owners of lands adjoining upon it have a natural right to the use of the
water of it from its source to its termination." He. noted that in an
English case where water from a spring flowed in "a gully or natural chan-
nel" to a stream on which was a mill, the landowner at the source was held
liable for cutting the spring off at its source and diverting it into a
If a spring does not immediately form a natural watercourse, but the
emerging waters instead flow vagrantly or perhaps only occasionally from
the point where the spring emerges, (see Definition of Natural Watercourse,
-ante) the rules relating to "surface waters" (discussed below) might pos-
sibly apply to its use at or after its point of emergence (and prior to
some point where the eventually reach a natural watercourse).
Most of the State's reported court decisions relating to so-called
"surface waters" have dealt with the problem of getting rid of, rather than
,utilizing, such waters.
Some of the distinctions between "surface waters" and waters in a
-natural watercourse were discussed under Definition of Natural Watercourse,
ante. In one case concerning the draining of a swamp it was contended by
one of the parties that the term "surface water" includes not only the water
which falls on lands as rain but also all waters which overflow or seep
through the banks of a watercourse. The Court, however, did not expressly
consider the question. 362/ In the neighboring states of South Carolina and "
361/ There ordinarily would not seer to be such liability, however, if the
watercourse created by the spring naturally terminates on one's own land,
particularly if it does not empty into or form an underground stream which
leads from one's land.
362/ Williamson v. Locks Creek Canal Company, 78 N.C. 156, 159 (1878);
other opinions in same case in 76 N.C0o 78 and 84 N.C. 629.
West Virginia flood waters which will return to the stream, although spread
out over adjacent lands, have been considered a part of it, rather than sur-
face waters. 363/ (See Flood Waters, ante,)
Angell on Watercourses, 7th Ld., sec. 4, was said in one case to cor-
rectly define a natural watercourse. (See Definition of Natural Watercourse,
ante.) In sec, 4d, lir. Angell noted that "diffused surface waters" are not
watercourses nor subject to the rules of law applicable thereto and indicated
that "water flowing through a hollow or ravine only in times of rain, or
melting snow, is not, in contemplation of law, a watercourse."
In one case water that accumulated in a swamp having no outlet, "until
it passed off by percolation and evaporation," was said to be "surface
In another case, waters which collected in a natural depression to
form a pond with no defined natural watercourse leading from it, although
it occasionally spilled over, appears to have been treated as surface water,
not a natural watercourse. 365/ Where such a pond lies on the lands of two
or more different owners their respective rights in such pond may differ
from rules governing the rights of riparian landowners along a natural lake
Rights of Use
The Court may have given some consideration to, but did not clearly
determine, rights to use "surface waters" in one early case. In this case
a canal company had, under special legislative authority, diverted water from
a swamp for the purpose of draining agricultural lands and thereby diminished
36_/ Jones v. Seaboard Air Line Ry. Co., 67 S.C. 181, 45 S.E. 188 (1903);
Uhl v. Ohio River R. Coo, 56 W.Va. 494, 49 S.E. 378, (1904).
364/ Barcliff v. Norfolk So. R. Co., 168 N.C., 268, 84 S.E. 290 (1915).
6/ Rice v. Norfolk Railroad Co., 130 N.C. 345, 41 S.E. 1031 (1902).
the flow of water to the mill of a lower riparian owner along a natural
watercourse which led from the. swamp. 366/
The Court apparently has not otherwise dealt with the question of
rights to use surface waters, such as by collecting them in a pond, and
thereby preventing their natural descent onto or past lower lands. Extensive
"36/ Williamson v. Locks Creek Canal Co., 76 N.C. 478 (1877); 78 N.C. 156
(1I7m); 84 N.C. 629 (1881). The Court in its first opinion in this case
(76 N.C. 478) indicated that there would be no liability for thereby cutting
off water to the mill unless the mill had been in existence at the time that
the canal company obtained its charter to drain the swamp, which was not
shown. The Court indicated that as to such waters the first to appropriate
and make use of them might obtain the right thereto, although the Court was
"inclined" to the opinion that the mill owner by the nature of conditions in
that part of the country could expect that the swamp would sometime be
drained for agricultural purposes and therefore his rights would attach only
to such waters; as were not thus drained off. It was not clear whether the
Court considered such waters to be surface waters or a part of a natural
In any event, the Court in a later opinion (78 N.C. 156) held that the
mill owner could recover damages for thereby cutting off the flow of water
to his mill. The Court in this later opinion discussed only legal principles
relating to the use of natural watercourses, although the canal company had
argued that the waters it drained were "surface waters," which included
fallen rain waters and waters which overflowed or seeped through the banks
of the watercourse, if any, which led from the swamp, as indicated above.
It claimed the right to drain off such waters without liability to the
mill owner. The lower court at the trial had instructed the jury that if
the water diverted by the canal company "was surface water" the mill owner
could not recover. As the jury awarded damages, it apparently decided that
the waters drained off were a part of the watercourse, :not surface waters.
The Court in its later opinion explained that its earlier statement
that the time that the mill was erected would be highly significant was made
on the understanding that the question of the millowner's right to flood the
upper lands of the canal company and its members was in dispute.. On learning
that no such right was claimed, by prescription or otherwise, and that the
millowner was only claiming the right to the flow of the stream as a riparian
owner, the Court concluded that it would be unnecessary for him to show that
his mill was an "ancient one."
The Court noted that the canal company had not made use of general
enabling legislation to obtain necessary rights of drainage through con-
demnation proceedings. (See Condemnation and Related Proceedings, post.)
The Court criticized this legislation as having created much uncertainty
and given rise to much litigation and noted that it was in part unconstitu-
In a still later opinion (84 NC. 629) the Court considered the effect
of an offer to settle the case for $5O and costs. The jury had awarded
nominal damages of one cent, which was affirmed.
rights to detain and use such waters may possibly, though not necessarily,
be implied from some of the rules applicable to getting rid of such waters.
(See Drainage, post.) For example, the Court in a recent case said that:
"The lower land is servient to that on a higher level in the sense that it
must receive the natural flow of surface water from the higher land; and the
servient owner must dispose of it as best he can without in turn becoming
an offender 367/
A 1953 amendment to legislation relating to commercial fish propagation
provides that "bodies of water arising within and lying wholly upon the
lands of a single owner or a single group of joint owners or tenants in
common, and from which fish cannot escape, and into which fish of legal
size cannot enter from public waters at any time, shall be known and desig-
nated as private ponds. The Wildlife Resources Commission is hereby auth-
orized to issue permits to such owners of such private ponds to take from
such private ponds game fish and sell the same for propagation purposes
only." 368/ But it seems doubtful whether this was intended to have any
effect on rights in such ponds other than with respect to the propagation
and sale of fish. (See Fishing, ante.)
Several of the cases dealing with drainage have involved questions re-
garding liability for diverting surface waters from their natural direction
of descent, while several other cases have considered rights to drain surface
waters into natural watercourses and thereby accelerate the flow, or to
divert water from a natural watercourse for drainage purposes,
36 Phillips v. Chesson et. al., 231 N,C. 566, 58 S.E. 2d. 343 (1950).
36/ N.C.G.S. sec. 113-257.
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