Title: Condensation of Draft Paper on Some Legal Aspects of Water Use in North Carolina by Harold H. Ellis
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Title: Condensation of Draft Paper on Some Legal Aspects of Water Use in North Carolina by Harold H. Ellis
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Abstract: Richard Hamann's Collection - Condensation of Draft Paper on Some Legal Aspects of Water Use in North Carolina by Harold H. Ellis
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 10
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Full Text



Ellis
Draft for Discussion




The Conservation Foundation




Symposium on the Law of Water Allocation

in the Eastern United States


Cosmos Club, Washington, D, Co
October 4-6, 1956


Condensation of Draft Paper on
SOME LEGAL ASPECTS OF WATER USE IN NORTH CAROLINA
by
Harold H. Ellis







Production Economics Research Branch,
Agricultural Research Service,
U. S. Department of Agriculture
in cooperation with
The Conservation Foundation
30 East 40th Street
New York City


1







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SOME LEGAL ASPECTS OF WATER USE IN NORTH CAROLINA
By Harold H. Ellis *

Introduction

The discussion that follows deals with some of the features of the

applicable water laws in North Carolina, but it is not exhaustive in

these respects. It constitutes a condensation of a more comprehensive

treatment of the same subject which previously has been distributed to

the Symposium participants. In this condensation, no attempt is made to

deal with each and every topic that is discussed in the longer paner,

with particular attention being given to selected topics, such as

irrigation. Furthermore, the difficulties inherent in attempting to

condense the previous description of the applicable laws, without

omitting some pertinent qualifications, should be recognized.

Primary attention will be given to general State legislation and

reported Supreme Court decisions. The writer has made no detailed

analysis of the number or nature of special and local laws that may

affect water rights. But the State's Constitution, Art. II, sec. 29,

which became effective in 1917, prohibits the Legislature's enactment

Agricultural Economist, Production Economics Research Branch, Agri-
cultural Research Service, U.S.D.A., and member of Illinois Bar. The
writer gratefully acknowledges the assistance obtained from a preliminary
manuscript on North Carolina water laws that was prepared by Mr. James E.
Thompson, Ewing, Kentucky, for The Conservation Foundation.
Other discussions of various aspects of North Carolina water laws in-
clude "State and Federal Water Laws and Considerations Affecting Future
Legislation" and "Water Resources of North Carolina" published by the
State's Board and Department of Conservation and Development, and Com-
mittee on Water Resources, Inlets, and Coastal Waterways, Raleigh, 1956
and 1955, respectively; paper by Claude L. Love, Assistant Attorney
SGeneral, furnished to the Governor's Water Resources Committee, Jan. 18,
1954; opinion of Harry McMullen, Attorney General, dated Nov. 20, 1953;
Comment on Riparian Rights, by J. A. Alspaugh, 34 N.C.L.R. Feb. 1956;
and Marquis, R. H., Freeman, R. M., and Heath, M. S., Jr., "The Movement
for New Water Rights Laws in the Tennessee Valley States," Tennessee Law
Review. Vol. 23, No. 7 (April, 1955).






-2-
of local, private, or special acts or resolutions relating, among other

things, to nonnavigable streams, to ferries or bridges, or to health,

sanitation, and the abatement of nuisances.

Supreme Court decisions have developed from the English common law,

but there have been a number of modifications and some outright repudia-

tions of old common law principles. 1/ The laws discussed herein relate

to legal rights of individuals, organizations, and agencies relative to

the ownership, use, disposal, control, or regulation of the various

water resources in the State. Except where otherwise indicated, the

discussion deals with the general rules of law that have been adhered to

by the State's Supreme Court (hereinafter called "the Court"), in the

absence of contractual agreements, prescriptive rights, controlling

statutes, or other complicating factors.





















i/ Footnote references heroin refer to corresponding footnotes in the
writer's more comprehensive paper on the same subject.







3 -
-3-

The State's Policies Regarding Water Resources

A rather broad statement of policy was enacted by the Legislature in

1955 regarding the utilization of water resources in North Carolina. It

declares that:

"The general welfare requires that the water resources
of the State be put to beneficial use to the fullest
extent of which they are capable, and that the waste or
unreasonable use or unreasonable method of use of water
be prevented, and that the conservation of such water be
exercised with the view to the reasonable and beneficial
use thereof in the public interest." g/

The immediate purposes of the act in which this appears, however, were

limited primarily to (1) the creation of a Board of Water Commissioners

to study the water resource situation and problems and make recommendations,

and (2) the creation of certain powers to act in emergency situations with

respect to public water supplies. The effect of this statement of policy

upon other (existing and subsequent) legislation, and upon subsequent

Court decisions, is problematical. But it is doubtful whether it will

have any substantial effect on the State's water law until it is imple-

mented by additional legislation for this purpose.

Statements of policy also have been enacted in regard to certain seg-

ments of the over-all water resource problems of the State, such as pollu-

tion control and the protection of public water supplies and fishlife --

all of which have been accompanied by certain implementing legislation.

For example, legislation relating to "Stream Sanitation and Conservation,"

provides that:

"It is hereby declared to be the policy of the State that
c the water resources of the State shall be prudently utilized
in the best interest of the people. To achieve this pur-
pose, the Government of the State shall assume responsibility
for the quality of said water resources. The maintenance of







-1 4 -
-'4-

the quality of the water resources requires the creation
of an agency charged with this duty, and authorized to
establish methods designed to protect the water require-
ments for health, recreation, fishing, agriculture,
industry, and animal life." /

Somewhat more detailed policy considerations appear in the criteria

to be followed by the State Stream Sanitation Committee in applying

classifications and:standards of water quality to particular waters.

These include, among other things, consideration of the relative economic

values involved in attempting to improve the condition of particular waters,

and of any dominant economic interests or development in the area,

Recent legislation declares, that it is the State's policy to use its

system of real estate taxation so as to "encourage the conservation of

natural resources and. the abatement and prevention of water pollution." "/

Also, in a 1955 act relating to Water and Sewer Authorities, which Tro-

vides that no such Authority may employ condemnation powers without the ap-

proval of, the State Board of Water Commissioners, certain policy statements

appear in the criteria for determining whether to permit condemnation to

be used. Such criteria include whether the proposed use of water by such

Authority (1) is consistent with the maximum beneficial use of the State's

water resources, including its watershed-wide and State-wide effect, and

(2) will promote and increase the storage and conservation of water. The

Board may also consider the feasibility and cost of alternative sources

of supply and the probable detriment and potential beneficial use of water

through use of such alternative sources in comparison with the source

sought to be condemned.

1951 legislation requiring permits to be obtained from the Department
of Conservation and Development before taking irrigation water from "streams,







5 -

rivers, creeks or lakes" so as to substantially reduce their volume or

flow, speaks of "safety and public interest."

Considerations of public interest also have been included in certain

special and local laws, regulations promulgated by certain agencies, and

in various decisions of the State's Supreme Court, most frequently in

instances where the Court has interpreted the meaning and effect of par-

ticular legislation. This has been particularly noticeable in the handling

of cases relating to such things as milldams and drainage. The Court has

noted that the early milldam and drainage statutes were born of necessity,

in order to develop the flat eastern lowlands of the State. j/

Tvnes of Water Sources

' As in other Eastern States, different legal-principles have been ap-

plied to different types of natural water sources, notwithstanding that

they may be all more or less interrelated. These include such broad

categories as surface watercourses, underground streams, percolating

S groundwaters, and so-called "surface waters," There are also various

types of artificial watercourses and other artificially developed waters,

such as waters in constructed ponds or in reservoirs or lakes created by

damming a natural watercourse.
Natural Watercourses

Definition

In two cases dealing with rights to use natural or artificial water-

courses for the drainage of lands, the Supreme Court defined a natural water-

course as follows
"A watercourse consists of bed, banks, and water. A natural
watercourse has such characteristics while in a state of
nature and without artificial construction. Natural water-
courses are such as rivers, creeks, and branches." /


II___






-6-

In another drainage case the Court said that "A watercourse is well defined

in Angell on Watercourses (7th ed.) sec. 4." g/ This states that a distinc-

tion should be made between "a regular flowing stream of water, which at

certain seasons is dried up, and those occasional bursts of water, which,

in times of freshet, or melting of ice and snow, descend from the hills,

and inundate the country." It is not a natural watercourse unless "the

water usually flows in a certain direction, and by a regular channel, with

banks or sides. It need not be shown to flow continually,..and it may at

times be dry; but it must have a well-defined and substantial existence." 2/

In another case, involving rights to drain water which had collected in

a natural depression to form a.pond, the Court appears to have treated it as
"surface water" (which will be discussed later) rather than a natural water-

course, even though the pond sometimes spilled over, since no defined water-

course led from it. 11/ In two cases, a well-defined channel running

through a swamp was considered a natural watercourse, .I/

It has not been clearly determined whether or to what extent underflow,

flood waters, or other waters closely related to a watercourse may be con-

sidered a part of it. The Court in some cases implied that rights to the

use of a watercourse may include certain rights in connection with flood

waters which naturally overflow the banks, but these cases generally have

dealt with the negative right not to have such waters polluted, rather than

any positive right to make use of them. The Court in other cases has indi-

cated that flood waters that have not overflowed the banks of a watercourse

are to be considered a part of it, although somewhat different legal prin-

ciples may apply to their use or disposal than to waters, that ordinarily flow

in the watercourse. Rights and duties connected with artificially developed

waters in natural watercourses will be considered later.


U






-7-


General Nature of Riparian Rights

We shall put aside for the moment the question of rights in and to use

navigable waters. With respect to nonnavigable watercourses, the Court has

consistently applied some version of the riparian doctrine. This doctrine

provides, in general, that owners of land that are crossed by or adjoin a

natural watercourse (called "riparian" owners or lands) have certain rights

(called "riparian" rights) to use the water, that accompany their ownership

of such lands.

Riparian rights have been said to be inherently annexed to and embodied

in the ownership of riparian lands and, with certain exceptions, to pass along

with the transfer of the. ownership of such lands. II/ No riparian owner nor,

apparently, all collectively, owns any particular part of the flowing water.I_/

But each owner through or along which a watercourse runs.has a right to make,

or to prevent others from making, certain uses of the water.

With respect to the question of diminishing the flow of a watercourse,

the Court probably would follow the general rule that riparian rights only

run upstream -- that is, that an Upper owner can have no cause of action

against a lower owner, because he would not be affected by any downstream

diminution of the flow. .I/ But upper riparian owners have been allowed to

recover against certain downstream uses of a watercourse, such as the backing

up of water with a dam or the obstruction of the upstream migration of fish.12l

The riparian rights of a riparian landowner may enable him to prevent or

limit the use of riparian owners upstream for long distances, and may even

enable a riparian owner along one stream to have a right of action against

certain uses of upper tributary streams. ~0/ But springs, creeks, and surface

or other waters that naturally lead into the watercourse along its route may

tend to reduce the likelihood of an upper owner's liability to some lower






-8 -


owner a considerable distance away, by partially or wholly offsetting his dimi-

nution of the stream's flow, or by helping to purify the waters he has polluted.

General Development of the Riparian Doctrine

Except for domestic uses, which will be discussed later, some of the

Court's statements regarding riparian rights appear to have adhered more closely

to the so-called "natural flow" doctrine (which generally permits little or no

consumptive use of a watercourse) than toward the riparian doctrine of "reason-

able use" that has developed in several other Eastern States. For example, in

an 1882 case the Court stated that each riparian owner has an equal right to

the use of water "without diminution or alternation." This case involved gold-

mining, where much water would be removed from a stream and perhaps little or

none returned. The Court recognized, but did not decide, that such new con-

sumptive uses of a watercourse might require some modification of the rule,

noting that use of the water simply as a moving power for mills and manufactur-

ing purposes "does not destroy, or in any considerable degree, reduce the volume

which still flows on for the use of others." 2/

On the other hand, some conception of "reasonable use" crept into the

Court's description of the riparian doctrine in this and other early cases.

The Court in this case said that "the reasonable use of the water as itrpasses

in its onward course so that Mn damage is done by withholding it, is the rule

by which the rights of riparian owners are regulated." _4/ (Emphasis added.)

This rule was modified somewhat in some other cases so as to permit some

reasonable use, consumptive or otherwise, of a watercourse so long as other

riparian owners were not materially damaged, 1/ or the watercourse was not

'materially lowered, g/ In the latter event, the Court added that there would

. be liability "to a lower proprietor who suffers a substantial injury thereby,"

.but that "where there has been no appreciable, perceptible diminution of the
t







S9
volume of the stream, by the upper proprietor, the lower has no cause of action."

The Court applied this latter rule in a case in 1910 involving the pumping of

water from a stream for watering locomotives on riparian land It noted that

there was some evidence that less than one percent of the stream flow had been

withdrawn and that such reduction could not be detected by eyesight. The Court

said that "the size and character of the stream has much to do with the quantity

of water which may be withdrawn from it." L2/

Other important modifications of the riparian doctrine were discussed at

length in the case of Dunlap v. Carolina Power and Light Co., decided in 1938.

This case involved the question of liability for damages to a lower riparian

owner from the operation of a hydroelectric power dam. The Court at one

point said that:t

"A riparian proprietor has a right to make all the use he can
of the stream so long as he does not pollute it or divert it
from its natural channel and abstract so much as to prevent
other people from having equal enjoyment with himself, or
does not use the same in such-an unreasonable manner as to
materially damage or destroy the rights of other riparian
owners. The rights of riparian owners in the running stream
above and below are equal; each has a right to reasonable use
and enjoyment of the water, and each has the right to the
natural flow of the stream subject to such disturbance and
consequent inconvenience and annoyance as may result to him
from a reasonable use of the waters by others, ...The water
may be detained long enough to aeumulate a sufficient head
for manufacturing purposes before it is let down to the next
user. However, the person detaining water must act in a
reasonable manner and not let it off in unreasonable quantities.

"What constitutes a reasonable use is a question of fact having
regard to the, subject-matter and the use; the occasion and man-
ner of its application; its object and extent and necessity;
the nature and size of the stream;,.the kind of business to
which it is subservient; the importance and necessity of the
use claimed by one. arty and the extent of the injury caused
by it to the other." 22/

The Court further noted that "the use by any particular person must be

the same as the neighboring proprietor in like circumstances. We cannot







10 -

compare the uses of the farmer with those of the power producer."

The Court appears to have thrown some confusion into the applicable rules,

however, by adding the following statements which appear to conflict with the

above-quoted rules so far as the diversion of water from a watercourse is

concerned.

1. "Any substantial diversion of waters or the pollution of
waters of a stream gives rise to a cause of action in be-
half of all riparian owners affected thereby." The Court
also referred to 'the right of a riparian owner to make a
reasonable use of the waters, so long as he does not di-
vert or pollute it." ./

2. "Statements that a riparian owner has no right to use the
water to the prejudice of the proprietor below him and
that he cannot diminish the quantity which would descend
to the proprietor below and that he must so use the water
as not materially to affect the application of the water
below, or materially to diminish its quantity, are used
in cases in which the diversion or pollution of water is
being discussed.
"In the cases involving the right to the profitable
use of the waters of a stream, it seems to be almost uni-
versally held that such interruptions in the flow of the
stream as is necessary and unavoidable in the reasonable
and proper use of the mill privilege above cannot be the
subject of an action." ~J/

The keys to the significance of the distinction suggested by these state-

ments appear to lie in the intended meaning of the words "diversion" and

"profitable use," which is not clear. The latter term had reference at least

to the withholding of water by mill and power dams, the latter right of use

being the point in issue in the case. The Court clearly implied that a dif-

ferent rule might apply in cases of diversion or pollution of the watercourse

than with respect to other uses, although it did not indicate precisely what

it meant by "diversion," and was somewhat vague about how the applicable rules

might differ in such a case. V/ The Court possibly meant to limit the term

"diversion" to diversion of the entire course or a large part of the flow of

a stream. When construed along with other cases, however, the Court appears







- 11 -


' to suggest the possibility that a riparian owner may be liable to any lower

riparian owner who is substantially injured by any material diminution of the
flow of a watercourse resulting from any diversion of water therefrom, whether

by means of canals or pumps. But inc.ases involving the question of liability

to lower riparian owners for the detention ofwater, as with a dam, although

without any actual diversion of water from the watercourse (other than perhaps

to provide water power and immediately return it to the watercourse) the con-

trolling criterion is to determine whether such use is reasonable under all

the circumstances, even though there may be a material diminution or substan-

tial injury. UA/ The Court appears to have used the latter rather than the

former criterion in this case, concerning the question of liability for damage

to lower riparian lands from the operation of-a hydroelectric power dam. 3U/

At any rate, the Court indicated that "it Is impossible to lay down a,general

rule in all cases." 36/

In an earlier case, the, Court repeated both of the following two rules:

(1) A riparian owner is entitled-to the natural flow of a stream "undiminished

in quantity and unimpaired in quality, except as may be occasioned by the

reasonable use of the water by other like proprietors." (2) Riparian owners

"may use the water for any purpose for which it may be applied, but in so

doing they have no right to inflict material or substantial injury upon those

below them." 41/ It would seem confusing to apply both of these different rules

in the same case, unless any use of a stream (except perhaps for domestic: use)

which causes material inlurv to a lower riparian owner necessarily is an

unreasonable use.

Later cases which have cited the Dunlap case do not appear to add much

clarification regarding which, rule the Court would follow in cases of diversion.

The Dunlap case was cited in a recent case, in 1955, in support of the proposition







12 -
that one who is not a riparian owner does not have a right to have the stream

flow "with undiminished quantity and unimpaired quality." But there the Court

was considering the right to an unimpaired quality of water and this appears to

have been merely an incidental statement regarding "quantity." The case in-

volved the question of liability for polluting a stream from which irrigation

water was taken. 6/

In several cases, including the Dunlap case, the Court has made statements

substantially as follows: (1) "Every riparian owner has a property right to the

reasonable use of running water for manufacturing purposes as well as for do-

mestic and agricultural purposes conformable to the uses and needs of the com-

munity, qualified only by the requirement that it must be enjoyed with refer-

ence to the similar rights of other riparian owners," or (2) "A riparian pro-

prietor has the right of their flow past his land for ordinary domestic, manu-

facturing, and other lawful purposes, without injurious or prejudicial inter-

ference by an upper proprietor." 31/ While such general statements may tend

to refute any distinction between different types of uses, the question of

diverting water from a watercourse often was not involved, 2/ and such state-

ments generally have been accompanied in such cases by additional comments on

the extent of permissible use, often including a limitation against material

diminution of the flow or material damage to others.

In any event, whether a particular use is reasonable ordinarily is a
question of fact, to be determined by a jury (unless it is waived, or an injunc-

tion is sought and no injury is impanelled) p/ under proper guidance from the

Court as to the law applicable to the particular facts, except when there is

no evidence tending to show an unreasonable use. 11/ Damages may be recovered

in certain cases for any material diversion or material injury, as indicated

above, but the granting of an injunction is seldom a matter of right and often







13 -

may depend upon what the Court considers to be just and reasonable under the

circumstances.

STime of Use and Effect of Nonuse

The Court early decided that the time when a particular use of a water-

course was begun creates no priority or inferiority in relation to other water

uses. 56/ Moreover, the fact that one's rights of use have not yet been exer-

cised apparently has no effect upon the right to use the water later, 52/ ex-

cept in special cases such as when prescriptive rights are perfected. Failure

to make use of the water, however, may have an effect upon whether an injunction

against other uses of the watercourse will be granted, or upon the amount of

damages, if any, that are awarded.

In one case the Court said that riparian rights "are not dependent upon

the owner's actual use or appropriation of the flowing water." It held that

even though a riparian owner had made no practical use of the stream this would

not preclude his recovering permanentt damages for any loss in the value of his

land caused by the upstream use of the watercourse to furnish the water supply

of a town, thereby diminishing the flow, 52/ It is problematical whether the

Court would have held likewise if permanent damages had not been awarded, for

in such instances foreseeable future uses of the lower riparian land might be

considered, as will be discussed later.

In an earlier case the Court said that "every owner of land on a stream

necessarily and at all times is using water running through it--if in no other

manner, in the fertility it imparts to his land, and the increase in the value

of it...but the existence or nonexistence of that application at a particular

time measures the damages incurred by the wrongful act of another." i/
Instances Where Prior Use Mav Receive Preferential Treatment.- Although

the Court has indicated that a prior use ordinarily will not be given any







14 -
preference over later uses of the same watercourse, some exceptions have been

injected into the North Carolina law from time to time, primarily through

legislation. For example, the current version of early milldam legislation

provides that, when a milldam has been lawfully erected by using certain con-

demnation proceedings, no other person shall have the right to erect any dam
301/
that will overflow or pond water within 200 feet of such millsite or premises.

But this legislation, which probably relates only to public mills, requires

that a special condemnation proceeding be employed in order to gain its

protective advantages. ~g/

Some early general and special legislation granted or permitted the

granting of exclusive ferry boat franchises along navigable streams, by the

State, county courts, and/or county commissioners. J32/ Once obtained, no

similar ferry boat operation would be permissible within a certain distance

from such ferry. This also appears to have been generally true under the

common law prior to such legislation. 30/ Nothing would perhaps need to be

paid to other riparian owners for thereby preventing them from starting a

ferry, although a fee may have been exacted for the franchise. 308/ However,

while such franchises may have been exclusive, it would appear that many of

them could be revoked at will by the Legislature or other granting authority.

At any rate, this legislation related to ferries which served the public and

apparently applied only to navigable waters, over which the State has been

said to have extensive control for such purposes. 306/

Other legislation provides that grantees of lands covered by navigable

waters who improve such lands for the purpose of hauling fish nets and seines

thereon shall have prior right to use such lands and presumably the overlying

waters for such purposes. 39/ However, title to the beds of navigable waters

.ordinarily cannot be validly granted by the State.







15 -

It may also be noted that with respect to legislation providing condemna-

tion powers for the purpose of building hydroelectric power dams, the Court

has held that a prior right of condemnation of a particular damsite and asso-

ciated rights-of-way belongs to that company which first defines and marks

its route and adopts it as its permanent location. 31/

Definition of Riparian Land and Use of Water on Nonriparian Lands

The Court has not clearly determined precisely what constitutes riparian

land or the extent to which water from a watercourse may be lawfully used on

nonriparian land. In the recent case of Young v. City of Asheville et. al.,

in 1955, a farm irrigator had sued .the city and a water company for polluting

the watercourse from which his irrigation water was pumped. The Court denied

the farm irrigator, a farm tenant,, any right of recovery on the grounds that

(1) he had failed to allege that any of the rented land was riparian land and

(2) he had failed to; allege or present evidence that either he or his landlord

had obtained permission from any riparian landowner to use the watercourse. j/

The Court raised, but did not resolve, the further questions as to (1) whether

'a nonriparian owner could acquire any legal rights to use the watercourse by

obtaining permission from. a riparian owner, and (2) whether riparian rights

that accompany the ownership of riparian lands would extend or attach to an-'

other tract of land not in contact with the watercourse, which had been pur-

chased separately by the farm irrigator's landlord. 62/

The Court concluded that none of the leased land irrigated was riparian

land because a railroad track lay between it and the creek, and the boundary

called for in the landlord's deed was the track of the railroad rather than

the creek, and hence the land did not have actual contact with the watercourse.

The Court did not.discuss, and apparently there was no evidence regarding, how

the irrigation pipeline was made to cross the railroad, or whether the farm







16 -
irrigator or his landlord had obtained permission to do so. Nor was there

any discussion of (1) who owned the land between the railroad track and the

creek, (2) whether riparian rights may have been expressly reserved in the

adjoining land at the time that the railroad right-of-way was obtained, (3)

whether the railroad may have been abandoned and the title to the right-of-way

reverted to the original grantor and his successors under the terms of the

grant to the railroad, or, if not, (4) whether the fee title may have been

retained as an adjunct of the adjoining land. Such factors conceivably could

be material in determining whether riparian rights still attach to lands cut

off from a watercourse by a railroad or highway.

The Court had taken a similar position in an earlier case in regard to

the necessity of having land lie contiguous to a watercourse for riparian

rights to attach to it, although the case was decided upon other grounds. The

Court there said that: "In order that this right to have the water of a stream

flow with undiminished quantity or unimpaired quality may be successfully

asserted, the person who sets un a claim to its enjoyment must show that he

is a riparian proprietor or that in some way he has acquired riparian rights

in the stream." J/ A further limitation in some States has been that waters

in a watercourse ordinarily may not be lawfully used on land beyond the edge

of the watershed. 62/ This question, however, has not been decided nor

expressly considered by the North Carolina Court.

In a case in 1941, the Court held that the use of a watercourse for a
city's water supply would give a lower riparian owner a right of action for

damages suffered, on the ground that the water was being used on nonriparian

land, notwithstanding that the city may have owned riparian land at the point

of diversion. 6/ This appears to be about the clearest stand that has been

taken by the Court against the validity of nonriparian use, although a related






17 -

question was raided concerning whether use for municipal water supply purposes

should be considered a use properly connected with the ownership and use of

riparian land. 6g/ (Another type of use that has been questioned on such

grounds in some other States is the watering of train locomotives from a

stream while on riparian land owned by the railroad company. h_/ However, the

right to make such use, so long as there is no material diversion or damage to

a lower riparian owner, has been upheld by the North Carolina Court without

raising this question. 67/)'

In cases of pollution, the Court has.indicated that riparian ownership

was not required when one's land lay near enough to suffer damage from the

stench arising from the water (that is, air pollution). 2/ Riparian owner-

ship also is not required to bring an action against the pollution of a stream

which furnishes a public water supply, -by'virtue of certain legislation. The

Court also has permitted a right of action in cases in which nonriparian lands

have suffered irec damage, such as from flooding caused by dams.

Priorities or Preferences Based on Tyne of Use...

Domestic and perhaps certain other so-called "natural" uses of a water-

course may receive a -certain priority or preference over other types of use,

although this has not been definitely decided. More favorable rules may apply

to the detention of waters in a watercourse than to' the removal or diversion

of waters from it for various:purposes, such as irrigation or mining, although
this also'is none tod clear. On the other hand, the Court has held that use

for municipal or public water supply purposes was not a lawful riparian use

* of a watercourse (perhaps largely because it is 'usually a nonriparian use)

and compensation should be made for any damages to lower riparian owners.

The Court generally has not otherwise indicated that any one type of

use would be preferred over another, although from time to time it has given

preferential treatment to certain specific uses, such as milldams, drainage








enterprises, or municipal uses that were deemed necessary to the development

of the State's economy or otherwise highly desirable. Such preference fre-

quently has consisted of refusing to enjoin such uses, although requiring

compensation for any damages. g0/

Certain uses also have been given preferential treatment, in one way or

another, by legislation, although here too payment for any damages usually

has been required by such legislation or by the Court. l/ For example, legis-

lation enacted in 1955 provides that if the Governor declares that an emergency

exists in a particular locality, water may be diverted for the needs of "human

consumption, necessary sanitation, and public safety" as authorized by the

State Board of Water Commissioners,, although any damages are to be compen-

sated. 536/ Other examples include early milldam legislation and a statute

providing that mica and kaolin miners may discharge their mining wastes into

streams,

We shall now consider certain types of uses in more detail.

Domestic or Other Natural Uses

Some of the Court's statements in various cases suggest that an upper

owner might be permitted to take all that he reasonably needs for domestic

and perhaps certain other so-called "natural" uses, irrespective of its effect

upon the lower owner's domestic or other needs, 8/ while other statements

suggest that the rights and reasonable requirements of each riparian owner

along a watercourse would qualify those of the others. Ag/ At any rate, the

statements regarding domestic or natural uses appear to have been largely or

entirely incidental, rather than directly involved in the Court's determina-

tion of these cases. g/

If domestic or other natural uses are given preferential treatment, it

becomes important to ascertain the types of uses that would be so classified.


- 18 -






19 -

Such uses have been said to include drinking water and other household uses

and the watering of cattle. The Court has not clearly indicated whether, for

this purpose, "the watering of cattle" would include commercial livestock herds

or simply a few head of cattle kept for home use and consumption. The Court

in a case in 1941 specifically held that water supplied to the public by a

municipality does not qualify as ordinary domestic use, noting that a rea-

sonable domestic use may be made by a riparian owner without accountability

to others who may be injured thereby. While the Court sometimes has referred

to irrigation as a "natural use," it appears .doubtful whether it would be

accorded such preferential treatment, except perhaps the irrigation of a

garden for home use.

Irrigation

There do not appear to be any direct rulings by the Court regarding

rights to use natural watercourses for farm irrigation purposes, other than

its refusal to allow a farmer to recover damages for the pollution of his

irrigation water, in the case of Young v. City of Asheville, et. al., decided

Sin 1955. U/ It will be recalled that this involved an action by a farm

tenant to recover damages for the loss of vegetable crops because of the

pollution of the creek from which the water was taken to irrigate his vegetable

crops. The action was brought against the city and a water and sewer district,

who jointly maintained and used a sewer line which ran along the edge of the

creek, for negligently permitting the line to leak and contaminate the creek,

whereby the sewage was carried through the irrigation system and contaminated

the crops to such an extent that the State Commissioner of Agriculture ob-

tained an injunction which forbade their sale. They were consequently cut

up and disked into the land, with an alleged loss of $17,000. The lower

court awarded ,4,500 damages, but the judgment was reversed on appeal on the







- 20 -


grounds that the complainant had not shown that he was the tenant of a riparian

landowner or otherwise had. acquired any lawful right to take water from the

stream, as discussed earlier.

However, nothing was expressly said by the Court regarding whether

irrigation is a proper type of riparian use. The Court simply concluded that

the complainant hadn't adequately shown that he had any rights to take water

from the stream, and had brought the damage on himself by unlawfully taking

water from it. The Court added that consequently he had not shown that he or

his landlord had a right to have the waters of the stream "flow with undi-

minished quantity and unimpaired quality." This had direct reference only

to the question of quality, that is, pollution. Whether the Court meant to

imply that a riparian landowner may not materially diminish the quantity of

the flow by irrigation or otherwise is problematical.

The serious implication of the Young case for farm irrigators is obvious.

As a minimum precaution, they would do well to take care that' the land irri-

gated has actual contact with the watercourse to help avoid consequences

similar to those in this case. The Court also raised, but did not decide, two

further questions, as indicated earlier, regarding the definition of riparian

land and the validity of.nonriparian use.

The Court has madeincidental statements in at least 5 other cases to the

effect that irrigation may be a lawful use to some extent. In two cases, the

Court even stated that irrigation is a "natural" use and might possibly enjoy

a certain preference over some other types of uses, although this possibly had

refence only to irrigation of a garden or pasture for home use. In two

drainage cases the Court indicated that the lower owner along a stream, "must

abide the contingency of increase or diminution of the flow of water in the






21 -

channel of the,, stream, because the ,upper owner has the right to all the. ad-

vantages of drainage or irrigation, reasonably used, which the stream may give

him." 95/ (Emphasis added.), But in one early case irrigation and other

specified uses of a watercourse were said to be reasonable riparian uses so

long as this doesn't "materially damage those above or below.1. 96/ .
r In the case of Dunlap v. Carolina. Power and Light Co.,, discussed earlier,

which involved a complaint regarding the operation of a hydroelectric power

dam, the Court at one point noted that a riparian, owner may make a reasonable

use of a watercourse for "agricultural" and other specified purposes, having

regard for similar rights of other riparian owners. But at another point it

noted that "any substantial diversion of waters or the pollution.of waters

of a stream gives rise to a cause of action in behalf of all riparian owners

affected thereby. In some of the Western States-where the land is arid and

irrigation is essential, the rule against the diversion of the waters of a

stream has been modified." 97/

Administrative Permits for Irrigation. The North Carolina Legislature

enacted a statute in 1951 that provides:

"Any person, firm, or .corporation utilizipg waters of North Carolina
taken from the streams, rivers, creeks or lakes of the State in such
an amount as to, substantially reduce the,,volume- or flow thereof for
the purpose of irrigation shall before utilizing this resource in
this manner make application to the Director of the Department of
Conservation and Development for a permit for such use. Such person,
firm, or corporation shall file with the Department of Conservation
and Development a proposed irrigation plan and survey. The Director
of Conservation and Development is hereby authorizedd to investigate
such a plan as to safety and public interest and to approve plans and
specifications and issue permits." 102/

Since this is all that is stated with respect to such permits, it seems
4
questionable whether any substantial legal rights, as against.riparian owners

or others, are created in the applicant by the issuance of such a permit.

The statute apparently would not purport to have any substantial effect






- 22 -


upon riparian rights other than that certain administrative requirements shall

be met in exercising any such rights, Moreover, the statute is silent regard-

ing any penalties or enforcement procedures in the event it is not complied with.

No definite regulations or standards have been promulgated to date as

an aid to the administration of the statute. Each permit issued generally

is granted for an indefinite period of time but contains express reservations

to the effect that: (1) It will be revoked automatically if at any time it

interferes with any institutional or municipal water supply, and (2) it "will

be reviewed with the idea of issuing a new permit should others request the

use of water from this stream." These reservations are deemed by the Depart-

ment to be in conformity with the provision ih the statute that authorizes the

Director to investigate the applicant's proposed irrigation plan "as to safety

and public interest." 103/ While the safeguarding of municipal water supplies

is in line with other legislation favorable to the acquisition and protection

of such supplies the Court has indicated that the use of a watercourse for such

purpose ordinarily is an unlawful type of use unless the right to do so has

been validly acquired by purchase, condemnation, or prescription.

SThere have been very few instances in which a permit was issued for a lim-

ited time period. This was done because the permitted had indicated that he

intended to later acquire another source of supply or that he was a farm

tenant who anticipated a later change of circumstances. In such cases a

permit usually was issued for one year, subject to renewal upon further

investigation.

It would appear that priority in time of application or use has little,

if any, significance under the existing laws, although the statute is silent

about this. A permit has never been denied because of prior permits regarding







- 23 -


the same stream, Each permit relates to specific land to be irrigated as

specified in the farmer's application. It is limited to use by the applicant

and is regarded as not transferrable. 104/

While permits are not expressly made subject to riparian rights, they

are continually held in mind and guarded against, Such precaution consists

primarily in advising the permitted of the risks he is taking in cases where

several permits already have been granted to others downstream. But the -

Department has never refused to issue a permit, nor has it ever revoked or

limited a permit once it has been granted. Each permit includes a provision

regarding the maximum rate of diversion. This is based upon the estimated

capacity (at peak efficiency) of the irrigation equipment that the applicant

proposes to employ. Nothing is included, however, regarding the maintenance

of any minimum or other stream flow for the benefit cf those downstream.

The Department generally makes no special effort to determine whether

the applicant is a riparian landowner. Nearly all of the permits have been

issued to persons owning land in contact with the stream or other source

of water. A permit was not refused, however, in the small number of instances

where it was known that none of the land to be irrigated was in contact with

the stream. It is generally assumed in such cases that the user has or will

have, prior to the use, obtained a right-of-way from the riparian landowner for

Sthe passage of the water over or under the land of a riparian owner*

The applicable legislation contains no definition of a stream or other

water source to which it applies. The Department regards a natural channel

With a defined bed and banks as a stream even though it may flow only in

certain seasons, and a:small proportion of its permits have been issued with

respect to such "streams." 105/ Most of the permits issued relate to rela.

tively small streams, while very few relate 'to streams large enough to be

considered navigable by the Department.






- 24 -


No objection regarding the Department's procedures had been made to

it in connection with any of the permits (more than 760) which had been

issued by August 1, 1956. However, there being no express provisions for en-

forcing the statute, the Department makes no attempt to enforce compliance.

It is estimated that there are numerous farmers covered by it who have not

applied for a permit, and there may be others who are violating their per-

mits, One beneficial result of the legislation, however, has been the

assembly of information, albeit incomplete, regarding the location of

several farm irrigators (all who have been issued permits), their source

of supply, the size and type of equipment to be used, crops to be irrigated,etc.

The Department usually does not make a personal inspection of an

applicant's location, situation, and proposed use, but instead bases its

determination primarily upon the information supplied by the applicant, Lower

riparian owners normally are not contacted or given notice of the application,

nor is any hearing held thereon, as the statute does not require it.

The largest problem in processing applications is the number of incom-

plete applications which require additional correspondence. Aside from

such cases, a permit is normally issued within a week after the application

is received. The frequency of applications is seasonal in character. But

no serious log jam in processing them has been encountered, and there currently

is no back log. This work requires about one or two days a week of one

person's time in the Department, The Department makes no charge for pro-

cessing applications or issuing permits. The farm irrigator needs only to

supply certain information concerning his source of supply, the type and

size of his irrigation equipment, and the acreage and crops to be irrigated,







- 25 -


Frequently there are two or more permittees Located on the same stream

or a tributary thereof. About 44 permits have been issued to irrigate from

the Little River and its tributaries, mostly by pumping directly from the

stream. But the Department is not aware of any conflicts that have arisen as

yet regarding the use of the stream, Some milldams on the stream apparently

help to provide a stable and sufficient stream flow.

Each permit issued indicates the source of water but provides little or

nothing about the erection of any dam in the stream to form a pond or other

structure for facilitating its use for irrigation purposes# The Department

does not regard its authority to issue permits for irrigation to include any

control over the construction of dams or other structures. 106/

Recall that the applicable statute only requires that a permit be

obtained when the irrigation will "substantially" reduce the volume or flow

of any stream or lake. This would mean that it may be unnecessary to obtain

a permit to use some of the larger streams or lakes for irrigation, or where

there would otherwise not be a substantial reduction of the volume or flow.

The Department has developed no criteria for determining what constitutes

a "substantial" reduction, (For example, does this mean under normal cir-

cumstances, or is a permit to be required even if the irrigation has or

conceivably may cause such a reduction only during a severe drought, or

what?) It has never ruled it unnecessary for certain applicants to obtain

a permit on the ground that the volume or flow would not be substantially

reduced. The writer is informed, however, that it may so rule in some

A cases in the future.







- 26 -


It is doubtful whether ones application for a permit, or its issuance,

could be used as evidence tending to show that the stream flow would be,

or was being, substantially reduced by the irrigation,--for it seems likely

that, if there is much doubt about it, a permit often would be requested

to be on the safe side, and no application has ever been refused, 107/

Moreover, issuance or denial of a permit would not appear to have much

evidentiary value on the question of whether irrigation is a reasonable use

in a particular case. The application is apparently to be judged solely

or primarily by its effect on "safety and public interest." This has

been construed by the Department to include its effect upon the private

rights of other riparian owners. But a permit is generally always granted,

although subject to possible-modification if others later request a permit

to use the same stream.

Nothing was said by the Court in the recent case of Young v. City of

Asheville, et al., discussed earlier, as to whether the farm irrigator or his

landlord had applied for or obtained a permit from the Department of Con-

servation and Development to irrigate from the stream. 108/ This possibly

might have had some, although not much, evidentiary value on the question of

the legality of the use, 109/ It was not shown to what extent the diversion

of water from the stream had reduced its flow or volume. If it had been

substantial a permit would have been required to comply with the statute.

The writer is informed, however, that no such permit had been applied for.








4






- 27 -


The granting of a permit possibly might provide some measure of assurance

against later legal action by the State for any alleged interference with

public rights or interests in such waters, such as the protection of naviga-

tion and fish life, or pollution control measures. However, the Department

ordinarily does not take into account nor expressly provide for such con-

siderations in issuing its permits. It does not check with any other State

agencies, such as the State Stream Sanitation Committee or the Wildlife

Resources Commission, before issuing a permit, because it considers its

criteria for the issuance of a permit to a farm irrigator to be limited to

"safety" and "public interest," the latter term being interpretated as pro-

viding for the avoidance of infringement of the riparian rights of other

landowners. The statutes on pollution control do not expressly authorize

limitations on consumptive water use, nor apparently, have limitations

actually been imposed for such purposes. Other State agencies might request

the Department to deny or rescind a permit in certain cases. But the per-

mits issued expressly provide only for their modification or cancellation

when institutional or municipal water supplies are endangered or when other

applications to irrigate from the same stream are later received,

It seems doubtful whether the Legislature's broad declaration of policy

in 1955 regarding water resources would have any substantial effect upon the

administration of irrigation permits, except perhaps that it may provide

a somewhat more specific criteria for determining what is in the "public

interest."






- 28 -


Municipal or Public Water Supply

The right of a municipality, solely as a riparian landowner, to take

water from a nonnavigable watercourse to supply its inhabitants with water

for drinking or other purposes appears to have been generally denied in the

case of Pernell v. City of Henderson (1941). 120/ The right to make such

use also had been denied in some earlier cases, but without as much

explanation of the principles on which such use was held to be unlawful.

In the Pernell case, a lower riparian owner sued the city for damages

resulting from a lowering of the water level so as to make the operation of

his mill unprofitable. The city's diversion of the water was by means of a

dam and reservoir from which water was pumped through mains to the city and

distributed "to the inhabitants and users through a water system in the

usual way." The defendant city alleged that the complaint did not state a

cause of action, partly on the grounds "that it appears from the complaint

that the defendant is a municipality, distributing to its inhabitants for

domestic purposes the"water it diverts, which it has the right to do as a

riparian owner, without accountability to plaintiff, so long as its use for

such purpose is reasonable, even though it takes the entire flow."

The Court rejected this argument, stating that:

"It has been held with practical unanimity that a municipal
corporation, in its construction and operation of a water
supply system, by which it impounds the water of a private
stream and distributes such aater to its inhabitants, re-
ceiving compensation therefore, is not in the exercise of
the traditional rights of a riparian owner to make a reason-
able domestic use of the water without accountability to other
riparian owners who may be injured by its diversion or dimi-
nution. 'The use of the waters of a stream to supply the
inhabitants of a municipality with water for domestic purposes
is not a riparian rights... 'The weight of authority...holds
a municipal corporation civilly liable for diverting the
waters of a private watercourse for the purposes of a public
water supply, either with or without legislative authority'..,
Conceding that those who own the banks of a stream may, for
their own convenience, contrive and use facilities and devices






- 29 -


for distribution of water amongst themselves for such
purposes, withdrawing from the flow needful quantities,
that situation is not presented by the typical construction
and use of a water supply system by a municipality as in the
case at bar, which impounds the water in suitable reservoirs,
pipes it in large quantities into the city, and distributes
and sells it to consumers for any purpose whatever for which
it may be used. It could hardly be contended that these users
are riparian owners, or that they could invest the city, as
representative, or in the role of parents patriae, with rights
in that respect which they themselves did not have."

The Court's references to (1) the sale of water by the city (2) for any

purposes and (3) the use of reservoirs, were not otherwise stressed. It may

be doubted whether any of these factors were controlling in the Court's

decision in view of the further statement that:

"The precise question raised by defendant is dealt with by a
leading authority as follows: 'The rule giving an individual
the right to consume water for his domestic needs is founded
upon the needs of the single individual and the possible
effect which his use will have on the rights of others, and
cannot be expanded so as to render a collection of persons
numbering thousands, and perhaps hundreds of thousands,
organized into a political unit, a riparian owner, and give
this unit the right of the natural unit. The rule, therefore,
is firmly established that a municipal corporation can not,
as riparian owner, claim the right to supply the needs of
its inhabitants from the stream.'...This court is in accord
with the rule." 123

In some earlier cases, the Court also had held a city or town liable to

pay damages for using a watercourse, but without much discussion of the

principles involved. In a case in 1900, the Court treated the diversion of

water from a stream by a water company to supply a city as an unlawful use

although without indicating just why it was unlawful. 12/ The Court noted,

however, that the city was a quasi-public corporation and such use by it

would not be enjoined because of public interest and safety. But the Court

held that, on principles of equity, permanent damages should be awarded for

any damages suffered by the lower riparian owner in the operation of his mill
on account of a diminished stream flow. The Court said that this would be

the equivalent of acquiring a right to use the stream by condemnation.







- 30 -


Whether the city had condemnation powers for such purposes was not shown, but

the Court appeared to imply that it did not have such powers.

General legislation, as well as special charters and other special

legislation, enables several municipalities to provide for their own water

systems and also to distribute water to persons outside their corporate

limits. General legislation provides that:

"A city may own and maintain its own light and waterworks
system to furnish water for fire and other purposes, and
light to the city and its citizens and to any person, firm,
or corporation desiring the same outside the corporate
limits, where the service is available, but shall in no
case be liable for damages for a failure to furnish a
sufficient supply of either water or light, and the
governing body shall have power to acquire and hold
rights of way, water rights, and other property, within
and without the city limits." 130/

Legislation enacted in 1955 authorizes boards of county commissioners

to use surplus funds or funds not derived from taxes to extend water and

sewer lines from any municipality to outlying communities or locations to

promote the public health. This would include locations where large groups

of employees are living near factories and mills and "where said water and

sewerage is necessary to promote industrial purposes." 13/

This does not necessarily mean, however, that municipalities thereby

have any right to take water from any particular source. To acquire legal

rights to take water from a natural watercourse, they often may need to

purchase or condemn such rights as against all riparian landowners who may

have a cause of action. They might take a chance, however, on the possibility

that, in the event they are sued, they would not be enjoined if they pay

permanent damages. Moreover, some of them may acquire prescriptive rights

as against one or more riparian owners, through long-continued adverse use.

But acquiring a prescriptive right to make a certain rate (or amount) of






--31f- -


withdrawal, based on past adverse use, doesn't entitle a city to increase its
rate of withdrawal in the future.
In a case in 1950, involving a dispute between a paper company and the
sanitary district which supplied it with water, the Court noted that:

"It is a matter of common knowledge that large amounts of
wa te ffjniuste5r^ pwpoaerare at?&nusally -A l .
from municipally owned water plants. Ordinarily water
.. fQIr iruatsria. purposed. is provided by, the paoitLculrA z
industry requiring it or by special contract with the
municipality iwhpdat uch nijiipakit Mi an ,equate :: .
supply." 10/
The source of the water supplied was not in issue. The right of a

municipality to supply water for industrial or other commercial uses from

any particular source, whether by use of condemnation or otherwise, is none
too clear. It may depend largely upon whether this would be considered a

public purpose.
The writer is informed that some 26 sanitary districts were in existence

on August 1, 1956, and that many of them were supplying both water and sewer

services. The enabling legislation provides that such a district may be
formed and supervised by the State Board of Health, on the petition of 51
percent or more of the resident freeholders therein, and obtaining the
approval of the county commissioners of the county in which the major part
of such district lies and the consent of any municipalities or industrial

villages to be included. U The powers and functions of such districts
include the acquisition, construction, and operation of a water supply or
sewage treatment or disposal system, "as may be necessary for the preservation

and promotion of the public health and sanitary welfare within the district."
Each such district is given the power to tax to help meet its financial

obligations. L/






- 32 -


A statute enacted in 1955 enables the formation of an "Authority' by

any two or more counties, cities, towns, incorporated villages, sanitary
districts, or other political subdivisions or public corporations of the
State, for the purpose of acquiring, constructing, improving, extending,
or operating water and/or sewer systems. 15/ The writer is informed that
no such authority had been fortb d by August 10, 1956, although one was

being planned in the vicinity of Greensboro.
It is conjectural whether water may be legally supplied and distributed
for any and all purposes by such Authority, but there are no express
limitations against this. It would seem that the primary function intended

for such an Authority is the supply and distribution of water (and sewerage
services) for purposes that would otherwise be supplied by its member
municipalities, if any. Each such Authority "shall be deemed to be a
public instrumentality exercising public and essential governmental functions
to provide for the public health and welfare." Nevertheless, it is provided
that: "Any riparian owner alleging an injury as a result of any act of an
Authority...may maintain an action for relief..."
As an Authority apparently would have no power to tax, its funds would
be derived primarily from fees charged for services, from the issuance of
revenue bonds, or from any property transferred to the Authority by
participating political subdivisions.

1- ---


ii !?I







- 33 -


Another 1955 statute permits any two or more municipalities to jointly

acquire, construct, finance, operate, and improve water supply facilities. 11/

It may also be noted that companies organized for public water supply

purposes are given certain condemnation powers. A4/

The use of water obtained from municipalities, water authorities,

sanitary districts, and water companies may or may not be limited to a

particular location or purpose by such agency, organization, or company, and

may in some cases be allowed to be transferred to others without limitation.

However, particularly if water taken from a natural watercourse is used on

nonriparian lands, compensation might be recovered by lower riparian land-

owners who may be damaged thereby.

Other Consumptive Uses

Except for a few cases dealing with the use of water for mining purposes,

most of the cases dealing with industrial water uses have concerned the

detention or obstruction of water with dams rather than consumptive water uses.

In some of these cases, water was no doubt diverted through canals or other

conduit to run a mill or power plant, or for other manufacturing purposes,

but the question of such diversion was seldom in issue. At any rate, in

most such cases the water appears to have been returned directly to the

stream, after being so used, and at a point on the stream before it left the

riparian owner's land.

.4 ,..


(
*


I






-34-

Detention or Obstruction of Water With Dams

Most of the cases dealing with dams have involved milldams or hydro-

electric power dams.

Damage to property or use of property below.- As noted earlier, the

Court in Dunlap v. Carolina Power and Light Co. indicated that a somewhat

different rule might apply in the case of detention of water in a watercourse

with a dam than in the case of diversion of water from it. This case involved

the question of liability for damages to a lower riparian owner from the opera-

tion of a hydroelectric power dam. The Court.said that:

"The mere erection of a dam and the use of the water in
driving wheels or providing power must necessarily derange
its steady, constant, and natural flow...but the water can
be retained for the purpose of the upper mill if it is not
diverted from the stream and the storing of water in a
pond or reservoir for power purposes is not actionable if
it is retained no longer than is reasonably necessary.
The upper proprietor may hold back the water a reasonable
time...and let it down in such manner as is necessary for
the use of his manufacturing enterprises, if the enterprise
is adapted to the character of the stream and the use is
reasonable..."

The Court noted however that "the person detaining water must act in a

reasonable manner and not let it off in unreasonable quantities." 12/ He

may not "give the riparian proprietors below a great deal more than the usual

quantity of water during a part of the year, or at stated periods, and little

or none during the remainder of the year or during intervals of unreasonable

length." 15_1 The Court noted that what constitutes a reasonable use ordi-

narily is a question of fact under all the circumstances. But the defendant's

use was held to be reasonable since there was no evidence of any unreasonable

use in the operation of the dam. (The intermittent opening and closing of

flood gates on the dam occurred daily.) Nevertheless, the Court concluded

that, while there was no unreasonable or negligent operation of the dam, the

defendant company would be liable to the defendant, who was the lower ripar-
ian owner, for direct damages to his riparian land caused by the wearing away







- 35 -


of the banks of the stream by reason of its particular location at the juncture

of the stream with another stream. The Court said that otherwise this might

amount to a taking of such property without compensation, which it would not

allow even though the defendant was making a reasonable use of the stream*

Damage to property or use of property above.- The Court has held that for

the flooding of another's land above a dam the landowner would be entitled to

damages, generally without regard to whether the construction and operation of

the dam were unreasonable. 159/ (Moreover, the fact that such flooding occurs

only during flood periods is no defense, but would serve only to reduce the

amount of damage.) But in a case where there was no actual flooding, although

S the water was backed up so near to upper farmland that its drainage was impeded,

the Court indicated that Lability would depend upon whether such interference

with the stream flow by the lower dam were found to be unreasonable under the

circumstances. 160/

Significance of ownership of bed and banks.- Before a riparian owner may

lawfully erect a dam he generally must have acquired ownership .of the bed and

both banks of the watercourse upon which the dam is to be placed, or have ob-

tained a valid easement to do so from others who own such lands. Such owner-

ship or easement may be obtained by condemnation for particular purposes, such

as for certain milldams, power dams, or dams for public water supply purposes.

The Court has indicated that the original grant from the Government of riparian

land along a stream ordinarily carried title to such point if the deed simply

called for the stream as the boundary. 168/. But in some instances title to a

part of the bed of the watercourse may have been obtained by someone other than

the adjoining landowners.

The Court in an early case held that if a person owned land only along

one side of a stream, he could fish on his side to the thread of the stream. 15/






- 36 -


But in a case in which two opposite riparian owners each held title to the

bed of a stream to its thread, the Court, after extensive litigation, con-

cluded that one of them could not lawfully build a dam out to the center of

the stream without the other's consent and draw off a half of the flow through

canals or flumes for hydroelectric power purposes, even though the waters thus

removed from the stream were returned to the stream before leaving his land.

The Court concluded that each opposite riparian owner "is entitled to the

whole bulk of the stream undivided and indivisible." 169/

It is problematical whether the holding or acquiring of ownership of the

stream bed provides the owner of the dam with any special privileges as against

other riparian owners, above or below, who have in no way consented to the

construction of the dam.

Legislation.- There is little general State legislation relating directly

to the construction and operation of dams. There is some legislation, however,

relating to dams and other obstructions in navigable or floatable watercourses,

as well as legislation granting condemnation or related powers for constructing

certain milldams, power dams, and dams for public water supply and certain

other purposes, which will be discussed later. In addition, legislation

enacted in 1953 declares it to be a misdemeanor to "fell any tree or put any
AL
obstruction in any natural or artificial drainage ravine, ditch or other water

outlet which serves to remove water from farm or agricultural land," and fail

to remove such obstruction within 7 days. 174/ The effect of this 1953 act

upon rights to build dams in natural watercourses is problematical.

Fishing

The Court in an early case said that a riparian owner who owned land along

both banks of a nonnavigable stream had the exclusive right to fish in the

stream at any point on his land, but he must use such rights so as not to

prevent the reasonable use of the stream by upper riparian owners for fishing.1l7






- 37 -


The extent, if any, to which public fishing rights may attach to nonnavigable

streams has not been clearly decided, but an early case tended to refute such

rights.

There is considerable statutory regulation of the right of fishing in

North Carolina, as well as such protective legislation as requirements con-

cerning fish passageways in dams and protection from the discharge of pollution

and other deleterious substances into the waters they inhabit. Other legis-

lation makes it a misdemeanor to interfere with, obstruct, pollute, or diminish

the natural flow of water into or through any State or licensed fish hatchery,

and extends the State administrative authority over State-owned lakes to the

waters of all streams running into them, to facilitate the regulation of

fishing therein. 183/

Other Nonconsumptive Uses

P There may be other nonconsumptive uses of a watercourse, such as

swimming. The Court, however, has seldom expressly indicated the relevant

legal principles. Such uses by a riparian owner of a stream on or along his

S land would have the benefit of considerable legal protection if the Court

adheres to the principle that no material diminution of t'e stream so as to

cause substantial injury to lower riparian owners is permissible, by pumping

or otherwise removing water from it (except perhaps for domestic or other

natural purposes). Such uses might enjoy somewhat less legal protection

against the detention of water in a watercourse with a dam.






- 38 -


Navigable Waters

Classification,- The criteria employed by the Court for determining

whether a watercourse is navigable or nonnavigable have changed over the years.

The Court early repudiated the old English test that only that portion of a

watercourse in which there was the ebb and flow of the tide would be con-

sidered navigable, 187/

The Court in the case of State v. Clean (in 1859) classified watercourses

into 3 general classes, as follows:

(1) All coastal bays and inlets and all other waters, including sounds,

rivers, and creeks, which can be navigated by sea vessels, are navigable,

(2) All other watercourses which are wide and deep enough to be in fact

navigable by "boats, flats, and rafts," although "technically styled

unnavigable,"

(3) All other watercourses which are incapable of inland navigation. 189/
The Court in some other cases has added still another class of water-
courses. Those streams which, although perhaps incapable of navigation by

boats in ordinary commerce"and travel, are nevertheless capable of floating

logs, have been termed floatablee streams." 190/ Such a stream has been

called a water highway of the third class, with streams navigable by small

-boats, etc., constituting the second class of water highways. 191/

The determination of the criteria of navigability has sometimes been

influenced by, and often closely associated with, the Court's interpretation

of the State's entry laws relating to lands covered by waters. 192/ Land

covered by navigable water has been held by the Court ordinarily not to be

the subject of entry and grant by the State. The Court appears to have at

first adopted the test that only such waters as are navigable for seagoing

vessels shall be considered to be navigable. 193/ But it later came around

to adopting the test of "whether in its ordinary state a body of water has







39 -
capacity and suitability for the usual purpose of navigation by vessels or

boats such as are employed in the ordinary course of water commerce, trade,

and travel.... Briefly stated, the rule with us is that all watercourses

are regarded as navigable in law that are navigable in fact." 195/

By following this latter test, the Court in 1954 held to be nonnavigable

,' a marsh along a coastal inlet that ordinarily was not capable of navigation

by small boats drawing two feet of water, In a 1901 case the Court, by

following the same general test, had held a branch of a sound to be navigable

which was only about two or three feet deep but which was traveled over by

boats by the public. The Court held that a riparian owner had no right to

obstruct such navigation. It noted that the public has the right to

navigate for all.purposes of pleasure or profit all watercourses, tidal or

inland, that are in their natural condition ordinarily capable of such use,

198/ The Court added, however, that:
"It would seem that there must be some element of a public highway,
and that its navigation must be in some degree required by the
necessity or convenience of the public. It should not depend
entirely upon the personal whim of an individual, We are not
prepared to say that a landowner would be liable to criminal
prosecution because he happened to put a water gate across a
creek up which otherwise an idle hunter might be able to pole a
canoe, nor are we dealing with any right except that of simple
navigation. It appears from the evidence that the public were
in a habit of passing through North Sand Cove before it was
stopped up, and that by its use the distance from one part of the
sound to another was shortened, and navigation rendered safer in
S- rough weather. These conditions constitute ample evidence of a
navigable stream." 199/

This suggests that the actual use made of a stream may have considerable

bearing upon the question of its navigability. But the Court in some other

I cases has said that "If water is navigable for pleasure boating it must be

regarded as navigable water though no craft hasever been put upon it for

purposes of trade or agriculture. The purpose of navigation is not the

Subject of inquiry but the fact of the capacity of the water for use in

navigation," 20/






40 -
Certain grants of submerged land by the State may have been valid at

the time they were granted because the overlying waters would not have been

classed as navigable under the definition of navigability adhered to by the

Court at the time of the grant, even though such waters might now be

classified as navigable by reason of later changes made in the Court's

definition, 203/ or possibly by reason of changes in the physical circum-

stances. Nevertheless, in a Federal case dealing with North Carolina

law the Court concluded that, even if title to the bed of a stream now

navigable had been validly obtained, the ownership thereof would be subject

to the public right of navigation, fishing and hunting on the overlying

waters, 204/

Riparian Rights as Between Riparian Owners and as Against Navigation

and Other Public Rights,--The Court has in some cases indicated that

navigation and certain other public rights are superior to any rights

incident to the ownership of riparian lands along, or of the beds of,

navigable watercourses, but without describing what such riparian rights

might involve. 205/

In an early case, the Court indicated that as to watercourses navigable

by "boats, flats and rafts" riparian landowners "may exercise and enjoy (an)

easement, for the purpose of catching fish, or in any other manner, not

incompatible with the right which the public have in the stream, for water -

communication." 206/ (Emphasis added.) In another case (in 1903) "certain

riparian rights" were said to pass with grants of lands bordering on

navigable waters and to include, among other things, the right "to make a

reasonable use of the water as it flows past," 201/ This tends to imply

that riparian rights to withdraw and divert water from navigable streams

may be the same as for nonnavigable streams, subject only to the protec-

tion of navigation and certain other public rights, although this was not a

direct ruling on this question, as the case was simply a suit to recover






41 -

possession of certain lands covered by water.

However, the Court in a 1924 case quoted from an earlier case (in 1904)

to the effect that the control of navigable waters belongs to the public,

"is not appurtenant to ownership of the shore," and that: "Navigable waters

are free. They cannot be sold or monopolized. They can belong to no one

but the public and are reserved forfree and unrestricted use by the public

for all time. Whatever monopoly may obtain on land, the waters are

unbridled yet." 28/ This was also quoted in a recent Federal case as
I having a bearing upon the interpretation of the North Carolina statutes

relating to grants of submerged lands by the State, upon the validity of

certain grants, and upon fishing and hunting rights on navigable

waters. 209/

In the case in 1904, the only question in.issue was the right of a

riparian owner of both sides of the stream to exclude public access thereto

for navigation and fishing by placing obstructions (posts) in it. The

Court held that there was no such right. Rights to divert and use such

waters were not involved. The principal questions in issue in the 1924

case included the respective rights of the .complainant water and power

company and the defendant city, as against each other, to construct a dam

(an obstruction) in the navigable river and:to divert and use the waters

thereby impounded for public water supply purposes. Whether the Court

would have employed the same language if there had been no dam involved is

problematical. In any event, the dispute was between two quasi-public

corporations whose rights to use navigable or other waters seem to have

been largely dependent upon certain legislative enactments. 210/ Whether

similar restrictions might be placed upon the use of navigable waters

(particularly via withdrawals through pumps or canals) by private riparian

owners is problematical*

The Court in the 1924 case held that the complainant had lost any rights







42 -
it may have had as against the city (which had obtained special legislative

authority to dam the stream and construct its own water supply system) by,

among other things, failing (1) to build a permanent dam to replace its wooden

dam as authorized by special legislation and (2) to obtain a renewal of a 10-

year contract to supply water to the defendant city. The Court added:

"There is nothing in writing to show plaintiff's right to
this navigable stream. There is no legislative right given
by the state or United States. It is public property. No
condemnation by plaintiff is alleged, if under the charter
it had the power. From the entire record, the plaintiff
has used the water from a navigable stream, belonging to the
sovereign, and sold it to the defendant city and its inhabi-
tants and others, without any right in law so far as the
record shows. Plaintiff seems to be a 'squatter' on
sovereign property, and the 'take' is not exclusive, nor
adverse, but permitted with no complaint by proper authori-
ties. It used the public navigable stream and sold the public
water without paying for it, now it complains that the legis-
lative branch of the government had repealed, in 1923, the act
of 1919, giving it a right to dam the stream, which plaintiff
never did. To what extent the legislature could give away a
sovereign right, we are not now called upon to pass on. We'do
say that plaintiff should have no cause to complain in obtaining
free public water all these years, transporting and selling it." 211/

The Court emphasized public and State ownership of the navigable stream.

Yet, the reference to condemnation might be a recognition that there were

riparian rights in the stream which would need to be condemned in order to use

the stream for public water supply purposes. 212/ These two positions would

not be entirely inconsistent,, although they would be more compatible if the

State were regarded not as the owner but as the guardian or trustee of navi-

gable waters, held in trust for navigation and other public purposes. The

Court in some other cases has indicated that public rights of floatage and

fishing are not derived from the State, although they may be regulated by

it. /

Except for the case in 1924, the Court has seldom expressly considered the

question of rights to make domestic, irrigation, municipal, industrial or other

consumptive uses of water in navigable streams, as against the public or






-43 -
riparian owners, in contrast with the use of nonnavigable streams for such

purposes. 214/ It would seem that as a minimum limitation, such uses may not

be permitted to substantially impair navigation by lowering the water level.

The extent to which public rights of fishing and perhaps swimming may be pro-

tected against such uses is not so clear.

Dams and Other Obstructions. Certain legislation relating to dame has

been discussed earlier.- There apparently is no express general statutory re-

quirement that permission be obtained from the State by private citizens before

S building a damiin a navigable or any other stream. It may be doubted whether

such permission could be validly granted by the State if navigation, particularly

interstate navigation and foreign commerce were thereby materially obstructed.

S But in one case the Court said that some slight obstruction of navigation by a

railroad bridge built with special statutory permission would not be enjoined.2E/

The Court in the 1924 case discussed above used language suggesting that

it may be necessary to obtain permission from the State to erect a dam in a

navigable stream, 2L / although this dealt with the respective rights of two

quasi-public corporations to build such a dam under special legislative acts.
In a recent case (in 1952) the Court said that any material obstruction of a

navigable watercourse that is not authorized by the proper governmental authority

ordinarily constitutes a public nuisance. 218/

- Legislation dating from 1787 provides that boards of county commissioners

may appoint commissioners to lay off the'rivers and creeks therein so as to:
"allow three-fourths for the owners of the streams for erecting
slopes, dams and stands; and one-fourth part. including the deepest part,
they shall leave open for the passage of fish...and if mills are built
across such stream, and slopes may be necessary, the commissioners shall
lay off such slopes, and determine the length of time they shall be
kept open..." They also "shall have.power to lay off gates, with slopes
attached thereto, upon any mill-dam built across such stream, of such
dimensions and construction as shall be sufficient for the convenient
passage of floating logs and other timber in cases where it may be
deemed necessary...Upon the confirmation of the report made by the
commissioners, and notice thereof given to the owner or keeper of said
mill, it shall be his duty forthwith to construct, and thereafter to


___11____________11__ ~~-------~-.







- 44 -


keep and maintain, at his expense such gate and slope, for
the use of persons floating logs and other timber..., so long
as said dam shall be kept up or until otherwise ordered by the
board of county commissioners."

Failure of any mill owner to comply with such requirements constitutes a

misdemeanor. But it is problematical whether one who erects a dam other tna

for a mill is subject to this legislation.

The county commissioners apparently need not consult with the Wildlife

Resources Commission, the State Board of Conservation and Development, or any

other State agency in determining the type or size of passageway to be left in

such dams for the passage of fish or logs. It seems somewhat doubtful whether

the county commissioners may be the sole judge of whether such a dam should be

permitted which may obstruct navigation by boats or logs, 220/ although their

determination may be given considerable weight, In an early case the Court said

that where a milling company had begun to erect a dam in a navigable stream as

permitted by the county board of commissioners, in the absence of fraud an in-

junction would not be granted to prevent such construction 222/ But it con-

cluded that: "The extent to which the riparian owner may go in the erection of

dams, etc., to apply the use of the water to the propulsion of machinery, and

the extent to which the state may authorize obstructions, present interesting

questions, the consideration of which is not necessary for the determination of

the case before us 224/

Legislation also permits boards of county commissioners to appoint commis-

sioners to open and clear rivers and streams in the county.

The Court in a case in 1892 said with respect to prior legislation that:

"It would seem that these sections were passed entirely with reference to float-

able streams,~ becausewithout condemnation, the commissioners would have no right

to enter upon and clean out the beds of streams which were not natural highways."

221/







45 -

Existing legislation also makes it a misdemeanor for anyone to "obstruct

S the free passage of boats along any river or creeks by felling trees, or by any

other means whatever."

Floatable Streams.-The Court has held that streams which will naturally

and ordinarily float logs, although they may not be capable of other navigation,

are floatablee streams." It has said that there is a public easement in such

streams for such purposes which is superior to any rights of riparian owners.226/

In one case it suggested that the right of floatage in floatable streams might

constitute a riparian right as well as a public right. 232/ To be classed as

floatable, a stream's flow need only rise high and long enough to make ccmner-

cial log-floatage profitable. W_/ (The Court indicated that a different test

of navigability might apply in determining the question of the validity of grants

to submerged lands.) The Court has held that one who floated logs in a stream

that was not naturally a floatable stream was liable for any damage to a lower

riparian owner's dam and fish trap, irrespective of any negligence in handling

the logs. 23k/

Rights and Regulation of Navigation.-The Court in a 1927 case said:

"One's right to navigate a public river is a public
'* right to which he is entitled only in common with the
whole public...the enjoyment by one necessarily inter-
S feres to some extent, for the time being, with its
absolutely free and unimpeded use by others and each must exer-
cise his right with a proper regard for the rights of others."


The public right of navigation has been subjected to a variety of govern-

mental regulations--State, Federal. and local. But it would appear that it may

be superior to all other rights of use, public or private, in navigable streams.

It has been held to be superior to public fishing rights, as being more impor-

tant to the "public weal." 27/

Fishing Rights.-The Court has said that there is a public right of fishing

in all navigable waters, which may be regulated by the State. 2M/ The right


~~I~_







46 -
would appear to extend generally to waters ordinarily navigable by commercial

or pleasure fishing boats. Whether it extends to streams floatable for logs

but ordinarily not navigable by fishing boats is problematical. 241/

The Court has indicated in some cases that generally the ownership of

riparian land provides no exclusive or preferred rights to fish in the adjoining

waters. 242/ In a case in 1943 the Court held, however, that a riparian owner

along a navigable stream had suffered damages to his established fishing

business of a "sufficiently special and personal nature" to maintain an action

for damages. where the migration of fish was interfered with by the unlawful

pollution of waters downstream. 244/

Artificial and Developed Watercourses

Artificial watercourses may include, among other things, artificially

constructed canals or stream channels, or ponds or lakes which have been arti-

ficially constructed with the aid of dams, excavations, or other means.

Frequently there may be a mixture of natural and artificially developed waters 2

in an otherwise natural watercourse. The term "artificially developed waters"

is herein meant to include waters which would not have been found to exist

naturally in a particular location at a particular time. This ordinarily would

include same portion of the waters detained in a pond or lake above a dam in a

watercourse.
<
We shall first consider rights in artificial watercourses such as canals

or artificially constructed stream channels. In a case in 1902 the Court indi-

cated that there would be no liability in cases where water is diverted from

a stream on one's land into artificial ditches or canals located solely on such

land if the water is returned to the natural stream before it leaves such

land, 3/ But the Court in an 1882 case stated that while a riparian owner

"may use the water while it runs on his land he cannot unreasonably detain

it. ...and must return it to its ordinary channel when it leaves his estate." 320/







47 -

(Emphasis added.) In an l884 case the Court indicated that one could be held

liable where another's lands were flooded by reason of the diversion of part of

a watercourse into a canal with inadequate carrying capacity. 21/ Moreover, it

would appear that the use made of the water otherwise must be lawful to avoid

liability, The withdrawal of water (particularly for nondomestic purposes),

from such a canal or pond into which it may lead, so as to materially diminish

the flow of the natural stream, may be especially questionable. The Court has

indicated that compensation would need to be paid for diverting part of the

water of a watercourse through a canal into another watershed, to enhance the

drainage of upper frmlands. if this materially reduced the flow of water reaching

a lower riparian owner's mill, causing material damage. 322/

The Court apparently has not considered the extent or nature of the right,

if any, to pump or otherwise divert stream waters into an offstream pond during

a period of high stream flow. if it causes no damage to others, for later use

during periods of low flow. A, somewhat stricter rule might apply to diversion

rather than simply to the detention of water with a dam. (Recall the possible

distinction between diversion and detention, discussed earlier.)

The Court in a number of cases has held or said that there would be

liability for diverting either the entire or a part of the flow of a watercourse

and thereby casting the water upon or flooding others' lands to their damages,

apparently whether such lands are riparian or nonriparian, or lie within or

without the watershed. 24/

Rights in and to use a pond or lake created by damming a watercourse often

may be complicated by condemnation or related proceedings by reservations, re-

strictions, or special grants included in deeds of conveyance or by contractual

arrangements. In one case the defendant had erected a milldam in a creek and

acquired the right to pond water back upon the lands of the complainant, through

special condemnation proceedings under the existing milldam legislation. 0/


__*I~~







48 -
The Court said that the easement thus acquired included all rights incident to

the principal right to detain water to run a mill, but it held that this did not

carry with it the right to fish or bathe in the pond created on another's land,

and the defendant was enjoined from doing so.

In another case. the owner of a dam across a river, which created an

artificial lake, sold riparian lots along the lake with permission to boat, fish,

and swim in it, and to use it for "domestic purposes." The dam went out in a

storm. The Court said that he had no liability to repair, maintain, or restore

the dam in the absence of any express agreement to do so. 33/

In any event, rights in and to use such a pond or lake, whether by the

owner of the dam or by others, may be limited or otherwise affected by the

rights of other riparian owners along the natural watercourse, as for example,

by the amount of water which may need to be let down to lower owners.

An artificially constructed body of water, particularly if it connects with

a natural watercourse, sometimes might eventually become subject to the same

general rules that are applicable to the natural watercourse, under the

doctrines of dedication and estoppel, or prescriptive rights and :. reciprocal

easements.

In connection with rights regarding artificial and developed watercourses,

it may be noted that under the Watershed Protection and Flood Prevention Act of

1954, as amended in 1956, technical and financial assistance may be provided

by the Secretary of Agriculture, under certain conditions, to such local

agencies and organizations as are willing and authorized under State law to

assume responsibility for initiating, carrying out, maintaining, and sharing

certain costs of works of improvement to help conserve, develop, utilize, and

dispose of water for a variety of purposes. 3l4/ The writer is informed that

the Department had, ty August 20, 1956, approved four applications for prepara-

tion of a work plan for projects in North Carolina. The sponsoring local







- 49 -


agencies or organizations included soil conservation districts, drainage dis-

tricts, county boards of commissioners, and cities. 36/ Such local agencies

or organizations must acquire, or provide assurance that landowners or water

users have acquired such water rights, pursuant to State law, as may be needed

in the installation and operation of the works of improvement. Rights to use

watercourses or other waters developed in such watershed projects would seem to

0 depend in part upon factors discussed above.

Groundwaters

Percolating Groundwaters

The Court apparently has not expressly defined percolating groundwaters,

but they would seem, in general, to constitute such waters as seep or percolate

through the ground and are not shown to be confined in any definite underground

watercourse.

SThe first and only substantial clarification of the North Carolina law

relating to the withdrawal and use of percolating groundwaters occurred in 1924,

in the case of Rouse v. City of Kinston. ~3/ This case involved a suit for

damages against the city for sinking artesian wells on land adjoining the

complainant's plantation and removing water to supply the city in such quanti-

ties as to greatly reduce the flow from the complainant's artesian wells, there-

by lowering the value of his plantation for farming, residential, and other

purposes. The jury awarded damages of $8,000, which was affirmed on appeal.

The Court adopted the so-called American rule of reasonable use with

respect to the use of artesian and probably other percolating groundwaters, and

approved the following charge to the jury made by the lower court:

"This rule does not prevent the private use by any land-
owner of percolating waters subjacent to his soil in
manufacturing, agriculture, irrigation, or otherwise...
although by such use the underground percolating waters
of his neighbor may be thus interfered with or diverted;
but it does prevent the withdrawal of underground waters
for distribution or sale, for uses not connected with


-----___11_1~-------__ 11~







- 50 -


any beneficial ownership or enjoyment of the land from
which they are taken, if...the owner of adjacent lands
is interfered with in his right to the reasonable use
of subsurface water upon his own land, or if his wells,
springs or streams are thereby materially diminished in
flow or his land rendered less valuable for agriculture,
pasturage. or for legitimate uses..." 37/

This rule is somewhat similar to the rule of reasonable use applied to

surface watercourses, discussed earlier, but differs materially in that with

respect to the use of such groundwaters on one's overlying land (as contrasted

with use on riparian land along a stream) all the water reasonably needed for

beneficial purposes on such land may be lawfully withdrawn thereon, apparently

with little or no regard to its effect on the groundwater supplies under ad-

joining lands.

The so-called "correlative rights" rule was discussed by the Court, but it

was not adopted and was repudiated by implication. However, as the city's

withdrawal and use might have been considered unlawful under either rule, it is

conceivable that the Court may yet adopt the correlative rights rule, particular-

ly in some later case dealing with waters in an artesian basin. In describing

this rule, the Court quoted from a Utah case as follows:

"The owner of land is entitled only to a reasonable use
of the percolating waters under his land for purposes
connected with the beneficial ownership or enjoyment of
his own land; and, for the use of such water by an owner
to be a 'reasonable use,' especially in an artesian dis-
trict, it should be limited first to his just proportion
according to his surface area, and, second, he should not
be entitled even to this quantity to the injury of others
similarly situated, unless it is reasonably necessary for
the beneficial purposes to which he devoted the water; and
the owner has no right to injure his neighbors by an un-
reasonable diversion of the water for the purpose of sale
or carriage to distant lands." 338/

(It may be noted that the Legislature in 1945 enacted an Oil and Gas

Conservation Act,, to go into effect when commercial quantities are discovered in

the State, on the declaration of the Governor with the advice of the Council of

the State. 3g/ This regulatory legislation purports to protect the "Coequal or






51 -

correlative rights of owners of crude oil or natural gas in a common source of

supply.")

In any event, the Court expressly, rejected the so-called "English":or

"common law" rule, which was said ordinarily to permit unlimited withdrawal and

use of groundwaters on overlying or any other lands.
r In this case the city, instead of purchasing or using condemnation to

obtain needed water rights from the complainant, purchased a half.acre tract

of land adjoining the complainant's plantation, where an excellent source of

wholesome artesian water had been discovered, and sunk wells (with no costs of

exploration) and thus withdrew water from the artesian basin. 4i/ The Court

affirmed the lower court's finding that the award of $8,000 damages should con-

stitute permanent damages, thereby giving the city an easement to continue such

use, akin to condemnation, as will be discussed later.

The loss in value of the plantation, by reason of the decreased flow of

artesian wells, for which damages were recovered, included the loss of good

quality and healthful water for household and other domestic purposes (making.

it difficult to get tenants) as well as for agricultural, uses. The alleged

lowering of agricultural productivity resulted from the loss of water for dairy.

cattle, and possibly from the loss of irrigation, or possibly even the lowering

of the water table so as to impair the growth of crops raised. But the

Court was not clear about this. 3 *,

Definite Underground Streams

The Court apparently has not dealt directly with questions regarding

waters in definite underground streams. In other States where such questions

have arisen the appellate courts have usually held or said that such streams

are governed by the same rules of law that apply to surface watercourses, but

that all groundwaters will be presumed to be percolating waters rather

than in an underground stream, unless some evidence to the contrary is presen-
ted to the Court. 350/







- 52 -


Legislation

There is little State legislation dealing specifically with groundwaters.

A statute dating from 1923 provides that when the use of any well is discon-

tinued it is unlawful to leave it open and exposed. It "shall be carefully

and securely filled." Violation constitutes a misdemeanor, and fine or im- i

prisonment may result. This statute does not apply, however, to "wells on

farms that are protected by curbing or board walls." 35/ Other legislation

deals with the pollution of groundwaters.

Springs
Springs of water have been involved or mentioned in some cases 18/o but

the Court does not appear to have decided what legal principles should be ap-

plied to their use. It would seem. however, that if a spring is shown to

emanate from a definite underground stream and form a natural watercourse, the

same general rules of law might apply to its use, particularly its consumptive

use, whether it is tapped before, at, or after the point where it emerges

naturally from the earth. 39/ But if a spring emanates from percolating

groundwaters, such as at the foot of a hill, the legal principles applicable

to percolating groundwaters might apply with respect to any liability for tap-

ping and removing the waters which supply the spring rather than removing water

at the point where the spring emerges or along the stream which leads from it,

Surface Waters
Distinctions between a natural watercourse and so-called "surface waters"

have been considered previously. The Court does not appear to have expressly

considered the question of rights to use surface waters, such as by collecting

them in a pond and thereby preventing their natural descent onto or past lower

lands, Rather extensive rights to do so possibly, though not necessarily, may

be implied from the Court's statements in some cases.






53 -

Interrelationships Among Natural Water Sources

We shall now consider the extent to which rights in a particular source

of water may extend to other natural sources of water which may be physically

related to it.

In the case discussed earlier with respect to groundwaters. the Court

approved the lower court's ruling to the effect that the American rule of

reasonable use applies to artesian and other percolating groundwaters. and

that this rule does not permit the withdrawal of such waters for distribution

or sale for uses not connected with any beneficial ownership or enjoyment of

the land from which they are taken, if it thereby follows that the owner of

adjacent lands has his "wells, springs or streams" thereby materially diminished

in flow. 4j/ There apparently was no evidence in the case that any springs

or streams were diminished in flow by reason of the withdrawal of underground

artesian waters. But the Court thus implied that there might be liability

for such interference, perhaps with respect to surface as well as underground

streams. 452/ This rule might apply to cutting off or reducing the flow of a

spring which arises on adjoining or perhaps more distant lands. But the extent

to which each riparian owner along a surface watercourse or overlying a definite

underground stream might be able to sue for such diminution of its flow may be

more problematical.

In any event, if the rule of reasonable use is adhered to there apparently

would ordinarily be no liability for such interference if the percolating

waters withdrawn are used solely for beneficial uses on one's overlying lands

(although criteria for determining such lands have not been clearly defined).

Transfer or Assignment of Water Rights

In a recent case, which was discussed earlier, the Court questioned, but

did not decide, whether a riparian owner may validly convey or assign his ri-






54 -
parian rights in a natural watercourse to a nonriparian landowner. Yj4/ Other

cases tend to support the proposition that riparian rights may not be so trans-

ferred or assigned,

If nonriparian use is not otherwise lawful, the rental or even outright

purchase or condemnation of riparian land, or of a right of access across it

to a watercourse, perhaps may not create any right to use water from the

watercourse on nonriparian lands as against other riparian owners who have

not assented to it, although it might create a valid contractual right against

the grantor of such access rights, or perhaps estop him from objecting,

Rights to use natural watercourses or groundwaters, as a rule, would

appear to be limited to use on particular parcels of land. This may not be

so, however, in cases where municipalities or other public or quasi-public

agencies or institutions have validly acquired water rights through condemnation

or otherwise.

The Court has suggested that water rights pass with the conveyance of

title to land riparian to a stream, or lands overlying groundwaters, unless

it is otherwise provided in the deed or some other controlling legal instrument.

In certain cases involving grants by the State of wharfage rights in navigable

waters, the Court has said that "riparian rights are property incident to land

abutting on navigable water..."4!/ The Court has held that such grants could

not be validly transferred or assigned to nonriparian landowners. In a recent

case, where the wharfage statute was not involved, the Court said that "the

right of access to navigable waters over adjacent lands held under private

ownership is vested exclusively in the owner of such lands, and can be exer-

cised by another only by virtue of a grant or license by such owner." This,

however, appears to relate principally to the Court's assertion that the

public "right of navigation gives no license to go and come through and over

the riparian owner's land without 'let or hindrance'." The Court held that a







55 -

riparian landowner along a navigable river who subdivided his property "had the
right to grant to purchasers of such lots access over its waterfrontage land to

the waters of the river." 47/

Other Contractual Arrangements

Rights -to use particular sources of water in some instances may depend

largely upon or be affected by various kinds of voluntary contractual arrange-

ments. This may be particularly true with respect to artificial watercourses

or developed waters, discussed earlier. 460/

The Court in one case stated that riparian landowners along a stream'

might contract together to have one point of withdrawal and system of distri-

bution serve their collective needs for domestic purposes, 461/ But the

effectiveness of contractual arrangements to use water on nonriparian lands

is in doubt as noted earlier.

fOther types of contractual agreements which have been dealt with by the

Court include contracts with respect to water supply furnished by or to munici-

palities. 62/ In no reported decision does the Court appear to have dealt with
such contractual arrangements as (1) a contract between two or more riparian

owners along a watercourse to rotate their use of the available water in

periods of shortage or otherwise, or (2) a contract between two or more riparian

owners relative to the detention and/or diversion and offstream storage of a

stream's water during periods of high flow for later use during periods of low

flow.
Pollution

In pollution cases the Court has frequently said that no material impair-

ment of the quality of the water in a watercourse would be permitted, to the

injury of lower owners. 391/ The Court sometimes has added, however, that no

individual would be entitled to an injunction against such pollution without

showing some actual or impending damage.






56 -

Legislative Protection of Public Drinking Water Supplies

Legislation prohibits the "discharge (of) sewage above the intake into

any drain, brook. creek, or river from which a public drinking-water supply

is taken,, unless the same shall have been passed through some well-known

system of sewage purification approved by the State Board of Health; and the

continued flow and discharge of such sewage may be enjoined upon application

of any person." 404/ (Emphasis added.)

In a case in 1935 the Court held that the last clause of this statute

authorized the courts to enjoin such discharge of sewage. irrespective of

the fact that no injury to the complainant or anyone else had actually

occurred. "It is the threat or potentiality of menace rather than the accom-

plished fact thereof that warrants" such injunction. 405/ The Court held.

however, that the issuance of the injunction was not mandatory under this

statute, and refused to grant an injunction where the complainant had shown

no immediate menace to his health, and the defendant city had shown that it

was financially unable, at the time, to construct a proper sewage disposal

plant, and that if it was prevented from discharging the untreated sewage of

its 40,000 inhabitants into the stream a most serious menace would be created.

But it ruled that the complainant could bring another action if defendant

should fail to comply with the statute within a. reasonable time, noting that

the city manifestly must eventually comply with the statute, which pronounces

the public policy of the State, "against which temporizing and unreasonable

delay will not avail." 4O6







57 -

Agencies and Organizations Having Pollution Control Powers and Related Duties

State Board of Health.- This Board has various duties regarding the study

and control of pollution of sources of public water supplies (particularly for

drinking and domestic purposes). Ah2/ These functions include advising cities, ,

towns, State institutions, or corporations about their water supply and sewage

disposal systems, and inspections of watersheds of streams from which "any

waterworks" derives its supply.

State Stream Sanitation Committee.- This Committee was established within

the State Board of Health in 1945 to study pollution problems. In 1951 the

Committee was provided with certain powers and duties to regulate the pollution

of any surface or grourdwaters, public or private, natural or artificial, in

the State, A32/ and to establish methods designed to protect water quality for

various purposes, including (1) the development and adoption of classifications

$ and standards applicable-to each classification, and (2) the survey and iden-

tification of all waters for which separate classifications are desired. The

classifications or standards shall take into account "an existing or contempla-

ted best usage" of such waters, and the "need for balancing conflicting con-

sideration as to usage and other variable factors."

As of August 1, 1956, the Committee had established such classifications

and standards with respect to the.waters of threeriver basins in the State,

and hopes to complete this process with respect to all watersheds in the next

few years. In completing this process for each watershed, the Committee has

prepared four public documents, in the following order (1) a river basin

pollution survey report including technical data, (2) a comprehensive pollution

abatement plan, (3) a report of the proceedings at the public hearing regarding

proposed classifications, and (4) the assignment of classifications and stan-

dards to the various segments of the basin.


_ ~1C






58 -
Once such classifications and standards have been validly adopted for any

watershed, it shall be unlawful for any person to make any new outlet into its

waters, or to increase the quantity of sewage and wastes discharged from an

existing outlet more than some minimum amount,or to adversely change the nature

of the wastes, without obtaining a permit from the Committee. The Committee

also may issue orders to prevent or reduce existing pollution, although the

polluter may request that such an order not be issued for specified reasons,

including financial inability and impracticability of compliance. At any rate,

a reasonable time for voluntary compliance must be allowed.

If the Committee is advised by the Board of Health that an applicant's

request is to dispose of wastes into water used as a public water supply suf-

ficiently close to the source of such supply as to have an adverse effect

thereon, no permit shall be issued without the approval of the Board. L/

It appears doubtful whether the Committee, in addition to regulating the

discharge of polluting substances, has the authority to prohibit or limit the

withdrawal of water from any stream or other source on the grounds that pollu-

tion control may thereby be made more difficult and costly, or otherwise.

So far, the Committee has not issued any orders to require a mtuicipality,

industry, or anyone else to abate its pollution. However, through voluntary

participation and written agreement it is claimed that it has secured definite

plans for the abatement of around 97% of the existing pollution in the Yadkin

River Basin within a reasonable time.

Other agencies or organizations having certain pollution control powers,

or which are authorized to provide sewage disposal services, include sanitary

districts, water and sewer authorities, city, county, or district health de-

partments, and municipal and other corporations.






- 59 -


Tax Inducements

Special exemptions, deductions, or allowances are permitted for State

'income tax, real and personal property tax, and corporate franchise tax pur-

poses, with respect to industrial waste treatment and water pollution abatement

plants and equipment. Such preferential treatment may not be obtained, however,

unless the State Stream Sanitation Committee certifies that such plants and

equipment have met its requirements. /

Legal Remedies
Legal remedies against the infringement of a person's water rights by

another person may include an action for money damages and/or.an injunction

to prevent further infringement.

Money Damages

In general, the Court has imposed liability for damages in cases of material

diminution of stream flow or other uses considered to be unreasonable, direct

:invasion of another's property, negligent conduct, or certain other types of

unlawful use. 6

In certain cases of direct invasion of another's property, such as by

damming a watercourse so as to pond water back upon upper lands, the Court has

held that a recovery of at least nominal damages may be had even though no

actual damage is shown. 64/ But the extent to which a legal action for at

least nominal damages may otherwise be successfully prosecuted when no actual

damage has occurred or loss has been sustained, even though another may other-

wise be making an unlawful use of water, is not clear.

The Court in some cases involving diversion or removal of water from a

natural watercourse has indicated that there would be liability only for a

substantial diminution of the flow to the material injury of a lower riparian

landowner, and has sometimes added "in some legitimate use he is making of the






60 -
water." / In another case the Court held that money damages could be re-

covered for a substantial diminution of the flow even though the lower owner

was making no practical use of the water, A.g/ But in this case permanent

damages were awarded, in which event future damages might be considered, as

will be discussed later. It is problematical whether the same result would

have been reached if permanent damages were not awarded. The Court in another

case perhaps implied that some lower riparian owner might be entitled to re-

cover damages for nonriparian use of stream waters by a city even though he has

suffered no material damage. k4/ But the extent to which nonriparian use is

legally permissible has not yet been definitely settled.

In.iunction

In some cases the Court has ruled that it was proper to refuse to enjoin

a certain use of a watercourse, solely or partly because the complainant was

making no use of the water and was not otherwise being damaged. 72g/ Even where

there has been actual damage, the granting of an injunction to prevent an un-

lawful use of water has seldom been considered a matter of absolute right, but

is to a varying degree, depending on the circumstances, a question for the

discretion of the Court. A7/ In one case it said that: "There must be such

an injury as from its nature is not susceptible of being adequately compensated

by damages at law, or such as, from its continuance or permanent mischief, must

occasion a constantly recurring grievance which cannot otherwise be prevented

but by an injunction." (l7 In any event, the Court has said that "each case to

481/
some extent must be made to depend upon its own special facts and circumstances."

Certain unlawful acts, particularly if in violation of some specific

statutory prohibition, have, been held to constitute a public rather than a

private nuisance. Pollution and obstruction of navigable streams or the passage

of fish are examples of acts which have been so classified under particular






61 -

circumstances. A82/ The Court has indicated that a private individual ordinar-

ily may not obtain an injunction to prevent such action (the remedy being by

indictment or other prosecution by.the State) unless he suffers some special

and irreparable damage. La/

Few cases have arisen in which the Court decreed a division of the waters

in a watercourse between an upper and lower riparian landowner along it.

Generally the upper owner was either entirely enjoined from making a certain

use of the watercourse, or held liable for damages, or entirely exonerated of

any liability. JLa/ This was partly because the Court in a number of the

cases involving diversion of waters from a watercourse indicated that the upper

owner would be liable for any material diminution of the flow if the complaining

lower riparian owner suffered any substantial injury. Moreover, (1) there were

few cases in which the upper and lower owners involved were both making con-
sumptive uses of the water, (2) in some cases permanent damages were awarded,

and (3) in other cases the Court did not find it necessary to make any definite

ruling on their respective rights of use. In one case, however, the Court

indicated that water detained by a power dam would have to be let down in

reasonable quantities and at reasonable intervals for the use of the lower

riparian owners. 85/

Balancing of Interests. Equities. or Conveniences

In a number of North Carolina cases where an injunction was requested,

the Court has applied some version of the principle of balancing the interests,

equities, or conveniences, although usually this has been coupled with the pro-

position that (1) private right must yield to public convenience, upon adequate

compensation, or, that (2) an injunction will be denied where the damages are

highly speculative rather than a reality. 48_6/

In one early case the Court held it proper to refuse to enjoin the







62 -
erection of a new milldam and pond which was claimed to threaten the health of

the complainant's family who resided nearby. It noted that the proposed mill

would be a public mill open to all customers and a convenience to the neigh-

borhood, and that existing legislation provided that a local court could order

the building of a mill on the land of another, except where it would "create

a nuisance to the neighborhood." 88/ The Court added that the situation

would be different for a solely private mill, particularly where a question

of health was raised, and that a different conclusion might be reached if the

mill were a small one and injury to a large estate were threatened.

In a case in 1882, apparently uncomplicated by any legislation, the Court

held it erroneous to continue an injunction (although with leave to later seek

one and/or damages) to prevent the building of canals to divert water from a

stream for goldmining purposes, on the complaint of a lower riparian owner who

claimed the diversion would damage his mills and impair his potential use of

the water for goldmining and other purposes. The Court noted that:

"It would seem that while on the one hand the plaintiffs would
sustain great injury if the current of the creek and its trib-
utaries are diverted from the proper channel, and their needed
supply cut off; so on the other hand would the defendant be
subjected to much loss from the moneys he has expended and
in the impaired value of the land if frustrated in the only
feasible way of mining upon it. In the one case, there may
be adequate compensation in damages obtained, in the other,
there may be none or a very imperfect redress." A21/

The Colurt also emphasized that an injunction would impair the development of

a new and valuable industry.

In another case, in 1914, the Court held it proper to refuse a prelim-

inary injunction to enjoin the construction of a multimillion dollar power

dam at the request of an upper riparian owner who claimed that his mill and

lands would be damaged by flooding. The Court noted that, while a larger






63 -

enterprise has no right to destroy a smaller one, private right must yield

to public convenience when compensated for so doing, unless the private in-

jury should greatly exceed the benefits. The Court indicated, however, that

the height of the dam might be required to be lowered, if warranted by the

facts. Whether the defendant company had condemnation powers was not

shown. -22/

Such balancing procedures also appear to be involved to some extent in

the statement of the reasonable use rule by the Court in Dunlap v. Carolina

Power and Light Co., discussed earlier, where it said that among factors to

be considered in a particular case in determining whether a particular use is

reasonable are "the importance and necessity of the use claimed by one party

and the extent of the injury caused by it to the other," k2L/ If these were

to become criteria frequently employed by the courts or juries, it would ap-

parently mean that some element of balancing the interests, equities, or

conveniences might be involved in a number of cases involving the use of

natural watercourses, possibly to the extent of refusing to award any damages

as well as refusing an injunction on such grounds. 95/

No cases were found in which the Court, in. the process of balancing the

interests, equities, or conveniences, permitted certain uses of a source of

water to be made on condition that certain actions be taken (or refrained

from) by the defendant for the benefit of the complainant. A8/



.- -- .


-






- 64 -


Liability Without Damage, and Vice Versa

Under legislation providing that the pollution of a stream which furnishes
a public drinking water supply may be enjoined on the application of "any

person," the Court has indicated that such pollution may be so enjoined even

though there is no actual damage or immediate threat of damage, and has ruled

that it is constitutional preventive legislation. 9/ On the other hand, the

Court in some cases has held or said that there would be no liability for any

damages resulting from a certain lawful use of a watercourse. The Court so

held, for example, with respect to a lower riparian owner's loss of partial

protection from flooding by the closing of a canal upstream which had been

diverting part of the stream waters. 00/

Liability Even Though Lawful Use

The Court in one case held the owner of a hydroelectric power dam liable

to compensate a lower riparian landowner for certain direct damages to his land

(washing away the banks of the stream) even though the maintenance and operation

of the dam was held to be lawful and without negligence. The Court noted that

the land had a peculiar location on the stream not common to other lower

riparian owners, and said that the owner of the dam could not "take the

property of the plaintiff without just compensation, even though it is a

result of a reasonable use of its own property." 501/

Joint Liability

The Court has held that where independent wrongful acts of two or more
persons unite in producing a single indivisible injury, even though there is
no concert of action between them, they may all be held jointly liable.

An interesting question may arise as to who has caused the pollution in
case there is a relatively harmless discharge of sewage into a stream and

someone else increases the degree of pollution by withdrawing part of the
water. The Court has held that the owner of a dam would be jointly liable with






- 65 -


an upstream polluter for causing the pollution to line the banks of a stream

along the complainant's intervening riparian lands, if he acted .with knowledge

or had reason to believe that his dam would combine with the independent acts

of the upstream polluter to pause such damage. 0/

Declaratory Judgment.

Legislation dating from 1931 provides that:
"Any person interested under a deed, will, written contract...
or whose rights, status or other legal relations are affected
by.a statute, municipal ordinance, contract or franchise, may
have determined any question of construction or validity...
and obtain a declaration of rights, status or other legal
-relations thereunder. A contract may be construed either
Before or after there has been a breach thereof... 5Q2/

The Court has held that while this legislation "enables courts to, take

cognizance of disputes at an earlier stage than that ordinarily permitted,"

such an action may be instituted "only in a case in which there is an actual

S or real existing controversy between parties having adverse interests in the
matter in dispute." 5Q6/ The Court has held that "a mere difference of

opinion...without any practicable bearing on any contemplated action," did

not constitute such a controversy. But it noted, that "in marginal cases the

rule may be difficult to apply." 50/ The Court has said further that the Act:

"...does not license litigants to fish in judicial ponds for
legal advice ." -0/

Such an action apparently may not be used to determine'one's riparian

rights generally, prior to making a particular use of a watercourse. But if

the existence of a real controversy can be satisfactorily established, such an
action might be brought by a riparian or other landowner, among other purposes,

to determine rights under a contract, or the legal effect of the legislation

which requires a permit to irrigate from a stream or lake under certain

circumstances. However, the legality of such use may later change if, the

relevant circumstances change appreciably, particularly if the Court rules

that the legislation has no substantial effect on riparian rights.






- 66 -


Condemnation and Related Proceedings

Legislation enables condemnation to be used for a variety of purposes,

including the following:

Municipal or Public Water Supplies and Sewer Systems.- Legislation grants

condemnation powers to: "All municipalities operating water systems and sewer

systems, and all water companies operating under charter from the State or

license from municipalities which may maintain public water supplies..." as

well as water and sewer authorities and sanitary districts, for the purpose

of acquiring land and water rights. But a water or sewer authority must first

obtain the approval of the State Board of Water Commissioners to exercise such

powers.

"The Board shall issue certificates only to projects which
it finds to be consistent with the maximum beneficial use
of the water resources in the State and shall give paramount
consideration to the State-wide effect of the proposed
project rather than its purely local or regional effect." 54/

The Board shall specifically consider certain factors, including:

(1) The.necessity of the proposed project; (2) whether it
will promote and increase the storage and conservation of
water; (3) the extent of the probable detriment to the
present and potential beneficial use of water in the
affected watershed and resulting damages to present
beneficial users; (4) the feasibility and comparative
cost of alternative sources of supply; and (5) the extent
of the probable detriment from the use of the alternative
sources to present and potential beneficial use of water
on the affected watershed(s).

Any final decision is expressly subject to judicial review.

The extent to which such condemnation powers may be validly employed
to obtain water to supply industrial, irrigation, and other commercial needs,

as well as for drinking water, fire-fighting and other public purposes, is

problematical. This question may depend upon the language of the applicable
legislation as well as upon constitutional limitations on the of
legislation as well as upon constitutional limitations on the use of






- 67 -


, condemnation. For example, certain legislation provides that -endeination

may be used for pu blic water supply purposes, but without indicating what such

purposes may include. 5/

S:Hydroelectric Power Dams and Related Purposes.- Electric power companies
have condemnation powers to take lands needed for "their reservoirs, ponds,

dams, works..or powerhouses, with the right to divert the water from such

S ponds or reservoirs and conduct the same...to the point of use,..at (their)

powerhouses,. returning. said water to'its proper channel after-Fbeing' used." 520/

This legislation at one time prevented the use of such coprdemnation to

interfere with any mill or power plant in operation or process :of construction,

or the taking of "water powers developed or undeveloped." But such "water

powers" or mills, with certain exceptions, now may thus be condemned by a power

company by showing that such taking "will be greatly more to the benefit of the

public" than their continued existence or ownership. The court in one case

indicated.that the exception inthe original legislation was intended to

prevent the acquisition of all of the State's available:water power sites

by one or more of the larger concerns.

Milldams and Related Purposes.- Legislation dating from the colonial

period provides that a riparian owner who has land on only one side of a

stream may bring an action akin to condemnation to acquire up to one acre on

the opposite side if needed for the erection of a "water mill." 2/ The

proposed mill may not be built,, however, if it will overflow another mill,

take away houses, gardens, etc,, of the condemnee, or "create a nuisance in

the neighborhood." The condemnor ordinarily "shall, within one year, begin

to build such watermill, and shall finish the same within three years; and

thereafter keep it up for the use and ease of its customers...otherwise, the

said land shall return to the person from whom it was taken, or to such other

person as shall have his right...": W/. Other legislation provides that any






-68 -


riparian owner desiring to build a milldam which would flood another's land,

or to raise a milldam already built, or to convey water across the lands of

another, may bring an action akin to condemnation to acquire, within limita-

tions, any lands needed therefore. Three disinterested persons shall determine

the permanent damages to lands taken or overflowed. 28/ Persons taking
advantage of these statutory provisions are given certain measures of

protection against other mills being built close to them on the same stream.

Such condemnation powers probably are only for the benefit of public, not

private, mills. 526/ Public mills are defined by statute as those which grind

for a toll, and must serve any and all customers to the extent that water is

available therefore (except that the miller may first satisfy his own needs).

Maximum limitations are imposed on tolls charged.

Other legislation (which states that anyone who may be injured by the

"erection of any gristmill, or mill for other useful purposes," may bring

an action) enables the awarding of annual damages. 29/ However, if annual

damages are awarded in an amount less than $20, this precludes any further

right of action for a period of five years, if the mill is kept up during

that time, unless the damages are increased by raising the water or other-

wise. .20/

Mining.- Proceedings similar to those for acquiring opposite lands in
order to build a mill on a stream may be employed to convey water either to
or from one's mine over another's land. 02/ (The petitioner's request may

be refused "for good cause.") It is questionable, however, whether the water

may be lawfully used on nonriparian lands, particularly if it results in

substantial damage to riparian owners below.






- 69 -


Related Proceedings

Emergency Water Supply.- Legislation enacted in 1955 provides that upon

the request of any county, city, or town, the State Board of Water Commissioners

may investigate and determine that an emergency exists and ascertain the source

of relief water (after holding a public hearing thereon). On the Board's

recommendation, the Governor may declare the existence of a water emergency

within a particular area of the State, and the Board may authorize any county,

city, or town in such emergency area to divert water, at least from "a stream

or body of water," sufficient to take care of the needs of "human consumption,

necessary sanitation and public safety." Anyone making such an emergency

diversion or laying temporary water lines "shall be liable to all persons

suffering any loss or damage" on account of it (though presumably only to

persons whose legal rights have been infringed), and shall be required to post

bond for this purpose.

While this is somewhat comparable to the exercise of condemnation powers,

the emergency diversion may be done prior to any payment of compensation

therefore. Those who suffer any damage possibly may have to bring legal action

in order to recover money compensation. Such emergency diversions may continue

only during the emergency period and shall not be permitted in a subsequent

year unless reasonable plans have been made, and acted upon with due diligence,

to eliminate future emergencies by adequately enlarging one's own water supply.

Furthermore, no such county, city, or town would be eligible to make such an

emergency diversion if it had not reasonably complied with any recommendations

made by the Board for restricting and conserving the use of water, or for

increasing its water supply, on being notified by the Board that a potential

* water shortage or emergency was foreseen.


1 111__~__1__~__~--1-- -----~---~-----11






- 70 -


The Board may "make such reasonable rules and regulations governing the

conservation and use of diverted waters within the emergency area as shall be

necessary for the health and safety" of the residents. It is conjectural

whether this means that such regulations may govern the use of all "diverted

waters," including diversias for irrigation and other purposes, or whether any

forced reduction in such uses would have to be compensated for.

Permanent Damages.- The awarding of permanent damages has been considered

by the Court to be akin to condemnation. Under either procedure (permanent

damages or condemnation) the one who has been making or is seeking to make an

otherwise unlawful use of water may be granted the right to continue and/or

begin such use, on paying for such permanent damages as may be awarded in the
proceedings. 7/

An ordinary legal action may be converted into an action for permanent

damages by the consent of both or all parties in interest. 538/ In addition,

the Court has enunciated the principle that where the injuries are by reason

of structures or conditions permanent in their nature, and the defendant

possesses condemnation powers to do the acts complained of, or if the public

interest therein requires their continuance, either the complainant or

defendant may demand that permanent damages be awarded. i.2/ One example

of such an injury is that resulting from the detaining, diversion or ponding

back of water through the construction of a permanent-type concrete dam. 5L2/

The Court in a case in 1940 held that where permanent damages had been

awarded for damages to a lower riparian owner's ferry by the construction of a

power dam, which obstructed the flow, this ordinarily would preclude any later

recovery for alleged damages to the same lower riparian owner's land. The

Court held, however, that this did not preclude a later lawsuit for any later





71 -
damages to.his lands and crops caused by the negligent operation of the power

dam during flood times, j44/

While municipalities, water authorities, and sanitary districts have con-

demnation powers to acquire. necessary water rights, such powers do not neces-

sarily need to be exercised, nor compensation paid, to have their benefit.

For, having such powers, when such agencies or organizations are sued and found

liable for the infringement of another's water rights, they often may demand

that permanent damages be awarded and the organization granted an easement to

continue such use, akin to condemnation, 9/ The burden of action may therefore

be thrown upon those who may suffer damage. 550/ But the total costs may be less

certain, and sometimes higher, than if the agency or organization purchases or

condemns necessary water rights at the outset,

Determination of Amount of Compensation.

General legislation with respect to condemnation provides simply for

"compensation which ought justly to be made," 553/

In cases where the property is merely burdened or damaged rather than

taken entirely, the Court has indicated that,the measure of compensation

is the difference between.the fair market value of one's property before and

after such "taking." g5/ This same general rule has been applied in cases

where permanent damages have been assessed. 556/

In a case in 1941, involving condemnation of a right to divert a stream's

entire flow with a dam and conduit for hydroelectric purposes and return it to

,the natural channel below the condemnee's lower riparian lands, as well as a

right of way across such lands, the Court said:

"The just compensation rule merely requires that the owner of
the property taken shall be paid for what is taken from him. 'It
deals with persons, not with tracts of land. Ad the question is,
What has the owner lost? not, What kas the taker gained?'...the
highest and most profitable use for which the property is
adaptable and needed or likely to be needed in the reasonably
near future is to be considered, not as a measure of value but
to the full extent that such prospect or demand for such use
affected the market value at the time respondents were deprived
of their riparian rights." 557/


1~--- I- -------~ll---ra--~--------------~






72 -
In a case in 1924, where permanent damages were awarded for damage to a

plantation caused by the withdrawal of artesian groundwaters from adjoining

property by a city, the Court held that the difference in the market value of

the plantation before and after the sinking of the city's wells would be the

measurement of damages and that a wide range of evidence bearing on this

question could properly be considered, suggesting that "the value of land is

largely a matter of opinion derived from a variety of circumstances." Matters

held to have been properly considered included the effect of the loss of good

artesian water on the health of the tenants or,other persons living on the

plantation, the loss of the use of the plantation for dairy purposes, the loss

of the possibility of irrigation of crops (it was not clear that irrigation

actually had been practiced, except for a home garden), and possibly even the

reduction of crop productivity owing to a lowered water table. The Court held

that evidence as to possible future uses and developments of the plantation,

based on the continued flow and use of the artesian waters thereunder, could

properly be considered. The city contended that good or better water could be

obtained by the farm owner from the city's artesian wells, at a price, and hence

he suffered no damage. Evidence of this nature was admitted and apparently con-

sidered by the jury, with the Court's approval. 559/ But an award of $8,000 per-

manent damages on account of the loss in market value of the 581-acre plantation

was upheld. 558/

The failure of a landowner to make some practical use of a watercourse

flowing on or by his land, or of groundwaters below, may tend to reduce the

amount of compensation he obtains in condemnation proceedings or an action for

permanent damages, as the loss of future prospective uses of the property may

be discounted to some extent. But the Court in 1924 held that the failure of a

riparian landowner to make any practical use of the stream which flowed through

his farm would not preclude his recovering permanent damages for any loss in the

value of his land caused by the upstream use of the watercourse to furnish the






73 -
S water supply of a town, which diminished the flow. An award of $100 damages

was approved. 560/ In another case, in 1926, $4,000 permanent damageS were

awarded where the diversion of water from a watercourse by a town required

the shutting down of a lower riparian owner's mill and consequent loss of

value to his land. 561/

The Court does not appear to have expressly considered what effect should

be given to the possibility that the exercise of one's riparian rights might

become more restricted as more of the lower riparian owners seek to make use

of the watercourse. This might be particularly true as to rights of consump-

tive use if the rule of "reasonable use under all the circumstances" were

applied, which is problematical.

Use of Property or Water Rights Acquired by Condemnation, etc.

In one case the Court said that the right to maintain a public mill and

dam, and to pond water back upon another's land, acquired under the statutory

proceedings, is founded on the right of condemnation and carries with it all

rights incident to the principal right, but such incidental rights could not

be unduly expanded by implication to include the right to fish or bathe in the

millpond over the upper owner's land, as such rights had "no connection with

the right to use the water for purposes of power." 567/

Prescriptive Rights

The Court has indicated that while a certain use of water may be unlaw-

ful, "prescriptive rights" may be acquired to.continue a particular use of a

particular source of water at a particular location, upon making adverse and

continuous use of the water in such manner for a period of 20 years. 569/

It has indicated that prescriptive rights may arise from erecting a dam and

ponding back water upon another's land for 20 years, on the theory that if the

upper owner failed to bring suit during such period it will be presumed that

She has granted the right to continue the dam. 570/






74 -

The case of Young v. City of Asheville et al. (in 1955) involved, among

other things, the possibility of a nonriparian landowner's acquiring prescriptive

rights to irrigate from a stream. The Court said that "it seems that it is not

necessary that a claimant to water rights by prescription or adverse user should

be a riparian owner on the stream...The user on which a prescriptive right is

claimed may be either by claimant himself or by one holding under him, such as

a lessee or tenant...The adverse user of water, in order to ripen into a right

of use, must be visible, notorious, continuous, adverse and under a claim of

right for the period required to acquire rights in real property adversely to

the owner." (Emphasis added,) The Court held, without further amplification,

that the farm irrigator had neither alleged nor proved that he had acquired

prescriptive rights. 572/

With respect to the necessity of continuous adverse use, the Court has

held that at least twenty years of continuous flooding at a certain level was

necessary to acquire prescriptive rights to continue to flood other lands to

such level, However, the temporary natural lowering of the level during a

drought period, or lowering of the level in order to make repairs on the dam,

would not prevent the acquiring of prescriptive rights at the end of such

period. 575/ Once the necessary continuity of the adverse use has been broken,

another 20 years of such use is necessary to perfect such rights. 577/

The extent of continuity required in the case of a periodic use such as

irrigation is problematical, as is also the extent of the time that such use

must be actually adverse to some other person's rights. 576/ If the rule were

adhered to that no substantial diminution of a stream's flow is permissible,

such use might frequently be adverse in the case of a small stream, except

possibly where a permit had been granted by the Department of Conservation and

Development. But such use by a riparian landowner possibly may not become

adverse, in any event, until some riparian owner has suffered some actual damage

or loss, although this may not be so in the case of nonriparian use,such as by
----- *-* _____________________!






a city. 75 -

Through one's continuous adverse use, prescriptive rights may eventually

be acquired against one or more riparian owners along a watercourse, or neigh-

boring owners in the case of groundwaters, by their failure to bring suit or

take other steps which perhaps might be taken to prevent the running of the

prescriptive period. One need not necessarily go to Court to perfect pre

scriptive rights, but it would appear that one could seldom be sure of having

perfected the right without doing so.

The easement which arises from prescriptive use is limited to substan-

tially the same use which was made during the 20-year period (although just

how much in the case of a varying quantity or rate of use is problematical).578/

For example, a prescriptive easement to flood the land of another has been said

not to carry with it the right to raise the height of the dam 579/ or to fish

or bathe in the pond overlying his land. 580/

The 1955 Water and Sewer Authorities Act provides that "the taking of

water from any stream or reservoir by an Authority...shall not vest in the

taker any rights by prescription; provided, further, that nothing in this

Section shall affect rights by prescription, if any, now held by any munici-

pality and which may be later transferred to any Authority" it becomes a

member of. 588/ This could mean that if a municipality had begun adverse use

but had not yet acquired prescriptive rights when the act was ratified, the

possibility of perfecting such rights might be lost both to the municipality

and the Authority (at least so long as the municipality continues to be

, entirely supplied by it).

Neuse River Watershed Authority

The Legislature in 1953 established the Neuse River Watershed Authority

to promote the mutual interests of the eight counties 611/ in the watershed

area of the Neuse River:

"(a) In preventing floors;
(b) In regulating stream channels by changing, widening
and deepening the same;


_6___1__1____1_____I_~___ --






76 -

(c) In reclaiming or filling in wet and overflowed lands;
(d) In providing for irrigation where it may be needed;
(e) In regulating the flow of streams and conserving the
waters thereof;
(f) In diverting in whole or in part eliminating water-
Scourses;
(g) In providing a water supply for domestic, industrial
and public use;
(h) In providing for the collecting and disposing of
sewage and other waste produce within the district;
(i) In arresting erosion not inconsistent with Chapter
139 of the General Statutes relating to soil conser-
vation districts." 612/

Just how the Authority might validly and effectively accomplish such things

as regulating stream flows or providing water from streams for irrigation of

nonriparian lands is not clear. No powers of condemnation are expressly pro-

vided, nor may the Authority "bind as members,,.the board of county commissioners

of any of the several counties or the governing bodies of the cities and towns,"

except under agreements and contracts with them. It is problematical whether

condemnation powers held by counties, cities,or towns, for doing any of the

things listed above may be employed by the Authority. 613/ Most of the Authority's

activities, as of August 1, 1956, appear to have been concerned primarily with

making a survey of the water resources and uses in the area.

Legislation on Water Rights Proposed in 1955

Legislation was introduced in the 1955 session of the North Carolina

General Assembly which provided for the creation of a State Board of Water

Commissioners with certain broad regulatory authority over the use of waters

in surface watercourses in the State. 618/ This proposed bill included several

details which will not be fully discussed here. Moreover, because of some ambig-

uities in certain of its provisions, it is not altogether clear precisely what

was intended. But, in essence, it would appear to adopt many of the principal

features of statutes previously enacted in Oregon, Kansas, and some other

Western States.






T-"
S In general, the proposed bill purported to establish the doc1 rine of; prior

appropriation with .respect to waters'-in surface watercourses, except for

"customary domestic uses" (which would not include herds maintained for coi-- '-
mercial purposes), and uich' waterse as' ve' actually arid lawfully being put to

some other beneficial use"t"at the time dr the"effective date' ~t this Act,'r"'-

which were defined as "vested rights;."619/ Thiis would' also ineltde instanes-

where works were under construction on' thebill's effective date, 'provide

they were co~plete;k and the water applied to the allotted beneficiai use

within a limited number of years.
Natural surface watercourses to which the bill would apply would be'.

defined as -ny natural rivers, creeks, lakes, or other natural'wtatecourses

or' channels' having "definite banks and beds' with the visible evidence i 6f either

continuouss or occasional flow- of water."- Diffused surface water would not be

S subject tbo appropriation',' but d would subeect to' ownetship ahe a reaoetbable use

by any landowners' who artificially collect them dn:their lands,

Subject to domestic uses and to ,vested rights as defined above, appro---
priations of definite quantities of water in sacke watercourseeo, at specific

times; places,-'and'rates ,of diversion, coUld be"grantedby- the State Board bf

Water COmmissioners. "Benefidial use" would be the limit of each, appropriative
fight; regardlesi of the specifi'c:quantity bf water appropriated. Applicetobhs

would' b approved if the Board findsithat the-proposed use' is reasonable and

beneficial and not ineonflict with th* public interest, vested r-ghts, or '

S valid prior appiopriitibns. The Board would be authtoized to prboulgate-regu-
latiOns having the force and effect of iaws-. ..*. .':'.:.:

Appropriations presumably could be granted for an indefinite length of'
S time, although the appropriative right might be cancelled (subject to judicial,

review) for failing'to use the water for the specified-'beneficial purposeg fIr:.






78 -
more than three consecutive years. NQ legally acquired appropriation otherwise

could be declared forfeited except by a court "as other property rights are

determined,"

Appropriative rights would become. appurtenant to the specified lands,

upon which the water is to be used, "except as otherwise provided by written

contract between the owner of ,the land and the owner ,of any ditch, reservoir,

or other works for the storage or conveyance of water." Such rights would

pass with the land when its title is transferred, unless otherwise provided*

The rights could be transferred to other lands only on the approval of the

Board.

SThe principle of priority in time of appropriation would be established,

although its ,pplementation was not clearly spelled out. Presumably, in times

of, shortage senior appropriators would be exclusively entitled to the available

waters over Junior appropriators from the same source. 620/ Appropriations per-

haps could be granted for use on pay land, riparian or otherwise, although this

was not expressly so provided. 621/

The bill also provided that "where future appropriations of water for+

different purposes conflict they shall taee precedence in the following order,

namely: (1) Water for human consumption; (2) water for agricultural and indus-

trial production; and (3) water for other beneficial purposes." This perhaps

wasintended to mean that the order of preference should be applied only in

the event there are two or more competing applications pending for future

appropriations from the same limited source, with priority in time being the

determining factor as between different appropriations once they are granted.

But it could.also mean that in times ofshortage an appropriation for one type

of ,:uae might be given preference, perhaps even exclusive preference, over an

appropriation for a lower type of iuse, regardless of priority in time. Under







79 -

more or less similar statutory provisions in Western States, courts have held

that compensation would need to be paid for such taking. 622/

While the proposed bill perhaps would allow nonriparian owners to obtain

appropriations, it did not provide any condemnation rights or other special

procedures to help such an appropriator attain access to a watercourse, as do

several Western statutes. He apparently would need to obtain a right of access

by such voluntary measures as the purchase of a right-of-way across a riparian

owner's land6nd perhaps other intervening lands, or perhaps by renting or

purchasing such lands.

Except for domestic purposes, riparian rights, to the extent that they

were not being put to some beneficial use (or the construction of facilities

for their exercise was not actually in progress) on the bill's effective date,

presumably would be abrogated, without compensation. (The constitutionality

of such a provision, particularly as to nonnavigable watercourses, might be

especially doubtful.) Riparian owners who were thus making use of the water,

for other than domestic purposes, would not be permitted to increase such use

in the future without obtaining an appropriation therefore from the Board.

Their riparian rights would thus have a quantitative limitation as do appro-

priative rights (although based on past use). However, such rights perhaps

would not be lost through later nonuse.

The proposed bill contained provisions relating to the administrative

determination and establishment of the rights of all riparian owners who on

A the effective date of the act were making beneficial use of water, and various

provisions relating to its enforcement, including the obtaining of injunctions

and criminal prosecutions to prevent unauthorized diversions or changes in

the place of diversion or use of water.

Anyone desiring to build a dam or reservoir on any natural watercourse

would need to obtain a license from the Board and comply with any conditions







- 80 -


imposed for the protection of the public or of water users and could be

enjoined from proceeding without such approval.

The bill was referred to the Joint Committee on Conservation and

Development. It was reported out Unfavorably, and never was voted on by the

Legislature. Another bill was passed in 1955 which included a statement of

policy similar to that in the proposed bill. But the bill, in general, went

no further than (1) to create a Board of Water Commissioners to study the

water resource situation and problems and make recommendations and (2) to

provide the Board with certain powers to act in certain emergency situations

to take care of the needs of human consumption and necessary sanitation and

public safety, as discussed earlier, 624/

Among other studies, the Department of Conservation and Development

and Committee on Water Resources, Inlets, and Coastal Waterways have published

reports on the water resources, uses, and related aspects of 3 of the State's

10 river basins, as well as a Statewide report. 600/


'6




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