TheCourt reached the same general result in a 1922. case where the
owner ef a dam across a. river, which createddan artificial lake, sold ri-
parian lots along the lake.,with permission to -boat, fish, and swim.in it,
andto use it.for."domestic purpose.!' The dam went out ina, storm. Al-
though the owner of the dam was.called a. servient owner" (he had agreed
not to lower or raise the lake level-more than a certain amount in operating
the dam for power purposes), the Court said that::he had no. liability to.
repair, maintain, or restore the dam in the absence of any express- agreement
to do so. 333
P 'Other Artificial Ponds or. Lakes
,. Rights in and to useponds created by dams or embankments placed across
essentially "dry draws" or ravines may be based largely upon rights in so-
called "surface waters," discussed below. Ponds or lakes created by ex-:
*cavatiQns which are supplied from groundwaters may differ according to
whether their source is a definite underground stream or percolating
The Court apparently has not considered the extent or nature oof: the
right, if any, to pump or otherwise divert stream waters into an offstream
pond during a period of high stream flow, if it causes no damage to others,
for later use during periods of low flow...A somewhat stricter rule might
apply to diversion rather than simply to the detention.of water with
a dam,, recalll the~possible distinction -between diverioan and detetaion+
dise ssed under General i)eveiopment of the Riparian Doctrine, ante. The.
/ MTichardson v. Jennings, 1864 N.G. 559, ll S.E, 821 (1922). For:a
ease dealing with the pollution of an .artificial lake created by damming
a natural watercourse, see Anderson ,.: Town of Waynesville, 203 N,.C, 37,
16U S.E. 583 (1932). See Pollution, post.
- 129 -
under the existing milldam legislation, after a prior license from the
owner of the land flooded was revoked. (See Condemnation and Related
Proceedings, post.) The Court said that the easement thus acquired included
all rights incident to the principal right to detain water to run a mill,
but it held that this did not carry with it the right to fish or bathe in
the pond created on another's land, and the defendant was enjoined from
doing so. There apparently was no public right of fishing or bathing in
the artificially constructed pond, whether or not there were such rights
in the natural flow of the creek.
In an 1850 case the Court held that the owner of a dam placed in a
stream which benefitted a lower landowner by decreasing the natural flooding
of his land had no duty to keep it up for the lower owner's benefit. 331/
Similarly, some rules stated in a case in 1919 imply that if a dam and pond
are kept up solely for the benefit of the owner of the dam (dominant owner),
he may abandon it without any liability to the upper servientt) owner whose
lands are flooded, although he alone must bear the costs of any repairs he
makes, in the absence of contractual obligations, prescriptive rights, or
other complicating factors. 332/
Footnote 330 continued.
of another's boat. The Court said that Thomas v. Morris had "some control-
ling influence" on the question. The milldam owner there had acquired no
title, but only a flowage easement, in the lands of others covered by the
331/ Felton v. Simpson, 33 N.C. 84 (1850).
32/ Lamb v. Lamb, 177 N.C, 150, 98 S.E. 307 (1919). See also Lake Drum-
mond Canal and Water Co. v. Burnham, 1l7 N.C. 41, 60 S.E. 650 (1908), dis-
cussed earlier, where the Court held that there was no duty to maintain a
canal which had benefited. the lower owner by diverting part of a lake's
waters into another canal, thereby reducing the extent of flood damage'
downstream. With respect to the possibility of prescriptive rights and re-
ciprocal easements arising in such cases, see Prescriptive Rights, post.
question 6o' d'etntion is considered in more detail under Detention or
Obstruction of Water with Dams,.etc., ante.)
In some instancess an artificially created pond or lake may be supplied
by two or more types of natural water sources. In this event: the rights
therein may become quite c6oplicated., However, questions of this nature
do not yet appear to have been expressly. considered by the Court.
The Court apparently has not expressly defined percolating groundwaters,
but they would seem, in general, to constitute such waters as seep or per-
colate through the. ground and are not known or shown to be confined in any
definite underground watercourse. The Court has considered waters in an
artesian basin to be percolating groundwaters, ,as is discussed below. 334/
The first and only substantial clarification 6f' the North Carolina laws
relating to the withdrawal and use of percolating groundwaters occurred in
1924, in the casa of.Rouse v. City of Kinston. d33 This' case'involved a
suit for damages against the city-for' sinking rtesian'wells on land ad-
joining the complainant's plantation and removing water to supply the city
Sin such quantities as& to greatly reduce the flow from the complainant's
: artesian wells, thereby 16rersig the value of his plantation for far r ng,
residential, and other purposes. The jury awarded damages of "$8,6o0. which
was aaffiried on appeal. '
The Supreme Court adopted the sso-called A ian rule f reasonable
use with respect -to'the use of artesian ahd probably other- perolating
33/ Rouse v 2City of Kiton, 188 C. 1 3 &.1E. 82, 89 (1924)
3 35/ house: v. City of Kinston,: 188 .C.; 1, 123 S.E. 82 (192l). For .an-
other discussion of this case see Conement on Reasonable Use of Percolating
Waters, 3 N.C.L.R. 31 (1925). 0 -