Title: Some Legal Aspects of Water Use in N.C.- The Applicable Laws
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003159/00001
 Material Information
Title: Some Legal Aspects of Water Use in N.C.- The Applicable Laws
Physical Description: Book
Language: English
Publisher: The Conservation Foundation
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Some Legal Aspects of Water Use in N.C.- The Applicable Laws
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 12
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003159
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


by Harold H. Ellis *

The Applicable Laws
Laws relating to water resources in North Carolina are embodied in 1)
the State's statutes, constitution, and the reported Supreme Court decisions,

2) Federal statutes, constitutional provisions, and court decisions, 3) cer-

tain rules and regulations promulgated by State and Federal agencies, 4)
local laws, such as county or municipal ordinances, 5) certain interstate

compacts or agreements, and 6) local court decisions not appealed from.

Primary attention in this discussion will be given to State legislation

and reported Supreme Court decisions. The laws discussed herein relate to

legal rights of individuals, organizations, and agencies relative to the

ownership, use, disposal, control, or regulation of the various water

resources in the State. Except where otherwise indicated, the discussion

deals with the general rules of law that have been adhered to by the State's

Supreme Court, in the. absence of contractual agreements, prescriptive rights,

controlling statutes, or other complicating factors.

*Agricultural Economist, Production Economics Research Branch, Agricultural
Research Service, U.S.D.A., and member of Illinois Bar. The writer gratefully
acknowledges the assistance obtained from a preliminary manuscript on North
Carolina water laws that was prepared by Mr. James E. Thompson, Ewing, Kentucky,
for the Conservation Foundation.
Other discussions of various aspects of North Carolina water laws include
"State and Federal Water Laws and Considerations Affecting Future Legislation",
and "Water Resources of North Carolina", published by the State's Board and
Department of Conservation and Development, and Committee on Water Resources,
Inlets, and Coastal Waterways, Raleigh, 1956 and 1955 respectively; paper by
Claude. L. ove, Assistant Attorney General, furnished to the Governor's Water
Resources Committee, Jan. 18, 1954; opinion of Harry McMullen, Attorney
General, dated Nov. 20, 19530 Comment on Riparian Rights, by J.A. Alspaugh,
S34 N.C.L.R. 247-253, Feb. 1956, and Marquis,,R. H., Freeman, R.M., and Heath,
M. S. Jr., "The Movement for New Water Rights Laws in the Tennessee Valley
States," Tennessee Law Review, Vol. 23, No. 7 (April, 1955).

2 -
The State legislation now in force is embodied in the General Statutes

of North Carolina (hereinafter designated N.C.G.S.) except for certain special

and local laws that have been enacted by the State Legislature with respect

to particular localities, watercourses, persons, or circumstances, Holver,

the State s.Constitution, Art. II, sec. 29, which became effective in 1917,

prohibits the .Legislature's enactment of local, private, or special acts or

resolutions relating, among other things. to nonnavigable streams / to ferries

or bridges, ror to health sanitation, and the abatement of nuisances. 'The

writer has made no detailed analysis of the number or nature of special and

local laws that may affect water rights, although some examples are included.

The discussion that follows deals with several of the features of the

applicable water laws in North Carolina but it is not exhaustive in these

respects., Supreme Court decisions have developed from the English common law,

but there have been a number of modifications and some outright repudiations

of old common law principles.

The State's. Policies Regarding Water Resources

A rather broad statement of policy was enacted by the Legislature in

1955 regarding the utilization of water resources in North Carolina. It

declares that:

"the general welfare requires that the water resources of the State
be put to beneficial use to the fullest extent, of which they are

./ N.C.G.S. sec. 4-1 provides that : "All such parts of the common law as
were heretofore in force and use within this State, or so much of the common
law as is not destructive of, or repugnant to, or. inconsistent with,, the
freedom and independence of this State and the form of government therein
established, and. which has' not been otherwise provided for in whole or in
part,, not abrogated., repealed, or become obsolete, are hereby declared to be
in full force within this State." This legislation has been construed,
among~ hetr cases;i'in-Rouse v. City of 'Kinston, 188 N.C. 1', 123 8B-E. 482
(1924)Y. '(See Groundwaters, post.)


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