.. ^ .*:. t. pollution *
I' t will be recalled that ~irn soae cases th 'State Spreme Court has in-
'dicated thasta different rule applies in the caee of pollution (and perhaps
also diverYi1o) than in the caee of the detention 'of the waters i~ a -:ater-
Scourse. -(See Develonment or'the Rip*rian Doctrine, ante,) In pdii~tion
" cases the Court has frequently sridi that no material inypaifrnnt- of the quality
of the water in a watercourse would be permitted, to the injury S: lowr owners
although this often was -iet ly an inceldntai Otatementb sitade by te Court
rather than a direct-ruli"g .. Anothe6i version tof this eamr general rule
appears *, a. case -which difroty rInvolved the 1quewston' e ability for
pollution. The C6~rt stated that ri ariarn owner would have the rignt to use
:,'a certain- creek for beneficial' purposes `but inh so doing they hai one right,
to inflict material or substaitial, injury upob- thos, below them ;" /
The Court in -na earlier -eae said that *ny ue of a iatercorsT "that
materiatly foule mand adulterates the -ater, or 'thW depQeit '< discharge
therein of any filthy or noxioun substance, that so far affects the water as
to impair its value for the ordinary purposes of life will be. daded a iio-
Slaio6n df the rights of the lover riprian proprietor, and 1or Vhtch he would
.be entitled tod redress. Anything that renders the iaetere less wholesais than
'ien n its ordinary natural 'dtate, or which renders it offensive t to ate
or smell, oir that is naturally calculated tvo exoite disgust in those. ising the
30/ See, e.g., Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195
"'*iS. -4"43 r465 47 (1938)-*
391/Moses v. Town of Morgantown, 192 N.C, 102, 133 S.E. 421, 423 (1926).
The-ourt in other pollution case-s, hs sa:etima s -4dtoked the maxiEmtibat a man
must use his own property in such a-way as not to injure the rights of others.
Nance v. Merchants Fertilizer Co., 200 N.C. 7o2,,-158 8,E. J 86, 488.(1931);
see also Finger v. Rex Spinning Coy 190 N.Q, 71i, 128 8;E. '6 7 46, V 1925).
_____________ -~L I-^-I _________________
water for the ordinary purposes of life, will constitute a nuisance, for the
r restraint of which a court of equity will interpose."'92/ The Court added,
however, that no individual would be entitled to an injunction against such
pollution without showing some actual or impending damage,
With respect to groundwaters, in a 1927 case, where there was evidence
that gasoline seeped from a tank into the groundwaters which supplied an
adjoining owners well, the Court held that the complaint stated a cause
of action. "A person who, by permitting the pollution of his own soil or
the water thereunder, contaminates his neighbor's well or the streams under
the neighbor's land, from which water is appropriated, is liable to the
latter.... A person has no right to befoul, corrupt, or poison underground
water so that when it reaches his neighbors land it will be unfit for use
by either man or beast. The same principle applies to noxious odors. This
is good morals as well as good law." 2W9/ (See Groundwaters, ante.)
In the several cases where pollution has been involved the Court has
reached conclusions differing according to the circumstances and according
to whether an injunction or money damages was requested. (See Legal Remedies,
post.) 34/ The Court in some cases has denied any recovery, by way of
injunction or otherwise, where the complainant was not shown to be a riparian
392/ City of Durham v. Eno Cotton Mills, 114 N.C. 705, 57 S.E. 465, 467,
(1907- The Court was quoting from a Maryland case.
39/ Masten v. Texas Co., 194 N.C. 540, 140 S.E. 89, 90 (1927) quoting with
approval from 27 R.C.L. 1223, In this and certain other cases the Court re-
cognized the interrelationships between different sources of.water. (See
Interrelationship Between Water Sources, post.)
S, 4/ In some cases the Court denied an injunction by invoking the balance
of convenience doctrine as one of the bases for denial. (See Balancing. of Inter-
ests, Equitiee orConenlene s.Also see Condemnation and Related Proceedings,
post, for a discussion of condemnation and permanent damages in pollution
cases. For the possibility of prescriptive rights to pollute waters see
Prescriptive Rights, post.
landowner or otherwise ito hav any right to use a watercourse. (It did so,
for exampleI in young v, City of Asheville et. al. (1955), where a farm
tenant who leased .nonriparian land. had used a polluted stream to irrigate
his crops, which were ruined thereby. 39/) On the other hand, the Court
has. sometimes granted an injunction or awarded:damages on behalf of the owner
of nonriparian land whose land lay near enough to a stream to be affected by
the stench (air pollution) arising from the polluted waters. 6 (See
Definition of Riparian Land and Use on Other than Riparian Lands, ante.)
There have been too many pollution cases to discuss in detail, but following
are some examples of results reached in the more recent ones In Eller v.
.1d. of Education (1955) the Court ruled that the complaint stated a legal
cause of action in, alleging that the defendant had dLscharged sewage into a
small creekwhich divided the complainant's and defendant's lands, and that
such discharge and its -tench had made the complainant's dwelling uninhabi-
table and his spring unusable for water supply purposes. 3/ It was alleged
that this constituted a continuing nuisance and invasion of his property
rights, depreciating the value of his land by $4,000, :Money damages, but no
injunction, was, requested :.The Court held that the maintenance of such a
nuisance would., ount to a partial "taking" of the omplainant 's land to the
extent of the resulting loss of value, and would need to be compensated if
the value were thereby substantially impaired, even though it resulted from
Young V. City of Asheville, 241 iC, 18, 86 8,E. 2f. 408 (1955).
/ Rhodes v, City of Durham, 165 N.C. 679, 81 8.E. 938 (1914),
.Ela v,.Bd, of EdueatAon ofTBUdOlmbe Co.,-42 :NC. 84, 89 S.E,
2d. 4 (1955), -
"' "' : ". ' ., '.. ... .. :,'
a government project. (The sewage disposal plant was maintained on school
Moreover, in a case in 1939 involving pollution of a stream by a town,
for which damages but no injunction was requested, the Court said that: "The
liability of the town is not to be determined by any negligent conduct on
its part in the operation of its disposal plant. If in so doing it in fact
discharges foul matter upon the lands of the plaintiffs, or it so pollutes
the water of the stream which crosses plaintiffs land that'foul and"
Noxious odors emanate therefrom it is liable for the resulting damages,
.: even though in-so doing It, is exercising a governmental
* function 398/
However, in another case (in 1948), the Court held that the complainants
did not state sufficient grounds to grant an injunction (no damages had been
requested) against a town that was discharging sewage into a stream, because
the complainants hadn't claimed any particular damage to their lands, nor
that such lands lay along or near the stream. 392/ The Court said that
private individuals could not obtain an injunction on the grounds that the
pollution constituted a public nuisance, without showing that they had suffered
special damages not suffered by the public generally and that they would
suffer irreparable damages unless granted an injunction. 400/ (See Legal
398 Clinard.. Town of Kernersville, 215 N.C. 745. 3 S.E. 2d. 267, 270
k 9Bank. v. Town of Burnsville, 228 N.C. 553, 46 S.E. 2d. 559 (1948).
SThe Court noted, however, that if the stream were the source of a
S puiac drinking water supply an injunction might be obtained in such a case,
under N.C. G.S. sec. 130-117, which is discussed later "
In a case in. 1950 a lower riparian fiar owner sued a city for dis-
charging sewage into the stream which ran through his farm. 401/ He was
awarded $2500 as permanent damages to his property, as well as an 'injunction
against the either discharge of sewage ihto the stream. This was upheld
generally on appeal, but without discussing the nature of the damages to the
complainant's lands or other relevant questions, other than to say that an
.easement which had been granted to lay sewer lines across the complainant's
farm didn't give the city "any right to discharge its sewage into the creek.
In some cases the Court apparently has approved the rule that a riparian
owner is entitled to the flow of water uhimparied in quality and undiminished
in quantity except as occasioned by the reasonable use of the stream by other
riparian owners. (See General- Development of the Riparian Doctrine, ante.)
But in one case where the Court seems to have generally approved such a rule
it also approved the following charge to the jury by the lower court: "the
pollution of water by the discharge into a stream of matters which are offen-
sive in odor or which renders it Unfit.for such use as it had heretofore
been reasonably put to, is a nuisance" 402/ The Court approved the jury's
award of $6,000 permanent damages on account of a town'sldischarging sewage
into a stream running through the complainant's land.
401/ VeaOey v. City of Durham, 231 N.C. 357, 57 S.E. 2d. 377 (1950).
""/ Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407, 409-410 (1926).
The-ourt in this case iLndicated that such right of recovery would not be
affected by the town's allegation that its sewerage outlet was approved by
the health authorities. While no injunction apparently was requested, the
Court held likewise' n another case here an injunction, was requested. iRhyne
v. Flint-..Mg Co.,l, 82.N,C. 489, 109 S.E .76 3 377.c(19219 v. In an earlier
case, Donnell v. City of Greensboro 164 N.C. 3309 80 S.E. 377, 380 (1913),
the Court said that it was not improper to refuse to'grant an injunction,
and only to permit the awarding of damages, on the ground that there was no
negligent failure of the town to operate its sewage system in accordance with
the regulation of the State Board of Health. But the Court said it was not
definitely deciding the question.
*- 159 -
An interesting question may arise as to who has caused the pollution
where there is a relatively harmless discharge of sewage into a stream and
someone increases the degree of pollution by withdrawing part of the stream
waters. In one case where the pollution of a stream was aggravated by the
damming up of the water. the Court said that a riparian owner was entitled
to bring suit against two upstream polluters (a town and a shoe manufactur-
ing company) and the owner of a dam downstream. (See Detention or Obstruction
of Water with Dams. etc., ante. and Legal Remedies, post.) The Court said
that if the dam helped to cause the sewage to line the stream's banks, the
owner of the dam (which was built after the pollution began) might be held
jointly liable with the upstream polluters if he acted with knowledge, or
had reason to believe. that his dam would combine with the independent acts
of the upstream polluters to cause damage to the riparian farmlands lying
in between. 403/
Legislative Protection of Public Drinking Water Supplies
A special statutory remedy against pollution is provided by legislation,
dating from 1903, which prohibits the "discharge (of) sewage above the intake
into any drain, brook, creek,. or river from which a public drinking-water
supply is taken, unless the same shall have been passed through some well-
known system of sewage purification approved by the State Board of Health;
and the continued flow and discharge of such sewage may be enjoined upon
appicatio of anyperson." 404/ (Italics supplied.) .
403/ Moses v. Town of Morgantown, 192 N;. 102,, '133 S.E. 421 (1926);. see also
Clairk -v, Patapsco Guano Co..,, 144 .C. Z64, 56 s.2. 858, 863 (1907)).
404/ N.C.G.S. sec. 130-117. The statute has been upheld as a constitu-
tional use ,of the State's police power in at last three separate decisions.
In a case in 1935 the Court held that the undetlineid cause of this
statute authorized the courts to enjoin such discharge b sewage, irrespec-
tive of.the fact that no injury to the complainant or anyone else had actually
occurred. "It is the threat or potentiality of menace rather than the accom-
plished fact thereof that warrants" such injunction. 405/ The Court held,
however, that the issuance of the injunction was not mandatory under this
statute, but rather that it was within the Court's discretion to issue or
deny the relief as the surrounding facts and circumstances dictated. The
complainant had shown no immediate menace to its health and defendant had
shown that it was financially unable, at that time, to construct a proper
sewage disposal plant. and if it was prevented from discharging untreated
sewage of its 40,000 inhabitants into the stream a most serious menace to the
entire city would be created. Under these circumstances, the Court refused
to grant the injunction. But it expressly provided that the complainant
could bring another action if defendant shouldd fail to comply with the
statute within a reasonable time. The Court noted that the city manifestly
must eventually comply with the statute, which pronounces the public policy
of the State, "against which temporizing and, reasonable delay will not
These principles have been generally approved in other cases. 4a0/
The Court has said that an action can be brought under the statute by any
40/ Town of Smithfield et.. al. v. City of Raleigh et.al. 207 N.C. 597
17E-.E. 114, 115-116 (1935).
-.A/ Csty of DurhamN v. Cotton, Mills. :IMi;aC. c'6l5- 5i. S.E. 4153': 453B-459
(1906) Ageluder,, discussion Df the ea.3y history, of-rthis legislation.
407/ City -of aheua ,-v. CQtton .Mills. 141l N.O. 615. 54-S.E. A3
:577E. 465 (19Q7}1;rloioat Shelby: .-Clevyeland Po o ifCo. 155 NT.C.' 1965
71 S.E 218 (1911); N.C. State Bd. of Health v. Town of Louisburg. 173 N.C.
250, 91 S.E. 1019.(1917); Banks v. Town of Burnsville, 228 N.C. 553 46
S.E. 2d. 559, (1948).'
person, whether he is a riparian owner or not. 408/ Such an action presum-
ably might also be instituted by the State Board of Health, or its Stream
Sanitation Committee. 409/ There need be no actual damage shown, although
the Court has said that there must be some evidence of actual pollution at
the point of discharge into the stream, and some tendency to produce public
injury, before an action may be brought under the statute. 410/ In one
case it enjoined the discharge of sewage at a point 75 miles upstream from
a city which was using the stream for its public drinking-water supply
even though no actual damage was shown. 411/
A legal action may be brought under this statute so long as the discharge
of sewage into any stream which furnishes a public drinking water supply is
involved (but not otherwise 412/) possibly even though water is being un-
lawfully taken from the stream for such purposes. 413/ (See Municipal or
408/ Banks v. Town of Burnsville,. 228 N.C. 553. 46 S.E. 2d. 559 (1948).
i09/ In N.C. State Bd. of Health, et. al. v. Town of Louisburg, 173 N.C.
250. 91 S.E. 1019. 1023 (1917). the Court implied that the Board of Health
could bring such an action, but didn't decide the question, as its Secretary
was also suing in his own name.
410/ City of Durham v. Cotton Millso 141 N.C. 615' 54 S.E. 453 549 (1906);
Town of Shelby v. Cleveland Power Co.. 155 N.C. 196 71 S.E. 218, 220 (1911).
411/ N. C. State Bd. of Health. et. al. v. Town of Louisburg, 173 N.C.
250, 91 S. E. 1019. 1022 (1917). Another case dealing with this question
is City of Durham v. Cotton Mills, 141 N.C. 615, 54 S.E. 453, 459 (1906).
412/ Banks v. Town of Burnsville, 228 N.C. 553. 46 S.E. 2d. 559 (1948).
913/ See City of Durham v. Eno Cotton Mills, 141 N.C. 615. 54 S.E. 453
The Court has further said that there can be no prescriptive rights
acquired to continue pollution as against the public and that the statute in
effect makes such pollution a public nuisance. Hence. prescriptive rights
are no defense against an action brought thereunder. N.C. Bd. of Health et.R
al. v. Town of Louisburg, 173 N.C. 250, 91 S. E. 1019, 1023 (1917); Shelby
v. Cleveland Mill and Power Co., 155 N.C. 196 71 S.E. 218. 220 (1911)."
(See Prescriptive Rights, post.)
It is problematical whether or under what circumstances condemnation or
permanent damages may be employed to acquire a right to continue-pollutidn;.
which could otherwise be enjoined under this statute. (See. Condemnation pnd
Related Proceedings, .post.)
Public Water Supply, ante,, on the question of the legality of such use.) In
any event, it would seem that the statute would be applicable so long as
use of the stream for public drinking water by any one city or other user
The Court in a case in 1906 has strictly held,, however, that the statute
applied only to the discharge of "sewage" into.a stream through a sewage dis-
posal system which emptied directly into the stream in large and concentra-
ted quantities, and that it did not apply to any pollution by dyestuffs from
a cotton mill or fecal matter from privies which did nt. pass through such a
system but were washed by surface drainage into the stream. 414/
While the statute permits an injunction to prohibit its violation (and
also declares its violation to constitute a misdemeanor it does not ex-
pressly provide for any remedy by way of damages.(money compensation).
Persons damaged may have to resort to an ordinary court action to seek re-
covery for such damages. 415/ J
Another section of the statutes 'dating from 1850 provides, among other
things, that "if any person shall defile., corrupt or make impure any well
spring, drain, branch, brook; creek, or other source of public water supply
by collecting and depositing human excreta..or depositing..,the body of a
dead animal on the watershed...he shall be found guilty of a misdemeanor."
414/ City of Durham v. Eno Cotton Mills. 141 N.C. 615. 54 S.E. 453 (1906),
4-N.C.'.705, 57 S.E. 465, 466 (1907).
41 /..The diffe'rentes::in 'the natdrq of the evidence required in a common
law action, rather than under the statute. are discussed in City of Durham v.
Cotton Mills, 141 N.C. 615, 54 S.E. 43, 144 N.C. 705., 57 S.E. 465 (1906);
and Banks v. Town of Burnsville. 228 N.C. 553. 46 S.E. 2d. 559 (1948).
Among such differences which have been discussed may be that, aside from
the statute, (1) no action could ordinarily be brought except by a riparian
owne '(unless there is liability for air pollution) and (2) the complainant
may have to show some special damage to himself in order to recover, but (3)
he may be able to recover damages as well as or Instead of, obtaining an
This provision has not yet been construed by the Supreme Court. While it
doesn't expressly provide any right of injunction, it applies to the pollu-
tion of certain goundwaters as well as surface watercourses which are a
source of public water supply, and may tend to make it somewhat easier to
obtain an injunction in such cases. 416/
Legislation also makes it unlawful for the owner of lands or standing
timber located within 400 feet of "any watershed held or owned by any city
or town, for the purpose of furnishing a city or town water supply." to
fail to remove or burn all treetops and other inflammable materials not
desired to be taken for commercial or other purposes after cutting the timber
on such lands. 417/
Note that the application of the last two statutes discussed above is
not limited to the protection of public "drinking" water supplies, as is
the former statute, but apply to "public water supply" and "city or town water
supply," respectively. However, if any part of a city or town or other public
water supply taken from a stream consists of drinking water it would seem
that the pollution may be enjoined under the former statute.
Protection of Fish
Legislation dating front 1883 makes it a misdemeanor o or any person,
to put any poisonous substance in any creek or river 'for the purpose of
catching, killing or driving off any fish"'therein. 418/ Another statute,
enacted t 1953 provides substantially the same, although it applies to
416/ N.C.G.S. sec. 130-116. In addition, sec. 130-120 provides that: "If
any person shall willfully put into the well, spring, or cistern of water of
any other-person-any substance or thing whereby such well, spring or cistern
may be endamaged, or the water thereof be made less wholesome or fit for use,
he shall be guilty of a misdemeanor."
417/ N.C.G.S. sec. 14-383. This was construed by the Court in State v.
Pe ley, 92 S. E. 504 (1917). N.C.G.S. sec. 130-118 prohibits cemeteries on
watersheds within 500 Yards of source of a "public water supply," or in
violation of any regulations of the Board of Health.
418/ N.C.G.S. sec. 133-244.
"any of the waters of this. State'".(and also prohibits the.use of electricity
or explosives). 4119/ This is similar to another statute, enacted in 1927
which applies to "any waters within or on the boundaries of this State,"
although the 1927 statute applies only.to "fish producing streams designated
as such" by the State Wildlife Resources Commission. Violations are subject
to prosecution only by the Comission, and may be avoided if the Commission
is satisfied that every, reasonable and practical means has been taken to
abate such pollution. Furthermore it does not apply "to dyestuffs or sewage
discharged from cotton mills.".420/
Still another.statute. enacted in 1953, makes it a misdemeanor for any
person or corporation to discharge into "the waters of the State any dele-
terious or poisonous substance inimical to the fishes inhabiting the water."421/
ViOlatcins of. this latter statute apparently might occur from the discharging
of poisonous substances into the waters without any express purpose of catching
419/ N.C.G.S. sec. 113-174, 12.
427/ N.C.G.S. sec. 113-245. This statute also makes it a misdemeanor to
pollute (or to obstruct or diminish) the waters flowing into or through any
State fish hatchery. Administration of this statute was transferred from the
Board of Conservation and Development to the Wildlife.Resources Cowmission,
by virtue of legislation in 1947 (N.C.G.S. sec. 143-247). This provided,
however, that the Commission would not obtain jurisdiction of the adminis-
tration of "laws regulating pollutionof streams or public waters, nor juris-
diction over commercial fishing or fisheries."
421/ Except for corporations chartered before Farch 4, 1915, (N.O.G.S.
pec. 113-174.14,-). EHwever a similar exemption in similar prior legislation
(repealed in 1953) was held to be unconstitutional, in State v. Glidden Co.
228 N.C. 664, 46 S.E. 2d. 860., 862 (1948). A 1955, amendment to the above-
discussed legislation enables the Department of Conservation and Development
and the North Carolina Wildlife Resources Commission to issue permits for
the taking of fish for scientific purposes by means of drugs.
or harming or driving off fish. 422/ .(See Fishing. ante.)
Other Special Privileges or Protection
Certain other special privileges or protection have been granted by
general or special legislation to particular types of enterprises in the
. State with respect to pollution.
For example, one statute provides that "in getting out and washing the
products of kaolin and mica mines, the persons engaged in such business
shall have the right to allow the waste water and sediment to run off into
the natural courses and streams." 423/ The Supreme Court has said however,
that this statute "does not purport to relieve such persons from liability
for any damages which may directly result therefrom. It would seem to be
nothing more than a modification of the prevailing stream pollution law in
the interest of miners of kaolin and mica." 424/
Moreover, certain legislation intended to protect fish producing waters
from pollution excepts pollution from dyestuffss or sewage" discharged from
7/ cotton mills. as noted above. 42/
Legislation also makes it unlawful for anyone, except "incorporated towns
maintaining a sewer system, "to pollute the water on lands used for dairying,
422/ The Court in a case in 1943 enjoined the pollution of a stream by a
pulpmanufacturing company which interfered with the migration of fish up-
stream, noting that it was in,;iolatton .of C.S. sec. 1968 (a forerunner of N.C.,
sec. 113-245) and hence clearly unlawful. The Court implied that no express
intent to catch, harm or drive off fish need be shown to constitute a vio-
lation of such legislation although the legislation' would seem to require
it. The Court stressed however, that the pulp company expressly had."agreed
to conform to these laws and not to pollute the river" with "matter dele-
terious to fish life," in consideration of the State Highway Department's
building of roads and a bridge needed for the operation of its plant. Hampton
v. N.C. Pulp Co., 223 N.C. 535, 27 S.E. 2d. 538. 539. 543 (1943).
424/ McKinney v. Deneen, 58 S.E. 2d. 107. 109 (1950). See also Phillips
v. Mining Co., 244 N.C. 17, 92 S.E. 2d. 429 (1956).
425/ N.C.G.S. sec. 113-245.
423/ N.C.G.S. sec. 74-31.
S- 166 -
including the grazkag of tZilk cowS. 426/ .ach'aday oft violation constitutes
a separate offense.) This legislation apparently- hasa not yet been construed
by. the Court,. although it has ,cons-idered questions regarding the pollution
of such.waters- in some .caes. 27/ :
By virtue of a, 1955 amendment a 5 .year .amortizatlom allowance' is per-
mitted for Sate: income tax plpaoses: in. lieu of regular depreciation, with
..respect tor copts tncurrqdin.. ~nection .with. the purchase, construction or'
.installation- of industrial waste. treatinent and water pollution abatement
plants and equipment. which reduce the amount of pollution ihn '"treams. -:akes,
or rivers. .. .
S In addition. ouch property shall be exempt from:real and-personal
property taxation and a special deduction ib allowed.for corporate franchise
, ta. purposes,. Such preferential, treatment; may not be obtained, however,
unless the State Stream Sanitation Committee certifies: that *such plants' and
equipment have met its requirements, that they are being effectively operated,
Sand that their primary purpose is to reduce water pollution and is not mere
incidental .top other purposes. ;It is':declared to be the State '' policy to
use its system of real estate taxation so as to encourage the conservation
of natural resources ands the abatement and prevention of water pollution. 428/
'. ; .' ,: *', ": ."'' / "
426/ N.C.p.S, ,aec. 1L4L.38. Violation oon etitutes at isdemeanoz` While -
incorporated towns are.:ex.eepted, from prosecation'under this statute~, they-
migbt be he.d liable- undr general legal rules imposed by the courts, or under
other .pertinent legislation.:
427 See, e.g., aRbne v,, Flint Mfg Co; 182 N.C. 489. 109Sog E. 376 (1921).
18 I;C. Session arws- (1955) Ch. 1100. amending N.C.G.S. secs. 105.s"47,
1057Z94. 105-296. .05297, 105-122.
. .' ,. ;.
Agencies and Organizations Having Pollution Control Powers and Related Duties
State Board of Health.* This Board has for some time had various duties
T and authority with respect to the study and control of pollution of sources
of public water supplies (particularly for drinking and domestic purposes)
Sin the State. 429/ These functions include advising cities, towns, State
institutions, corporations- or firms about their water supply and sewage
disposal systems, and the inspection of waters, including quarterly sanitary
inspections of watersheds of streams from which "any waterworks" derives its
supply (limited to 15 miles above the waterworks intake on streams having
a minimum daily flow of 10 million gallons). It is further provided that
V "every person residing or owning property on the watershed of a lake, pond,
or stream from which a drinking supply is obtained" shall carry out such
reasonable instructions by the State Board of Health (or the municipal health
officer) as the law authorizes. Refusal or neglect to comply constitutes a
In addition,, schools, towns, or industrial settlements located on the
watershed of the source of a "public water supply" are required by legislation
to maintain a reasonable system for the disposal of human sewage approved
by the State Board of Health. Violation constitutes a misdemeanor. 31/
429/ N.C.G.S. 130-108, et. seq. The State Board of Health shall consist
of 9 members (4 elected by the State's Medical Society and 5 appointed by
the Governor) one of which shall be a licensed pharmacist and one a reputable
dairyman. Each ordinarily is to serve a 4-year term. The Board's Secretary
shall serve as its executive officer and be known as the "State Health
Officer." G.S. 130-1, et. seq.
430/ N.C.G.S. sec. 130-115. This statute has been construed in Hudson v.
Morgantown, 205 N.C. 353, 171 S.E. 329 (1933). and Morgantown v. Hudson,.
207 N.C. 360, 177 S.E. 169 (1934).
431/ N.C.G.8.S sec. 130-119. The Court has held however, that it would
not grant an injunction in furtherance of somewhat similar former legisla-
tion unless there were special damages or the water were made unfit for a
public water supply at the point of intake. City of Durham v, Eno Cotton Mills
141 N.C. 615, 57 S.E. 465, 466-467 (1907).
: :A State Laboratory of Hygiene.has been established under :the :supervision
of the State Board of Health which among other duties, shall make examina-
tions of all "public water supplies of the State," To help support the Lab-
oraltory an annual tax shall be levied en organizations. including munici-
palities..:,which sell water "to the .people," to be based in part upon the
gross annual sales of water, 412/ ,
StategSream. Sanitation Committee. This Committee was established within
the, State :Board of Health in 1945. to study pollution problems. In 1951 the
Committee was provided with certain powers and. duties to regulate the pollu-
tion of any surface or groundwater, public or private, natural -or artifi-
cial,,-in; the State-. ./ The:State's declaration.of policy included in the
applicable legislation has been described earlier, under The State's Policies
Regarding Water Resources. This Committee,' in general. was charged and au-
thorized to establish methods designed to protect water quality fbr purposes
of "health, recreation, fishing, animal life, agriculture and industry."
The Committee, shall have 8 members, including as- ex-officio, non-voting
members the Chief Engineer of the State Board of Health and the Chief
Engineer of the Division of Water Resources .-Inlets and Coastal Waterwavys,
Department of. ,Cnservation-and Development. The other six members are to
be appointed by the Governor. 434/ The Committee shall employ as its ad-,
ministrative officer an executive secretary who shall be fully trained and
experienced in the field of waste disposal, as well as additional employees.
432/NN,C.G.S. 130-10.et. seq.
MIN.C.G.S.. 143211 et. se. This is discussed 't 29 N. .L.R. 365.
/Members ordinarily serve 6 year terms. .New appointments generally
shall be- subject to. confirmation by the Sehat4.,, .,Any vaca cy by reason of
death, resignation, or removal for cause must' be filled by a person with
experience in the same field as his predecessor.-, ,
The Coixaittee's.lduties -nd powers and procedures to be followed
include: (1) the. evelyOient and padoptioi of eP series "of clnssificctions
S : .nd standard applicbAe.p ch cl csoific:tion ;ith respec~ to the various
sources-of r-.,a!e n-A .the St~Ate; (2) the survey and identlficatLion of all
waters for which separate ,classifications are desired; (3) prescribed regu-
latory powers and duties with respect to the control of the pollution of
waters .with sewage,, industrial wastes, or other. pollution substances, although
"silt, soil and its atural content which may be in anywise discharged into
streams" shall be excepted.
S A public hearing ,s required before adopting a series,of classifica-
tions and standards.: as ,well as before applying them to any specified waters
in the State- or before changing any such classification .or standard as thus
applied. The classifications orstandards shall take into account "an existing
or contemplated best usage" of such.waters, and the "need for balancing con-
flicting consideration as to-usage and other variable factors." Criteria
in applying classifications and standards to. any particular vwters shall
include the physical characteristics of the waters and surrounding area;
S"any dominant economic interest-or,development ?n the area, the use to which
the water has been. is be1lg, ;or may be-.put, the existing pollution, and "the
relative economic value involved In improving or attempting to improve the
condition of such water." The Committee's classifications and standards
applied to any particular waters ehall.be published and include the Committee's
conclusions with respect to such criteria .. Different standards and classi-
fications may be applied to "different segments of the same water."
The Ccmmittee on Nov. 19, 1953, adopted a definite set of rules and
regulations to be followed by it in classifying and assigiing standards of
water-,,'Jaiity t4 desigpawted waters. afld adopted series of'iA"iications
and water quaia ty 'staaxfrds` A. 0 AueigoA7 u 1g 1-9V!6) '*he,'bdmittee- biid 5-iitab-
lished such =Iaasifidtonms and sisandrdfa & h' reptJ .to th~;iatero oref three
rlVr.- basins ih. the2 Stafte. (thete Zadhini thite- Odk.ak nd Choiajri). It hopes to
* pvo9~*t' tb Vrcesa 3with wpet toti to, 6U-.~B eS within the tne t fev
years. x ; completingrthim. ,ceea Thj each'. %atetbh~ ~r e C6ift'ir biie i
* prepared four peB3c. tofumenta in thp dtO11Id ~ o'e4f r(1i) a, ivbr, babin
* pol11q44s6urvy z'oprtlAnc1uding 4teMntMl ,5t't1j2j eA mpr si-vj -piol-
lution abatement plan (3) a report of the proboidfii g at ihe pubidc:"li'jiin
regading :PEopo~ d)clasaj-f Iattonsri (dd ) Qi) thie, tsitbui" 6 -cliikf ications
,8 dr saws. ttQ the v' rlou- giernent'ol ote t!- $
O: -. ; zn~r~cA. sIAEI actbxbdardw-,ife e41 'b b ie llid** d*tehd- for
4t, 1tfit 4sh.allbe -n f,&l fo iriiy p*rsioa to bwake- aiyj nedw o6utii4 into
.tso ;waters -w- tor construatrvor opevfte- anbj iew ",disjwosal4 8yeteme. or to'j'i~krea
t L*At titX,'Of, W*swveaj Iduftvial vaott cr dthei!t %icb:'aigehai j ioi 'na
epctisktilngt .o~a~at, Dr~ ~sy'stg a~ tkan somB minim oi'tixknt setaby~th C-bymeltee
or,6S. te u o0 the. vas~tesi so-, A: sto iD.a delkb afici t~ an rd
rof'.. qua44 6 Atia3s4tyfest~ jsbnd alritboa~bta inii .O baiit ai 2'thef Comiittbe 'i id
r c pmplyjag, w*thL ioa-dItIfihs iiupowed'.In adch ie;ifiV Sich ierimi 4ma f'b~
modifiedrO ;revoked .upo notI 8wTtfiai &0 vda'y *itte'tn notiic e 't-V thE Ormittee,
who js: eqliti~Wd t it a heaziS S 4aitte& e iint1 a `emp61*ry &
permit fp q~zc1F Er4Qd ; bl a- tie CALmitt ee=l stZiai oiyC, debl itjSugh
tbe ,ct~on lqo4. by, maceeh '$lermi~gednayqAau B1 p6"ir x "~ Inc~ra'ed4 '
pollution-, 8er6 jcon4ttisna iak# : ea~i ss6tlal.
1A,; publipyid ~ applications iFo' aerifi Ii -only- reqtiiad when
the app,34cat ion to. 4 da- ori i L 'ppii tea"it area,
imposed, or when a permit has been revoked or modified and such a hearing is
requested by the applicant or permitted. The reasons for denial of a permit
shall be stated in writing and indicate under what circumstances a permit
might be granted. Failure of the Committee to "take action" on an application
for a permit within 90 days shall be treated as an approval of it.
It is provided that anyone who fully complies with the terms of an in-
voluntary order with respectto the prevention or reduction of pollution
shall be immune from further action under State law for some specified and
reasonable period of time. It may be questioned, however whether this pre-
cludes the possibility of subsequent legal actions by individuals against
such persons, particularly to obtain damages. 435/
If the Committee is advised by the Board of Health that an applicant's
request is to dispose of wastes into water used as a public water supply
"sufficiently close to the source of the public water supply as to have an
adverse effect thereon" no permit shall be issued until complete plans and
specifications are submitted to the Board and it gives its approval as pro-
vided under other legislation discussed earlier. Y46/ It is expressly
provided that this legislation does not purport to amend or repeal certain
Other legislation already discussed, "relative to the control of public water
.supplies, as now administered by the State Board of Health." 4U7/
Moreover persons who have already obtained permission from the State
Board of Health under other legislation for the construction or alteration
of a disposal system and have let contracts or begun construction or a bond
election has been authorized therefore prior to the application of such
435/ Recall the earlier discussion regarding the lack of effect of compli-
ance with health official's regulations and requirements upon liability to
individuals for pollution. See note 402, above.
436/ N.C.G.S. sec. 143-215.1 (a) (5), referring to sec. 130-110..
437/ N.C.G.S. sec. 143-215.7. referring to secs. 130-108 to 130-120.
classifications and standards to their watershed. need not obtain a permit
to do so.,4 8/
With respect to pollution, already-existing in a watershed before such
classifications ,and standards are or were adopted, the Committee may issue
orders to prevent or reduce such pollution -although the polluter may request
that such an order not be issued, for specified reasons. including financial
inability and Impracticability of compliance.. At any rate such an order shall
not be issued, until a. reasonable time.for voluntary compliance has been
The Committee may bring suit in court to enforce its-orders (which may
be appealed from to the cQurts, if procedural requirement are met.) 4~
A fine of up to $500 may be imposed for each violation, and more if the vio-
lation,is .wilful. However the legislation which provides these regulatory
powers does not provide for any direct action against polluters-'by individuals
or corporations affected by the pollution.
-So far, the Committee has not issued any orders to require a municipality,
industry,. or anyone else to abate its pollution. However through voluntary
participation and written agreement it is claimed that it has secured defi-
nite plans for the abatement of -around 97% of the existing pollution in the
Yadkin River Basinwithin a reasonable time,
438/ N.C.G.. (1955 supp.) sec. 143-215.1 (a) (5).
9/ This legislation was amended in 1955. Among other things, sec. 143-
215. (b) relating to existing pollution was amended by adding (1) that before
initiating court action to enforce any orders to abate pollution the CObmittee
shall consider the probable time required by any municipality polluting the
same segment of the stream (in such magnitude as to warrant consideration)
to abate i.s pollution, and (2) that any: municipality or sanitary district
Ordered to abate its pollution, unless this is srbreesed on appeal, shall
proceed to provide sufficient funds, to accomplish this by issuing bonds on
its full faith and credit, revenue bonds, or otherwise. '.
It appears doubtful whether the Committee, in addition to regulating
the discharge of polluting substances, has the authority to prohibit or limit
the withdrawal of water from any stream or other source on the grounds that
pollution control may thereby be made more difficult and costly, or
This Committee was given certain research functions in addition to its
administrative powers and duties with respect to pollution control, to help
discover economical and practical corrective methods for waste disposal
problems. It may consult with persons and agencies in other States relative
to interstate pollution control problems and it alongr.with the Board of
Health, is to cooperate with the Federal government in administering Public
Law 845 (1948) and subsequent Federal legislation relating to water quality.
Sanitary Districts. On petition of 51 percent or more of the resident
freeholders located therein, a Sanitary District may be formed by the State
Board of Health on the approval of the County commissioners of the county
in which the major part of such district lies and after required public
hearings have been held. 440/ Municipalities and industrial villages shall
not be included in such a district without the consent of their governing
bodies. Such districts shall be governed by either a 3 or 5.member board
consisting of residents, who ordinarily shall be elected by the residents of
Sanitary districts have ,the following powers, among others:
1. "Under the supervision of the State Board of Health to acquire.
construct, maintain and operate a sewerage system, sewage disposal or
440/ N.C.G.S. sec. 130-33 et. seq. This legislation was first enacted in
19T. Local modifications have been enacted for certain sanitary districts.
See. for example, notes under N.C.G.S. secs. 130-33, 130-39, and 130-51.
A sanitary district may be dissolved after 3 years if it has no outstanding
4 indebtedness, by substantially the same procedure as for its creation.
treatment plant. water supply system, water purification or treatment
plant or such other utilities as may be necessary for the preservation
and promotion of the public health and sanitary Velfare withinn the
2. "To acquire Aeither by purchase condemnation or otherwise and hold
real and personal property, easements, rights-of-way and water rights
in the name of the district within and/or without the corporate limits
of the district, necessary or convenient for the construction or main-
tenance of the works of the district."
3. "To cause taxes to be levied and collected upon all the taxable
property within the district sufficient to meet the obligations of the
district evidenced by bonds, certificates of indebtedness and revenue
anticipation notes issued against the district."
4. "To negotiate and enter into agreement with the owners of existing
water supplies, sewerage systems or other such utilities."
5. "To contract with any person, firm, corporation, city, town, village
or political subdivision of the State within and/dr without the corporate
limits of the district to supply" (a) raw and/or filtered water to said
person firmn, etc., where the service is available the Board may fix
a different rate for service outside its boundaries), and (b) to supply
raw water without .charge to. said person., firm, etc. in consideration of
sSTd person, firm, etc, permitting "the contamination of its source of
water supply by discharging sewage therein and to construct all improve-
ments necessary or convenient to effect the delivery of said water at tie
expense of the district, when in the opinion of the sanitary district
board it will be for the best interest of the district and subject to
the approval of the State Board of Health."
6. "To require any person, firm or corporation owning, occupying or
controlling, improved real property within the district to connect with
either, or both, the water or sewage systems of the district. The sub-
section shall be inapplicable unless the health of thie people residing
within the district is endangered or jeopardized by the failure to
connect to either, or both of said. water or sewage systems,." I
7. "To require any person, firm, or corporation to abate any nuisance
detrimental or injurious to the public health of the district."
8. "To formulate rules and regulations necessary for proper function-
ing of the works of the district." Failure to comply therewith after
proper notice has been given constitutes a misdemeanor, and the Board
may institute criminal or civil actions, including suits for injunctive
441/ In addition, if the district adjoins a city of 50,000 or more, upon
a 1ition signed by 2/3 (a) of the qualified voters and (b)of the owners of
real property, in any given area within the district, and afterproper
public notice and a public hearing, the sanitary district board may establish
such area as a "zoning area,-" under legislation granting such powers to
municipalities. The Board may act as, or appoint, a zoning commission and
board of adjustment. The district may use its revenues or property taxes
may be levied to finance it. It may also cooperate with any City, town or
other sanitary district in creating a joint zoning commission. Such zoning
powers. include the regulation and restriction of the size of buildings and
other structures, the size of yards and other open spaces, the density of
population, and the location and use of buildings, structures and 'land for
trade, industry, residence or other purposes. N.C.G.S. sec. 160-172, et. seq.
The State Supreme Court has in one case held that sanitary districts
are not under the control of the North Carolina Utilities Commission with
respect to services or rates charged. 442/
Water and Sewer Authorities. ..A statute enacted in 1955 enables the
formation of an Authority by any two or more counties, cities, towns!,
incorporated villages, sanitary districts or other political subdivisions
or public corporations of the State, for the purpose of acquiring, construc-
ting, improving, extending, maintaining, and operating water and/or sewer
The term "sewer system" embraces sewage disposal systems, sewer mains,
pipes, and laterals, and "all property, rights, easements and franchises
relating thereto." The term "sewage disposal system" refers to facilities
for collecting, treating, and disposing of sewage. including industrial
wastes. "Sewage" refers to water-carried wastes carried away from resi-
dences, hotels, schools, hospitals, industrial and commercial establishments
or any other private or public buildings'.
The general organization, powers. and functions.of such an authority
have been discussed previously, under Municipal or Public tater Supply.
Other local Agencies and Organizations. The legislation relating to
the Stream Sanitation Committee expressly refrains from abridging or inter-
fering with the powers, duties, and authority of city, county, county-city.
and district health departments, or with the charter powers and ordinances
442/ Halifax Paper Co. v. Sanitary District, 232 N.C. 241, 61 S.E.
2d. 378 (1950). In this case, the Court upheld the validity and enforce-
ability of a contract made by a sanitary district to supply water to an
industrial firm. The source of the water was not in dispute. See Municipal
or Public Water Supply, ante.
443/ N.C.G.S. (1955 supp.) sec. 162A-1, et. seq.
snT. gagrd:o0 .sewged-ifos o mcniif a oPn boltitfons. 4]` O^tsher State
legisthtin ~t i ia46 lthaticountties mas fhe health departmebti and boards
of health, with powers to make regulatiotio ajnda ufty1iide ordiaiCes. 4/
:Each sfta county may have, a county health officer. either, ie or. tte county
physician may;.orderithe abatement of af:nynuisance da ge-dus to public health,
and. ailtre to cominly vhe, properly ~i.ffid ce1tit'it8 a misdemeanor.
::. The ,countyrinay expend up to $1000 to abatie #th nuisance if the: prson
responsible is unable to'to so. Stagnant p nds :and'certain bther conditions
in seaport towns are declared to be nuisances. Cities and tons -y :have
a municipal.phystcan or :health: office ane joint 'city a: county -halth
departments may be formed. Also, district health,'deplitmints may be formed
4to serve 2 or more ouiatties / :46/ '
8o-ocalled special tax sanitary districts' may e formed wvitin a county,
on the petition of a majority of the freeholders therein,: if a majority of
Sthe voters in atelectioa are in favor dof- posing an ianudil tax f 6r its
support. Such a district shall have a "aanziary ccnnmittee" as its govern-
ing. body, which shal bave substantially the same powers s sa county board
of health. 47/
In addition. to sewage disposal faci.tits operated by munitcipalities,
sanitary districts .-o* after and sewer. authorities various :corporations
or mutual (cooperatiye) a'sociatiftbns mky be formed and chartered to opetrte
such facilities. I4 /
4 : -/..-N.C.; .S..asec 3.. 43-215.- ..' .. "
riE(6/ 'N..CG i.?; sie 0-1664 e 6.:se, e- teq .
S :* NiC'.G.S. -30-58., et. seq'. -:-'. '
SSee N.C.G.S. secs. 54-111 and 54-124. as to cooperative associdti6ns.
See Corporations and Cooperatives- pd.t. "' ,' .. '
Special State Laws Relating to Pollution of Prticular Streams
A Various special State laws have been enacted to regulate pollution of
*particular streams. See, for example, Chs. 1014 and 1139 of the N.C.
Session Laws (1955) which relate to the prohibition of raw sewage, indus-
trial wastes and other "noxious and deleterious" substances, which are
harmful to the public health and fish life in the waters of the Tar-
Pamlico and Northeast Cape Fear rivers, respectively, or their tributaries.44_
These two special statutes implement the State's general stream san-
itation laws. Each provides, among other things, that on and after January
1, 1962: (1) the discharge of sewage, industrial waste, or any other noxious
or deleterious substances into such waters "to such an extent that the
waters become unsatisfactory for the 'best usage' indicated for same under
the classification or classifications assigned thereto by the 'State Stream
Sanitation Committee,' or which results in the quality of such waters
Sing in contravention to the 'Water Quality Standards' assigned to such
waters" shall be "declared not to be reasonable use of such, to be against
public policy, and to be a public nuisance;" (2) the discharge of any
raw or untreated sewage into such waters shall be a misdemeanor and
(3) "any person establishment, or municipality injured or damaged in any
k respect" by such offenses may sue for an injunction or damages. 450/
4;9/ Except for any part of the latter river lying in New Hanover
450 This special legislation may have been intended to implement the
enforcement of any quality standards imposed under the general stream sani-
tation law, discussed earlier (N.C.G.S. sec. 143-211, et. seq.).. But it
does not expressly so provide.