Title: The Beneficial Use of Water in South Carolina - A Preliminary Report on the Historical, Physical and Legal Aspects of Water Problems in the State
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Title: The Beneficial Use of Water in South Carolina - A Preliminary Report on the Historical, Physical and Legal Aspects of Water Problems in the State
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Language: English
Publisher: CE Busby, Soil Conservation Service, US Dept. of Agriculture
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collections - The Beneficial Use of Water in South Carolina - A Preliminary Report on the Historical, Physical and Legal Aspects of Water Problems in the State
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text







THE

BENEFICIAL USE OF WATER

IN


SOUTH CAROLINA


A PRELIMINARY REPORT

For the South Carolina
Soil Conservation Committee
on the
Historical, Physical, and Legal Aspects
of Water Problems
in the State







Prepared at the request of
The South Carolina Soil Conservation Committee
by
C. E. Busby
SOIL CONSERVATION SERVICE
U. S. DEPARTMENT OF AGRICULTURE
JUNE 1952


I I






TABLE OF CONTENTS


The Beneficial Use of Water in South
Carolina, by C. E. Busby

THE SOUTH CAROLINA LAW QUARTERLY
SPECIAL ISSUE ON WATER LAW

American Water Rights Law, by
..C. E. Busby

Rights of the States in Their
Natural Resources, by
Dudley Warren Woodbridge

Riparian Rights in the Southeastern
States, by William H. Agnor

Ground Waters in the Southeastern
States, by Roscoe Cross

The Balance of Convenience Doctrine
in the Southeastern States,
Particularly as Applied to
Water, by Frank E. Maloney

A New Water Policy for South Carolina,
Report of the Water Policy Committee

ESSAYS ON WISCONSIN WATER LAW

Wisconsin Law of Waters, by
Adolph Kanneberg

The Law of Underground Water; A
Half-Centua of Huber v. Merkel,
by David Leo Uelmen

Present and Proposed Legal Control
of Water Resources in Wisconsin,
by Glenn R. Coates

The Movement for New Water Rights Laws
in the Tennessee Valley States







IOWA LAW REVIEW SYMPOSIUM ON WATER USE
AND CONTROL

Problems in Water Use and Control,
by John F. Timmons

Districts Affecting Water Use and
Control, by Robert L. Smith

Governing the Missouri, by Henry C. Hart

Water Rights in Iowa, by Eugene Davis

J Some Current and Proposed Water-Rights
Legislation in the Eastern States,
by Harold H. Ellis

Trends in the Statutory Law of Ground
Water in the Western States, by
Wells A. Hutchins

THE ECONOMICS OF THE CONTROL AND USE OF WATER

The Development and Present Status of
Water Rights and Water Policy in
the United States, by Wells A.
Hutchins

SSome Economic Issues in Water Rights,
by S. V. Ciriacy-Wantrup

Organization and Administrative Ar-
rangements for an Effective
Water Policy, by Harry A. Steele
and Mark M. Regan

Discussion, by Barlowe, Greenshields,
and Pine

Laws of Florida Governing Water Use, by
Frank E. Maloney

Riparian Rights in Florida, by Richard
H. Hunt


i











UNITE STATES
DEPARTMENT OF AGRICULTURE
SUIL CONSERVATION SYIC
Spartanburg, South Carolina

June 2o, 1952

Mr. J. B. Douthit
Chairman
State Soil Conservation Committee
Pendleton, South Carolina

Dear Mr. Douthit:

In accordance with the request of the State Soil Conservation
Committee, I am transmitting herewith a preliminary report for
the Committee concerning the beneficial use of water resources
in-South Carolina.

This report includes conclusions and recommendations based upon:
(1) consideration of recent events leading to the request of the
Committee, (2) consideration of the existing water laws of the
state, (3) examination of problems in the field with members of
your Committee and others, and (4) consideration of the vast
experience of the western 17 states in putting water to beneficial
use. In the latter regard I have had.the benefit of the advice
and extensive experience of Mr. Wells A. Hutchiwt Of the Soil
Conservation Service, Berkeley, California.

I consider it a real privilege to serve and work with the State
Soil Conservation Committee. The Coomittee is providing splendid
and vigorous leadership to Soil Conservation Districts and to all
the people of South Carolina.

Very truly yours,




C. B. B sby
Consultant to the 1pmittee






-I










SOUTH CAROLINA
SOIL CONSERVATION COMMITTEE

1952


J. B. Douthit, Chairman . . .... Pendleton, S.C.
Clair P. Guess, Jr., Executive Secretary. . Denmark, S.C.

J. Thad McCrackin, Jr. . . RFD, Newberry, S.C.

E. W. Sojourner . . . .... Marion, S.C.
C. B. Player. . . .... RFD, Bishopville, S.C.

T. Wilbur Thornhill . . ... .Charleston, S.C.






Special Counsel to the Committee

Honorable Samuel Prince . . .... Colunbia, S.C.
Dean of the Law School
University of South Carolina




Consultant to the Committee

C. E. Busby .......... .. .Berkeley, California
Soil Conservation Service









'RECENT EltSNTS LEADII TO T E-
PREBPARATr6k Obf THiIS REPORT E ,

South Carolina has been favored by an abundant supply
of wate- in its major streams, though mucV of this has
not been used. During the'e early years of tbe State' s
growth, water seems to have beelf taken for- wanted.
There have probably been many instances in South
Carolina when legislation has been thought of in con-
nection with handling our wVa -er problems. The South
Carolina Association of Soil Conservation District
Supervisors came to' recoghiae t~h6e' acutene's of our'
water management problems early in 1945 when District
Supervisors in the Coastal Plains of this state be-
came concerned over excessive waters damaging their
land'sa productivity. During' that year-, th' State Asso-
ciation adopted the policy of getting additional as-
sistance for Soil Conservation Districts- to handle
their water management with special reference to
drainage.
Three years later, in 1948, the.Association of
South Carolina Coastal Soil Conserytion Districts
was organized with T. Wilbur Thornhill Qf Charleston
as President to help with the problems of water
management in the Coastal-Plain counties,. One of the
early meetings of this Association was held in the
Francis Marion Hotel in.Charleston on March 17, 1948,
for the purpose of; (11 reviewing soils information
on seven counties in the Coastal Plainswhere soils
had been classified as a result of a reconnaissance.
survey, (8).reviewing an overall drainage plan which
had been.prepared by the. Soil; Conservatipa Service-at.
the request of the Jasper Soil Conseyatgion districtt
and other .Coastal Supervisors for Jasper County showing
the general location of watersheds covering the county
and the cost of proposed drainage operations ~aa, wll
as landq4 learning and other costs necessary to bring
into, cultivation land that is suitable, and (38 making
plans to accelerate the drainage of the lower Coastal
Plains of South Carolina. This meeting-was called by,
Dr. R. F. Poole, Pr*e.depntof ClemsonCollege) *t the
request of J. B. Douthit, President of the State Aspo-
IPOpaFreir from of-fci f1i rpoeor. am4 fl d 9fe r-4- oAs by
Clair P. Guess, Executive Secretary of the South Carolina
Soil Conservation Comittee.
; st,







ciation of Soil Conservation District Supervisors.
Dr. Poole issued invitations to representatives of
Federal and State Agencies, businessmen, congressmen,
state legislators, and individual farmers. Approx-
imately 125 people were present.
From some of these deliberations came further
studies on the part of South Carolina conservation
leaders when in August, 1949, Governor J. Strom
Thurmond appointed a committee composed of:
M. E. Abrams, Chairman
Senate Agricultural committee, Whitmire, S. C.
T. Manley Hudson, Chairman
House Agricultural Committee, Greer, S. C.
Henry C. Walker, Member of the Senate,
Ridgeland, S. C.
Don V. richardson Member of the House,
Georgetown, S. 6.
C. P. Player, Soil Conservation District Supervisor,
Bishopville, S. C.
J. G. Murray, Soil Conservation District Supervisor,
Edisto Island, S. C.
The conference in the Governor's office at this time
was attended by the above members of the Committee
along with members of the State Grange, South Carolina
Farm Bureau, representatives from Clemson College, the
Soil Conservation Districts of South Carolina, and
from the Sdil Conservation Service. Again a meeting
was called for the purpose of studying certain broad
water problems, including land drainage, on September
7, 1949. At this meeting the following conclusions
were arrived at: (1) any program considered should not
be limited to drainage but should rather be one of
overall water management including the control and
impounding of water for the prevention of soil erosion
and its utilizati6n through irrigation so that all
sections of the'state would benefit, (2) arrangements
should be made"for a trip to Louisiana to study at
first hand their approach to water management, setting
the date'for this trip as November 13, 1949, and (3)
that the Committee extend an invitation to Clemson
College the State Farm Bureau, and the State Grange
to send representatives on this tour. ( A more com 1-
plete report of this Louisiana study may be obtained
through the State Soil Conservation Committee).
It should be noted at this point that from the
beginning of the considerations of water management'

IV







through Soil Conservation Districts that South
Carolina has made a most worthwhile and rapid
industrial growth. Demands fbr water have increased
approximately fourfold for industrial and municipal
use and wdfold'for agricultural use for the year
1950 as compared with the year 1945. But figures on
agricultural use are not too reliable. Irrigation
use probably would increase this figure,considerably.
At the same time municipal and industrial progress has
created new demands in water use; agricultural pro-
gress had demanded additional use of waters for irri-
S nation purposes.
On October 10, 1950, J. B. Douthit, President of
the South Carolina Association of Soil Conservation
District Supervisors, presided at a water conservatioa
planning conference held in Columbia. At this meeting
were representatives for the Research, Planning and
Development Board, Soil Conservation Service, U. S.
Geological Survey, Clemson College, Extension Service,
State Health Board,,South Carolina Department of
Forestry, Soil Conservation District Supervisors,
South Carolina Highway Department, .Seaboard Air Line
Railroad Company, Atlantic Coast Line Railroad Company,
Southern Railway System, South Carolina Bankers,Asso-
ciation, South Carolina Cotton Manufacturers Asso-
ciation, State Department of Education,,South Carolina
Association of Municipal Officials, South Carolina
Farm Bureau, South Carolina Grange, U.! S. Forest
Service, Southern Pulpwood Ass4ciation, United States
Army Ingineers, Chief Game Warden, Department of
Agriculture, South Carolina.Chamber of Commerce,
Farmers Home Administration, Farm Credit Corporation,
South Carolina Electric and Gas Company, Duke Power
Company, Carolina Power and Light Company, and the
South Carolina Public Service Authority.
As a result of this meeting a resolution was pre-
sented which in effect recognized the importance of
water as a natural resource and placed the responsi-
biliiy on the President of the South Carolina Asso-
ciation of Soil Conservation District Supervisors to
appoint a steering committee to collaborate with the
Research, Planning and Development Board in initiating
a water management program forithe state, and, fur-
ther, that the General Assembly be requested to
appropriate such funds as might be deemed necessary
in the promotion of this program'.
V


------i ---'-7'17~:~~" ~~~-'-F~" ~CCmmmrC3a~~l~-~~=~~







The State Soil Conservation Committee, as it is now
composed under the amended Soil Conservation- Districts
Act of South Carolina of 1937, began its duties July
1, 1951. In so doing, the Committee has recognized,
as a primary responsibility to Soil Conservation
Districts in the state of South Carolina, the need '
for finding effective means of handling its water
problems. The Committee recognizes that these pro-
blems not only affect agricultural enterprises but
municipal and industrial users as well.
In September, 1951, the State Soil Conservation
Committee, in session with its Advisory Committee,
discussed as its main topic the need for a carefully
planned water management program for South Carolina.
Again in November, 1951, at Clemson, the Executive
Committee of the State Association in joint session
with the State Soil Conservation Committee, and the
South Carolina Research, Planning and Development Board
passed the following resolution: "That the South
Carolina Association of Soil Conservation District
Supervisors request the South Carolina Research,
Planning and Development Board, the South Carolina
Health and Sanitation Board, the South Carolina Soil
Conservation Committee, and other interested users of
water to join in requesting the General Assembly of
South Carolina to pass an enabling Act to empower the
Board of Trustees of Clemson College, to direct a
study, investigation, and conduct such surveys as may
be necessary to the assembly of all the information
possible, pertinent to and being a part of the water
management practices, problems, and conditions of the
State of South Carolina".
"Further, that sufficient funds be provided to carry
out the intent of this proposed Act."
"Further, that existing departments of the State of
South Carolina be requested to cooperate with the
Board of Trustees of Clemson College in every way
possible toward accomplishing the intent of these
proposals."
Following these activities specific problems have
been brought to the attention of the State Soil Con-
servation Committee' through the South Carolina Asso-
ciation of Soil Conservation District Supervisors.
One of the more important ones originated on a Piedmont
stream where for more than thirty-five (35) years a

VI







municipality, occupying a non-riparian topographic
position, has been using the flow of the,stream for
its municipal needs. During the summer of 1951, a -
riparian agricultural user on the stream above the
city's pumping station and one below it began irri-
gation. These three users practically exhausted the
stream supply during the summer of that year. The
City had to ration its water supply temporarily to
prevent a crisis. The two agricultural users had to
"stand by" with no water to further their irrigation
projects. Even though no litigation arose over this
shortage situation, it appeared that the water laws
and programs of South Carolina were inadequate to
protect the investments and rights of these three
parties in and to their just portions of the stream
flow or to permit an adequate physical solution of
their problem by storage in reservoirs or otherwise.
The Soil Conservation District Supervisors of this
-particular district requested through resolution that
the South Carolina Soil Conservation Committee and the
State Association take immediate steps to bring about
the adoption of legislation that would help settle
this dispute and others of a similar nature.
RE SOLUTION
WHEREAS, water is one of South Carolina's valuable
resources, and:
WHEREAS, it is in variable supply, and:
WHEREAS, demands on the available supply are being
increased annually by agriculture, industry,
and municipalities, and:
WHEREAS, existing state law based on the English law
governing riparian rights is believed
inadequate, and:.
WHEREAS, we are advised that the Soil Conservation
Committee of South Carolina'is aware of
these facts and has initiated action by
requesting the Soil Conservation Service
for basic facts relative to water use legis-
lation.
NOW, THEREFORE BE IT RESOLVED that the Association
of Soil Conservation District Supervisers
of South Carolina join the Soil Conservation
Committee of South Carolina in recognizing
this need, and:
BE IT FURTHER RESOLVED, that the Association lend
its full support tb a study of water con-
servation needs and use by appropriate
state agencies assisted by Federal,
Agencies, and%
BE IT FURTHER RESOLVED, that the U. 8. Department
of Agriculture, through its Soil Conser-
vation Service, be requested to review
existing laws on water rights and usage
VII


T ..,-- -







and recommend a water use code for South
Carolina, and:
BE IT FURTHER RESOLVED that the President and
Secretary of this Association be and they
are directed to furnish copies of this
resolution to Dr. T. S. Buie Regional
Director Soil Conservation Service, the
State Soil Conservation Committee, and
other appropriate state agencies that may
be concerned.
ADOPTED November 27 ,1951, by the Association of
Soil Conservation District Supervisors of
South Carolina.
ATTEST:
(8) 1. C. turner (S) P. S. Coxe
Secretary President

With these points in mind, and having studied the
demands for water management for South Carolina, the
State Soil Conservation Committee requested qualified
personnel from the Soil Conservation Service to help
examine and analyse the water management problems of
South Carolina, both present and prospective. It was
through this request that Mr. C. E. Busby was loaned
to the South Carolina Soil Conservation Committee for
a limited time to investigate and make an on-site
analysis of our water conditions as they relate to the
land, industries, and people of our state. The re-
quest was cleared through Dr. Buie's office. Mr.
Busby has spent approximately forty days in South
Carolina during the months of May and June, 1952, and
also some forty days examining existing South Carolina
law in San Francisco law libraries. These libraries
are considered a very complete- source of information
on water laws.

Many locations in South Carolina, where water pro-
blems are being confronted, were visited by Mr. Busby,
the Executive Secretary of the State Committee and
others. People involved in these problems were asked
to contribute facts in these cases.
Some of these situations are outlined briefly as
follows:

1. A municipality using water from wells drilled a
new well on its own property, but in so doing dried
up a well of the adjacent private property owner.
What are the rights of these parties? What could be
done to resolve this conflict in fairness to both?
2. On the Atlantic Coast, a farmer established.at his
own cost a complete drainage and irrigation system
on his privately owned lands abutting upon a navi-
gable stream. To prevent salt water contaminating
VIII
/I







his fresh water supply, a sea gate and dam were con-
structed on his own property at his own expense
thereby storing fresh water in a former salt water
marsh. Has this farmer blocked a navigable stream?
What are his rights to the water, if any? Are the
waters in the pond diffused surface waters or not?
Does the U. S. Government control these waters so
S impounded?
3. Many farmers in some sections have pooled their
assets to drain large acreages, each farmer con-
tributing on a proportion of his acreage involved.
r In the event irrigation is later put to practice
by means of these canals who has the ownership to
the water, if any, and if sb to what extent? How
can these farmers administer the operation and
maintenance of these canals with a minimum of
friction?
4. New discoveries in "water bearing sands" at a depth
of approximately 12 feet are bringing large acreage
into use as pasture, since water is available for
livestock and irrigation. Some 60 or more ponds
have been dug in one county. If the number of "dug
ponds* continues until these reduce the ground
water supply, or artesian flow, what are the rights
of the land owners, if the supply is inadequate for
all? What measures can be taken to assure a con-
tinuous yield of good quality water?
5. Another example is seen on a small creek in the
lover Piedmont country where it is reported some
five or more farmers have purchased expensive
equipment to irrigate from the same stream. The
flow of water in this stream is quite 'low in the
season of greatest demand What protection under
present laws do any of these have to safeguard
their investments? How can they provide storage
to meet the low water situation and what legal
steps are necessary for this?
6. On a major low country stream, three proposals are
being considered at present..
(a) A municipality anticipates eventually using
about one-third the flow of the stream for
Domestic consumption.
(b) A proposed group irrigation project involving
Supwards of 35,000 areas would need to use a
substantial portion of the stream flow.
(c) A farmer owning about 7,500 acres would also
like to develop an irrigation program from the
same stream.
There may be many other water users similarly
situated above these. How Can the needs of these
interests best be met? By what legal means can
each of them be assured a dependable water right to
protect his supply? If there isn't enough for all,
what rights, if any, are superior to others?
7. A project was originally authorized for power
development. Proposals are being contemplated as
to possibilities for the development of art of
this water supply for industrial users; in addition,
tangible possibilities exist for the development of
some of this water for two or more multiple con-
sumptive uses, for agriculture and municipalities.
Who owns the water rights to water as and when

Ix x


I-







developed? How can valid rights to this water be
established and protected in the event extensive
consumptive uses of water are made from the same
system far up stream? What are the rights of land
owners whose lands are adversely affect ed by the
newly established water table?

On June 3, 1952, the State Soil Conservation Commit-
tee in session with its Advisory Committee and the
Executive Committee of the State Association discussed
the aforementioned specific problems and other per-
tinent matters relating to the water management pro-
blems of South Carolina.
The following resolution was adopted: "---that the
State Soil Conservation Committee follow the recom-
mendations of Mr. Busby, and pursue a plan for its
development".
At a subsequent meeting of the State Committee, a
resolution was passed that these matters be brought to
the attention of Governor James F. Byrnes at his
convenience.
The meeting of the State Committee with Governor
Byrnes was held on June 17, 1952.
In summary, it should be noted that this history
does not contain all of the efforts of a great many
people who have been long interested in and who have
contributed suggestions regarding our water problems.
But it does denote much interest and the fact that many
leaders from time to time have been asked to contribute
to the solution of these water problems. Almost without
exception, the State Soil Conservation Committee in the
final analysis has been asked to take the leadership in
finding ways and means for seeking satisfactory solutions.









CONTENTS

Page
Letter of Transmittal . ..... .
The State Soil Conservation Committee . z
Preface . . .,. . III

I -- Introductory Statement . .. 1
II -- Leadership of the
State Soil Conservation Committee . 2
I II-- Change in Character and 'Amount of
Water Use Since Adoption of the
Common Law . .......... 3
IV -- The Inter-relationship of Surface Waters,
Ground Waters, and Land .. . .. 7
V -- Scope of the State's Power over
Natural Resources . .... .. 10
VI -- Organization of Water Law and Working
Definitions of Water Rights . 12
The RiparianR ight .., .. ... 13
The Appropriative Right -.. '. 14
The Prescriptive Right .. .. . 15
VII-- Tentative Summary of the Existing Water
Rights Law of South Carolina .. . 16
The Adoption of the Rule of the
English Common Law .. . 17
The Adoption of the Aiparian Doctrine
of Watercourses ... 18
Riparian Doctrine in General . .. 19
The Rule of Reasonable Use -
Natural Flow'Rights . ... 21
Reasonable Use a Question of Fact .. 24
Rights to Beds and Banks of Streams 24




X










Contents

VII --Tentative Summary of the Existing
Water Rights Law of South
Carolina --- Continued Page
Definition of Flood Waters -
Relation to Watercourses ....... 26
Obstruction of Watercourses -
Rights and Liabilities . ... 26
Definition of Watercourses ...... 29
Adoption of the Common Enemy Doctrine
of Diffused Surface Waters . .. 30
Acquisition of Water Rights by
Agreement .. ... ..... ........ .. 32
Application of Prescription to Waters 33
Elements of Prescription . . 34
Acquisition of Water Rights by
Eminent Domain . .... .. 36

VIII-:Adjusting the Riparian Law of
Watercourses to the Wants and Needs
of the People ... . . .. 37
The Experience in Oregon . ... 39
The Experience in Kansas . ... 41

IX -- Advantages of State-Wide Administration
of Water Rights and the Appropriation
of Water for Beneficial Use ... ..... 42
X -- Conclusions and Recommendations
General .. . . . .... 43
Specific Recommendations . ...... 51
$$$$$$$


-XII








S I -- INTmORCTORY STAT~M 'T

-iWter is one of our most basie natural resources. -I
is essential for every phase of; haman livelihood and
Economic development. When water becoMes short of *ur
Basic needs, distress arisee no matterwkhther the
I situation. occurs in the West or in the last. In this
respect all states of the Union have a common interest.
:v ery state in the Unioa and iosat foreign countries
S have ae laws governing the use of water as part qf
Their general property laws. The states have dealt
S wit rights of water use by redognising, usually in
modified form, the theory of the common law; by adop-
A; ting'in the beginning the doctiine of statutory appro-
priation; or by, as many of them have1, adopting the
comm n 1aw early in the, state' history and later
changing in part or very largely to .te appropriation
doctrine.
The western states have all adopted the appropriation
S doctrine for vatereouraes either exclusively, as in
the Inter-mountain states, or0 i largd part, as in the
Paftifio Coast and Great Plains states., In the ,Inter-
m. mountain states tBe riparian doctrine vas repetdiated
completely in favor, of the doctrine of .appropriation,
either by law or by constitutional provision. Other '
statess nave superimposed the.appropriation doctrine Qn
Ssytean recognisin -common law rights in use at the
time of the. adoption of the appropriation procedure.
Sone of the latter states have moved steadily to,reduce
the importance of the riparian 'doctrine: inee. it has
proven to be impracticable in meeting development and
conservation needs.
SIn a number of western states the agency for admini-
stration of the appropriation statute, i the offiee of
the State Engineer. fStates ii vhich he is the adhini-
strative officer are, as a rule, those which adopted
the appropriationn doctrine frbm the very beginning.
Other states have somewhat different arrangements but
eachsuch administrative agency has, about the sase
General powers. (Potana.is the only western state
which has not effectively provided by statute for state
control over the appropriation and administration of
1eas of tbli report s modeletd'ftat ead a inal porticL
of the entest Lu tabkp 4reoptlyfrqut tlh rep"t to Gevero
ar Andrew r. Seboeppel of lreass of edrrmbr. A14. *n-
titled l"ApropriateL.of 1ter for Woiacfiail PIrpoes".
This I grstefitly ackbewlieted.







water use. I, Momntna notice of intention to appropriate
.water is still filed in the countyin which the diver-
bion of water is to be -ade.-. bis is a remnant of the
early statutes whioe constituted the second stage of
this evolutionary development of western water law, the
first stage being the local custon of the miners that
later was sanctioned by the courts and recognized by
Congress.
In -the east, it has become necessary to control the
diversion and use of water, notwithstanding the early
adoption of the common law,' in such states as New
Jersey, New York, and Pennsylvania. These states im-
pose strict control on the development of ground water.
in certain over-developed areas.
It should be pointed,out that the initial efforts to-
wards state control of the appropriation of water were
not very successful. Often attempts were made to han-,
dle this by piece-meal legislation. It was only when
an agency of the state was established with adequate
powers and the appropriation statutes embraced all as-
pecks of use, that the appropriation laws became effec-
tive There are still weak spots in this broad policy
but on the whole it works well for modern conditions.
The development of the appropriation doctrine appli-
cable to ground water has taken a somewhat slower and
varied'course. Several states have appropriation sta-
tutes for ground waters, recognizing that surface witere
and ground waters are closely related, each affecting
the other. Certain phases of the regulation of ground
water.use are left to locally-6rganised groups, owing
to the variation in ground water conditions of supply,
use'and replenishment.

II -- LEADERSHIP OF THE STATE SOIL
CONSERVATION COMMITTEE
In the absence of any other committee or commission
appointed to consider water law and development problems
in South Carolina, the State Soil Conservation Committee
has accepted a large measure of leadership in this
field. This is entirely proper by reason of, the au-
thority vested in the committee by the General Assembly
and also by reason of the request for assistance of
Soil Conservation Districts throughout the state where
water rights problems affecting land use have arisen.
Although the State Soil Conservation Committee pri-

-2- '







maril represents'~"agichltural' intereett over the s-tate,
it must be recognized that the vast wajority of 1he 'i
towns in the state are agricultural communities depen-
dent in one ay or' another upon t% e dame d~urce ':
watVe-W supply as farmeIs.. -,T:ey h r oopn4p at;e ec0nmic '
interes6t .-And in the last a, aegr farmers, g:riicltl-
.tur-eo nrami cities 'and industrial establishments tlhrough-
out the state are dependent upqn the same .Qur-Qes water, though their economic interests may be somewhat
divergent.-
Moving, asf.it ist to obtain Ah"e participation of all,
water using groupa: as well asagenoiete of the state
S government, the State Soil Conservation Committee is
S performing i-a funetian of Greatr Seprytce in.behalf of
the economy and people of South Carolin4. The State
Soil, onservation Committee is a strictly non-partisan
organisation establashed underk'State law andded4.-cte4d
to the well-being of the entire state. It is there-
fore fitting that.this committee should spearhead this
water rights and development undertaking.
In thee eircustacanes, it is to be hoped that all
interests, industrial and municipal As well as agri~-
cultural, and also the agencies of tlestate ;agve-n-
ment, will particlpat. in thitsi work and lend their
full support to the objective of the committee. This
objective is the MAXIMUM OR HIGHEST BENEFICIAL USE O0
WATER i in e interest of all the people dependent upon
it.


III -- CHANGE IN CHARACTER AND AMOUNT OF WATER USE
SINCE ADOPTION OF IHE COMMON LAW
The General Assembly of South Carolina adopted the
common lawr, f X nflantda long' be~ re t:. eR*Volution. With
the'Revolution the state acqUied certain rights whicleh
it did not have prior to that ,date.3 l,
The riparian law of watercourses was adopted in
1837 in connection with a dispute between two mills
on the same stream.4 Development of -the law has been
very limited compared to western riparian law. It

2Stltea Charleston Bridge Co. IL3 S.C. 116.125;12 .
10gSB p7 (14). .. .
3State v. Pacific Guano Co., 22 S.C.S,074 (1884).
40|elvany v. Jaggers, 2 8111.634.640. 9 S.C. 24.29'9 (i837).

I .... I







has, conprned mP4n1y the 4 qea1t4 0 0of what Ls a,.rew-.
sonablle uie both as to quantity and j t li. Thus..
polltsois controjtZl-araose first ia the court, decisions
as part of the r1irias law of w4ercoursgs. ..
Until the early 1903078s consvUmptive .use of wata. was
liiAted largely to domestic and municipal purposesa.-
o llai suimp:tivre iu tof streams was for 'such purposes
as ntvigAtion, yower 'to run mills, and disposal of
wa s~sg~
Impairment in the quality of stream waters by sedi-
ment ariiftg frsom Piedmdit ifarting areas and by indus-
trial and human' waSteas' ed'ced the usable water for
consumptive uses and for certain industrial purposes.
This resd'lted in the adoption of the principle that a
ripari-an owner is entitled to6have the silt and sand
frlw b'yhilrsraperty, as well as -water of 1 a satis-
fa &eory qualittyS Statutes have supplemented this.
court made law.
As reservoirs became filled with sediment and as
other sources of power became available, the early
sources of power at mill 'daid were abandoned or. sup-
plemi hted by the new st rees'."of -power'. .The -develop-:
ment 6p- private power for other than mill wheel .pur-
poses Y'f6lowed the mill da sadevelopments.
I the iQ30,'s the Santee-dooper project was built
mainly to use water for power purposes. -Plans 'are
now being considered to use some of'this water for
industrial purposes at points farthur downstream.
This project has had considerable effect upon the
land, aher. surrounding .gand. bew ,hq .rsQrvoyirs and
upon utTlisation of the water supply whi.Virmerly
wasted to the ocean. Substantial water developments
for municipal use at"Charleston. and other cities, have
o6ne forward e6nteemPorane'buly with,,the" Santee-Cooper -
p~ ject. But there' -is sOBe, doubt. that: their prospec-:
tive or contemplated neesafoti water are protected .
under xtisting.yr.a.t.,r laws:. The yestep;a sates have,
always recognized. that the, water riglhs of a~nici-
palSitee: au.-_ inPlud4e tft:.; needs, else, urban growth.
would be st.fled popletely. .
In addition to the forgoing, ther.e..ha.bee a pro-.
nounced ccelerati~n lin land use An watermaanageenzit
programs in recent years both in the Pie'dm6it:Madhd in'

SSee VII ,f this report.

-4-




-- -r -.f' . .- :.... y 7.. ... ......_ ...' -.: ---- :



the Coastal areas. But the mobt rapid development
seems to have taken place during and sinee the second
World War. This was accompanied by greatly increased
consumptive Use of water for iirigation, livestock' i
herds of considerable size,.and local industries and
m municipalities. Part of this use has been from ground:
water sources. Low cost power on the farm has been an
important factor in 'the use of- both surface and ground
wate r f or irrigation. It is. t be noted that certain
lands are now being developed to provide forage for
livestock, through.use or control of ground water,
which never before produced usable crops of any kind.
To think that such an extensive frontier still exists
in America is of more than passing interest.
Drainage districts have existed in this state for
many years, Control gates have been employed to're-
gulate outflow and protect against salt water in the
tidal areas. Some of these cOntrol structures are
said to have been installed b .Dutch engineers in the
1700'i. But the drainage districts seemed to have
failed, only one being presently active. Failure to
maintain ditches and'-collect sufficient assessments
for this purpose are designed a.s some, f ,the a in -
reasons. But it appears that there was not-at that
time the close interest between wise land'and water
S use and conservation and all aspects iof water manage-
ment which obtain in Soil Conservation Districts to'-
day. It is. clear that the balanced program for 'bth
land. and water is now paying, substantial dividends
and therefore could foreshadow effective :operation,'
and maintenance of'drainage wVrks under new auspices.
The old common law of natural uses for water sees ito
be 'eeing into conflict with the motbre aoern-or arti-
S ficialluses in irrigation and industries. W rae- hat, '
had to be exported from riparian lands to lands which
are not riparian. Stream courses in year past have been
blocked by dams' in some instances without consent bof
riparian :Owners, a step not usually _peritted under'
i iparian law, though the larger of these projects-:'J
have been authorized by the legislature. Someof
these uses seem t@o be really appropriative in nature.
In this developmental history, little seems to have
been done on a broad statutony basis, to. further Sound
development and equitable adjustments in the use of'
water, eIeept for pollution control and drainage,







neither of which has been wholly successful. Pollu-
tion has always been a serious problem in this state.
Although progress has been made in these fields much
remains to be done. These aspects of water control
are on the damage rather than the use side but they
have.important implications in respect of water use.
Between 1945 and 1950, the use of water seems to
have accelerated faster than during all previous
history of use in South Carolina. This is reflected
in the following table:

ESTIMATED WATER USE MILLIONS OF GALLONS DAILY

USER 19456 19507 DIFFERENCE
Municipal 15 10 85
Industrial 20 O 50
Agricultural8 50 58 28
Total 65 228 163

Municipal rates reflect, indirectly, industrial
rates. Together, these have increased about fourfold
in five years over the 1945 rate.while agricultural
'rates have increased about twofold over the 1945 rate.
It is doubtful if the latter figures fully reflect
the actual rate of increase in irrigation use, since
reliable data are not available on this item. If
these trends continue for another five years or
accelerate at an even more rapid rate, and there is
reason to believe they will, the total daily use
should make the 1945 rates seem insignificant indeed.
A serious economic setback could change this trend
but wartime conditions could further accelerate it.
From these observations it appears that artificial
and consumptive uses have in recent years become domi-
nant, as against the early natural and non-consumptive
uses. South Carolina, therefore, is on the threshold
of development expansion that has characterized the
states west of the Mississippi since their early
settlement.
llGeuilaess C.L., Water Situation in the United States with
Special Reference to Ground Water, U. S. Geological Survey
Circular 114. P-87. June, 1951.
7nMaeichaan .A., estimated Use of Water in the United
States 1950, U. S. Geological Survey Circular 115s. ay.
1951.
8Rural as well as irrigation use are combined here for the
purposes of this report.

-6-




. .-.4. ",-,--


TV -- TfE INTERl flELATION$t1IP OP 8RFACE
WATERS, GROUND WATERS AN D ANDC ,

Uses heav been described as b4ing from surface
streak or ground waters, to indicate whether water iL"
obtained from stream flow or wells. But these to not"
constitute separate and independent sources of supply.
Water cannot be withdrawn from *ne without affecting the
other. Both are affected by pr6eipitation and runoff'or
by infiltration of diffused surface waters into the soil
and its percolation through sub*urface strata.
The source .of all surface and. ground water supplies
in South Carolina .s precipitation, though part of
t this 'water arises in two adjoining states. This pre-
eipitation varies considerably from tite to time and
from place to place. It seems to be most variable is
the southwestern half of the state and during the
summer months Of highest demand. It 14 bald that
droughts 64eur it half or more Of the years.#







i" .-= i I-_4 ., .- 6 o



z---'-' liw-- / i -




A, large portion of the precipitation evaporates or,
after tnfiltration Into the sol, is transpired by
plants.* raporation is a vast just the same as ran-
off t9 the ocean is a waste. Out transpiration is a W
very important aspect of water' use and conservation.
A portion of the precipitatiba Irunss of directly
into the streams, especially during thp flash etorma
Ib ,r e hmlll by "'. Idie.
ad Paul TabSk, tUIA Osem-fttA SM S*utu*s. South
\Vre. Ch al ;
*"Fro Clt ceade ed Ia" -. 1941 Tearhbk of Awr'lie lre.
^ r o t n .;h __________ ______________







of August, Sept*eber and October and the long duration
storms of winter and spring. This constitutes the
more fluctuating part of the stream flpw,.
Of the diffused surface waterowhich enters the soil
and is not used by plants, much of it percolates down-
ward through the soil, joins the water table and
starts moving very slowly but continuously toward an
outlet into some stream or lake, the flow or level of
which it helps to maintain, or into deeper porous
strata that.extend eventually out under the conti-
nental shelf. Such water constitutes the more regular
and stable source of stream flow, and of supply for
certain needs.
Under natural conditions a balance becomes esta-
blished between infiltration and percolation to ground
water and outflow to streams or lakes. Such a balance
may be changed and a new balance established where
watershed management programs and downstream struc-
tural devices are established. Thus, after 'a water
table becomes established, its slope and elevation
vary only with seasonal and cyclic fluctuations in
precipitation provided flooding for ground water re-
plenishment is not resorted to.
,When water is pumped from underground reservoirs
not under artesian pressure, adjustments between
draft and outflow take place. The water table is
lowered first in the vicinity of the wells, then le-
vels off and the outflow is ultimately reduced.
If 4ater production or developed uses in these cir-
cumstances reach or equal the average recharge, out-
flow into the stream or reservoir may cease and the
low flow of the stream or supply of the pond may dis-
appear. In other words the relationship of stream
flow and ground waters in these cases is such that
/pumping from wells intercepts water-which later would
reach a stream and thereby reduces stream flow or
causes the .normal stream flow to be absorbed in re-
charging the ground water reservoir.
It can be seen that by this process one without a
riparian right may pump water from a source which
when sufficiently reduced will prevent a riparian
owner from.having a sufficient supply for his needs.
Furthermore, one riparian owner could sink a well and
so use it that another riparian owner might be de-
prived of his supply. And finally a riparian above

-8-








could divert the flow and thereby deprive a non-
riparian ground water user of his supply. In some
states this situation has led the courts to recognize
that one with a lawful water right must be fully pro-
tected' in his source and means of diversion, even to
the remote upstream source of the watershed.
When water is provided from artesian flows, the sit-
uation is somewhat different. There is not so much
change in storage as in pressure head, which may be
reduced by excessive numbers of wells or running water
to waste or poor spacing of vels and poAds. And this
effect may extend for considerable distances. Since
this pressure head is a valuable resource itself, it
should be conserved and protected if users are to
continue to enjoy the use under favorable economic'
conditions. Much of the Coastal Plain may become in-
volved in this relationship.
Sometimes water under natural conditions, may be
running in a stream at one point, be moving under the
land as ground water at another, and later again be-
come stream flow. This may happen in the dryer part
of the water year or where dense bedrock or soil is
close to the surface or both, as in parts of the
Piedmont. An excessive use of ground water by one
party can materially affect another water user so as
to deprive him of water which he would normally
receive.
It should not be assumed from these statements that
ground water should not be developed and used, or
t stream'flow should not be diverted and used. In fact
the contrary is urged. These streams and ground water
sources together afford efficient storage for use.
The point is that they should be developed and man-
aged according to their capabilities for safe yield.
Artesian sources require special treatment.
Thus it can be seen that thbre should be established
a system of water rights adapted to the surface and
ground waters capabilities of'this state, if orderly
development and management of water resources are to
go forward for maximum beneficial use. Those who in-
vest funds necessary to put water to beneficial use
should be protected in the continued right to the use
of the quantity they have developed, against injury
through diminution of the asuply by laterwould-be
users. A workable law applicable to this interrelated
_js,^


1A







supply is needed within the framework of a new water
policy which emphasizes beneficial use.


V -- SCOPE OF THE STATE'S POWER OVER

NATURAL RESOURCES *

It has long been recognized that certain natural
resources have a fixed position while others do not.
The former, such as stone or coal, are in fact part
and parcel of the land itself and therefore subject to
the control of the land owner as part of his estate.
But resources that move from place to place, such as
water, wildlife and air, have long been considered as
"common to all", save for one's eightt to use these
resources as an incident of holding land or of having
acquired by other means a right to their use.10
Statutes are few that have been enacted for the
regulation of the use of fixed resources because of
the lack of community of interest. But many statutes
have been enacted for the regulation of resources that
move from place to place because their use by one af-
fects the.use which can be made by others. It is the
function of the state or local units of government to
provide reasonable regulation of these resources in
the interest of all.11

Some moving resources, such as most of our water, is
renewed each year in a substantial way. But other
types of moving resources, such as oil and gas, are
exhausted when once used and usually cannot be re-
placed. The latter are called *wasting" assets, the
former "renewable" assets. Different regulatory
measures are applied to each type. So are applicable
tax measures different.
In each of these types of resources, the developer's
investment is made with the full knowledge of the
renewable or wasting character of the asset. If it is
renewable, the investor relies upon this fact when he
makes his purchase and he expects to be protected in
this investment.
If water is needlessly allowed to evaporate or dis-

1050 Corpus Juris 740.
llTreaton v. New Jersey, 262 U.S. 182 (1923):" The state undoubtedly
has.power, and it is its duty to control and conserve the use of its water
resources for the benefit of all of its inhabitants."


-10-







charge into the sea without intervening benefit, it is
also a wasting asset. But, if it is used or reused
and can be expected to be replenished annually or
otherwise, then it becomes almost of limitless value
:to man. Here lies the real value of water to industry,
Agriculture or municipalities. Here lies,the value of
a well managed watershed in helping to assure contin-
uous supplies of good water.
S when drought or expansion of development or both
create a shortage of water at a given-ltime and the
place when needed most, the dependability of the re-
4. source is diminished and the security of investment
progressively impaired.
SWere the same legal principles applied to the de-
velopment of.renewable resources as are applied to
non-renewable resources, as onb user after another
begins his use and the supply of the renewable re-
source becomes progressively insufficient for all,
the earlier users would be injured by the reduction
of supply under a scheme of apportionment. to all users.
The more people who seek to use the resource, the'
smaller becomes the amount which earlier users can
obtain.; As the available amount is thus divided and
redivided, earlier developments must carry on with
ever diminishing supplies beloi the capacity of their
equipment and thus their investments lose value.
Sometimes this loss is so gradual, the user does not
fully realize what is happening to his resource until
it is,too late to'take legal or physical steps to pro-
tect his rights. This is'happeni'ng in certain local-
cities of this state.
These situations often occur under riparian law with
its so-called equality, of right in common and .lack of
emphasis upon beneficial use. The law of prescription
often is the villian in this tragedy. But under the
doctrine of appropriation and'priority of right, those
who first develop and use the water for the benefit
of the' land and people dependent thereon are protected
in their investments. And the subsequent appropriator
invests with the full knowledge of the value of his
right.
It would seem from these experiences that it would
be wise public policy to encourage investment in the
development and conservation f water and land, and
S to protect such investments against loss, Such in-


-11-


'p







vestments contribute to a sound and balanced economy.
Aside from the paramount right of the United States
to regulate navigation and the authority it now exer-
cises over submerged off-shore property, each state
has full right to adopt its own policy and system of
water law regardless of whether the United States
owns property in that state dependent upon the water
supply. The water of a state is in essence the prop-
erty of the people of that state except as the people
of another state on the same stream may have valid
rights to its waters.

VI --ORGANIZATION OF WATER LAW AND WORKING
DEFINITIONS OF WATER RIGHTS
Water law has two broad fields -(1) Water rights as
real or personal property and (2)water organizations
for group action such as drainage, flood control, or Soil
Conservation Districts.12 The real property right is a
right of use as and when water can be captured. After
capture and storage in reservoir, pond or ditch, it may
be considered as personal property. Group water organi-
zations, drains and drainage, and rights to ground waters
are not dealt with in this statement except as herein
outlined3" 14
Water rights law is organized in the following manner:
(1) Surface waters (a) occurring in well-defined channels
with definite sources of supply, (b) diffused surface
waters (not occurring in well-defined channels and sup-
plied by precipitation); (2) Ground waters (a) occurring
in well-defined subterranean channels and (b)percolating
waters (not occurring in well-defined subterranean chan-
nels and supplied by infiltration and percolation from
more or less indefinite sources); (3) Prescriptive rights
(a) to surface waters, (b) to ground waters.
It should be kept in mind that water has both a use
and a damage aspect. The control and management by
appropriate means renders it more useful and less
damaging as the case may be. This is the essence of
12See Hutchins, Wells A., Selected Problems in the Law of
Water Rights in the West," pp.1-24,1942.
13Group water organizations may be taken up in accordance
with the recommendations hereinafter indicated as the com-
mittee may request.
14Although the South Carolina Supreme Court has not yet ruled
as to ground water use, it is to be hoped that it will not adopt
the English common law rule, because this affords no sufficient
protection to investments dependent upon this resource. See 55
A.L.R. 1390.
-12-








water problems. These as ects iare reflected in the law.
The broad legal princip es applied to well-defined
surface watercourses are, ,he riparian, appropriation
and prescription doctrine#. Rights ander these doe--
trines are defined and interpreted as follows:5

THI RIP .IAN RIGHT

A riparian right origin tes by reason of ownership
of land contiguous to or butting upon a natural
watercourse or lake, or 1 nd through which such a
natural watercourse passes to lower lying areas. A
riparian right is a real property right but is limited
to the right to use the wter lather than the owner-
ship of the water itself. This is because water is a
moving rather than a stationary resource.
Each r,iparian owner is entitled to hare the stream
flow by or.over. his property updiminished in quantity
and unimpaired in quality, provided t44t each riparian
owner may make.reasonabl use of the water for.his
own particular speeds, so long as he returns the flow
to the watercourse before it wavess his property. He
is not charged with the evaporation or seepage losses
nor the impairment in qu lity if his ase is a reason-
able one. Therefore the stream may be epileted or
impaired in quality by these riparian uses within'rea-
sonable limits.
In most western states land which lies in one water-
shed is held not to be riparian to a stream in another
watershed. Also, if a p rtion of a tract of land once
riparian to the stream is sold off without reserving;
the water rights and 4suc portion sold does not there-
after touch upon the str sa, it ceases to be riparian
land. This has not a'yst' deVeloped n' South Carolina
water law but would be a natural outgrowth of the
rights of riparian proprlietors as presently defined by
the courts.
It can be seen that under riparian law water may not
be diverted from riparian to non-riparian land without
the consent of the riparian owners on the stream or
the authorization of the General Assembly, and even
then the vested rights of the riparian owner must be
fully protected. The riparian owners' .entrol the sur-

SIShese working 4efinitionm are provided for the special use and
guidance of .t CoMttafe. They lre *lit isteodea to be complete in
eveor respect end are iore explanatory than definitive.
-13-







plus above their needs, unless the state under its
police powers takes a hand in its disposition.1
The riparian right is a right in common held by the
riparian owners together. Thus each riparian owner's
right of use is limited by the corresponding use which
other riparian owners may make of the stream. Benefi-
cial use is not in reality the basis of the right.
The right is not acquired by use nor lost by non-use
alone, except that it may be lost by another gaining a
prescriptive right to the same water.
This right in common as a matter of policy is satis-
factory under a simple type of economy in which water
use is mainly non-consumptive and of the so-called
natural types; that is, livestock, domestic, fishing,
navigation, and recreation. However, in times of
shortage created by industrial and agricultural ex-
pansion or drought or both, when water uses become
more consumptive and artificial in nature, the ripa-
rian right is less satisfactory. The riparian right
is indefinite as to amount, time, and place of use.
These factors are important to water users in times of
shortage under an economy such as exists today.
It is the insecurity involved in riparian rights,
the lack of emphasis upon beneficial use, and the fact
that the doctrine does not ordinarily permit diver-
sion of water to non-riparian lands which present'a
problem in an expanding economy.

THE APPROPRIATIVE RIGHT

An appropriative right is one which is permitted by
statute, but in diverting and using water the appro-
priator must comply with all material requirements of
the statute. If he does so he may not be denied his
right.
One who first appropriates water and puts it to bene-
ficial use within a reasonable period of time acquires
a prior right to its continued use so long as this use
is reasonable. Beneficial use is the essence of an
appropriative right, .and therefore the appropriation
statutes place primary emphasis upon encouraging the
sound development, wise use, conservation, and pro-
tection of water.
The appropriative right relates to a definite amount
16See Tyler v. illkinson. 4 Mamons. C.C. Rep.397.403 (1827).


-14-







of water at a specific timn and a particular place.
So long as there is sufficient water in the stream or
other source of supply to ,satify this -right in its
order of priority, it is fully dependable. In times
of shortage the earlier validirights take precedence.
It is a first come first served and beneficial use
policy.
[ Thus, the appropriative right' is an exclusive right
of use in contrast to the right in common of the ri-
parian right. In times of waiter shortage caused by
expansion of development or bought, this right is far
more dependable and, therefore, tends to protect in-
vestments in development and use of water.
K An appropriative right permits water to be taken
from lands contiguous to a stream and transported to
lands which are not contiguous or which lie beyond
the watershed of a given stream. This often is essen-
S tial to industry and municipalities residing on high
ground away from the streams.
The appropriation laws recognize the relationship
which exists between 'surface waters and ground waters,
whereas the riparian laws do not usually go this far.
Surface water andground water are intimately bound
up together in most watersheds, and some appropriation
laws, as Interpreted by the courts, recognize this
even to the highest and most :remote parts of a water-
shed source of supply.


THE PRESCRIPTIVE RIGHT

A prescriptive right is one whichis acquired by use
for the statutory period of adverse possession of land,
under claim of right even though the user did not have
an actual valid right to use the water in the first
places. This use must be:adverse to the true owner of
the water right, must be open, notorious, and contin-
uous for the statutory period, and must not be inter-
rupted during this use.
A prescriptive use cannot ripen into a valid water
right if the use is permissive in the first place. The
continuous nature of use need be only at the time and
place when it would deprive the true owner of his use
and thus give him a right of action against the ad-
verse user.
The prescriptive right is for a definite awountai


--- ^------------' ---- 5- '__________







water at a specific time and for a particular place,
the same as a statutory appropriative right. All of
the .foregoing points must be convincingly proved in
court, but once proved the right constitutes one of
the best water rights that exist in law. In times of
shortage, a prescriptive right, since it is for a
definite time and specific amount, may take precedence
over the riparian right. A prescriptive right is an
exclusive right of use in contrast to the right in
common of the riparian right.

Prescription applies both to surface waters and
ground waters and, in the case of ground waters, may
involve the new concept of mutual prescription between
ground water users.16 Prescription ,applies to damage
by or to water as well as u&e of water.

The policy of the law of prescription is to en-
courage use of water but it permits a taking of water
which in the first instance is really invalid. The
statutory appropriative right is validly acquired in
the beginning.



VII --TENTATIVE SUMMARY OF THE EXISTING WATER
RIGHTS LAW OF SOUTH CAROLINA17

The water rights law of South Carolina, except for
matters pertaining to drainage and pollution, is large-
ly a judicial development. This has proceeded along
the following principal lines, namely; the adoption
of the rule of the English common law; the adoption of
the riparian doctrine of watercourses; the adoption of
the common enemy doctrine of diffused surface waters;
acquisition of water rights by agreement or eminent
domain and the application of the principles of pre-
scription to waters of watercourses and.to diffused
surface waters.

There appears to be no authoritative body of water
law established for ground waters in this state. Such

16aPaaadena v. Alhambra. 33 Calif. (2d) 925. 205 Pac. (2d) 17 (1949).
17The jurisdiction of equity and the application oY injunction
and other equitable remedies in water is not covered. This summary
is entirely tentative in nature, subject to revision and publication
elsewhere by the writer. This does not include Federal cases in
Sot.h Carolna. The, legal aspects of this report do not necessarily
represent the vtiws of toe Ue.ted States Department of Agriculture.
-16-




& _7 4



law as has been established for surface waters is frag-
mentary when compared with that of states in which
water has always-been eonsidef*d extremely important
in the ecdonmic development of the State./ Thus it
should be easier to make needed improvements without
S resorting to constitutional amendment..
Since, this summary is prepared as a working tool
only, to be used in providing assistance and guidance'
Sto the South Carolina Soil ConservationCommittee, the
foregoing major categories oftthe subject will be'
treated only in respect of the more important princi-
piea involved, together with incidental reference to
some historical aspects.


THE ADOPTION OF THE RULE OF THE ENGLISH COMMON LAW

The General Assembly of South Carolina adopted the
coamon law of England in 1712 This was incorporated
in the Revised Statutes of 1872, chapter 146, section
10. Although this was not incorporated in the Code of
Laws of 1912, the South Carolina Supreme Court quoted
the original declaration with approval as follows:
All and every part of the codion law of England,
where the same is not altered by this act or in-
consistent with the Constitution, customs and laws
of this State, is hereby continued in full force
and virtue within this State in the same manner
I e before the adoption of th6 act.1s
This legislative pronouncement is merely declaratory
of the common law19 and as to specific questions be-
fore it, the Supreme Court may takeits own view of
the coumon law." The common law is in force until re-
pealed or Rodified by statute2z but modification by
statute has been amager in the case of water rights.
This early declaration has been reiterated a number
of times by the Supreme Court in respect of water and
related land problems.2
1"State v. Charleston Bridge Co. ,13 S.C. lia.125.126.
S 101 S.. "67 (1919).
S1tat* v. Charleston Bridge Co., aupra.
208heuwt'. .cDobt, i Tread. Consi. 35.
10/iP4*0 r~n.rtertAld Union;. i44 SC.4 4 S .C i S.. 893 (1928).
Ttaylor v. B&mpton, 4 MaCerd,96 (1827); Stast v. fPcifi
m****, 32 S.C. 0S7Silf (1804); SdEnsim v. Che*'rtte C.a A.R.
Co.,. 39 .C.472,476. Is 5.t.5 (lUa);: Cel.Wa*.er-wer v. Col.
BASl. L. P.Co., 43 8.C. 154 2o 80 1002 (1895).
1 ;* *. '








The civil law may be consulted in explanation or
illustration of the common law, but not as an author-
ity; and if the common law be defective, the courts
are not authorized to supply the deficiency by drawing
upon foreign sources.23

In 1822, the South Carolina Supreme Court followed
Blackstone in settling a controversy over the diversion
of water from one proprieter by the opposite proprie-
tor on a stream in which the parties were tenants in
common of a mill site. Nowhere in this case was the
word "riparian" used, and the citation to Blackstone24
referred to the rights of "freeholders" owning land
bordering on a stream. Since they were tenants in
common, the question of priority of right was not in
issue.2s



THE ADOPTION OF THE RIPARIAN DOCTRINE OF.WATERCOURSES


In 1837, the South Carolina Supreme Court adopted
the riparian doctrine of watercourses in a controversy
between upper and lower proprietors of mill dams on a
stream.26 The plantiff claimed as a riparian, citing
in support the English cases'of Mason v. Hill27 and
fright v. Howard28, especially the latter, wherein it
had been held that throwing water back upon the upper
proprietor was equally a deprivation of right as was
the diversion of water from the lower proprietor. The
defendant claimed under the doctrine of "prior occu-
pancy", relying upon Blackstone29 and the Massachusetts
case of Batch -v. Dwight.30 The Supreme Court rejected
Blackstone as dicta and held the "prior occupancy"
doctrine of Batch v. Dwight to be the minority view.
In accepting the plantiff's view of the law, the court

'23Fbl. v. Brown, 2 Hill Eq.378 (1835).
243 Blks. Co. 217,218.

25aym v. Gault, 1 McCord 543,545 (1822).
260elvany v. joggers, 2 Hill 634. 9 S.C.294 (1837).
27Mason v. Hill, 5 Barn & A4ol. 1, 110 Eng.Rep.692 (1833).
28
28Wright v. Howard, I Cond.Eng.Ch.95. I Simons a Stuart 190.
292 Blks. Con. 403
30Hatch v. Dwight, 17 Mass. Rep. 289.


-18-








summed up its position by quoting approvingly from
Kent, and at considerable length.31
It should-be pointed out that the issue in this case
involved only the throwing baec'of water upon the up-
per proprietor, and did not' involve diversion of water
from the -lower proprietor. Since the latter question
S was not in issue, and the declaration concerning it
not necessary to the decision of the case, it would
seem to be dicta.32
It was not until 1901 that a further pronouncement
on the broad principles of the riparian doctrine was
made. This involved a dispute over th6 detention of
water by an upper proprietor. Here again the court
quotes, as the settled rule of law, Kent's view of the
doctrine, anA in still great. detail than previously.
This is essentially the full text of Kent's original
-statement.3

RIPARIAN DOCTRINE IN GENERAL

Every proprietor of lands on the bank of a river
has naturally an equal right to the use of the
water which flows in the stream adjacent to his
lands, as it was wont to run (currer sa ieJa t
without diminution or alteration. No proprietor has
the right to use the water to the prejudice. of other
proprietors, above or below him, unless he has a
prior right to divert it, or a title to some exclu-
sive, enjoyment. He has no property in the water it-
self, but a simple usufruct while it passes along.
Ac4CU currit At Ad W crre, is the language of
"the law; though he may use the water while it runs
over his lands, he cannot unreasonably detain it or
give it another direction, and he must return it to
its ordinary channel when it. leaves his, estate.
Without the consent of the adjoining proprietor, he
cannot divert or diminish the quantity of water,
which would otherwise descend to the proprietor be-
low, nor throw the water back upon the proprietor
above, without a grant or ad uninterrupted enjoy-
ment for twenty years, which is evidence of it.
This is the clear and settled general doctrine on

313 Kent.s Cos. 353 (1928). See Wh it V. lWhitn y Afd. Co..
infra. The doctrine of prior occupancy was meh the same as
the d4otrine of prior appropriation except that it was in-
complete in its development.
320 melq vy v. Ja Joer, *epra.
3SWhite vt. Wbitey MIf. Co.. 30 S.C. 2S4,265,2. 38s.8.. 456
(1901). It should be noted that thert are mInor .isvuotations
in the report of this case as compared with Kent*s orisig t
wording. 3 Kents Com. 353.
-19-







the subject, and all the difficulty that arises
consists in the application. The owner must so use
and apply the water as to work no material injury
or annoyance to his neighbor below, who has an
equal right to the subsequent use of the same water.
Streams of water are intended for the use and com-
fort of man; and it would be unreasonable and con-
trary to the universal sense of mankind to debar
every riparian proprietor from the'application of
the water to domestic, agricultural and manufactur-
ing purposes, provided the use of it be made under
the limitations which have been mentioned, and
there will, no doubt, evidently be, in the exercise
of a perfect right to the use of water, some evap-
oration and decrease of it, and some variations in
the weight and velocity of the current; but de
ultaii 20s crot lxE, and a right by the proprie-
tor below, would not necessarily flow from such
consequences, but would depend upon the nature and
extent of the complaint or injury, and the manner
of using the water. All that the law requires of.
the party, by or over whose land a stream passes,-
is, that he should use the water in a reasonable
manner, and so as not to destroy or render useless,
or materially diminish or affect the application of
the water by the proprietor below on the stream; he
must not shut the gates of his dams and detain the
water unreasonably, or let it off in unusual quan-
tities, to the annoyance of his neighbor. Pothier
lays down the rule very strictly, that the owner of
the upper stream must not raise the water by dams,
so as'to make it fall with more abundance and rapid-
ity than it would naturally do and injure the pro-
prietor below. But this rule must not be construed
literally, for that would be to deny all valuable
use of the water to the'riparian proprietors. It
must be subjected to the qualifications which have
been mentioned, otherwise rivers and streams of
water would become utterly useless either for man-
ufacture or agricultural purposes.


In 1907, a controversy arose as to storage and de-
tention of flood waters, The court referred to Vhite v.
Vhitney Nfg. Co., supra, and then developed the reason-
able use rule hereinafter discussed.34 In subsequent
cases which involved pollution and detention of waters,
the court refers back to the statement in White v.
Vhitney Nfg-. Co. SS'3'637
When Story and Kent brought the French riparian doc-
trine to this country, they emphasized that the needs
34Mlson v. Apalacle Nilla. 81 S.C. 5S54.58. 559. 62 S.E.
399 (1907)-

S-20-







of the new world were different from those of the con-
tinent and that a strict adherence to the, French rule -
would present beneficial use o~jthe water and provide
the lower riparian proprietor B monopoly of the stream.
Therefore, they added their owv limitation on the
French rule based upon the concept that one may use his
own property as he pleases so long as not to injure.
that of his neighbor. But, though a step in the right
direction, this rule of reasonable use accomplished
only part of what was intended for, i-n effect, it left
the waters surplus 'to reasonable riparian needs locked
up in the hands of all he riparian pprprietors in
order to meet their natural flow rig km. It thus had
the tendency to prevent'storage for beneficial use.38


THE RULE OF REASONABLE USE NATURAL FLOW RIGHTS

The first consideration as to whether use of the
stream was reasonable came in 1845.3e One making use
of water had backed 'it up on another's land to a depth
of two feet. The latter did not claim or prove special
damages in an action on the case. The court held this
to be not unreasonable. This was clarified in 185740
to emphasize the importance of one first making use
under his riparian claim, whereupon the question of'
reasonableness then depending -pon the necessities of
the machinery and the sluggish character of streams in a
flat country. The court applied this rule to coer both
the upystream and downstream effects of dalming water.
Bat sa7ce the latter was not necessary ,o the decision
of the case, it may be looked upon as data.41
35Griffin v. Nation l Light a ThoriuS Co., 79 S.C. 354,
356. 60 S.E. 702 (1908).
36Lowe v. Ottaray Illt*f 93 S.C. 420.423, 77 8.B. 135
(1913)./
37Methein v. Walh tla tLiht a Power #o., 1.02 '.C. 157,59,
60, 86 S.E. 194 (1915).
3Tyler v. Wilkinaoa 4 Mason's C.C. BRep. 397, 401 (1827);
3 Kent's Com. 353. tiel, S.C. Waters: American Law and
French Authority, Harvard Lw Review, V~l. XXXIII, No.2,
p.147; Waters: French Law and Common L4w, California Law
Review, vol.VI, P,24, e't aeq. and 342!et seq.
39Garrett v. McKie, 1 Rich. 444,446.44 Am. De. 263 (1845).
40Chalk v. McAlily, 11 Rich. 153.156157 (1857). ,
41Note: The two foregoing cases are *lo js irtat in
regard to the iaw of prescription becaFe* tbe c. rt re-
cognized that the right of action against the daiosagi
party did not accrue until tajjl damaf takes place
from backing the wibr dpon aaotler's- land.

-e1-
III --.IIII. ---II-----I ___ii__II___I__I__.I__I__.__.


_ _11___~1_~_ __








In 1885, the reasonable use rule was further devel-
oped. This time in respect of irrigation. The court
held that use of water by one proprietor for irriga-
tion of his riparian lands was reasonable so long as
necessary to his needs, and that he may not be charged
with losses by absorption and evaporation incident to
such use. The court stated that he must return the
water to the creek for use by other proprietors.4

In 1887 the Supreme Court approached the damage re-
quirement for unreasonable use in terms of tort law;
that is the damage must be the natural and proximate
rather than the remote and consequential cause. In
this case the issue was over waterlogging of lands
caused by sand accumulation in the channel and reser-
voir above a dam. Lands were flooded and waterlogged
in excess of what would have occurred had the sand
not so accumulated. The court held that the sand
accumulation was the proximate cause and refused to
hold that this resulted from cultivation of fields
above.43 The court stated that the riparian right not
only included the right of unobstructed flow of water
in the stream but also the unobstructed flow of sand
therein. Obstruction of the sand movement was con-
sidered unreasonable use. It should be noted that
obstructions in streams heading in the Piedmont are
bound to cause sand accumulation so this rule would
have importance, if actually complied with.
The next series of cases involving the reasonable
use rule dealt with questions of right to flow lands,
the right to maintain a ford over a stream where the
proprietor owned lands at both ends of the ford, and
the right to water of good quality. In Vhite v.
Yhitney Nfg. Co., suPra, there was detention above
for power purposes, and this was held unreasonable.
In IcMahon v. Yalhalla light and Power Co., supra,
the rule was amplified further to indicate that the
lower proprietor need not pond the water in order to
make use of the stream for power purposes. In other

42jordan v. Lanl 22 S.C. 159.165.166. 37 S.E. 69 (1885).
Actually, the upper proprietor in this case used up the
entire stream. But it appears that the court justified
his on the ground of prescription. Thi is a key case on
diversion above affecting one below and also in respect of
irrigation use. But since several issues affected final
decision of the case, its implications see obscure, except
as herein indicated.
43Ninea v. Jarrett, 26 S.C. 480.488.489 2 S.E. 383 (1887).


,-2I-





1* *1-


words, these decisions protected natwurl flow rights.
In PewelIl v,. Catawba Power Co., the court held that
one who. owned both' baks, of a ,aon-.avighble stream, is
entitled to use his ford without obstruction from
augmented flow released from storage behind a power
S dam erected above him.44 And. n Joness' v. .,Seaboard Air
Line the-court held that a riparian owner may not be
.denied access to the stream.4
In each of these cases interference with the rbcog-
nized natural flow right was held unreasonable. These
decisions are significant in terms of whatcan be;done
to store or retard stream flow in South Carolina under
S existing riparian law from the standpoint of the needs
of non-riparian owners and the people of the state
generally. It was this type of decisions which led to
changes in the riparian law of Western states.
Along with the foregoing cases there have been those
involving pollution. In 1897 the court held that a
riparian owner has a right to have the stream flow by
unpolluted by mine tailings, so that he could fish in
the stream.46 In 1908 the court held it to be un-
reasonable use when mine tailings and mud reduced the
effectiveness of' a mill for pbwer purposes because it
rendered the water unfit for use in mill boilers,
unfit for livestock, and offensive to the public.47
The court here, as in White v. Whitney Nfg. Co., supra,
referred with approval to theistatement of the, rule
of reasonable use in Dusont v e Ietogg,, This is
quoted from the Griffin case as follws.:4
In that case it was held that the different
owners of land, through which a stream -flws,
are each entitled to a reasonable use of the
same, and an injury to one cOmner, incidental to
the reasonable use of the stream by another,
gives no right of redress. *
As between different proprietors on the same
44Fewell v. Catawba Power Co.. 102 S.C. 452.461,462,
86 S.E. 947 (1915). This seems to subject the ise of
an entire drainage system to one prop ietor's right to,
fotd the etepam.
45Jonse v. Seaboard.Air Line Ry. Co., 67 S.C. 181.
193,194, 45 S .. 188 (1903).
4 Threatt v. Mining Co., 49 S.C. 95,129. 26 $.E.
970 (1897).
4 WlliJJiJ v. aile Gold -Jliaig Co.. 85 S.C. 4,.7 -
So S.Z. 1057 (1909).
48bDouont v: Kellogg. 29 Mich. 420 (1874).
490rlffln v. National Light A Thoripu Co., awra.
S"28-







stream, the right of each qualifies that of the
other, and the question always is, not merely
whether the lower proprietor suffers damage by -..
the use of the water above him, nor whether the
quantity flowing on is diminished by the use,
but whether, under all the circumstances of the
case, the use of the water by one is reasonable
and consistent with a corresponding enjoyment by
the other.

REASONABLE USE A QUESTION OF PACT

On*the question "What is reasonable use?" the South
Carolina Supreme Court has held uniformly that this is
a question of fact for the jury and their verdict is
final. This was applied with respect to the detention
of natural flow5, to the detention of freshet and
normal flow51, to the detention of flow generally2,
to mud and tailings from minesS5 and to sewage.5 In
considering these matters the jury was instructed to
examine all the circumstances surrounding the alleged
injury as to (1) the capacity of the stream, (2) the
adaptation of machinery to the stream, (3) the general
usage of the country in similar cases, and (4) any
other facts bearing on the issues. These factors are
rather elementary when compared with standards adopted
in jurisdictions where the reasonable use rule has had
much more extensive development.
The foregoing cases show that the natural stream flow
cannot be greatly,altered by storage or detention as
means of making greater use of water, except by special
authorization.

RIGHTS TO BED AND BANKS OF STREAMS

Generally speaking, the riparian owner abutting
upon a non-navigable stream owns to the middle of the
bed; but in the case of a navigable stream, including
tidewaters, which is navigable in fact, the pro-
prietor owns only to the highwater mark. Land beyond
the highwater mark on navigable waters is owned by
the State and held in trust for the benefit of its
people. The State as successor to the crown of
50hSit* v. Whitney MYf. Co., sopra.
SlMason v. Apalache Mills, supra.
52McMahon v. Walhalla. supra
530lItfia v. National Light & Thorinum sapra.
54Lovw v. Ottaray Mills, supra.

-24-
-a I








England holds not only title as private property, the
jus privatum, but also the fiduciary or public title,
the jus publicum. The space between the high and low
water mark is called the "shore'S.s*56 '

Of course, the rights of the riparian owners on
navigable wat watersorwaters which can be made nav-
igable by removal of. obstructions, are subject to
the right of the public to use the streak unobstruct-
ed for transportation purposes.57 But the rights of
the landowners cannot be impaired by railroad com-
panies, for example, for their corporate purposes
without due compensation to the landowners. Nor
may such landowners be denied free access over their
lands to the stream and undisturbed use of these
lands. 5

A grant of property abutting on a stream may pass
an interest in the land beyond the highwater mark
if the grantor had such a property interest in the
first place.se

As to these matters the court may takr.judicial
notice of local customs which tend to define the:
meaning of words referring to banksor mother features
of streams, such as the word "swasmp",. Where the
words "stream" and .swamp" are, indicated, the inten-
tion of the parties as to the- boundary is construed
to refer to the middle of the stream. I4s rule,
however is not invariable or inflexible, for if it
is clear from competent evidence that.,:tho parties
meant otherwise, the court will give effect to their
A intentions.0

SState v. Pacific Guano Co., 22 S.C. 50, 74-76, t9-80,
83, 84 (1884).
$6State v. Pinckney. 22 S.C. 484.507 (1884); C a
Romain Land and Iap. Ce. v. Ga. Cor. Canning Co.;
148 S.C. 428,434, 146 S.E. 434 (1928); Shively v. Sowlby,
152 U.S. 1,14, S.Ct. 548 (1894). Note: No attempt is
here made to relate these cases to the recent decieioas
of the U.S.Supreme Court on the tidelandss.* question.
57State ex. rel.. Bridge Co. v. Colambia,
27 S.C. 137,146 (1887).
l8Jonea v. Seaboard Air Line Co. .67 S.C. 181,197,198,
45 94. 183 (1903),.
SC*e Roemain Land and Irp. Co. Cor.
Canning Co., 6upra.

Uhieeler Wheeler, 111 S.C. 87,94, 96 S.3. 7i4 (1918).

v thee-S5-








DEFINITION OF FLOOD WATERS, RELATION TO WATERCOURSES


In determining whether flood waters become diffused
surface waters or remain the waters of a watercourse,
the court has approved the definitions from other
sources.1 The classification of the waters depends
on the configuration of the country and the relative
position of the waters after they have passed beyond
the usual channel. If they become severed from the
main current or leave the same never to return and
spread out over the lower lying ground, they are
classified as surface waters. But if they form a
continuous body with the waters flowing in an ordinary 4
channel, or if they depart from such channel presently
to return, as by recession of the flood, they are
regarded as still a part of the watercourse." This
is important in considering what specific measures
can be taken to utilise flood waters and reduce or
prevent flood damage on streams.

OBSTRUCTION OF WATERCOURSES, RIGHTS AND LIABILITIES
Generally speaking, a private party may not obstruct
a watercourse unless he has acquired the right to do so
from riparian owners or by prescription or the General
Assembly. One may not throw water back upon an upper
riparian owner or prevent its coming down to lower
proprietors. For it must be allowed to flow in its
natural and ordinary, accustomed manner, except that
riparian owners may divert the water temporarily for
their own reasonable use, after which it must be re-
turned to the stream before it leaves the riparian
user's property.63
In 1849 it was held that an act regulating rice dams
did not deny a landowner his common law remedies or
permit flooding another proprietor's land. It also
required one erecting such a dam to maintain an ade-
quate vent in it.6

6113 A. & Eng. Encyclopedia. 687.
62Jones v.Seaboard Air Line Co..67 S.C. 181.198. 45 S.E.188 (1903).
The Court said flood waters are not usually surface waters though
spread out over adjacent lands.
63Jordan v. Land, supra; White v. Whitney Mfg. Co..supra; Lawton
v. South Bend R.R.Co.. 61 S.C.S48.551.(1901); Ballentine V. Beamond,
68 S.C. 153.162.163, 46 8.t. 1000 (1904).
6Brisbane v. O'Neall, 3 Strob. 348,352-354. 14 S.C.Rep. 181 (1894).

-86-







The right to locate and construct a dan may be 4c-
quired by legislative grant,'and such a grant also
carries with it the right to raise the water in the
channel of the stream to a specific height, together
with all necessary lands and easements for the main-
tenance of same. However, notice must be given to the
landowners affected and permission obtained to enter
upon their property. Purthermore, the affected land-
owners are entitled to compensation for any losses
thereby sustained, 'and the right to cohatiuct a dam
does not carry with it freedom from liability for
negligent acts of the grantee, the grantors retaining
their common law remedies for damages.6. Where ob-
struction by dams is authorized by legislative grant,
there cannot be negligence per se sine "the legisla-
ture has the power to declare what constitutes a
nuisance, and it is presumed that the legislature
took this into consideration in authorizing the
grant."
In respect of rights granted by ripariao owners, it
was early held that parol encouragement to build a
dam does not constitute a license to flow land be-
cause it was too vagie and undefined." But when a
license or privilege has been obtained, it amounts
S only to a remittance of damages." Onevd s valid'right
to flow lands has been lawfully acquired it' amounts
to an easement. This may be abandoned by implication
on the building Of another dam which Wa* incompatible
S with the original easement." If an- easement is
purely personal between the grantor ai*: grantee, the
right so granted terminates with death of the grantorO
But a right to- action does not accrue for flowingif
lands by means of a dam unless there has been some
real and tangible damage or injury to one's property1
and one may remove, without liability therefoz, aS'
unlawful obstruction in a street whioehin ures his
65Le.tssey v. Water Power Co.. 47 S.C. 46,480-84., 25
S.. 744 (1896)-
66Free v. Parr Shoatl Power Co., 1ll S.C. 192.196, 9 S..
(1918).
671jnes v. Jarrott. 26 S.C. 480,488. 3 S.E. 383 (1887).
S 68Cinton v, McKenzie. 3 Strob. 36 (1850)-
69Taylor v. wNBut*a. 4 1eCet4. 96,17 17 Ahe Doee. 10 (1827).
70McDanile v. Walter 46 S.C. 43,534 24 ., 32 i (194).
71garrett v. Moic. 1 Rich. 444,446, 44 Am. Dkc. 26" (184S);
Chalk v. McAlily. 11 Rich. 158, ta4l, 14 (18S7)-.

___--__--








property, provided it is done in a careful and skill-
ful manner.72

If one acquires a lawful right to obstruct a stream,
there must be some negligence or lack of due care in
construction or operation of a dam for a right of
action to accrue to another party adversely affected!s
But, as previously stated, the constructing party is
bound to study the conditions of the area and antici-
pate the ordinary characterof runoff waters, although
he need not anticipate extra-ordinary runoff condi-
tions.74 A railroad company stands upon the same
footing as a private individual in these'matters and
has no greater or special rights incident thereto.75
When rights-of-way are granted to corporations to
obstruct streams,.these carry with them remittance of
all damages from ordinary and proper use of the right
granted, including the portion of the grantor's tract
not included in the right-of-way itself. And this
rule applies to condemnation of tracts, the same as
to voluntary grant.76

Prior to the Act of 1897, one damaged by the acts
of another who had obstructed a watercourse must
prove negligence, but not so after the passage of the
act.77 A voluntary grant or. lawful condemnation con-
stitutes consent and right to build an obstruction.78
But an original negligent act of a corporation may
not be attributed to its successor unless the successor
is notified and requested to remove the obstruction
or remedy the conditions resulting therefrom, or the
new succeeding corporation changes materially the
original obstruction or otherwise makes a wrongful

72Mills v. G. & C. R.R. Co..13 S.C. 97.99 (1880)-
73Wlllace v. Columbia &a 3.. Co., 34 S.C. 62.66-67 (1890)
74Jones v. Seeboard Air Line 7y. Co., 67 S.C. 181,197. 45
S.3. 188 (1903); Bunter v. Pelham Mills, 52 S.C. 279,297,
29 S.E. 727 (1898); Welsh v. Atlantic Coast Line Iy. Co.,
114 S.C. 7.9-10. 102 S.E. 786 (1920).
7S5dwards v. Charlotte, C a A.. Co., 39 S,C. 472,475. 18
S.-. 58 (1893); Lawton v. South Bend R.3. Co., 61 S.C. 548,
551-SS2 (1901).
76aonnamaker v. Water Power Co., 47 S.C. 485,487.488 (1896).
77Code of Laws, Section 2041, incorporated into the Code of
Law of 1902, Section 1456; Lampley v. Atlanlic Coast Line,
71 S.C. 156,157-158 (1905); Wallace v. Columbia a R.R. Co.,
supra; Jones v. Seaboard Air Line 'y. Co., supra; Munhamaker
v. Water Power Co., supra.
78Lampley v. Atlantic Coast Line, supra.

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condition its own by reason of 'its action taken in
connection therewith.7
In these matters of obstruction of watercourses,
the question of damages caused to other parties ex-
tends not only to flowage of the wateritself but
also to the resulting accumulation of sand in the
channel and reservoir so as to cause a greater flow-
age upon the land above the original water linesO, for
riparian owners are entitled to the unobstructed flow
of sand past their lands and to a clean channel.81


DEFINITION OF WATERCOURSE

It appears that the Supreme Court did not provide a
definition on this point prior to 1885. 'The court
S then held that an artificial channel may become in
law a natural channel if the water has run in the
ditch for the statutory period.*2
In 1901, in the course of defining diffused surface
waters, the- court also indirectly defined a watercourse
by noting with approval definitions ,from other sources.
These sources held a watercourse to'be one in which a
stream usually flows in a definite channel with beds and
banks, although the stream need not flow continually and
Vp may sometimes he dry, discharging itself finally into
another stream or body of water. These waters must be
something more than mere surface drainage over the
face of a tract of land. This definition did not in-
S clude natural depressions in the land through which
surface waters-naturally move. The court stated that a
purely artificial channel cannot with propriety be re-
garded as a natural watercourse. Of course, the court
had already held, as indicated-above, that an arti-
ficial channel may become a natural channel by water
flowing in it for the statutory period.

79Shores v. Southern Ry.Co.. 72 S.C.244,249.250,
51 S.5.699 (1905), and cases therein cited.
0HBand v. Catawba Power Co., 90 S.C. 267,272. 73 $.1.187 (1911).
81Mason v. Apeleche Mills. 81 S.C. 554,562-563, 56 S.*. 11
(1906).
82Jordan v. Long, 22 S.C..159,166, 37 8.E, 69 (188S).
83Lawton v. South Bend R.R. Co., 61 S.C. 548.552,553 (1901).
and other capae cited., There was a visprous dissnt by two
judges in respect to the definition of a watercourse. Tbe
same year the court held that water accumulated ia pond did
not constitute water of a natural waterwourse butPb s merely sur-
face water. The letter is important in respect of lter use on te farm.

S -29-
-- -- ----------- --^---- -----------------


i--- --- ------------- ------ii---------r----.-i---.-~.~pl~l -----~--~-~-.- -I-
`' r i:
-? ,,







In 1911 the court gave essentially the same defini-
tion with respect to watercourses but it went further
to say that one must allow water in a natural water-
course to have its natural and ordinary, accustomed
flow and one may not dam it so as to throw it back on
the upper proprietor's land or prevent it coming down
for the use of the lower owner, though one may divert
it temporarily for his own reasonable use.84


ADOPTION OF THE COMMON ENEMY DOCTRINE OF
DIFFUSED SURFACE WATERS

The law of diffused surface waters became esta-
blished in South Carolina with the adoption of the
common enemy doctrine. Here diffused surface waters
are regarded as a common enemy against which each
landowner may take appropriate protective measures,
even though this may do damage to adjacent land. In
this regard, a railroad has no greater rights than an
individual. 8

The court gave further meaning to this rule in 1899
by indicating that neither detention, diversion nor re-
pulsion of diffused surface waters is an actionable
offence, thbugh'damage result from it, except that it
is subject to the law of nuisance. Where there results
a nuisance per se with consequent injury to life, health
or property, the nuisance may be abated and damages
allowed. What constitutes public, private, or mixed
nuisance in these matters was defined. The court, in the
same case, held that this decision was not in conflict
with the rule established in the Edwards case, supra, to
the effect that the railroad may throw back surface
waters upon the upper landowner if it is reasonably
necessary to the protection of the railroad property."6
These principles were reiterated in 1901 with the
definition of diffused surface waters as follows:

Surface waters are waters of a casual and vagrant
character, which oose through the soil, or diffuse
or squander themselves over the surface, following no

84Brons v. Northwestern Ry. Co. of S.C.,88 S.C. 15,16-18.
30, 70 S.C. 319 (1911).
SSBd ards v. Charlotte, C &A.R. Co.,39 S.C. 472,475,476,
18 S.K. 58 (1893).
8Blatzeder v. Carolina-Midland Ry. Co. 54 S.C. 242,247.
248. 12 S.E. 358 (1899).

-80-


.-1








definite course. They are waters which though customarily
and naturally flowing in a known direction and course,
have nevertheless no banks or channels i the soil, and
include waters which are diffused over the surface of the
S ground. and are derived from rains and melting Snows,
occasional outbursts of water, which at tiles of freshet
or melting snows descend from the mountains and inundate
p the country; and the moisture of the vet, spongy, springy
or boggy ground.

The court supplemented this definition by stating
,that drainage by an artificial channel must carry
surface water rather than water of a natural water-
course.87 In the same year, however, the court
held that the water accumulated in the pond when
supplied from diffused surface waters was subject to
the law pertaining to the latter, and the landowner
could make full use of this water for his own needs.
But he may not collect these waters into an artificial
channel in greater volume or velocity 4o as to cause
damage to his neighbor except by reason of prescrip-
tive rights lawfully acquired.8s But such prescriptive
rights may be waived.89 In drawing on principles from
other jurisdictions, the court indicated that the pro-
viso in respect of collection and discharge creating
damage to one's neighbor applies both to the common
law and the civil law.0

In 1904, it was held that one landowner may not dam
up flood waters and throw them back upon his neigh-
bor's land. Presumably, this ruling apurt be consistent
with the ruling in Jones v. Seaboard Air Line, that
when flood waters leave their channel, they become
either surface waters or remain waters of a water-
course, depending upon whether or not they become
severed from the main body of the stream, never to
return as such.91 The court seemed to recognize a
difference between a right of use and a right of
storage of diffused surface waters which a landowner
may exercise or convey to another.9
87Brandenburger v. Zieller. 62 S.C. 18. 21,39 S.E. 790 (1901).
S88Brandnburger v. Zl iler, supra; p.S.Roystar Guano Co.
v. Fowl*., 75 S.C. 434. 56 S.B. 11 (1906).
89HBys v. Hoffman. 162 S.C. 284.287.160 S.E. 852 (1931).
90Brand.nburger v. Zeldier, supra.
S91Bllentiae v. rNloadd, 68 S.C. 153,159,162, 44 L 1000
(1904).
92F.S. Royster Guano Co. v. Fowles spre.

-81--


_7








'It had'been inferred, perhaps, in the Idwards and
Baltzeger cases that one's right to deal with surface
waters as he pleases is subject to the rule of reason-
able care. But the court amplified or clarified this
in 1900 by holding that such was not the law, the
landowner not being required to use reasonable care
with regard to the rights of others.93

The protection of the law of nuisance may be waived
by a contract wherein one arranges for the doing of a
thing which results to him, as an incidental if not a
necessary consequence thereof, in conditions con-
stituting a nuisance.94
Though the court did not specifically say so, it
seemed to include waters of a spring upon one's land
as part of his diffused surface waters.9e


ACQUISITION OF WATER RIGHTS BY AGREEMENT

As early as 1850, it was recognized that one may
grant a license to overflow his lands, but this would
remit damages only.9* This license must be distin-
guished from mere parol encouragement if obligations
are to be assumed under it.97 A landowner may grant a
right to construct a dam on his property,98but such
rights extend only to such lands as are specifically
described, and do not extend to other non-contiguous
tracts. The granted rights carry any others necessary
to their enjoyment. 'These broad rules apply whether
the grant is made by agreement or condemnation.99
The court has also held that rights in surface
waters or watercourses, especially that of drain-
age, may be acquired as easements, either expressed
or implied. Where lands in one ownership have been
subdivided, the easement may be held to have arisen

93Touchberry v. Nortlwesterm R. Co.. 87 S.C. 415,424. 69 S.B.
877 (1909).
94uchland DistributimJ Co. v. Seaboard Air Line ty., 109
S.C. 331,336. 96 S.E. 122 (1918).
95F.S.oyter GOane Co. v. Fowles, sapr. Of course the
broad definition of surface waters indicated above also does this.
9Clinton v. rMcensie, 5 Strob. 36 (1850).
97Minae v. Jarrett. 26 S.C. 480.488. 2 S.B. 383 (1887).
98* *nry v. Southern Ry., 93 S.C. 125,129, 75 S.E. 1018 (1911).
99Thoas v. Greenvrlle-Carolina Power Co.. 105 S.C. 268,271-
272. 89 S.E. 552 (1916).

-82-




; < >


by implication during the original ow4rruhip; but the
easement must have been apparent continuous and ne-
cessr~y at the time of -the sale The term "neces-
S mary' was held to 'ean that there codld be no other
reasonable mode of enjoying the dominant tenentet
without the easement. In other' words the rule of
absolute necessity was adopted.,.m But where such
easements ape purely personal between partners and
not created by deed, they are extinguished with the
death of one partner.e101
The court has held that reservations in deeds'
granting certain rights and reserving others may be
either expressed or implied. In the ease of .ills
operated by water power, the court held that +reserva-
tion of a mill with appurtenances thereto carried with
it the land actually used by the mill (under and ad-
jacent thereto), the dam site and other things annex-,
ed to the freehold necessary for ita' beneficial enjoy-
t lent, including stream glow necessary to operate the
I ili.i'2 Later, the court held 'hat reservation of a
water power was valid as a profit a prende; and this
is net dependent upon lands to which it may be appr- '
tenant, but has a separate and intrinsic importance.
Such a reservation carries with it by implication the
S'right to erect and operate a steam plait if such be
essential to the use of the reserved writer power.
The question of whether such implied reservation was
essential or incidental is one bf fact for the jiry
t' o decide t '


S APPLICATION OF THI LAW OF'PRBCRIPTIOI TO WATERS

Rights in water may be acquired, or lost for that.
matter, through adverse uee for the statutory per1o6d
S of adverse posteesio f of, land,4 Originally in this
state, prescription or adverse possession could not
be maintained against the static. Apparently this
was reversed in 1884. But the degree of proof to

100Croeolad v. Roeara. 32 S.C. za,13*t-,S., 1S u.. 574 (1 90).
S011ale00i0a WVaJkr. 44 S.C. 43.S3+-4. 24 S.t4. 1t (1694).
1i32.lett v. jertoi, 3 Rich. 156,1S l19., 13 S.C. 8 (1841).
1 cel. atler Power Co. *v. fa. a. 1 S*r. yr. I,RL Ca.
S 43 S.C, l54.170-l172. 2l .t 19g (1@66.
S 104 Jddli(o v. OGrederl. 2 tf. 681.87-U5S l .


__h_







raise the presumption of grant may be stronger in
this connection than for land held in private owner-
ship.-1e

Prescription applies to irrigation use, but goes to
the capacity of the works rather than to the actual
user. This ruling was held to be analogous to rights
acquired in similar fashion for flowing lands of another.
But this latter aspect may be dicta since not in issue
in this case.106
This method of acquisition or loss of a water right
applies to the damming of streams and consequent flow-
age of lands, to draining lands, and to diffused sur-
face waters.*07 In other words it applies to the use of
water as well as damage fromor to water.



BLMEKNTS OF PRESCRIPTION

The early cases were not so specific as to the ele-
ments of prescription. The period of tine required
to raise the presumption of a grant was twenty years~
The invasion of another's rights must be such as to
cause definite damage or injury, such as to create
notice to the injured party as the basis for a cause
of action. But permission to do these things will
not raise a presumption of grant no matter how long
continued." The use or damage must be continuous and
visible to the party affected for twenty yearsj110
but the element of continuousness does not mean con-
stant or the same amount each year or to the same
extent. Ineffectual protests short of the bringing

10Sstart v. Pacific Guano Co. 22 S.C. 50,83 (1884). The
lower court ruling here, as to proof, was sot directly pase d
upon by the Supreme Court, but preoumbly such a ruling would
be Sood ilw.
l6Jordan v. Lail, 22 S.C. 159.165-168. 37 S.E. 69 (1885).
This is at varianme with western law.
lo'atylr v. Mraptae. 4 McCord. 94.107 (1827); rays V
NJffua. s16 S.C. 24,.286-287. 160 S.. 85 1 (1931); 1 water v.
Price, 96 S.C. 245.249-25S. 80 S.B. 372 (1913); Williaeor v.
Abbott, 107 S.C. 898.400-401. 93 S.. 1 (1917); esee v.
Southern Railway Co., 14*2 .C. 328.336-337. 140 S.E. 575 (1927).
108iddleten v. Gregorie. supra.
1*9Lyam v. Temsor. 17 S.C. 129,137-138 (1881); Williamson v.
4Abott, rspre.
11OCkal6 v. McAlily. 11 Rich. 153,160 (1857).

-34-







'of a cause of action have .no legal effect in prevent-
ing the pr.esnaption of a grant.' The elements requir-
ed seer to,be well- smrad up in Fili assoa v. Abbott,
as follows:

To establish a right by prescription, it is necessary to
prove these things: (1) the continued and uninterrupted
use or enjoyment of the right for the full period of 20
years; (2) the identity of the thing enjoyed; (3) the
use or enjoyment was adverse or ader claim of right.
iwutow v. livers, 13 S.C.L., 2 MoCord 445, **** While
it is true that, when it appears that claimant has en-
joyed an easement openly, notoriusly, continuously,
and uninterruptedly, in derogation of another's rights,
Sfor the full period of 20 year, the use will be pre-
sumed to have been adverse, so aS to cast upon the
dwner of the servient estate the 'burden of #ebutting
the presumption ****, that rule d es not apply when
claimant's own testimony shows tiat the use was per-
missive in its inception.
It is the well settled rule that use by express or im-
S. plied permission or license, no Batter hoa long contin-
ued, cannot ripen into an easement by prescription,
since user as of right, as distinguished from permissive
Suser, is lacking, if permissive in its inception, such
permissive character will continue of the' same nature,
and no adverse user can arise, until there is a dis-
tinct and positive assertion of a right hostile to the
owner, and brought home to him.

The burden of proof to show adverse possession for
the full statutory period is upon the party asserting
such a right; but when long continued 'u.e or damage
for twenty years has been proved, it. creates a pre-
sumption of grant anduplaces upon'the other party the
burden of proving that such us* or damage was per-
missive or of otherwise refuting the presumption.s11
In the case of backing up water upon another's land,
the court held that the right -f action accrued when
"sobbing" began and that the adverse situation must
continue without break or interruption, but need not
be constant.113 The use or damage must continue in
essentially the same way for the twenty-year periodJ14
but one is not compelled to sue the instant the In-
11jeordan v. Led, .pr; McDaniel -'Walker, 46 $ C. 4,
4S-54. 24 S.E. 378 (1896).
112Jorden v. Laid. supra; Williajon f. Abbott. aq mra.
13Lyun v. Theme., oupr.. '
114lilliauaon v. Abbott. supra.
-35-
--.________________________________________








jury occurs as for example, when the injury occurs
only during a portion -of each year and is'not caused
by the original obstruction, but through its subse-
quent intermittent operation.11s
Once acquired, the prescriptive right is not affect-
ed by a subsequent injury to the servient estate.116
A right once acquired may be abandoned when action'
are carried out by the prescriptive right holder in-
consistent and in direct conflict with the original
'easement.1 7


ACQUISITION OF WATER RIGHTS BY EMINENT DOMAIN

The constitutional provisions under which the right
of eminent domain arises is quoted as follows: 119


Private property shall not be taken or applied for
public use, or for the use of corporations, or for
private use, without the consent of the owner, or
just compensation made therefore, provided, however,
that laws may be made securing to persons or cor-
porations, the right-of-way over the lands of either
persons or corporations, and, for works of improve-
ment, the right to establish depots, stations, turn-
outs, etc.; by a just compensation which, in all
cases, be first made to the owner.



The statute granting this power must be strictly
construed. When a strict construction would be opposed
to the apparent intention, it is proper for the court.
to maintain the design and purpose of the charter, even
though by so doing the meaning of the words may be neg-
lected. This rule of construction is less applicable
when the powers are conferred on public bodies for
essentially public purposes.120

11SPowell .. Catwbla Power Co., 102 S.C. 4S2.460-461. 86 S.E.
947 (1915).
16L*ysfa v. Thomson, supro
llTaylor v. fampton, s*pra.
t8State ex. rel. Bridge Co. v. Columbia, 27 S.C. 13, 147
(1887).
119Leitsoey v. Water Power Co., epra.
I say v. later Power Co., 47 S.C. 464,478, 25 S.E.
744 j): Greenville a Columbia R.R. Co. v.Nunnamaker,
4/, ic 111.

-86-







The e,:ights granted zl4p cagry with them the im-
plied, atbority ,qt, do all -those At1 iga o ,5"zsoiAhJy .
necessary to the exercie.,o Otf rights fo ignqanted.21
Vhen property is- condemned,' tfhe compenbatib l i is' coi
clusively presumed t'o dove'r damages which may adcrue-'e-
to the remainder of the tract', well- eas that' upon
which the structure is built, and for which the owner
could' have secured coaspensatdio in the condemnation
proceedings. Any other damage ,is damnui *bsque in-
- juria.2 .. :
Apparently there was no common law action for this,
and the statute is the exclusive remedy. The rights
and duties of a municipality and landowner are recipro-
cal and correlative '1nder the statute, and either may
invoke the rights and remedies Under it.123
Pollutioz9 of a stream is a taking for a public pur-
pose without compensation.124
AA at :to build aa damr carries with it the right to
raiisa. water, to given height, and tbhu to this .extent
an invasion of the landowner's prope y.2 .


VIII ADJUSTING THE RIPARIAN LAW OF
WATERCOURSES TO- THE WANTS AND
NEEDS OP THE PEOPLE

The conditions aun the, needs .of the' people in South
-Cedinas hak changed (retttly since r-tYUe early adop- -
tidfi df thd ripat'iSa law -as applied to water use. It'
would appear-that thestime has come tdAiodify-the
riparian law to the extent necessary establishh s-
4 poli~y-of beneficial use ;of iwat.er basqAdiupq -a system.
of .atatutorywagp ropriatioin, ;hhicch. recqgnises ,prlorit y
of use but,protects existing v Alid rihbtse riraB*wa 0or
~ otherwise nd .Alows relief by way o tapenstia -o-.
for limitations placed. upon uiunused Aightte.
IV is-1 felt t-hat excessive quantitlet"%6f unused water
121Leitzsey v. Water fowner Co., supra,.
123unnamaker v. Water PRaew CCo. 47 S.C. 485.487 (1896)
123parrish v. Town of Yorkville, 96 S.C. -24,26-28. 79 S.E
635 (191i).
l : 24ipBrCiv. Town of.V rkvlI. *upra; &a.,M.atb ,v.Aikcn..
S6 .C, 179. 47 S.E. 56; Brafrtt v. Laurens, ,'S C 60, 36

S.eittdby 'v. 'f tt ioe upr.

-7-







should not' be held in perpetuity by riparian' owners on
a stream who have snhot- and may never use it. To do so
could reWult in underdevelopment of the state and per-,
mit the water to flow to the Atlantic Ocean as an, eco-
nomic waste and the loss of an otherwise valuable
natural resource. It would also place a premium upon the
interest.of some at the expense of the many.
In order to protect and encourage investments in
water' for beneficial use two things are needed: (1) to
establish the doctrine of appropriation for beneficial
use with the rule of priority of right, due protection
being afforded existing valid rights to water, and (2)
to establish adequate administrative control over the
development and appropriation of water to prevent un-
sound development of any source of supply with result-
ing injury to established uses and to afford guidance
toward maximum beneficial use of water and land.
In order to establish effectively the doctrine of
appropriation, it is believed that he who appropriates
and puts water to beneficial use should not thereafter
be subject to injunction by common-law claimants, who
have not previously established uses, for reduction in
the flow of a stream or in the reduction of the ground
water source of supply. Anyone who night be damaged
by an appropriator's use should have the right to re-
cover for actual damages. In addition it is believed
that the law of prescription is not conducive to or-
derly development and to proteoaion of individual users
who do not fully understand their right in the waters
of a stream, though the law serves a purpose in the
absence of a better policy.
It is felt that the adoption of the appropriation
doctrine will not take from the common-law owner any'
substantial rights having measurable values, but
rather provides for protection of developments and in-
vestments in the means of providing water for use.
The time has come when the people of South Carolina
must place greater emphasis upon the beneficial use
of water and land in the public interest and to en-
courage and protect investments of those that contri-
bute toward this end.
When overdevelopment or unwise use takes place, each
user under the, riparian doctrine obtains a smaller and
smaller share of the common water supply, even though
he may have been among the firstto develop his water
and land or to lake other improvement. Furthermore,

-38-
S{ { {







/he sUastains a loss, of -at least :;p-art Of his investor
ment as he becomes limited to smaller.qantities of
water than th..a.,eapaeity of his equipment and needs of
S his land or project. tnder the appropriation doctrine,
the owner of land abutting on the stream or the indus-
trial user so situated is afforded protection which
Sany appropriator receives from the beginning of use it
the order of priority of use. Thus he is not subject
to injury by later users.

Without a change in the riparian law as such, the
riparian owner who may seek to protect his undeveloped
copmon-law water right, to share equally with all others
A" similarly located in the division of the water supply,
may in time find himself without a valuable or usable
supply. Under the riparian law and an expanding econ-
omy, he would ultimately have.,a share of the water so
small as to be of little econOuic value. Likewise
other users similarly situated would be affected,
S including those who first initiated such use.
This has been the experience in Western states which
adopted the riparian law early ,in their history. Two
of these states, Oregon ans Kansas, have dealt very
effectively with this problem.



THE EXPERIENCE IN OREGON

During a third of a century prior'to enactment of,
the Oregon water code in 1909, the'riparian doctrine
was in effect much the same as in South Carolina to-
day.126 For this reason Oregon has been thought of as
Sa riparian State.I" But the appropriation of water on-
the public domain was also taking plac*eby reason of
acts of Congress.128 And in due course the Oregon
Supreme Court recognized the qesential differences
between the two doctrines, including the practical lim-
itations of the riparian right to a variable quantity

1240res. Loaw 1909. ch.21;M rTylor v. WeIlch. 6 0res. 198.
200 (1876)1; Shively v.. Bua. 10 Oreg. 7..76-77 (18t1); W*i8a
v. Oreooa Iron a Steel Co., 13 Ores. 496.498-499. 500.502,
11 Poc. 2SS (1886)-
1271gough v. Porter, 51 Ores. 318.410. 95 Pae.172 (1908).
98 Pe,. 108s (1909). 14a F*.. 7t8 (1909); aaterm" reaow Lead
Co. v. lillow River Land a Irr. Co.. 187 Fed. 466,448 (1910).
1, 1284 Stat, 1,. 1 ee, 9S1 4. ..r v. State.. e, ,. a139 (1< 66)1
S 16 Stat. L 2186 U.S. Rev. Stats., SC. 2340 (18o0r ..

-39-
-'








of water and of the appropriative right to a definite,
fixed amount.29

t became difficult for the court to.apportion the
waters to protect riparian rights,lq land such decrees
'were good only so long as the conditions on which
they were rendered remained the same.131 Thus, the
claimants were required to elect one or the other
basis but not both, and one claiming a specific amount
was held to have waived his riparian'right.132

The water code adopted in 1909133 which established
a new water policy for the state, placing emphasis
upon beneficial use of water, was sustained by the
Oregon Supreme Court upon consideration of all objec-
tions to its validity134 especially to the definition
of a vested-right contained in the act and the right
of the legislature to regulate the riparian right.143

The act was sustained in the Federal Courts, includ-
ing the right of the state to regulate riparian rights
under its police power'3* with due regard for the eco-
oomic welfare of the community.137 The Supreme Court
of the United States sustained the holding of the
Federal Court but on somewhat different grounds.138

129Gavinelo v. LaGrande Irr.'-Co.. 60 Oreg. 410.420-421. 119
Pac. 731 (1911); In Re Sucker Creek. 83 Oreg. 228.234-235. 163
Pac. 430 (1917); In Re Silvie* River. 115 Oreg. 27.131-132.237
Pec. 322 (1925); In Re Deschutes River and Tributaries. 134 Oreg.
623.704-705, 286 Poe. 563. 294 P*c. 1049 (1930)-
130Jones v. Conn. 39 Oreg. 30.37.46. 64 Pae. 855. 65 Pae.
1068 (1901).
131n Re. Silvies River, supra.

132Davrj v. Chamberlain, 51 Ore. 304.311, 98 Pac. 154
(1908); Bowae v. Spauldind. 63 Ores. 392.395.128 Pac. 37
(1912); Cavisnea v. La Grands Zrr. Co., supra.
1330reg. Laws 1909, ch. 216; now Oreg. Coup. Laws Ann..
see. 116-403 (1940).
134In Re Willow Creek. 74 Ores. 592.610-620.627*28. 144
Pac. 50 (1914). 146 Pac. 475 (1915).
135In Re Hood River, 114 Oreg. 112,173-182. 227 Pac. 1065
(1924).
136California*Oregon Power Co. v. Beaver Portland Cement Co.,
73 Fed. (2d) 555.557. (C.C.A. 9th.1 1934).
1371n Re Hoed River. 114 Oreg. 112.173-182.227 Pec. 1065
(1924).
138Callforaml -Oregon Power Co v. Beaver Portland Cement Co..
295 U.S. 142 (1935)-

-40-








The efforts of Oregon to adjust its -iater policy to
the.changing wants and needs of its peo"plewere marked
by harmony between the legislature and courts. It is
I to be hoped that this experience will prove helpful to
South Carolina.

THE EXPERIENCE IN KANSAS

Kansas adopted the common law in 1855 when it was
still a territory139 and maintained,the riparian doc-
trine for three-fourths of a century. It was held as
late as 1936 that the riparian owner has the right to
the uninterrupted flow of a stream without diminution
or alteration.140 But this was limited by the right
of all riparian to make reasonable use of the stream
for domestic and livestock purposes141 after which
all are entitled to fair and equal shares for irriga-
tion purposes.142 This policy was continued by the
court as late as 1949 but before it construed the Act
Sof 1945 setting up a new water policy.143

It should be pointed out that these decisions
effectively locked up the surplus above riparian needs
so that waters could not be adequately developed. South
Carolina is on the threshold of this position today.
The Governor of Kansas appointed a committee to pre-
pare recommendations.for new water legislation in 1944,
after the state had had considerable difficulty in ad-
ministering the piece-meal appropriation statutes in the
face of the limitations of riparian.law and needs for
new development.144 This committee submitted its report
with recommended legislation on Decemberl19, 1944.145

139State ex. rel, Peterson v. State Board of Agriculture,
158 Kenas. 603.605, 149 Pec. (2d) 604 (1944).
140Shamleffer v. Council Grove Peerless Mill Co., 18 Kans.
24.31.33 (1877); Frizell v. Bindley, 144 Kans. 84,91-92. 58
Pac. (2d) 95 (1936).
141Bporia v. Soden, 25 Kans. 588,606 (1881)
S^14frisell v. Bindley, 144 Kans. 84.91-92. 58 Paci (2d)
95 (1936).
143eigse v. Schulz. 167 Kens. 34.41-43. 204 Pac. (2d) 706
S(1949).
144Frieil v. Bindley, supra; State ex. rel. Peterson v.
State Board of Agriculture, 158 Kans. 603,605-614.149 Pac.
,(2d) 604 (1944); report to th9 Governor of Knaeas.,s
S145** The Appropriation of Water for Beneficial Purposes."
December. 1944, PP.7,8. See pae 1 of this report to the
South Carolina Soll Cohniaetiois Colittee. e

41-








The legislature passed a new water law very simi-
lar to the recommendations of the committee including
definitions of vested rights and making provision for
protection of vested rights under the new policy of
beneficial use.14'
This act was sustained by the Kansas Supreme Court
in 1949 on all issues before it with emphasis upon
the fact that the state legislature had dedicated the
waters of the state to the use of its people, subject
to regulation by the state under its police powers as
prescribed in the act.147

If Kansas and Oregon, two states originally classed
as riparian states, one on the sea-coast, the other
an inland state, can make this adjustment it would
seem that South Carolina can do likewise. In fact the
limited law presently on the books should make the
change over easier in this state.







IX -- ADVANTAGES OF STATE-WIDE ADMINISTRATION
OF WATER RIGHTS AND THE APPROPRIATION
OF WATER FOR BENEFICIAL USE


The placing of responsibility for administration of
water rights and water development policy in the hands
of the executive branch of the state has important ad-
vantages over the county system still in effect in
Montana. Among these advantages are the following:
1. Since water does not follow county or other civil
boundaries, an,office with jurisdiction over an entire
-drainage system, such as the Vateree, would be a ne-
cessity to avoid confusion and conflict over records.
Most county boundaries in South Carolina cut across
drainage lines.
2. The determination of water supplies surplus to

146Kans.. Law 1945, ch. 390; Gen. Stats. 1949. seec. 82i-701
t6 82a-722.
147State ex. rel. Smery v. Espp, 167 Kan*. 546,555-556,
207 Pac.(2d) 440 (1949).

-42-







existing rights, preliminary'tolgrantingpnew appro-
priative rights, requires technical personnel not
available in county units of goyernmento.
3. The distribution of water wander court decrees
affecting water systems dependent upon an entire
drainage cannot very well be delegated to county
Officials alone because of the jurisdiction limita-
tions.
4. The determination of priorities of water rights
requires adherence to sound procedural principles for
ascertaining the facts, since appeals therefrom may
be taken to the courts. Dividing such responsibility
among county governments would *ie extremely difficult
of effective administration.
4 5. The expansion of water development and use calls
for responsibilities to be exercised by the state to
assure the attainment of the objectives of its public
policy and to provide able leadership in dealing with
other states and the federal government on interstate
or navigable stream problems.



X -- CONCLUSIONS AND RECOMMENDATIONS

GENERAL
1. The State as a Whole. There are substantial
supplies of surface and ground a&ters throughoutt the
state. There are..also extensive, land areas available
for development by means of cleaning the land, devel-
oping- soqnd land use patterns based upon capabilities,
developing storage reservoirs aad other works, good
water management on the farm anid group,# of farms, and
other soil and water conservation measLres. But
critical water shortage and damage situations are
also present, and these seem to, be increasing where
(a) seasonal precipitation and runoff ar" low pr,.
highly variable and adequate storage or other means
of water use are not presently provided, (b)-i:e'nads
.for water by agricultural and industrial enterprises
and municipalities are rapidly expanding, and (c)
impairment in the quality of water limits its avail-
ability for certain uses.
Though average annual- precipitation and runeff are
adequate for hie State as a while in a fross ovt$Table

-43-


\/. *, I )i-'








sense, seasonal precipitation and runoff are not pre-
sently adequate in a net usable sense in local areas.
The southwestern half of the state seems to have the
more variable rainfall. Though water and land condi-
tions in the state vary in degree from those common
to the western states, the legal and physical princi-
ples involved in making beneficial use of water and
land are essentially the same. It is important that
this fact be recognized.
The solutions for this broad state-wide problem seem
to lie in balancing, where possible and practicable,
the supply and demand situation within and between the
watersheds of the Piedmont-Blue Ridge and the Coastal
areas. This, to some extent, involves interstate
streams of three states. Such a balance can be
achieved over the years through appropriate physical,
legal and other means.
The present water laws and programs of the state
appear to be inadequate to cope fully with this situa-
tion without private enterprises and the public in-
curring serious losses in the years ahead. If the
competition for water continues to expand, and there
is every reason to believe that it will, it appears
that sharp conflicts of interest and distress may
multiply at the times and places where water is need-
ed most. Examples of the latter are already a matter
of record.
In these circumstances, it would seem wise for the
people of the State through their appropriate repre-
sentatives to secure such adjustments in existing
water law, particularly the riparian law of water-
courses, and provide such programs to implement those
adjustments as may be appropriate to their customs,
needs and resources. Such adjustments should take
into consideration thefuture as well as the present
situation. There is ample precedent that the legal
adjustments can be made by sound legislation.146
2. The Piedmont-Blue Ridge Area of Excessive Runoff.
Above the fall line, the shortage situation as well
as opportunities for development occur mainly in the
alluvial valleys of streams and rivers. Much of the
1*4United States v. Rio Grande Dam a Irr. Co., 174 U.S. 690
(1899); Clark v. Nash, 198 U.S. 361 (1905);.Kansas v. Colorado
206 U.S. 46 (1907); Conneoaitut v. NMeaschsa tts. 282 U.S. s60
S(491); California-Oregon Porer Co. v. Beaver Portland Cement Co..
295 U.S. 142 (1935).

-44-I *'. f ;m




[ 7 "A


present water use is for domestic purposes in the non-
riparian uplands, but yields arc relatively low from
crystalline bedrock.- Upland industrial and municipal
users are drawing water from th ?'iparian lowlands.-
Use of lowlands for crops and pat~re is hampered by
floods and sedimentation of stream channels. Much of
this originates on eroding uplands that might better
be in grass and trees. Storage and retardation of
surplus stream runoff is desirable though it may be
Costly. This may not be done viry effectively in de-
fined stream channels under existing riparian law,
except by agreement of all riparian owners or by
trespass upon their rights or by legislative authori-
sation. The latter would be the sensible approach to
this phase of the problem.
It appears that additional ground water may be
developed in these valleys (Figure 2140) although












A




A Unweathered bedrock containing, water bearing fractures.
Water in this zone is tapped by drilled wells.
S'B Weathered rock zone -- the source of ground water in
most dug wells. Yields average lower than those for
drilled wells, but water is rot usually so highly
mineralized.
C Soil profile including topsoil and subsoil. Where
subsoil is slowly permeable, temporary perched water
table is formed after heavy iains.
S0 Alluvium, moderately to rapidly permeable, containing
undeveloped ground water supplies.

Figure 2 -- Croses-sectional diagram to illustrate occurrence,
of groudM water in Pibdmont Plateau.

149Figures 2 and 3 herein were prepared by F.1. Heller, Soil
Conservation Service, Spartenburg, South Carolipa.
-45-







this may affect the flow of suro e streams if carried
on extensively.

The building of small reservoirs and ponds for catch-
ment of 'diffused surface flows should help materially
in retarding flood runoff and in providing water for
livestock, fish and recreation but may not prove fully
dependable for irrigation purposes.

Continued expansion of the soil conservation and
wise land and water use adjustment program on the
watershed is vital to maintain and improve water yield,
and hold soil on the farms but this should be combined
with fire protection, water retardation for flood da-
mage reduction, and water pollution measures in order,
thereby, to round out a sound watershed management
program. One of the beneficial results of such a pro-
gram would be to reduce the impairment of the quality
of surface waters within this area and of streams
which head in this area but serve the Coastal Plain.
Water and soil must be held on the farms and water-
sheds of the Piedmont.

3. The Coastal Area of Excessive Water Accumulation.
Below the fall line, the opportunities for development
of both water and land are tremendous, especially in
the lowlands bordering on inlets and bays and on
streams which head in the sandhills near the fall line.
There are also important opportunities for development
in the uplands through diversion of surplus waters of"
streams and the development of groundwater. But such
developments could be hampered by the existing water
laws and by downstream water uses which have been re-
cently established or which may be established in the
near future. Once such uses are validly established,
their continued use might be required in the future.
Major water uses ought to be established in relation
to the needs of the State as a whole.
Whereas the Piedmont-Blue Ridge Area is character-
ized by excessive and rapid runoff of water and silt
to lower valleys, the Coastal Area is characterized
by the accumulation and sluggish movement of water.
Both conditions reduce the availability of land for
productive use. Good water management is helping to
relieve this situation on farms in Soil Conservation
Districts.


-46-
I I I I III |








The Coastal Plain also has tremendous "recreational
as well as agricultural opportunities, Adjustments in
land and water use according"to capabilities of these
Sresources should continue to be imphaasiie4 and en-
couraged by Soil Conservation Districts.
Storage of surface water in this area may create
problems as well as solve others. The base flow of
streams appears much more dependable and could be re-
lied upon for diversion as the future may require it.
SThere are important opportunities for siall "charco"1s
type ponds and for wells which penetrate the shallow
ground water to serve both livestock and irrigation
Needs. It is possible that deep ground wver supplies
could also be tapped where economic factors will per-
mit this. (Figure 3). But all these matters encounter



ARTESIAN WELL 'WER-TABLE
(NON-FLDW*G)N WELL AWMESIAN WELL












A Coastal terrace formation, moderately to very rapidly
permeable, containing ground water under ater-tabl
^r conditions. Shallow wells and aug out ponds obtain
ground water from this formation .
B Artesian aquifer, a rapidly permeable sa.d, ) or
limestone (2) formation. later is confined under
pressure between two slowly permeable layers.
C Slpwly permeable clay or shale layers which confine
water to artesian aquifer.
^ Artesian wells penetrate upper clay or shale' layer to
obtain water confined under hydrostatic pressure in
artesian aquifer. Water table ,is shown py short
da hed -tine. Long dashed line shows level to which
artesian water will rise in tightly cased wells.
Figure 8-- Groaa-sectrioaal diagram toi illustraiteo grpoud water
A conditions in coastal terrace portion of Coastal Plain.
IlrChabrro" A Small idug out' pond witer utep sid e depending
upon r n nd tr for tr of -47r.


.1.1 ........ 1 .111......1- ;__


CI







the ali6st primitive wat,
State.


er law which exists in this


The shortage situation is coupled with the anomaly
of high water tables. The tree-grass-livestock and
truck crop use of land, soil moisture conservation,
drainage, ground water control, irrigation, and other
conservation measures, including salt water repulsion,
are intimately bound together. If managed pro-
perly, this combination can afford a very productive
and permanently balanced economy but water management,
including the legal aspects, is the key to it.
Damage by water or to water in this area arises by
reason of extensive waterlogging of lands and by salt
water encroachment above and below the surface in
certain specific localities. Control of the water
table and surface flows within close limits seems to
offer the best solution but this is complicated by the
tight subsoil and subsurface materials. Such control
may eventually involve local water management regu-
lations or ordinances or customs covering the operation
and management of cheeks in ditches and gates in out-
lets, and the development and spacing of wells and
ncharcos." These aspects should be handled as a part
of the functions of group water organizations, whether
they be Soil Conservation Districts, Counties or other-
wise. The present drainage law seems to be inadequate
for this purpose.

-48-
WI


The shortage situation in this area arises largely
through seasonal drought and high.evapo-transpiration
demands and also through increased demands for water
in the growing season for irrigation and livestock as
land use shifts more and more from cotton to pasture
and truck crops. If the expansion of ponds and free-
flowing well reduces the artesian head and yield, as
is happening in the vicinity of certain cities, dis-
tress may result to farmers and others who depend on
this source for supplies and are making new invest--
ments for irrigation and town use. There are also
shortages due to demand of municipal and industrial
users, some involving only competition for ground
water while others involve surface waters as well.
Some of these users are exporting water from riparian
sources to non-riparian places of use. In certain
cases there are appearing sharp conflicts between
ground water users within municipal limits.







4. A State Plaif ant Pr6gra ff-f Water. eqources.
Conhider:ble progress has been ,Hade in b riatin water
res ources ctivittf' :lit i;t Ciaolifa buit there toes
Snot seen to be a well rounded p'an and program direct-
ed toward the maximum beneficial use of water and land
in the it i t .e oef all 'the people. This nay resuiftiin
Spatt from thtl lack oft an administrative unit in'the
executive branch of the state government which douid-
give directibn to water resource matteth. It is re-
cognized that there has not beez as'*reat a need tor
this untillrecent' years.

It sa- eaptpnial to the economy and weLfire of the
people of, t~4 State that a plain and program be pro-'
gresslyely-de4eloped and suoh an administrative unit
Provided. n order that orderly development, wise uea,
conservation and protection of- water supplies can be.
stimulated. People-should begin to think wore and
more an tar.s of the State as .whole and its major
water problem aretac&ather than ito confi -themselves
t -thiakiag only in terms of their owvxtai u, projstr,
StoWs or 'induatries. ~,Eere is a big educational a ob

WVays aka means o'f meeting the future -ee-ds for water
Sand land'shodld be anticipated. Our nasiinal population
and responsibilities ate growvin rapidly. This is -n-
other phase of -t1oleit- thinking whichh should be considered
with reference to opportunities Available in South Car-
Solina.. 'he st'te government, prTvat-e organizations, 1'-
cal units of government, and water user generally could
participate tn -he development And execution of'a broad
plan and prfpara for water and land. Tfhe administrative
unit could give .direction to 'thb water t`rt of a-l,
spewrhlad certain types of- eurvy 'and investigation
activities -ztded in forulating such s plan and in
executing a new water'poley, sid -serve se a central
clearing housa for important re4ords. 3''-
The program activities here outlined should go hand
in hand with the adjustment-in-law aetlvtles' herein
recommended.
5. Takin paosic Water Law Prot Ueans,ifat The Wter'-
courses. The problem pf provid4i adequate supplips-of.
water ad.sland foripl ,pnep4d n4hi.Sitpte present.
the aoe s generp,) tpe of sitaton tht, has occurred
throughout the westA~i 17 states in- one- form or apot-
er. The only rpea, difference is one .fo, 4"rpsep. Th +,
-49-







principles are essentially thq seage .t4 Qgh t thfactual
situations differ .- Wherever VwariV sbhrt&ges &i.se,.
greater definiteness an,. dependability Xof water :.ghts.
and water supplies to satisfy those rights aqst be
provided. .
When water was plentiful :fori all aand usAes. di4 nzot
mater,,ally reduce the Atot, supply, the 'o1A -iparianq
doctraine was adequate. t,But in the. very popplex economy
of to9ay, ripariap.law has been found by hard and. cstily
experience to be inadequate in certain respects It. is es-
sential to the continued developrnont and expansion opf
agriculture, industry and municipalities in this State
that a moreadequate doctrine of law-be established with
due regard for the vested: ights af all present waVer
us ea, riparian or.otherwise. 'Aljustmient thithe Ubsi -
property law, of surface water righ'tt should precede
that- of groundwater rights. : "
6. ,he-J Aarp tiation .of. Water for Beneficial Use;.
It is interestingg aLto note that South ^Carolina w ter'
users..are today -.ondetitg whether or r'n'ot thetr invest-
smett t im wae.e .ideveloameat and-land aire s*ecir-se in "view
of the shortage 6of water occurring -ag a res"It of ~'W"-
pansion of activities. They are beginning to dis;~uens
the i mIa4ttepriAn groups as, did the miner,.in Califop~nia
whenthey developedthe "custom of the diggins"--7the,
origin of the western, doctrine of prio ar!oprition,
t ;,Sme. are alo taking the second st~p that occua'ed,
out. West by. asking county- recorders to. reqFpd their
claims -to a&dAintent ion to use, definite fn4g specif Ae
quantities of, water at ,giyen places., in .
o The -doctrine of.-appropriatioin 3as bean adoptedd Sn U:
-i-e-ry state of-tihe West in order tAo esncourag- dewaelo0p-
ment and to proteowt iaveataents idependent- upn water .
supplierr. This experience, has, been th%-onaghly teate4
in the ,court*, in .the aduiniBtrtive ageacnies, and, in ,
the;' cooperative A~tivitiea vot .water users It is not.
a perfect or utopian. solutiono! --,iat i-t 'aa-y ,e wisae .to
take full advantage of_ it.
7. Ajtttfntio. J._ theirr Water 4Law Problems. The law
of ground waters should be taken up just as soaona,
practicable after the law of watercourses is well on
its wsy toward adjustLent, including itsa-Klininst#ra-
tive aspects. rollb*iW) ja6nY thl% tip ,or 6ic letiiii_--
ly wlit it'shubld be' theg lealand administrative as-
pecth bf group water orgaiisatiois needed "fr plinni g,
construction, operati-ons, 1aineinahie, 'and regulat'oii
of 'mabsures serving groups of wiateir uIsers.
-50-







8PICIFIC RICOiMOND IONS

1., That adja tent -in the basic property law of
watercourses be approached on toe broadest possible
basis; i, e., all apeecta of uaq for the State as a
'whole.
2. That the State Soil ConserVation CoWmittee adopt
as its objective the maximum or highest hbeeficial
use of water in the interest of all the people upon
J due consideration of advisory a4d cooperating groups.
8. That the Committee seek th advice nd guidance
and full support of the Governo of South Carolina.
It is suggested that the Govern4r be asked to request
consideration by the General As embly of the recommen-
dations .of the Committee, emphaqis ing tpa ommon inter-
Sests of the people'of the State4 It is, also depirable
that he secure the cooperation 1f all departments of
the executive branch and certain types of assistance.
4. That the Committee, with toe advice and guidance
of counsel and that of conoernes4 water a~ers, cause to
be prepared a draft of a comprehensive o rface water
law. Advice.of water users may be secured through
hearings or, otherwise '

S 5. That the General Assembly be requested to adopt
such a comprehensive surface Ywaer law,. including a
new water policy which recogni Is changes p n the wants
and needs of the people; estab ipsbies the ojbective of
Sthe highest, or maximum benefici,:l uses o. water; rec-
ognises the inter-relationship f surface and ground
waters and of water and land; r cognises that the en-
Scouagement of sound development, wise use, conser-
vations and protection of water, as well' as land, serves
tbh public interest; and recognizes that the State
S uit' rgtanise effectively to mebt te hinging situa-
ti .
6. That this new water law al o'provide. for full
protection of vested water,rights; procedures whereby
new appropriative rights may be acquired; definitions
of terds, units of measurement, and vested rights to
assure clarity and meaning to the new policy; limita-
tions upon the exercise of all afterr rights, whether
vested or newly acquired, in li e with tne new policy;
: s exemption of domestic 'Uas and diffused suf ace waters;
the effect of priority of rights; and thie manner by
which water rights may be lost through,abandonment.
-51-
--------------------------,_____________







7. That this new water law also provide for its ef-
fective administration by and through the creation of
a new unit of the executive branch. The law should
define the powers of this unit, provide it with au-
thority to designate administrative areas, and pre-
scribe procedures for the acquisition and determina-
tion of new appropriative rights in water.ls5
8. That this new water law also provide procedures
for adjudication of rights through appeal from orders
of the new administrative unit or otherwise; reference 4
of issues to-the new unit as.Special Master to make
findings of fact and orders of determination; and the
appointment as needed of Water Masters to execute
court decrees in local areas.
9. That this new water law also provide procedures
for conveyance or assignment of water rights; con-
ditions under which changes in their exercise may be
made in order to protect the rights of others; rota-
tion in water use among users from the same source;
and the basis pon which abandonment of water rights
shall be determined.
10. That this new water law also provide authority
to construct dams and other works in stream channels
or at other points under the supervision of the new
administrative.unit. Andte-L te srshould eventually
have-a-esirveye- staff to determine water su3 Ies avail-
able for-_proriation and to give direction to water
planning. wrk_in tie-~ teT. -1 Tn-stitutions Tn-the
State should be directed to cooperate with this, new
unit.
11. That this new water law also provide for reports
to the administrative unit b.y water users and for
minimum fees to be paid by applicants who desire to
acquire new appropriative water rights., I' would be
advisable to require reports on ground water use be-
fore a new ground water law is established and this
ought to be ienorporated into legislative proposals
of the State Soil Conservation Committee.
12. That this new water law also provide for court
review of aota of the new administrative unit, pro-
dedwres for enforcement of the new law, and penalties
for violations thereof.
151St is thought tht this ne administrative unit need not be a
large one In its inception aip should be slowed to grow as the e**4
is shown for it. Its director should be of the highest professional
and personal character

-52-




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