of percolating ground waters occurred
in 1924, in the case of Rouse v. City of Kinston.374 This case involved a
suit for damages against the city for sinking artesian wells on land ad-
joining the complainant's plantation and removing water to supply the city
in such quantities as to greatly reduce the flow from the complainant's
artesian wells, thereby lowering the value of his plantation for farming,
residential, and other purposes. The jury awarded damages of $8,000,
which was affirmed oh appeal.
The Court adopted the so-called American rule of reasonable use with
respect to the use of artesian and probably other percolating ground
waters, and approved the following charge to the jury made by the lower
court:

This rule does not prevent the private use by any landowner of percolating wa-
ters subjacent to his soil in manufacturing, agriculture, irrigation, or otherwise;
nor does it prevent any reasonable development of his land by mining, or the
like, although by such use the underground percolating waters of his neighbor
may be thus interfered with or diverted; but it does prevent the withdrawal of
-underground waters for distribution or sale, for uses not connected with any
beneficial ownership or enjoyment of the land from which they are taken, if it
thereby follows that the owner of adjacent lands is interfered with in his right to
the reasonable use of subsurface water upon his own land, or if his wells,
springs or streams are thereby materially diminished in flow or his land ren-
dered less valuable for agriculture, pasturage, or for legitimate uses.... In the
absence of contract or legislative enactment, whatever is reasonable for the
owner to do with his subsurface water, he may do. He may make the most of it
that he reasonably can. It is not unreasonable for him to dig wells and take
therefrom all of the waters that he needs in order to get the fullest enjoyment
and usefulness from his land, for the purposes of abode, productiveness of the
soil, or manufacture, or whatever else the land is capable of. 375 He may con-
sume it at will; but to fit it up with wells and pumps of such pervasive and po-
tential reach that from their base he can tap the waters stored in the lands of



373. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 489 (1924).
374. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482 (1924). For another
discussion of this case see Comment on Reasonable Use of Percolating Waters,
3 N.C.L.R. 31 (1925)
375. The Court did not consider precisely what land one might lawfully use
such waters on, e.g., whether or not such land must be in one common ownership,
or the extent to which it may need to be, or the criteria for determining whether it
is overlying land.


i







286 LAW OF WATER ALLOCATION

others, and thus lead them to his own land, and by merchandizing it prevent its
return, to the injury of adjoining landowners, is an unreasonable use of the soil,
and in such event the injured neighbor may bring his action for damages. 376
This rule is somewhat similar to the rule of reasonable use applied to
surface watercourses, discussed earlier, but differs materially in that with
respect to the use of such ground waters on one's overlying land (as con-
trasted with use on riparian land along a stream), all the water reasonably
needed for beneficial purposes on such land may be lawfully withdrawn
thereon, apparently with little or no regard to its effect on the ground-
water supplies under adjoining lands. (While in the last-quoted sentence
the Court implied that the size of pump used might be given some consid-
eration, the distribution or sale of the water for use on nonoverlying lands
appears to be the principal consideration. The Court's earlier statements
quoted above suggest that in connection with the use of water on one's own
overlying land the size of one's pumps or well may have little significance.)
The so-called "correlative rights" rule was discussed by the Court, but
it was not adopted and was repudiated by implication. However, as the
city's withdrawal and use might have been considered unlawful under either
rule, it is conceivable that the Court may yet adopt the correlative rights
rule, particularly in some later case dealing with waters in an artesian
basin. In describing this rule, the Court quoted from a Minnesota case to
the effect that: "The law of correlative rights applies to the use by ad-
joining landowners of waters drawn from an artesian basin. Such proprie-
tors must so use their wells as to not unreasonably injure their neighbors.
The circumstances of a particular case may render it illegal for such
landowner to make merchandise of such supply in a particular manner."
The Court also quoted a Utah case as follows: "The owner of land is en-
titled only to a reasonable use of the percolating waters under his land
for purposes connected with the beneficial ownership or enjoyment of his
own land; and, for the use of such water by an owner to be a 'reasonable
use,' especially in an artesian district, it should be limited first to his
just proportion according to his surface area, and, second, he should not
be entitled even to this quantity to the injury of others similarly situated,
unless it is reasonably necessary for the beneficial purposes to which he
devotes the water; and the owner has no right to injure his neighbors by


376. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 493 (1924). The refer-
ence to possible liability for adversely affecting springs and surface streams
raises questions about interrelationships between water sources, which is dis-
cussed later. With respect to the nature of artesian waters, the evidence in this
case showed that the waters flowed naturally from the "artesian wells" without the
aid of a pump. It seems doubtful whether this would be the sole criterion of the
existence of an artesian basin, but the Court did not discuss the question.







NORTH CAROLINA WATER LAW 287

an unreasonable diversion of the water for the purpose of sale or carriage
to distant lands."377
(It may be noted that the Legislature in 1945 enacted an Oil and Gas
Conservation Act, to go into effect when commercial quantities are dis-
covered in the State, on the declaration of the Governor with the advice of
the Council of the State.378 This regulatory legislation is to be adminis-
tered by the Petroleum Division of the Department of Conservation and
Development. The Act declares it to be the State's policy to prohibit waste
and compel ratable production "in recognition of imminent evils that can
occur...in the absence of coequal or correlative rights of owners of crude
oil or natural gas in a common source of supply." Waste is defined to in-
clude, among other things, the locating, spacing, drilling, and equipping of
wells so as to cause excessive loss, above or below the surface, and "the
abuse of the correlative rights...of each owner" so as to cause dispropor-
tionate withdrawals "causing undue drainage between tracts of land."379
In any event, the Court expressly rejected the so-called "English" or
"common law" rule, which was said ordinarily to permit unlimited with-
drawal and use of ground waters on overlying or any other lands. The
SCourt said it would have had to deny any recovery under this rule. The
Court said that the American rule of reasonable use was supported by the
greater weight of authority in the United States (although with a substan-
tial minority view) and was "the just and equitable rule to follow." 380 The
Court added that: "Percolating water being mobile and unstable, and being
so important to health, agriculture, and industry, we think the 'reasonable
use' doctrine is correct in principle. Such an important factor in the hu-
man body and useful for other purposes should not be monopolized, as un-
der the English rule, but the American rule of reason should prevail."381

377. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 490 (1924).
378. N.C.G.S. sec. 113-378, et seq. This legislation is discussed in 23 N.C.L.R.
332.
379. See N.C.G.S. secs. 113-382 and 113-389.
380. The Court, in 123 S.E. 482, 489, said: "C.S. 970 is as follows: 'All such
Sports of the common law as were heretofore in force and use within this state, or
so much of the common law as is not destructive of, or repugnant to, or inconsis-
tent with, the freedom and independence of, this state and the form of government
therein established, and which has not been otherwise provided for in whole or in
part, not abrogated, repealed, or become obsolete, are hereby declared to be in
full force within this state.' This law was passed in 1778 (Chapter 5) and from an
examination is practically the exact language as C.S. 970." The Court concluded,
* however, that: "We do not think the English rule, laid down in 1843, applicable and
consonant or consistent with the just ideals of our government. It is persuasive,
but not binding on this court."
381. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 492 (1924). This argu-
ment tends to support the correlative rights rule even more than it does the rea-
sonable use rule.






LAW OF WATER ALLOCATION


In this case the city, instead of purchasing or using condemnation to
obtain needed water rights from the complainant, purchased a half-acre
tract of land adjoining the complainant's plantation, where an excellent
source of wholesome artesian water had been discovered, and sunk wells
(with no costs of exploration) and thus withdrew water from the artesian
basin.382 The Court said that: "Law is considered the perfection of rea-
son and founded on justice and common sense. It would be contrary to the
administration of justice and right to construe the law, in a case of this
kind, which would work injustice and wrong, to be that the plaintiff had no
remedy. The defendant realized that this percolating water in law and
morals could not be taken and sold as a commodity to the injury and detri-
ment of plaintiff, without just compensation. In its answer it says, 'and it
has continuously been ready, able and willing to negotiate with the plain-
tiff as to a money compensation.' "383
The loss in value of the plantation, by reason of the decreased flow of
artesian wells, for which damages were recovered, included the loss of
healthful water of good quality for household and other domestic purposes
(making it difficult to get tenants) as well as for agricultural uses. The
alleged lowering of agricultural productivity resulted from the loss of
water for dairy cattle, and possibly from the loss of irrigation, or pos-
sibly even from the lowering of the water table so as to impair the growth
of crops raised. The Court was not clear about this.384 The alleged de-
crease in agricultural productivity would seem to have resulted primarily
from a loss of irrigation or of water for dairy cattle, rather than from a
lowered groundwater level, particularly since the loss of water in a deep
artesian basin might not have a pronounced effect on the overlying water
table. (But recovery solely on account of a lowered water table which re-
tarded the growth of crops on overlying land was permitted in a New York
case, quoted in a California case which was quoted, in turn, in Rouse v.
Kinston.385 It was not clear that farm irrigation had actually been prac-
ticed, except that a home garden had been irrigated for a time. But the


382. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 492 (1924).
Even if the city itself had been located directly and entirely over the artesian
basin, it might not be permitted to make such use, without purchase or condem-
nation of such rights if this interferes with another's use, except perhaps on the
theory that the city's resident landowners had granted the city permission to sup-
ply their collective needs from a common point of withdrawal. To avoid additional
complications the city would do well to own the land at such location. There would
still be a possibility of liability to nonresidents unless the city entirely covered
the artesian basin and the use of no other waters were adversely affected by such
diversion.
383. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 493 (1924).
384. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 484, 492 (1924).
385. Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 490-491 (1924).

I




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs