Title: Legal Remedies
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003173/00001
 Material Information
Title: Legal Remedies
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 - Legal Remedies
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 26
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003173
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


183 -
But the effectiveness of contractual arrangements to use water on nonriparian

lands is in doubt, as noted above, under Transfer or Assignment of Water

Rights.

Other types of contractual agreements which have been dealt with by the

Court include contracts with respect to water supply furnished by orto munici-

palities, U62/

In no reported decision does the Court appear to have dealt with such

contractual arrangements as (1) a contract between two or more riparian

owners along a watercourse to rotate their use of the available water in

periods of shortage or otherwise, or (2) a contract between two or more

riparian owners relative to the detention and/or diversion and offstream

Storage of a stream's water during periods of high flow for later use during

periods of low flow.
Legal Remedies

Legal remedies against the infringement of a person's water rights by-

another person may include an action for money damages and/or an injunction,

to prevent further infringement.

N, Money Damages.

In general, the Court has imposed liability for damages in cases of

material diminution of stream flow or other uses considered to be unreasonable,

direct invasion of another's property, negligent conduct, or certain other

types of unlawful use. 463/


462/ Fulghum v. Town of Selma, 238 N.C, 100, 76 S.E. 2d. 368 (1953);
ETizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E.
611 (192L). See Halifax Paper Co, v. Sanitary District, 232 N.C. 421, 61 S.E.
2d. 378 (1950), discussed under Sanitary Districts, ante, concerning a
contract for water supply from a sanitary district. See also Roanoke Rapids
Power Co. v. Roanoke Navigation and Power Co., 1591N.C. 393, 75 S.E. 29 (1912;
concerning an arbitration agreement between the two companies regarding
their water rights.
L63/ See particularly the cases discussed under Development of the Riparian
Doctrine, and Detention or Obstruction of Water with Dams, etc., ante.


I _






184 -
In certain cases of direct invasion of another's property, such as
by damning a watercourse so as to pond water back upon upper lands, the
Court has held that a recovery of at least nominal damages may be had even
though no actual damage is shown, 46/ But the extent to which a legal action
for at least nominal damages may otherwise be successfully prosecuted when
no actual damage has occurred or loss has been sustained, even though
another may otherwise be making an unlawful use of water, is not so clear.

The Court in some cases involving diversion or removal of water from
a natural watercourse has indicated that there would be liability only for a
substantial diminution of the flow to the material injury of a lower riparian
landowner, and has sometimes added "in some legitimate use he is making of
the water." 1465/ In another case the Court held that money damages could be
recovered for a substantial diminution of the flow even though the lower
owner was making no practical use of the water. k66/ But in this case per-
manent damages were awarded, in which event future damages might be considered,
(See Permanent Damages, post, and Time of Use and Effect of Nonuse, ante.)
Since the Court did not stress this distinction, however, it is problematical
whether the same result would have been reached if permanent damages were
not awarded. Any prospective damages apparently were not considered except
perhaps as bearing on a loss of value of complainant's land owing to the
impairment of unused riparian rights. There was no evidence regarding what


464/ Chafftnv. Fries Mfg. and Power Co., 135 NC. 95, 47 S.E. 226 (1904),
rehearing denied in 136 N.C. 364, 48 S.E. 770 (1904); Wright v. Stowe, 49 N.C.
516 (1857); Forest City Cotton Co, v. Mills, 218 N.C. 294, 10 S.E. 2d. 806
(1940), rehearing in 219 N.C. 279, 13 S.E. 2d. 557. The Court held likewise
in a case of ponding water back upon an upper owners mill wheel. Little v.
Starback, 63 N.C. 285 (1869). The Court stated that the same principle
would apply to the diversion of the entire course of a stream, although the
lower owner is not actually damaged. But the case involved actual damage from
flooding caused by such diversion. Adams v. Durham and N. R. Co., 110 N.C.
325, 1 S.E. 857 (1892).
g6/ Harris v. Norfolk and W. Ry. Co., 153 N.C. 542, 69 S.E. 623 (1910).
_&/Smiith v. Town of Morgantown, 187 N.C. 801, 123 S.E. 88, 89 (1924).






185 -
uses of the water might have been contemplated in the immediate future.

Nor was any particular emphasis placed by the Court in the above case on

the fact that a nonriparian use of the watercourse was being made. The Court
in another case perhaps implied that some lower riparian owner might be

entitled to recover damages for nonriparian use of stream waters by a city

even though he has thereby suffered no material damage. 6 / But the extent,

if any, to which nonriparian use is legally permissable has not yet been

definitely settled by the Court. (See Definition of Riparian Land and Use

of Water on Nonriparian Lands, ante.)

In an early case the Court said that there could be no liability to

an upper riparian landowner for obstructing the migration of fish with a

dam which was held to be lawfully constructed. The Court noted that as

the upper owner had no property rights in the wild fish the maxim that

"one must use his own property so as not to injure that of another" was

inapplicable. (8/ The Court applied this maxim, however, in a later case,

in holding the owner of a power dam liable for certain direct damage to

a lower riparian owners land even though the dam was held to be lawfully
operated. U69/ The Court had come to a similar result in another early case

where logs were floated down a non-floatable stream, and also allowed

recovery for actual (though not speculative) damages caused through the
loss of fish which had been caught in a fish trap which was damaged,



S1467/ Parnell v. City of Henderson, 220 N.C, 79, 16 S.E. 2d. 449 (1941), '
Permanent damages possibly were involved, but this was not expressly indicated,
466/ Dunn v. Stone, 4 N.C. 241 (1818).
9/1 Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E. 43
(1-93-8).


1






-.186 -
The Court said that indirect and consequential damages proximately resulting
from the direct damage could be recovered. But, in contrast with the above
cases, J7/ the act complained of may have been considered unlawful rather

than lawful. Such a distinction from the first-mentioned case was stressed
in a later case where damages were awarded for interfering with a riparian
owner's fishing business by downstream pollution. 41/
Injunction.

In some cases the Court has ruled that it was proper to refuse to
enjoin a certain use of a watercourse, solely or partly because the complain-
ant was making no use of the water and was not otherwise being damaged. 72/

Even where there has been actual damage, the granting of an injunction to
prevent an unlawful use of water has seldom been considered a matter of

absolute right, but is to a varying degree, depending on the circumstances,

a question for the discretion of the Court. 4 3/ (See particularly the cases
discussed under Balancing the Interests, Conveniences, or Equities, below).
The Court, in several cases, has upheld the granting or denial of an injunc-
tion although it has ruled that an injunction was improperly granted or
denied. U7 / In one case it said that: "There must be such an injury as from
its nature is not susceptible of being adequately compensated by damages at

law, or such as, from its continuance or permanent mischief, must occasion a


47/ Gwaltney v. Carolina Land Co,, 115 N.C. 579, 20 S.E. 165 (1892).
k71/ Hampton v. N. C. Pulp Co., 223 NC. 535, 27 S.E. 2d. 538 (1943).
2/ See some cases under Balancing the Interests, Equities, or Convenien-
ces, below. This has certain significance with respect to Prescriptive
Rights, post.
73/ The Court has said that a superior court order or judgement made under
its discretionary power is.not appealable except for an abuse of discretion.
Veazy v. City of Durham, 231 N.C. 357, 57 S.E. 2d. 377, 382 (1950)j rehearing
denied,232 N.C. 744, 59 S.E. 2d. 429, (1950).
kh7/ See Walton v. Mills, 86 N.C. 280 (1882).






187 -
cohstantly recurring grievance which cannot otherwise be prevented but by an

injunction." 47g/

The Court has ruled that an injunction either should or could be granted

in certain cases where there was a "continuing trespass," such as by diverting
water onto or flooding another's land, 476/ or a nuisance that would cause
4771
irreparable harm to one's property if not prevented~-In a lawsuit in 1956
to recover damages from silt discharged into a stream in mining operations,

the Court said that: "Whether we say this is an action for damages resulting
from a continuing trespass or for the maintenance of a nuisance or accord it

some other name is immaterial. Irrespective of the nomenclature used, it is

in essence an action in tort for the wrongful damage to and taking of the
land of plaintiffs, without compensation, for private gain.fL7J8 The

action here was brought to recover money damages for "the wrongful taking

of and damage to" the complainant's land.)
In some cases, however, the Court has said that: "When injunction is

sought to restrain that which it is apprehended will create a nuisance, the

proof must show that the apprehension of material and irreparable injury
is well grounded upon a state of facts from which it appears that the danger

is real and immediate." i79/ The Court has indicated that this is particularly


4 7/ Walton v. Mills, 86 N.C. 280 (1882).
77/ Finger v. Rex Spinning Co., 190 N.C. 74,128 S.E. 67 .(1925); Rhyne v.
Flint Mfg. Co., 182 N.C. 489, 109 S.E, 376 (1921).
477/ The Court has said that an injunction to prevent pollution of a stream
Smay be based either on the grounds of a continuing trespass or of a nuisance
which causes irreparable harm. Finger v, Rex Spinning Co., 190 N.C. 74, 128
S.E. 467 (1925); Cook v. Town of Mebane, 191 N.C. 1, 131 S.E. 407, 409 (1926).
It would seem possible to bring an action both on the grounds of a nuisance
which causes personal inconvenience and danger to health, and which causes
damage to property. The former was alleged, but perhaps not considered by
the jury, in Donnell v. City of Greensboro, 164 N.C. 330, 80 S.E, 377, 378
(1913).
478/ Phillips v. Mining Co., 244 N.C. 17, 92 S.E. 2d, 429, 432 (1956),
1779/ City of Durham v. Lno Cotton Mills, 141 N.C. 615, 54 S.E, 453 (1906);
quoted with approval in Cherry v. Williams, 147 N.C. 452, 61 S.E. 267, 269
(1908),







true where an enterprise conducted by a property owner which may or may not
become a nuisance is one giving "promise of benefit to the community." (See
Balancing the Interests, Conveniences, and Equities, below.) But in cases of
threatened serious injury to health theo Court-has indicated that an injunction
should be more readily granted. 480/ In any event, the Court has said that,
"it is not practicable to lay down a general rule so clearly defined that its
proper application can always be readily made, and each case to some extent
must be made to depend upon its own special facts and: circumstances ._ 81/
Certain unlawful acts, particularly if in violation of some specific
statutory prohibition, have been held to constitute a- public rather than a
private nuisance. Pollution and obstruction of navigable streams or the
passage of fish are examples of acts which have been so classified under par-
ticular circumstances. 82/ The Court has indicated that a private individual
ordinarily may not obtain an injunction to prevent such action (the remedy
being by indictment or other prosecution by the State) unless he suffers
some special and irreparable damage. 483/


8O/ Cherry V. Williams, 147 N.C. 142, 61 S.E. 267,. 269 (1908).
SCherry v. Williams, 147 N.C. 452, 61 S.E. 267, 270 (1908).
Y2-E/ See, for example, Hanpton v. North Carolina Pulp Co., 223 N.C. 535,
27E. 2d. $38 (1943); Reyburn v. Sawyer, 128 N.C. 8, 37 S.E. 954 (1904),
later decision in 47 S.E. 761.
Wt8/ This was held to be the case where downstream pollution interfered
with the migration of fish up a stream on which a riparian owner had estab-
lished a fishing business. This involved an action for damages, but the Court Y
Indicated that an injunction could be granted to prevent: special damage.
Hampton v. North Carolina Pulp Co., 223 N.C. 535, 27 S.E. 2d. 538, 51-546 .6
(1~3), TIn Reyburn v. Sawyer) 128 N.C. 8, 37.S.E. 954 (190o)(later decision
in 47 S.E, 761) it was held that there was no special damage and hence no
right to enjoin the construction and maintenance of.fish nets in a 6dund, It
was noted that "the grandjury had ignqred a bill to indict a similar act as a
public nuisance." Some of the reasons for these. rules regarding public nuisan-
ces are, discussed in Hampton v. North Carolina Pulp Co., 223 N.C.. 35k 27 S.E.
2d. 538, 4-545 (1903); and Dunn:v. Stone, N.C. 2?1; 242 (1818),






189 -
In a recent and rather unique case a landowner had built a pond by

"excavating springs of water" and placed some "tame wild geese" and bait

Sthereon to attract other wild geese. Within a few years about 3,000 geese

were attracted to the pond. An adjoining landowner brought suit because the

geese destroyed a part of his crops. The Court concluded that such use of

Property to the injury of another was improper. It constituted "a private

nuisance per accident, or in fact," which became an unlawful nuisance by

reason of its location and manner in which it was maintained. (The Court

noted that a "private nuisance per se (by itself) or at law, is an act,

occupation, or structure which is a nuisance at all times and under all

circumstances, regardless of location or surroundings.") A dissenting judge

felt that the defendant could not be held liable for damages caused by wild

fowl not owned or confined on his land. But in its majority opinion the Court

stated that: "Surely the arm of the law is neither too short nor too weak
to reach out to the pond and take away the wild geese maintained as prisoners

there to attract their kind in ever increasing numbers." 484/

Few cases have arisen in which the Court decreed a division of the

waters in a watercourse between an upper and lower riparian landowner along

it. Generally the upper owner was either entirely enjoined from making a

certain use of the watercourse, or held liable for damages, or entirely

exonerated of any liability. 8i6a This was partly because the Court in a

number of the cases involving diversion of waters from a watercourse indicated

That the upper owner would be liable for any material diminution of the flow


484/ Andrews v. Andrews, 242 N.C.382, 88 S.E. 2d. 88 (1955).
lSa Or, in some cases, the granting of a preliminary injunction was
denied but the defendant was not exonerated entirely.






190 -
if the complaining lower riparian owner suffered any substantial injury.

Moreover, (1) there were few cases in which the upper and lower owners in-

volved were both-making consumptive uses of the water, (2) in some cases

permanent damages were awarded, and (3) in other cases the Court did not

find it necessary to make any definite ruling on their respective rights of

use. In one case, however, the Court indicated that water detained by a

power dam would have to be let down in reasonable quantities and at reason-

able intervals for the use of lower riparian owners. / 5/

Balancing.of Interests, Equities, or Conveniences.

In a number of North Carolina cases where an injunction, was requested

the Court has applied some version of the principle of balancing the interests,

equities, or conveniences, although usually this has been coupled with the pro-

position that.l) private right must yield to public. convenience, upon adequate

compensation, or, that 2) an injunction will be denied where the damages are
highly speculative rather than a reality. 486/

In the early case of Eason v. Perkins (1831) the Court held it proper

to refuse to enjoin the erection of a new milldam and pond which was claimed

to threaten the health of the complainant's family who resided nearby- It

noted that the proposed mill would be a public mill open to all customers

and a convenience to the neighborhood, and concluded that "private right ,

must yield to public convenience, upon adequate compensation," 487/ Much

stress was laid upon the existing legislation for the encouragement of dams I

for public mills (See Condemnation and Related Proceedings, post). The Court

85/ Dunlap v. Carolina Power Co., 212 N.C. 814, 195 S.E. 43, h6-47 (1938).
See detention or Obstruction of Water with Dams, etc., ante,..
486/ This appears to have been involved particularly in cases where a
pre-lminary injunction was denied.
V87/ Eason v. Perkins, 17 N.C. 38 (1831) (The Court reached a similar result
in Bradshor v. Lea, 38 N.C. 301 (1844).


i.






-.191-

noted that" the situation would be 'different -fr'-a. jsolel private nill,

particularly where a question of health ~ l as raised, and 'that ia different
conclusion might be reached if the m i0 were a smail one and injury to a
large estate were-threatened, The Cout; indicated that the granting of an

injunction in the ease- at hand "woutd.`t e to'iessAe on against the erection
of another:mill below the falls in our rivers," noting that the injury'
complained of was the least that could be expected from such a millpond,
apparently owing to the. slowness of the current and the resulting stagnation
of. such ponds. The Court took cognizance of-tie great public utility of such
mills and noted that the existing legislation provided that a local cbrt
could order the building of a mill on the land df :another except in cases
where it would "create a nuisance to the neighborhood". M88/
The Court invoked a similar test in a case iri 1856, 'Aieree the facts were

similar to the case above. / It did not- discuss' the milldam legislation,
which apparently was then in force, but' denied ah" injunction against the
erection of a milldam and pond partly on the grounds that it would flood
scarcely 'any of the complainant's land and that its possib1J effect on his
family's health was speculative. The Courrt further emphasized the great

public benefit to be derived from the new mill and held that the slight injury
Sto one family would not be enjoined, although' it granted leave to later bring
an action for any datfages that might be proven. In cases whire the pollution

W The existing- legislation alo requires that building of a il be
Sdensed if it will overflow another mill- or "take -away houses, gardens, orchardss,
or other immediate conveniencess" N.0C46S. sec. 73-10. 'It imay also be noted
that legislation providing condemnation powers for the purpose of building
Hydroelectric dams provides that .mills or power plants, or undeveloped water
power sites cant -thereby be 'interfered with unless "the t akig`ig of such mill
or water :powerwill be greatly more to th@ '~beefi-i' of the public" than its
continued existence or ownership, (Cotton mills are excepted in any event.)
/ Wilder 'v. Stribkland,. 5 N.C. 386 (186). '
/ i .'* > ^ .. ; : ) ** .. *
t~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~~~~~~~~~ ^^.'*,"** '.'*...* .






192 -
of streams furnishing public drinking water supplies was concerned, however,
the Court has liberally construed legislation granting any person the right

to sue to enjoin such pollution. L90/ i

In a case apparently uncomplicated by any legislation, the Court, in
Walton v. Mills (1882) held it erroneous to continue an injunction (although

with leave to later seek. one and/or damages) to prevent the building of canals

to divert water from a stream for goldmining purposes, on.the complaint of a

lower riparian owner who claimed the diversion would damage his mills and

impair his potential use of the water for goldmining and other purposes, The
Court stated that it is a general rule that riparian owners may make a

reasonable use of stream waters so long as others are not damaged, but

concluded that:

"This industry of gold washing may from necessity
require some modification of the general law, since
for mill and mechanical purposes the use of the passing
water as a moving power does not destroy, or in any
considerable degree, reduce the volume which still

W90 The -ourt in Finger v. Rex Spinning Co., 190 N.C. 74, 128 S.E. 467
(1925) noted that pollution by a municipality of a stream which did not
furnish a public drinking water supply might be permitted to continue, on '
payment of any damages. But the Court said that private concerns would not
be permitted to continue to pollute a stream on the grounds either that (1)
they would otherwise suffer a loss disproportionate to any gain to the
complainant from enjoining the pollution or that (2) it would be very costly
to remedy the situation. The Court invoked the maxim that a man must use his
property so as not to injure another. The Court had used the same approach in
Rhyne v, Flint Mfg. Co. 182 N.C. 489, 109 S.E. 376 (1921).where polluted,
surface waters had been diverted into a stream. In this case the Court said,
on p. 377, that: "There are cases in which the Court has denied a restraining
order and injunction. But that line of cases has been reviewed by Justice
Hoke in Cherry v, Williams, 117 N.C. i42, 61 S.E. 267, where he observes that .
the cases which.had denied the restraining order, on the ground that the in-
jury was only apprehended or contingent obtained generally where the injury
was threatened by reason of some industrial enterprise which gave promise of
benefits to the community, affecting rather the comfort'and convenience than
the health of adjacent proprietors, and giving indication that adequate
redress might in most instances be afforded by an award of damages,,"
It will be recalled, however, that in Eason v. Perkins, 17 N.C. 38 (1831),
the Court refused to enjoin the building of a mill even though it might to
some extent threaten the health of one family. Also see Slougherty v. Warren,
8S N.C. 136 (1881) to the same general effect0




. I__.


193 -

flows on for the use of others.' The diversion for gold
washing often at remote points, involves the total loss
to others. How these conflicting industries are t6 be
reconciled may present a problem not easy of solution
Supon the rule hitherto established. BUt the Iuestion
does not arise and we now simply decide that there is
error in continuing the injunction, but without prejudice
to the plaintiffs' right to move for it hereafter when the
case then presented will admit."'

In balancing the interests or conveniences the Court noted
that: "It would seem that while on the one hand the
plaintiffs would sustain great injury'lf the current of the
creek and its tributaries are diverted from the proper
channel, and their needed supply cut off; so on the other
hand would the defendant be subjected to much loss from
Sthe moneys he has expended and in the impaired value of
the land if frustrated in the only feasible way of
mining upon it. In the one case, there may be adequate
compensation in damages obtained, in the other, there
may be none or a very imperfect redress." /

The Court also emphasized that an injuction would impair the development

of a new and valuable industry.

In another case, in 1914, the Court held it proper to refuse a pre-

liminary injunction to enjoin the construction of a multimillion dollar

power dam at the request of an upper riparian owner who claimed that his

mill and lands would be damaged by flooding. The Court noted that, while

a larger enterprise.has no right to destroy a smaller one, private right

must yield to public convenience when compensated for so doing, unless the

private injury should greatly exceed the benefits. It noted that the pro-

posed dam would be of great public benefit. (The dam was to supply water for

.the defendants' large manufacturing plants and also for sale to the public.)

I The Court also stressed, however, that (1) the possible damage, if any, was

speculative and (2) the dam was being constructed "under express legislative

authority."

The Court said that "it is public policy not to interfere with the

construction of works of public benefit especially when the defendant is


/9/ Walton v. Mills, 86 N.C. 280, 284-285 (1882).


i


I






194 -
amply aipe-to, respond io dsaages ted ndhere -is, ful tlme before the completion
of the daza to have the disputed matters of fact passed uporh by-a jury." 9_2/
The Court indic aedt~ hopwver. that the height of the dam might"be required to
be lowered, if warranted by the facts. ,Whether the defendant company had the
power of condemnation to acquire any needed water rights was not shown.
In another cas. wber s the defendant was .a water, company which supplied
a city, the o.urt eaji thAt its withdrawal of water from a -tream, with the
aid of a dam, could not .be. enjoined because ,of public -inerest and safety,
and that it was proper to, grant permanent damages, which was YAquivalent to
the acquisition of.,an basement by ;pndeinatioi," even though the defendant was
not shown to have any powers pf, condemination, U/

Such balancing procedures also.,appear to !be involved to: ome. extent in
the statement of the reasonable use rule by the Court in Dunlap:v. :ar.olina
Power. and. L.ht Cg. (discussed under DeYvloprtat of the .Ripaiian Doctrine,
ante).:. The -99ub~said that amoog Ifactors to be. considered. ini;a'paiticular
case .in determining whether a particular see is reasonable are "the'imiprtance
and iecessaty of the ue claimed by one party and the extent of the injury
caused by it to the other,! '. /: If these were to become criteria-sfrequently

E Tucker and Carter Rope Co. v. Southern Aluminum Co. 165 N.C, 572,
81 S.E. 771, 773 (.1913).. I a case-where it was shown that' a certain rail-
road would be of great public benefit and would cause slight damage by
crossing the coqrner-of certi land .-the Co.urt aid that "it is againstt public
policy of the law to restrain, delay, and hinder such industry and enter-
prises, as develop the country and its resources.'.. The -eiort-noted, :however,
that compensation would need to be made for any damage. Roanoke Navigation
,Co. v. ,Eary, .108 ..C, 130,, 12 SE. 900 o(l.89J,1 rc another case involving -
the diversion of water through a canal for navigation purposes the Court said
.that where warks of.,pblic benefit are done u.der a quasi-public. charter it
is ordinarily true that an adjoining property owner who may be damaged is t
restricted to an action for damages or-some statutory method of redress, '-The
Court refused to grant an injunction. Lake Drummond Canal and Water Cod v.
Burnham, 147 N.C,.tl, 60. S.E. 650, 653-4 (190Q):. ; .
493/ Geer v. Durham Water Co., 127 N,C. 349, 37 S.E. 475 (1900).
Em/ Dunlap v.. Carqlina Power and Light: Co;.;, t212 NC.V 81i, 195. SE. i3'
91J







195 -
employed by the.courts or juries, it would apparently mean that Some element

of balancing the interests, equities, or conveniences might be involved in a

number of cases involving the use of natural watercourses, possibly to the

extent of refusing to award any damages, as well as refusing an injunction

on such grounds. !95/

There have been some cases, particularly involving pollution by cities,

where the financial inability of a city to correct the situation, or to pay

for the damages, has been cited as one of the reasons for denying or post-

Sponing an~ injunction. (See Pollution, ante,) But in some instances an

injunction may be granted, wholly or partially on the ground that the defen-

Sdant iS insolvent or otherwise unable to pay for damages he has caused. This
might sometimes be done on the theory that, if not done, it would amount to

allowing him to take anotherts property without compensation. 96


495/ For further discussion of some of the foregoing and othqr cases in-
volving.the balancing of public benefits against private losses, see Cherry
v. Williams, 147 N.C. 452, 61 S.E. 267 (1908). The Court there said, as
noted earlier, that no general rule could be applied to the granting of an
injunction in such cases. Among other cases, it cited Citizens of Raleigh
v. Hunter, 16 N.C.12 (1826), where a mill dam which threatened the health of
the inhabitants of a town was enjoined.
The Court also appears to have invoked some balancing procedures in a 1906'
case wherein it refused to grant a preliminary injunction against the con-
struction of a railroad bridge, to be built under special statutory permission,
which the complainants claimed would obstruct their navigation of a stream.
The Court said that it would be reluctant to grant an injunction against such
an enterprise which would be of benefit to the public, noting that any inter-
ference with navigation would likely be slight and compensable by money
damages. The Court noted that: "As Commerce upon land has increased and
S-btcome more: important, its requirements have modified to some extent the old~
rule which prevented any interference whatever with navigation rights, and
each right modifies the other." 'Pedrick v. Raleigh and P. S. R. Co., 143 N.C.
485, 55 S.E. 877, 884 (1906). See Navigable Waters, ante.
496/ The following cases possibly support this proposition by implication:
*Elizabeth City Water and Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E.
-611 (1924);,Tucker and Carter ,Rope Co. v. Southern Aluminum Co., 165 NGC. 572,
81 S.E. 771 (191H4)


~I_


1






1- 96. -
Legislation relating to mizndas:. pelnits their abatementtAinoertain itastan-
ces when the condemnor s. insolvent and -bas not paid the asseBed-damages.
(See Condemnaton and- Related Proceedingqs, post:.)
No cases were .fund in .whch ,.e G.urt,. in the process of balazicirig the
intekrsts, equities," or conveniences permitted certain usea of a source -of
water to be made on copqdtion -ttat certain actions be taken (or refrained
from) by. the: defendant for the benefit of the Qomplai ant.M 8Y. 9
Liability Without Damage and.V h.- Versa :
Under .legislation prpvid"ng that the pollution oe:.a atreaai hicb lAurishes
a public drikd g water. supply. ay be qnjoined on the application ot tary
person," the .Court has. indicated that sBch pollution may be so enjoined even
,though there is no actual damage o: immediate threat Of damage. The Court has
held this legislation to e .constitutional preventative 'cegislation3 l
On the other hand, the Court has in some cases held or said that there
would be no liability for any- damages resulting'trcam a certain lawful use of
a, watercourse. ThejO ur so-i held,, for example, with respedt to a lowsr
riparian owner' loss of lpart"al !eotctiona frcm flooding by the closing of a
canal upstrepl which had been diverting part of the stream waters. V20/
Liability Even Thougih Larful Use.
SThe. Court in one case has held the pwner of ;aIhydroelectric power' dame
liable to compensate a. lower riBpian landoa~ er for certain direct- damagbi
to his d (washing away te banks of the stream) even though the marintmnince
ad operation of the dam wa. held tobe lawf al and without negligence. ,Th

4 NC.Gl.,S. secs.,73O 2 and 732 6., -: .'
P Or a discussion of this ppsstbilUty see Maloney, F. E e. Bahiace
SOf lnvenieae Doctrine in the Southeastern States, Partiicuarly as Applied to
Water," 55 S.Car.L.Q. 159 (1952).
h99/ North Carolina Bd. of Health v. Commr's, Town of Louisburg, 173 N.C.
2507'91 S.E, 1019 (1917).
500/ Lake Drummond Canal and Water Co. v. Burnham, 147 N.C. 41, 60 S.E.
650- 652 (1908). The Court held that any such damage from the lawful closing
of the canal would 'be damnum abseque injuria,






197 -
Court noted that the land had a peculiar location on the stream not common
to other lower riparian owners, and said that the owner of the dam could not
"take the property of the plaintiff without just compensation, even though
it is a result of a reasonable use of its own property." 501/ (See Detention
and Obstruction of Waters with Dams, etc., ante.)
Determining Legal Rights Under Agreed Facts.

Legislation provides that

"Parties to a question in difference which might be the
subject of a civil action may, without action, agree
upon a case containing the facts upon which the con-
troversy depends, and present a submission of the same
to any court which would have jurisdiction if an action
had been brought. But it must appear by affidavit that
the controversy is real, and the proceedings in good faith
to determine the rights of the parties The judge shall "
hear and determine the case, and render judgement there-
on as if an action were pending." 502/
In this type of legal action, where the controlling facts are agreed
upon by the parties, there is no need of a jury trial. There have been some
cases involving water resources where such a proceeding was held. In these i
cases the principal question in issue was the title to submerged lands,
which involved the question of whether or not the overlying waters were
navigable, rights of the State to validly convey various types of submerged
lands,and related questions. ~0/

501/ Dunlap v. Carolina Power and Light Co., 212 N.C. 814, 195 S.E.
43, 19 (1938).
502/ N,.-C. G. So sec. 1-250.
03/ Home Real Estate Loan and Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E.
715 1938); Resort Development Co. v. Parmele, 235 N.C' 689, 71 S.E. 2d.
7? (1952). C


** >9






"198 A..

Declaratory Judgment".

Legislation dating from 1931 provides that courts of record may "declare
... ... ................... ............-.. .. .... .
Srigts, status, and other legal relations, whether or not further relief is

or could be claimed...and such declarations shall have the force and effect

of a final judgment or decree. It is further provided that:
A "Any person interested under a deed, wil", written contract or
other writings constituting a contract, or -whose right) Status
or other legal relations are affected by a statute, municipal
Sor3diiance, contractt or franchise, may have: determined any ques-
tion or construction or validity arising wier the- instrument,
statute, ..rd.inance, contract,or franchise, and obtain a decla-
ration of rights, status or other legal relations thI under.
A contract, ay, be construed eithberbefor.e o after' there has
been as breach. thereof. ,.When declarator~: relief is i ught, all
-. *. persons sall be uiade. parties who. have or ela't any interest
w which woaid be affected by ,thetdelai atidn, .a~tn6 detlaraetion
Sshall prej,jud.e the U rights of persons"not parties to the pro-
Sceedings.... If no issues fi fact are raised, or' if uch issues
are raised and the parties waive a jury trial, by agreement of
the parties ithe. pr-oeeedtngsa y be heard before any j*age' 6
the superior court."
*the Court has indicated that a declaratry judgment is available for determin-

f action of mixed questions of law and fact, but not factual issues alone.

The Court has said that "the purpose of the Declaratory Judgment Act...
is to provide a speedy and simple method of determining legal rights, status

or other legal relations under written instruments, statutes"' municipal .

ordinances, contracts or franchises..." The Court has held that while

this legislation "enables courts to toake...cognizaaeef f di sutes at anarlier
*. stage than that ordinarily permitted," such n'action may be instituted

"only in a case. in whch there i.s an actual or real existing oont.Ovelrsy.

between parties having adverse interests in the matter in dispute."

504/ N.C.G.S. sec. 1-253, et. seq.
50 Prudential Ins. Co. v. Powell, 217 N.C. 495, 8 S.E. 2d 619 (1940).
The extent to which a court's powers of equity may be exercised in such pro-
ceedings has been questioned by the Court. Lide v. Mears, 231 N.C. 11,
56 S.E. 2d. 404 (1949); Brandis v. Trustees of Davidson College, 227 N.C.
329, 41 S.E. 2d. 833 (1947).
S06/ Lide v. Mears, 231 N.C. 111, 56 S.E. 2d. 404, 409 (1949).






- 199 -


In one case the Court held that "a mere difference of opinion" between a

town and a power company as to whether the town had the right to purchase or
*condemn, or otherwise acquire the utilities of the power company, "without

any practicable bearing on any contemplated action," did not constitute such

a controversy. The Court noted, however, that "in marginal cases the rule
may be difficult to apply," because the definition or appraisal of the term

"controversy" t"must, perhaps, depend upon the individual case." ~/

The Court in a case in 1949 said that:
"There is much misunderstanding as to theobject and scope
of this legislation. Despite some notions to the con-
trary, it does not undertake to convert judicial tri-
bunals into counsellors and impose upon them the duty
of giving advisory opinions to any parties who may come
Into court and ask for either academic enlightenment or
practical guidance concerning their legal affairs,..,
This observation may be stated in the vernacular in this
wise:- The Uniform Declaratory Judgment Act does not
license litigants to fish in judicial ponds for legal
advice.
"The act confers on courts of record authority to
enter judgments declaring and establishing the respec-
tive rights and obligations of adversary parties in
cases of actual controversies without either of the liti-
gants being first compelled to assume the hazard of.
* acting upon his own View of -the matter by violating what
may afterwards be held to be the other party's rights or
by repudiating what may be subsequently adjudged to be
his own obligation." 0/

S. Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E. 2d, 150, 453
(19i2). No question of water rights was involved in this case, nor it
would appear ay oner aec.aratOryjudgment case which has been decided
Sby the Supreme uourt.
I E 8 vv. iLeatehrwood, 230 N.C. 96, 52 S.E. 2d. (1949) the Court
said such an action could be brought to determine the right of a landowner
Sto use a roadway as an appurtenance to his land or as a way of necessity.
08/ Lide v. Mears, 231 N.C. 111, 56 S.E. 2d. 404, 409 (1949).






200 -
The extent bto. whAch person thue may obtain a determinatinof his,
rights to use ;a -ticut aFCf a wt prig r to making such use eere no
,actual controversy has arisen with another landowner, is lproblematical. ,It
I IIII I ll I .... ImI ..... J -i ... ----
would appear that. if the existence of a real controversy can be' satiefactorily
established, such an action may be brought by a riparian or other landowner .

tq de1ermninie the igJe, 4 f t he .leslati ouwhioh- -re1igiftq a, to

irrigate :fo aat steam or lake under certain osljcumstneces prior to using a
stream or lake for irrigation. 'In any event, the. legality of such .~se may
later change if t.e relevant oircusta e, .hag appreciabLj or if the.
administering agency cancels or. idifies on, ante.)


The Coaurt has .eld tat .where inape ent wrongfull acts. of two or more
persons unite in producing a single indivisible iq.jury, even though there
is no concert of action between thm, they may all be held Jointly liable.
If only one of them is sued he may require that the others ber made additional
defendant for the purpose of enforcing contribution in the: event the com-
plainant recovers. The ,ourt has so held with respect to the discharge of
silt into a stream by 3 mica miners along the stream so. as to destroy its
use as a ford by a lower riparian owner and deposit nonproductive soil on
his land, / It, al~ has held that the owner of a dam would be j;; j y
liable with an upstream polluter for causing the; pollution to. line the banks
of. a stream along the- coplainant' s intervening riparian lands, if he acted
with knowledge, or had reason to believe, that his am w ould ncmbine with j
the independent acts of the upstream polluter to cause such damage. g/

-5 Phillips v. Mining Co., 244 N.C. 17, 22, 92 S.E. 2d. h29, 433 (1956),
5/ Moses v. Town of Morgantown 192 N.C. 102, 133 S.E. 421 (1926); see
also Clark v. Patepaco Guano Co., ZJ4 N.C. 64, 56 S.E. 858, 863 (1907).


I






- 201 -


Estoppel
while a person might otherwise be entitled to money damages or an

injunction to prevent a certain use of water, there may be a possibility

that in some cases he may be held to be stoppede" to assert such a right,

particularly with respect to an injunction, such as where, on reliance upon

his implied consent, another water user has made large investments in order

to make use of water.. gl/ No water cases where this has been done appear

to have come before the State Supreme Court for decision. In one case, however

the Court indicated that if a riparian owner changes the course of a stream

under circumstances which give indication that the change is to be a perma-

nent one and a lower riparian owner, accepting the change, has built mills

and made other improvements to utilize the new course, under certain cir-

cumstances he may enjoin or otherwise recover against the upper owner for

later disturbing the new course, on "the doctrines of dedication and estoppel."

But the Court held that this was not such a case. (See Artificial and

Developed Watercourses, ante.) 512/

Condemnation and Related Proceedings

Condemnation for or by Various Purposes, Persons, Agencies, or Organizations.

Municipal or Public Water Supplies and Sewer Systems. Legislation

provides that: "All municipalities operating water systems and sewer systems,

and all water companies operating under charter from the State or license
511/ See 56 Am. Jur. Waters, sec. 365; 93 C.J.S., Waters, sec. 36(5) b. But
p .see note 167 regarding verbal consent to place milldam on land of opposite
owner,. N.C.G(S. se. 22.2 'd#eal& w-ith need for ad. ritten agreement, ..
512/ Lake Drummond Canal and Water Co. v. Burnfiham, N.C. 41, 60 S.E.
S650, 653 (1908). In another case, the Court held that where a lower riparian
owner obtained a judgment against a power company for obstructing the flow
of water and interference with his ferry, the power company was stoppede"
' from denying that its dam wrongfully interfered with and permanently damaged
the lower owner, while he was stoppeded" on receiving payment of the per-
manent damages assessed, from denying that the company bu such payment
acquired an "easement" to continue such use as against the operation of his
ferry or damage to his land, etc., but not with respect to a type of injury
which could not reasonably have been foreseen at the time of the lawsuit.
Bruton v6 Carolina Power and Light Co., ,17 N.C. 1, 6 SE. 2d. 822 (1940)o


_




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs