Title: Prescriptive Rights
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 Material Information
Title: Prescriptive 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 - Prescriptive Rights
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 28
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003175
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


226 '~ rLt

*t Prescriptive Rights.
The Court in a number of cases has indicated that while a certain use

of water may be unlawful, "prescriptive rights" may be acquired to continue

to make a particular use of a particular source of water at a particular

location, upon making adverse and continuous use of the water in such manner
for a period of 20 yas 62/
Act se for such period does not alone give rise to prescriptive

rights. The Court has indicated that prescriptive rights may arise by

erecting a dam and ponding back water upon another's land for 20 ear

More, on the theory that if the upper owner failed to bring suit during

such period it will be presumed that he has granted the right to continue

the dam. 5?C However, A to make this doctrine applicable,- two things are
necessary there must be a thing capable. f being granted, and there .must

Sbe an adverse possession or assertion of right, so as to'e ~ose the to

an action, unless hea a ant, for it is the fact of his being thus

exposed to an action, and the neglect of the opposite party to bring suit,

that is seized upon as the ground for presuming a grant.,". 57/

S569/ Gerenger v. Summers, 24 N.C. 229 (1842)j Darr v, Carolina Aluminum
Co,, 215 NC. 768, 3 S.E, 2d. .43, 437 (1939), Seealso Duke Power Co. vo
S. Toms, 118 F. 2d.(C,C.A. 4th) 443, W48-449 (1941).
570/ In Wilson v. Wilson, 15 N.C. 154, 156-157 (1833) the Court said that
"the inference of title from adverse, undisturbed enjoyment is conclusive.oa
in cases of prescription." (Emphasis added)e~ But the Court also indicated
that there might otherwise be a presumption of a grant from adverse use for
twenty years which may be rebutted by evidence which accounts for such use
Consistently with the title existing in another, ,The very ground for the
presumption in such cases is the difficulty of accounting for the possession
and enjoyment, without presuming a grant." The Court noted, however, that
while the presumption in such cases is in theory not conclusive ("in other
-words, it is not an inference of mere -law" but one "which the courts advise
juries to make whenever the presumption stands unrebutted by contrary evi-
Sdence6) "in practice and effect it is a baro" In this case prescriptive
rights to flood another's land with a milldam were held to be acquired by
prescription
571/ Felton v ,Simpson, 33 N.C. 84 (1850); quoted in Lake Drummond Canal
andWater Co. v. Burnham, 147 N.C. 41, 60 SoE. 650, 652 (1908).


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227 -

The recent case of Young v. City of Asheville (1955) involved, among

other things, the possibility of a nonriparian landowner's acquiring pre-

*scriptive rights to irrigate from a stream (See Irrigation, ante), The

Court said that "it seems that it is not necessary that a claimant to water

rights by prescription or adverse user should be a riparian owner on the

stream,,oo The user on which a prescriptive right is claimed may be either

by clamaint himself or by one holding under him, such as a lessee or tenant....

The adverse user of water, in order to ripen into a right of use, must be

visible, notorious, continuous, adverse and under a claim of right for the

period required to acquire rights in real property adversely to the owner."

(Emphasis added) The Court held, without further amplification, that the

farm irrigator had neither alleged nor proved that he had acquired

prescriptive rights. His complaint alleged simply that he or his landlord

had irrigated crops with water from the stream "for many years" and that

this "was well known" to the defendants 572/


72/ Young v. City of Asheville, 241 N.C. 618, 86 S.E. 2d. 408, 41Li-45
(195-). In Wilson v. Wilson, 15 N.C. 154, 156 (1833) The Court said that:
"The precise period of twenty years seems to have been ted in an adverse
emi o~~ego xTa rj oa BacMon ofejectment." The u- -nt
statutory vi s N.C.GS, sec. 1-40j "and sec. 1-38 relat to 7 arss
possess ee iar ams
v, Buchanan, 23 NC.c, 535(181), discussed below a Sec. 1-43 declares that
the tenant's possession :shall be considered the landlord's as well, under
certain circumstances, and possession of successive occupants may be tacked
together if their titles are sufficiently connected*

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228 -
The .Court has.held that luse of a drainage ditch:across anotherts land
will be preamued to be with his consent. This presumption must be rebutted
by evidence of adverse use in order to perfect prescriptive rights, j,3/, In
two eases where a dam and canal, respectively, had been maintained for twenty

years or more and were apparently assumed not to have invaded any rights-of
a lower riparian owner, but, in faCt, ,had benefitted him by decreasing the
extent of natural flooding of his land, the Court held that he had: acquired
no prescriptive right or recriprocal easement or any other right to have

the dam or canal maintained for his benefit. 5.:f/ (See Detention or Ob-
struction of Water with-Dams, etc., ante).. .
With respect.: to ithe necessity.of continuous adverse ,use, the Court .has
held that at least twenty..years of :continuous flooding at a certain level
was necessary to acquire prescriptive rights to continue tj.flo~ d Qthe.
lands to such level However, the temporary natural lowering of the level
during a drought period or lowering of the level in order to make repairs

on the.daim would not prevent the acquiring of prescriptive rights at the
end.of such period 5 / : :.

..The extent of continuity required in the case of a perodig-use such
asi$rrigation is problematical,-as is also the extent of the.;time that such

7 33/Darr v. Carolina Alumrinu Co,j 215 N.C. 786, 3 SXEB 2d.& 434, 437
(1939).. :
54/ Felton Vo Simpson 33 N.C. 81 (1850); Lake Drummond Canal and Water
Coo vo Burnham, 147 N.C. 41, 60 S.F. 650, 652 (1908). With respect to the
possibility of dedication and estoppel in certain cases, see Estoppel, post.
For other cases discussing the general rules in such cases in the absence fo
prescriptive rights, contractual agreements, etc., see Rights in and To
Use Pond or Lake Created by Dam, anteo
/ Green v. Harmon, 15 N.C. 158 (1833); Gerenger v. Summers, 24 N.C.
,229, 233 (1842),






229 -

use must be actually adverse to some other person's rights. *76/ If the rule

were adhered to that no substantial diminution of a stream's flow is per-
missible, such use might frequently be adverse in the case of a small stream,

except perhaps where a permit to make such use has been granted by the De-

pattment of Conservation and Development. But such use possibly may not
become. adv'rs 42 _na jt j]ay 1-12e0 rs -iparian owner has suffered some

actual damage gthereom. (See Irrigation, ante).

The question of the extent of damage necessary before a particular

use becomes adverse is of particular importance in the case of nonriparian

use of a watercourse, such as by a city. Even though a city has condem-

nation powers, if a lower riparian owner has a right to at least nominal

damages (which is problematical), bringingng suit, even though not yet damaged,

would be important to prevent the prescriptive period from running. (See

S Municipal or Public Water Supply, and Definition of Riparian Land and Use

of Water on Nonriparian Lands, ante). Instances where nominal damages have

been awarded even though there were no immediate actual damages are dis-

cussed above, under Legal Remedies,

Once the running of the necessary 20 year prescriptive period has been

broken by failing to make a continuous adverse use as may be required by


576/ In Williams v. Buchanan, 23 N.C. 535, 540 (1841) the Court held that
by using non-agricultural land every year during the entire fishing season
Sfor more than 7 years for the purpose of catching fish, and keeping up fish
traps and erecting and repairing dams in the stream thereon, title was
acquired by adverse possession under color of title (under an imperflTF
4 claim of title). In Sessoms v. McDonald, 237 N.C. 720, :75-S.E. 2d. 904
(1953) the Court said "continuous though not necessarily unceasing use is
required. For additional cases on this, see notes under N.CG.. sec 1-38,
and South Eastern Digest, Adverse Possession, sec. 44.






230 -
the court, anther complete 20 years of such use is, necessary to perfect '
such rights., Nevertheless, throurig one s continuous adverse Use pre-
scriptive rights may eventually be acquired against one'or more riparian'
owners along a watercourse, or neighboring owners 'it the case of groundwaters,
by their failure to bring suit or take certain dther steps Which'perhaps
might be taken to prevent the running of the prescriptive period; '"One
need not necessarily-go Ctg'Cgg zQ 6nt es rttbut it
Sth o m be sure 'of having perfeeted the right
without doing 'so.....

The easement which arises :'~om-presciiptive use has been said to be:
limited to the precise use thich was made during the 20 year period

(although just how much in the 'casei of a varying quantity or rate of use
is probleitlicai)). The right does not justify any use which differs there-
from in any appreciable degree. For exaeiagle, a prescriptive easement
tb flood the lan 6f another has been sad'iot to carry with it the right
to raise the height of the dam or to fish or bathe' in the pond 'over-
lying his land, nor any prescriptive title to the"land overflowed.
in another case, it was held ..that& prej.. to a. .t.h.o
draiiAgepurposes would not carry over to.an- latere -iteh hiokd 4ffn.am
in any appreciable degree from that used during the prescriptive period, ...
....** .: '...., '.. . : ...' .../- -*" .-.- -, .
either ini dimesions or locality.
Another Important restrcttion which has been recognized by the Court
in connection with prescriptive rights I' that no' such rights ~ ay be
Maltoy v. )ruden, 86 NC.C. 251 (1882).
2_/ Porter v. Durhad aid zrown, 74 N.C. 767, 779" (1876).
Morris v. Commander, 25 N.C. 510 (1843). Also see Powell v. Lash,
64 N.C. 456 (1890) as to erecting a "tighter" dam. .
580/ nTomas v. Morris, 190 N.C. 244, 129 S.E. 623 (1924). .
GI/ Green V.,.Harman, 15 N.C. 158, 160 (1833).
58/ Porter v. Durham and Brown, 74 N.C. 767, 779 (1876).






231 -

acquired against the public. "Public rights are never destroyed by long-
continued encroachments or permissive trespasses." Hence, there can

be nro prBwr +4'7a ri^hb against the public that justifies pollution

Am, uutl a j&oa public nuisance, or which violates the statutory prohibi-

tion t polluting streams which furnish the source of public drinking

water. See Pollution, ante. (The Court has, however, recognized the

Possibility of acquiring prescriptive rights to pollute a stream as

against a lower landowner where such pollution creates only a private

nuisance.) Nor can such rights be acquired to maintain a material

j obstruction to navigation of a navigable stream unless expressly author-

ized by statute. T-he extent to which the legislature may validly

authorized such obstructions is problematical. (See Detention or

Obstruction of Waters with Dams, etc., ante).






.583/ Town of Shelby v. Cleveland Mill and Power Co., 155 N.C. 196, 71 S.E.
218 (1911); North Carolina State Bd. of Health v. Comm'rs., Town of Louis-
burg, 173 N.C. 250, 91 S'E. 1019, 1022 (1917) But see N.C.G.S. sec. 1-35
under which title may be acquired against the State'by long-continued
adverse use under certain circumstances.
584 Town of Shelby .. Cleveland Mill and Power Co., 155 N.C. 196, 71 S.E.
S 218~1911); North Carolina State Bd. of Health v. Comm'rs., Town of Louis-
burg, 173 N.O. 250, 91 S.E. 1019, 1022 (1917).
8/ Lenoir County v. Crabtree, 158 N.C. 357, 71 S.E. 105 (1912). See
also Bell v. Smith, 171 N.C. 116, 87 S.E. 987 (1916), and Elizabeth City
Water and Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611 (1924).


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- 232 -


Rights ubMch vdhapg- Dsmobt m a

ments of dr ^ and flooding.;' Id connectionn with public vwter'
supplies. it should be noted Athat the 1955 Wter and Sever Authorities U0

Act provides that "the -taking of water froui any etrea*, br reservoir b'' '

aa Authority created under tie provisions 4o this Abt .-hail odt vebti a
the taler-any rights .y prelborptil provided Tu:rther, 'that nb~iing in

this Secton &ha'1 Baffetet rights by. prescription, Lf any; now hed by!'
any municipality and uh~ih may be later transferred, to'mny Authrii aty :-aP'-,.
588/
of which duoh municipality may bcp oa member." .: ;bc~'- j ,

But this .may mea,,that it a muanLcipality had not yet -acquired .'*-i.; :
prescriptive rights the possibility of ,perfPeting sudh rights t ybe, -' -

lost both to'the ntmnimcipal+ty and the Authority (at least s6, l6ngila- '16.L

the municipality continues to be entirely, supplied by. it) even though. the

municipality may have nearly completed the necessary prescriptive period

when the act as .ratified..

...* "' '" "'. .. .... .. ... .. .

5,6/.See .Dar, .roflina. Atnaa1i Co, 215. .C N a:.&t3 Sje 4. ,34 (1'939);
andTpcterv. vDurhaBl mn Brown iC. 767T.79 (l76). ): :. .j
57*/ See La Roque 'vr Kennedy, 156 LC. .360', 7's.Bc 65 (lr) 3 i nas .v.>
Morris, 190 N.C. 244, .1,9 S.E. 623. (192A); Dukar.iPowerCeo. v'Tomsji.11-P.'
2dk .c 4A th)1 44, 41w8-449 (19.11) Green 4E&Na: r, i(. C.58, l 160
(1833; Pu'tL v. Wheeler, 19" ti -50 (1836), 'd4Wti1ladi v. f;. Vilabn, 1$ I.C .
154 (133), and Gerenger v. Subner.-,. 2AI C 2W9 .8 ;) .. :; ,
/N.C.G#.:S.' (1955 Supp.) seif. 162A -6() : *. I



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