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The State legislation now in force is embodied in the General Statutes 4
of North Carolina (hereinafter designated N.C.G.S.) except for certain special
and local laws that have been enacted by the State Legislature with respect
to particular localities, watercourses, persons, or circumstances, I~over,
the States .Constitution, Art. II, sec. 29, which became effective in 1917,
prohibits the Legislature's enactment 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. The
writer has made no detailed analysis of the number or nature of special and
local laws that may affect water rights, although some examples are included.
The discussion that follows deals with several of the features of the
applicable water laws in North Carolina but it is not exhaustive in these
respects,. Supreme Court decisions have developed from the English common law,
but there have been a number of modifications and some outright repudiations
of old commonn law principles. /
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
"the general welfare requires that the water resources of the State
be put to beneficial use to the fullest extent: of which they are
I/ N.C.G.S. sec. 4-1 provides that : "All such parts of the common law as
were heretofore in force and use within this State, or so much of, the common
law as is not destructive of, or repugnant to, or. inconsistent with,, the
freedom and independence of this State and the form of government therein
established, and. which has' not been otherwise provided for in whole or in
part, not abrogated, repealed, or become obsolete, are hereby declared to be
in full force within this State." This legislation has been construed,
among 6:ther cases;,in-Riuse v. Cityof Kinston," 188 N.C. 1, 123 8-E. 482
(1924). '(Se9' Groundwaters, post.)
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." 2/
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. (See Condemnation and Related Proceedinges post. 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 very substantial effect on the State's
water law until it is implemented by additional legislation for this purpose.
Statements of policy also have been enacted in regard to certain seg-
ments of the overall water resource problems of the State, such as pollution
control and protection of public water supplies and fish and wildlife,--
all of which have been accompanied by certain implementing legislation.
For example, legislation relating to "Stream Sanitation and Conservation,"
"It is hereby declared to be the policy of the State that the water
resources of the State shall be prudently utilized in the best
interest of the people. To achieve this purpose, the government of
the State shall assume responsibility for the quality of said water
resources. The maintenance of 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 requirements for
health, recreation, fishing, agriculture, industry, and animal life." 3/
Somewhat more detailed policy considerations appear in the criteria to be
followed by the State Stream Sanitation Committee in applying classifications
2/ N.C.G.S. (1955 Supp.) sec. 143.317 et. seq.
:/ N.C.G.S. sec. 143-211 et. seq.
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 interest or development in the area.
Also, in a 1t Aer relating t@ Water and Sever Authorities, which
provides that no such Authority may employ condemnation powers without the
approval of the State Board of Water Commissioners, certain policy statements
appear in the criteria for determining whether to permit condemnation to be
used. (See Condemnation and. Related Proceedings, post.) 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
watershedwide and statewide effect, and (2) will promote and increase the
storage and conservation of water. The Board may also consider the feasi-
bility and cost of alternative sources of supply and the probable detriment
and potential beneficial use of water through the use of such alternative
sources, compared with the source sought to be condemned.
Recent legislation also declares 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." / (See
These and other legislative declarations of policy or policy consider-
ations are described herein in connection with the particular subject matters
to which they relate.
/ N.C. Session Laws, 1955, Ch. 1100, amending N.C.G.S. sees. 105-147,
105-294, 105-296, 105-297, and 105-122. This implementing legislation
relates only to pollution.
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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 Supreme Court, most frequently in instances
in which the Court has interpreted the meaning and effect of particular
legislation. This has been particularly noticeable in the handling of cases
relating to such things as milldams and drainage. The Supreme Court (here-
inafter called "the Court") has noted that early milldam and drainage statutes
were born of necessity, in order to develop the flat eastern lowlands of the
State. 5/ (See Drainage, and Condemnation and Related Proceedings, post.)
Types of Water Sources
Different legal principles have been applied to different types of
natural water sources, notwithstanding that they may be all more or less
interrelated. These include such broad categories as surface watercourses,
underground streams, percolating groundwaters, and diffused 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
Slakes created by damming a natural watercourse.
The legal definition of, and distinctions between, the different water
sources, and the legal principles, statutory laws5 and regulations that
have been applied to each type of water source, are discussed below.
In an early case, a natural watercourse was defined by the Court as
S follows: "A watercourse consists of bed, banks, and water. A natural
5/ Mizell v. McGowan, 120 N.C, 134, 26 S.E. 783 (1897); later decisions
in same case in 125 N.C. 439, 34 S.E. 538; 129 N.C. 93, 39 S.E. 729.