Title: Transfer or Assignment of Water Rights
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Permanent Link: http://ufdc.ufl.edu/WL00003171/00001
 Material Information
Title: Transfer or Assignment of Water Rights
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 - Transfer or Assignment of Water Rights
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 24
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003171
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


180 -
Transfer or Assignment of Water Rights
In the recent case of Young v. City of Asheville, et. al., the Court

questioned, but did not decide, whether a riparian owner may validly convey
or assign his riparian rights in a natural watercourse to a nonriparian

landowner. hl/ (See Definition of Riparian Land and Use of Water on Non-

riparian Lands, ante.) Other cases discussed thereunder tend to support the

proposition that riparian rights may not be so transferred or assigned.

Some slight additional support may be derived from the Court's statements

in certain cases that "riparian rights are inseparably annexed to the soil

and pass with it as a part and parcel of it and not as an easement or

appurtenant." ,i 5

If nonriparian use is not otherwise lawful, the rental or even outright
purchase or condemnation of riparian land, or of a right of access across
it to a watercourse, perhaps may not create any right to use water from

the watercourse on nonriparian lands as against other riparian owners who
have not assented to it, although it might create a valid contractual right

against the grantor of such access rights, or perhaps estop him from

objecting. (See Estoppel, postt)

In certain cases involving grants by the State of wharfage rights in
navigable waters, the Court has said that "riparian rights are property

incident to land abutting on navigable water, and cannot be conveyed without

a conveyance of the land to which such rights are incident." 6/


45L/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43,
L7 (1938).
S.4/ Smith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88 (192)9, aAlso
See Dunlap. V Carolina Power and LiLht Co., 212 N.0C 849, 195 6.Ei-3 (1938),
ind City. of Durhan v. Eno Cotton iills, -14 Ni.C. 615,.54 S.E. 453 (1906).
46/ Atlantic and N.C.R,.Co, v. Way, 169 N,C. 1, 85 S.E. .2, 15 (1915);
Sheppard's Point. Land Co. v. 4tlintic Hotel, 134.N.C. 397, 4'S.E, 7 48
(l903); Zimmerman v. Robinson, 114 N.C. 39, 19 S.E. 102 (1894).


L_






181- -
The Court has held that such grants could not be vtIidJlyAaneferred or:

4;:d tsrig Q rc ozorja3l#n lacndwnqpra s* (See Navigable. Watie, ante.)
rx In a recent oase, where i tehe Ohzrfge g tatatn te w notji involved, thCourt
sad thatiaithe ,igt, 4~ cesa to :navigable waters over adjacent landsiheld

-..;~- p,, ,priVate o,wership is vested exclusively. inthe,owner of -au. h ladif,
S.and.,,can be e~rWoi ed Il :r Aot~; b je y .by vitue afa grant or license 'ty ,suph

:s-.,B ",;: This, however, -appears to relake principaUl, t.o the Curi~tt.a
assertion that the public "right of navigation gives. no license cto go' and

coe. athrq.ugh and over the, riparian .p er .-and Aithout let or. hiidrance."
4Thetpurt ,held4'that a 7iparian landoer along a navigable riveiVwhro pub-

divided hifs property "had the right .to: grant. to purchasers of macm l6ots

P,1 ay oave ^ itis tatqrf ta a de wland t e terms ofZ the river." s

: -; s ns -CM t-ourt -h404: P9ne, oase that rights to use a spring located owia
tract of land would pass with a conveyance of the title to thl. land .

(without indicating w AA: uses of-, th .sprtOge were c. contemplated or might be

9 l .-/ -I- .otth.er oaae the- court beld -tRbat.whiean 18.6 acre tract
on which. spring was located was asbdivide~kcthe purchasers of othe several

lotiP, by .vi'rtu of provisions i* their deeds. arn representations nAde, Were
entitled to use the spying and pipes leading therefroavais their: ource of

i f. supptl P r P-therl,.~) uses The puthaser of the lot am whioh the spring

,as .: cated could not lawully disengage such distribution pipes (In order
to use the lot as\s pasture for his ,cow).w 9/5s-hese-,lattker two Ocaes t ia

* -- 1-* .. .- .*

S. ,-oreman V. H9Sghj,986:N.0, 386, S.E. 912, 913 (188?7). r' y-
.. filan~enhip .v,~~~v wtin, 191 NQ0. 790, 3~33:.E. P l9 (1926. -ee also
Gr n :- ivr. 9. 333,. -SCel, J9 9.. a66 8.E ..- '.

'C j, g 3






182.
.62 t
have involved questions regarding the use of percolating groundwaters or a

surface or underground stream. The nature of the spring and the location of j
i: : ts use were not- clearly indicated in either case.- 'B together the two

cases suggest that water rights pass with the cei4vyance of title to' Aid

riparian to a stream, or lands overlying gro ndwater, 'unless it is otherwise

-provided, in the deed or some, other controlling legal instrument, "Som"further

support for this proposition conies from the above-discussed eases concerning

,rights to navigable waters,

Rights to use natural 'watercourses or groundwaters, as a rule, would
a ppear to be limited to use on particular parcels& of land. Thise ma not

be soi haoever, in cases where municipalities or othde public or quasi-

public Agencies or, institutions 4ave validly acquired water rights ~ffi~igh

condemnation or otherwise* (See Munioipal or Public Wter Supply, 'Vendibi-

lity, ante). .

Other dontractual Arrangements :
Rights to use particular sources of water in some instances may depend
largely Upoth or be. affected b, various, kinds 6f voluntary contractual

arrangements. .This may be particularly true with respect to artificial'

watercourses or developed waters, discussed earlier. 460/

The Court in one case stated that riparian landowners alonf a stream'might
contract together to have one point of withdrawal and system of distribution
serve their collective needs for domestic purposes. ; 61/


.... / _. sees in which contractual arrangements with respect to the use of such
waters were involved include Richardson v. Jennings, 184 N.CO 59, 114 S.E. i
821 (1922), _here the owner of an:Artificial lake sold riparian lots with
permission.to boat, fish, and swim in it and use it for domestic purposes.
See also Lamb v. Lamb, 177 N.C. 150, 98 S.E. 307 (1919) where a drainage I
system was established by agreement for the benefit of two lots.
461/ Pernell v. City of Henderson, 220 N.C. 79, 16 S.E. 2d. 449, 450-451
--l. ) 4.


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