Le isolation on Water Rihts Prosed i
Legislation was in troB V"' i V a of the North Carolina
General Assembly which provided for the creation of a State Board .of
Water Commissioners with certain broad regulatory authority cver the use
of waters in surface watercourses in the State. This proposed bill
included several details which will not be fully discussed here. More-
over, because of some ambiguities in certain of its provisions it is
not altogether clear precisely what'was intended. But, in essence, it
would appear to adopt' many of the principal features of statutes previ- Yr
ously enacted in Oregon, Kansas, and some 'other Western States.
In general the proposed bill purported to establish the doctrine --
of prior appropriation with respect to waters in' surfae watercourses,
i except for "customary domestic uses" and such waters as were actjly
^ --^~ "" "*^ "-i^i ^-^- ------ -----
being put to some other beneficial use "at the time of the effective
date of this Act," which were defined as "vested rights." This would
Sinlud insta wer works re under construction O the bill's
effective date, provided they were c6mpieted and the water applied to
the allotted beneficial use within a limited number of years.
f "57 S.B, No. 153, H.B. No. 298. This constituted one of a number of
legislative proposals which was -given consideration following a report
by the Governor's Advisory Water Resources Comi~ittee, and 'the publication
of "Water Resources of North Carolina," op. cit. The following discussion
of this proposed legislation is largely adapted from Ells, Harold L,
"Some Current,and Proposed Water-Rights Legislation in the Eastern States,"
SI41 Iowa Law Review, Winter, 1956, pp. 231-263, which discusses this and
other legislative .proposals i, Eastern States.
61/ The watering of farm'.ivestock would be considered a "'domestic use"
only as to such farm animals as are necessary to the sustenance of the
farm family, and would not include herds maintained for commercial purposes.
Natural surfacterte~ nurses, ,to which the bill would apply,
would be defined.as any natural rivers, creeks, lakes, or other natural
watercourses or channels having ."definite banks and beds with the visible
evidence of either continuous o: occasional flow of water."
Diffused surface waters woud not be subject to appropriation,
but would be subject to ownership and reasonable use by any landowne -
who artificially collect them on their lands. "Diffused surface water" I(
was defined as "that which in .its natural state flows vagrantly over the
surface of the ground,.having no fixed course or pattern or stands in
bogs or marshes not connectedwith any watercourse or navigable stream
or 'bay or from a watercourse overflowing its banks, does not flow into
a natural watercoursev h* 'i ln ps~r iided that such waters as
naturK y collect in n al basins or ponds, but which at times may
become dry shall be subject to ownership by the owner of the lands on
which they collect.
SubecS t to domestic use. and to vested rights as defined above,
appropriations of definite quanttites of water in surface watercourses,
at specific times, places, andrates ,of diversion, could be granted by
the State Board of Water commissioners. "Beneficial use" would be the
Sof each appropriatL.ve right, regar less of the specific quantity
of water appropriated. -Applicatioas vould be approved if the Board
finds that the propoe4 use. is reasonable ad beneficial and not in con-
flict with the public interest, vested rightsior valid prior appropria-
tions. :The Board would be author-ied to promulgate regulitions having
the force and effect of law.
Appropriations presumably could be granted for an in e in
length of time although the appropriative righ would be forfeited by
failing tQ use the water for the specified beneficial purpose for a period
of threecoonsecutive years. ,No legally acquired appropriation l de-
declared forfeited except by a court "as other property rights are deter-
Appropriative rights would become appurtenant to the specified
lands upon which the water is to be used, "except as otherwise provided
by written contract between the owner of the land and.the owner of any
ditch, reservoir, or other works for the storage or conveyance of water."
Such rights would pass with the land when its title is transferred, unless
otherwise provided. The rights could be transferred to other lands only
on the. approval of the Board.
.The principle of priority in time of appropriation would be estab-
lished, although the implementation thereof was not clearly spelled out.
^^--irrnii. -- ^ ,
Presumably, in times of shortage senior appropriators would be exclusively
entitled to the available.waters over junior appropriators from the same
source. Appropriations perhaps could be granted for use on any land,
riparian or otherwise, although this was not expressly so provided.
620 Priority would generally be based ,upon th~ aie iae aa-efllcations
621/ Wisconsin legislation (which enables the granting of permits to
divert and use "surplus" stream waters if the consent of any riparians
located on the stream," who may be injured thereby, is obtained) has been
interpreted by the State's Attorney General to permit the granting of
such permits only to riparian landowners,ngting that as "it says nothing
in respect to the issuance of permits to nonriparian owners, it must be
assumed that the common law applies." He noted that other State legisla-
tion provided that rights to waters should be governed by the common law
*" except as modified'by legislation. (This legislation is discussedin-'
Ellis, Harold H., "Some Current and Proposed Water-Rights Legislation in...
the Eastern States,". 41 Iowa Law Review, 237, 239, Winter, 1956).. The"
North Carolina Court might conceivably reach the same conclusion about the
proposed bill without there being any legislation expressly indicating that
the common law applies. to'rights in water except as modified by statute ..
The bill also provided that "where future appropriations of water
for different purposes conflict they shall take precedence in the fol-
lowing order, namely: (1) water for human consumption; (2) water for
agricultural and industrial production; and (3) water for other benefi-
cial purposes." This perhaps was intended to mean that the order of "
preference should be applied only in the event there are two or more
competing applications pending for future appropriations from the same
limited source, with priority in time being the determine factor as
between different appropriations once they are granted. But it could also
mean that in times of shortage an appropriation for one type of use might
be given preference, perhaps even exclusive preference, over an appropria-
tion for a lower type of use, regardless of priority in time. Under more
or less similar statutory provisions in Western States, courts have held
that compensation would need to be paid f6r such taking.
While the proposed bill perhaps would allow nonriparian owners to
obtain appropriations, it did not provide any condemnation rights or other
special procedures to help such an appropriator attain access to a water-
course, as do several Western statutes. He apparently would need to obtain
a right of access by such voluntary measures as the purchase of a right-
of-way across a riparian owner's land and perhaps other intervening lands,
or perhaps by renting or purchasing such lands.
Except for domestic purposes, riparian rights, to the extent that .
they were not being put to some beneficial use (or the construction of .
facilities for their exercise was not actually in progress) on the bill's
622/ See Hutdhins, Agricultural Research Service, U.S.D.A., A Comparison
of Riparian and Appropriative Rights (Mimeo. 1955).
effective date, presumably would be abrogated, apparently without compen-
satin. Thse riparian owners who were thus making use of the water,
for other than domestic purposes, would not be permitted to increase such
use in the future without obtaining an appropriation therefore from the
Board. Their riparian rights would thus have a quantitative limitation
as do appropriative rights (although baseda:on past use). However, such
rights perhaps would not be lost through later nonuse.
The proposed bill contained provisions relating to the administra-
tive determination and establishment of the rights of all riparian owners
who on the effective date of the act were making beneficial use of water,
and various provisions relating to its enforcement, including the obtain-
ing of injunctions and criminal prosecutions to prevent unauthorized
diversions or changes in the place of diversion or use of water.
Anyone desiring to build a dam or reservoir on any natural water-
course would need to obtain a license from the Board and comply with any
conditions imposed for the protection of the public or of water users -
and could be enjoined from proceeding without such approval.
The bill was referred to the Joint Committee on Conservation and
Development. It was reported out unfavorably, and never was voted on by
Y the Legislature.
While the above-discussed proposal was- not enacted, another bill
was passed in 19$5 which includes a statement of policy similar to that
in the prolpoed bill. (See State's Policy Regarding Water Resources, ante.)
But the bill, in general, went no further than (1) to create a Board of
Water Commissioners to study the water resource situation and problems and
* -. 63/ The constitutionality of such a provision, particularly the lack of
compensation, might be in doubt.
make recommendations and (2) to provide the Board with certain powers
to act in emergency situations. Whenever the Governor declares the
existence of a water emergency within any particular area of the State,
the Board may authorize any county, city, or town :.n such emergency a
area to divert all or any part of the water in the area to take care of
the needs of human consumption and necessary sanitation and public
safety. : Anyone making such an emergency
diversion would be liable to others who suffer any loss or damage on
account of it. (See Condemnation and Related Proceedings, ante.)
6261 N.C.G.S. (1955 Supp.) sec. 143, 317, et. seq. Other legislation
enacted in 1955 which has some bearing on water rights in the State
includes sec. 162A-1 et. seq., which permits the formation of water and
sewer authorities (See Water and Sewer Authorities ante.) and sec.
160-191.6 et. seq., which permits the Joint acquisition, construction,
improvement, maintenance and operation of water supply facilities by two
or more municipalities. The Board of Water Commissioners was given certain
regulatory powers over the exercise of condemnation powers by water and
sewer authorities. (See Condemnation and Related Proceedings, ante.)