Title: Artificial and Developed Watercourses
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Permanent Link: http://ufdc.ufl.edu/WL00003163/00001
 Material Information
Title: Artificial and Developed Watercourses
Physical Description: Book
Language: English
Publisher: The Conservation Foundation
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Artificial and Developed Watercourses
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 16
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003163
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


124 -

Artificial and .Developed Watercourses
Artificial watercourses may include,' among other things, artificially
constructed canals. or stream channels,' or ponds or lakes which have been-

artificially constructed with the aid of. dams, excavations, or other means,
which are located in or connect with a natural watercoirse. Frequently
there may be a mixture of natural and artificially developed waters in a
natural watercourse. The term ."artificially developed waters" is herein
meant to include waters which would not: have been found to exist naturally

in a particular .location at a particular time. 'Tis' would ordinarily in-

clude some portion of the. waters detained ina pond or lake above a dam.

Artificial. Watercourses,

We shall first consider rights in artificial watercourses such as
canals or artificially constructed stream channels,

In a case in 1902: the Court- indicated that there would be no liability
in cases ,where water is diverted from a stream on one's land into artificial
ditches or canal: located solely on such land, if the water is returned to
the natural stream before it leaves such land. 1/ But the Court in an

1882 case stated that while: a riparian owiier.. ma use the water while it
runs on his land, he cannot unreasonably detain it. ...and must return it
to its ordinary channel when it leaves his estate." 310/ (Italics supplied.)

In an 1884 case the Court indicated that one could be held liable where
another's lands were flooded by reason of the diversion of part of a

SBriscoe v. Young 131 .C, 386, 42 S.E. 893 (1902).
- /- Walton. v. Mills; 86 N.C. 280, 282 (1882). Also see Nantahala Power
andLight Co. v,. Moss, 220 N.C. 200, 117 S.E. 2d. 10 (19~1) where the Court
held that the diversion of water. frmo a power dam's reservoir through a 'tube
to a power plant and its return to the stream at a point below the lands of
some lower riparian owners was the proper basia'for cbk6demnation," suggesting
that there might otherwise have been liability for such diversion,

pI ,






- 125 -


watercourse into a canal with inadequate carrying capacity. 321/ Moreover,

it would appear that the use made of the water otherwise must be lawful

to avoid liability. The withdrawal of water from such a canal, or pond

into which it may lead (particularly for nondomestic purposes), so as to

materially diminish the flow of the natural stream may be especially

questionable. (See General Development of Riparian Doctrine, ante.) The

Court has indicated that compensation would need to be paid for diverting

part of the water of a watercourse through a canal into another watershed,

to enhance the drainage of upper farm lands, if this materially reduced the

flow of water reaching a lower riparian owner a mill, causing material

damage. 322/

In any event, the Court said that, there would be, liability for such

diversion and return if the natural watercourse ran along the boundary of

one's land and the artificial course were returned to it at.a right angle

so that the water was thrown onto the opposite owner's land. Similarly,

liability was imposed in a case (in 1904) where a stream was diverted out

of its watershed into another stream (which ran along complainant's land)

at right angles so that similar damage resulted. 323/ The Court in a number

of cases held or said that there would be liability for diverting

either the entire or a part of the flow of a watercourse and thereby casting

the water upon or flooding others' lands to heir damage, apparently whether'

2/ Fleming v. Wilmington and R Co., 115 N.C. 676, 20 S.E. 714 (1894)..
This case was complicated, however, by condemnation by a railroad company.
(The Court has followed a similar rule regarding the capacity of ditches
built to drain surface waters. Barcliff v. R. Co., 168 N.C. 268, 84 S.E.
290 (1915). It may be noted, however, that in cases concerning drainage.
into a natural watercdurse on one's own land the Court has: repudiated any..:
requirement that natural watercourses have duffici.pt capacity to carry, tWe
drainage water. See' Drainage, post.)
322/ Williamsor'v. Canal Co., 78 N.C. 156 (1878)..-
Craft v. Norfolk RR Co., 136 N.C. 49, 48 S.E. 519 (190L).


-----J__~__~_~________~______~_________ ~






- 126 -


such lands are riparian or nonriparian, or lie within or without the

watershed / 2

The Court in at least two cases has said that "a canal cannot be
considered a natural watercourse unless it is a mere enlargement of a

natural watercourse.!' 32_/ These cases involved the question of whether

a particular drainage ditch would qualify as a natural watercourse and in

both cases the Court held that it would not. In one case the Court said

that the fact that the canal in question was the most convenient way to

drain a farm, i.e., along-the natural drainway from it, would not make the

canal a natural watercourse. 326/ In the other case, the Court so held

even though the drainage ditch may have been the only way to drain the

farmland.; 32./ The canal or ditch in both cases was shown to have been: laid

artificially across another's land. Not being:a natural watercourse, it

has held in the first case that there was.:no extensive, right of drainage

into it at a point on oe's own land without liability (see Drainage,

post) and in the latter case that there was no right to be protected

against the lower damming of a river into a tributary of which the ditch

drained. -.

In another case the Court noted that a. certain pond, built long before,

.had eXisted "for generations" and had acquired a definite boundary which was

3.24/ See case discussed and cited under General Development of the Ripar-
ianDoctiine; ante; 'note 47, et* seq,
S25. Porter v. A.ristroig.129 N 101, .39S..E;799, 801: 1901). Darr v.
Caro-inma Aluminum Co.,'215 NC. 768, 3 S.E. 2d. 63t,. W (19393).
S326/ Pozter v. Armstrong, 129 N.C. 101, 39S.E. -799 .(1901).
S Da 'v.: Carolina Aluminum Co., 216.N.C. 768, 3 .S. 2d~ 34, T37
(1939)~ A drainway may be an enlargement of a natural watercourse which
carries the same natural waters which it did before the. enlargement, but at
a faster rate so as to gperm't more rapid runoff.. It may:consequently carry
less water during dry seasons.. What the Court-might hold about the nature
of rights to use such a stream is problematical.


1







- 127 -


held to be the controlling boundary isAb `called for in a deed of, conveyiice.

The Court indicated that when a pond has existed until it is a well-knboih

landmark and considered by the community as a permanent body o ter with

boundaries as well defined as natural lakes, the rule regarding boundaries

is the same as that applied to natural lakes. 38/ (See Boundaribe ante.)

S Such an artificially constructed body of water, particularly if it

connects with-a natural watercourse, sometimes might eventually become sub-

ject to the saiegeneral ruleaswhich ate applicable to the natural water*.

t: course. The Court ina case in 1908:said that's

"e. where. nt upper proprieto~, by an artificial structurer '
on his own'premises, has caused a change of a stream in
Which they both have riparian rights from the original to
a new channel, under circumstances which give indication
.that thae change Isj-bo be a permanent one anid the lower
proprietor, accepting the change, has built mills and made
improvements dependent ~amthe flow of the stream -IitW tbeid
course, the enjoyment and use of these improvements will,
under certain.circumstances, be protected by dinjuntive
relief, or other efficient action of the courts. These
.; ; dlions cart well be -pheld unrdi the doctrines of dedi--
cation and estoppel, ..." 2/ (See Estoppel, post.)

The Court concluded, however, that where a canal had been lawfully

built on one's own land under special legislative permission which diverted

part of a natural lake and watercourse into another canal (for the purpose

of providing sufficient water for navigation of such canal) there was no

duty to continue the canal, which had not invaded any rights of a lower

owner along the watercourse. The canal had benefited the lower owner

b.y drawing off parti1f the Lake's-waters, thereby reducing the extent of'

flood damage downstree.q The Curt held that the canal, although it had.

been kept up. ,fort.O years or more, could be discontdnued at. ak"y time. The
32 Paapsco Guano Co. v, BowersWhite. Lumber CG-o.as 6'l C. 187, $9 S-.E.
53 T O190).
2 ke. Drup mon4 ,aral-and Water QGo v .-vinham, W I.-. 41, 60 S.E.
.6Q -4 .








Surtappean, t-9 have 4e hasit*d t AL the ana apprehtly h d been buiilt
o: _.part1x u i4ranltmpffra7 purposes nad bw otest"e Vtiboni t tivti
S^han hAtreb me h t at"i deal uana st.Ijiifth respectt i tr e -possibility of
-- prescriptive rWfie lr~a aor ecprocl.li eaeBntw arisi ini' certAin case, see

( $ p.c....a x gh(as ) pow ) .? 'd.: '. P-. :
; ightsa1,:J.d artificial or .de. ypbed wat rcoarp l e atte ay ed obplicated
by con denoa mlt Qr related prohe8dingsgebyraeservatianl, restiitibd at, o
aGapcial grants in*lude&d. in.dqdea etednvyeaBCi or by uentrtaiaud arrftigE-
ments. This may be particutarlytrue-l:itithnteapeate th ft1fol1 ing 4ibject.
Rights ,in aond. toliae,Pond .or- Lake createdd by Dam :iu luatercourse

Rtghtas AqJiae .4tch a"'poad .or akey, whethefL by the -0owne4iodf the dam or
by otherasaay re Umiated ,or themitse aeffedtd byt1e rights (df other








regarding the use of the pond or lake, the maintenance and repair of the
:t3. ; .. ,r:, i: '.:?,l .,,.cna w i.'tri '-*.-. ;' ". lj i -;.'/'. ...w :, .... ..'., ....- .o::.s" ",-^ :"" ;,-' ""

dam, etc.
In Thomas Morris (925) te defendant had erected a mlldam in atercourse
which hasvebeeajiis4 Cdmscusnml fzkc4 tBifcd^tor -O*tWru&V1W of Water
with a te.^ aI'e)^ eg., by-the ainpunt df-wa'tr' whte1iM need to be




plainant. lower This right was acquired by specials with additional consiproeedings
regarding the use of the pond or lake, there maintenance and repair of the
dam, etc,




a power compas v. Morris (1925) the negligent oad eratien a illdboat which
creek and acquired the right to pond water back upon the lands of the cn-.



dam. IThis rt was ended hat theacquired by special condo were action proceedingslling
C -oor- -oydd.t 4)bip r '. ohT a;a'-r.JitJ48 qiJi itti 4'*1 .





the land covered by the lake created by its dam, tlkp_ jtl... whiantt 'n..
other th s, to run pleasure boat190 on the129 S.E. 623 (192). A 1938 South
tha i caa (IRa v*. IiA it9 erySe0 $ ndaW Eolvov o question for



suc purposes coany'sd hence liabilityle for the nentnof a boat which up-
askb&f oopaa~iwad It'i (foota ote-red continuedwer nctpayge)
dam. It was conceded that the North Carolina laws were controlling. The
Court eJidacdbj MWhi npialpou,& iWaai LU4tbAgW it 1WO 'qii~req & Vatii tll1
the land covered by the lake created by its dam, tDQk j.kjb.B c p.4 n
expreM t3ftemnt ii hieed of- coiveyenUS hich plnnttbed thwi;*flt&s among
other things, to run pleasure boats on the lake* The Court concliicLi t .
tbq Vo**r ,oiiyaty hd xnrocoUtoo1vover th#1o;t6 oper&aor4&t e oa'the i~ke for
such purposes and hence could not be hpld liable for the ne
... (footnote continued next page)







129 -

under the existing milldam legislation, after a prior license from the

owner of the land flooded was revoked. (See Condemnation and Related

Proceedings, post.) The Court said that the easement thus acquired included

all rights incident to the principal right to detain water to run a mill,

but it held that this did not carry with it the right to fish or bathe in

the pond created on another's land, and the defendant was enjoined from

doing so. There apparently was no public right of fishing or bathing in

the artificially constructed pond, whether or not there were such rights

in the natural flow of the creek.

In an 1850 case the Court held that the owner of a dam placed in a

stream which benefitted a lower landowner by decreasing the natural flooding

of his land had no duty to keep it up for the lower owner's benefit. 3/

Similarly, some rules stated in a case in 1919 imply that if a dam and pond

are kept up solely for the benefit of the owner of the dam (dominant owner),

he may abandon it without any liability to the upper servientt) owner whose

lands are flooded, although he alone must bear the costs of any repairs he

makes, in the absence of contractual obligations, prescriptive rights, or

other complicating factors. 332/

Footnote 330 continued.
of another's boat. The Court said that Thomas v. Morris had "some control-
ling influence"' on the question. The Milldam owner there had acquired no
title, but only a flowage easement, in the lands of others covered by the
millpond.
331/ Felton v. Simpson, 33 N.C. 84 (1850).
332 Lamb v.. Lamb, 177 N.C, 150) 98 S.E. 307 (1919). See also Lake Drum-
mond Canal and Water Co. v. Burnham, 1L7 N.C. 41, 60 S.E. 650 (1908), dis-
cussed earlier, where the Court held that there was no duty to maintain a
canal which had benefited the lower owner by diverting part of a lake's
waters into another canal, thereby.reducing the extent of flood damage-
downstream. With respect to the possibility of prescriptive rights and re-
c:iproal easements arising in such cases, see Prescriptive Rights, post.

'c


_1_1_1_________ ___






S130 -
Thep Court reached the :samep- general result in a 1922; case where the
owner of a dam across. a. river, -which.creted;an artificial lake, sold L-

parian lots along the lake4,with permission to, boat,i fish, and swim in it,
end to use: it for. "Iomstic purposes." The dam went out in-a. storm. Al-4

though the owner of the dam was called a .ser.ient owner" (he had agreed
not to lower or raise t he-lake level more than a certain amountin operating
the dam for power purposes)j the Court said, that he :bad~:no .liability to.
repair, maintain, or ,restore the e dam n, the absence of any express: agreement

to do so. 3/

.?;- .. Other Artificial Ponds or Lakes,, :
::.,Rights in and to use.,ponds reated- byidas or: mbankments placed across

essentially. "dry draws" .or rayines may be based largely upon rights:in so-
called "surface waters," discussed blow. -Ponds, r lakes created by ex
cevatiqoi which are supplied from,groundwaters may differ according to
,whet1@r theVir source is a definite underground stream or. percolating
grouptaters :

The Court apparently:has. not, considered the extent or nature of the
right, if any, to pump or otherwise divert stream waters Ainto an offaSream
pond during a period of high stream flow, if it causes no 'damage to ot.hes,

for, water use during periods rof :lo flow. A.A somewhat stricter rule might

apply to diversion rather than simply to the detection .of water with
a dam,. recalll the.possible distinction between diversion and detea4son
dieusea ed under Oeneral Development of ,the Riparian Doo.rine, ante. ..The,

33/ Richardson v. -Jennings, ,U184N.G. G 59, Ulj S.3. 821 (1922). Foja,
aspe dealing with the pollution ;of artifcial lake crea ed by davgng
g natural wateroo prse,,;see Anderson .v. Ton of Waynesville, 203 N..C,, 37,
166 S.E. 583 (1932). See Pollution, post.




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