question 6," detntion is considered in more detail under Detention or
Obstruction of Water with Dams,.etc., ante.)
In some instances an artificially created pond or lake may be supplied
by two or more types of natural water sources. In this event -the rights
therein may become quite cplicated. However, questions of this nature
do not yet appear to have been expressly. considered by the Court.
The Court apparently has not expressly defined percolating groundwaters,
but they would seem, in general, to constitute buch waters as seep or per-
colate through the' ground and are not known or shown to be confined in any
definite underground watercourse. The Court hasaconsidered waters in an
artesian basin to be percolating groundwaters, ,as .is discussed below. 33
The first and only substantial clarification 6f :he North Carolina laws
relating to the withdrawal and use of percolating goundwaters occurred in
1924, in the case of Rbuse v. City of Kinstcn, 335/ This' case 'involved a
suit for damages against the city for'sinking artesian'wells on land ad-
joining the complainant's plantation and removing water to supply the city
in such quantities as' to' greatly reduce the flow from the complainanit' s
Sartesian wells, thereby -lo.ering the val e of :his plantation for farng,
residential, and other purposes. T ue jury awarded damages of ''8,600, iWhich
was .affirmed on appeal, .
.The Supreme Court adopted the 'so-called Ambrican rule of reasonable
use with respect to'the use of artesian ahd probably other percolating .
/33 eouse v.i City of Kinton, 183 Ni.C. 1, 1 "3 S.E. 182, 418.9 (1920i).
335/ Rouse a Gity of Kinaton, 188 N.C. 1, 1, 123' S.E 82 ,(1924). For an-
other discussion .of this caie see Coonent on Reasonable Use of Percolating
Waters, 3 N.C.L.R. 31 (1925). :
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groundwaters, and approved the following charge to the jury made by the
"This rule does not prevent the private use by any land-
owner of percolating waters subjacent to his soil in
manufacturing, agriculture, irrigation, or otherwise;
nor does it prevent any reasonable development of his
land by mining, or the like, although by such use the
underground percolating waters of his neighbor may be
thus interfered with or diverted; but it does prevent
the withdrawal of underground waters for distribution
or sale, for uses not connected with any beneficial
ownership or enjoyment of the land from which they are
taken, if it thereby follows that the owner of adjacent
lands is interfered with in his right to the reasonable
use of subsurface water upon his own land, or if his
wells, springs or streams are thereby materially dim-
inished in flow or his land rendered less valuable for
agriculture, pasturage!, or for legitimate uses~... In
the absence of contract or legislative enactment, what-
ever is reasonable for the owner to do with his sub-
surface water, he may do. He may make the most of it
that he reasonably can. It is not unreasonable for him
to dig wells and take therefrom all of the waters that
he needs in order to get the fullest enjoyment and use-
fulness from his land, for the purposes of abode, pro-
ductiveness of the soil, or manufacture, or whatever
else the land is capable of. 336/ He may consume it at
will; but to fit it up with wells and pumps of such
pervasive and potential reach that from their base he
can tap the waters stored in the lands of others, and
thus lead them to his own land, and by merhandizing it
prevent its return, to the injury of adjoining -andowners,
is an unreasonable use of the soil, and in such event the
injured neighbor may bring his action for damages" 337/
This rule is somewhat similar to the rule of reasonable use applied to
surface watercourses, discussed earlier, but differs materially in that with
6 The Court did not consider precisely what land one might lawfully use
such waters on, e.g., whether such land must be in one common ownership or
the extent to which or the criteria for determining whether it is overlying
337/ House v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 493 (1924). The
reference to possible liability for adversely affecting springs and surface
streams raises questions about Interrelationships Between Water Sources,
which is discussed later. With respect to the nature of artesian waters,
the evidence in this case showed that the waters flowed naturally from the
"artesian wells" without the aid of a pump. to seems doubtful whether this,
would be the sole: criterion of the existence of an artesian basin, but the
Court didn't discuss the question.
respect 6t tth use of. such groindwaters on nne 'a overlying land. (as con-
trasted with use- oA riparian land Alng; a .stream) all the water,.easonably
needed for beneficial purposes on such land may be lawfully withdrawn .
itheres,:. apparently. with little,or no regard to its effect on the ground.
water supplies under adjoining lands, (While in the last-quoted; sentence
the Court implied that the size qf pump used might.be .given some eoisider-
* tion the distribution or sale of the water for: se on nonoverlying lands
appears to be the. principal consideration,. The Court 's earlier statements
quoted above suggest .that in connection with the use of water on. ne:as awn
overlying land the size of.one's pumps or well. aay have little ,significance.)
S The so-called "correlative, rights" rule was discussed by the Court,but /
it was not adopted and;.was repudiated by implications f However, as.the -city's
withdrawal' and use might have been considered unlawful ~ under either rule,
it-: i s conceivable that the Court may yet adopt the-correlative rights rule,
particularly Jinj some later case .dealing with waters -nt an artestan basin
SIn.describing this-rule, the Court quoted ,from:a .Minnesota case to the effect
that-. "The law of correlative .rights. applies to the use..by adjoining land-
owners': of waters drawn .from an artesian basin. Such proprietbee must so
use their wells as to not unreasonably injure their neighbors.' The 'cir-
cumstances of. a particular, case may render it, illegal f9r: uch landowner
; to make merchandise of-such supply in a particular maraer.," The Court-also
quoted.a Utahasase as follows: "The owner of land is entitled only. to:.a
reasonable use of the percolating :waters under his land for purposes ,con-
nectd .with the beneficial ownership or-enjoyment of his .own landj ~n
for the use of such water-by an owner to be a 'reasonable,see, especially
in an artesian district, it should be limited first this just proportion
according to his surface area, and, second, he should not be entitled even
to this quantity to the injury of others similarly situated, unless it is
reasonably necessary for the beneficial purposes to which he devotes the
water; and the owner has no right to injure his neighbors by an unreason-
able diversion of the water for the purpose of sale or carriage to distant
(It may be noted that the Legislature in 1945 enacted an Oil and Gas
Conservation Act, to go into effect when commercial quantities are dis-
covered in the State, on the declaration of the Governor with the advice
of the Council of the State. 339/ This regulatory legislation is to be
administered by the Petroleum Division of the Department of Conservation
and Development. The Act declares it to be the State's policy to prohibit
waste and compel ratable production "in recognition of imminent evils
that can occur...in the absence of coequal or correlative rights of owners
of crude oil or natural gas in a common source of supply." Waste is defined
to include, among other things, !the locating, spacing, killingng, and equip-
ping of wells so as to cause excessive loss above or below the surface'
and "the abuse of the correlative rights...of each owner" so as to cause
disproportionate withdrawals "causing undue drainage between tracts of
.In any. event, the Court expressly rejected the so-called "English* or
"common law" rule, which was said ordinarily to permit unlimited withdrawal
and use of groundwaters on overlying or any other lands. The Court said
it would have had to deny any recovery under this rule. The Court said
336/ Rouse v. City of Kinston, 188 N.C. 1 23 S.E. 482, 490 (1924).
39 N.C.G.S. sec. 113-378, et. seq. This legislation is discussed in
23 N.C.L.R. 332.
34O/ See N.C.G.S. sees. 113-382 and 113-389.
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that the American rule of reasonable use was supported by the greater weight
of authorities in the United States (although with a substantial minority
view) and was "the just and equitable rule to follow." 34/ The Court added
that: "Percolating water being mobile and unstable, and being so important
to health, agriculture, and industry, we think the 'reasonable use' doctrine
is correct in principle. Such an important factor in the human body and
useful for other purposes should not be monopolized as under the English
rule, but the American rule of reason should prevail." 342/
In this case the city, instead of purchasing or using condemnation
to obtain needed water rights from the complainant, purchased a half-acre
tract of land adjoining the complainant's plantation, where an excellent
source of wholesome artesian water had been discovered, and sunk wells /
(with no costs of exploration) and thus withdrew water from the artesian basin.
3lV/ The Court, on p. .89, of 123 S.E. 482, said: "G.S. 970, is as follows:
, 'All such parts of the common law as were heretofore in force and use within
this state, or so much of the common law as is not destructive of, or re-
pugnant to, or inconsistent with, the freedom and independence of, this
state and the form of government therein established, and which has not been
otherwise provided for in whole or in part, not abrogated, repealed, or be-
come obsolete, are hereby declared to be in full force within this state.'
* This law was passed in 1778 (Chapter 5) and from an examination is practi-
cally the exact language as G.S. 970." The Court concluded, however, that:
"We do not think the English rule, laid down in 1843, applicable and con-
sonant or consistent with the just ideals of our government. It is persua-
sive, but not binding on this court."
342/ Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 492 (1924). This
argument tends to support the correlative rights rule even more than it does
the reasonable use rule ,
343/ Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 492 (1924).
,Even if the city itself had been located directly and entirely over
the artesian basin, it might not be permitted to make such use, without pur-
-chase or condemnation of such rights if this interferes with another's use,
except perhaps on the theory that the city's resident landowners had granted
"the city permission to supply their collective needs from a common point of
withdrawal. To avoid additional complications the city would do well to
own the land at such location. There would still be a possibility of lia-
bility to nonresidents unless the city entirely covered the artesian basin
and the use of no other waters were adversely affected by such diversion,
The Court said that: "Law is considered the perfection of reason and founded
on justice and common sense. It would be -ontrary to the administration of
justice: and right, to construe the law:, in a case of this kind, .which would
work injustice and wrong, to be that the plantiff had no remedy, 'The de-:
fendant realized that this percolating water in law and morals could not be
taken and sold as a, commodity to the injury and detriment of plaintiff,
without just compensation. In its answer it says, 'and it has continuously
been ready, able and willing to negotiate with the plaintiff as to a money
compensation'," 3 /
The loss in value of the plantation, by reason of the decreased.flow of,
artesian wells, for which damages were recovered, included the loss of good
quality and healthful water for household and other domestic purposes.. (making .
it difficult to get tenants) as well as for agricultural uses. The alleged
lowering of agricultural productivity resulted, from the loss of water for
dairy cattle, and possibly from the loss of irrigation, or possibly even
the lowering of the water table so as to impair the growth of crops raised.
The Court was not clear about this. ,3/ The alleged decrease in agricul-
tural productivity would seem to have resulted primarily from a loss of
irrigation or of water for dairy cattle,, rather than a. lowered groundwater
level, particularly since the loss of water in a deep artesian basin might
not have a pronounced effect on the overlying water.table. (But recovery
solely on account of a lowered water table which retarded the growth of crops
oon overlying land was permitted in a New York.case, quoted..in a California
case which was quoted, in turn in Rouse v. Kinston, 3.6/ It;was not clear
3/ Rouse v. Mity of Kinston, 188 N.C. 1, 123 S.E. 482, 493 (1924).
3 /Rouse v. City of Kinston, 188 N.C. 1, 123 S.E 4.h82, 481, .492 (1921),
/. Rouse v. City of Kinston, 188 I.C. 1, 123 S.E. 482, 190-491 (1924).
that farm irrigation had actually been practiced, except that a home garden
had been irrigated for a time. But the complainant did allege that he was
contemplating irrigation of the farm with the artesian water,
The Court affirmed the lowe urt's finding that the award of $8,000
damages should constitute permanent damages, thereby giving the city an 'V
easement to continue such use, akin to condemnation. In such a case the
Court indicated that the jury could consider the effect of the loss of pros-
pective future uses, as well as of past uses, in determining the loss in
value of the farm. 347/ (See Condemnation and Related Proceedings, post.)
So the lower court may well have considered that farm irrigation was involved
or contemplated when it included the above-mentioned instructions about it
in its charge to the jury.
No particular distinction appears to have been made between domestic
and other types of use of percolating groundwaters on overlying lands, in
this or other North Carolina cases.
There are a few other reported decisions in which groundwaters were in-
volved or discussed, but they appear to add little of value regarding rights
to use such waters. For example, the Court in a case in 1925 said that
there would be liability for accelerating the flow of a surface stream by
pumping out groundwaters and discharging them into the stream, although the
pollution of the waters discharged into the stream was the principal complaint.
The possible effect upon others' use of the groundwaters was not considered.348/
SIn a recent case (in 1953), the Court held that the defendant city had
the authority, under certain legislation, to supply water to residents outside
3 Rouse v. City of Kinston, 188 N.C. 1, 123 S.E. 482, 487-489 (1924).
/ Finger v. Rex Spinning Co., 190 N.C. 128, 128 S.E. 467 (1925).
J its limits. 23/ At least part of the city's supply was from a deep well
which had lowered the groundwater table in the area, but the source of the
water used was not in issue. The question of whether the city's water
supply had been lawfully acquired, through condemnation or otherwise, was
apparently not raised because the complainant had been using the city's
water and wished to continue doing so.
Definite Underground Streams
The Court apparently has not dealt directly with questions regarding
waters in definite underground streams. In other States where such questions
have arisen the appellate courts have usually held or said that such streams
are governed by the same rules of law that apply to surface watercourses,
but that all groundwaters will be presumed to be percolating waters, rather
than in an underground stream, unless some evidence to the contrary is pre-
sented to the Court. 35J_
The Court in Rouse v. City of Kinston (1924) quoted the BEglish case
of Acton v. Blundell (1843) to the effect that a landowner may not recover
against another for carrying on mining operations which drain off the water
in a "subterranean water course" which supplied his well. 351/ It seems
rather unlikely, however, that the North Carolina Courts would adopt such a
view especially since the Court expressly rejected this English doctrine
with respect to artesian and other percolating groundwaters. (The English
Court in the Acton case implied that this doctrine would apply to all ground-
waters, percolating or otherwise. One reason given was the difficulty of
locating the source and direction of such waters.)
3/ Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E. 2d. 368 (1953), re-
ferring to N.C.G.S. sec. 160-255, which is discussed under Municipal or
Public Water Supply, ante.
30/ 55 A.L.R. 1386; 109 A.L.R. 415; 56 Am, Jur., liaters, sec. 103.
35Y Rouse Vo City of Kinston, 188 N.C. 1 123 S.E. 482, 489 (1924) citing
Acton v. Blundell, 13 L. J. Exch. 289 (1843).
The Court in a case dealing with surface watercourses said that a nat-
ural watercourse was well defined in Angell on Watercourses (7th Ed.) sec.
4. 352/ In sec. 4c of this treatise ir. Angell noted that rules of law
applicable to waters flowing in a definite channel apply to all water known
to be so flowing, underground or upon the surface. He noted that a water-
course which goes underground and is known to emerge a short distance away
is still subject to the same rules, in its entirety. He added, in sec. d,
that percolating groundwaters are not watercourses nor subject to the rules
of law applicable thereto.
In another case (which is discussed under Pollution, post) there was
some evidence that gasoline seeped from a tank into a "vein" of groundwaters
(along a "strata of rock") which supplied an adjoining owner's well. 353/
The Court in holding that the complaint stated a cause of action, said that
"one may no more pollute a subterranean stream than a surface stream," But
other language and the stated facts in the case appeared to suggest that
the vein was perhaps not actually a definite underground stream, although
the Court might treat it as such, and the liability for pollution of per-
colating groundwaters and underground streams would be substantially the
same. Movement of water in a "vein" between layers of rock could be some-
what similar to the movement of waters in an artesian basin, which have
been treated as percolating groundwaters.
In a case in 1955 the stated facts indicated that "springs of water"
;* had been "excavated" to form a duck pond, but the source of the water was.:
not in dispute. (The case involved liability for attracting wild game
352/ Mizell v. McGowan, 120 N.C. 134, 26 S.7. 783, 784 (1897).
3/ Masten v, Texas Co., 194 N.C. 540, 140 S.E. 89 (1927).
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which destroyed a neighbor's crops to the duck pond.) 3_2/
There is little State legislation dealing specifically with groundwaters.
A statute dating from 1923 provides that when the use of any well is discon-
tinued it is unlawful to leave it open and exposed. It "shall be carefully
and securely filled." Violation constitutes a misdeameanor, and fine or
imprisonment may result. This statute does not apply, however, to "wells
on farms that are protected by curbing or board walls." 3V/
Other legislation deals with the pollution of groundwaters, which is
discussed under Pollution, post. For, example, a statute makes it a mis-
deameanor for any person to "wilfully put into the well, spring, or cistern.
of water of any other person any substance or thing whereby it may be en-
damaged, or the water thereof be made less wholesome or fit for use." 356/
Certain regulatory powers to safeguard groundwaters as well as surface waters
from contamination have been granted to the State Stream Sanitation Committee,
an agency within the State Board of Health. 357/
Certain other statutory provisions have some relation to groundwaters,
such as statutes providing certain condemnation powers (see Condemnation,
post) and the formation of Water and Sewer Authorities (see Municipal or
Public Water Supply, ante).
354 Andrews v. Andrews, 22 N.C. 382, 88 S.E. 2d. 88 (1955)o
!3 / N.C.GoS, sec. 14-287. This statute is mentioned in Wellons v.
Sherrin, 217 N.C. 534, 8 S.E. 2d. 820 (1940), and is discussed in 1 N,C.L.R,
356/ N.C.G.S. sec. 130-120.
SN.C.G.S. sec.. 143-211, et. seq.