Title: Natural Watercourses
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Title: Natural Watercourses
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Language: English
Publisher: The Conservation Foundation
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Natural Watercourses
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003162
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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\ 5 -

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

lakes created by damming a natural watercourse.

The legal definition of, and distinctions between, the different water

sources, and the legal principles, statutory laws, and regulations that

have been applied to each type of water source, are discussed below.
Natural Watercourses

Definition

In an early case, a natural watercourse was defined by the Court as

S follows: "A watercourse consists of bed, banks, and water. A natural


SMizell 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.






6 -
watercourse has such characteristics while: in a-state of nature and
d without artificial construction. Natural watercourses are such as rivers,

creeks and branches." 6/ -This definition was -repeated by the Court in a
later cases Beth cases dealt with rights to use natural or artif2icia
watercoun 1e tof thf drainage of lands. (See Drainage, post.)

In another drainage case, the Court said. that "a watercourse is well
defined in Angell on Water Courses: (7th Ed.) see. 4" 8/ This, states. that:

"A watercourse consists of bed banks, and water; yet the water need not
flow continually; and there are many watercourses which are sometimes
dry. There. is, however, a distinction to be taken in law 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.
To maintain the right. to-.a watercourses or brook, it must be made to
appear that 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, as stated above, and it may at times be dry; but it must
S have a well-defined and substantial existence,"

Mr. Angell added, in sec. 4 (d) that water flowing through a hollow or
ravine only in times of rain, or melting snow, is not, in contemplation of

law, a watercourse." 9/

In the latter case, a swamp that had a well-defined watercourse running
through it (it was not clear whether this was as wide as the swamp) was

/ Porter v. Armstrong, 129 N.C. 101, 39"'.E. 799, 801 (1901); later
decisions It 132 N.C.66, 43 SE. 542; 134 N.C. 447; 46 S.E. 997; 139 N,C.
179, 51 S.E. 926.
7 Darr v. Carolina Aliumim Co., 215. N.C. 68, 3 S.E. 2d. 434, 436 (1939).
SMizell v. McGowan, 120 N.C. 134, 26 S.E. 783, 784 (1897); later decisions
in 125 N.C. 439, 34 S.E. 538; 129 N.C. 93, 39 S.E. 729.
/ He also stated, in sec. 4(b), that except where a natural watercourse
arises from a definite underground stream (see Definite-Underground Streams,
post) a "stream begins at its source, when it comes from the surface, and
owners of lands adjoining upon it have a natural right to the use of the water
of it from its source to its termination."
*' *''"- *i ; *' .. .*:I







-7
said to constitute a natural watercourse. i/

Another case involved rights to drain water that had collected in a

natural depression to form a pond. The Court appears to have treated it

as "surface water" rather than a natural watercourse, even though the pond

sometimes spilled over, because no defined watercourse led from it.11/

(See Surface Waters,and Drainage, post.)

5" 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. In one early case, the defendant claimed the right to

drain off all "surface water" from certain lands for agricultural purposes.

He said that this term included rain waters and all waters that overflow the

banks of a watercourse or which seep through its banks, even though some of

the water that would otherwise flow to a lower landowner's mill might thereby

be drawn off. However, no clear determination of this question was reached

in the case. 12/

In certain other cases, the Court has implied that rights to the use of

a watercourse may include certain rights in connection with floodwaters,

which naturally overflow its banks, but these cases (generally) have dealt

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

positive right to make use of such waters and prevent their returning to

the watercourse as they might otherwise do naturally. Some other cases


10/ See also Williamson v. Canal Company, 78 N.C. 156, 157, 159p 160
(1878), where waters were claimed to run "through the swamp, between defined
banks." Such waters were considered by the Court to constitute a watercourse,
without elaboration. In Brooks v. Britt 15 N.C. 481 (1834) where a deed
called for a named swamp as a boundary, this was held to mean the edge of.
such swamp, not to a watercourse running through it. This didn't necessarily
mean, however, that the swamp could not be considered a part of the watercourse.
11/ Rice v. Norfolk Railroad Co., 130 N.C. 375, 41 S.E. 1031 (1902).
Williamson v. Canal Co., 78 N.C. 156, 159-160 (1878); other decisions
in same case in 76 N.C. 478 and 84 N.C. 629.







-8-
have dealt with rights and duties with respect to flood flows that have i

not overflowed the banks of a watercourse. These cases indicate that such

waters are to be considered a part of the watercourse, although somewhat

different legal principles may apply to their use or disposal than to waters

that ordinarily flow i: the watereourse. (See Flood eWQrS, and Detention

or Obstruction of Water with Dams, etc., post.)

Natural watercourses may sometimes carry a mixture of natural water

flows and waters that have been developed artificially, as when a dam placed

therein has created a pond or lake. Rights and duties connected with

Sartifically developed waters in natural watercourses are discussed prin-

:cipally under Detention and Obstruction f' Water with Dams, etc., and Arti-

ficial and Developed Watercourses, post. 3/

Classification

The Court often has classified natural watercourses into different

categories for the purpose of determining rights of use, ownership of the

bed, or for other purposes, Over the years the Court has adhered to various

classifications of navigable watercourses, the significance of which is

discussed under Navigable Waters, post. The following discussion deals

with the legal principles that have been applied to nonnavigable watercourses.

General Nature of Riparian Rights

The Court has consistently applied some version of the riparian doctrine

in deciding or considering questions concerning the use of waters in natural

watercourses. This doctrine provides, in general, that owners'of lands

that are crossed by or adjoin a natural watercourse (called "riparian"


13/ The interrelationships between natural watercourses and other natural
sources of water are discussed under Interrelationships among Natural Water
Sources, post.






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owners or lands) have certain rights (called 'iparian" rights) to use the

water that accompany their ownership of such lands* Such rights would appear

also to inure to the benefit of one who rents riparian lands, subject to the

terms of his rental contract. 14/

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 a transfer of the ownership of such lands. 15/ The Court has

said that no riparian owner (nor, it would seem, all collectively) owns

any particular part of the flowing water. 16/ Nevertheless, 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, as is discussed later.

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

the rule has been invoked in a number of States that riparian rights only

run upstream,-t;hat is, that an upper owner can have no cause of action


1/ See Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408, 414-
415 1955).
1/ Smith v. Town of Morgantown, 187 N,C. 801, 123 SE. 88, 89 (1924);
Pug v. Wheeler, 19 N.C. 50, 55 (1836); Dunlap v. Carolina Power and Light
Co,, 212 N.C. 814, 195 S.E. 43, 45 (1938). (See Transfer and Assignability
of Riparian Rights, post.)
16 Walton v. Mills, 86 N.C. 280, 282 (1882); Smith v. Town of Morgantown,
187 N.C. 801, 123 S.E. 88, 89 (1924). Riparian owners might sometimes acquire
the actual ownership of water that has been legally removed from the water-
course. But even in such cases certain restrictions may be imposed. For
example, there may be a duty to return some part of the water used, or waters
in excess of that needed for particular purposes, to the watercourse.
In one case, the Court noted that flowing water in a stream "is indivi-
sible and not the subject of riparian ownership." Harris v. Norfolk and W.
Ry. Co., 153 N.C. 542, 69 SE. 623, 524 (1910). Another case in which the
Court indicated the indivisible nature of the flowing water or of the rights
to its use is Blue Ridge Interurban Ry. Co. v. Hendersonville, 69 N.C. 471,
88 S.E* 245, 246 (1916).
Although riparian owners may not acquire the ownership of any part of
the waters flowing in a watercourse, they have sometimes been held to have
,certain preferential uses of particular parts of the watercourse for par-
ticular purposes, such as for wharfs, wing dams, and fishing purposes, In
some instances, such preferential rights have been created by legislation.
(See" avigable Wateis, Detention or Obstruction of Water with Dams, etc.,
and Fishing, post.)






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against a lower owner, as he would not be affected by any downstream dimi-

nution of the flow. 17/ This rule would very probably be followed in

North Carolina, although it has not been definitely decided. 1/a Upper

riparian owners nevertheless have been allowed to recover against. eaer~ in
downstream usee of the waterourse, such as the backing up of the watev with

a dam (See Detention or Obstruction of Water with Dems, ete.,,post) *4v the obstruc.

ting of the migration of fish upstream (see Fishing post). 1 /

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. 2/ Of course, springs,

creeks, and surface waters, or other waters that naturally feed into the

watercourse along its route, might tend to reduce the likelihood of an

upper owner's liability to some lower owner a considerable. distance away,

by tending to offset his diminution of the stream's flow or helping to

17/ See 93 C.J.S., Waters, sec. 63.
IF/.The Court in Williamson v. Canal Co., 78 N.C. 159 (1878) indicated
that every riparian owner may use a watercourse for various purposes "provided,
he does not by his use of it, materially damage any other proprietor above
or below." (Italics supplied.) But the case involved only the quest onof
liab~ily to a lower owner for diverting waters ;from the stream. In a later
case involving the same question, the Court said that riparian owners who
use a.stream have no right to inflict substantial injury upon "those below
them." Harris v. Norfolk and W. Ry. Co., 153 N.C. >542, 69 S.E. 623, 624 (1910).
19/ Similar questions regarding navigable waters are discussed under
Navigable Waters, post.
20/ In Mizell v. McGowan, 129 N.C, 93 39 S.E. 729 (1901), earlier decisions
in-20 N.C. 134, 26 S.E. 783; 125 N.C. C 39, 34 S.E. 538) the Court concluded
that it would be impracticable to limit the amount of water that could be
legally drained into a natural watercourse on one's own land to the natural
capacity of the watercourse, partly because the question of how far downstream
such a limitation should extend would present difficult problems. The Court
noted that if it extended all the way to the mouth of the stream, and several
persons thus drained into it, it would be difficult to apportion the liability
for the damages among them. (ee Drainage, post. )






- 11 -


to purify the waters he has polluted. The natural purification of the water

as it travels over a considerable distance has been alleged by way of defense

in lawsuits regarding pollution in North Carolina. 21/

General Development of the Riparian Doctrine

The riparian doctrine, in one form or another, has been consistently

adhered to by the Court over the years. 22/

With respect to domestic uses, the Court in several cases has suggested

that such uses of a watercourse would be subject to the same general rules

as other types of use, although in other cases it has suggested that a ripa-

rian owner may use all he reasonably needs for domestic purposes without

incurring liability for any damage to lower owners. (See Domestic or other

Natural Uses, post.)

With respect to other uses, some of the early, and even some recent,

statements by the Court regarding riparian rights appear to have adhered

more closely to the so-called "natural flow" riparian doctrine (which

generally permits little or no consumptiv n fc a a+,g othe

than for domestic purposes) than toward the riparian doctrine of "reasonable

use" that has developed in several her a.tern States. For example, the

Court in Walton v. Mills (1882) stated that each riparian owner has an

equal right to the use of water "without diminution or alteration." The

Court recognized that new consumptive uses of watercourses (the case involved


21/Frequently, however the complainant has relied on pollution legisla-
tion which provides that the pollution of a watercourse which furnishes a
public water supply may be enjoined by any person. The Court has ruled that
in such cases the complainant need not show that the water was actually
polluted at the point of intake of the public water supply and has enjoined
the pollution of a stream as far as 75 miles upstream from such point.
(See Pollution, post.)
22/ One of the earliest statements of this doctrine was in Pugh v.
Wheeler, 19 N.C. 50 (1836).






,. 12 -


gold mining, where much water would be removed from the stream and perhaps

little or none returned) might require some modification of this rule,

noting that use .o the water simply as a moving power for mills and

manufacturing purposes "does not destroy, or in any considerable degree,

reduce the volume which still flows on for the use of others." -The Court

expressly avoided making any decision about this, however. 23/

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

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

the Walton case, the Court said that "The reasonable use of the water as it
passes on -s -onward course so tbt.-co.dm ae is done-by .yA&hhflAd1& t is the

rule by which the rights of riparianowners are regulated." 24/ (Italics sup-

plied) ThIi rule was modified somewhat in statements in other cases so as to

permit a reasonable use, consumptive or otherwise, of a watercourse so long

as her riparian owners were not 'materially damaged," 2 or the watercourse

SWalton v. Mills, 86 N.C. 280, 282, 285 (1882). The Court refused to
grant an injunction against such use, partly because any damage was specu-
lative and also by weighing the respective interests of the parties. (See
Mlaing, post, and Balancing of Interests, Equities, or Conveniences# post.)
24/ Walton v. Mills, 86 N.C. 280, 282 (1882). The Court said that this
rule had been recognized in two earlier cases,--Pugh v. Wheeler, 19 N.C.
50 (1836) and State v. Glen, 52 N.C. 321 (1859). The Court later said, in
Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 46 (1938)
that the "reasonable use" doctrine had been recognized in the Pugh case,
apparently with reference to the rule that every riparian owner may make "a
reasonable use of the waters, so long as he does not divert or pollute it."
The Court had stated in the Pugh case (at p. 54) that "it is reasonable" that
riparian owners should be allowed to use a watercourse for purposes of profit,
although it also cited (at p. 57) the statement of a judge in an old English
case, apparently with approval, to the effect that every pan has the right
to have the advantage of the flow of water on his land, "without diminution or
alteration." In State v. Glen the Court said (at p. 334) that a riparian
owner should so use the water of a nonnavigable stream as not to interfere
Switch the similar rights of other owners on the same stream, citing Pugh v.
Wheeler.
5/ Williamson v. Locks-Creek Canal Co., 78 N.C. 156, 159 (1878), in-
volving the diminution of a stream's flow by diverting water through a canal
for drainage purposes; Harris v. Norfolk and W. Ry. Co., 153 N.C. 542,
69 S.E. ,623, 624-625 (1910) involving the withdrawal of stream waters to
water locomotives.






13 -

was not 'materially lowered." 26/ In the latter event, the Court has added

that there-woul bUe Flaility "to a lower proprietor who suffers a substan-

tial injury thereby," but that "where there has been no appreciable,

erceptible diminution of the volume of the stream by the upper proprietor,

the lower has no cause of action." The Court also has said that 'the

size and character of the stream has much to do with the quantity of water

which may be withdrawn from it." 2/t

In one case, the Court held that the pumping of water from a stream

for watering locomotives on riparian land was properly left up to the jury

to decide with respect to whether there was a material diminution of the

flow. (The jury decided that there wasn't,) The Court saidthat the

evidence was conflicting, but noted that a civil engineer had testified

that only about 1/50 of 1 percent of the stream's flow was taken for such

purposes and that such a reduction was not "appreciable" and could not be

detected by eyesight. 28/

Other important modifications of the riparian doctrine were discussed

at length by the Court in Dunlap v. Carolina Power and Light Co. (1938).

In this case, which involved the question of liability for damages to a lower

owner from the operation of a hydroelectric power dam, the Court said:

"A riparian proprietor has a right to make all the use he can of the
stream so long as he does not pollute it or divert It.Sfrom its natural
channel and abstract so much as to prevent other people from having
equal enjoyment with hims or does not use the same in such an
unreasonable manner a tomaterially damage or destroy the rints of
other riparian owners. The rights of riparian owners in a running
stream above and below are equal; each has a right to the reasonable

26/ Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E, 623, 624-625
(?i0!).
2/ Ibid.
/ Harris v. Norfolk and W. Ry. Co., 153 N.C.542, 69 S.E. 623,-624-625
(190).- The Court conceivably might have questioned whether the watering of
ocomotives was' a proper riparian use, but it did not do so. (See Defini-
tion of Riparian Land and Use of Water on Nonriparian Lands, post.)


s








use and Aejoyment of the water,, and each has a right to the natural
flow of the stream subject to such disturbance and consequent incon-
veniencen and annotpace as may result to hima from a reasonable use
of the waters by others. There may be a diminution in quantity or
a retardation or acceleration of the natural flow indispensable for
the general valuable use of the water perfectly consistent with the
existence of the ,comon right and this may be done. so long as the
retardation and acceleration is reasonably necessary in the lawful and
beneficial use of the stream... The diminution,, retardation, or accelera-
tion ziot positively and sensibly injurious by diminishing the value of
the common right Is an implied easement in the right of using
the stream. The right to use necessarily implies a right to exercise
a degree .of control over the water and to some extent to diminish,.
its volume'. And the water may be detained long enough to accumulate
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."
(Italics supplied.)

"What constitutes a reasonable use is a question of fact having regard
to the subject-matter and the use; the occasion and manner 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 party and the:
extent of the injury caused.by it to the other."2 2/

The Court also said:

"In some of the cases defining the rights of a riparian owner, the
terms 'like use,' 'like situation,' 'like owners,' and 'like,' are
used. These terms. mean that the use of one farmer shall be judged by
the use of another farmer, one manufacturer by the customs and use of
another manufacturer. Th& use by any particular person must be the
same as the neighboring proprietor in like circumstances. We cannot
compare the uses of a farmer with those of a power producer. To con- .
strue the term 'other like owners' strictly, as the term is seemingly
but not actually used in some of the decisions, would virtually nullify
the law of riparian ownership and riparian rights. To so construe it
would mean that a stream not theretofore used for water power purposes
could never be so used, because the person who first! undertook to
avail himself of the water power capabilities of a stream would '
find that he was not making use thereof as other like owners. Such
construction -when applied to a stream used largely for water power

/ Dunlap v. Carolina Power and Light Co,, 212 N.C. 814, 195 S.E. 43,
47-(1938). The Court also stated (on p 45) the following rule "A lower
riparian owner has the right to use the water of a stream as it comes upon
his land in its natural state for any purpose to which it may be applied
without material injury to the just rights of others." But this does not
appear to add anything material.
**. *


_






15 -

purposes would likewise.for all practical purposes destroy any use of
the stream by farmers or others similarly situated." 30/

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 waters from a

watercourse is concerned.

(1) "...it has become a well-established principle of law in this
and most of the other jurisdictions that any a antial divers of
waters or the pollution of waters of a stream gives rse to a cause of
action in behalf of all riparian owners affected thereby." The Court
also referred to the "right of a riparian owner to make a reasonable
use of the waters, so long as he does not divert or pollute it..." 3/

(2) "The statements that a riparian owner 'has no right to use
the water to the prejudice of the proprietor below him' and that he
cannot 'diminish the quantity which would descend to the proprietor
below' and that 'he must so use the water as not materially to affect
the application of the water below, or materially to diminish its
quantity,' are used in cases in which the diversion or pollution
of water is being discussed.

"In the cases involving the right to the profitable use of the waters
of a stream, it seems to be almost universally held that such interrup-
tion 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." 32/

The keys to 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, particularly by

the latter statement, clearly implied that a different rule might be applied

in cases of diversion or pollution of a watercourse than with respect to

other uses, but it did hot indicate precisely what it meant by "diversion,"


30/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
45=--6 (1938).
1/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
46(1938.).
2/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
47( 1938).;






16 -
and was somewhat vague. about how the applicable rules. might differ in such
a case. 33/ When construed along with other cases, however the Court appears
to suggest the possibility that a riparian owner may be liable to any lower
riparian owner who is substantially ~JrFgd by ny material d~3gnution,
of the flow of a watercourse re~ul$ing from th@ 4divtgpon @1 water therefromn
whether by means of canals or pumps; whereas in cases involving the ques-
tion of liability to lower riparian owners for the detention of the waters'

S(as with a dam), but without any actual diversion of water from the water-
course (other than perhaps to provide water power and Immediately return
it to the watercourse) the controlling criterion is to determine whether

such use is' reasonable ugder alj. the .circumstances, even though there may
be material diminution aria substantial injury. L/4 The Court. appears to
have used the latter rather than the former criterion in this case, which

involved the question of liability for damage to lower riparian lands


L3/ The first of these two latter statements appearsto be the accepted
general rule with respect to pollution, but this question is now to some
extent complicated by statutory and administrative regulations. (See
Pollution, post.)
/ The Court by "diversion" conceivably had reference only to the diver-
sion of the entire course, or a large part of the flow of a watercourse,
perhaps particularly where no. pofitable use is made of the water, diverted.
See Williamson v. Canal Co., 77 N.CI 16 78), in which the Court indi-
cated that compensation must be paid for diverting part of a stream's flow
into another watershed through a canal for drainage purposes so as to
materially reduce. the flow to a lower mill,, causing material, damage. See
Adams v. Durham and N. R. Co., 110 N.C. 325, 14 S.E.'857, 859(1892) con-
cerning diversion of..the entire course of a. stream. However,, as is dis-
cussed below, the several earlier cases cited in the Dunlap case collectively
tend to support the proposition that no material diversion by means of canals,
pumps, or other methods, oor fr different purposes, would be permissible
if material injury to lower riparian owners results.






- 17 -


from the operation of a hydroelectric power dam. L5/ At any rate, the

Court indicated that "it is impossible to lay down a general rule in all

cases." 6/

The rulings or statements made by the Court in earlier cases cited in

the Dunlap case tend to support the general proposition that no material

diminution of the flow of a watercourse by Njlr tin -^rt t "y means

of pomps or canals or other methodaould.~Jiaa ~i3 .f:.,es.

materlsrinjury to riparian owners below. 3/ In one of these cases, however,

the Courfsaia that "ourr-AWecTlions. ..Eocl 1nat a riparian proprietor


3/ Apparently there was no diversion of water from the watercourse, other
than perhaps to provide water power as indicated above. The legal princi-
ples applied to the operation of hydroelectric dams in this and other cases
are discussed under Detention or Obstruction of Water with Dams,'etc., post.
3/ Another distinction that has sometimes been made appears in Hampton
v. N. C. Pulp Co., 223 N.C. 535, 27 S.E. 2d, 538 (1943), where the Court
distinguished cases of controversies over two lawful uses of the same
stream from a case in which one of the uses is lawful and the other un-
lawful. It was held that damages could be recovered for the pollution of
a stream in violation of a State statute which interfered with the migration
of fish upstream to the complainant's fishery, but the Court said that in
cases of a lawful use of a stream there is no liability for any consequen-
tial damages to others. However, in the Dunlap case (in 1938) the Court
held that there would be liability for certain direct damages to a lower
riparian owner's land caused by the operation of a power dam even though
it was found to be lawfully constructed and operated, without negligence.
The Court said that even though the use was lawful, the owner of the dam
would not be permitted thereby to take another's property, without compen-
sation. (See Detention or Obstruction of Water with Dams, etc., post.)
37/ See particularly Harris v. Norfolk and W. Ry. Co,, 153 N.C. 542, 69
S.E. 623, 624-625 (1910), discussed earlier. See also Williamson v. Locks
Creek Canal Co., 78 N.C. 156, 159 (1878); and Walton v. Mills, 86 N.C.
280, 282 (1882), also discussed earlier. These and other cases are cited
in Dunlap v, Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 45,
48 (1938). The cases dealt with a variety of types of diversion and use,
including diversion without the aid of dams or canals and in which the water
was not returned directly to the source of supply. Other cases cited dealt
with pollution, the ponding back of water with dams, the diversion of the
entire course of a stream, drainage into a natural stream, or the withdrawal
of groundwaters.






18 -
is entitled to the natural flow of a stream running through or along his
land in its accustomed channel, undiminished in quantity and unimpaired in

quality, except as may be occasioned by the reasonable use of the water by
other like proprietors,1? Q/ (Italics Supplied). The Court gcted a number

of earlier cases in support of this proposition, but none of them clearly

supported, and some tended to refute, such a rule so far as the diversion

of waters from a watercourse was concerned.

Nevertheless, the above rule was repeated in a later case, in 1926. 40/

But there the Court also repeated the above-discussed rule, apparently with

approva,-to-the-effect that riparian owners "may use the water for any

purpose to which it may be applied, but in doing so they have. no right to

inflict material or substantial injury upon those below them." l/ The
--------------~I.~ ~~~~.^.;,~. ^~a ~ ~ ^
Court indicated that the former rule, which had been applied by the lower

court, gave the defendant "all that it could ask under the law." ~f 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

38/ Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88, 89 (1924).
9/ See particularly Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E.
62F9 624 (1910) and Walton v. Mills, 86 N.C. 280, 282 (1882) discussed
earlier.
!/ Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407 (1926). This rule
was also repeated in Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482,
493 (1924). But this was an incidental statement in a case dealing with
percolating groundwaters.
Ll/ Cookviv Town of Mebane, 191 N.C. 1, 131 S.E. 407, 409 (1926). The
Court was-quoting from Harris v. Norfolk and W. Ry. Co., 153 N.C. 544,
69 S.E. 624 (1910), discussed earlier, which cited Williamson v. Canal
Co., 78 N.C. 157 (1878), also discussed earlier, in support of the rule.
Thus we appear to have a definite recognition of two different rules that
had been developed in earlier cases.
/ The rule stated in Cook v. Town of Mebane to the effect that there is
"no right to inflict material or substantial injury on those below" was
repeated in a case later the same year, although this case involved pollution,
not diversion. Moses v. Town of Morgantown, 192 N.C. 102, 133 S.E. 421,
423 (1926).






,- 19 -

causes material Sijj t,'a lower 0 iparian owner, i necessarily an ,un-

S reasonable uee. But the: Court di, ot discuss suchbpossible difficulties
in applying the rules.
At any rate, in the: latter two cases the water had been diverted from
a stream for municipal water .supply purposes, 4 ,which was declared In a

later case to be an -unlawful type; of use, largely on the grounds that it
was a ,nonriparln, use. /, hSuch diversion and. use also had been held
unlawful under the circumstances in these. cases, by applying the, above-
quoted rules. (See Definition of Riparian land and Use"of Water on Non-
Siparian lands, and Municipal or Public Water Supply, post.)

In two early cases iNvolving drainage into a watercourse (which' were
not cited in.the. Dunlap case), the Court made incidental statements to the
effect that a riparian owner could make a reasonable use of a stream for,
irrigation purposes without- ncurring liability for any damage.to lover
Owners, stating- that "the upper owner has the right to all the advan tages

of drainage or irrigatioi re sonab 1y, ued, which the stream ay give him." b/
Such a rule is similar to the rule stated in sme. of the cases discussedd
above to the effect that each riparian owner is entitled to the natural
flow of a watercowsie e sxcepc a4 at way be- diin ished by the, reasonable use
of the water by upper r.ipara, owners. aoa ay lend saome additional support
for, any .contention that the Couzr.t vou, follow this rule with respect to

the diversion of water from, a watercourse, although the Court possibly
had in mind only the. irrigation of a hbo. garden, (See Domestic ow. Other
Natural Uses, post.)

43/ a mith v. Town of Morgantown, ,17 N.C, 80, 3 S.E. 88 (192); Cook
v."own -of. Mean, 191 NC. 1, 131 SB. 407 (N392 ).
44/ Pernell v. City of, enderson, 220 of.C. 79, 16 S.E 2d. 44.9 (1941)
rs/ See Jenkins v. Wilmington R.R. Co., 110 N.C. 438, 15 b.E. 193, 194
(i82); Rice v. Norfolk and C.R. Co., 130 N.C. 375, 41 S.E. 1031, 1033 (1902).






20 -
Th unla case has been cited in some later cases' butthese do not.
appear to add much further clarification regarding which rule the Court would

follow in cases of diversion, although they do add definite support for the

proposition that in instances of detention of water without diverting it
from the watercourse (other than perhaps to provide water power, as in-

dicated above) the applicable rule is to determine whether such use is

reasonable under all the circumstances. 46/ (See Dentention or Obstruction

of Water with Dams, etc., post.)

46/ Following are four later cases in which the Dunlap case was cited:
(1) The Court in Sink v. City or Lexingtbn214 N.C. 548 200 S.E. 4,
5, (1938) adopted the rule of reasonable use under all the circumstances,
quoting Smith v. Morgantown, op. cit., and said that the Dunlap case was
"not contrary." However, this case involved the question of damages to
upper lands whose drainage was impeded by the maintenance of a dam below.
(See Detention or Obstruction of Water with Dams, etc. post.) The Court did
not discuss the question of diversion*
(2) In Bruton v. Carolina Power Co., 217 N.C. 1, 6 S.E. 2d. 822r 827
(1940) the Court quoted language from the Dunlap case affirming the rule of
reasonable use under all the circumstances, where the question of damages
to lands below a dam was involved. It also quoted its previous statement
that: "A riparian proprietor has a right to make all the use he can of the
stream so long as he doe 1n-t pollute it or divert it from its natural
channel and abstract so much as to prevent other people from having equal
enjoyment with himself, or does not use the Same in such an unreasonable
manner as to materially damage or destroy the rights of other riparian
owners."
(3) The Court in Koone v. Carolina Power Co., 217 N.C. 286, 7 S.E.
2d. 565 566 (1940) again cited the Dunlap case to the same general effect
in a case similar to the Dunlap case.
(4) The Court once again cited the Dunlap case (along with Cook v.
Mebane and Durham v. Cotton Mills, ante) in Young v. City of Asheville,
241 N.C. 618, 86 S.E. 2d. 408., 415 (1955), ante, in support of the propo-
sition that one who is not a riparian owner does not have a right to have
the stream flow "with undiminished quantity and unimpaired quality," al.
though there the Court was considering the right to an unimpaired quality
and this: appears to have been merely an incidental statement regarding
"quantity." The Dunlap case had not dealt with the question of any
necessity of riparian ownership.
While the Sink case tends to refute the distinction drawn in the
Dunlap case, the Young case tends to support it. The Bruton and Koone
cases appear to add little on this question, except to confirm that the rule
of reasonable use under all the circumstances applies in cases of detention
of a watercourse with a dam, without diverting it. '.







,. he goutt*n several cases,.-(opse q f which werp cited In the Dunap
case) has dealt with or discussed the question ,qf liability for diveR.$ng
waters from a P-atural watercourse arA causing them to .flood pr to beo thrown
against another* s land and damage it.. The Court, appears to have
applied :hep same general rule in cases ihre. the entire. course of _, stream'
was diverted out of its watershed as ij cases -where only a part of b. #
water was thus. diverted, through acaznal or .ditch, with similar ,results*
In either event. the Court has generally imposed liability. for the resulting
damages. 4J/ In such cases as wll as in cases..involving drainage rights,
,the. Court has developed and applied the oft.quoted u.lle that .one. my ,acel-
era~e and increase the flow of:a natural vatercourse, but. not ,divertit .48/
These cases, oweveer, generaJly involved the question of liability for
, thereby flooding or,casting the water onto another s land, rather. than any
liability for reducing the flow to a lower riparian owner, B ut in, one
:casethb Cqurt indicated.that compensation must be paid for diverting part
,of the stream's. flow into another waeyrhed. if this materiallyredued ,ed
the flow to a lower riparian owner 'sml3i, pausing material damage. g/
In a number of case, including the Dunlap case, .the Court has .made
statements substantially as follows: (1) ,"Every riparian owner, ha. property
right to the reasonable use of running water for manufacturing purposes* as

:4I, Compalre Craft v, .Norfolk and S.. CQt.9 ,36 1 gC. .49. ,.E 57:
+ (la) a3.u.ellen v. anal oM, N.C. 4'9W 11 S,. 027 (l902), with
Porter v. Durham 7.q.C, ,767(878). and .Jackson, v. earaus 185 [,.C. ,4l7w
117 S.E. 345 (1403);%.
48/ Porter v. Durham, .74 _N'.C. 767 (O788),; Craft v. No~fo k and .R' Co.,
13.N.C. 9, 48 S.EC, 579 (1904). J-ckson v. learns,, 185 .,C. 17, li3 .E.
345 (1923); .ocutt. v. W.R. Co,, 124 MiC. 214, 3P2 S.E. 681 q4899); &risqe
v YQUOg, 13 N0,C,>86, 42 S.E, 893 (19P2). ,see also Plemins .,-,4. Co.,
115 N.C. 676;, 20 s.E. 714 (1894) and Mullen v. Canal Co., 10 C, 496,
4-1 S.E.. 027 (1902).,- (See Artificial Watercourses, and r ga.- ge, post.)
/ Wt liamson v.. Canal CoC 78- : C..156, .159 (188). .. ..i :.
.... ". : ... ".i I : 'C ::' :."i
S, .1 .






22
well as for domestic and agricultural purposes conformable to the uses and
needs of the community, qualified only by the requirement that it must be
enjoyed with reference to the similar rights of other riparian owners," 50/
or (2) "a riparian proprietor has the right of their flow past his lands for
ordinary domestic, manufacturing, and other lawful purposes, without' In-
jurious or prejudicial interference by an upper proprietor." 51/ Although
such general statements may tend to refute any distinction between types
of uses, the question of diverting water from a watercourse often was
not involved,, j/ and such statements 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. As indicated above, the Court in some cases has used
language tending to support two or more different criteria on the extent of
permissible use. L/
In any event, whether a particular use is reasonable is ordinarily a
question of fact, to be determinedly a jury (unless 'aived or an injunction
is sought and no jury is impanelled), 5/)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. '/ Damages may be
-I
50/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E.
437 46 (1938)
51/Smith v. Town f Morgantown, 187 N.C. 801, 123 S.E, 88, 89 (1924).
5 See,, e.g., Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195
8.~4 3, 46 (1938); Bruton v. Carolina Power Co., 217 N.C. 1, 6 S.E.
2d. 822 (1940).a :
SSee also City of Durham v. Eno Cotton Mills, 141 N.C., 615, 54 S.E. ,
4539 456-457 (1906), where the Cort -employed 'the words "with undiminished
quantity and unimpaired quality", "without material diversion or-~ipoilution!,
and "without any unnecessary or unreasonable diminution or pollution" all
in the same case.
s4/ City,6f Durham v. Eno Cotton Mills, 141 N.C. 615,, 54 S.E. 453, 457
(196) (Injunction requested, Oburt determined facts without jury.)
55/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43, 48
(1938) (action for damages). See also Blue Ridge I.Ry. Co. v. Hendersonville
Light and Power Co., 169 N.C. 4714 86 S.E. 296, 298 (1915); and Harris v.
Norfolk and W. Ry. Co., 153 N.C. 544, 69 S.E. 624,625 (1910).






83 -

recovered. n oera*O cases fpr anyi wateri~ diversion or material injury,
as discussed above, but the, granting of an injunction is seldom a matter
of right.and often may depend uponP what the Court considers to be just
and reaspable under the circumstance.; (See Leg4l Remedies, post.)
Time of Use end effect 2 ofa Homue

STh ourt,~early deeded that the .ne when a particular use of a water-
course was :beqgu r creates no priority or inferiority ip relation to other water
." uses. / Moreover, the fact that. ones rights of use have not yet been
exercised apparently does not affect #te right -to use the water later, 2/

e, xcest in special cases as when prescriptive rights are acquired (see
Prescription, post), in the case of estoppel (see .

Estoppe., post ). ,or as -between different milldam owners or power companies
who: aMke- use of certain ,Conemnation powers. +(See Condemnation and Related
Proceeding, post.)
,Failure to make use of the.vater, however, may haye an effect upon
whether ean injunction against other uses. of the watercourse will be granted,
or upon the. aamount-of. damages if any, that e awarded. (See Legal Remedies,

post.) It an- early case, the Court said
"...*sery-owner .o land on a stream necessarily and at all times is
using water running "through it--if i no other Manier*, in the fertility
:it imparts to his land, and, .the increase in the value of it, There
iq therefore no prior or posterior in the use; for the 'land of. each
enjoyed it alike roM. the origin of the stream; and the priority of
a particular new application +or artificial use of the water does not
te, refoa g .ate the right to that use; but the existence or. nonexistence
of that application at a particular time measures the damages incurred
by the romgfiT actjoa4 n anoth,r..
"' .. ... : ; ,. ;B '"" ** '. '++ ", ;' 1

5 Pugh v. Wheeler, 19 N.C. 50, 55 (1836).
SPugh v. Wheeler, 19 N.C. 50, 55 (1836); Smith v. Town of Morgantown,
18'-r.C, 801, 123 S.E. 88, 89 (19241).
/ Pugh v. Wheeler, 19 N.C. 50, 55 (1836).
.. i %r+ + '% .. :1;, ;






-24 -


In a later case, the Court said that riparian rights "are Ubt- depen-

dent upon the owner bs actual use or appropriation of the flowing water." It
held that even though a riparian owner hid made no practical use of the

stream this would not preclude his recoVering ermanen 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. 5/
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. (See Condemnation and Related

Proceedings, post.) The Court did not 'indicate whether future uses were

or could be considered.
in another case, the Court said that there would be no liability for

diverting water from a watercourse to water locomotives on riparian land
except for injury to some legitimate use being made of the water by the

complaining lower riirian owner,. (even though it was a suit for permanent
damages). This was followed, however, with the statement that there may be

liability to a lower owner "who suffers a substantial injury thereby," At
any rate, the question of the nature-of the damage required to impose liability

does not appear to have been directly involved in the determination of the
case. 60 The Court indicated that the complainant's evidence tended to
show material diversion and material injury to the complainant, in that he
h:. ..had to shut down his mill. But, as the evidence was conflicting, the Court
held that it was properly left up to the jur, which appears to have
decided that there was no material diminution of the flow and hence no
liability,

59/ Smith v. Town of Morgantown, 137 N.C. 801, 123 S.E. 88, 89 (1924).
0 Harris v. Norfolk and W.Ry.Co., 153 N.C. 542, 69 s.E. 6239 624-625 (1910).






25 -

Definition of Riparian land and Use of Water on Nonr rian 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. It discussed, but did not definitely decide, these

questions in the recent case of Young v. City of Asheville et. al. (1955),

in which 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 land-

lord had obtained permission from any riparian landowner to use the water-

course. 61/ 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 land would extend

or attach to another tract of land not in contact with the watercourse, which

had been purchased separately by the farm irrigator's landlord. 62/

l/ Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408, 415 (1955).
The Court also noted that he had shown no prescriptive rights to use the water-
course. The possibility of obtaining such rights by long-continued adverse
use is discussed under Prescriptive Rights, post.
62/ These questions are considered in a case note on "Riparian Rights," by
J.7. Alspaugh, in 34 N.C.L.R. pp, 241-253, Feb., 1956. The writer concludes
that these questions are unsettled in North Carolina and discusses the
position taken on these questions in other States. Use of water on nonriparian
land has generally been held to be unlawful, particularly if it causes actual
damage to a complaining lower riparian owner. Such nonriparian uses as may
be permissible would be on a more or less temporary basis, until such use
interferes with riparian uses of the watercourse. In only a few States do
the reported Court decisions hold otherwise, although in some States the
question has not been clearly decided. See Ellis, Harold H. "Some,
Current and Proposed Water-Rights Legislation in the Eastern States," 41-.
Iowa Law Review 237, 257 (Winter .1956).
/ t d~'~ L






26 -

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, nor whether the

farm 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 ob-

tained, (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 could

conceivably 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. 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 up a

claim to its enjoyment must show that he is riparian proprietor or that

in some way he has acquired -iparian rights in the stream. 63/ In this

63/ City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453, 457
(1l06). This was practically Identical with the Court's later statement in
the Young case, 241 N.C. 618, 86 S.E. 2d. 408, 415 (1955).






-27-

case a city hbd :sued' a- a.ling company upstream for polluting the stream.

from whiththe*ity obtained its water supply There was evidence that the
water company that supplied the city "has a plant abetting on the, river",p
but it; had not joined in the lawsuit and there was no evidence as to "what
kind of, contract .it has with the city for furnishing ter,." The, Court said
b&that if the city .ereia riparian owner or had riparian rights in the stream,
it might have a cause ,of actiponf.or any unreasonable pollution, that caused it
.actual or 4iuinent. damage, But the case was decided on other grounds.
In a later case (in 1941) the Court held that the use of a watercourse for
a ocifty* water supply would give a lover riparian. owner a right of action for
damages suffered, on the grounds lthat the water was be used pn nonriparan
lanAp, notwithstanding that the city may have owned riparilan land at the,point
of diversion. W./ This appears to be about the clearest stan; that. has been

tas:e by. thee Court against the valiJity of nonripariap use, although it
raised a:': related question concerning whether use for municipal water supply

purposes should., be considered a- use properly connected -with the ownership.
and use of riparian land. 6/ (Another type of use that has been questioned
on .4uch :grounds .in sGae other States is the: watering of train locomotives from

a stream while on. riparian land owned by the railroad company. H however,

64/ Pernel v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449 (1941).
al.The Court .noted tfArtIr scht ete ive.use, cana qualify as ordinary,
domestic use and noted that it would involve the sale and distribution of the
water to the public. The Court has consistently permitted t eight of action
bby oiwer riparian owners against use of ,watercoQuses for municipal water
supply purposes, but, except forl the Peanel case, withoutt emphasizing the
nonriparian character of such.use. (See .Municipal or Public Water Supply,
post-)
66 See, for example, Elliot v. Fitchb,urg RR. Co., 64 Mass, 191 (1852) as
construed in Stratton v. Mt. Hermon Boy's Schoold 215 Mass. 83. 103 N.
7 (1913) "






28 -
the right to such use, so long as there is no material diversion or damage
to a lower riparian owner, has been upheld by the North Carolina Court-
without raising this question. 67/

In a more recent case (in 1950), it was alleged that the defendants
were nonriparian owners and used stream waters in mica mining operations,
discharging their mining wastes into the stream to the damage of lower. riparian

owners. The Court implied that the nonriparian nature of such use would
affect their liability for such damage, but didn't indicate precisely what

effect it might have. 6/
A further limitation in some States has been that waters in a water-
course ordinarily may not be lawfully used on land lying beyond the edge
of the watershed. 62/ This question has not been decided nor expressly
considered by the North Carolina Court. In the Young case discussed above,
the land irrigated appears to have lain within the watershed. The question
might well have been raised, but wasn't, in some municipal water supply cases
and an early case in which the use of water for gold mining purposes ownr
2,000 acres was contemplated. TO/

The Court has said that ordinarily a lower owner must show that -he
owns land "along or adjacent" to a stream to be able to enjoin an upper
municipality from polluting a stream if it doesn't furnish a public water
supply. 71/ (The pollution of streams that provide public water supplies

7/ Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623 (1910).
Some cases in other States were discussed, on p. 625.
68/ McKinney v. Dennen 231 'N.C. 540, 58 S.E. 2d. 107 (1950).
6 56 Am. Jur., Waters, sees. 277-278, See also Comment on Riparian
i s by J.A. Alspaugh, op. cit.
70/Walton v. MillS, 86 N.C. 280 (1882).
1)/Banks v. City of Burnesville, 228 N.C. 553, 46 S.E. 2d. 559 (1948).








Is.- subJect to speil .legislatioe n.,.P ~l1utonqtf t.). t if the

questionrwvexi e poaltion of the air 83aa;w athe ,weatr. one xneed nor neces-
saftly be a riparian owner to recover. .In one ,case, ,recovery of, ,"dapsge 10


of bth.etreanpollurte& e court .andiqated that, ripartan owner!sp4. w ,

not requiredowhen one'a p ag lay peas eough to suffer damage- ftro te stench,

amounting to a nuisance through air pollution. / uTbh Court 4if coated

lilcirtsein a: case Iy.which a part ,ofthe ;cpipltnant'p ,land cpnstL ng of
': three.tracts )i.3ay, a t:lf.- nle frcm the;st3etap /,, The Cort .sap t l er-

matted a right of action in cases in. wh.pch nonriparian lands have suffered

direct damage, such as from flooding caused by. dams.. (Se_.?, Detention or

Obstrattion et Water with Dams, etc ,* post.)
; IT Moreover aStheugh1 nonripariparn seotherwise might upt bb Jawul, a

.right to make such use a.y be acquired thorpugh the, xe c.e .of condemnation

papers vo related proceedings, for such pwuroaes, u~per_.prescried circum-
stanct (s s. somaettees may elo.-e legally jpert~ssible, as- against ppe. or more ritarian

Slandomoeras :by -perfecting prescriptive ,right. to do so (see Prescriptive.

Sights, posit),-r ion ithe p4I4npa of estoppel (.ee .ato gelt,, p; I/

.'72/ Rhodes v. City of Durham, 165 N.C. 679, 81 s.1. 938 (191~).
71T DonneT-v. City of Greensboro, 16 N. C. 330,- 80 8.. 377 (191),-citing
Broa y.T..emicalp 62 162 X 3.85770.EL. pot (1913) n supPortv of its
position., 0i a ..Lb.t.. ..
74/ AJV fre'Ad*d ioI cases involving Arperpar4l nt.sa ape i e a uder
c p j* y p,.q tblACWter s, Tplyr pofty and Pollution,, ,ee!,so
."vags"rc. a? A.sig.B.pept c.a Water ,Rights post: t ...,.;
'|/ Also jee Balancing of Interests, Bqu?4tips s:or Conveniences,; pos% .
................................ ..............~~ ~:~,-;:,

... .. .. ::.~ (


____~ 1~1~


_m .........






-30-

If oTe of 'waer fr~o a watercourse on nowzipeian land t18 a' .,unlawful
type of use, whether by' a riparian owner o i his nonriparian land. or by a
nonriparian owneri -iih the' riparian eQierts permission, there remain-4a.o
further questions to -t reviewed as t- the legal effeCt of such use.A In-
two of the cases discussed above, the Court indicated that such nonriparlan

use ordinarily would have the effect of precluding any right of action by
the one making it, as against others upstream 'for polluting his source :o,.

supply (except as was noted, :in the case of public water supplies), '/In
these tw,6 cases the Court also noted that any right of action would likewise
be precluded against the diminution of the stream's flow by others upstream,
although this question was not directly involved.
In another case, the Court indicated that the use of a stream for muni-
cipal water supply purposes vaI- a noi iparian use and woEld give rise to a
right of action on behalf ofa lower riparian owner. '" The Court perhaps
implied, but did not state expresslytb:: at such nonriparian use-may be va-
lawful Ir se .and give rise t a right of aBtion regardless of whether ag
lower rri~prian" owner has suffered any actual or imminent large ~ a-In.an earlier
case where a`lower riparian over 'sued a city for taking its water supply from
a watercourse, the Court permitted damages t' be awarded Thr loss of value of

riparian land, even though no practical use had been made of the water. /

6/ Youngs. City of Asheville' 24 NW. 618, 86 S.E' 2'. 2 .08(1955)i City
o Durham v. Ppo Cotton Mills, 54 S.E. 453 (1906).
7/ Pernell v. City of enderson, 220 NO,' 79, 16 S.E. 2C. 449 (1941).
/ Smith v.'T; n d6fkMorgantown, 1871-l.e. 801, 123 S.E. 881 (1924), I
If the rule were definitely adopted that such nonriparian %se' ''lii aw-
ful" ir se the i~ Cut might permit a right of action b- behalf3f &i lower
ripar~an"7wner partly to prevent the possibility of the nonriparian user's
perfecting prescriptive rights to continue such use. On the other hand, if
no right of action against such use arises until some riparian owner or the
public suffers some actual or at least imminent damage, the period of time
needed to perfect prescriptive rights might not begin to run until this
occurs. (See Prescriptive Rights, post.)






31 -

But in that case the Court did not stress the nonriparian character of the

use, Also, it was a case in which ermanet damages were awarded. In such

an event, foreseeable future damages might be considered. 9/ (See Legal

Remedies, post.)

Priorities or Preferences Based on Type of Use

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

course possibly would receive a certain priority or preference over other

types of use. But this has not been definitely decided, as will be discussed

shortly. More favorable rules may apply to the detention of waters in a

watercourse than to the removal or diversion of waters from it for various

purposes, such as irrigation or mining, although this, too, has not been

definitely decided, as was discussed earlier. The Court has held that use

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

of a watercourse and compensation should be made for any damages to lower

riparian owners. (See Municipal or Public Water Supply, post.)

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. Frequently,

this preferential treatment has taken the form of denying an injunction

against such uses although requiring payment for any damages. 80/ Certain


Z/ Permanent damages possibly were also involved in the Pernell case
discussed above, but this was not expressly indicated.
80/ See particularly The Balancing of Interests, Equities, or Conveniences,
post.






32 -

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

legislation, although agait payment for any damages usually has been required

by such legislation or by the Court. 81/

Domestic or Other Natural Uses

In the early case of Pugh v. Wheeler (1836), which involved a dispute

between two millowners along a streamthe Court indicated that the small

nonnavigable streams in the State were to be treated as publicc uris,

so far as to allow all persons to drink the water, and the like; and also,

so far as to prevent a person to whose land it comes from thus consuming

it entirely, by applying it to other purposes--to only a very few is any

other use reasonable; and--therefore--legal." 82/ The Court went on to say

that owners of land through which a nonnavigable stream runs may apply it

to purposes of profit which, however, "do not affect it as the aliment

provided by nature to nourish animal life," 83/ The Court also said that:

"If one build a mill on a stream, and a person above divert the water, the

owner of the mill may recover for the injury to the mill, although before

he built he could only recover for the natural uses of the water, as needed

for his family, his cattle, and irrigation." (Italics supplied.) 84/ The

81/ See, e.g., statute giving mica andkaolft miners certain privileges
to acquire access to and to pollute streams, and milldam legislation, dis-
cussed under Pollution, and Condemnation and Related Proceedings, post.
82 Pugh v. Wheeler, 19 N.C. 50, 54-55 (1836).
This was quoted, without amplification in Dunlap v. Carolina Power and
Light Co., 212 N.C. 814, 195 S.E. 43, 46 (1938). The question of domestic
use or stock watering was not involved.
84/ This statement was quoted, apparently with approval, in Cook v. Town
of bane 191 N.C. 1, 131 S.E. 407, 409 (1926). The case involved an
action against the use of a stream as a municipal water supply brought by
a lower riparian millowner. Any other uses which the millowner may have
made of the stream were not shown.






33 -

Court possibly meant simply the irrigation of a garden or pasture for home

use, which may have been the most common type of irrigation at that time.'

These statements suggest the possibility that, as to nonnavigable

streams, (1) "natural uses" may include drinking water and other family

household uses, the watering of cattle, and possibly even irrigation, (2)

natural uses may be preferred over and protected against other types of

uses, and (3) rights to make such natural uses, at least for drinking water

purposes, may not necessarily be limited to landowners adjoining the stream.

But this latter possibility may have been negated by the Court in City of

Durham v. Eno Cotton Mills (1906), in which it noted that:

"All streams, however, are public juris, and all the water flowing
down any stream is for the common use of mankind who live on the banks
of the stream; and therefore any person living on the banks of the
stream has an undoubted right to the use of the water for himself, his
family, and his cattle, and for all ordinary domestic purposes, such
as brewing, washing, and so one. Those are the common purposes of
water in the ordinary mode of using water." 85/ (Italics supplied.)

This case involved the question of pollution. Some of the water uses

that caused the pollution possibly were considered to be domestic uses,

but this was not clearly indicated. The Court also noted that:

"There are some uses which by common consent a riparian owner may have
of the water, as it flows upon his premises, although such use may to
some extent interfere with the use of the stream in its natural flow
by the proprietors below. As, for example, the proprietor above may
use the water for domestic purposes--the watering of cattle, and the
like--although such use may diminish the volume of the stream to the
detriment of lower proprietors. The right to such uses, without
which all beneficial use of the water by the riparian owner would
be prevented, is allowed, ex necessitare, and is universally
recognized." 6/ (Italics supplied.)


8/ The Court was quoting from an old English case. This negation may
also be supported by statements in other decisions, discussed below,
to the effect that the riparian doctrine applies to domestic and other
uses without any particular distinction being made between them.
/ The Court was quoting from a New York case.






34 -
The Court added: however that the .defendant, being an upper riparian
owner was "entitled to the ordinary use of the water, including the right

to apply it in a reasonable manner to domestic uses and even to purposes of

trade and manufacture," but that he could be held liable for "using the

water of the stream in an unreasonable manner." 87/

In Pernell v.1 City of. Henderson (1941) involving municipal water use
,(distributing water taken from a stream "to the inhabitants and users through

a water system in the usual way") the Court noted that in making such use

a city "is not in the exercise of the traditional right of a riparian owner
to make a reasonable domestiC use, of the water without accountability to

other riparian owners who may be injured by its diversion or diminution." 88/

It would appear from the ,foregoing that domestic and possibly certain

other natural uses might be preferred over, and protected against, other

types of uses. The statement in the Pernell case suggests that such uses

might be exclusively preferred over ,other types of uses. Some statements

above from the case of Pugh v. Wheeler also appear to suggest such an ex-

clusive preferences, although; the statement on safeguarding the use of water

for animal life may have been intended simply to prevent pollution. 'Some
of the above statements in City of Durham v. Eno Cotton Mills may also lend

some support. However, in a number of.other cases in which the Court adhered

to some version of the riparian doctrine of reasonable use, this doctrine
was said to apply to dcmestio or natural and other uses, without making any

particular distinction between them. (But, like the cases discussed above,
the statements regarding domestic or natural uses appear to have been

largely or entirely incidental rather than directly involved iathe Court's

87/ City of Durham v. Eno Cotton Mills, 141 N.C. 615 54 S.E. 453,
45 457 (1906).
88/ Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449, 450-451 (1941).






- 35 -


determination of these cases. Such statements are commonly called "dicta"
in legal parlance.) 89/ In one case the Court said:

"Every riparian owner has a property right to the reasonable use
of running water for manufacturing purposes as well as for domestic
and agricultural purposes conformable to the uses and needs of the
community, qualified only by the requirement that it must be enjoyed
with reference to the similar rights of other riparian owners."

The Court added that:
"What constitutes a reasonable use is a question of fact having regard
to the subject matter and the use; the occasions and manner 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 b one party and the extent
of the injury caused by it to the other." L/

From such language, it could be argued that the Court felt that there

should be no inflexible system of priorities by type of use. But it does

not necessarily follow that this negates the possibility that domestic or

9/ Williamson v. Canal Co.o 78 N.C. 156, 159 (1878), (incidental statement
on watering of stock, without amplification); Walton v. Mills, 86 N.C. 280,
282 (1882), (incidental statement on "domestic purposes"); Blue Ridge I.R.
Co. v. Hendersonville, 169 N.C. 471, 86 S.E. 296, 298 (1915), (incidental
statement on "domestic purposes:); Smith v. Town of Morgantown, 187 N.C.
801, 123 S.E. 88, 89 (1924), (incidental statement on "domestic purposes");
Dunlap v. Carolina Power Co., 212 N.C. 814, 195 S.E. 43, 46 (1938), (state-
mentspossibly incidental, on "domestic purposes"); Sink v. City of Lexington,
214 N.C. 548, 200 S.E. 4,5 (1938), (incidental statement on "domestic
purposes"); Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449,
451 (1941), (statement, partially incidental, on "domestic purposes,"
including the right of riparian owners to operate a collective water dis-
tribution system for such purposes); Hampton v. North Carolina Pulp Co.,
223 N.C. 535, 27 S.E. 2d. 538, 546 (1943), (incidental statement on "domes-
tic purposes"). Neither stock watering nor any other domestic use, nor
irrigation, was definitely involved in any of these cases, except for
Pernell v. Henderson, where a city supplied water for domestic and other
purposes. There are also some cases of pollution affecting particular
domestic or other natural uses. See, e.g., Eller v. Bd. of Education 242
N.C. 84, 89 S.E. 2d. 144 (1955).
_/Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
46 7 (1938). The Court's statements concerning domestic use may have been
largely incidental, although the loss of fishing "and other ordinary uses"
of the plaintiff's property was alleged. The Court held that recovery could
be allowed only for direct damage to the banks of the stream (nd any loss
occasioned thereby) caused by defendants' operation of its hydroelectric dam.






- 36 -


other natural :uses might generally enjoy a preferred position on the ground

that these may be "necessary uses," as stated in City of, Durham v. Eno Cotton

Mills.

No North Carolina case has been found which deals with or expressly

considers the following two questions:

1. What are the relative rights of two or more domestic water .Users

from the same watercourse? The statements quoted above frcanthe cases of

Pernell v. City of Henderson and Pugh v. Wheeler suggest that the:. upper owner

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

poses, irrespective of its effect on a lower owner's domestic or other

needs. 91/ On the other hand, there are a number of cases, as noted above,

in which the Court has stated that the reasonable use rule applies to domestic

and other uses, with the rights and reasonable requirementsof each riparian

owner qualifying the rights of the others.

2. Would the preferential treatment, if any, accorded the use of. water

for watering cattle, extend to the watering of commercial livestock herdsa

or would it extend only to a few head of cattle kept for home use and

consumption? The latter 11mitation was not expressly added to the state.

ments on watering of cattle in the cases discussed above, 'but the" watering

of large numbers' of livestock might be refused such preferential treatment.


91/ The language in some other cases also suggests that the upper owner
also may be in such a position with respect to certain other laful iues '
of the water* .In two cases,'the Court quoted with apparent approval from
other legal authorities to the effect that "the upper owner has the right to
all the advantages of drainage or irrigation, reasonably used, which the
stream may give hbi but these cases involved drainage, not-irrigat'ion
Jenkins v. Wilmington R. 3. Co 110' NC 438. .E. 193, 194 (1892), '
Rice v. Norfolk and C.R. Co./.130 N.C. 375, 41 S.E. 1031,I1033, (1902).
In the former case Angell on Watercourses.~ 'while. in the latter case, a
Pennsylvania court,. were quoted to this eftect.


I _







37 -

Commercial dairy and other livestock uses were protected against pollution

of their drinking water (from streams or otherwise) in some cases, but

without expressly considering this question. 92/

Domestic uses are mentioned in certain statutory provisions but without

further clarifying the meaning of the term or the question of any priority

to be accorded such uses, except that they are perhaps given somewhat

greater legal protection against pollution of their source of supply. For

example, N.C.G.S. sec. 130-109, relating to the inspection and prevention of

contamination of waters by the State Board of Healthauthorized the Board

to determine which waters "are adapted for use as water supplies for drink-

ing and other domestic purposes" and to take various measures to prevent

their pollution. (See Pollution, post.)

Use of stream waters for municipal or public water supply purposes

has been held not to qualify as ordinary domestic use. (See Municipal and

Public Water Supply, post.)

Irrigation

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

regarding the use of natural watercourses for farm irrigation purposes,

other than the Court's decision in the recent case of Young v. City of

Asheville et. al. (1955) that the farm irrigator involved could not recover

damages for pollution of his irrigation water since he had not shown that he

was a riparian landowner or otherwise had acquired any lawful right to use

the stream. 93/ But there are incidental statements in at least five other


92/ Oates v. Algodon Mfg. Co., 217 N.C. 488, 8 S.E. 605 (1940); Finger v.
Rex Spinning Co., 190 N.C. 74, 123 S.E. 467 (1925); Rhyne v. Flint Mfg.
Co., 182 N.C. 489, 109 S.E. 376 (1921).
93/ Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408 (1955).






-38 -
cases, discussed below, to the effect that irrigation may be a lawful
use to some extent. In two cases, the Court even stated that irrigation is

a "natural" use, although this possibly had reference only to irrigation

of a garden or pasture for home use. As such, it might possibly enjoy a

certain preference over some other types of uses. (See Domestic or Natural

Uses, ante.)

In an early case (in 1836), the Court referred to a riparian owner's
right to "the natural uses of the water, as needed for his family, his

cattle, and irrigation." ,/ (Italics supplied.) In two later cases

(decided in 1892 and 1902), dealing with drainage into a natural watercourse,
the Court quoted other legal authorities, apparently with approval, to

the effect that a lower owner along a stream, 'must abide the contingency

of increase or diminution of the flow of water in the channel of the

stream, because the upper ownerhas the right to all the advantages of

drainage or irrigation, reasonably used, which the, stream may give him." /

In a case in 1878, irrigation and certain other uses of a watercourse

were said to be reasonable riparian uses, so long as this doesn't "mater-

ially damage those above or below." 196/ In 1938, in Dunlap v. Carolina
Power and Light Co., the Court said that:

"It has become a well-established principle of law in this and most
of the other jurisdictions that any substantial diversion
of waters or the pollution of waters of a stream gives rise to a

.l/ Pugh v. Wheeler, 19 N.C. 50, 55 (1836). This statement was quoted
apparently with approval, in the later case of Cook v. Town of Mebane,
191 N.C. 1, 131 S.E. 407, 409 (1926).
95/ Williamson v. Locks Creek Canal Co., 78 N.C. 156, 159 (1878).
6/ Jenkins v. Wi1mington R.R. Co., 110 N.C, 438, 15 S.E. 193, 194
(12). Rice v, Norfolk and C.R. Co., 130 N.C., 375, 41 SE. 1031, 1033
(1902). In the Jenkins case the Court was quoting Angell on Watercourses,
while in the Rice case a Pennsylvania court: was quoted to this effect.







39 -

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."

This would tend to imply that the right to use stream waters for irri-

gation purposes in North Carolina is rather limited. The Court added,

however, that:

"Every riparian owner has a property right to the reasonable use of
running water for manufacturing purposes as well as for domestic and
agricultural purposes conformable to the uses and needs of the community,
qualified only by the requirement that it must be enjoyed with ref-
erence to the similar rights of other riparian owners." Z/
(Italics supplied.)

It might be argued that "agricultural purposes" was meant to include

irrigation; which was not shown to be involved in the case. But the Court

went on'to say that:

"The statements that a riparian owner'has no right to use the water
to the 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 sue. 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.' /' (Italics supplied.)

Irrigation would appear to involve "diversion" of waters from the stream,

unless the Court meant to limit this term to the diversion of the entire

course of a stream, which seems doubtful. (This case was discussed in

greater detail under General Development of the Riparian Doctrine, ante.)

The above-mentioned case of Young v. City of Asheville, et. al. (1955)

involved an action by a farm tenant to recover damages for the loss of vege-

table crops because of pollution of the creek from which the water was

taken to irrigate the crops. The action was brought against the city


7/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
46 1938).a v.*
98/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
47 11938).






-40 -
and a water and sever 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 vegetable crops to such

an extent that the State Commissioner of Agriculture obtained an injunction

that forbade their sale. The vegetables were consequently cut up and disked

into the land. with an alleged loss of $17,000.

The lower court awarded $49500 damages, but the judgment was reversed
on appeal on the grounds that the complainant had failed either ,to allege

or to prove that he was the tenant of a riparian landowner, and that he had

alleged but failed to present evidence that the right to use the stream for

irrigation purposes had been obtained from any riparian owner, by contract or

otherwise, ~ / 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 edge of the rail-

road, not the creek, and hence the land had no actual contact with the

watercourse. The Court further raised a question (but reached no decision)

as to (1) whether a nonriparian owner could acquire any legal rights to use

of the watercourse by obtaining permission from a riparian. owner, and (2)

whether riparian rights which accompany the ownership of riparian land would

extend or attach to another tract of land, not in contact with the water-

course, which had been purchased separately by the complainant's landlaoc

(These questions were reviewed earlier, under Definition of Riparian Land

and Use on Nonrlparian Lands.)

Nothing was expressly said by the Court as to whether irrigation is a

proper type of riparian use. The Court simply concluded that the complainant

2/ The Court also noted that he had failed to allege or present evidence of
any presriptive rights to irrigate from the stream. (See Prescriptive Rights,
post.; Certain otner aspects of the case are adscussec uncer uevelopmentorf he
Riparian Doctrine, ante, Definition of Riparian Land etc. ante9 and Pollution post,






41 -

hadn't adequately alleged or proved that he had any right to use the

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

from it. The Court added that: "Therefore, the plaintiff has not shown

that he or his lessor have J right to have the waters of Beaverdam Creek

flow with undiminished quantity and unimpaired quality" 100/ This had

direct reference only to the question of quality (pollution). Whether the

Court meant to infer that a riparian landowner may not materially diminish

the quantity of the flow by irrigation or otherwise is problematical.

The serious implications of the Young case for farm irrigators is

obvious. As a minimum precaution, they would do well to take care that the

land irrigated has actual contact with the watercourse to help avoid con-

sequences similar to those in this case. 101/

Administrative Permits for Irrigation. The North Carolina Legislature

enacted a statute in 1951 that provides:

"Any person, firm. or corporation utilizing waters of North Carolina
Staken rorn r ll1g^^^^
a as s tial reduce re for
t purpose r on s e oe thisng "FreS3Ti
ths inner mae a on o e record of t e n o
CUs or shuse. Such person,,-
firm, or corporation shall fi with the Department of Conservation
and Development .a proposed irrigation plan and survey. The Director
of Conservation and Development Is hereby authorized to investigate such
a plan asd pu s and pbli t and to approve plans and speci-
fication-nd pe rm "ST

100/ Young v. City of Asheville, et. al., 241 N.C. 618, 86 S.E. 2d. 408,
41771955).
10/ Among other considerations regarding irrigation, N.C.G.S. sec. 54-111,
et. seq., expressly permits the formation of mutual associations or companies
to conduct an irrigation business. (Also recall the legislative policy state-
ment regarding protection of water requirements for "agriculture," etc.,
discussed under the State's Policies Regarding Water Resources, ante.) But
this does not necessarily mean that the use of any particular source of
water for such purpose is lawful.
102/ N,C,G.,S secc 113-81,


j






42 -

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

questionable whether any substantial legal rights, as against riparian owners

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

The statute apparently would not purport to have any substantial effect

upon riparian rights, other than that certain administrative requirements

shall be met in exercising any such rights. Moreover, the statute is silent

Regarding 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 reser-

vations 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 Department to be in conformity with'the provision in the statute that

authorizes the Director to investigate the applicant's proposed irrigation

plan "as to safety and public interest. :" 0/While the safeguarding of

municipal water supplies is in line with other legislation favorable to the

acquisition and protection of such supplies, discussed later; 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. (See Municipal or Public Water
"------- ------------, -
Supply, post.)
, L "
10_/ Statements herein regarding the administration of the irrigation permit
system are based primarily upon correspondence and conversations with B.C. Snow,
Chief Engineer, and L.H. Clarke, Engineer, Division of Water Resources, and
upon forms used for making applications and issuing permits.







-43 -

There have been" very few Instances; iRt wthith a permit war issued for a lim-

ited tiie period. This was d ie because the permittee had indicated that he

intended to later acquire and4her souice"of supply or that he was a farm

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

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

investigation.

It would appear that priority in time of a.ication or use has little.

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

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

the same stream. Each permit relates tb specific land to be irrigaed as

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

and is regarded as not transferrable, 1-
While permits are not sg de subject to riparan rights they

are continually hld in mind and arded ainst. Such preca cnists

primarily in advising the permitted o the;risks he is taking in cases-vhere

several permits already have been grated to others downstream. But the

Department has Inever refused to issue a it" Ja.s it ever rievked or

limited -a t r* a- beach permit includes a provision

regarding the maikium rate of diversion This is bas upon

capacity (at peak efficiency) of the' irrigaton equipment that the applicant

proposes to employ and is estimated to average around .8 cubic feet per

second, or around 360 gallons per minute. Not l included, however,
regarding' the maintenance of any minimum or other stream flow fok the

benef it of those .downstream.

10/, A separate permit is issued for each point of diversion if the
applicant diverts water from two or more watersheds.


I _






44 -
&, j DeP;zrtM~nt geleeiuss:l eakc a geoial effort to deter.m whether

o. i.-the applitsanu is 'ariparUin landowe:. .I'3lyl4 f tShe, pyrmits- haeq been

issued to person, oni aidiAn ggbctpT, -tp.q sreaz Qr other source

of: 1toer. I: M )feta rm. BjarfuqdcL hoiverv:jn: t4,e; "3 P BDer of ;8-

taeces here. it as ,known.'that. none of the land to.be ir2isai..ecaPsln
contact with the stream. It is generally assumed in such caes., ta.bt he

: 'user. has or will haveju ior to ahe use obtained, a right-of-ay fram the

:rPa~i Lj4QMPg gr4PIWt_* rAi p ',rS erze.Qv -,r Pr. fupdeb the land- of


t. : The pp14icable 1egis.latio ; i aloe ofIa.44 ream.,orother

#b.t*-:erm 0eouve to whihtiQ tapp.ies. gpetp? ent regards; a natural channel
with a defined bed and banks ao aist.eir9 ,qeY though ~. :imy a fp .only .in

certain aeatt~oa;ad- 9A pp~,prportio pt -s permits have been ,sued with
; respect ,t@;such-, "streams", 15/ oPt of. t.e permits issued re.ate.to rela-

S. tively small streams, vwhle, very few relate to streams large enpouh to be

considered nai*gable y. D

N10,_ objections refgadig 4he Pepaqaet's ptcqduiF" ba beeu-pade ,.to

$4: t connectlpp vbana the .permits or9t an 70i thnich had .been

;,isued -byx ugust 4,195, ; ;4lthogi tB relqava letSlitog RU pssed

U;...: -195Qgy only; a fev eavplicat4ons Tpr zd.0rg r tyd priwpr.e o
m~4dle of. 19~5gpart 3because of the..f xmerg' lack. ofk qppvledge .bout the
\ e ist. ,e .;.th e egisa ..

bya5lre bqg:;,nao expires .p vB 1r enfoqing .the statute,, the
Department makes no attempt to enforce complji~ ~ it .,,its ters. I1 s


o9~/ But..wtbp u4e. o0 a .agserea un steem hae been deed e be subject
et o is legislation. :







-45 -

estimated that there are numerous famers covered by it who have not

applied for a permit,, and there may be others who are violation tbhlr ier-

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

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.

Sometimes certain additional information is obtained from the UTS.D.A.'s Soil

Conservation Service in cases where it h~A rEtd l -sMta-1

in the construction of a dam, pond, or other structure. Loverr Il ran

owners normally are not contacted or given notice of the application,,nor

is any hearing held thereon, athe statute doesot reaufre 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 normal ~ iss~i8thin a week after,-the-applauion

isreceye. The frequency of aPPltosona, i .gaggg b c.. But

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

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

person's time in the Department. The Department makes n2ocharge 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.

Frequently there are two or more permittees located on tjhe ream

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-. This stream normally is. in the neighborhood of 25 feet in width

and has a drainage area of about 316 square miles at its confluence with the

Neuse River, Four mill dams are also located on the stream, two of which

are still in use (for grist mills). .But the Department is not aware. of

any conflicts that have-arisen as yet regarding the use of the stream. .The

mill dams apparently help to provide a stable and sufficient stream flow.

Each permit issued indicates the source of water but wrovtd0es 1ttt or

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

other for facLit1t i tion purposes In a
________-
n e. of, inst a a been erected and a pond. has been btLilt either

in the stream bed or nearby ; nd a part or. al :of the stream flow diverted

or pumped into. it. Such a pond often may be .sed for other purposes "in

addition to.irrgation. Ina. gace cases, a dam a~c d a pond already had been

.constructed befQoe the application to use the water for irrigation was

received, ~he Department does not, regrd -ts authority to: issue permits for

irrigation to include any control over the construction of dams, ponds, or

other structures. g .

Real. that the applicable statute only requires that a permit be

obtained when the irrigation will -"subsa iy" reduce the. volume or flow

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

a permit to use, soae of the larger streams or lakes for irrigation, or where
there would.,otherwise not be, a. substantial reduction of the volume or flow,

106/ In cases where a pond has been constructed, it may need to meet
requirements .of the Sta~t B-rd ealth or. its local counterparts with
respect to health. (See Pollution, post.) Requirements regarding the cons-
truction of dams are discussed under Detention, or Obstruction of. Water with
Dames etc., post.


I


-, 46 -







47 -
The Department has developed no criterg for determning wht constitutes

a "substantial" reduction. (For. example,, does this mean underr 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, howevery-that it may so rule in some

cases in the future.

It is doubtful whether one's application for a permit, or its issuance,

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

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

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

to be on the safe side, and no application as ever been refused. 0

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

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

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

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

been construed by the Department to its effect upon the _v

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 above, as to whether the--Tfair irrigator or his


107/ If it turns out that the stream flow never is, or generally isn't.
substantially reduced by the irrigation the permit issued perhaps has no
legal effect, at least until and unless this does occur.


i







48 -
le4dlord tad applied or or obtained a permit -fram the Departmentm of Con-
servation and Deyfoieent tQ; Arpigate from th9 stream. 108.I :: s p sibly'

might have ;hd scme, although not much, evident y value on theacqueston of
the legality of the use.,. lp It t was not shown to what extez the 4vearsion
Of, water frm; the strea- ;had -rduace4 its flow or: olume ,.f it had been
bsubstantial B permit woould4 hve been; required to comply with ~he: statute.

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

The granting of a permit possibly might provide some measure of assurance
against later lgal action b~ ,~ t tte fao any alleged itrterference with

public rights or interests in aeuh waters, .such as. the protection of naviga-
tion and fish life, or pollution control measures However 6 the Department
ordinarily does not take :intoaccount nor expressly provide for such con-
sideratios in issuing its perait It does :not check withany other State
, agci ii, es,,sweh as the State Strea. Sanitation C-maittee o^ the Wildlife
SResources Ccomission, before Oise ng a permit, because -it considers ;its

10/ The Court at one point quoted Corpus Juris regarding the factors a
party should llegee if he claims as an "appropriator .", Youngj.- City of
Asheville, et. al., 2 13 N,C. ,618 86S.E. 2d. 408, 415 (1955). The Court
wA talking 4 b4t Preacri hPweyerv 1-t, is very doubtfulwhether
the Court was referring to any possible appropriation via a permit from the
PDepartmeat: of Conservativonr and-Devyepnern1.. D _.' 1 L : ; .
10/ But the Court in same pollution cases has indicated that the pollution
oft strea*-might give a; right o, action to a.. lAer: landowner who wus damaged,
even though the discharge of sewage into it had been approved by.a State
agency. City of Durham v. Eno Cotton Mills, 141 N.C. 615*.i7 SiE. 65.
466 (1807); Rhyne v. Flint Mfg. Co., 182 N.C. 489, 109 S.E. 376, (1921);
Doe.,ll v. City of Greensboro. 164 6 C,,330, 80 S.E. 377. .1913); .:ook v.
Town of Mebane, 191 N.C. 1, 131 S.E. 407, 409 (1926). (See Pollution, post.)
Partic larly if the riparian doctrine permits:-no substantial reduction
of the flow in diverting it for irrigation purposes, which is problematical,
a permit from the State may afford no protection against other ripa'ans.
On the ,othe ,hand, a permit apparently would be required even thou there
is no evidence pf actual 9or' peentil damage to lower owners, which Wprhaps
would be necessary; -or them t recover againsar the irrigator under the
riparian doctrine, as discussed above.

A







-49-

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

"safety" and pblic in the latter term being interpreted as pro-

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

landowners. The statutes on pollution control do not expressly authorize
V --------- 1
limitations on consumptive water use, nor apparently, have limitations

actually been imposed for such purposes. (See Pollution, post.) Other State

agencies might request the Department to deny or rescind a permit in

certain cases. But. the permits issued expressly provide only for their

modification or cancellation when institutional or municipal water supplies

are endangered or when other applications to irrigate from the same stream

are later received.

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

in 1955 regarding water resources (see State's Policies Regarding at~er

Resources, ante) would have any very substantial effect upon the adminis-

tration of irrigation permits, except perhaps that it may provide a somewhat

more specific criteria for determining what is in the "public interest."

Other Agricultural Purposes

In some cases the Court has stated that a reasonable use of stream

waters may be made for "agricultural purposes," without further amplifica-

tion concerning what this term might include. 1/ In some other cases

recovery was.allowed for the lowered value of riparian farmland caused by

another's use or pollution of a watercourse, although generally without

indicating any particular uses that had been or might be made of the water. 11l/


110 See, for example, Walton v. Mills, 86 N.C. 282 (1882).
1Eller v. Bd. of Education. 242 N.C. 584, 89 S.E. 2d. 144 (1955);
Donnell v. City of Greensboro, 164 N.C. 330, 80 S.E. 377 (1913); Veazey v.
City of Durham, 231 N.C. 357, 57 S.E. 2d. 377 (1950); McKinney v. Deneen. 231
N.C. 540. 58S.E. 2d. 107 (1950); Sink v. City of Lexington, 214 N.C. 548, 200
S.E. 4 (1938); Dunlap v. Carolina Power Co., 212 N.C. 814, 195 S.E. 43 (1938);
and Koone v. Carolian Mountain Power Corporation, 217 N.C. 286, 7 S.E. 2d.
565 (1940). See also some cases discussed under Domestic and Other Natural
Uses, ante., under Detention or Obstruction of Water with Dams, post. and under
Pollution, post.
____________^ ___ ___ __ ^*^ ii^^ ii ^^^ ^ ^i- ^ ^^ i^-







- 50 -


Mining

Mining is another use of natural watercourses that has been dealt with
to some extent by the State's Supreme Court, and also by the Legislature,

In the case of Walton v. Mills (1882), an upper riparian owner along
a stream was in the process of constructing canals to divert a part of the

waters to use in gold-washing operations. A lower riparian owner requested

an injunction against such construction and diversion which it was claimed

would injure his mills, the gold mines he contemplated constructing, and other

uses-of his lands. The Court said: "The reasonable use of the water as it

passes in its onward course so that no damage is done by withholding it, is

the rule by which the rights of riparian owners are regulated." 12/ The

Court added: "Though he may use the water while it runs on his land, he

cannot unreasonably detain it, or give it another direction, and he must

return it to its ordinary channel when it leaves his estate." The Court

went on to say that: "This new industry of gold washing may from necessity

require some modification of the general law, since for mill and mechanical

purposes the use of the passing water as a moving power does not destroy,

or in any considerable degree, reduce the volume which still flows on for

the use of. others. The diversion for gold washing, often at remote points,

involves its total loss to others., How these conflicting industries are to

be reconciled may present a problem not easy of solution upon the rule

hitherto established. But the question .does not arise and we now simply

decide that there is error in continuing the injunction, but without

prejudice to the plaintiffs' right to move for it hereafter when the case

then presented will admit." 3/


12 Walton v. 1Mlls 86 N.C. 280, 282 (1882).
Walton v. Mills, 86 N.C. 280, 285 (1882).







- 51 -


The Court held it improper to grant a preliminary injunction on the

grounds; that there had been no injury as yet and also by invoking the balance

of convenience doctrine, which is discussed later.. l4 The defendant had

more than 2,000 acres of land which he intended to use for gold mining, but

no question was raised as to whether all of this land was riparian land.

It is conjectural whether today the Court would adopt a rule of law

that would facilitate the use of water in mining operations to a greater extent

than the rule the Court found it unnecessary to depart from in the Walton

case. The Court made no reference to certain legislation, dating fran

1871, which currently provides that those "engaged or about to engage in

mining" may institute special court proceedings, akin to condemnation, to

acquire needed rights to convey water to or from their mines over the lands

of others. I5

Kaolin and mica miners also are given by statute the "right to allow

the waste, water9 and sediment to run off into natural courses and streams," 1

This might permit discharge of such waters into a different stream frcm which

the water was taken (contrary to the rules stated in the Walton case) which

would have a different effect on lower riparian owners on each stream than

if the waters were returned to the same stream. A question was raised

by the Court as to the validity of this statute, in a 1950 case, but the

Court didn't decide the question. 17/ t did suggest, however, that the


.14/ See Balancing of Interests, Equities, or Conveiences, post.
55 IN.C.G.S. sec. 741-55, et. seq,.
N.C.G.S. sec. 74-31. legislation of this type was first enacted in

17/ McKinney v. Deneen, 231 N.C. 540, 58 S.E. 2d. 107 (1950).


_I~__







A- 52
statute would not -reltev such miners fro liability to pay for any damages

caused by esuc pollution (and has directly. so held in a 1956 case l8)

although it might possibly give. them immunity against an -.ijunution. ,(See

Pollution, post.) The defendants were alleged to be carrying on mica mining,

pumping water from a watrcourse to their nooriparan lands to use, in their

M-aca 4 shing imchiines, and, Adischarging the ,wtes into the watercourse,

causing the mud- to. obstruct the ford and sp.il over onto the fml.QPd of a ..

riparian owner below. The Court beld that. the complaint stated a cause of
action but only discussed the- polluti ustion q ton. It didntt discuss the

question of the miners' rights to use the stream as, Whe source of their

water supply. ..- .

Municipal or Public Water SuAply .--

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

water from a onaviable wateraurse to supply its inhabitants with water

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

the case f 1 Prn ell vi City of l Bndeson (1941)., !he right to make 4ch

uses had also been denied in same earlier cae., but without as much ex-

planation of the dprinc ples on iwhicbh sach use was held to be..unlawful.

Ia theJ earnell case, a lower riparian owner sued the city for damages

resulting from a lowering of the '-ater level so a to as to e the operation

.of his mll unprotpable 2/ The cityls diversion of the water was by


/ MPhillips v. Mining Co., 2fN.( I. 92 4JE 2.d. I29, 433 (1956). The
lawsuit here was to obtain compensation, for, the alleged discharge of silt
from mica miMing aich alle~ed3.y crus-soft mudeposits to prevent the use
of a ford downstream and cover a part of the complainant's farmland.with
inferio;'oil.'' : .-... :. ,
2/_ This and the Walton case are discussed under Definition of Riparian
Lai and Use of Water on Nonriparian Lands, ante.
20/ Pernell v. City of Benderson 220 N.C. 79, 16 S.E. 2d. 441 (1941).
The City was also sued for polluting the stream. (See .Pollution, post.)






- 53 -


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, 12~/ stating that:

"It has been held with practical unanimity that a municipal corporation,
in its construction and operation of a water supply system, by which it
impounds the water of a private stream and distributes such water to
its inhabitants, receiving compensation therefore, is nob in the.exercise
of the traditional rights of a riparian owner to make a reasonable
dacestic use of the water without accountability to other riparian
owners who may be injured by its diversion or diminution. 'The use
of the waters with water for domestic purposes is not a riparian right' 67 C.J.
1120. 'The weight of authority holds a municipal corporation
civilly liable for diverting the waters of a private watercourse
for the purposes of a public water supply, either with or without legis.
lative authority'... Conceding that those who own the banks of a
stream may, for their own convenience, contrive and use facilities and
devices for distribution of w&ter 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
S by a municipality as in the case at bar, which Lmpounds 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 represen-
tative, or in the role of parents patriae, with rights in that respect
which they themselves did not have."


121/ The Court also rejected the argument that the law prefers the use
by a municipality over the use for manufacturing purposes by lower owners.


I~L _~~






54 -
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's

"The precise question raised by defendant is dealt with by a leading
authority as follows tThe 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,'
Farush, Water and Water Rights, Vol. 1, p. 611, ..This court is in
accord with the rule." 12 /

In some earlier cases, the Court had also 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

122 The first consideration possibly might mean that the use of water by
the city in such governmental functions as fire protection would have a
better standing than the sale of water to the city's residents. The second
consideration might also mean this and, in addition, mean that sale for
residential purposes (akin to domestic use) might have a better standing
than sale for industrial or other commercial purposes. But no such dis-
tinctions were discussed. (See Condemnation and Related Proceedings, post.)
123 Pernell v. City of Henderson 220 N.C, 79 16 S.E. 2d. 449, 450-451
(19); later decision in 21 SE. 2d. 902 (1942). In this later action,
some inhabitants of the City sought to intervene in the case either
on the grounds (1) that they were taxpayers upon whom would fall part of
the cost of any damages assessed, or (2) that the city held and operated
the riparian land and water works in trust for their benefit .But the
Court concluded that the city was the proper defendant and they were not
necessary parties to the action,






: 55 -

although without indicating just hy it :was unlawful. 121 The Court

noted, however, tht 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 opera-

tion 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. 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, (See Condemnation and Related Proceedings, post.).
In a case in 1924, a lower riparian landowner recovered /permanent damages

of $100, representing the decreased value of his land, as a result. of a
towns diversion of water from a stream for a water supply. 15/ The
Court adhered to the rule that each riparian owner is entitled to make

a reasonable use of a watercourse and held that the .use by the defendant

city was unreasonable and that it had properly been required to pay damages.

The bomplainant apparently was suing on the grounds that the town had ,"un-
reasonably diverted" the stream, rather than questioning its right to make

ay use of the stream. The town's diversion was by means 'of a permanent

14/' eer v. Durtam. Water Co., 127 N.C. 349, 37 8. < 475, v476 (1900).
The~ ourt simply cited two earlier .cases, neither mof: which dealt .vrith mni-
cipal water supply, and indicated, thatPWilliamson V., Canal Co., 78' 11.0. 156
(1878) was directly in point Bit that was a:casee of, diversion of water
through a cansl to drain land which: reduced the flow of, the, sa amn..to a
lower ipriarian owner s mill. The Court .in that case indicated~that. here
would be liability for any material injury to a lower riparian owner, In
the Geer case, the Court held that such .diversion had..ot ripened into an
easement by prescription, apparently because it had: not continued for the
necessary 20-yeat period, (See Prescriptive Rights, post.)
:125/ Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88. (1924) .
ThScase is also discussed under Condemnation and Related Proceedings,
post; General Development of the Riparian Doctrine, ante; and Time of Use
and Effect of Non-Use, ante,






56 -
dam, but this was not discussed by the Court, although in the lower court

it may have been a part of the basis for awarding permanent damages.
(See Condemnation and Related Proceedings, post.) 126/

In a case in 1926, a lower riparian millowner recovered $4,000 as per-
manent damages for a town's taking water from a stream which caused a reduc-
tion in the value of his mill and land. 127/ The Court again held such

diversion and use to be unreasonable, but did not give a reason other than
to state two somewhat conflicting rules of reasonable use (as was discussed

under General Development of the Riparian Doctrine, ante),

The question of a city's right to use water from a stream was also
raised by the Court in an early case in 1906 in which the city sought to
enjoin the pollution of the stream that furnished its supply. 128/ But

the Court found it unnecessary to decide this question because it held that

the pollution of a stream "from which a public drinking water supply is
taken" could be enjoined at the request of "any person", whether a riparian

owner or not, by virtue of certain legislation. A city also sought to
enjoin pollution of the stream that furnished its supply in some other

cases. 122/ In none of these cases did the city request payment of damages,

126/ For a public water supply case in which the effect of the construc-
tion or operation of a dam and reservoir for such purpose was considered by
the Court, see Sink v. City of Lexington, 214 N.C, 548, 200 S.E. 4 (1938),
discussed under 'DaIey postv- Questions regarding. the se of navigable waters
for public water supply purposes were discussed in Elizabeth City Water and
PBwer Co. v. Elizabeth City, 188. LCi 278, 124 8.E1-631 (1924), 6ee Navi-
gable Waters, pot.:. For a case involving the use of groundwaters for such
purposes see Souse v. 'City of KI tton, -188.LNCJ l 123 SB. 482 (1924),
discussed under Groundvters, post.
127 Cook v. Town of Mebane, 191 M.C. 1, 131 S.E. 407 (1926).
City of Durham v. Eno Cotton Mills, 141 .N.C. 615, 54 S.E. 453 (1906).
Town of Shelby v. Cleveland Mill and Power Co,, 155 NC, 196, 71
S. 218 (1911), Town of Smithfteld v. City of Raleigh, 207 N.C. 597, 178
S.E. 114 (1935). -






57. -

The 'question of :aaunicipalitys, right fto take-water from ,stream might well

become important in h a ase. i (See Pollution, post. 'The rights of

. theree against a municipality for polluting 4 watercourse is also discussed

under that topic.) .

SGeneral legislatioQn as well as special charters and other special legis-

lation, enables.several municipalities to provide for their own er 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
Sfurnish water for fire and other purposes, and light to the city and
its citizens and to any person, firm, or corporation desiring the
satee 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." 3/,.

S This does not necessarily mean, however, that municipalities thereby

have aby rights, to use water ftr~ any particular, source..- .They may often

need to resort to purchase or condemnation, o:r to rely on permanent damages

in, case they are sued1 to acquire .legal rights to- take evter from a water-

coiuse (see Condemnation and. Related Proceedings, post),, except where they

have acquired Srescriptive rights thrWogh .long-continued; adverse, use.

Moreover, acquiring prescriptive rights to make a certain rate of withdrawal,

based -past adveree use*, doesn't, entitle the city to increase its rate

of idth#~awl in the futuWre. *(S, e escriptiye Rights, poet.);..

STh.- Court said in, a recent ease that ':;
"A municipality whlch operates itq own .wvaerworks. is under noo duty in

~ N.C .GS, sec. 160-2 55, Thae-term: cityt" inclula incorporated towns
andvillages (L.C,.G.S bee. 160.192-.) -See' N.C.G.S. eo -a60ia8 iU-teh also
gives citleh the generalS right to acquire and operate waterwtorks. %ee also
Cho. 510, 1955 Session lawv:, which authriOzes a certain tO b to e tend its
water and sewer lines to furnish 3atf and sewsr services to Industries
out side, S lmitSU :
: ;-


I~_ __~_ __I~






- 58 -


the first instance to furnish water to persons outside its limits. It
has the discretionary power, however, to engage in this undertaking.
G3S.par. 160-255. When a municipality exercises this discretionary
power, it does not assume the obligations of a public service corpora-
tion toward nonresident consumers. G.S. par. 62-30(3)3 67 C.J. Waters,
section 739. It retains the authority to specify the terms upon
which non-residents may obtain its water..,..In exerting this authority,
it 'may fix a different rate from that charged within the corporate
limitst. G.S. par. 160-256,.. .When a municipality engages in supply-
ing water only to consumers within its corporate limits it is under
no legal obligation to supply water to a resident for resale to others
either within or without its municipal limits."

The Court noted that, as the rates applicable to nonresidents applied
to all alike, it was immaterial whether the rates charged the complainant

for water which he resold to an outside village were deemed exorbitant. 11/
The source of the water (at least part of which was from 'deep wells) was
not in dispute. 1/

Legislation enacted in 1955 authorizes boards of county commissioners
to use surplus funds or funds nct 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/

Apparently, it is left up to the municipality to obtain and supply water
through such a system.

By -Ttvtue of a 1955 amendment, the cost of installing or extending
waterworks system op any city, town, or incorporated village may be
assessed against abutting property owners. Previously, this could be
done for sewer systems but not water systems. &J ..

A/ij Fulghm v. own Of Belma, 238 Noi# 100, 76 S.E. 2d. 36871 (1953).
Al" e i er Co. v. ~anitaryDistrictt 232 N.C, 421 1 ,E. 2d
378 `04acusased 1ler Sanitary Dstricts, below,
Sr or another case in whic the right to use water for such purposes
lr ny articular source va us n s.etion, see City of =Rleigh v.
Eva~rp 35 6.,6, 71 a x. r '5
.C.G.S. 1955 supp.) sec. .2.
4/ N.C.G.S. 160-255, See sec. 160-192 for defjinit a r "~ty" See
sees. 160-241 and 160-242, wihh respect to sewer systems.






.. ... :59 -
; .. tei. and Seer Authoritibs. A statute enacted in 1955 enables the
S' fbrltion of an "Authority" by'any two or Moree counties,. cities, towna :s

/ incdfrjpat d villages, sanitary districts, or other political subdivisions

Sor public corporationa hof the States for the; purpose -of acquifs .g, con-truc-

tibg, IrmpiTing, :xtendi~gn mainttaining, ,ead operating water and/or: sewer

Sy tesi 13 ,hef~iwiter is Anformed that no- subh iuthoity -had been formed
*-by Aug$i 10,. 1956, althouhi one was being planned in the vicinity of

Sreenaboro. -: .. -i
-:The term "water system'. refers to.:facilities and property connected

with the U s; ply or distribution of aeter", including, sourcecb of. water

supply including lakes, reservoirs ;and wellsa" It is. conjectural Whether
water maYblt e I lly supplied and distributed for any and a.&pktposes by

such an Authority, but there are, no express limitations against this'.;:
* I. It-would 2 ee* that the, primary function tended for:. such a0 Authority is

the supply aid distribution of wat.r (and sewerage services), for purposes

that .would, thberise be supplied by its member munidipliti~e .if any.-

i Each such Authority '"shall be deeaed' to be a public instrumentality eXesr

'aeing public and essential goverznmntal functions to provide.:for the public

b:: health and welfare", -with povmer tot fi, revise, and collect rates, fees, and
:-ther charges for its serv3 ee .atutficieent to meet aUl jobligations a~d 4o.
expenses.

1/ N.C.G.S. (1955 Supp.) sec. 162A-1, et. seq.
36/B Sbch -kates, fees, 'id' ci-ge's hafl -ihAo 'bi esub jec tbo review by: any
b. or or other agency of he -ttte or political *ubdivision,-' AI' iti~ .s:ch
rates- are ; bitrary ,they might be sub ect to -evleVby -a coui t ~' lcera-in
I B 8 #e ,eealifaxK Pap fQi., v. Sanitary District 32 .0C. A21> 6. S.2E,
4d. a78 (A95P 40 tar districts, Vdscssed Jater.) Buch Auh4riy
may .bla-esB Mover jyel, fg rates charged might be taken, Into count
by. the State Board of iater. Cdoidsioners i,.determining. whether to autoris
"t6 exercise of condemnation. Each Authority has certain powers of dcnemna-
tion but they may be exercised only with the approval of the State Board of
Water Commissioners. (See Condemnation and Related Proceedings, post.)


--~--------cl-~----.-----___ __ __~I~






-60 -
An Authority may be formed by resolution of the governing bodies of
any two or more political subdivisions, after giving notice. to the public by
publication and holding a public hearing. A referendum election need not

be held except to authorize the transfer (via lease, loan, or conveyance)

of existing water or sever systems, or other property of a political sub-

division, to such an Authority, in which event the approval of a majority

of the qualified electors voting at such election is required. 1/ Each

political subdivision may enter into contracts with the Authority regarding
water or sewer services to be furnished by it, or for other relevant purposes.

As such an Authority apparently has no power to tax, its funds would
be derived primarily from fees charged for services, from the issuance of
revenue bonds, or from any property transferred to the Authority by parti-

cipating political subdivisions. 138/ Cash contributions may be made by

political subdivisions only to help meet preliminary expenses of the Authority.

Any political subdivision in any county in which the Authority has. a water
or sewer system may join the Authority, with or without its consent. But

rights of participating political subdivisions to withdraw from an Authority

once it has incurred financial obligations do not appear to be very clear.

The governing body of each Authority shall have at least one member frao each

political subdivision and one appointed by the Governor, Each Is to serve
without compensation except for reimbursement for actual expenses.

137/ The approval of the Local Government Commission is also necessary.
o Authorities may issue revenue bonds to be approved and sold by the
Local Government Commission. Such bonds do not constitute a debt. of the
participating political subdivisions, and shall be payable solely from the
funds of the Authority, although they may be secured by a trust agreement
with any trust company. Query as to the extent, if any, to which such
bonds may be purchased by the participating political subdivisions with tax
revenues.


0 -






- 61 -


"Any riparian owner alleging an injury as a result of any act of an

Aubority ...ay O maYintain an action for relief. *." Each, Authority Is
required to provide the State .Board of Water Commissioners wvth information

on the daily amount of water it, takes from "any stream or reservoir".

Sanitary Districts *. Under certain circumstances, sanitary districts

may construct and operate water supply. systems.,: as well as sewer systems, S
The organization, powers, and functions, of such districts are discussed

later, under Pollution, The writer Is informed that same 26 .sanitary dis-

-tricts were in existence on August 1, 1l956, and that many of them were supply-

ing both water and sewer services.

The Court in a case in 1950, tWhich involved water supplied by a sanitary

district, said that such a public utility could provide water ;,o a manu-

facturing company at lower rates thanu for othberse, in conPiderationm of a
lease of its water filtering plant to the.district (and also give such

company first claim on the water .filtered there),. so long as. such a
contractual arrangement didn't impair its public obligations While the

manufacturing c ~pany was located .w tin the district,; the contract with

it was hed to be of a private rAtsher tan a. public nature. .(The- District

also was held not. to be subject to regulation by the State's. Utilities

Coinmission. This is also true of muniLipal water systems. S ee8 .C.GS.

sec. 62-30). The Court nbited, holever, :that as t&_- public utility services

generally, as well as any water the sanitary district may have for sale
for industrial pur poes, the utility~ "moist seryv alike all t.ho are s la rly
circumstances with reference to its system. ..." Te Court noted further
that .

"It is a matter of common knowledge that large amounts of water for
industrial purposes are not usually available from ,unicipally owned

1 N.C.G.8. 130-33 et. seq.






-62 -
water plants. Ordinarily water for industrial purposes is provided by
the particular industry requiring it or by special contract with the
municipality where such municipality has an adequate supply." 40

Joint Municipal Water Supply Facilities. A statute enacted in 1955
now permits the Jolat acquisition, construction, improvement, maintenance,
operation, and financing of water.supply facilities by tve or more munici-

palities. The statute provides, among other things, that "Any two or
more municipalities in the State of North Carolina are hereby authorized
to acquire lands and water rights along any stream to the extent deemed'by
them necessary or convenient for the purpose of co-structing a dam or6 dams
to impound the waters of such stream in a reservoir Ir reservoirs, and to
construct dams and water storage reservoirs, and to maintain improve andl

operate the same, jointly, either within or without the corporate limits of
such municipalities or either of them. ljl/ It does not necessarily
make the use of streams for such purposes lawful, however. Condemnation or
permanent damages procedures may ave. to be used to acquire needed water
rights. 142/

Other Public Water Supply Functions Corporations or cooperatives
may be formed to operate water-supply facilities. 143/ Companies organ-
ized for publicc water supply" purposes are granted certain condemnation

powers, 144/ as are various State or other public institutions or agencies. 145/
,(See Condemnation and Related Proceed4g5s, post.)

6140/ Halifax Paper Co. v' Roanoke Rapids Sanitary District, 232 N.C. 421,:
61T*. 2d. 378, 383, 386 (1950).
141i N.C.O.S. (1955 supp.) sec. 160-191.6, et. seq.
_4/ See Condemnation and Related Proceedings post. For questions regarding
udafS Osee Detention or Obstruction of Water with Dams, etc., jost.
1W See N.C.G.S. sees. 56-111- and 54-124, with respect to mutual (cooper-
ative) associations. They may be formed for water-supply and fire-fighting
purposes.
144/ N.C.G.S. see.- 40-2~
N.C.G.S. secs. 143-144 and 40-2.






63 -

Vendibility and Location of Use, 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. Apparently, however, water taken from a

natural watercourse may not be lawfully used on nonriparian lands without

cpensating lower r rilprian landownes who may be damaged thereby,

except when, pre4criptive., rights are acquired, as indicated

above with respect to municipal water supply and water supplied by water

authorities and sanitary districts, The question of whether or to what

extent condemnation or payment of permanent damages may be validly exercised

by municipalities or others to obtain rights to furnish water for commercial

or other nonriparian uses is discussed under Condemnation and Related

Proceedings, post, L46/

Other Consumptive Uses.

There have been few cases in which consumptive uses of a natural

watercourse, other than for the particular purposes described above, were

involved. The withdrawal of water from a watercourse for the purpose of

watering train locomotives was involved in Harris v. Norfolk and W. Ry.

Co. (1910). 147/ The Court indicated that no material diminution of the

flow of the stream would be permiss able if this inflicted substantial

injury on a lower riparian owner, in connection with any legitimate use he

was making of the stream. On the other hand, there would be no liability


46/ In the event that water cannot be thus legally supplied, legal
recourse might possibly be obtained in some cases against the supplier if
a contract to supply some definite amount of water for a definite period has
been made.
147/ Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623 (1910).






-64 -
unless the stream flow were appreciably diminished, which would depend

partly on the size of the stream. There being some evidence that any

diminution of the flow was not perceptible to the naked eye and amounted to

only about 1/50 of 1 percent of the total flowage the Court held that it

was properly left to the jury to decide whether there was a material dimi-

nution. The lower court's denial of any liability to the complainant, a lower

millowner, was affirmed. (See General Development of the Riparian Doctrine,

ante.)

Cases involving industrial uses of a watercourse (other than in mining,

already discussed) concerned the detention or obstruction of its waters

with a dam rather than consumptive uses. 48/ (See Detention or Obstruction

of Water with Deas, etc., post.) In same of these cases, water was no

doubt diverted through canals or other conduits to run a mill or power

plant, or for other manufacturing purposes, but the question of such diver-

sion was seldom in issue. At any rate, in most such cases the water probably

was returned directly to the stream, after being so used, at a point on the

stream before it left the riparian owner's land. 9/ Legal principles


148/ The Court in some cases involving consumptive uses of water for
muwlEipal water-supply purposes has stated incidentally that a reasonable
use may be made of a stream for manufacturing or other purposes, except as
occasioned by the reasonable use of the stream by other riparian owners, See
Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88, 89 (1924). But in
the majority of the cases that involve consumptive uses of a watercourse,
the Court has indicated that no material diminution to the substantial :
injury of a lower riparian owner would, be permissible'. -(See Developmen
of tt Riparian Doctrine, ante.)
S49/ One exception was Nantabala Power and Light Co. v. Moss, 220 N.C. 200.
llT-.E. 2d. 10 (1941), where the Court held that the diversion of water
from a power-dam reservoir through a tube to a power plant and its return
to the stream at a point below the lands of some lower riparian owners
was the proper basis for condemnation, suggesting that there might otherwise
have been liability for sjch diversion. The Court incidentally so indicated
in Walton v. Mills, 86 N.C. 280, 282 (1882), involving the question of lia-
bility for diversion of water for goldmining purposes.







65 -

relating to this type of diversion and use are discussed largely under

Artificial Watercourses, post.

Questions regarding the storage of water from one season to another

are considered under Detention or Obstruction of Water with Dams, etc.., and

Other Artificial Ponds or Lakes, post.

Detention or Obstruction of Water with Dams, etc.

Damage to Property or Use of Property Below. As noted earlier. under

Development of the Riparian Doctrine, the Court, in Dunlap v. Carolina

Power and Light Co. (1938), indicated that a somewhat different rule might

apply in the case of detention of water in a watercourse with a dam than in

the case of diversion of water from it. While noting that "no material

damage" or "no material dimunition" often had been emphasized in diversion

cases, in the case of simply detaining waters with a dam, to the possible

* injury of lower landowners (which was the situation in the Dunlap case)

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 and substitute a different manner as to the time and mode
of holding it up and letting it down, but the water can be retained
for the purpose of the upper mill if it is not diverted from the stream
and the storing of water in a pond or 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 to raise
a pond or reservoir, although the effect is to deprive the lower owner
of the use of the water to a certain extent. He may hold the water
back and let it down in such manner as is necessary for the use of his
manufacturing enterprises if the enterprise is-adapted to the character
of the stream and the use is reasonable and the lower proprietor will
nto be heard to complain on account of the incidental irregularity in
the flow of the water."

The Court said that such a right is an implied easement in the right of

using the stream, and that "the water may be detained long enough to accumu-

; late a sufficient head for manufacturing purposes before it is let down to







66 -
the next user. However, the person detaining water must act in a reasonable

manner and not let it off in unreasonable quantities." 5~/ It also

noted that "The upper riparian owner has o: right by virtue of his position

unreasonably to interfere with the natural flow of the stream so as to 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./

The Court further said that what constitutes a reasonable- use ordinarily

is a question of fact, under all the circumstances (as discussed under

General Developlent of the Riparian Doctrine, ante). But it held that

there was no evidence of .ny unreasonablee use in the operation of the de-

fendant cceaany's power dam, as the water *as neither -unreasonably detained

'nor let down in excessive quantities. (The Intermittent opening and closing

ofl1ood ates on the, dam occurred daily.)

.The Court concluded, however, that, while there was no unreasonable

or negligent operation of the dam, the defendant company might be liable to

the defendant, who was a lower riparian owner, for direct damages to his

land caused by the wearing away of the banks of the ionnavigable river along

his land, by reason of its particular location at the Juncture of the river

with another river. The Court said that otherwise this might amount to a

taking of such property, without compensation, which it held would not be

permissable, even though the defendant company was found to be making a


150/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
47 1938).
51/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 8 J. 43,
.46 (1938). Repeated, with approval, in Bruton v. Carolina Power and Light
Co., 217 N.C. 1, 6 S.E. 2d. 822, 827 (1940), discussed later.







67 -

reasonable use of the stream. (The Court denied any recovery, however, for

the alleged loss of enriching deposits of silt and the wearing away of top

soil on the lower riparian land, stating that this was not shown to be

caused by the operation of the dam.)

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

electric power dams. In a case in 1934. which involved a lawsuit against

the owner of a hydroelectric dam for negligently operating the dam so that

the complainant's railroad bridge downstream went out, the Court said

that in cases of escape or overflow of waters caused by dams, even though

done without wilfulness or negligence, the owner would be liable for all

"direct and proximate damages," unless he could show that it was caused by

a storm or other agent beyond his control. 152/ There was no such storm

here. As the case was based on the grounds of negligence, the Court's

statement about liability in the absence of negligence was surplusage.

In an earlier case, the Court held that the defendant could not be held

liable for damage to land below his power dam caused by an unprecedented

flood, where he had not been negligent in the construction or operation of

the dam. 13/

With respect to liability for unreasonable or negligent conduct, a

case in 1940 involved the same river and dam as in the Dunlap case but a


152/ Kitchen Lumber Co. v. Tallahasee Power Co., 206 N.C. 515, 174 S.E.
427 ,428 (1934). For a case of willful damage to a lower owner by the
operation of a dam, see Kelly v. Sett, 35 N.C. 50 (1851).
153/ Rector v. N.C. Electrical Power Co., 180 N.C. 622, 105 S.E. 422
(19~). Also see the Court's incidental statement in Teseneer v. Henrietta
Mills Co., 209 N.C. 615o 184 S.E. 535, 539 (1936) to the effect that the
owner of! a dam isn't to'be held liable to persons below or above the dam
caused by "inevitable accidents" or"extraordinary freshets," The case in-
volved the flooding of lands above the dam,which is discussed later, by
ordinary flood waters.






-68-
different lower riparian owner. Suit was brought on the grounds of negligent

operation of the dam. The Court noted that "an act of God which exculpates

the owner of a dam must be such an act as constitutes the sole .cause of

the injury." It held that the defendant company would be held liable if

it "during flood time, so unreasonably operated the flood gates to its dam

that the flood water below the dam was suddenly accelerated and the quantity

flowing from the dam was so excessively increased as to cause the lands of

the plaintiffs to overflow, resulting in extensive damage to the lands

and the crops thereon." ij But the Court found that there was.no-evidence

tending to prove this and (after quoting same of the language from its opinion

in the Dunlap case) concluded that:

"Although the works of the defendant were lawfully and rightfully in
the stream and the defendant had the right to make reasonable use of
the water thereof in the operation of its plant, it should be held for
such damages as results fran its negligent and careless manipulation
of the unusual flow of water during a freshet or its negligent failure
to use reasonable care in anticipating flood conditions or in failing
to use reasonable diligence in guarding against any undue acceleration
or retardation of flood water resulting from an unusual rainfall....
However, in determining whether the owner of a dam has failed to
exercise ordinary care to protect the rights of a lower riparian owner
due regard must be had for its correlative duty to protect upper ri-
parian owners against any undue retardation of the flood water." 155/
(See Damage- to Property or Use of Property Above, post.) -

In an earlier case a large dam, built across a stream to create an

artificial lake, burst and damaged a lower bridge owned by the county.

Suit was brought on the grounds of negligence, either in construction of the

dam or in failing to maintain it. The Court said that the degree of care

taken by an "ordinarily prudent man" would be the test. The fact that the


&1 Bruton v. Carolina Power and Light Co., 217 N.C. 1. 6 s.a. 2d.
822, 827-828 (190o).
5/ Bruton v. Carolina Power and Light Co., 217 N.C. 1, 6 S.E. 2d. 822,
827TP8 (1940).






69 -

break occurred during flood times would be no defense unless it was the sole

cause of the damage, unaided by any negligence on the part of the

defendant. 1g6

In another case, the Court held that there was sufficient evidence of

negligent operation of the floodgates of a power dam, and consequent damage

to a lower riparian owner's land and crops, to be left to the jury to

decide. The complainant had alleged, and there was some evidence, that

during flood times the power company had allowed the pond behind its dam

to completely fill up and then opened its floodgates and let down an

excessive quantity of water past the lower land, so as to flood it and

cover it with mud and sand. 15

In cases of direct damage to lower lands by flooding, etc., the same

general principles regarding liability would appear ordinarily to apply,

whether the damaged lands are riparian or nonriparian. But legal actions

for withholding water and depriving lower landowners of its use probably

may generally be brought only by riparian landowners. (See

Definition of Riparian Land and Use of Water on Nonriparian Lands, ante.) 18/


156/ Supervisor, et. al. v. Jennings, 181 N.C. 393, 107 S.E. 317 (1921).
The Court did not expressly consider the question of extraordinary floods.
In Jackson v. Kearns, 185 N.C. 417, 117 SEE. 345 (1923), the owner of a dam
had allowed it to break in some places and water poured into and over the
complainant's lower land whenever there was a "freshet." The Court, in
holding that he should be held liable for these damages, said that "the
upper proprietor has no right to collect the water and divert it from its
natural flow and discharge it upon the land of the lower proprietor." (The
Court reached the same general result in Porter v. Durham 74 N.C. 767 (1876),
S in a case where a pond and swamps were drained into another's lands by
Switching across to them. See Drainage post.
- 1/ Koone v. Carolina Mt. Power Co., 217 NC. 286, 7 S.E. 2d. 565 (1940).
M* Powers of condemnation which may be exercised for various purposes,
by millowners, power and light companies, and other groups, are discussed
Sunder Condemnation and Related Proceedings, post. The Court in Nantahala
Power and Light Co. v. Moss 220 N.C. 220, 17 S.E. 2d. 10 (1941) held that
the diversion of water from a power dam's reservoir through a tube to a
power plant and its return to the stream at a point below the lands of lowa
riparian owners was the proper basis for condemnation.






- 70 -


Damage to Property or Use of Propdrty Above. The Court oftenhas .
held or said that for the actual flooding of another's lands above, he would

be entitled to damages, generally without regard to whether the construc-

tion and operation of the dam were unitesonable. 159/

However, in a case in 1938 where there was no actual flooding

although the water was backed up so near to farmland that its drainage was

impeded, the Court indicated that liability would depend upon Whether such

interference withthhe' flow of the stream by the lower dam were found by, the

jury to be unreasonable under the circumstances. / This distinction

/l Chaffin et. al. v. Fries Mfg. and Power Co., 135 N.C. 95, 47 .E.
226b1904), Little v. Stanback, 63 N.C. 285 (1869), and Clark v.
Patapsco Guano Co., 144 N.C. 64, 56 S 858 (1907) (case of destruction of
an upper dam by a lower one). In Pugh V. Wheeler 19 N.C. 50, 57 (1836) the
Court said: "If such be the law in reference to diverting a water-course
above, so that ,a proprietor below is deprived of some of the uses of the
water to which he may apply and is endeavoring to apply it, much more clearly
is the proprietor above entitled, to recover. when the water is obstructed
below. In this last case, the owner above is not only deprived of the use
of the water,. to which he is entitled naturally as well as others above or
below him, but the water is thrown out of the natural channel, and by being
raised, covers a part of his soil, which the natural current of the stream
would not touch. Now, no person can, for the sake of giving himself a use
of the water, justify throwing it back upon the land of another, so as to
deprive him of any use of his land, whether for cultivation, the erection of
machinery, or other buildings. Ponding water back on land above, seems to
be so clear ,and direct an invasion of the proprietary interest in the land
itself, independent of the right to use the water, as. certainly to be a good
cause of action"
Nevertheless, the Cout in Teseneer v. Mills Co., 209 E.C, 615, 18& S.E.
535, 539 (1936), where there was evidence hat a power dam caused a stream ti
flood, discharge sand upon, and impair the drainage of upper farmland, the
Court noted, quoting 27 R.C.E& p. 1103 that while the owner of a dam has a
duty to use reasonable care and Ekill in operating it so that no one above or
below the dam will be injured in times of ordinary .and expected floods, he
would nct be -liable for damaes caused by "inevitable accidents", or "extra-
ordinary freshets," which could not be anticipated or guarded against. The
latter statement appears to have been -Irgely incidental rather than a direct
ruling, as it was not claimed that there were any exraordinary floods involved.
L0/ Sink v, City .of Lexington, '214 NC. 548, 200 SE. 4 (1938). A smae-
what similar situation was involved in Darr v. Cardlina Aluminim Co., 215 N.C. 768,3
8.E. 2d. 434 (1939) where a dam caused collection of sand, debris, and growth
which impeded the drainage of upper farmlands. But recovery was denied
because the complainant Was found to have no legal right to drain his' lands
through a ditch across another s land.







71 -

was later affirmed in a case in which it was alleged that a dam impeded the

flow of a stream so as to impede the drainage of upper farmland. l6

In an early case (in 1836) the Court stated that where upper lands are

actually flooded the fact that such flooding occurs only during flood periods

was no defense, but would serve only to reduce the amount of damages. 6

Moreover, the Court in a later case (in 1917) held that where an upper

owner's lands were flooded or their drainage impaired, he had no obligation

to attempt to mitigate the damages by draining his lands. l/

In a case in which the obstruction of a stream with a dam had aggravated

the degree of pollution of the stream, the Court indicated that the owner

of the dam might be held jointly liable with the upstream polluters for the

resulting damage. 6/ (See Pollution, post.)

A case in 1914 involved an action to enjoin the construction of a

multimillion dollar dam at the Narrows on the Yadkin River, which presumably

was to be built mainly for the generation of electric power for the owner's

industries and town. An upper riparian owner claimed that his lands would

be flooded and his mills damaged. Notwithstanding the rather strict rules

invoked in such cases, as discussed above, an injunction was refused, mainly


161 Forest City Cotton Co. v. Mills, 218 N.C. 294, 13 S.E. 2d. 557 (1941),
rehearing of 10 S.E. 2d. 806 (1940). The former decision was reversed, on
finding the facts to be different than was earlier assumed. There were
two dissenting judges. In Judge Clarkson's dissent, he appeared to say that
a different rule should be applied to damages above than to those below the
dam, and that at least nominal damages should be awarded for any damage
above the dam even though there were no actual flooding. (This case involved
a suit for permanent damages,)
162/ Pugh v. Wheeler 19 N.C. 50, 53 (1836).
3-/ Borden v. Carolina Power and Light Co., 174 N.Co 72, 93 S.E. 442 (1917).
M4 Also see Cline v. Baker, 118 N.C. 780, 24 S.E. 516 (1896).






72
on the grounds that the alleged injury was conjectural, and also by invoking

the balance of convenience doctrine for the benefit .of an enterprise consi-

dered to be beneficial to the public, (A similar position has sometimes been

taken where milldams or certain other enterprises were said to be of-bene-

fit to the public* See l~nancing of Interests, Equities, or Conveniences,

post,) The Court stated that as the dam was being built under "express

legislative authority" (presumably a special act of the legislature) it

"is a lawful structure per se and cannot be restrained as a public or private

nuisance," although any damages should be compensated. / (It as not

shown whether the defendant company had any condemnation powers.) The Court

qualified this, however, by saying thatthe proposed height of the dam

might later be abated smewbat on behalf of the complainant if the facts

warranted this. At any rate, this would not appear to preclude later actions

for any damages caused by the unreasonable or negligent operation of such

a dam. 166/

Legislation and court decisions relating to the employment of condem-

nation and related proceedings to obtain permanent or temporary rights to

flood upper or lower Ulnds for milldam and certain other purposes are dis-

cussed later, under Condemnation and Related Proceedings.

Significance, o Owaership of Bed and Banks. Before a riparian owner

may lawfully erect a dam, for one thing 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 obtained a valid easement to do so from others


165/ Tucker and Carter Rope Co. v. Southern Aluminum Co., 165 b.C. 572
81S. 771, 772 (1914).
66/ See discussion of Bruton v. Carolina Power and Light Co., 217 N.C.
1, 6 S.E. 2d, 822 (1940), under Permanent Damages, post.







73 -

who own such lands, Such ownership or easement may be obtained by condem-

nation for particular purposes, such as for certain milldams, power dams,

~r dams for public water supply purposes. (See Condemnation and Related

Proceedings, post.) In an early case (in 1884) in which a riparian owner

had built a milldam across a stream onto the lands of the opposite owner

merely with his verbal permission and without invoking such condemnation

powers, the Court held that the opposite owner could later withdraw such

consent and have the dam removed. 167/

The Court has indicated that the original grants of riparian lands

from the State ordinarily carried title to the thread of the stream, and

that subsequent transfers of ownership of riparian lands have also carried

title to such point if the deed simply called for the stream as the boun-

dary. 168/ (See Boundaries, post.) But in some instances, title to a part

of the bed of a watercourse may be held by someone other than the adjoining

landowners.

In a case in which two opposite riparian owners held title to the bed

of a stream to its thread, the Court, after extensive litigation, held that

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

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

canals or flumes for hydroelectric power purposes, even though the water

thus removed from the stream were returned to the stream before leaving his

land. The Court concluded that each such riparian owner "is entitled to

167/ Kivett v. McKeithen, 90 N.C. 106 (1884). The Court held that he
coM lawfully tear down the dam after requesting the owner of the dam to .
do so and affording him a reasonable opportunity to remove same. It indi--
cated that it mirht. solbhld eventif payment were 4ad.ie or the privilege
(although all or sDe part of suEh. payment might-i avte -to b@' restored t r
co eintathe)/ eo.4t~upig 1begislatiibM rEgardaifg the neOd fbr a. rIte .
agreement. See N.C.G.S. sec. 22.2. See also Bridges v. Purcell, 18 N.C.
492 (1836), and Kinsland v. Kinsland, 188 N.C. 810, 125 S.E. 625 (1924).
168/ See, e.g., Dunlap v. Carolina Power and Light Co., 212 N.C. 814,
195 S.E. 43, 45 (1938); Wall v. Wall, 142 N.C. 387, 55 S.E. 283 (1906).








the whole bulk of the stream, undivFded and indv1f Ible b 6/


SIt is problematical whether the holding or acquiring t ownership of
the stream bed by virtue of an express grant froa the State provides the

owner of the dam with asy special advantages as against other riparian

owners, above or below, who have In no way consented to the construction

f. the dam. The Court in State v. Glen (1859) refrained fros deciding this


6/ Blue Ridge Interurban By. Co. v. Cates, 164 N.C. 167, 80 S. E. 398;
Blue Ridge Interurban Ry.Co. v. Bendersonville L. and P. Co.,.et. al.,
169 N.C. 471, 86 S.E. 296 (1915); 171 N.C. 314, 88 S.E. 245, 246-247 (1916)
(with 2 dissenting judges), affirmed by the U.S. Supreme Court in Hender-
sonville Light and Power Co. v. Blue Ridge Interurban Ry. Co., 243 U.S.
563 (1917). ihe case manlay involved the question of the complainant's
right to condemn the defendant's property interests for the purpose of ac-
quiring the right to build a dam across the stream. (See Condemnation and
Related Proceedings, post.)
This case incidentally raises. some questions as to whether the owner
of land along only one side of a stream may remove without the aid of any
dam any part of the water for domestic irrigation, or other consumptive
purposes, by pumps or through canals, without the consent of the opposite
owner.* In a concurring opinion in 88 S.E. 245, 2477, Judge Allen (approved
by Judge Brown, at p. 266) approved the rule laid down in Angell on Water-
courses, sec. 100 as follows: "Whenever a water course divides two estates,
the riparian owner of neither can lawfully carry off any part without the
consent of the other opposite and each riparian owner is entitled not to
half, or other portion, of the water, but to the whole bulk of the stream,
undivided and indivisible." But. Mr. Angell appears to have been referring
mainly to the question of wing dams. (It was noted that it would be prac-
tically impossible to divert half of a stream's flow without also removing
some waters from the other side. It may have been practicable nearly to
acccJplish this, however, in the Blue Ridge situation, owing to the rapid
flow of the stream.) Whether an oppite owner's rights would differ
materially from a. lower riparian owner's rights is problematical.
In some early cases, the Court has indicated that the riparian owner
along ,ne side of a stream may use his side to the thread thereof fo fishing
purposes without getting the opposite owner's consent. Such a rule may have
been repudiated by the rule adhered to in the Blue Bidge case,, inricating
that each is entitled to the whole bulk of the stream, undivided and
indivisible. (See Fishing, post.) .
Roanoke Rapids Power Co. v. Roanoke Havigation and Power Co., 12
N.C. ."47s, 75- 87~,. 29, 33 (1912), earlier decision lc 68 S8.4. 190 LgOalso in-
volved a wing dam. But the question of -the rights of an opposite owner was
not considered. The dispute involved upper and lower owners along a
navigable stream and was held to be controlled largely by special legislation.







75 -

question, but it did decide that where the owner of a. mlldal had obtained

an express grant of the bed of the stream fran the /State without any res-

ervations on its use (in addition to earlier separate giants of the ad-

joining lands) the State could :not make him tear down his dam without

cgmaensation, to provide free passage for tish in the streamm. 170 (ee

Fishing, post.)

Legislation. There is Utitle general State legislation relating

directly to the construction and operation of dams other than certain

legislation relating to dame :an4 other. obstructions in navigable or float-

4ble ,watercourses (see Nrvigable Waters, psetf) and legislation wroviding

condemnation or related powers for m:ll.deam power dam, public jvater supply.

and certain 'otGer irposa. (See Condemnation and Rielated Proceedings, post.)

There are also some statutory requirements concerloag the leaVing of passage-

ay -for fish in dame in certain watercourses. :,(See Fishing, Poet.)

One of these statutory provisions ,prghbibits, under pei*lty fine or

imprisoanent, any darm for mill or factory purposes to be built or left in any

of several designated st~reaS or parts of streams without leaving a fish

passageway 3 t h1O feet in width, according to specifications furnished by

the State Board Agriculture, which, bhoever, shall be designed not to

impair the: Water poier of the dam. J/ Anaother statute alesai it a mis-

demeaanor to place a dam (apparently for any purpose) or any okher obstruc-

tion more 4han 3A/kf i the distance across the; 'main channel" of aony "iver


10 State v. Glen, 52 N.C. 321, 323, 327 (1859). The Court refrained
from deciding whether the stream involved shouldbI ,considered navigable by
small boats. For questions regarding title to beds under navJgable waters
see Navigable Waters, post.
W1/ N.C.G,. sect 113-252, and 113-253. *


*. :.- ,; : : ... -


III IlI







p '76 -
; -of cree,' witut jpo taf gi"uch ftlhsiaesgeri ~& elo be' requited ,by law.

-It we Mpartdet d ta* l5, aheo 'tezt1^tisf 'sfll only-a1 lyatou1landi waters

unde1 t
awny wters sla iflteA as oeoimeldria1 fslhiag waters. l/( TLhe Court has

noted -that it as -usual to buila midafs '-I1thobt ituh assages -for- -fish
prior to 1i*slation in 1787. /

\ *iUF3eaftt ^tIna:cted.tn : 9934.er0a14f it to-be a isdemeanor'to "fell

asr tree Or puteiy batrurtion '-n any t rt"rat0: 1 tfictalat~ h&ige ravine,

dtch aP 'otier vater oatilet which serves to remove vater fran :far or

Sa'grloultral Iaanes".~sdfail to reove 'sueani ateio vithin < ~dai d 14/

S broadly construed, this -might -iakl it uinlarwl to place a d'ail Anailynatural
.. J v atorcoiurso tia* ie a agricultural lands, atfrih noevab might include

practically all n-tAaltusaterdoursea : =But it probably vas'itateadd to have

more limited application, B sdh as Ebly to A temporary and. kmovable 'Obs-

tricti-on, orv ^yJto 4etwaterdunrse Intao iae a -onastructed fdstiage ditch,

: ete,-- emsptia, or oaly' to tbL awbstrittIobn-UheBrero at 'or:near ~itt' tiLStf from

ca armera( land, queion olf then sucht drainge t ybe nlawul th i deissnge
if dLachbland. I8t s con3ectural vhethebtihi ft1egiVs3lo 1o'ligaai the

CorV t 'to it&a B3 9ie.ItB'?ctsed ru&8es 'ote stirit r g1'lBhg he finding

ofr th6 drainage bf upeW<4aB n with a namvfthout-h'eir keing actually
floodse4 It iffcals tetti Et sayvdte ap1i'ani 3 egislatio aiplio even

-taougk a -Trizsh eamiatna t*zm .aith any apt^ u-2er;a 0n' a natuatl water-

course, (The question of when such drainage may be unlawful is discussed

.i:*^ : '" .?{ .,-;"..'llli ;.,It ."^'^. ^ -. ;* ?:* ;^-;--::. j ,-e-7 :,o f p ,."> ?- ,t.. LSI '
172/ N.C.G.S, sec. 113-251,, ,ever a erdoed obtains
fil iopagton licenses frian Dept. of C vatonand dent may
not place any dam or other device in any stream flowing over his property
that will prevent the free migration of fish, N.C.G.8. sec. 113-257, as
amended.
/ Dunn v. Stone, 4 N.C. 241 (1818).
N.C.G.S. (1955 eupp,) sec. 77-14.
-^- H ^lH







-77-

The powers of soil conservation districts regarding the construction of
checkdams and other structures to retard runoff and otherwise conserve soil

.and water are discussed under Soil Conservation Districts, post. Among

additional considerations in the construction and operation of a dam is

the question of its effect on pollution, which is discussed under Pollution,

and Balancing of Interests -Equities, or Conveniences, post. Rights in and

to use ponds created by dams are discussed under Artificial and Developed

Watercourses, post, :

Fishing

The Court in State v. Glen (1859) said that a riparian owner who owns
lands along both banks of a nonnavigable stream has the exclusive right to

fish on such stream at any point on his own land, but he must use such rights

so as not to prevent the reasonable use of the stream by upper riparian

owners for fishing, and hence would have no right to obstruct the migration

of fish upstream with a dam. -.(The Court noted that if he had owned land

only along one side of the stream, he could fish on his side to the thread

of the stream. 1/ Such .a limitation perhaps would now be repudiated by

the Court, however, on the basis of same later cases dealing with dams,

discussed above.) The Court held that, as the defendant had obtained a

grant of the bed of the stream from the State, without any restrictions on
its use, he could not be made by the State to tear down his milldam

without compensation, and a criminal indictment brought under special

lState v. Glen, 52 NaC. 321 325 '326 and 330 (1859). The Court in
Ingram v. Threadgill, 14 N,C. 59 (1831) held that a riparian owner on one
side of a. nonnavigable part of a river was alone entitled to fish in it to
the middle, .and could recover against another for fishing in such waters,







,78 -
legislation relating to the free passage off fish in the stream ws die-

S:missed., But the %oxr refrained from deciding the rights, of ipper:riparian

-oners against the .obstruction of ,fish idigration by- scd a dam, and ilso

whether the stream in question sihoeabe considered .jvigab l by small

boats. / 'Whether public fishing rights may attach to such a stream is

considered -under .atwigable Waters, poat; he extent, If a* ,o which public

fishing rights mfa attack: to nownnvigable streams Mie Sot been clearly

decided, although an early case tended to refute sue :rights. d 7"',

In Dunn v. Stone (1818), it was held that any damages to upper' iparian
,owvera by obstructing the migration of fis~ with a Ailldam which had been

lawfully constructed (prior to legislation requiring oeBingsf 'do be left

for the passage of fishi, discussed' earl~r gave them no right of action.178/

The Court stressed that tolpermit such liability would give rise to ex-

cessive litigation and hamstring an ddustry: valuable to the public.

(See Balancing) of Interests, Equities, and Conveniences, Bt.) 'Owner.-

ship of the bed cf the stream was 'ot Aftbtused. Neither was 'thl riav'igabi-

4.lty of the stream considered, although the defendant bpd claimed 'hat it
was nonInavgable. The Court based its decision partly ,'b the grounds that
any. such damages: vould amount to a public rather than a private nursnce,

for wrbcha rlparian owner couldI.no~bring 'tL -1thiugh the Statj' pre

sumably might be able to (See Legal Remedies, post4) 'It also noted that
i 1 1 ".. '
1 State v. Glen 5 ".C0 323 ; 326, 327, '330' 59).
See Ingram v. Threadgill, op. cit. Fishing and other recreational
uses of. lakes and bwsa ms, whether navigble': notr ibose'h beds are2 tate-
:owned,,ay be -regulated by the State. -
1 78/ Dunn v, Stols i c. 241 (1818). Anyai4abCilondemnatibn-4i ro-
cee~ ngst apprentlyhadn ot bee: emplb~ye in building the dam in either
of these two cases ... -



II' .







79 -
the building of the milldam was in the exercise of a lawful right "with

as respectable and beneficial a motive" as that of catching fish.

In a later case, where the pollution of a stream was alleged to

interfere with the migration of fish upstream to ah upper riparian owner's

fishing waters, the Court distinguished the case of Dunn v. Stone as one

where interference with migration of fish upstream to the upper riparian

owner's land was caused by a milldam that was lawfully constructed and

maintained and hence any consequential injury to the upper owner's fishery

was "necessary damnum abseque injuria." 11/ The Court noted that "we are

not here put to a choice between two rights lawfully exercised-e.g. the

right of manufacture, navigation or commerce on the one hand and the right

of fishing on the other," but that here there was clearly an unlawful act

under the circumstances. (See Pollution, post.) The Court concluded that

damage to the upper riparian owner's established fishing business was a

special damage for which he could recover, even though the pollution consti-

tuted a nuisance that was "public and indictable" and the stream involved

was a navigable stream. 180/ (See Navigable Waters, post.)

Legislation. There is considerable statutory regulation of the right

of fishing in North Carolina as well as such protective legislation as

requirements concerning fish passageways in dams (discussed under Detention


19/ But see Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195
S.E 43 (1938), where the lawful operation.of a power dam, without negli-
gence, nevertheless resulted in liability for direct damage to lower riparian
land, as discussed under Detention .or Obstruction of Waters with Dams,
etc. ante. '" '
180/ Hampton v. N.C. Pulp Co., 223 N.C. 5350 27 S.E. 2d. 538, 543, 545
(1943) A Federal case involving the same parties reached a different result,
in an interesting and poetic opinion by the District Court (49 F. Supp.
625), but this was reversed on appeal, in 139 F. 2d. 840 (1943), following
the decision by the State Court in the nampton case.






80 -
or Obstruction of Waters with Dams. etc,, ante.) and protection from the
discharge of pollution and other deleterious matters into the waters they

inhabit (see Pollution, post). Other legislation makes it a misd-emeanor
to interfere with, obstruct, pollute, or diminish the natural flow of water

into or through any State fish hatchery, 181/ or, any:licensed fish propa-

gation plant, 2/.-and extends the State .administrative authority over
State-owned lakes to waters of all streams running into them to facilitate
the regulation of fishing therein. 1/

It is a misdemeanor to go 'willfully upon 'the lands, waters, or ponds,"
of another to fish, without the owner's written permission, if notices have

been posted as provided. 184/ This expressly doesn't impair one's right
to fish, in "navigable waters" and "adjoining bays and sounds" (see

Navigable Waters, post), although another statute makes it unlawful to fish

"from land of another" after being personally forbidden by the owner or

given constructive notice, by the posting of certain signs, 5/
Other Nonconsumptive Uses.

There may be other nonconsunptive uses of a watercourse, such as

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


181/ N.C.G.S. sec. 113-245.
182 N.C.G.S. sec, 113.264. For fishing license requirements see sec.
113-443, et. seq., sec. 113-l146, and sec. 113-174*.8 (1955 Supp,)
183/ N.C.G.s. sec. 146-9.
18/ N.C.G.S. sec. 113-120, et. seq.
18/ N.C.G.S. sece 113-155.

7 ... .. +':. .. :. .+.." L;,. I", ` :'-j.







81 -

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

his land would have the benefit of considerable legal protection if the

Court adheres to the principle that no material diminution of the stream

by pumping or otherwise removing water that causes substantial injury to

lower riparian owners will be permitted (except perhaps for domestic or

other natural purposes). 186/ Such uses may not enjoy quite as much legal

protection against the detention of waters in the watercourse by a dam.

(See General Development of the Riparian Doctrine, ante.) Rights to run

pleasure or commercial boats or rafts, or logs, along a watercourse are

discussed under Navigable Waters, post. The Court does not appear to

have expressly considered questions regarding the scenic value of a

watercourse.




186/ It is problematical whether swimming would be considered as, or
treated comparably with, domestic uses of a watercourse, (See! Domestic or
other Natural Uses, ante.)







-82 -


Navigable Waters

Classification.- The criteria employed by the Court for determining

whether & watercourse is navigable or nonnavigable have changed over the

years. The Court early repudiated the old English test that only that

portion of' a waterceire i4 'in-lr i Wh there w as t: ebb'and nfo0i of the tide

would be -considered navigable. T8/ The Court has said that "The common
lqw rule that streams are navigable only as far as tidewat extends de-

veloped from the fact that England does not have to any great extent non-

tidal waters which are navigable. This common law rule has been discarded
in this country." 188/

:The Court in State v. len (1859) classified watercourses into 3

general classes, as follow : ..

(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 unnav-

igable., i : .

(3) All other watercourses which are incapable of island 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

167 Wilson v. Forbes, 13 N.C. 30 (1828).
o/ Home Real Estate Loan Co. v. Parmele, 214 N.C. 63, 197 S.E. 71h, 717
(193). The repudiation of the tidal water test was also affirmed in Resort
Development Co. v. Parmele, 235 N.C. 689, 71 S.E. 2d. i47, 479 (1952).
189/ State v. Glen, 52 N.C. 321, 333-334 (1859). This classification has
been repeated in McLauchlin v. Hope Mills Co., 103 N.C. 100, 9 S.E. 307,
308-309 (1889), and in other cases.
190 Commr's of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E. 941,
941Tl895); Gwaltney v. Land Co., 115 N.C. 579, 20 S.E. 465 (1892).







- 83 -


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 sea going

vessels shall be considered to be navigable. 193/ In other cases the Court

classified navigable waters as all watercourses capable of being navigated,

and which help to form a continuous channel for commerce among the States

and with foreign countries. 194/ This latter qualification was omitted

19 State v. White Oak River Co., 111 N.C. 661, 16 S.E. 331 (1892).
19/ Legislation dating from 1854, 1846, and previous statutes (prior
legislation, Acts 1777, ch. 114, is cited in Bond v. Wool, 107 N.C. 139,
12 S.E. 281, 285 (1890)) currently provides that all vacant and unappro-
priated lands owned by the State may be granted to private individuals ex-
cept: (1) lands covered by "navigable waters" other than for erecting wharves,
(2) "by the waters of any lake" or((3) by any marsh or swamp exceeding 2,000
acres in size or which has been surveyed by the State "with a view to drain-
ing and reclaiming the same," or (i) swamp lands devoted to use as State
parks, State forests, State game refuges or shooting grounds, which shall be
administered by the Department of Conservation and Development, That agency
also has the duty of surveying and determining all such vacant and appro-
priated lands. (5) In addition, State-owned lakes of 50 acres or more and
certain other designated lakes are never to be sold by the State. All rec-
reation, including hunting and fishing, on such State lakes shall be regu-
lated by the State, N.C.G.S. sec. 146-I et.'seq.
Marsh and swamp lands include. "all those lands which have been or may
now be known and called 'swamp' or 'marsh' lands, tpocosin bay,' 'riary bay,'
and 'savanna,' and all lakes which may be covered by the waters of any lake
or pond." It would seem that "lake or pond" refers to a natural lake or
pond. Natural lakes also are included under the fifth listed exemption above.
Notwithstanding the above, more than 2,000 acres of tidal but nonnav-
igable swamp land was held to have been validly conveyed by the State, through
a circuitous route, in Home Real Estate Loan and Ins, Co. v. Parmele, 211
N.C. 63, 197 S.E. 714 (1938).
193/ See Collins v. Benbury, 25 N.C. 277, 285 (1842) 27 N.C. 118 (1844);
Hodges v. Williams, 95 N.C. 331 (1886).
1/ Home Real Estate Loan Co. v. Parmele, 214 N.C. 63 197 S.E. 714, 717
(19-3). Perry v. Morgan, 219 N.C. 377, 14 S.E. 2d. 46, 49 (1941). Also see
other cases cited in Resort Development Co. v. Parmele, 235 N.C. 689, 71 S.E,
2d. 474, 479 (1952), some but not all of which support this proposition.


) ~~_








in a recent description of this: test, in Parnele-.v., aton (1959), where

the Court said that the test is simply "whether in its;ordinary state a
body of water has capacity and suitability for the usual purpose.of nav-
g ;igation by vessels or boats such. asare employed in the ordinary course of
water commerce, trade, and Iravel.... Briefly stated the rule. with us is

.that .all watercourses, are regarded as :navigable in law that are navigable
in fact." In this case a marsh along a coastal inlet that ordinarily

wsE not capable of navigation'byi sntl boats'-driving two'feet

of water wa held, to be nonnevigable, even thcngh It consisted of tidal
water, 191
While the cases discussed above (except, for the cases on "floatable

streamss) involved the construction of the statutes. relating-to .the granting
of .ubtmerged land, the .Court ,ha.: also reached substantially the same

conclusion in some other cases. In a case in 1901 the Court held a branch
of a sound to be navigable wkesh was only about 2 to 3 feet deep and was
travelled over in boats by the publio.- The Court applied the general
test that all watercourses are navigable in law which are navigable in

_at, 197/ The Court notedthat the. pubAal ihas the right to navigate for.,
all purposes, of pleasure or profit all watercourses, tidalor inland: that

19 ,4meLe v. Baton, 2W N.C. 539 183 S.E. d. 93, 99 (19501).
SState v. Baum, ?1 N.Q 6 00 ,3,$ 900(1901).
See :also State v. Narrow s Island Club, 100 N.C, U77 5 S.E. Ull
(1 where the "navigable An 'fact". test was applied in a case re obstruc-
Sting nvigtion.
tin naition... ..







-85 -


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 re-

quired 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 the habit of passing through North Sand Cove before it was

stopped up, and that by its use the distance from one part of the sound to

another was shortened, and navigation rendered safer in rough weather.

These conditions constitute ample evidence of a navigable stream." 99/

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

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

other cases has said that: "If water is navigable for pleasure boating it

196/ The words "pleasure or profit" were also employed in a Federal case
dealing with North Carolina law. Swan Island Club v. Yarborough, 209 F 2d.
(C.C.A. 4th) 698 (1954); earlier decision in a Federal District Court, in
Swan Island Club v. White, 11L Fed. Supp. 95, 99 (1953). The Court held a
watercourse to be navigable although at times even flat bottom boats would
strike bottom in some places, where it ordinarily was capable of interstate
navigation. The navigability of the stream seems to have been conceded by
the parties involved. The Court perhaps meant to limit its stated criteria
largely to questions regarding whether actual navigation of a stream may
lawfully be obstructed, which was the question in issue. (The Court noted
that several of the North Carolina cases didn't directly involve the right
of navigation but related principally to other matters, such as "the right
of entry or fishing," but said that they all tended to show "more or less
accurately" the distinction in the State between navigable and nonnavigable
waters.)
199 State v, Baum, 128 N.C. 600, 38 S.E. 900, 901 (1901).







86 -
must be: regarded':as- navigable water though ol. ecaft has ever been put vpon

it for-,purposes of trade or. agriculture,.- ,The'purpose of navigation is not

the... subWecVof inquiryb t, the factofo. thicapacity of the water for use in

navigation"' 2g00

-,.In. a :case in.1886 theD court held thatra: cert aid watercourse was navi-

gable .even though intercepted by falls, since 'between such falls it could

be navigated for considerable distances, 201/ The case involved a contro-

versy lover the right !to run small freight: boats,., which hauled supplies to

farmers, over a part of the watercourse near the complainant' a frry.

The Court has also said that the question of' ndvigability Is not-affected
by the fact that one or more riparian owners may own all the-land along the

watercourse for a considerable distance, with no .public road leading~to it,

thereby cutting off -access by land.. 202/:

S Certain.granta of sutanerged 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 off 'navigdbility adhered. to -by 'the

courtss at the time of the grant, eve 'though such waters might now be clas-

sifed, as. navigable by reason of later changes made inf the Court's definition,

203/ or, possibly by reason of .changes in the physical circumstances,.

S_0/ Elizabeth City Vater and powerr Co, v. Elizabeth City, 188 N.C. -1,
la i-.E. -61;, 619 (192l), quoting fromState v. Twitord,'13 N.C.608,
48 S.B, 886 (1904).
S 201 Broadna & v. Baker, 9 i.,C. 675, 681 (1886).
State .v. Twiford, 136 N.NQs 603;, B8 s. $586' (l904).
/ resort ieavelopmment Co V. Parmele,';2,35 N.C4 6489,i 71 S.E. 2d. :7.
(192)rp Swan 'Island Club v. Yarborough, 209 F. 2d. (C.C.A. kth) 698, 700
(1953), The Federal Distr$ict Coxt 1i the Swan Island case had: noted that
such a result is based on the rule that "where rights are acquired .undr a
decision"of the Court such righta:mnaf not be impaired by a change of 'con-
struction made by a subsequent decision. Swan Island Club v. vJhite, 11I
Fed. Supp. 95, 103 (1953), citing Wilkinson v. Wallace, 192 N.C. 156, 134
S.E. 401 (1926). (See also Shepard's Point Land Co. v. Atlantic Hotel,
(footnote continued on next page)


jC







87 -

Nevertheless, in a Federal Court 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 in the overlying ,waters. 20/
Riparian Rights as Between Ripariaa Owners, add as Against Navigation

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

volve y20S/
Footnote 203 ontinued- .
132 NC. 517, 44 S.E. 39, 42 (1903), where the Codrt felt bound by some
earlier decisions as a rle of; property .)
An oversight by the Legislature has been said by the Court to have left
lands under navigable, waters subject ,to thei possibility of grant by the State
from 1836 until its il8U6-47 sepston, when the general prohibition against
such grants was reinstated. This omission led .to considerable litigation
over the validity of grants of land under water issued by the State during
this period. But the Court held that, while there was no express statutory
prohibition against such grants during ~this period, the common law rule
would apply and it provided that lands udeor ,navigable waters could 'not be
granted by the State The criteria of navigable 'waters during this period
seems to have been whether they were navigable by sea going vessels' In
Hatfield ,v. Grimstead, 29 N.C, 139 (1846),, the Court in construing 'the
validity of such a grant in 1839. seems 'to have relied mainly on the tidal
water test in holding the.water to be nonnavigable and subject to grant,
but ,t a4so was clearly not navigable for sea. vessels, aor discussion of
the- history .of the oversight itt these early statutes and of the latfield
and other cases see Resort .Development Coo v. Paimele, 235 N1C, 689, 71 S.E.
2d, d47i (1952).: in which a grant by the State in 18ij r as held to be invalid
because the land granted was covered by navigable waters and was not swamp
.lands within the meaning o, N.C.G.S. 1461j4 discussed earlier. See also
Swan Island Club v. White, 14 Fed. -Supp. 95 (1953); :Swan Island Club V ,
'Yarborougp, 209 F. 2d.'iiC.C.A. 4th) 698 (195-).
20/ Swan Island Club v. White, 114 Fed. Supp.~ 95, 103~-10 (1953); Swan
Islad Club v. Yarborough, 209 F. 2d. (C.C.A. kth); 698, 7Q2-703 (1954).
Similarly, the State Supreme Court, in State v., Twiford, 136 N.C. 6o8,
48 S.E. 586, 588 (1904) said that a riparian owner on both sides of a, stream
would have no right to exclude public access thereto for navigation, even
if he had title to the bed, the grant of which was held to be void' But in
the earlier case:of State v. Glen, 52 N.C. 321, 333-334 (1859) the Court held
that where a riparian owner had obtained a grant of the bed of a stream navi-
gable perhaps for boats and rafts although not navigable for sea going vessels,
State legislation which required him and other similar riparian owners who had
built dams which obstructed fish migration to remove such obstructions, with-
out compensation, was unconstitutional. (Footnote 205, next page.)








Is State v, Glen (1859)yte CourtAidaidatd .that as to-watercoursed
i..avigable.by. "boats, flatsoahd rafetst' riariaabwlandowners %ay exercise ind
fleajoy (an) easement, for the purpose of catching fish,. ola F a other ner,
not~a'tcomratible :hthththe~aight which the public have in'the stream, for'
water wiommaniattionm% W6k (Italics s-upplied.) .
.. In l;anther .ae -(i~ al903) aertaird~ riparian -ritsr'P were' :said to. 6.
with grants of lands' bordering on.naigableAwatiers aid to include, among
other things, the right "tto make a reasonable sse t the water as "it 'flows

past." -207/ 'This teand d-o imply that- ipariani rightS, to withdraw' and divert
water from navigable streams may be the same as for nonnavigab1_itret as,
subject only to the protection of navigation and certain othe' public rights.
This was not a direct ruling on this question, however, as the case was

2 see tsodna Bac. 9; NC. 6?75, 681 (l886). where rights to run
freight: boat ear a ripeian 6wner's a ,fiay were imrdlved, cittag lewis'and
JSlcon ca Keating, 4.6 hi~4. :299 -(185k~u whie e rights -of navigatib vs.'"
public FAshing rights were An:olved.!e See also ,State* v, N eW',t Iland Club,
100 N.C. 477?, .5 Sc.E. U11 (188'), where ir6n posts which efre stuck in the
bed of a sound might obstruat. navigation. .
S206/ State 0Glen, .52. NeG. -32-, 331331- (1859). -
?+ ]JShepard', Point Land Co., Yv Atlantic Hotel, 132 e- $ l.517,l 4 S.E. 39,
46T1T903), inr part quoting gie idoonatt o nent Domain, sfec& 83. AceOditrery view
was disauseasobut not adhered t~, *o, pp6 4 4 .-5$ of the s ime aseaw. "I~i somne
cases the Count'Jsaiditbiat a riparian owner has a "qualified p'roperty- right"
in the ;waterfrontage along navigable waters which beldonj s by nature' to such
lands., chtaf among which is a righn of aqdesa thereto~', either V 4 Albe~hale
Hospital, 23% N.C. 431, 7.0 SE. o 2- 60 (19Y,9 citing, Bond V. Wdbd,1i3 N.C,
20,t 12 S3E. .'2-81 89>). ~it rights to use the waters for an rpart~uldwTur-
poses other than public.-uses or rights tb6 luild haixves$ piers, bet'aldn
the waterfrontwere nsot cdhgtered J.n these cases. '? :. '~
a In at least 3csore aa-tci Purt''iasi aUd that "riparian right arei prop-
er.by inident to ltand butting on navigabl3e iatek', and cannot be conveyed
without a conveyance of the lank 6o i*hich ,uch. rights,:re- incident." Atltantic
and-.,N G. R, Co.'. iWay," 16 QC.4, 8 S.Ei.12,. 519(9195); Zimrerman v.
Roblnson, 114i N.C., 39' ~PE.,Q2;Xl894;). WShparda's Point Land Co, v ;
Atlantie Hotel, 13: MNXC 397>, Adi S9E.. 748 '(1904),: But except for the last
-catae. the t Court did not enlarge; poywhat, such r.ir par rights might include,
other thah" access to a, ateifront .- The Court ih+ achI case was interpreting
the State' s entry, laws for obtaining wharfage' rights :along such" waters ahd
held that sdch rights duldb.only be obtained in connection With riparian land.


L






-89- -

Ssiply a. suit to recover possession of certain lands covered byqwater.
However, the Court: in Elizabeth City Water and Power Co. v. Elizabeth

City (1924) quoted from State v. Twiford (1901) to the effect that the coji-
trQ: of navigable waters belongs to the public, "is not appu~tenant to owner-
ship 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 re-
served:for free and unrestricted use by the public for all time. ihatevdr
monopoly may obtain on land, the waters are unbridled yet."2/ This was
.also quoted in a recent Federal case as' having a bearing upon the inter-
pretation of the North Carolina statutes relating to grants of submerged
lands by the State,$ upon the. validity of certain gtrnts, and ipon fishing
and hunting rights in navigable waters, 209/
In the Twiford case the only question in issue was the right of a
riparian owner of both sides of the stream to exclude public access thereto
for navigation and fishing by placing obstructions (posts) in it. The Court
held that there .was no such right. Rights to divert and use such waters
were not involved.. -The principal questions in issae in the .lizabeth City
case included the respective rights of -the complainant water and power com-
pany and the defendant city, as against each other,-"to constrt t 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, sane language if there had been no dam involved is
problematical. In any. event, the dispute was between two quasi~.pblic
206/ Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 27,
12StE. 611, 619 (1924)., quoting from State v, Twiford, 136 N,C;: 608,
48 S.E. 588 (190). .
209/ Swan Island Club v. Yarborough, 209 F. 2d. 698, 701 (1954); Swan
Island Club v, White, 144 Fed. Supp. 95, 103 (1953).






- 90 -


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 also is

problematical,

The Court in the Elizabeth City case held that the complainant had lost

any rights 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 re-

place 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 prop-
erty. No condemnation by plaintiff is alleged, if under
the charter it had the poper. 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 inhabitants 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 authorities. It used the public navigable stream
and sold the public water without paying for it, now it
complains that the legislative branch of the government
had repealed, in 1923, the act of 1919, giving it a right
to dam the stream, which plaintiff 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

210/ In Asbury v. Albemarle, 162 N.C. 247, 78 S.E. 146 (1913), however,
the Court held that the Legislature can exercise no more control over
municipalities in their proprietary, quasi-private functions, including
the furnishing of a water supply,than over private corporations,and could
not force them to acquire certain existing water works,






I" 91 -


Free, public water .a11 these yearss. transporting and
selling it." 2

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/ (See Municipal or

Public Water Supply, ante.) These two positions would not be entirely in-

consistent, although they would be more compatible, if the State were re-

garded as the guardian or trustee of navigable waters held in trust for
navigation and other public purposes. The Court in some other cases has

indicated that public rights of floatage and fishing are not derived from

the State, although they may be regulated by it. 21/
Except for the Elizabeth City case, the Court has seldom expressly con-

sidered the question of rights to make domestic, irrigation, municipal,

industrial or other consumptive uses of water in navigable streams, as against

the public or other riparian owners, in contrast with the use of nonnavigable
streams for such purposes. 2
211 Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278s
1T ll~EE. 61*i -619 (1924). This case. is. also discussed under Dams, Public
Water Supply, and Condemnation and Related Proceedings.
S21221 The municipal and nonriparian nature of the use was not in dispute as
boT- parties were seeking to make the same type of use. The Court held that
the, water company .could not enjoin the city froa- constructing its owni water
supply system under a special legislative charter authorizing it to do so
and construct a dam in the stream, whiob. the.-Eorplainsnt sadd would interfere
with its water rights in the stream and would constitute unjust competition
.. and duplication: of facilities In .rgaeslati; v. Washington, 234 M.NC, 117,
66 S.E. 2d. 794 (1951) the Court held likewise about the situation of a
town' s water supply system meeti3ag -ematition frpm another town or water :
company, construing N.C.G.S. sec. 160-255.
213/, See Floatable Streams, and Fishing, below. :,
it_/ In the early case of Pugh v. Wheeler, 19 N.C.!!50, 5h (1836) dealing-
wiEha nonnavigable stream there Court said that as to the sea and other bodies
of water so immense that they cannot be, appropriated, by individuals, to be kept as common; highways and "enjoyment of all men," particularar persons
cannot acquire a right-that is, a several and exclusive right, by use or any
other means." But it is not very clear as to what the Court meant by this.






92 -
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 fishing and swimming rights may be protected against such

uses is not so clear,

Dams and Other Obstructions.- Certain legislation relating to dams has

been discussed earlier, under Detention or Obstruction of Water with Dams, etc.

The Court in Elizabeth City Water and.Power Co. v. Elizabeth City (1924),

discussed above, used language suggesting that it may be necessary to obtain

permission from the State to erect a dam in a navigable stream. 215/ (It

refrained from deciding whether the State may validly grant permission to

build a dam which materially interferes with navigation or other public

rights, 216) This case, however, dealt with the respective rights of two

quasi-public corporations to build such a dam under special legislative acts.

There apparently is no express general statutory requirement that per-

mission be obtained from the State by private citizens before building a dam

in a navigable or any other stream. It may be doubted whether such per-

mission could be validly granted by the State if navigation, particularly

interstate navigation and foreign commerce, were thereby materially obstructed.

(See Federal Interests in Navigable Waters, post.) But in one case the Court

said that some slight obstruction of navigation by a railroad bridge built

with special statutory permission would not be enjoined. 217_/ The construction

of certain dams has been authorized by special State legislation, as was the

case in the Elizabeth City case discussed above.

215/ Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278,
1s.E. 611, 619 (1924).
S6/ The Court said, on p. 619: "To what extent the Legislature could give
away a sovereign right, we are not now called upon to pass on."
217/ Pedrick v. Raleigh, 143 N.C. 485, 55 S.E. 877 (1906)..






- 93 -


..: In a recent cas ..(in 1952) the Court said that' ny material obstruction
of a navigable watercourse that is not authorized by the proper governmental
authority ordinarily constitutes a public nuisance, even though it may be a
source of public benefit or does not. actually interfere with navigation, if
it makes navigation less convenient, secure, or expeditious-. 218 The Court
came to substantially the same conclusion in two earlier cases where poles
had been driven into the beds of submerged waters. 2191

Legislation dating from 1787 (N,C.G.S, sec. 77-3 et seq,) provides that
boards of county-commissioners may aoint commissioners to lay off the rivers
and creeks therein so as to "allow three-fourths for the owners of the streams
for efe'" .sipes, cams -an i-ans a. one uU'U pa, J.k--. -. tha
deap ,pata, they shall leave open for the passage of fish, marking and
designating the same in the best manner they can; and if mills are built*
across such stream, and slopes may be necessary,- the commissioners shall lay
off such slopes, and determine the length of time they shall -be kept open;
and such commissioners shall return .to their- respective boards of' county
commissioners a plan of such slopes, dams, and other parts of streams viewed
and surveyed, "
SThe county commissioners also "shall have power to lay off gates, with

slopes attached thereto, .upon any mill-dam built across such btream, of such
dimensions and construction as shall be sufficient for the convenient passage

'21 G"aither v. Albemarle Hospital, 235 NC. 31, 70 S.E. 2d. 680,692
(12). This case involved the obstruction of a riparian owner's water-
frontage by building a breakwater and park, which the Court 'enoined.
219 State v. Narrows Island Club, 100 N.C, L77, 5 S.E. Ull (1888); State
v., aim, 128 M.C. 600, 38 S.E. 900 (1901). Other cases involving obstructions
of navigation of streams, other than with dams, include Reyburn v, Sawyer
128 N.C. 8, 37 S.E. 954 (1904) (obstruction with fish nets), '" State v'.
White Oak Corp., 111 N.C. 611, 16 S.E. 331 (1892), (obstruction by felled
tree) i.nd State v. Twiford, 136 'N.C. 603, 48 S.E. 588 (1904) 'obstruction by
poles stuck in bed).






- 94 -


of floating logs and other timber in cases where it may be deemed necessary

by the said board of county commissioners."
It is also provided that "Upon the confirmation of the report made by

the commissioners, and notice thereof given to the owner or keeper of said

mill, it shall be his duty forthwith to construct, and thereafter to keep
and maintain, at his expense, such gate and slope, for the use of persons

floating logs and other timber as aforesaid, so long as said dam shall be

kept up or until otherwise ordered by the board of county commissioners."

The county commissioners may order the discontinuance of such gates and

slopes when found to be no longer necessary*

Failure of any mill owner to comply with such requirements constitutes

a misdemeanor. But it is problematical whether one who erects a dam other

than for a mill is subject to this legislation.

The faeninl]Qybigi-B. r. p fi with the Wildlife

Resources Commission, the State Board of Conservation and Development, orn

other State agency in determining the type and size of pasagma~y to be left

in such dams for the passage of fish or logs. It seems somewhat doubtful
whether the county commissioners-ma~be-te of whether such a

dam should be permitted which may obstruct naviation b a 220/ although

its determit ay b i weight

Legislation also permits boards of county commissioners to appoint
commissioners to open and clear rivers and streams in the county. (N.C.G.S.

sees. 77-1 and 77-2.) Their authority to regulate the construction of dams,

as described above, is not expressly limited to streams which they have thus

opened and cleared,

220 See Gwaltney v. Land Co., 115 N.C. 579, 20 S.E. 465 (1892). Also see
notes under N.C.G.S. sec. 77-3 for related statutes.






96 -
95-
The Court; in a case in 1892 .aaid with -respect to prior legislation;

"The legislature has made provision in certain cases for. opening dans so as
to permit the passage of logs floated over them to market.o.. The county

commissioners are clothed with authority to have streams cleaned out. It

would seem that these sections were passed entirely with reference to float-

able streams, because, without condemnation, the commissioners would have no

right to enter upon and clean out the beds of streams which were not natural

highways." (See Floatable Streams,, post.) The operation and effectof this
legislation were not actually involved in the case, But the Court did hold

that: "If there were floatable strea s, in id~ich the public has an easement

for transportation, it would be the duty of the county commissioners, cer-

tainly in the absence of express authority to the contrary, :to so construct

bridges on the highways as to permit the use of rivers for the purpose of

S floatagee." 22/

In another 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 injunction would not be granted

to prevent such construction. 222/ The Court said that this was a question

for determination by the county commissioners under the existing (which was

similar to the current). legislation. 223/

22/ Commissioners of Burke Co. v 'Catawba Lumber Co., 116 N.C. 731, 21
S.Et 941 945-946 (1895).
222/ McLauchlin v, Hope Mills Mfg. Co., 183 N.G. 100, 9 S.E. 307 (1889).
The Court indicated that the commissioners had held a public hearing before
granting such permission. A public hearing is not expressly required by
the current legislation.
223/ The Court noted that by prior special legislation (Acts 1848-49;
ch 197) overseers appointed by the county courts of certain counties, in-
cluding the county in question, had the duty to remove all obstructions and
see that those who erected dams for mills provided "good and sufficient .
slopes for the free passage of all rafts of lumbero..and other products."






96 -

However, the-Court emphasized that no special damages to the complain-

ants, who were private citizens, had been claimed, and that it was not nec-

essary to determine whether the dam might constitute a public nuisance.

The complainants seem to have been primarily concerned about the possible

interference with their use of the stream:to transport timber, turpentine,

and other produce to market. The Court concluded that? "The extent to which

the riparian owner may go in the erection of dams, etc., to apply the use of

the water to the propulsion of machinery, and the extent to which the state

may authorize obstructions, present interesting questions, the consideration

of which is not necessary for the determination of the case before us." 22_/

Following are two North Carolina statutes which declare certain types

of obstructions of navigable streams to be a misdemeanor,

(1) N.C.G.S. seco 77-12 provides that "If any person shall obstruct

the free passage of boats along any river or creek, by felling trees, or by

any other means whatever, he shall be guilty of a misdemeanorr"

(2) In addition, N.C.G.S. sec. 77-13 provides that: "If any person

shall willfully fell any tree, or willfully put any obstruction, except for

the purposes of utilizing water as a motive power, in any branch, creek, or

other natural passage for water, whereby the natural flow of water through

such passage is lessened or retarded, and whereby the navigation of such

stream by any raft or flat may be impeded, delayed, or prevented, the person

so offending shall be guilty of a misdemeanor, and fined not to exceed

fifty dollars, or imprisoned not to exceed thirty days. Nothing in this

section shall prevent the erection of fish dams or hedges which do not

221 McLauchlin v. Hope Mills Mfg. Co., 103 N.C. 100, .9 'SE. 307, 309
(1B59J).






97 -
extend across more than two-thirds of the width of any stream where

erected." 225/

Floatable Streams.- The Court has held that streams which will naturally
and ordinarily float logs, although they may not be capable of other navi-
gation, are floatablee streams." It has said that there is .a public ease-
ment in such streams for such purposes which is superior to any rights of
riparian owners. 226/

The Court in a case in 1895 said that's "It is not necessary, in order
to. establish the easement in a river, to show that it is susceptible of use
continuously during the whole year for the purpose of floatage, but it is-
sufficient if it appear that business men may calculate that, with tolerable
regularity as to seasons, the water will rise to and remain at such a height
as will enable them to make it profitable to use as a highway for trans-
porting logs to mills or markets lower down." 227/

In an earlier case, the Court further applied the test that "a temporary
rise, passing quickly down, is not sufficient to make a stream floatable" :
even though it could be reasonably expected every year. 228. But this addi-
tional test vas expressly discarded in the case quoted above, as being too,
arbitrary since it would apply without regard to the profitability of floatage
or the condition of the stream, i.e., whether swift or sluggish. 22/

g2- As might be expected, this latter section has been construed by the
Court not to be applicable to the construction of dams used as motive power,
nor unless the obstruction was willfulI,- State v. Narrows Island Club, 100
N.C. 477, 5 S.E. U11 (1888); State v. Baum, 128 N.C. 600, 38 S.E. 900 (1901).
But the .Court in both cases: indicated that there would still be a possibility
of a common law legal action against such conduct.
226/ Commissioners of Burke Co. Vo Catawba Lumber Co, .116 N.C. 731, 21 S.E.
94I7189-),-' with one judge dissenting. Earlier decisions in 115 N.C.$90,. o "
20 S.E. 707 and 847. See also Gwaltney v. Land Co., 11$ N.C. 579, 20 S.E.
465 (1892). Earlier decision in 16 S.E. 692. .
227/ Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 7.31, 21
S.-. 941, 942 (1895).
228/ Gwaltney v. Land Co., 115 N.C. 579, 20 S.E. 465 (1892), earlier opinion
in 16 S.E. G 92.
229/ Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21
S.S. 91, 943-944 (1895).






98 -

The Court noted further, (1) that the public right of floatage is limited

to streams which are naturally floatable by the above definition, not to
streams where artificial means are necessary such as by deepening the

channel or installing locks or dams with gates, and (2) "the right of float-

age must 'be exercised with due care for the avoidance of injury to the

interests of the riparian proprietors and the owners of the soil beneath the

bed of the stream'."

The Court indicated that a different test of navigability might apply

in determining the question of the validity of grants to submerged lands

(discussed earlier), and also noted that: "Perhaps it may not be improper to
add that, where a stream is not floatable, it can be used for the transpor-

tation of logs only by a license from the owner of the bed of the stream or

the riparian proprietor." 230/

The Court in another case said that a stream which would float logs in

all seasons except in the summer was a floatable stream. It concluded that

a State statute designed to prevent obstructions in streams could validly be

applied to such a stream, as well as to streams navigable by small boats. 231

(See legislation.)
The Court in a case in 1900 suggested that the right of floatage in

floatable streams might constitute a riparian right as well as a public right,

It said that the public easement of floatage is not derived from the State

(although it may impose proper regulations in the public welfare) and can-
not exist in the general public without belonging to each individual who may

230/ Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21
S.-. 9l1, 945-946 (1895).
231/ State v. White Oak River Co., 111 NAC. 661, 16 S.E. 331 (1892).





jI






- 99 -


exercise the right. 232 But the Court denied any intention of reversing its

earlier statement in the case discussed above to the effect that the public

right of floatage is superior to any private riparian rights, 23

Floating Logs in Nonfloatable Streams.- The Court has held that one who

floated logs in a stream found to be not naturally a floatable stream was

liable for any damage to a lower riparian owner's dam and fish trap, irres-

pective of any negligence in handling the logs. 23/

Rights and Regulation of Navigation.- The Court in a 1927 case said:

"One's right to navigate a public river is not private,
but a public right to which he is entitled only in common
with the whole public. Any and all of the public have an
equal right to a reasonable use, but the enjoyment by one
necessarily interferes to some extent, for the time being,
with its absolutely free and unimpeded use by others and
each must exercise his right with a proper regard for the
rights of others. Navigable waters constitute a public
highway open and free for the passage of all classes and
sizes of water craft which have a right to follow the
usual channels. And a traveler for pleasure is as fully
entitled to protection in using a public way, whether by
land or by water, as a, traveler for business. This common
right exists not only between boats but also between boats
and logs floating down a stream." 23_5/

The public right of navigation has been subjected to a variety of

governmental regulations--State, Federal, and local.

Navigation vs. Other Public Rights.- It would appear that the right of

navigation may be superior to all other rights of use, public or private, in
232/ Hutton v. Webb, (2 judges dissenting), 126 NC..i897, 36 S.E. 341 (1900),
earlier opinion in 124 N.C. 749,. 33 S.E. 169, The Court held that riparian
owners using a naturally floatable stream for such purposes could not validly
be taxed by the State for floating logs down such streams unless the State
had ,artificially improved these streams and the tax assessed was related to
the benefits from such improvements, which was, not the case. The Court sug-
gested (on p. 342) that the same might also be true of uses for. floatage pur-
poses by the public other than riparian owners, reserving opinion as to
whether the use by riparian owners of floatable streams for floatage purposes
is in the exercise of their riparian or public, rights, or both.
233/ Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 SAE,
9rT71895)o,
23/ Gwaltney v. Land Co., 115 N.C. 579, 20 S.E. 6S5 (1892).
Cromartie v. Stone, 194 NC. 663, ILO S.E. 612, 615 (1927).






100 -
navigable streams. But in a 1906 case the Court held that some slight
interference with navigation would be permitted for the public good, as by

a railroad bridge erected under a public charter. 236/

The Court has held that the public right of navigation is superior to
public rights of fishing as being more important to the "public weal." In

one early case it held that a'steamboat could go up to the bank of a river
wherever necessary to do so without liability for running into a fishing

seine, if not done wantonly or maliciously or so as to cause unnecessary

damages. 237/ But persons engaged in navigation may be held liable for

negligently damaging those engaged in fishing, 238

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. 239/

In one case the Court indicated that the public right of fishing, while

subject to regulation by the State, does not depend on any grant from it as,

it said, was true in England. 2LQ/ The right would appear to extend generally

to waters ordinarily navigable by commercial or pleasure fishing boats. (See

236 Pedrick v. Raleigh, 143 N.C. 485, 55 S.E. 877 (1906).
7/ Lewis and Jackson v. Keeling, 46 N.C. 299 (1854). See also Reyburn v.
Sawyer. 128 N.C, 8, 37 S.E. 954 (1904).
238/ Spruill v. Branning Mfg. Co,, 180 N.C. 69, 103 S.E. 911 (1920);
Hardison v. Nat'l Handle Co., 194 N.C. 351, 139 S.E. 614 (1927).
239/ Skinner v. Hettrick, 73 N.C, 53 (1875), approved in Hettrick v. Page,
82 N.C. 65 (1880); see also Bell v. Smith, 171 N.C, 116, 87 S.E. 987 (1916),
Daniels v, Homer, 139 N.C. 219, 51 S.E. 992 and 59 S.E. 1131 (1905).
2OJ/ Lewis and Jackson v. Keeling, 46 N.C. 299 (1854). The Court in one
early case suggested, without deciding, that public fishing rights attach
only to tidal and not to nontidal navigable waters, to which private fishing
rights attach, reasoning from the Court's stated conception of the English
common law, Ingram v. Treadgill, 14 N.C. 59, 61 (1841). But this notion
appears to be repudiated by the CourtJs later statements in the cases dis-
cussed above. While no nontidal navigable waters were actually involved in
most of these later cases, it had been held in the Ingram case and other cases
that the term "navigable waters" includes more than tidal waters. Moreover,
a nontidal part of a river was perhaps involved in Lewis and Jackson vy IKeeling,
op, cit., which was admitted to be navigable. The Court said that fishing
rights therein were public, not private rights, In State v. Glen, 52 NC., 321,
333 (1859), the Court indicated that public fishing rights extend at least to
watercourses navigable by seagoing vessels, whether tidal or not.






- 101 -


Classification, above.) Whether it extends to streams floatable for logs

but ordinarily not navigable by fishing boats is problematical. 21/

The Court has indicated in some cases that generally no "several," or

exclusive, right of fishing in any certain location may be acquired in nav-

igable waters, irrespective of the length of time that anyone has continued

to fish in a particular location, and that the ownership of riparian land

provides no exclusive or preferred rights to fish in the adjoining waters. 242/

The Court held in an early case that a riparian owner's natural advan-

tages in fishing in the adjoining waters would not entitle him to bring suit

against the owner of a milldam below which was said to be lawfully located

on the stream, for obstructing the migration of fish upstream. It was not

clear whether this was a navigable or nonnavigable stream. 2 3/ In a later

case (in 1943) the Court held, however, that a riparian owner along a navi-
* gable stream had suffered damages of a "sufficiently special and personal

nature" to maintain a legal action for damages, where the upstream migration

of fish was adversely interfered with by pollution of the waters downstream,

which was held to be a clearly unlawful act, in violation of legislation pro-

hibiting such pollution (discussed later). 244/

In the latter case the Court said that there were public rights of
* fishing in the navigable river, providing they were exercised "with due re-

gard for the rights of others," and "subject to the superior right of the
2/ Some Courts have so held in other States. See 47 A.L.R. 2d. 386.
2&/ Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916); Skinner v. Hettrick,
73 N.C. 53 (1875); Lewis and Jackson v. Keeling, 46 N.C. 299 (1854).
243/ Dunn v. Stone, 4 N.C. 241 (1816). Legislation requiring passageways.
for ish to be left in dams, discussed later, had not yet. been enacted, the
Court noted that prior to this legislation it was usual to build dams without
such passages, .
2/ Hampton v. N.C. Pulp Co,, 223 N.C. 535, 27 S.E. 2d. $38 (1943). A:
Federal District Coirt involving the same parties reached a different resiLt
in an interesting and poetic opinion (49 F. Supp. 625). But this was re-
versed on appeal (in 139 F. 2d., (C.C.A. 4th) 840 (1943)) following the
State Court's decision.






- 102 -


complainant as to the area actually occupied and being fished," noting that
the complainant had an established fishing business operating from his ri-
parian land. The Court noted that. the complainant owned no part of the
bed of the navigable river "and therefore has not a several and exclusive
fishery, as that term is known to the law." The Court indicated that "the
owners of several and exclusive fisheries upstream may maintain an action
for wrongful interference with the migrating passage of fish whereby these
fisheries are injured," and concluded that the necessities of the complainant
who "was taking fish from a common fishery" were the same, "that is, that
the fish come into the nets, :and said that "the same principles of law must

apply" /2451 -
The Court in an earlier case:had noted,.however-, that "the right of
fishery in navigable waters is open to all, and must be exercised by each

in due turn without interfering with the reasonable exercise of the same
right of others. Such a right is similar, -though not identical, with the
enjoyment of property by tenants in common." 26/
Still earlier the Court had held that a riparian owner along a navi-
gable stream did not have an exclusive right of fishing unless it was
derived from an express grant from the State. 27 Nevertheless, in a
recent Federal Court case dealing with North Carolina law that Court said
that even if title to the bed of a navigable stream had been validly obtained
the ownership thereof would be subject to the public right of fishing in the
overlying waters. 248/
*2 M aiipton v. N.C. PIp Co., 223 N.C.. 35 '27 S.. 2d. $38s, 56 (1943).
Bell v.'iSmith, 171 N.C, 116, -87 S.E. 987, 989 (1916)
S Collins v. Benbury, 27 N.C. 118, 127 (18&); cited in Shepard a Point
LaC, o. v. Atlantic Hotel, 132 N.C. 517, 4 S.E. 39, 45 (1903). .
2~8 Swan Island Club v. White, 114 F. Supp 95, 103-1046 (1953);: Swan
Island Club v. Tarborough, 209 F. 2d. (C.C.A. 4th ,698, 702-703 (195).







103 -

While valid grants of land inder navigable waters ordinarily cannot be

acquired by.private individuals, :general legislationi dating from 1874 pro-

vides that anyone who has lawfully acquired such a grant may'establish a

fishery on:such land and if he improves the same by cutting away roots,

stumps, and other obstructions so as to haul fish nets or seines thereon,

or erects platforams or other structures for such purposes, he and his suc-

cessors in title shall have prior right to the use of such land (and pre-

Ssumably the overlying waters) for such purposes, and no one else may use

such land for such, purposes without his consent. 21/ But he is not relieved

from liability *sr %hekeby obstructing navigation.

S Significance bf- Privte Ownership of Bel o.i''i avigble Watercourse. -As

already indicate ^under Classifieation, above), ilads unde1 navigable waters

ordinarily cannot be validly granted by the State to private individuals. 20

1ut there.have been instances where valid grants were made of beds of streams

classed as nonnavigable at the.time, which would now be classed as navigable,

In the early case of State v. Glen, in 1859, the Court held that where

the owner of a milldam had obtained an express grant of the bed of the stream

fXom the State without any reservations on its use (in addition to earlier

separate grants of the adjoining lands) the State buld :not make him tear

down his dam, without compensation, to- provide free passage for fish on the

Stream. The Court held, that the stream possibly was navigable by small boats

S ..but was not navigable 4 lftge boats or seagoing vessels and- hence the State

could validly grant title to its bed under the law applicable at that time.

2L/ N.C..S. sec. 113-233, This.legislation was discussed in Bell v. Smith,
17iN.C. 116, 87 S.E. 987, 988 (1916), where the Court indicatAd the need of
making improvements before a right of exicusive fishery would arise.
2/ The same is true of lakes and certain swamps, as discussed earlier,


_ _


1






.- i1Oh -


The Court refriated fi# ded.ig he.r such a grant would ptvide the

owner of the dam with asy p4Cq ia dgegntges as against other riparianI
owners.,

In ams.p of.te ; caesin i h4cb thez Court enifrubd thoestatUtis riliting
to grants by trhe yState opf LandaS er water sthe questions in isbue sitiply
involved bte validity .of sach granatls Aath6t a ntioanit ithe deb 4 whcth

such lands had been or i-ght ,b pt 2In/ (Seeral aof these cases inlved

the qusatiPn of ownership of marsh lands or lands e*qvred by slougli.) In
one case,. however, the etr ,der i ,an agre stof saleh agaereed t ig

a canal through the lownadpg, to e -sold a;-me of which 'lay between the low

and after marks a tidal vatersy addepospitq -e escavated sterial

ppon the pt tipaulr suanerged lands s a to rai.e them above the high water

level

.The significance-of owneribp of the bed-so far as fishing and hunting
rights are concerned is discussed a boYve, under Fishing aightei 'Otheirpoissible
uses accapanaying the ownership, -4 such lands while subaeirgedjaiUght be for

timber or nrineral prawoses. 4chb ovaerbshp hay also have significiiane in

regard to deterpining the ownership of islands or land wieposed -by a lowered

water level or other phpnena. '- .1
N.C.G.. sec. l6-6eaessly permr4t the State to gian t Iie d and

to riparian owners along the banks oaf ariable watercourses fr th'pios e
of constructing, Iharves, purt 4 dqp water. "But persons making such entries

251a 5 ;Ce 324 41q859). a1 o ; -
Parele v. Eaton, 240 N.C. $39, 83 S.E. 2d. 9)4 Sioag j velop-
M M o, ,v, Paiple.2; NX.C. 689 71 i.E. 24d, I7t82 2) a'Perrj vHorn,
'219 N.C,,377, 3 l73.E. 2d. 46 (19 ).,
2g/p e tReal Estate Lean Co, :Parmele, 214 N.C. 63$ 197:84347fLT (1938).
'




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